SECOND DIVISION
G.R. No. 223098, June 03, 2019
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, v. NESTOR DOLENDO Y FEDILES ALIAS "ETOY", ACCUSED-APPELLANT.
D E C I S I O N
LAZARO-JAVIER, J.:
This appeal assails the Decision1 dated March 18, 2015 of the Court of Appeals in CA-G.R. CR-HC No. 05400, entitled People of the Philippines vs. Nestor Dolendo y Fediles alias "Etoy", modifying the trial court's verdict of conviction against appellant from arson with homicide to simple arson.
That on or about September 18, 1996 in the afternoon thereof, at sitio (sic) Kapatagan, Barangay Capsay, Municipality of Aroroy, Province of Masbate, Philippines, within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously set on fire a house owned by Leonardo Perocho, Sr., knowing it to be occupied at that time by one or more persons and as a result thereof LEONARDO PEROCHO, JR., 6 yrs. (sic) old boy suffered massive bums and injuries which directly caused his death thereafter.The case was docketed Criminal Case No. 8307 and raffled to the Regional Trial Court (RTC), Branch 48, Masbate City. Appellant had remained at large for five years until he got arrested on February 23, 2001.3
CONTRARY TO LAW.
The cadaver was reduced in size, both extremities, upper and lower were missing as a result of burning. Skull was massively burned exposing burn (sic) brain tissue. Muscles of the face was also gone as a result of burning. Mandible bone and teeth were exposed. Skin and muscles of the upper and lower part of the body were massively burned. All internal organs were exposed and burned.
Due to the above mentioned examination was made that death was due to massive burned (sic).15
WHEREFORE, in view of the foregoing, accused NESTOR DOLENDO y FEDILES is found guilty beyond reasonable doubt of the crime of ARSON with Homicide defined and penalized under Article 320 of the Revised Penal Code of the Philippines as amended by Republic Act No. 7659. He is hereby sentenced to suffer the penalty of reclusion perpetua and ordered to pay the heirs of the victim P75,000 as civil indemnity, P75,000 as moral damages and P30,000 as exemplary damages without subsidiary imprisonment in case of insolvency;On November 18, 2011, appellant filed a motion for new trial22 based on the respective affidavits of recantation23 of Deolina and Jessie Perocho. Deolina claimed that the fire came from a lighted kerosene lamp which fell and hit the wall of the house. Jessie, on the other hand, said he was nowhere near their house at the time of the incident.
The period of detention of accused NESTOR DOLENDO y FEDILES shall be credited in his favor.
The Provincial Jail Warden of the Provincial Jail, Masbate is directed to immediately transfer NESTOR DOLENDO y FEDILES to the National Bilibid Prison, Muntinlupa City.
SO ORDERED.21
WHEREFORE, premises considered, the appeal is hereby DISMISSED and the September 23, 2011 Decision and the November 25, 2011 Order of the Regional Trial Court of Masbate City, Branch 48, in Criminal Case No. 8307, are AFFIRMED WITH MODIFICATION, in that Nestor Dolendo y Fediles is found guilty beyond reasonable doubt of the crime of simple arson.
SO ORDERED.25
1.) | Did the Court of Appeals err in affirming the trial court's factual findings on the credibility of witnesses? |
2.) | Was the prosecution able to prove appellant's guilt beyond reasonable doubt? |
3.) | Was the trial court's verdict of conviction rendered invalid considering that the judge who rendered it was not the same judge who heard and tried the case? |
4.) | Did the Court of Appeals err in modifying appellant's conviction from arson with homicide to simple arson? |
Section 3. Other Cases of Arson. The penalty of Reclusion Temporal to Reclusion Perpetua shall be imposed if the property burned is any of the following:Further, Sec. 5 reads:
1. Any building used as offices of the government or any of its agencies;
2. Any inhabited house or dwelling;
3. Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel;
5. Any plantation, farm, pastureland, growing crop, grain field, orchard, bamboo grove or forest;
6. Any rice mill, sugar mill, cane mill or mill central; and
7. Any railway or bus station, airport, wharf or warehouse.
Section 5. Where Death Results from Arson. If by reason of or on the occasion of the arson death results, the penalty of Reclusion Perpetua to death shall be imposed.Arson requires the following elements: (1) a fire was set intentionally; and (2) the accused was identified as the person who caused it. The corpus delicti rule is satisfied by proof of the bare fact of the fire and that it was intentionally caused.29
Jessie Perocho corroborated his mother's testimony, viz:
Q: Kindly tell the court what the incident was about. A: At 4:00 o'clock in the afternoon of September 18, 1996, this Nestor Dolendo was shouting at my husband. x x x x Q: And did you personally see this Nestor Dolendo shouting? A: Yes, sir. x x x x Q: You saw him with a gun? A: Yes, sir. x x x x Q: And after you kept shouting for help but none came, what happened next? A: We jumped passing over the window at the back of the house together with my three children and Leonardo, Jr. was left. Q: Why did you jump at the back window of your house? A: Because he already set fire [on] our terrace. x x x x Q: By the way, how did you come to know that Nestor Dolendo had set fire on your porch? A: I saw him getting dried coconut leaves. Q: And what did he do with that porch? A: He set fire [on] our porch as well as the roofing made of coco leaves. Q: What did you do upon Nestor Dolendo having blazed the posts of your house with the torch? A: We jumped out of the window. x x x x Q: How many of you were able to jump out of the window? A: We were four, three children and I. Q: Who were the children who were able to jump? A: Isalyn, Ivy and Janice. Q: After you jumped out of the window, where did you go together with your four children? A: We hid at the grassy place. Q: How about Leonardo? A: He was left because he was [asleep]. Q: That was 4:00 o'clock in the afternoon? A: Yes maam. Q: You were not able to awaken him? A: Because I was rattled and I was also carrying my youngest child.30
Both Deolina and Jessie Perocho recounted in detail their harrowing experience as a family in the cruel hands of appellant when he burned down their dwelling, killing six year old Leonardo Jr. as a result. Deolina and three of her children had to jump out of the window to escape the fire and hide in a grassy area. It was appellant whom they saw setting their dwelling on fire after he proudly announced his arrival to the head of the family Leonardo Sr. who was not around at that time.
Q: How did you know that the accused was the one who blazed the house? A: I saw him. Q: How did he blaze the house? A: He lighted a torch made of bundle of coconut leaves and burned the house. x x x x31
Indeed, it is a dangerous rule to set aside a testimony which has been solemnly taken before a court of justice in an open and free trial and under conditions precisely sought to discourage and forestall falsehood simply because one of the witnesses who had given the testimony later on changed his mind. Such a rule will make solemn trials a mockery and place the investigation of the truth at the mercy of unscrupulous witnesses.In addition, We share the trial court's observation that the affidavits of recantation were too terse, if not grossly inadequate. They visibly failed to address a number of material evidence adduced on record. In any case, it is certainly incredulous that after going through the tedious process of filing of the complaint, followed by rigorous trial particularly the grilling cross examination, not to mention the stress, anxiety, tears, pain, and sleepless nights they had to bear before, during and after the seemingly unending quest for justice, Deolina and Jessie Perocho would now, after fifteen long years, claim that everything they said and did before including the pain, the tears, the stress, the sleepless nights they claimed to have suffered was just after all a figment of their imagination.40x x x x
This Court has always looked with disfavor upon retraction of testimonies previously given in court. The asserted motives for the repudiation are commonly held suspect, and the veracity of the statements made in the affidavit of repudiation are frequently and deservedly subject to serious doubt.
x x x. Especially when the affidavit of retraction is executed by a prosecution witness after the judgment of conviction has already been rendered, "it is too late in the day for his recantation without portraying himself as a liar." At most, the retraction is an afterthought which should not be given probative value. (Emphasis supplied)
x x x we have held in several cases that the fact that the judge who heard the evidence is not the one who rendered the judgment; and that for the same reason, the latter did not have the opportunity to observe the demeanor of the witnesses during the trial but merely relied on the records of the case does not render the judgment erroneous. Even though the judge who penned the decision was not the judge who heard the testimonies of the witnesses, such is not enough reason to overturn the findings of fact of the trial court on the credibility of witnesses. It may be true that the trial judge who conducted the hearing would be in a better position to ascertain the truth or falsity of the testimonies of the witnesses, but it does not necessarily follow that a judge who was not present during the trial cannot render a valid and just decision. The efficacy of a decision is not necessarily impaired by the fact that its writer only took over from a colleague who had earlier presided at the trial. That a judge did not hear a case does not necessarily render him less competent in assessing the credibility of witnesses. He can rely on the transcripts of stenographic notes of their testimony and calibrate them in accordance with their conformity to common experience, knowledge and observation of ordinary men. Such reliance does not violate substantive and procedural due process of law. (Emphasis supplied)So must it be.
Accordingly, in cases where both burning and death occur, in order to determine what crime/crimes was/were perpetrated - whether arson, murder or arson and homicide/murder, it is de rigueur to ascertain the main objective of the malefactor: (a) if the main objective is the burning of the building or edifice, but death results by reason or on the occasion of arson, the crime is simply arson, and the resulting homicide is absorbed; (b) if, on the other hand, the main objective is to kill a particular person who may be in a building or edifice, when fire is resorted to as the means to accomplish such goal the crime committed is murder only; lastly, (c) if the objective is, likewise, to kill a particular person, and in fact the offender has already done so, but fire is resorted to as a means to cover up the killing, then there are two separate and distinct crimes committed - homicide/murder and arson. (Emphasis supplied)We now tackle the imposable penalty. Sec. 5 of PD 1613 provides, viz: "(i)f by reason of or on the occasion of the arson death results, the penalty of Reclusion Perpetua to death shall be imposed". On this score, since no aggravating circumstance was alleged or proved here, both the trial court and the Court of Appeals correctly sentenced appellant to reclusion perpetua.43
Endnotes:
1 Penned by Associate Justice Ramon A. Cruz and concurred in by Associate Justices Remedios A. Salazar-Fernando and Marlene Gonzales-Sison, rollo, pp. 2-15.
2 Record, p. 1.
3Id. at 17.
4Id. at 29.
5 TSN, August 13, 2003, pp. 8-9.
6Id. at 10.
7Id. at 11.
8Id.
9Id. at 13.
10Id. at 14.
11Id.
12Id. at 16.
13 TSN, July 5, 2006, p. 5.
14Id. at 6.
15 Record, p. 137.
16 TSN, September 16, 2009, p. 2.
17Id. at 5.
18Id. at 6.
19Id.
20 Penned by Judge Arturo Clemente B. Revil.
21 CA rollo, pp. 19-20.
22 Record, pp. 189-193.
23Id. at 194-195.
24Id. at 201-206.
25 CA rollo, pp. 165-166.
26Rollo, pp. 21-22.
27Id. at 23-25 and 28-30.
28 PD 1613 repealed Arts. 320 to 326-B of The Revised Penal Code.
29See People vs. Murcia, 628 Phil. 648 (2010).
30 TSN, August 13, 2003, pp. 10-16.
31 TSN, July 5, 2006, pp. 4-5.
32 Supra, Note 29.
33See People vs. Ducabo, 560 Phil. 709, 722 (2007).
34See People vs. Gonzales, 582 Phil. 412, 421 (2008).
35See People vs. Gani,710 Phil. 466, 473 (2013).
36See People vs. Amoc, G.R. No. 216937, June 05, 2017, 825 SCRA 608, 617.
37See People vs. Espenilla, 718 Phil. 153, 166 (2013).
38See People vs. Lamsen, 721 Phil. 256, 260 (2013).
39 547 Phil. 572, 584-585 (2007).
40Supra, Note 38.
41See 708 Phil. 535, 545-546 (2013).
42 534 Phil. 404, 431 (2006).
43See People vs. Abayon, 795 Phil. 291, 301 (2016).
44People vs. Jugueta, 783 Phil. 806, 853 (2016).
45People vs. Banez, 770 Phil. 40, 49 (2015).