THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ULPIANO YARCIA AND MACARIO OLIVO, ACCUSED-APPELLANTS.

In Criminal Case No. 206-G of
the defunct Court of First Instance of Nueva Ecija, ULPIANO YARCIA, MACARIO
OLIVO and SERVILLANO APOLINADA were accused of murder said to have been committed as follows:

“That on or about the 22nd day of January, 1965, in the
municipality of Talugtog, province of Nueva Ecija, Republic of the Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring together and mutually aiding one another, with intent to kill and
with treachery and evident premeditation, did then and there willfully,
unlawfully and feloniously hit one Leonardo Bercasio with a piece of wood on
the head causing him to fall and while lying on the ground shoot him, thereby
inflicting upon the said Leonardo Bercasio mortal wounds which caused his instantaneous
death.” (Expediente, p. 43.)

After the accused had been tried on pleas of not guilty, the
trial court rendered the following judgment:

“WHEREFORE, finding the accused Macario Olivo and Ulpiano Yarcia guilty beyond reasonable doubt
of the crime of murder as charged in the information, the Court sentences each
of them to LIFE IMPRISONMENT or RECLUSION PERPETUA, to suffer the accessories
provided for by law, to indemnify the heirs of Leonardo Bercasio in the sum of P12,000, and to pay one-third
(1/3) of the costs. The Court acquits Servillano Apolinada on reasonable doubt
with proportionate costs de oficio.” (Expediente, p. 352.)

The court a quo rationalized its judgment in the
following words:

“In this case, there is no
evidence of cons­piracy entered into by the three to do away with
Leonardo Bercasio. In the absence of conspiracy, each of the accused must be
responsible for the particular acts done by each of them. In this case, Macario
Olivo and Ulpiano Yarcia are responsible for the death of Leonardo Bercasio because Olivo shot the latter with a
short firearm while Ulpiano Yarcia hit Bercasio on the head, and Servillano
Apolinada did nothing but just held
the legs of Leonardo Bercasio while this was lying on the ground and this act
of Servillano Apolinada, in the opinion of the Court, does not constitute an
overt act as to make him equally responsible, for the death of Leonardo
Bercasio. The Court is convinced that Ulpiano Yarcia and Macario Olivo are
guilty of the crime of murder as charged in the information while Servillano
Apolinada is innocent thereof.” (Expediente, pp. 351-352.)

Yarcia and Olivo appealed
their conviction which they claim is contrary to law and the evidence. They
were released on bail before their conviction; they were released on bail by
this Court during the pendency of their appeal.

The People’s version of the facts is as follows:

“At about 2:00 p.m. of January 22, 1965, Ernesto Tabago was in
barrio Saguing, Municipality of Talugtog, Nueva Ecija, on his way to deliver
pro­visions to his mother (pp. 4-5, t.s.n., Dec. 20, 1966). He saw Leonardo
Bercasio, a farmer, who had a hut in the barrio, pasturing his carabao (pp. 5-­6,
t.s.n., Dec.
20, 1966). After delivering food to his mother, at about 5:30 p.m.,
Tabago was on his way back to the poblacion when in the same barrio he saw at a
distance of 25 meters on a pathway Leonardo Bercasio being attacked by Ulpiano
Yarcia and Macario Olivo, appellants herein (pp. 6-10, 12­-14, 18-19, t.s.n.,
Dec. 20, 1966). With the latter two, Tabago was familiar with being residents
of Talugtog, the same place where he (Tabago) lived (pp. 3-4, t.s.n., Dec. 20,
1966). Appellant Yarcia, standing at the back of Leonardo Bercasio struck the
latter with a piece of wood on the head (p. 7, t.s.n., Dec. 20, 1966). Bercasio
thereupon fell down to the ground, and thus fallen, appellant Olivo with a
‘short firearm’ fired at Bercasio, the bullet hitting him on the head (p. 14,
t.s.n., Dec. 20, 1966). Noticing the presence of Tabago at the scene, appellant
Olivo approached Tabago and warned him not to inform Bercasio’s relatives or
the police authorities of what he had seen otherwise he (Olivo) would kill him
(p. 14, t.s.n., Dec. 20, 1966). Afraid of the threat, Tabago remained silent,
not until September 1965, bothered by his conscience, when he went to report to
the police of Talugtog of the killing incident of January 22, 1965 and
identified the culprits to be appellants Olivo and Yarcia (pp. 15-16, 20-22,
t.s.n., Dec. 20, 1966).

“On January 23, 1965,
Jesus Bercasio came to know of the death of his father, Leonardo
Bercasio (p. 2, t.s.n., Oct. 18, 1967). He and a younger brother, Alfredo
Bercasio, went to their hut in barrio Saguing and found their father (Leonardo)
lying dead on the floor, with a bullet wound on the head (pp. 2-3, t.s.n., Oct.
18, 1967). When Alfredo Bercasio first saw their father, he thought that the
latter was sleeping and removed the firearm
placed on his father’s chest with his arm across it (p. 3, t.s.n., Oct. 18,
1967; p. 2, t.s.n., Jan. 17, 1968). The said firearm belonged to the deceased
Leonardo Bercasio (p. 3, t.s.n., Oct. 18, 1967).

“The dead body of Leonardo Bercasio was autop­sied by Dr.
Nicetas Cuyco, Municipal Health Office of Guimba, Nueva Ecija (p. 2, t.s.n.,
Jan. 31, 1967). From the head of the victim, the doctor extracted a .22 caliber
slug (p. 9, t.s.n., Jan. 31, 1967). The necropsy report, Exhibit A, which the
doctor prepared, reads as follows:

‘AUTOPSY
REPORT

‘This is to certify that I have made an autopsy on the body of the
deceased LEONARDO BERCACIO, middle age, Pilipino, male of Talugtug, Nueva Ecija at 8 o’clock A.M. yesterday,
Sunday, January 24, 1965 in the presence of the Chief of Police of said town
and one Patrolman with the following findings;

January
23, 1965 – Ocular inspection at around 7 o’clock P.M.

1. Body was pale and rigid. He died about
Ten (10) to Twelve (12) hours ago.

2. Gunshot wound, temporal region, right
with marked powder burns around the wound.

3. Contusion with marked hematoma, right
temporal region.

4. Contusion with hematoma, right
shoulder.

5. Contusion, neck, nape.

6. Contusion, back, upper middle portion.

January 24, 1965 – Upon opening the head

1. Fracture of the skull, temporal bone
extending to the middle fissure from the right.

2. Gunshot, thru and
thru the skull passing thru the cerebrum and exit at the occipital region, slug
imbedded in the scalp at the occipital region (Entrance hole about .22 of an
inch upon measurement).

The deceased died of
MASSIVE HEMORRHAGE, secondary to GUNSHOT WOUND, temporal region, right and
FRACTURE OF THE SKULL, temporal bone, right.

NICETAS D. CUYCO,
MD.

Municipal Health
Officer (pp. 3-4, t.s.n., Jan. 31, 1967).’

“The doctor opined that when he first examined the body at
about 7:00 p.m. of January 23, 1965, it was already in rigor mortis. He
concluded that the victim must have been dead already for some 10 to 12 hours
(pp. 4-5, 10, t.s.n., Jan. 31, 1967).

“Jesus Bercasio was investigated by the police, and in his
investigation he informed the latter that the persons who had threatened and
with whom his father had quarelled were Ulpiano Yarcia and Mauro Olivo (p. 4,
t.s.n., Oct. 18, 1967). At one time in 1964, according to Ernesto Bercasio,
their carabao was missing, and his father found appellant Yarcia riding on it
(p. 6, t.s.n., Oct. 18, 1967). Yarcia running away left the carabao behind, but
not without issuing the warning to his father ‘you shall have a day’ (p. 6,
t.s.n., Oct. 18, 1967). Ernesto Bercasio also said that his father quarreled
with appellant Olivo because Olivo’s carabao destroyed their plants (p. 6,
t.s.n., Oct. 18, 1967). When his father asked Olivo to take care of his carabao, the latter got angry (p. 6, t.s.n.,
Oct. 18, 1967). One week before the death of his father, Olivo and Yarcia
passed by their house and said that if Leonardo Bercasio would not leave the
land he was tilling Leonardo would not be in the farm next year. (p. 7, t.s.n.,
Oct. 18, 1967).” (Brief, pp. 2-5.)

Both appellants
interposed the defense of alibi during their trial. Yarcia said that he was not
in Barrio Saguing in the afternoon of January 22, 1965, but in the house of
former Captain Victor Baniaga. Olivo also claimed that he was not in Barrio
Saguing that afternoon of January 22, 1965. Like Yarcia he said he was in the
house of Captain Victor Baniaga of District I. But the trial court rejected
their alibi. It said that the distance between District I and Saguing is only
four kilometers so that “they could still leave the house and proceed to
Saguing in a very short time.” The trial court also said: “Moreover, this
claim of alibi is hardly believable for it is inconceivable that these three
accused would stay in the house of Victor Bañaga three days and three nights
continuously without doing anything but gambling and gambling. Even inveterate
gamblers would not last that long for three successive and continuous days and
nights, that is, from January 21, 22
and 23, 1965, without leaving for a moment the game, and it has not been
established that the house of Victor Bañaga is a gambling casino.” (Expediente,
pp. 346-347.)

In their appeal, Yarcia
and Olivo have abandoned the defense of alibi. Instead they claim that the trial court committed the fol­lowing
errors:

“I. 
The learned trial court erred in giving credence to the testimony
of the alleged lone eye­witness for the prosecution inspite of the date of
death as stated in the autopsy report which is Exhibit A of the prosecution and
corroborated by Exhibit 5-A stating, among other things, that the deceased died
on January 23, 1965.

“II.  The
learned trial court erred in giving weight to the testimony of the alleged lone
eye­witness inspite of the circumstances surrounding his testimony because he
saw that the crime was allegedly committed in the afternoon of January 22, 1965
but divulged the same to the authorities only on September 28, 1965.

“III. That the learned trial court
further erred in not acquitting the remaining defendants-appellants while it
acquitted the third defendant Servillano Apolinada when the evidence against
all of them is the same, by simply making the obser­vation that there was no
proof of conspiracy.

“IV. The learned trial court erred
finally in convicting the defendants inspite of the inadequacies and
inconsistencies of the evidence for the prosecution.” (Brief, pp. 1-2.)

The main thrust of the
appellants is to impugn the credibility of the lone eye-witness to the killing
– Ernesto Tabago.

Item: According to
Tabago, Leonardo Bercasio was killed by the appellants late in the afternoon of
January 22, 1965. The appellants claim that Tabago lied because Bercasio died
on January 23, 1965. The appellants support this claim by citing Exhibit A, the
necropsy report.

Exhibit A is dated
January 25, 1965. It states that Dr. Cuyco saw the body of Leonardo on January
23, 1965, at around 7:00 P.M. and that death was “about Ten (10) to Twelve
(12) hours ago.” From this the appellants conclude that Leonardo died not
on January 22 but on January 23, so Tabago lied. Not necessarily. Dr. Cuyco
merely expressed an opinion; he was
not actually present when Leonardo was killed. Upon the other hand Tabago was
there. Between one who gives an opinion and another whose evidence is based on
actual knowledge there can be no doubt that the latter is more reliable.

Item: The appellants also
aver: “The testimony of Ernesto Tabago is also improbable because
according to him the place where he saw the killing was plain and he could see
the place where the killing took place at a distance of one-half kilometer, and
that it is only about 25 meters from the pathway. It is respectfully submitted
that these people are unusual murderers. They commit a murder near a pathway
without cover and not only without cover but without even a lookout.”
(Brief, pp. 10-11.) This claim is purely conjectural. It is to be noted that
the killing took place late in the afternoon, about 5:00 p.m., and in an
isolated place. There was no need for either cover or a lookout. As the
People’s brief states:

“x x x As a matter of fact, from the place
where the deceased was assaulted to his hut in the barrio was about half a
kilometer (p. 20, t.s.n., Dec. 20, 1966). And yet, the deceased was found dead
on the floor of his hut, and no one apparently saw anybody bring him thereto where he was left embracing a firearm to give a
semblance that he committed suicide. The point here is that if the deceased
could be brought to his hut without anyone noticing the persons who
carried him, the scene of the killing must
have been an uninhabited place, an ideal place for the appellants to perpetrate
the com­mission of the crime confidently thinking that they could get away with
it.” (At p. 8.)

Item: According to
Tabago, the deceased was shot with a “short arm.” But the appellants
claim that the deceased could have been shot with his own .22 rifle. They ask
why the slug recovered from the head of the victim was not subjected to
ballistic tests. This argument is also conjectural and deserves scant
consideration. Tabago testified affirmatively that a short arm, not a rifle,
was used. A ballistic test was unnecessary.

Item: Ernesto Tabago saw
the killing on January 22, 1965, but it was only in September of the same year
when he reported it to the police and identified the assailants. In the
meantime, on February 5, 1965, Olivo had a brawl with Ernesto and his relatives
during the town fiesta of Talugtog. This resulted in charges and counter­charges
between the two factions. The appellants ask: if indeed Ernesto was afraid to
report the killing because of the threat made, why was he brave enough to brawl
with appellant Olivo? The answer lies in the fact that when the brawl took
place Ernesto was not alone; he was with others, a circumstance which must have
emboldened him. About his fear for Olivo, Ernesto said:

“ATTY.
AGANON:

Q      After the fight by Olivo as being asked of you by defense counsel, why did you
not reveal immediately after the fight with Olivo?

A       Because
I was afraid, sir, because I know that they can kill people and the people of
Talugtog know that they are notorious (loko).”

(TSN,
Dec. 20, 1966, p. 22.)

Ernesto’s fear was
well-founded for Olivo, on
cross-examination, admitted that he had been convicted of a crime in
Isabela for which he had to serve time in Muntinlupa and in Iwahig Penal
Colony.

In cases where the
credibility of witnesses is the only issue on appeal, the rule is well-settled
“that conclusions and findings of fact by the trial court are entitled to
great weight on appeal and should not be disturbed unless for strong and cogent
reasons, because the trial court is in a better position to examine real
evidence, as well as to observe the demeanor of the witnesses while testifying
in the case.” (People vs. Balili, L-38250, August 6, 1979, 92 SCRA 552.) The
rule is applicable in the case at bar.

WHEREFORE, finding no error to have been committed by
the court a quo its judgment is affirmed with the sole
modification that the indemnity of P12,000.00 shall be paid in solidum
by the appellants. Costs against the appellants.

SO ORDERED.

Makasiar, (Chairman), Aquino, Concepcion, Jr., Guerrero, and Escolin, JJ., concur.

De Castro, J., on sick leave.