390 Phil.

961

FIRST DIVISION
118967, July 14, 2000
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ERNESTO
DELA CRUZ, DEFENDANT-APPELLANT.

DECISION

KAPUNAN, J.:

In every criminal conviction, identification of the accused as the perpetrator

of the crime naturally becomes the starting point of every inquiry. Likewise,
the credibility of the identifying witness and his testimony become crucial to
any conviction.

Ernesto dela Cruz appeals from the Decision of the Regional Trial Court of
Cagayan, Branch 9,[1] Criminal Case No. 09-734, the dispositive part of
which reads:
WHEREFORE, the Court hereby finds the accused guilty beyond reasonable
doubt of the crime of murder defined and penalized by Art. 248 par. 1 and 5,
Revised Penal Code, qualified by treachery and evident premeditation
attended by the aggravating circumstance of nighttime (Art. 14, par. 6, RPC).
He is sentenced to serve imprisonment of reclusion perpetua with all its
accessory penalties. Only the constitutional proscription against the
imposition of the death penalty for heinous crimes committed before 01
January 1994 prevents this Court from imposing the supreme penalty. He is
further directed to pay the heirs of the victim P50,000.00 as indemnification
of the death of the deceased, P10,000.00 for moral damages and P20,000.00
for exemplary damages with prejudice against the grant of parole or pardon,
and costs.

SO ORDERED.
Appellant was charged of the crime of murder set out in the information[2] as
follows:
That on or about November 2, 1991, in the municipality of Gattaran, province
of Cagayan, and within the jurisdiction of this Honorable Court, the said
accused, ERNESTO DE LA CRUZ and two JOHN DOES, armed with two
(2) long firearms, with intent to kill, with evident premeditation and with
treachery, conspiring together and helping one another, did then and there
wilfully, unlawfully and feloniously, shot one Aurelio Goze several times
hitting him in the different parts of his body causing him injuries which
caused his death.

CONTRARY TO LAW.
In its order of June 25, 1992, the Municipal Trial Court of Gattaran directed
the issuance of a warrant for the arrest of appellant and fixed the bailbond in
the amount of P50,000.00.[3] Appellant was arrested on August 26, 1992.[4]
Upon his motion, the court reduced the amount of his bailbond to
P30,000.00.[5]

Before arraignment, appellant filed a motion for leave of court [6] for the
reinvestigation of the case on the strength of his affidavit[7] and that was
jointly executed by Emiterio Domingo and Eduardo Suldan.[8] The affidavits
pointed as authors of the crime Lt. Hercules Ileto, Sgt. Ebojo and Sgt.
Cauilan, a fact they claimed they had earlier failed to reveal to the authorities
because Lt. Ileto had threatened them with bodily harm should they report to
the police. However, on May 18, 1993, Assistant Provincial Prosecutor
Bienvenido R. Miguel issued a Resolution denying due course to the motion
for reinvestigation. He stated as ground therefor the fact that Emiterio
Domingo and Eduardo Suldan were "perjured witnesses" who previously
revealed to the Commission on Human Rights that it was Lt. Ileto who "fired
(at) Rogelio Goze (sic)," exactly "one (1) year, three (3) months and twenty
(20) days after the commission of the crime."[9]

Thus, on July 13, 1993, appellant pleaded not guilty to the crime charged. [10]
Thereafter, the prosecution presented evidence to prove the following facts:

Aurelio Goze, his wife Zenaida and their children lived in a 3 x 5 house made
of wood with bamboo roof in Barangay Taligan, Gattaran, Cagayan. The
house had an extension called pataguab that had a door aside from the door of
the main house. In the evening of November 2, 1991, a gas lamp located at its
southwest corner lit the house.[11]

At around 11:00 o'clock that evening, someone kicked open the door of the
main house. Two persons forcibly took Aurelio while appellant, whom
Zenaida recognized as the second degree cousin of deceased with whom he
had a land dispute, waited downstairs. Zenaida was by the stairs and barely
two (2) meters away from appellant. She lighted another lamp and placed it
opposite the stairs inside the house. By the moonlight, Zenaida saw these
persons take Aurelio to a place that was around thirty (30) meters to the east
of their house. There, appellant shot Aurelio with a long firearm. His
companions, who also had long firearms, then followed in shooting Aurelio.
[12]

In the morning, the barangay captain reported the incident to the police. In
response to the questioning made by the police, Zenaida identified appellant
and his two companions as the persons who shot and killed Aurelio.[13] On
November 4, 1991, the body of Aurelio was laid to rest. His family spent
P1,000.00 for his burial. When Aurelio was alive, he normally harvested
fifteen (15) sacks of palay from the riceland he was cultivating. He left seven
(7) children whose ages ranged between 4 and 17 years old.[14]

According to SPO4 Franklin Tagupa, the police investigator to whom the

barangay captain reported the crime, the body of Aurelio was found on a spot
that was around thirty (30) meters from the Gozes' house. Tagupa observed
that there were no trees or other structures obstructing the view of the spot
where the body laid as observed from the vantage point of the house.

In the police investigation, appellant told Tagupa that he knew "the very
person who killed the victim." However, Tagupa, in his testimony to the
court, admitted that he had already forgotten the name of the supposed
assailant mentioned by appellant. The following day, when Tagupa
interviewed him once again, appellant "withdrew his allegations" claiming
that the person he had named was a member of the military and that he was
afraid of retaliation. Appellant did not reveal to Tagupa the reason why he
was afraid of said member of the military, saying that the reason was
"confidential."[15]
The death certificate[16] shows that 42-year-old Aurelio Goze died of multiple
gunshot wounds. No autopsy was conducted on the body before burial but it
was later exhumed. The exhumation report[17] manifests the following:

Head:

-        Fracture along occipitomastoid suture, (L)

-        Comminuted fracture of mandible, (R)

Chest:

-        Fracture, communited, both of 4th rib, (R)

-        Fracture, communited, body of 5th rib, (R)

-        Fracture, comminuted, angle of 3rd rib, (L)

-        Fracture, comminuted, angle of 4th rib (L)

The defense interposed denial and alibi. Appellant testified that at around
11:00 o'clock on the night of the killing, he was sleeping in the
camp/detachment of the military in Barangay Sidem, Gattaran, Cagayan. He
was told to sleep there by the soldiers on account of threat from New People's
Army (NPA). He was with Emiterio Domingo, Eduardo Pagaduan, Virgilio
Pagaduan, Reymundo Pagaduan and soldiers Sgt. Evangelista and Sgt.
Sedano. He slept inside the camp beside Reymundo Pagaduan[18] but he was
awakened by a gunshot at about 11:00 in the evening.

It was a little past 11:00 p.m. when Sgts. Evoco and Cavila (sic) arrived with
Lt. Ileto. The latter gathered the men in the camp and told them to keep quiet
and that, should anyone inquire about what happened, the one who would
squeal would be the next victim ("isaruno" in Ilocano). Appellant did not
leave the camp until 7:00 o'clock in the morning. The next time that appellant
saw Lt. Ileto was at around 3:00 o'clock in the afternoon of the day after the
commission of the crime. When appellant asked him why he killed his
cousin, Lt. Ileto replied that he was drunk but should anyone file a complaint
against him, he would pay for the value of the victim's life. [19]

Appellant admitted that there was a land dispute between him and the victim.
In fact, both of them reported the matter to the Agrarian Office.[20]

When he was arrested, appellant told the arresting office, Tagupa, that
someone else had killed Aurelio. This statement was not reduced into writing
because he claimed to be afraid, but he promised to tell the truth in court.
After his release from detention and since no action was taken on the
information he had given to Tagupa, appellant went to Governor Rodolfo
Aguinaldo to whom he finally revealed that soldiers were the ones
responsible for killing Aurelio. The governor instructed him to go to the
Commission on Human Rights Office.[21]

Appellant executed before the Commission an affidavit stating the following:

that he spent the night at the time of the killing in the PNP-RSAF
Detachment in Barangay Sidem, Gattaran for fear that members of the NPA
would raid them; that in the morning, he learned that a man had been killed in
Barangay Taligan, an adjoining barangay; that when he went home, he
learned from Eduardo Suldan and Emiterio Domingo that they accompanied
Lt. Hercules Ileto and Sgts. Ebojo and Emiterio Domingo to the house of one
Aurelio Goze in Taligan but Suldan and Domingo were told by said PNP
members to stay fifty (50) meters away from Goze's house and that said PNP
members then took Rogelio from his house and shot him moments later; that
in the afternoon of November 3, 1991, the people of Sidem learned that the
PNP-RSAF was pulling out its detachment; that when Lt. Hercules (sic) saw
appellant, the former told him not to tell the truth should an investigation be
conducted and that Lt. Ileto even executed a certification to the effect that
appellant slept in the detachment after learning that he was the suspect in the
killing.[22]

In their joint affidavit, Emiterio Domingo and Eduardo Suldan attested to the
fact that at 8:00 p.m. of November 2, 1991, they were in the house of
Barangay Captain Quirino Urata having a drinking spree with Lt. Ileto, Sgts.
Ebojo and Cauilan and other men; that at 10:30 p.m. Lt. Ileto invited them to
go with their group; that fifty (50) meters away from the house of Aurelio
Goze, they were told to stay behind by Lt. Ileto and Sgts. Ebojo and Cauilan
who entered the house; that they then saw the three dragging away Aurelio,
and that Lt. Ileto immediately fired at Aurelio; that Lt. Ileto and his
companions brought them back to the camp where, after staying there for
about thirty (30) minutes, they were told to go home.[23]

Appellant claims that it took one year, three months and twenty days before
he reported to the Commission on Human Rights the actual perpetrators of
the crime because the soldiers kept on returning to the place and, like
Domingo and Suldan, he was afraid.[24]

Suldan confirmed the contents of his affidavit when he testified. According to

him, he was attracted to the house of Barangay Captain Quirino Oreta
because of people singing there. He, together with Emiterio Domingo, joined
the group that included Lt. Ileto, Sgts. Cauilan and Ebojo, and Oreta and his
son. They had a drinking session. Later, Lt. Ileto's group invited them to a
house in Barangay Taligan. Suldan and Domingo were not able to
accompany the others to the house because they were told to stay behind.
Two of the soldiers entered the house, brought out someone and proceeded to
the place where Suldan and Domingo were left behind. Lt. Ileto and his
companions proceeded to a certain distance and shot the man who turned out
to be Aurelio Goze. From a distance of 20 meters, Suldan saw Lt. Ileto shoot
Aurelio. Thereafter, they went back to the camp in Barangay Sidem where he
saw Sgt. Barogan, Sgt. Siddayao, Peralta, Roger Pagaduan, Ernesto dela
Cruz, Fermin Espiritu, Warlito Orata and Raymundo Pagaduan. Lt. Ileto then
gathered all of them and warned them "not to talk about what happened."[25]

Edwin Abig, the barangay captain of Taligan, heard of the shooting incident
from a barangay councilman. He immediately reported the incident to the
military camp at Barangay Sidem. He went to the crime scene with soldiers
to conduct an investigation. Abig was two (2) meters away when the soldier
named Sedano who was with Sgt. Cauilan asked the victim's wife who killed
her husband. The wife did not give an answer "because she did not know
anything."[26] The following day, Abig interviewed the wife in front of the
chapel where the body of the victim was brought. She told him that she did
not know who shot her husband.[27]
On March 15, 1994, the trial court rendered a judgment of conviction based
on the following findings:
From the record, it appears that on the evening of 02 November 1991, the
accused together with two others whose identities remain unknown, went to
the house of the deceased and his widow herein private complainant Zenaida
Goze at Barangay Taligan, Gattaran, Cagayan. The three (3) forcibly entered
the house and brought down the deceased. A few moments later, shots were
heard. The accused is known and famililar to the private complainant being
the second cousin of the deceased. The following morning, the deceased's
remains were found not far from his house.

The evidence for the accused on the other hand consisting of the testimonies
of Reymundo Pagaduan, Edwin Abig, Eduardo Suldan and the accused
himself Ernesto de la Cruz. In essence, the accused claims that he was then at
the time alleged in the information, inside the local headquarters of the
citizens armed force for the geographical unit (CAFGU) at Sidem, Gattaran,
Cagayan asleep, having been requested to keep company for the army
component of the detachment. At about 11:00 p.m. that same evening (02
November 1991), he was awakened by shots. Thereafter, the Commanding
Officer one Lt. Ileto together with others arrived. They were advised to keep
quiet about the matter otherwise, they would also be killed. When accused
allegedly confronted him the following day why Lt. Ileto told him that the
deceased was drunk (pp. 15-18, tsn 08 December 1993). Accused further
testified that Emiterio Domingo told him it was Lt. Ileto who shot and killed
the deceased. Emiterio Domingo was not presented. It was not explained
why.

From the evidence presented, the Court is satisfied and so holds that the
prosecution was able to establish the guilt of the accused beyond reasonable
doubt. The prosecution's witnesses testified in a direct and straightforward
manner. Their story rings the bell of truth. In contrast, the evidence for the
defense presented an incredible story completely unacceptable to the Court.
To be credible, not only must the story be believable; it must come from a
credible witness (People v. Alfonso, G.R. No. 78954, 18 June '90).[28]
Through a counsel de oficio,[29] appellant assigns in this appeal the following
errors:
I
THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY
BEYOND REASONABLE DOUBT.

II

ASSUMING, BUT ONLY FOR THE SAKE OF

ARGUMENT, THAT THE ACCUSED CANNOT BE
ACQUITTED, THE TRIAL COURT NONETHELESS
ERRED IN FINDING THE EXISTENCE OF THE
QUALIFYING CIRCUMSTANCES OF TREACHERY
AND EVIDENT PREMEDITATION, AND THE GENERIC
AGGRAVATING CIRCUMSTANCE OF NIGHTTIME.

III

THE TRIAL COURT, ASSUMIING AGAIN

ARGUENDO THAT THE ACCUSED
CANNOT BE ACQUITTED, ERRED IN
PASSING JUDGMENT ON HIM "WITH
PREJUDICE AGAINST THE GRANT OF
PAROLE OR PARDON.
In support of the first assigned error, appellant
points out that the sole prosecution eyewitness
Zenaida Goze is far from credible and
convincing and, therefore, her testimony is
insufficient to sustain conviction.
The testimony of a sole witness, if found
convincing and credible by the trial court, is
sufficient to support a finding of guilt beyond
reasonable doubt.[30] It is also a fundamental
legal aphorism that the conclusions of the trial
judge on the credibility of witnesses command
great respect and consideration especially when
such conclusions are supported by evidence on
record.[31] The findings of a trial court on the
credibility of witnesses deserve great weight,
given the clear advantage of a trial judge over
an appellate magistrate in the appreciation of
testimonial evidence. It is observed that the trial
court is in the best position to assess the
credibility of witnesses and their testimonies
because of its unique opportunity to observe the
witnesses first hand and note their demeanor,
conduct and attitude under grueling
examination.[32] Despite the paucity of the trial
court's discussion on its factual findings as
shown in its 4-page Decision, said findings are
supported by the facts on record.[33]
On how the crime was committed, Zenaida Gore
testified as follows:
Q At around 11:00 o'clock in the evening, while you
and other member(s) of your house (sic), do you
know if there was any incident that happened?
A I know, sir.

Q What was that?

A They kicked the door of our house to open, sir.

Q After they kicked your door, what happened next?

A They forcibly took my husband, sir.

Q To make it clear, who forcibly took your husband?

A The two companions of Ernesto de la Cruz while he
was downstairs, sir.

COURT:

Q Why do you know that Ernesto de la Cruz was

downstairs?
A I saw him because there was light, sir.

Q After the two companions of Ernesto de la Cruz

forcibly took your husband, what happened next?
A They shot him, sir.

Q Who shot him?

A Ernesto de la Cruz shot him first then followed his
two companions, sir.

Q Before this incident happened do you know already

Ernesto de la Cruz?
 A I know him because he is the second degree cousin
of my husband, sir.

Q If that Ernesto de la Cruz is in court, can you point

at him?
A Yes sir. (Witness pointed to the person who stood
up and gave his name, Ernesto de la Cruz).

Q And if these two other companions of Ernesto de la

Cruz are in court, can you point to them?
A Yes, sir.

Q Are they in court?

A None, sir.

COURT:

Proceed.

FISCAL UNCIANO:

Q After Ernesto de la Cruz and his two other

companions, shot your husband, what happened
next?
A After shooting him, they left, sir.[34]

Zenaida's simple and straightforward answers to

the questions bespeak of an honest intention to
reveal the truth. This explains why the trial
court found her a credible witness and gave her
testimony full faith and credit. Nevertheless, to
satisfy questions on Zenaida's credibility and
that of her testimony, each and every contention
of appellant in his brief shall be discussed.

In assailing her credibility, appellant capitalizes

on the following portion of her testimony:
Q Is it not a fact that you are pointing Ernesto de la
Cruz because you don't like him or hate him?
A Yes, sir, because we have a land dispute.

COURT:

Proceed.

FISCAL UNCIANO:

Q And because of this land dispute, you are pointing

at him as [the] one who killed your husband?
A I saw him, sir.

Q Why do you say that?

A He was always quarrelling my husband before
because of that land dispute, sir.[35] (Italics
supplied.)

In interpreting this portion of Zenaida's

testimony, appellant contends that Zenaida
pointed an accusing finger at him simply
because he and her husband had a land dispute
and not because she saw appellant shoot
Aurelio. However, Zenaida's testimony should
be considered and calibrated in its entirety and
not by truncated portions thereof or isolated
passages therein.[36] Taken in the context of her
whole testimony, Zenaida's avowed admission
of her hatred of appellant did not mean that she
singled him out as the assailant because of the
land dispute and not because she saw him shoot
her husband. On the contrary, her manifest
hatred for appellant on account of the land
dispute did not deter her from telling the truth.
Otherwise, she would not have admitted in
testimony a fact which would cast a doubt on
her sincerity.

It should be noted that Zenaida was an illiterate

witness[37] and, hence, her testimony must be
treated with the broadest understanding without
in any way sacrificing the quest for truth. As
this Court once said, when an unlettered person
testifies, inconsistencies in her testimony may
be disregarded without impairing her credibility.
[38]
Thus, it is most unfair for appellant to say
that Zenaida merely "assumed" that appellant
was the killer because "he was the only one she
knew who had a misunderstanding with her
husband."[39] Under the facts on record,
Zenaida's guileless testimony shows that she did
witness how appellant shot her husband.

In describing Zenaida's testimony as "shifting,"

appellant points out an inconsistency between
her testimony, on the one hand, and her
declarations during the preliminary investigation
at the municipal trial court, as well as her sworn
statement, on the other hand, as to how she was
able to see appellant. In her testimony, she said
that she was beside their stairs, about two
meters away from appellant when she saw him,
while during the preliminary investigation she
stated that she peeped through the window. This
alleged inconsistency, however, is a trivial one
that does not detract from the fundamental fact
that Zenaida was able to see and identify
appellant as one of the persons who killed her
husband. It was established during trial that
Goze's house was a small one and therefore the
probability that the stairs were beside the
window and that she saw appellant through both
apertures cannot be discounted.

Moreover, declarations at the preliminary

investigation which are conducted to determine
the existence of a probable cause and to secure
the innocent against hasty, malicious and
oppressive prosecution,[40] should not be equated
with testimonies before the court. Probable
cause merely implies probability of guilt and
should be determined in a summary manner.[41]
While the transcripts of a preliminary
investigation may form part of the records of the
case, testimony taken at the trial on the merits of
the case where the adverse party has the full
opportunity to cross-examine the witness and to
ferret out the truth, deserves more credence.
Similarly, as this Court has held a number of
times, sworn statements that are taken ex parte,
are generally incomplete and therefore,
discrepancies between statements made on the
witness stand and those in an affidavit do not
necessarily discredit the witness. Affidavits are
generally subordinated in importance in open
court declarations because they are oftentimes
not in such a state as to afford him a fair
opportunity of narrating in full the incident
which has transpired.[42]

Appellant asserts that Zenaida could not have

seen what she claimed she saw because she was
very nervous. To prove this point, appellant
quotes this portion of her cross-examination:
Q And at that time you were frightened and you went
for a personal necessity and you immediately
urinate[d] there in your urinating pan?
A Yes, sir.[43]

But the fact that the witness was gripped with

fear does not prove he failed to recognize the
assailants.[44]

Now to the issue of illumination of the crime

scene. Appellant asserts that while Zenaida
testified that the house was already lighted, she
subsequently testified that she lighted a lamp
thereby contradicting her first statement.

The issue of illumination of the crime scene or

visibility is indeed indispensable in the
identification of a criminal offender.[45]
However, contrary to appellant's allegation, it
was established without contradiction that there
was sufficient light to enable Zenaida to
recognize appellant.

Zenaida testified that their house was lighted

when two intruders kicked open its door. The
same light allowed her to recognize appellant
who was downstairs.[46] When the court asked
her what she did when appellant and his two
companions brought out her husband and she
answered that she lighted a gas lamp,[47] it did
not necessarily imply that the house was
previously unlighted. Zenaida's answer to the
court's question should be considered in light of
her testimony on cross-examination that she
lighted another lamp which she placed opposite
the stairs.[48] However, when the intruders
dragged her husband downstairs, she took with
her the original gas lamp.[49]

That Zenaida was able to recognize appellant by

the light of the gas lamp is not farfetched. This
Court has ruled that illumination produced by a
kerosene lamp, like a "gasera” or "lampara" is
sufficient for the identification of persons.[50]
Identification was, likewise, facilitated by the
fact that Zenaida was familiar with the features
of appellant who was her husband's cousin.
Thus, in one case, the Court held that the
distance of 40 to 45 meters of the witness from
the crime scene, taken by itself, may lead the
Court to entertain doubts on the accuracy of
what a witness has observed but once a person
has gained familiarity with another,
identification becomes quite an easy task even
from a considerable distance.[51] That the crime
transpired at night is immaterial because
Zenaida first saw appellant when he was barely
two (2) meters away from her.
It was, therefore, unnecessary for the defense to
belabor the point that the crime happened
outside the lighted house under a moonless
night, in an effort to contradict Zenaida's
testimony regarding the position of the moon in
relation to her.[52] In fact, appellant, for the first
time, submitted before this Court a certification
from the Philippine Atmospheric Geophysical
and Astronomical Services Administration
(PAGASA) to the effect that at 11:00 p.m. of
November 2, 1991 "there was no moon in the
sky for an observer situated at Brgy. Taligan,
Gattaran, Cagayan" because the last quarter
occurred at 3:10 p.m. on October 30, 1991 and
the new moon at 7:11 p.m. on November 6,
1991.[53] Suffice it to say that to admit that
certification as a piece of evidence this late in
the proceedings would be most unfair to the
prosecution which was not given an opportunity
to examine its contents and rebut them. The
Rules of Court and jurisprudence decree that
"(t)he court shall consider no evidence which
has not been formally offered.[54] But even if we
are to take judicial notice of the laws of nature
as evidenced by the certification,[55] the fact is,
moon or no moon, the witness identified
accused as the assailant by other means to the
satisfaction of the Court.

Zenaida was thus able to observe how her

husband was shot at a distance of thirty (30)
meters with only the light from the gas lamp
aiding her vision. She testified that as soon as
the malefactors had taken her husband to a
distance of around thirty meters from their
house, appellant shot him and appellant's
companions followed suit. No one of the three
malefactors, most especially appellant, even
tried to dissuade his companions from
committing the crime. Zenaida's unrebutted
testimony, consequently, proves beyond a
shadow of doubt that conspiracy attended the
commission of the crime. For conspiracy to
exist, it is not required that there be an
agreement for an appreciable period prior to the
occurrence; it is sufficient that at the time of the
commission of the offense, all the accused had
the same purpose and were united in its
execution.[56] Where the acts of the accused
collectively and individually demonstrate the
existence of a common design towards the
accomplishment of the same unlawful purpose,
conspiracy is evident.[57]

Appellant contends that there are "too many

blanks" in Zenaida's testimony.[58] He argues
that despite the intrusion of armed men into
their house and the abduction of her husband,
the fact that she remained inside her house and
waited until morning before attending to the
body of her dead husband, strengthens the
proposition that she could not have seen how the
crime was perpetrated.

In support of his contention that Zenaida could

not have observed the commission of the crime,
appellant argues that the extension of the house
called pataguab was an enclosed place.[59] That
contention, however, is not supported by
evidence. Appellant merely inferred it from
Zenaida's testimony that the extension had a
door distinct from the door of the main house.[60]
However, if appellant's penchant for inferences
were to be pursued, it is not remote to similarly
infer that the extension might have had an
"entrance" that was not necessarily blocked by a
door or that its wall would not obstruct the view
outside the house on account of the established
fact that the Goze's kitchen had no walls.[61]

Zenaida's behavior of leaving her husband

unattended after he was shot is not contrary to
human experience and would not necessarily
imply that she did not see her husband being
shot.[62] Not every witness to a crime can be
expected to act reasonably and conformably to
the expectations of everyone.[63] Different
persons have different reactions to similar
situations.

As the defense insinuated at the trial, Zenaida

could not have positively identified appellant
because she was then so nervous that she even
urinated. A nerve-wracking experience would
not necessarily cause blockage of vision. On the
contrary, the witness would focus his attention
on the unusual occurrence creating an indelible
impression in the mind that the witness can
recall vividly.[64]

Zenaida's failure to go down to the yard to

attend to her husband after he was shot was not
without reason. She naturally feared for her life
and those of her children that she opted to
remain inside her house.

That no complaint was lodged against

appellant's companions despite Zenaida's
certainty that she could recognize them does not
affect her credibility.[65]

Failure of the police and the prosecution to

apprehend the malefactors should not be taken
against Zenaida. It was not her fault that
appellant's companions have remained at large.

The question of whether or not she in fact

revealed the identities of the malefactors when
the barangay captain and the soldiers went to
her house the day after the commission of the
crime is a matter that was sufficiently proved
during trial. Zenaida testified to the effect that
she informed the investigating authorities that
appellant was one of the perpetrators of the
crime. If indeed she kept mum about the identity
of her husband's killer, that was not an unnatural
reaction. Fear for one's life is a valid
explanation for a witness' failure to immediately
notify the authorities of the identity of the
malefctors. Such failure does not necessarily
affect, much less, impair the credibility of the
witness.[66] At any rate, SPO4 Franklin Tagupa
would not have a reason to investigate appellant
the day after the commission of the crime if
Zenaida had not, in fact, revealed his identity as
one of the malefactors.
Appellant's contention that the prosecution's
omission to present an autopsy report, ballistic
examination report and other reliable scientific
reports to match physical evidence with
Zenaida's testimony constituted "loose ends"
that derailed the prosecution's case[67] is devoid
of merit. Those reports would have been
indispensable had there been no credible
eyewitness to the crime as they would only be
corroborative in nature. Thus, the non-
presentation of the weapon in a murder case is
not fatal to the prosecution's case because of the
positive identification of the accused by an
eyewitness.[68] The prosecution has established
beyond reasonable doubt, through the credible
testimony of Zenaida, the identity of that
appellant as one of the perpetrators of the crime.
Because of the positive identification by
Zenaida, appellant's alibi and denial were
rendered unworthy of credit.[69] Moreover,
appellant's alibi was not established in
accordance with law. It is well-settled that in
order for an alibi to prevail, the defense must
establish by positive, clear and satisfactory
proof that it was physically impossible for the
accused to have been at the scene of the crime at
the time of its commission, and not merely that
he was somewhere else.[70] As borne out by the
records, the defense was not able to prove that it
was physically impossible for appellant to have
been at the crime scene. Appellant was allegedly
in Barangay Sidem which is located in the same
municipality of Gattaran, the site of the crime.
The fact that the crime scene and the place
where appellant claimed to be at during the
crucial days of the perpetration of the crime are
shown by appellant's own admission that he
allegedly heard the gunshot that killed Aurelio.

Another effort at exculpation, appellant points

to Lt. Ileto and Sgts. Ibujo (Ebojo) and Cauilan
as the perpetrators of the crime. He contends
that Emiterio Domingo and Eduardo Suldan
would not have risked their lives in executing
affidavits against those police officers or
soldiers if they were not telling the truth.[71]
However, a scrutiny of their affidavits and
Suldan's testimony betrays their hollowness. It
is simply illogical and incredible that they
would be invited by the three police officers to
witness a murder.

Appellant now rues the fact that the prosecution

"never so much as tried to disprove the
existence of Lt. Hercules Ileto."[72] The
prosecution was not bound to disprove a fact
that was not, in the first place, satisfactorily
established. While it may be true that those
persons indeed exist, this fact was for the
defense to establish.

But that is as far as this Court is willing to agree

with the decision of the regional trial court. On
the second assigned error, the Court is
convinced by appellant's plea that the crime is
merely homicide aggravated by the
circumstance of abuse of superior strength,
which circumstance was not alleged in the
information but nevertheless proved during trial.
The qualifying circumstance of treachery was
not established. There is treachery when the
offender commits any of the crimes against
persons, employing means, methods or forms in
the execution thereof which directly and
specially to insure its execution, without risk to
himself arising from the defense which the
offended party might make.[73] Two things must
be proved: 1) the employment of means of
execution that gives the victim no opportunity to
present a defense; 2) the means and mode of
attack must be consciously adopted.[74]

Treachery cannot be presumed. It is necessary

that the existence of the qualifying circumstance
should be proven as fully as the crime itself.[75]
In the case at bar, there is no proof that the
execution or mode of attack was consciously
adopted.[76] According to the testimony of the
widow, the armed men were first looking for
rice before they barged into their house. It is,
therefore, possible that the decision to shoot the
victim was a spur of the moment resolution,
sudden and unexpected. In view of the paucity
of evidence to prove the contrary, this Court
cannot sustain a finding of the existence of
treachery.

The prosecution has sufficiently established the

existence of the aggravating circumstance of
abuse of superior strength. What should be
considered is not that there are three, four or
more assailants against one victim, but whether
the aggressors took advantage of their combined
strength in order to consummate the offense.[77]
It is indispensable for the prosecution to show
that the attackers cooperated in such a way as to
secure advantage of their superiority in strength.
In this case, the number of attackers, the fact
that they were armed, the number and extent of
gunshots sustained by the victim and the manner
of the killing confirm the presence of this
aggravating circumstance.

The Court, likewise, agrees with appellant that

evident premeditation was not satisfactorily
proven in this case. Neither was the generic
aggravating circumstance of nighttime
established by the prosecution. For nocturnity to
be considered as aggravating circumstance, the
accused must intentionally seek the cover of
darkness for the purpose of committing the
crime. If the place is lighted well enough for the
offenders to be recognized, nocturnity or
nighttime cannot be said to be an aggravating
circumstance.[78]

The killing, not being qualified by anyone of the

circumstances alleged in the information, the
crime committed is Homicide punishable under
Article 249 of the Revised Penal Code by
Reclusion Temporal. With the presence of the
generic aggravating circumstance of abuse of
superior strength and the application of the
Indeterminate Sentence Law, the proper
imposable penalty is an indeterminate sentence
of Prision Mayor, as minimum to the maximum
of reclusion temporal, as maximum. The award
of P50,000.00 as civil indemnity was correctly
granted by the trial court considering that civil
indemnity is automatically imposed upon the
accused without need of proof other than the
fact of the commission of the crime. The
presence of one aggravating circumstance does
not only warrant imposing penalty in its
maximum period but justify as well the award of
exemplary damages pursuant to Art. 2230 of the
Civil Code. The amount of P20,000 is
reasonable.[79] An award of P50,000 as moral
damages is also justified as provided in Art.
2217 of the Civil Code. The victim's death
caused his family mental anguish and serious
anxiety.[80]

With respect to the third assigned error, the trial

court's ruling that appellant should serve the
corresponding penalty and pay damages to the
victim's heirs but "with prejudice against the
grant of parole or pardon," is totally uncalled
for. It is the President’s prerogative whether or
not to pardon or parole, but subject to the
limitations imposed by the Constitution.[81]

The manner by which counsel de oficio

presented with zeal before this Court appellant's
plea for exoneration is laudable. He deserves
commendation from this Court. It should be
emphasized, however, that criminal cases are
not resolved on the vigor of appellant's plea for
exculpation in the face of proof beyond
reasonable doubt, established by the prosecution
that the accused is the perpetrator of the crime.

WHEREFORE, the Decision in Criminal Case

No. 09-734 of the Regional Trial Court of
Cagayan, Branch 9, is hereby AFFIRMED with
the modification that appellant is found guilty of
the crime of HOMICIDE, aggravated by abuse
of superior strength, and is hereby sentenced to
suffer an indeterminate prison term from 12
years of prision mayor, as minimum, to 20 years
of reclusion temporal, as maximum. Accused is
further ORDERED to indemnify the heirs of
Aurelio Goze in the amount of P50,000.00 as
indemnity, P50,000.00 as moral damages and
P20,000.00 as exemplary damages. The
provision disqualifying appellant from executive
clemency is deleted.

Let a copy of this Decision be furnished the

Department of Interior and Local Govenments
and the Department of Justice in order that
appellant's co-conspirators shall be apprehended
and brought to Court to stand trial. Costs de
oficio.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Pardo, and

Ynares-Santiago, JJ., concur.

[1]
Presided by Judge Emerito M. Agcaoili.
[2]
Rollo, p. 8.
[3]
Records, p. 22.
[4]
Id., at 23.
[5]
Id., at 26.
[6]
Id., at 58.
[7]
Exhibit 2.
[8]
Exh. 1.
[9]
Id., at 73.
[10]
Id., at 85.
[11]
TSN, August 11, 1993, pp. 4-9.
[12]
TSN, August 4, 1993, pp. 6-13; August 11,
1993, pp. 16-18.
[13]
TSN, August 4, 1993, pp. 14-15.
[14]
Id., at 17-19.
[15]
TSN, August 3, 1993, pp. 7-10.
[16]
Exh. A.
[17]
Exh. B.
[18]
TSN, December 8, 1993, pp. 6-7, 22.
[19]
Id., at 16-18, 21.
[20]
Id., at 20.
[21]
Id., at 11.
[22]
Exh. 2.
[23]
Exh. 1.
[24]
TSN, December 8, 1993, p. 28.
[25]
TSN, November 9, 1993, pp. 5-15.
[26]
TSN, October 13, 1993, pp. 6-16.
[27]
Id., at 19-21.
[28]
RTC Decision, p. 3; Rollo, p. 28.
[29]
Frank Y. Tan of Tañada, Vivo & Tan.
[30]
People v. Lascota, 275 SCRA 591, 600
(1997); People v. Camat, 256 SCRA 52 (1996).
[31]
Ibid.
[32]
People v. Victor, 292 SCRA 186, 194 (1998);
[33]
See: People v. Compendio, Jr., 327 Phil. 888,
895-896 (1996).
[34]
TSN, August 4, 1993, pp. 6-9.
[35]
TSN, August 4, 1993, pp. 11-12.
[36]
People v. San Gabriel, 323 Phil. 102, 113
(1996); People v. Natan, 193 SCRA 355 (1991);
People v. Laredo, 185 SCRA 383 (1990).
[37]
TSN, August 11, 1993, p. 24.
[38]
People v. Salvatierra, 276 SCRA 55, 68
(1997).
[39]
Appellant's Brief, pp. 15-16.
[40]
Drilon v. Court of Appeals, 327 Phil. 916,
922 (1996).
[41]
Webb v, Hon. De Leon, 317 Phil. 758, 789
(1995).
[42]
People v. Leangsiri, 322 Phil. 226, 251
(1996) citing People v. Sarellana, 233 SCRA 31
(1994).
[43]
TSN, August 11, 1993, p. 3.
[44]
People v. Madera, 57 SCRA 349 (1974).
[45]
People v. Mendoza, 324 Phil. 273, 289
(1996).
[46]
TSN, August 4, 1993, p. 7.
[47]
Ibid.
[48]
TSN, August 11, 1993, pp. 16-17.
[49]
Id., at 14.
[50]
People v. Quiamco, 335 Phil. 988, 1002
(1997).
[51]
People v. Castillo, 330 Phil. 205, 213-214
(1996).
[52]
TSN, August 11, 1993, pp. 19-20.
[53]
Rollo, p. 177.
[54]
Republic v. Sandiganbayan, 325 Phil. 762,
787 (1996) citing Section 34, Rule 132 of the
Rules of Court and Veran v. Court of Appeals,
157 SCRA 438 (1988); De los Reyes v. IAC,
176 SCRA 394 (1989); People v. Cariño, 165
SCRA 664 (1988).
[55]
People v. Madera, 57 SCRA 349, 354
(1974).
[56]
People v. Hubilla, Jr., 322 Phil. 520, 532
(1996).
[57]
People v. Gregorio, 325 Phil. 689, 707
(1996) citing People v. Carizo, 233 SCRA 687
(1994).
[58]
Appellant's Brief, p. 30.
[59]
Appellant's Brief, p. 33.
[60]
Ibid.
[61]
TSN, August 11, 1993, p. 19.
[62]
Appellant's Brief, p. 36.
[63]
People v. Letigio, 335 Phil. 693, 705 (1997).
[64]
People v. De Guia, 280 SCRA 141, 155
(1997).
[65]
Appellant's Brief, p. 40.
[66]
People v. Herbieto, 269 SCRA 472, 480
(1997).
[67]
Appellant's Brief, pp. 53-54.
[68]
People v. Padao, 334 Phil. 726, 737 (1997).
[69]
People v. Herbieto, supra.
[70]
People v. Dinglasan, 334 Phil. 691, 708
(1997).
[71]
Appellant's Brief, p. 92.
[72]
Ibid, p. 87.
[73]
People v. Lacao, Sr., 301 SCRA 317, 330
(1991); People v. Aquino, 284 SCRA 369
(1998).
[74]
People v. Talavar, 230 SCRA 281, 288
(1994); People v. Reyes, 287 SCRA 229 (1998).
[75]
People v. Lubreo, 200 SCRA 11, 28 (1991).
[76]
People v. Chua, 297 SCRA 229 (1998).
[77]
People v. Gelera, 277 SCRA 450, 459
(1997).
[78]
People v. Pelones, 230 SCRA 370, 390
(1994).
[79]
People v. Gutierrez, Jr., 302 SCRA 643
(1999).
[80]
TSN, August 4, 1993, pp. 29-33.
[81]
Section 19, Article VII of the 1987
Constitution states: Except in case of
impeachment, or as otherwise provided in this
Constitution, the President may grant reprieves,
commutations, and pardons, and remit fines and
forfeitures, after conviction by final judgment.

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