PEOPLE OF THE PHILIPPINES,plaintiff-appellee,vs.NERIO GADDI y CATUBAY,defendant-appellant.Nerio Gaddi y Catubay was charged with murder for the death of one Augusto Esguerra y Navarro in an information which reads as follows:xxx xxx xxxThat on or about the 11th day of December, 1981, in Quezon City, Metro Manila, Philippines, the above-named accused, with intent to kill, without any justifiable cause, qualified with treachery and with evident pre-meditation (sic), did then and there, wilfully, unlawfully and feloniously attack, assault and employ personal violence upon the person of one AUGUSTO ESGUERRA y NAVARRO, by then and there stabbing him several times with a knife, hitting him on the different parts of his body, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of the offended party in such amount as maybe awarded under the provision of the Civil CodeAfter arraignment, wherein Gaddi pleaded not guilty, and trial Judge Maximiano C. Asuncion of Branch 104 of the Regional Trial Court of Quezon City handed down a verdict of guilt for the crime charged, the decretal portion of which reads:WHEREFORE, the Court finds the accused NERIO GADDI y CATUBAY guilty beyond reasonable doubt of the crime of murder, as charged in the information, and hereby sentences him to suffer the penalty of RECLUSION PERPETUA or LIFE IMPRISONMENT and to pay his heirs of Augusta Esguerra the sum of P50,000.00 without subsidiary imprisonment in case of insolvency, with all the accessory penalties provided for by law, and to pay the costs.SO ORDERED. [Rollo, p. 31.]On appeal to this Court, Gaddi assigns as errors of the trial court the following:ITHE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF ERNESTO GUZMAN AND IN TOTALLY DISREGARDING THE EVIDENCE ADDUCED BY THE DEFENSE.IITHE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT BASED ON HIS WRITTEN STATEMENT (EXH. "F") WHICH IS INADMISSIBLE IN EVIDENCE.IIITHE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCES OF TREACHERY AND EVIDENT PRE-MEDITATION [Rollo, p. 38.]The prosecution presented five (5) witnesses before the courta quo,namely: Ernesto Guzman, Pat, Arturo Angeles, Cpl. Rogello Castillo, Pat. Jesus Patriarca and Dr. Gregorio C. Blanco. On the other hand, the accused Gaddi was the sole witness presented for the defense. The prosecution's version of the facts are as follows:xxx xxx xxxAt about 5:00 o'clock in the afternoon of December 11, 1981, at San Bartolome, Novaliches, Quezon City, Ernesto Guzman saw appellant Nerio Gaddi and the victim Augusto Esguerra drinking gin. In the morning of the following day, December 12, 1981, appellant told Ernesto Guzman that he killed his drinking partner Augusto Esguerra and dumped his body in a toilet pit. Guzman advised appellant to surrender to the police. After work, Guzman went to the police and reported what appellant told him (pp. 2-3. tsn, September 2, 1982; pp. 2-8. tsn, August 9, 1983).At around 2:00 o'clock in the afternoon of the same day, December 12, 1981, Corporal Rogelio Castillo and Detective Rodrigo Salamat arrested appellant at Manrey Subdivision, Novaliches, Quezon City. Appellant told Corporal Castillo that he killed the victim and where he buried the body. Later, Pat. Jesus Patriarca arrived. Appellant himself led the policeman and Barangay residents to where the body was in a toilet pit in the backyard of Ernesto Guzman. The policeman, with the help of the Barangay residents, dug out the body. The body of the victim was Identified by Ernesto Guzman, his wife, and Jose Esguerra, victim's brother. Pat. Patriarca took pictures of the body (Exhibits C to C-5), noted the statements of Ernesto Guzman and Jose Esguerra, (Exhibit D), and took down the confession of appellant (Exhibit F). Later, the cadaver was subjected to autopsy (pp. 3-13, tsn, August 24, 1983; pp. 3-22, tsn, January 3, 1984).A man's T-shirt with collar, colored yellow, red and blue, and red shorts, were recovered from the pit where the body of the victim was dug out. The T-shirt and shorts were Identified by Ernesto Guzman as those worn by appellant while he was drinking with the victim on December 11, 1981 (pp. 2-3, tsn, September 2, 1982). A small table, rubber slipper, bottle of wine and glass were likewise recovered from the same pit. (p. 6, tsn, July 14, 1983). [Brief for the Appellee, pp. 35; Rollo, p. 52.1On the other hand, the defense's version of the facts are as follows:Accused Nerio Gaddi a resident of Novaliches, Quezon City, testified that on December 11, 1981, at around 2:00 to 5:00 p.m., he was drinking with Augusta Esguerra (Bong Kuleleng) near the house of Ernesto Guzman. At about 5:00 p.m., be was requested by Ernesto Guzman to buy gin. He left Ernesto Guzman and Augusta Esguerra (who were allegedly drinking) in order to buy a bottle of gin in a nearby store, about 200 meters away. At the store, he met an acquaintance and they talked for a while before returning. Upon his arrival at the place (where they had a drinking spree) he noticed stain of blood in the place where they had been drinking and Augusta Esguerra, alias Bong Kuleleng was not there anymore. He inquired from Ernesto Guzman the whereabouts of Augusta Esguerra and was told that the latter "went home already". He then asked Guzman about the blood and was told that it was the blood stain of a "butchered chicken." At about 12:00 o'clock midnight, Ernesto Guzman informed him about the killing of Augusta Esguerra. Guzman narrated to him that Bong Kuleleng (Augusta Esguerra) held his rooster by the neck and that his tattoo mark BCJ (Batang City Jail) will be erased by him. He did not report the killing to the authorities. Guzman likewise requested ban to admit the killing but he refused. While in the house, Guzman filed the case ahead. He was later arrested and investigated while looking for the corpse. When brought to the police station, he was forced to admit the killing of Augusto Esguerra (TSN, pp. 3-14 August 20, 1984). [Appellant's Brief, p. 4-5; Rollo, p. 38.]The Court finds the instant appeal unmeritorious.Where the conviction of an accused is based merely on circumstantial evidence, as in this case, it is essential for the validity of such conviction that: 1) there be more than one circumstance; 2) the facts from which the inferences are derived are proven; and 3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt [Section 5, Rule 133 of the Revised Rules of Court, People v. Modesto, G.R. No. L-25484, September 21, 1968, 25 SCRA 36; People v. Pajanustan, G.R. No. L-38162, May 17, 1980, 97 SCRA 699.] Although no general rule has been formulated as to the quantity of circumstantial evidence which will suffice for any case, yet all that is required is that the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty and at the same time inconsistent with any other hypothesis except that of guilty [People v. Constante, G.R. No. L-14639, December 28, 1964, 12 SCRA 653; People v. Caneda, G.R. No. L-19132, September 26, 1964, 12 SCRA 9.]In the case at bar, the circumstantial evidence adduced by the prosecution sufficiently satisfies the quantum of proof necessary to uphold a judgment of conviction. The following circumstances proven by the prosecution indubitably point to the accused as the perpetrator of the crime committed against Augusto Esguerra.1. The fact that said victim was last seen on the day he was killed in the company of the accused, drinking gin at the back of the house of Ernesto Guzman [TSN, August 9,1983, p. 1.]2. The fact that on the day after the drinking spree, December 12, 1981, the accused himself admitted to Ernesto Guzman that he stabbed his drinking companion and that the latter was 'nadisgrasya niya" so he dumped the body of the victim in a hole being dug out for a toilet, located at the yard of Ernesto Guzman [TSN, August 9,1983, p. 7.]3. The fact that when he was turned over to Pat. Arturo Angeles and Pat. Rogelio Castillo of the Northern Police District by the barangay people who apprehended him, be admitted the truth of the charge of the barangay residents that he killed someone and that he dumped the body of the victim in a place being dug out as an improvised toilet [TSN, July 14, 1983, p. 5; TSN, August 24, 1983, p. 8.] At the time the barangay people started digging for the body of the victim, the appellant was even instructing them as to the exact location where the body was buried [TSN, August 24, 1983, p. 6.]4. The fact that the place where be led the police officers and the barangay residents, i.e. the toilet pit in the backyard of Ernesto Guzman, was indeed the site where he buried the victim as the body of the victim was found there after the digging [TSN, January 3, 1984, p. 5.]5. The fact that the T-shirt and shorts which the accused was wearing during the drinking spree were later recovered from the place where the victim was buried [TSN, September 2, 1982, p. 3.]Appellant however disputes the trial court's reliance on the testimonies of the prosecution witnesses as a basis for his conviction. As a rule, the trial court's assessment of the credibility of the prosecution witnesses is entitled to great weight and respect [People v. Valentino, G.R. Nos. L-49859- 60, February 20, 1986, 141 SCRA 397; People v. Dagangon, G.R. Nos. L-62654-58, November 13, 1986, 145 SCRA 464] since it has the advantage of observing the demeanor of a witness while on the witness stand and therefore can discern if such witness is telling the truth or not [People v. Ornoza, G.R. No. 56283, June 30, 1987, 151 SCRA 495.]Moreover, appellant's claim that Ernesto Guzman's testimony on Gaddi's confession of the crime to him cannot be given credence for being hearsay is unavailing. This Tribunal bad previously declared that a confession constitutes evidence of high order since it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience [People v. Salvador, G.R. No. L-77964, July 26, 1988 citing People v. Castaneda; G.R. No. L-32625, August 31, 1979, 93 SCRA 59.] Proof that a person confessed to the commission of a crime can be presented in evidence without violating the hearsay rule [Section 30, Rule 130 of the Revised Rules of Court] which only prohibits a witness from testifying as to those facts which he merely learned from other persons but not as to those facts which he"knows of his own knowledge: that is, which are derived from his own perception."Hence, while the testimony of a witness regarding the statement made by another person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement [People v. Cusi Jr., G.R. No. L-20986, August 14, 1965, 14 SCRA 944.]Here, when Guzman testified that the appellant, who probably was bothered by his conscience, admitted the killing to him, there was no violation of the hearsay rule as Guzman was testifying to a fact which he knows of his own personal knowledge; that is, be was testifying to the fact that the appellant told him that he stabbed Augusta Esguerra and not to the truth of the appellant's statement.That the testimony of Guzman on appellant's oral confession is competent evidence finds support inPeople v. Tawat[G.R. No. L-62871, May 25, 1984, 129 SCRA 4311 which upheld the trial court's reliance on an extrajudicial confession given, not to a police officer during custodial interrogation, but to an ordinary farmer as the basis for conviction. The Court's pronouncements in the aforesaid case find relevance in the instant case:The declaration of an accused expressly acknowledging his guilt of the offense charged, may be given in evidence against him' (Sec. 29 Rule 130, Rules of Court). What Felicito told Ogalesco may in a sense be also regarded as part of the res gestae.The Rule is that "any person, otherwise competent as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood all of it.An oral confession need not be repeated verbatim, but in such case it must be given in its substance." (23 C.J.S. 196.)Proof of the contents of an oral extrajudicial confession may be made by the testimony of a person who testifies that he was present, heard, understood, and remembers the substance of the conversation or statement made by the accused [citing Underhill's Criminal Evidence, 4th Ed., Niblack, Sec. 278, p. 551.) [at pp. 436-437; Emphasis supplied.]The trial court found no reason to doubt Guzman's credibility as a witness considering his stature in the community as a member of a religious movement participating in such activities as "maanita" and procession of the Fatima and Black Rosary [Rollo, p. 30.] In fact, on the day the killing took place, he left his house where appellant and his companion, Esguerra were still drinking and went to the house of Junior Isla to attend a "maanita" and participate in the weekly activity of bringing down the crucifix and the image of the Fatima [TSN, September 2, 1982. p. 2] Besides, there was no showing at all that he was actuated by improper motives in testifying against appellant so as to warrant disregard of his testimony [People v. Magdueno, G.R. No. L-68699, September 22, 1986, 144 SCRA 210.] On the contrary, the evidence shows that even though the appellant is not related at all to Guzman, the latter, as an act of generosity, allowed the former to sleep in the porch of his house as the former had no immediate relatives in Quezon City [TSN, August 9, 1983, p. 14.]As to the testimony of Pat. Angeles and Pat. Castillo, the police officers who apprehended the appellant, credence should be given to their narration of how the appellant was apprehended and how he led the police and the barangay residents to the place where he dumped the body of his victim since those police officers are presumed to have performed their duties in a regular manner in the absence of evidence to the contrary [People v. Boholst, G.R. No. L-73008, July 23, 1987, 152 SCRA 263 citing People v. Gamayon, G.R. No. L-25486, April 28, 1983, 121 SCRA 642; People v. Campana, G.R. No. L-37325, August 30, 1983, 124 SCRA 271; People v. Rosas, G.R. No. L-72782, April 30 1987, 149 SCRA 464.]Appellant's defense to the prosecution's charge rests on an uncorroborated and purely oral evidence of alibi. It has been ruled time and again that courts look upon the evidence of alibi with suspicion [People v. Bondoc, 85 Phil. 545 (1950)] and always receive it with caution [People v. Cinco, 67 Phil. 196 (1939); People v. de Guzman, 70 Phil. 23 (1940)] not only because it is inherently weak and unreliable but also because of its easy fabrication [People v. Rafallo, 86 Phil. 22 (1950).] To overcome the evidence of the prosecution, an alibi must satisfy the test of "full, clear and satisfactory evidence" [U.S. v. Pascua, 1 Phil. 631 (1903); U.S. v. Oxiles, 29 Phil, 587 (1915); U.S. v. Olais, 36 Phil 828 (1917).] This test requires not only proof that the accused was somewhere else other than the scene of the crime but clear and convincing proof of physical impossibility for the accused to have been at the place of the commission of the crime [People v. Pacis, G.R. Nos. L-32957- 58, July 25, 1984. 130 SCRA 540; People v. Coronado, G.R. No. 68932, October 28, 1986, 145 SCRA 250; People v. Ferrera, G.R. No. 66965, June 18, 1987, 151 SCRA 113.]The testimony of the accused himself believes any claim of physical impossibility for him to be at the scene of the crime since according to him, the store where he allegedly bought another bottle of gin was only 200 meters away. He was able to return to Guzman's house only after half an hour since he still had a chat with an acquaintance at the store. Even granting the truth of appellant's story that he was ordered by Guzman to buy a bottle of gin at about 5:00 o'clock in the afternoon and that he was back after thirty minutes, it was not impossible for him to have committed the crime since Guzman and his wife left appellant alone with the victim at around 6:00 o'clock in the evening to attend the mananita at the house of Junior Isla. Thus, his statements on the witness stand, far from demonstrating physical impossibility of being at the scene of the crime, cast serious doubt on the veracity of his alibi.As the culpability of the accused has been established beyond reasonable doubt by the evidence of the prosecution, there is no need to dwell on the admissibility of appellant's extra-judicial confession [Exh. F to F-9; Rollo, p. 20,et seq.] His conviction can be sustained independently of said confession.However, in the absence of proof as to how the victim was killed, the aggravating circumstances of treachery and evident premeditation cannot be properly appreciated. The killing must be considered as homicide only and not murder since the circumstance qualifying the killing must be proven as indubitably as the killing itself [People v. Vicente, G.R. No. L-31725, February 18, 1986, 141 SCRA 347.] This Tribunal clearly pointed out in a previous case thatAs heretofore stated, not a single eyewitness to the stabbing incident had been presented by the prosecution. Thus, the record is totally bereft of any evidence as to the means or method resorted to by appellant in attacking the victim. It is needless to add thattreachery cannot be deduced from mere presumption, much less from sheer speculation. The same degree of proof to dispel reasonable doubt is required before any conclusion may be reached respecting the attendance of alevosia[People v. Duero, G.R No. 65555, May 22, 1985, 136 SCRA 515, 519-520; Emphasis supplied. ]Neither can the aggravating circumstance of evident premeditation be considered, absent a clear showing of1. the time when the of tender determined to commit the crime;2. an act manifestly indicating that the culprit clung to his dead termination; and3. a sufficient laspe of time between the determination and the execution to allow him to reflect upon the consequences of his act [People v. Diva, G.R. No. L-22946, October 11, 1968, 25 SCRA 468; People v. Pacada, Jr., G.R. Nos. L-44444-45, July 7, 1986, 142 SCRA 427.]As the evidence on record does not disclose the existence of treachery and evident premeditation in the stabbing of the victim, the crime committed is only HOMICIDE and not murder, Since there are neither mitigating nor aggravating circumstances, the penalty for homicide which isreclusion temporalshould be imposed in its medium period. Applying the Indeterminate Sentence Law, the range of the imposable penalty is from eight (8) years and one (1) day ofprision mayor,as minimum, to seventeen (17) years and four (4) months ofreclusion temporal,as maximum.Absent any proof of actual damages, the heirs of Augusta Esguerra are entitled only to the indemnity of P 30,000.00. Hence, the amount of P50,000.00 awarded by the trial court should be reduced accordingly.WHEREFORE, the appealed decision is MODIFIED and the accused-appellant is hereby found guilty beyond reasonable doubt of the crime of HOMICIDE, sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day ofprision mayoras minimum, to seventeen (17) years and four (4) months ofreclusion temporalas maximum, and to indemnify the heirs of Augusto Esguerra in the amount of P 30,000.00.SO ORDERED.

G.R. No. 177147 November 28, 2007(Formerly G.R. No. 147313)THE PEOPLE OF THE PHILIPPINES,Appellee,vs.JOEMARIE CERILLA, VELASCO, JR.,Appellant.For automatic review is the Decision1of the Court of Appeals2dated 26 October 2006 in CA-G.R. CR-HC No. 00032 which affirmed with modification the Decision3of the Regional Trial Court (RTC) of Iloilo City, Branch 23 dated 15 August 2000 in Criminal Case No. 496502 finding appellant Joemarie Cerilla guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty of reclusion perpetua.On 6 July 1998, an Information was filed against appellant charging him of the crime of murder committed as follows:That on or about April 24, 1998, in the Municipality of Leganes, Province of Iloilo, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a firearm with deliberate intent and decided purpose to kill and by means of treachery, did then and there willfully, unlawfully and feloniously shoot Alexander Parreo with the firearm which the accused was then provided, hitting and inflicting pellet wound at the right back portion of his body which caused his death.CONTRARY TO LAW.4The prosecutions evidence shows that at around 6:00 pm on 24 April 1998, the victim, Alexander Parreo (Alexander), his 14-year old daughter, Michelle, and neighbor, Phoebe Sendin (Sendin), went to the house of appellant. They were cordially welcomed and entertained by appellant and his wife.5An hour later, a blackout occurred. At this time, Alexander sought permission from the couple to leave, which the latter acknowledged.6On their way home, Michelle was walking ahead of Alexander with the latter closely following his daughter. Suddenly, after walking for about 100 metersfrom appellants house, Michelle heard an explosion. Michelle immediately turned her back and saw appellant pointing a gun at Alexander who, at that moment, was staggering towards her.7Sendin, who was also with Alexander and Michelle, did not look back but instead ran away and proceeded to the house of Mrs. Parreo.8Meanwhile, Michelle was cuddling Alexander beside the road when the latter repeatedly told her that it was appellant who shot him.9Twenty minutes later, Alexanders other daughter, Novie Mae, arrived; she was also told by Alexander at that moment that it was appellant who shot him.10SPO3 Frederick Dequito (SPO3 Dequito) and other police officers rushed to the crime scene and helped carry Alexander to an ambulance. SPO3 Dequito was able to ask Alexander who shot him to which he answered "Pato." "Pato" is an alias by which appellant is known.11Alexanders wife, Susan, who rushed to the hospital was also told by Alexander that it was appellant who shot him.12Alexander died the following day.13Dr. Tito D. Doromal, Philippine National Police medico-legal officer, performed an autopsy on the body of Alexander. The autopsy report stated the cause of death to be hemorrhage secondary to pellet wounds.14Testifying on his report, Dr. Doromal explained that Alexander died from a gunshot wound which penetrated the ribs and lacerated the right lobe of the liver, colon, stomach, duodenum, and right kidney. The entrance wound was located at the middle-back portion of the body. Seven (7) pellets were recovered on the muscle of the upper and middle abdominal wall.15The defenses evidence consists of the testimonies of appellant himself and of his wife, Madoline, his stepdaughter, Franlin, PO1 Manolito Javelora, PO3 Alberto Sarmiento, and PO3 Wilson Allona. Appellant interposed alibi as his main defense. He claimed that Alexander, together with his daughter and Sendin, had gone to his house on 24 April 1998 at around 6:00 p.m. where they were welcomed and offered snacks.16They were having a conversation when a blackout occurred. Alexander then asked permission to leave. After the visitors had left, appellant ordered his stepdaughter Franlin to buy candle at the store across their house. Appellant and Madoline posted themselves at their doorway holding a flashlight to light Franlins path. Upon Franlins return to the house, appellant heard an explosion and he immediately closed the door. Later, the policemenwent to his house and told him that he was a suspect in the shooting of Alexander and was then brought to the police station.17The following day, he was subjected to paraffin test the result of which turned out to be negative.18Appellants testimony was corroborated by Madoline and Franlin. PO1 Javelora declared that when he asked Alexander who shot him, the latter did not answer.19Likewise, PO3 Sarmiento and Allona stated that when they went to the hospital to interrogate Alexander, the latter could not give a definite answer as to who shot him.20On 15 August 2000, the RTC found appellant guilty beyond reasonable doubt of murder and sentenced him to suffer the penalty of reclusion perpetua. The dispositive portion of the decision read:WHEREFORE, premises considered, and in the light of the facts obtaining and the jurisprudence aforecited, judgement is hereby rendered finding the accused GUILTY beyond reasonable doubt of the crime of MURDER, hereby sentencing the said accused to the penalty of RECLUSION PERPETUA pursuant to Sec. 6 of Republic Act No. 7659[,] amending Article 248 of the Revised Penal Code. The said accused is further condemned to indemnify the surviving heirs of the deceased, Alexander Parreo, the sum ofP257,774.75 by way of actual damages; the amount ofP30,000.00 by way of moral damages and the sum ofP50,000.00 by way of death compensation. The accused who is detained is entitled to be credited in full with the entire period of his preventive detention. The Jail Warden, Iloilo Rehabilitation Center is ordered to remit the said accused to the National Penitentiary at the earliest opportunity.SO ORDERED.21The trial court regarded the victims dying declaration as the most telling evidence pointing to appellant as the assailant.22It appreciated the presence of treachery in qualifying the crime to murder because the victim was unarmed and walking on his wayhome when he was suddenly and unexpectedly shot from behind by appellant.23The trial court ruled that appellants alibi and denial could not prevail over the positive testimonies of credible witnesses.24Moreover, it observed that appellant was not able to prove the impossibility of his presence at the crime scene which could have proven his alibi.25In view of the penalty of reclusion perpetua imposed on appellant, the case was initially elevated to this Court for review. However, pursuant to our ruling in People v. Mateo,26the case was referred to the Court of Appeals.The appellate court affirmed the trial courts ruling but modified the award of moral damages from Thirty Thousand Pesos to Fifty Thousand Pesos.27Hence, the instant appeal.In a Resolution dated 16 July 2007, the Court required the parties to simultaneously submit their respective supplemental briefs if they so desired.28Both parties manifested that they would adopt their briefs filed before the appellate court.29Thereafter, the case was deemed submitted for decision.Appellant argues that the trial court erred in giving full credence to the testimony of the prosecution's eyewitness, Michelle, as well as the dying declaration of Alexander considering that the circumstances under which the crime was committed rendered the identification of the gunman impossible.This argument essentially challenges the credibility of the witnesses, including the eyewitness, whose testimonies were relied upon by the trial court in convicting appellant. Basic is the principle that the findings of fact of a trial court, its calibration of the testimonies of the witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded high respect, if not conclusive effect. This is because thetrial court has the unique opportunity to observe the demeanor of a witness and is in the best position to discern whether they are telling the truth. This rule holds true especially when the trial court's findings have been affirmed by the appellate court.30Appellants authorship of the crime was proven by the positive identification of an eyewitness and the victims dying declaration.The prosecution presented Michelle, who categorically identified appellant as the one who shot Alexander, viz:Q: While you and your father were walking towards home, did you remember anything unusual that happened?A: Yes, Maam.Q: What was that?A: I heard an explosion.Q: Where were you in relation to your father when you heard that shot?A: I was in front of my Daddy and he was at my back.Q: You said you heard a shot, what did you do when you heard a shot?A: When I heard the shot, I turned back and I saw Joemarie pointing to my Dad.COURT:Q: What did he point towards your Dad?A: Firearm.PROSECUTOR PADILLA:Q: You said Joemarie was pointing a firearm to your father. Was it [a] long or short firearm?A: About 11 inches.Q: After you saw Joemarie pointing a firearm to your father, what happened next?A: I saw my father staggering towards me and I saw Joemarie Cerilla ran.Q: Where was he going?A: Maybe towards his house.31x x x xQ: If this Joemarie Cerilla is inside the Courtroom, can you identify him?A: Yes, Maam.Q: Please point to him. (Witness pointing to the accused Joemarie Cerilla).32Michelles account of how her father was shot by appellant was corroborated by the post-mortem examination which reveals that the entrance wound is located at the back of the victim.33In the same vein, the medico-legal expert concluded that the gunshot was fired at a close range, as evidenced by the presence of a power burn measuring four (4) centimeters in diameter surrounding the periphery of the wound34and penetrating his internal organs.35Significantly, the eyewitnesss positive identification of appellant as the perpetrator of the crime is fully supported the victims dying declaration.A dying declaration is a statement made by the victim of homicide, referring to the material facts which concern the cause and circumstances of the killing and which is uttered under a fixed belief that death is impending and is certain to follow immediately, or in a very short time, without an opportunity of retraction and in the absence of all hopes of recovery. In other words, it is a statement made by a person after a mortal wound has been inflicted, under a belief that death is certain, stating the facts concerning the cause and circumstances surrounding his/her death.36As an exception to the rule against hearsay evidence, a dying declaration or ante mortem statement is evidence of the highest order and is entitled to utmost credence since no person aware of his impending death would make a careless and false accusation.37It is thus admissible to provide the identity of the accused and the deceased, to show the cause of death of the deceased, and the circumstances under which the assault was made upon him. The reasons for its admissibility is necessity andtrustworthiness. Necessity, because the declarants death renders it impossible his taking the witness stand, and it often happens that there is no other equally satisfactory proof of the crime; allowing it, therefore, prevents a failure of justice. And trustworthiness, because the declaration is made in extremity, when the party is at the point of death and when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth. The law considers the point of death as a situation so solemn and awful as creating an obligation equal to that which is imposed by an oath administered in court.38Of the doctrines that authorize the admission of special classes of hearsay, the doctrine relating to dying declarations is the most mystical in its theory and, traditionally, among the most arbitrary in its limitations. In the United States, the notion of the special likelihood of truthfulness of deathbed statements was widespread long before the recognition of a general rule against hearsay in the early 1700s. Not surprisingly, nearly as soon as we find a hearsay rule, we also find an exception for dying declarations.39Four requisites must concur in order that a dying declaration may be admissible, thus: first, the declaration must concern the cause and surrounding circumstances of the declarant's death. This refers not only to the facts of the assault itself, but also to matters both before and after the assault having a direct causal connection with it. Statements involving the nature of the declarants injury or the cause of death; those imparting deliberation and willfulness in the attack, indicating the reason or motive for the killing; justifying or accusing the accused; or indicating the absence of cause for the act are admissible.40Second, at the time the declaration was made, the declarant must be under the consciousness of an impending death. The rule is that, in order to make a dying declaration admissible, a fixed belief in inevitable and imminent death must be entered by the declarant. It is the belief in impending death and not the rapid succession of death in point of fact that renders the dying declaration admissible. It is not necessary that the approaching death be presaged by the personal feelings of the deceased. The test is whether the declarant has abandoned all hopes of survival and looked on death as certainly impending.41Third, the declarant is competent as a witness. The rule is that where the declarant would not have been a competent witness had he survived, the proffered declarations will not be admissible. Accordingly, declarations made by a child too young to be a competent witness or by a person who was insane or incapable of understanding his own statements by reason of partial unconsciousness are not admissible in evidence.42Thus, in the absence of evidence showing that the declarant could not have been competent to be a witness had he survived, the presumption must be sustained that he would have been competent.43Fourth, the declaration must be offered in a criminal case for homicide, murder, or parricide, in which the declarant is the victim.44Anent this requisite, the same deserves no further elaboration as, in fact, the prosecution had caused its witnesses to take the stand and testify in open court on the substance of Alexanders ante mortem statement in the present criminal case for murder.The victim communicated his ante-mortem statement to three persons who testified with unanimity that they had been told by the victim himself that it was appellant who shot him. Michelle recounted:Q: You said your father moved towards you, what happened next?A: I approached my father and cuddled him.Q: What happened next?A: While I was cuddling my father he said, "Day, it was Joemarie who shot me."Q: How many time he said he was shot?A: Not once but about 10 times.45Shortly thereafter, Novie Mae arrived and was told by Alexander that it was appellant who opened fire at him:Q: When you reached Confessor Street, what happened?A: I saw that my elder sister was assisting my father.COURT:Q: Whats the name of your sister?A: Michelle.COURT:Proceed.FISCAL:Q: When you saw your sister Michelle assisting your father, what [sic] happened next?A: And I immediately went near my father and asked him who shot him and he answered it was Joemarie Cerilla who shot him.Q: Before you reached your father, did you observe his physical appearance of what happened to him?A: Yes, Maam, he was supporting with his arm and when I asked him he still made a response.Q: You said [that] before you approached your father[,] you saw him supporting his body, what was his position at that time?A: He was in a position of lying with his hand on the road and my sister was assisting him.x x xQ: Were you able to observe why your father was sitting on the ground and supporting himself not to fall.A: Yes, Maam.Q: Why, [sic] what did you observe?A: My father was supporting himself in order that blood will not [ooze] from his body and his body will not fall down.46SPO3 Dequito, who responded immediately to the crime scene, corroborated the testimonies of the Alexanders children, to wit:Q: So, what did you do when you arrived at the crime scene?A: We advised the group to carry Mr. Parreo to the ambulance because the ambulance was on the way and after our mobile arrived, the ambulance arrived also [sic] so we carried Mr. Parreo to be brought to the hospital.COURT:Q: Meaning you loaded the victim into the ambulance?A: Yes, Your Honor.Q: And after he was loaded, what did you do?A: Before the ambulance left the area, I questioned the victim who shot him and he answered Alias "Pato." I am referring to Joemarie Cerilla, the accused.Q: The accused Cerilla, Alias "Pato"?A: Yes, Your Honor.PROSECUTOR:Q: Can you remember the exact words uttered by the victim when you asked him who shot him?A: He answered me that: I questioned him, "Who shot you?" and he answered that it was Cerilla and I further asked him "The husband of Madoline" and he answered "Yes, Alias "Pato", the husband of Madoline.47Likewise, Alexanders wife, Sonia, testified:Q: You said from your house when you were told by the girls that your husband was shot, what did you do?A: I looked for a taxi and proceeded to the hospital.x x xQ: When you arrived at the hospital, where did you go first?A: To my husband.x x xQ: When you reached that hospital and your own mother led you to where Alexander was, in what part of the hospital did you first see him.A: Outside the operating room.Q: What was the situation of your husband when you first saw him?A: He was leaning on his side and many nurses attending to him and saying "araguy."x x xQ: Between you and your husband who spoke first?A: My husband.Q: What were the exact words stated by your husband?A: He told me that it was Joemarie who shot him.48These statements comply with all the requisites of a dying declaration. First, Alexanders declaration pertains to the identity of the person who shot him. Second, the fatal quality and extent of the injuries49he suffered underscore the imminence of his death as his condition was so serious that his demise occurred the following morning after a thirteen (13)-hour operation. Third, he would have been competent to testify had he survived. Fourth, his dying declaration is offered in a criminal prosecution for murder where he was the victim.Other police officers were presented by the defense to refute the dying declaration.1wphi1PO1 Javelora alleged that he happened to pass by the crime scene and saw a young girl crying. The girl led him to her father who was sitting on the roadside. He asked the victim who shot him but he did not get any reply.50PO3 Allona and Sarmiento arrived at the hospital and questioned Alexander as to who shot him but the latter told them, "I am not sure because it was dark."51These statements cannot be construed as a categorical statement of the victim denying knowledge as to the identity of his assailant. It can be recalled that at the time Alexander was being questioned, he was already being readied for surgery. At that point, he was understandably no longer fit to respond to questions. Between these two seemingly conflicting testimonies, it is the positive identification made by Alexander in his dying declaration which must be sustained.Appellant insists that there was an inherent impossibility in identifying the assailant with clarity since there was a power blackout at the time of the commission of the crime and was then a moonless night.The fact that the crime was committed during a blackout does not cast doubt on Alexanders and Michelles positive identification of appellant. While the place of occurrence was dark, this did not prevent the Alexander or Michelle from identifying the assailant, especially since the shot was delivered at close range.In dismissing appellants contention, the trial court rationalized:x x x This argument deserves scant consideration. In the case of People v. Hillado, G.R. No. 122838[,] promulgated on May 24, 1999[,] citing the case of People v. Oliano, "visibility at nighttime is possible not only at the exact minute and date when the moon is full as indicated in the calendar. Thus, a persons nocturnal eyesight, is not necessarily diminished just because there is no illumination from the moon, because it is a fact that our eyes can actually adjust to the darkness so that we can still see objects clearly even without sufficient lighting. In the case at bar, it would not be so hard for Michelle to identify a persons fact especially if the latter as in the present case was barely two (2) arms length away from them which is confirmed by the presence of gunpowder nitrates on the body of the victim. We stress, that the normal reaction of the person is to direct his sight towards the source of a startling [shot] or occurrence. As held in People v. Dolar, the most natural reaction of the victims in criminal violence is to strive to see the looks and faces of their assailants and to observe the manner in which the crime is committed. Added to this is the fact that the accused Joemarie Cerilla and the victim Alexander Parreo have known each other quite well before the incident so that they became familiar with each others face and physical features. x x x52Moreover, the prosecution witnesses were not shown to be impelled by ill motive to testify falsely against appellant. Besides, Susan, Michelle and Novie Mae, being immediate relatives of the deceased, would naturally be interested in having the real culprit punished.53The positive identification of appellant must necessarily prevail over his alibi.54It was not physically impossible for appellant to have been present at the scene of the crime at the time of its commission. The distance of his house, where he supposedly was, from the locus criminis is only 120-150 meters, more or less.55Appellant counters that there was absence of any motive on his part to kill the victim; that it was not clearly proven that he fired a gun, based on the paraffin test; and that he appeared calm and composed and showed no indication of guilt when he was invited by the police officers shortly after the commission of the crime.Time and again, we have ruled that a negative finding on paraffin test is not a conclusive proof that one has not fired a gun because it is possible for a person to fire a gun and yet bear no traces of nitrates or gunpowder, as when the culprit washes his hands or wears gloves.56The trial court correctly rejected the result of the paraffin test in light of the positive identification of appellant.The trial court held that the killing was qualified by treachery because Alexander, who was unarmed, was suddenly and unexpectedly shot from behind by appellant without any risk to the latter from any defense which the former might make. There was no opportunity given to Alexander to repel the assault or offer any defense of his person. There was not the slightest provocation on his part.57We agree with the findings of the trial court. The presence of treachery was evident in the execution of the crime. Appellant suddenly, and without warning, shot Alexander from his back.Under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, murder is punishable with reclusion perpetua to death. Because the killing of Alexander, although qualified by treachery, was not attended by any other aggravating circumstance, the proper imposable penalty is reclusion perpetua.We deem it proper to further impose exemplary damages in the amount ofP25,000.00 which is recoverable in the presence of an aggravating circumstance, whether qualifying or ordinary, in the commission of the crime.58WHEREFORE, the Decision of the Court of Appeals dated 26 October 2006, affirming with modification the Regional Trial Court Judgment dated 15 August 2000 finding appellant, Joemari Cerilla, guilty beyond reasonable doubt of murder, is AFFIRMED with the MODIFICATION that appellant is further ordered to pay the heirs of Alexander ParreoP25,000.00 as exemplary damages.SO ORDERED.

[G.R. No. 129534 & 141169[1].June 6, 2001]THE PEOPLE OF THE PHILIPPINES,plaintiff-appellee, vs.NESTOR MACANDOG, EDDIE MACANDOG, RENATO MACANDOG and BERNARDO IBAEZ,accused.NESTOR MACANDOG,accused-appellant.Accused-appellant Nestor Macandog together with co-accused Eddie Macandog, Renato Macandog and Bernardo Ibanez were charged with the crimes of FRUSTRATED MURDER (Criminal Case No. 5985) and MURDER (Criminal Case No. 5986) in two separate Informations[2]filed before the Regional Trial Court of Legaspi City, Branch 3, which respectively read as follows:1.Criminal Case No. 5985- Frustrated MurderThat at or about 8:00 P.M. of the 19thday of July 1992 at Brgy. San Roque, Municipality of Jovellar, Province of Albay, Philippines and within the jurisdiction of this Honorable Court, said accused with intent to kill and armed with long rifles and bolos, conspiring and confederating with each other, did then and there, willfully, unlawfully and feloniously with evident premeditation, treachery and abuse of superior strength, shoot one EMILIO ATIVO, hitting him in the lower left temple and passing thru his right cheek, thus the perpetrators performed all the acts of execution which would produce the felony of murder as a consequence but which, nevertheless, did not produce it by reason of causes independent of their will, that is, due to the timely medical attention accorded the victim, to his damage and prejudice.2.Criminal Case No. 5986 - MurderThat at or about 8:00 P.M. of the 19thday of July 1992 at Brgy. San Roque, Municipality of Jovellar, Province of Albay, Philippines and within the jurisdiction of this Honorable Court, said accused with intent to kill and armed with long rifles and bolos, conspiring and confederating with each other did then and there, willfully, unlawfully and feloniously with evident premeditation, treachery and abuse of superior strength, shot to death one GLORIANO BAGAMASBAD, to the damage and prejudice of his legal heirs.Upon arraignment on April 26, 1993[3]accused Nestor Macandog, assisted by counsel, pleaded NOT GUILTY to the charges against him.On October 26, 1993, accused Eddie Macandog was arrested and upon his arraignment on November 17, 1993[4]also pleaded not guilty.The other co-accused have remained at large.The evidence for the prosecution established the following facts:At around 8:00 oclock in the evening of July 19, 1992, Emilio Ativo was having a drinking spree with Juan Ativo and Gloriano Bagamasbad at the latters house at San Roque, Jovellar. Albay.[5]Suddenly, a shot rang out and the bullet hit the left face of Emilio causing him to lie flat on the ground.Emilio then saw accused Eddie Macandog pointing his rifle at him while Renato Macandog and Bernardo Ibanez were standing near the house holding their bolos.[6]Two more shots were fired and Gloriano Bagamasbad was hit and fell to the ground. A few minutes after, sensing that all the accused had already left, Emilio, with blood oozing from his wounded face, helped Gloriano, who was also wounded on his back, stood up and they both proceeded to the nearby house of Ederlina Abardo, Glorianos sister.[7]While they were at a distance of about 7 to 8 meters to the house of Ederlina, they stopped as Gloriano was so weak and could hardly walk.At that instance, Emilio asked Gloriano if the latter knew the person who shot him, to which Gloriano replied Nestor Macandog.[8]Emilio then shouted for help.Ederlina Abardo testified that at around 8:00 p.m. of July 19, 1992, she was inside her house located a few meters from the house of Gloriano when she heard three (3) gunshots.[9]She peeped through the closed window of her house and saw Nestor Macandog and Eddie Macandog with long firearms slung over their shoulders, while Bernardo Ibanez and Renato Macandog who were holding bolos, were coming from the direction where the house of Gloriano was located and walking towards the Centro or Poblacion of Jovellar.[10]After a while, she heard her brother Gloriano call her name; thus she went down her house and saw Gloriano and cousin Emilio Ativo lying on the street bathing in their own blood.[11]With the help of Emilio, Ederlina lifted Gloriano and brought him to her house.She then asked Gloriano the persons who shot him to which the latter replied that he was shot by Eddie and Nestor Macandog because of a land dispute.[12]She intimated that the Macandogs were ejected from two parcels of land owned by their family by virtue of a decision in a forcible entry case filed by her mother, Paz Bagamasbad, against the Macandogs.Ederlina added that after talking to Gloriano for 30 minutes, her brother expired.Emilio Ativo however, was brought to the Albay Provincial Hospital for treatment on the following day.She then reported the incident to the police authorities of Jovellar, Albay and to the Human Rights Commission.Dr. Joana Manatlao, Albay Rural Health Physician, conducted the autopsy on the cadaver of the victim Gloriano Bagamasbad on July 20, 1992 and issued an autopsy report with the following findings:[13]Wound, gaping, measuring 10 x 27 cms, extending from the distal third of right arm to the distal third of right forearm with exposure of muscles and bones at this side and transaction of right radial artery and vein was noted.Wound, 3 x 5.5 cms located at the 6thICS right anterior axillary line, 2.5 cms away from the right lower quadrant of right breast.On further examination, it penetrated the inferior border of the lower lobe of the right lung.There was maceration of the superior pole of the right lobe of the liver.Hemothorax and hemoperitoneum was also noted.Wound, 0.5 x 0.5 cm, left paravertebral line, between level of T10 and T11.The cause of death was cardiorespiratory arrest due to hemorrhagic shock due to gunshot wounds.Teresita Bagamasbad, widow of victim Gloriano, testified on the expenses she incurred as a result of her husbands death and asked for P50,000 damages.[14]Paz Bagamasbad, mother of deceased Gloriano, testified that on June 3, 1992, the herein accused together with their relatives armed with firearms forcibly entered her parcels of land located at San Roque, Jovellar, Albay[15]which prompted her to file a forcible entry case against them before the Municipal Trial Court of Camalig[16]where a decision dated April 20, 1993 was rendered in her favor.[17]On the other hand, accused Nestor Macandog interposed the defense of alibi.Heaverred that from 6:00 oclock to 9:00 oclock in the evening of July 19, 1992, he was watching betamax in the house of Gabriel Arcangel situated at Barangay Mercado;[18]that the last time he was in Barangay San Roque was in 1986 and since then had not returned back as he was wanted by the NPA for being a rebel returnee;[19]that Barangay Aurora is about six (6) kms. away from Brgy. San Roque and would take two hours to go there at nighttime.[20]GABRIEL ARCANGELcorroborated the alibi interposed by accused Nestor Macandog that the latter was in his house on July 19, 1992 at around 6:45 P.M. viewing betamax.[21]ANTONIO ARISPEof PAGASA, Legaspi City was presented to show the weather condition in Albay on July 19, 1992.He testified that on July 19, 1992 Public Storm Signal No. 1 was in effect over the Bicol Region due to the presence of Tropical Storm Ditang; that the weather condition was light to moderate and rain fell over the area almost the whole twenty-four-hour period with very low visibility from almost zero to not more than 1,000 meters during periods of rain stoppage;[22]that the illumination was too low due to overcast skies and falling precipitation.[23]EMILIO ATIVOwas presented by the defense as hostile witness; he was asked to confirm his sworn statement given to the police authorities stating that he only saw Eddie Macandog, with long firearm while Renato Macandog and Bernardo Ibaez were holding bolos on the night of the incident.After a joint trial, the court a quo on December 27, 1996 rendered its decision[24], the dispositive portion of which reads as follows:[25]WHEREFORE, in view of the foregoing considerations, this Court finds accused EDDIE MACANDOG and NESTOR MACANDOG GUILTY BEYOND REASONABLE DOUBT of the crime of FRUSTRATED MURDER as charged in Criminal Case No. 5985.Accused NESTOR MACANDOG is hereby sentenced to suffer taking into consideration themitigating circumstance of voluntary surrender, to an indeterminate penalty ranging from 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.With respect to accused EDDIE MACANDOG, no mitigating or aggravating circumstance having been appreciated for or against him, he is hereby sentenced to an indeterminate penalty ranging from eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum.Both accused are ordered to indemnify the victim Emilio Ativo the amount of P55,000.00 as hospitalization and medical expenses incurred by Emilio Ativo for the injuries suffered by him and the amount of P20,000.00 representing loss of income in consequence thereof as a farmer.Likewise, this Court finds both accused EDDIE MACANDOG AND NESTOR MACANDOG GUILTY BEYOND REASONABLE DOUBT of the crime of MURDER as charged in Criminal Case No. 5986 and are hereby sentenced to suffer the penalty of reclusion perpetua.They are further ordered to indemnify the heirs of the victim Gloriano Bagamasbad the following amounts:a)P50,000.00 as civil indemnity;b)P50,000 as moral damages, andc)P35,000.00 as expenses related to the death and burial of the victim Gloriano Bagamasbad.The trial court rejected the defense of alibi and denial raised by accused Nestor and Eddie Macandog stating that they failed to show physical impossibility of their presence at the scene of the crime.It also found the ante-mortem statement of Gloriano to have fully met the requirements of a valid dying declaration hence admissible; that there was the presence of conspiracy among the accused, i.e., that the prosecution had shown that the two accused with intent to kill and armed with long rifles and bolos conspired with each other to kill Gloriano Bagamasbad and Emilio Ativo.Accused Eddie Macandog did not appeal hence his conviction in the two criminal cases had become final and executory.On the other hand, accused Nestor Macandog filed his notice of appeal for his conviction only in Criminal Case No. 5986 for murder,[26]thus the decision in Criminal Case No. 5985 (frustrated murder) from which he had not appealed has also become final and executory.In his brief, accused-appellant Nestor Macandog alleges that the trial court gravely erred in convicting him despite insufficiency of evidence as his guilt was not proved beyond reasonable doubt; and in finding that he conspired with the other accused in this case.[27]Accused-appellant Nestor Macandog claims that the trial court relied heavily on the dying declaration of deceased Gloriano Bagamasbad despite the fact that not all the requisites for the admissibility of a dying declaration had been met.Appellant further alleges that it was highly improbable for the deceased Gloriano Bagamasbad to have seen the one who fired at him considering that the attack was so sudden and unexpected and after being hit, he was immediately thrown flat to the ground, thus the deceased was not a competent witness.Accused-appellant also points out that he was not among the persons seen by victim Emilio Ativo after the shooting incident.The appeal has no merit.When the issue is one of credibility of witnesses, the appellate courts will generally not disturb the findings of the trial court, considering that it is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial, unless it had plainly overlooked certain facts of substance and value that if, considered, might affect the result of the case.[28]A review of the records of the case and the arguments raised by accused-appellant in his brief provide no cogent reason why we should deviate from the factual finding of the trial court that accused-appellant Nestor Macandog and co-accused Eddie Macandog were the ones who shot the deceased Gloriano Bagamasbad.We agree with the trial court when it upheld the admissibility of the dying declaration of Gloriano, to wit:[29]However, to be valid and admissible in evidence, the following requisites must concur:(a)that the declaration must concern the cause and surrounding circumstances of the declarants death;(b)that at the time the declaration was made, the declarant was under a consciousness of an impending death;(c)that the declarant is competent as a witness; and(d)that the declaration is offered in a criminal case in which the declarant is the victim.It is evident from the facts that a valid dying declaration is present in these cases and therefore the dying declaration of Gloriano Bagamasbad is admissible.First, the declaration of Gloriano concerns the cause and surrounding circumstances of his death, that he was shot by accused Eddie and Nestor Macandog because of a land dispute (TSN, Pages 31-32, June 3, 1993, Ederlina Abardo); second, at the time the declaration was made, Gloriano was under the consciousness of an impending death.As a matter of fact, he died within thirty (30) minutes after making his declaration. (TSN, Pages 31-32, & 71, June 3, 1993, Ederlina Abardo); third, that at the time Gloriano made his declaration, he was a competent witness since he was still conscious and could still speak competently although he was already dying, and fourth, the declaration of Gloriano was offered in a criminal case for Murder in which he was himself the victim.Contrary to appellants claim that Gloriano was not a competent witness because he was not able to see his assailants, the testimonies of Ederlina Abardo, to whom the dying declaration was given, which was also heard by Emilio Ativo, clearly showed that Gloriano was categorical in pointing to appellant Nestor Macandogand Eddie Macandog as the persons who shot him. Gloriano even provided for the reason why the accused shot him, i.e., because of a land dispute between his family and the family of the accused.Thus Ederlina testified as follows:[30]Q:Now having found Emilio Ativo and Gloriano Bagamasbad bathing in their own blood, outside your house, what did you do?A:Because Gloriano Bagamasbad could not stand up anymore, we lifted him, sir.Q:Where did you bring his body?A:We brought his body inside my house, sir.PROSECUTOR TOLOSA:Q:And how about Emilio Ativo?WITNESS:A:Emilio was able to walk in going inside my house, sir.Q:Now, what transpired next when Gloriano Bagamasbad and Emilio were already inside your house and both of them bloodied?A:While Gloriano Bagamasbad was inside my house, we were able to talk with each other for around thirty (30) minutes, sir, after which, he expired.Q:What did you and Gloriano Bagamasbad talk about?A:I asked him what happened to him and he answered me that he was shot, sir.Q:And what else did you ask of him?A:I asked him who shot him and according to him he was shot by Eddie and Nestor Macandog, sir.Q:What else did you ask him?WITNESS:A:I ask him why Eddie and Nestor Macandog shot him.PROSECUTOR TOLOSA:Q:What was his reply?A:According to him this is the case of our land where they said blood will spill.Q:What is that case about regarding the land as mentioned by Gloriano Bagamasbad?ATTY. GIANAN:Objection, your honor.This is supposed to be trial of a case for murder and frustrated murder, your honor.COURT:Witness may answer.WITNESS:A:This was a case over the land wherein the Macandogs and cousins entered our property and so my brother filed a case against them, sir.On some clarification from the Court:[31]COURT:Q:According to you, your brother was serious.Was he dying?WITNESS:A:He was already in a serious condition, your honor, because of the wounds that were inflicted on his body.He was almost dying of the wounds that he had, your honor.Q:Now, one last question.Was he conscious that he was dying?A:Yes, your honor.He was still conscious that time.He was almost dying, your honor.And he even said Maybe I am dying already.Emilio Ativo, also a victim in the same shooting incident and who was with Gloriano when they went to Ederlinas house, heard the conversation between Gloriano and Ederlina and testified as follows:[32]Q:Now, what did you do since Gloriano was already very weak before he reach the house of Ederlina?A:I shouted and sought help.Q:Was there any help or assistance given you after you called for?A:Ederlina, sir.Q:By the way, at that time how far were you already from the house of Ederlina?A:From the place where Im seated up to that door, sir, which is around 7 to 8 meters, more or less.PROSECUTOR TOLOSA:Q:Now, what help did Ederlina give you and Gloriano?WITNESS:A:Gloriano Bagamasbad was lifted by Ederlina Bagamasbad and I just walk, sir.Q:Towards where did Ederlina bring this Gloriano Bagamasbad?A:Inside her house, sir.Q:How about you, where did you proceed?A:I also got inside the house of Ederlina, sir.Q:Now, what did Ederlina do after bringing Gloriano Bagamasbad inside her house?A:Ederlina investigated Gloriano Bagamasbad, sir.Q:By the way, do you know if Ederlina hold any position in the barangay?A:Shes a Barangay Councilwoman, sir.PROSECUTOR TOLOSA:Q:Councilwoman of Barangay San Roque?WITNESS:A:Yes, sir.Q:And this is within the Municipality of Jovellar?A:Yes, sir.Q:Now, this house where you, Juan Ativo and Gloriano Bagamasbad drank is also within the area of Barangay San Roque?A:Yes, sir.Q:Now, you said that Ederlina is a Barangay Councilwoman who investigated Gloriano, were you also present when she profounded questions to Gloriano?A:Yes, sir, I was also around.Q:And what were the questions asked to Gloriano Bagamasbad by Ederlina Bagamasbad?A:Ederlina asked Gloriano, who shot you, and he answered it was Nestor.Q:What other questions did Ederlina ask?WITNESS:A:Why were you shot?PROSECUTOR TOLOSA:Q:And was there a reply from Gloriano?A:Gloriano answered because of land dispute between Nestor and Gloriano.Q:Now, what happened that evening to Gloriano Bagamasbad?A:He died, sir.Q:Do you know how many minutes after he was brought inside the house of Ederlina when Gloriano died?A:Yes, sir.Q:How many minutes?A:Around one-half (1/2) hour, sir.The positive declaration of the deceased as to the identity of his assailants, given with the consciousness that death is imminent is undoubtedly entitled to great weight considering the seriousness of his wounds and his very weak physical condition as shown by the fact that death supervened thirty minutes after his disclosure to Ederlina.Under the circumstances, there was a great improbability that Gloriano would have trifled with the truth.[33]Appellants claim that he was not among those persons seen by prosecution witness Emilio Ativo during the shooting incident is not convincing, and does not detract from Glorianos dying declaration.It bears stress that although Emilio Ativo testified that he had not seen appellant, he also stated that there were other persons aside from Eddie and Renato Macandog and Bernardo Ibanez.In fact, Emilio testified that while the rifle of accused Eddie Macandog was pointed at him while he was lying flat on the ground, two more shots were heard whereupon Gloriano fell to the ground, which established that another person with a rifle was present in the place of the shooting.In his dying declaration, Gloriano categorically identified Nestor and Eddie Macandog as the persons who shot him; such a positive identification of his own assailants cannot be destroyed by the incompleteness of Emilios testimony.Moreover, Ederlina Abardos testimony corroborated Glorianos declaration as to the presence of appellant Nestor Macandog at the crime scene.She testified that on the night of July 19, 1992, the time when the crime was committed, she heard three gunshots and when she peeped through her window, she saw appellant Nestor Macandog and Eddie Macandog with firearms slung on their shoulders and Bernardo Ibanez and Renato Macandog holding bolos as they passed by her house coming from the place where Glorianos house was situated and going to Centro Jovellar, Albay. She further testified on cross examination that the distance between her house and the road where the accused passed by was only two meters[34]and although there was only little illumination coming from the moon, there was sufficient light coming from her tocalor, a kind of lightning equipment made of bottle with cloth and kerosene inside[35].She could not have been mistaken as to the identities of the accused considering that she had known them from the time they were born[36]because they were all residents of Barangay San Roque, Jovellar, Albay, a place where she used to live before the shooting incident.The fact that Ederlina is the sister of deceased Gloriano Bagamasbad does not per se make her a biased witness. Mere relationship of the victim to a witness does not automatically impair her credibility and render her testimony less worthy of credence where no improper motive can be ascribed to her for testifying.[37]On the contrary, such relationship lends more credence to a witness testimony considering her natural interest to see the guilty punished.It would be unnatural for a relative who is interested in vindicating the crime to accuse anyone other than the real culprit.[38]We agree with the trial courts rejection of appellants defense of alibi considering that Barangay Mercado, the place where he was allegedly watching betamax on the night of the shooting incident, was only six kilometers away from San Roque[39], a distance which does not preclude the physical possibility for accused-appellant to be at the scene of the crime.Although defense witness Gabriel Arcangel was presented to corroborate accused-appellants alibi that he was in Barangay Mercado watching betamax on the night in question, Arcangel testified in the cross-examination that he could not remember the other dates when appellant Nestor Macandog viewed films in his house but he remembered the date July 19, 1992 because appellant went to his house on July 20, 1992 to tell him that he viewed the film on July 19, because he was suspected of being the one involved in the shooting incident.[40]The credible testimonies of Ederlina Abardo, victim Glorianos sister, and Emilio Ativo who both testified on the ante-mortem statements of the victim convincingly establish the guilt of accused-appellant beyond reasonable doubt.Although the trial court failed to discuss the presence or absence of the qualifying circumstances of treachery, evident premeditation and abuse of superior strength which were alleged in the Information for murder, we find that treachery attended the killing of Gloriano Bagamasbad.The sudden and unexpected shooting of Gloriano, who was unarmed and unsuspecting as he was only having a drinking spree with his companions at his own (Gloriano) house, insured his killing without any risk to his assailants.It rendered the victim completely unable to defend himself.Evident premeditation is not attendant as no proof has been adduced to show that accused had previously planned the shooting of Gloriano Bagamasbad.Abuse of superior strength is absorbed in treachery.[41]We, however, hold that the aggravating circumstance of dwelling, although not alleged in the Information, should be properly appreciated in the death of Gloriano Bagamasbad considering that he was killed inside his house.A persons abode is regarded as a sanctuary which should be respected by everybody.[42]This aggravating circumstance was however offset by the mitigating circumstance of voluntary surrender as appellant appeared in the trial court before the warrant of his arrest was served upon him.[43]In a case, it was held that the fact that the warrants had already been issued is no bar to the consideration of this mitigating circumstance, because the law does not require that the surrender be prior to the order of arrest.[44]We affirm appellants conviction for murder.The killing was qualified by treachery.Considering the presence of the aggravating circumstance of dwelling which was offset by the mitigating circumstance of voluntary surrender, the trial court correctly imposed the penalty of reclusion perpetua, the medium period of the penalty of reclusion temporal in its maximum period to death imposable for the crime of murder.[45]We also affirm the trial courts award of P50,000 civil indemnity and P50,000 moral damages considering the grief and sorrow suffered by the heirs of the deceased.However, the award for actual damages is reduced to the amount of P9,500 for burial expenses since the only receipt presented by the prosecution was for the payment made to Funeraria Nuestra Sra. De Salvacion of Guinobotan, Albay.To justify an award of actual damages, it is necessary to prove with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable by the injured party, the actual amount of loss.[46]We note that the notice of appeal filed by accused-appellant Nestor Macandog was only for Murder (Criminal Case No. 5986) but the case was assigned with two docket numbers, i.e., G.R. Nos. 129534 and 141169.Hence case records should be corrected with the deletion of the later docket number.WHEREFORE, the appealed decision convicting appellant for the crime of murder in Criminal Case No. 5986, imposing the penalty of reclusion perpetua and awarding fifty thousand pesos (P50,000) by way of civil indemnity and fifty thousand pesos (P50,000) moral damages is AFFIRMED with the modification that the award of actual damages is reduced to P9,500.The Clerk of Court is ordered to delete GR. No 141169 from the title of the case.SO ORDERED.Melo, (Chairman), Vitug, Panganiban,andSandoval-Gutierrez, JJ.,concur.

ESTRADA VS DESIERTO; ARROYOPosted by kaye lee on 2:48 AMEstrada vs Desierto G.R. No. 146710-15; Estrada vs Arroyo G.R. No. 146738, March 2 2001

[Immunity from Suit; Resignation of the President; Justiciable controversy]

FACTS:It began in October 2000 when allegations of wrong doings involving bribe-taking, illegal gambling, and other forms of corruption were made against Estrada before the Senate Blue Ribbon Committee. On November 13, 2000, Estrada was impeached by the Hor and, on December 7, impeachment proceedings were begun in the Senate during which more serious allegations of graft and corruption against Estrada were made and were only stopped on January 16, 2001 when 11 senators, sympathetic to the President, succeeded in suppressing damaging evidence against Estrada. As a result, the impeachment trial was thrown into an uproar as the entire prosecution panel walked out and Senate President Pimentel resigned after casting his vote against Estrada.

On January 19, PNP and the AFP also withdrew their support for Estrada and joined the crowd at EDSA Shrine. Estrada called for a snap presidential election to be held concurrently with congressional and local elections on May 14, 2001. He added that he will not run in this election. On January 20, SC declared that the seat of presidency was vacant, saying that Estrada constructively resigned his post. At noon, Arroyo took her oath of office in the presence of the crowd at EDSA as the 14th President. Estrada and his family later left Malacaang Palace. Erap, after his fall, filed petition for prohibition with prayer for WPI. It sought to enjoin the respondent Ombudsman from conducting any further proceedings in cases filed against him not until his term as president ends. He also prayed for judgment confirming Estrada to be the lawful and incumbent President of the Republic of the Philippines temporarily unable to discharge the duties of his office.

ISSUE(S):1. WoN the petition presents a justiciable controversy.2. WoN Estrada resigned as President.3. WoN Arroyo is only an acting President.4. WoN the President enjoys immunity from suit.5. WoN the prosecution of Estrada should be enjoined due to prejudicial publicity.

RULING:

1. Political questions- "to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure."Legal distinction between EDSA People Power I EDSA People Power II:EDSA IEDSA II

exercise ofthe people power of revolutionwhich overthrew the whole government.exercise ofpeople power of freedom of speech and freedom of assemblyto petition the government for redress of grievances which only affected the office of the President.

extra constitutionaland the legitimacy of the new government that resulted from it cannot be the subject of judicial review

intra constitutionaland the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review.

presented apolitical question;involveslegal questions.

The cases at bar pose legal and not political questions. The principal issues for resolution require the proper interpretation of certain provisions in the 1987 Constitution: Sec 1 of Art II, and Sec 8 of Art VII, and the allocation of governmental powers under Sec 11 of Art VII. The issues likewise call for a ruling on the scope of presidential immunity from suit. They also involve the correct calibration of the right of petitioner against prejudicial publicity.

2. Elements of valid resignation: (a)an intent to resign and (b) acts of relinquishment. Both were present when President Estrada left the Palace.Totality of prior contemporaneous posterior facts and circumstantial evidence bearing material relevant issuesPresident Estrada is deemed to have resigned constructive resignation.SC declared that the resignation of President Estrada could not be doubted as confirmed by his leaving Malacaan Palace. In the press release containing his final statement:1. He acknowledged the oath-taking of the respondent as President;2. He emphasized he was leaving the Palace for the sake of peace and in order to begin the healing process (he did not say that he was leaving due to any kind of disability and that he was going to reassume the Presidency as soon as the disability disappears);3. He expressed his gratitude to the people for the opportunity to serve them as President (without doubt referring to the past opportunity);4. He assured that he will not shirk from any future challenge that may come in the same service of the country;5. He called on his supporters to join him in promotion of a constructive national spirit of reconciliation and solidarity.Intent to resignmust be accompanied by act of relinquishmentact or omission before, during and after January 20, 2001.

3. The Congress passed House Resolution No. 176 expressly stating its support to Gloria Macapagal-Arroyo as President of the Republic of the Philippines and subsequently passed H.R. 178 confirms the nomination of Teofisto T. Guingona Jr. As Vice President. Senate passed HR No. 83 declaring the Impeachment Courts as Functius Officio and has been terminated. It is clear is that both houses of Congress recognized Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of Estrada is no longer temporary as the Congress has clearly rejected his claim of inability.The Court therefore cannot exercise its judicial power for this is political in nature and addressed solely to Congress by constitutional fiat. In fine, even if Estrada can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that Arroyo is the de jure, president made by a co-equal branch of government cannot be reviewed by this Court.

4. The cases filed against Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president. He cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any trespasser.

5. No. Case law will tell us that a right to a fair trial and the free press are incompatible. Also, since our justice system does not use the jury system, the judge, who is a learned and legally enlightened individual, cannot be easily manipulated by mere publicity. The Court also said that Estrada did not present enough evidence to show that the publicity given the trial has influenced the judge so as to render the judge unable to perform. Finally, the Court said that the cases against Estrada were still undergoing preliminary investigation, so the publicity of the case would really have no permanent effect on the judge and that the prosecutor should be more concerned with justice and less with prosecution