People vs. Mercado, G.R. No. L-33492, March 30, 1988

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-33492 March 30, 1988

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee
vs.
EFREN MERCADO, defendant-appellant.

PADILLA, J.:

This is an appeal from the decision * rendered by the defunct Circuit Criminal Court, Seventh Judicial District, Pasig, Rizal, dated 11 March 1971, in Criminal Case No. CCC-564-Rizal, entitled: "People of the Philippines, plaintiff, versus Efren Mercado, accused," the dispositive part of which reads as follows:

WHEREFORE, finding the accused, Efren Mercado, GUILTY, beyond reasonable doubt, of the crime of Murder as defined under Article 248 of the Revised Penal Code, as charged in the information, the Court hereby sentences him to suffer the penalty of RECLUSION PERPETUA; to indemnify the heirs of the deceased Dominador Salvador, Jr., the amount of P12,000.00; to pay the amount of P5,000.00 as moral damages and another P5,000.00 as exemplary damages; and to pay the costs.

The facts of the case, as summarized in the People's Brief, are as follows:

At about 10:00 o'clock in the evening of December 23, 1970, the deceased Dominador Salvador, Jr. and his friends were in their house preparing to caroling. Among those with the deceased were Ding Cristobal, Rod Cristobal, Teody Pangilinan, Emilio Fuerte and Leonardo Calvento. (t.s.n., pp. 2-3, January 14, 1971) From the house of Dominador Salvador they proceeded to the house of Mr. Aguilar a place which is more or less 16 to 25 meters from the place of the deceased Dominador Salvador, Jr. (t.s.n., p. 3, January 15, 1971), In going to the place of Mr. Aguilar they were to pass through an "eskinita" a small road (t.s.n., p. 3, January 15, 1971). Mr. Aguilar lives in Real street, a national road.

When they went to the place of Mr. Aguilar, Dominador Salvador, Jr. and Leonardo Calvento went ahead of the group. The group walked in a regular manner, not too slow but not too fast. On their way to Mr. Aguilar's place they heard slanderous words directed at them and when they looked around to ascertain who uttered the slanderous words, stones were suddenly hurled against them. Those who hurled the stones belonged to the group of the accused Efren Mercado (t.s.n., p. 4, January 15, 1971). Emilio Fuerte who was one of those who went caroling was hit by a stone about one (1) inch in a diameter (t.s.n., p. 5, January 15, 1971) and because he was not hurt very much and, finding that the guitar which they brought along with them had a broken string, the group returned to the place of Dominador Salvador, Jr. to repair the guitar (t.s.n., p. 6, January 15, 1971). It took the deceased and his group ten (10) minutes to repair the guitar after which they proceeded to go caroling again.

Upon reaching a comer, they saw the group of the accused Efren Mercado waiting for them (t.s.n., p. 6, January 15, 1971). The group of the accused again stoned the group of the deceased and because of this, deceased (and Leonardo Calvento) approached the group of the accused to inquire from them why they were stoned (t.s.n., p. 6-7, January 15, 1971).

Deceased and Leonardo Calvento were followed by Emilio Fuerte. While Emilio Fuerte was in front of the store he saw Efren Mercado grab the deceased and gave him a thrust with his right hand. At first Leonardo Calvento who was with the deceased thought that the deceased was not stabbed but when they were leaving the place of the incident the victim stated the following words, "May tama ako," and later he saw blood on the right chest of the victim. The victim was brought to the San Juan De Dios Hospital where he died on arrival. A necropsy report was made on the victim by Dr. Roberto Garcia and the following wounds were found:

POST-MORTEM FINDINGS

Pallor, integument conjunctivae and nailbeds, stab wound, chest, right, anterior aspect, infraclavicular region, at the level of the 1st intercostal space, right, 6.5 cms. from the anterior mediam line, 1.7 cm. in size, oriented downward and laterally, edges, clean-cut, upper extremity sharp, lower extremity, contused, directed downwards, backwards, and medially, involving among other things, the soft tissues, thru the lst intercostal space, right grazing the lower order of the 1st rib, into the right thoracic cavity, perforating the upper lobe right lung, into the middle mediastinum penetrating the superior vena cava with approximate depth, 12.0 cms.

Hemothorax, right -1,920 cc.

Brain and other visceral organs, pale.

Stomach - 1/2 filled with partly digested rice and food materials

CAUSE OF DEATH — Stab wound of the chest, right. ¹

The accused-appellant admits having stabbed the deceased, but claims self- defense. His account of the incident is as follows:

... It appears that in the evening of December 23, 1970, accused Efren Mercado had to go to the house of his employer, Larry Salvador, at Real Street, Las Pinas Rizal. He had two companions at the time, who were left outside when he went into the house of his employer. When he came out, his two companions complained to him that they were "napagiinitan" by a group of persons, who were later Identified to be Dominador Salvador and his "barkada." This group of Dominador Salvador threw firecrackers at the two companions of the accused. To avoid any incident, the accused told his companions to go home, and he himself went home. On the way home, he saw some persons, numbering twelve in all, chasing two other persons. He Identified the pursued persons as his two companions so he intervened and tried to stop the pursuers. The pursuers turned on the accused, attacking him with piece of chain and a piece of bamboo. To defend himself, the accused whipped out a knife and brandished it before his attackers, to frighten them. He had no intention to injure anyone, only to stop his attackers and to defend himself. After the attackers ran away, the accused proceeded home. Later, in the evening, he was brought to the police department and subsequently charged for the death of one Dominador Salvador. ²

The trial court, after analyzing the evidence, rejected the defense of the accused, because of the positive and unqualified Identification by prosecution witnesses Leonardo Calvento and Emilio Fuerte that the accused-appellant was the unlawful aggressor and slayer of the victim; and, besides, according to the trial court, the act of the appellant of running away from the scene of the crime, after the commission thereof, is "repugnant" to the appellant's claim of innocence "for if it is really true that he was forced to slay the victim to save his life, then he could have surrendered to the police authorities right after the commission of the crime or given himself to any member of the barrio council, where he is residing as is ordinarily done in urban areas." ³

We agree with the trial court that the accused-appellant has not convincingly proven his claim of self-defense. His defense is based solely upon his testimony, whereas, the version of the prosecution is supported by the testimonies of Leonardo Calvento and Emilio Fuerte both of whom were with the deceased on the night in question and witnessed the commission of the offense. It is well-settled that self-defense is an affirmative allegation that must be proven with certainty by sufficient, satisfactory and convincing evidence that precludes any vestige of criminal aggression on the part of the person invoking it, ⁴ and the Court has ruled that the plea of self-defense cannot be justifiably entertained where it is not only uncorroborated by any separate competent evidence but, in itself, is extremely doubtful, ⁵ and cannot overcome the version of the prosecution supported by the testimony of two eye-witnesses who saw the incident. ⁶

The accused-appellant, in this appeal, assails the trial court for giving more weight to the testimony of the prosecution witnesses despite certain errors, inconsistencies and contradictions in their declarations.

We have examined the record of the case with great care and find no reason to set aside the findings of fact of the trial court, which are supported by documentary evidence and the testimony of witnesses who have no reason whatsoever to testify falsely against the accused-appellant. Moreover, the rule is well-settled that, where the issue is one of credibility of witnesses, appellate courts will not generally disturb the findings of the trial court, unless it has plainly overlooked certain facts of substance and value which, if considered, might affect the result of the case. Herein appellant failed to demonstrate that his case falls under such exception which would justify this Court to overturn the findings of fact of the trial court.

The accused-appellant further assails the trial court for denying his motion to dismiss dated 28 January 1971. The appellant contends that the prosecution failed to prove a prima facie case against him so that the trial court should have granted his e motion to dismiss.

The contention is not well-taken. Judicial action on a motion to dismiss or demurrer to the evidence is left to the exercise of sound judicial discretion. Unless there is a grave abuse thereof, amounting to lack of jurisdiction, the trial court's denial of a motion to dismiss may not be disturbed. In the instant case, the trial court, after hearing the evidence presented by the prosecution, was convinced that said evidence was sufficient to warrant a finding of guilty vis-a-vis the accused. As a matter of fact, the Court is convinced that the accused-appellant is criminally liable for the death of Dominador Salvador, Jr. even without the admission of the accused-appellant.

The crime committed, however, as pointed out by counsel for the accused- appellant and confirmed by the Solicitor General, is Homicide and not Murder. We cite with approval the following disquisition of the Solicitor General:

We agree that the defendant should have been convicted of Homicide instead of Murder. The circumstance alleged in the information to qualify the crime of murder is treachery. There is treachery or "alevosia" if the "offender commits any of the crimes against person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make."

A perusal of the evidence adduced by the prosecution reveals that the stabbing incident was preceded by the "uttering of slanderous remarks and followed by stoning." (t.s.n., pp. 4-5, January 14, 1971 and t.s.n., pp. 4, 5, 6, January 15, 1971). Because of the stoning, the deceased approached the group of the accused and (t.s.n., p. 6, January 14, 1971) it was at that time when the deceased was inquiring from the group of the accused the reason why they were stoned that he (deceased) was stabbed.

The utterance of slanderous remarks followed by the stoning incident is a warning to the deceased and Ms group of the hostile attitude of the group of the appellant and these should have placed the deceased and his companions on their guard. (People vs. Gonzales, 76 Phil. 2173; People vs. Luna, 76 Phil. 107; People vs. Sagayno, 95 SCRA 366).

Further, the prosecution evidence also discloses that the place of the wound indicated that the accused was facing the deceased. (p. 8, t.s.n., January 12, 1971)

All these circumstances negative "alevosia".

We also find merit in the submission of the accused-appellant that the trial court erred in finding that he (accused) had fled from the scene of the crime. Pat. Artemio Talampas of the Las Pinas police declared that he arrested the accused in the latter's house, which is located about 40 meters away from the scene of the stabbing incident; that the accused was at the time talking with his friends; and that when he confronted the accused with the knife, the accused readily admitted ownership, thereof, as well as his having stabbed Dominador. ⁷ These circumstances negate flight.

As recommended by the Solicitor General, the penalty to be imposed upon the accused-appellant shall be 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. However, the indemnity to be paid to the heirs of the victim shall be increased to P30,000.00, in line with recent decisions.

WHEREFORE, with the modifications above indicated, the judgment appealed from is hereby AFFIRMED. With costs against the defendant-appellant.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

Footnotes

* Penned by Judge Onofre A. Villaluz.

1 Appellee's Brief, pp. 2-5.

2 Appellant's Brief, pp. 2-3.

3 Trial Court decision, p. 16, Rollo, p. 24.

4 People vs. Lebumfacil, G.R. No. L-32910, March 28, 1980, 96 SCRA 573.

5 People vs. Maranan, G.R. Nos. L-47228-32, L-46587, Dec. 15, 1986, 146 SCRA 243.

6 People vs. Empeno, G.R. No. L-27610, May 28, 1970, 33 SCRA 40.

7 T.S.N. of Jan. 12, 1971, pp. 17-18,

People vs. Nazario, G.R. No. L-44143,August 31, 1988

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

THE PEOPLE OF THE PHILIPPINES, plaintiff,
vs.
EUSEBIO NAZARIO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Teofilo Ragodon for accused-appellant.

SARMIENTO, J.:

The petitioner was charged with violation of certain municipal ordinances of the municipal council of Pagbilao, in Quezon province. By way of confession and avoidance, the petitioner would admit having committed the acts charged but would claim that the ordinances are unconstitutional, or, assuming their constitutionality, that they do not apply to him in any event.

The facts are not disputed:

This defendant is charged of the crime of Violation of Municipal Ordinance in an information filed by the provincial Fiscal, dated October 9, 1968, as follows:

That in the years 1964, 1965 and 1966, in the Municipality of Pagbilao, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then the owner and operator of a fishpond situated in the barrio of Pinagbayanan, of said municipality, did then and there willfully, unlawfully and feloniously refuse and fail to pay the municipal taxes in the total amount of THREE HUNDRED SIXTY TWO PESOS AND SIXTY TWO CENTAVOS (P362.62), required of him as fishpond operator as provided for under Ordinance No. 4, series of 1955, as amended, inspite of repeated demands made upon him by the Municipal Treasurer of Pagbilao, Quezon, to pay the same.

Contrary to law.

For the prosecution the following witnesses testified in substance as follows;

MIGUEL FRANCIA, 39 years of age, married, farmer and resident of Lopez, Quezon —

In 1962 to 1967, I resided at Pinagbayanan, Pagbilao, Quezon. I know the accused as I worked in his fishpond in 1962 to 1964. The fishpond of Nazario is at Pinagbayanan, Pagbilao, Quezon. I worked in the clearing of the fishpond, the construction of the dikes and the catching of fish.

On cross-examination, this witness declared:

I worked with the accused up to March 1964.

NICOLAS MACAROLAY, 65 years of age, married, copra maker and resident of Pinagbayanan, Pagbilao, Quezon —

I resided at Pinagbayanan, Pagbilao, Quezon since 1959 up to the present. I know the accused since 1959 when he opened a fishpond at Pinagbayanan, Pagbilao, Quezon. He still operates the fishpond up to the present and I know this fact as I am the barrio captain of Pinagbayanan.

On cross-examination, this witness declared:

I came to know the accused when he first operated his fishpond since 1959.

On re-direct examination, this witness declared:

I was present during the catching of fish in 1967 and the accused was there.

On re-cross examination, this witness declared:

I do not remember the month in 1962 when the accused caught fish.

RODOLFO R. ALVAREZ, 45 years old, municipal treasurer of Pagbilao, Quezon, married —

As Municipal Treasurer I am in charge of tax collection. I know the accused even before I was Municipal Treasurer of Pagbilao. I have written the accused a letter asking him to pay his taxes (Exhibit B). Said letter was received by the accused as per registry return receipt, Exhibit B-1. The letter demanded for payment of P362.00, more or less, by way of taxes which he did not pay up to the present. The former Treasurer, Ceferino Caparros, also wrote a letter of demand to the accused (Exhibit C). On June 28, 1967, I sent a letter to the Fishery Commission (Exhibit D), requesting information if accused paid taxes with that office. The Commission sent me a certificate (Exhibits D-1, D-2 & D-3). The accused had a fishpond lease agreement. The taxes unpaid were for the years 1964, 1965 and 1966.

On cross-examination, this witness declared:

I have demanded the taxes for 38.10 hectares.

On question of the court, this witness declared:

What I was collecting from the accused is the fee on fishpond operation, not rental.

The prosecution presented as part of their evidence Exhibits A, A-1, A-2, B, B-2, C, D, D-1, D-2, D-3, E, F, F-1 and the same were admitted by the court, except Exhibits D, D-1, D-2 and D-3 which were not admitted for being immaterial.

For the defense the accused EUSEBIO NAZARIO, 48 years of age, married, owner and general manager of the ZIP Manufacturing Enterprises and resident of 4801 Old Sta. Mesa, Sampaloc, Manila, declared in substance as follows:

I have lived in Sta. Mesa, Manila, since 1949. I buy my Residence Certificates at Manila or at San Juan. In 1964, 1965 and 1966, I was living in Manila and my business is in Manila and my family lives at Manila. I never resided at Pagbilao, Quezon. I do not own a house at Pagbilao. I am a lessee of a fishpond located at Pagbilao, Quezon, and I have a lease agreement to that effect with the Philippine Fisheries Commission marked as Exhibit 1. In 1964, 1965 and 1966, the contract of lease, Exhibit 1, was still existing and enforceable. The Ordinances Nos. 4, 15 and 12, series of 1955, 1965 and 1966, were translated into English by the Institute of National Language to better understand the ordinances. There were exchange of letters between me and the Municipal Treasurer of Pagbilao regarding the payment of the taxes on my leased fishpond situated at Pagbilao. There was a letter of demand for the payment of the taxes by the treasurer (Exhibit 3) which I received by mail at my residence at Manila. I answered the letter of demand, Exhibit 3, with Exhibit 3-A. I requested an inspection of my fishpond to determine its condition as it was not then in operation. The Municipal Treasurer Alvarez went there once in 1967 and he found that it was destroyed by the typhoon and there were pictures taken marked as Exhibits 4, 4-A, 4-B and 4C. I received another letter of demand, Exhibit 5, and I answered the same (Exhibit 5-A). I copied my reference quoted in Exhibit 5-A from Administrative Order No. 6, Exhibit 6. I received another letter of demand from Tomas Ornedo, Acting Municipal Treasurer of Pagbilao, dated February 16, 1966, Exhibit 7, and I answered the same with the letter marked as Exhibit 7-A, dated February 26, 1966. I received another letter of demand from Treasurer Alvarez of Pagbilao, Exhibit 8, and I answered the same (Exhibit 8-A). In 1964, I went to Treasurer Caparros to ask for an application for license tax and he said none and he told me just to pay my taxes. I did not pay because up to now I do not know whether I am covered by the Ordinance or not. The letters of demand asked me to pay different amounts for taxes for the fishpond. Because under Sec. 2309 of the Revised Administrative Code, municipal taxes lapse if not paid and they are collecting on a lapsed ordinance. Because under the Tax Code, fishermen are exempted from percentage tax and privilege tax. There is no law empowering the municipality to pass ordinance taxing fishpond operators.

The defense presented as part of their evidence Exhibits 1, 2, 3, 3-A, 4, 4-B, 4-B, 4-C, 5, 5-A, 6, 6-A, 6-B, 6-C, 7, 7-A, 8 and 8-A and the same were admitted by the court.

From their evidence the prosecution would want to show to the court that the accused, as lessee or operator of a fishpond in the municipality of Pagbilao, refused, and still refuses, to pay the municipal taxes for the years 1964, 1965 and 1966, in violation of Municipal Ordinance No. 4, series of 1955, as amended by Municipal Ordinance No. 15, series of 1965, and finally amended by Municipal Ordinance No. 12, series of 1966.

On the other hand, the accused, by his evidence, tends to show to the court that the taxes sought to be collected have already lapsed and that there is no law empowering municipalities to pass ordinances taxing fishpond operators. The defense, by their evidence, tried to show further that, as lessee of a forest land to be converted into a fishpond, he is not covered by said municipal ordinances; and finally that the accused should not be taxed as fishpond operator because there is no fishpond yet being operated by him, considering that the supposed fishpond was under construction during the period covered by the taxes sought to be collected.

Finally, the defendant claims that the ordinance in question is ultra vires as it is outside of the power of the municipal council of Pagbilao, Quezon, to enact; and that the defendant claims that the ordinance in question is ambiguous and uncertain.

There is no question from the evidences presented that the accused is a lessee of a parcel of forest land, with an area of 27.1998 hectares, for fishpond purposes, under Fishpond Lease Agreement No. 1066, entered into by the accused and the government, through the Secretary of Agriculture and Natural Resources on August 21, 1959.

There is no question from the evidences presented that the 27.1998 hectares of land leased by the defendant from the government for fishpond purposes was actually converted into fishpond and used as such, and therefore defendant is an operator of a fishpond within the purview of the ordinance in question. ¹

The trial Court ² returned a verdict of guilty and disposed as follows:

VIEWED IN THE LIGHT OF ALL THE FOREGOING, the Court finds the accused guilty beyond reasonable doubt of the crime of violation of Municipal Ordinance No. 4, series of 1955, as amended by Ordinance No. 15, series of 1965 and further amended by Ordinance No. 12, series of 1966, of the Municipal Council of Pagbilao, Quezon; and hereby sentences him to pay a fine of P50.00, with subsidiary imprisonment in case of insolvency at the rate of P8.00 a day, and to pay the costs of this proceeding.

SO ORDERED. ³

In this appeal, certified to this Court by the Court of Appeals, the petitioner alleges that:

I.

THE LOWER COURT ERRED IN NOT DECLARING THAT ORDINANCE NO. 4, SERIES OF 1955, AS AMENDED BY ORDINANCE NO. 15, SERIES OF 1965, AND AS FURTHER AMENDED BY ORDINANCE NO. 12, SERIES OF 1966, OF THE MUNICIPALITY OF PAGBILAO, QUEZON, IS NULL AND VOID FOR BEING AMBIGUOUS AND UNCERTAIN.

II.

THE LOWER COURT ERRED IN NOT HOLDING THAT THE ORDINANCE IN QUESTION, AS AMENDED, IS UNCONSTITUTIONAL FOR BEING EX POST FACTO.

III.

THE LOWER COURT ERRED IN NOT HOLDING THAT THE ORDINANCE IN QUESTION COVERS ONLY OWNERS OR OVERSEER OF FISHPONDS OF PRIVATE OWNERSHIP AND NOT TO LESSEES OF PUBLIC LANDS.

IV.

THE LOWER COURT ERRED IN NOT FINDING THAT THE QUESTIONED ORDINANCE, EVEN IF VALID, CANNOT BE ENFORCED BEYOND THE TERRITORIAL LIMITS OF PAGBILAO AND DOES NOT COVER NON-
RESIDENTS. ⁴

The ordinances in question are Ordinance No. 4, series of 1955, Ordinance No. 15, series of 1965, and Ordinance No. 12, series of 1966, of the Municipal Council of Pagbilao. Insofar as pertinent to this appeal, the salient portions thereof are hereinbelow quoted:

Section 1. Any owner or manager of fishponds in places within the territorial limits of Pagbilao, Quezon, shall pay a municipal tax in the amount of P3.00 per hectare of fishpond on part thereof per annum. ⁵

xxx xxx xxx

Sec. l (a). For the convenience of those who have or owners or managers of fishponds within the territorial limits of this municipality, the date of payment of municipal tax relative thereto, shall begin after the lapse of three (3) years starting from the date said fishpond is approved by the Bureau of Fisheries. ⁶

xxx xxx xxx

Section 1. Any owner or manager of fishponds in places within the territorial limits of Pagbilao shall pay a municipal tax in the amount of P3.00 per hectare or any fraction thereof per annum beginning and taking effect from the year 1964, if the fishpond started operating before the year 1964. ⁷

The first objection refers to the ordinances being allegedly "ambiguous and uncertain." ⁸ The petitioner contends that being a mere lessee of the fishpond, he is not covered since the said ordinances speak of "owner or manager." He likewise maintains that they are vague insofar as they reckon the date of payment: Whereas Ordinance No. 4 provides that parties shall commence payment "after the lapse of three (3) years starting from the date said fishpond is approved by the Bureau of Fisheries." ⁹ Ordinance No. 12 states that liability for the tax accrues "beginning and taking effect from the year 1964 if the fishpond started operating before the year 1964." ¹⁰

As a rule, a statute or act may be said to be vague when it lacks comprehensible standards that men "of common intelligence must necessarily guess at its meaning and differ as to its application." ¹¹ It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targetted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.

But the act must be utterly vague on its face, that is to say, it cannot be clarified by either a saving clause or by construction. Thus, in Coates v. City of Cincinnati, ¹² the U.S. Supreme Court struck down an ordinance that had made it illegal for "three or more persons to assemble on any sidewalk and there conduct themselves in a manner annoying to persons passing by." ¹³ Clearly, the ordinance imposed no standard at all "because one may never know in advance what 'annoys some people but does not annoy others.' " ¹⁴

Coates highlights what has been referred to as a "perfectly vague" ¹⁵ act whose obscurity is evident on its face. It is to be distinguished, however, from legislation couched in imprecise language — but which nonetheless specifies a standard though defectively phrased — in which case, it may be "saved" by proper construction.

It must further be distinguished from statutes that are apparently ambiguous yet fairly applicable to certain types of activities. In that event, such statutes may not be challenged whenever directed against such activities. In Parker v. Levy, ¹⁶ a prosecution originally under the U.S. Uniform Code of Military Justice (prohibiting, specifically, "conduct unbecoming an officer and gentleman"), the defendant, an army officer who had urged his men not to go to Vietnam and called the Special Forces trained to fight there thieves and murderers, was not allowed to invoke the void for vagueness doctrine on the premise that accepted military interpretation and practice had provided enough standards, and consequently, a fair notice that his conduct was impermissible.

It is interesting that in Gonzales v. Commission on Elections, ¹⁷ a divided Court sustained an act of Congress (Republic Act No. 4880 penalizing "the too early nomination of candidates" ¹⁸ limiting the election campaign period, and prohibiting "partisan political activities"), amid challenges of vagueness and overbreadth on the ground that the law had included an "enumeration of the acts deemed included in the terms 'election campaign' or 'partisan political activity" ¹⁹ that would supply the standards. "As thus limited, the objection that may be raised as to vagueness has been minimized, if not totally set at rest." ²⁰ In his opinion, however, Justice Sanchez would stress that the conduct sought to be prohibited "is not clearly defined at all." ²¹ "As worded in R.A 4880, prohibited discussion could cover the entire spectrum of expression relating to candidates and political parties." ²² He was unimpressed with the "restrictions" Fernando's opinion had relied on: " 'Simple expressions of opinions and thoughts concerning the election' and expression of 'views on current political problems or issues' leave the reader conjecture, to guesswork, upon the extent of protection offered, be it as to the nature of the utterance ('simple expressions of opinion and thoughts') or the subject of the utterance ('current political problems or issues')." ²³

The Court likewise had occasion to apply the "balancing-of-interests" test, ²⁴ insofar as the statute's ban on early nomination of candidates was concerned: "The rational connection between the prohibition of Section 50-A and its object, the indirect and modest scope of its restriction on the rights of speech and assembly, and the embracing public interest which Congress has found in the moderation of partisan political activity, lead us to the conclusion that the statute may stand consistently with and does not offend the Constitution." ²⁵ In that case, Castro would have the balance achieved in favor of State authority at the "expense" of individual liberties.

In the United States, which had ample impact on Castro's separate opinion, the balancing test finds a close kin, referred to as the "less restrictive alternative " ²⁶ doctrine, under which the court searches for alternatives available to the Government outside of statutory limits, or for "less drastic means" ²⁷ open to the State, that would render the statute unnecessary. In United States v. Robel, ²⁸ legislation was assailed, banning members of the (American) Communist Party from working in any defense facility. The U.S. Supreme Court, in nullifying the statute, held that it impaired the right of association, and that in any case, a screening process was available to the State that would have enabled it to Identify dangerous elements holding defense positions. ²⁹ In that event, the balance would have been struck in favor of individual liberties.

It should be noted that it is in free expression cases that the result is usually close. It is said, however, that the choice of the courts is usually narrowed where the controversy involves say, economic rights, ³⁰ or as in the Levy case, military affairs, in which less precision in analysis is required and in which the competence of the legislature is presumed.

In no way may the ordinances at bar be said to be tainted with the vice of vagueness. It is unmistakable from their very provisions that the appellant falls within its coverage. As the actual operator of the fishponds, he comes within the term " manager." He does not deny the fact that he financed the construction of the fishponds, introduced fish fries into the fishponds, and had employed laborers to maintain them. ³¹ While it appears that it is the National Government which owns them, ³² the Government never shared in the profits they had generated. It is therefore only logical that he shoulders the burden of tax under the said ordinances.

We agree with the trial court that the ordinances are in the character of revenue measures ³³ designed to assist the coffers of the municipality of Pagbilao. And obviously, it cannot be the owner, the Government, on whom liability should attach, for one thing, upon the ancient principle that the Government is immune from taxes and for another, since it is not the Government that had been making money from the venture.

Suffice it to say that as the actual operator of the fishponds in question, and as the recipient of profits brought about by the business, the appellant is clearly liable for the municipal taxes in question. He cannot say that he did not have a fair notice of such a liability to make such ordinances vague.

Neither are the said ordinances vague as to dates of payment. There is no merit to the claim that "the imposition of tax has to depend upon an uncertain date yet to be determined (three years after the 'approval of the fishpond' by the Bureau of Fisheries, and upon an uncertain event (if the fishpond started operating before 1964), also to be determined by an uncertain individual or individuals." ³⁴ Ordinance No. 15, in making the tax payable "after the lapse of three (3) years starting from the date said fishpond is approved by the Bureau of Fisheries," ³⁵ is unequivocal about the date of payment, and its amendment by Ordinance No. 12, reckoning liability thereunder "beginning and taking effect from the year 1964 if the fishpond started operating before the year 1964 ," ³⁶ does not give rise to any ambiguity. In either case, the dates of payment have been definitely established. The fact that the appellant has been allegedly uncertain about the reckoning dates — as far as his liability for the years 1964, 1965, and 1966 is concerned — presents a mere problem in computation, but it does not make the ordinances vague. In addition, the same would have been at most a difficult piece of legislation, which is not unfamiliar in this jurisdiction, but hardly a vague law.

As it stands, then, liability for the tax accrues on January 1, 1964 for fishponds in operation prior thereto (Ordinance No. 12), and for new fishponds, three years after their approval by the Bureau of Fisheries (Ordinance No. 15). This is so since the amendatory act (Ordinance No. 12) merely granted amnesty unto old, delinquent fishpond operators. It did not repeal its mother ordinances (Nos. 4 and 15). With respect to new operators, Ordinance No. 15 should still prevail.

To the Court, the ordinances in question set forth enough standards that clarify imagined ambiguities. While such standards are not apparent from the face thereof, they are visible from the intent of the said ordinances.

The next inquiry is whether or not they can be said to be ex post facto measures. The appellant argues that they are: "Amendment No. 12 passed on September 19, 1966, clearly provides that the payment of the imposed tax shall "beginning and taking effect from the year 1964, if the fishpond started operating before the year 1964.' In other words, it penalizes acts or events occurring before its passage, that is to say, 1964 and even prior thereto." ³⁷

The Court finds no merit in this contention. As the Solicitor General notes, "Municipal Ordinance No. 4 was passed on May 14, 1955. ³⁸ Hence, it cannot be said that the amendment (under Ordinance No. 12) is being made to apply retroactively (to 1964) since the reckoning period is 1955 (date of enactment). Essentially, Ordinances Nos. 12 and 15 are in the nature of curative measures intended to facilitate and enhance the collection of revenues the originally act, Ordinance No. 4, had prescribed. ³⁹ Moreover, the act (of non-payment of the tax), had been, since 1955, made punishable, and it cannot be said that Ordinance No. 12 imposes a retroactive penalty. As we have noted, it operates to grant amnesty to operators who had been delinquent between 1955 and 1964. It does not mete out a penalty, much less, a retrospective one.

The appellant assails, finally, the power of the municipal council of Pagbilao to tax "public forest land." ⁴⁰ In Golden Ribbon Lumber Co., Inc. v. City of Butuan ⁴¹ we held that local governments' taxing power does not extend to forest products or concessions under Republic Act No. 2264, the Local Autonomy Act then in force. (Republic Act No. 2264 likewise prohibited municipalities from imposing percentage taxes on sales.)

First of all, the tax in question is not a tax on property, although the rate thereof is based on the area of fishponds ("P3.00 per hectare" ⁴²). Secondly, fishponds are not forest lands, although we have held them to the agricultural lands. ⁴³ By definition, "forest" is "a large tract of land covered with a natural growth of trees and underbush; a large wood." ⁴⁴ (Accordingly, even if the challenged taxes were directed on the fishponds, they would not have been taxes on forest products.)

They are, more accurately, privilege taxes on the business of fishpond maintenance. They are not charged against sales, which would have offended the doctrine enshrined by Golden Ribbon Lumber, ⁴⁵ but rather on occupation, which is allowed under Republic Act No. 2264. ⁴⁶ They are what have been classified as fixed annual taxes and this is obvious from the ordinances themselves.

There is, then, no merit in the last objection.

WHEREFORE, the appeal is DISMISSED. Costs against the appellant.

Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Cortes, Griño-Aquino and Medialdea, JJ., concur.

Melencio-Herrera, and Regalado, J., took no part.

Gancayco, J., is on leave.

Footnotes

1 Rollo, 7-13.

2 Court of First Instance of Quezon, Branch 11, Hon. Manolo Madella, Presiding Judge.

3 Rollo, Id., 14.

4 Brief of Appellant, 1-2.

5 Mun. Ord. No. 4 (1955), Id., 3.

6 Mun. Ord. No. 15 (1965), Id., 4.

7 Mun. Ord. No. 12 (1966), Id.

8 Id., 6.

9 Id., 4.

10 Id.

11 TRIBE, AMERICAN CONSTITUTIONAL LAW 718 (1978), citing Connally v. General Construction Co., 269 U.S. 385 (1926).

12 402 U.S. 611 (1971); see TRIBE, Id., 720-721.

13 See TRIBE, Id.

14 Id., 721.

15 Id., 720.

16 417 U.S. 733 (1974); see TRIBE, Id., 721.

17 No. L-27833, April 8, 1969, 27 SCRA 835, per Fernando, J.

18 Supra, 850.

19 Supra, 867.

20 Supra, 868.

21 Supra, 884; Sanchez, J., concurring and dissenting.

22 Supra.

23 Supra, 885.

24 Supra; see Castro, J., Separate Opinion, 888-913.

25 Supra, 902.

26 TRIBE, Id., 722.

27 Id.; see Shelton v. Tucker, 364 U.S. 479 (1960).

28 389 U.S. 258 (1967).

29 See TRIBE, Id., 723.

30 Id., 721.

31 Brief for the Appellee, 5.

32 It was the then Undersecretary of Agriculture and Natural Resources who signed the lease contract.

33 Rollo, Id., 13.

34 Brief of Appellant, Id., 8.

35 Id., 4.

36 Id.

37 Id., 10.

38 Brief for the Appellee, Id., 8.

39 MARTIN, STATUTORY CONSTRUCTION 31-32 (1984).

40 Brief of Appellant, Id., 11 -12.

41 No. L-18535, December 24, 1964,12 SCRA 611.

42 Brief of Appellant, Id., 3.

43 Santiago v. Insular Government, 12 Phil. 593 (1909).

44 Ramos v. Director of Lands, 39 Phil. 175 (1918).

45 Supra.

46 See Northern Philippines Tobacco Corporation v. Municipality of Agoo, La Union, No. L-26447, January 30, 1970, 31 SCRA 304.

People vs. Melgar, G.R. No. 75268, January 29, 1988

Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 75268 January 29, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ESTEBAN MELGAR Y CORNEL and GERARDO LANGUISAN, accused- appellants.

GUTIERREZ, JR., J.:

This is an appeal brought by the accused Gerardo Languisan who, together with Esteban Melgar y Cornel, was charged before the Court of First Instance (now Regional Trial Court) Rizal, Quezon City, Branch 31 with the crime of murder committed as follows:

That on or about the 20th day of October, 1976, in Quezon City, Philippines, the above-named accused, conspiring together, confederating with and mutually helping one another, with intent to kill and by means of treachery, and with evident premeditation, did then and there, wilfully, unlawfully and feloniously stab with a bladed instrument one Jaime Duque y Palada, thereby inflicting upon him serious and mortal wound, which was the direct and immediate cause of his death, to the damage and prejudice of the heirs of the victim in such amount as may be awarded to them under the provision of the Civil Code. (Original Record, p. 1)

On December 20, 1976, Esteban Melgar was arraigned and pleaded not guilty. The other accused, Gerardo Languisan alias "Jerry" remained at large so that trial proceeded against Esteban Melgar only.

On July 9,1979, the trial court rendered a decision acquitting Esteban Melgar for failure on the part of the prosecution to prove his guilt beyond reasonable doubt.

On September 11, 1980, or four years after the incident, Gerardo Languisan was arrested. Upon arraignment on November 6, 1980, he pleaded not guilty.

The trial court, after evaluating the evidence presented, rendered its decision on December 9, 1981 finding accused Languisan guilty of murder. The dispositive portion of the decision reads:

ACCORDINGLY, judgment is hereby rendered convicting the accused GERARDO LANGUISAN alias "JERRY" beyond reasonable doubt of the crime of Murder charged in the information and as defined and penalized in Article 248 of the Revised Penal Code, and in accordance therewith, there being no mitigating or aggravating circumstances which attended the commission of the offense, the said accused is hereby sentenced to suffer the penalty of Reclusion Perpetua, with all the accessory penalties provided for by law; to indemnify the Heirs of Jaime Duque the amounts of P12,000.00, as compensatory damages P15,000.00, in moral damages; and P3,100-00 in medical and funeral expenses, and to pay the costs.

The accused being detained and considering the practice in the Quezon City Jail for all detention prisoners to agree in writing that they be governed by the same rules concerning convicted prisoners, he is hereby credited with the full extent of the period under which he was under detention.

Let a copy of this decision be served to the Heirs of Jaime Duque.

SO ORDERED. (Original Records, p. 279).

The prosecution's evidence upon which the trial court based its finding of guilt beyond reasonable doubt is summaries as follows:

At about 7:00 P.M. of October 20,1976, Angelito Mata who have (sic) been driving a passenger jeepney with the route Farmers Market Libis and vice-versa, was then at the back of Farmers Market, Cubao, Quezon City, falling in line with other passenger jeepneys for his turn to get passengers for Libis, Murphy, Quezon City. With Angelito Mata at that time in his passenger jeepney were Lorenzo Ramos and the victim, Jaime Duque, who were seated at the front seat, with the victim between Angelito Mata and Lorenzo Ramos. Esteban Melgar and accused Gerardo Languisan were also at the place, serving as starters for the jeepney passengers, seeing to it that the passenger jeepneys fall in line and get their passengers only as their turn comes in the line-up, for which they get a fee of P0.25 per passenger jeepney they served. Since it was already dark, Angelito Mata decided to go home. For this purpose, he maneuvered his passenger jeepney out of the line. But he was blocked by another passenger jeepney. As a result, some passengers took the passenger jeepney of Angelito Mata which angered Esteban Melgar and which resulted into an argument with the victim, Jaime Duque, who was asked by Esteban Melgar why he inserted at (sic) the line-up his passenger jeepney to which the victim retorted that it was none of his business as they were already going home, leading Esteban Melgar to tell the victim: "Baka hindi mo ako kilala dito, kaya kita sabayan." Thereafter, Esteban Melgar approached accused Gerardo Languisan and talked with him. After their talk, accused Gerardo Languisan boarded the passenger jeepney of Angelito Mata and seated himself at the center of the right back seat behind the victim, Jaime Duque, who was seated between Angelito Mata and Lorenzo Ramos at the front seat. At this, the passenger jeepney of Angelito Mata proceeded to Libis, which was the end of its route. At Libis, when Mata's passenger jeepney stopped, accused Languisan was the last to alight. But before he did, Angelito Mata, thru his rear-view mirror saw him stabbed (sic) the victim with a double-bladed knife in his right hand at the back of the victim's neck, left side, and then when Angelito Mata turned his head to look, accused Gerardo Languisan alighted from the passenger jeepney and ran away towards a dark place. The victim attempted to pursue accused Gerardo Languisan by going across the back seat. But there the victim slumped at the right seat as he became weak. Then, the victim was brought to the Quirino Memorial Hospital at Quezon City where he died the next day, October 21,1976, of cardio-respiratory arrest due to shock and hemorrhage as a result of the stab wound to the nape (Exh. D-3), per his Certificate of Death issued by the Local Civil Registrar of Quezon City (Exh- D). The cadaver of the victim was autopsied by Capt. Desiderio A. Moraleda, Chief, Medico-Legal Branch, PC Crime Laboratory, Camp Crame, Quezon City, on October 21, 1976 at the PCCL Morgue, Camp Crame, Quezon City, and he found in his Medico-Legal Necropsy Report dated October 27, 1976, the following Postmortem findings:

Fairly developed, fairly nourished male cadaver in rigor mortis with postmortem lividity over the dependent portions of the body. Conjunctivae lips and nailbeds are pale. There is a tracheostomy opening at the anterior aspect of the neck, measuring 1.2 cm. long with 2 stitches applied and a surgical incision at the left hypochondriac region, measuring 3 by 1 cm., 12 cm. from the anterior midline.

NAPE:

Stab wound, nape, measuring 4 by 0.5 cm., 5 cm. left of the posterior midline, 7.5 cm. deep, directed anteriorwards, downwards and to the right, cutting the muscles and major blood vessels of the neck.

REMARKS:

Cause of the death is cardio-respiratory arrest due to the shock and hemorrhage as a result of a stab wound of the nape. (Exh. A)

Capt. Moraleda also caused the taking of the picture of the victim (Exh. B), showing the wound at the back of the nape, left side (Exh. B-1), as well as, a sketch of the human body (Exh. C), showing the said wound (Exh. C-1). For the death of his son, Juan Duque spent Pl,000.00 for medicine and P2,100.00 for funeral expenses.

In his defense, accused Gerardo Languisan asserts that he had nothing to do with the killing of the victim, Jaime Duque. For, according to him, at about 7:00 P.M. on October 20, 1976, he was at the Farmers Market, Cubao, Quezon City, at the passenger jeepney's starting point calling for passengers, as a starter of passenger jeepneys, for Libis at Murphy, Quezon City, at which place he had been since 5:00 P.M. until 9:00 P.M. when he left Farmers Market and went home to Libis. (Original Records, pp. 274- 275).

Accused-appellant Languisan now raises the following assignments of errors in this appeal:

I

THE LOWER COURT ERRED IN HOLDING APPELLANT LIABLE FOR THE DEATH OF JAIME DUQUE DESPITE THE ABSENCE OF EVIDENCE IdENTIFYING HIM AS THE ASSAILANT.

II

THE LOWER COURT ERRED IN POINTING TO THE APPELLANT AS THE ASSAILANT OF THE VICTIM DESPITE THE ABSENCE OF MOTIVE (AND WHICH THE PROSECUTION FAILED TO PROVE) ON THE PART OF THE APPELLANT TO KILL THE VICTIM BECAUSE:

A. THE APPELLANT AND THE VICTIM HAVE NEVER KNOWN NOR MET EACH OTHER;

B. THE APPELLANT AND THE VICTIM HAD NO CONFRONTATION, GRUDGE, OR ALTERCATION, EITHER IN THE PAST OR IMMEDIATELY BEFORE THE STABBING INCIDENT,

III

THE LOWER COURT ERRED IN RELYING ON THE SPECULATIVE AND DOUBTFUL EVIDENCE OF THE PROSECUTION IN CONVICTING THE APPELLANT

VI

EVEN ON THE GRATUITOUS ASSUMPTION THAT THE STABBING TOOK PLACE, THE LOWER COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY BECAUSE THE PROSECUTION FAILED TO PROVE THAT THE VICTIM WAS COMPLETELY UNAWARE WHEN ATTACKED (Brief for the Appellant, pp. 7-8, Rollo, p. 55)

The first assignment of error stresses the alleged absence of evidence positively Identifying Languisan as the assailant on the ground that the description by the prosecution witness, Angelito Mata, was erroneous. According to the defense, the person whom the witness Identified was another person, the name of the assailant having been given by the witness as "Willie" and not Gerry. The same was sufficiently explained by the prosecution — that Mata knew Gerry Languisan as Willie and the Willie as mentioned in his statement is the accused Languisan (TSN, pp. 5-6, August 31, 1981). There can be no question about the Identity of Languisan because Mata pointed to him in open court. He was not Identified because of his name but he was pointed to and singled out upon the instructions of the court to finger the accused-appellant if he was in the courtroom.

This Court, in a number of cases, held that minor inconsistencies do not destroy the credibility of the witness. An inconsistency may even prove that the witness is unrehearsed. (People v. Dava, 149 SCRA 582; People v. Bautista, 147 SCRA 500; People v. Ancheta, 148 SCRA 178; People v. De las Piñas 141 SCRA 379).

The Identity of the assailant is further established by the fact that Mata saw the appellant stab the victim (TSN, p. 4, June 4, 1977). There is nothing in the records that would show that Angelito Mata had any bias or prejudice against Languisan. The fact that there were no earlier differences between them was admitted by the accused himself (TSN, pp. 6 and 13, October 20, 1981). There being no evidence that the principal witness for the prosecution was actuated by improper motive, his testimony should be given full faith and credit. (People v. Alcantara, 126 SCRA 425, 436).

Furthermore, between the positive declaration of the prosecution witness and the negative statements of the accused, the former deserves more credence (ibid., People v. Paseo, Jr., 137 SCRA 137; People v. Borbano, 76 Phil. 702).

As to the second assignment of error regarding the absence of motive to kill, proof of motive is not essential in the face of the positive Identification by the witness (People v. Anquillano, 149 SCRA 442; People v. Ramilo, 147 SCRA 102; People v. Manalo, 135 SCRA 84). Such proof is necessary only when there are no eyewitnesses and where suspicion is likely to fall upon a number of persons.

Possible motive, however, is not wanting. Languisan was a barker or starter for jeepneys lining up for passengers behind the Farmers' Market. Starters take charge of seeing to it that jeepneys fag in line according to the arranged schedule. When Mata went ahead of the other drivers patiently waiting for their turn, it became a matter of honor for the appellant because his usefulness or his authority was challenged. There was a threat to harm or kill the victim as shown by the altercation between the co-accused Melgar and Duque. The threat was carried out when Melgar approached Languisan. After the two talked to each other, Languisan boarded the jeepney of Mata and stabbed the victim.

The defense of the appellant that he was not at the scene of the crime when the incident happened but was at the jeepney starting point is without merit. The defense of alibi to be given full credit must be clearly established and not leave room for doubt (People v. Petil, 149 SCRA 92; People v. Ramilo, 147 SCRA 102). Alibi is an inherently weak defense especially because of the proximity of the accused's alleged whereabouts at the time to the scene of the crime (People v. Anquillano, 149 SCRA 442; People v. Aboga, 147 SCRA 404). The appellant failed to establish that it was impossible for him to be at the scene of the crime inasmuch as the traveling time from said starting point to his residence at Libis, Murphy, Quezon City is only 5 kms. and is only 30 minutes ride (Original Records, pp. 275-276). It was, therefore, not impossible for the accused to be at the passenger jeepney of Mata and be back to Farmers Market immediately thereafter, riding in another jeepney, then staying there to resume his work of starting passenger jeepneys until 9:00 p.m. when he went home to Libis.

The contention of the defense that the accused did not flee from the scene of the crime is untenable. Prosecution witness Mata testified that after stabbing Duque, Languisan ran from the scene of the crime (TSN, p. 4, June 14, 1977).

The claim of the defense that the accused did not attempt to escape does not inspire belief. According to the defense, the accused neither changed his residence nor place of work. This is nothing but a mere pretense. It was precisely because of the difficulty of locating the accused that the court litigation proceeded only against Melgar. Languisan was at large at the time the information was filed against him because he could not be found at his last address. It was only after four (4) years that he was found and arrested. Flight of the accused is indicative of his guilt (People v. Astor, 149 SCRA 325; People v. Pimentel, 147 SCRA 25).

The third assignment of error claiming that the evidence of the prosecution was speculative and doubtful specifically because its witness, Angelito Mata, is wanting of credibility has been discussed earlier. It was established that Mata had no bias against Languisan. There is no doubt from the records that he was an actual eyewitness. There is no improper motive on Mata's part to implicate Languisan of the crime.

Lately, the defense holds that the lower court erred in appreciating the quailing circumstance of treachery because the prosecution was unable to prove that the victim was completely unaware when attacked and that there was no deliberate adoption of means to insure the killing. We agree with the Solicitor General that treachery was duly and sufficiently proven. The Revised Penal Code, specifically Art. 14, Sec 16, states that 'there is treachery when the offender commits any of the crimes against the person, employing means, methods, or terms in the execution, without risk to himself arising from the defense which the offended party might make"(People v. Rojas, 147 SCRA 169). In the case at bar, the victim was suddenly and without warning stabbed at the back of his nape by the appellant from behind with a double-bladed knife (TSN, pp. 6-7, May 14,1981, Medico-Legal Necropsy Report, Exh. A). The appellant, therefore, employed a means of attack without risk to himself which might have arisen from any defensive or retaliatory act on the part of the victim (People v. Casalme, 17 SCRA 717).

The unexpected stabbing in the back of the victim by the accused proves the existence of treachery (People v. Crisanto, 135 SCRA 413). In a number of cases, it has been held that there is treachery when the defenseless victim was shot from behind without risk to his assailants (People v. Asil, 141 SCRA 286) or when the victim, while driving his jeepney was strangled from behind (People v. Masilang, 142 SCRA 673).

Therefore, the crime committed is murder, qualified by treachery. No other modifying circumstance attended the commission of the offense.

The judgment of conviction imposed by the lower court is affirmed but the penalty will have to be modified. This is in view of the abolition of the death penalty in the 1987 Constitution, "unless, for compelling reasons involving heinous crimes the Congress hereafter provides for it." (Art. III, Sec. 19, [1]).

The penalty for Murder is now reclusion temporal in its maximum period to reclusion perpetua (People v. Masangkay, G.R. No. 73461, Jan. 25, 1988; People v. Lopez, G. R. Nos. 71875-76, Jan. 25, 1988; and People v. Gavarra, G.R. No. I,37673, Oct. 30, 1987). In the absence of any modifying circumstances, the imposable penalty is reclusion temporal in its medium period, or from eighteen (18) years, eight (8) months and one (1) day to twenty (20) years. For purposes of applying the Indeterminate Sentence Law, the range of penalty is prision mayor, in its maximum period to reclusion temporal in its medium period, or, from ten (10) years and one (1) day to seventeen (17) years and four (4) months. (People v. Masangkay, supra).

WHEREFORE, the judgment appealed from is hereby AFFIRMED except for a MODIFICATION of the penalty. The accused-appellant Gerardo Languisan is sentenced to suffer an indeterminate penalty of TEN (10) YEARS and ONE (1) DAY of prision mayor as minimum, to EIGHTEEN(18)YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion temporal as maximum; to pay indemnity to the heirs of Jaime Duque in the amount of THIRTY THOUSAND PESOS (P30,000.00) and to pay the costs.

SO ORDERED.

Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

People vs Diño, G.R. No. L-41462, April 15, 1988

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-41462 April 15, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
REMY DIÑO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Efrain B. Treñas for accused-appellant.

MELENCIO-HERRERA, J.:

Originally, this was an appeal by the three accused. Remy Diño, Jose Dequito and Salvador Dequito from the Decision of the then Court of First Instance of Iloilo , Branch III, finding each of them guilty of three (3) crimes of Rape with Homicide and sentencing each one to three (3) penalties of reclusion perpetua; to indemnify the heirs of Melinda Boglosa, jointly and severally, in the sum of P12,000.00; and to pay the costs.

On November 26, 1985, accused Salvador Dequito and Jose Dequito filed an Urgent Motion to Withdraw Appeal, which was granted by the Court, and entry of judgment in their respect was made on December 13, 1985 (p. 172, Rollo).

The evidence for the prosecution is summarized in the People's Brief, thus:

Jose and Salvador, both surnamed Dequito, Remy Diño and one Melinda Boglosa were all from the barrio of Tambuelan, Municipality of Dumangas, Iloilo (p. 7, tsn, May 3, 1974).

On November 13, 1973 at about noontime, while Roberto Dumancas, a ten-year old boy and a relative of Remy Diño was herding his carabao in a ricefield situated at Sitio Sapa, Barrio Tambuelan, Municipality of Dumangas, Iloilo, he saw Jose and Salvador Dequito and Remy Diño at about a distance of fifty (50) meters away (pp. 5, 6, 17, 26, tsn, May 3, 1974). Shortly after, Roberto Dumancas saw Melinda Boglosa come along (pp. 8, 27, tsn, May 3, 1974). As Melinda neared the group, Salvador Dequito suddenly pulled her down which caused both of them to fall on the rice paddy (p. 8, tsn, May 3, 1974). Remy Diño held the hands of Melinda, while Jose Dequito, held her legs (pp. 8, 9, tsn, May 3, 1974). Thereafter, Salvador Dequito took off his pants and underwear and went on top of Melinda and had carnal knowledge of her (p. 9, tsn, May 3, 1974). Jose Dequito and Remy Diño then took turns ravishing Melinda Boglosa (pp. 11, tsn, May 3, 1974). When the three were through with their beastly act, Salvador Dequito choked Melinda Boglosa and with an engine cranker, struck her on the forehead (pp. 12, 14, t.s.n, May 3, 1974). Then the three dragged Melinda Boglosa and pushed her head on the ground which was knee-deep with water. She was later found dead (p. 14, tsn, May 3, 1974).

It appears that at the start of the above-described incident, Roberto Dumancas sought cover behind some talahib from where he witnessed the incident in its entirety (p. 15, tsn, May 3, 1974).

After the incident, Roberto Dumancas returned to his carabao, which was a meter away from where he was hiding (p. 15, tsn, May 3, 1974), and then went home. He told a relative named Fe of the incident he had witnessed (pp. 16, 18, 27, tsn, May 3, 1974).

Days after the incident, Roberto Dumancas was brought by a PC soldier to Barotac, Nuevo Iloilo where he was investigated regarding the incident (pp. 18, 19, 29, tsn, May 3, 1974). Afterwards, he was brought to Fort San Pedro, Iloilo City, headquarters of the Philippine Constabulary where he signed a statement (p. 19, tsn, May 3, 1974; Exh. "A" p. 55, Records).

Remy Diño also gave a written statement on November 19, 1973, before PC Soldier Ismael Suyo confessing his participation in the crime as well as those of his companions, Salvador and Jose Dequito (pp. 83, 84, 87, tsn May 30, 1974; p. 9, tsn, May 31, 1974; Exh. "C" p. 57, Records). The said confession was sworn to and subscribed before Atty. Salvador Solis, Assistant Clerk of Court of the Court of First Instance, Iloilo (p. 75, tsn, May 30, 1974; pp. 42, 45, 46, tsn, May 31, 1974). (pp. 2-4, Brief for the Appellee).

The Necropsy Report of the NBI Medico-Legal Officer gave the following:

Post Mortem Findings:

Height—148 cms. Weight—115 lbs.

Well developed, healthy victim, froth with blood coming out of both nostrils, around 22 hours dead.

WOUND 1 -1/2 cms. x 0.2 cms. 75 degrees perpendicular to the left, right side neck, 128 cms. from the heel of the feet right, 7 cms. from the median line, at the level of hyoid bone of the neck.

GENITALIA—Hymen-laceration, deep at 3:00 blood coming out from the site. Vaginal, filled with viscid, albuminous fluid with faint grayish-yellow color, having the characteristic of fishy odor.

MICRO-CHEMICAL EXAMINATION OF THE FLUID CONTENT OF THE VAGINA

1. Positive for seminal fluid

2. Positive for spermatozoa

CONCLUSION

1. Sexually abused

2. Died of asphyxia by strangulation and drowning.

On the other hand, the evidence for the accused-appellant, Remy Diño, as narrated in his Brief, reads in full as follows:

... the Lower Court found the evidence for the accused Remy Diño which consisted of the testimonies of the following witnesses:

Marcelino Dequito, 62 years old, a fishpond watcher and resident of Barrio Tambuelan, Dumangas, Iloilo testified that he knows the accused Remy Diño and the two other accused Salvador Dequito and Jose Dequito since they were small.

In the morning of November 13, 1973, he saw Remy Diño in the house of Dominic Doronilla, which was near his house, together with other persons and they were singing.

Before lunch on that day, Remy Diño went to his house and he told him to wait for his father (Remy's father) who was arriving from Barotac, Nuevo, Iloilo after lunch and he would be bringing some ice and also to borrow the carabao and cart of Violeta Donguila so that he can load the ice on it to bring it to the fishpond as they were harvesting fish that evening.

Remy left to go to the house of Violeta which was also near by and later had lunch at his, house and came back while they were having lunch.

In his house then was living an American Peace Corps by the name of Kathleen Hustace. After lunch that day, she (Kathleen) and Remy Diño fed the birds.

After lunch, he (Marcelino Dequito) left for his farm which was about one-half kilometer away and when he left his house he still saw Remy and Kathleen feeding the birds.

While going to his farm he saw Simon Dequito who was calling for him and when he went to the place where he was standing, he saw that there was a body of a girl and they both helped each other to place the body on the rice paddy in order to revive her as she was still warm but they found that she was already dead.

Simon Dequito called for help from the neighborhood while he went back to the barrio to inform Teopisto Dumayas, the Barrio Captain. The Barrio Captain then requested somebody to inform the authorities in the Poblacion, while he went to his house to rest and later on he went to the fishpond as they were going to harvest fish that evening. In the fishpond he saw the accused Remy Diño, who was then there and who brought the ice together with his father. They harvested the fish that evening and they, together with Remy Diño returned to the barrio the next day (t.s.n., pp. 117-151; Sept. 12, 1974).

The next witness Kathleen Hustace testified that she was an American Peace Corps assigned to the Philippines. She arrived in the Philippines in August, 1973 and in the Barrio of Tambuelan, Dumangas, Iloilo in September, 1973.

In Barrio Tambuelan, she stayed at the house of Marcelino Dequito (who testified before her). She knows Remy Diño and in the morning of November 13, 1973, she saw Remy in the house of Dominic Doronila, which was nearby, singing with other boys.

After lunch, she and Remy Diño fed the birds and a little before one o'clock she went up the house to change and left afterwards as she had an appointment (t.s.n., pp. 151-197; September 12, 1974).

The third witness was the accused Remy Diño who testified that he is one of the accused in this case. That in the morning of November 13, 1973, he, together with other boys were singing at the house of Dominic Doronila.

Later he went to the house of Marcelino Dequito, which was also nearby and Marcelino told him to borrow the carabao and cart of Violeta Donguila as his father was arriving from Barotac Nuevo, Iloilo, after lunch with the ice which they were going to use to freeze the fish they were going to harvest that evening, and he and his father were supposed to load the ice in said cart to bring it to the fishpond.

Because of said request of Marcelino, he borrowed the carabao and cart of Violeta and then went to his house for lunch. After lunch, he went back to the house of Marcelino and found them still having lunch. After lunch, he and Kathleen Hustace, an American Peace Corps living in the house of Marcelino Dequito fed the birds until a little before one o'clock when Kathleen went upstairs to change and later left.

In the meantime, he waited for his father who later on arrived at around two o'clock in the afternoon in a tricycle from Barotac Nuevo, Iloilo, with the ice which they loaded in the cart of Violeta and which they brought to Palok Bigki, a distance of about one and a half kilometers away, there to be unloaded and brought to the fishpond by boat.

Thereafter, he returned the carabao and cart to Violeta and returned to Palok Bigki and helped his father load the ice to the boat and brought it to the fishpond to be used in the harvest of the bangus fish that evening. That evening he was in the fishpond together with his father, Marcelino Dequito and others harvest bangus and returned to the barrio only the next morning.

On November 18, 1973 he was arrested by two PC soldiers, one of whom he came to know as Sgt. Ledesma, together with Salvador Dequito and they were brought to the PC Detachment at Barotac Nuevo, Iloilo at around 10:00 o'clock in the morning of the said date.

In the evening they were investigated by Sgt. Ybarzabal in connection with the rape and death of the said girl by the name of Melinda Boglosa but he vehemently denied having anything to do with it. Because of his denial, he was boxed, pushed and kicked by the PC soldiers who wanted him to admit that he committed the crime but he continued to deny that he had any connection with the same.

His companion Salvador Dequito was also investigated.

After he was investigated he was set out of the room and told by Sgt. Ledesma to run but he did not run and embraced Sgt. Ledesma as he was afraid to run because he might be shot; on the contrary he insisted that he did not commit the crime that they wanted him to admit. In the next morning he was brought to the PC stockade at Fort San Pedro, Iloilo City where he was again investigated and maltreated and because of the maltreatment he was forced to sign a document that which he was told, if he will sign he will be released.

While he was being investigated his companion Salvador Dequito was in the same room and later on investigated and maltreated by the PC soldiers.

The next morning, he was brought to the Provincial Building before Atty. Salvador Solis of the Clerk of Court, who notarized his signature. He was afraid to complain to Atty. Solis about the maltreatment as he was accompanied by PC soldiers who warned him not to tell anybody what happened to him; thereafter, he was returned to the PC Stockade where he stayed for about three months where he was transferred to the Provincial Jail.

When he was transferred to the Provincial Jail he became ill because of the maltreatment and in fact he was sent several times to the Provincial Hospital as he was spitting blood because of his maltreatment.

He categorically denied having to do with the rape and killing of Melinda Boglosa (t.s.n., pp. 163-197; October 8, 1974) and his testimony was corroborated by Salvador Dequito who later on testified of the maltreatment that they suffered from the PC soldiers (t.s.n., pp. 2-20; August 2, 1974; t.s.n., pp. 119-137, October 9, 1974). Thereafter, the three accused presented Teopisto Dumayas, a Barrio Captain of Barrio Tambuelan, Dumangas, Iloilo who testified that after he came to know of the maltreatment of the three accused, the barrio captain and Barrio Council of Barrio Tambuelan, Dumangas, Iloilo, filed a petition, dated December 8, 1973, Exh. "I," addressed to the Provincial Commander complaining of said maltreatment but no action was done on the matter (t.s.n., pp. 19-23; October 29, 1974).

The next witness Simon Dequito testified that he knows the accused Remy Diño as well as the other accused since they were small. Remy Diño was in his house in the morning of November 13, 1973 but he (Simon Dequito) left the house after lunch to go to his farm around one (1) kilometer away situated at Sitio Sapa, Barrio Tambuelan, Dumangas, Iloilo, which was planted with palay. It was raining in the morning and when he reached his farm he saw a body lying on the rice paddy. He looked around and saw Paquita Cagison and Marcelino Dequito and he shouted and waved at them to come. When Marcelino arrived he pulled out the head of the victim because the head was submerged in the mud and then Marcelino Dequito helped him to put the body on the top of the rice paddy. As the body was still warm they put her on her side as she might still be alive and the water might come out. He did not then recognize the victim. Later he went to the house of Nicanor Divinagracia which was nearby if they recognized the victim but they did not recognize the deceased. Marcelino Dequito on the other hand went to notify Teopisto Dumayas, the Barrio Captain. Later Teopisto Dumayas, the Barrio Captain arrived and still later the police also arrived. He further stated that he did not request the accused to plow that morning of November 13, 1973 because it was raining and there was deep water in his field (t.s.n., pp. 73-117, Sept. 9, 1974).

Dr. Ricardo Jaboneta, medico legal officer of Iloilo City also testified that from his opinion as medico legal officer it is impossible to determine from a specific type of the semen whether it came from two or more persons (t.s.n., pp. 225-247; November 19, 1974). (pp. 5-12, Brief for Accused-Appellant Remy Diño)

In this appeal, appellant Remy Diño makes the following Assignments of Error:

I. The lower Court (through the Honorable Judge Numeriano G. Estenzo) erred in deciding the case without the transcript of stenographic notes of the testimony of all the accused and their witnesses having been transcribed as he (Judge Estenzo) did not hear the testimony of the witness as all the witnesses (both the prosecution and accused) testified before then Judge Castrense C. Veloso but whose resignation was accepted by the President before he can decide the case.

II. The lower Court likewise erred in giving weight and credence to the unreliable testimony of prosecution witness Roberto Dumancas.

III. The lower Court also erred in admit the alleged confession of the accused Remy Diño (Exh. "C") and in not finding the same as secured through force and intimidation.

IV. The lower Court further erred in not considering the defense of the accused Remy Diño and in not believing the testimony of Kathleen Hustace, a peace corps assigned in the barrio of the accused, that she and Remy Diño were together at the time the alleged crime was committed.

V. The lower Court finally erred in convicting the accused Remy Diño of the crime of rape with homicide and imposing three (3) penalties of reclusion perpetua.

The errors assigned are bereft of support from the evidence on record.

1. It is a fact that all the witnesses, both of the prosecution and the defense testified before then Judge Castrense C. Veloso whose resignation, however, was accepted by the President before he could decide the case. It was Judge Numeriano G. Estenzo, assigned temporarily to preside over Branch III, who eventually rendered the Decision on June 30, 1975.

Notwithstanding that circumstance,

There is no provision of law which would preclude a Judge of the Court of First Instance from deciding a case on the basis of the oral and documentary evidence presented before the first judge who resigned from the service without deciding the case, which oral evidence was taken by a stenographer and was produced before the second judge. This rule is rooted in practical considerations. Sometimes it is an impossibility for the judge who tried the case to be the same judicial officer to decide it. The judge who tried the case may die, resign or retire from the bench before he could render judgment thereon. In that case, We find no legal impediment to his successor's continuing with the trial or rendering judgment on the basis of the evidence submitted if the trial has been terminated. It is sufficient that in such circumstances the judge, in deciding the case, must base it completely on the cold record before him, in the same manner as appellate courts when they review the evidence of the case raised to them on appeal. (Villanueva vs. Estenzo, No. L-30050, June 27, 1975, 64 SCRA 407)

While it may be that not all of the stenographic notes had been transcribed at the time the judgment was prepared, the more crucial ones were before the lower Court. Besides, the separate memoranda of the three accused, particularly that of Remy Diño, summarized the major testimonies of witnesses for both the prosecution and the defense and contained an exhaustive discussion of the facts of substance essential to the defense of the respective accused. Thus, it was on the basis of the evidence of both the prosecution and the defense, with reference to stenographic notes when called for, that Judge Estenzo rendered his Decision.

2. No error was committed by the Court in giving weight and credence to the testimony of the only prosecution eyewitness Roberto Dumancas, a ten-year old boy. He had positively identified appellant Remy Diño as one of the malefactors. The error committed in identification of the two other accused was because he did not know them by their full Christian names but only by their nicknames. He had also described clearly and straigthforwardly the particular acts performed by each accused in the commission of the crime. That said witness was familiar with the three accused cannot be doubted, all three being from the same barrio as the witness himself.

Roberto's failure to inform his parents of the incident is not "contrary to human conduct," as claimed. He could have been too shocked at what he had witnessed, or he may have had certain inhibitions. He did reveal the incident, however, to a relative "Fe," also from the same barrio, on the same day of the incident (t.s.n., p. 28, May 3, 1974).

Roberto's age should not militate against his competence, the records of the proceedings showing that the Court found him a reliable and trusthworthy witness who was fully cognizant of the importance of an oath and of the significance of telling the truth (Decision, pp. 14 & 15).

3. The extra-judicial confession of appellant Remy Diño, executed on November 19, 1973, is challenged on the ground that the same was secured through force and intimidation. It narrated in detail how, when the victim passed by the rice paddies at about 1:00 o'clock P.M., more or less, of November 13, 1973, she was "immediately caught by Badong (Salvador Dequito) and he then kissed her;" that appellant himself took hold of her two arms; and thereafter the three of them (Salvador Dequito, Alex Dequito and he) took turns in having carnal knowledge of the victim; that appellant did so only once; that the victim was strangled by Salvador so that "she cannot inform the authorities;" and that only the three of them did "the raping and killing of Miss Melinda Boglosa."

While the evidence negates that the confession was extracted by force and intimidation, nevertheless, having been obtained after the effectivity of the 1973 Constitution on January 17, 1973, it is inadmissible in evidence, as the accused was not clearly and unequivocally informed of his constitutional rights to remain silent and to counsel, in violation of the prescribed safeguards in Section 20, Article IV of the 1973 Constitution. ¹ The confession was merely prefaced with the perfectory statement that "the one making a sworn statement was informed of his right under our Constitution and the reason for this investigation," without more.

Be that as it may, the testimony of the sole eyewitness, Roberto Dumancas, sufficiently establishes the guilt of appellant, which testimony is corroborated in its material aspects by the postmortem findings and the testimony of the medico-legal officer in respect thereto.

4. No error was committed by the lower Court in not giving credence to the testimony of Kathleen Hustace, a Peace Corps volunteer assigned in the barrio where the crime was committed. She testified that at about the time the crime was perpetrated, she and Remy Diño were together feeding birds. Even granting it to be so, that does not exclude the possibility that Remy Diño could have slipped out either before or after the feeding of the birds in order to commit the crime. Kathleen herself testified that she had to leave around 1:00 P.M. of that fateful day in order to make an appointment.

To establish alibi, an accused must show that he was at some other place for such a period of time that it was impossible for him to have been at the place where the crime was committed at the time of its commission (People vs. Urgel, No. L-34861, February 25, 1985, 134 SCRA 483). In this case, the place where Kathleen Hustace and Remy Diño were feeding the birds was in the same barrio where the crime was perpetrated.

5. The lower Court correctly rendered a verdict of guilty. The elements of rape — that of having carnal knowledge of a woman by using force and depriving her of consciousness — are indubitably present. Eyewitness Roberto Dumancas testified that while he was herding his carabao, he saw the victim approaching from a distance; suddenly Salvador Dequito pulled her down causing them both to fall to the ground; appellant Remy Diño then held the hands of the victim while Jose Dequito held her two legs; thereafter Salvador Dequito took off his pants and underwear and had carnal knowledge of the victim; and that thereafter, Jose Dequito and Remy Diño took turns abusing her.

The elements of the crime of Homicide are likewise attendant — namely, that a person is killed; that the accused are the authors of the killing without justifiable reason; and that the accused had the intention to kill, which is usually the case when death results because the law presumes that they had intended the material consequences of their unlawful act.

Citing again from the testimony of Roberto Dumancas, he declared that when the three accused were through abusing the victim, Salvador Dequito choked her, and with an engine cranker, struck her on the head; subsequently, the trio dragged the victim and pushed her head into the rice paddy, which was knee-deep with water. The medico-legal officer corroborated this testimony in his Necropsy Report where he disclosed that the victim had been abused and that she died as asphyxia by strangulation and drowning. The fact that said officer found no wound on the forehead does not necessarily imply that the victim was not so struck as a gaping wound need not necessarily have resulted.

Finally, the three penalties of reclusion perpetua were properly imposed. It is evident that conspiracy attended the perpetuation of the crime of Rape with Homicide by the three accused. By their contemporaneous acts it was evident that they were acting in concert and pursuing the same objective and design — that of raping the victim and killing her. The act of one is the act of all and each of the conspirators must be held liable for each of the felonious acts committed in conspiracy (People vs. Beltran, Nos. L-37168- 69, September 13, 1985, 138 SCRA 521). The penalty should, in fact, be death since by reason or on the occasion of the rape, a homicide was committed (Article 335, Revised Penal Code), but with the abolition of the death penalty in the 1987 Constitution, the imposable penalty would be reclusion perpetua just the same. So that, instead of three (3) death penalties, the accused Remy Diño should suffer three (3) penalties of reclusion perpetua.

WHEREFORE, the judgment appealed from is hereby AFFIRMED, except that the indemnity to the heirs of the victim, Melinda Boglosa, is hereby increased to P20,000.00. With one-third (1/3) of the costs against accused-appellant, Remy Diño.

SO ORDERED.

Yap (Chairman), Paras, Padilla and Sarmiento, JJ., concur.

Footnotes

1 Sec. 20. No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence.