PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. EXIQUIEL TALAVER, ACCUSED-APPELLANT.

In the early evening of May 18, 1986, Technical Sergeant Leonardo
Bautista of the Philippine Navy, while engaged in a drinking session with his
friends in front of a sari-sari store in Zamboanga City, sustained
multiple gunshot wounds allegedly inflicted by accused-appellant Exiquiel
Talaver. The victim was rushed to a
nearby hospital but he expired after a few days.

In an information filed on August 11, 1986, appellant was charged
with murder committed as follows:

“That on or about May 18, 1986, in the City of Zamboanga,
Philippines, and within the jurisdiction of this Honorable Court, above-named
accused, armed with a handgun, with treachery and evident premeditation and
with intent to kill, did then and there wilfully, unlawfully and feloniously,
assault, attack and shoot with the said weapon that he was then armed with, at
the person of Leonardo Bautista y Aquino, thereby inflicting mortal gunshot
wounds upon the latter’s person, which directly caused his death, to the damage
and prejudice of the heirs of said victim.

CONTRARY TO LAW.”^[1]

Due to the fact that appellant could not be apprehended for some
time, the case against him was archived on December 17, 1987. However, on August 19, 1991, appellant was
arrested and detained thereafter. Arraigned on September 13, 1991, he pleaded not guilty and trial on the
merits ensued,^[2]
during which the evidence for the prosecution sought to present the antecedent
facts as hereunder summarized.

From the records of this case, it does appear that at around six
o’clock on May 18, 1986, four persons, namely, Victor Son, Alfredo Teves,
Leonardo Bautista and a certain “Men” were drinking beer outside the
“Nora Joy” store, situated at Ortega Street, Tetuan, Zamboanga City.^[3]
Exiquiel Talaver came over from a nearby store and approached the
aforementioned group. As he approached,
appellant greeted Victor Son, saying “Hi, Vic,” and the latter replied,
“Hi, General Ver.” Appellant then asked, “O, anong problema,”
(What’s the problem?). Apparently
irritated by the question, Leonardo “Butch” Bautista stood up, at the
same time holding the pistol on his waist, and retorted, “O, bakit kung
may problema, kaya mong lutasin?” (If there is a problem, can you
solve it?).^[4]
Immediately thereafter, Bautista pulled out his pistol^[5]
which was tucked in his waist under his shirt.

Talaver hurriedly left, then ran away, and was chased by
Bautista,^[6]
but the latter apparently failed to overtake appellant. On the advice of Teves, Son followed them,
but nevertheless lost track of the two, and by the time Son went back to the
store, Bautista was already seated and drinking together with the rest of the
group. About fifteen to twenty minutes
later,^[7]
appellant suddenly arrived and appeared from behind Bautista. Talaver held a revolver with two hands
positioned straight forward, aimed, and fired more than one shot,^[8]
causing the victim to sustain three gunshot wounds in the back portion of the
waist and in the buttocks.^[9]

The foregoing facts narrated by Victor Son were corroborated by
Alfredo Teves, another prosecution witness. Teves testified that while he was seated on a bench in front of the
deceased, he saw appellant fire the fatal shots from behind the victim. He further recounted that he forthwith proceeded
to hail a tricycle, and after he had placed the victim in the vehicle, the
latter was entrusted to one Carlos Oyao who brought the victim to the Brent
Hospital at Cawa-Cawa Boulevard. Teves,
on the other hand, boarded his own motorized bicycle and followed the tricycle
to the hospital.^[10]
The victim was later transferred to the Zamboanga General Hospital where he
died. The cause of death was
“cardio-pulmonary arrest secondary to pulmonary embolism GSW with
multi-perforated small intestine.”^[11]

Appellant, on his part, insisted that at about 5:00 P.M. on May
18, 1986, he went to Ortega Drive at Tetuan, Zamboanga City, which he described
as a squatters’ area, to see a certain “Frank,” supposedly a
co-worker of his brother at ZAMCELCO. Not finding Frank at his residence, he proceeded to a nearby basketball
court and, thereafter, he passed by Nora’s store to buy softdrinks. While he was at a distance of about ten
meters therefrom, he was greeted by Victor Son, whom he had met in one of their
basketball games. He returned the
latter’s greeting by saying, “What’s the problem?” Then one of Son’s
companion stood up and approached him. The man was holding a pistol which he poked at appellant, saying,
“Vagina of your mother, why if I have a problem can you solve it?”
Upon seeing the drawn pistol and hearing the words uttered, appellant ran away,
but the man chased him and even fired at him once but missed.^[12]

He proceeded to Matulungin Drive which is on the other side of
Ortega Street. Later, he boarded a
tricycle and went to the house of his brother, Federico, in Tumaga, Zamboanga
City where he spent the night. The
following morning, he went home to Basilan Province, without knowledge of any
untoward incident that transpired at Ortega Drive. He further explained that the purpose of his going to Zamboanga
City was to turn over to his brother the produce of the latter’s farm and
fishpond at Maluso, Basilan Province and also to visit his friend, Frank, whose
surname he cannot remember.^[13]
The store owner, Nora Luy, was later presented and she recounted what she could
remember of the incident,^[14]
while the brother of appellant gave corroborative testimony that appellant was
with his family at around 8:00 P.M. and left for Basilan at around 6:00 A.M.
the following day.^[15]

In its decision in Criminal Case No. 2183 (8203), dated February
6, 1992, the Regional Trial Court of Zamboanga City, Branch 13,^[16]
found appellant guilty beyond reasonable doubt of the crime of murder, without
any attendant aggravating or mitigating circumstance, and sentenced him to
suffer the penalty of reclusion perpetua with the accessory penalties
attached thereto, to indemnify the heirs of the deceased victim in the amount
P50,000.00, and to pay the costs.

Before us, appellant contends that the trial court committed
“grave and reversible” errors (1) when it classified the crime
committed as murder, qualified by treachery, without proof beyond reasonable
doubt that the elements of alevosia are present; and (2) in convicting
appellant of murder without proof beyond reasonable doubt that he perpetrated
the crime as charged.^[17]
These assignment of errors should logically be taken up and discussed in
inverse order. We shall accordingly do
so.

Appellant disputes the finding on his culpability and would
insist on his denial of having had any participation in the killing of the
victim, in brief, a defense of denial cum alibi. The clear and positive identification made
by the witnesses for the prosecution is, however, entitled to more weight than
appellant’s protestations.

Victor Son, one of the prosecution witnesses obviously knew
whereof he spoke, as he was an actual eyewitness with full opportunity to
observe the commission of the felony. He accurately described the event in detail, thus:

“Q     When
Talaver arrived at the place where you were drinking, what did he do next?

A          He
shot at the back of Butch Bautista.

Q         What
did he use in shooting Butch Bautista?

A         Revolver.

Q         Will
you please demonstrate to the court how he shot Butch Bautista?

A         He
was using his two hands straight forward.

x x x

Q         More
or less how far was he from the back of Butch Bautista?

A          More
or less two meters.

Q         More
or less how many shots did you hear?

A          I
cannot remember anymore, more than one shot, I cannot remember, but it is more
than one shot.

Q         At
the time when Talaver shot Butch Bautista, more or less how far were you from
Butch Bautista?

A         A
distance of one and a half meters.

Q        What
is your position in relation to Butch Bautista?

A         We
were facing each other.

Q        Now
will you please tell the Honorable Court why do you know Exiquiel Talaver?

A         We
are neighbors.

Q         And
how is his house more or less from your house?

A         100
meters more or less.

Q         Now,
what is the full name of Talaver?

A         Exiquiel
Talaver.

Q         If
that Exiquiel Talaver will be in court today, will you be able to point to him?

A         Yes,
sir.

Q         Now
will you please look around in (the) court(room), if is around, will you please
point to him?

A         He
is there. (The witness pointed to a
person (who) when asked (for) his name identified himself as Exiquiel
Talaver).”^[18]

We reiterate once again that the defense of alibi being
admittedly the weakest, it cannot prevail over positive identification of the
accused by prosecution witnesses.^[19]
Positive identification prevails over the denial of the accused, unless the
latter can establish the physical impossibility of his presence at the place
and time of the commission of the crime,^[20]
either before, during, or after he was at such other place.^[21]
It is not enough to prove that the appellant was somewhere else when the crime
was committed, but it must likewise be demonstrated that he was so far away
that he could not have been physically present at the place of the crime or its
immediate vicinity.^[22]
Where, nothing supports the alibi except the testimony of a relative, it
deserves but scant consideration,^[23]
as alibi must be proved by independent witnesses.^[24]
In the instant case, appellant’s alibi is definitely unsustainable.

With regard to the alleged discrepancies in the testimonies of
the prosecution witnesses, as pointed out by appellant, the most that can be
said is that they are minor contradictions. These inconsistencies are insignificant and may be attributed to the
lapse of time between the event and the testimony. On the other hand, such discrepancies are indicative of
credibility, for a completely congruent testimony is suspect, considering that
different persons obtain differing impressions.^[25]

The alleged contradictions between the testimony of Victor Son
and his answer to Question No. 9 in his affidavit, where he said that when
Bautista confronted Talaver, the former did not only stand up but also drew his
gun and cocked it, was clarified during the cross-examination. Son explained that when he said Bautista
just held his gun on his waist, that was when he was already shot,^[26]
not while he was chasing Talaver during the first confrontation.^[27]
After the remark “Anong problema,” Bautista stood up, at the
same time holding his pistol, and answered “Why, if there’s a problem, can
you solve it?”^[28]

Moreover, even assuming arguendo the existence of said
alleged contradictions, they do not detract from his credibility or that of the
other witnesses. It is a matter of
judicial experience that an affidavit, being taken ex parte is almost
always incomplete and often inaccurate, sometimes from partial suggestions,
sometimes for want of suggestions and inquiries, without the aid of which the
witness may be unable to recall the connected collateral circumstances
necessary for the correction of the first suggestions of his memory for his
accurate recollection of all that belongs to the subject.^[29]

On the second imputed error, we are of the same opinion as the
court below that treachery attended the killing of the victim.

This Court has consistently reiterated the statutory norm that to
constitute treachery, two conditions must be present, to wit: (1) employment of means of execution that
gives the person no opportunity to defend himself or to retaliate; and (2) the
means of execution were deliberately or consciously adopted.^[30]

Also, when an event has supervened between the challenge and the
assault, there is no longer any reason for the victim to expect the attack,
hence such attack thereafter would clearly be attended by alevosia. Thus, where the attempt of the victim’s son
to pacify the accused and his companion had seemingly succeeded, there was no
longer any reason for either the victim or his son to expect any attack from
the accused. Hence, where thereafter
the accused suddenly and unexpectedly rushed at the victim and stabbed him in
the back, the attack was clearly attended by alevosia.^[31]

The case at bar is analogous to the circumstances of the
aforecited case. Inceptively, the
victim made a challenging retort during an exchange of words with
appellant. There was, however, the
supervention of the fact that appellant, upon seeing the victim draw his
firearm, did not do anything but instead fled from the scene. Confidently, the victim resumed his drinking
spree with the rest of the group. The
deceased obviously thought that appellant would not retaliate and was
consequently taken completely by surprise. Otherwise, he could have gone home or could have warned his companions
to be cautious just in case appellant would return to retaliate.

While it is true that the victim was in a pugnacious mood in
confronting appellant, coupled with an aggressive stance of holding his firearm
during the first confrontation between them, there was, however, no belligerent
reaction on the part of appellant which could have forewarned the victim of a
subsequent retaliation. Evidently, the
victim did not expect that a reprisal, retaliatory in character, would endanger
his being, as he resumed his merry-making. When the fatal firing of the revolver was made while the victim was not
in a position to defend himself, that mode of execution was employed with the
victim having no opportunity at all to repel the aggression or to escape. When appellant ran away and procured a
firearm to perpetrate the crime of murder, the means employed was consciously
and deliberately adopted.

Restating the observation of the Solicitor General, the time gap
between the moment when Bautista returned to his seat after having chased
appellant away and the actual shooting thereafter was relatively brief such
that a retaliation could not have been expected nor anticipated. Also, appellant knew that a .45 caliber
pistol has a powerful capacity, hence he chose to maneuver from behind the
victim to insure success by utilizing the element of surprise. The previous incident of appellant having
been chased, coupled with a threatening attitude of the victim, was sufficient
warning to appellant that if he were to shoot while coming from the direction
where he had previously approached the group, he would not be able to
consummate his attack. Ergo, he decided
to attack from behind, otherwise he would expose himself to risk. In fact, the deceased even tried to draw his
pistol after being shot, in order to fire back against appellant.^[32]

Lastly, the factual environment of this case reveals that the
aggravating circumstance of evident premeditation alleged in the information
has neither been proved nor can the elements thereof be inferred. In any event, under the present state of the
law and in light of the constitutional proscription which is applicable to this
case, the presence or absence of such aggravating circumstance would be of no
significance considering the penalty imposed on accused-appellant Exiquiel
Talaver.

WHEREFORE, on the foregoing premises, the challenged
judgment of the trial court is hereby AFFIRMED in toto.

SO ORDERED.

Narvasa, C.J., (Chairman), Padilla, Nocon, and Puno, JJ., concur.

^[1]
Original Record. 1.

^[2]
Rollo, 13.

^[3]
TSN, October 14, 1991, 3.

^[4]
Ibid., id., 4-5, 15-16; October 28, 1991, 13.

^[5]
Ibid., October 28, 1991, 14.

^[6]
Ibid., October 14, 1991, 5, 15.

^[7]
Ibid., November 19, 1991, 12.

^[8]
Ibid., October 24, 1991, 5, 16.

^[9]
Ibid., October 29, 1991, 7.

^[10]
Ibid., October 28, 1991, 10-18.

^[11]
Ibid., id., 6; Exhibits B and B-3.

^[12]
Ibid., November 19, 1991, 14-18.

^[13]
Ibid., id., 19-20.

^[14]
Ibid., id., 2-13.

^[15]
Ibid., id., 29-30.

^[16]
Original Record, 50-54; Judge Carlito A. Eisma, presiding.

^[17]
Brief for Accused Appellant; Rollo, 39.

^[18]
TSN, October 14, 1991, 5-6.

^[19]
People vs. Lago, G.R. No. 96090, March 30, 1993, 220 SCRA 578.

^[20]
People vs. Escosio, et al., G.R. No. 101742, March 25, 1993, 220 SCRA
475.

^[21]
People vs. Libungan, G.R. No. 102351, March 22, 1993, 220 SCRA 315.

^[22]
People vs. Bernardo, et al., G.R. No. 97393, March 17, 1993, 220 SCRA
31.

^[23]
People vs. Waggay, et al., G.R. No. 98154, February 9, 1993, 218 SCRA
742.

^[24]
People vs. Hubilo, G.R. No. 101741, March 23, 1993, 220 SCRA 389.

^[25]
People vs. Gutierrez, et al., G.R. No. L-30314, March 15, 1982, 112 SCRA
409.

^[26]
TSN, October 14, 1991, 13.

^[27]
Ibid., October 28, 1991, 14.

^[28]
Ibid., October 14, 1991, 16.

^[29]
People vs. Laredo, et al., G.R. Nos. 81249-51, May 14, 1990, 185 SCRA
383.

^[30]
People vs. Mallari, G.R. No. 94299, August 21, 1992, 212 SCRA 777;
People vs. Mabuhay, G.R. No. 87018, May 24, 1990, 185 SCRA 675.

^[31]
People vs. Gutierrez, Jr., G.R. No. L-39383, March 14, 1988, 158 SCRA
614.

^[32]
Rollo, 121-122.