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G.R. No. 126094 January 21, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
TITO REDUCA y ABARA, accused-appellant.

FACTS

Before us is an appeal from the February 8, 1996 Decision ¹ of the Regional Trial Court of Bukidnon, Branch 8, in Criminal Case Nos. 7191-95, 7192-95 and 7193-95, finding Tito Reduca guilty beyond reasonable doubt of two counts of murder and one count of frustrated murder.

In three separate Informations, Assistant Provincial Prosecutor Guillermo G. Ching charged appellant with two counts of murder and one count of frustrated murder. Filed on February 13, 1995 and similarly worded except for the name of the victim, ² the two Informations for murder read:

That on or about the 4th day of December, 1994, in the evening, at Sayre Highway, [B]arangay Sinanguyan, [M]unicipality of Don Carlos, [P]rovince of Bukidnon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill by means of treachery and evident premeditation, armed with a bladed weapon, did then and there wilfully, unlawfully and criminally attack, assault and stab RICKY RENEGADO, hitting and inflicting upon his person the following wounds, to wit:— Multiple Stab woundswhich caused the instantaneous death of RICKY RENEGADO, to the damage and prejudice of the legal heirs of RICKY RENEGADO in such amount as may be allowed by law.

Contrary to and in violation of Article 248 of the Revised Penal Code, as amended by R.A. 7659. ³

Subsequently, on February 14, 1995, a third Information was filed, charging Reduca with frustrated murder, allegedly committed as follows:

That on or about the 4th day of December, 1994, in the evening, at Sayre Highway, [B]arangay Sinanguyan, [M]unicipality of Don Carlos, [P]rovince of Bukidnon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill by means of treachery and evident premeditation, armed with a bladed weapon, did then and there wilfully, unlawfully and criminally attack, assault and stab MANOLO CABACTULAN, hitting and inflicting upon his person the following wounds, to wit:— Wound at the right portion of the back of his bodywhich wound would have caused the death of MANOLO CABACTULAN were it not for the timely medical assistance accorded him, thus the accused had performed all the acts of execution which would have produced the crime of [m]urder, but which nevertheless did not produce it by reason of causes [of] the will of the accused, to the damage and prejudice of MANOLO CABACTULAN in such amount as may be allowed by law.

Contrary to and in violation of Article 248 in relation to Article 6 of the Revised Penal Code. ⁴

Considering that the crimes were allegedly committed on one occasion at the same place and by the same suspect, both the prosecution and the defense agreed to hold a joint trial for the three cases. During the arraignment on March 16, 1995, the accused, assisted by Counsel Nemesio G. Beltran, pleaded not guilty. Thereafter, trial proceeded in due course. On February 8, 1996, the court a quo rendered its Decision finding the guilt of accused Tito Reduca having been proved beyond reasonable doubt, and pursuant to the provision of R.A. 7659

The trial court concluded that appellant's defense of alibi cannot overthrow the clear and convincing eyewitness accounts of Manolo Cabactulan and Felix Temple, both of whom identified appellant as the assailant. The defense failed to show that Cabactulan and Temple had any motive to single out and falsely accuse appellant. In addition, two other witnesses testified that they heard one of the victims, Ricky Renegado utter before his death that "Reduca" had stabbed him. Finally, the trial court ruled that treachery attended the commission of the crimes, as shown by the suddenness of the assault which prevented the victims from defending themselves.

ISSUE

1.     Probative value of the prosecution's evidence

2.     Admissibility of Renegado's dying declaration;

3.     Alibi as a defense.

RULING

First Issue:

Probative Value of the Prosecution's Evidence

The defense argues that Witnesses Cabactulan and Temple could not have identified appellant as their attacker because, at the time, they were drunk and, in any event, it was dark. Furthermore, based on Cabactulan's testimony, they immediately scampered away as soon as the attack began; thus, it was impossible for them to identify who their attacker was. Assailing the credibility of the said witnesses, appellant also points to various inconsistencies in their testimonies, as well as to alleged irregularities pertaining to Felix Temple's affidavit.

Appellant's contentions are not persuasive. The trial court, which had the opportunity of observing the demeanor of the witnesses on the stand, was convinced of their credibility. We find no reason to reverse or alter the evaluation of the trial court. "It is a time tested doctrine that a trial court's assessment of the credibility of a witness is entitled to great weight — even conclusive and binding if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence." ¹¹

Immaterial is the fact that the victims may have drunk liquor a few hours prior to the attack, since it was not shown "just how drunk they were" as they walked along the road. Verily, it was not established how much liquor they had consumed. Indeed, no evidence was offered to show that intoxication had debilitated their senses to the point of negating their claim of having seen their attacker. Nor did Cabactulan positively say that they had scampered away before they were able to see their attacker.

The defense claims that Cabactulan had never seen appellant before the incident and, thus, could not have identified him as the attacker. True, Cabactulan had not known appellant prior to the attack, but it does not follow that the witness, who saw him during the track, was incapable of identifying him. Thus, when Cabactulan again saw appellant during the course of the investigation and the trial, he positively pointed to him as the attacker. We quote his testimony hereunder:

Second Issue:

Renegado's Dying Declaration

The defense contends that Ricky Renegado's alleged dying declaration that it was "Reduca" who stabbed him does not necessarily refer to Appellant Tito Reduca in particular. Appellant also seeks to impugn the credibility of Simplicio Bariga and Rodrigo Fernandez, who had both testified on Renegado's statement, because they did not volunteer the above information when they were first questioned by the police. Furthermore, Bariga seems to be confused as to the date he executed his affidavit.

Sec. 37 of Rule 130 of the Rules of Court allows a dying person's declaration made under consciousness of impending death to be received as evidence in a case involving said person's death:

Sec. 37. Dying Declaration. — The declaration of a dying person, made under a consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death.

In the case at bar, there is no question that all of the above requisites are present, including the fact that Renegado, the declarant, was aware of his impending death. "It has been held that the degree and seriousness of the wound and the fact that death supervened shortly afterwards, may be considered as substantial evidence that the declaration was made by the victim with full realization that he was in a dying condition." ¹⁹ Therefore, considering the seriousness of the stab wound inflicted on Renegado and the fact that he died shortly thereafter, it can be concluded that he was aware of his impending death when he uttered that it was "Reduca" who stabbed him.

Finally, Bariga's confusion regarding the date when his affidavit was executed is trivial. It pertains to a minor detail and does nor affect his credibility. Moreover, this Court has previously explained that "even the most truthful witnesses can sometimes make mistakes, but such innocent lapses do not necessarily affect their credibility." ²¹

Third Issue:

Alibi

Appellant interposes the defense of alibi, stating that on December 4, 1994, he played basketball from 8:00 p.m. to 10:00 p.m. and slept in the barangay hall from 10:00 p.m. onwards. Thus, he could not have been the author of the crime committed around 10:00 p.m. that day.

This claim must also be rejected. Alibi is one of the weakest defenses, because it is easy to fabricate and difficult to disprove. For alibi to prosper, it would not be enough for the accused to prove that he was elsewhere when the crime was committed; he must further demonstrate that it would have been physically impossible for him to have been at the scene of the crime at the time of its commission. ²²

Evidence shows that the distance between the barangay hall and the site of the alleged stabbing incident was only around four hundred (400) meters. Thus, it was not physically impossible for appellant to be present at the locus criminis. Finally, an unsubstantiated alibi cannot overcome positive and credible evidence pointing to the accused as the perpetrator of the crime.

WHEREFORE, the assailed Decision is hereby AFFIRMED insofar as it convicted Appellant Tito Reduca of two counts of murder and sentenced him to two terms of reclusion perpetua. However, his conviction for frustrated murder is MODIFIED to attempted murder, for which he is hereby SENTENCED to an indeterminate penalty of 4 years 2 months and 1 day of prision correccional (maximum), as minimum, to 10 years and 1 day of prision mayor (maximum), as maximum. Costs against appellant.

SO ORDERED.

G.R. No. 128538       February 28, 2001

SCC CHEMICALS CORPORATION, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, STATE INVESTMENT HOUSE, INC., DANILO ARRIETA and LEOPOLDO HALILI, respondent.

QUISUMBING, J.:

FACTS

On December 13, 1983, SCC Chemicals Corporation (SCC for brevity) through its chairman, private respondent Danilo Arrieta and vice president, Pablo (Pablito) Bermundo, obtained a loan from State Investment House Inc., (hereinafter SIHI) in the amount of P129,824.48. The loan carried an annual interest rate of 30% plus penalty charges of 2% per month on the remaining balance of the principal upon non-payment on the due date-January 12, 1984. To secure the payment of the loan, Danilo Arrieta and private respondent Leopoldo Halili executed a Comprehensive Surety Agreement binding themselves jointly and severally to pay the obligation on the maturity date. SCC failed to pay the loan when it matured. SIHI then sent demand letters to SCC, Arrieta and Halili, but notwithstanding receipt thereof, no payment was made.

On August 2, 1984, SIHI filed Civil Case No. 84-25881 for a sum of money with a prayer for preliminary attachment against SCC, Arrieta, and Halili with the Regional Trial Court of Manila.The case then proceeded to trial on the sole issue of whether or not the defendants were liable to the plaintiff and to what extent was the liability.

SIHI presented one witness to prove its claim. The cross-examination of said witness was postponed several times. The case was calendared several times for hearing but each time, SCC or its counsel failed to appear despite notice. SCC was finally declared by the trial court to have waived its right to cross-examine the witness of SIHI and the case was deemed submitted for decision.On March 22, 1993, the lower court promulgated its decision in favor of SIHI.Aggrieved by the verdict, SCC elevated the case to the Court of Appeals where it was docketed as CA-G.R. CV No. 45742.

On appeal, SCC contended that SIHI had failed to show, by a preponderance of evidence, that the latter had a case against it. SCC argued that the lone witness presented by SIHI to prove its claim was insufficient as the competency of the witness was not established and there was no showing that he had personal knowledge of the transaction. SCC further maintained that no proof was shown of the genuineness of the signatures in the documentary exhibits presented as evidence and that these signatures were neither marked nor offered in evidence by SIHI. Finally, SCC pointed out that the original copies of the documents were not presented in court.On November 12, 1996, the appellate court affirmed in toto the judgment appealed from.On December 11, 1996 SCC filed its motion for reconsideration, which the Court of Appeals denied in its resolution dated February 27, 1997.Hence, petitioner's recourse to this Court relying on the following assignments of error:

ISSUE

I

 (1) Whether or not the Court of Appeals made an error of law in holding that private respondent SIHI had proved its cause of action by preponderant evidence; and

(2) Whether or not the Court of Appeals erred in upholding the award of attorney's fees to SIHI.

RULING

Anent the first issue, petitioner contends that SIHI introduced documentary evidence through the testimony of a witness whose competence was not established and whose personal knowledge of the truthfulness of the facts testified to was not demonstrated. It argues that the same was in violation of Sections 36³ and 48,⁴ Rule 130 of the Rules of Court and it was manifest error for the Court of Appeals to have ruled otherwise. In addition, SCC points out that the sole witness of SIHI did not profess to have seen the document presented in evidence executed or written by SCC. Thus, no proof of its genuineness was adduced. SIHI thus ran afoul of Section 2,⁵ Rule 132 of the Rules of Court, which requires proof of due execution and authenticity of private documents before the same can be received as evidence. Petitioner likewise submits that none of the signatures affixed in the documentary evidence presented by SIHI were offered in evidence. It vehemently argues that such was in violation of the requirement of Section 34,⁶ Rule 132 of the Rules of Court. It was thus an error of law on the part of the appellate court to consider the same. Finally, petitioner posits that the non-production of the originals of the documents presented in evidence allows the presumption of suppression of evidence provided for in Section 3 (e),⁷ Rule 131 of the Rules of Court, to come into play.Rule 130, Section 36 reads:

SEC. 36. Testimony generally confined to personal knowledge; hearsay excluded. – A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules.

Petitioner's reliance on Section 36, Rule 130 of the Rules of Court is misplaced. As a rule, hearsay evidence is excluded and carries no probative value.⁸ However, the rule does admit of an exception. Where a party failed to object to hearsay evidence, then the same is admissible.⁹ The rationale for this exception is to be found in the right of a litigant to cross-examine. It is settled that it is the opportunity to cross-examine which negates the claim that the matters testified to by a witness are hearsay.¹⁰ However, the right to cross-examine may be waived. The repeated failure of a party to cross-examine the witness is an implied waiver of such right. Petitioner was afforded several opportunities by the trial court to cross-examine the other party's witness. Petitioner repeatedly failed to take advantage of these opportunities. No error was thus committed by the respondent court when it sustained the trial court's finding that petitioner had waived its right to cross-examine the opposing party's witness. It is now too late for petitioner to be raising this matter of hearsay evidence.

Nor was the assailed testimony hearsay. The Court of Appeals correctly found that the witness of SIHI was a competent witness as he testified to facts, which he knew of his personal knowledge. Thus, the requirements of Section 36, Rule 130 of the Rules of Court as to the admissibility of his testimony were satisfied.Nor will petitioner's reliance on the "best evidence rule"¹² advance its cause. Respondent SIHI had no need to present the original of the documents as there was already a judicial admission by petitioner at pre-trial of the execution of the promissory note and receipt of the demand letter. It is now too late for petitioner to be questioning their authenticity. Its admission of the existence of these documents was sufficient to establish its obligation. Petitioner failed to submit any evidence to the contrary or proof of payment or other forms of extinguishment of said obligation. No reversible error was thus committed by the appellate court when it held petitioner liable on its obligation, pursuant to Article 1159 of the Civil Code which reads:

ART. 1159. Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith.

On the second issue, petitioner charges the Court of Appeals with reversible error for having sustained the trial court'' award of attorney'' fees. Petitioner relies on Radio Communications of the Philippines v. Rodriguez, 182 SCRA 899, 909 (1990), where we held that when attorney's fees are awarded, the reason for the award of attorney's fees must be stated in the text of the court's decision

WHEREFORE, the instant petition is PARTLY GRANTED. The decision dated November 12, 1996 of the Court of Appeals is AFFIRMED WITH MODIFICATION that the award of attorney's fees to private respondent SIHI is hereby deleted. No pronouncement as to costs.

SO ORDERED.

G.R. No. 110993 August 17, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EUTIQUIO APA-AP, JR. alias JUNIOR ANTIK and one ALIAS BENIE, accused-appellant.

The Solicitor General for plaintiff-appellee.

Trabajo-Lim Law Office for accused-appellant.

 FACTS

That on or about the 26th day of September, 1987, at about 11:30 p.m., at barangayBalwarte, Municipality of Buenavista, Province of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping each other, with intent to kill, evident premeditation, and treachery by hiding under a cart and suddenly attacking the victim without giving him the opportunity to defend himself, did then and there, wilfully, unlawfully and feloniously attack, assault and stab with sharp bladed instruments one Ciriaco Diacor, thereby inflicting multiple mortal wounds on his body, as shown in the Certificate of Death, which directly caused the death of the victim; to the damage and prejudice of the heirs of the deceased in an amount to be proved during the trial of the case.

Acts committed contrary to the provisions of Article 248, in relation to Article 14 of the Revised Penal Code with the qualifying aggravating circumstance of nighttime being purposely sought for or taken advantage of by the accused to facilitate the commission of the crime.

After trial, the court a quo found accused-appellant guilty as charged in a decision dated January 25, 1993

ISSUE

1. Whether or not is the court a quo erred in admitting the dying declaration of the victim considering the fact that same did not comply all the essential requisite for it to be admissible in evidence;

2. whether or not the court a quo erred in not appreciating the defense of alibi interposed by the accused.

3. whether or not  treachery is present upon the commission of the crime?

RULING

1.     YES..In order that a dying declaration may be admissible, the following requisites must concur:

[1] The declaration must concern the cause and surrounding circumstances of the declarant's death;

[2] The declarant, at the time the declaration was made, was under the consciousness of an impending death;

[3] The declarant is competent as a witness; and

[4] The declaration is offered in a criminal case wherein the declarant's death is the subject of inquiry (People vs. Clamor, 198 SCRA 642 [1991]).

There is no question in regard to the existence of the first requisite. The declaration (Exhibit A) relates to the stabbing of the victim, Ciriaco Diacor, and identifies accused-appellant as the person who stabbed the victim.

Likewise, the presence of second requisite cannot be gainsaid. The victim suffered fatal and serious wounds and he died shortly after making the declaration. It has been held that the degree and seriousness of the wound and the fact that death supervened shortly afterwards, may be considered as substantial evidence that the declaration was made by the victim with full realization that he was in a dying The third element is also present for there is nothing in the record to show that the declarant was incompetent as a witness. As a matter of fact, when SPO1 Jesus Ozalla, the policeman who took the dying declaration of the victim, was asked on the witness stand what was the mental condition of the victim before his death, the witness, a veteran police officer, stated that "when I interrogated him he answered well" (p. 6, tsn, November 20, 1992) and that the victim was not suffering from any mental disease (id.).

There is no question too as to the existence of the fourth requisite for said dying declaration was offered in the instant action, a criminal case where the declarant's death is the very subject of inquiry.

2. We have to reject the defense of alibi set up by accused-appellant. Alibi is a weak defense for it is easy of fabrication (People vs. Ragas, 44 SCRA 152 [1972]). To establish alibi, it must be shown that it was physically impossible for the accused to be present at the place where the crime was committed at the time of commission (People vs. Cruz, 208 SCRA 326 [1992]). Accused-appellant avers that on the day the crime was committed, he was working and staying at the house of Engr. Hermilando Torregosa at Tubigon, Bohol. Accused-appellant's alibi does not fulfill the requirements of a valid alibi for there is no showing that it was physically impossible for him to have been at Barangay Balwarte when the crime was committed even as he may have indeed worked at Tubigon.

3. The Solicitor General recommends that the qualifying circumstance of treachery should not be appreciated. We agree.

Treachery cannot be appreciated in the absence of evidence of the mode of attack; it cannot be presumed but must be proven positively (People vs. Quilaton, 205 SCRA 279 [1992]). Where no particulars are known as to the manner in which the aggression was made or how the act which resulted in the death of the victim began and developed, it can in no way be established from mere supposition that the killing was perpetrated by treachery (People vs. Devaras, 205 SCRA 676 [1992]). There is an absolute paucity of evidence to establish the mode of attack, or the inception thereof, adopted by accused-appellant in killing the victim. The qualifying circumstance of treachery should, therefore, not be appreciated. In fine, the crime committed by accused-appellant is homicide, not murder.

Under the Revised Penal Code, the penalty prescribed for homicide is reclusion temporal (Article 249, Revised Penal Code). In the case at bench, there is no mitigating nor aggravating circumstance. Applying the Indeterminate Sentence Law, the proper sentence is an indeterminate the penalty ranging from six (6) years and one (1) day of prison mayor, as minimum, to fourteen (14) years, eight (8) months, and 1 day of reclusion temporal, as maximum.

WHEREFORE, the decision appealed from is hereby AFFIRMED, with the modification that accused-appellant is found guilty of homicide only and is consequently sentenced to an indeterminate imprisonment term of six (6) years and one (1) day of prison mayor, as minimum, to fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal, as maximum.

The civil indemnity imposed by the trial court stands.

SO ORDERED.

BY; ANNE CALUMBA-PEREZ