G.R. No. L-105581




Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 105581 December 7, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELMER DE ASIS y MENESES AND DANILO MERCADO y ADORABLE, accused-appellants. The Solicitor General for plaintiff-appellee. Benjamin A. Opena for accused-appellant. NOCON, J.: This is an appeal from the Decision1 of the Regional Trial Court, Branch 89 of Quezon City finding accused-appellants guilty beyond reasonable doubt of the crime of Robbery with Homicide. In an Information2 filed by the Assistant City Prosecutor, the crime was allegedly committed as follows: That on or about the 29th day of July 1991, in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the above named accused, conspiring together, confederating with and mutually helping each other, with intent to gain and by means of violence and intimidation upon persons, did then and there, wilfully, (sic) unlawfully and feloniously rob VICTOR PEREGRINO y BIRANGKE of cash money amounting to P350.00 Philippine Currency, and on the occasion of said robbery, the said accused, with intent to kill and without any justifiable cause, did then and there, wilfully, (sic) unlawfully and feloniously attack, assault and employ personal violence upon the person of VICTOR PEREGRINO y BIRANGKE by stabbing him on the neck, causing him to sustain serious and mortal wound (sic) which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of the victim in the aforesaid amount and in such amount as may be awarded to them under the provisions of the Civil Code. CONTRARY TO LAW. Killed instantly, the medico-legal report3 prepared by Dr. Florante Baltazar described the wounds sustained by the victim: 1) Stab wound, right supraclavicular region, 138 cms from heel, 3 cms from anterior midline, measuring 2.4 cms. by 1 cm by 5 cms depth directed downwards, backwards, towards midline, piercing the thoracic aorta. 2) Stab wound, anterior left upper thorax, thru the 3rd intercostal space, 125 cms from heel, 1 cm from anterior midline, measuring 2 cms by 0.5 cm by 8 cms depth, directed downwards, backwards and towards the midline, piercing the arch of the aorta. 3) Stab wound, anterior distal third of left arm, as the point of entry, measuring 5 cms by 2 cms, thru the muscle tissue and exiting at the antero-lateral proximal third of the left forearm, measuring 2.5 cms by 0.5 cm, entry-exit measuring 7 cms dept. 4) Incised wound, posterior distal third of the left forearm, measuring 2 cms by 0.5 cm. CONCLUSION: Cause of death is cardio-respiratory arrest due to shock and hemorrhage secondary to stab wounds, body (sic). Accused anchored their defense on denial and alibi. Yielding to the arrest of the police authorities, accused-appellants now argue that they have been manhandled by the barangay officials who forced them to admit the commission of the crime. The facts of the case as supported by the records and transcript of stenographic notes are as follows: It was at dawn of July 29, 1991, specifically at 1:40 o' clock when two taxi drivers namely Antonio Bautista and Rogelio Miranda were eating merienda at a restaurant at the corner of Quezon Avenue and Speaker Perez Streets, Quezon City. Shortly, at about 6 to 7 meters away from the restaurant, a Rocalex taxi stopped and someone from the inside of the taxi shouted three times, "hold-up." Both Bautista and Miranda rushed to the taxi and saw a commotion between the driver of the taxi and two other men, one sitting beside the driver and the other seated at the back. Noticing Bautista and Miranda, the two men inside the taxi went out and threatened the former with a fan knife. Both witnesses described the two holduppers in detail, one being taller than the other, the former holding a fan knife and was later identified as accused-appellant Danilo Mercado. The one seated at the back was shorter and was later identified as accused-appellant Elmer de Asis. Bautista and Miranda retreated for fear of their lives while the two accused ran towards Manila along Quezon Avenue and then turning right at Apo Street, proceeded to Cuenco Street. They were chased by Bautista and Miranda and other persons from within the vicinity until they overtook one of the accused, namely, accused-appellant Danilo Mercado whom they later turned over to Barangay Tanod Rodrigo Austero. A bloodied fan knife was recovered from Mercado's right pocket by Tanod Austerio. Meanwhile, Barangay Tanod Mariano Perez chased the other accused and caught him at the corner of Kanlaon and Laong Laan Streets. Frisked by Barangay Tanod Perez, a wallet was recovered from the pocket of the accused, who answers to the name of Elmer de Asis, containing the amount of P350.00 in cash and the driver's license of the victim, Victor Peregrino together with the latter's picture. The trial court found both accused guilty of the crime of Robbery with Homicide and sentenced them as follows: ACCORDINGLY, judgment is hereby rendered convicting both accused ELMER DE ASIS y MENESES and DANILO MERCADO y ADORABLE, beyond reasonable doubt as co-principals of Robbery with Homicide charged in the information, as defined and penalized in Article 294 (1) of the Revised Penal Code, and in accordance therewith, in relation to Section 18, Bill of Rights, 1987 Constitution and Article 63 of the Revised Penal Code, there being no mitigating or aggravating circumstances which attended the commission of the offense, both of the said accused are each sentenced to suffer the penalty of reclusion perpetua, with all the accessory penalties provided by law, and to pay their proportionate costs against each of them. No award for civil liability shall be made in this judgment in favor of the private complainants, the heirs of Victor Peregrino, since they have reserved their right to file a separate civil action for damages. Both accused being detained and comformably with the practice in the Quezon City Jail for all detention prisoners to agree in writing that they be governed by the same rules pertaining to convicted prisoners, they are credited with the full extent of their detention. SO ORDERED.4 Hence, this appeal. Accused-appellants raised the following errors committed by the trial court: I IN NOT GRANTING THE MOTION FOR PRELIMINARY INVESTIGATION FILED BY THE ACCUSED-APPELLANTS THEMSELVES. II IN NOT HOLDING THAT THE SO-CALLED EYE-WITNESSES, TAXI DRIVERS ANTONIO BAUTISTA AND ROGELIO MIRANDA, WERE ELEVENTH-HOUR WITNESSES AND THEREFORE LACKED CREDIBILITY. III IN NOT HOLDING THAT IT WOULD HAVE BEEN INHERENTLY IMPROBABLE FOR THE SAID SO-CALLED EYE-WITNESSES TO HAVE IDENTIFIED THE ACCUSED-APPELLANTS CONSIDERING THE ENVIRONMENTAL CONDITION OF THE PLACE OF THE COMMISSION OF THE CRIME. IV IN NOT HOLDING THAT THE TESTIMONIES OF THE SAID WITNESSES CONTAIN IRRECONCILABLE INCONSISTENCIES ON MATERIAL POINTS WHICH CAST DOUBT ON THE GUILT OF THE ACCUSED-APPELLANTS. V IN NOT HOLDING THAT THE PRESENCE OF THE ACCUSED-APPELLANTS NEAR THE SCENE OF THE COMMISSION OF THE CRIME HAS BEEN FULLY EXPLAINED BY THEM BY COMPETENT AND UNREBUTTED EVIDENCE. VI IN MAKING MUCH OF THE FACT THAT ACCUSED-APPELLANT ELMER DE ASIS DID NOT TESTIFY TO CORROBORATE THE STORY OF ACCUSED-APPELLANT DANILO MERCADO THAT THE LATTER WAS MAULED WHILE THEY WERE GOING TO THE STA. TERESITA HOSPITAL, DESPITE THE FACT THAT THIS HAS BEEN ESTABLISHED EVEN BY THE EVIDENCE FOR THE PROSECUTION ITSELF. Each and every assigned error will be analyzed and answered sequentially. Accused-appellants contend that the trial court acted with grave abuse of discretion amounting to lack of jurisdiction in not granting their motion for preliminary investigation. We find no merit to this contention. In fact accused-appellants are in estoppel from claiming lack of preliminary investigation after they allowed themselves to be arraigned on August 23, 1992 and pleaded "not guilty" to the charges without invoking their right thereto thereby waiving the same. Its absence does not go to the jurisdiction of the court but merely to the regularity of the proceedings.5 It should be invoked prior to or at least, at the time of the plea.6 As to the allegation that prosecution witnesses, Antonio Bautista and Rogelio Miranda are "eleventh-hour witnesses," whose names do not appear in the list of witnesses cited in the information, suffice it to say that it is up for the prosecution to determine who should be presented as witnesses on the basis of its own assessment of their necessity.7 We find nothing irregular in their presentation as prosecution witnesses. Their non-inclusion in the list of witnesses is of no moment. In fact the omission of their names in the list of prosecution witnesses in the information is commonly practiced for their own protection at least until the termination of the case. In the case of People vs. Mandapat,8 the Court ruled: . . . there is nothing that could prevent the prosecution from presenting witnesses in court not listed in the information, as it is well-settled that the court has the undisputed right to call on a witness whose name does not appear in the list of the fiscal, unless the omission of said witness is intentional and tainted with bad faith (People vs. Martinez, 127 SCRA 260 [1984]; People vs. Valera, 15 SCRA 164 [1965]. The established rule is that the prosecution may call unlisted witnesses to testify (People vs. Quebral, 1 SCRA 414 [1961]). Moreover, the purpose of the listing of the names of the witnesses in the complaint or information is merely to avoid the presentation of surprise witnesses and to enable the defense to examine their record, morality and character, but once placed on the witness stand, it can no longer be disputed that the defense has already the opportunity to examine the character and credibility of the unlisted witness (People vs. Morado, 4 SCRA 292 [1962]. Finally, it is beyond question that it is the prosecution's privilege to present such number of witnesses it deems sufficient (People vs. Quebral, 134 SCRA 425 [1985]). The third and fourth issues which concern the credibility of the witnesses are interrelated and for convenience shall be discussed jointly. Jurisprudence teaches us that where the issue is one of credibility of witnesses, appellate courts give due weight to the findings of fact of the trial courts as they are in the better position to examine the witnesses before them as well as observe their demeanor and manner of testifying.9 While it is true that no prosecution witness categorically testified having seen appellants actually stab and rob the victim, the confluence of events leading to the arrest of accused-appellants as testified to by the prosecution witnesses leads to no other conclusion that they, and no other, committed the crime imputed to them. Thus, prosecution witness Antonio Bautista, a taxi driver, testified that while eating in a restaurant located at Speaker Perez St. and Quezon Avenue, Quezon City, at around 1:40 A.M. of July 29, 1991, he heard somebody shout, "hold-up, hold-up," from a taxi that suddenly stopped about six (6) meters away. He stood up and saw two (2) persons immediately alight from the taxi and whom he identified in court. His testimony is as follows: Q In the early morning of July 29, 1991 at around 1:40, do you remember where you were at that time? A Yes, Sir. Q Will you state to the Honorable Court where you were at that time? A I was eating at the restaurant at the corner of Speaker Perez Street and Quezon Boulevard, Quezon City. Q Where is that restaurant located in particular in the corner of Speaker Perez Street and Quezon Avenue, Quezon City? A There is no name. x x x x x x x x x Q Beside (sic) the bus terminal, what other establishment is situated in the corner of the street? A I was with somebody. We were eating. Q Now, while you were eating together with that somebody you mentioned, what happened? A While we were eating I heard somebody shout "Hold-up." Q From whom did you hear that word? A From inside a taxi. Q From the place where you were eating, how far was the taxi from you? A Six (6) meters, sir. Q And what was your reaction? A I stood up. Q You stood up and what? A And what I saw two (2) persons alighted from the taxi. Q What did you do when you saw these two (2) persons alighted (sic) from the taxi? A I shouted to ask help from my other companions. Q Now, when you heard that word "Hold-up" and you said you heard it from the taxi, did you see who shouted that? xxx xxx xxx FISCAL BAUTISTA: Who was that person? A The taxi driver being held up. Q What kind of taxi was that? A Rocalex Taxi. Q After that, you said two (2) persons alighted from the taxi. You stood up and what did you do ? No, I withdraw that. What did the two (2) persons do? A After coming out from the taxi, they run (sic) away, sir. Q To what direction. A To Quiapo direction. Q What did you do? A I shouted many times to my companions, because we were many then, my co-drivers. One of my co-drivers heard me and so he started his taxi. Q If those two (2) persons who immediately alighted from the taxi when you heard hold-up are present in the courtroom, will you kindly stand up and point the persons to the Honorable Court? COURT INTERPRETER: Witness pointed to the person who when asked answered that he is Danilo Mercado, one of the accused in this case. COURT: The other one who alighted. FISCAL BAUTISTA: The other one? COURT INTERPRETER: Witness pointed to Elmer de Asis, another accused in this case. xxx xxx xxx FISCAL BAUTISTA: (to the witness) So, you said that you and others chased the two (2) accused, what happened when you chased them ? A We were able to overtake the taller one and because the taxi could not go up to the pavement, the taxi went to and pro (sic). xxx xxx xxx FISCAL BAUTISTA: (to the witness) How about the other one? A The other one went towards Mayon and was chased by Rubi Taxi. COURT: (to the witness) Mayon Street? A Yes, your Honor. 10 Rogelio Miranda, another taxi cab driver, and who was with Antonio Bautista at the time of the incident in question corroborated the latter's testimony. Q While you and your companion Antonio Bautista were eating merienda was there any unusual incident that happened? A Yes, Sir. Q What incident? A Suddenly, a Rocalex taxi stopped and somebody shouted hold up, hold up. Q Did you notice where the taxi come (sic) from? A Coming from Quezon City going to Manila. x x x x x x x x x Q When you heard the shout hold up, hold up what did you notice from the taxi. Did you look at it? A Yes, we approached the taxi and I saw that there was a rumble inside the taxi. Q How many persons did you see inside the taxi. A Three (3) persons including the driver. Q Did you see where the two (2) passengers were seated? A Yes, one (1) in front and one (1) at the back. x x x x x x x x x Q So when you stood up what did you do together with Antonio Bautista? A We approached the taxi, suddenly the passengers went out from the taxi and faced us, one holding a knife. Q There were two (2) persons who get (sic) out from the taxi, will you describe her physical appearances? A The one seating in front is taller. Q How about the one seating at the back? A He is smaller. Q Who was holding the knife when the two (2) get (sic) out from the taxi? A The taller one. Q Now if those two (2) persons you saw get out from the taxi are present in the courtroom will you kindly point out their persons to the Court? A Yes, sir. xxx xxx xxx INTERPRETER: Witness is pointing to a person who when asked his name answered that he is Danilo Mercado, one of the accused in this case and the other person who when asked his name also answered that he is Elmer de Asis also one of the accused in this case. Q Now that you identified the two (2) accused, who between the accused is the one who get (sic) out from the front seat with a knife? A The one wearing orange T-shirt, Danilo Mercado. Q Who is the other one who get (sic) out from the back seat? A The one in green T-shirt, Elmer de Asis. x x x x x x x x x Q When they ran away from what did you do next? A I take (sic) my taxi and chased them. Q Antonio Bautista your companion chased them in (sic) foot while you take (sic) your taxi and chased them? A Yes, sir. Q Now going back to the taxi Rocalex, when you heard a shout hold up, hold up did you notice who shouted that word? A Yes, sir. The driver of Rocalex who died. x x x x x x x x x Q Were you able to apprehend the two (2) accused? ATTY. BORLAS: Leading, Your Honor. COURT: May answer. A The one who is smaller we were able to apprehend, the taller one was apprehended by Antonio Bautista and his companions. 11 Rodrigo Austero, Barangay Tanod of Barangay Teresita, Quezon City and who was on duty at that time testified, thus: Q Sometime in the early morning of July 29, 1991, do you remember where you were at that time? A I was at our outpost. x x x x x x x x x Q Who were with you at that time, if any? A Mariano Perez, Joseph Gumarag, Tuaño. x x x x x x x x x Q Who were left with you at the outpost? A Mariano Perez and myself, sir. Q You stated that while you two (2) were in the outpost something happened. What was that? A At around 1:40 a.m., somebody shouted "Holdupper, Holdupper." Q How far is that, somebody whom you heard shouting "Holdupper, Holdupper" from your outpost? A About twenty (20) meters away, sir. Q How many were there shouting "Holdupper, Holdupper", if any you know? A About ten (10) person including two (2) taxi drivers whom I don't know. Q You made mention that you heard somebody shouting "Holdupper, Holdupper", and they were twenty (20) meters away. What were they doing while they were shouting "Holdupper, Holdupper", those persons? A They were chasing the two (2) persons. x x x x x x x x x Q When you saw them coming in your direction at about twenty (20) meters you said, what did you do? A We accosted the two (2) men. One is Elmer De Asis. Mariano Perez chased the other one who ran away. x x x x x x x x x Q You said you introduced yourself as barangay tanod. And what did you do after introducing yourself as barangay tanod. A I got one of them, sir. Q You got one of them. Who is that the person whom you got? A Danilo Mercado, sir. Q You mentioned of Danilo Mercado. He was one of those two (2) persons who was being chased by those people? A Yes, sir. Q Now, can you stand up, Mr. Witness, and point the person to us of Danilo Mercado, if he is present in the courtroom? A COURT INTERPRETER: Witness pointed to the person of Danilo Mercado, one of the accused in this case. FISCAL BAUTISTA: (to the witness) When you got Danilo Mercado from the people, what did you find out, if any? A I got from his right pocket a knife, sir. Q What did you do with the knife? Did you inspect it? A I inspected it, sir. I found out that it was blooded (sic). Q I am showing to you, Mr. Witness, earlier evidence which has already been marked as Exhibit C for the prosecution. Kindly inspect the same and tell this Honorable Court what relation this thing with the one you found in the possession of Danilo Mercado? A This is the one that I got from him, sir. 12 Mariano Perez, another barangay tanod and companion of Rogelio Miranda, caught the other accused Elmer de Asis. His testimony is as follows: Q Now, do you remember if anything unusual transpired while you were there at Cuenco Street, Barangay Sta. Teresita, Quezon City? A Yes, sir. Q What transpired, what happen (sic), if any? A Elmer de Asis was running. ATTY. OPEÑA: There is no basis for the mentioned for my client (sic). COURT: Answer: A Elmer de Asis was running coming from Cuenco Street, and I chased him. FISCAL BAUTISTA: Q Did you see (sic) if there were any companion at the time of Elmer de Asis? A Yes, sir. x x x x x x x x x Q If Elmer de Asis and his companion at that time who was running is in the courtroom, will you kindly point to the court who were they? A That one. (Witness pointing to accused Danilo Mercado). Q You said that the two were running, did you come to know why they were running? x x x x x x x x x A They held up somebody. xxx xxx xxx FISCAL BAUTISTA: Q Now, the taxi driver you testified, where he was chasing the two, what else did you see? x x x x x x x x x A I saw Elmer running so I chased him. I pursued him up to Kanlaon Street, I cornered him at Kanlaon corner Laon-laan. x x x x x x x x x Q After apprejending (sic) Elmer de Asis, what happen (sic) next, what did you do? A I frisked him, I recovered from him a wallet containing P350.00. Q I show to you this wallet already marked as Exhibit D, what relation (sic) this wallet (sic) with the one you found from the pocket of Elmer de Asis? A This wallet was the one I recovered from him (witness pointed to accused de Asis), there was a license. Q You examined the license you found inside the wallet? A Yes, sir. Q I am showing to you Exhibit D-3, what relation (sic) this exhibit with the one you found inside the wallet? A This is the one. Q Is that the license? A Yes, your honor. COURT: Q Whose license is that? Did you come to know whose driver's license was found inside the wallet? A Taxi driver. FISCAL BAUTISTA: Q How did you come to know that it was the license of the taxi driver? A It is found inside the wallet, sir. xxx xxx xxx FISCAL BAUTISTA: Q Did you . . . what did you do after apprehending Elmer de Asis? A I brought him to the police precinct. xxx xxx xxx Q Did you execute . . . You mentioned a while ago money you found inside the wallet, I am showing to you cash money amounting to P350.00 which is already marked in bunch as Exhibit D-2, what relation (sic) this money (sic) which you found inside the wallet? A This is the money I found. Q You said you were investigated by the Police, why were you investigated? A Because I brought Elmer de Asis there. 13 Clearly, from the testimonies of taxi drivers Antonio Bautista, Rogelio Miranda and Barangay Tanods Rodrigo Austero and Mariano Perez, the following facts were indubitably established as contended by the Solicitor General: 1. That accused-appellants were seen immediately alighting from the taxi driven by the victim after the latter parked at the middle of the road shouting, "holdupper, holdupper." 2. That the victim's wallet containing his driver's license was recovered from accused-appellant Elmer de Asis after a long chase; while from accused-appellant Danilo Mercado, a bloodstaind knife, Exhibit "C", was recovered immediately after the latter's arrest and apprehension. 3. And the victim, Victor Peregrino, the driver of the Rocalex Taxi, who was found bloodied inside his taxi was found to have sustained three (3) stab wounds and one (1) incised wound resulting in cardio-respiratory arrest causing his death due to shock and hemorrhage secondary to stab wounds. 14 The prosecution witnesses could not have been mistaken in their identification of the accused-appellants as the place where they were eating is well lighted by a fluorescent lamp and by another one at the corner of Speaker Perez and Quezon Avenue. 15 It has been held that where conditions of visibility are favorable and the witness does not appear to be biased, assertions as to the identity of the malefactor should normally be accepted. 16 Inconsistencies and contradictions in the testimony of the prosecution witnesses which refer to minor details do not affect the credibility of prosecution witnesses. 17 On the contrary, they bolster rather than emasculate a person's credibility, as one cannot be expected to remember an incident with unerring accuracy in minute detail. 18 Accused-appellants' explanation that they were on the way to the Sta. Teresita Hospital where accused-appellant Mercado's mother works as a security guard, in justification for their presence near the scene of the incident is too flimsy and puerile to deserve serious consideration in the face of their unexplained possession of the victim's wallet and a bloody knife right after their arrest. Lastly, accused-appellant contend that the fact that accused-appellant de Asis did not corroborate the story of Mercado that the latter was mauled on their way to the Sta. Teresita Hospital should not have been taken against the defense. Apparently, accused-appellants are unaware on how evidence are weighed. That conviction of an accused is based on the strength of the prosecution's evidence and not on the weakness of the defense, and that failure of an accused to take the witness stand cannot be taken against him. 19 We cannot but notice the solid and strong circumstantial evidence pointing to the guilt of the accused-appellants. There is more than one circumstance; the fact from which the inference are derived were proven; and the combination of all the circumstances is such as to produce a conviction of guilt beyond reasonable doubt. 20 It is not solely on the absence of the corroborating evidence of one of the accused that conviction was based. With or without the corroborating testimony of accused-appellant Elmer de Asis, still conviction will lie. WHEREFORE, finding accused-appellants guilty beyond reasonable doubt, the appealed decision is hereby AFFIRMED in toto. SO ORDERED. Narvasa, C.J., Padilla, Regalado, and Puno, JJ. # Footnotes 1 Records, pp. 143-150. 2 Records, p. 1. 3 Exhibit "H", Records, p. 80. 4 Rollo, p. 21. 5 Paderanga vs. Drilon, 196 SCRA 87, G.R. No. 96080, April 19, 1991. 6 People vs. Casiano, 1 SCRA 478, No. L-15309, February 16, 1961. 7 People vs. Ruedas, 194 SCRA 553, G.R. No. 83372, February 27, 1991. 8 196 SCRA 157, G.R. No. 76953, April 22, 1991. 9 People vs. Segwaben, 194 SCRA 239, G.R. No. 88401, February 19, 1991. 10 T.S.N., October 8, 1991, pp. 6-14. 11 T.S.N., October 29, 1991, pp. 8-12. 12 T.S.N., September 18, 1991, pp. 6-12. 13 T.S.N., September 27, 1991, pp. 10-13. 14 Exhibits "A", "M" and "M-1". 15 T.S.N., October 29, 1991, pp. 7-8. 16 People vs. Espejo, 186 SCRA 627, G.R. No. 88662, June 18, 1990 17 People vs. Doctolero, 193 SCRA 632, G.R. No. L-34386, February 7, 1991. 18 People vs. Kalubiran, 196 SCRA 644, G.R. No. 84079, May 6, 1991. 19 People vs. Santiago, 197 SCRA 556, G.R. No. 46132, May 28, 1991. 20 People vs. Villanueva, 211 SCRA 602, G.R. No. 77396, July 20, 1992. The Lawphil Project - Arellano Law Foundation