There are three (3) essential requisites for the admissibility of a declaration against interest: (a) the declarant must not be available to testify; (b) the declaration must concern a fact cognizable by the declarant; and (c) the circumstances must render it improbable that a motive to falsify existed. In the instant case, we find that the declaration particularly against penal interest attributed to Zoilo Fuentes Jr. is not admissible in evidence as an exception to the hearsay rule. We are not unaware of People v. Toledo, 12 a 1928 case, where Justice Malcolm writing for the Court endeavored to reexamine the declaration of third parties made contrary to their penal interest. In that case, the protagonists Holgado and Morales engaged in a bolo duel. Morales was killed almost instantly. Holgado who was seriously wounded gave a sworn statement (Exh. 1) before the municipal president declaring that when he and Morales fought there was nobody else present. One (1) month later Holgado died from his wounds. While the Court was agreed that Toledo, who reportedly intervened in the fight and dealt the mortal blow, should be exonerated on reasonable doubt, the members did not reach an accord on the admissibility of Exh. 1. One group would totally disregard Exh. 1 since there was ample testimonial evidence to support an acquittal. The second group considered Exh. 1 as part of the res gestae as it was made on the same morning when the fight occurred. A third group, to which Justice Malcolm belonged, opined that the court below erred in not admitting Exh. 1 as the statement of a fact against penal interest. For all its attempt to demonstrate the arbitrariness behind the rejection in certain cases of declarations against penal interest, the Toledo case cannot be applied in the instant case which is remarkably different. Consider this factual scenario: the alleged declarant Zoilo Fuentes Jr., a cousin of accused-appellant, verbally admitted to the latter, and later to their common uncle Felicisimo Fuentes, that he (Zoilo) killed the victim because of a grudge, after which he disappeared. One striking feature that militates against the acceptance of such a statement is its patent untrustworthiness. Zoilo who is related to accused-appellant had every motive to prevaricate. The same can be said of accused-appellant and his uncle Felicisimo. Secondly, we need not resort to legal rhetorics to find that the admission of such a statement may likewise be, according to Wigmore, "shocking to the sense of justice." 13 Let us assume that the trial court did admit the statement of Zoilo and on that basis acquitted accused-appellant. Let us assume further that Zoilo was subsequently captured and upon being confronted with his admission of guilt readily repudiated the same. There is nothing, absolutely nothing, that can bind Zoilo legally to that statement. But more importantly, the far weightier reason why the admission against penal interest cannot be accepted in the instant case is that the declarant is not "unable to testify." There is no showing that Zoilo is either dead, mentally incapacitated or physically incompetent which Sec. 38 obviously contemplates. His mere absence from the jurisdiction does not make him ipso facto unavailable under this rule. 14 For it is incumbent upon the defense to produce each and every piece of evidence that can break the prosecution and assure the acquittal of the accused. Other than the gratuitous statements of accused-appellant and his uncle to the effect that Zoilo admitted having killed Malaspina, the records show that the defense did not exert any serious effort to produce Zoilo as a witness. Lest we be misunderstood, the Court is always for the admission of evidence that would let an innocent declaration of guilt by the real culprit. But this can be open to abuse, as when the extrajudicial statement is not even authenticated thus increasing the probability of its fabrication; it is made to persons who have every reason to lie and falsify; and it is not altogether clear that the declarant himself is unable to testify. Thus, for this case at least, exclusion is the prudent recourse as explained in Toledo - The purpose of all evidence is to get at the truth. The reason for the hearsay rule is that the extrajudicial and unsworn statement of another is not the best method of serving this purpose. In other words, the great possibility of the fabrication of falsehoods, and the inability to prove their untruth, requires that the doors be closed to such evidence.15

FIRST DIVISION

G.R. No. 111692             February 9, 1996

ALEJANDRO FUENTES, JR., petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

D E C I S I O N

BELLOSILLO, J.:

Still professing innocence and insisting that he is a victim of mistaken identity, petitioner Alejandro Fuentes, Jr., seeks reversal of the decision of the Court of Appeals affirming his conviction for murder.1

At four o'clock in the morning of 24 June 1989 Julieto Malaspina together with Godofredo Llames, Honorio Osok and Alberto Toling, was at a benefit dance at Dump Site, Tudela, Trento, Agusan del Sur. Petitioner called Malaspina and placed his right arm on the shoulder of the latter saying, "Before, I saw you with a long hair but now you have a short hair."2 Suddenly petitioner stabbed Malaspina in the abdomen with a hunting knife. Malaspina fell to the ground and his companions rushed to his side. Petitioner fled. Before the victim succumbed to the gaping wound on his abdomen he muttered that Alejandro Fuentes, Jr., stabbed him.3

Dr. Porfirio L. Salubre, the Rural Health Physician who autopsied the cadaver of Julieto Malaspina on 24 July 1989, reported that death was due to "stab wound at left lumbar region 1-1/2 in. in length with extracavitation of the small and large intestines."4

Petitioner claims on the other hand that it was his cousin Zoilo Fuentes, Jr., alias "Jonie" who knifed Malaspina; that when the victim was killed he was conversing with him; that he was compelled to run away when he heard that somebody with a bolo and spear would "kill all those from San Isidro" because "Jonie," the killer, was from that place; that since he was also from San Isidro he sought refuge in his brother's house where he met "Jonie;" that "Jonie" admitted spontaneously that he stabbed Malaspina because after a boxing match before the latter untied his gloves and punched him; that as there were many persons milling around the house "Jonie" jumped out and escaped through the window; that he was arrested at eight o'clock in the morning of 24 June 1989 while he was in a store in the barangay.5

The Regional Trial Court of Prosperidad, Agusan del Sur, found petitioner guilty of murder qualified by treachery and imposed on him an indeterminate prison term of ten (10) years and one (1) day of prison mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum, to indemnify the heirs of the victim Julieto Malaspina the amount of P50,000.00 and to pay P8,300.00 as actual damages plus costs.6

The Court of Appeals affirmed the judgment of the trial court; hence, this petition for review.

Petitioner contends that the appellate court erred when it held that petitioner was positively and categorically identified as the killer of Malaspina, in affirming the judgment of conviction and in holding petitioner liable for damages to the heirs of the victim.

Petitioner points to an alleged inconsistency between the testimonies of prosecution witnesses Alberto Toling and Honorio Osok to the effect that they saw petitioner stab Malaspina on the right lumbar region, and the testimony of the attending physician that the victim was stabbed on the left lumbar region.

This discrepancy is inconsequential. What is material is that Malaspina was stabbed to death and that three (3) prosecution witnesses positively identified petitioner as the knife wielder. It must be stressed that these witnesses had known petitioner for quite some time and never had any personal misunderstanding nor altercation with the latter as to create any suspicion that they were impelled by ill motives to falsely implicate him.

That it was another person who committed the offense is too incredible. No less than petitioner's own witness, Nerio Biscocho who claimed he also saw the killing, testified that Alejandro Fuentes, Jr., the petitioner, and "Jonie" Fuentes are one and the same person. Thus -

COURT:

Q       Who is this Joni Fuentes and Alejandro Fuentes?

A       That Joni Fuentes is the same of that or the accused Alejandro Fuentes. I do not know his real name but he is called as Joni, sir, . . .7

On cross-examination witness Biscocho further admitted that he himself would call petitioner Alejandro Fuentes, Jr., as "Joni" or "Jonie" Fuentes, as some of his friends did, but victim Malaspina occasionally called petitioner "Junior".8

Petitioner would make much of the alleged confession of Zoilo Fuentes, Jr., since it is a declaration against penal interest and therefore an exception to the hearsay rule. The so-called confession of Zoilo was allegedly given to Felicisimo Fuentes, the uncle of petitioner and Zoilo, who in turn relayed the matter to P/Sgt. Benjamin Conde, Jr. Felicisimo testified that on 24 June 1989 while he was at Barangay San Isidro, Zoilo Fuentes, Jr., confessed that he killed Malaspina in "retaliation;" that he even showed him the knife he used and asked his help in finding a lawyer, in securing bail and, if possible, in working out a settlement with the relatives of the deceased. The following day however he learned that the self-confessed killer was gone and that petitioner had been arrested for a crime he did not commit.9

For his part, Station Commander P/Sgt. Conde, Jr., testified that after the criminal information for murder was filed on 26 July 1989, petitioner met Felicisimo who informed him of the disclosure by Zoilo. Conde then advised Felicisimo that if it was true that it was Zoilo who fatally stabbed Malaspina Felicisimo must persuade Zoilo to surrender. Conde then personally went to Barangay San Isidro to investigate. There he was told by the townsfolk that Zoilo had already fled.10

One of the recognized exceptions to the hearsay rule is that pertaining to declarations made against interest. Sec. 38 of Rule 130 of the Rules of Court provides that "(t)he declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons." The admissibility in evidence of such declaration is grounded on necessity and trustworthiness.11

There are three (3) essential requisites for the admissibility of a declaration against interest: (a) the declarant must not be available to testify; (b) the declaration must concern a fact cognizable by the declarant; and (c) the circumstances must render it improbable that a motive to falsify existed.

In the instant case, we find that the declaration particularly against penal interest attributed to Zoilo Fuentes Jr. is not admissible in evidence as an exception to the hearsay rule. We are not unaware of People v. Toledo, 12 a 1928 case, where Justice Malcolm writing for the Court endeavored to reexamine the declaration of third parties made contrary to their penal interest. In that case, the protagonists Holgado and Morales engaged in a bolo duel. Morales was killed almost instantly. Holgado who was seriously wounded gave a sworn statement (Exh. 1) before the municipal president declaring that when he and Morales fought there was nobody else present. One (1) month later Holgado died from his wounds. While the Court was agreed that Toledo, who reportedly intervened in the fight and dealt the mortal blow, should be exonerated on reasonable doubt, the members did not reach an accord on the admissibility of Exh. 1. One group would totally disregard Exh. 1 since there was ample testimonial evidence to support an acquittal. The second group considered Exh. 1 as part of the res gestae as it was made on the same morning when the fight occurred. A third group, to which Justice Malcolm belonged, opined that the court below erred in not admitting Exh. 1 as the statement of a fact against penal interest.

For all its attempt to demonstrate the arbitrariness behind the rejection in certain cases of declarations against penal interest, the Toledo case cannot be applied in the instant case which is remarkably different. Consider this factual scenario: the alleged declarant Zoilo Fuentes Jr., a cousin of accused-appellant, verbally admitted to the latter, and later to their common uncle Felicisimo Fuentes, that he (Zoilo) killed the victim because of a grudge, after which he disappeared. One striking feature that militates against the acceptance of such a statement is its patent untrustworthiness. Zoilo who is related to accused-appellant had every motive to prevaricate. The same can be said of accused-appellant and his uncle Felicisimo. Secondly, we need not resort to legal rhetorics to find that the admission of such a statement may likewise be, according to Wigmore, "shocking to the sense of justice." 13 Let us assume that the trial court did admit the statement of Zoilo and on that basis acquitted accused-appellant. Let us assume further that Zoilo was subsequently captured and upon being confronted with his admission of guilt readily repudiated the same. There is nothing, absolutely nothing, that can bind Zoilo legally to that statement.

But more importantly, the far weightier reason why the admission against penal interest cannot be accepted in the instant case is that the declarant is not "unable to testify." There is no showing that Zoilo is either dead, mentally incapacitated or physically incompetent which Sec. 38 obviously contemplates. His mere absence from the jurisdiction does not make him ipso facto unavailable under this rule. 14 For it is incumbent upon the defense to produce each and every piece of evidence that can break the prosecution and assure the acquittal of the accused. Other than the gratuitous statements of accused-appellant and his uncle to the effect that Zoilo admitted having killed Malaspina, the records show that the defense did not exert any serious effort to produce Zoilo as a witness. Lest we be misunderstood, the Court is always for the admission of evidence that would let an innocent declaration of guilt by the real culprit. But this can be open to abuse, as when the extrajudicial statement is not even authenticated thus increasing the probability of its fabrication; it is made to persons who have every reason to lie and falsify; and it is not altogether clear that the declarant himself is unable to testify. Thus, for this case at least, exclusion is the prudent recourse as explained in Toledo -

The purpose of all evidence is to get at the truth. The reason for the hearsay rule is that the extrajudicial and unsworn statement of another is not the best method of serving this purpose. In other words, the great possibility of the fabrication of falsehoods, and the inability to prove their untruth, requires that the doors be closed to such evidence.15

The Court of Appeals as well as the trial court correctly determined the crime to be murder qualified by treachery. The suddenness of the attack, without any provocation from the unsuspecting victim, made the stabbing of Malaspina treacherous.16 However, the court a quo erred in imposing an indeterminate prison term of ten (10) years and one (1) day of prison mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum. Murder under Art. 248 of The Revised Penal Code is punishable by reclusion temporal in its maximum period to death. Since aside from treachery qualifying the crime to murder there is no other modifying circumstance proved, the medium period of the penalty, i.e. reclusion perpetua, should have been imposed on petitioner.17

Petitioner maintains that assuming that he committed the crime it is error to hold him answerable for P8,300.00 as actual damages on the basis of the mere testimony of the victim's sister, Angelina Serrano, without any tangible document to support such claim. This is a valid point. in crimes and quasi-delicts, the defendant is liable for all damages which are the natural and probable consequences of the act or omission complained of.18 To seek recovery for actual damages it is essential that the injured party proves the actual amount of loss with reasonable degree of certainty premised upon competent proof and on the best evidence available. 19 Courts cannot simply, rely on speculation, conjecture or guesswork in determining the fact and amount of damages.20

The award by the court a quo of P8,300.00 as actual damages is not supported by the evidence on record. We have only the testimony of the victim's elder sister stating that she incurred expenses of P8,300.00 in connection with the death of Malaspina. 21 However, no proof of the actual damages was ever presented in court. Of the expenses alleged to have been incurred, the Court can only give credence to those supported by receipts and which appear to have been genuinely expended in connection with the death of the victim. Since the actual amount was not substantiated, the same cannot be granted.22

WHEREFORE, the judgment appealed from finding petitioner ALEJANDRO FUENTES JR. guilty of MURDER and directing him to indemnify the heirs of Julieto Malaspina in the amount of P50,000.00 plus costs is AFFIRMED with the modification that the penalty imposed should be as it is corrected to reclusion perpetua, and the award of actual damages is deleted.

SO ORDERED.

Padilla, Vitug, Kapunan and Hermosisima, Jr., JJ., concur.

Footnotes

1 Decision penned by Justice Quirino D. Abad Santos, Jr., with Justices Oscar M. Herrera and Alfredo J. Lagamon concurring, prom. 28 July 1993; Rollo, pp. 34-39.
2 TSN, 11 July 1991, pp. 9-10.
3 TSN, 18 June 1991, pp. 2-6; 11 July 1991, pp. 8-11; 8 August 1991, pp. 3-5.
4 Exhs. "A" and "B," Records, pp. 69-71; see TSN, 11 July 1991, pp. 2-4.
5 TSN, 3 September 1991, pp. 3-7.
6 Judge Evangeline S. Yuipco presiding; Records, pp. 107-108.
7 TSN, 29 August 1991, pp. 7-8.
8 Id., pp. 13-14.
9 TSN, 29 August 1991, pp. 3-5.
10 Id., 4 September 1991, pp. 2-3.
11 Jones on Evidence, 2nd Ed., Sec. 1164, cited in Francisco, The Revised Rules of Court in the Philippines, Vol. III, 1990 Ed., p. 554.
12 51 Phil. 825 (1928).
13 Id., p. 836.
14 See Weber v. Chicago, R.I. & P. RY. Co., 151 N.W. 852, 862, cited in 20 Am. Jur. 468; People v. Catalino, No. L-25403, 15 March 1968, 22 SCRA 1091, 1107.
15 Id., p. 838.
16 People v. Ronquillo., G.R. No. 96125, 31 August 1995; People v. Loto, G.R. Nos. 114523-24, 5 September 1995.
17 People v. Laspona, G.R. No. 108084, 14 August 1995; People v. Mirabite, G.R. Nos. 111294-95, 7 September 1995.
18 Art. 2202, New Civil Code.
19 Art. 2199, id.
20 People v. Degoma, G.R. Nos. 89404-05, 22 May 1992, 209 SCRA 266; People v. Arguelles, G.R. No. 102539, 17 May 1993, 222 SCRA 166; Dichoso v. Court of Appeals, G.R. No. 55613, 10 December 1990, 192 SCRA 169.
21 TSN, 19 June 1991, p. 4.
22 In People v. Wenceslao, G.R. No. 95583, 12 August 1992, 212 SCRA 560, the Court disallowed claim for actual damages, the same being merely based on a typewritten list of expenses submitted by the father of the deceased without any competent proof presented in court.