THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. CRISTITUTO LARIOSA ALIAS “TOTOT”, ACCUSED-APPELLANT.

Cristituto Lariosa
alias “Totot” appeals from the decision of
the Court of First Instance of Zamboanga del Norte
convicting him of the crime of murder and sentencing him to reclusion perpetua, and to indemnify the
heirs of the victim; P10,000.00 for moral damages; P10,000.00 for exemplary
damages and P10,000.00 for the loss of earning capacity and P5,000.00 for
actual damages, without subsidiary imprisonment in case of insolvency by reason
of the nature of the penalty imposed upon him and by operation of law, and to
pay costs.

As recited in the People’s brief, the facts as established by the
prosecution’s evidence, upon which the judgment of conviction was based, are as
follows:

“On September 17,
1972, at around 7:00 o’clock
in the morning, Fernando Adaro, a 19 year old farmer,
was in the ricefield of Primitivo
James, alias Tivo,
in Sinaman, Dipolog City,
driving maya birds therefrom.  Shortly thereafter, Primitivo
James arrived and joined Adaro in driving the maya birds from the ricefield (p.
9, tsn, January 17, 1973).  Primitivo James
stayed in the ricefield the whole day, and at 5:00 o’clock in the afternoon, he left for
home, telling Adaro that he would go ahead as Dipolog was quite far. 
Adaro saw him leaving the ricefield,
taking the upward trail toward the national road (p. 10, tsn,
ibid).

“Suddenly thereafter, Fernando Adaro
heard three gun reports coming from the direction of the hillside trail.  When he turned his face and looked towards
the upper portion of the trail where Primitivo James
already was, Adaro saw Cristituto
Lariosa, alias “Totot“,
standing about two fathoms away from Primitivo
James.  The appellant was holding a long-barrelled gun pointed at Primitivo
James, and he saw him shoot the latter.  Primitivo James retaliated and fired back, but the appellant took to his heels and remained unscathed
(pp. 11-12, and p. 20, tsn, ibid).

“The wounded victim retraced his steps to the ricefield (p. 12, tsn, ibid), and
forthwith, Fernando Adaro went to meet him.  Primitivo James
told Adaro that he was shot by Totot,
and in addition, he said “Bay, maybe I will be dying of these
wounds”.  Adaro
saw at once that Primitivo James sus­tained wounds on
his arms and on his abdomen (p. 13, tsn, ibid).

“Adaro has known Totot
for a long time, because he is the common-law husband of one of the daughters
of the victim (p. 14, tsn, ibid).

“Immediately, Fernando Adaro helped Primitivo James go to the national road, and on their way,
they met Eleno Solarte, the
barrio captain of Sinaman, Dipolog City,
Adaro and the barrio captain then loaded the victim
on a motorcab and brought him to the clinic of Dr.
Ames (Ibid).  The victim also told Eleno Solarte that probably he
would die of his wounds, and that he was shot by Cristituto
Lariosa.  In
response, the barrio captain told the victim to hold his breath as much as possible until they reach the
doctor’s clinic (p. 15, tsn, ibid).

“Upon arrival at the doctor’s clinic, Dr. Ames asked Primitivo James who shot him, and the latter, who could
still talk but already in a low voice, answered, “I was shot by Totot in barrio Sinaman.”
(Ibid).

“Meanwhile, at about 6:00
o’clock that same evening, the Mayor of Dipolog
City received a report that Primitivo James was
shot.  In immediate response, he summoned
Lt. Ciriaco Gonzales, the Deputy Chief of Police of
the Dipolog City Police Force, and instructed him to
proceed to the clinic of Dr. Ames to investigate (pp. 41-42, tsn, ibid).  He took
the ante-mortem statement of Primitivo James wherein
the following questions and answers were included:

Question No. 2 “Why are you in this
hospital?”

Answer: 
“I was shot in Sinaman.”

Question No. 3 “Who shot you?”

Answer: 
“Cristituto Lariosa.”

Question No. 7 “Do you know why he
shot you?”

Answer: 
“Because he has an axe to grind against me.”

Question No. 8 “Do you think you
will die as a result of your injuries?”

Answer: 
“I think I will die.” (Exhibits D, D-1, D-3, D-5, & D-6;
pp. 43-44, tsn, ibid).

The ante-mortem statement which was
identified on the witness stand by Lt. Gonzales was witnessed by Engr. Miranda (Exhibit D-9; p. 45, tsn,
ibid and pp. 4-6, tsn, March 12, 1973).  It bears the bloodstains of the victim on the
right hand corner thereof (Exhibits D-10 and D-11), as testified to by Lt.
Gonzales (p. 46, tsn, ibid).

“Primitivo James was transferred to
the Chung Hua Hospital
in Cebu City
(p. 53, tsn, February 22, 1973; & p. 7, Decision,
Rec.) where he expired on September
19, 1972, due to “general peretonitis
secondary to gunshot wounds”, as evidenced by his death certificate
attached to the records as Exhibit F.  He
was buried in Sangkol,
and his burial was attended by witness Fernando Adaro
(p. 16, tsn, January 17, 1972).

“At the time of his death, the victim was a barrio captain of
Barrio Sangkol, Dipolog City,
and he was the lone support of 12 children (pp. 12-17, tsn,
March 12, 1973).  The widow of the deceased, Heronica James, testified that at the Ames Clinic,
she spend P550.00; at the Chung Hua Hospital,
P2,845.00; for embalming the body of the victim, P750.00; for subsistence when taking care of the victim,
P300.00; boat fare for her and the body of the victim, P30.00; for funeral expenses,
P800.00 and incidental expenses, P172.00, so that she is asking the court to
sentence the appellant to pay P20,000.00 as actual and compensatory damages,
and P40,000.00 as moral damages (pp. 17-18, tsn,
ibid).

“The post-mortem examination (Exhibit A) con­ducted by Dra. Leorosa Orendain,
Rural Health Physician of Katipunan, and the PHO Form
No. 2, or the diagram of the body of the victim (Exhibit B), show that Primitivo James sustained a bullet wound on the abdomen
which was fatal, as it perforated the intestines (pp. 37-38, tsn, February 22, 1973), and three other bullet wounds on
the left wrist, on the left forearm, and on the left arm (Exhibits B-3, B-5,
& B-7; pp. 38-39, tsn, ibid). Dra.
Orendain was able to extract a slug from the body of
the victim (Exhibit C-1; p. 37, tsn, ibid).

“At least two witnesses, namely, Pablito
Lumactod, a security guard of the Dumingag
Timber Corporation, and Silvino Lacaya,
a provincial guard of Olingan, Dipolog
City, testified that they saw Cristituto Lariosa board a logging truck of the Dumingag
Timber Corporation, first at Malala, Polangco, Zamboanga del Norte,
then at Maligaya, Sergio Osmeña,
Sr., going towards the cutting area, and travelling
away from Dipolog City, in the early morning of Sept.
18, 1972 (pp. 2-5, tsn, Jan. 17, 1973; and pp. 23-24,
tsn, ibid).  Lumactod stated that he
has known Lariosa for a long time, because he
used to see him (Lariosa) hunting or inspecting with
the Governor (p. 4, tsn, ibid). Silvino
Lacaya, on the other hand, testified that he came to
know Lariosa when the latter was accused of the crime
of robbery and was committed at the provincial jail in Katipunan,
Zamboanga del Norte (p. 25, tsn,
ibid).

“Prosecution evidence likewise show that Lariosa
was also detained once at the Dipolog
City jail for Frustrated Murder,
the complainant of which was Primitivo James, the
same victim of murder in this case (p. 47, tsn, February
22, 1973).  In the investigation
conducted in connection with said Frustrated Murder case, Cristituto
Lariosa admitted that he was not in good terms with Primitivo James, because the latter was objecting to his
marrying Primitivo’s daughter Helen James (p. 51, tsn, ibid).  Lariosa also executed an extra-judicial confession, Exhibit
E, wherein he admitted the attempt
he made on the life of Primitivo James sometime in
April 1972, or only five months previous to the killing of the same vic­tim
(pp. 47-51, tsn, ibid).^[1]

In his three assignments of errors, appellant assails the trial
court’s assessment of the evidence particularly the ante-mortem declaration
(Exhibit D)^[2]
of the deceased and the testimony of Fernando Adaro,
the eye-witness to the shooting, who saw appellant fire at the victim.

In impugning the credibility of the ante-mortem declaration
(Exhibit D), appellant contends that the deceased could not have seen his
assailant to be able to name him. 
Appellant would back up this assertion with the relative positions of
the entrance and exit of the wounds sustained by the deceased, Primitivo James, to show that his assailant was at his
back, not in front of him.  The assailant
then ran away so fast that the victim was not able to recognize him even as the
deceased tried to turn around to see who fired at him from behind in quick
succession.

The attempt of appellant to show that the assailant was at the
back of the deceased, unseen by the latter when he first fired, and
unrecognized when he turned around to run away from sight, is effectively
foiled or frustrated with how the Solicitor General very persuasively demonstrates,
with the same means as those resorted to by appellant, that the assailant was
not at the back of the victim, but in front of him, as the eye-witness,
Fernando Adaro, so testified when, he pointed to
appellant as the gunman.  Thus, to quote
from the appellee’s brief:

“x x x It
will be clearly seen from the position of the injuries sustained by the victim,
as enumerated and reproduced by the appellant in his brief (pp. 6-8, ibid) ,
that the gunshot wounds inflicted on Primitivo James
were frontal in nature.  Wound No. 1 in
the post mortem findings is on the abdomen of the deceased, at 45 degrees angle
from the umbilicus (p. 6, ibid).  The
wounds on the left wrist and left forearm were from the dorsal to the ventral sides,
while the wound on the upper left arm is from the ventral to the dorsal
side.  Analyzing the relative positions
of the entrance and exit of the wounds, and the trajectory of the bullets which
admittedly indicates that they were fired from a higher elevation than the
place where the victim was at the time (p. 9, Appellant’s brief), we are of the
opinion that the victim was fired upon as he was negotiating the upward trail,
and that his assailant was in the upper portion of the trail, a little to the
right side of the victim.  This is borne
out by the wound on the upper left arm of the victim, the entrance of which is
on the ventral side.  We contend that
this was the first wound inflicted, and by reflex action, out of pain, the
victim who was then in a walking position, bent his arm and rested his left
forearm on his abdomen.  This explains
the entrance wounds on the dorsal side of the mid-forearm and on the left wrist
of the victim.  x x
x“^[3]

A careful analysis of the
foregoing exposition by the Solicitor General on how the shooting took place,
particularly the relative positions of the gunman and the deceased, as well as the comparative elevation of their respective positions at the time
of the firing, would show a greater degree of plausibility of the theory of the
prosecution than that of the defense which is explained in appellant’s brief as
follows:

“Now, from the relative positions of the entrances and exits
of the four bullet-wounds on Primitivo James, let us
now reconstruct how James moved and reacted upon having been shot by his
assailant.  Primitivo
James, upon having been hit and wounded on his left arm by the first three bullets, he may have made a swift clock-wise
turn or from left to right movement to face his assailant.  However, when Primitivo
James was a bit more than one-half (1/2) of his pivoted turn, he was hit by the
last and fourth bullet by his assailant on the right hypochondriac, (Exhibit
‘B-1’), penetrating through the small intestines.  It is obvious, that the assailant of Primitivo James fired his gun in rapid succession, (t.s.n., p. 19, Jan.
17, 1973).  Because, the
incident was too fast and momentary. 
Hence, we respectfully submit, that under the above momentary movements
of the assailant and the assaulted, Primitivo James could
not have recognized his assailant, who turned his back
and ran away as soon as James was in a turning position to face his supposed
assailant.  And that is the reason when Primitivo James retaliated and fired his magnum revolver at
his assailant for four (4) times, (t.s.n., p. 19,
Jan. 17, 1973), yet he was not able to hit his assailant; and his assailant
must have been at a longer distance from James. 
We respectfully submit, therefore, that neither Fernando Adaro nor Primitivo James could
have recognized the real assailant of the latter.  Due to the simple reason that the incident of
shooting took placed not on the upward trail on the hill, but on the downward
trail of the same (see Finding No. 3 or Exhibit ‘B-3’, the trajectory of bullet
was downward), Fernando Adaro who was on the side of
the upward trail of the hill could not see the other side of the hill nor the
people thereat.  Thus, his testimony that
he saw the accused, Cristituto Lariosa
shoot Primitivo
James could not have any factual truth. 
Again, we respectfully submit that Primitivo
James would not likewise be able to identify
his assailant, due to the fact that Primitivo
James was shot in four rapid successions while his back was turned toward his
assail­ant.  The shooting was so fast and monetary, that when he was
about to come face to face with
his assailant, the latter turned and ran away. 
x x x“^[4]

As may be seen, appellant’s theory is pure speculation, wanting
in any corroboration which the prosecution’s theory counts with, from the
testimony of Fernando Adaro that he heard only three
shots before the victim fired back, although four wounds were sustained.  One shot could have caused two wounds, the
wound on the left wrist and that on the abdomen.  Taking a downward trajectory from the higher
elevation it was fired, the bullet hit the left wrist of the victim resting on
his abdomen as a reflex action after the first wound on the upper left arm was
inflicted.  A direct corroboration is, of
course, Adaro’s eye-witness testimony pointing to the
appellant as the gunman, having seen him holding a long-barrelled
gun, pointing it and shooting at the victim. 
(pp. 11-12; 20, t.s.n. January 17, 1973).

Equally strong evidence against the appellant, if not even
stronger, is the ante-mortem declaration of the deceased, in which he named
appellant as his assailant (Exhibit D),^[5]
which is the document to which was reduced his statement first, to Adaro, to whom he said with his wounds, he was going to
die, next to Barangay Captain Solarte,
then to Dr. Ames, and finally, to the Deputy Chief of Police, as he
progressively neared death, that appellant was the person who shot him.  Thus, even as mere res
gestae, the declaration would be of similar
probative value.  Hence, it is evidently
futile for appellant to assail the dying declaration of the deceased with his
assertion that it was motivated by the victim’s hatred against him for having
taken his daughter as a common-law wife and his desire to put an end to the
disgraceful relationship.

In the first place, the deceased was not shown to have done
anything before the fatal shooting incident against appellant indicative of the
existence of the alleged, motive against him by the deceased.  That the relationship came into being at all
would rather show that the victim’s attitude towards said relationship was one
of passive indifference, not of active disapproval or determined opposition
that could nurse a motive as that appellant would attribute to the deceased.

In the second place, having made the declaration at the point of
death, the truth thereof can hardly be disputed with the well-known verity that
truth lies in the lips of a dying man. 
And even if a grudge dwelt in his heart against appellant, forgiveness would
instantly replace it to generate the sentiment and wish to speak nothing but
the truth as one closes his eyes in death.

What is apparent from the evidence is the existence of a motive
on the part of appellant to do away with Primitivo
James, the deceased.  It appears that he
had made an earlier attempt against the life of the deceased, committed on
April 3, 1972, because of the latter’s objection to appellant’s marriage to Jame’s daughter, Helen James.  He made a confession of the criminal act, for
which he was charged with frustrated murder, although the case was dismissed
for lack of corroborative evidence.

Appellant also tried to discredit the eye-witness testimony of Adaro by asserting that the latter could not have seen the
incident because it took place
at the side of the hill opposite
that where Adaro stated he was.  From what has been said earlier that
appellant frontally inflicted the wounds, not from behind as claimed by
appellant, this contention seeking to dispute the truth of Adaro’s
testimony finds no factual basis.  In
fact, on ocular inspection as requested by the defense itself, the trial court
found against the claim of appellant that Adaro could
not have seen who the assailant of Primitivo James
was.  Thus, the trial court said in its
decision:

“After the trial was terminated, the defense asked for an
ocular inspection claiming that witness Adaro could
not have seen the incident because it happened more than two kilometers away
from the camarin where witness Adaro
claimed he was at the time of the shooting. 
At the inspection which was conducted by the Court, neither counsel for
the accused nor any representative of the accused appeared.  The prosecution was represented by the
prosecuting fiscal, Arquipo La Adriatico.  From actual ocular inspection, the place
where the shooting took place, according to this witness Adaro,
was about 50 to 60 meters away from the camarin and
even at the time when the inspection was conducted when the hillside was quite
grassy, it is possible that the assailant in that incident could have been seen
by witness Adaro because from the place where the
assailant allegedly stood, the camarin and the spot
under the camarin where the witness was allegedly at,
at the time, was visible to the Court.  Adaro on his testimony on the ocular inspection declared
that the hill-side was then cleared because it was newly planted to
cassava.”^[6]

With all the positiveness with which
appellant was identified as the killer of Primitivo
James, consisting of the testimony of eye-witness Fernando Adaro,
and the ante-mortem declaration of the deceased, appellant’s defense of alibi
is unavailing.^[7]
His pretension of having been in Titay, Zamboanga del Sur, working in the
Marcelo Rubber Plantation using the name of Renato Cesante, with David Gumaba as his
capataz from September 17 to 22, 1972 had not a bit of
corroboration.  Helen James’ testimony as
a defense witness is only to the effect that appellant told her that he was
going to Titay, but did not go with him to Titay, and so was never with him there.  His other witness, Juanito
James, involved himself in a mesh of contradictions, and even admitted having doubts
as to the wisdom of testifying for appellant, because the victim was his
grandfather who was shot on September 17, 1972.^[8]
His alleged capataz, David Gumaba,
refused to appear in court to corroborate appellant’s alibi.  He could have not chosen to do otherwise in
the face of the testimony of two very reliable witnesses, Pablito
Lumactod and Silvino Lacaya, security and provincial guards, respectively, that
in the early evening of September 18, 1972, the day following the shooting,
they saw appellant going away from the direction of Dipolog
City where the shooting incident took place, riding on a logging truck headed
for the cutting area of the Dumingag Timber
Corporation.  With no interest or bias
against appellant, they testified only out of a civic duty to help in the
prosecution of criminal offenders and their punishment if convicted.  Whatever inconsistencies may have been
committed by them with which their testimony is assailed by appellant, is no
ground to deny them the credibility they deserve which is not affected by
inconsistencies on minor and inconsequential matters, which is what the alleged
inconsistencies actually are.

The judgment appealed from found no modifying circumstance, not
even that of evident premeditation as alleged in the information to have
attended the commission of the crime, which the court found to be that of
murder, with treachery as the qualifying circumstance.  We find
the evidence fully supporting
these findings of the trial court.

WHEREFORE, the judgment appealed from is affirmed, with
costs.

SO ORDERED.

Barredo, (Chairman), Aquino, Concepcion, Jr., and Abad Santos,
JJ., concur.

^[1]
pp. 2-8, Appellee’s Brief, p. 79, rollo.

^[2]
p. 55, Index of Exhibits.

^[3]
pp. 10-11, Appellee’s
Brief, p. 79, rollo.

^[4]
pp. 10-11, Appellant’s Brief, p. 73, rollo.

^[5]
Supra.

^[6]
pp. 15-16, Appellee’s Brief; p. 79, rollo.

^[7]
People v. Aguel et al., 97 SCRA 795; People v.
Estrada, 22 SCRA 111.

^[8]
p. 14, Decision, p. 13, Appellant’s brief, supra.