EN BANC
G.R. No. 127753 December 11, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DOMINGO VALDEZ Y DULAY, accused-appellant.
D E C I S I O N
BUENA, J.:
For automatic review is the decision of the Regional Trial Court (RTC), Branch 45, Anonas, Urdaneta, Pangasinan convicting appellant Domingo Valdez y Dulay guilty of two crimes: (1) murder for which he was sentenced to suffer the death penalty and (2) illegal possession of Firearms and Ammunition under Presidential Decree No. 1866 for which he was sentenced to suffer reclusion perpetua based on the following criminal indictments:
"CRIMINAL CASE NO. U-8719
That on or about 31st day of October, 1995 at barangay San Roque, Municipality of San Manuel, Province of Pangasinan, and within the jurisdiction of this Honorable Court, the said accused with intent to kill and with treachery and evident premeditation, did then and there wilfully, unlawfully, and feloniously attack and shot one Labrador Valdez y Madrid, hitting the latter’s chest and the gunshot wounds inflicted being mortal, caused the direct and immediate death of the said victim, to the damage and prejudice of his heirs.
Contrary to Article 248, Revised Penal Code."1
"CRIMINAL CASE NO. U-8720
That on or about the 31st day of October, 1995 at barangay San Roque, Municipality of San Manuel, Province of Pangasinan, and within the jurisdiction of this honorable Court, the said accused did then and there, wilfully, unlawfully, and feloniously have in his possession, control and custody a firearm of an unknown caliber, make and brand without authority of law, and which he used in shooting to death Labrador Valdez y Madrid.
Contrary to Presidential Decree No. 1866."2
On October 31, 1995, at around 9:00 o’clock in the evening at Sitio Laclac, Barangay San Roque, San Manuel, Pangasinan, Marcelo Valdez was under his nipa house talking with his son Labrador Valdez. At that time, Marcelo’s other housemates – his wife, son Rolando Valdez, daughter-in-law Imelda Umagtang and an eight-year-old boy named Christopher Centeno – were staying upstairs preparing to sleep. In the course of their conversation, Labrador was lying sideways on a carabao sled, placed under the family nipa house. He was facing his father at the eastern side of the house, at a distance of about less than two (2) meters from each other.3 TSN, June 13, 1996, pp. 14 and 17. 3 Suddenly, two consecutive gunshots were fired coming from the western side of the house by an assailant.4 The first shot landed on the left forefinger and thumb of Labrador, while the second shot hit him two (2) inches from the left shoulder, below the neck which exited at the right side just below his breast.5 After firing, the assailant immediately ran away towards the west direction.6
Marcelo Valdez who was talking to his son, immediately called for help while the victim managed to walk upstairs towards the kitchen. The stunning sound of the two gunfire and Marcelo’s cry for help alerted Imelda Umagtang and her common-law husband Rolando Valdez, who were both lying on bed, to verge upon the kitchen where they saw the victim bathed in his own blood. When Rolando inquired from the victim who shot him, the latter replied that it was the appellant. At this time, the victim’s brother and in-laws arrived. They also asked the victim what happened and the latter once more said that it was appellant who shot him. At such time, the search for the passenger jeep that will transport the victim to the hospital continued. After an hour, they were able to find a passenger jeep but the victim already succumbed to death prior to his transport to the hospital.
The next day, on November 1, 1995, Dr. Asuncion Tuvera of San Manuel Rural Health Unit conducted the autopsy on the cadaver of the deceased in the latter’s house. The medical examination revealed the following gunshot wounds-
"A. External findings:
Chest - gunshot wound at the left sternal line 2 inches below the left clavicle, 2 cm in diameter penetrating
- gunshot wound at the right enterior axillary line at the level of the lumbar area.
Extremities – lacuated wound on the left thumb and index finger with fracture of the phalanges.
"B. Internal findings:
Chest – fracture of the 3rd enterior left rib.
Abdomen placuated wound of the liver.
"Cause of death:
Cardio respiratory arrest secondary to severe hemorrhage secondary to gunshot wound on the chest and lumbar area." (Exhibit "E"; records, p. 7)
Thereafter, appellant was charged before the trial court with two separate information for murder and illegal possession of firearms to which he pleaded not guilty. After trial, judgment was rendered convicting appellant as earlier mentioned. The dispositive portion of the decision reads:
"WHEREFORE, in view of all the foregoing, the Court finds:
"IN CRIMINAL CASE NO. U-8719:
"The accused DOMINGO VALDEZ Y DULAY GUILTY beyond reasonable doubt of the crime of MURDER defined and penalized under republic Act No. 7659 otherwise known as the Heinous Crime Law, the offense having been committed with the attendant aggravating circumstances of evident premeditation, abuse of superior strength and nighttime, hereby sentences him the ultimum supplicium of DEATH to be executed pursuant to Republic Act No. 8177 known as the Lethal Injection Law, to pay the heirs of the victim LABRADOR VALDEZ in the amount of ₱50,000.00 as indemnity; ₱23,500.00 as actual damages; ₱200,000.00 as moral damages; and to pay the costs.
"IN CRIMINAL CASE NO. U-8720:
"The accused DOMINGO VALDEZ Y DULAY, GUILTY beyond reasonable doubt of the crime of Illegal Possession of Firearm and Ammunition penalized under Presidential Decree No. 1866 and hereby sentences him to suffer imprisonment of RECLUSION PERPETUA and to pay the costs.
"Finally, it is said: "Dura lex, sed lex," translated as "The law is harsh, but that is the law.
"SO ORDERED."7
Appellant questions his conviction arguing that the court a quo erred -
I. in convicting the accused of murder notwithstanding the failure of the prosecution to prove his guilt beyond reasonable doubt.
II. in appreciating the qualifying circumstance of treachery and the aggravating circumstances of evident premeditation, abuse of superior strength and nighttime on the assumption that indeed accused appellant shot the victim.
III. in not applying the provision of R.A. 8294, amending P.D. 1866
IV. in convicting the accused for two separate offenses
V. finding the accused guilty of violating P.D. 1866"8
After a careful examination of the records, appellant’s conviction should be upheld. The elements of murder concur in this case. Appellant shot the victim twice. The wounds sustained by the deceased at the left thumb, index finger and at the left shoulder below the neck exiting to the right side just below the breast were caused by bullets. As a result of these gunshot wounds, the victim suffered "Cardio respiratory arrest secondary to severe hemorrhage secondary to gunshot wound on the chest and lumbar area" which was described in the medico-legal report as the proximate cause resulting to his death.
Appellant’s defense is premised primarily on denial and alibi. He argues that on the day of the incident he was hauling and transporting 27 cavans of palay with Reymante and Conrado Centino9 from 6 to 9 o’clock in the evening of October 31, 1995, to the house of Mrs. Juanita Centino. Thereafter, they took supper at Conrado’s house and drank wine and went home around 11 o’clock in the evening. His version was corroborated by Reymante and Conrado and the latter’s mother, Mrs. Centino, a sexagenarian. Such defenses, however, aside from being inherently weak, cannot prevail against a positive and explicit identification of him not only by Marcelo Valdez but also by the victim himself. To exculpate himself, appellant must not only show that it was impossible for him to be at the place where the crime was committed, but it must likewise be demonstrated that he was so far away that he could not have been physically present at the place of the crime or its immediate vicinity at the time of its commission.10 The distance between the place where the crime happened, to the Centinos’ house where appellant claimed he was, is more or less one (1) kilometer, which could be negotiated by walking for thirty (30) minutes, and twenty (20) minutes by riding a vehicle.11 Appellant’s whereabouts at the time of the incident was insufficient to foreclose any possibility for him to be present at the scene of the crime, given the proximity of the two places.
Appellant further contends that witness Marcelo Valdez could not have positively identified him because there was only a single kerosene lamp lighting the area and the witness was already seventy years old, who, at such age, would have a nebulous identification of the assailant. Appellant’s assertion of impossibility of identification in a period of a "few seconds look" at the time of the second shot, which was fired successively, was negated by the fact that appellant shot the victim at a distance of around two meters from the kerosene lamp. The distance of the appellant from the kerosene lamp does not preclude the possibility of identification since the place was properly illumined capacitating the witness to identify the assailant. In fact, both Marcelo and the deceased were able to identify appellant.
Appellant capitalizes on the alleged failure of Lilia Valdez (wife of the deceased) to mention to the officer who investigated the killing, that she heard her husband say that the appellant was his assailant. He argues that her testimony in court that she heard her husband say that it was appellant who shot him, was merely an afterthought. In support thereof, appellant quotes the following answers of Lilia Valdez during cross-examination -
"ATTY. VIRAY-
"Q: Now, in the sworn statement Madam witness which you gave to the police authorities of San Manuel, Pangasinan, you never mentioned that your husband told you that he was allegedly shot by the accused, is this correct?
"A: Yes, sir.
"ATTY. VIRAY:
The answer is not responsive, we request the question to be read back.
"COURT: She said, she did not tell that to the police.
"ATTY. VIRAY:
"Q: Why did you not tell to the police authorities that your husband told you that your husband was shot by Domingo Valdez?
"A: I forgot, sir." [TSN, July 3, 1996, pp. 24-25]
We have thoroughly reviewed the records and studied the alleged contradiction between the court testimony and the sworn statement of Lilia Valdez only to find that appellant is misleading the court. In her sworn statement Lilia Valdez stated -
"15. Q: Was you (sic) husband able to identify his assailant?
A: Yes, sir. He identified Domingo Valdez as his assailant when asked by brother-in-law Rolando Valdez before he was brought down to kitchen on the way to the hospital, sir." [Exhibit "D", Folder II, Records, p. 3]
It is also clear from the records that as early as November 1, 1995, the day after the killing, the principal prosecution witness Marcelo Valdez (father of the deceased), along with Lilia Valdez (wife of the deceased), Imelda Umagtang (sister-in-law of the deceased) alluded to appellant as the killer before police officer Avelino Sandi, Jr. who conducted the investigation. Their respective sworn statements were reduced into writing denouncing and identifying appellant as responsible for the death of Labrador Valdez. Imelda Umagtang12 testified to these utterances of the deceased in court.
The victim’s septuagenarian father Marcelo Valdez likewise affirmed the identity of the appellant as the assailant. He testified in court that he recognized the assailant with the lighting coming from the kerosene lamp hanging on the wall, which illuminated the whole ground of the nipa hut.13 He claimed that he recognized appellant at the second shot14 at a distance of around three meters (3) away from him.15 At the time appellant fired the second shot, appellant was less than a meter away from the victim16 and around two meters from the kerosene lamp.17
Lilia Valdez, the victim’s wife, recounting that fateful day, similarly attested appellant’s culpability in court. She testified that when her husband was shot she was in her house with her children, about 25 to 30 meters18 from the victim’s location. When she heard the gunfire and the summons of her parents-in-law that her husband was shot, she rushed to her husband and saw him bloodied, lying prostrate in the kitchen. She asked the victim what happened and the latter answered that appellant shot him.
Appellant likewise debunks the probative value given to Imelda Umagtang’s testimony that she heard the victim say that it was appellant who shot him because such statement was not directed to her by the victim but to Rolando Valdez.19 This according to appellant finds support in the following testimony of Imelda –
"ATTY. VIRAY
"Q: So it is very clear from your statement that it was your live-in boyfriend, Rolando Valdez, who asked question from the victim not you, is this correct?
"A: Yes, sir.
"Q: You never asked questions from the victim, is this correct?
"A: No, sir. I heard what he revealed to my live-in boyfriend, sir."20
There is no rule that a person who hears something cannot testify on what she heard. A dying declaration need not be particularly directed only to the person inquiring from the declarant. Anyone who has knowledge of the fact of what the declarant said, whether it was directed to him or not, or whether he had made inquiries from the declarant or not, can testify thereto.
Hearsay evidence, whether objected to or not, possesses no probative value unless the proponent can show that the same falls within the exception to the hearsay rule.21 The statement of the deceased uttered shortly after being wounded by the gunfire is a "dying declaration," which falls under the exception to the hearsay rule.22 It may be proved by the testimony of the witness who heard the same or to whom it was made.23 Appellant contends that the identification by the deceased of his assailant, which was admitted as a "dying declaration" under Section 37, Rule 130 of the Rules of Court, cannot be admitted because "when the said statements were uttered the declarant was not conscious of his imminent death,"24 relying on the following testimony of Imelda Umagtang and Lilia Valdez, thus –
"Q: What was your observation when he was lying down waiting for the ride to come?
"A: He was already very weak, sir.
"Q: Did somebody ask of his physical condition at that time?
"A: Yes, sir.
"Q: Who?
"A: Lago Valdez, sir.
"Q: What did he ask?
"A: He asked if he can still manage, sir.
"Q: What did Labrador Valdez answer?
"A: He said, no more, sir.
"Q: What do you mean by he cannot manage anymore?
"A: He was already very weak at that time, sir.
"Q: And?
"A: And he was dying, sir.
"Q: He said he was dying?
"A: No, sir.
"Q: But he was feeling weak already?
"A: Yes, sir."25
and
"Q: When you were there near your husband lying in the kitchen in the house of your father-in-law, what was your observation regarding his physical condition?
"A: He was shot, Your Honor.
"Q: Did you ask him what was he feeling at that time?
"A: Yes, sir.
"Q: What did he answer?
"A: He said, he was weak, Your Honor.
"Q: Did he tell you that he is going to die?
"A: No, Your Honor."26
The victim’s statements prior to his death identifying appellant as his assailant have the vestiges of a dying declaration, the elements for its admissibility are:
" (1) the declaration was made by the deceased under consciousness of his impending death; (2) the deceased was at time competent as a witness; (3) the declaration concerns the cause and surrounding circumstances of the declarant’s death; and (4) it offered in a criminal case wherein the declarant’s death is subject of inquiry."27
These requirements are present in this case. The deceased made, before his death, more than one statement, naming the person who shot him. The statements uttered by the deceased were in response to the queries about the identity of the assailant. Such utterances are admissible as a declaration of the surrounding circumstances of the victim’s death, which were uttered under the consciousness of an impending death. That the victim was conscious of his impending death is shown by the extent and seriousness of the wounds inflicted upon the victim. The victim, prior to his death, was competent to be a witness in court and such dying declaration is offered in a criminal prosecution for murder where he was himself a victim.
In a further but futile attempt to exculpate himself from liability, appellant contends that he has no motive to kill the victim. While he admitted that the victim eloped with his wife, he was not the only suspect having a motive to kill the victim. Suffice it to say that the evidence on motive is inconsequential when the identity of the culprit has been positively established28 as in this case.
Ultimately, the issues raised by appellant fall within the sphere of credibility of witnesses which, the reviewing court on appeal, ordinarily gives deference to the assessments and conclusion of the trial court provided it is supported by the evidence on record. Findings of facts by the trial court are usually not disturbed on appeal on the proposition that the lower court had the unique opportunity of having observed the elusive and incommunicable evidence of the witnesses’ deportment on the stand while testifying.
The killing was attended by treachery when the deceased was shot at his back while lying on a carabao sledge conversing with his father, in a sudden and unexpected manner giving him no opportunity to repel it or defend himself against such attack,29 and without any provocation on his part. With respect to the other aggravating circumstances of evident premeditation, abuse of superior strength, and nighttime, this Court cannot appreciate the same against the appellant for lack of factual basis. There is no evidence on record that appellant contemplated and took some time of cool reflection before performing his evil act for evident premeditation to set in. The abuse of superior strength, assuming there is any, is already absorbed in treachery. Nighttime as an aggravating circumstance was not established for lack of proof that appellant specifically sought the darkness of night to perpetuate his deed. In the absence of any evidence that nocturnity was specifically sought for by the offender in the commission of the crime, such aggravating circumstance may not be validly appreciated.
In criminal prosecutions, the accused is entitled to an acquittal, unless his guilt is shown beyond a reasonable doubt. Proof beyond a reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.30 The prosecution ably discharged its duty by establishing its case against appellant through the required quantum of proof.
In Criminal Case No. U-8720, appellant was found guilty of the crime of Illegal Possession of Firearms and Ammunition punished under P.D. 1866 and was sentenced to suffer the penalty of reclusion perpetua and to pay the costs. His separate indictment was on account of the unlicensed firearm used in the killing. Under Section 1 of Republic Act No. 8294,31 "if homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance." Although the crime in this case was committed in 1995, the amendatory law (R.A. No. 8294) which became effective on July 6, 1997, fifteen (15) days after its publication in Malaya and Philippine Journal on June 21, 1997, since it is favorable to appellant,32 shall be given a retroactive effect. Therefore, the illegal possession or use of the unlicensed firearm may no longer be separately charged33 and only one offense should be punished, viz., murder in this case, and the use of unlicensed firearm should only be considered as an aggravating circumstance.34 Considering that appellant is liable for murder, the illegal possession case can no longer be pursued because it is merely treated as an aggravating circumstance.
Article 248 of the Revised Penal Code penalizes murder with reclusion perpetua to death.1âwphi1 Since the killing was committed with the use of an unlicensed firearm, such circumstance will be treated merely as an aggravating circumstance under R.A. 8294. Pursuant to Article 63 of the Revised Penal Code, when the law prescribes a penalty composed of two indivisible penalties, such as reclusion perpetua to death, there being one aggravating circumstance, the greater penalty (death) shall be applied. However, the aggravating circumstance of use of an unlicensed firearm cannot be appreciated in this case because its retroactive application would be unfavorable to the accused, since the higher penalty of death would necessarily be imposed. Thus, we could only impose the penalty of reclusion perpetua in line with the ruling in People vs. Nepomuceno, Jr.35 -
"It must be underscored that although R.A. No. 7659 had already taken effect at the time the violation of P.D. No. 1866 was allegedly committed x x x there is nothing in R. A. No. 7659 which specifically reimposed the death penalty in P.D. No. 1866. Without such reimposition, the death penalty imposed in Section 1 of P.D. No. 1866 for aggravated illegal possession of firearm shall remain suspended pursuant to Section 19(1) of Article III of the Constitution. Conformably therewith, what the trial court could impose was reclusion perpetua."
WHEREFORE, the assailed judgment is hereby MODIFIED as follows:
1. In Criminal Case No. U-8719 for MURDER, the penalty imposed on accused-appellant DOMINGO VALDEZ Y DULAY is reduced to reclusion perpetua. In addition to the death indemnity of ₱50,000.00, the ₱200,000.00 moral damages awarded by the trial court to the heirs of Labrador Valdez y Madrid is reduced to ₱50,000.00, and the ₱23,500.00 awarded as actual damages is likewise reduced to ₱19,000.00, the amount actually proved.
2. In Criminal Case No. U-8720 for ILLEGAL POSSESSION OF FIREARMS, the sentence imposed on accused-appelant DOMINGO VALDEZ y DULAY is SET ASIDE and ANNULLED and the case is DISMISSED, the act charged therein being considered merely as an aggravating circumstance pursuant to P.D. 1866, as amended by Rep. Act No. 8294.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Footnotes
1 Records, Folder II, p. 32.
2 Records, Folder I, p. 17.
3 TSN, June 13, 1996, p. 14 and 17.
4 Ibid., at p. 7.
5 TSN, August 13, 1996, pp. 7-8.
6 TSN, June 13, 1996, p. 18.
7 Rollo, pp. 163-164.
8 Rollo, pp. 85-86.
9 Surname Centino, as the name appears in the TSN, was referred to as Centeno in the RTC decision.9
10 People vs. Javier, 269 SCRA 181 [1997].
11 TSN, September 2, 1996, p. 24.
12 TSN, June 26, 1996, pp. 6-7.
13 TSN, June 13, 1996, p. 17.
14 Ibid., pp. 4,15 and 18.
15 Ibid., p. 5.
16 Ibid., p. 16.
17 Ibid., p. 5.
18 TSN, July 3, 1996, p. 5.
19 Rollo, p. 108.
20 TSN, June 26, 1996, p. 22; Rollo, p. 108.
21 People vs. Villaviray, 262 SCRA 13, at p. 20 [1996].
22 Section 37, Rule 130, Rules of Court. Dying Declaration. –The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death.
23 Francisco, The Revised Rules of Court in the Philippines, Evidence, Volume VII, Part I, 1997 Edition, p. 548.
24 Rollo, p. 106.
25 TSN, June 26, 1996, p. 10; Rollo, pp. 106-107.
26 TSN, July 3, 1996, p. 27; Ibid.
27 People vs. Marollano, 276 SCRA 84 [1997].
28 People vs. Valdez, 304 SCRA 611 [1999].
29 Ibid. p. 626.
30 Section 2, Rule 133, Rules of Court
31 An act amending the provisions of P.D. 1866, as amended, entitled "Codifying the laws on illegal/unlawful possession, manufacture, dealing in, acquisition or distribution of firearms, ammunitions, or explosives or instruments used in the manufacture of firearms, ammunitions or explosives and imposing stiffer penalties for certain violations thereof and for relevant purposes."
32 Article 22, Revised Penal Code. Retroactive effect of penal laws.- Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5, Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.
33 People vs. Nepomuceno, Jr., 309 SCRA 466, 472 [1999].
34 Ibid.; see also People vs. Valdez, 304 SCRA 611, 630 [1999].
35 309 SCRA 466, 473 [1999].
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