THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MODESTO BERACES, SILVINO BIACOLO, JIMMY NICOLAS AND FELIPE VILLA, DEFENDANTS, MODESTO BERACES, SILVINO BIACOLO, JIMMY NICO…

For the killing of Miguel Lomontod
on the afternoon of March 7, 1959 in Barrio Ilijan, Sto. Niño, Samar, apparently
attributable to differences arising from a claim for a share in the harvest by
one of the accused and a dispute over ownership of a parcel of land by another,
Modesto Beraces, Silvino Biacolo, Jimmy Nicolas, and Felipe Villa were prosecuted
for murder in the Court of First Instance of Samar,
Branch V.  They were convicted and sentenced to reclusion perpetua.  Hence this appeal.  A
careful study of the evidence of record fails to lend support to the main
contention of appellants that their guilt had not been proven beyond reasonable
doubt.  We have no choice but to affirm.

The testimony for the prosecution was to the effect that the
deceased Miguel Lomontod with his wife, Sofia Gonzaga, was on the afternoon of March 7, 1959 in the house of Jacinto Dignos in Barrio Sto. Niño, Samar.  Also present were his mother, Florentina Cabantoc, together
with his sister and brother-in-law, Ester Lomontod
and Ceferino Moscoriola.^[1]
He left the place to return to his house, about a kilometer away in the same
barrio, together with his wife, mother, sister, and brother-in-law at about 3:00 o’clock in the after­noon.  With them was a certain Pio
Pomentera. 
Upon reach­ing a certain intersection on the way, Pomentera
placed his arm around the shoulder of the deceased and informed him that to
pass by the main road would be dangerous, an abandoned narrow trail being
preferable instead.^[2]

The deceased, unfortunately for him as it turned out later, paid
heed.  They took the trail, the wife and
the mother follow­ing at a distance, with the spouses Ester Lomontod
and Ceferino Moscoriola
taking the usual way.  Soon after, Pomentera took off his arm from the shoulder of the
deceased, then stepped backward and requested the deceased to wait for him.^[3]
As the deceased turned around to face Pomentera, a
shot, apparently coming from a banana grove some ten meters away from the
deceased, exploded.  It found its mark, the deceased being hit on the back.  He fell down and cried for help, addressing
his mother.  The wife instinctively took
cover behind the trunk of a coconut tree nearby upon hearing
the shot.  Pomentera
ran away.^[4]
The wife, from the cover afforded by the coconut tree, saw four men armed with
guns emerge from the banana clump.  They
were the accused, now appellants Modesto Beraces, Silvino Biacolo, Felipe Villa,
and Jimmy Nicolas, all of whom were known to the mother, the wife, and the
brother-in-law, Moscoriola.  Appellants Beraces
and Biacolo each carried a carbine; appellants Villa
and Nicolas had a rifle and thompson,
respectively.^[5]
Appellant Beraces took a shot at the deceased, the
bullet hitting the ground just in front of the victim.  At that point, the deceased raised his left
hand.  It was then that appellant Biacolo took aim and fired at the deceased, hitting his
ring finger.  As the deceased lay
prostrate on the ground, appellants left.^[6]

The mother and the wife attended to the deceased, as best they
could, with his sister and the brother-in-law assisting.  Jacinto Dignos, who
was informed of the tragedy, came, and the deceased was brought to his house.^[7]
The deceased, very much weakened, asked his wife and his mother to look for a
motorboat so that he could be taken to Catbalogan, Samar for treatment.  They proceeded to do so, but soon after, they
were called by Moscoriola to return to the house of Dignos as the condition of the deceased has taken a turn
for the worse.  It was at that stage,
with life ebbing away and death impending, that the victim told his wife in the
presence of his mother and brother-in-law that the persons who shot him were
the herein appellants.^[8]
Then he died.

Upon an examination of the body of the deceased by a sanitary
inspector, Serafin Villa, bullet wounds on the back
and front were found.  It was his view
that the wound on the back was the entrance of the bullet, and the wound on the
abdomen, the exit.  He also found a wound
on the left-hand ring finger of the deceased. 
The Chief of Police of Sto.
Niño, Jacinto Reyes, made an ocular inspection of the
scene of the incident, accompanied by the sanitary inspector.  They located three empty shells fired from a
carbine; two were near the cluster of banana plants, and the third, near the
place where the deceased fell.^[9]

There was likewise evidence as to motive.  Appellant Beraces
nursed a grudge against the deceased as the latter, in 1958, had refused to
give appellant his share of the harvest of rice from the land owned by one
Miguel Apostol who appointed the deceased as
overseer.  Appellant Beraces
had previously worked on the land by planting rice thereon.  Between Jesus Llever,
Francisco Llever and appellant Silvino
Biacolo on one hand, and the family of the deceased,
on the other, was a dispute over the ownership of a land pending before the
Court of First Instance of Samar and docketed as
Civil Case No. 4728.  Appellant Felipe
Villa was a constant companion of Silvino Biacolo, while appellant Jimmy Nicolas was the brother-in-law
of appellant Modesto Beraces.^[10]

It was on the basis of the testimony for the prosecution coming
from the mother, Florentina Cabantoc,
the wife, Sofia Gonzaga, and the brother-in-law, Seferino Moscoriola, that
appellants were convicted of the crime charged, the lower court rejecting the
defense of alibi relied upon by them.  As
noted in the decision:  “On the
other hand, the defense put up by the accused is alibi, a defense which is said
to be the weakest, seldom believed for given weight, except (1) when the
identity of the accused has not been positively made, and (2) when the evidence
is airtight, which means that there was physical impossibility for the accused
to be in the place where the incident took place because they were in another place
which makes it physically improbable for them to be at the place of the
incident.  Modesto Beraces
claims that he was in [Barrio] Baras with his
co-accused Jimmy Nicolas, together with Marcos Orongan
and Fortunato Orongan, a
place only three kilometers away from the scene of the incident.  Silvino Biacolo claims to be in [Barrio] Cabonga–an making sled together with Dioscoro
Bransuela, also three kilometers away, more or less,
from the place of the incident.  Felipe
Villa claims that he was in [Barrio] Cabonga-an on
March 6 and 7 together with Perito Branzuela cementing the
house of Venancia Biacolo.  Marcos Orongan
corroborated the alibi of Silvino Biacolo,
while Silvino Biacolo
corroborated the alibi of Felipe Villa.”^[11]
The lack of persuasive character of such a defense was explained in the
decision thus:  “The Court is not
impressed by the alibi put up by the accused. 
It is far from airtight so to speak. 
True Modesto Beraces claims that he was in
[Barrio] Baras with his co-accused Jimmy Nicolas, now
his brother-in-law, but Barrio Baras appears only to
be three kilometers away from the place of the incident and it takes barely two
hours to negotiate the distance.  Felipe
Villa was in [Barrio] Cabonga-an only two kilometers
away from the scene of the incident while Silvino Biacolo likewise was in [Barrio] Cabonga-an.  Considering the distance of the place where all the accused claim they were during the day of the
incident it is not improbable that they could have been in the place of the
incident, commit the act imputed against them, then return in the place where
they claim they were, negotiating the distance in a short time.”^[12]

1. It is significant that in this appeal the attack on the
correctness of the lower court decision is centered on the proposition that the
prosecution failed to prove beyond reasonable doubt the guilt of the
accused.  Appellants would have this
Court disregard the findings of the trial judge as to the weight to be given
the evidence of record.  That such a
power exists is not to be denied.  It is
equally undeniable that unless a fact or circumstance of weight or influence
has been shown to be disregarded by the lower court there is no justification
for its judgment as to the credibility
to be attached to the testimony offered by the witnesses being disturbed.  So this Court had occasion to reiterate in
the relatively recent case of People v. Gumahin.^[13] Thus: 
“The findings of the lower court embodied in a well-written
decision cannot only stand the test of the most rigid scrutiny but also has in
its favor the well-settled principle that as far as credibility is concerned,
the findings of the lower court which had the opportunity to see, hear and
observe the witnesses testify and to weigh their testimonies will be accorded
the highest degree of respect by this Tribunal.”^[14] Appellants were unable to demonstrate that
such a principle should not be paid deference.

2. It is likewise stressed in this appeal that the lower court
should not have considered the identification of appellants as coming within
the concept of a dying declaration.  It
is not denied, as it could not be denied, that immediately after the victim had
pointed to appellants as the perpetrators of the crime, he died.  When his mother and his wife were called back
from a mission to get a motorboat so that the deceased could be taken to Catbalogan, he was lying at death’s door.  What was uttered then did come from a man who
was mortally wounded and who was least likely to pervert the truth, conscious
as he was that he was about to join his Maker. 
It would be to flout the well-accepted doctrines announced by this Court
time and time again as to what is a
dying declaration, if under such circumstances the lower court would be held as
having committed an error in giving credence to the statement made by the
deceased.  That we are
not disposed to do.^[15]

WHEREFORE, the decision of the lower court of January 20
1965 convicting appellants of the crime of murder and sentencing each of them
to suffer the penalty of reclusion perpetua,
with the accessories of the law, is affirmed, with the only modification that the indemnity to the heirs of Miguel Lomontod should be in the sum of P12,000.00
for which appellants are liable jointly and severally.

Concepcion, C.J., Reyes, Dizon, Makalintal, Zaldivar, Castro, Teehankee, Villamor, and Makasiar, JJ., concur.

Barredo, J., no part.

^[1]
T. s. n. , Dec.
12, 1960, pp. 5-6; t.s.n., Feb. 6, 1961, pp. 33-34 and t.s.n., Feb. 7,
1962, pp. 52-53.

^[2]
Ibid, pp. 6-7; pp. 34-35; and pp. 53-54.

^[3]
Ibid, pp. 7-8; pp. 35-36; and pp. 54-55.

^[4]
Ibid, pp. 8-9, 12; pp. 36-37; and p. 55.

^[5]
Ibid, p. 9; p. 37; and pp. 55-56.

^[6]
Ibid, pp. 9-10; pp. 37-38; and p. 57.

^[7]
Ibid, p. 10; p. 38; and pp. 55-57.

^[8]
Ibid, p. 10; p. 39; and pp. 58-59.

^[9]
Ibid, p. 5 and pp. 81-82.  Also Exhs. C,
C-1, and D.

^[10]
Ibid, p. 40 and pp. 28-29.

^[11]
Decision of the lower court, Appendix to the Brief for the
Appellants, p. 33.

^[12]
Ibid, p. 34.

^[13]
L-22357, Oct, 31, 1967, 21 SCRA 729.  Citing People v. Tila-on, L-12406, June 30, 1961,
2 SCRA 653; People v. Curiano, L-15256-57, Oct. 31, 1963, 9 SCRA 323 and People v. Lumayag,
L-19142, Mar.
31, 1965, 13 SCRA 502.

^[14]
Ibid, pp. 735-736.

^[15]
Cf. People v. Devaras, Feb. 27, 1971 citing
United States v. Castellan, 12 Phil. 160 (1908); United States v.
Mallari, 29 Phil. 14 (1914); People v. Chan
Lin Wat, 50 Phil. 182 (1927); People v. Ancasan, 53 Phil. 779 (1928); People v. Serrano, 58
Phil. 669 (1933); People v. Mabassa, 65 Phil.
568 (1938).