PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. BIENVENIDO DOMINGUEZ, DEFENDANT-APPELLANT.

Accused Bienvenido Dominguez appeals
from the Judgment of the Court of First Instance of Cavite,
in its Criminal Case No. N-250, convicting him of the crime of murder and
sentencing him to suffer the penalty of reclusion perpetua
and to indemnify the heirs of the victim in the amount of P6,000.00 and to pay
the costs.  The indictment against the
said accused-appellant is a reconstitu­tion of one formerly filed^[1]
that was burned or destroyed along with all court records and those in the
fiscal’ s office when fire gutted the old Capitol building of Cavite City on 7 June 1959, after trial of the case had
commenced.

It is not disputed that around midnight of 24 July 1956, at the
enclosed ground floor of the house of Pedro Camerino
in barrio Medicion, Imus, Cavite, while a group of persons were playing a game of
mahjong or monte^[2]
at a table lighted by a 50-watt bulb with a conical lampshade, a person stepped
inside, pointed a gun and fired several shots at close range at one of the
players, Eduardo Lacson by name.  In the ensuing scuffle, the gun-wielder
disappeared.  First-aid treatment was
administered to Lacson, after which he was brought
that same evening to the Philippine General Hospital in Manila
where he was admitted at 12:55 A. M.
in serious condition.  He was treated
therein for the following injuries:

“Gunshot wounds, multiple, through and through, face;

1.     
Entrance, left malar
– passing through hard palate:

Exit, right cheek;

2.     
Entrance, right antero-lateral, neck;

Exit, left interscapular area (about 4th rib);

3.     
Entrance, right shoulder,
posterior;

Exit, right shoulder,
superior.

OPERATIVE DIAGNOSIS;

Fracture, transverse
process, vertebra T¹, left;

Laceration, spinal cord,
left, postero-lateral portion T¹;

Subarachnoid hemorrhage, marked.

X-RAY Examinations:

July 24, 1956:

Chest shows slight
haziness of apical lung area which can be due to soft tissue super­imposed;

Rest of the lung field essentially clear;

Heart shows congestion of the left ventricular segment.

August 8, 1956:

There is tracheostomy tube in situ;

There are metallic clips in the region of the thoracic third.

OPERATION PERFORMED, July
26, 1956:

Laminectomy T¹ and T²;

Removal bone fragments T¹.”

Lacson was
discharged from the hospital on 16
September 1956, and, in the opinion of the attending physician, the
injuries permanently disabled the patient. 
He was brought home to Imus, Cavite, where he remained
paralyzed and bed-ridden until he died on 5 June 1957, due to heart failure caused by the paralysis
produced by the injuries to his spine.

The trial court found the accused-appellant Bienvenido
Dominguez as the person who intruded into the gambling den and shot Eduardo Lacson based on five (5) considerations, all of which are
assailed as erroneous findings by said appellant in his assignment of
errors.  These considera­tions are as
follows:

(1) the statement of the deceased in the hospital pointing to the
accused as his assailant which statement may very well be considered as an
‘ante-mortem’ declaration, the same having been made by the declarant
under consciousness of impending death; (2) the accused’s
silence when pointed to by the victim on that occasion; (3) the testimony of
Pedro Camerino positively identifying the accused as
the gunwielder; (4) the presence of gun powder
residue in both his hands; and (5) the inherent weakness of his defense, which
is ‘alibi’.” (Decision, Appellant’s Brief, page 97)

The prosecution also showed that in Criminal Case No. 235 of the
Justice of the Peace of Kawit, the deceased Lacson had been charged with physical injuries, for mauling
and assaulting appellant Dominguez a few months before the shooting, but Lacson was acquitted (Exhibit “H”).

In his appeal brief, accused-appellant lays considerable stress
on the fact that while prosecution witness Pedro Camerino,
in his testimony in chief, asserted that on the midnight in question, while he
was at the ground floor of his house with about 15 persons, the deceased
Eduardo Lacson among them, playing monte, the accused Bienvenido
Dominguez entered, approached the gambling table and shot Lacson,
who was seated just across the table; that Camerino
told the people not to touch anything while he called for the police; that a
policeman and PC Sgt. Desalla arrived and took down Lacson’s declaration; then Lacson
was brought to the Philippine General Hospital; and that while in the hospital,
Lacson pointed to the accused (who was brought
thither by some PC soldiers) as the person who shot him; yet in the course of
his cross-examination, witness Camerino  testified that he did not actually see Bienvenido Do­minguez fire at Lacson;
that he had previously testified that he saw Dominguez shoot Lacson because that was what other people told him and that
he merely thought it was Dominguez because he knew him to be an enemy of Lacson.

Nevertheless, the trial judge discounted Camerino’s
about face because the retraction came only after a long recess, and his direct
testimony tallied with his statement given to PC investigator Liberato Tamundong, shortly after
the crime was committed, and later subscribed and sworn to before judge Joaquin
Parcero^[3],
wherein Pedro Camerino positively stated that he saw Bienvenido Dominguez fire at Lacson.  We see no reversible error in this
appreciation of the trial court, considering its opportunity to closely observe
the witness, and the fact that Camerino’s original
identification of the appellant herein as the gunman is supported by other circumstances
of record.  Nor was the recognition made
incredible by the concentration of the lamp’s light on the gaming table, for
the surface of the latter could reflect sufficient light into the room to
render appellant’s recognition by Camerino and the deceased
entirely possible.

Thus, the assistant PC provincial commander at the time, Major Dawa, testified that at the Philippine General Hospital he
brought accused-appellant close to the victim and inquired from the latter
whether the accused was the one who did the shooting, and Lacson
answered in the affirmative without the accused making any denial of the
imputation.  The paraffin cast of appel­lant’s
hands were found by Captain Crispin B. Garcia to be positive for gunpowder
residues, and no reason is shown why these peace officers, Major Dawa and Captain Garcia, should falsely impute the crime to
the appellant herein.  Finally, appellant
had a motive to commit the crime, since it was shown that the deceased Lacson had mauled the appellant herein a few months before
the shooting, and for which Lacson was charged by the
accused with the crime of physical injuries in the Justice of the Peace Court
of Kawit, in Criminal Case No. 235 of that
court.  That Lacson
was ultimately acquitted would in the normal course of events, all the more
enhance appellant’s animosity against the deceased.

To be sure, appellant denied that he was identified by the
deceased at the hospital, and likewise contradicted harboring any grudge
against the late Lacson.  The trial court, however, refused to accord
credence to his manifestly interested denials, as against those of the peace
officers, and We see no reversible error in such estimate of the credibi­lity
of the opposing testimonies.

The accused-appellant also urges that the testimony of expert
Garcia should be discounted, arguing that Garcia was not the one who made the
paraffin casts.  This pretense is,
however, destroyed by appellant’s own attempts to explain the powder traces
appearing in the casts, by his uncorroborated explanation that he had been
handling matches and lighting rockets (Kuitis) prior
to the examination, which in itself is an implied admission that the paraffin
casts examined by the chemist were those of appellant’s hands.

We agree with herein appellant that the court below erred in
holding the transcription of Lacson’s declarations in
the Hospital, written down by Major Dawa and thumbmarked by the victim (Exhibit “D”), to be
admissible as a dying declaration.  Not
only was there a long in­terval (ten months and twelve days) between its
execution on 24 July 1956 and declarant’s death on 5
June 1957, but also the text of the declaration itself shows that the declarant himself was in doubt as to whether he would die
or not.  The main text of Exhibit
“D” is as follows:

“Bienvenido
Dominguez Body Guard of Elano Artemio
We had a case.  He was defeated.  I don’t know if I can make it I was shot at Medicion.  I was
playing madjong. Pedro Camerino
saw him and Marcial Campana.  I want him apprehended and imprisoned.

Q    Is he the very person?

A     Yes, sir.

Q    Do you know his name?

A     He is Bienvenido
Dominguez.

Q    How do you know him?

A     He was near me.”

Note that the expression “I don’t know if I can make
it”, while evincing some doubt as to declarant’s
recovery, fails to show that he believed him­self in extremis, “at
the point of death when every hope of recovery is extinct”, which is the
sole basis for admitting this kind of declarations as an exception to the
hearsay rule.^[4]
The unreliability of the alleged dying declaration is further emphasized by the
statement therein that declarant was playing mahjong,
when the evidence of both defense and prosecution is overwhelming that the game
being played was monte, cards and not mahjong
tiles having been found on the table by the PC investigator, Sergeant Tamundong.  The
error, however, in admitting this Exhibit “D” does not warrant a
reversal of the conviction, there being on record other evidence, both direct
and circumstantial, previously discussed, adequate to establish appellant’s
guilt beyond reasonable doubt.

Appellant’s defense of alibi and the credibility of his witnesses
is urged in the eighth assignment of error of his brief.  The version is that the accused-appellant
was, at the time of the shooting, in the house of his “ninong“,
Artemio Ilano; Ilano and his family had gone to see movies, leaving the
accused to watch the house; when the Ilano family
returned at eleven o’clock in the evening, the accused went to his room at the
ground floor.  Ilano
read for sometime, then went up to sleep, telling accused Dominguez to do
likewise.  Moments later, Ilano heard the closing of the door downstairs and presumed
that Dominguez had gone to bed.  At about
2:00 o’clock in the morning, PC
soldiers led by the then Provincial Commander arrived, and, after ex­plaining
their purpose, brought Dominguez away.

Aside from the weakness of the defense of alibi, as repeatedly
held by this Court, appellant’s version of his whereabouts has wide-open leaks
that discredit it.  For Ilano’s house was only about a kilometer away from the
scene of the crime; and there is no certainty that when Ilano
heard the closing of the door at the ground floor Dominguez was inside the
room, for the sound of a closing door is consistent with the possibility that
he had left the house thereafter to proceed to Camerino’s
house.

The same doubtfulness attends the testimonies of defense
witnesses Ricardo Sañez and Eduardo Santos to the
effect that they were present during the gambling game, had witnessed the
shooting but did not recog­nize the shooter because of the darkness but that
they were certain that it was not the accused. 
The court below aptly remarked on his point, “if they could not
recognize the malefactor because of the darkness, how can they say also with
certitude, that it was not the accused?”

In accordance with recent jurisprudence, starting with People vs.
Pantoja, L-18793, 11 October 1968, 25 SCRA 468, the amount of
indemnification to the heirs of the deceased should be increased to P12,000.00.

FOR THE FOREGOING REASONS, the appealed de­cision is
hereby affirmed, with the sole modification that the indemnity to the heirs of
Eduardo Lacson be in the amount of P12,000.00.  Costs against accused-appellant.

Concepcion, C.J., Makalintal,
Zaldivar, Ruiz Castro, Fernando, Teehankee,
Barredo, and Villamor, JJ., concur.

Dizon and
Makasiar, JJ.,
on official leave.

^[1]
Criminal Case No. 12382, according to appellant, see Appellant’s Brief, page 7.

^[2] As
to which game was actually played the evidence is not uniform.

^[3]
Exhibit “A”.

^[4] U.
S. vs. Gil, 13 Phil. 530; People vs.
Babiera, 52 Phil. 97; People vs. Alviar, 56 Phil. 98, 100; 5 Moran, Comments on the Rules of
Court, pages 2 81-2 82, fn. 12 to 15.