THIRD DIVISION
[ G.R. Nos. 126094-95, January 21, 1999 ]PEOPLE v. TITO REDUCA Y ABARA +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. TITO REDUCA Y ABARA, ACCUSED-APPELLANT.
D E C I S I O N
PEOPLE v. TITO REDUCA Y ABARA +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. TITO REDUCA Y ABARA, ACCUSED-APPELLANT.
D E C I S I O N
PANGANIBAN, J.:
When the prosecution fails to establish that the wound inflicted on the victim would have caused his or her death had medical help not been provided, the accused may be convicted only of attempted, not frustrated, murder or homicide. In denying
this appeal, we also reiterate the following doctrines: (1) the trial court's assessment of the credibility of witnesses and their testimonies is entitled to great respect; (2) a dying declaration made under a consciousness of impending death is admissible in evidence as an
exception to the hearsay rule; and (3) an unsubstantiated alibi cannot overcome positive and credible evidence pointing to the accused as the perpetrator of the crime.
The Case
Before us is an appeal from the February 8, 1996 Decision[1] of the Regional Trial Court of Bukidnon, Branch 8, in Criminal Case Nos. 7191-95, 7192-95 and 7193-95, finding Tito Reduca guilty beyond reasonable doubt of two counts of murder and one count of frustrated murder.
In three separate Informations, Assistant Provincial Prosecutor Guillermo G. Ching charged appellant with two counts of murder and one count of frustrated murder. Filed on February 13, 1995 and similarly worded except for the name of the victim,[2] the two Informations for murder read:
The Facts
Evidence for the Prosecution
In the Appellee's Brief, the solicitor general[7] presented the following narration of facts:
Evidence for the Defense
In his Brief, Appellant Reduca interposes alibi as his defense and disputes the credibility of the testimonies of Manolo Cabactulan and Felix Temple, both of whom identified him as the perpetrator of the crimes. In his "Appeal,"[8] Reduca narrates his whereabouts during the night of the crime as follows:[9]
Ruling of the Trial Court
The trial court concluded that appellant's defense of alibi cannot overthrow the clear and convincing eyewitness accounts of Manolo Cabactulan and Felix Temple, both of whom identified appellant as the assailant. The defense failed to show that Cabactulan and Temple had any motive to single out and falsely accuse appellant. In addition, two other witnesses testified that they heard one of the victims, Ricky Renegado, utter before his death that "Reduca" had stabbed him. Finally, the trial court ruled that treachery attended the commission of the crimes, as shown by the suddenness of the assault which prevented the victims from defending themselves.
Assignment of Errors
In assailing the trial court's Decision, appellant interposes the following errors:
The Court's Ruling
The appeal has no merit.
First Issue:
Probative Value of the Prosecution's Evidence
The defense argues that Witnesses Cabactulan and Temple could not have identified appellant as their attacker because, at the time, they were drunk and, in any event, it was dark. Furthermore, based on Cabactulan's testimony, they immediately scampered away as soon as the attack began; thus, it was impossible for them to identify who their attacker was. Assailing the credibility of the said witnesses, appellant also points to various inconsistencies in their testimonies, as well as to alleged irregularities pertaining to Felix Temple's affidavit.
Appellant's contentions are not persuasive. The trial court, which had the opportunity of observing the demeanor of the witnesses on the stand, was convinced of their credibility. We find no reason to reverse or alter the evaluation of the trial court. "It is a time tested doctrine that a trial court's assessment of the credibility of a witness is entitled to great weight -- even conclusive and binding if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence."[11]
The witnesses positively identified appellant as the attacker. Moreover, while the crimes were committed at night, it was not completely dark in the vicinity of the locus criminis. There was enough light for the four victims to see the road they were walking on, and for the barangay captain to have seen them walking on the road. Cabactulan testified:
Second Issue:
Renegado's Dying Declaration
The defense contends that Ricky Renegado's alleged dying declaration that it was "Reduca" who stabbed him does not necessarily refer to Appellant Tito Reduca in particular. Appellant also seeks to impugn the credibility of Simplicio Bariga and Rodrigo Fernandez, who had both testified on Renegado's statement, because they did not volunteer the above information when they were first questioned by the police. Furthermore, Bariga seems to be confused as to the date he executed his affidavit.
Section 37 of Rule 130 of the Rules of Court allows a dying person's declaration made under consciousness of impending death, to be received as evidence in a case involving said person's death:
In the case at bar, there is no question that all of the above requisites are present, including the fact that Renegado, the declarant, was aware of his impending death. "It has been held that the degree and seriousness of the wound and the fact that death supervened shortly afterwards, may be considered as substantial evidence that the declaration was made by the victim with full realization that he was in a dying condition."[19] Therefore, considering the seriousness of the stab wound inflicted on Renegado and the fact that he died shortly thereafter, it can be concluded that he was aware of his impending death when he uttered that it was "Reduca" who stabbed him.
It is important to note that Renegado's dying declaration, as testified to by Bariga and Fernandez, was not the sole evidence relied upon to incriminate the accused; it merely corroborated the positive identification already made by Cabactulan and Temple. That Bariga and Fernandez did not immediately report Renegado's utterance to the police is understandable and in no way discredits them. What is important is that they testified, and the trial court found their testimonies credible and believable. Thus, in People v. Ompad Jr.,[20] this Court held:
Third Issue:
Alibi
Appellant interposes the defense of alibi, stating that on December 4, 1994, he played basketball from 8:00 p.m. to 10:00 p.m. and slept in the barangay hall from 10:00 p.m. onwards. Thus, he could not have been the author of the crime committed around 10:00 p.m. that day.
This claim must also be rejected. Alibi is one of the weakest defenses, because it is easy to fabricate and difficult to disprove. For alibi to prosper, it would not be enough for the accused to prove that he was elsewhere when the crime was committed; he must further demonstrate that it would have been physically impossible for him to have been at the scene of the crime at the time of its commission.[22]
Evidence shows that the distance between the barangay hall and the site of the alleged stabbing incident was only around four hundred (400) meters. Thus, it was not physically impossible for appellant to be present at the locus criminis. Finally, an unsubstantiated alibi cannot overcome positive and credible evidence pointing to the accused as the perpetrator of the crime.
The Crime
The trial court correctly convicted appellant of two counts of murder. The qualifying circumstance of alevosia was proven beyond reasonable doubt, for the bolo attack upon the unarmed victims was sudden and unexpected, thereby depriving them of any chance to defend themselves. Although the crime was committed during the effectivity of Republic Act No. 7659, which prescribed for murder the penalty of reclusion perpetua to death, we agree with the trial court that only reclusion perpetua should be imposed for each count of murder.[23] Aside from the qualifying circumstance of treachery, no proof of any other aggravating circumstance was presented during the trial or alleged before this Court to justify the imposition of the supreme penalty of death. Evident premeditation was alleged in the Informations, but it cannot be appreciated in the absence of "evidence that the execution of the criminal act [was] preceded by cool thought and reflection upon the resolution to carry out the criminal intent during a space of time sufficient to arrive at a calm judgment."[24]
Although we affirm appellant's conviction of two counts of murder, we hold that under the third Information he is guilty of attempted, not frustrated, murder. While the prosecution established that there was intent to kill, it failed to present evidence showing that the wound inflicted on Cabactulan was fatal and would have caused his death had medical help not been provided. Where the wounds inflicted on the victim were not proven to be sufficient to cause his death, the crime is only attempted murder, as the accused has not performed all the acts of execution that would have brought about the victim's death.[25]
Civil Liability
The civil liabilities awarded by the trial court are correct. The heirs of Jose Ebangcara and Ricky Renegado are entitled to the sum of fifty thousand pesos (P50,000) each as indemnity ex delicto. They are also entitled to moral damages, as the mothers of the two victims testified to the anxiety, the worry and the sadness caused by the death of their respective sons. Lastly, the expenses incurred as a result of the two deaths and Cabactulan's medical treatment were sufficiently proven.
WHEREFORE, the assailed Decision is hereby AFFIRMED insofar as it convicted Appellant Tito Reduca of two counts of murder and sentenced him to two terms of reclusion perpetua. However, his conviction for frustrated murder is MODIFIED to attempted murder, for which he is hereby SENTENCED to an indeterminate penalty of 4 years 2 months and 1 day of prision correccional (maximum), as minimum, to 10 years and 1 day of prision mayor (maximum), as maximum. Costs against appellant.
SO ORDERED.
Romero (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur.
[1] Written by Judge Vivencio P. Estrada.
[2] The victim in the other Information is Jose Ebangcara.
[3] Information for Criminal Case No. 7191-95, p. 1; rollo, p. 5.
[4] Information for Criminal Case No. 7193-95, p. 1; rollo, p. 9.
[5] Assailed Decision, pp. 9-10; rollo, pp. 26-27.
[6] The case was deemed submitted for resolution on March 12, 1998, upon the filing of the Appellee's Brief. The filing of a reply brief was deemed waived, as none was filed within the reglementary period.
[7] The Appellee's Brief was signed by Solicitor General Romeo C. de la Cruz, Assistant Solicitor General Mariano M. Martinez, Assistant Solicitor General Fernanda Lampas Peralta and Solicitor Alexander G. Gesmundo.
[8] This 15-page "Appeal for Tito Reduca" dated November 3, 1995 was signed by Atty. Nemesio G. Beltran and filed on May 2, 1996.
[9] The Appellant's Brief did not contain a detailed statement of facts.
[10] Appellant's Brief, pp. 3-4.
[11] People vs. Romeo Nell, GR No. 109660, 10, July 1, 1997, per Panganiban, J. See also People v. Barredo, GR No. 122850, October 7, 1998; People v. Gaddi, 170 SCRA 649, February 27, 1989; People v. Pascual, 204 SCRA 618, December 5, 1991; People v. Naparan, 225 SCRA 714, August 30, 1993; People v. Deopante, 263 SCRA 691, October 30, 1996; and People v. Escandor, 265 SCRA 444, December 9, 1996.
[12] TSN, August 18, 1995, pp. 9-10.
[13] TSN, August 18, 1995, pp. 24-25.
[14] TSN, August 18, 1995, p. 9.
[15] TSN, August, 18, 1995, p. 13
[16] People vs. Calegan, 233 SCRA 537, 544-545, June 30, 1994, per Bellosillo, J. See also People v. Sabio, 102 SCRA 218, January 27, 1981; People v. Garcia, 105 SCRA 6, June 11, 1981; People v. Bermoy, 105 SCRA 106, June 17, 1981; and People v. Canumay, 130 SCRA 301, July 9, 1984.
[17] People vs. Villanueva, 215 SCRA 22, 28, October 21, 1992, per Feliciano, J. See also People v. Roldan, 224 SCRA 536, July 6, 1993; People v. de Dios, 187 SCRA 228, July 6, 1990; People v. Riego, 189 SCRA 445, September 12, 1990; Biala v. CA, 191 SCRA 50, October 31, 1990; People v. Segwaben, 194 SCRA 239, February 19, 1991; People v. Magdadaro, 197 SCRA 151, May 15, 1991; People v. Patilan, 197 SCRA 354, May 23, 1991; People v. Salguero, 198 SCRA 357, June 19, 1991; People v. Urquia, 203 SCRA 735, November 19, 1991; People v. Fule, 206 SCRA 652, February 28, 1992; and People v. Dimaano, 209 SCRA 819, June 15, 1992.
[18] 124 SCRA 486, 491, September 2, 1983, per Relova, J. See also
Before us is an appeal from the February 8, 1996 Decision[1] of the Regional Trial Court of Bukidnon, Branch 8, in Criminal Case Nos. 7191-95, 7192-95 and 7193-95, finding Tito Reduca guilty beyond reasonable doubt of two counts of murder and one count of frustrated murder.
In three separate Informations, Assistant Provincial Prosecutor Guillermo G. Ching charged appellant with two counts of murder and one count of frustrated murder. Filed on February 13, 1995 and similarly worded except for the name of the victim,[2] the two Informations for murder read:
"That on or about the 4th day of December, 1994, in the evening, at Sayre Highway, [B]arangay Sinanguyan, [M]unicipality of Don Carlos, [P]rovince of Bukidnon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill by means of treachery and evident premeditation, armed with a bladed weapon, did then and there wilfully, unlawfully and criminally attack, assault and stab RICKY RENEGADO, hitting and inflicting upon his person the following wounds, to wit:Subsequently, on February 14, 1995, a third Information was filed, charging Reduca with frustrated murder, allegedly committed as follows:
- Multiple Stab wounds
which caused the instantaneous death of RICKY RENEGADO, to the damage and prejudice of the legal heirs of RICKY RENEGADO in such amount as may be allowed by law.
"Contrary to and in violation of Article 248 of the Revised Penal Code, as amended by R.A. 7659."[3]
"That on or about the 4th day of December, 1994, in the evening, at Sayre Highway, [B]arangay Sinanguyan, [M]unicipality of Don Carlos, [P]rovince of Bukidnon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill by means of treachery and evident premeditation, armed with a bladed weapon, did then and there wilfully, unlawfully and criminally attack, assault and stab MANOLO CABACTULAN, hitting and inflicting upon his person the following wounds, to wit:Considering that the crimes were allegedly committed on one occasion at the same place and by the same suspect, both the prosecution and the defense agreed to hold a joint trial for the three cases. During the arraignment on March 16, 1995, the accused, assisted by Counsel Nemesio G. Beltran, pleaded not guilty. Thereafter, trial proceeded in due course. On February 8, 1996, the court a quo rendered its Decision, the dispositive portion of which reads:
- Wound at the right portion of the back of his body
which wound would have caused the death of MANOLO CABACTULAN were it not for the timely medical assistance accorded him, thus the accused had performed all the acts of execution which would have produced the crime of [m]urder, but which nevertheless did not produce it by reason of causes [of] the will of the accused, to the damage and prejudice of MANOLO CABACTULAN in such amount as may be allowed by law.
"Contrary to and in violation of Article 248 in relation to Article 6 of the Revised Penal Code."[4]
"WHEREFORE, the guilt of accused Tito Reduca having been proved beyond reasonable doubt, and pursuant to the provision of R.A. 7659, he is hereby sentenced as follows:In view of the penalty imposed by the trial court, this appeal was filed directly with this Court.[6]
1) In Criminal Case No. 7191-95, for murder, accused is sentenced to suffer imprisonment of RECLUSION PERPETUA; to indemnify the heirs of Ricky Renegado P50,000.00 for civil indemnity, P20,000.00 for moral damages and P6,000.00 as actual expenses;
2) In Criminal Case No. 7192-95, for murder, accused is sentenced to suffer imprisonment of RECLUSION PERPETUA to indemnify the heirs of Jose Ebangcara the sum of P50,000.00 as civil indemnity, P20,000.00 for moral damages, and P9,000.00 as actual expenses;
3) In Criminal Case No. 7193-95, for frustrated murder, accused is sentenced to suffer imprisonment of TEN (10) YEARS and ONE (1) DAY of PRISION MAYOR as minimum to SEVENTEEN (17) YEARS and FOUR (4) MONTHS of RECLUSION TEMPORAL as maximum, to indemnify his victim Manolo Cabactulan the sum of P25,000.00 as civil indemnity, P15,000.00 for moral damages and P16,000.00 as actual expenses.
"SO ORDERED."[5]
Evidence for the Prosecution
In the Appellee's Brief, the solicitor general[7] presented the following narration of facts:
"On December 4, 1994, at around 10:00 in the evening, Jose Ebangcara, Ricky Renegado, Felix Temple and Manolo Cabactulan left the house of Ricky Renegado at Purok 4, North Poblacion, Don Carlos, Bukidnon to proceed to Barangay Sinangoyan, Don Carlos[,] to attend a dance. The four (4) walked abreast [of] each other, on the right side of Sayre Highway. The relative positions of the group were such that Jose Ebangcara was walking along the right side of Cabactulan while on his left side was Renegado followed by Temple on the extreme left (pp. 3-5, TSN, August 18, 1995). While they were walking, Cabactulan saw appellant coming from the cornfield at their right side and almost instantaneously heard Ebangcara utter, 'I was stabbed, part (meaning partner in local lingo)'. The place was illuminated by the street lamp and fluorescent light coming from a house nearby (pp. 6, 11, ibid.).
"While glancing at Ebangcara, Cabactulan also felt that he was stabbed on his back. He immediately looked around and saw appellant armed with a bolo. Cabactulan ran away towards Maramag, Bukidnon (p. 6-7, ibid.). After running about half a kilometer, Cabactulan fell down in front of a house and lost consciousness, Cabactulan realized that he was being loaded [into] an ambulance. He was brought to the Maramag District Hospital where he was confined for twenty-nine (29) days (pp. 12-13, 23-26, ibid.)
"That same evening of December 4, 1994, Rodrigo Fernandez was at his house at Don Carlos Norte, Don Carlos, Bukidnon, listening to a radio program of DXMB. He was at the balcony of his house when he saw somebody running along the highway towards Barangay Sinangayonan and shouting for help. Fernandez went out of his house and approached the person. He asked the bloodied person who he was and the person identified himself as Ricky Renegado and asked for Simplicio Bariga. Fernandez, on hearing the name of Simplicio Bariga, summoned the latter from his house which was some twenty meters away. When they returned to the place where Fernandez left Renegado, Bariga immediately asked the bloodied person, 'Ricky, what happened to you?' [Renegado] replied, 'Noy[,] I was stabbed'. When asked further who stabbed him, Renegado said it was Reduca. (pp. 49-50, TSN, September 18, 1995). Fernandez, who was some two meters away from Bariga and Renegado, heard them exchange the same question and answer for at least three times. (p. 50, ibid.).
"Simplicio Bariga was watching television at his residence at Don Carlos Norte, Don Carlos, Bukidnon at around ten o'clock in the evening of December 4, 1994 when his neighbor, Rudy Fernandez summoned him to help someone. Bariga took his flashlight and together with Fernandez and his younger brother Ponciano, Bariga proceeded to Sayre highway and there saw Ricky Renegado bloodied and lying on his belly. Bariga asked Renegado three (3) times who stabbed him and xxx everytime[,] the latter replied 'Reduca' (pp. 4-6, TSN, September 18, 1995). Not long thereafter, Renegado died. Bariga then instructed someone to fetch the parents of Renegado but it was the latter's elder brother Momoy Reduca who arrived. Thereafter the policemen arrived and loaded Renegado's body [into] an ambulance (p. 7, ibid.).
"Renegado died because of multiple stab wounds he sustained, namely, one at the anterior chest wall above the clavicular line, another on the right upper 'quadra' abdomen and one at the interphal[ange]l joint between the thumb and index finger. Dr. Filipina Villa, who conducted the postmortem examination on the [sic] Renegado, concluded that the wounds were caused by a knife or bolo (Exh. 'A', p. 4, Record[s]; Criminal Case No. 7191-95; pp. 5-6, TSN, September 27, 1995).
"Ebangcara also died as he sustained wounds on the abdomen, on the upper left arm and on the wrist. Dr. Villa, [who] also conducted the postmortem examination on the body of Ebangcara, testified that the wounds were caused by a knife or bolo (Exh. 'B', p. 4, Record[s]; Criminal Case No. 7192-95; pp. 9-10, TSN, ibid.).
In his Brief, Appellant Reduca interposes alibi as his defense and disputes the credibility of the testimonies of Manolo Cabactulan and Felix Temple, both of whom identified him as the perpetrator of the crimes. In his "Appeal,"[8] Reduca narrates his whereabouts during the night of the crime as follows:[9]
"1. That at 4:00 o'clock in the afternoon[,] Bonifacio Abara went to the store of Lenie Gomez at [P]urok 4. (Sinangguyan, Don Carlos, Bukidnon) where he met the accused[,] Tito Reduca.
"2. That both of them went to Purok 1, to the store of Rudy Guevara where they drank [t]uba and took supper, staying there [until] around 8:00 o'clock in the evening.
"3. That both of them went to Purok 4[,] where they played basketball until around 10:00 o'clock in the evening.
"4. That at about 8:30 PM, more or less, [the] Baran[gay] Captain[,] together with [the] Kag[awad] and Chairman of [P]eace and [O]rder[,] Percy Tumana, confirmed the presence of Tito Reduca playing basketball on the court which [was] adjacent to the Baran[gay] Hall.
"5. That Baran[gay] [C]aptain Gomez, Percy Tumana and their CVO's conducted a roving, going first to Purok 7.
"6. That David Umali, a CVO and in charge of the Baran[gay] Hall together with Bonifacio Abara and Tito Reduca slept in the Baran[gay] Hall at about 10:00 pm that night of December 4th[,] 1994.
"7. That Baran[gay] Captain Gomez and Percy Tumana broke up their roving at about 10:30 pm and Capt. Gomez walked to Don Carlos Norte where he was to sleep in the house of his aunt; [t]hat on the way he met four noisy and drunk young men, two of whom he recognized as Ricky Renegado and Felix Temple. The latter was his student when he was still teaching in Don Carlos.
"8. That on the other hand[,] Peroy Tumana and his CVO's went back to the Baran[gay] Hall, checked[,] and saw David Umali, Tito Reduca and Bonifacio Abara sleeping.
"9. That at about 11:00 pm[,] Captain Gomez, who was already in Don Carlos Norte, learned of the stabbing in his Baran[gay] and immediately[,] he called for assistance asking for [an] ambulance, using his handset radio, and the assistance was immediate."
The trial court concluded that appellant's defense of alibi cannot overthrow the clear and convincing eyewitness accounts of Manolo Cabactulan and Felix Temple, both of whom identified appellant as the assailant. The defense failed to show that Cabactulan and Temple had any motive to single out and falsely accuse appellant. In addition, two other witnesses testified that they heard one of the victims, Ricky Renegado, utter before his death that "Reduca" had stabbed him. Finally, the trial court ruled that treachery attended the commission of the crimes, as shown by the suddenness of the assault which prevented the victims from defending themselves.
In assailing the trial court's Decision, appellant interposes the following errors:
The Court will discuss the following issues seriatim: (1) probative value of the prosecution's evidence; (2) admissibility of Renegado's dying declaration; and (3) alibi as a defense. In addition, we shall also take up the characterization of the crimes committed, as well as the legality of the money awards handed down by the court a quo."I
THE LOWER COURT ERRED IN GIVING CREDENCE TO THE WITNESSES OF THE PROSECUTION NOTWITHSTANDING THEIR LACK OF GOOD OPPORTUNITY TO IDENTIFY THE CULPRIT.
II
THE LOWER COURT ERRED IN GIVING CREDENCE TO THE WITNESSES OF THE PROSECUTION WHO ALLEGEDLY HEARD THE LATE RICKY RENEGADO TO HAVE SAID THAT THE ONE WHO STABBED HIM [WAS] 'REDUCA' NOTWITHSTANDING THAT THE SAID TESTIMONIES WERE BELATEDLY GIVEN TO THE POLICE.
III
THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT OF THE CRIME CHARGED ON THE GROUND THAT HIS GUILT HA[D] NOT BEEN PROVEN BEYOND REASONABLE DOUBT."[10]
The appeal has no merit.
Probative Value of the Prosecution's Evidence
The defense argues that Witnesses Cabactulan and Temple could not have identified appellant as their attacker because, at the time, they were drunk and, in any event, it was dark. Furthermore, based on Cabactulan's testimony, they immediately scampered away as soon as the attack began; thus, it was impossible for them to identify who their attacker was. Assailing the credibility of the said witnesses, appellant also points to various inconsistencies in their testimonies, as well as to alleged irregularities pertaining to Felix Temple's affidavit.
Appellant's contentions are not persuasive. The trial court, which had the opportunity of observing the demeanor of the witnesses on the stand, was convinced of their credibility. We find no reason to reverse or alter the evaluation of the trial court. "It is a time tested doctrine that a trial court's assessment of the credibility of a witness is entitled to great weight -- even conclusive and binding if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence."[11]
The witnesses positively identified appellant as the attacker. Moreover, while the crimes were committed at night, it was not completely dark in the vicinity of the locus criminis. There was enough light for the four victims to see the road they were walking on, and for the barangay captain to have seen them walking on the road. Cabactulan testified:
Immaterial is the fact that the victims may have drunk liquor a few hours prior to the attack, since it was not shown "just how drunk they were" as they walked along the road. Verily, it was not established how much liquor they had consumed. Indeed, no evidence was offered to show that intoxication had debilitated their senses to the point of negating their claim of having seen their attacker. Nor did Cabactulan positively say that they had scampered away before they were able to see their attacker. Quite the contrary, Felix Temple positively testified that he saw appellant stab the victims, thus:
"Q: And how were you able to recognize your assailant when that was already 10:00 o'clock in the evening?
A: Because we were very near each other. Q: Other than that distance, what else made you recognize him? A: [T]here was also the light of the fluorescent lamp. x x x x x x x x x Q: Now, you said there was light, how far was that light [from] the place where the incident xxx happened? A: About twenty (20) meters."[12]
The defense claims that Cabactulan had never seen appellant before the incident and, thus, could not have identified him as the attacker. True, Cabactulan had not known appellant prior to the attack, but it does not follow that the witness, who saw him during the attack, was incapable of identifying him. Thus, when Cabactulan again saw appellant during the course of the investigation and the trial, he positively pointed to him as the attacker. We quote his testimony hereunder:
Now, at about 10:00 o'clock in the evening of December 4, 1994, while you were walking at the Sayre Highway going to Sinangoyan to attend the dance, do you know what transpired if there was any?
The defense likewise misappreciated Cabactulan's testimony that he saw Chief of Police Estanislao load him into the ambulance which brought him to the hospital. However, Cabactulan simply testified that he was loaded into the ambulance, not that the police chief rode and accompanied him therein.
"Q: And when for the first time [did] you know that his name [was] Tito Reduca?
A: At the time when the policeman told me his name. Q: At the time you were stabbed and you said you recognized that assailant, did you already know that his name [was] Tito Reduca? A: Not yet. Q: Before the incident, did you already see that assailant of yours? A: Not yet. Q: That assailant which you recognized at the time you were stabbed and that person you saw at the police station[,] were these the same person? A: He is the same person."[14]
Likewise, Temple's credibility is not diminished because of an alleged inconsistency between his testimony and his affidavit in respect to the number of times he had previously seen appellant. "The general rule has always been that discrepancies between the statements of the affiant in his affidavit and those made by him on the witness stand do not necessarily discredit him,"[16] because "affidavits, being taken ex parte, are almost always incomplete and often inaccurate x x x."[17]
"Q: Who loaded you in the ambulance?
A: Chief Estaniel and his companion."[15]
Renegado's Dying Declaration
The defense contends that Ricky Renegado's alleged dying declaration that it was "Reduca" who stabbed him does not necessarily refer to Appellant Tito Reduca in particular. Appellant also seeks to impugn the credibility of Simplicio Bariga and Rodrigo Fernandez, who had both testified on Renegado's statement, because they did not volunteer the above information when they were first questioned by the police. Furthermore, Bariga seems to be confused as to the date he executed his affidavit.
Section 37 of Rule 130 of the Rules of Court allows a dying person's declaration made under consciousness of impending death, to be received as evidence in a case involving said person's death:
"SEC. 37. Dying Declaration. --- The declaration of a dying person, made under a consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death."In People v. Almeda,[18] this Court held that "there are four requisites which must concur in order that a dying declaration may be admissible, to wit: (a) it concerns the crime and the surrounding circumstances of the declarant's death; (b) at the time it was made, the declarant was under a consciousness of an impending death; (c) the declarant was competent as a witness; and (d) the declaration is offered in a criminal case for homicide, murder or parricide, in which the declarant was the victim."
In the case at bar, there is no question that all of the above requisites are present, including the fact that Renegado, the declarant, was aware of his impending death. "It has been held that the degree and seriousness of the wound and the fact that death supervened shortly afterwards, may be considered as substantial evidence that the declaration was made by the victim with full realization that he was in a dying condition."[19] Therefore, considering the seriousness of the stab wound inflicted on Renegado and the fact that he died shortly thereafter, it can be concluded that he was aware of his impending death when he uttered that it was "Reduca" who stabbed him.
It is important to note that Renegado's dying declaration, as testified to by Bariga and Fernandez, was not the sole evidence relied upon to incriminate the accused; it merely corroborated the positive identification already made by Cabactulan and Temple. That Bariga and Fernandez did not immediately report Renegado's utterance to the police is understandable and in no way discredits them. What is important is that they testified, and the trial court found their testimonies credible and believable. Thus, in People v. Ompad Jr.,[20] this Court held:
"It is settled that delay in divulging names of perpetrators of crimes, if sufficiently explained, does not impair the credibility of the witness and his testimony. The initial reluctance of a witness due to reprisal is common and does not impair his testimony."Finally, Bariga's confusion regarding the date when his affidavit was executed is trivial. It pertains to a minor detail and does not affect his credibility. Moreover, this Court has previously explained that "even the most truthful witnesses can sometimes make mistakes, but such innocent lapses do not necessarily affect their credibility."[21]
Alibi
Appellant interposes the defense of alibi, stating that on December 4, 1994, he played basketball from 8:00 p.m. to 10:00 p.m. and slept in the barangay hall from 10:00 p.m. onwards. Thus, he could not have been the author of the crime committed around 10:00 p.m. that day.
This claim must also be rejected. Alibi is one of the weakest defenses, because it is easy to fabricate and difficult to disprove. For alibi to prosper, it would not be enough for the accused to prove that he was elsewhere when the crime was committed; he must further demonstrate that it would have been physically impossible for him to have been at the scene of the crime at the time of its commission.[22]
Evidence shows that the distance between the barangay hall and the site of the alleged stabbing incident was only around four hundred (400) meters. Thus, it was not physically impossible for appellant to be present at the locus criminis. Finally, an unsubstantiated alibi cannot overcome positive and credible evidence pointing to the accused as the perpetrator of the crime.
The trial court correctly convicted appellant of two counts of murder. The qualifying circumstance of alevosia was proven beyond reasonable doubt, for the bolo attack upon the unarmed victims was sudden and unexpected, thereby depriving them of any chance to defend themselves. Although the crime was committed during the effectivity of Republic Act No. 7659, which prescribed for murder the penalty of reclusion perpetua to death, we agree with the trial court that only reclusion perpetua should be imposed for each count of murder.[23] Aside from the qualifying circumstance of treachery, no proof of any other aggravating circumstance was presented during the trial or alleged before this Court to justify the imposition of the supreme penalty of death. Evident premeditation was alleged in the Informations, but it cannot be appreciated in the absence of "evidence that the execution of the criminal act [was] preceded by cool thought and reflection upon the resolution to carry out the criminal intent during a space of time sufficient to arrive at a calm judgment."[24]
Although we affirm appellant's conviction of two counts of murder, we hold that under the third Information he is guilty of attempted, not frustrated, murder. While the prosecution established that there was intent to kill, it failed to present evidence showing that the wound inflicted on Cabactulan was fatal and would have caused his death had medical help not been provided. Where the wounds inflicted on the victim were not proven to be sufficient to cause his death, the crime is only attempted murder, as the accused has not performed all the acts of execution that would have brought about the victim's death.[25]
The civil liabilities awarded by the trial court are correct. The heirs of Jose Ebangcara and Ricky Renegado are entitled to the sum of fifty thousand pesos (P50,000) each as indemnity ex delicto. They are also entitled to moral damages, as the mothers of the two victims testified to the anxiety, the worry and the sadness caused by the death of their respective sons. Lastly, the expenses incurred as a result of the two deaths and Cabactulan's medical treatment were sufficiently proven.
WHEREFORE, the assailed Decision is hereby AFFIRMED insofar as it convicted Appellant Tito Reduca of two counts of murder and sentenced him to two terms of reclusion perpetua. However, his conviction for frustrated murder is MODIFIED to attempted murder, for which he is hereby SENTENCED to an indeterminate penalty of 4 years 2 months and 1 day of prision correccional (maximum), as minimum, to 10 years and 1 day of prision mayor (maximum), as maximum. Costs against appellant.
SO ORDERED.
Romero (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur.
[1] Written by Judge Vivencio P. Estrada.
[2] The victim in the other Information is Jose Ebangcara.
[3] Information for Criminal Case No. 7191-95, p. 1; rollo, p. 5.
[4] Information for Criminal Case No. 7193-95, p. 1; rollo, p. 9.
[5] Assailed Decision, pp. 9-10; rollo, pp. 26-27.
[6] The case was deemed submitted for resolution on March 12, 1998, upon the filing of the Appellee's Brief. The filing of a reply brief was deemed waived, as none was filed within the reglementary period.
[7] The Appellee's Brief was signed by Solicitor General Romeo C. de la Cruz, Assistant Solicitor General Mariano M. Martinez, Assistant Solicitor General Fernanda Lampas Peralta and Solicitor Alexander G. Gesmundo.
[8] This 15-page "Appeal for Tito Reduca" dated November 3, 1995 was signed by Atty. Nemesio G. Beltran and filed on May 2, 1996.
[9] The Appellant's Brief did not contain a detailed statement of facts.
[10] Appellant's Brief, pp. 3-4.
[11] People vs. Romeo Nell, GR No. 109660, 10, July 1, 1997, per Panganiban, J. See also People v. Barredo, GR No. 122850, October 7, 1998; People v. Gaddi, 170 SCRA 649, February 27, 1989; People v. Pascual, 204 SCRA 618, December 5, 1991; People v. Naparan, 225 SCRA 714, August 30, 1993; People v. Deopante, 263 SCRA 691, October 30, 1996; and People v. Escandor, 265 SCRA 444, December 9, 1996.
[12] TSN, August 18, 1995, pp. 9-10.
[13] TSN, August 18, 1995, pp. 24-25.
[14] TSN, August 18, 1995, p. 9.
[15] TSN, August, 18, 1995, p. 13
[16] People vs. Calegan, 233 SCRA 537, 544-545, June 30, 1994, per Bellosillo, J. See also People v. Sabio, 102 SCRA 218, January 27, 1981; People v. Garcia, 105 SCRA 6, June 11, 1981; People v. Bermoy, 105 SCRA 106, June 17, 1981; and People v. Canumay, 130 SCRA 301, July 9, 1984.
[17] People vs. Villanueva, 215 SCRA 22, 28, October 21, 1992, per Feliciano, J. See also People v. Roldan, 224 SCRA 536, July 6, 1993; People v. de Dios, 187 SCRA 228, July 6, 1990; People v. Riego, 189 SCRA 445, September 12, 1990; Biala v. CA, 191 SCRA 50, October 31, 1990; People v. Segwaben, 194 SCRA 239, February 19, 1991; People v. Magdadaro, 197 SCRA 151, May 15, 1991; People v. Patilan, 197 SCRA 354, May 23, 1991; People v. Salguero, 198 SCRA 357, June 19, 1991; People v. Urquia, 203 SCRA 735, November 19, 1991; People v. Fule, 206 SCRA 652, February 28, 1992; and People v. Dimaano, 209 SCRA 819, June 15, 1992.
[18] 124 SCRA 486, 491, September 2, 1983, per Relova, J. See also