Accused-appellant Danny Queliza seeks reversal of the judgment rendered by Branch 54 of the Regional Trial Court of the First Judicial Region, stationed in Alaminos, Pangasinan, which found him guilty of the crime of murder under Article 248 of the Revised Penal Code, and consequently sentenced him as follows:

WHEREFORE, in accordance with the evidence adduced and law applicable hereof, and finding that moral certainty has been reached as to find the accused guilty beyond reasonable doubt of the crime of murder under Article 248 of the Revised Penal Code, it is now the painful duty of this court to impose on the accused the single indivisible sentence of Death but as since this sentence is proscribed at the time of the commission of the crime by the 1987 Constitution, the medium degree of Reclusion Perpetua is imposed and to pay to the heirs of the victim civil damages in the following amounts:

A.            P9,500.00 - for compensatory damages

B.            P100,000.00 - for loss of earnings

C.            P100,000.00 - for moral damages

D.            P50,000.00 - for indemnification awarded to heirs in accordance with law.

(pp. 38-39, Rollo.)

Accused-appellant Danny Queliza was charged under an Information docketed as Criminal Case no. 2596-A, for the crime of murder, reading as follows:

That on or about October 30, 1992, in the evening in Barangay Aporao, Municipality of Bani, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill, treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously shoot VICTORIANO CABANGON with a short firearm, inflicting him injuries to wit:

-  Point of entry: frontal area skull, right side, 1 cm., rough edges, (positive powder [sic] burns, with minimal amount of brain tissue at the surface.

-  Right eye bulging. Linear fracture 6 cm. Length traversing the frontal area of the skull.

-  Brain tissue is lacerated with moderate amount of clotted blood at the cranial area.

Which cause the instantaneous death of Victoriano Cabangon as a consequence, to the damage and prejudice of the heirs of the victim."

CONTRARY to Art. 248 of the Revised Penal Code.

(p. 8, Rollo.)

Upon arraignment, accused-appellant pleaded not guilty and following trial, the judgment, now under review, was rendered. Hence, the instant appeal premised on the following assigned errors:

1

THE LOWER COURT GRIEVOUSLY ERRED IN INTERPRETING THE TESTIMONIES OF THE WITNESSES FOR THE PROSECUTION TO BE AFFIRMATIVE IN NATURE AND THEREFORE MORE CREDIBLE THAN THOSE OF THE WITNESSES FOR THE DEFENSE WHICH THE LOWER COURT HELD TO BE NEGATIVE.

2

THE LOWER COURT GRAVELY ERRED IN OVERLOOKING AND DISREGARDING FACTS AND CIRCUMSTANCE OF GREAT AND SIGNIFICANT WEIGHT AND IMPORTANCE WHICH, IF PROPERLY CONSIDERED, WOULD HAVE RESULTED TO THE ACQUITTAL OF THE ACCUSED-APPELLANT

3

THE LOWER COURT OBVIOUSLY ERRED IN HOLDING THAT THE PROSECUTION WAS ABLE TO PROVE THE GUILT OF THE ACCUSED-APPELLANT BEYOND REASONABLE DOUBT.

4

THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT OF THE CRIME ON GROUND OF REASONABLE DOUBT.

(Rollo, p. 57)

Based on the record, the undisputed facts of the case are the following:

At around 8 o'clock on the night of October 30, 1992, as Victoriano Aguilar Cabangon, 26 years old, Teresita Cabangon, 22 years old, husband and wife, together with their 5-year-old son, were resting in their bamboo hut at Barangay Apurao, Bani, Pangasinan, Victoriano, who was already asleep, was suddenly killed by a gunshot directed at the frontal area of his skull.

The prosecution's version is based on the testimony of its witnesses, Victoriano's widow, Teresita, who positively identified accuses-appellant Danny Queliza, as the culprit; Loreta Aguilar Cabangon, mother of the deceased; Restituto Rivera, the embalmer; and Dr. Vicente C. Tongson, the Rural Health Doctor. The Office of the Solicitor General summarized the events as follows:

Appellant Danny Queliza, victim Victoriano Cabangon and his mother Loreta were neighbors at Barangay Apurao, Bani, Pangasinan. Five days before the fateful night of October 30, 1992, appellant had a quarrel with victim's cousin, Ruben Ardesani. In that incident, the victim had made manifestations siding with his cousin whom he felt was aggrieved. Appellant resented this and threatened the victim saying that the latter's life was only worth P12,000.00 (Records, p. 55).

At about 8 o'clock in the evening of October 30, 1992, his wife Teresita and their 5-year old son were peacefully lying down for the night in their house (bamboo hut) illuminated by an electric bulb. Father and son had already fallen asleep while Teresita was still awake listening to the program "Mr. Lonely" (TSN, Sept. 9, 1993, pp. 4-7). All of a sudden, appellant pushed the door open and forthwith fired a gun at the victim's head. Appellant glanced at Teresita and fled. The victim died on the spot. Horrified by the scene, Teresita cried for help (TSN, Sept. 9, 1993, pp. 4-12).

Moments before the gruesome murder, the victim's mother, Loreta Cabangon, was in her yard (about five meters away from the victim's house) to answer a call of nature. She saw appellant and two others arrive at the victim's porch then illuminated by an electric lamp. Appellant went up alone at the victim's balcony. Not long after, she heard a gun report coming from the victim's house and thereafter saw appellant jump out of the victim's house holding a gun and sped away (TSN, Sept. 15, 1993, pp. 5-18; Sept. 13, 1993, p.15).

Loreta shouted for help and dashed to the victim's house where she met Teresita at the porch crying and shouting, "Nay awan ni Victoriano pinatay ni Danny Queliza" ("Mother, Victoriano is already gone, he was killed by Danny Queliza") [TSN, Sept. 15, 1993, pp. 11-12; Sept. 13, 1993, p. 15].

On the same night, the incident reached the barangay and police authorities. Pat. Cecilio Dollaga was one of the policemen who responded and investigated the case. When he interviewed Teresita, the latter named appellant as her husband's assailant (Id., pp. 14-15; TSN, Sept. 9, 1993, p. 15; TSN, May 19, 1994, pp. 3-4).

The post-mortem examination on the cadaver of the victim shows that he died of "Intracranial Hemorrhage, secondary to Brain Tissue Injury secondary to Gunshot wound (Exh. "A", Records, p. 6). After the victim's burial, Teresita gave her sworn statement at the Police Station, Bani, Pangasinan (Exh. "B" and "B-1"; TSN, Sept. 9, 1993, p. 16).

(Rollo, p. 83.)

Accused-appellant, on the other hand, presented the defense of alibi, Corroborated by witnesses William Raboy and Cornelia Romero, accused-appellant's defense is to the effect that at the time of the incident he was in Arnedo, Bolinao to go swimming at the sea with his cousins; and that he returned to his hometown only on December 21, 1992 when he voluntarily surrendered to the police authorities of Bani, Pangasinan to deny any knowledge of the incident.

The defense also clings to the testimony of Pat. Cecilio Dollaga to the effect that when he interrogated Teresita Cabangon, she declared that she did not know the killer of her husband (tsn, pp. 17, 19, 21, Oct. 28, 1993).

Lastly, the defense notes that the trial in this case was conducted before Judge Segundo Paz who passed away before he could decide the case, and that the decision was penned by Judge Jules A. Mejia, who did not have the opportunity of observing the demeanor of the witnesses for both the prosecution and the defense.

In giving credence to the prosecution's evidence, the trial court noted the opposing contentions of Teresita Cabangon, as corroborated by Loreta Cabangon, and that of Patrolman Dollaga. Teresita Cabangon testified that when she was asked by Dollaga who killed her husband, she identified the accused-appellant. This was corroborated by Loreta Cabangon, who testified that she heard her daughter-in-law reveal to Dollaga the identity of the assailant. On the other hand, Dollaga said that for three times during his interrogation on the very night of the incident, he asked the widow who killed her husband and she disclaimed knowledge thereof. Faced with these contradictory contentions, the trial court preferred the affirmative over the negative testimony.

Nevertheless, the trial court held that even assuming that Teresita Cabangon indeed did not, on the initial investigation, identify the author of the crime, such failure, "lacks spontaneity because of the condition of the declarant, surrounding circumstances such as fright, tension, stress, instability under an atmosphere of serious or continuing fear specially since it was nighttime, just a few hours after her husband was murdered" and that the "diversion of her thoughts may be the result of attention to other matters, more importantly her own safety which is in fact the first law of nature…"

Further, the trial court did not give credence to the insistence of accused-appellant that he was not the assailant because he was not at the place of the crime at the time of its occurrence. The court said that "alibi cannot stand to exculpate him as he was positively identified by Teresita as the very person who shot her sleeping husband, coupled by the testimony of the mother of the deceased that after the shot was heard, she saw the accused jump from the porch carrying a hand gun in his right hand." The trial court ruled out the reliability of alibi as a defense since "it was not physically impossible for the accused to proceed to Arnedo, Bolinao from Apurao, Bani on the night of October 30, 1992", a distance which would not take more than two hours to traverse.

The trial court also did not see any personal reason on the part of the widow and the mother of the deceased nor any grudge that may push them to falsely testify against accused-appellant, unlike the witnesses for the defense, who were perceived to be biased in favor of accused-appellant.

Lastly, the trial court appreciated against accused-appellant the qualifying/aggravating circumstances of treachery, evident premeditation, and nocturnity, it being undisputed that the deceased was asleep with his family when he was shot, that the attack was so sudden and that the victim could not have been given even the slightest opportunity to prepare for or repel or avoid the attack, even if he were awake. Evident premeditation is said to have been present since minutes before the gunshot was heard, three persons, one of whom was identified as accused-appellant, were seen only six meters away from the house of the victim. The trial court concluded that the mode of attack was purposely sought to facilitate the commission of the crime and to facilitate accused-appellant's escape.

We sustain the conviction of accused-appellant.

Under his assignment of errors, which he discussed jointly, accused-appellant questions the finding of the trial court that the testimony of the witnesses for the prosecution is affirmative in nature and that of the witnesses for the defense is negative. He likewise assails the trial court for overlooking and disregarding what he says are certain facts and circumstances which, if properly considered, would have resulted in his acquittal. Lastly, he objects to the trial court's finding that the prosecution was able to prove his guilt beyond reasonable doubt.

At the outset, it is significant to note that the circumstance that Judge Jules Mejia, the one who penned the assailed decision, is not the one who heard the witnesses, a fact which Judge Mejia honestly admitted in his decision, will not automatically warrant a reversal of the decision. In the recent case of People v. Rabutin (G.R. Nos. 118131-32, May 5, 1997) we held:

This Court had ruled that while the trial judge who presided at the trial of the case would be in a better position to ascertain the truth or falsity of the testimony of the witnesses, it does not necessarily follw that a judge who was not present during the trial cannot render a valid and just decision this is the main reason why all trial courts are mandatorily required to be courts of record. Whoever is tasked to render judgment in every case can rely on the transcribed stenographic notes taken during the trial as basis for his decision. (People v. Peralta, 237 SCRA 220 [1994]).

(pp. 10-11)

We agree with the finding of the court a quo that based on jurisprudence, affirmative testimony has greater value than a negative one (People v. Salazar, 248 SCRA 157 [1995]) since the defense of denial crumbles in the face of the complainant's positive identification of the culprit (People v. Balsacao, 241 SCRA 309 [1995]). However, we rule that the distinction between affirmative and negative testimony is not applicable to the opposing contentions of Teresita Cabangon and Patrolman Dollaga.

In Revilla v. Court of Appeals (217 SCRA 583 [1993]), negative and positive testimony were distinguished as follows:

…Evidence is negative when the witnesses states that he did not see or know the occurrence of a fact, and positive when the witness affirms that a fact did or did not occur (2 Moore on Facts, p. 1338)

(p. 592)

Based on the above distinction, it is plain that the declarations of Teresita Cabangon and Patrolman Dollaga are both positive in nature. Teresita said that she identified her killer when she was interrogated by Dollaga. Patrolman Dollaga, on the other hand, testified to something known to himself, namely, that Teresita did not divulge the identity of the assailant.

However, taken in its totality, in contrast to the defense denial made by accused-appellant, which is indeed negative testimony, we give greater weight to Teresita's positive identification of the culprit and her testimony on the circumstances of the murder. This was corroborated by Loreta Cabangon that (a) she saw accused-appellant enter the balcony of the house of the deceased moments before the fatal gunshot was heard, and (b) immediately thereafter she saw accused-appellant with a gun in his right hand leaving the victim's house.

Even assuming that Teresita did delay in revealing the identity of her husband's assailant, this should not destroy the essence of her testimony, mainly, the positive identification of accused-appellant as the culprit.

Defense witnesses Patrolman Dollaga and Councilman Moises corroborated each other's testimony that Teresita Cabangon delayed in revealing the identity of her dead husband's assailant. The record shows that it was only on November 16, 1992, or a delay of only 16 days from the commission of the crime on October 30, 1992, when Teresita Cabangon reported the crime to the police authorities and named accused-appellant as her husband's assailant. She did this when she executed her affidavit which was presented during the preliminary investigation of the case at bench.

However, we believe that the slight delay is not far from ordinary human experience. We have to understand the human psyche given the morbid and horrific situation Teresita Cabangon was in. She witnessed her husband's death. For a moment, her husband was sleeping peacefully; the next moment, he was dead. So violent was his death that the poor wife saw blood come out from his head and she saw his right eye bulge. Such dreadful circumstances would undoubtedly leave the helpless wife in fright and in shock. Fear of the assailant's return to kill her and her son was also a natural reaction. Hence, it was normal and not unreasonable for Teresita Cabangon to have taken her time to muster enough strength to identify her husband's assailant, whom she saw with her own eyes that fatal night.

There is no rule that the suspect in crime be named by a witness hurriedly. In fact, in People v. Corpuz (240 SCRA 203 [1995]), we had an opportunity to rule that the unhurried and deliberate manner in which a witness identifies the accused even strengthened for credibility, to wit:

…It is true that Calapini did not point to accused-appellant as one of her assailants immediately and straight-away upon seeing him at the hospital. The records show that Calapini took her time to scrutinize accused-appellant's features. She studiously looked him over before identifying him as one of the assailants. Surely, she cannot be faulted for deliberating and making sure that the person presented before her was indeed one of the culprits. When she became certain, however, she decisively and without the slightest hesitation, identified the accused-appellant…

(p. 208)

We have consistently ruled that persons do not necessarily react uniformly to a given situation, for what is natural to one may be strange to another (People v. Cabrera, 241 SCRA 28 [1995]; People v. Paguntalan, 242 SCRA 753 [1995]; People v. Halili, 245 SCRA 312 [1995]; People v. Espinoza, 247 SCRA 66 [1995]). What is important is the fact that Teresita Cabangon, notwithstanding the anxiety and fear that she had to go through after witnessing the brutal killing of her husband, gained enough courage to name her husband's assailant. This she did despite fear of retaliation from accused-appellant, who actually resides in the same town where Teresita resides.

Teresita's testimony is further strengthened by Loreta Cabangon's narration of events, particularly the fact of hearing Teresita Cabangon utter the statement "Nay awan ni Victoriano pinatay ni Danny Queliza" ("Mother, Victoriano is already gone, he was killed by Danny Queliza"). This emotional lament is significantly part of the res gestae.

In a long time of jurisprudence (People v. Esquilona, 248 SCRA 139 [1995]; People v. Tolentino, 218 SCRA 337 [1993]; Pantranco North Express, Inc. v. Court of Appeals, 224 SCRA 477 [1993]; Anciro v. People, 228 SCRA 629 [1993]), the requisites of res gestae as an exception to the hearsay rule were laid down: (1) that the principal act or the res gestae be a startling occurrence; (2) the statement is spontaneous or was made before the declarant had time to contrive or devise, and the statement is made during the occurrence or immediately prior or subsequent thereto; and (3) the statement made must concern the occurrence in question and its immediately attending circumstances.

Any delay on Teresita Cabangon's part to identify her husband's assailant is emphatically overcome by the aforestated statement which was correctly considered by the trial court as part of the res gestae.

Accused-appellant, in a desperate attempt to discredit the mother-daughter tandem, banks on inconsistencies in their testimony, which upon perusal are actually minor in character. Whether Teresita saw her husband's assailant while she was lying down or while whe was sitting is of no consequence considering that she identified who the assailant was. Her absence at the crime scene during the investigation made by Patrolman Dollaga is of no moment, considering that she was nonetheless later subjected to investigation. Her failure on the stand to remember the size of the weapon which she had earlier described as six to twelve inches long during the preliminary investigation, cannot be taken against her. Whether Loreta Cabangon looked out of the window or whether she looked out of the door when she heard the fatal gunshot is not significant. These inconsistencies are minor details which can not prompt us to discredit these two witnesses.

It has always been our ruling that inconsistencies in the testimony of a witness with respect to minor details or inconsequential matters may be disregarded without impairing the credibility of the witness (People v. Magalong, 244 SCRA 117 [1995]; People v. Compil, 244 SCRA 135 [1995]). In fact, such minor inconsistencies even tend to strengthen rather than weaken a witness' credibility (People v. Lorenzo, 240 SCRA 634 [1995]) for these inconsistencies negate and erase any suspicion of rehearsed testimony (People v. Padilla, 242 SCRA 629 [1995]). Besides, in the present case, there is clearly consistency relative to the principal occurrence and positive identification of the assailant (People v. Panganiban, 241 SCRA 91 [1995]).

Accused-appellant's defense is underpinned by his assertion that he was in another municipality at the night of the murder. His testimony on this point was corroborated by Cornelia Romero who testified that accused-appellant, together with two others, had dinner at her house and stayed overnight.

Time and again, we have ruled that alibi is a weak defense and even if it is supported by the testimony of friends of the accused, deserves the barest consideration (People v. Gamiao, 240 SCRA 284 [1995]). It will only be given weight if it would preclude any doubt that the accused could not have been physically present at the place of the crime or its vicinity at the time of the commission (People v. Daquipil, 240 SCRA 314 [1995]; People v. De Roxas, 241 SCRA 369 [1995]; People v. Morin, 241 SCRA 709 [1995]; People v. Rivera, 242 SCRA 26 [1995]; People v. De la Iglesia, 241 SCRA 718 [1995]; People v. Umali, 241 SCRA 17 [1995]; People v. Dayson, 242 SCRA 124 [1995]; People v. Espinosa, 243 SCRA 7 [1995]; People v. Parica, 243 SCRA 557 [1995]; People v. Escoto, 244 SCRA 87 [1995]).

We agree with the trial court's finding that it was not physically impossible for accused-appellant to have been at the crime scene on October 31, 1992 at 8 p.m. From the cross-examination of the accused-appellant, the following facts were established:

1. Barangay Apurao, Bani, Pangasinan (the crime scene), and Arnedo, Bolinao (where accused-appellant allegedly was) are separated by three barangays, namely, Luac, Tugue, and San Jose.

2. From Apurao to Luac, the distance is one kilometer. From Luac to Tugue is about two kilometers. From Tugue to San Jose is about two kilometers.

3. From San Jose, Bani to the town proper in Bolinao, travel time is around 30 minutes. From Bolinao town proper to Arnedo, travel time is 20 minutes or a distance of two kilometers, as testified by accused-appellant, for verily, judicial notice was taken of the fact that one kilometer can be easily travelled within 7 to 8 minutes (People v. Sumbillo, et al., G.R. No. 105292, April 18, 1997).

Considering that the above-stated barangays and towns could be traversed by motorized vehicles, we are persuaded with the trial court's finding that accused-appellant could not have consumed more than two hours to travel from Arnedo, Bolinao to Apurao, Bani, considering that it was nighttime and roads were not too busy.

As held in People v. Gamiao, supra:

The trial court correctly disbelieved appellant's defense of alibi, a handy but shabby excuse which indictees never seem to fire of… [I]t is not enough to prove that the accused was somewhere else when the crime was committed, but it must likewise be demonstrated that it was physically impossible for him to have been at the scene of the crime at the time of its commission. Caoile himself admitted in his testimony that the distance between the locus criminis and tabacan, Dinalupihan, Bataan where he claimed to be, is only about 100 km., which could be negotiated by a public utility vehicle in not more than 2 hours, even taking into consideration the traffic congestion normally encountered by a commuter.

(pp. 261-262)

Moreover, accused-appellant's defense of alibi must necessarily fall in the light of the testimony of Teresita Cabangon and Loreta Cabangon positively and unequivocally identifying him as the assailant and placing him at the crime scene immediately after the shooting.

The only corroborative evidence presented by the defense to show that accused-appellant was in Arnedo, Bolinao during the time of the incident was the testimony of Cornelia Ramos, which, however, fell apart on cross-examination where it was elicited that Cornelia Ramos was not a disinterested witness. It was shown that the land where her family was staying is owned by the aunt of accused-appellant. The witness herself testified that accused-appellant did not have the habit of sleeping in her house, and that when accused-appellant did allegedly spend the night in her house on October 30, 1992, it was, quite strangely, the first time he did so.

In sum, we give great weight to Teresita Cabangon's testimony that it was accused-appellant who fired the fatal gunshot which killed her husband while he was asleep last October 30, 1992, which declaration is corroborated by Loreta Cabangon's testimony that she saw the accused-appellant near the crime scene before and after the murder, carrying a hand gun. These declaration are credible in themeselves, they belie the accused-appellant's defense of alibi, and prove beyond reasonable doubt that it was accused-appellant who murdered the deceased.

However, we modify the penalty imposed by the trial court from the medium degree of reclusion perpetua to the single indivisible penalty of reclusion perpetua. Based on the evidence, the qualifying aggravating circumstance of treachery already absorbs the aggravating circumstance of nocturnity since nighttime forms part of the peculiar treacherous means and manner adopted to insure the execution of the crime (People vs. Bardon, 165 SCRA 416 [1988]; People v. Abitona, 240 SCRA 335 [1995]; People vs. Saliling, 249 SCRA 185 [1995]). It is clear from the circumstances of the murder that accused-appellant made some preparation to kill the victim by choosing nighttime when the victim had already retired for the day, in order to ensure the execution of the crime and to make it impossible for the victim to defend himself.

As regards, the aggravating circumstance of evident premeditation, we hold that the presence of the requisites therefor, were not clearly and sufficiently shown. The elements of evident premeditation are: (a) the time when the accused determined to commit the crime; (b) an act manifestly indicating that the accused had clung to his determination; and (c) sufficient lapse or interval of time between such determination and execution to allow him to reflect upon the consequence of his act (People vs. Saliling, supra; People vs. Besana, 220 SCRA 93 [1993]). The prescence of evident premeditation must not be deduced from mere presumption or sheer speculation (People vs. Barros, 245 SCRA 312 [1995]) and it must be proven as clearly as the crime itself (People vs. Halili, 245 SCRA 340 [1995]). The mere fact that accused-appellant was seen minutes before the gunshot was heard together with two persons six meters away is not sufficient to conclude the attendance of evident premeditation. At any rate, with or without this aggravating circumstance, the penalty would still be reclusion perpetua which is an indivisible penalty (People vs. Saliling, supra.)

As to accused-appellant's civil liability, by and large, the trial court was correct in awarding the following, supported as they are by the testimony of Teresita Cabangon:

a) Funeral expenses amounted to P500.00 per day during the seven wake of the victim (tsn, Sept. 9, 1993, p. 17). Loreta Cabangon further testified that she spent P7,000.00, consumed 5 gantas of rice, and spent P200.00 per viand of food during the wake and vigil (tsn, Sept. 13, 1993, p. 19).

b) As regards the victim's income, it was shown that he was a farmer who harvested 60 cavans of palay a year, which he sold at P5.00 per kilo. He was also a fisherman who used to catch 5 liters of shrimps a day and sold the same at P60.00 or P30.00 per liter depending on the size of the container used. Lastly, he worked at the construction of a dike and earned P100.00 a day therefor (tsn, Sept. 9, 1993, pp. 19-22).

Thus, the trial court correctly awarded P9,500.00 as compensatory damages for funeral expenses; P100,000.00 for projected loss of earnings considering that the victim, who was 26 years old, was the lone provider for his family's basic needs; and, of course P50,000.00 as indemnity for the death of the victim, in line with the current jurisprudence. However, the amount of P100,000.00 as moral damages for the physical suffering, mental anguish, fright, serious anxiety, and moral shock of the victim's widow, considering the manner by which the victim was killed, awarded by the trial court seems to be a bit inflated. We believe that P20,000.00 would be more reasonable.

WHEREFORE, the decision appealed from is hereby AFFIRMED, with the modifications above-stated. No special pronouncement is made as to costs.

SO ORDERED.

Narvasa, C.J., (Chairman), Romero, Francisco and Panganiban, JJ., concur.