This is an appeal from the decision^[1] dated March 11, 1994 of the Regional Trial Court of Cavite (Branch 18 in Tagaytay City), the dispositive portion of which reads:

WHEREFORE, the Court finds the accused ALVIN NIALDA Y LUGO GUILTY beyond reasonable doubt as principal of the crime of Murder, as this felony is defined and penalized by the provisions of Article 248, par. (1) of the Revised Penal Code and there being no modifying circumstances proven to either aggravate or mitigate his liability, hereby sentences said accused to suffer a penalty of RECLUSION PERPETUA (Life imprisonment); to pay to the heirs of the deceased Bayani Digma the following sums of money: P55,000.00 as actual damages, P50,000.00, by way of indemnity for the latter's death; P25,000.00, as moral damages, and P25,000.00 as exemplary damages; and to pay the costs.

The background of this case is as follows:

In an information,^[2] dated May 7, 1993, the Assistant Provincial Prosecutor alleged:

That on or about the 7th day of September 1992, at Barangay Kabulusan, Municipality of Gen. E. Aguinaldo, province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, being then armed with a bolo, with treachery and evident premeditation and taking advantage of his superior strength, did, then and there, wilfully, unlawfully and feloniously, attack, assault and hack the person of Bayani R. Digma inflicting upon him mortal wound which caused his subsequent death, to the damage and prejudice of his legal heirs.

CONTRARY TO LAW.

Accused-appellant pleaded not guilty, whereupon trial commenced. First to testify as witness for the prosecution was SPO2 Mario Rolle, of the General Aguinaldo Police in Cavite. He testified^[3] that in the evening of September 7, 1992 following report of a stabbing incident in Barangay Castaños Cerca (actually at Barangay Kabulusan), he and SPO1 Evangelista and SPO Renato Castillo went to the place to investigate. They arrived at the scene at around 9:00 p.m. and found the victim, Bayani Digma, seriously wounded. They took him aboard a mobile car to the Alfonso Doctors Hospital. SPO2 Rolle said he noticed that Bayani Digma could "speak a little," but he (Rolle) was nonetheless able to ask Digma, "Sino ang tumaga sa iyo at ano ang pangalan? (What is the name of the person who stabbed you?)" According to SPO2 Rolle, Digma answered, "Alvin Visaya." ("Alvin Visaya" is the description of accused-appellant.) Rolle put in writing^[4] Digma's answers to his questions. Digma then signed the statement by affixing his right thumbmark with the use of his blood. The statement was introduced in evidence as Exh. A and his thumbmark as Exh. A-1. Barangay Captain Aligio Malimban and SPO Renato Castillo acted as witnesses to the execution of the statement.

Bayani Digma was later transferred to the De La Salle University Medical Center (UMC) in Dasmariñas, Cavite because of inadequate facilities at the Alfonso Doctors Hospital. Digma was treated at the UMC by Dr. Renato C. Ocampo, who found Digma to have suffered seven hacking wounds on the chest, in the neck, and in the right arm as well as several abrasions.^[5] Dr. Ocampo opined that the wounds had been caused by a sharp instrument, "probably" a bolo or a knife. Dr. Ocampo said he found Bayani Digma to be in very serious condition.^[6] In fact, Digma died at 2:30 a.m. Dr. Ocampo executed the death certificate^[7] which stated that "the patient died of shock from the blood loss because of the injury to the heart which was brought about by the hacking wound in the chest."^[8]

Next to testify for the prosecution was Rolando Raymundo, a farmer who was residing in Kabulusan, General Aguinaldo, Cavite.^[9] He said he knew the victim because they had been neighbors, while he had known accused-appellant for one year. Rolando testified that he, his brother Jose, accused-appellant, and Bayani Digma had a drinking session in the house of a certain Boy Gloriani in Barangay Kabulusan. They started their drinking session at 2:00 p.m., although Bayani Digma did not arrive until around 2:30 p.m. The drinking session lasted for around three hours. The four then left Boy Gloriani's house together. On the way, Rolando dropped by a store to buy bread and sugar. Accused-appellant and Bayani Digma waited for him outside. The group then proceeded towards Rolando's house. This was at around 7:00 p.m. Accused-appellant and Bayani Digma walked side by side, with accused-appellant to the right of Bayani Digma. Rolando followed 7-8 meters behind the two. Rolando said that all of a sudden he saw accused-appellant strike Bayani Digma at the back of the neck with a bolo, and continued hacking even after his victim had already fallen down. According to Rolando, he saw how the incident happened because of the light of the moon and the light from the electric post "not too far away." In a written statement^[10] Rolando gave to the police, dated September 8, 1992, Rolando said that accused-appellant stopped hacking Bayani Digma only after the latter had been rendered immobile on the road ("Noong pong gulong na sa ka[l]sada si Bayani na hindi kumikilos ay kusa siyang tumigil"). Rolando and Jose were afraid that accused-appellant might turn on them. Rolando went to the poblacion to report the incident to the police.

The victim's mother Charlita Rogel Digma also testified.^[11] She said she was able to talk to her son at the Alfonso Doctors Hospital and was allegedly told, "Mother, Alvin Nialda hacked me. Malapit na akong mamatay (I am dying)." She also testified that her son complained that his feet were numb and that he was nervous. Charlita believed that the hacking was due to a quarrel between accused-appellant and her son back in 1990. She said accused-appellant had intended to stab Bayani Digma but instead hit Digma's brother. The matter however was amicably settled at the barangay proceedings, considering that Alvin Nialda was married to Charlita's first cousin. According to Charlita, the family spent a total of P55,000.00 "more or less" for Bayani Digma's hospital and funeral expenses.

Accused-appellant was the sole witness in his behalf.^[12] His defense was alibi. He claimed that at the time of the stabbing, he was in the house of his in-laws in Barangay Castaños Cerca. He denied being with the Raymundo brothers and the victim in the drinking session held in Boy Gloriani's house (which was estimated by accused-appellant to be 3 kilometers away from his in-laws' house) on September 7, 1995. Accused-appellant testified that he usually went to the house of his in-laws every night with his daughter whenever his wife was working in Manila. On September 7, 1995, he arrived home from work at around 6 p.m. He left the house, located in the poblacion of General Aguinaldo, together with his daughter at "more or less" 7 p.m. to go to his in-laws' place. That evening, he was arrested and put in the municipal jail where he spent the night with Rolando and Jose Raymundo. According to accused-appellant, he talked with Rolando Raymundo and was told by Rolando, "Makakalabas rin kami maya-maya, ikaw talaga ang makukulong (We will be able to get out of jail in a little while. You are really the one who will be imprisoned)," because they had money to buy their freedom.

On March 11, 1994, the court rendered its decision, the dispositive portion of which is quoted in this decision. Hence, this appeal. Accused-appellant contends:^[13]

I.

THAT THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT NOTWITHSTANDING THAT HIS GUILT HAS NOT BEEN PROVEN BEYOND REASONABLE DOUBT.

II.

ASSUMING THAT THE GUILT OF THE ACCUSED-APPELLANT HAS BEEN PROVEN BEYOND REASONABLE DOUBT, THE TRIAL COURT ERRED IN APPRECIATING TREACHERY AS PURPOSELY EMPLOYED BY THE ACCUSED-APPELLANT TO COMMIT THE ALLEGED CRIME IN THE INFORMATION.

First. The requisites for a dying declaration under Rule 130, §37, are (a) the statement or declaration must concern 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 decedent is the victim.^[14] These requisites are present in this case. First, Bayani Digma's statements concern the circumstances of his death, as he identified by name his assailant and described the manner in which he had sustained his wounds. Second, he made his declarations under consciousness of an impending death as he told his mother, Charlita Rogel Digma, "Malapit na akong mamatay (I am dying)." Third, there is no question he was competent to be a witness. And fourth, his dying declarations were offered in a criminal prosecution for murder of which he was the victim.

Accused-appellant contends, however, that Bayani Digma "might have been influence[d] by the passion of anger and vengeance against the accused-[appellant] arising from their previous quarrel wherein according to the testimony of the victim's mother Charlita R. Digma accused-appellant had unsuccessfully attempted to stab the victim."

That quarrel took place in 1990, two years prior to the stabbing, and, according to Charlita R. Digma, the same had already been amicably settled. As a matter of fact, Bayani Digma did not file charges against accused-appellant. Whatever anger the deceased might have borne against accused-appellant could have been revived only by any aggression accused-appellant might have committed on September 7, 1992.

Indeed, dying declarations are "made in extremity, when the party is at the point of death and when every hope of this world is gone; when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and so awful as to be considered by the law as creating an obligation equal to that which is imposed by a positive oath in a court of justice."^[15]

Accused-appellant doubts whether the dying declarations were made at all, claiming that SPO2 Mario Rolle's account is "not credible and doubtful." As we have so often held, appellate courts rely on the assessment of the credibility of witnesses by trial courts, considering their opportunity for observing the demeanor of witnesses when they testify.^[16] In this case, the trial court found Rolle's testimony to be credible, and we find no reason not to give its determination full faith and credit. Indeed, if SPO2 Rolle did not immediately question accused-appellant it was because his chief concern was to get the victim to the hospital as soon as possible. There is no inconsistency between this claim and his other claim that he talked to Bayani Digma later at the Alfonso Doctors Hospital because by then professional medical help was already available. Rolle testified that he had asked the attending physician if he could talk to the victim.^[17]

Charlita Digma's testimony is similarly worthy of credence for being the victim's mother. No reason has been shown why she should testify falsely against accused-appellant. Apparently, she had no other interest than to have her son's killer brought to justice.^[18]

Still it is doubted whether Bayani Digma really gave a statement to SPO2 Mario Rolle and his mother because according to Dr. Renato Ocampo, Digma was comatose upon arrival at the University Medical Center. As already noted, however, Digma made the declarations earlier at the Alfonso Doctors Hospital, when he could still talk. Moreover, even Dr. Ocampo admitted he could not say with certainty whether Digma could not have talked to anyone before he expired. For indeed while seriously wounded, Digma did not lapse into coma immediately.^[19] He died about five and a half hours after he had been stabbed.^[20]

Finally, accused-appellant says that the attending physician at the Alfonso Doctors Hospital should have been presented in court and made to testify on the condition of the victim when the latter was in that hospital. The defense could have asked the court to order the physician to appear at the trial. But the defense did not.

Second. It is contended that Rolando's claim that accused-appellant and Bayani Digma were standing side by side when accused-appellant suddenly attacked Digma is contradicted by his later testimony that he saw the victim parrying the bolo blows of accused-appellant, thus indicating that the protagonists were facing each other.

There is no inconsistency between the two statements. Rolando was referring to different moments of the attack. Accused-appellant and Digma were walking side by side when accused-appellant started the assault, which felled Digma. As accused-appellant continued the assault, Digma tried to ward off the blows after falling to the ground. This was the time they were facing each other.

Accused-appellant says Rolando Raymundo testified against him because he was sore that accused-appellant did not find a job for him in Manila. But accused-appellant admitted that any differences which he and Rolando might have had had been resolved when Rolando himself asked him to be godfather of his (Rolando's) daughter.^[21]

Finally, accused-appellant contends that the real culprits were the Raymundo brothers (Rolando and Jose) and that he is being merely made a scapegoat for their crime. He claimed that two blood-stained bolos had been recovered from the Raymundos and that the latter were themselves arrested and jailed for the death of Bayani Digma. These are mere allegations. There is no evidence to prove these allegations, nor showing of any motive for the Raymundos to commit the crime. Accused-appellant could have asked for the production of the records of the police to prove his allegations, but he did not. For that matter, accused-appellant could have asked for a subpoena to Jose Raymundo and Boy Gloriani so that they could be examined, even as hostile witnesses. It may be that the Raymundos were arrested by the police but were later released for lack of evidence to link them to the killing of Bayani Digma.

Third. Accused-appellant's defense is alibi. For alibi to prosper, accused-appellant must prove not only that he was not present at the scene of the crime but also that it was physically impossible for him to have been present there at the time the offense was committed.^[22] Accused-appellant failed to do this. By accused-appellant's own testimony Boy Gloriani's house, in which the drinking session was held, is three kilometers from the house of accused-appellant's in-laws where he was allegedly at the time of the commission of the crime.^[23] It was, thus, not physically impossible for accused-appellant to have committed the crime. In any case, accused-appellant's alibi is unavailing against his positive identification by Rolando Raymundo and by Bayani Digma himself as the latter's killer.^[24]

Nor is the fact that accused-appellant did not flee proof of his innocence. As we held in People v. Lamsing,^[25] if this contention is correct then all that a criminal has to do to prove his innocence would be to remain at the scene of the crime and declare, when arrested, his innocence. In this case, the presumption of innocence is negated by the clear and convincing evidence indicating his guilt.

Fourth. The Solicitor General, while agreeing that accused-appellant is guilty of the killing of Bayani Digma, nevertheless contends that the crime is not murder but homicide. He points out that Rolando Raymundo admitted he did not see how the attack on Bayani Digma commenced because Rolando only saw accused-appellant after the first blow. Hence, the qualifying circumstance of treachery cannot be appreciated.

For his part, accused-appellant argues that there was no treachery because the fact that according to Rolando Raymundo, accused-appellant and Bayani Digma were together at the drinking session and in going home afterwards negates the possibility that accused-appellant plotted to ensure the accomplishment of his objective; and also that the fact that Rolando said he saw the victim parrying the accused-appellant's blows indicates that both of them were facing each other.

It is true that treachery cannot be appreciated in the absence of proof of how the attack begun.^[26] However, a reading of Rolando Raymundo's testimony shows that he was confused whether it was the first blow or the second one which he saw. During his cross-examination, he said that there must have been a first blow "because Bayani Digma fell down already."^[27] However, in his direct examination he testified that the first blow he saw (which he however called the second one) was inflicted at the back of Bayani Digma's neck while the latter was still standing and that after Digma fell down, accused-appellant did not cease attacking him.^[28] It would therefore appear that the blow, which Rolando Raymundo saw, if it was not indeed the first, was delivered shortly after the start of the assault on Bayani Digma. One came close to the other that no appreciable time intervened between the two to allow for their differentiation as first and second. Consequently, the first and second blows could be considered the commencement of the attack. Thus in his testimony, Rolando Raymundo said:^[29]

COURT:

Will you tell the Court how did it occur that Alvin Nialda hacked to death Bayani Digma?

A.    At around 7:00 o'clock in Barangay Kabulusan, I was taken aback when Alvin Nialda suddenly hacked Bayani Digma.

. . . .

FISCAL VELAZCO:

How many times did Alvin Nialda hack Bayani Digma?

A.    For several times, sir.

COURT:

How many times?

A.    I cannot count.

FISCAL VELAZCO:

What was the weapon used by Alvin Nialda?

A.    A bolo used for cutting grass.

. . . .

Q.   And did you see when Bayani Digma was first hit?

A.    No, sir. The second one, he was hit, sir.

Q.   Where was he hit?

A.    When he was first struck with a bolo by the accused, he was looking forward, sir.

There is no doubt that Bayani Digma was rendered helpless against accused-appellant's attack and in fact said so in his dying declaration to his mother as recounted by her in her affidavit.^[30] According to his mother, Bayani Digma said: "Tinaga ako ni Alvin, inay, wala akong patalim, hindi ako nakalaban (I was stabbed by Alvin, Mother. I could not fight back because I did not have a bladed weapon)." Bayani could not have expected such an assault. The suddenness of his attack against Bayani Digma, who was unarmed, shows that accused-appellant deliberately employed a method of attack which would ensure the execution of his felonious design without risk to himself arising from any defense which his victim might make.^[31] There was thus treachery qualifying the crime as a murder. The fact that Bayani Digma was later seen parrying the blows being delivered by accused-appellant does not negate the treachery employed as a result of which Bayani Digma was caught off guard and all he could do was to try to ward off the bolo attacks of accused-appellant. As held in People v. Miranday,^[32] it does not matter that the subsequent blows were delivered frontally. This fact will not negate treachery as the victim was killed after having been rendered helpless.

As already noted, the principal penalty imposed by the trial court on accused-appellant was "RECLUSION PERPETUA (life imprisonment)." The identification of reclusion perpetua with life imprisonment is of course erroneous. The two are distinct penalties with different natures and durations.^[33] Considering the provision of Art. 248, par. 1 of the Revised Penal Code, however, it is understood that the imposable penalty, there being neither any mitigating nor aggravating circumstance, is reclusion perpetua.

Anent the award of actual damages in the amount of P55,000.00, we believe that the same must be reduced. The trial court based its award mainly on the assertion of the victim's mother who claimed that she spent that amount for the hospitalization and funeral expenses of Bayani Digma. However, only P2,610.00 was supported by receipts. Consequently, only this amount should be awarded in line with the rule that actual damages cannot be allowed unless supported by the evidence in the record.^[34]

As there is no evidence showing any aggravating circumstance, the award of exemplary damages pursuant to Art. 2230 of the Civil Code must be deleted.

WHEREFORE, the decision is AFFIRMED with the MODIFICATION that the award of actual damages is reduced to P2,610.00 while the award of exemplary damages in the amount of P25,000.00 is deleted.

SO ORDERED.

Regalado, (Chairman), Melo, Puno, and Martinez, JJ., concur.

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