PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RESTITUTO CARCEDO, ACCUSED-APPELLANT.
HERNANDO, J.:
WHEREFORE, finding accused guilty beyond reasonable doubt, this Court hereby sentences the accused, to suffer an indeterminate sentence of Three (3) years, Six (6) months and Twenty One (21) days as minimum term to Eight (8) years and Eight (8) months and One (1) day as the maximum term, ordering the accused to indemnify the offended party the amount of Thirty Thousand (Php30,000.00) Pesos and to pay costs.
SO ORDERED.[2]
The Antecedents:
Accused Restituto Carcedo @ Boboy was charged with the crime of Theft in an Information[3] dated April 6, 2014, the accusatory portion of which reads:
That on or about the 11th day of October, 2003, in the Municipality of Javier, Province of Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to gain, did then and there wilfully, unlawfully and feloniously steal and carry away cash money in the amount of P30,000.00 belonging to ANACLITO TISADO against his will and without his consent and to his damage and prejudice in the amount aforestated.
ACTS CONTRARY TO LAW.
When arraigned on July 20, 2004, accused pleaded not guilty to the crime charged.[4] Hence, pre-trial was set.[5] After the pre-trial was terminated[6], trial on the merits ensued.
Version of the Prosecution
The prosecution presented two witnesses, namely, Winefredo Cabarda and Anaclito Regis Tisado.
Winefredo Cabarda, a Barangay Kagawad and resident of Calzada, Javier, Leyte testified that he knew accused Restituto Carcedo because the latter and his wife are residents of their barangay. In fact, accused’s wife is also a Barangay Kagawad. Cabarda narrated that on October 11, 2003 at around 11:30 in the morning, he was in the Chapel of Barangay Calzada, Javier, Leyte, unloading pipes which they would use to replace the old pipes to be utilized for street lights. There, he personally witnessed a person, half-naked and wearing a black mask, whom he later recognized as accused Restituto Carcedo, jumping out from the window of Anaclito Tisado’s house which is located just across the Chapel. Cabarda alleged that he was only about thirty (30) meters away from Tisado’s house. Cabarda then approached accused but the latter ran away. Cabarda tried to chase him but accused was able to flee.
On cross-examination, Cabarda explained that accused was wearing a black mask which covered only the part from his nose to the mouth. Hence, he was able to recognize accused because he saw the portion from accused’s eyes upwards as well as from his neck down and that he was familiar with accused’s body built.
Private complainant Anaclito Regis Tisado also testified and declared that on October 11, 2003 at around 12:30 in the afternoon, he was in Tacloban City when he received a long distance call from former Kagawad Rosendo Cernias informing him that his house in Barangay Calzada, Javier, Leyte was robbed. Upon being informed, Tisado went home but arrived only at around seven o’clock in the evening because his service vehicle encountered an engine trouble. When he arrived home, he immediately checked his place and found out that the padlock in his room was already destroyed and that his money in the amount of Thirty Thousand Pesos (Php30,000.00) which he placed inside a biscuit can was missing. According to Tisado, said amount constituted the proceeds of the copra that he had sold in Tacloban City. He, thus, reported the incident to the Barangay Captain and had it entered in the barangay blotter as well as in the Police Blotter. He was then informed by Barangay Kagawad Winefredo Cabarda that it was accused Restituto Carcedo who perpetrated the thievery in his house.
Version of the defense
The defense interposed denial and presented two witnesses, accused himself, Restituto Carcedo and a certain Edwin Barotel.
Accused Restituto Carcedo, a resident of Barangay Calzada, Javier, Leyte, testified that on October 11, 2003 at around eleven o’clock in the morning, he was working at his ricefield in Barangay San Sotero, Javier, Leyte together with his father, mother, brother and a friend named Edwin Barotel. He arrived there at 7:30 in the morning and worked until 4:00 in the afternoon. Accused alleged that at around 11:30 in the morning, they took their lunch in the house of his parents located about 30 to 35 meters away from the farmland that they were working on. They later rested for a while and resumed work in the ricefield at 1:00 in the afternoon until 4:00. They also rested first before they went home in Barangay Calzada. When he arrived home, he was then informed by his wife that he was allegedly seen by Winefredo Cabarda jumping out from the window of the house of Anaclito Tisado. Upon hearing it, accused went to the house of Winefredo Cabarda and confronted the latter. When he asked Winefredo Cabarda about what he had said, the latter allegedly did not say anything. Accused thus told him that it was a delicate information and that it was not good. Thereafter, accused went home.
Accused further narrated that he became restless and so, he proceeded to the house of Anaclito Tisado at around 6:00 in the evening of the same day. He also confronted Tisado, who confirmed to him that indeed Cabarda told him (Tisado) that he (Cabarda) had seen accused jumped out from the window of Tisado’s house. Accused then belied the same and told Tisado that he was not in Barangay Calzada at that time because he was in Barangay San Sotero working in his ricefield. Accused alleged that he knew for the first time that he was being accused of thievery only after about three (3) months when a Warrant of Arrest was issued against him.
On cross-examination, accused explained that Barangay San Sotero and Barangay Calzada are located in the same municipality and via motorcycle, it would only take about twenty (20) minutes to reach Barangay San Sotero from Calzada. Accused declared that prior to the incident, he had no quarrel, trouble or altercation with Winefredo Cabarda. He was also surprised why he was being implicated in the theft incident. Nonetheless, he did not file a case for Oral Defamation against Cabarda. He alleged that the latter was made a witness against him because he (Cabarda) is complainant Tisado’s “batos”. Accused further averred that on said time and date, he was physically fit to perform any work.
The second witness, Edwin Barotel, corroborated accused with respect to his testimony that he (accused) was in Barangay San Sotero, Javier, Leyte on October 11, 2003 from around 7:30 in the morning until 4:30 in the afternoon. Barotel insisted that he was with accused the whole time on that day. According to Barotal, accused went to him that morning and requested him to bring accused in his motorcycle to Barangay San Sotero. Barotal alleged that they arrived in accused’s ricefield in San Sotero at around 7:45 in the morning. There, they cleaned the ricefield and stayed there up to 4:00 in the afternoon and rested at the house of accused’s mother in Barangay San Sotero Leyte from 11:00 in the morning to 12:00 noon.
The trial court’s ruling:
On July 22, 2008, the trial court found accused guilty beyond reasonable doubt of the crime charged against him. It sentenced him to suffer an indeterminate penalty of three (3) years, six (6) months and twenty-one (21) days of minimum term to eight (8) years and eight (8) months and one (1) day as the maximum term as well as to indemnify the offended party the amount of Php30,000.00 and to pay costs.
Hence, this appeal by the accused-appellant anchored on a lone assignment of error, thus:
The Assigned Error:[7]I.
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME CHARGED DESPITE THE FACT THAT HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.
The Court’s Ruling:
We find merit in the appeal.
Appellant questions the reliance of the trial court on the testimony of prosecution’s witness, Winefredo Cabarda and points out purported inconsistencies and improbabilities on the latter’s testimony. Appellant first asserts that from the testimony of Cabarda himself, the culprit was allegedly wearing a black mask at the time that he(Cabarda) saw him jump out from the window. This alone should have already cast reasonable doubt with respect to the identity of the culprit. Appellant also questions Cabarda’s identification of him for lacking in specific details. Appellant points out that Cabarda only saw the portion of the culprit’s eyes upwards and neck downwards, hence he insists that Cabarda should have given a specific description or perhaps offered distinguishing features/marks that would set him apart from the rest of the likely perpetrators. He also questions why Cabarda, as kagawad, did not alert other persons who were with him at the time he purportedly saw appellant jump out from the window and why a certain Kagawad Olarte, who was supposedly with Cabarda was mysteriously left out of the loop in the whole proceedings when he could have corroborated Cabarda’s testimony. Also, appellant asserts that the failure of the prosecution to present proof other than the bare and unsubstantiated testimony of private complainant that he owned and lost the amount of Php30,000.00 is insufficient. Appellant thus argues that all the foregoing have weakened the prosecution’s case.
Appellee People insists otherwise. It argues that the trial court did not err in convicting appellant as all the elements for the crime of theft had been left in no doubt, sufficiently established by the prosecution.
Appellant’s points are well-taken.
The primordial issue at bench is whether or not Cabarda’s identification of appellant was reliable and thus sufficient to convict appellant.
We answer in the negative.
In every criminal case, the task of the prosecution is always two-fold, that is, (1) to prove beyond reasonable doubt the commission of the crime charged; and (2) to establish with the same quantum of proof the identity of the person or persons responsible therefor, because, even if the commission of the crime is a given, there can be no conviction without the identity of the malefactor being likewise clearly ascertained.[8]
Although it is firmly entrenched in this jurisdiction that findings of the trial court on the credibility of the witnesses are accorded great weight and respect because it had ample opportunity to observe the demeanor of the declarants at the witness stand, this rule admits exceptions.[9] The saving instance is said to be when a fact or circumstance of weight and influence has been overlooked, or its significance misconstrued by the trial court sufficient to harbor serious misgivings on its conclusions.[10]
The first duty of the prosecution is not to prove the crime but to prove the identity of the criminal.[11] In that regard, an identification that does not preclude a reasonable possibility of mistake cannot be accorded any evidentiary force.[12] The intervention of any mistake or the appearance of any weakness in the identification simply means that the accused’s constitutional right of presumption of innocence until the contrary is proved is not overcome, thereby warranting an acquittal, even if doubt may cloud his innocence.[13] Indeed, the presumption of innocence constitutionally guaranteed to every individual is forever of primary importance, and every conviction for crime must rest on the strength of the evidence of the State, not on the weakness of the defense.[14]
When is identification of the perpetrator of a crime positive and reliable enough for establishing his guilt beyond reasonable? In People v. Caliso[15], the Supreme Court had the occasion to answer this query, thus:
The identification of a malefactor, to be positive and sufficient for conviction, does not always require direct evidence from an eyewitness; otherwise, no conviction will be possible in crimes where there are no eyewitnesses. Indeed, trustworthy circumstantial evidence can equally confirm the identification and overcome the constitutionally presumed innocence of the accused. Thus, the Court has distinguished two types of positive identification in People v. Gallarde, to wit: (a) that by direct evidence, through an eyewitness to the very commission of the act; and (b) that by circumstantial evidence, such as where the accused is last seen with the victim immediately before or after the crime. The Court said:
xxx Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime. There are two types of positive identification. A witness may identify a suspect or accused in a criminal case as the perpetrator of the crime as an eyewitness to the very act of the commission of the crime. This constitutes direct evidence. There may, however, be instances where, although a witness may not have actually seen the very act of commission of a crime, he may still be able to positively identify a suspect or accused as the perpetrator of a crime as for instance when the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the crime. This is the second type of positive identification, which forms part of circumstantial evidence, which, when taken together with other pieces of evidence constituting an unbroken chain, leads to only fair and reasonable conclusion, which is that the accused is the author of the crime to the exclusion of all others. If the actual eyewitnesses are the only ones allowed to possibly positively identify a suspect or accused to the exclusion of others, then nobody can ever be convicted unless there is an eyewitness, because it is basic and elementary that there can be no conviction until and unless an accused is positively identified. Such a proposition is absolutely absurd, because it is settled that direct evidence of the commission of a crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt. If resort to circumstantial evidence would not be allowed to prove identity of the accused on the absence of direct evidence, then felons would go free and the community would be denied proper protection.
Here, it must be recalled that the trial court gave so much weight to the testimony of prosecution witness, Winefredo Cabardo, to the effect that he saw appellant jumped out from the window of the house of private complainant Anaclito Tisado at the time of the theft incident. This witness did not actually see the appellant in the act of stealing. From said declaration, the trial court thus convicted appellant on circumstantial evidence.
Pertinent portions of the testimony of Cabarda on the matter are worth reiterating, thus:
Q: Do you know the accused in this case Mr. Witness in the person of Cristituto[16] Carcedo?
A: I know.
Q: Why is it that you know him?
A: Because he is a resident of our place and his wife is also a Barangay Kagawad.
Q: So that if Cristituto Carcedo is in Court, you will be able to recognize him?
A: Yes, sir.
Q: Is Cristituto Carcedo in Court now Mr. witness?
A: Yes, sir.
Q: Will you please point him out?
A: That one.
Interpreter: Witness pointing to a certain person inside this courtroom and identified himself as Cristituto Carcedo.[17]Q: Mr. Witness, do you recall where were you at around 11:00 o’clock or 11:30 o’clock in the morning of October 11, 2005 (sic)?
A: Yes, sir.
Q: Where were you?
A: I was by the Chapel.
Q: Chapel of what barangay and municipality?
A: Chapel of Brgy. Calzada, Javier, Leyte.
Q: Do you recall what where you doing as to why you were there at that time?
A: Yes, sir.
Q: What were you doing sir?
A: We unloaded pipe.[18]
x x x x x x x x xQ: While you were there transporting pipes to be used in your streetlights, do you recall if there was any untoward incident sir?
A: Yes, sir.
Q: What was it about?
A: When there was somebody who jumped from the window.
Q: Whose house and window was it wherein the person jumped Mr. witness?
A: House of Analicto Tisado.
Q: Where is that house situated? In what barangay and municipality?
A: In Bgy. Calzada, Javier, Leyte just across the Chapel.
Q: How far were you when you saw that person jumping from the house of Anaclito Tisado?
A: Thirty (30) meters.
Q: Were you able to recognize the person you saw from a distance of thirty (30) meters jumping from the house of Analicto Tisado?
A: Yes, sir.
Q: Who was he?
A: Cristituto Carcedo.
Q: Meaning the person you pinpointed as the accused in this case?
A: Yes, sir.
Q: Do you remember Mr. witness what was he wearing during that time when jumped from the window of Mr. Tisado?
A: He was not wearing anything, he was naked and he was having a black mask on his face.
Q: And when you say he was naked Mr. Witness, do you mean to say that he does not have anything with him?
A: He was wearing a short pants but on the upper portion of his body, there was nothing worn.[19]x x x x x x x x xQ: Upon seeing the accused Cristituto Carcedo jumping from the house of Mr. Tisado, what was your reaction sir?
A: I went near him.
Q: And while you were approaching him, what happened?
A: He ran away.
Q: And because he ran away, what did you do about it?
A: I chased him.[20]
x x x x x x x x x
On cross-examination, Cabarda further explained:
Q: Now, you said that the person who jumped out from the window, his face was covered with a mask. Am I correct?
A: Yes, Ma’am.
Q: And what was the color of his mask?
A: Black.
Q: So considering that his face was covered with a black mask, the face of that person cannot be seen by you. Am I correct?
A: I was able to see the portion from his eyes upwards and downwards from his neck.
Q: So the mask he was wearing of course covered the face of that person. Am I correct?
A: Only from the nose to the mouth.
Q: What could only be seen by you was the eyes of the person?
A: From the eyes to the forehead and the hair.
Q: And in fact both sides of the face could not be seen as well as the side of his hair?
A: I could see including his body.[21]
x x x x x x x x x
INTERPRETER: Witness demonstrating that the mask covered only the nose and the mouth when witness placed his hand covering the nose and the mouth.
COURT: x x x
It was sort of a handkerchief used to cover the nose and the mouth of the accused?
A: That was his clothing that covers his nose and mouth.
x x x x x x x x x
Q: That clothing was tied on the back of his head?
A: No ma’am.
Q: You mean to say it was just hanging?
A: It was being held by his hand.
Q: So the lower portion of his face was the one covered?
A: This way.
INTERPRETER: Witness demonstrating that the one that is covered is from the nose down to the mouth and not the face.
Q: You were able to identify only the accused thru his eyes and head?
A: On his body and I know him because he is from our place.
Q: Of course, there are many persons on your place who have the same body built with that of the accused. Am I correct?
A: He was different from the others.
Q: But that person you have seen do not bear any mark from his body which you would be able to identify that it was Cristituto Carcedo?
A: There was no mark.[22] (Emphasis supplied)
x x x x x x x x x
After a painstaking review of the records and judicious examination of the testimony of Cabarda with regard to his identification of appellant as the same person who he saw jumped out from private complainant’s house, this Court is not convinced with moral certainty that indeed it was appellant who committed the crime of theft. Reasonable doubt bothers the conscience.[23] With a cloud of doubt continuously hovering, the mind cannot rest.[24]
Firstly, it is noteworthy that the perpetrator, at the time he was supposedly seen jumping out from the window, was wearing a mask which covered his nose and mouth. Hence, Cabarda purportedly identified that person as appellant on the basis of his familiarity with the physical attributes of said appellant. He recognized appellant only from his eyes upwards and from his neck down.
Evidently then, Cabarda had no chance at all to clearly see the whole face of the supposed perpetrator. There was no instance in which Cabarda testified that the piece of cloth or mask which said perpetrator used to cover his nose and mouth was dislodged. Hence, appellee’s assertion that while jumping, it was possible that the felon’s face may have been exposed, deserves no consideration at all. As no statement to that effect was made, such inference is highly speculative. What can only be taken into consideration is Cabarda’s testimony that he based his identification of appellant from that part of the face that was not covered, that is, from the eyes upwards and the body built.
Regrettably, however, it is Our considered belief that Cabarda’s identification of appellant appears dubious and unconvincing. It fails to meet the requirement of moral certainty. It must be emphasized that his description of appellant was altogether general and wanting of specific details. How appellant differed from the others who may have essentially similar body built and facial features was not sufficiently described or established. Cabarda’s sweeping general statement that appellant’s body built is different from that of the others without providing further specific details and offering no distinguishing marks to set it apart from the rest would not suffice. In one case, it was held that the test to determine the moral certainty of an identification is its imperviousness to skepticism on account of its distinctiveness.[25] To achieve such distinctiveness, the identification evidence should encompass unique physical features or characteristics, like the face, the voice, the dentures, the distinguishing marks or tattoos on the body, fingerprints, DNA, or any other physical facts that set the individual apart from the rest of humanity.[26] These matters are absent from Cabarda’s description.
Resultantly, the possibility that it could have been some other person cannot just be brushed aside. There is no question that an identification that does not preclude a reasonable possibility of mistake cannot be accorded any evidentiary force.[27] Neither is Cabarda’s familiarity with appellant sufficient. A witness’ familiarity with the accused, although accepted as basis for a positive identification, does not always pass the test of moral certainty due to the possibility of mistake.[28] Here, it must be stressed that witness Cabarda was able to see the perpetrator only for a few seconds and that the same was so sudden. When he tried to chase him, the latter was able to flee. With this, We have a reserved doubt that a sheer look on the supposed covered face and body built of the perpetrator is sufficient enough to arrive at a certain conclusion that indeed it was appellant and no other.
In People v. Caliso[29], the High Court had this to say:
A witness’ familiarity with the accused, although accepted as basis for a positive identification, does not always pass the test of moral certainty due to the possibility of mistake.
No matter how honest Amegable’s testimony might have been, her identification of Caliso by a sheer look at his back for a few minutes could not be regarded as positive enough to generate that moral certainty about Caliso being the perpetrator of the killing, absent other reliable circumstances showing him to be AAA’s killer. Her identification of him in that manner lacked the qualities of exclusivity and uniqueness, even as it did not rule out her being mistaken. Indeed, there could be so many other individuals in the community where the crime was committed whose backs might have looked like Caliso’s back. Moreover, many factors could have influenced her perception, including her lack of keenness of observation, her emotional stress of the moment, her proneness to suggestion from others, her excitement, and her tendency to assume. The extent of such factors are not part of the records; hence, the trial court and the CA could not have taken them into consideration. But the influence of such varied factors could not simply be ignored or taken for granted, for it is even a well-known phenomenon that the members of the same family, whose familiarity with one another could be easily granted, often inaccurately identify one another through a sheer view of another’s back. Certainly, an identification that does not preclude a reasonable possibility of mistake cannot be accorded any evidentiary force.
Thus, considering that the circumstances of the identification of appellant as the same person who was seen jumping out from the window did not preclude a reasonable possibility of mistake, the proof of guilt did not measure up to the standard of proof beyond reasonable doubt demanded in criminal cases. Perforce, appellant’s constitutional right of presumption of innocence until the contrary is proved is not overcome, and he is entitled to an acquittal, even though his innocence may be doubted.[30]
WHEREFORE, premises considered, the instant appeal is GRANTED and accused-appellant is hereby ACQUITTED.
SO ORDERED.
Quijano-Padilla, and Azcarraga-Jacob, JJ., concur.
[1] Record, pp. 110-117.
[2] Ibid, p. 117.
[3] Record, p. 14.
[4] Per Certificate of Arraignment; Record, p. 17.
[5] Per Order dated July 20, 2004; Record, p. 18.
[6] Per Pre-Trial Order dated April 12, 2005; Record, p. 34.
[7] Rollo, Brief for the Accused-Appellant, p. 15.
[8] People v. De Guzman, G.R. No. 192250, July 11, 2012.
[9] Ibid.
[10] Ibid.
[11] People v. Villarico, Sr., et. al., G.R. No. 158362, April 04, 2011.
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] G.R. No. 183830, October 19, 2011.
[16] This name was corrected as “Restituto” on November 22, 2006 per Information; Record, p. 14.
[17] Transcript of Stenographic Notes, August 2, 2005, pp. 4-5.
[18] Ibid.
[19] Ibid, pp. 6-7.
[20] Ibid, p. 8.
[21] Ibid, pp. 10-11.
[22] Ibid, pp. 11-12.
[23] People v. De Guzman, G.R. No. 192250, July 11, 2012.
[24] Ibid.
[25] People v. Caliso, G.R. No. 183830, October 19, 2011.
[26] Ibid.
[27] People v. Reyes, G.R. No. 157943, September 4, 2013.
[28] People v. Caliso, G.R. No. 183830, October 19, 2011.
[29] Supra.
[30] Ibid.