EN BANC
[ G.R. No. 137989, March 27, 2001 ]PEOPLE v. SONNY MATIONG +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. SONNY MATIONG, ALCEDE MATIONG, AND ANTONIO ALFARO, ACCUSED-APPELLANTS.
D E C I S I O N
PEOPLE v. SONNY MATIONG +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. SONNY MATIONG, ALCEDE MATIONG, AND ANTONIO ALFARO, ACCUSED-APPELLANTS.
D E C I S I O N
DAVIDE JR., C.J.:
On 27 November 1998, the Regional Trial Court of Kalibo, Aklan, Branch 2, rendered a decision[1] in Criminal Case No. 4419, finding accused-appellants Sonny Mationg (hereafter SONNY), Alcede Mationg (hereafter ALCEDE) and Antonio Alfaro
(hereafter ANTONIO) guilty beyond reasonable doubt of the crime of murder for the death of Marcelino Isturis (hereafter MARCELINO), and sentencing each of them to suffer the penalty of death. The case is now before us on automatic review, pursuant to Article 47 of the Revised
Penal Code, as amended by Section 22 of Republic Act No. 7659.[2]
The information under which accused-appellants were tried reads as follows:
That on or about the 19th of December 1994, in the evening, in Barangay Polocate, Municipality of Banga, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery, evident premeditation, use of superior strength and availing of nighttime, conspiring, aiding and helping one another, did then and there willfully, unlawfully and feloniously strike, bolo and hack one MARCELINO NAVARRA ISTURIS alias "PARIC", hitting the latter on the different parts of his body as shown by the Post Mortem Report issued by Dr. Eva Ibuyan-Rasco, Municipal Health Officer, Rural Health Unit of Banga, Aklan, hereto attached as Annex "A" and forming an integral part hereof, to wit:
Dr. Eva I. Rasco, Municipal Health Officer of Banga, Aklan, testified that she examined the cadaver of MARCELINO at around 2:05 A.M. of 20 December 1994. She noted thirty-seven (37) clean cut wounds on the cadaver. Six (6) deep hacking wounds on the head which caused lacerations on the brain were fatal.[3]
SPO1 Jose Joy del Rosario testified that at 11:00 P.M. of 19 December 1994, he received a report that a dead person was found at the feeder road of Barangay Polocate, Banga, Aklan. He, together with SPO2 Joselyn Meliton, PO3 Steven Recio, PO3 Leonard Teodosio and PO3 Manuel Lachica, proceeded to the crime scene and conducted an investigation. The investigation yielded a negative result.[4] However, on account of the report made by MARCELINO sometime last 12 December 1994 that SONNY held a grudge against the former, del Rosario, SPO2 Meliton, PO3 Lachica, and PO3 Recio went to the house of SONNY to find out if SONNY was home and to inquire about the death of MARCELINO.[5] When confronted, SONNY denied any knowledge about MARCELINO's death.
Teresito Relimbo declared that last 19 December 1994, at about 9:00 P.M. while he was on his way home from Tranquilino Retoriano's house at Barangay Polocate, Banga, he heard an unusual thud coming from the feeder road. Curious, he tried to find its origin. Upon reaching uphill and behind a coconut tree, Teresito saw SONNY, ALCEDE and ANTONIO hack a man, then lying on the ground, with the use of their fighting "talibong." Five minutes later the trio left and fled together for the Ambolong plantation.[6]
Teresito added that although he did not come near the victim after SONNY, ALCEDE and ANTONIO left the crime scene, he recognized the victim to be MARCELINO, as prior to the incident the latter and the trio were plowing his farm. Teresito then executed an affidavit in connection with the killing of MARCELINO.[7]
On cross-examination, Teresito admitted that he knew of the identity of the victim only on the following morning. However, he positively pointed to SONNY, ALCEDE and ANTONIO as the perpetrators of the crime.[8] He also declared that he had to climb up the foot trail, elevated about five meters from the feeder road, for his safety. The feeder road was very visible to SONNY, ALCEDE and ANTONIO and he was afraid he might be seen by them.[9] Finally, Teresito ascribed his seeming vacillation to his fear - fear that the trio might get angry at him if he implicate them.[10]
Roberto Ricaforte testified that as he stood by the gate of their compound at about 8:30 P.M. of 19 December 1994, he saw SONNY and ALCEDE pass by. They were walking towards the feeder road.[11] Thirty minutes later, he heard a thud coming from the feeder road. He walked towards the feeder road to find out. At a distance of forty meters he saw a person on the ground being "boloed" by SONNY and ALCEDE. Dazed at what he had seen, Roberto hurriedly went home and thereafter told his wife about what he had witnessed. The following day, 20 December 1994, Roberto came to know at the police station that the person hacked by the brothers SONNY and ALCEDE was MARCELINO, his bosom friend.[12] Roberto executed a sworn statement on the hacking incident on 27 December 1994.[13]
On cross-examination, Roberto admitted the discrepancy between his sworn statement and court testimony. However, he insisted that during investigation he informed Chief of Police Seraspi about his having gone to the feeder road and witnessed the hacking incident.[14]
Emilia Isturis, wife of MARCELINO, testified that on 16 October 1994, SONNY challenged MARCELINO to a fight at their residence located at Sigcay, Banga, Aklan. MARCELINO ignored the challenge and instead reported the matter the following day to the Police authorities of Banga.[15]
Emilia also testified on the earnings and income of her husband and the amount she spent for funeral and other miscellaneous expenses.
Epifanio Retis declared that in the morning of 12 December 1994 while he and his worker were pulling out the weeds in his plantation, SONNY suddenly arrived with a gun and approached MARCELINO. Epifanio intervened and advised SONNY not to come any closer. Luckily for MARCELINO, SONNY heeded Epifanio's advice and left. MARCELINO also left for his home. Several days thereafter, Epifanio heard of MARCELINO's death.[16]
Jose Retoriano recalled that last 12 December 1994, while he and SONNY were on their way to work, they chanced upon MARCELINO somewhere at Sigcay, Banga, Aklan. MARCELINO then confronted SONNY about the latter's plot to kill the former. SONNY did not answer MARCELINO, and instead ran toward his house. A few minutes later, SONNY came back with his gun and approached MARCELINO. At this point, Epifanio Retis intervened and pacified the two.[17]
The accused put up the defense of denial and alibi. Their witnesses were Nelson De la Cruz, Noel Gari, Lolita Luces, Enjelyn Mationg, Moises Geronimo, Romulo Ranigo, Leny Alfaro, Jimmy Beltran and SONNY.
Nelson De la Cruz testified that he is the court's appointed Commissioner. As such, he had to go the crime scene and make a report of his observations.[18]
Noel Gari declared that he and ALCEDE were workers in the Libacao-Janlud provincial road concreting project.[19] On 19 December 1994, ALCEDE was at work. On that day, the workers, including ALCEDE had to stop their work at about 6:30 in the evening due to the unfavorable weather condition. Thus, he, ALCEDE and three other workers headed for the bodega of a certain Engineer Sotico Beltran, where they slept and stayed until the following day.[20]
Enjelyn Mationg, wife of ALCEDE, corroborated the testimony of Noel that ALCEDE was in Libacao-Janlud, working on a road project.[21]
Lolita Luces testified that from 13 December 1994 to 26 December 1994, ANTONIO was staying in their house at New Buswang, Kalibo, Aklan. However, when asked if ANTONIO tried to go home within the period from 13 December 1994 to 26 December 1994, Lolita admitted that ANTONIO did go home to his place at Banga, Aklan sometime last 19 December 1994. However, ANTONIO came back that same day at about 7:00 P.M.[22]
Leny Alfaro, wife of ANTONIO, corroborated the testimony of Lolita that ANTONIO stayed in their place from 13 December 1994 to 26 December 1994. She, however, disputed Lolita's testimony on ANTONIO's having gone home to Banga, Aklan, last 19 December 1994.[23]
Moises Geronimo testified that in his capacity as Barangay Captain of Polacate, Banga, Aklan, he only knew about MARCELINO's untimely death the following day for he was never informed by the family of MARCELINO and neither did Teresito and Roberto report anything to him.
Romulo Ranigo testified that he saw Teresito sitting at his sala from 7:30 in the evening up 10:30 in the evening of 19 December 1994, while he and his brothers were watching television at Teresito's house.[24]
Jimmy Beltran testified that in his capacity as Barangay Captain of Agbanawan, he was never informed by Roberto, his barangay tanod, about the incident.
SONNY declared that last 19 December 1994, he was somewhere at the boundary of Barangay Sigcay and Bacan, sawing lumber for the Navarras. Tired and exhausted after a day's work, he went straight to bed after taking his dinner at around 7:00 P.M. However, at around 11:30 in the evening of that same day his wife woke him up because policemen were looking for him. So he accommodated the policemen and learned from them about the death of MARCELINO. He also learned that they came to inquire about said death because of an alleged feud between him and MARCELINO. SONNY denied any knowledge of and participation in the killing of MARCELINO.[25]
Lastly, SONNY denied that he was with his brother, ALCEDE and brother-in-law ANTONIO on 19 December 1994.
In its decision of 27 November 1998,[26] the trial court found SONNY, ALCEDE and ANTONIO guilty of the crime of murder. It gave credence to the positive, unequivocal and unswerving testimony of Teresito Relimbo and Roberto Ricarforte that they were the very persons who hacked MARCELINO to death. The trial court further held that there was no ulterior motive on the part of prosecution eyewitnesses Teresito and Roberto to just randomly pinpoint the trio as the perpetrators of the crime.
The trial court also found the lapses in the testimony of the eyewitnesses as inconsequential considering their degree of intelligence and education, and added that these lapses even bolstered the prosecution's case as they clearly indicate that these eyewitnesses were unrehearsed.
The trial court appreciated the qualifying circumstance of abuse of superior strength since SONNY, ALCEDE and ANTONIO enjoyed superiority in number, power, and weapons. It held that their mutual cooperation was sufficiently established by the fact that they ganged on MARCELINO and inflicted on him thirty-six (36) wounds.
The trial court further held that the killing of MARCELINO was attended by the aggravating circumstances of uninhabited place and nocturnity. As to the first, it took into account the finding during the ocular inspection that there were no houses within the immediate vicinity; the nearest house is situated some forty-five meters away from the scene of the crime. As to nocturnity, the trial court held that the crime was committed at such time of the night when most of the inhabitants were already fast asleep, thereby eliminating the faintest chance for MARCELINO to get some help.
Finally, the trial court gave full credit to Emilia's testimony on the expenses she incurred in connection with the death of MARCELINO in the aggregate amount of P35,250, and computed his lost earnings at P832,580. It also awarded the amount of P50,000 as indemnity.
It then decreed:
In their Appellants' Brief, SONNY, ALCEDE and ANTONIO submit this lone assignment of error:
They also question the findings of the trial court on the credibility of witnesses considering that the Presiding Judge of the lower court who penned the decision of conviction was not the one who heard the testimonies of Teresito and Roberto and as such failed to observe the demeanor and deportment of said witnesses.
In the Appellee's Brief, the Office of the Solicitor General supports the trial court's finding and conclusion that SONNY, ALCEDE and ANTONIO are guilty beyond reasonable doubt of the crime of murder for the death of MARCELINO. Their bare denials and alibi undoubtedly could not diminish the positive evidence of the prosecution; and while there were inconsistencies, they were inconsequential for even the most honest witnesses oftentimes make mistakes and fall into confusion.
We have repeatedly held that we will not interfere with the trial court's determination of the credibility of witnesses, unless there appears on record some circumstance of weight and influence which had been overlooked or the significance of which had been misinterpreted by the trial court.[27] Indeed, one of the recognized exceptions to the rule is when the judge who penned the decision is not the judge who received the evidence and heard the witnesses.[28] Hence, we took pains to meticulously examine the records and review the evidence in this case.
The records disclose that prosecution witness Teresito Relimbo identified SONNY, ALCEDE and ANTONIO as MARCELINO's aggressors. However, prosecution witness Roberto Ricaforte was equally explicit that only SONNY and ALCEDE hacked MARCELINO.
We are inclined to give credit to the testimony of Roberto Ricaforte and would thus absolve ANTONIO from any criminal liability. Roberto testified that at about 8:30 p.m. on 19 December 1994, he saw SONNY and ALCEDE pass by his gate and walk toward the feeder road. This was barely thirty minutes before the killing. Then at the time of the killing he only saw SONNY and ALCEDE hack MARCELINO. There is, therefore, reasonable doubt as to the criminal participation of ANTONIO.
On the alleged inconsistencies, it is doctrinally settled that inconsistencies on minor, trivial and inconsequential matters do not affect the credibility of witnesses.[29] There really is hardly a witness who can perfectly remember the details of a crime; human memory is not as unerring as a photograph.[30] We can attribute Teresito's lapses to the natural fickleness of a man's memory.
Delay in making a criminal accusation does not necessarily impair the credibility of the witness if such delay is satisfactorily explained. The law on prescription of crimes would be meaningless if we were to yield to the proposition that delay in the prosecution of crimes would be fatal to the state and to the offended parties.[31]
In the instant case, the delay was sufficiently explained. As disclosed by Teresito, fear for his life and reprisal from the accused-appellants, compelled him to hold his tongue. Likewise, we note the fact that SONNY, ALCEDE and ANTONIO were not yet arrested and the possibility of retaliation from them was not remote, at least in the mind of Teresito. Hence, Teresito's fear was well-founded.
The seeming discrepancy between Roberto's sworn statement and court testimony deserves scant consideration. It is settled 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 since ex parte affidavits are generally incomplete, and are generally subordinated in importance to testimony in open court.[32]
The positive identification of accused-appellants SONNY and ALCEDE by the prosecution witnesses prevails over their defense of alibi and denial. Settled is the rule that alibi and denial, if unsubstantiated by clear and convincing evidence are negative and self-serving, deserve no weight in law, and cannot be given evidentiary value over the testimony of credible witnesses who testify in affirmative matters.[33]
Moreover, even assuming that SONNY's claim is true, his stay in his house did not preclude his physical presence at the locus criminis or its immediate vicinity. The place where the body of MARCELINO was found was a few meters away from his house and SONNY could reach the former from the latter in a short time. Likewise, ALCEDE failed to show that it was physically impossible for him to be at the scene of the crime. For the defense of alibi to prosper, the requirements of time and place must be strictly met. It is not enough to prove that the accused was somewhere else when the crime was committed, he must demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission.[34]
We uphold the finding of conspiracy by the trial court. The rule is that conspiracy must be proven as clearly as the commission of the offense itself. However, direct proof is not essential; conspiracy may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that they had acted with a common purpose and design.[35]
In the case at bar, unity in purpose and design between SONNY and ALCEDE were evident. They were positively identified by both Teresito Relimbo and Roberto Ricaforte as the ones who simultaneously hacked with their bolos MARCELINO. Thirty minutes earlier, Roberto saw them walking toward the crime scene. After accomplishing their evil deed, SONNY and ALCEDE left and fled together toward the Ambolong plantation.
We shall now address the issue of whether the crime committed was murder or homicide. The information alleges the qualifying circumstances of treachery, evident premeditation and abuse of superior strength. The trial court appreciated the latter to qualify the killing to murder.
The trial court correctly disregarded treachery and evident premeditation. There is treachery when the offender commits any of the crimes against person employing means, methods or forms of attack which tend directly and specially to insure the execution of the crime without risk to himself arising from the defense which the offended party may take.[36] Consequently, for treachery to be considered, particulars should be known as to the manner the aggression was made or how the act resulting to the death of the victim, began and developed, for treachery could not be established by mere suspicion that the accused perpetrated the killing with treachery.[37] In this case, no evidence was offered to support the presence of treachery at the inception of the attack. It should be noted that when Teresito and Roberto witnessed the incident the assault against MARCELINO had already begun. In fact MARCELINO was already lying on the ground. Hence, it cannot be presumed that the attack from its inception was executed by the assailants with treachery.
Evident premeditation is appreciated upon proof of (a) the time when the accused determined to commit the crime; (b) an act manifestly indicating that the accused clung to his determination; and (c) a sufficient lapse of time between such determination and execution to allow him to reflect upon the consequences of his act.[38] While it was proven that prior to MARCELINO's death, SONNY tried to assault the victim and desisted only after the timely intervention of Epifanio Retis, the prosecution failed to show the steps that SONNY took thereafter to indicate that he clung to his plan to kill MARCELINO, either alone or in conspiracy with ALCEDE.
As to the qualifying circumstance of abuse of superior strength, which the trial court appreciated against SONNY and ALCEDE, there must be sufficient proof that the assailants took advantage of their combined strength in order to consummate the offense. No convincing evidence was established in this case to prove that the assailants took advantage of superior strength.[39]
Neither do we agree with the trial court's appreciation of the generic aggravating circumstances of uninhabited place and nocturnity.
For uninhabited place and nocturnity or nighttime to be considered as aggravating circumstances, there must be proof that the assailants purposely sought and took advantage of them in order to facilitate the commission of the offense.[40] In this case the prosecution failed to present evidence to prove this requisite.
Accordingly, since the killing was not attended by either of the qualifying circumstances of treachery, evident premeditation, taking advantage of superior strength, as alleged in the information, SONNY and ALCEDE could be held guilty of homicide only, which is punishable by reclusion temporal under Article 249 of the Revised Penal Code. No modifying circumstances having been proven, the penalty shall, pursuant to paragraph 1 of Article 64 of the Revised Penal Code, be imposed in its medium period. Applying the Indeterminate Sentence Law, SONNY and ALCEDE may be sentenced to suffer an indeterminate penalty of ten (10) years of prision mayor in its medium period as minimum, to seventeen (17) years and four (4) months of reclusion temporal in its medium period as maximum.
The award of P35,250 as actual damages must however, be reduced, as the duly documented receipt for the funeral expenses is only P23,300.[41] Only expenses supported by receipts and which appear to have been actually and reasonably expended in connection with the death of the victim should be allowed.[42] The award for loss of earning capacity must be set aside for lack of factual basis. No evidence as to victim's earning capacity and life expectancy was adduced.[43]
WHEREFORE, the challenged decision of Branch 2 of the Regional Trial Court of Kalibo, Aklan in Criminal Case No. 4419 is MODIFIED. As modified, accused-appellant ANTONIO ALFARO is ACQUITTED on ground of reasonable doubt; accused-appellants SONNY MATIONG and ALCEDE MATIONG are found guilty beyond reasonable doubt, as principals, of the crime of homicide only as defined and penalized under Article 249 of the Revised Penal Code, and are each sentenced to suffer an indeterminate imprisonment penalty ranging from ten (10) years of prision mayor in its medium period, as minimum, to seventeen (17) years and four (4) months of reclusion temporal in its medium period, as maximum, with all the accessory penalties, thereof, and to pay jointly and severally the heirs of the victim Marcelino Isturis the sum of P50,000 as indemnity ex delicto and P23,300 as actual damages.
Costs de oficio.
SO ORDERED.
Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De leon, Jr., and Sandoval-Gutierrez, JJ., concur.
Puno J., abroad on official business.
[1] Original Record (OR), 251-265; Rollo, 30-44. Per Judge Tomas R. Romaquin.
[2] "An Act to Impose the Death Penalty on Certain Heinous Crimes, etc."
[3] TSN, 21 June 1995, 7-9; Exhibit "B-B4," OR, 6-9.
[4] TSN, 26 June 1995, 6-10.
[5] Id., 38-42.
[6] TSN, 17 July 1995, 5-12.
[7] Exhibit "H"; OR, 12.
[8] TSN, 31 October 1995, 5-6.
[9] Id., 13-15.
[10] Id., 31.
[11] TSN, 7 November 1995, 9.
[12] Id., 10-16.
[13] Exhibit "I" to "I-1," OR, 13-14.
[14] TSN, 8 November 1995, 27-30.
[15] TSN, 17 November 1995, 13-15.
[16] TSN, 4 July 1995, 5-7.
[17] TSN, 31 May 1996, 6-8.
[18] Exhibit "8-A" and Exhibit "9," OR, 129, 135.
[19] TSN, 7 March 1997, 4-6.
[20] Id., 8-11.
[21] TSN, 2 September 1997, 7-8.
[22] TSN, 21 July 1997, 5-8.
[23] TSN, 23 February 1998, 4-7.
[24] TSN, 4 December 1997, 4-5.
[25] TSN, 15 July 1998, 6-10.
[26] Supra note 1.
[27] People v. Hubilla, Jr., 252 SCRA 471, 478 [1996]; People v. Agbayani, 284 SCRA 315 [1998]; People v. Conde, G.R. No. 133647, 12 April 2000.
[28] People v. Bocatcat, 188 SCRA 175, 188 [1990]; People v. Buka, 205 SCRA 567, 585 [1992].
[29] People v. Castor, 216 SCRA 410 [1992]; People v. Lase, 219 SCRA 589 [1993]; People v. Jumamoy, 221 SCRA 333 [1993].
[30] People v. Cañales, 297 SCRA 667 [1998].
[31] People v. Rostata, Jr., 218 SCRA 657 [1993]; People v. Cordova, 224 SCRA 320 [1993]; People v. Gorres, 230 SCRA 270 [1994].
[32] People v. Bayani, 262 SCRA 660, 680 [1996]; People v. Marcelino, 316 SCRA, 106 [1999].
[33] People v. Patalin, 311 SCRA 188 [1999]; People v. Gallarde, G.R. No. 133025, 17 February 2000.
[34] People v. Alshaika, 261 SCRA 637, 646 [1996]; People v. Gallarde, supra note 33.
[35] Citing People v. Sumalpong, 284 SCRA 464 [1998]; People v. Mansueto, G.R. No. 135196, 31 July 2000.
[36] People v. Marcelino, supra note 32; People v. Mansueto, supra note 35.
[37] People v. Borreros, 306 SCRA 680, [1999]; People v. Naguita, 313 SCRA 292 [1999].
[38] People v. Sol, 272 SCRA 392 [1997]; People v. Mansueto, supra note 35.
[39] People v. Balano, 272 SCRA 782 [1997].
[40] People v. Caballes, 274 SCRA 83 [1997].
[41] Exhibit "K-12" to "K-14," see Folder of Exhibits.
[42] People v. Sanchez, 308 SCRA 268 [1999].
[43] See Philtranco Service Enterprise, Inc. v. Court of Appeals, 273 SCRA 562 [1997].
The information under which accused-appellants were tried reads as follows:
That on or about the 19th of December 1994, in the evening, in Barangay Polocate, Municipality of Banga, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery, evident premeditation, use of superior strength and availing of nighttime, conspiring, aiding and helping one another, did then and there willfully, unlawfully and feloniously strike, bolo and hack one MARCELINO NAVARRA ISTURIS alias "PARIC", hitting the latter on the different parts of his body as shown by the Post Mortem Report issued by Dr. Eva Ibuyan-Rasco, Municipal Health Officer, Rural Health Unit of Banga, Aklan, hereto attached as Annex "A" and forming an integral part hereof, to wit:
"EXTERNAL INJURIES:The witnesses presented by the prosecution were Dr. Eva I. Rasco, SPO1 Jose Joy del Rosario, Epifanio Retis, Teresito Relimbo, Roberto Ricaforte, Emilia Isturis and Jose Retoriano.
- Head- deep hacking wound - 4 inches temporal bone of the skull 2 inches depth.
Extending from angle of the eye to the parietal bone;
- Deep hacking wound-horizontal - 6 inches length; 1½ depth; gaps 1 inch.
Found- level of the angle of the left eye, going behind the head.
- Deep hacking wound - 3/4 inches below the 11 wound - 5 inches length, 1 ½ inches depth; level of the upper ear; in horizontal position.
- Deep hacking wound-level of the mouth - 5 inches length, 1 ½ inches depth-at the left side of the face-below the ear.
- Deep hacking wound-level of the chin,- 4 inches length-1 ½ inches depth-horizontal position.
- Deep hacking wound below the chin, 6 inches length 1 ½ inches depth.
- Right shoulder - front:
7th- horizontal hacking wound level of the shoulder - 7 inches length 2 inches depth. 8th- 1 inch below deep hacking wound adjacent to No. 7, 6 inches length 1 ½ inches depth. 9th- vertical deep hacking wound 7 inches length - 2 inches depth extending from wound No.8th down to the arm. 10th- deep hacking wound beneath No. 9th - 7 inches length - 2 inches depth arm-left. 11th- deep hacking wound-next to 10th 7 inches length - 2 inches depth, left chest wall. 12th- 13th- hacking wound - left lower chest anterior -3 inches length, gaps ½ inch depth. 14th- superficial wound - mid chest. 15th- superficial wound - mid chest next to 14th. 16th- 17th- 18th- Stab wound - distal 3rd arm, back, 1¼ inches depth and gaps. 19th- 20th- 21st- Hacking wound, below - No. 20, 6 inches length, 1 ½ inches gaps, 2 inches depth. 22nd- Hacking wound-below No. 21- 3 inches length - 1 inch gaps-2 inches depth. 23rd- Hacking wound- below No. 22, 3 inches length, 1 inch gaps, 2 inches depth. 24th- 25th- 26th- Deep hacking, gaps 2 inches, 4 inches length, 2 inches depth. Right scapula, horizontal. 27th- 28th- 29th- Back Portion: Stab wound-right scapula - 1 ¼ inches length- superficial. 30th- 31st- 32nd- 33rd- Left side back: Hacking wound - 1 ¼ inches length - gaps - 1 inch level of No. 32. 34th- Vertical-stab wound - above No. 33 1 ¼ inches length, superficial right - left. 35th- Hacking wound - 4 inches length, 2 inches deep left side back - 3 inches below scapular.
36th-
Organs affected:
Left and right lungs."
which injuries caused the death of said MARCELINO NAVARRA ISTURIS alias "PARIC".
That by reason of the unlawful acts of the accused, the family of the victim suffered FIFTY THOUSAND PESOS (P50,000.00) actual damages.
CONTRARY TO LAW.
Dr. Eva I. Rasco, Municipal Health Officer of Banga, Aklan, testified that she examined the cadaver of MARCELINO at around 2:05 A.M. of 20 December 1994. She noted thirty-seven (37) clean cut wounds on the cadaver. Six (6) deep hacking wounds on the head which caused lacerations on the brain were fatal.[3]
SPO1 Jose Joy del Rosario testified that at 11:00 P.M. of 19 December 1994, he received a report that a dead person was found at the feeder road of Barangay Polocate, Banga, Aklan. He, together with SPO2 Joselyn Meliton, PO3 Steven Recio, PO3 Leonard Teodosio and PO3 Manuel Lachica, proceeded to the crime scene and conducted an investigation. The investigation yielded a negative result.[4] However, on account of the report made by MARCELINO sometime last 12 December 1994 that SONNY held a grudge against the former, del Rosario, SPO2 Meliton, PO3 Lachica, and PO3 Recio went to the house of SONNY to find out if SONNY was home and to inquire about the death of MARCELINO.[5] When confronted, SONNY denied any knowledge about MARCELINO's death.
Teresito Relimbo declared that last 19 December 1994, at about 9:00 P.M. while he was on his way home from Tranquilino Retoriano's house at Barangay Polocate, Banga, he heard an unusual thud coming from the feeder road. Curious, he tried to find its origin. Upon reaching uphill and behind a coconut tree, Teresito saw SONNY, ALCEDE and ANTONIO hack a man, then lying on the ground, with the use of their fighting "talibong." Five minutes later the trio left and fled together for the Ambolong plantation.[6]
Teresito added that although he did not come near the victim after SONNY, ALCEDE and ANTONIO left the crime scene, he recognized the victim to be MARCELINO, as prior to the incident the latter and the trio were plowing his farm. Teresito then executed an affidavit in connection with the killing of MARCELINO.[7]
On cross-examination, Teresito admitted that he knew of the identity of the victim only on the following morning. However, he positively pointed to SONNY, ALCEDE and ANTONIO as the perpetrators of the crime.[8] He also declared that he had to climb up the foot trail, elevated about five meters from the feeder road, for his safety. The feeder road was very visible to SONNY, ALCEDE and ANTONIO and he was afraid he might be seen by them.[9] Finally, Teresito ascribed his seeming vacillation to his fear - fear that the trio might get angry at him if he implicate them.[10]
Roberto Ricaforte testified that as he stood by the gate of their compound at about 8:30 P.M. of 19 December 1994, he saw SONNY and ALCEDE pass by. They were walking towards the feeder road.[11] Thirty minutes later, he heard a thud coming from the feeder road. He walked towards the feeder road to find out. At a distance of forty meters he saw a person on the ground being "boloed" by SONNY and ALCEDE. Dazed at what he had seen, Roberto hurriedly went home and thereafter told his wife about what he had witnessed. The following day, 20 December 1994, Roberto came to know at the police station that the person hacked by the brothers SONNY and ALCEDE was MARCELINO, his bosom friend.[12] Roberto executed a sworn statement on the hacking incident on 27 December 1994.[13]
On cross-examination, Roberto admitted the discrepancy between his sworn statement and court testimony. However, he insisted that during investigation he informed Chief of Police Seraspi about his having gone to the feeder road and witnessed the hacking incident.[14]
Emilia Isturis, wife of MARCELINO, testified that on 16 October 1994, SONNY challenged MARCELINO to a fight at their residence located at Sigcay, Banga, Aklan. MARCELINO ignored the challenge and instead reported the matter the following day to the Police authorities of Banga.[15]
Emilia also testified on the earnings and income of her husband and the amount she spent for funeral and other miscellaneous expenses.
Epifanio Retis declared that in the morning of 12 December 1994 while he and his worker were pulling out the weeds in his plantation, SONNY suddenly arrived with a gun and approached MARCELINO. Epifanio intervened and advised SONNY not to come any closer. Luckily for MARCELINO, SONNY heeded Epifanio's advice and left. MARCELINO also left for his home. Several days thereafter, Epifanio heard of MARCELINO's death.[16]
Jose Retoriano recalled that last 12 December 1994, while he and SONNY were on their way to work, they chanced upon MARCELINO somewhere at Sigcay, Banga, Aklan. MARCELINO then confronted SONNY about the latter's plot to kill the former. SONNY did not answer MARCELINO, and instead ran toward his house. A few minutes later, SONNY came back with his gun and approached MARCELINO. At this point, Epifanio Retis intervened and pacified the two.[17]
The accused put up the defense of denial and alibi. Their witnesses were Nelson De la Cruz, Noel Gari, Lolita Luces, Enjelyn Mationg, Moises Geronimo, Romulo Ranigo, Leny Alfaro, Jimmy Beltran and SONNY.
Nelson De la Cruz testified that he is the court's appointed Commissioner. As such, he had to go the crime scene and make a report of his observations.[18]
Noel Gari declared that he and ALCEDE were workers in the Libacao-Janlud provincial road concreting project.[19] On 19 December 1994, ALCEDE was at work. On that day, the workers, including ALCEDE had to stop their work at about 6:30 in the evening due to the unfavorable weather condition. Thus, he, ALCEDE and three other workers headed for the bodega of a certain Engineer Sotico Beltran, where they slept and stayed until the following day.[20]
Enjelyn Mationg, wife of ALCEDE, corroborated the testimony of Noel that ALCEDE was in Libacao-Janlud, working on a road project.[21]
Lolita Luces testified that from 13 December 1994 to 26 December 1994, ANTONIO was staying in their house at New Buswang, Kalibo, Aklan. However, when asked if ANTONIO tried to go home within the period from 13 December 1994 to 26 December 1994, Lolita admitted that ANTONIO did go home to his place at Banga, Aklan sometime last 19 December 1994. However, ANTONIO came back that same day at about 7:00 P.M.[22]
Leny Alfaro, wife of ANTONIO, corroborated the testimony of Lolita that ANTONIO stayed in their place from 13 December 1994 to 26 December 1994. She, however, disputed Lolita's testimony on ANTONIO's having gone home to Banga, Aklan, last 19 December 1994.[23]
Moises Geronimo testified that in his capacity as Barangay Captain of Polacate, Banga, Aklan, he only knew about MARCELINO's untimely death the following day for he was never informed by the family of MARCELINO and neither did Teresito and Roberto report anything to him.
Romulo Ranigo testified that he saw Teresito sitting at his sala from 7:30 in the evening up 10:30 in the evening of 19 December 1994, while he and his brothers were watching television at Teresito's house.[24]
Jimmy Beltran testified that in his capacity as Barangay Captain of Agbanawan, he was never informed by Roberto, his barangay tanod, about the incident.
SONNY declared that last 19 December 1994, he was somewhere at the boundary of Barangay Sigcay and Bacan, sawing lumber for the Navarras. Tired and exhausted after a day's work, he went straight to bed after taking his dinner at around 7:00 P.M. However, at around 11:30 in the evening of that same day his wife woke him up because policemen were looking for him. So he accommodated the policemen and learned from them about the death of MARCELINO. He also learned that they came to inquire about said death because of an alleged feud between him and MARCELINO. SONNY denied any knowledge of and participation in the killing of MARCELINO.[25]
Lastly, SONNY denied that he was with his brother, ALCEDE and brother-in-law ANTONIO on 19 December 1994.
In its decision of 27 November 1998,[26] the trial court found SONNY, ALCEDE and ANTONIO guilty of the crime of murder. It gave credence to the positive, unequivocal and unswerving testimony of Teresito Relimbo and Roberto Ricarforte that they were the very persons who hacked MARCELINO to death. The trial court further held that there was no ulterior motive on the part of prosecution eyewitnesses Teresito and Roberto to just randomly pinpoint the trio as the perpetrators of the crime.
The trial court also found the lapses in the testimony of the eyewitnesses as inconsequential considering their degree of intelligence and education, and added that these lapses even bolstered the prosecution's case as they clearly indicate that these eyewitnesses were unrehearsed.
The trial court appreciated the qualifying circumstance of abuse of superior strength since SONNY, ALCEDE and ANTONIO enjoyed superiority in number, power, and weapons. It held that their mutual cooperation was sufficiently established by the fact that they ganged on MARCELINO and inflicted on him thirty-six (36) wounds.
The trial court further held that the killing of MARCELINO was attended by the aggravating circumstances of uninhabited place and nocturnity. As to the first, it took into account the finding during the ocular inspection that there were no houses within the immediate vicinity; the nearest house is situated some forty-five meters away from the scene of the crime. As to nocturnity, the trial court held that the crime was committed at such time of the night when most of the inhabitants were already fast asleep, thereby eliminating the faintest chance for MARCELINO to get some help.
Finally, the trial court gave full credit to Emilia's testimony on the expenses she incurred in connection with the death of MARCELINO in the aggregate amount of P35,250, and computed his lost earnings at P832,580. It also awarded the amount of P50,000 as indemnity.
It then decreed:
WHEREFORE, premises considered, judgement is hereby rendered CONVICTING all the three (3) accused, SONNY MATIONG, ALCEDE MATIONG and ANTONIO ALFARO, and imposing upon each one of them the penalty of DEATH, in accordance with Article 248 of the Revised Penal Code, as amended by R.A. 7659, and ordering them, to jointly and severally pay the heirs of the victim Marcelino Isturis, the following amounts:As earlier stated, the case is now before us for automatic review.
To pay the costs.
- P50,000.00 for the death of the victim;
- P35,250.00 for actual damages (funeral expenses); and
- P832,580.00 for the lost earnings of the victim.
SO ORDERED.
In their Appellants' Brief, SONNY, ALCEDE and ANTONIO submit this lone assignment of error:
THE LOWER COURT ERRED IN GIVING CREDENCE TO THE EVIDENCE OF THE PROSECUTION AND FINDING ALL THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER.In support thereof, they argue that the testimonies of Teresito Relimbo and Roberto Ricaforte bore inconsistencies and contradictions on material points which cast doubt upon their credibility. More specifically, they focus on the following: (a) Teresito's conflicting court and ocular inspection testimony about the date the crime was committed; (b) Teresito's delay in reporting the incident to the police authorities; (c) Roberto's failure to allege in his sworn affidavit that he saw the hacking of MARCELINO; and (d) while Teresito claimed that he saw SONNY, ALCEDE and ANTONIO hack MARCELINO, Roberto, on the other hand, declared that only SONNY and ALCEDE hacked MARCELINO.
They also question the findings of the trial court on the credibility of witnesses considering that the Presiding Judge of the lower court who penned the decision of conviction was not the one who heard the testimonies of Teresito and Roberto and as such failed to observe the demeanor and deportment of said witnesses.
In the Appellee's Brief, the Office of the Solicitor General supports the trial court's finding and conclusion that SONNY, ALCEDE and ANTONIO are guilty beyond reasonable doubt of the crime of murder for the death of MARCELINO. Their bare denials and alibi undoubtedly could not diminish the positive evidence of the prosecution; and while there were inconsistencies, they were inconsequential for even the most honest witnesses oftentimes make mistakes and fall into confusion.
We have repeatedly held that we will not interfere with the trial court's determination of the credibility of witnesses, unless there appears on record some circumstance of weight and influence which had been overlooked or the significance of which had been misinterpreted by the trial court.[27] Indeed, one of the recognized exceptions to the rule is when the judge who penned the decision is not the judge who received the evidence and heard the witnesses.[28] Hence, we took pains to meticulously examine the records and review the evidence in this case.
The records disclose that prosecution witness Teresito Relimbo identified SONNY, ALCEDE and ANTONIO as MARCELINO's aggressors. However, prosecution witness Roberto Ricaforte was equally explicit that only SONNY and ALCEDE hacked MARCELINO.
We are inclined to give credit to the testimony of Roberto Ricaforte and would thus absolve ANTONIO from any criminal liability. Roberto testified that at about 8:30 p.m. on 19 December 1994, he saw SONNY and ALCEDE pass by his gate and walk toward the feeder road. This was barely thirty minutes before the killing. Then at the time of the killing he only saw SONNY and ALCEDE hack MARCELINO. There is, therefore, reasonable doubt as to the criminal participation of ANTONIO.
On the alleged inconsistencies, it is doctrinally settled that inconsistencies on minor, trivial and inconsequential matters do not affect the credibility of witnesses.[29] There really is hardly a witness who can perfectly remember the details of a crime; human memory is not as unerring as a photograph.[30] We can attribute Teresito's lapses to the natural fickleness of a man's memory.
Delay in making a criminal accusation does not necessarily impair the credibility of the witness if such delay is satisfactorily explained. The law on prescription of crimes would be meaningless if we were to yield to the proposition that delay in the prosecution of crimes would be fatal to the state and to the offended parties.[31]
In the instant case, the delay was sufficiently explained. As disclosed by Teresito, fear for his life and reprisal from the accused-appellants, compelled him to hold his tongue. Likewise, we note the fact that SONNY, ALCEDE and ANTONIO were not yet arrested and the possibility of retaliation from them was not remote, at least in the mind of Teresito. Hence, Teresito's fear was well-founded.
The seeming discrepancy between Roberto's sworn statement and court testimony deserves scant consideration. It is settled 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 since ex parte affidavits are generally incomplete, and are generally subordinated in importance to testimony in open court.[32]
The positive identification of accused-appellants SONNY and ALCEDE by the prosecution witnesses prevails over their defense of alibi and denial. Settled is the rule that alibi and denial, if unsubstantiated by clear and convincing evidence are negative and self-serving, deserve no weight in law, and cannot be given evidentiary value over the testimony of credible witnesses who testify in affirmative matters.[33]
Moreover, even assuming that SONNY's claim is true, his stay in his house did not preclude his physical presence at the locus criminis or its immediate vicinity. The place where the body of MARCELINO was found was a few meters away from his house and SONNY could reach the former from the latter in a short time. Likewise, ALCEDE failed to show that it was physically impossible for him to be at the scene of the crime. For the defense of alibi to prosper, the requirements of time and place must be strictly met. It is not enough to prove that the accused was somewhere else when the crime was committed, he must demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission.[34]
We uphold the finding of conspiracy by the trial court. The rule is that conspiracy must be proven as clearly as the commission of the offense itself. However, direct proof is not essential; conspiracy may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that they had acted with a common purpose and design.[35]
In the case at bar, unity in purpose and design between SONNY and ALCEDE were evident. They were positively identified by both Teresito Relimbo and Roberto Ricaforte as the ones who simultaneously hacked with their bolos MARCELINO. Thirty minutes earlier, Roberto saw them walking toward the crime scene. After accomplishing their evil deed, SONNY and ALCEDE left and fled together toward the Ambolong plantation.
We shall now address the issue of whether the crime committed was murder or homicide. The information alleges the qualifying circumstances of treachery, evident premeditation and abuse of superior strength. The trial court appreciated the latter to qualify the killing to murder.
The trial court correctly disregarded treachery and evident premeditation. There is treachery when the offender commits any of the crimes against person employing means, methods or forms of attack which tend directly and specially to insure the execution of the crime without risk to himself arising from the defense which the offended party may take.[36] Consequently, for treachery to be considered, particulars should be known as to the manner the aggression was made or how the act resulting to the death of the victim, began and developed, for treachery could not be established by mere suspicion that the accused perpetrated the killing with treachery.[37] In this case, no evidence was offered to support the presence of treachery at the inception of the attack. It should be noted that when Teresito and Roberto witnessed the incident the assault against MARCELINO had already begun. In fact MARCELINO was already lying on the ground. Hence, it cannot be presumed that the attack from its inception was executed by the assailants with treachery.
Evident premeditation is appreciated upon proof of (a) the time when the accused determined to commit the crime; (b) an act manifestly indicating that the accused clung to his determination; and (c) a sufficient lapse of time between such determination and execution to allow him to reflect upon the consequences of his act.[38] While it was proven that prior to MARCELINO's death, SONNY tried to assault the victim and desisted only after the timely intervention of Epifanio Retis, the prosecution failed to show the steps that SONNY took thereafter to indicate that he clung to his plan to kill MARCELINO, either alone or in conspiracy with ALCEDE.
As to the qualifying circumstance of abuse of superior strength, which the trial court appreciated against SONNY and ALCEDE, there must be sufficient proof that the assailants took advantage of their combined strength in order to consummate the offense. No convincing evidence was established in this case to prove that the assailants took advantage of superior strength.[39]
Neither do we agree with the trial court's appreciation of the generic aggravating circumstances of uninhabited place and nocturnity.
For uninhabited place and nocturnity or nighttime to be considered as aggravating circumstances, there must be proof that the assailants purposely sought and took advantage of them in order to facilitate the commission of the offense.[40] In this case the prosecution failed to present evidence to prove this requisite.
Accordingly, since the killing was not attended by either of the qualifying circumstances of treachery, evident premeditation, taking advantage of superior strength, as alleged in the information, SONNY and ALCEDE could be held guilty of homicide only, which is punishable by reclusion temporal under Article 249 of the Revised Penal Code. No modifying circumstances having been proven, the penalty shall, pursuant to paragraph 1 of Article 64 of the Revised Penal Code, be imposed in its medium period. Applying the Indeterminate Sentence Law, SONNY and ALCEDE may be sentenced to suffer an indeterminate penalty of ten (10) years of prision mayor in its medium period as minimum, to seventeen (17) years and four (4) months of reclusion temporal in its medium period as maximum.
The award of P35,250 as actual damages must however, be reduced, as the duly documented receipt for the funeral expenses is only P23,300.[41] Only expenses supported by receipts and which appear to have been actually and reasonably expended in connection with the death of the victim should be allowed.[42] The award for loss of earning capacity must be set aside for lack of factual basis. No evidence as to victim's earning capacity and life expectancy was adduced.[43]
WHEREFORE, the challenged decision of Branch 2 of the Regional Trial Court of Kalibo, Aklan in Criminal Case No. 4419 is MODIFIED. As modified, accused-appellant ANTONIO ALFARO is ACQUITTED on ground of reasonable doubt; accused-appellants SONNY MATIONG and ALCEDE MATIONG are found guilty beyond reasonable doubt, as principals, of the crime of homicide only as defined and penalized under Article 249 of the Revised Penal Code, and are each sentenced to suffer an indeterminate imprisonment penalty ranging from ten (10) years of prision mayor in its medium period, as minimum, to seventeen (17) years and four (4) months of reclusion temporal in its medium period, as maximum, with all the accessory penalties, thereof, and to pay jointly and severally the heirs of the victim Marcelino Isturis the sum of P50,000 as indemnity ex delicto and P23,300 as actual damages.
Costs de oficio.
SO ORDERED.
Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De leon, Jr., and Sandoval-Gutierrez, JJ., concur.
Puno J., abroad on official business.
[1] Original Record (OR), 251-265; Rollo, 30-44. Per Judge Tomas R. Romaquin.
[2] "An Act to Impose the Death Penalty on Certain Heinous Crimes, etc."
[3] TSN, 21 June 1995, 7-9; Exhibit "B-B4," OR, 6-9.
[4] TSN, 26 June 1995, 6-10.
[5] Id., 38-42.
[6] TSN, 17 July 1995, 5-12.
[7] Exhibit "H"; OR, 12.
[8] TSN, 31 October 1995, 5-6.
[9] Id., 13-15.
[10] Id., 31.
[11] TSN, 7 November 1995, 9.
[12] Id., 10-16.
[13] Exhibit "I" to "I-1," OR, 13-14.
[14] TSN, 8 November 1995, 27-30.
[15] TSN, 17 November 1995, 13-15.
[16] TSN, 4 July 1995, 5-7.
[17] TSN, 31 May 1996, 6-8.
[18] Exhibit "8-A" and Exhibit "9," OR, 129, 135.
[19] TSN, 7 March 1997, 4-6.
[20] Id., 8-11.
[21] TSN, 2 September 1997, 7-8.
[22] TSN, 21 July 1997, 5-8.
[23] TSN, 23 February 1998, 4-7.
[24] TSN, 4 December 1997, 4-5.
[25] TSN, 15 July 1998, 6-10.
[26] Supra note 1.
[27] People v. Hubilla, Jr., 252 SCRA 471, 478 [1996]; People v. Agbayani, 284 SCRA 315 [1998]; People v. Conde, G.R. No. 133647, 12 April 2000.
[28] People v. Bocatcat, 188 SCRA 175, 188 [1990]; People v. Buka, 205 SCRA 567, 585 [1992].
[29] People v. Castor, 216 SCRA 410 [1992]; People v. Lase, 219 SCRA 589 [1993]; People v. Jumamoy, 221 SCRA 333 [1993].
[30] People v. Cañales, 297 SCRA 667 [1998].
[31] People v. Rostata, Jr., 218 SCRA 657 [1993]; People v. Cordova, 224 SCRA 320 [1993]; People v. Gorres, 230 SCRA 270 [1994].
[32] People v. Bayani, 262 SCRA 660, 680 [1996]; People v. Marcelino, 316 SCRA, 106 [1999].
[33] People v. Patalin, 311 SCRA 188 [1999]; People v. Gallarde, G.R. No. 133025, 17 February 2000.
[34] People v. Alshaika, 261 SCRA 637, 646 [1996]; People v. Gallarde, supra note 33.
[35] Citing People v. Sumalpong, 284 SCRA 464 [1998]; People v. Mansueto, G.R. No. 135196, 31 July 2000.
[36] People v. Marcelino, supra note 32; People v. Mansueto, supra note 35.
[37] People v. Borreros, 306 SCRA 680, [1999]; People v. Naguita, 313 SCRA 292 [1999].
[38] People v. Sol, 272 SCRA 392 [1997]; People v. Mansueto, supra note 35.
[39] People v. Balano, 272 SCRA 782 [1997].
[40] People v. Caballes, 274 SCRA 83 [1997].
[41] Exhibit "K-12" to "K-14," see Folder of Exhibits.
[42] People v. Sanchez, 308 SCRA 268 [1999].
[43] See Philtranco Service Enterprise, Inc. v. Court of Appeals, 273 SCRA 562 [1997].