THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ASTERIO MARCINA ALIAS AGO, DEFENDANT-APPELLANT.

It was the death of a certain Eliseo Ganay that led to the prosecution and thereafter conviction
for the crime of murder of the accused Asterio Marcina, now the appellant. 
The trial judge gave credence to the evidence for the prosecution that
the victim having taken refuge in the house of the accused in San Fabian on October 17, 1967 as the typhoon Welming prevented his return to Sison,
both municipalities being in Pangasinan, was
thereafter killed by the latter.  The
motive presumably was jealousy induced by improper advances to the wife of the
host.  The testimony on behalf of the
accused that the deceased met his death by drowning was thus found lacking in
persuasiveness.  Essentially then, this
is another one of those cases where the oft-reiterated doctrine of the findings
of fact by a lower court being entitled to respect in the absence of
circumstances of weight and impact either ignored or improperly appraised
possesses relevance.  After a careful
study of the record, this Court is unable to discern any justification for not
applying such principle.  We cannot
reverse.

As narrated by the prosecution witness Modesto Alipio, Eliseo Ganay and he while on their way home to barrio Cabuanan, Sison, Pangasinan, after smudging mango trees in San Fabian, same
province, met the accused Asterio Marcina,
personally known to the former.  He
cautioned them against crossing the river Bued, then
rather turbulent with a swift current due to the typhoon Welming.  He likewise invited them to spend the night
in his house.  The offer was
accepted.  After taking their supper,
they retired for the night.  At about 11 o’clock, Alipio
was awakened by a slap on his face.  When
he opened his eyes, he saw a man, subsequently identified as one Ading Suan^[1]
pointing a bolo at his breast.  That did
not prevent him from looking sidewise and noticing the accused astride Eliseo Ganay and squeezing his
neck.  The force was such that the
victim’s tongue was out, with blood oozing from his left eyebrow.  Then after a while, all resistance ceased.  When death was apparent, the accused called
to someone and ordered that the sled and the cow be made ready, after which the
corpse was taken downstairs, with the witness still being guarded by Suan.  Some time
later, the accused returned and warned Alipio not to
tell the authorities anything and not to show his face again in Sison, Pangasinan.  It was his fear that prevented him from
revealing sooner this gory occurrence. 
The lower court likewise took into consideration the testimony of a
Sergeant Alejandro Acosta of the Philippine Constabulary Unit at Bataquil, Pozorrubio, Pangasinan.  Upon
being ordered to investigate the circumstances attending the death of Eliseo Ganay, he proceeded to San
Fabian and interviewed the accused as he had been informed that the deceased
sought shelter in the latter’s house. 
This witness testified to the admission elicited from him that due to
jealousy, he killed the victim and thereafter disposed of the corpse by
throwing it into the river.^[2]
Thus the lower court came to the conclusion that the crime of murder imputed to
the accused was in fact committed.  In
the brief submitted by him as appellant, he confined himself to the allegations
in seven specific errors that the lower court ought not to have given credence
to the evidence for the prosecution and ought to have accepted the version of
the defense.

That is all, and it is not enough.  The doctrine of an appellate tribunal
according due weight and respect to the findings of a lower court stands in the
way.  A careful perusal of the record
does not warrant a reversal.

1.  An excerpt from People v.
Berame,^[3]
decided less than a year ago, is apropos: “This is a case,
therefore, where the trial court, after hearing and observing the witnesses
testify, and weighing what was said by them, did choose to believe the
prosecution rather than the defense.  For
such a finding to be overturned, there must be a showing that it did overlook a
material fact or circumstance or did misinterpret its significance.”^[4]
Not that there is novelty to such a 
doctrine.  One of its earliest
formulations came from United States
v. Ambrosio,^[5]
handed down in 1910.  In the language of
Justice Moreland, the ponente: “We do not
feel like interfering with the intelligent conclusion of a court concerning the
credibility of witnesses unless the record discloses that some fact or
circumstance of weight and influence was overlooked by the court or has been
misapprehended or misinterpreted.  A
careful examination of the record discloses to us no fact, no circumstance,
upon which we may base ourselves in saying that the trial court had no right to
arrive at the conclusion which he reached. 
His mind upon all the evidence was free from a reasonable doubt.  So is ours.”^[6] A
succinct statement of the reason that calls for such a principle may be found
in Justice Malcolm’s opinion in United States
v. Remigio.^[7]
Thus: “Relative to these findings of the trial court, we should of course
begin with the application of the oft-repeated rule as to the conclusion of the
trial court on the credibility of witnesses. 
The reason for this rule is that the trial court who sees and hears the
witnesses testify is in a far better position that the appellate court to
determine their credibility.”^[8]
There has been no retreat from such an approach.^[9]
The task before appellant then was far from easy, and it was not rendered any
easier by the fact that the tone in which the decision was assailed, while
vigorous, suffered from some discordant notes. 
That could not be helped as the testimony of the prosecution witnesses
held fast notwithstanding all attempts to detect flaws or inconsistencies.  The lower court, therefore, could not be
blamed for lending it credence.  Nor was
there any showing of any fact that was overlooked or the significance of which
was misinterpreted.

2.  It is undoubted that the
well-settled doctrine as to matters of credibility being for the lower court to
decide cannot, in the language of People v. Macaraeg^[10]
“rise above the constitutional presumption of innocence which can only be
overcome if the proof of guilt is beyond reasonable doubt.  A doctrine of this Tribunal, however
well-grounded in our past decisions, cannot prevail as against a mandate of the
Constitution.”^[11]
It is quite understandable then why appellant did try to show that the deceased
met his death by drowning.  Such an
attempt, however, was marked by futility. 
Considering the undeniable fact that the typhoon Welming
was at its height in the vicinity, the waters of the river Bued
thus rendered treacherous, it would be the height of folly to attempt to cross
it by swimming.  Common experience
cautions against the acceptance of a tale so contrary to what a man in his
right senses would do or refrain from doing. 
The lower court therefore cannot be blamed for refusing to yield assent.

3.  Also, as quite persuasive
in demonstrating the guilt of appellant, there was the categorical and straightforward
declaration of the eyewitness, Modesto Alipio.  As was pointed out in the decision, it would
be highly unusual, likewise contrary to human nature, for a man to impute such
a serious crime to another person if there were no truth to his testimony.  No motive was shown for his fabricating a
tale that could lead to so grievous a consequence for a fellow human
being.  Moreover, the cross-examination
to which he was subjected far from weakening what was testified to by him
strengthened it.  There was also the
admission by appellant made to Sergeant Acosta. 
It is contended that it should be ignored and disregarded, having been
the result of maltreatment.  The brief
for the appellee submitted by the then Solicitor
General, now Justice Felix V. Makasiar^[12]
denied such accusation.  Thus: “But
if this claim of appellant is true, why was no written confession obtained from
him by said P. C. soldiers?  If these
soldiers had to resort to physical violence to make appellant confess, surely
they would have seen to it that his confession was taken down in writing so
that he could not later easily repudiate or deny the same.  The fact, therefore, that no written
confession was taken from appellant belies the alleged involuntariness of the
confession made by him to these P. C. soldiers. 
Upon the other hand, Sgt. Acosta sent telegraphic messages to his
superiors after appellant’s escape from the P. C. detachment in Bataquil, giving the information that the latter had
confessed to the killing of Ganay before his escape,
and the spontaneity with which these messages were sent guarantees their
truthfulness.”^[13]
Such brief likewise stressed that such admission was confirmed on material
points by such facts as “the finding of Ganay’s
lifeless body under the Cayanga Bridge in San Fabian,
with signs that death came not only from drowning but also from cerebral
concussion that could have been produced by the knocking or stunning of the
brain; by the fact that among the injuries found on Ganay’s
body was a punctured wound near the left eyebrow; by the direct testimony of
prosecution witness Modesto Alipio, who actually saw
appellant kill the deceased; and by appellant’s admission that he had in his
possession the clothes, watch, and ring worn by the deceased the day the latter
died.  * * * Upon the other hand, the
explanation given by appellant on pages 30 to 32 of his brief for the injuries
sustained by the deceased, to the effect that they could have been caused by
boulders, bushes, pieces of wood, nails, or trees as the latter swam the
violent and swift waters of the Bued River on the
night in question, is, at best, conjectural and pure speculation, and hence can
not prevail over the clear and overwhelming evidence presented by the
prosecution that Ganay met his death at appellant’s
hands.”^[14]

4.  The brief for appellee also made clear why the lower court did not err in
rejecting the testimony of defense witness Francisco Batrina,
Pedro Soriano, and Federico Torres.  Thus: “In the first place, the
testimonies of both Batrina and Soriano
that they saw the deceased drown while attempting to swim across the Bued River during typhoon Welming
on the afternoon in question, as they were allegedly fishing at the time * * *,
is hard to believe, because it is incredible that both witnesses would be
fishing during such inclement, stormy weather. 
Besides, it is unnatural and contrary to ordinary human conduct that
these witnesses, after seeing Ganay drown before
their very eyes, did not report the tragic mishap to any member of the police
force of their barrio or municipality, nor did they promptly tell the
authorities what they knew when Ganay’s lifeless body
was found under the Cayanga Bridge two days
later.  And neither did they reveal to the
P.C.  soldiers who investigated Ganay’s death a month later that they actually saw him
drown at the Bued
River on the afternoon in
question.  As for defense witness
Federico Torres, then a municipal councilor of San Fabian, who testified that
he was in the house of appellant Marcina on the night
of October 17, 1967 (the night Ganay was killed) as
he was allegedly campaigning together with the vice-mayor of San Fabian that
night but did not see the deceased nor prosecution witness Modesto Alipio there, such testimony is likewise open to doubt
because of material contradiction therein, to wit:  (1) Federico allegedly was in the house of
appellant Marcina on the evening in question because
he was campaigning in that barrio * * *, but he testified on cross-examination
that his campaign itinerary for that day had been cancelled the day before
because of the typhoon, and for that reason, they did not campaign for two days
* * *; and (2) he claimed that the weather had cleared in the afternoon of
October 17, 1967 * * *, whereas the other defense witnesses said that the
weather was then bad and stormy, precisely because of typhoon Welming.”^[15]
The constitutional presumption of innocence was thus overcome.  That guilt was shown beyond reasonable doubt
is quite obvious.  Even if the evidence
for the prosecution were less conclusive and that for the defense less
implausible, this Court in People v. Tila-on,^[16]
with Justice J. B. L. Reyes as ponente,
stated: “Finally, the rule is now firmly established to the point of
becoming elementary in this jurisdiction and elsewhere that where there is an
irreconcilable conflict in the testimony of witnesses, the appellate court will
not disturb the findings of the trial court when the evidence of the successful
party, considered by itself, is adequate to sustain the judgment appealed
from.”^[17]

5.  The accused was found
guilty of murder, the qualifying circumstance of alevosia
being appreciated.  Why the offense
should be thus qualified was explained in the appealed decision.  Thus: “The manner in which the accused
disposed of and killed Eliseo Ganay
shows a mind disposed to commit a crime of murder, and was done so under a
circumstance in which the deceased was not able to offer any resistance, or
could not, in any way, defend himself. 
Of course, it cannot be said with certainty that the deceased, Eliseo L. Ganay, was shot while
still sleeping, but it can be said that he was shot while lying down.  The motive for the killing is very clear, the
accused himself provided it in his admission to Staff Sergeant Alejandro
Acosta, jealousy.”^[18]
In reaching such a conclusion, the lower court appeared to have ignored the
equally well-settled doctrine that the same degree of proof to dispel any
reasonable doubt is required to justify a finding of a qualifying
circumstance.  More specifically as to alevosia, Justice Mapa in United
States v. 
Rana,^[19]
a 1905 decision, categorically affirmed: “As the [qualifying] circumstance
of treachery (alevosia) is an important one, in
considering it, it should by all means be based on some positive conclusive
proof and not merely upon hypothetical facts drawn more or less logically,
because it is necessary that the existence of this circumstance in the
commission of the crime should be proven as fully as the crime itself, in order
to aggravate the penalty incurred by the guilty party.”^[20]
There was a reiteration of such a principle in the recent case of People
v.  Ardisa^[21]
in these words: “The qualifying circumstance of treachery may not be
simply deduced from presumption as it is necessary that the existence of this
qualifying or aggravating circumstance should be proven as fully as the crime
itself in order to aggravate the liability or penalty incurred by the
culprit.”^[22]
There are a number of decisions to the same effect.^[23]
The lower court thus clearly failed to meet the exacting norm required by the
law to justify the verdict that murder was committed.  At the most, only homicide in the state of
the competent and credible evidence of record could be imputed to appellant.

WHEREFORE, the appealed decision of November 15, 1968 is modified in the sense that
appellant Asterio Marcina
is found guilty of the crime of homicide and adjudged to suffer the
indeterminate sentence of 8 years and one day of prision
mayor as minimum and 14 years, 8 months and 1 day of reclusion temporal
as maximum.  In all other respects, the
appealed decision is affirmed.

Aquino and
Martin, JJ., concur.

Barredo and
Antonio, JJ., in the result.

Concepcion, Jr., J., on leave.

^[1] Apparently,
he was never apprehended for his participation, the information filed in this
case being only against Marcina.

^[2]
Decision, Annex to Brief, 40.

^[3] L-27606,
July 30, 1976, 72 SCRA 184.

^[4] Ibid,
188-189.

^[5]
17 Phil.  295.

^[6] Ibid,
302-303.

^[7]
37 Phil. 599 (1918).

^[8] Ibid,
610.

^[9]
Cf. People v. Gumahin, L-22357, Oct. 31, 1967,
21 SCRA 729; People v. Panganiban, L-22476,
Feb. 27, 1978, 22 SCRA 817; People v. Pelago,
L-24884, Aug. 31, 1968, 24 SCRA 1027; People v. Manos, L-27791, Dec. 24,
1970, 36 SCRA 457; People v. Beraces,
L-25016, March 27, 1971, 38 SCRA 127; People v. Sabandal,
L-31129, Sept. 30, 1971, 41 SCRA 179; People v. Dramayo,
L-21325, Oct. 29, 1971, 42 SCRA 59; People v. Angcap,
L-28748, Feb. 29, 1972, 43 SCRA 437; People v. Carandang,
L-31012, Aug. 15, 1973, 52 SCRA 259; People v. Macaraeg,
L-32806, Oct. 23, 1973, 53 SCRA 285; People v. Cudalina,
L-34969, April 29, 1975, 63 SCRA 499; People v. De la Victoria, L-30037,
June 27, 1975, 64 SCRA 400; People v. Ordonio,
L-33829, Dec. 19, 1975, 68 SCRA 397; People v. Sarile,
L-37148, June 30, 1976, 71 SCRA 593; People v. Berame,
L-27606, July 30, 1976, 72 SCRA 184.

^[10]
L-32806, October 23, 1973,
53 SCRA 285.

^[11] Ibid,
291.  The opinion cited People v.
Alto, L-18660, November 29, 1968,
26 SCRA 342 and People v. Pagkaliwagan,
L-29948, November 26, 1970,
36 SCRA 113.

^[12]
He was assisted by the then Assistant Solicitor General Antonio A. Torres and
the then Solicitor, now JDRC Judge, Alicia V. Sempio-Dy.

^[13]
Brief for Appellee, 10-11.

^[14] Ibid,
11-12.

^[15] Ibid,
12-13.

^[16]
112 Phil. 546 (1961).

^[17] Ibid,
550.

^[18]
Decision, Annex to Brief, 51-52.

^[19]
4 Phil. 231.

^[20] Ibid,
233-234.

^[21]
L-29351, January 23, 1974,
55 SCRA 245.

^[22] Ibid,
258-259.

^[23] Cf. People v. Pelago,
L-24884, Aug. 21, 1968, 24 SCRA 1027; People v. Torejas,
L-29935, Jan. 31, 1972, 43 SCRA 158; People v. Palacpac,
L-27822, Feb. 28, 1973, 49 SCRA 440; People v. Ardisa,
L-29351, Jan. 23, 1974, 55 SCRA 245; People v. Manlapaz,
L-27259, Feb. 27, 1974, 55 SCRA 598; People v. Ybañes,
L-30421, March 28, 1974, 56 SCRA 210; People v. Manzano,
L-33643, July 31, 1974, 58 SCRA 250; People v. Besana, L-26191, May 19, 1975, 64 SCRA 84; People v.
Samonte, L-31225, June 11, 1975, 64 SCRA 319; People v.
Macaso, L-30489, June 30, 1975, 64 SCRA 659; People v.
Anin, L-39046, June 30, 1975, 64 SCRA 729; People v.
Payao, L-29364, Nov. 21, 1975, 68 SCRA 70.