Notwithstanding appellant’s defense of alibi, he was convicted of murder and sentenced to reclusion perpetua by the Court of First Instance of Iloilo, on the basis of the positive identification made by the only eyewitness for the prosecution, the father of the deceased who testified that while he and his son were walking together with appellant and the latter’s brother Ludovico, appellant suddenly and without warning fired at the deceased who fell to the ground, after which Ludovico stabbed the latter with his butcher’s knife and then, appellant fired another shot at the victim who not aware of the impending assault had no chance to defend himself and died. After the trial, appellant moved for new trial on the ground of newly discovered evidence consisting of the retraction of the only eyewitness for the procession, but was denied. Hence, this appeal both from the judgment of conviction and the order denying the motion for new trial.

The Supreme Court ruled that the commission of murder was clearly established by the positive identification of the appellant by an eyewitness without any improper motive against which the weight of alibi as a defense is nil and the motion for new trial will not be granted if based on an affidavit of recantation of a witness whose purpose is to free the Appellant.

Judgment affirmed.

1. REMEDIAL LAW; APPEAL; LACKS MERIT WHEN CRIME IS CLEARLY ESTABLISHED. — The appeal lacks merit where the commission of murder is clearly established.

2. ID.; EVIDENCE; TESTIMONY OF WITNESSES; CREDIBILITY OF POSITIVE IDENTIFICATION; CASE AT BAR. — Appellant was definitely identified where the eyewitness had known the accused for about a year before the incident and the appellant and his brother dined with the witness and the latter’s son one hour before the killing. They walked together for one hour before the assault began. The night was clear and there were only four persons at the time of the commission of the crime, namely, the appellant, Paulino Morales, his brother Ludovico Morales, the deceased Ricarido Mandate and the prosecution witness, Victor Mandate, father of the deceased.

3. ID; ID; ID; CREDIBILITY; LACK OF EVIDENCE OF IMPROPER MOTIVE. — The absence of evidence of any improper motive actuating the principal’ prosecution witness tends to sustain the conclusion that no such improper motive existed and that Isis testimony is worthy of full faith and credit.

4. ID; ID; ID; ID; WHEN WEIGHT OF ALIBI AS A DEFENSE IS NIL AGAINST POSITIVE IDENTIFICATION. — Vis-a-vis the positive identification of the appellant, the weight of alibi as a defense is nil, specially where the witnesses are the appellant, his mother, his aunt and his brother.

5. ID.; CRIMINAL PROCEDURE; MOTION FOR NEW TRIAL; RETRACTION TO FREE THE APPELLANT; NOT A GROUND OF. — The motion for new trial will not be granted if the motion is based on an affidavit of recantation of a witness whose effect is to free the appellant from participation in the commission of the crime. It would be a dangerous rule to reject the testimony taken before the court of justice simply because the witness who had given it later on changed his mind for one reason or another for such a rule will make a solemn trial a mockery and place the investigation of truth at the mercy of unscrupulous witnesses.

6. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; TREACHERY; SUDDEN ASSAULT WITH NO CHANCE FOR THE VICTIM TO DEFEND HIMSELF; CASE AT BAR. — The killing was perpetrated with treachery where the deceased and the Morales brothers were walking together, when, suddenly, without any warning, the appellant fired at the victim who fell to the ground. Thereupon, Ludovico stabbed the fallen man with his butcher’s knife and the appellant then fired a second shot at the deceased, who, not aware of any impending assault had no chance to defend himself.

7. ID.; ID.; ABUSE OF SUPERIOR STRENGTH; ABSORBED BY TREACHERY. — Where the accused were both armed with deadly weapons while the deceased had no arms, there was abuse of superior strength but it is absorbed by treachery.

8. ID.; ID.; PREMEDITATION AND NOCTURNITY; NOT PRESENTING CASE AT BAR. — There is no evidence showing premeditation and there was no showing that the accused purposely sought the cover of darkness to facilitate the commission of the crime. Hence, the circumstances of premeditation and nocturnity may not be taken into account.

Paulino Morales was accused of murder in an information which reads as follows:chanrob1es virtual 1aw library

That on or about December 26, 1971, in the municipality of Passi, province of Iloilo, Philippines, and within the jurisdiction of this Court, the above-named accused, conspiring, confederating and working together with Ludovico Morales who is still at large, armed with home-made firearm and balisong, talking advantage of their superior strength and of the nighttime to better realize their purpose, with treachery and evident premeditation and with deliberate intent and decided purpose to kill, did then and there wilfully, unlawfully and feloniously attack, assault, aim, shoot, hit, stab and wound one RICARIDO MANDATE with their firearm and balisong with which they were provided, thereby inflicting fatal pallet and punctured wounds on the vital parts of his body which caused his death thereafter.

After trial the defendant was convicted of murder and sentenced, among others, to the penalty of reclusion perpetua. The defendant filed a motion for new trial on the ground of newly discovered evidence which consists of the retraction of Victor Mandate, the deceased’s father, who was the only eyewitness for the prosecution. The motion for new trial was denied. 1 The defendant, hereinafter called the appellant, appeals from both the judgment of conviction and the order denying the motion for new trial. 2

Victor Mandate, father of the victim Ricarido Mandate, was the only eyewitness for the prosecution. He testified that at about 7:00 o’clock in the evening of December 26, 1971, the appellant, Paulino Morales and his brother, Ludovico Morales, were in his (Victor Mandate) house at Bo. Sablogon, Passi, Iloilo, drinking wine with his son, Ricarido Mandate. Because it was already dinner time, he invited them to dinner. After dinner Victor Mandate and his son, Ricarido, accompanied the Morales brothers to their house at Bo. Maasin, Passi, Iloilo, 5 kilometers away. 3 Paulino was armed with a gun locally called "pugak-hang", while Ludovico was armed with a butcher’s knife. 4 Victor was six (6) arm’s length behind his three other companions because they walked faster. 5 Upon reaching Bo. Bayan, the appellant Paulino suddenly shot Ricarido Mandate who fell to the ground. Thereupon, Ludovico stabbed him. 6 After Ludovico stabbed Ricarido, the appellant fired a second shot at Ricarido. 7 Because of fear, Victor lay flat with his face downward to the ground. 8 After his son was dead, the Morales brothers went away. 9 The killing occurred at 8:00 that evening. 10 Upon seeing that his son was already dead, Victor went home. 11

At about 6:00 the following morning, Victor reported the incident to the Chief of Police of Passi. 12 He accompanied the Chief of Police, the Rural Health Physician and some policemen to the scene of the crime where they found the dead body of Ricarido at 7:00 that same morning. 13 After examining the dead body of Ricarido, the Chief of Police asked Victor who killed his son. Victor told the Chief of Police that "Luding and Pauling" (referring to Ludovico and Paulino Morales) killed his son. 14

The post-mortem examination showed the following injuries:chanrob1es virtual 1aw library



2. Fracture of the skull 1