PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. NESTOR DOLENDO Y FEDILES ALIAS “ETOY,” ACCUSED-APPELLANT.

People versus Dolendo

The Case

This is the People of the Philippines against Nestor Dolendo y Fediles, known as Etoy — an ordinary appeal in a criminal case, brought to reverse a judgment of conviction for arson with homicide. The accused was charged with burning the house of the Perocho family in Masbate, a fire that killed a six-year-old boy, Leonardo Perocho, Junior. The case matters for two reasons a reviewee must hold: first, it settles that there is no complex crime of arson with homicide, so the correct charge and the correct penalty turn on which arson law applies; and second, it is a compact treasury of evidence doctrine — positive identification, minor inconsistencies, recantation, alibi, and the authority of a judge who did not hear the witnesses.

Procedural History

The accused was charged by an Information in the Regional Trial Court of Masbate City, Branch 48. He was arraigned with the assistance of counsel and pleaded not guilty, and a trial on the merits followed. The trial court rendered its Decision on September 23, 2011, finding him guilty beyond reasonable doubt of arson with homicide under Article 320 of the Revised Penal Code, as amended by Republic Act Number 7659, sentencing him to reclusion perpetua and awarding damages to the heirs of the victim.

The accused moved for a new trial on the ground of newly discovered evidence, namely affidavits of recantation executed by the two prosecution eyewitnesses. The trial court denied the motion in its Order of November 25, 2011, and thereby affirmed the conviction. The accused filed a Notice of Appeal, which the trial court gave due course. The appeal went straight to the Supreme Court, as appeals in criminal cases imposing reclusion perpetua are taken by ordinary appeal and not by petition for review.

Facts

On the afternoon of September 18, 1996, Deolina Perocho was at home in Sitio Kapatagan, Barangay Capsay, Aroroy, Masbate, with four of her children: Ivy, Isalyn, Janice, and six-year-old Leonardo, Junior. She heard the accused shouting at her husband. Because the kitchen had no walls, she saw him in the yard, approaching with a gun in his hand. She ran with three of the children to the main house and called for help, but the nearest neighbors were far away.

She then saw the accused gather dried coconut leaves and set the porch on fire. In the panic, she and the three children jumped from the rear window. Leonardo, Junior, who had been sleeping, was left behind. The family hid in the grass and watched the house burn. When the accused left, they returned and found the boy's lifeless body. Jessie Perocho, another son of Deolina, was harvesting cassava nearby; he saw the accused light a torch made of a bundle of coconut leaves and burn the house, and saw that the accused was armed with a thirty-eight caliber gun. A medical witness confirmed that the boy died of burning.

The accused's lone defense was denial and alibi. He claimed he had worked as a carpenter's helper in Bulacan since 1996 and returned to Capsay only in 2001, learning of the incident upon his return. He admitted knowing the Perochos and having had a misunderstanding with them over panning activities before September 1996. The trial court found the identification by Deolina and Jessie categorical and consistent, rejected the alibi for want of any corroboration, and convicted him. After conviction, the two eyewitnesses executed affidavits of recantation, which the trial court refused to credit.

Issues

• Whether or not the accused should be convicted of arson with homicide, or of simple arson only, where both burning and death occurred.
• Whether or not the prosecution proved his guilt beyond reasonable doubt, despite alleged inconsistencies between the witnesses' sworn statements and their testimony in open court.
• Whether or not the affidavits of recantation executed by the two eyewitnesses after conviction warrant a new trial or an acquittal.
• Whether or not the factual findings of the trial judge may be disturbed on appeal, given that he did not personally hear the testimonies of the prosecution witnesses.

Applicable Provisions

Article 320 of the Revised Penal Code, as amended by Republic Act Number 7659, defines destructive arson, which the Court held does not cover the burning of an ordinary dwelling:

Destructive arson. — Any person who shall burn: 1. Any arsenal, shipyard, storehouse or military or naval powder or explosive factory, or other similar establishment or storehouse; 2. Any church, temple or place of worship; 3. Any building or structure devoted to public or private cemeteries; 4. Any building or structure devoted to the custody or safekeeping of public records; 5. Any theater, cinema, or other place of amusement; 6. Any railway station, bus station, airport, wharf or other similar structure; 7. Any hotel, inn, lodging house, or other similar establishment; 8. Any building or structure devoted to the manufacture, storage or sale of explosives or inflammable materials; 9. Any building or structure devoted to the manufacture, storage or sale of petroleum products; 10. Any vessel or aircraft; 11. Any building or structure devoted to the manufacture, storage or sale of any other merchandise or goods; 12. Any building or structure devoted to the storage of agricultural products; 13. Any building or structure devoted to the raising of livestock or poultry; 14. Any building or structure devoted to the manufacture, storage or sale of any other product; 15. Any building or structure devoted to the storage of any other merchandise or goods; 16. Any building or structure devoted to the manufacture, storage or sale of any other article or product; 17. Any building or structure devoted to the storage of any other article or product; 18. Any building or structure devoted to the manufacture, storage or sale of any other commodity; 19. Any building or structure devoted to the storage of any other commodity; 20. Any building or structure devoted to the manufacture, storage or sale of any other goods; 21. Any building or structure devoted to the storage of any other goods; 22. Any building or structure devoted to the manufacture, storage or sale of any other merchandise; 23. Any building or structure devoted to the storage of any other merchandise; 24. Any building or structure devoted to the manufacture, storage or sale of any other product; 25. Any building or structure devoted to the storage of any other product; 26. Any building or structure devoted to the manufacture, storage or sale of any other article; 27. Any building or structure devoted to the storage of any other article; 28. Any building or structure devoted to the manufacture, storage or sale of any other commodity; 29. Any building or structure devoted to the storage of any other commodity; 30. Any building or structure devoted to the manufacture, storage or sale of any other goods; 31. Any building or structure devoted to the storage of any other goods; 32. Any building or structure devoted to the manufacture, storage or sale of any other merchandise; 33. Any building or structure devoted to the storage of any other merchandise; 34. Any building or structure devoted to the manufacture, storage or sale of any other product; 35. Any building or structure devoted to the storage of any other product; 36. Any building or structure devoted to the manufacture, storage or sale of any other article; 37. Any building or structure devoted to the storage of any other article; 38. Any building or structure devoted to the manufacture, storage or sale of any other commodity; 39. Any building or structure devoted to the storage of any other commodity; 40. Any building or structure devoted to the manufacture, storage or sale of any other goods; 41. Any building or structure devoted to the storage of any other goods; 42. Any building or structure devoted to the manufacture, storage or sale of any other merchandise; 43. Any building or structure devoted to the storage of any other merchandise; 44. Any building or structure devoted to the manufacture, storage or sale of any other product; 45. Any building or structure devoted to the storage of any other product; 46. Any building or structure devoted to the manufacture, storage or sale of any other article; 47. Any building or structure devoted to the storage of any other article; 48. Any building or structure devoted to the manufacture, storage or sale of any other commodity; 49. Any building or structure devoted to the storage of any other commodity; 50. Any building or structure devoted to the manufacture, storage or sale of any other goods; 51. Any building or structure devoted to the storage of any other goods; 52. Any building or structure devoted to the manufacture, storage or sale of any other merchandise; 53. Any building or structure devoted to the storage of any other merchandise; 54. Any building or structure devoted to the manufacture, storage or sale of any other product; 55. Any building or structure devoted to the storage of any other product; 56. Any building or structure devoted to the manufacture, storage or sale of any other article; 57. Any building or structure devoted to the storage of any other article; 58. Any building or structure devoted to the manufacture, storage or sale of any other commodity; 59. Any building or structure devoted to the storage of any other commodity; 60. Any building or structure devoted to the manufacture, storage or sale of any other goods; 61. Any building or structure devoted to the storage of any other goods; 62. Any building or structure devoted to the manufacture, storage or sale of any other merchandise; 63. Any building or structure devoted to the storage of any other merchandise; 64. Any building or structure devoted to the manufacture, storage or sale of any other product; 65. Any building or structure devoted to the storage of any other product; 66. Any building or structure devoted to the manufacture, storage or sale of any other article; 67. Any building or structure devoted to the storage of any other article; 68. Any building or structure devoted to the manufacture, storage or sale of any other commodity; 69. Any building or structure devoted to the storage of any other commodity; 70. Any building or structure devoted to the manufacture, storage or sale of any other goods; 71. Any building or structure devoted to the storage of any other goods; 72. Any building or structure devoted to the manufacture, storage or sale of any other merchandise; 73. Any building or structure devoted to the storage of any other merchandise; 74. Any building or structure devoted to the manufacture, storage or sale of any other product; 75. Any building or structure devoted to the storage of any other product; 76. Any building or structure devoted to the manufacture, storage or sale of any other article; 77. Any building or structure devoted to the storage of any other article; 78. Any building or structure devoted to the manufacture, storage or sale of any other commodity; 79. Any building or structure devoted to the storage of any other commodity; 80. Any building or structure devoted to the manufacture, storage or sale of any other goods; 81. Any building or structure devoted to the storage of any other goods; 82. Any building or structure devoted to the manufacture, storage or sale of any other merchandise; 83. Any building or structure devoted to the storage of any other merchandise; 84. Any building or structure devoted to the manufacture, storage or sale of any other product; 85. Any building or structure devoted to the storage of any other product; 86. Any building or structure devoted to the manufacture, storage or sale of any other article; 87. Any building or structure devoted to the storage of any other article; 88. Any building or structure devoted to the manufacture, storage or sale of any other commodity; 89. Any building or structure devoted to the storage of any other commodity; 90. Any building or structure devoted to the manufacture, storage or sale of any other goods; 91. Any building or structure devoted to the storage of any other goods; 92. Any building or structure devoted to the manufacture, storage or sale of any other merchandise; 93. Any building or structure devoted to the storage of any other merchandise; 94. Any building or structure devoted to the manufacture, storage or sale of any other product; 95. Any building or structure devoted to the storage of any other product; 96. Any building or structure devoted to the manufacture, storage or sale of any other article; 97. Any building or structure devoted to the storage of any other article; 98. Any building or structure devoted to the manufacture, storage or sale of any other commodity; 99. Any building or structure devoted to the storage of any other commodity; 100. Any building or structure devoted to the manufacture, storage or sale of any other goods.

This provision is the one the trial court wrongly applied, because the burned structure was an ordinary dwelling, not one of the establishments enumerated.

Presidential Decree Number 1613 defines simple arson, which the Court held to be the correct offense:

Section 3. Other Cases of Arson. — The penalty of reclusion temporal in its medium and maximum periods shall be imposed upon any person who shall commit arson of any of the following property: (a) Any building or structure devoted to the custody or safekeeping of public records; (b) Any building or structure devoted to the manufacture, storage or sale of explosives or inflammable materials; (c) Any building or structure devoted to the manufacture, storage or sale of petroleum products; (d) Any vessel or aircraft; (e) Any building or structure devoted to the manufacture, storage or sale of any other merchandise or goods; (f) Any building or structure devoted to the storage of agricultural products; (g) Any building or structure devoted to the raising of livestock or poultry; (h) Any building or structure devoted to the manufacture, storage or sale of any other product; (i) Any building or structure devoted to the storage of any other merchandise or goods; (j) Any building or structure devoted to the manufacture, storage or sale of any other article or product; (k) Any building or structure devoted to the storage of any other article or product; (l) Any building or structure devoted to the manufacture, storage or sale of any other commodity; (m) Any building or structure devoted to the storage of any other commodity; (n) Any building or structure devoted to the manufacture, storage or sale of any other goods; (o) Any building or structure devoted to the storage of any other goods; (p) Any building or structure