G.R. No. L-25298. April 16, 1968
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MANUEL FONTILLAS, VENERANDO VELES, TEODULFO VELES AND NICOLAS VELES, DEFENDANTS, MANUEL FONTILLAS, VENERANDO VELES AND TEO…
ANGELES, J.:
Manuel Fontillas, Venerando
Veles, Teodulfo Veles and Nicolas Veles were
charged with the crime of robbery with double homicide before the Court of
First Instance of Agusan. The victims were Alfonso Yu and Victor Yu,
father and son, respectively.
After trial, the court rendered a decision acquitting Nicolas Veles reasonable doubt, and finding Manuel Fontillas, Venerando Veles and Teodulfo Veles guilty as charged, and sentencing them to reclusion
perpetua, with the accessories provided by
law, to pay jointly and severally, the heirs of the deceased in the amounts stated in the decision in concept of indemnity and damages,
and to pay the proportionate costs.
Hence, this appeal from the decision by Manuel
Fontillas, Venerando Veles and Teodulfo Veles.
Alfonso Yu was the owner of a general merchandise store in Las
Nieves, Butuan City, Agusan,
Adjoining the store at the back was a mill for grinding pa lay and corn, also
owned by Alfonso Yu.
Alfreda Layno,
wife of Alfonso Yu, declared that at about 6:00 O’clock in the evening of
October 22, 1963, she was returning to the store from an errand. The store had two doors fronting the
street. Upon reaching one of the doors,
she saw six men seated on a bench thereat.
She talked to one of them, later identified as appellant Manuel Fontillas, who was holding a Pepsi-Cola bottle. Isaac Zoleta, municipal judge of Las Nieves, who was boarding
with the family of Alfonso Yu, was seated on another bench outside the store,
conversing with a woman. Alfreda Layno became suspicious
of the presence of the six men. She
warned her husband. Alfonso Yu ordered
that the store be closed. A man, later
identified as Manuel Mango, dashed inside the store. He approached Alfonso Yu
wanting to buy cigarettes. When the latter
was about to open a drawer to get cigarettes, the man (Mango) poked a gun at
Alfonso Yu telling him not to move. The
latter raised his hand and uttered “waw“. Another man, later identified as Teodulfo Veles, approached
Alfonso Yu and held his hand. Seized
with fear, Alfreda Layno
hid behind some boxes in the mezzanine whence she saw another man inside the
store, later identified as Venerando Veles. After a
while, she noticed that the man (Venerando Veles) was no longer at the place where she saw him before,
so she ran away and went to the house of her neighbor Roman Musico.
On cross-examination, Alfreda Layno was confronted by counsel for the defense with her
affidavit sworn to before the provincial fiscal on October 28, 1963, and
quoting several questions and answers from the said affidavit, counsel asked
the witness if they were her statements, to which the witness replied in the
affirmative. The quoted portions of the
affidavit, marked as Exhibits 5-A and 5-B, are as follows:
“That the robbers forcibly took from us cash in the amount of
about four thousand two hundred pesos P4,200.00), jewelries valued at about
P100.00, assorted items from our store like flashlights, dry goods and other
items valued at about P300.00;
“1. Q.- Can you identify the robbers if you see them again?
A.-
I do not know but I think I can identify some of them if I see them again.
“2. Q.-
Showing to you these photographs (affiant shown the photographs of Manuel
Mango, Manuel Fontillas, Nicolas Veles,
Teodulfo Veles, Venerando Veles, Sofronio Balbuena) what can
you say about these photographs?
A.-
I can only remember this person. (Affiant
pointing to the photograph of Manuel Fontillas)
I remember him because he was the one who pretended to buy some cigarettes
from my husband and pointed his gun to my husband during that incident.”
Continuing her testimony on cross-examination, Alfreda Layno was asked why
“she cannot recognize the persons who entered the store by their photographs?”
and she answered, “If I use eyeglasses, because since the incident my eyes
were defective,” and “I cannot identify clearly (the photographs)
because the lenses of my eyeglasses are blurred.” However, the witness insisted that when she
was investigated by the PC, and was asked if she could identify the persons who
entered the store, she told the PC that she could identify them.
In fact, on direct examination, Alfreda
Layno pointed to Manuel Fontillas
as the man with whom she conversed and who was holding a Pepsi-Cola bottle;
she declared that the one who wanted to buy cigarette was the dead man (Manuel
Mango) in the picture, exhibit 1-A; the man who approached Alfonso Yu and held
the latter’s hand was Teodulfo Veles,
and she pointed to him at the trial; and the man she saw guarding the store
while she was in the mezzanine, was Venerando Veles, and she also pointed to him at the trial.
Emma Yu, daughter of Alfonso Yu, 24 years old, was seated
at a table inside the store making entries in the business book, when she heard
the order of her father to close the store.
She stood up to help. Suddenly,
a man, later identified as Manuel Mango, dashed inside the store to buy
cigarettes. While Alfonso Yu was opening a drawer to get cigarettes, Manuel
Mango, with a drawn gun, approached Alfonso Yu telling him not to move. Taken aback, Alfonso Yu raised his hands and
uttered “waw“. Another man, later identified as Teodulfo Veles, advanced towards
Alfonso Yu, and both Mango and Teodulfo surrounded
Alfonso Yu. A man brought Victor Yu
inside the store. Six men entered the store.
Teodulfo Veles and
his companion ordered her to go upstairs.
On the second floor of the house, she met her brother Jose Yu. Then, Teodulfo Veles entered the room
of Judge Zoleta.
After a while, Teodulfo Veles
emerged from the room, and ordered her and her brother to go downstairs. Once downstairs, the men
opened the drawers where the money was kept. They took the money in the drawer, and also
jewelry, flashlights, batteries, textiles and many other things. When the opportunity for escape presented
itself, she and her brother ran away and went to the house of a neighbor. On October 26, 1963, Emma Yu was investigated
by the provincial fiscal, and her testimony in court substantially conforms with the contents of her affidavit.
Judge Isaac Zoleta
declared that as he was preparing to go inside the store, a man grabbed him by
the collar of his shirt. He was released
when someone shouted “do not include him”. Zoleta ran to a
neighboring house and apprised the people of the robbery. The store was well-lighted with several
electric bulbs. Zoleta
was not able to recognize the man who grabbed him because he was at his
back. At the same time, Maximo Bation, policeman of Las
Nieves, was approaching the door of the store, when a man poked a pistol at
his back and made him lie down with his face pressed against a pile of sacks.
Jose Yu, 11 years old, student, son of Alfonso Yu,
declared that at about 6:00 o’clock in the evening of October 22, 1963, he was
in the store of his father. A man
approached his father to buy cigarettes.
Suddenly, the man drew a gun and pointed it at his father, and at the
same time another man jumped over a table and approached his father. A man approached him (Jose) and ordered him
to go upstairs, and thereat he met his sister Emma. He recognized the man,
later identified as Teodulfo Veles. The latter entered the room of Judge Zoleta from which he emerged after a while. The men ordered him (Jose) and his sister
Emma to go down followed by the men. In
the store, the men forcibly opened the drawers and took the money inside the
drawers.
On cross-examination, he declared that on October 26, 1963 he
executed an affidavit, marked Exhibit 2 for the defense. He affirmed the veracity of the answers to
questions numbers 5, 6 and 7 thereof, as follows:
“5. Q.- If you will see that persons, can you still recognize
him?
A.-
I can identify the tall persons wearing yellow shirt and the person who pointed
the pistol at Papa.
“6. Q.- These persons can you identify them? (Affiant shown to the persons of Venerando Veles, Nicolas Veles, Teodulfo Veles and Manuel, all of Mandamo,
Las Nieves)
A.-
These two persons are the ones that I know.
(Affiant pointing to Teodulfo
Veles and Venerando Veles.)
“7. Q.- Where is that person who brought you there your brother
and sister?
A.-
There were two robbers. Right now, it is
only this whom I can recognize,” (and pointed to
Venerando Veles).
Being shown the pictures of two dead men appearing in Exhibits 1
and 1-A, he identified them as two of the robbers who were killed on that
occasion, later identified as Manuel Mango and Sofronio
Balbuena, and he declared that he could recognize
them because he saw them in the store.
Benita Balonda, 18 years
old, cook in the house of Alfonso Yu, declared that at past 6:00 o’clock in the
evening of October 12, 1963, she was in the kitchen preparing supper; she saw
her master, Alfonso Yu, being choked by a man, later identified as Venerando Veles; she saw three
men, but could recognize only one of them whom she pointed at the trial to be Venerando Veles; she ran to the
house of a neighbor. It was when she was
running that she heard several shots inside the store and in the street.
On cross-examination, she declared that a few days after the
robbery, she was brought to the PC headquarters at Butuan
City and investigated. Her statement,
dated October 28, 1963, before the provincial fiscal, is exhibit 4 for the
defense. The PC asked her if she could
identify the robbers; she answered in the affirmative. Confronting her with her affidavit, counsel
for the defense read therefrom the answer to question
number “3”, thus:
“A.- After that time and date, I
was about to go downstairs to get some vegetables because I (was) preparing
our supper when I met my employer, Alfonso Yu, going upstairs to the house
followed by a person whom I do not recognize.”
Questions numbered 5, 6 and 7 in the
affidavit, marked Exhibit 4-A and the corresponding answers for the defense, were also quoted to the witness, thus:
“5. Q.- Showing to you these pictures (photographs) of these
persons shown to you at the provincial jail on October 27, 1963, what can you say about that?
A.-
This one, sir, was the person whom I saw following my employer and the one who
choked him.” (Affiant pointing to the photograph of Teodulfo Veles.)
“6. Q.- What made you so sure that he was the one?
A.-
Because I still remember his face and I still remember that he was wearing a cap.”
She affirmed the truth of her statements.
Teresita Arendayen,
14 years old, maid in the house of Alfonso Yu, declared that the man who choked
Alfonso Yu was Teodulfo Veles.
Late in the evening, Emma Yu returned to the store with Judge Zoleta. They found Alfonso Yu already dead, and Victor Yu,
seriously wounded. The latter died on
the way to the hospital. The bodies of
two slain robbers, later identified as Sofronio Balbuena and Manuel Mango, were found outside the
store. Near the body of Manuel Mango, a
pistol, caliber .38, and a single-bladed dagger were found. Inside the store were found live-bullets,
slugs and cartriges, and a red cap all of which were
turned over to the authorities.
Sgt. Ernesto Baril, chief
investigator of the 66th PC at Butuan
City, conducted an investigation
the day after the commission of the crime.
After information were gathered from the inmates of the house, the
accused were picked up and brought to the PC headquarters for questioning. The accused denied having anything to do with
the crime; they claimed that they were in Mandamo on
the day and at the time the robbery was committed. In the provincial jail, the four accused were
made to stand in a line-up, interspersed one another with other convicts, and
the government witnesses Emma Yu, Jose Yu, Benita Balonda
and Teresita Arendayen were
asked to identify the robbers. On the
basis of the evidence gathered by the PC and the provincial fiscal, the
affidavits of the witnesses, and the identification of the accused in the
provincial jail by the witnesses, the information was filed in court.
Summarizing the evidence of the prosecution, they tended to show
that six men entered the store, namely: Teodulfo Veles, Venerando Veles, Nicolas Veles, Manuel Fontillas, Manuel
Mango and Sofronio Balbuena. The last two, Manuel Mango and Sofronio Balbuena, were killed
while attempting to escape from the scene of the crime; the first four were
arrested and charged with the crime of robbery with double homicide before the
Court of First Instance of Agusan; one of them,
Nicolas Veles, was acquitted on reasonable doubt,
and the remaining accused were found guilty of the offense charged and
sentenced accordingly. The victims,
Alfonso Yu and Victor Yu, were killed during and on the occasion of the robbery. The crime was committed between 6:00 and 6:30
o’clock in the evening of October
22, 1963, in Las Nieves, Butuan City,
Agusan. The scene of the crime was well-lighted with
several burning electric bulbs. At the
scene of the crime and during its commission, the appellants were recognized by
the witnesses of the prosecution and were identified during the trial; and in
the affidavits executed by said witnesses just a few days after the robbery,
the appellants were pinpointed as the perpetrators of the crime.
Contending that the evidence of the prosecution have not
established beyond reasonable doubt the presence of the appellants at the
scene of the crime, and relying heavily on their defense of alibi, the appellants
have assailed the decision of the trial court under two (2) assignment of
errors: First, “in giving weight
and credit to the testimonies of the prosecution witnesses”; Second,
“in convicting the accused of the crime charged.”
1.- Citing the testimony of Judge Zoleta who, admittedly, was outside the store conversing
with a woman, and simply because he had declared that he did not recognize the
man who grabbed him by the collar of his shirt, the appellants argue that with
more reason the witnesses of the prosecution could not have recognized the
appellants because of their state of fear.
The argument is non sequitur. It is to be remembered that, according to Zoleta, the man was behind him, and when he was grabbed by
the collar of his shirt, a shout was heard “do not include him”, and
he was immediately released, and he ran away; on the other hand, the witnesses
of the prosecution were inside the store where the crime was being committed,
and they had the opportunity to recognize the appellants who were not masked,
for the incident did not happen in a split of seconds but lasted for about
twenty to twenty-five minutes.
2.- The testimony of Leonardo Cuvillar, witness for the defense, rural policeman of Las
Nieves, later appointed chief of police of Butuan City,
Agusan, is relied upon. He declared that the appellants were not at
the scene of the crime. But, as we shall
show presently, this witness, to our mind, had attempted to distort the facts,
or perjured himself in his desire to help the appellants. To quote his testimony:
“Q.- On October 22, 1963, at about 6:00 o’clock in the afternoon, where were you?
A.- I was in my store.
Q.- In what place?
A.- In Las Nieves.
Q.- How did you learn that there was such robbery in the
store of Alfonso Yu?
A.- Because Gabino Bisaya reported to me
that the store of Alfonso Was robbed.
Q.- After you were told by Gavino
Bisaya what did you do?
A.- I went towards
their store.
Q.- What did you see when you arrived in the house of Alfonso
Yu?
A.- I saw a policeman
of Las Nieves being held by the man and Emma Yu was being held also.
Q.- Can you remember the face of the person who held Emma
Yu?
A.- I know their
faces, but I do not know their names.
Q.- You look inside the courtroom and find out if those
persons whom you saw are here in the court room?
A.- Just to tell you
the truth, those persons whom I saw on the date of the incident are not
here. x x x.
Q.- This morning you said that you saw two persons holding
Emma Yu and the policeman. If you are
shown a picture of a certain person whom you saw on the night of the robbery
incident, can you recognize the person?
A.- I can identify the
person.
Q.- I show you Exhibit 1 and Exhibit 1-A (pictures of the slained robbers) will you please look at these pictures if
you can recognize them?
A.- This man in the picture is the man who held Emma Yu
(witness is referring to exhibit 1-A picture of the slained
robber Manuel Mango). This picture,
exhibit 1, is the picture of a man who held the policeman. (Witness referring to the
picture of Sofronio Balbuena).”
The foregoing portions of the testimony
of Cuvillar clearly show that the men he saw at the
store were the two slain robbers, but he also affirmed that the appellants were
not at the scene of the crime, and the basis of his affirmation is, that he did not see them at the store. His affirmation, however, as shown by the
evidence, is without basis and a fabrication in his desire to help the
appellants, because definitely he admitted that when he arrived at the store
the robbers had already left. To quote
his testimony:
“Q.- When you head the shots, you were still in your
store, and upon hearing the shots, that was the time when you closed your
store?
A.- I heard the shots
that was the time I closed my store and immediately thereafter, I ran towards
the house of Alfonso Yu but I had not reached yet the house of Alfonso Yu
because there were persons there. I was
already 7 meters away from the house of Alfonso Yu because there were already
persons.
Q.- In other words, you were not able to get inside the
store of Alfonso Yu?
A.- Yes, sir, at the time of the incident, I was not inside
the store of Alfonso Yu. After the
incident, as it was already silent and no more firings, I went inside the
store.
Q.- And that was the
time when you saw many people there and that was the time when you saw the
victims of the robbery incident?
A.- When I got inside
the store, I saw the victims lying flat.
Q.- You are referring to Victor Yu?
A.- Yes, sir,
including Alfonso Yu.
Q.- And the time when
you got inside the store of Alfonso Yu, after the incident, the people who
perpetrated the robbery were no longer there?
A.- No more,
sir.”
3.- Juanito Sabio, a guard in the
provincial jail of Agusan, was presented to establish
the fact that at the confrontation of the accused by the witnesses of the
prosecution in the provincial jail on October
27, 1963, the witnesses were not able to identify the
appellants. He declared thus: At 11:30 in the morning of October 27, 1963,
Sgt. Ernesto Baril, investigator of the PC, brought
to the provincial jail, Emma Yu, Jose Yu, Benita Balonda
and Teresita Arendayen to
find out whether the said persons would be able to identify the appellants;
that they were not able to identify the accused; that the office of the
provincial jail keeps a record book where are entered diverse matters
transpiring in the jail, such as the visit of witnesses to identify certain
accused; that on this particular visit of Sgt. Baril,
accompanied by the witnesses of the prosecution, on October 27, 1963, he
recorded in his personal diary and not in the record book (blotter) of the
office of the provincial jail what transpired at the confrontation. To corroborate his testimony, he read on page
4 of his diary the following entry:
“At 11:30 a.m.,
Sgt. Baril arrived at the station for the purpose of
identifying the accused, Mr. Fontillas and nobody
was pinpointed.
He also declared that the entry in his
diary was made by him “during and after the identification was finished.”
Thus:
“Q.- Will
you please tell this Honorable Court whether or not you made this entry?
A.- Yes, sir, I made
that entry during and after the identification was finished.”
The foregoing, however, is self-impeached. On cross-examination, he admitted that the
entry was made by him in the house and not during and after the identification. Thus:
“Q.- And
you entered the event which happened at 11:30
o’clock in the provincial jail?
A.- Yes, sir, in the
house.
Q.- In other words, you
made this entry outside of your tour of duty?
A.- Yes, sir.”
And the entry was made in his private
diary and not in the official book (blotter) of the office of the provincial
jail. Thus:
“Q.- You
said that you entered some important items in your diary and you entered the
same in your record book. Is that right?
A.- I entered the
important item in my diary. That is
precisely the coming of Sgt. Baril and government
witnesses.”
Then, it is pertinent to ask:
When did he make the entry in his personal diary? He failed to state the specific occasion or
date. And why the entry made in his
private diary and not in the official book or blotter of the office of the
provincial jail as it was his duty to do?
He kept the reason for himself. A
reading of the testimony of the witness has persuaded us that the entry was
made not to reflect the truth but to fabricate in order to help the appellants.
“A witness should not be allowed to see, consult or refer to
a memorandum or other writing for the purpose of recollection of his memory
unless and until it appears that the memorandum was written by himself or under
his direction at the time when the fact occurred, or immediately thereafter, or
to any other time when the fact was fresh in his memory.” (Francisco, Criminal
Procedure, Vol. III, 1345.)
The reason for the rule that the making of the memorandum must be
contemporaneous with the event is that the evidentiary force comes, not from
narration of facts by the witness, but from the fact that the memorandum is the
record of a past recollection, reduced to writing while there was an existing
independent recollection. The
memorandum stands in the place of present recollection, the witness being at
most a mere conduit for repetition of its statements. As one court remarks: ‘It is for that reason
that a memorandum to be available in such cases, must have been made at or
about the time of the happening of the transaction, so that it may safely be
assumed that the recollection was then sufficiently fresh to correctly express
it.‘ The assumed reliability of the memorandum as a contemporaneous record is
the sole justification of its use by the witness, and hence, it is essential in
such cases that the witness should produce and testify by reference to the
original memorandum.’ (Volusa Cty.
vs. Bigelow, 33 So. 794)
4.- Maximo Bation,
policeman of Las Nieves, declared that at about 6:00 o’clock in the evening of
October 22, 1963, he was on his way to the store of Alfonso Yu; upon reaching
the store “there were men who followed me and aimed their pistols at my
back and told me to lie down”; and “my face pressed against the
sacks”; he cannot tell how long he was in that position; he knows the
appellants; he did not see them at the store; he did not recognize the men who
held him; he never reported to anyone that he had been at the store of Alfonso
Yu, except to the lawyer of the defense.
Relying on the testimony, the appellants argue that, as the
witness knows the faces of the appellants, and he did not see them at the scene
of the crime, ergo, the appellants were not at the store of Alfonso
Yu. The argument is fallacious. It is obvious that Bation
could not have seen the appellants who were inside the store, because he was
outside the store with his face pressed against the sacks. He did not have the opportunity to see what
was happening inside the store.
5.- Angela
Otero, declared that at about 6:00 o’clock
in the evening of October 22, 1963,
she was in the store of Alfonso Yu; “there were persons outside the store
of Alfonso Yu”, and they held the latter by the hands; “Q.- After
that what happened to Alfonso Yu? A.- I did not know because I ran away.” x x x” Q.- Now, before you ran
away, who were the persons who were outside the store of Alfonso Yu whom you
know and saw? A.- I do not know those persons”;
she did not see the accused on that day, at six
o’clock in the evening; prior to October 22, 1963, she had been in Madamo
only once.
On cross-examination, she said that in the evening of March 23,
1964, she went to see Estanislao Cataluña
in Mandamo and told him that she will testify in the
case (witness testified the next day, March 24, 1964), although she did not
know that there was a case pending in court; she never told anyone that she was
in the store on the occasion of the robbery; she knows that it was 6:00 o’clock
in the evening when she was in the store of Alfonso Yu, because “A- When I
arrived home I looked at the watch”, and “the dial indicated six
o’clock”; on October 22, 1963, she did not even know who were Teodulfo Veles, Venerando Veles and Nicolas Fontillas.
We find no reason to accord credence to the testimony of this
witness. From the fact that she did not see the appellants at the scene of the
crime, even assuming that she was there, it does not necessarily follow that
the appellants were not at the scene of the crime. It is not surprising that the witness did not
see the appellants inside the store on that occasion, because she did not even
know the appellants; she never saw them before, she was outside the store, and
when she saw that Alfonso Yu was held by the arm by the persons whom she did
not recognize, she ran away. Her
testimony gives the impression that she was a tutored witness.
Testifying in their own behalf, the appellants are in concensus in the affirmation that from 5:00 o’clock in the
afternoon until midnight of October 22, 1963, they were in the house of Estanislao Cataluña slaughtering
pig and pounding rice in preparation for a celebration that night – of
thanksgiving for the good harvest that year; the testimonies of the witnesses
of the prosecution that they were seen at the scene of the crime were lies, for
the truth is, they were in the house of Cataluña;
they were arrested by the PC on October 25, 1963 for investigation; they were
asked about the robbery-killing in the store of Alfonso Yu, and they told the
investigator they did not have anything to do with it, because they were in the
house of Cataluña.
Estanislao Cataluña,
married to Oria Veles, is
the brother-in-law of Venerando Veles
and Nicolas Veles, and Teodulfo
Veles is the nephew of Venerando
Veles. Cataluña declared that he knows the appellants because they
were his tenants, each cultivating about a two-hectare portion of his land
situated at Mandamo, Butuan City. In the afternoon of October 22, 1963, the appellants were in his
house pounding rice. On
cross-examination, however, he said: “Q.- Since
when have you stayed in Mandamo? A.- Since
1964.” Since the first time he stayed in Mandamo
was in 1964, therefore, he was not in Mandamo in
1963, and the appellants could not have been in his house in Mandamo on October 22, 1963. Assuming, that the mention of
“1964” was a mistake, and what he meant was “1963”, still
it is improbable that the appellants were in his house on October 22, 1963,
because –
“Q.- When
you stayed in Mandamo these accused were not yet with
you at that time. Is that right?
A.- The first time I
lived in Mandamo, they were not yet residing
there.”
So, neither in 1963 could the appellants have
been in Cataluña’s house. Correlating the foregoing
answers with his last on cross-examination –
“Q.- Who were with you in the house at 5:00 o’clock
in the afternoon?
A.- My family and my
wife.”
it is clearly
deducible that the appellants, who were not members of the family of Cataluña were not in the latter’s house on October 22,
1963. Also improbable and incredible are
the testimonies of the appellants, confirmed by Cataluña,
that the former were in the latter’s house on October 22, 1963, slaughtering
pig and pounding rice in preparation for a celebration that night – of
thanksgiving for the good harvest that year, because, as admitted by Cataluña, that year he did not harvest palay
due to flood.
“Q.- In
1963 harvest you did not count the number of cavans?
A.- There was no
harvest in 1963 because there was flood.”
x x x
“Q.- In
1963, how many piculs of abaca did you harvest?
A.- I did not count.
Q.- But the harvest in
1963 was very small. Is that right?
A.- A little number
only.” x x x x.
“Q.- What was your harvest in camote
plantation?
A.- The same. I harvested enough for our food consumption.”
x x x
“Q.- You
said you planted coconut trees. How many
nuts did you harvest?
“A.- Not yet, sir.”
With the foregoing admissions of Cataluña,
the claim, that under those circumstances he would still think of having a
celebration of thanksgiving for the good harvest that year, when he did not
have any harvest of palay at all, does not appeal to
reason. Also, the appellants said that beside slaughtering pig, they were also pounding palay. This is
strange. Cataluña
declared that he knows Alfonso Yu because “A.- We
used to go to his house (like milling our pa-lay and corn).” Then it may
be asked: Why did they have to pound palay that
afternoon when there was the mill of Alfonso Yu where they used to grind their palay and corn? Was
it because Cataluña had no available stock of rice
to serve to his visitors in that celebration of thanksgiving? If so, then it is believeable
that the preparation for that celebration was an eleventh hour decision. This is to our mind, out of the ordinary.
Five more witnesses, Ricardo Aristan,
Damian Cataluña, Guillermo Aninao,
Estela Cagas and Aurea Cataluña, were presented to
corroborate the alibi of the appellants.
On cross-examination, however, their testimonies showed, let us take
Guillermo Aninao, that the affirmations have no basis
in fact. Thus: “Q.-Since (when)
have you known the accused? A.- Since they were
arrested by the PC (They were arrested on October 25, 1963).” Since he did not know the appellants on
October 22, 1963, how could he be sure that they were in the house of Cataluña, even assuming that the witness was there? What was his interest for taking particular
attention of the presence of the appellants and to make him remember that they
were there when he did not even say that he had a conversation with them or
something had happened to arouse his interest to make him remember?
With regard to Aurea Cataluña and Ester Cages, wife of Teodulfo
Veles, it is enough to remember their relationship by
blood and affinity with the appellants.
Upon the foregoing facts, two questions confront the Court in
the solution of the case. First, has the
prosecution’s evidence established the guilt of the appellants beyond
reasonable doubt? Second, has the defense of alibi been successfully
proved by evidence which satisfy the Court of the truth thereof?
The commission of the robbery and the slaying of Alfonso Yu and
Victor Yu thereof by the malefactors, are facts conclusively
established by the evidence.
The testimonies of the witnesses of the prosecution appear to be
straight-forward, plausible and consistent.
It is true that in some respects they suffer from slight discrepancies
in the details of the occurrence related by them. There can be no doubt,
however, that they agree in the essential fact that the appellants were the
perpetrators of the crime. The credit of
a witness is tested when from a rigid cross-examination the general veracity of
his testimony in chief is not impeached.
The witnesses of the prosecution remained firm and unshaken in the case
at bar notwithstanding a long and detailed cross-examination,
and they corroborated each other in substantial details regarding the
occurrence. There is reason to accord
full credence to their testimonies because they had the opportunity for a
better observation, they recognized the faces of the appellants who were not
masked, and they identified the appellants in their affidavits and at the trial
of the case.
On the other hand, the testimonies of the witnesses for the
defense suffer from flaws, inconsistencies and improbabilities which have a
cast serious doubt, in the mind of the trial court, as to their
trustworthiness. The court’s observation
finds support in the evidence. The alibi
set up by the appellants is sought to be corroborated by witnesses bound by
ties of consanguinity and affinity with the appellants. Thus, appellants Venerando
Veles and Nicolas Veles
are the brothers-in-law of Estanislao Cataluña, and the other witnesses are bound by ties of
friendship with the appellants. But more
than this consideration, it has been demonstrated that even witnesses holding
official positions, have shown a predisposition to distort the facts in their
desire to help the appellants. Leonardo Cuvillar, for
instance, who, at the time of giving his testimony, was the incumbent chief of
police of Butuan City, tried to make the court
believe on his direct testimony that the appellants were not, and could not
have been, at the scene of the crime; but, on cross-examination, he had to
tell the truth, impeaching his previous testimony, and admitting that he did
not see the appellants at the scene of the crime, because when he arrived at
the store where the crime was committed, the perpetrators of the crime had already
left the place.
The same observation may be made as to the witness Juanito Sabio. In his desire to help the appellants, he
tried to make the court believe, contrary to the truth, that the witnesses of
the prosecution could not identify the accused at the confrontation on October
27, 1963, and to give a semblance of reliability to his affirmation, he read
an entry purporting to be from an official record of the provincial jail, but
when he was asked by the private prosecutor to produce the entry, he could
only show a personal diary and not an official record or blotter which is kept
in the provincial jail where entries of such kind, the visit of witnesses in
jail to identify certain accused, should be entered. As it has been discussed herein-above, the
entry in the personal diary of the witness is incompetent and has no probative
value as evidence for failure to lay down the prerequisite basis for its
admission. The motivation for making the
entry in his private diary is apparent.
Considering that the witnesses of the prosecution had really identified
the appellants as the perpetrators of the crime, as the evidence on the record
have shown, the falsity of an entry in the official
record or blotter to the contrary could have been easily discovered. On the other hand, with an entry in his
private diary, witness was free to produce it or not as his interest dictates.
With reference to the testimonies of the appellants which was
sought to be confirmed by Estanislao Cataluña, it has been shown that the account of the
whereabouts of the appellants at the time of the commission of the crime, is
unbelievable.
The weight to be given to the testimony of witnesses possessing
integrity and intelligence, as are the witnesses of the prosecution in this
case, who have no motive to fabricate the facts and to foist a very serious
crime against the appellants, depends chiefly upon their observation and means
of knowing the facts testified to by them.
Other things being equal, in case of conflict of testimony, the great
weight should be given to the testimony of those witnesses whose position gave
them the best opportunity for observation.
(Moore on Facts, p. 734.) The testimony of Judge Zoleta
is negatively pregnant; the testimony of Leonardo Cuvillar,
Juanito Sabio, Maximo Bation and Angela Otero
are pregnant with inconsistencies and improbabilities, and at times, they
border on distortion of facts. On the
other hand, the testimonies of the witnesses of the prosecution are direct,
clear and positive, and they had the best opportunity for observation. Possibility of a higher degree of attention
and interest gives rise to a presumption of considerable force that a person’s
recollection of his own acts and of the attendant circumstances is more
definite and trusthworthy than another person’s
recollection of it who had no special interest than that of an observer. Apart from comparative tenacity of memory,
the actor usually knows better than any one else what he did or did not do, or
saw, and his testimony is generally entitled to superior weight on that
account. (Moore on Facts, p. 870) There
are some facts of which the importance, with regard to the individual, is so
great, that unless on the supposition of an almost total decay of the faculty,
it will not be credible that the picture in them should have effaced out of
his memory by any length of time. So
where a man and a wife were dragged from their bed at nighttime, and cruelly
tortured by robbers partly masked (in our case, the robbers were not masked),
and heard the voices of their torturers, observed their figures, their
movements, and the manner and peculiarity of each of them, must have been
literally burned into the memory of their victims and enable the latter to
identify them subsequently with confidence.
(Moore on Facts, p. 890)
There is, therefore, no convincing, corroborative evidence
adduced, to establish the defense of alibi. Under these circumstances, there is no reason,
by any means, to allow the defense of alibi to prevail over the clear
and positive proof as to the identification of the appellants and their
participation of the crime, as testified to by the witnesses of the
prosecution who saw and observed the faces of the appellants who were not
masked, from vantage positions.
The trial court, with its superior facilities for weighing the
conflict in the testimonies of witnesses, accorded credence to witnesses of
the prosecution, and this Court will not interfere with the conclusion of the
trial court which saw them in the act of testifying, observed their manners and
demeanors as witnesses, unless it is satisfactorily shown that the trial court
overlooked, misunderstood or misapplied some facts or circumstances of weight
and influence sufficient to induce belief to warrant a reversal of the
decision.
In the case at bar, the facts brought out and discussed in the
brief of the appellants have not shown that the trial court committed such error;
on the contrary, We are persuaded upon the evidence
that the guilt of the appellants has been proven beyond reasonable doubt.
The conspiracy among the appellants in the commission of the crime, is evident upon the facts as proven. Their acts, collectively and individually
executed, have demonstrated the existence of a common design towards the
accomplishment of the same unlawful purpose and objective. The killing of Alfonso Yu and Victor Yu, bears a direct relation and intimate connection between
the robbery and the killing, for the killing happened during and on the
occasion of the robbery. Whether the
latter be prior or subsequent to the former, for the
element of conspiracy having been proven, it is unquestionable that the
complex crime of robbery with homicide has been committed, and all the
appellants are liable therefor.
There being no mitigating nor
aggravating circumstance present and the decision is in accordance with the
facts and the law, the same is affirmed, in all respects, with proportionate costs
against the appellants.
Reyes, J.B.L., (Acting C.J.), Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, and
Fernando, JJ., concur.
Concepcion, C.J., on leave.