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PHILIPPINE SUPREME COURT DECISIONS

SECOND DIVISION

[G.R. Nos. 81249-51. May 14, 1990.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. EDILBERTO LAREDO alias "Peter," WILFREDO LUMINATE alias "Eding," ABELARDO LUMINATE alias "Beling," and NARCISO DALISAY alias "Bebot", Accused, EDILBERTO LAREDO alias "Peter," NARCISO DALISAY alias "BEBOT," Accused-Appellants.

The Solicitor General for Plaintiff-Appellee.

Honofre Restor for Accused-Appellants.


SYLLABUS


1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF VICTIM’S TESTIMONY; NOT AFFECTED BY MINOR INCONSISTENCIES. — But even assuming the accuracy of the alleged contradictions between Rodelito’s oral testimony and his Affidavit, they do not detract from the credibility of the victim’s testimony in its totality. It is a matter of judicial experience that an affidavit, being taken ex-parte is almost always incomplete and often inaccurate, sometimes from partial suggestions, sometimes for want of suggestions and inquiries, without the aid of which the witness may be unable to recall the connected collateral circumstances necessary for the correction of the first suggestions of his memory and for his accurate recollection of all that belongs to the subject (People v. Virgilio Pasco y Santos, Et Al., G.R No. 68520, January 22, 1990; People v. Baybayon, Et Al., G.R. No. 49856, April 3, 1990). And as far as the inconsistencies are concerned, they actually refer to minor details which neither affect Rodelito’s credibility.

2. ID.; ID.; DYING DECLARATION; CONSIDERED PART OF RES GESTAE AND ADMISSIBLE IN CASE AT BAR. — Accused-appellants further allege that the dying declaration is not worthy of credit because it was motivated by passion, anger or a desire for revenge because Bernabe had a bolo fight with Efren Laredo, brother of Peter earlier that same day. This is unmeritorious. If Bernabe’s motive were only for revenge, he would have named Efren Laredo alone as his assailant instead of his brother Peter. When a person is at the point of death, every motive for falsehood is silenced, and the mind induced by the most powerful consideration to speak the truth, and therefore his statements, under such circumstances, deserve great weight. Here, the victim made his statement before he died with full knowledge that he was fatally injured. There is nothing to show that the utterance is unreliable or that the declarant is not worthy of trust. Hence, the dying declaration is admissible (People v. Diaz, G.R. No. 75433, November 9, 1988, 167 SCRA 239). And even if not strictly an ante-mortem statement, it could still be considered, at the very least, part of the res gestae and, therefore, admissible in evidence.

3. ID.; ID.; NUMEROUS WOUNDS IN THE BODY OF THE VICTIM INDICATES PLURALITY OF ASSAILANT. — Accused-appellant Peter Laredo contends that he alone inflicted the injuries on the victims in self-defense. That assertion is belied not only by the contrary declarations of Rodelito but also by the physical conditions of the victims. Those victims sustained numerous serious and fatal wounds. Surely, all of those could not have been inflicted by Peter alone. The inescapable conclusion is that Peter was not the lone assassin. As this Court has had occasion to hold, numerous wounds in the body of the victims indicate plurality of assailants (People v. Orongan, G.R. No. L-32751, December 12 1988, 168 SCRA 586). Aside from the fact that the version of self-defense is not supported by any other evidence; it is beyond human credulity that Peter did not suffer any injury, considering that he was allegedly assaulted simultaneously by at least four men with handgun and bolos (People v. Maranan, G.R. Nos. L-47228-32, December 15, 1986, 146 SCRA 243).

4. ID.; ID.; ALIBI; CANNOT PREVAIL OVER THE POSITIVE IDENTIFICATION OF THE ACCUSED. — The positive identification of the accused being decisive, the defense of alibi cannot assume importance in the case at bar. Rodelito positively identified Narciso as one of those who assaulted him. It was neither physically impossible for the accused to be at the house of the Balins where the incident occurred as said house is only three (3) kilometers from the house of Inocentes Laredo (People v. Aboga, G R. No. 70255, January 29, 1987, 147 SCRA 404).

5. ID.; ID.; PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF OFFICIAL DUTY SUSTAINED. — The testimony of Pat. Laredo that accused-appellant Narciso told him that he had nothing to do with the incident is self-serving; while that of Mansueta Latuza that Narciso was in their house throughout the evening of the incident, cannot prevail over the official entry made in the course of the performance of a duty. It is also presumed that official duty has been regularly performed (sec. 5 (m), Rule 131, Rules of Court). The fact that Pat. Dimalaluan was not presented by the prosecution to testify to the accuracy and correctness of the entry on the police blotter is of no moment as the witness was available to both parties (People v. Caragao, G.R. No. L-28258, December 27, 1969, 30 SCRA 993). Besides, Accused-appellant Narciso has not shown any ill-motive why Pat. Dimaluluan would make an erroneous entry in the police blotter falsely implicating him.

6. CRIMINAL LAW; MURDER; TREACHERY; PRESENT IN CASE AT BAR. — Treachery exists when the offender commits any crime against persons, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from any defense which the offended party might make (People v. Rojas, G.R. Nos. L-46960-62, January 8, 1987, 147 SCRA 169). The fact that accused-appellants threw stones at the victim’s house before they went up, would not negate the treacherous character of the assault. The victims were told to raise their hands before they were attacked, thus insuring the killing without any risk to the assailants. (People v. Ricohermoso, G.R. Nos. L-30527-28, March 29, 1974, 56 SCRA 431).

7. ID.; CONSPIRACY; ESTABLISHED IN CASE AT BAR. — That there was conspiracy is shown by the concerted efforts of accused-appellants to injure and liquidate the victims. Each performed his role towards that end. They were together at the scene of the crime and left the place at the same time, which are further indicia of conspiracy (People v. Cagod, G.R. No. L-36016, January 18, 1978, 81 SCRA 110).

8. ID.; AGGRAVATING CIRCUMSTANCES; EVIDENT PREMEDITATION; APPRECIATED IN CASE AT BAR. — No error either was committed by the lower Court in appreciating the circumstance of evident premeditation for, as it opined, "there is ample evidence of how and why the crime was planned and sufficient time (from 6:00 PM to 9:00 PM) to plan and reflect on the commission of the crime."cralaw virtua1aw library

9. ID.; MITIGATING CIRCUMSTANCES; LACK OF MOTIVE TO KILL; NOT APPRECIATED IN CASE AT BAR. — The defense that accused-appellants lacked motive to commit the crime against the victims is belied by the fact that earlier, or at 5:00 o’clock in the afternoon on the same date of the incident, there was a bolo fight between Efren Laredo, brother of Peter, and the victim Bernabe, over a carabao, during which Efren hacked Bernabe with a bolo but which the latter successfully parried, and Efren himself was hit on the hand instead. Sufficient motive to avenge the injury sustained by Efren Laredo, therefore, existed.

10. ID.; FRUSTRATED MURDER; IMPOSABLE PENALTY; APPLICATION OF INDETERMINATE SENTENCE LAW. — The indeterminate sentence for the crime of Frustrated Murder, however, has to be modified. The imposable penalty under Article 50 of the Revised Penal Code is prision mayor, maximum, to reclusion temporal, medium, the same to be applied in its medium, period, or from twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. Applying the Indeterminate Sentence Law, the penalty should be within the range of prision correccional, maximum, to prision mayor, medium.


D E C I S I O N


MELENCIO-HERRERA, J.:


Under the attendant facts and circumstances of the case, we affirm the judgment of the Court a quo finding accused-appellants, Edilberto Laredo and Narciso Dalisay, guilty of two separate crimes of Murder for which they were individually sentenced to two (2) separate penalties of reclusion perpetua, and of Frustrated Murder for which each was penalized with indeterminate sentences.

Actually, four (4) accused were involved, namely, Edilberto Laredo alias "Peter," Narciso Dalisay alias "Bebot," and the brothers Abelardo Luminate alias "Beling" and Wilfredo Luminate alias "Eding." They were jointly charged with two separate crimes of Murder and one separate crime of Frustrated Murder before the Regional Trial Court of San Jose, Occidental Mindoro, Branch 45. 1 The Informations in the three criminal cases read as follow:chanrobles virtual lawlibrary

In Crim. Case No. R-1406

"That on or about the 13th day of May, 1981, in Sitio Mangat, Barangay San Pedro, Municipality of Rizal, Province of Occidental Mindoro, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conspiring and confederating together and helping one another, did then and there willfully, unlawfully and feloniously, with treachery and evident premeditation, attack, assault and stab and wound with sharp bladed weapons one Bernabe Balin, thereby inflicting upon him serious and mortal wounds which caused his untimely death.

"That by reason of the unlawful acts of the accused, the legal heirs of said Bernabe Balin, suffered actual, compensatory and moral damages and for which they should be indemnified in the amount of not less than P12,000.00, Philippine currency.

"CONTRARY TO LAW."cralaw virtua1aw library

In Crim. Case No. R-1407

"That on or about the 13th day of May 1981, in Sitio Mangat, Barangay San Pedro, Municipality of Rizal, Province of Occidental Mindoro, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conspiring and confederating together and helping one another, did then and there willfully, unlawfully and feloniously, with treachery and evident premeditation attack, assault and stab and wound with sharp bladed weapons one Wilky Rodas, thereby inflicting upon him serious and mortal wounds which caused his untimely death.

"That by reason of the unlawful acts of the accused, the legal heirs of said Wilky Rodas suffered actual, compensatory and moral damages and for which they should be indemnified in the amount of not less than P12,000.00, Philippine currency.

"CONTRARY TO LAW."cralaw virtua1aw library

In Crim. Case No. R-1435

"That on or about the 13th day of May 1981, in Sitio Mangat, Barangay San Pedro, Municipality of Rizal, Province of Occidental Mindoro, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conspiring and confederating together to kill, did then and there willfully, unlawfully and feloniously, with treachery and evident premeditation, attack, assault and use personal violence upon Rodelito Balin, by then and there hacking him with sharp bladed weapon and throwing at him big stone, thereby inflicting upon him serious wounds on the back and on the head, which ordinarily would have caused his death, thereby performing all the acts of execution which would have produced the crime of murder as a consequence. Without however, producing said crime by reason of causes independent of the will of the accused, that is, the timely and able medical attendance rendered to said Rodelito Balin which prevented his death.

"That as a consequence of the unlawful acts of the accused, Rodelito Balin suffered actual, compensatory and moral damages and for which he should be indemnified in the amount of not less than P1,000.00, Philippine currency.

"CONTRARY TO LAW."cralaw virtua1aw library

Upon arraignment, all the accused entered pleas of "Not Guilty" to each of the aforesaid crimes charged. The three cases were then jointly heard on the merits.

The prosecution evidence, as narrated by the Solicitor General, is as follows:jgc:chanrobles.com.ph

"At about 9:00 o’clock in the evening of May 13, 1981, Rodelito Balin together, with his brother Bernabe Balin and his cousin Wilky Rodas, was at their house located in a hill at Sitio Mangat, Rizal, Occidental Mindoro. They were then lying down at the balcony or veranda of their house. Suddenly, their house was stoned many times by a group of persons. Thereafter, Accused Edilberto ‘Peter’ Laredo, Wilfredo ‘Eding’ Luminate, Abelardo ‘Beling’ Luminate and Narciso ‘Bebot’ Dalisay went up to the Balin’s house. Rodelito Balin has known Peter Laredo for a long time, he being a barrio mate of Rodelito. The latter also knew Wilfredo and Abelardo Luminate, who often visited their barrio. Rodelito personally knows Narciso Dalisay, who was a classmate of his (pp. 4-8, tsn., April 1, 1982; pp. 7-9, tsn., June 16, 1932).

"After all the accused went up the Balin’s house, Beling Luminate ordered Rodelito and Bernabe Balin and Wilky Rodas to raise their hands, which they obeyed. When Wilky Rodas raised his hand, he was hacked by Peter Laredo on the left hand. Beling Luminate then stabbed Bernabe Balin, followed by Eding Luminate who struck Bernabe with a piece of wood. Peter Laredo then hacked Bernabe Balin and Wilky Rodas at the back. Then Beling Luminate approached Wilky Rodas and Bernabe Balin and stabbed them. Bernabe Balin was hit in the stomach and back. Bebot Dalisay thereafter threw a stone at Bernabe Balin who was hit at the back. Thereafter, Peter Laredo hacked Rodelito Balin at the back. Rodelito ran away. Bebot Dalisay then threw a stone at Rodelito who was hit on the head, causing him to stumble and lose consciousness (pp. 9-14, TSN, April, 1982).

"Meanwhile, at about the same time and place, Jaime Carino was at his house which was near the house of Bernabe Balin. The family of the Laredos, some of whom he recognized as Peter Laredo, Eding Luminate, Bebot Dalisay, Beling Luminate and several others, arrived and stoned his house. Than the Laredos proceeded to the house of Bernabe Balin. Jaime Carino then heard the shouts of Bernabe Balin and Wilky Rodas (p. 15-16, TSN, July 22, 1982).

"After several minutes, Bernabe Balin arrived at the house of Jaime Carino. He noticed Bernabe Balin to have sustained several stab and hack wounds. The latter told Carino that the accused were responsible for inflicting the wounds on his person. Carino gave Bernabe Balin water to drink. After about an hour later, Bernabe Balin expired (pp. 16-17, TSN, July 22, 1982).

"As a consequence of the wounds inflicted by the accused, Wilky Rodas also died, while Rodelito Balin sustained several serious injuries (Exhs.’B’ and ‘G’)" (pp. 8-11, Brief for the Appellee).

Upon the other hand, Accused-appellant Edilberto "Peter Laredo contends that he was the only one who had inflicted injuries upon the victims, but that he had acted in complete self-defense. He claims that while he was in Sitio Mangat with his brother Alfredo, two persons blocked their way and hit him with a stone. While he was chasing those persons who stoned them, two more persons suddenly appeared. One of them fired and shot at him but failed to hit him. Then said person ran away. The three other persons had their bolos with them. One of them then hacked him but he was able to defend himself with his bolo and knife, being familiar with the act of self-defense or "arnis." The next person fell after stabbing and hacking him. The third person ran but he was able to hit him at the back. Thereafter, he proceeded to the Rizal police station where he surrendered himself. He came to know the names of the victims only after the investigation.chanrobles.com:cralaw:red

The accused brothers, Wilfredo and Abelardo Luminate, denied any participation in the incident.

Accused-appellant, Narciso Dalisay, also denied participation in the crimes charged and interposed the defense of alibi. Narciso contends that at about 6:00 in the evening of 13 May 1981, he went to the house of Inocentes Laredo, his landlord. He talked to Inocentes up to 7:00 and then slept there. His testimony was substantially corroborated by Mansueta Latuza. The following morning, he was invited by Station Commander Avelino Pacaul to the Police Station in Sudlon, Rizal, where Rodelito Balin implicated him in the incident.

On 1 July 1987, the Trial Court rejected the protestation of innocence of the accused and rendered judgment, with the following decretal portions:jgc:chanrobles.com.ph

"WHEREFORE, in view of the foregoing considerations, judgment is hereby rendered as follows:jgc:chanrobles.com.ph

"1. In Criminal Case No. R-1406, the court finds the accused Edilberto Laredo alias ‘Peter’, Wilfredo Luminate alias ‘Eding’, Abelardo Luminate alias ‘Beling’ and Narciso Dalisay alias ‘Bebot’ GUILTY beyond reasonable doubt as principals of the crime of Murder with the attendant circumstance of treachery, defined by Article 248 of the Revised Penal Code and punished by reclusion temporal in its maximum period to death - the maximum penalty of death, however, is now abolished by the New Constitution. There being one aggravating circumstance of evident premeditation and one mitigating circumstance of voluntary surrender to offset the same, the penalty should be imposed in the medium period which is reclusion perpetua.

"In view thereof, the Court hereby sentences each of the accused Edilberto Laredo alias ‘Peter’, Wilfredo Luminate alias ‘Eding’, Abelardo Luminate alias ‘Beling’, and Narciso Dalisay alias `Bebot’ to suffer the penalty of RECLUSION PERPETUA, with accessories provided by law; and to indemnify, jointly and severally, the heirs of the deceased Bernabe Balin in the sum of TWELVE THOUSAND PESOS (P12,000.00) without subsidiary imprisonment in case of insolvency.

"The accused shall, however, be entitled to the full term of their preventive imprisonment, provided, that they shall have agreed in writing to abide with the disciplinary rules and regulations imposed on convicted prisoners; otherwise, each of them shall be credited only four-fifth (4/5) of their preventive imprisonment.

"2. In Criminal Case No. R-1407, the Court finds the accused Edilberto Laredo alias ‘Peter’, Wilfredo Luminate alias ‘Eding’, Abelardo Luminate alias ‘Beling’ and Narciso Dalisay alias ‘Bebot’ GUILTY beyond reasonable doubt as principals of the crime of Murder with the attendant circumstance of treachery, defined by Article 248 of the Revised Penal Code and punished by reclusion temporal in its maximum period to death - the maximum penalty of death, however, is now abolished by the New Constitution. There being one aggravating circumstance of evident premeditation and one mitigating circumstance of voluntary surrender to offset the same, the penalty should be imposed in the medium period which is reclusion perpetua.

"In view thereof, the Court hereby sentences each of the accused Edilberto Laredo alias ‘Peter’, Wilfredo Luminate alias ‘Eding’, Abelardo Luminate alias ‘Beling’ and Narciso Dalisay alias ‘Bebot’ to suffer the penalty of RECLUSION PERPETUA with accessories provided by law; to indemnify, jointly and severally, the heirs of the deceased Wilky Rodas in the sum of TWELVE THOUSAND PESOS (P12,000.00) without subsidiary imprisonment in case of insolvency.

"The accused shall, however, be entitled to the full term of their preventive imprisonment, provided, that they shall have agreed in writing to abide with the disciplinary rules and regulations imposed on convicted prisoners; otherwise, each of them shall be credited only four-fifth (4/5) of his preventive imprisonment.

"3. In Criminal Case No. R-1435, the Court finds the accused Edilberto Laredo alias ‘Beling’ and Narciso Dalisay alias ‘Bebot’ GUILTY BEYOND reasonable doubt as principals of the crime of Frustrated Murder with the attendant circumstance of treachery, defined in Article 248 in relation to Article 250, both of the Revised Penal Code and punished one degree lower than that which should be imposed under the provision of Article 50, and that is Prision Mayor in its maximum period to Reclusion Temporal in its medium period. There being one aggravating circumstance of evident premeditation and one mitigating circumstance of voluntary surrender to offset the same, the penalty should be imposed in the medium period which is twelve (12) years, five (5) months and eleven (11) days to fourteen (14) years, ten (10) months and twenty (20) days. Applying, however, the Indeterminate Sentence Law, each of the accused Edilberto Laredo alias ‘Peter’, Wilfredo Luminate alias ‘Eding’, Abelardo Luminate alias ‘Beling’ and Narciso Dalisay alias ‘Bebot’ are hereby sentenced to an indeterminate penalty ranging from TEN (10) YEARS of Prision Mayor as minimum to TWELVE (12) YEARS, FIVE (5) MONTHS and ELEVEN (11) DAYS of Reclusion Temporal as maximum, with accessories provided by law; and to indemnify, jointly and severally, the offended party Rodelito Balin in the sum of ONE THOUSAND PESOS (P1,000.00) without subsidiary imprisonment in case of insolvency.

"The accused shall, however, be entitled to the full term of their preventive imprisonment, provided, that they shall have agreed in writing to abide with the disciplinary rules and regulations imposed on convicted prisoners; otherwise, each of them shall be credited only four-fifth (4/5) of his preventive imprisonment.

"Moreover, the maximum period of service of the above penalties by each of the accused shall in no case exceed forty (40) years, as provided for in Article 70 of the Revised Penal Code.

With costs against the accused in all instances.

SO ORDERED." (pp. 40-42, Decision; pp. 694-696, Original Record).

Assailing their conviction, all the accused filed their appeal Subsequently, the brothers, Accused Wilfredo and Abelardo Luminate, withdrew their appeal which was granted by this Court in the Resolution of 25 July 1988 (Rollo, p. 185). Accused-appellants Edilberto Laredo and Narciso Dalisay filed a Joint Brief. The Errors they have assigned immediately precede the discussions thereon.chanroblesvirtualawlibrary

"I. The lower court erred in holding that the testimony of prosecution witness Rodelito Balin is ‘clear and convincing’ and his declarations are ‘positive and unequivocal’;"

Accused-appellants contend that the testimony of the lone eyewitness, Rodelito Balin, who was himself involved in the incident, is not worthy of belief because his declarations in open court and in his Sworn Statement submitted to support his complaint are filled with contradictions, discrepancies, inconsistencies and improbabilities.

The contention lacks merit.

Accused-appellants point out that Rodelito Balin testified that all the accused went up their balcony and assaulted them. While in his Sworn Statement (Exhibit C, p. 11, Original Record), he declared that it was Peter alone who went up the balcony and hacked Bernabe Balin and Wilky Rodas. As examination of the Affidavit, however, does not show any statement that it was only Peter who went up the balcony.

Accused-appellants also aver that Rodelito said in open Court that Beling Luminate ordered them to raise their hands before they were attacked in the balcony but that in his Sworn Statement, he did not mention that order. Rodelito explained that he told the investigator that they were asked to raise their hands; however, the investigator failed to mention it (TSN, June 17, pp. 2-3).

Accused-appellants further claim that Rodelito Balin stated that Beling Luminate stabbed Bernabe while on the balcony. While in his Sworn Statement, he stated that Beling stabbed Bernabe when the latter was on the ground. The record, however, fails to show that Rodelito testified that Beling stabbed Bernabe while he was on the balcony. Besides, there is a testimony to the effect that while the attack started on the balcony, it was continued on the ground (TSN, April 1, 1982, p. 15; June 16, 1982, pp. 14-15).

Additionally, Accused-appellants point out that Rodelito testified that all the accused participated in killing Bernabe and Wilky. But in his Sworn Statement, he stated that it was Peter alone who killed them using a bolo. A reading of the sworn statement, however, does not indicate that Rodelito stated that Peter alone killed Bernabe and Wilky.

Accused-appellants further aver that Rodelito said that Peter hacked Wilky with a bolo on the left hand while he was raising his hands but the medical certificate shows instead a stab wound on the left forearm, and that the incised wound appears on the right hand. This does not, however, detract from Rodelito’s testimony that Wilky was hacked and sustained serious physical injuries.

Lastly, Accused-appellants assert that Rodelito could not have possibly identified the assailants since it was dark due to the absence of any light in the house of the Balins. It was not so dark, however, because there was moonlight (TSN, June 16, 1982, pp. 15; 33). The incident also occurred at the veranda (TSN, ibid., pp. 7-8). He also recognized the voice of Beling Luminate who told them to raise their hands (TSN, ibid., p. 32).

But even assuming the accuracy of the alleged contradictions between Rodelito’s oral testimony and his Affidavit, they do not detract from the credibility of the victim’s testimony in its totality. It is a matter of judicial experience that an affidavit, being taken ex-parte is almost always incomplete and often inaccurate, sometimes from partial suggestions, sometimes for want of suggestions and inquiries, without the aid of which the witness may be unable to recall the connected collateral circumstances necessary for the correction of the first suggestions of his memory and for his accurate recollection of all that belongs to the subject (People v. Virgilio Pasco y Santos, Et Al., G.R No. 68520, January 22, 1990; People v. Baybayon, Et Al., G.R. No. 49856, April 3, 1990). And as far as the inconsistencies are concerned, they actually refer to minor details which neither affect Rodelito’s credibility.

"II. The lower court erred in holding that the testimony of prosecution witness Jaime Carino corroborated the story of Rodelito Balin that the four accused inflicted the serious wounds on the three victims;"

Accused-appellants assail the admissibility of the dying declaration of Bernabe made to prosecution witness Jaime Carino. It is claimed that the dying declaration is inconsistent with the sworn statement of Rodelito who never said that Eding Luminate stabbed Bernabe. There is no inconsistency. Rodelito did not state categorically that Eding stabbed Bernabe although he was one of the attackers. Besides, what Bernabe said to Jaime Carino before the forman’s death was that Peter, Beling and Eding were responsible for inflicting his wounds (TSN July 22, 1982, p. 17).

Accused-appellants stoutly contend that Bernabe could not have made a dying declaration since he suffered serious and fatal injuries, which precluded him from negotiating the distance to the house of Jaime Carino, much less talk coherently.cralawnad

Jaime Carino testified that Bernabe arrived in his house and told him that accused-appellants were responsible for inflicting his wounds. Thus was corroborated by Rodelito who said that after Bernabe was stabbed, hacked, struck with a piece of wood, and hit with a stone, he was able to run towards the house of Jaime (TSN, April 1, 1982, p. 11). There is no showing either that the injuries suffered by Bernabe could have caused his immediate death. On the contrary, upon arrival at Jaime’s house, he still asked for a drink of water and it was only an hour later that he passed away (TSN, July 22, 1984, pp. 17-18).

Accused-appellants further allege that the dying declaration is not worthy of credit because it was motivated by passion, anger or a desire for revenge because Bernabe had a bolo fight with Efren Laredo, brother of Peter earlier that same day. This is unmeritorious. If Bernabe’s motive were only for revenge, he would have named Efren Laredo alone as his assailant instead of his brother Peter. When a person is at the point of death, every motive for falsehood is silenced, and the mind induced by the most powerful consideration to speak the truth, and therefore his statements, under such circumstances, deserve great weight. Here, the victim made his statement before he died with full knowledge that he was fatally injured. There is nothing to show that the utterance is unreliable or that the declarant is not worthy of trust. Hence, the dying declaration is admissible (People v. Diaz, G.R. No. 75433, November 9, 1988, 167 SCRA 239). And even if not strictly an ante-mortem statement, it could still be considered, at the very least, part of the res gestae and, therefore, admissible in evidence.

III. The lower court erred in holding that the crime committed is murder and frustrated murder qualified by treachery, and that conspiracy and evident premeditation were proven;"

Accused-appellants maintain that the Trial Court erred in holding that the crime committed is Murder qualified by treachery. They argue that since the assault was preceded by the stoning, that was a clear warning for the occupants to get ready and defend themselves, thus eliminating the element of treachery.

The pretension is not well taken. Treachery exists when the offender commits any crime against persons, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from any defense which the offended party might make (People v. Rojas, G.R. Nos. L-46960-62, January 8, 1987, 147 SCRA 169). The fact that accused-appellants threw stones at the victim’s house before they went up, would not negate the treacherous character of the assault. The victims were told to raise their hands before they were attacked, thus insuring the killing without any risk to the assailants. (People v. Ricohermoso, G.R. Nos. L-30527-28, March 29, 1974, 56 SCRA 431).

That there was conspiracy is shown by the concerted efforts of accused-appellants to injure and liquidate the victims. Each performed his role towards that end. They were together at the scene of the crime and left the place at the same time, which are further indicia of conspiracy (People v. Cagod, G.R. No. L-36016, January 18, 1978, 81 SCRA 110).

No error either was committed by the lower Court in appreciating the circumstance of evident premeditation for, as it opined, "there is ample evidence of how and why the crime was planned and sufficient time (from 6:00 PM to 9:00 PM) to plan and reflect on the commission of the crime.."

"IV. The lower court erred in completely not taking into account the version of the appellants, which is more credible than the version of the prosecution."cralaw virtua1aw library

Accused-appellant Peter Laredo contends that he alone inflicted the injuries on the victims in self-defense. He claims that while he was in Sitio Mangat, he was hit with a stone by two men. He chased them but they were joined by two other persons. One of them fired a shot at him but missed. The three others attacked him with their bolos but he was able to dispose of his assailants who turned out to be the victims in this case.

That assertion is belied not only by the contrary declarations of Rodelito but also by the physical conditions of the victims. Those victims sustained numerous serious and fatal wounds. Surely, all of those could not have been inflicted by Peter alone. The inescapable conclusion is that Peter was not the lone assassin. As this Court has had occasion to hold, numerous wounds in the body of the victims indicate plurality of assailants (People v. Orongan, G.R. No. L-32751, December 12 1988, 168 SCRA 586). Aside from the fact that the version of self-defense is not supported by any other evidence; it is beyond human credulity that Peter did not suffer any injury, considering that he was allegedly assaulted simultaneously by at least four men with handgun and bolos (People v. Maranan, G.R. Nos. L-47228-32, December 15, 1986, 146 SCRA 243).

As far as accused-appellant, Narciso "Bebot" Dalisay, is concerned he denied any participation in the crime charged and interposed the defense of alibi. He alleged that he was in the house of Inocentes Laredo, his landlord, when the incident happened and that the following day, 14 May 1981, he was just invited by Station Commander Avelino Pacaul to the Police Station in Sudlon, Rizal.chanrobles.com:cralaw:red

Such a defense is unavailing. The positive identification of the accused being decisive, the defense of alibi cannot assume importance in the case at bar. Rodelito positively identified Narciso as one of those who assaulted him. It was neither physically impossible for the accused to be at the house of the Balins where the incident occurred as said house is only three (3) kilometers from the house of Inocentes Laredo (People v. Aboga, G R. No. 70255, January 29, 1987, 147 SCRA 404).

Accused-appellant Narciso further claims that the entry made by Pat. Dimalaluan in the police blotter, Entry No. 2190 (Exhibit "H"), that he had surrendered to the police and admitted stabbing Bernabe Balin is erroneous for it is contrary to the testimonies of Pat. Recaredo Laredo and Mansueta Latuza.

The contention lacks merit. The testimony of Pat. Laredo that accused-appellant Narciso told him that he had nothing to do with the incident is self-serving; while that of Mansueta Latuza that Narciso was in their house throughout the evening of the incident, cannot prevail over the official entry made in the course of the performance of a duty. It is also presumed that official duty has been regularly performed (sec. 5 (m), Rule 131, Rules of Court). The fact that Pat. Dimalaluan was not presented by the prosecution to testify to the accuracy and correctness of the entry on the police blotter is of no moment as the witness was available to both parties (People v. Caragao, G.R. No. L-28258, December 27, 1969, 30 SCRA 993). Besides, Accused-appellant Narciso has not shown any ill-motive why Pat. Dimaluluan would make an erroneous entry in the police blotter falsely implicating him.

Finally, the defense that accused-appellants lacked motive to commit the crime against the victims is belied by the fact that earlier, or at 5:00 o’clock in the afternoon on the same date of the incident, there was a bolo fight between Efren Laredo, brother of Peter, and the victim Bernabe, over a carabao, during which Efren hacked Bernabe with a bolo but which the latter successfully parried, and Efren himself was hit on the hand instead. Sufficient motive to avenge the injury sustained by Efren Laredo, therefore, existed.

Rounding up, the evidence of guilt of accused-appellants exists to a moral and legal certainty.

The indeterminate sentence for the crime of Frustrated Murder, however, has to be modified. The imposable penalty under Article 50 of the Revised Penal Code is prision mayor, maximum, to reclusion temporal, medium, the same to be applied in its medium, period, or from twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. Applying the Indeterminate Sentence Law, the penalty should be within the range of prision correccional, maximum, to prision mayor, medium.chanrobles.com:cralaw:red

WHEREFORE, the decision appealed from is hereby AFFIRMED 2 with the modification that for the crime of Frustrated Murder in Criminal Case No. R-1435, Accused-appellants Edilberto Laredo and Narciso Dalisay should suffer the penalty of six (6) years and one (1) day of prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as maximum. The civil indemnity to be paid by accused-appellants Edilberto "Peter" Laredo and Narciso "Bebot" Dalisay, jointly and severally, to the heirs of deceased Bernabe Balin and Wilky Rodas is raised to P30,000.00, consonant with doctrinal jurisprudence. Proportionate costs.

SO ORDERED.

Paras, Padilla, Sarmiento and Regalado, JJ., concur.

Endnotes:



1. Judge Restituto L. Aguilar, presiding.

2. The ponente maintains her dissent in People v. Millora, G.R. No. L-38968-70, February 2, 1989, as to the penalties for the two crimes of Murder.

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