This is an appeal from the decision dated December 29, 1998 of the Regional Trial Court, Branch 56, of Libmanan, Camarines Sur, in Criminal Case No. 1834, finding George Asaldo guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty of Reclusion Perpetua while acquitting his co-accused Romeo Atag and Mariano Soriano for insufficiency of evidence.

The accusatory portion of the information reads:

That on or about the 5^th day of march, 1995, in Barangay Sta. Cruz, Cabusao, Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery, evident premeditation and taking advantage of superior strength, conspiring, confederating and mutually helping one another, did then and there willfully, unlawfully and feloniously kidnap one Vicente Alarcon y Cervantes and taken at Barangay Sta. Cruz, Cabusao, Camarines Sur, and while thereat, said victim was hogtied, and then stabbed with bladed instruments, inflicting upon him mortal wounds on the different parts of his body, which caused his instantaneous death, to his heirs damage and prejudice in such amount as may be proven in court.

ACTS CONTRARY TO LAW.^[1]

When arraigned, the three accused assisted by counsel pleaded not guilty to the crime charged; waived pre-trial and prayed for an immediate trial on the merits.

The evidence for the prosecution tends to establish the following facts:

Nineteen year-old Vicente Alarcon, the fifth child of Jose Alarcon, was last seen alive by his father on March 4, 1995 at around 3:00 p.m. Vicente asked permission from him that he was going to attend the "pabasa" in Dominorog with Eric Olleta.^[2] The following day, only Eric Olleta and Rafael Terillos,^[3] Jose's son-in-law, came home and told the latter that his son had been stabbed.

On March 5, 1995, a dead body was found by residents of Barangay Sta. Cruz, Cabusao, Camarines Sur, floating on the creek with his back on the water surface and both his arms and feet were tied with "lupnis" (nipa stalk). Police authorities who investigated the crime found a voter's affidavit inside the deceased's wallet in the name of Vicente Alarcon.^[4] The victim sustained four stab wounds on the side of the right neck area, and cuts in the left eyebrow and on the base of the neck. Dr. Geonesto Ramos, who conducted the post-mortem examination found the following:

FINDINGS:

- The cadaver was found in Rigor Mortis, the hands were bound with nipa leaves beyond the back;

- Both lower extremities were bound with nipa leaves at the ankle area;

- There is an avulsion wound on the terminal portion of the left eyebrow measuring 2x2 cm;

- There are multiple stab wound on the right neck area near the right sternoclavicular joint namely:

a.)     a 2x2 cm. stab wound with sharp extremities clean cut edges 22 cm. deep downward and medial in direction reaching the right lung with severed blood vessels;

b.)     two 2x2 cm. stab wound with sharp extremities, clean borders directed downward reaching the underlying muscles;

c.)     2x2 cm. stab wound just below the right midclavicular area, downward in direction reaching the muscles;

d.)     there is a 4x1 cm. laceration the base of the neck right area near the right sternoclavicular joint, which is superficial;

e.)     there is also a 2 x2 cm. stab wound at the base of the right neck area with sharp extremities clean edges downward in direction 6 cm. deep reaching right scapular area.

The PNP of Calabanga, Camarines Sur informed the PNP of Cabusao that a certain Baltazar Millares surrendered to the police saying that he can shed light on the circumstances which led to the death of Vicente Alarcon.

When he was presented on the stand as prosecution witness, Millares narrated in detail how Vicente Alarcon died in the hands of the accused: On March 5, 1995 at about 2:00 a.m., he arrived in Dominorog, Calabanga, Camarines Sur where the "pabasa" was taking place while George Asaldo, Romeo Atag and Mariano Soriano were already there. Then, a drunk man from Balatasan arrived together with Vicente Alarcon. George Asaldo brought the drunk man to the backyard where he was taken by the barangay tanod. Thereafter, Millares and the three accused went inside the house of Antonio Belencio to eat. Thereafter, they proceeded to the house of Elena Siping were they drank gin. Eric Olleta, Vicente Alarcon and a certain Terillos passed by and Asaldo offered them a drink. After Olleta, Alarcon and Terillos left, Asaldo told his companions, Atag, Soriano and Millares that they will waylay the three. They waited for several hours, but the three did not return as they were resting at the outpost. Asaldo and Atag proceeded to the outpost, which was 20 meters away. Millares and Soriano followed after a little while, and saw Asaldo point a toy gun at the nape of Vicente Alarcon. Asaldo ordered Soriano to hold Alarcon. Soriano drew a fan knife and pointed it at the back of Alarcon.

George Asaldo turned to Eric Olleta who was lying on the ground and stabbed him. Asaldo told Alarcon, "if you will not come, you will be killed," to which Alarcon replied "if you will not kill me, I will go with you." The group left Terillos and the wounded Olleta at the outpost and went back to the house of Asaldo. From there, they proceeded on foot to Pagao, an adjoining barangay. It was 4:00 in the morning when they got there. They boarded a motor boat which Asaldo rented from a certain Fernando and they proceeded to Sta. Cruz, Cabusao. After alighting from the boat, they walked a few meters then Asaldo told Vicente Alarcon to get down. He told Atag and Soriano to tie Alarcon's hands and feet with a "lupnis." Asaldo stabbed Alarcon four times. He threw Alarcon into the creek. Thereafter, they went to Kalampinay where they worked in a farm. Millares was later fetched by a brother of Asaldo and was brought to Dominorog. Then he surrendered to the police.^[5]

Accused-appellant denied the charge against him. He claimed that he had been a resident of Kalampinay, Sipocot, Camarines Sur since he was a 12 year old fourth grader. On March 5, 1995, he worked in San Bernardino, Calabanga, Camarines Sur with his brother. They sawed lumber there and when he went home to Kalampinay he found out that his child had a fever. He instructed his wife to bring their child to Mercedes, Camarines Norte, where his mother-in-law resides. On March 7, he fetched them at Mercedes.

He further averred that he seldom went to Dominorog, although his brother lives there. He denied being with the two other accused and Baltazar Millares on March 5, 1995 at the house of a certain Belencio at Dominorog, Calabanga. Neither was he with them on any other occasion. He likewise denied having met Alarcon or Eric Olleta, or having a drinking spree, or having taken Alarcon to Pagao, then to Sitio Ferry, Sta. Cruz, Cabusao, Camarines Sur. He alleged that he did not stab or hogtie Alarcon.

He argued that he was accused of the crime because the family of Millares had a grudge against him after he and the latter's first cousin, Nestor Asoro, had a fight over the interchanging of "himolo" (palay harvest share) where he defeated Asoro.^[6]

Rolando Sibuc corroborated accused-appellant's alibi that George Asaldo was working with him at a farm in Kalampinay, Sipocot, Camarines Sur from seven in the morning to five in the afternoon of March 3, 4, 5, 6 and 7. Asaldo was operating the hand tractor.^[7]

The trial court found accused-appellant guilty of the crime charged on the basis of the eyewitness accounts of Baltazar Millares who positively identified him as the assailant. The trial court found Millares' testimony as positive, consistent, straightforward, and clear.

The dispositive portion of the decision dated December 29, 1998 reads as follows:

WHEREFORE, in view of the foregoing considerations, this Court finds the accused, GEORGE ASALDO y CELESTIAL, GUILTY beyond reasonable doubt of the crime of MURDER under Article 248 of the Revised Penal Code as amended by RA 7659 and hereby sentences him to Reclusion Perpetua to pay the heirs of the victim, Sixty Thousand Pesos (P60,000.00) for the fact of death, and Ten Thousand Pesos (P10,000.00) as moral damages and to pay the costs of this suit. There being insufficient evidence to hold accused ROMEO ATAG y SALVADOR, and MARIANO SORIANO y AGUIRRE liable for the crime, they are ACQUITTED of the same. No pronouncement as to costs. It appears from the record that they are presently detained at the Tiñangis Penal Farm. In view thereof, their immediate release is hereby ordered unless there is other ground for their continued detention.

SO ORDERED.^[8]

Hence, this appeal, anchored on the lone assignment of error, viz:

THE COURT A QUO ERRED IN GIVING CREDENCE TO THE TESTIMONY OF THE PROSECUTION EYEWITNESS, BALTAZAR MILLARES, WHICH FAILED TO PROVE BEYOND REASONABLE DOUBT THE GUILT OF ACCUSED-APPELLANT GEORGE ASALDO.

Accused-appellant assails the credibility of the prosecution's eyewitness Baltazar Millares, who testified that he was with accused-appellant and the two other accused on March 5, 1995 and how Vicente Alarcon was killed. He claims that the trial court failed to see the infirmities and inconsistencies in the testimony of the said prosecution witness.

We are not persuaded.

Accused-appellant capitalized on two inconsistencies in the testimony of Baltazar Millares. First, while Millares testified on direct examination that on March 5, 1995 at around 2:00 in the morning, he was at the house where the "pasyon" was being read, he changed his statement on cross-examination, saying that they left the house where the "pasyon" was being read on March 5, 1995 at about 11:00 in the evening, and that at 2:00 a.m., they were already at the store of Aling Siping drinking gin.^[9] Secondly, on cross examination, Millares testified that when he and Mariano Soriano arrived at the outpost, Vicente Alarcon, Eric Olleta, Terillos, and the brother-in-law of Vicente Alarcon were there. Later, he testified that Eric Olleta was not there, as it was only Vicente Alarcon who was taken.

The Solicitor General contends that there was nothing inconsistent in Millares' testimony. Millares was at the "pasyon" reading at 2:00 A.M. Although earlier, at about 11:00 P.M., he and appellant's group went to the store of 'Siping' to drink gin. The drinking spree did not last for thirty minutes. So also, there is no inconsistency between Millares' testimony on direct examination that Eric Olleta was stabbed by accused-appellant, on the one hand, and his testimony on cross-examination that "Eric Olleta was not there," on the other hand. The trial court clarified the seemingly inconsistent testimony and asked Millares whether Eric Olleta and Terillos were at the outpost when George Asaldo poked a gun at Vicente Alarcon. Millares explained that Eric Olleta and Terillos were not there when Asaldo poked a gun at Alarcon, but Eric Olleta returned to the outpost.^[10]

Where the credibility of a witness is an issue, the established rule is that findings of the trial court as to the credibility of witnesses are accorded great weight, even finality, on appeal, unless the trial court has failed to appreciate certain facts and circumstances which, if taken into account, would materially affect the result of the case. Having had the opportunity to personally observe the witnesses' demeanor and manner of testifying, the trial judge is in a better position to pass judgment on their credibility.^[11] As observed by the trial court, Baltazar Millares testified in a positive, consistent, straightforward, and clear manner.^[12]

The alleged inconsistencies in the testimony of Millares are too insignificant and inconsequential as they have nothing to do with the elements of the crime. For a discrepancy to serve as basis for acquittal, such must refer to significant facts vital to the guilt or innocence of the accused. An inconsistency, which has nothing to do with the elements of the crime, cannot be a ground to reverse a conviction.^[13]

In the case at bar, the inconsistencies pointed out by accused-appellant referred to events that took place prior to the killing itself. Moreover, even the most candid witnesses oftentimes make mistakes or variations in their declarations, considering the treachery of human memory.^[14] Such inconsistencies cannot erode the credibility of the witness as he was with the group from the place where they first met to the place where the victim was hogtied, stabbed and thrown into the creek.

Against the positive identification of the prosecution witness, accused-appellant only has for his defense mere denial and alibi. Well-settled is the rule that positive identification of the accused will prevail over the defense of denial and alibi.^[15]

The trial court correctly found that the crime was committed with treachery. There is treachery when the offender commits any of the crimes against person, employing means, methods and forms in the execution thereof which tends directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make,^[16] which means that no opportunity was given to the latter to do so.^[17] The prosecution was able to prove that Vicente Alarcon was unarmed and hogtied during the time he was repeatedly stabbed by the appellant. In that situation, the victim was utterly defenseless and cannot in any manner render any form of resistance to prevent or parry the fatal blow of the accused-appellant. Treachery, if duly alleged in the information and proved during the trial, qualifies the killing to murder, pursuant to Article 248 of the Revised Penal Code.

In line with the prevailing jurisprudence,^[18] when death occurs as a result of a crime, the victim's heirs are entitled to the amount of P50,000.00 as indemnity ex delicto, without need of any evidence or proof. Accordingly, the indemnity awarded by the trial court is reduced from P60,000.00 to P50,000.00. The heirs of the victim are entitled to moral damages pursuant to paragraph (3) of Article 2206 in relation to Article 2217. The award by the trial court of moral damages is, however, increased from P10,000.00 to 50,000.00^[19]considering the pain and anguish suffered by the victim's heirs brought about by the untimely demise of Vicente Alarcon.

WHEREFORE, in view of the foregoing, the assailed decision of the Regional Trial Court of Libmanan, Camarines Sur, Branch 56, in Criminal Case No. 1834 finding George Asaldo guilty beyond reasonable doubt of Murder and sentencing him to suffer the penalty of Reclusion Perpetua is AFFIRMED with MODIFICATION. Accused-appellant George Asaldo is ordered to indemnify the heirs of deceased Vicente Alarcon in the amount of P50,000.00 as civil indemnity ex delicto, as well as the sum of P50,000.00 as moral damages.

SO ORDERED.

Davide, Jr., C.J., Vitug, Kapunan, andAustria-Martinez, JJ., concur.

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