PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. BONIFACIO ENCISO ALIAS “BONING”, ACCUSED-APPELLANT.

For the fatal shooting of Rodolfo Jeminez on 25 June 1987 in Magdugo,
Toledo City, accused was charged with the crime of murder before Branch 20 of
the Regional Trial Court (RTC) of Cebu at Toledo City in an Information filed
on 23 July 1987.^[1]
The case was docketed as Criminal Case No. TCS-794. A warrant for the arrest of the accused was issued on 23 July
1987 but was returned unserved with the notation that the accused “was no
longer living in the above stated address.”^[2] Alias
warrants were then issued on 14 August 1987, 13 October 1987, 23 November 1987
and 7 December 1987.^[3]
Still, the accused could not be arrested. The trial court then issued on 28 January 1988 an order archiving the
case and directing the issuance of another alias warrant of arrest.^[4] Finally,
the accused was apprehended on 19 May 1988^[5] and the court
thus ordered the case removed from the archives and set for arraignment on 12 July
1988.^[6]

At his arraignment, the accused entered a plea of not guilty.^[7]
On 8 August 1988, or three (3) days before the scheduled pre-trial, he filed a
Motion to Dismiss^[8]
alleging therein that: (a) one Cesario
Benoya, Jr. had executed an affidavit before the clerk of court of the
Municipal Trial Court in Cities (MTCC) of Toledo City on 21 June 1988 wherein
Benoya expressly admitted to having shot twice the victim, Rodolfo Jeminez, in
the morning of 25 June 1987 at Magdugo, Toledo City, and wherein Benoya
absolved the accused from any liability for the death of the said victim; and
(b) on 12 July 1988, said Cesario Benoya executed an Affidavit of Confession in
the presence of his counsel, Atty. Jose B. Echavez, before MTCC Judge Pablito
Ruelan of Toledo City, wherein he confessed to having shot to death Rodolfo
Jeminez.

To “prevent [a] miscarriage of justice,” the trial
court issued on 11 August 1988 an order deferring action on the motion to
dismiss and directing the Fiscal of Toledo City to conduct a reinvestigation of
the case.^[9]
In compliance therewith, 1st Assistant City Fiscal Jacinto P. Cavada conducted
a reinvestigation, and on 15 November 1988, he submitted his Report and
Recommendation^[10]
wherein he stated his findings, among which are that Benoya is a jailmate of
the accused, and that the parents of the accused had talked to Benoya, who
later admitted to P/Cpl. Marcelino Cabiles and Pfc. Juanito Maraviles of the
Toledo City INP Station that the accused’s parents had convinced him to own to
the killing of Jeminez by offering him P10,000, of which P3,000
was paid in advance with the balance to be given upon the termination of the
case. The latter finding was
established by the joint affidavit of jail inmates Preabras Lebumfacil and
Roberto Sanchez, and that of Cpl. Cabiles and Pfc. Maraviles together with
their testimonies. Fiscal Cavada also
disclosed that Benoya has a pending case for theft in the City Court of Toledo
City and that earlier he had been convicted for theft by the RTC of Toledo City
on 27 November 1986 and the MTCC of Toledo City on 22 January 1986. Fiscal Cavada then concluded that the
purported affidavit of confession of Benoya must be rejected for being
perjurious.

Acting on the said report, the trial court, in its Order of 24
November 1988, denied the motion to dismiss because it was “convinced that
the alleged confession of Cesario Benoya, Jr. was obtained for monetary
considerations.”^[11]

On 20 December 1989, the accused filed a motion to dismiss on the
ground that the information is fatally defective.^[12]
This was opposed by the prosecution which also moved that it be allowed to
amend the information by adding the phrase “resulting in his death.”^[13]

In its Order of 26 January 1990, the trial court denied the
motion to dismiss while granting the motion to amend the information.^[14]

On 2 February 1990, the Acting City Fiscal of Toledo City filed
the Amended Information, the accusatory portion of which reads as follows:

“That on or about the 25th day of
June, 1987, at around 11:00 o’clock in the morning, more or less, at Barangay
Magdugo, Toledo City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with intent to kill and with evident
premeditation and treachery, in that suddenly and unexpectedly without giving
the victim a chance to defend himself, did then and there, willfully,
unlawfully and feloniously, with the use
of a paltik revolver shot one, RODULFO JEMINEZ, causing internal
hemorrhage secondary to gunshot wound resulting in his death.

CONTRARY TO LAW.”^[15]

Upon his arraignment on the amended information on November 1990,
the accused entered a plea of not guilty.^[16]
Trial on the merits ensued with the prosecution presenting Bibiano Purisima,
Dr. Rafael Trinidad and Francisco Abarquez as its witnesses. The witnesses for the defense were Roberto
Refuela, Danilo Rasonabe and the accused.

On 29 November 1991, the trial court promulgated its decision^[17]
convicting the accused of the crime charged. The dispositive portion thereof states:

“IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court is
constrained to convict the accused Bonifacio Enciso alias Boning beyond
reasonable doubt of the crime charged of Murder and hereby sentences him to a
penalty of life imprisonment and to pay Fifty Thousand Pesos (P50,000.00)
as pecuniary liability to the heirs of Rodulfo Jeminez, and to pay the costs.

SO ORDERED.”^[18]

The judgment of conviction is primarily based on the eyewitness
accounts of prosecution witnesses Bibiano Purisima and Francisco Abarquez. The former declared that at 11:00 o’clock in
the morning of 25 June 1987, while going home from his classes at the Magdugo
Barangay High School in Magdugo, Toledo City, he was met by the accused at the
gate of the said school. The accused
wanted to bring him to a culvert, about one-half (½) kilometers away from the school, so as to drink water from a
faucet. They rode on the accused’s
bicycle, with Bibiano pedaling it while the accused was at his back standing on
the extended axle of the rear wheel. Bibiano went to the faucet, leaving behind the accused. Since there was no water from the faucet,
Bibiano went back and rode again on the bicycle, with the accused still at his
back. As they were descending down the
road, the accused told Bibiano to slow down when they saw two (2) persons, one
of whom was a young boy. The accused
drew a firearm from his waist and shot the boy’s companion. The boy uttered, “Hala mo”
as the victim fell on his back. The accused then told Bibiano to go faster, but because the latter
pedaled slowly, the accused took over and pedaled the bicycle himself. Bibiano rode at the back, but got off near
the bridge, about 400 meters from where the victim was shot. Upon reaching home, he told his parents that
the accused had shot somebody. Bibiano’s father advised him not to escape but to surrender to the
police authorities. He was then brought
to the police department of Toledo City where he was investigated.^[19]

The boy who was with the victim at the time of the shooting was
Francisco Abarquez. The victim, Rodolfo
Jeminez, was his uncle. Francisco
testified that while they were walking home from the Magdugo Elementary School,
where he was then a Grade I pupil, at 11:00 o’clock in the morning of 25 June
1987, the accused, who was riding at the back of a bicycle, pulled out a
revolver and shot his uncle.^[20]

The accused interposed the defense of alibi. He claims that from 7:00 o’clock in the
morning up to 12:00 o’clock noon of 25 June 1987, he was in the house of
Roberto Refuela in Amislag, Toledo City, repairing radios with the latter and
Danilo Rasonabe. The last two
corroborated his testimony. He concedes,
however, that the distance between Amislag and Magdugo may be reached in five
(5) minutes by tricycle, and in twenty (20) minutes by walking.^[21]
He further admits that while in detention, he wrote a letter to prosecution
witness Purisima requesting the latter not to attend the hearing so that his case
could be disposed of immediately, promising, however, that he will help
Purisima after he is freed (Exhibit “D”).^[22]

The judgment of conviction is anchored on the following findings
and conclusions of the trial court: (a)
prosecution witness Bibiano Purisima and Francisco Abarquez positively
identified the accused as the one who had shot and killed the victim and
“their testimony remained unshaken, unsullied and unavoidably worthy of
credit and belief”;^[23] (b)
the defense of alibi “does not hold water” because Amislag, Toledo
City, where the accused claimed to be staying at the time of the commission of
the crime, is near Magdugo, Toledo City, where the crime was committed. The distance between the said places could
be negotiated by tricycle in five (5) minutes and the accused had a bicycle at
the time he shot the victim; (c) the accused did not surrender to the
authorities after the incident; on the contrary, he fled, and five (5) warrants
for his arrest had to be issued; it was only on 19 May 1988 that he was finally
arrested; this flight is indicative of guilt as “the wicked flee even if
no one pursueth but the righteous are as bold as the lion”; (d) he
“resorted to perverting and waylaying justice” by writing a letter to
Bibiano Purisima (Exhibit “D”) requesting the latter not to testify
in the case, which act is indicatory of his guilt; (e) he resorted to
fabrication of evidence by obtaining from
Cesar Benoya, Jr., his co-detainee, for and in consideration of P10,000.00
— of which P3,000.00 had been paid — the latter’s affidavit of
confession wherein Benoya took the rap for the accused and stated that the
latter happened merely to be riding at his back seat; and (f) with such
confession of Benoya, Jr., which the accused used as a basis for his motion to
dismiss, he cannot now be heard to say that he was not at the scene of the
crime at the time it was committed.

On 9 December 1991, the accused, hereinafter referred to as the
Appellant, filed his notice of appeal wherein he manifested his intention to appeal
from the judgment of the court a quo to the Court of Appeals on
questions of fact and law.^[24] The
trial court gave due course to the appeal, and the Court of Appeals docketed
the case as CA-G.R. CR No. 12594. However, in view of the penalty imposed, the Court of Appeals certified
the case to this Court on 22 May 1992.^[25] This
Court accepted the appeal on 17 June 1992.^[26]

In his Brief,^[27]
the appellant contends that the trial court erred:

“I

X X X IN STATING THAT THE APPELLANT WAS POSITIVELY IDENTIFIED BY
THE WITNESSES FOR THE STATE

II

X X X IN GIVING WEIGHT TO THE TESTIMONIES OF THE WITNESSES FOR THE
STATE

III

X X X IN GIVING WEIGHT TO THE NOTE WRITTEN BY THE APPELLANT
(EXHIBIT “D”) BY RULING THAT THE SAME WAS AN ADMISSION OF GUILT

IV

X X X IN CONVICTING THE APPELLANT OF THE CRIME OF MURDER.”^[28]

At the heart of the first two (2) assigned errors is the issue of
credibility of witnesses. More than
eighty (80) years ago, this Court laid down the rule that It will not interfere
with the judgment of the trial court in passing on the credibility of the
opposing witnesses, unless there appears in the record some fact or
circumstance of weight and influence which has been overlooked or the
significance of which has been misinterpreted.^[29] This
was reiterated thereafter in a plenitude of cases. The reason for this is that the trial court is in a better
position to decide the question, having heard the witnesses themselves and
observed their deportment and manner of testifying during the trial.^[30]
Elsewise stated, the trial court has the direct opportunity to observe the
witnesses on the stand and detect if they are telling the truth or lying
through their teeth.^[31]
There are certain matters that aid the trial court in determining the
credibility of witnesses which, however, are not available to the appellate
court. Thus, in United States vs. Macuti,^[32] this Court had the occasion to state:

“The emphasis, gesture and inflection of the voice are potent
aids in understanding the testimony of witnesses. The trial court has the opportunity and is presumed to take
advantage of these aids in weighing the testimony of the witnesses. But as they cannot be incorporated into the
record, this court has no assistance in the examination of the testimony and we
must therefore rely upon the good judgment of the lower court.”

In the fairly recent case of People vs. Arroyo,^[33] this Court also observed:

“Furthermore, findings of fact of trial courts are accorded
great weight by an appellate tribunal for the latter can only read in cold
print the testimony of witnesses which commonly is translated from the local
dialect into English. In the process of
converting into written form the
statements of living human beings, not only fine nuances but a world of meaning
apparent to the judge present, watching and listening, may escape the reader of
the written translated words.”^[34]

We have carefully read the transcripts of the stenographic notes
and evaluated the testimonies of the witnesses, and We find no cogent reason to
depart from the foregoing rule. The
trial court has not overlooked any fact of value or any circumstance of
consequence which, if considered, would affect the result of the case. Nevertheless, We shall still take up the
issues raised by the appellant.

In his first and second assigned errors, the appellant does not
controvert the presence of prosecution witnesses Purisima and Abarquez at the
crime scene at the time of its commission. No word suggestive of a denial of such presence confronts the eyes of
the reader. In short, he admits that
they were at the scene of the crime when it was committed but asserts, however,
that Purisima’s version of the incident is improbable because “it would be
highly and physically impossible for one pedaling a bicycle [referring to Purisima]
with your full attention focused to the center of the road and at the same time
turning your fact (sic) back in order to see appellant pulled (sic) his gun,
aiming it and firing the same at the victim.”^[35]
He also states that Abarquez offered a different version of the incident
because in his sworn statement of 2 July 1987, subscribed and sworn to before
Fiscal Cavada, he declared that the appellant first alighted from the bicycle,
pulled a gun from his waist and then fired at the victim.^[36]
According to him, this inconsistency is not just on a minor matter, but one
which “punctured the credibility” of both witnesses. Finally, he maintains that there is a
palpable showing of improper motive on the part of Abarquez in testifying
against the appellant because the victim is the former’s uncle.^[37]

As to alibi, he claims that he has indisputably demonstrated that
at the time of the commission of the crime, it was physically impossible for
him to have been at or near the scene of the crime.

We are not persuaded.

In the first place, it is not at all impossible for Purisima,
while then pedaling the bicycle with the appellant at his back, to notice and
see the latter pull his firearm and fire at the victim. He could very well do this by turning his
head to the side and toward the back which was, in fact, what he did. The impossibility suggested by the
appellant has not been proven during the cross-examination of the witness,
either by actual demonstration or by independent testimony. On the
other hand, the trial court explicitly characterized the testimonies of
Purisima and Abarquez as “unshaken [and] unsullied.”

In the second
place, the so-called sworn statement of Abarquez was neither identified nor
offered in evidence by the appellant. His Brief does not contain any page reference to the record where such
sworn statement can be found. Section
34, Rule 132 of the Rules of Court provides that a court shall consider no
evidence which has not been formally offered. Not having been identified or offered in evidence, the appellant cannot
use it to impugn the credibility of Abarquez. Besides, the witness was never confronted with such statement by the
counsel for the appellant; hence, it cannot be considered against the witness for
non-compliance with Section 13, Rule 132 of the Rules of Court which provides:

“SEC. 13. How
witness impeached by evidence of inconsistent statements. — Before a
witness can be impeached by evidence that he has made at other times statements
inconsistent with his present testimony, the statements must be related to him,
with the circumstances of the times and places and the persons present, and he
must be asked whether he made such statements, and if so, allowed to explain
them. If the statements be in writing
they must be shown to the witness before any question is put to him concerning
them.”

Moreover, a sworn statement or affidavit,
being taken ex-parte, is almost always incomplete and
often inaccurate, sometimes from partial suggestion, or for want of suggestions
and inquiries.^[38]
Its infirmity as a species of evidence is a matter of judicial experience.^[39]
Affidavits taken ex-parte are generally considered to be
inferior to the testimony given in open court.^[40]

In the third place, the imputation of an ulterior motive upon
Abarquez springs solely from his being the nephew of the victim. Relationship per se does not give
rise to a presumption of ulterior motive, nor it does ipso facto impair the credibility^[41]
or tarnish the testimony of a witness.^[42] It
has been correctly observed that the natural interest of witnesses who are
relatives of the victims in securing the conviction of the guilty would deter
them from implicating persons other than the culprits, for, otherwise, the
latter would thereby gain immunity.^[43] It
must be shown that the testimony is inherently improbable in itself or that
there is a properly charged ulterior motive of the witness to incriminate the
accused.^[44]
Were the rule otherwise, many criminals whose crimes were witnessed only by
relatives of the victims would go scotfree. It must be stressed here that if an accused had really nothing to do
with a crime, it is against the natural order of events and of human nature and
against the presumption of good faith that a prosecution witness would falsely
testify against him.^[45]

The appellant having thus been positively identified by
prosecution witnesses Purisima and Abarquez, the defense of alibi must
fail. It is a fundamental juridical
dictum that alibi cannot prevail over the positive identification of the
accused.^[46]
Moreover, for alibi to prosper, it is not enough that an accused is able to
show that he was somewhere else when the crime was committed, he must likewise demonstrate that it
was physically impossible for him to have been at the scene of the crime at the
time it was committed.^[47] As
correctly stated by the trial court, due to the proximity of Amislag, where
appellant claimed to be staying, to Magdugo, the crime scene, it was not
impossible for the appellant to be at the latter place at the time the crime
was committed.

The arguments relied upon by the appellant in his third and
fourth assigned errors are without merit. His conviction for the offense charged is not based on Exhibit
“D,” the appellant’s letter to Purisima requesting the latter not to
testify against him, but rather on the testimonies of prosecution witnesses
Purisima and Abarquez who “positively identified that the accused shot and
killed the victim Rodulfo Jeminez on June 25, 1987 at 11:00 o’clock in the
morning at Magdugo, Toledo City with a handgun.”^[48]
The trial court merely considered Exhibit “D” as
“indicative” of the appellant’s guilt.^[49] It
also considered the unsuccessful service of several warrants for his arrest as flight,
which is also indicative of guilt. The
trial court was correct on these matters. If, indeed, the appellant did not commit the offense imputed to
him, he would not have exerted any effort to write Exhibit “D” to the
principal prosecution witness, Purisima, nor promised to help him once he is
freed. If the law enforcement
authorities failed to serve the warrants for his arrest, it was for no other
reason than that he could not be found at his place of residence and his
whereabouts had become unknown after the incident. In short, he fled from the authorities. He offered no satisfactory explanation therefor, nor did he even
attempt to. As early as 1913, in United States vs. Alegado,^[50]
this Court already stated that:

“Indeed, the law is entirely
well settled that the flight of the accused is competent evidence
against him as having a tendency to establish his guilt.”

Five (5) years later, in United
States vs. Sarikala,^[51] this Court held:

“Flight, when unexplained, is a circumstance from which an
inference of guilty (sic) may be drawn. ‘The wicked flee, even when no man pursueth; but the righteous are as
bold as a lion.'”

In subsequent cases, this Court has declared that flight
evidences guilt and a guilty conscience, that it strongly indicates a guilty
mind, or betrays the existence of a guilty conscience.^[52]
This is not, of course, to say that non-flight is proof of innocence. There is no case law holding that non-flight
is conclusive proof of innocence.^[53]

We likewise agree with the observation of the trial court that
the defense was guilty of fabricating evidence when it procured, for a monetary
consideration, Cesario Benoya, Jr. to “confess” as the killer of
Rodolfo Jeminez and thereafter to use it as a ground for a motion to dismiss
the case. Benoya’s first affidavit of
21 June 1988 and affidavit of confession of 12 July 1988 are obviously
perjurious for he could not have killed Rodolfo Jeminez on 25 June 1987 in
Magdugo, Toledo City, since by then he was already serving two (2) sentences
for theft at the Toledo City jail. By
resorting to such maneuvers, the defense not only exposed the hopelessness of
its cause, but also demonstrated its capacity to fabricate evidence, pervert
the truth and obstruct the administration of justice, acts which this Court
cannot countenance. Whoever is the
lawyer who advised or approved of such fabrication or, knowing the
“affidavit of confession” to be perjurious and to have been obtained
through bribery, nevertheless
presented it in court as truthful and reliable evidence to obtain the dismissal
of the case against his client, is liable for the violation of Rule 19.01 of
the Code of Professional Responsibility which directs a lawyer to, inter alia, employ
only fair and honest means to attain the lawful objectives of his client or of
Rule 10.01 thereof, which mandates that no lawyer shall do any falsehood or consent
to the doing of any in court.

No error then was committed by the trial court in finding the
appellant guilty beyond reasonable doubt of the crime of murder. The penalty imposed, which was life
imprisonment, should, however, be changed to reclusion perpetua. We have pronounced in many cases that life imprisonment is not the same
as reclusion perpetua.^[54] In People vs. Baguio,^[55] this Court held:

“The Code does not prescribe the penalty of ‘life
imprisonment’ for any of the felonies therein defined, that penalty being
invariably imposed for serious offenses penalized not by the Revised Penal Code
but by special laws. Reclusion perpetua entails
imprisonment for at least thirty (30) years after which the convict becomes
eligible for pardon, it also carries with it accessory penalties, namely:
perpetual special disqualification, etc. It is not the same as ‘life imprisonment’ which, for one thing, does not
carry with it any accessory penalty, and for another, does not appear to have a
definite extent or duration.”

In People vs. Penillos,^[56] We said that every judge should take
note of this distinction and that no judge should mistake one for the
other. We reiterate this admonition.

WHEREFORE, finding no reversible error therein, the challenged Decision of Branch
20 of the Regional Trial Court of Cebu at Toledo City in Criminal Case No.
TCS-794 is hereby AFFIRMED subject to
the above modification regarding the proper designation of the penalty. Costs against the accused-appellant.

SO ORDERED.

Feliciano, (Chairman), Bidin, Romero, and Melo, JJ., concur.

^[1]
Original Records (OR), 1.

^[2]
Id., 10.

^[3]
Id., 11-14.

^[4]
OR, 15.

^[5]
Id., 18.

^[6]
Id., 19.

^[7]
Id., 28.

^[8]
Id., 33-35.

^[9]
Id., 45.

^[10]
OR, 48-50.

^[11]
Id., 55.

^[12]
OR, 82-84.

^[13]
Id., 86-89.

^[14]
Id., 90-91.

^[15]
Id., 97.

^[16]
TSN, 5 November 1990, 2.

^[17]
OR, 431-445. The decision is dated 11 November 1991.

^[18]
Id., 445.

^[19]
TSN, 5 November 1990, 3-9.

^[20]
TSN, 29 January 1991, 2-4.

^[21]
TSN, 19 April 1991, 2-4.

^[22]
Id., 11-13.

^[23]
Annex “A,” Brief
for Appellant, 15; OR, 443.

^[24]
OR, 448.

^[25]
Rollo, CA-G.R. CR No. 12594, 30.

^[26]
Rollo, 2.

^[27]
Id., 20, et seq.

^[28]
Brief for Appellant, 3, 9.

^[29]
U. S. vs. Ambrosio, 17 Phil. 295 [1910].

^[30]
People vs. Simon, 209 SCRA 148 [1992], and a host of cases cited
therein; People vs. Pama, G.R. Nos. 90297-98, 11 December 1992.

^[31]
People vs. Santito, 201
SCRA 87 [1991].

^[32]
26 Phil. 170, 180 [1913].

^[33]
201 SCRA 616, 624 [1991].

^[34]
Citing People vs. Taduyo, 154 SCRA 349 [1987].

^[35]
Brief for Appellant, 4.

^[36]
Id., 6-7.

^[37]
Id., 7-8.

^[38]
People vs. Magdadaro, 197 SCRA 151 [1991].

^[39]
People vs. Patilan, 197 SCRA 354 [1991].

^[40]
People vs. Loveria,
187 SCRA 47 [1990].

^[41]
People vs.
Tinampay, 207 SCRA 425 [1992].

^[42]
People vs. Uy, 206
SCRA 270 [1992].

^[43]
People vs. Alcantara 33 SCRA 812 [1970]; People vs. Radomes, 141 SCRA 548 [1986]; People vs.
Aguinaldo, 165 SCRA 682 [1988]; People vs. Abonada, 169 SCRA 530 [1989].

^[44]
People vs. Reception, 198 SCRA
670 [1991].

^[45]
People vs. Balili, 92 SCRA
552 [1979].

^[46]
People vs. Mercado, 97 SCRA 232
[1980]; People vs. Clores, 184 SCRA 638 [1990]; People vs. Arceo,
187 SCRA 265 [1990]; People vs. Beringuel, 192 SCRA 561 [1990].

^[47]
People vs. Penillos, 205 SCRA 546 [1992]; People vs. de la Cruz, 207 SCRA 632 [1992].

^[48]
OR, 443.

^[49]
Id., 444.

^[50]
25 Phil. 510 [1913].

^[51]
37 Phil. 486 [1918].

^[52]
See People vs. Garcia, 209 SCRA 164 [1992], and the cases therein cited.

^[53]
People vs. Hangdaan, 201 SCRA 568 [1991]; People vs. Macalino,
209 SCRA 788 [1992].

^[54]
People vs. Mobe, 81 Phil. 58 [1948]; People vs. Abletes, 58 SCRA
241 [1974]; People vs. Gonzales, 58 SCRA 265 [1974]; People vs.
Pilones, 84 SCRA 167 [1978].

^[55]
196 SCRA 459 [1991].

^[56]
Supra at
565-566.