Tenchavez vs. Escaño, G.R. No. L-19671,November 29, 1965

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-19671 November 29, 1965

PASTOR B. TENCHAVEZ, plaintiff-appellant,
vs.
VICENTA F. ESCAÑO, ET AL., defendants-appellees.

I. V. Binamira & F. B. Barria for plaintiff-appellant.
Jalandoni & Jarnir for defendants-appellees.

REYES, J.B.L., J.:

Direct appeal, on factual and legal questions, from the judgment of the Court of First Instance of Cebu, in its Civil Case No. R-4177, denying the claim of the plaintiff-appellant, Pastor B. Tenchavez, for legal separation and one million pesos in damages against his wife and parents-in-law, the defendants-appellees, Vicente, Mamerto and Mena,¹ all surnamed "Escaño," respectively.²

The facts, supported by the evidence of record, are the following:

Missing her late afternoon classes on 24 February 1948 in the University of San Carlos, Cebu City, where she was then enrolled as a second year student of commerce, Vicenta Escaño, 27 years of age (scion of a well-to-do and socially prominent Filipino family of Spanish ancestry and a "sheltered colegiala"), exchanged marriage vows with Pastor Tenchavez, 32 years of age, an engineer, ex-army officer and of undistinguished stock, without the knowledge of her parents, before a Catholic chaplain, Lt. Moises Lavares, in the house of one Juan Alburo in the said city. The marriage was the culmination of a previous love affair and was duly registered with the local civil register.

Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply in love. Together with a friend, Pacita Noel, their matchmaker and go-between, they had planned out their marital future whereby Pacita would be the governess of their first-born; they started saving money in a piggy bank. A few weeks before their secret marriage, their engagement was broken; Vicenta returned the engagement ring and accepted another suitor, Joseling Lao. Her love for Pastor beckoned; she pleaded for his return, and they reconciled. This time they planned to get married and then elope. To facilitate the elopement, Vicenta had brought some of her clothes to the room of Pacita Noel in St. Mary's Hall, which was their usual trysting place.

Although planned for the midnight following their marriage, the elopement did not, however, materialize because when Vicente went back to her classes after the marriage, her mother, who got wind of the intended nuptials, was already waiting for her at the college. Vicenta was taken home where she admitted that she had already married Pastor. Mamerto and Mena Escaño were surprised, because Pastor never asked for the hand of Vicente, and were disgusted because of the great scandal that the clandestine marriage would provoke (t.s.n., vol. III, pp. 1105-06). The following morning, the Escaño spouses sought priestly advice. Father Reynes suggested a recelebration to validate what he believed to be an invalid marriage, from the standpoint of the Church, due to the lack of authority from the Archbishop or the parish priest for the officiating chaplain to celebrate the marriage. The recelebration did not take place, because on 26 February 1948 Mamerto Escaño was handed by a maid, whose name he claims he does not remember, a letter purportedly coming from San Carlos college students and disclosing an amorous relationship between Pastor Tenchavez and Pacita Noel; Vicenta translated the letter to her father, and thereafter would not agree to a new marriage. Vicenta and Pastor met that day in the house of Mrs. Pilar Mendezona. Thereafter, Vicenta continued living with her parents while Pastor returned to his job in Manila. Her letter of 22 March 1948 (Exh. "M"), while still solicitous of her husband's welfare, was not as endearing as her previous letters when their love was aflame.

Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She fondly accepted her being called a "jellyfish." She was not prevented by her parents from communicating with Pastor (Exh. "1-Escaño"), but her letters became less frequent as the days passed. As of June, 1948 the newlyweds were already estranged (Exh. "2-Escaño"). Vicenta had gone to Jimenez, Misamis Occidental, to escape from the scandal that her marriage stirred in Cebu society. There, a lawyer filed for her a petition, drafted by then Senator Emmanuel Pelaez, to annul her marriage. She did not sign the petition (Exh. "B-5"). The case was dismissed without prejudice because of her non-appearance at the hearing (Exh. "B-4").

On 24 June 1950, without informing her husband, she applied for a passport, indicating in her application that she was single, that her purpose was to study, and she was domiciled in Cebu City, and that she intended to return after two years. The application was approved, and she left for the United States. On 22 August 1950, she filed a verified complaint for divorce against the herein plaintiff in the Second Judicial District Court of the State of Nevada in and for the County of Washoe, on the ground of "extreme cruelty, entirely mental in character." On 21 October 1950, a decree of divorce, "final and absolute", was issued in open court by the said tribunal.

In 1951 Mamerto and Mena Escaño filed a petition with the Archbishop of Cebu to annul their daughter's marriage to Pastor (Exh. "D"). On 10 September 1954, Vicenta sought papal dispensation of her marriage (Exh. "D"-2).

On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now lives with him in California, and, by him, has begotten children. She acquired American citizenship on 8 August 1958.

But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court of First Instance of Cebu, and amended on 31 May 1956, against Vicenta F. Escaño, her parents, Mamerto and Mena Escaño, whom he charged with having dissuaded and discouraged Vicenta from joining her husband, and alienating her affections, and against the Roman Catholic Church, for having, through its Diocesan Tribunal, decreed the annulment of the marriage, and asked for legal separation and one million pesos in damages. Vicenta claimed a valid divorce from plaintiff and an equally valid marriage to her present husband, Russell Leo Moran; while her parents denied that they had in any way influenced their daughter's acts, and counterclaimed for moral damages.

The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his wife and to acquire property to the exclusion of his wife. It allowed the counterclaim of Mamerto Escaño and Mena Escaño for moral and exemplary damages and attorney's fees against the plaintiff-appellant, to the extent of P45,000.00, and plaintiff resorted directly to this Court.

The appellant ascribes, as errors of the trial court, the following:

1. In not declaring legal separation; in not holding defendant Vicenta F. Escaño liable for damages and in dismissing the complaint;.

2. In not holding the defendant parents Mamerto Escano and the heirs of Doña Mena Escaño liable for damages;.

3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant parents on their counterclaims; and.

4. In dismissing the complaint and in denying the relief sought by the plaintiff.

That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee, Vicenta Escaño, were validly married to each other, from the standpoint of our civil law, is clearly established by the record before us. Both parties were then above the age of majority, and otherwise qualified; and both consented to the marriage, which was performed by a Catholic priest (army chaplain Lavares) in the presence of competent witnesses. It is nowhere shown that said priest was not duly authorized under civil law to solemnize marriages.

The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as required by Canon law, is irrelevant in our civil law, not only because of the separation of Church and State but also because Act 3613 of the Philippine Legislature (which was the marriage law in force at the time) expressly provided that —

SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of the contracting parties and consent. (Emphasis supplied)

The actual authority of the solemnizing officer was thus only a formal requirement, and, therefore, not essential to give the marriage civil effects,³ and this is emphasized by section 27 of said marriage act, which provided the following:

SEC. 27. Failure to comply with formal requirements. No marriage shall be declared invalid because of the absence of one or several of the formal requirements of this Act if, when it was performed, the spouses or one of them believed in good faith that the person who solemnized the marriage was actually empowered to do so, and that the marriage was perfectly legal.

The good faith of all the parties to the marriage (and hence the validity of their marriage) will be presumed until the contrary is positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs. Jason, 60 Phil. 442, 448). It is well to note here that in the case at bar, doubts as to the authority of the solemnizing priest arose only after the marriage, when Vicenta's parents consulted Father Reynes and the archbishop of Cebu. Moreover, the very act of Vicenta in abandoning her original action for annulment and subsequently suing for divorce implies an admission that her marriage to plaintiff was valid and binding.

Defendant Vicenta Escaño argues that when she contracted the marriage she was under the undue influence of Pacita Noel, whom she charges to have been in conspiracy with appellant Tenchavez. Even granting, for argument's sake, the truth of that contention, and assuming that Vicenta's consent was vitiated by fraud and undue influence, such vices did not render her marriage ab initio void, but merely voidable, and the marriage remained valid until annulled by a competent civil court. This was never done, and admittedly, Vicenta's suit for annulment in the Court of First Instance of Misamis was dismissed for non-prosecution.

It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta Escaño remained subsisting and undissolved under Philippine law, notwithstanding the decree of absolute divorce that the wife sought and obtained on 21 October 1950 from the Second Judicial District Court of Washoe County, State of Nevada, on grounds of "extreme cruelty, entirely mental in character." At the time the divorce decree was issued, Vicenta Escaño, like her husband, was still a Filipino citizen.⁴ She was then subject to Philippine law, and Article 15 of the Civil Code of the Philippines (Rep. Act No. 386), already in force at the time, expressly provided:

Laws relating to family rights and duties or to the status, condition and legal capacity of persons are binding upon the citizens of the Philippines, even though living abroad.

The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo matrimonii; and in fact does not even use that term, to further emphasize its restrictive policy on the matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of adultery of the wife or concubinage of the husband (Act 2710). Instead of divorce, the present Civil Code only provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that case, it expressly prescribes that "the marriage bonds shall not be severed" (Art. 106, subpar. 1).

For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute divorce betiveen Filipino citizens could be a patent violation of the declared public policy of the state, specially in view of the third paragraph of Article 17 of the Civil Code that prescribes the following:

Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, policy and good customs, shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.

Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect, give rise to an irritating and scandalous discrimination in favor of wealthy citizens, to the detriment of those members of our polity whose means do not permit them to sojourn abroad and obtain absolute divorces outside the Philippines.

From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in the Nevada divorce court. Primarily because the policy of our law cannot be nullified by acts of private parties (Civil Code,Art. 17, jam quot.); and additionally, because the mere appearance of a non-resident consort cannot confer jurisdiction where the court originally had none (Area vs. Javier, 95 Phil. 579).

From the preceding facts and considerations, there flows as a necessary consequence that in this jurisdiction Vicenta Escaño's divorce and second marriage are not entitled to recognition as valid; for her previous union to plaintiff Tenchavez must be declared to be existent and undissolved. It follows, likewise, that her refusal to perform her wifely duties, and her denial of consortium and her desertion of her husband constitute in law a wrong caused through her fault, for which the husband is entitled to the corresponding indemnity (Civil Code, Art. 2176). Neither an unsubstantiated charge of deceit nor an anonymous letter charging immorality against the husband constitute, contrary to her claim, adequate excuse. Wherefore, her marriage and cohabitation with Russell Leo Moran is technically "intercourse with a person not her husband" from the standpoint of Philippine Law, and entitles plaintiff-appellant Tenchavez to a decree of "legal separation under our law, on the basis of adultery" (Revised Penal Code, Art. 333).

The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in accord with the previous doctrines and rulings of this court on the subject, particularly those that were rendered under our laws prior to the approval of the absolute divorce act (Act 2710 of the Philippine Legislature). As a matter of legal history, our statutes did not recognize divorces a vinculo before 1917, when Act 2710 became effective; and the present Civil Code of the Philippines, in disregarding absolute divorces, in effect merely reverted to the policies on the subject prevailing before Act 2710. The rulings, therefore, under the Civil Code of 1889, prior to the Act above-mentioned, are now, fully applicable. Of these, the decision in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. Said this Court in that case:

As the divorce granted by the French Court must be ignored, it results that the marriage of Dr. Mory and Leona Castro, celebrated in London in 1905, could not legalize their relations; and the circumstance that they afterwards passed for husband and wife in Switzerland until her death is wholly without legal significance. The claims of the very children to participate in the estate of Samuel Bishop must therefore be rejected. The right to inherit is limited to legitimate, legitimated and acknowledged natural children. The children of adulterous relations are wholly excluded. The word "descendants" as used in Article 941 of the Civil Code cannot be interpreted to include illegitimates born of adulterous relations. (Emphasis supplied)

Except for the fact that the successional rights of the children, begotten from Vicenta's marriage to Leo Moran after the invalid divorce, are not involved in the case at bar, the Gmur case is authority for the proposition that such union is adulterous in this jurisdiction, and, therefore, justifies an action for legal separation on the part of the innocent consort of the first marriage, that stands undissolved in Philippine law. In not so declaring, the trial court committed error.

True it is that our ruling gives rise to anomalous situations where the status of a person (whether divorced or not) would depend on the territory where the question arises. Anomalies of this kind are not new in the Philippines, and the answer to them was given in Barretto vs. Gonzales, 58 Phil. 667:

The hardship of the existing divorce laws in the Philippine Islands are well known to the members of the Legislature. It is the duty of the Courts to enforce the laws of divorce as written by Legislature if they are constitutional. Courts have no right to say that such laws are too strict or too liberal. (p. 72)

The appellant's first assignment of error is, therefore, sustained.

However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escaño and his wife, the late Doña Mena Escaño, alienated the affections of their daughter and influenced her conduct toward her husband are not supported by credible evidence. The testimony of Pastor Tenchavez about the Escaño's animosity toward him strikes us to be merely conjecture and exaggeration, and are belied by Pastor's own letters written before this suit was begun (Exh. "2-Escaño" and "Vicenta," Rec. on App., pp. 270-274). In these letters he expressly apologized to the defendants for "misjudging them" and for the "great unhappiness" caused by his "impulsive blunders" and "sinful pride," "effrontery and audacity" [sic]. Plaintiff was admitted to the Escaño house to visit and court Vicenta, and the record shows nothing to prove that he would not have been accepted to marry Vicente had he openly asked for her hand, as good manners and breeding demanded. Even after learning of the clandestine marriage, and despite their shock at such unexpected event, the parents of Vicenta proposed and arranged that the marriage be recelebrated in strict conformity with the canons of their religion upon advice that the previous one was canonically defective. If no recelebration of the marriage ceremony was had it was not due to defendants Mamerto Escaño and his wife, but to the refusal of Vicenta to proceed with it. That the spouses Escaño did not seek to compel or induce their daughter to assent to the recelebration but respected her decision, or that they abided by her resolve, does not constitute in law an alienation of affections. Neither does the fact that Vicenta's parents sent her money while she was in the United States; for it was natural that they should not wish their daughter to live in penury even if they did not concur in her decision to divorce Tenchavez (27 Am. Jur. 130-132).

There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her original suit for annulment, or her subsequent divorce; she appears to have acted independently, and being of age, she was entitled to judge what was best for her and ask that her decisions be respected. Her parents, in so doing, certainly cannot be charged with alienation of affections in the absence of malice or unworthy motives, which have not been shown, good faith being always presumed until the contrary is proved.

SEC. 529. Liability of Parents, Guardians or Kin. — The law distinguishes between the right of a parent to interest himself in the marital affairs of his child and the absence of rights in a stranger to intermeddle in such affairs. However, such distinction between the liability of parents and that of strangers is only in regard to what will justify interference. A parent isliable for alienation of affections resulting from his own malicious conduct, as where he wrongfully entices his son or daughter to leave his or her spouse, but he is not liable unless he acts maliciously, without justification and from unworthy motives. He is not liable where he acts and advises his child in good faith with respect to his child's marital relations in the interest of his child as he sees it, the marriage of his child not terminating his right and liberty to interest himself in, and be extremely solicitous for, his child's welfare and happiness, even where his conduct and advice suggest or result in the separation of the spouses or the obtaining of a divorce or annulment, or where he acts under mistake or misinformation, or where his advice or interference are indiscreet or unfortunate, although it has been held that the parent is liable for consequences resulting from recklessness. He may in good faith take his child into his home and afford him or her protection and support, so long as he has not maliciously enticed his child away, or does not maliciously entice or cause him or her to stay away, from his or her spouse. This rule has more frequently been applied in the case of advice given to a married daughter, but it is equally applicable in the case of advice given to a son.

Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination and with having exerted efforts and pressured her to seek annulment and divorce, unquestionably caused them unrest and anxiety, entitling them to recover damages. While this suit may not have been impelled by actual malice, the charges were certainly reckless in the face of the proven facts and circumstances. Court actions are not established for parties to give vent to their prejudices or spleen.

In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from defendant Vicente Escaño, it is proper to take into account, against his patently unreasonable claim for a million pesos in damages, that (a) the marriage was celebrated in secret, and its failure was not characterized by publicity or undue humiliation on appellant's part; (b) that the parties never lived together; and (c) that there is evidence that appellant had originally agreed to the annulment of the marriage, although such a promise was legally invalid, being against public policy (cf. Art. 88, Civ. Code). While appellant is unable to remarry under our law, this fact is a consequence of the indissoluble character of the union that appellant entered into voluntarily and with open eyes rather than of her divorce and her second marriage. All told, we are of the opinion that appellant should recover P25,000 only by way of moral damages and attorney's fees.

With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escaño and Mena Escaño, by the court below, we opine that the same are excessive. While the filing of this unfounded suit must have wounded said defendants' feelings and caused them anxiety, the same could in no way have seriously injured their reputation, or otherwise prejudiced them, lawsuits having become a common occurrence in present society. What is important, and has been correctly established in the decision of the court below, is that said defendants were not guilty of any improper conduct in the whole deplorable affair. This Court, therefore, reduces the damages awarded to P5,000 only.

Summing up, the Court rules:

(1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the present Civil Code (Rep. Act 386), is not entitled to recognition as valid in this jurisdiction; and neither is the marriage contracted with another party by the divorced consort, subsequently to the foreign decree of divorce, entitled to validity in the country;

(2) That the remarriage of divorced wife and her co-habitation with a person other than the lawful husband entitle the latter to a decree of legal separation conformably to Philippine law;

(3) That the desertion and securing of an invalid divorce decree by one consort entitles the other to recover damages;

(4) That an action for alienation of affections against the parents of one consort does not lie in the absence of proof of malice or unworthy motives on their part.

WHEREFORE, the decision under appeal is hereby modified as follows;

(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal separation from defendant Vicenta F. Escaño;

(2) Sentencing defendant-appellee Vicenta Escaño to pay plaintiff-appellant Tenchavez the amount of P25,000 for damages and attorneys' fees;

(3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escaño and the estate of his wife, the deceased Mena Escaño, P5,000 by way of damages and attorneys' fees.

Neither party to recover costs.

Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.

Footnotes

¹ The latter was substituted by her heirs when she died during the pendency of the case in the trial court.

² The original complaint included the Roman Catholic Church as a defendant, sought to be enjoined from acting on a petition for the ecclesiastical annulment of the marriage between Pastor Tenchavez and Vicenta Escaño; the case against the defendant Church was dismissed on a joint motion.

³ In the present Civil Code the contrary rule obtains (Art. 53).

⁴ She was naturalized as an American citizen only on 8 August 1958.

People vs. Dorico, G.R. No. L-31568, November 29, 1973

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-31568 November 29, 1973

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROMUALDO DORICO, FERNANDO DORICO, and DIONISIO BALLONICO, defendants-appellants.

Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Hector C. Fule and Solicitor Vicente A. Torres for plaintiff-appellee.

Leonardo Galing for defendants-appellants.

ESGUERRA, J.:

Appeal from the decision of the Court of First Instance of Samar, Branch IV, convicting accused Romualdo Dorico, Dionisio Ballonico and Fernando Dorico of the crime of murder and sentencing them as follows:

WHEREFORE, The Court finds the accused, Romualdo Dorico, Dionisio Ballonico and Fernando Dorico, guilty beyond reasonable doubt of the crime of Murder qualified with treachery and with the presence of the aggravating circumstance of superior strength which is not offset by any mitigating circumstance, and hereby sentences each and every accused, Romualdo Dorico, Dionisio Ballonico and Fernando Dorico, to the supreme penalty of DEATH; to indemnify the heirs of the deceased in the amount of P12,000.00; to pay moral damages in the amount of P6,000.00; and to pay the costs of the proceedings. ¹

Accused Romualdo Dorico and Fernando Dorico are brothers, while accused Dionisio Ballonico is their first cousin. All the accused and the deceased, Gervacio Dapulag, were residents of barrio Makiwalo Mondragon, Northern Samar. There are two connecting versions of what happened on the fatal day October 12,1964, when Gervacio Dapulag was stabbed to death.

According to the prosecution, thru the testimony of Rosa Dapulag, an eyewitness and daughter of Gervacio Dapulag, on October 12, 1964 at about 5 o'clock in the afternoon, while her father was walking towards the store of Estropio Dorico on his way to the farm, she saw accused Romualdo Dorico and Dionisio Ballonico come out of said store and accosted her father; that without much ado, Romualdo immediately stabbed her father, hitting him at the upper left arm, with the wound exiting at the inner part thereof and penetrating the left armpit; that when her father turned his back to find out who stabbed him, he was again stabbed this time by Dionisio Ballonico, hitting him on the left side of his back with the wound exiting on the abdomen; that when her father tried to run away from the two assailants, he was met by accused Fernando Dorico coming from the nearby store of Castro Dorico, another brother of the accused, and who hit him with his fist which made her father drop to the ground; that Romualdo again approached her father and hacked him on the knee; that with her father lying helpless on the ground, the three accused started challenging everybody; that she saw all that happened because she was only about 30 meters behind her father on her way also to the farm to help him graze their carabaos; that she immediately hired a jeep to take her father to the hospital but it was too late and, instead, brought his remains back home; that the reasons why the Doricos and Dionisio Ballonico wanted to kill her father was because he insisted on the filing of a criminal complaint against Romualdo Dorico for the killing of one Patrocinio Megenio, a nephew of her mother and who grew up with them in their home; and that because of the death of said Patrocinio Megenio on August 15, 1964, criminal Case No. C-1511 was filed against Romualdo Dorico with the Court of First Instance of Samar.

It was not only Rosa Dapulag who actually saw what happened on October 12, 1964, but also Alberto Uy another eyewitness who testified as follows: that on the date and at the time of the incident he was inside the store of Estropio Dorico trying to buy some cigarettes; that inside said store were Honorio Dorico (father of Romualdo and Fernando and uncle of Dionisio Ballonico), Romualdo Dorico, Dionisio Ballonico and Julio Cerenado, drinking liquor called "Mallorca"; that he heard Honorio tell the group that it was Gervacio Dapulag who instigated the filing of the criminal charge against Romualdo for the killing of Patrocinio Megenio, at the same time pointing for the killing of Patrocinio Megenio, at the same time pointing to Gervacio who was then approaching the store of Estropio; that Romualdo and Dionisio went out of the store and accosted Gervacio; that at this point up to the point where Fernando Dorico boxed Gervacio, Alberto Uy corroborated the testimony of Rosa Dapulag with the only difference that it was Dionisio who first stabbed Gervacio then followed by Romualdo; that the weapons used by both assailant were bolos called "Depang"; that at the time of the incident he saw Rosa Dapulag; and that after witnessing what happened he became scared and ran to the house of his uncle, Ceferino Vicario.

The autopsy report ² indicating the number of wounds received by the deceased was also presented and reads as follows:

1. One clean cut incised stab wound on the left mid-lateral arm 4 3/4 cms. (2 inches) long, penetrating and to exit at the inner left arm 1-1/4 inches long and to hit again the upper lateral thorax below the left armpit. Stab wound measures one inch 3-1/2 inches deep.

2. Presence of one clean cut incised stab wound on the right dorso-lateral upper aspect of the thorax, measures 1-1/2 inches long by 1-1/4 inches deep.

3. Presence of a clean cut incised stab wound on the left dorso-lateral aspect of the abdomen 2 inches long, penetrating to hit the left ventral aspect of the abdomen two inches above the umbilicus, measures 1-1/4 inches long.

4. Presence of a clean cut incised stab wound on the left knee measures 1-1/2 cms. long by 1 cm. deep.

5. Presence of one contusion on the right pinna (ear).

Conclusion

Nature of Injuries: That there are two kinds of wounds namely, open and closed wounds. That there are four stab wounds two of which are penetrating (Thru and thru) and fatal in nature as they hit important organs (aortic arch and small intestines). That the wounds were caused by sharp edged pointed and bladed instrument. Other wounds contributed as bleeders.

Cause of Death: Shock from severe hemorrhage due to multiple stab wounds.

There were two more eyewitnesses, namely, Fernando Dones and Purita Becario. They were supposed to testify also but for unknown reason said witnesses left for Manila before trial without giving any forwarding addresses.

Upon the other hand, accused Fernando Dorico put up the defense alibi, while the other brother, Romualdo Dorico, advanced the theory of self-defense. Their cousin, Dionisio Ballonico, put up the defense of non-participation in the commission of the crime. Their versions are as follows:

Romualdo Dorico: That on October 12, 1964, he was in the store of his brother Estropio; that in said store were his cousin, Dionisio Ballonico, the latter's wife, Elisa, with a son, Estropio and the latter's wife, Flor de Guia; that while their group were talking, Gervacio Dapulag arrived and called him; that when he went out of the store, Gervacio asked him why he slashed his carabaos and he answered that why should he (Romualdo) slash his (Gervacio's) as he has carabaos of his own; that with his answer, Gervacio flared up and immediately unsheathed his bolo and slashed him, but he was able to parry the blow that Gervacio again delivered the second blow but he was able to dock; that after this they grappled with each other for the possession of the bolo of Gervacio; that he succeeded in wresting possession of the bolo; that Gervacio attempted to wrest back the bolo and this time he stabbed him on the left side of the body; that he again stabbed Gervacio for the second time on the body; that his third stabbing blow hit Gervacio on the knee; that Gervacio staggered and fell to the ground; that after the incident he went to Mayor Olimpio de Guia and informed him of what had happened and at the same time surrendered; that Alberto Uy and Rosa Dapulag were not present during the stabbing incident; that his brother Fernando Dorico was not either present; that the reason why Alberto Uy testified against all the accused was in consideration of the dropping of the arson case filed by Rosa Dapulag against Alberto.

Mayor Olimpio de Guia: That on October 12, 1964, at about 5:00 p.m., Romualdo Dorico surrendered to him for stabbing Gervacio Dapulag.

Fernando Dorico: That in the morning of October 12, 1964, he was in his farm and returned to his house at about 3:00 in the afternoon; that after resting for a while he went to the beach to buy some fish; that at the beach he met Agripino Calupo who was also looking for some fish to buy; that he and Agripino, having failed to buy some fish returned together to the poblacion of the barrio; that on their way home they met some people talking about the killing of Gervacio Dapulag by Romualdo Dorico; that he went home right away after hearing the news for fear that the relatives of Gervacio might retaliate as he is the brother of Romualdo, and that his inclusion in the complaint was due to his being a brother of Romualdo.

Agripino Calupo: That it is true he met Fernando Dorico at the beach on the date and at the time of the incident and, therefore, Fernando could not have been present at the scene of the crime.

Juan Cabalitan and Estropio Dorico: They more or less corroborated the testimony of Romualdo. Estropio also added that he did not see Alberto Uy in his store buying some cigarettes at the time of the incident.

Dionisio Ballonico: That his wife, his son and himself were in the store of Estropio Dorico in the afternoon of October 12, 1964; that he saw Gervacio Dapulag walking towards the store of Estropio and upon nearing said store, Gervacio called for Romualdo; that at this point up to the point wherein Romualdo hacked Gervacio on the knee, he corroborated the testimony of Romualdo Dorico; that he did not participate in the killing of Gervacio Dapulag; that Rosa Dapulag was not present when the incident happened; that he was implicated in this case only because he is a first degree cousin of the Doricos.

On October 13, 1964, accused Romualdo Dorico, Fernando Dorico and Dionisio Ballonico were charged with the crime of murder in a criminal complaint which reads as follows:

That on or about 5:30 in the afternoon of October 12, 1964 in the barrio of Makiwalo Mondragon, Province of Samar, Philippines and within the (preliminary) jurisdiction of this Honorable Court, the above-named accused conspiring and confederating together and mutually helping one another with deliberate intent and with intent to kill, with evident premeditation, conspiracy, treachery, did then and there, willfully, unlawfully and criminally assault and attacked and stabbed to death one GERVACIO DAPULAG as a result of which the latter received mortal wounds in his different parts of his body resulted in his death. (page 1, Vol. I, folder of exhibits)

After due hearing of the case, the trial court found all the accused, Romualdo Dorico, Fernando Dorico and Dionisio Ballonico, guilty beyond reasonable doubt of the crime of murder as charged and sentenced as previously indicated. Hence this automatic review of the death penalty. .

Five (5) errors of the trial court are assigned by the appellants, to wit:

1. The lower court gravely erred in not giving credence and evidentiary weight to accused-appellant Fernando Dorico's defense of alibi and it erred in not holding that the prosecution witnesses' testimonies are unreliable and unworthy of belief;

2. The lower court seriously erred in not giving weight to the strong and convincing evidence on record showing that Romualdo Dorico acted in self-defense;

3. The lower court erred in not holding that accused-appellant Dionisio Ballonico has not participated in any manner in killing the victim, Gervacio Dapulag;

4. The lower court erred in finding that conspiracy existed among the three accused-appellants in the commission of the crime charged in this case; and

5. The lower court erred in convicting the accused-appellants herein of the crime charged.

The first assigned error deals with the credibility of accused Fernando Dorico whose defense of alibi was not given credence by the trial court, which is also claimed to have erred in not holding that the prosecution witnesses' testimonies are all unreliable and unworthy of belief. Fernando Dorico argues that during the trial he clearly established his whereabouts at the time and date of the incident by the testimony of Agripino Calupo whom he met at the beach and with whom he returned to the barrio; that on their way home they saw a group of people talking about the quarrel between Gervacio Dapulag and Romualdo Dorico and they heard that the former was killed by the latter; that all these were corroborated by Agripino, showing that the (Fernando) was not at the scene of the crime when the incident happened.

Fernando further argues that the only ground on which the trial court found him guilty is his alleged positive identification by Alberto Uy and Rosa Dapulag. But he claimed that their testimonies are unworthy of belief. For if Uy was actually present when the incident happened and saw everything that transpired, there is no reason why he did not report it to the authorities. His name does not even appear in the information as one of the witnesses and this is indicative of his absence from the scene of the crime.

As regards Rosa Dapulag, Fernando further argues that if, as she claims, she informed the authorities about the death of her father the following morning and that she witnessed the commission of the crime, yet it is strange why no statement was taken from her by the police authorities about the incident; and that Rosa Dapulag, an alleged eyewitness like Alberto Uy, did not figure in the list of witnesses in the criminal complaint filed on October 13, 1964. Fernando concludes that the evidence for the prosecution leaves much to be desired and it exhibits a gap between doubtful evidence and proof beyond reasonable doubt.

The prosecution, on the other hand, reiterates the findings of the court a quo when it disposed of Fernando's alibi by relying on a long line of decisions of this Court holding that the defense of alibi is the weakest that can be conveniently put up by the accused because of the ease and facility with which it can be concocted and, to be believed, it must be supported by strong and convincing evidence, otherwise the same shall be discredited if there is direct and positive evidence establishing the identity of the accused. In the case at bar, the prosecution continues, accused Fernando Dorico was positively identified by Alberto Uy and Rosa Dapulag.

As to the credibility of Alberto Uy and Rosa Dapulag, the prosecution justifies their not having given any sworn statement to the investigating officer because there were enough witnesses to testify for the People at the preliminary investigation namely, Francisco Dones and Purita Vicario, who executed affidavits (Exh. "F" and "G", respectively). But for one reason or another, neither Francisco Dones nor Purita Vicario could be presented by the prosecution at the trial. Whether they were bought off or frightened away is not clear in the record. Had the prosecution foreseen this eventuality, it could have taken steps to take down the sworn statements of Alberto Uy and Rosa Dapulag and included them in the list of witnesses in the information. At any rate, there is no law, rule or decision requiring that only persons who have previously given sworn statements and have been listed down as witnesses may be allowed to testify in the trial of a criminal case.

The arguments of accused-appellant Fernando Dorico do not deserve serious consideration. The rule is well settled, to the point of being trite that the defense of alibi must be received with utmost caution ³ for it is one of the weakest defenses that can be resorted to by an accused, especially if there is direct testimony of an eyewitness duly corroborated by that of another. ⁴ It is worthless in the face of positive identification by the prosecution witnesses pointing to the accused as participants in the crime. ⁵ Besides, Agripino Megenio, a witness for accused Fernando Dorico, testified to wit:

Q. You said you saw the dead body of Gervacio Dapulag on the street how far is that place where you saw that dead body to the seashore where you and Fernando Dorico were looking for fish?

A. Abort 300 meters away.

Q. So that if your run from the seashore to the place where Gerracio Dapulag fell, it could take you only less than 3 minutes?

A. If one is a fast runner.

Q. And we are very certain that you saw Fernando Dorico at 4:30 in the afternoon when you were dismissed from work?

A. I am sure because we met.

Q. You cannot be mistaken of the time of 4:30 in the afternoon?

A. Why should I be mistaken when I could approximate the position of the sun when it was already down.

Q. You cannot be mistaken of 5:30 in the afternoon?

A. When I said 5:30 in the afternoon it was only my approximation. I do not actually have a timepiece. (t.s.n., pages 48-49, Vol. 3. emphasis supplied)

His testimony proves that the 300 meters distance between the place where the accused Fernando Dorico claimed to be and where the crime was committed is such that it does not rule out the possibility of this accused being at the place of the crime when the killing took place. It is not enough to prove that defendant was somewhere else when the crime was committed, but must likewise demonstrate that it was physically impossible for him to have been at the scene of the crime at the time it was committed. ⁶

With regards to the issue that the names of Alberto Uy and Rosa Dapulag do not appear on the criminal complaint or information as witnesses for the prosecution, the last paragraph of Section 1, Rule 116 of the Rules of Court, specifically provides that the prosecution may call at the trial witnesses other than those named in the complaint or information. ⁷

II

The second assigned error to be resolved is whether or not the lower court erred in not giving weight to the alleged strong and convincing evidence on record showing that Romualdo Dorico acted in self defense. The elements of self defense are: 1) unlawful aggression, 2) reasonable necessity of the means employed to prevent or repel, and 3) lack of sufficient provocation on the part of the person defending himself. In order that the plea of self defense can prosper, the above mentioned elements must be satisfactorily established. In the instant case, Romualdo Dorico claims that it has been clearly established that during the incident Gervacio Dapulag, the victim, first unsheathed his bolo and slashed him, and that he was able to move backward and on the second blow he ducked and parried Gervacio's hand. Under the circumstances he claims that there was unlawful aggression on the part of Gervacio which endangered his life. After he had parried the second blow, he maintains that they grappled for the possession of the bolo and he succeeded in wresting it from Gervacio, and when the latter attempted to wrest back the weapon he then stabbed the deceased. He concludes that the means employed were reasonable to prevent or repel the aggression; that he was justified in striking the deceased in view of the imminent danger or peril to his life, and that to stab Gervacio was the only reasonable means to repel his unlawful attack. As to lack of sufficient provocation, he asserts that the deceased had given cause for the aggression because of his unjust attack. As it was not he who incited the fight, Romualdo maintains that all the elements of self defense were duly satisfied.

Romualdo claims that the trial court, in rejecting the theory of self defense, based its finding on the following grounds: 1) that Romualdo threw the bolo after stabbing to death the victim, and 2) that he did not sustain even a small scratch in the course of their struggle. He argues that the fact that he threw the bolo and did not surrender the same does not necessarily make his claim of self defense untenable. He points out that immediately after the incident, he was under stress without knowing what is best to do under the circumstances; that he could not have acted with all the coolness of a person under normal condition, and that being a layman, he is unaware of the probative value in evidence of surrendering the weapon used in the assault.

And lastly, Romualdo contends that the second ground why the trial court did not give weight to his claim of self defense is because he did not even sustain a scratch in the course of the struggle with the deceased. However, he claims it is no necessary that the person defending himself must sustain an injury in order to act in self defense, and that the trial court demanded too much from accused-appellant which would entirely away from him his right to self-defense.

If Romualdo Dorico really stabbed the victim twice in the body when the victim is claimed to have lunged at him to grab the bolo, the latter would have been hit in front. But the stab wound that went through the left arm and hit the chest below the left armpit (No. 1 in Exh. "B") and the wound that went through the back to the front of the body (No. 3 in Exh. "B") were both inflicted from behind. It is noteworthy that these wounds are not slashing or hacking wounds caused by the cutting edge of a bladed weapon but deep stab wounds which are caused by a straight forward thrust with the point of a sharp-bladed weapon to produce a penetrating wound. The nature and location of the wounds just described show them to have been inflicted from the back or from the side of the victim, for the forward thrust must have been made when the back or side of the victim was directly in front of the knife-wielder.

Another circumstance that casts doubt on the allegation of self defense is the act of accused Romualdo after stabbing the victim of throwing away the weapon used in the commission of the crime. This is not the behavior of one who killed another in self
defense. 8 An accused invoking self defense, or for that matter defense of a relative, must prove his case clearly and convincingly, otherwise conviction would follow from his admission that he killed the victim. ⁹ For courts of justice have adhered to the rule that for the plea of self defense to prosper, a defendant must rely on the strength of his own evidence, not on the weakness of that for the prosecution. ¹⁰

III

The third assigned error to be resolved is whether or not accused-appellant Dionisio Ballonico participated in any manner in the killing of the victim, Gervacio Dapulag. Accused appellant Dionisio Ballonico maintains that his presence at the scene of the crime was purely incidental — being there only as a bystander. While he admits that he had seen the quarrel between Romualdo Dorico and Gervacio Dapulag there is no convincing evidence that he participated in the fight between the two, and that there is no compelling reason or strong motive for him to join the fight. He claims that he was only implicated in this case because of his being a first cousin of the Doricos. And having nothing to do with the case, his inclusion as a party defendant came as a great surprise and he immediately complained or protested to the Mayor Judge and Chief of Police. He resisted his unfounded inclusion by taking positive steps and he argues that his conduct indicates his innocence.

Appellant Dionisio Ballonico's defense is plain denial. Not that he denies having been present at the scene of the crime, but what he denies is his having had any participation in the quarrel between Romualdo Dorico and Gervacio Dapulag as testified to by the two eyewitnesses, Alberto Uy and Rosa Dapulag, that he (Dionisio) was one of those who stabbed the deceased. This is a simple case of credibility of witnesses and the lower court chose to give credence to the testimonies of Alberto Uy and Rosa Dapulag and not to Ballonico's denial. That the lower court had better opportunity to assay the credibility of witnesses than the appellate court is a principle so well-known that it hardly requires citation of authorities.

As to Dionisio's claim that he was included as party defendant because of his being a first cousin to the Doricos, it should be noted that Estropio Dorico, a brother of accused Romualdo and Fernando, who was also at the scene of the crime, was not implicated and charged in this case. Nor was Castor Dorico, from whose house accused Fernando Dorico emerged in order to block the way of the victim, charged in this case. If out of the many first cousins the Doricos had in barrio Makiwalo only Dionisio Ballonico was charged, it was because he actually participated in the commission of the crime.

Dionisio Ballonico contends that as it was not established that he had a motive in committing the offense imputed to him, his liability has not been established. This contention is without merit. It is true that no motive has been shown why he would kill Gervacio Dapulag, but this Court has repeatedly held that motive is pertinent only when there is doubt as to the identity of the culprit. Since Dionisio Ballonico was positively identified by credible witnesses as one of the assailants of the victim, proof of motive is not essential for conviction. ¹¹ There was no reason shown why the witnesses for the prosecution would foist a crime on Dionisio Ballonico if he did not really commit it. Neither does the record indicate any justification for rejecting the finding of the lower court that the testimonies of Alberto Ut and Rosa Dapulag are incredible. Upon the evidence, accused Ballonico's bare denial of participation is not enough to overcome the positive evidence showing beyond reasonable doubt his participation in the commission of the crime.

IV

The fourth assigned error is whether or not the lower court erred in finding that conspiracy existed among the three accused-appellants. Conspiracy, according to the defense, was found by the trial court to exist on the ground that accused Romualdo and Fernando Dorico are brothers and Dionisio Ballonico is their first cousin. Hence the have a similar or identical grudge and entertained like feelings of resentment against the victim. It is not correct to assume that the three accused-appellants have similar a complaint against the deceased based on his filing of the complaint for the killing of one Patrocinio Megenio, the only logical person would be Romualdo Dorico who is the lone accused in that case.

It is fundamental that in order for conspiracy to exist there must be unity of purpose and unity in the execution of the unlawful objective. Here, appellants did not act with a unity in of purpose. This is shown by the evidence for the Prosecution When Alberto Uy testified that moments before the killing, he heard Honorio Dorico, father of Romualdo and Fernando Dorico and uncle of Dionisio Ballonico, say: "children, you kill that demon Gervacio Dapulag because he is the one putting you down in the case wherein Patrocinio Megenio was killed", after which appellants allegedly assaulted the deceased. If this is true the words given by Honorio Dorico to his children were meant as a command, thus indicating that there was no previous concert of criminal design among the perpetrators. So that even assuming that appellants have joined together in the killing, such circumstance alone does not satisfy the requirement of a conspiracy because the rule is that neither joint nor simultaneous action is per se sufficient proof of conspiracy It must be shown to exist as clearly and convincingly as the commission of the offense itself. (People v. Geronimo, G.R. No. L-35700, October 15, 1973). Obedience to a command does not necessarily show concert of design, for at any rate it is the acts of the conspirators that show their common design. In this case, the facts adduced show that the appellants intended by their separate acts to bring about the death of the victim.

The contention of the appellants that there was no conspiracy deserves serious consideration. The record is clear that before the stabbing incident took place accused Romualdo Dorico and Dionisio Ballonico, together with the former's father Honorio Dorico, were inside the store of Estropio Dorico, another son of Honorio, drinking liquor. It was Honorio Dorico who first saw the victim Gervacio Dapulag pass by the said store on his way to the farm. The finding of the lower court as to how the aggression was committed is as follows: that Alberto Uy and Rosa Dapulag saw accused Romualdo Dorico and Dionisio Ballonico stab the victim Gervacio Dapulag and when the latter ran to escape he was met by appellant Fernando Dorico who boxed him on the ear. This does not show conspiracy. The meeting of the victim by the accused was purely casual. No other evidence was presented by the prosecution to show conspiracy, which, according to the settled rule, must be proved as clearly and as convincingly as the commission of the crime itself.

In People v. Portugueza, ¹² this Court ruled that:

Although the defendants are relatives and had acted with some degree of simultaneity in attacking their victim, nevertheless, this fact alone does not prove conspiracy.

Apparently, the murderous assaults were made by appellants Romualdo Dorico and Dionisio Ballonico who inflicted the wounds which killed the victim. They should be guilty of murder characterized by alevosia, while appellant Fernando Dorico who merely boxed the victim on the ear should be held guilty only of lesiones leves or slight physical injuries. Although accused Romualdo Dorico contends that he surrendered immediately to the authorities after the incident the trial court observed that the police blotter, Exhibits "X" and "X-1", shows that he was arrested and that he did no surrender. In the absence of aggravating or mitigating circumstances, the penalty of reclusion perpetua should be imposed on appellants Romualdo Dorico and Dionisio Ballonico.

V

Discussion of the fifth and last assigned error becomes unnecessary in view of the conclusion We have reached.

WHEREFORE, the decision appealed from should be modified and another one entered holding accused Romualdo Dorico and Dionisio Ballonico guilty beyond reasonable doubt of the crime of murder. Accordingly, they are sentenced to suffer the penalties of reclusion perpetua and to indemnify jointly and severally the heirs of the victim, Gervacio Dapulag, in the sum of P12,000.00.

Accused Fernando Dorico is sentenced to suffer fifteen (15) days of arresto
menor. ¹³ Considering the period of preventive imprisonment he has undergone, ¹⁴ Fernando Dorico is hereby ordered released immediately from custody.

Costs against appellants.

Makalintal, C.J., Zaldivar, Castro, Fernando, Teehankee, Makasiar, Fernandez, Muñoz Palma and Aquino, JJ., concur.

Barredo, J., concurs in the result.

Antonio, J., took no part.

Footnotes

1 Page 45, rollo.

2 Exhibit "B", Vol. I, folder of exhibits, pages 49-50.

3 People vs. Supat, L-24466, March 19, 1968.

4 People vs. Bagasala, L-26182, May 31, 1971.

5 People vs. Berdida y Inguito, L-20183, June 30, 1966.

6 See People vs. Herila, L-32785, May 21, 1979.

7 People vs. Palacio, L-13933, May 25, 1960.

8 People vs. Pelago, L-24884, August 31, 1968.

9 People vs. Wong, et al., L-22130-32, April 25, 1968.

10 People vs. Navarro, et al., L-25607, October 14, 1968.

11 People vs. Herila, L-32785, May 2l, 1973.

12 L-22604, July 31, 1967.

13 People vs. Bautista, L-27638, Nov. 28, 1969.

14 Page 48, Rollo.

People vs. Beltran, G.R. No. L-31860, November 29, 1974

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-31860 November 29, 1974

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AMELITO BELTRAN, defendant-appellant.

Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor Dominador L. Quiroz and Solicitor Simfronio I. Ancheta for plaintiff-appellee.

Tranquilino O. Calo, Jr. for defendant-appellant.

ANTONIO, J.:p

Appeal from the judgment of the Court of First Instance of Agusan dated May 13, 1969, finding appellant Amelito Beltran guilty of murder in Criminal Case No. 2769 and sentencing him to suffer the penalty of reclusion perpetua, with all the accessory penalties provided by law, to indemnify the heirs of Clemente Pingol in the sum of P6,000.00, and to pay the costs.

There appears to be no dispute as to the basic fact that on the evening of September 21, 1963, Clement Pingol was fatally shot from behind with a shotgun while he was in the sala of the unfinished house of Crisanto Tubo at Barrio Tagpangahoy of the Town of Tubay, Province of Agusan. A report of the incident reached the Chief of Police of Tubay and on the following day, September 22, 1963, Chief of Police Zotico Cepeda, Pat. Juanito Antiporda, Municipal Judge Edgardo Batitang, and Dr. Jose Encarnado, of Tubay, proceeded to the scene of the crime. They saw the body of Clemente Pingol sprawled on the floor of the sala in the unfinished house of Crisanto Tubo. As shown by the sketch (Exhibit "A") prepared by Pat. Antiporda, the house is situated 19 meters from the seashore, and consisted of a small sala which was completely open because it had no walls, and the living quarters on the western portion thereof which was enclosed with walls. On the western wall were found two pellet holes (Exhibits "E-3" and "E-4"). Northeast of the sala about four and a half (4-½) meters away was a coconut tree (Exhibit "A-6"). An autopsy on the deceased was performed. According to the necropsy report, the victim sustained eight (8) punctured wounds which were caused by shotgun pellets, the right lung was totally mutilated and the third right rib fractured. Death was due to internal hemorrhage as a consequence of the injury to the right lung and to the brain.

It was only on September 30, 1963, however, when Ernesto Dua and Raymundo Dua implicated Amelito Beltran as the person who fatally shot the deceased. On the basis of the statements of the Dua brothers, Sgt. Francisco Umbao of the constabulary filed, on October 1, 1963, with the Justice of the Peace Court of Tubay, a complaint for murder against appellant Amelito Beltran. Solely on the basis of the identification made by the Dua brothers, the court a quo found appellant guilty beyond reasonable doubt of murder and rendered the judgment heretofore adverted to.

Since the conviction of appellant was based on the testimonies of Ernesto Dua and Raymundo Dua, there is, therefore, a need to scrutinize carefully their respective testimonies. Raymundo Dua, 25 years of age, farmer of Tubay, Agusan, testified that at about 8:00 o'clock on the evening of September 21, 1963, while he was at the porch of their house at Bo. Tagpangahoy, Town of Tubay, Agusan, conversing with his brothers, mother and father, he saw appellant helping one Felimon Sandigan haul a banca from the sea to the shore; that afterwards, appellant walked past their house carrying a shotgun on his shoulders and proceeded directly towards the house of Crisanto Tubo and upon reaching a coconut tree in front of the house, concealed himself behind said tree and fired with his shotgun at Clemente Pingol; that at the time of the shooting, Pingol was then sitting and facing Crisanto Tubo with whom he was conversing; that Tubo was with his wife and adopted child; that appellant was then about three (3) arms length from Pingol when he fired the shot; that he could recognize the face of Amelito Beltran because of the light coming from a torch locally known as "moron"; that after shooting the victim, appellant Beltran fled from the scene by taking the same route, passing near the porch of the house of the witness; and on the following morning, he went to the house of Crisanto Tubo where the police were already investigating the incident and saw the body of the deceased still sprawled on the floor. On cross-examination, he indicated that their house was about fifty to sixty meters distant from that of Crisanto Tubo, and between those two houses was the unoccupied house of Eulogio Tilleno; that in spite of that distance, he claimed that he could distinctly hear the ordinary conversation going on between Tubo and Pingol who were talking and joking with each other for quite some time in the presence of Anselma, Tubo's wife; that at the time they were conversing, they were facing each other with the back of Clemente Pingol towards the coconut tree; that when he saw somebody aim a shotgun at Pingol, he did not shout because he was afraid; that he did not inform the police immediately of what he saw.

His younger brother, Ernesto Dua, gave substantially identical testimony.

I

The important question to be determined is whether the appellant was the person who perpetrated the offense. Examining carefully the evidence of the prosecution about the identity of the assailant, We find that the prosecution's evidence leaves much to be desired. The identity of the offender, like the crime itself, must be proven beyond reasonable doubt. The question of the identification of an accused as the perpetrator of an offense might seem to be the simplest that could possibly come before a court. But the fact is precisely the reverse. The question of identification has proved itself over and over again, by far, instead the most perplexing. As one court has observed: "There are few more difficult subjects with which the administration of justice has to deal. The carelessness or superficiality of observers, the rarity of powers of graphic description, and the different force with which peculiarities of form or color or expression strike different persons, make recognition or identification one of the least reliable of facts testified to even by actual witness who have seen the parties in question. ..." ¹

In the case at bar, the identification of appellant bears heavily on the reasonableness or probability of the testimony of these witnesses. It has been observed that the most positive testimony of a witness may be contradicted by the fact that the testimony is contrary to common observation or experience, ² or the common principles by which the conduct of mankind is governed. ³ The courts are not required to believe that which they judicially know to be incredible. ⁴

II

According to appellant, the credibility of the testimonies of Raymundo and Ernesto Dua is impaired by their apparent improbability. We agree. We find it highly improbable that appellant would make his presence so conspicuous to these witnesses by passing near them with a shotgun on his shoulders immediately before and even after shooting the victim. According to the prosecution witnesses, a person can bring his banca ashore immediately behind the house of Crisanto Tubo, and, therefore, can go to the coconut tree in front of Tubo's house without passing by the house of the Duas. It is quite incredible, therefore, that appellant, instead of taking the shorter and more direct route, should have taken the longer and more circuitous route by landing behind the house of the Dua brothers, then walk past the porch of their house where the Dua brothers were conversing with the rest of their family and in plain view of these people, proceed to the place of the victim.

Considering that visibility was practically nil, as according to the prosecution evidence, the night was so dark that a person ten meters away could not be seen, much less recognized, it is highly improbable that the Dua brothers could have distinctly recognized appellant who was allegedly hiding behind a coconut tree about fifty to sixty meters away. It is true that they claim that they were able to recognize appellant by the light of a torch ("moron"), but the infirmity of this assertion lies in the fact that an assassin hiding behind a coconut tree would certainly not expose his face to the light to enable others to identify and recognize him. Apart from this, according to the sketch prepared by the police (Exhibit "A"), the kerosene lamp was placed inside the sleeping quarters of Crisanto Tubo which was partly enclosed with walls, and not in the sala of the house where Tubo, with his wife and adopted child, were conversing with the victim. Considering the location of the lamp, its limited luminosity and the pitch-black darkness of the night, it is highly implausible that even with the aid of such light, Raymundo and Ernesto Dua could have positively recognized the face of an assailant hiding behind a coconut tree about fifty or sixty meters away. Moreover, if it were true that Crisanto Tubo was talking with Pingol at the time when the latter was shot from behind, it is evident that Tubo was in the best position to see the assailant, but it appears that this person was neither investigated nor questioned by the police in connection with the incident. This indicates that the assailant was able to conceal his presence in such a manner that even Tubo was not able to see him. It should be noted also that the conduct of these witnesses immediately after witnessing a startling occurrence shows lack of spontaneity and sincerity. Thus, after seeing a neighbor killed in a shocking manner, in an apparent indication of lack of concern, they continued chatting until nine o'clock that night, then retired and slept soundly, and although they saw the police authorities inquiring from the people there as to how and by whom the victim was killed, when they went to see the cadaver of the victim in the house of Tubo the following morning, they never bothered to inform the police of what they knew.

Q. After that conversation that night, you slept?

A. Yes, sir.

Q. So with Raymundo Dua you were able to sleep?

A. Raymundo Dua did not go to bed yet.

Q. You mean to say you left Raymundo Dua when you went to sleep?

A. No, sir, we were still conversing.

Q. Up to what time were you conversing in the evening?

A. Up to nine o'clock in the evening.

Q. And after nine o'clock you and Raymundo Dua and your parents went to sleep?

A. Yes, sir.

Q. And you woke up the next morning already?

A. Yes, sir.

Q. And when you woke up you had your breakfast?

A. Yes, sir.

Q. You did not go to your farm that morning?

A. No, sir.

Q. And you said you went to the house of Tubo that morning, you went there because you saw some persons and policemen going to the house of Tubo that morning, is it not?

A. Yes, sir.

Q. And when you went there you did not talk with anybody?

A. Nobody.

Q. And nobody talked to you?

A. Nobody.

Q. You feel uneasy on the witness stand, are you sick?

A. I have just recovered from malaria.

Q. On that morning after the incident, you did not go to the municipal building of Tubay, Agusan, is it not?

A. No, sir.

Q. As a matter of fact, when the policemen brought the body of Pingol to the municipal building you did not go with them?

A. I did not go.

Q. How about your brother Raymundo Dua, did he go with them or not?

A. He did not go. (t.s.n., April 15, 1968, pp. 41-42).

The testimony of Raymundo on this point is the same (t.s.n., April 3, 1968, p. 20):

Q. You went to the house of Tubo because you noticed there were already policemen there?

A. Yes, sir. .

Q. If you did not see any policemen, you would not have gone to the house of Tubo?.

A. That is right. .

xxx xxx xxx

Q. You did not bother to talk or give them any information?

A. No sir, I did not.

It should be noted that the Dua brothers themselves were also arrested as suspects in the commission of the crime and it was only then that they executed their respective statement implicating the appellant. This circumstance renders their motive in so incriminating appellant highly suspicions:

Q. Agusan, is it not?

A. Yes, sir.

Q. As a matter of fact, when the policemen brought the body of Pingol to the municipal building you did not go with them?

A. I did not go.

Q. How about your brother Raymundo Dua, did he go with them or not?

A. He did not go.

Q. From that date you did not go anymore or report the matter to what you narrated to the authorities in the municipal building of Tubay, Agusan?

A. We were arrested by the police.

Q. You were arrested because you were suspected as having shot Clemente Pingol?

A. Yes, sir.

Q. As a matter of fact the PC soldier told you that if you will not testify against Amelito Beltran you will be the one in jail, is it not?

A. Yes, sir.

Q. And because you were afraid that you will be sent to jail, you agreed to testify against Amelito Beltran?

A. Yes, sir.

Q. And when you were brought to the municipal building of Tubay you were told by the PC Sgt. Umbao to sign a certain paper or affidavit, is it not?

A. Yes, sir, he made us sign.

Q. And this is the affidavit which we request to be marked as Exhibit 2, which is found on pages 3 and 4 of the record, which Sgt. Umbao told you to sign, is it not?

A. Yes, sir.

Q. And after you signed, PC soldier Umbao told you that he will bring you to the judge and to tell the judge that the contents of this affidavit are true and you will answer yes, is that correct?

A. Yes, sir.

Q. And in compliance with his order, when you were brought before the judge and when the judge asked you whether the contents of the affidavit were true, you answered "Yes", is it not?

A. We were made to swear before him.

Q. And after you have appeared before Judge Batitang you were released and you were told to go home, is it not?

A. Yes, sir. (t.s.n., supra, pp. 42-43, Sanchez).

Finally, there is nothing in the record any fact or circumstance from which We can deduce or infer the existence of any possible motive on the part of appellant to commit this heinous crime. It is true that motive is not essential for the conviction of an accused where there is no doubt as to his identity as the culprit, but where the identification proceeds from an unreliable source and the testimony is inconclusive and not free from doubt, then evidence of motive becomes necessary. ⁵ Here, the identification of the appellant as the assailant of the victim is not convincing. In view of the unreliability of the identification of appellant, the defense of alibi interposed by him, therefore, assumes importance. According to appellant, he was in Barrio Lucbon of the said municipality from the afternoon of September 21, 1963 to the early morning of September 22, 1963 attending to the making of coprax for Ofemio Novero. This testimony was corroborated by Realino Botoy, a farmer and resident of Tubay, and by Ofemio Novero, the person who employed appellant. These witnesses also affirm that on the evening of September 21, 1963, it was dangerous to travel by means of a baroto or small banca from Lucbon to Tagpangahoy, the situs of the incident, as the tide was not only high but the waves were very big. Appellant also explained that prior to this incident, Ernesto and Raymundo Dua were ejected from the land of his grandfather because they stole his coconuts, which act the Duas must have resented.

While it is true that an "alibi is the weakest defense that an accused can avail of, it acquires commensurate strength where, as in this case, no positive and proper identification has been made by the witnesses of the offender. The prosecution has the onus probandi in establishing the guilt of the accused and the weakness of the defense does not relieve it of this responsibility." ⁶

Considering the aforecited infirmities of the testimonies of the prosecution witnesses, We are not satisfied that the constitutional presumption of innocence accorded to appellant has been overcome. To overcome that presumption, the guilt of appellant must be shown beyond reasonable doubt. While this does not connote absolute certainty, it means that degree of proof which after an investigation of the whole record, produces moral certainty in an unprejudiced mind of appellant's culpability. It signifies such proof "that convinces and satisfies the reason and conscience of those who are to act upon it" that the defendant is guilty of the crime charged. ⁷

As Justice Fernando emphasized: "The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a crime." ⁸

Accordingly, the judgment a quo is reversed, and the appellant, Amelito Beltran, is hereby acquitted. Costs de oficio.

Fernando (Chairman), Barredo, Fernandez and Aquino, JJ., concur.

Footnotes

1 Estate of Bryant, 176 Pa. 309, 318, 35 Atl. 571, 577 cited in Wall, Eye-Witness Identification in Criminal Cases, 1965 ed.

2 People vs. Vergara, 82 Phil., 207 People v. Bentley, 191 NE. 230, 357 Ill. 82, 98 C.J.S. p. 340, note 45.

3 People v. Sagayno, Nos. L-15961-62, October 31, 1963; Tierney v. Hotz, 55 A. 2d 39, 141 N.J. Eq. 114, 98 C.J.S. p. 341, note 46.

4 People v. Zapata, No. L-11074, February 27, 1960; Larsen v. Bliss, 91 P. 2d 811, 43 N.M. 265, 98 C.J.S., p. 341, note 47.

5 Cf. U.S. v. McMann, 4 Phil., 561; People v. Tagasa, 68 Phil., 153; People v. Caggavan, 94 Phil., 118; U.S. v. Suspense, et al., 102 Phil., 209, 210; People v. Murray, 105 Phil., 591; People v. Cunanan, 19 SCRA 769, 781; and People v. Herila, 51 SCRA 31.

6 People v. Baquiran, 20 SCRA 451, 460-61; and People v. Cruz, 32 SCRA 181, 187.

7 People v. Lavarias, L-24239, June 29, 1968; and People v. Dramayo, L-21325, October 25, 1971.

8 People v. Reyes, L-36874-76, September 30, 1974.