G.R. No. L-24339. June 29, 1968
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FELIX LAVARIAS ALIAS FELING TAWEL, DEFENDANT-APPELLANT.
FERNANDO, J.:
This is an appeal from a lower court decision finding accused, appellant
Felix Lavarias, guilty of the crime of robbery with
homicide and serious physical injuries and imposing on him the penalty of reclusion
perpetua, to indemnify the heirs of the
deceased, Presentacion de Vera Malong
in the sum of P6,000.00 and to indemnify the offended party, in the case of
serious physical injuries, Levilina Malong, in the sum of P1,000.00, to indemnify further Bartolome Malong in the sum of
P250.00 and to pay one-fifth of the costs.[1]
According to the decision:
“There is no question that the late Presentacion
de Vera Malong was shot by the robbers who went to
steal the two carabaos and one cow of the said Bartolome Malong on the early
morning of May 1, 1963 and that on the occasion of the robbery the small
daughter of Bartolome Malong
by the name of Levi Malong was also seriously injured
* * *.”[2] It is likewise stated therein that the lower
court “is convinced that on the early morning of May 1, 1963, a group of
people went inside the premises of Bartolome Malong at barrio Pangascasan, Bugallon, Pangasinan, and took
away from the corral of the said Bartolome Malong three (3) heads of cattle namely: two (2) carabaos, one male and one female and one (1) cow; that on
the occasion of the stealing of the carabaos, two of
the malefactors fired shots, namely: Arcadio de Guzman and Felix Lavarias
alias ‘Feling Tawel’
causing the death of Presentacion de Vera Malong and serious physical injuries of Levi Malong, a three (3) years old girl, daughter of Bartolome Malong.”[3]
Recognition of the fact is made in the decision that the husband,
Bartolome Malong, one of
the two alleged eye-witnesses, “refused to point Feling
Lavarias alias ‘Tawel’ as
one of those who stole and robbed and killed his wife and injured his daughter,
* * *.” Thus, he was “considered a
hostile witness and instead of believing in his testimony given in court, this
court believes in his affidavit, exhibit ‘A’, wherein he pointed clearly that
the accused Felix Lavarias alias ‘Feling
Tawel‘ was one of those whom he was able to recognize
as having stolen the animals and fired shots at them causing the death of his
wife and injury to his daughter.”[4] As to the testimony of the other alleged
eye-witness, the decision states that “while Alejandro Capua
also followed Bartolome Malong
in refusing to live up to their previous affidavits and that Alejandro Capua refused to include Felix Lavarias
alias ‘Feling Tawel‘, as
one of those he identified, this court also considers Alejandro Capua as a hostile witness and instead of giving credence
to what he testified in open court, believes in his statement given on June 1,
1963, whereby he also pointed as one of those whom he recognized the accused
Felix Lavarias alias ‘Feling
Tawel‘, exhibit ‘C’.”[5]
It is thus undeniable that there was such a failure on the part
of both alleged eye-witnesses to identify appellant Lavarias
as one of those responsible for the robbery.
Thus when the husband, Bartolome Malong, was asked whether he knew who shot his wife, this
was his answer: “I was not able to
identify them, sir, because it was nighttime. I was then inside the house, and
the malefactors were downstairs.”[6] Subsequently, when the question was repeated,
he again answered in the negative:
“I did not recognize him, sir, because I was inside the
house.”[7] On cross-examination, when queried as to
whether De Guzman was the only one he recognized that night, he replied: “Yes, sir.”[8] He likewise explained why he was not able to
recognize the others “because the night was dark.”[9] When asked why he included in his affidavit
the name of appellant Lavarias as one of those
identified by him, he repeated: “I
did not recognize him that night, sir, because it was dark. Besides that, I was attending to my wife who
was shot and to my daughter who was injured, sir.”[10]
It is equally undeniable that the other alleged eye-witness,
Alejandro Capua, likewise failed to identify on the
witness stand appellant Lavarias as one of the
malefactors. When asked whether he could
tell the court what was declared by him before a constabulary sergeant
investigating the robbery, he answered in this wise: “I did not relate anything to Sgt. Castulo. He asked me
only whom I recognized and I said, I did not recognize anybody, sir.”[11] He continued by saying that he heard two
shots that evening, but he did not know who fired them, because “I did not
see, sir.”[12] He knew as a fact that some of the animals of
Bartolome Malong were taken
that night of May 1, 1963
but when asked who took it, he replied:
“That is what I do not know, sir.”[13] When pressed as to his lack of knowledge being
either due to his not recognizing or his not seeing the actual taking, he
clarified: “I did not see,
sir.”[14] He denied being maltreated at the PC
headquarters, but alleged that he was boxed at barrio Pangascasan,
where his house was located and that it was not true what was mentioned in the
affidavit, signed by him, as to his having recognized the persons therein
named. He reiterated when he was
specifically asked why he told the constabulary sergeant that he recognized
some persons who went to rob the house of Bartolome Malong: “I did
not tell him that I saw or recognized any person, sir.”[15]
When this line of questioning was pursued, the witness being
asked whether he told the investigator everything that he knew about the
incident, he stood firm: “What I
told him is I did not see anything because I did not go out, sir.”[16] The first question asked on cross-examination
was whether he gave the answer found in the affidavit that the fourth shot was
by appellant Lavarias. He was consistent; he replied: “No, sir.”[17] Aus to where he was when he heard the
gunshots on the night of May 1, 1963,
he indicated that he was inside his store under his house, the store being
closed during the time of the shooting, its wall being made of split bamboo and
cardboards.[18] The matter was clarified thus: “Do you mean to say that if you were
inside, the store you cannot see what is happening outside?[19] His answer was: “No, sir.”[20] For more emphasis, it was sought to be
ascertained whether he peeped. Again his
reply was: “No, sir.”[21] He repeated that the Answer he gave to the
question, whether the first Shot was fired by one Mandapat
and the fourth by appellant Lavarias, was that he did
not know “because I did not see anything, sir.”[22]
The decision appealed from would thus predicate a conviction on
affidavits executed by two alleged eye-witnesses who thereafter repudiated the
same. Independently of the motives that
must have occasioned such a change of heart, the conviction of appellant cannot
be sustained. The constitutional rights
guaranteed the accused stands in the way of the affirmance
of the appealed decision. It is
elementary that in all criminal prosecutions, there is a presumption of
innocence in his favor and he has the right to the confrontation of witnesses.
Certainly, the presumption of innocence here was bolstered by
positive and categorical testimony that appellant could not be identified as
one of the perpetrators of the offense charged.
Considering, moreover, that the alleged eye-witnesses presented were
the husband of the woman slain, as well as the father of the child who was hurt
and the other witness was a relation by affinity, both of whom therefore could
be expected to see to it that the guilty party would not go unpunished, this
failure to identify the appellant goes very far indeed in calling for a
reversal of the judgment. Only by proof
beyond reasonable doubt, which requires moral certainty, “a certainty that
convinces and satisfies the reason and conscience of those who are to act upon
it,” may the presumption of innocence be overcome. This has been the constant holding of this
Court from United States
v. Reyes,[23]
a 1903 decision, to People v. Jugilon,[24]
promulgated barely a month ago.
May the conviction be sustained by virtue of the affidavits
previously executed by the above witnesses wherein appellant was pointed at as
one of those who participated in the offense charged? The constitutional right to confrontation
precludes reliance on such affidavits.
Such a constitutional safeguard cannot be satisfied unless the
opportunity is given the accused to test the credibility of any person who, by
affidavit or deposition, would impute the commission of an offense to him. It would be to disregard one of the most
valuable guarantees of a person accused if solely on the affidavits presented,
his guilt could be predicated. In this
particular case, this observation gains added weight in view of the
repudiation of such affidavits coming from persons who ordinarily would be
expected to uphold and maintain what was therein stated.
There should be a reaffirmance of the
doctrine announced by this Court in a 1918 decision interpreting an analogous
provision of the then Bill of Rights. In
that case of United States v. Javier,[25]
Justice Malcolm, speaking for the Court, quoted an American Supreme Court
decision of Philippine origin,[26]
to the effect that this right to confrontation “intends to secure the
accused in the right to be tried, so far as facts provable by witnesses are
concerned, by only such witnesses as meet him face to face at the trial, who
give their testimony in his presence, and give to the accused an opportunity of
cross-examination. It was intended to
prevent the conviction of the accused upon depositions or ex parte affidavits, and particularly to preserve the
right of the accused to test the recollection of the witness in the exercise of
the right of cross-examination.”
Such a doctrine valid then continues to be authoritative today.
it cannot be too strongly emphasized that the conviction of the accused may not
be made to rest on depositions or ex parte
affidavits. That would be to reduce to a
barren form of words this constitutional guaranty.
WHEREFORE, the sentence appealed from is reversed and
appellant Felix Lavarias is acquitted. With costs de oficio.
Concepcion, C.J., Reyes, Dizon, Makalintal, Zaldivar, Sanchez, Ruiz Castro and Angeles, JJ., concur.
[1]
Four other persons were likewise accused, the case against one of them, Arcadio de Guzman, being dismissed by reason of his death
and another Anastacio Aquino,
likewise dismissed for insufficiency of evidence after the prosecution had
rested its case. In the decision,
subject of the appeal, two of the other accused, Roberto Mandapat
and Marcelino Mandapat were
acquitted on the ground of reasonable doubt.
[2]
Appendix to Brief for Defendant-Appellant, p. 5.
[3] Ibid,
pp. 5-6.
[4] Ibid,
p. 6.
[5] Ibid,
p. 6.
[6]
T. s. n., Sessions of August 20 and 21, 1964, p. 4.
[7] Ibid,
p. 10.
[8] Ibid,
p. 19.
[9] Ibid,
p. 19.
[10] Ibid,
p. 20.
[11]
T. s. n., Sessions of October 1 and 2, 1964, p. 7.
[12] Ibid,
p. 7.
[13] Ibid,
p. 8.
[14] Ibid,
p. 8.
[15] Ibid,
p. 9.
[16] Ibid,
p. 9.
[17] Ibid,
p. 10.
[18] Ibid,
pp. 10-11.
[19] Ibid,
p. 11.
[20] Ibid,
p. 11.
[21] Ibid,
p. 11.
[22] Ibid,
p. 12.
[23]
3 Phil. 3, 6.
[24]
L-25668, May 2, 1968. Cf.
People v. Delimios, 105 Phil. 845 (1959).
[25]
37 Phil. 449, 451-452.
[26] Dowdell v. US, 221 US
325 (1911).