Medenilla vs CSC

GRN 93868  February 19,1991

ARDELIZA MEDENILIA, petitioner, us. CML SERAWE COMMSSION, AMPARO DELLOSA, ROSALINDA JURIA and MARITA BURDEOS, respondents.

PETITION to review the resolutions of the Civil Service Commission.

The facts are stated in the opinion of the Court.

GUTIERREZ, JR., J.:

This is a petition seeking the annulment of the resolutions issued by the Civil Service    Commission  which disapproved the appointment of the petitioar to the petition of Supervising Human Manpower  Develop Officer.

Petitioner Ardeliza Medenilla was a contractual employee of the Department of Public Works and Highways (DPWH) occupying the position of Public Relations Officer II.

In 1987, Medenilla was detailed as Technical Assistant in the Office of the Assistant Secretary for Administration and Manpower Management.

Pursuant to Executive Order No. 124 dated January 30,1987, a reorganization ensued within the DPWH and all the positions therein were abolished. A revised staffing pattern together with the guidelines on the selection and placement of personnel was issued.

Included in the revised staffing pattern is the contested position of Supervising Human Resource Development Officer.

On January 2, 1989, the petitioner was appointed to the disputed position.

On January 27, 1989, respondents Amparo Dellosa, Rosalinda Juria and Merits. Burdeos together with Matilde Angeles, Catalina Espinas, Alicia Nercelles and Ramon Racela, all of whom are employees in the Human Resource Training- and Material Development Division, Administrative and Manpower Management Service of the DPWH, jointly lodged a protest before the DPVTH task force on reorganization contesting the appointment of the petitioner to the position.

The protestants alleged that since they are next-in-rank employees, one of them should have been appointed to the said position.

On August 2,1989, the task force on reorganization dismissed the protest. The dispositive portion of its decision reads as follows:

"Premises considered, the Task Force on Reorganization Appeals finds the instant protest of Matilde Angeles, et al. without merit and hereby recommends to the Honorable Secretary that the appointment of Ardeliza Medenilla to the contested position of Supervising Human Resource Development Officer be upheld." (Rollo, p. 26)

Not satisfied, the private respondents appealed the decision to the Civil S. vice Commission. The Commission found:

A, it thattest,e Me(' ~illa ')es n,eligibility is PD 907, being a cum laude graduate. Let it be considered appropriate only for appointment to 'second level positions' which require the application of knowledge and skills within the appointee's field of study.", (Rollo, p. 28-29)

xxx xxx "Further, it also appears that Medenilla is a contractual employee assigned or detailed with the Office of the Assistant Secretary for Administration and Manpower Management (the appointing authority) as Public Relations Officer 11, while protestants are all permanent employees of the Division (Human Resource Planning) where the vacancy exists.

"Indeed, RA 6656 does not preclude the appointment of contractuals; to a new staffing pattern, however, in the presence and availability of qualified permanent nextin-rank employees in the organization, the latter has to be preferred, unless a contractual employee possesses superior qualifications that could justify her appointment. However, in this case, we see no superior qualifications or any special reasons for preferring Medenilla over the protestants. (Rollo, p. 29)

"We find merit in the protest. While as earlier mentioned, the appointing authority is given the wide latitude of discretion, to sustain the appointment of Medenilla may give the appointing power unnecessary opportunities to act capriciously and thus thwart the natural and reasonable expectation of the officer next-in-rank to any vacant position, to be promoted to it. As held in Millares v. Subido, G.R. No. L-23281, promulgated August 10, 1967, the Supreme Court held:

"We, therefore, hold that in the event of there occuring a vacancy, the officer next-inrank must, as far as practicable and as the appointing authority sees it in his best judgment and estimation, be promoted x x x and that it is only in cases of promotion, where an employee other than the ranking one is promoted, is the appointing power under duty to give 'special reason or reasons' for his action x x x."

"Again, the special reasons advanced by the appointing authority in this rase is (sic) not enough. Considering further that appointee is not meeting the minimum qualification standards set by his own office, she could not be said to possess far superior qualification than those permanent next-in-rank employees of the Department." (Rollo, pp. 30-31)

Thus, on February 28, 1990, the Commission promulgated the assailed resolution, the dispositive portion of which reads

"WHEREFORE, foregoing premises considered, the Commission resolved to disapprove the promotional appointment of Ardeliza Mederrilla to the position of Supervising Human Manpower Developmerit Officer. Accordingly, the appointing authority may choose from among protestants Amparo Dellosa, Marita Burdeos and Rosalinda Juria who to promote to the said position. The Civil Service Field Office is directed to implement this resolution accordingly." (Rollo, p. 31)

The petitioner on March 23, 1990 filed a motion for reconsideration of the resolution. On May 30, 1990 a supplement to the Motion for Reconsideration was also filed. However, prior thereto, the Commission on May 23, 1990 denied the petitioner's motion for reconsideration. The pertinent portions of the denial are:

xxx xxx xxx "2. Experience of Medenilla "Medenilla alleges that the Commission failed to appreciate her 3 years and 8 months of experience directly relevant to Human Resource Development. Looking more deeply into her experience as reflected in her CS Form 212, we could not distinguish her experience directly relevant to the field of Human Resource Development. The certification of a certain Elvira H. Villania stated her duties in the Guthrie-Jensen Consultants, Inc. in her one (1) year and (7) months as Research and Publication Officer of working included 'providing research assistance to our Management Consultants in drawing up performance appraisal system, merit promotion system and conducting development for our client-companies.'Notwithstariding, assuming that her I year and 7 months experience in the company is relevant, yet, compared to the experience of the protestants in the field of Human Resource Development, said experience is obviously outweighed. There is no dispute that Medenilla has experience as a Researcher but said experience is basically on the field of journalism and information." (Rollo, p. 35)

xxx xxx xxx "4. Education background and eligibility of Modenilla.

x x x  Notwithstanding  we are in-_e,d io reconsideredr position at the educational background is  not, want. AB may  there before be taken as a relieve of qualifying to the position. As such, her PD, 907 eligibility may be considered appropriate." (Rollo, p. 37)

xxx xxx xxx .Granting for the sake of argument that the DPWR adhered to its rules relative to reorganization, is at this point, no longer material and controlling. What is now the issue is whether Medenilla indeed possesses superior qualifications over any of the protestants. (Rollo, p. 38)

xxx xxx xxx "x x x The edge of 1.30% of Medenilla over Dellosa cannot be considered by this Commission significant enough to presume and declare that Medenilla possesses far superior qualifications over the protestant and to warrant the appointment of a contractual employee over a permanent employee of the Department." (Rollo, p. 39)

Hence, this petition.

The petitioner interposes the following grounds:

I The resolutions were issued by the Respondent- Commission, without giving notice to the petitioner of the existence of an appeal filed before the CSC, thereby denying the petitioner due process of law.

The Civil Service Commission committed grave abuse of discretion amounting to lack oflurisdiction. in disapproving the appointment of the petitioner. Its function, is limited only to determine whether the appointee possesses the appropriate civil service eligibility and not whether another is more qualified than the petitioner.

Without giving due course to the petition, the Court on July 10, 1990, issued a temporary restraining order enjoining the Commission from implementing the assailed resolutions.

Anent the first ground, the petitioner contends that she was not notified by the Civil Service Commission of the existence of the appeal before it, Tine resolutions, therefore, were allegedly issued in violation of the petitioner's constitutionally guaranteed due process of law  

The public respondent, on the other hand, advances the argument that what due process abhors is not lack of previous notice but the absolute lack of opportunity to be heard. Since the petitioner filed a motion for reconsideration, she cannot now complain that she was deprived of due process.

The petitioner's first contention is without merit.

"Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, and property in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of the right in the matter involved." (Black's Law Dictionary, 4th Edition, p. 590)

The essence of due process is the opportunity to be heard. The presence of a party is not always the cornerstone ofdue process. (Asprec v. Itchon, 16 SCRA 921 [1966]; Auyong Hian v. Court of Tax Appeals, 59 SCRA 110 [1974]; Assistant Executive Secretary for Legal Affairs of the Office of the President of the Philippines v. Court of Appeals, G.R. No. 76761, January 9, 1989). What the law prohibits is not the absence of previous notice but the absolute absence thereof and lack of opportunity to be heard. (Tajonero v. Lamarosa, 110 SCRA 438 [1981])

In the case at bar, any defect was cured by the filing of a motion for reconsideration. (see De Leon v. Comelec, 129 SCRA 117 [1984])

The second contention of the petitioner alleges that the Commission acted with grave abuse of discretion in disapproving her appointment.

The public respondent views it otherwise. The Civil Service Commission asserts that being the Central Personnel Agency of the Government, it is the final arbiter on civil service matters.

The Commission alleges, that, pursuant to RA 6656, the Commission is authorized to act on appeals by aggrieved employees in the course of reorganization and, therefore, it has the power to reverse or modify any decision brought before it on appeal.

The petitioner's second contention is impressed with merit.

The qualification standards for the contested position are as follows EDUCATIONEXPERIENCE CIVIL SERVICE REQUIREMENTREQUIREMENTELIGIBILITY Bachelor's degree2 years ofManpower-Youth relevant to the jobexperience inDevelopment with at leasthuman resourceOfficer 9 units in postdevelopmentManpower Development Officer Relevant RA 1080

Relevant Second Level Eligibility Career Service (Professional) First Grade Supervisor It is not disputed that the petitioner possesses the appropriate civil service eligibility and requisite educational background. The public respondent itself, in its resolution dated May 23, 1990, considered the petitioner's PD No. 907 eligibility appropriate for the position. (Rollo, p. 37)

The controversy then centers on the experience of the petitioner.

The Commission contends that the experience of Medenilla is basically in the field of journalism and not in Human Resource Development. The Commission also alleges that since the petitioner is merely a contractual employee, in the absence of superior qualifications, the private respondents must be preferred not only for the reason that they are permanent career service employees but most especially because they are next-in-rank to the disputed position.

In support of its argument, the Commission cited in the disputed resolution, the case of Millares v. Subido, 20 SCRA 954 where this Court held:

x x x A vacant position shall be filled by promotion of the ranking officer or employee. A-3 only where, for special reason or reasons of which the affected officer or employee mode of recruitment on separation cannot be observed  may be filled by transfer, or re-employment, or by getting from the certified list of appropriate eligibles, in that order."

Finally, the public respondent advances the view that, since the Revised Administrative Code of 1987 now provides that the Commission shall "take appropriate action on all appointment" its authority, therefore, is no longer limited to the mere approval or disapproval of appointments submitted to it.

A careful review of the records of the case, will reveal that the petitioner possesses the requisite experience for the contested position.

The petitioner, not only was a cum laude graduate from the University of the Philippines, she has also acquired plenty of experience in the field of Human Resource Development, to wit:

"She was rated and ranked number one in the Trainor's Training Program (120 hours) conducted for the DPVTH by the Phil-Tao, Inc., a private firm. Ms. Dellosa was ranked number 7, Mrs. Juria was ranked number 10; Mrs. Burdeos did not attend the seminar. This training program was undertaken to strengthen the capabilities of HRD personnel, and to make them more effective in the discharge of their functions.

"She is a recipient of a special commendation, given by Executive Director Remedios I. Rikken of the National Commission in the Role of Filipino Woman, for her efficiency and exemplary performance as a  facilitator in the conduct of the workshops during the Second Congress of Women in Government. (Letter of Ms. Rikken addressed to See. Estuar attached as ANNEX "B".).

"She obtained in her on-going MBA studies at the De La Salle University, which she pursued as an entrance scholar, the highest grade of 4.0, equivalent to 'Excellent' in 2 HRD related subjects--Organizational Management-which call for the integration of concepts with concrete experience.

"She participated in the preparation and dissemination of the corporate planning processes installed and institutionalized in the DPVTH. Corporate Planning was introduced by Secretary Fiorello R. Estuar and is now being implemented in all government offices -as instructed by the President.

"She conducted orientation/reorientation courses in DPWH Regional Offices on  (a) Management By Objectives and Results  Evaluations Performasnce  Appraisal System, and (b) a specifically designed performance Appraisal  System for  DPWH District Engineers and Division Chiefs, being officially used by the DPWH.

"She participated in the conceptualizing and drafting of the Department Order on the DPWH Incentives and Awards System, set up in compliance with RA No. 6713." (Rollo, p. 63)

The public respondent failed to consider that the petitioner, in her one year and seven months experience with GuthrieJensen, was engaged in research relating to performance appraisal systems and merit promotion systems which duties are all related to Human Resource Development.

Precisely, it was because of her experience with GuthrieJensen, that the petitioner was detailed from January 1987 until December 1988 in the Office of the Assistant Secretary for Administration and Manpower Management, where she was asked to assist in human resource planning.

The rejoinder filed during the proceedings before the Commission, by the Assistant Secretary for Administrative and Manpower Management, Carolina Mangawang, is very revealing. The disputed position requires of the holder of the office, skills in human resource developmental planning, research and statistics. The petitioner possesses these skills in more than appropriate quantities.

The argument of the public respondent that the petitioner must possess superior qualifications in order to be preferred over the private respondents deserves no credit.

It can be readily seen that the petitioner possesses superior qualifications. As earlier stated, she is a cum laude graduate of the University of the Philippines. She was ranked No. 1 in the department wide training program handled by a private firm. Two of the respondents were ranked way below while a third did not even participate. She was commended for exemplary performance as facilitator during the Second Congress of Women in Government. She received the highest grades from De la Salle University in her MBA studies. She helped draft the human resource program for the entire DPWH. Inspite of her being a new employee, she was assigned to conduct seminars on Performance Appraisal Systems and on Management by Objectives and Results for the DPWH. She was Precisely drafted from a private firm to assist in human resource planning for the DPWH. Her work is apparentty highly satisfactory   as the  administrators of the DPWH not only appointed her but have asked the respondent Commission to validate the appointment. The respondents rely on Section 4 of R.A. 6656, which reads:

XXX "SEC. 4. Officers and employees holding permanent appointments shall be given preference for appointment to new positions in the approved staffing pattern comparable to their former positions or if there are not enough comparable positions, to position next lower in rank."

Undoubtedly, old employees should be considered first. But it does not necessarily follow that they should then automatically be appointed.

The preference given to permanent employees assumes that employees working in a Department for longer periods have gained not only superior skills but also greater dedication to the public service. This is not always true and the law, moreover, does not preclude the infusion of new blood, younger dynamism, or necessary talents into the government service. If, after considering all the current employees, the Department Secretary cannot find among them the person he needs to revive a moribund office or to upgrade second rate performance, there is nothing in the Civil Service Law to prevent him from reaching out to other Departments or to the private sector provided all his acts are bona fide for the best interest of the public service and the person chosen has the needed, qualifications. In the present case, there is no indication that the petitioner was chosen for any other reason except to bring in a talented person with the necessary eligibilities and qualifications for important assignments in the Department.

The reason behind P.D. No. 907 (which grants civil service eligibility to college graduates with at least cum laude honors) of attracting honor graduates into the public service would be negated if they always have to start as Clerk I and wait for hundreds of deadwood above them to first go into retirement before they can hope for significant and fulfilling assignments.

The Commission's reliance an the dictum in Millares v. Subido, 20 9CRA 954 [1967] is misplaced. The ruling in Milares has already been supersededby later decisions. W e have held in the cases subsequent to Milares that the next-in-rank is not absolute; it only applies in cases of promotion (see Pineda v. Claudio, 28 SCRA 34 [1969]). And even in promotions, it can be disregarded for sound reasons made known to the next-inrank. The appointing authority, under the Civil Service Law, is allowed to fill vacancies by promotion, transfer of present employees, reinstatement, reemployment, and appointment of outsiders who have appropriate civil service eligibility, not necessarily in that order. (see Pineda v. Claudio, supra; Luego v. Civil Service Commission, 143 SCRA 327 [1986]) There is no legal fiat that a vacancy must be filled only by promotion; the appointing authority is given wide discretion to fill a vacancy from among the several alternatives provided for by law.

In this case, the contested position was created in the course of reorganization. The position appears to be a new one. The applicability, therefore, of the next-in-rank rule does not come in clearly. Besides, as earlier stated, said rule is not absolute. There are valid exceptions.

Granting for the sake of argument that the case involves a promotional appointment, the next4n-rank rule must give way to the exigencies of the public service. The intent of the Civil Service Law is not merely to bestow upon permanent employees the advantage arising from their long employment but most specially, it is to foster a more efficient public service. Any other factor must, therefore, yield to the demand for an effective government, which necessarily entails the appointment of competent, qualified and proficient personnel.

The deliberation of this Court in the case of Aguilar v. Nieva, Jr., 40 SCRA 113 [1971] is illuminating, to wit:

XXX xxx xxx "x x x It is not enough that an aspirant is qualified and eligible or that he is next-in-rank or in line for promotion, albeit by passive prescription. It is just necessary, in order for public administration to be dynamic and responsive to the needs of the times, that the local executive be allowed the choice of men of its confidence, provided they are qualified and eligible, who in his best estimation are possessed of the requisite reputation, integrity, knowledgeability, energy and judgment." (Emphasis Supplied, p. 121)

The point raise I by the public respondent that, pursuant to the Revised Administrative Code of 1987, it is authorized to  revoke appointments, must necessarily fail.

We have already ruled on several occasions that when the appointee is qualified, the Civil Service Commission has no choice but to attest to -the appointment., It is not within its prerogative to revoke an appointee an the ground that substituting its judgment for that of the appointing power, another person has better qualifications for the job.

Once the function is discharged, the participation of the Civil Service Commission in the appointment process ceases. The only purpose of attestation is to determine whether the appointee possesses the requisite civil service eligibility, no more than that is left for the Civil Service Commission to do. (see Luego v. CSC, 143 SCRA 327 [1986]; Central Bank of the Philippines v. CSC, 17i SCRA 744 [1989]; Secretary- Oscar Orbos v. CSC, G.R. No. 92561, September 12,1990; Gaspar v. CSC, G.R. No. 90799, October 18,1990).

The rationale of this doctrine is that the power of appointment is essentially discretionary. The discretion to be granted to the appointing authority, if not plenary, must at least be sufficient.

After all, not only is the appointing authority the officer primarily responsible for the administration of the office but he is also in the best position to determine who among the prospective appointees can efficiently discharge the functions of the position (see Villegas v. Subido, 30 SCRA 498 [1969]), As between the Commission which only looks into paper qualifications and the appointing authority who views not only the listed qualifications but also the prospective appointees themselves, the work to be accomplished, the objectives of the Department, etc. the Court sustains the Department Head.

WHEREFORE, the petition is hereby GRANTED. The resolutions issued by the Civil Service Commission dated February 28, 1990 and May 28, 1990 are SET ASIDE. The restraining order issued by this Court on July 10, 1990 is made permanent.

SO ORDERED.

Fernan (C.J.), Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Griño-Aquino,

Medialdea and Regalado, JJ.,  concur.

 Petition granted. Resolutions set aside.

People vs. Mision, G.R. No. L-63480, February 26, 1991

Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-63480 February 26, 1991

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LUIS MISION y SALIPOT, accused-appellant.

The Solicitor General for plaintiff-appellee.

Florante M. De Castro for accused-appellant.

FELICIANO, J.:p

The accused Luis Mision y Salipot is before us on appeal from the decision of the Court of First Instance, Branch I, Masbate, convicting him of the complex crime of murder with frustrated murder and sentencing him to reclusion perpetua.

Appellant was the accused in Criminal Case No. 2029 in an information which read as follows:

The undersigned Asst. Provincial Fiscal accuses Luis Mision y Salipot of the crime of Murder with Frustrated Murder, committed as follows:

That on or about October 24, 1978, in the evening thereof, at poblacion of the Municipality of Esperanza, Province of Masbate, Philippines, within the jurisdiction of this court, the said accused with intent to kill, evident premeditation and treachery did then and there willfuly, unlawfully and feloniously attack, assault and stab with a bladed instrument Mercy Dagohoy hitting the latter on the left shoulder and Luciana Dagohoy also hitting her on the chest, thereby inflicting [a] wound which caused the death of said Luciana Dagohoy several days thereafter; thus performing all the acts of execution which would have produced the crime of murder, as a consequence but nevertheless did not produce it by reason of causes independent of the will of the accused, that is by the timely and able medical attendance rendered to said Mercy Dagohoy which prevented her death.

Contrary to law. ¹

The accused entered a plea of not guilty with the assistance of counsel de oficio during arraignment on 2 April 1979. ²

After trial, the lower court rendered a decision dated 26 August 1981 finding the accused guilty of the crime charged. The dispositive portion of the decision states:

WHEREFORE, premises considered, the guilt of the accused Luis Mision, having been proved beyond reasonable doubt, of the crime of Murder with Frustrated Murder, he is hereby sentenced to suffer the penalty of reclusion perpetua, together with all the accessory penalties provided for by law, to indemnity the heirs of Luciana Dagohoy the amount of TWELVE THOUSAND (P12,000.00) PESOS, without subsidiary imprisonment in case of insolvency and to pay the costs of the suit.

xxx xxx xxx

SO ORDERED. ³

Appellant, in his Brief, makes the following assignment of errors:

1. The trial court erred in giving undue weight and credit to the highly improbable testimonies of the witnesses for the prosecution which are reeking with inherent self-inconsistencies on material points and which are inconsistent with human experience and against the natural course of things.

2. The trial court erred in giving every ounce of benefit to the prosecution and in not resolving even a gram of doubt in favor of the defense.

3. The trial court erred in finding the herein accused-appellant guilty of the offense charged in the information which he had never committed and in not acquitting him when his innocence had been established. ⁴

The facts as found by the lower court are as follows:

The prosecution through its evidence endeavored to show that at noontime on October 24, 1978, the accused sought to buy drinks on credit from Luciana Dagohoy at Esperanza, Masbate. Luciana Dagohoy had a small store adjacent to her house. She refused the accused.

At about 7:30 o'clock in the evening of said day, as Lelith (Mercy) Dagohoy, a niece of Luciana, was about to close the door of the store for the nights, the accused pushed it open. Once inside, he immediately stabbed Lelith on her left shoulder. The latter fell down. Thereafter, the accused approached Luciana, who was sitting some three (3) meters away, and likewise stabbed her, hitting her on the right breast. When Lelith saw her aunt being stabbed, she became unconscious. Meanwhile the accused fled. He used a knife eight (8) inches long.

When Lelith regained consciousness, she heard her aunt shouting for help. Some neighbors responded. Soon Policeman Becamon of the Esperanza Integrated National Police came. He brought the two wounded victims to the Cataingan Emergency Hospital at Cataingan, Masbate, arriving there at about 2:00 o'clock in the morning of October 25, 1978. That morning, Policeman Gavino Castro, Jr. of the Cataingan Integrated National Police interviewed the two wounded victims. He reduced this in writing, duly signed by the two victims. In both documents, the accused, Luis Mision, was identified as the assailant.

On October 26, 1978, Luciana Dagohoy died of septicemia or blood poisoning which set in twenty-four hours after the infliction of the injury, and hemorrhage due to the stab wounds.

Lelith was discharged from the hospital after five (5) days.

xxx xxx xxx

In the afternoon of October 25, 1978, Mision was summoned to the municipal building of Esperanza for investigation. During the investigation, the INP Command of Esperanza received a wire from Cataingan, Masbate, apparently in connection with the investigation of the two victims by a member of the Cataingan INP Command. Mision has been detained since then. ⁵

Appellant interposed the defense of alibi before the trial court. He testified he never went to the store of the victims either in the afternoon or evening of 24 October 1978. He admitted he had known the victims for more than three (3) years; he had regularly served as a porter of goods sold at the Dagohoys' store. ⁶

Dr. Alfonso Almanzor, the resident physician of Cataingan Emergency Hospital who treated the Dagohoys, testified that Luciana Dagohoy was "stretcher borne", "alive but stuporous" when admitted at about 2:55 a.m. on 25 October 1978. ⁷ He described her injury in the medico-legal certificate he prepared in the following terms:

Stab wound 1.3 inches along the sternal line over the level of the second right ICS penetrating the thoracic cavity. ⁸

The victim was in serious condition at the time and was placed in the intensive care ward of the hospital. She was revived and, her condition stabilized, she could communicate with other people. However, blood poisoning set in about twenty-four (24) hours after she had sustained her stab wound and Luciana Dagohoy died on 27 October 1978. ⁹

Dr. Almanzor testified further that Merceda Dagohoy was ambulatory when admitted with an injury described as follows:

Stab wound one (1) inch long muscular deep, over the (L) supraclavicular area. ¹⁰

Patrolman Gavino Castro, Jr. testified that in the morning of 25 October 1978, his office, the INP of Cataingan, Masbate, received a communication from the Station Commander of the police station at Esperanza requesting that his office obtain ante mortem statements from the victims of the stabbing incident. He proceeded to the hospital, arriving there at about 9:30 a.m. In the presence of one Restituto Lim, he took the statement of Luciana Dagohoy in the Visayan dialect which was known to her, translating his questions and her answers into English before writing them down in a document which came to be offered and admitted as Exhibit "E" for the prosecution.

It appears from Exhibit "E" that Luciana, in great pain, identified the accused as her assailant. Pat. Castro admitted in court that he could not remember if Luciana was conscious of her impending death at the time he took her statement. He likewise admitted that he was related by marriage to one of the victims, his wife being another niece of Luciana Dagohoy. ¹¹ The record does not indicate that Restituto Lim was presented in court to corroborate or complement Pat. Castro's testimony regarding the circumstances under which Luciana Dagohoy gave her dying declaration.

We agree with the trial court that Luciana's statement is entitled to credence and constitutes sufficient basis for concluding that she had positively identified her assailant. The statement bears all the earmarks of a dying declaration. ¹² Appellant implicitly recognized this fact when he failed to impugn its admissibility either before the trial court or in this appeal.

Pat. Castro took the statement of Merceda Dagohoy on the same occasion. In court, this victim, thirteen (13) years of age, affirmed the contents of her statement by positively identifying the accused as the person who stabbed her and her aunt:

Q All right. On Oct. 24, 1978 at about 7:30 o'clock in the evening, do you remember where you were?

A In my house.

Q You mean in the house of your aunt, Luciana Dagohoy?

A Yes, sir.

Q On that date and time, do you remember of any unusual incident that happened in that house?

A Yes, sir.

Q Please tell us what happened there?

A Luis Mision entered our house and then stabbed me and my aunt.

Q This Luis Mision you have just mentioned stated (sic) whether he is now in court?

A Yes, sir.

Q Will you point to a man who Identified himself as Luis Mision? (sic)

A Witness pointed to a man who Identified himself as Luis Mision.

Q Why do you know the accused Luis Mision?

A Because he is also from our place.

Q Now you said that this Luis Mision entered your house and stabbed you and your auntie, who first was stabbed, you or your auntie?

A I. ¹³

Appellant assails what he asserts to be improbable testimony of Merceda Dagohoy. He finds it strange that Merceda, in her narrative, would state that Luciana shouted for help after, rather than before or while being, stabbed. Furthermore, Merceda said she fainted after being stabbed; but later, realizing she could not have seen her aunt stabbed if this was so, corrected herself by saying she fainted after seeing her aunt stabbed. Merceda could not have clearly witnessed the attack, appellant argues, because she could not recall the names of the persons who answered her aunt's call for help nor informed these persons, or those in the hospital, that she had recognized the accused as the assailant. The contention of appellant is that Merceda, uncertain of the identity of the assailant, belatedly identified the accused only upon suggestion of Pat. Castro; that the latter had fixed his suspicions on the accused because blood stains had been found behind the Esperanza municipal building leading to the accused's house; and that Pat. Castro had informed Merceda to convince her that the accused was her probable assailant. ¹⁴

It is evident from the transcript that the inconsistencies in Merceda Dagohoy's testimony refer to minor details which strengthen rather than weaken her credibility as a witness for they indicate she was not coached. The transcript reveals a witness of tender age who was subjected to prolonged cross-examination and yet, instinctively, was able to give answers explaining the inconsistencies, omissions and supposed improbabilities of her testimony. We agree with the trial court that she was telling the truth.

There is nothing improbable about Luciana's belated call for help. The violence and suddenness of the attack must have shocked her into inaction during its commission. It is merely speculative for the defense to say that Merceda was instantaneously adjusting her testimony on the stand to make it appear she actually saw the accused stab her aunt. It is clear to us that she was merely restating with more precision what she had really seen in response to the specific questions of the defense counsel during cross-examination. Merceda's identification of the accused was not belated at all. She saw her aunt stabbed; she herself was stabbed. Bleeding, weakening and in pain from her own shoulder wound, she had to undergo a seven (7)-hour nighttime trip to Cataingan for treatment, probably apprehensive all the way that her injury might prove fatal. At the hospital, all attention was focused at stabilizing their condition. By mid-morning of the next day, 25 October 1978, however, Merceda was able to give a statement to Pat. Castro. Merceda's knowledge of the blood stains behind the Esperanza municipal building certainly came from the results of the police investigation. But she had shown in her testimony, corroborated by the accused's own testimony, that she had dealt with and had come to know the accused during the time he had worked as a porter for their store. Such acquaintance was quite sufficient to have enabled her to recognize easily the accused during the stabbing, rendering redundant any alleged police suggestion on the identity of the probable assailant.

Appellant also impugns the credibility of Dr. Almanzor and Pat. Castro on the ground that their testimony, in relation to each other and to Merceda's testimony, was vitiated by material inconsistencies. Again, it appears to us that these uncertainties refer to details which reinforce the reliability of these witnesses. The alleged uncertainties pointed out do not in any way weaken Merceda's crucial testimony positively identifying the accused as the assailant.

Appellant further sought to impugn the credibility of Pat. Castro as a witness because he was related to the victims by marriage. We believe that the testimony of a witness is not, for that reason alone, necessarily flawed or to be denied any weight. The trial court correctly subjected such testimony to the ordinary processes of evaluation and assigned to it the weight said court deemed proper. This Court has no basis for rejecting such evaluation and weighing. The trial court had observed the demeanor of these three (3) prosecution witnesses while under examination. Its finding on the credibility of these witnesses binds us, there being no circumstance evident in the record which would compel us to disregard the same. ¹⁵

We do not think that appellant's defense of alibi avails him anything. In the first place, appellant's alibi, a defense inherently weak and difficult, cannot stand up against the positive identification of appellant as the doer of the crimes made by Merceda Dagohoy and Luciana Dagohoy's dying declaration. ¹⁶ In the second place, appellant's house where he supposedly was at the time of the stabbing of Luciana and Merceda Dagohoy, was only about 300 meters away from the scene of the crime, ¹⁶A a distance that a mature man in reasonable health can traverse in minutes. There was, in other words, no impossibility of appellant's committing the crimes involved here and then repairing to his own house. Thus, the trial court correctly rejected the defense.

We agree with the trial court that Luciana Dagohoy's dying declaration, corroborated by Merceda Dagohoy's testimony, is sufficient to produce moral certainty of the guilt of the accused. ¹⁷ In fact, we believe appellant's conviction may be sustained even without Luciana Dagohoy's dying declaration. The testimony of Merceda Dagohoy would have been sufficient, "it having been declared by this Court that the testimony of a single witness, when credible, is sufficient to convict." ¹⁸

We turn to the proper characterization of the offense(s) for which the accused should be held liable. The trial court found that accused had committed the complex clime of murder with frustrated murder, saying:

The assault mounted by the accused was simultaneous. After stabbing Lelith, he stabbed Luciana. It is the opinion of the Court that the assault was executed under one single impulse, resulting in the wounding of the two victims, which clearly constitutes a complex crime. (People vs. Lawas, et al., 97 Phil. 975). Again, when for the attainment of a single purpose, which constitutes an offense, various acts are executed, such acts must be considered as only one offense, a complex one. Various acts committed under one criminal impulse may constitute one single complex offense. (People v. Pincalin, et al., G.R. No. L-38755, January 22, 1981, citing People v. Peñas, 66 Phil. 682 and People v. Abella, L-22205, August 31, 1979). Such being the case, the penalty applicable should be that of the more serious offense, in its maximum. ¹⁹

The Solicitor General contends that the two (2) offenses imputed to the appellant cannot be treated as a single offense because the manner in which he committed them prevented them from constituting a complex crime under either of the two (2) ways by which multiple offenses may be "complexed" under Article 48 of the Revised Penal Code. ²⁰

We agree with the Solicitor General. The trial court characterized the acts of the appellant as a delito compuesto, the complex crime defined under the first clause of Article 48. In the present case, however, the evidence established that appellant inflicted a stab wound on each of the two (2) victims who were separated from each other by a distance of three (3) meters. There were, in other words, two (2) distinct acts, directed at two (2) different victims successively, separated from each other by a brief but discernible interval of time and space. A delito compuesto, in contrast, arises from a single physical act resulting in simultaneous (or almost simultaneous) injury to two (2) or more victims. The two (2) distinct offenses here having arisen from two (2) distinct physical acts, such offenses cannot be characterized as constituting a delito compuesto. ²¹

Reliance by the trial court on the single impulse principle enunciated in the cases cited by it is misplaced. In People v. Remollino, ²² we had occasion to characterize the Lawas ruling as predicated upon the peculiar circumstances of the case which gave rise to it. Therein the accused and other members of the Home Guard fired upon a large group of Maranaos at a signal from Lawas and continued firing until Lawas gave a ceasefire signal. About fifty (50) Maranaos were killed. However, there was no evidence at all showing the identity or number of persons killed by each accused. Instead of holding each accused responsible for a specific death or deaths or for fifty (50) deaths, the Court was "forced" to find all the accused guilty of only one offense of multiple homicide. In the case at bar, the evidence established that appellant, acting alone, stabbed two (2) victims, one after the other, by two (2) (or at least two) distinct knife thrusts.

The case of People v. Pincalin, ²³ also cited by the trial court, is so different in its facts that it is obviously inapplicable to the case at bar. We reserve to another occasion the discussion and possible re-examination of the apparent doctrine in that case.

The trial court found that the qualifying circumstance of treachery attended the attack upon the Dagohoys, holding that:

With respect to treachery, the same is said to exist when the aggressor adopted a mode of attack intended to facilitate the commission of the crime without risk to himself (Bernabe vs. Bolinas Jr., 18 SCRA 812).

In the case at bar, the assault was mounted by the accused against his victims in such a manner that caught them by surprise. It was so swift that they were unable to even defend themselves, armed as they were, or to flee from the culprit. The attack was clearly a treacherous one. This circumstance qualified the crime to Murder. ²⁴

It appears from the evidence that appellant timed his murderous visit to the store of the Dagohoys at closing time, that is, a time when it was likely there would be no other persons in the vicinity of the store who could have witnessed the assault or interfere with the same. In other words, the appellant consciously adopted a mode of attack designed to facilitate the killing without risk to himself. In addition, as pointed out by the trial court, the surprise attack upon the two (2) women was carried out so swiftly that they were unable to defend themselves or to flee from the attacker. We believe that alévosia was properly found in the instant case.

The evidence also established that appellant had inflicted the stab wound on the shoulder of Merceda Dagohoy. Initially, Dr. Almanzor estimated that Merceda would require medical treatment for a period from seven (7) to fourteen (14) days. The defense now attempts to suggest that the injury upon the person of Merceda was merely "superficial" and that it was improper for the trial court to convict appellant of the crime of frustrated murder. The difficulty with this contention is that the evidence showed that secondary infection had set in within twenty four (24) hours of the time Merceda and Luciana were stabbed and that the hospital to which they were taken was seven (7) hours away from the scene of the attack. Merceda was in fact discharged from the hospital after five (5) days confinement. Even so, we agree with the trial court that the assault upon Merceda constituted frustrated murder, her relatively quick recovery being the result of prompt medical attention which prevented the infection in the wound from reaching fatal proportions which would otherwise have ensued.

We turn to the penalties imposable on appellant for the separate offenses he committed. The penalty prescribed by law for the consummated offense of murder is reclusion temporal maximum to death. ²⁵ There being no modifying circumstances present in this case, the appropriate penalty imposable on appellant for the death of Luciana Dagohoy would be the medium period, i.e., reclusion perpetua. ²⁶

The penalty provided by law for the crime of frustrated murder is prision mayor maximum to reclusion temporal medium, the penalty next lower in degree to that prescribed by law for the consummated offense. There being no modifying circumstance present, the appropriate penalty imposable on appellant would be the medium period, i.e., reclusion temporal minimum. The proper penalty after giving effect to the Indeterminate Sentence Law may then be located within the range from prision correccional maximum to reclusion temporal minimum.

WHEREFORE, the Decision of the trial court dated 26 August 1981 is hereby MODIFIED by holding the accused Luis Mision guilty of two (2) separate crimes of murder and frustrated murder. There being neither a mitigating nor a generic aggravating circumstance alleged and proven, the accused shall suffer the penalty of reclusion perpetua for the death of Luciana Dagohoy. He shall likewise suffer imprisonment of six (6) years and one (1) day as minimum to fourteen (14) years and eight (8) months as maximum for the frustrated murder of Merceda Dagohoy. The penalties shall be served successively in accordance with the provisions of Article 70 of the Revised Penal Code. The indemnity for which the accused is liable for the death of Luciana Dagohoy is hereby increased to P50,000.00 in line with recent jurisprudence of this Court. ²⁷ As so modified, the decision of the trial court is hereby AFFIRMED.

SO ORDERED.

Fernan, C.J., Chairman, Gutierrez, Jr., Bidin and Davide Jr., JJ., concur.

Footnotes

1 Record, p. 22.

2 Id., p. 25.

3 Id., pp. 71-72.

4 Appellant's Brief, Rollo, p. 59.

5 Record, pp. 69-70; Rollo, pp. 7-8.

6 TSN, 9 August 1979, pp. 10-13.

7 TSN, 26 September 1979, p. 7.

8 Id., p. 4; Exhibit "B", Record, p. 9.

9 Id., pp. 7 & 10: Certificate of Death, Record. p. 8.

10 Exhibit "A". Record, p. 8.

11 Record p 6: TSN, 27 February 1980, pp. 13-14, 16-19.

12 People v. Reyes, 166 SCRA 483 (1988).

13 TSN, 9 August 1979, p. 2; Emphasis supplied.

14 Appellant's Brief, Rollo, pp. 60-64.

15 People v. Reyes, 166 SCRA 483 at 492 (1988).

16 People v. Tamayo, 183 SCRA 375 (1990); People v. Bustards, 182 SCRA 554 (1990); People v. Talla, 181 SCRA 133 (1990); People v. Mitra, 179 SCRA 612 (1989).

16A TSN, 2 March 1981, p. 11.

17 People v. Reyes, 166 SCRA 483 at 491 (1988).

18 People v. Traya, 147 SCRA 381 at 389 (1987).

19 Decision, pp. 2-3; Rollo, pp. 8-9.

20 Appellee's Brief, pp. 9-10; Rollo, p. 89.

21 See People v. Caldito, 182 SCRA 66 (1990).

22 l09 Phil. 607 (1960); reiterated in People v. Caldito, supra, at 79-80.

23 102 SCRA 136 (1981).

24 Decision, p. 3; Rollo, p. 72.

25 Article 248, Revised Penal Code.

26 People v. Muñoz, 170 SCRA 107 (1989).

27 People v. Saron, G.R. No. 89684, 18 September 1990, p. 18.

People vs. Mandapat, G.R. No. 76953, April 22, 1991

Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 76953 April 22, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PONCIANO MANDAPAT, accused-appellant.

The Solicitor General for plaintiff-appellee.

Adolfo A. Angala for accused-appellant.

BIDIN, J.:p

This is an appeal from the decision * of the Regional Trial Court of Dagupan City, Branch 44, convicting accused/appellant of the crime of murder, the decretal portion of which reads:

WHEREFORE, the Court finds the accused Ponciano Mandapat guilty beyond reasonable doubt of the crime of murder under Article 248 of the Revised Penal Code and in view of the presence of the aggravate circumstances of taking advantage of superior strength and that the crime was committed in the dwelling of the victim which are not offset by any mitigating circumstance, hereby sentence(s) said accused Ponciano Mandapat to suffer the supreme penalty of Death and to indemnify the heirs of the deceased Crispula Nonan in the sum of P30,000 (sic) plus costs.

Accused Ponciano Mandapat is also ordered to pay actual damages in the sum of P2,548.00 and moral damages of P10,000.00 for the heirs of the deceased Crispula Nonan. (Rollo, p. 41)

On March 9, 1982, an information was filed against accused/appellant charging the latter with the crime of murder allegedly committed as follows:

That on or about October 5, 1977, in Barangay Barang, municipality of Malasiqui, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Pat. Ponciano Mandapat armed with a firearm, with treachery and evident premeditation and with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and shot one Crispula Carino-Nonan, thereby inflicting upon said Crispula C. Nonan three (3) gunshot wounds which caused her immediate death. . . . (Original Record, p.1)

Upon arraignment, accused pleaded not guilty. Thereafter, trial on the merits followed.

The prosecution established its case, among others, through the testimonies of Maria Razo-Montemayor, an eyewitness; Dr. Tomas Refe, a medico-legal officer of the NBI; and Rogelio Munar, a ballistician of the NBI.

Montemayor testified that at about 10:00 a.m., she saw the accused holding the hair of the deceased Crispula Nonan, and with a gun on his hand, shot her on the head. She could not recall how many shots were fired but upon hearing the first shot, she hurriedly went home, terrified.

Dr. Refe, on the other hand, testified that he recovered two slugs from the exhumed body of the deceased which he submitted to the ballistics section of the NBI for examination. The service firearm of accused/appellant, Tell Revolver Caliber .22 with Serial No. 66330, was likewise submitted to the NBI office to determine whether the slugs (evidence bullets marked "CN") taken from the body of the deceased were fired from the same revolver.

In Ballistics Report No. B-184-1177, Munar, the NBI ballistics expert reported that the "comparative examinations made between evidence bullet, Caliber .22 marked "CN" and the test bullets fired from the submitted Tell Revolver, Caliber .22 with SN-66330, revealed that they possess similar class and individual characteristic markings; said evidence bullet was fired through the barrel of this particular firearm." (Original Record, p. 9).

Appellant's defense is alibi. In support thereof, he testified that his tour of duty was that of night poblacion patrol from 8:00 p.m., October 4, 1977, to 4:00 a.m. of the following morning, October 5, 1977. At the end of his duty, he slept at the police barracks located at the back of the Malasiqui Municipal Building together with his companion, Pat. Jaime Cerezo, and woke up at about 11:30 a.m. His testimony was corroborated by Pat. Cerezo.

After trial, the court rendered judgment finding accused/appellant appellant guilty of the crime charged.

Appellant assigns the following errors:

THAT THE COURT GRAVELY ERRED IN CONVICTING THE ACCUSED DESPITE THE FACT THAT HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT AS SHOWN BY THE FOLLOWING CIRCUMSTANCES:

1) THE ALLEGED EYEWITNESS TO THE INCIDENT NOT CREDIBLE

2) BALLISTIC EXAMINATION DOUBTFUL

3) ALIBI OF ACCUSED STRONG AND NO MOTIVE TO KILL

4) EQUIPOSE RULE IN FAVOR OF ACCUSED

5) PRESUMPTION OF INNOCENCE NOT REBUTTED (Appellant's Brief, p. 12; Rollo, p. 61).

The appeal is devoid of merit.

1. It has been repeatedly held by this Court that the appellate courts will not disturb the factual findings of the trial court especially as to credibility of witnesses because the trial court is in a better position to examine real evidence as well as to observe the demeanor of the witnesses while testifying in the case. The trial court's finding on the credibility of witness is accorded greatest respect (People v. Tangliben, 184 SCRA 220 [1990]; People v. Marcos, 185 SCRA 154 [1990]; People v. Nabor, 185 SCRA 615 [1990] and a long line of cases).

The main objection of the defense is that the lower court relied heavily on the testimony of Montemayor as eyewitness, when the latter is only a substitute, the real eyewitness being Virgilio Nonan, who was killed by an unknown assailant (Original Records, pp. 40, 41 and 93). Appellant further argues that Montemayor was not included in the original list of prosecution witnesses and she testified six (6) years, two (2) months and 28 days, after the incident.

The argument is untenable. It will be recalled that Montemayor testified at length why she did not report what she knew about the case to the Malasiqui Police. She stated that she was afraid of the accused who was a policeman stationed at Malasiqui, Pangasinan. She mentioned that there were some killing incidents attributed to the accused (TSN, January 3, 1984, pp. 10-11). At the hearing, she was able to testify because the accused was detained already at the Provincial Jail and she was under the protection of the court (TSN, January 3, 1984, pp. 17-18). Further, she did not report the killing to the barangay officials because the barangay captain, Dionisio Mandapat, is the father of the accused.

Thus, the fact that the witness was in a state of mortal fear for her life cannot be seriously doubted, more so if one considers that one of the eyewitnesses has already been silenced by an unknown assailant.

As a general rule, the failure of a witness to report at once to the police authorities the crime he had witnessed cannot be taken against him (People v. Demate, 113 SCRA 353 [1982]) for "it is not uncommon for a witness to a crime to show some reluctance about getting involved in a criminal case. The natural reticence of most people to get involved in a criminal case is of judicial notice" (People v. Pacabes, 137 SCRA 158 [1985]; People v. Coronado, 145 SCRA 250 [1986]) and the fear of eyewitnesses when townmates are involved in the commission of the crime is understandable for they may provoke reprisals from the accused (People v. Rosario, 134 SCRA 496 [1985]). The delay, when adequately explained, does not impair the credibility of the witness, as in the case at bar (People v. Cabanit, 139 SCRA 94 [1985]; People v. Millora, 119 SCRA 417 [1984]); neither will it render his testimony biased (People v. Itura, 129 SCRA 127 [1984]); nor will it destroy its probative value (People v. Millora, supra). Under the circumstances, We find the failure of the herein eyewitness Maria Razo-Montemayor to immediately present herself to the authorities and to relate the commission of the crime justifiable and consistent with normal behavior considering that the accused is a policeman.

Furthermore, Montemayor testified that she offered to testify during the investigation of the case but according to her, Fiscal Fernandez who was investigating the case was of the view at the time that the testimony of Virgilio Nonan, as an eyewitness, was sufficient (TSN, January 3, 1984, pp. 9-10). This accounts for her not being originally included as one of the prosecution witnesses.

At any rate, there is nothing that could prevent the prosecution from presenting witnesses in court not listed in the information, as it is well settled that the court has the undisputed right to call on a witness whose name does not appear in the list of the fiscal, unless the omission of said witness is intentional and tainted with bad faith (People v. Martinez, 127 SCRA 260 [1984]; People v. Valera, 15 SCRA 164 [1965]). The established rule is that the prosecution may call unlisted witnesses to testify (People v. Lacson, 1 SCRA 414 [1961]).

Moreover, the purpose of the listing of the names of the witnesses in the complaint or information is merely to avoid the presentation of surprise witness and to enable the defense to examine their record, morality and character, but once placed on the witness stand, it can no longer be disputed that the defense has already the opportunity to examine the character and credibility of the unlisted witness (People v. Morado, 4 SCRA 292 [1962]). Finally, it is beyond question, that it is the prosecution's privilege to present such number of witnesses it deems sufficient (People v. Quebral, 134 SCRA 425 [1985]).

2. Three (3) slugs were recovered from the body of the victim: one by Dr. Andaya, the Municipal Health Officer of Malasiqui, Pangasinan, and the other two (2) by Dr. Tomas Refe, Senior Medico-legal Officer of the NBI. All three (3) bullets, as evidence bullets, were sent first to the NBI and then to the PC-INP Crime Laboratory together with test bullets for ballistics examination to determine whether they were fired from Tell Revolver Caliber .22, with Serial No. 66330, which was the service gun of the accused at the time the crime as committed. As to the first bullet, marked "CN, the NBI concluded that said evidence bullet was fired through the barrel of the subject firearm (Ballistics Report No. B-184-1177, Original Records, p. 9) but the PC-INP Crime Laboratory, on the other hand, stated that no conclusion can be made whether or not the bullets in question marked "CN" and "CN-1" were fired from the same firearm.

Admittedly, there is a difference between the findings of the NBI and the PC-INP ballistics experts, but as correctly observed by the trial court, such fact does not militate against the case of the prosecution.

The accused was positively identified by the prosecution witnesses as the person who shot the deceased Crispula Nonan. The accused admitted that the Tell Revolver with Serial No. 66330 which was used in killing Nonan, was issued to him, and was taken from him only when he was being investigated by the PC in Bayambang (TSN, January 14, 1986, p. 34). Witness Rogelio Munar stated that the three (3) fired bullets are the same bullets that were fired from the same gun and which were also those taken by Dr. Tomas Refe from the three (3) gunshot wound of the victim during the exhumation (TSN, March 28, 1984, pp. 84-85).

Moreover, it will be noted that the second ballistic report of the PC-INP Crime Laboratory does not categorically deny that the evidence bullets extracted from the body of the deceased were fired from the .22 Caliber Tell Revolver, SN 66330. The two ballistic reports of the NBI which were concurred in by five (5) ballisticians who performed the required ballistics examinations individually and separately to serve as a check and to counter check their individual findings, are more accurate and credible than the individual and uncorroborated finding of Vicente R. de Vera, the ballistician of the PC-INP.

3. The accused interposed the defense of alibi. According to the accused, he was not at the scene of the crime when the same was committed because he was sleeping at the police headquarters at the back of the Municipal Hall from 5:00 a.m. to 10:30 a.m. with his companion Jaime Cerezo, after their tour of duty at 4:00 a.m.

Alibi as a defense is inherently weak. It can easily be contrived and may only be accepted with great caution and not with precipitate incredulity. In the case at bar, appellant's alibi, even if corroborated by Cerezo, does not inspire a scintilla of belief. Indeed, alibi may be fabricated even by those not related by blood (People v. Cabanit, supra, citing People v. Lumantas, 5 SCRA 157; People v. Pelagio, 20 SCRA 153; People v. Bulawin, 29 SCRA 710). In any event, it is axiomatic that the defense of alibi is unavailing where the accused is positively identified by one without motive to falsely charge the accused (People v. Marcos, supra; People v. Clores, 184 SCRA 638 [1990]; People v. Cabatlao, 108 SCRA 359 [1981]; People v. Demate, supra; People v. Plaza, 140 SCRA 277 [1985]; People v. Arbois, 138 SCRA 24 [1985]; People v. Casundo, 134 SCRA 197 [1985]).

To establish alibi, a defendant must not only show that he was present at some other place about the time of the commission of the alleged crime but that it was also physically impossible for him to have been at the place where the crime was committed either before, during or after the time he was at such other place (People v. Perante, Jr., 143 SCRA 56 [1986]; People v. Nabor, supra; People v. Munoz, 107 SCRA 313 [1981]; People v. Ganado, 116 SCRA 362 [1982]; People v. Gani, 139 SCRA 301 [1985]).

Appellant himself testified that the police barracks where he slept on October 5, 1977 was only three (3) kilometers away from the residence of the victim and that there was a road extending to about one (1) kilometer from the barracks which leads to the house of the deceased.

The defense has not shown that the distance of three (3) kilometers from the police barrack to the scene of the crime renders it impossible for the accused/appellant to be present there considering that there is a short cut to the place which is only one (1) kilometer and leads to the interior to reach the victim's house. A distance of one or two (2) kilometers from the scene of the crime does not exclude the possibility of the commission of the crime by the accused (People v. Araya, 105 SCRA 133 [1981]).

Undeniably, no motive for the killing of the victim has been shown by the prosecution, but motive is important only when the identity of the culprit is in doubt and not when he is positively identified by a credible witness (People v. Perante, Jr., supra). As the Court previously said, the absence of motive does not preclude the commission of the crime considering that nowadays, it is of judicial knowledge that others have been killed or assaulted for no reason at all (People v. Basadre, 128 SCRA 641 [1984]; citing People v. Reyno, 13 SCRA 647).

WHEREFORE, the decision under review is AFFIRMED with the modification that the penalty of death imposed by the trial court is reduced to life imprisonment (Sec. 19 [1], Art. III, Constitution) and the civil indemnity is increased from P30,000.00 to P 50,000.00. Costs against appellant.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano and Davide, Jr., JJ., concur.