G.R. No. 106633. December 01, 1994
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. AVELINO ESCALANTE, RODOLFO ESCALANTE, EUGENIO ESCALANTE AND NENE ALDAMIA, ACCUSED, AVELINO ESCALANTE, ACCUSED-APPELLANT.
PADILLA, J.:
In Criminal Case No. 120(88) of the Regional Trial Court of Davao
del Sur, Branch 19, Digos, Davao del Sur, Avelino Escalante, together with his
brother, Rodolfo Escalante, his father, Eugenio Escalante and Nene Aldamia,
were charged with the crime of murder under Article 248 of the Revised Penal
Code, as amended, allegedly committed as follows:
“That on or about April 16, 1988, in Hagonoy, Davao del Sur,
Philippines and within the jurisdiction of this Honorable Court, the accused
aforenamed, conspiring with and mutually helping one another, with intent to
kill and with treachery by employing means to weaken the defense or to insure
the execution of the crime or afford them impunity, and being then armed with
guns, among which a short firearm, did then and there wilfully, feloniously and
unlawfully attack and shoot one Venancio Fernandez with said short firearm,
thereby hitting and inflicting gunshot wound on his head that directly caused
his death.”[1]
When arraigned, all the accused pleaded “not guilty”,[2]
after which, trial on the merits ensued wherein the prosecution and the defense
adduced their respective evidence.
The trial court summarized the respective evidence for the
prosecution and the defense, as follows:
“Witnesses for the prosecution are: Edwina Cortez, Indolecio Solis, Elpidio Monarca, Eutiquio Rojo
and Dominador Taneza.
In a nutshell, they testified as follows:
Edwina Fernandez Cortez, daughter of the victim, testified that her
house is about 10 fathoms away from the house of the victim; that in the
evening of April 16, 1988, the victim was in her house; that she was also in
her house, lying down, putting the children to sleep inside the house; that
while tending to her two children, she heard a gunburst. When she heard the gunburst, she rose and
reached (for) her flashlight. After
taking that flashlight, she went to the wooden railing and looked at the
direction of the house of her father. She put on the flashlight and through the wooden railing of her window,
she focused the flashlight at accused and saw them. The accused fired their guns. She put off the flashlight.
On cross (examination), she admitted that she did not actually see
who fired the gunburst (TSN 11-21-88, p. 12, cross E. Cortez).
Indolecio Solis testified that he has a firearm; that the firearm
is a ‘single shot armalite (homemade)’; that accused Eugenio Escalante
borrowed his firearm on April 16, 1988 because Eugenio is going home to his
house; that he does not know where the house of Eugenio is; that the firearm
was returned on the 17th.
Dr. Elpidio Monarca testified that he saw the body of Venancio
Fernandez at the Tajo Funeral Parlor; that the body was already very stiff;
that he noticed that there is a wound in the neck. He asked the relatives what happened and their answer was
“binaril”. He examined the
cadaver. He found only a gunshot wound
at the left portion of the neck. He
noticed a spill of blood in the body that came from the nose, mouth and
neck. He did not prepare a post mortem
examination report.
Pfc. Eutiquio Rojo testified that he knows one Solis, Indolecio who
on April 19, 1989 turned over one firearm to Police Sergeant Diomedes Barimbad
at the Police Station. He saw the turn
over because he was also at their office.
Dominador Taneza testified that accused Avelino Escalante
offered to give him money to kill the victim. The offer was for P3,000.00. He
did not tell the family of the victim about the plan to kill. He is an ex-convict. He did not see who killed the victim. So, he does not know who killed the victim
(TSN 2Â-15-88, p. 20, Court-D. Taneza).
The defense presented the following witnesses: Virginia Cabigon, Melecio Abrea, Aurelio
Genonsalao, Evaristo Barbadillo, Avelino Escalante, Eugenio Escalante, Ireneo
Aldamia, Godofredo Sarabillo, Cirilo Malinao and Cirilo Devellerez.
In substance, the defense’s witness Virginia Cabigon testified
that: Sometime on April 16, 1988 at
about 5:30 in the afternoon, while at the balcony of her house, she saw accused
Avelino Escalante feeding his pigs. At
6:10 o’clock she was at the house of Avelino Escalante watching TV. Avelino was also inside the house lying in
the sala. While they were viewing TV,
Avelino Genonsalao and Melecio Abrea arrived. They requested Avelino to guard because Venancio Fernandez was killed. At the time Venancio Fernandez was killed,
she was at the house of Avelino Escalante and his co-accused were in his
house. The house of Avelino is about 1
1/2 kilometers from the house of the victim.
Melecio Abrea testified that on April 16, 1988, he reported for
duty as NAKASAKA guard. He reported for
duty at 6:00 o’clock in the evening. Before he reported for duty, he passed by the house of Aurelio
Genonsalao. The house of Avelino
Escalante is near the house of Genonsalao. He saw Virginia Cabigon, Damaso Genonsalao, Noel Cabigon and Loren
inside the house of Avelino. Avelino
Escalante was also inside lying down at the veranda. Eugenio Escalante, Rodolfo and Boy Alcaria were there. Avelino Escalante went along with them to
the center post and guarded there up to the following morning. Even before Avelino Escalante joined them as
guard, Avelino was in his house. Avelino could be clearly seen through the veranda of his house.
Aurelio Genonsalao testified that Avelino is his neighbor and that
their houses are only about 2 meters away from each other. On April 16, 1988 at 6:00 o’clock, he saw
Avelino sleeping in his house. Rodolfo
and Eugenio Escalante were also in the house of Avelino at 6:00 o’clock in the
morning up to late 6:00 o’clock in the afternoon. At 8:00 in the evening, Barangay Captain Cirilo Devellerez
informed them that somebody was killed at Barangay New Quezon. At that time, Avelino was at his house and
they woke him up and informed him of the incident. When they informed
Avelino, both Eugenio and Rodolfo were also there in Avelino’s store.
Evaristo Barbadillo testified that on April 16, 1988, he reported
for duty as NAKASAKA guard at 6:00 o’clock in the afternoon. Avelino Escalante arrived in the guard post
at about 8:30 in the evening
after being awakened by Avelino
Genonsalao and Melecio Abrea at Avelino’s house, which is only 30 meters from
the guard post. Devillerez informed
them that somebody at New Quezon was killed. On April 16, 1988 at about 8:00 in the evening, he saw also Rodolfo and
Eugenio Escalante at the house or store of Avelino. He saw them from 6:00 P.M. to 8:30 in the evening. They can (sic) be seen from the guard post where he was guarding and the
place where they were drinking is not far and they did not leave the place.
Accused Avelino Escalante testified that on April 16, 1988, he was
at his house and at 6:00 in the evening, he was lying down at the sala of his
house.
Accused Rodolfo Escalante testified that on April 16, 1988, he was
repairing the house of Avelino Escalante; and that he stopped repairing the
same at 5:00 o’clock in the afternoon. After they stopped working, they drank tuba.
Accused Eugenio Escalante testified that on April 16, 1988, he was
in the house of Avelino Escalante doing carpentry works in Avelino’s house;
that they started working at 7:00 o’clock; that his companions were Rodolfo,
Avelino, Boy Datulayta, and Aser. They
finished working at about 5:00 o’clock in the afternoon. They bought tuba at the store and drank up
to 8:30 in the evening. Evaristo
Barbadillo informed them that Venancio Fernandez was killed.
Accused Nene Aldamia testified that on April 16, 1988, he was in
their house. After twelve noon, he went
to the basketball court to play basketball. He played up to 5:00 o’clock P.M. and after playing basketball, he went
home. He took his supper and reported
for duty with the NAKASAKA. On duty
with him were Guillermo Maco, Rudy Barbadillo, Mateo Temperatura, Ponsing
Temperatura and Boy Papalid. They
rendered duty from 6:00 P.M. to 1:00 o’clock early dawn.”[3]
After trial, the court a
quo rendered on 30 October 1990 a decision[4]
convicting Avelino Escalante of the crime of murder but acquitting all the
other accused for “lack of sufficient evidence.” The decretal portion
of the decision reads:
“WHEREFORE, PREMISES CONSIÂDERED AND IN VIEW OF THE FOREGOING,
this Court hereby finds only the accused Avelino Escalante guilty of murder
with the accessory penalties of the law and hereby acquits the rest of the
accused for lack of sufficient evidence. The accused Avelino Escalante is hereby sentenced to suffer imprisonment
for life or reclusion perpetua.
The accused Avelino Escalante only is hereby ordered to pay unto
the heirs of the late Venancio Fernandez the following amounts:
1) P40,000.00 for indemnity
to the victim’s life;
2) P30,000.00 for
corrective or exemplary damages to provide a lesson for others in the future
and to serve the public good;
3) P10,000.00 for
attorney’s fees; and
Costs of the proceedings.
SO ORDERED.”[5]
In convicting the accused Avelino Escalante and in acquitting his
co-accused, the trial court held, among others, as follows:
“No doubt there was a crime. Somebody was killed. Who killed
the victim? Nobody was an eye witness
to the actual killing. It is only
circumstantial evidence.
Edwina Fernandez Cortez, victim’s daughter, said she saw the
accused when she brandished her flashlight through the window of her house but
that was after the gunburst that killed the victim. When she heard the first gunburst, she was attending to her
children so that they will be induced to sleep. After hearing the first gunburt, she had to rise and get her
flashlight and go to the window. When
she reached the window, she allegedly saw, by using her flashlight, the accused
fired again a shot. But she admitted
she did not see who fired the second shot. She did not see who fired the first gunburst (TSN 11-21-88, pp. 8-12,
Direct-E. Cortez). There were only two
gunbursts (TSN 11-21-88, p. 11, Direct?E. Cortez) and she did not see who
fired both.
Indolecio Solis said Eugenio Escalante borrowed his single shot
armalite because Eugenio was going home to his house (TSN 11-24-88, p. 6,
Direct-E. Solis). He did not claim to
have seen who killed the victim.
Dr. Elpedio Monarca believes that the bullet that killed the victim
is a .38 caliber because the circumference of entry of the wound is 3 to
4 centimeters. He also believes that an
armalite bullet wound has a circumference of 1 to 2 centimeters (TSN 12-12-88,
p. 9, Cross-Dr. E. Monarca).
Pfc. Rojo testified that Indolecio Solis turned over a firearm to
Police Sergeant Barimbad of the police station. That he was present
when the firearm was turned over. He
identified the firearm which looks like a caliber 45 with an armalite ammunition
which was turned over by the
police to the Fiscal (TSN 2-15-89, p. 21, direct-Pfc Rojo).
Dominador Taneza, an ex-convict (TSN 2-15-89, p. 17, cross-D.
Taneza) alleged that accused Avelino Escalante requested him to kill the victim
as early as August 11, 1987 for a reward of P3,000.00 but he did not accede to
the request (TSN 2-15-89, p. 16, Cross-D. Taneza). The probable reason was the fact that Avelino Escalante
previously pointed a gun at one of the players in a gambling place. The victim confiscated that gun. This was the cause of the quarrel.
Despite the lapse of time from 1987 to April 1988, however, Taneza
did not tell the victim or his family of said request (TSN 2-15-89, p. 13,
Cross-D. Taneza) in spite of the fact that he is close to one of the children
of the victim. He, however, admitted
that he did not know who killed the victim because he did not see the culprit
(TSN 2-15-89, p. 20, Court-D. Taneza).
There being no eyewitness to the killing, the prosecution wanted to prove its case by
circumstantial evidence.
“Circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstance; (b) The facts from which the
inferences are derived are proven; and (c) The combination of all the
circumstances is such as to produce
a conviction beyond reasonable doubt (People
vs. Utrela, 105 SCRA 497).”
Will the combination of all the circumstances presented by the
prosecution convict the accused beyond reasonable doubt? This is the principal issue.
The testimony of the victim’s daughter alleging the circumstance of
presence of the accused near the house of the victim at the time of the killing
is uncorroborated.
“An uncorroborated cirÂcumstantial evidence is not sufficient
to sustain a conÂviction.” (People
vs. Orpilla, 110 SCRA 53).
The evidence presented by the prosecution is weak because of the
absence of an eyewitness to the killing.
The alibi interposed by the accused is also regarded as a weak
defense.
The rule, however, is that “the prosecution must prove the
guilt of the accused upon the strength of its own evidence and not by the
weakness of that of the accused.” (People
vs. Tabayoyong, 104 SCRA 724).
The alleged borrowing of a gun with armalite ammunition by
one of the accused from one of the prosecution witnesses did not find support
from the testimony of the prosecution witness Dr. Elpedio Monarca who believed
that the gunshot wound which caused the death of the victim was that of a cal.
38 pistol and not of an armalite ammunition.
The allegation of conspiracy in the information was not proved
beyond reasonable doubt by the evidence presented by the prosecution.
xxx xxx xxx xxx
Hence, conspiracy was not convinÂcingly proved beyond reasonable
doubt. However, this Court’s thinking
has been disturbed by the failure of the accused Avelino Escalante to deny
prosecution witness Taneza’s positive declaration insisting that accused
Avelino Escalante offered to hire him to kill Venancio Fernandez for P3,000.00
as consideration because Avelino Escalante’s gun, at one time previously, was
confiscated by the deceased (Venancio Fernandez) when Avelino pointed a gun at
one of the players in a gambling place. This had caused a quarrel between accused Avelino and the deceased. Necessarily, Avelino Escalante had a
motive. Motive is not an element of a
crime. Therefore, it is immaterial,
unless there is doubt as to the identity of the accused or evidence proving
guilt is circumstantial. (People vs.
Sales, 44 SCRA 489; People vs. Basuel, 44 SCRA 207; People
vs. Custodio, 47 SCRA 289; People
vs. Dorico, 54 SCRA 172; People
vs. Alviar, 59 SCRA 136; US vs. McMann, 4 Phil. 161; People
vs. Rogales, L-17531, Nov. 30, 1962; People vs. Madrigal
Gonzales, April 30, 1963, G.R. No. L-16688-90; People vs.
Elizaga, 47 O.G. No. 12 Supp. p. 59).
That this court must be satisfied by proof beyond reasonable doubt,
however, does not mean such proof, as excluding possibility of error, for
absolute certainty is not really a requirement. x x x .
xxx xxx xxx xxx
Considering all the foregoing evidence and jurisprudence, this
Court is of the opinion and so holds that there is enough moral certainty that
one of the accused, at least, fired the shot that killed the victim (Venancio
Fernandez). Prosecution witness Edwina
Fernandez-Cortez saw them firing. She
cannot only say who among them. This
Court, however, finds that of these accused persons, the one with a motive to
kill, is Avelino Escalante. He offered
P3,000.00 to kill the victim. It was
because at one time, his gun was confiscated by the victim when in a gambling
place, Avelino pointed his gun to one of the players. This had caused quarrel between the accused Avelino and the
victim. This was the testimony of the
prosecution witness Taneza. The mere
fact that Taneza is ex-convict does not necessarily follow that all he declares
is untrue. His testimony was
straightforward. Avelino’s alibi does
not help, for he was allegedly only, at most 1-1/2 kilometers away from the
place of the killing. He could easily
slip and go to the victim to kill the latter while he and his companions were
drinking tuba. Criminals usually drink
preparatory to the commission of a crime. The chain of events and circumstances prior to the killing had given the
Court moral certainty as to the guilt of the accused in the killing beyond any
reasonable doubt which qualifies it to murder due to treachery with the
aggravating circumstance of evident premeditation and superior strength.”[6]
Accused Avelino Escalante moved for reconsideration[7]
but his motion was denied by the trial court in its order[8] dated
5 July 1991.
Hence, this appeal of accused Avelino Escalante.
In his brief, accused-appellant contends that the lower court
erred: (1) In basing its decision of
conviction solely on the uncorroborated circumstantial testimony of Dominador
Taneza whose testimony is tainted with prejudice; (2) In not believing his
testimony as corroborated by his witnesses; and (3) In convicting him inspite
of real and well-founded reasonable
doubts surrounding his guilt.
The appeal is meritorious.
In a criminal prosecution, the conviction or acquittal of the
accused hinges on the testimony of the witnesses and the trial court’s
assessment of their credibility.
Ordinarily, this Court will not interfere with the trial court’s
findings and conclusions on the credibility of the witnesses, in deference to
the rule that the trial court having had the opportunity to observe the
demeanor and conduct of the witnesses while testifying, is in a better position to properly gauge
their credibility. This rule of
appreciation of evidence, however, does not apply where — as in the present
case[9]
— one judge heard the testimony of the witnesses and another judge penned the
decision, for, in such a case, the reason for the rule does not exist.[10]
Besides, the said rule of appreciation of evidence must yield to the superior
and immutable rule that the guilt of the accused must be proved beyond
reasonable doubt, because the law presumes that an accused is innocent and this
presumption must prevail unless overturned by competent and credible proof.[11]
It has been repeatedly held by this Court that “(e)vidence
to be believed, must not only proceed from the mouth of a credible witness, but
must be credible in itself — such as the common experience of mankind can
approve as probable under the
circumstances. We have no test of the
truth of human testimony, except its conformity to our knowledge, observation,
and experience. Whatever is repugnant to
these belongs to the miraculous and is outside of judicial cognizance.”[12]
The trial court in this case convicted accused-appellant mainly
on the testimony of prosecution witnesses Edwina Fernandez Cortez and Dominador
Taneza. Thus, it held:
“Considering all the foregoing evidence and jurisprudence,
this Court is of the opinion and so holds that there is enough moral certainty
that one of the accused, at least, fired the shot that killed the victim
(Venancio Fernandez). Prosecution
witness Edwina Fernandez-Cortez saw them firing. She cannot only say who among them. This Court, however, finds that of these accused persons, the one
with a motive to kill, is Avelino Escalante. He offered P3,000.00
to kill the victim. It was because at
one time, his gun was confiscated by the victim when in a gambling place,
Avelino pointed his gun to one of the players. This had caused quarrel between the accused Avelino and the victim. This was the testimony of the prosecution witness
Taneza. x x x x .”
After a careful and thorough review of the evidence, we find that
the testimonies of prosecution witnesses Edwina Fernandez Cortez and Dominador
Taneza are unworthy of weight or credence in the serious matter of convicting
one of murder.
Prosecution witness Edwina Fernandez Cortez, daughter of the
victim Venancio Fernandez, testified that in the evening of 16 April 1988, she
was in her house at Barangay New Quezon, Hagonoy, Davao del Sur, which is about
10 “fathoms” away from her father’s house. While she was then lying down, putting her two (2) children, Edlyn
and Rowena, to sleep, she heard a gunburst coming from the direction of her
father’s house. Worried, she got up,
reached for her flashlight, then went to the window of her house and looked
through the wooden railings thereof at the direction of her father’s
house. After focusing the beam of her
flashlight thereat, she saw appellant
and his co-accused who were armed. After another shot was fired by appellant and his co-accused, she
crawled to the place where her children were sleeping. Thereafter, she heard her mother Anastacia
and sister Freddie shouting and telling her (Edwina) to come over to the house
of her father. Arriving thereat, she
saw her father lying on the floor already dead. Her mother, who was crying, told her (Edwina) that her father was
shot while he and the other members of the household were sitting around the
dining table. Her mother, however,
could not tell her who shot her father because she did not see the culprits.[13]
However, on cross-examination, Edwina said that after the incident,
the military and police authorities repaired to the scene of the crime to
conduct an investigation. Although the
said witness was present during the investigation, she did not denounce the
accused-appellant and his co-accused as the malefactors she saw at the vicinity
of the crime. She declared:
“ATTY.
HERMOSISIMA:
xxx xxx xxx
Q Mrs.
Cortez, have you noticed the presence of military personnel right after the
incident?
A Later on after the incident.
Q Have
you also noticed the presence of P/Cpt. Francisco Alalong in the place where
your father was shot?
A They
were there, but when they arrived my father was already dead.
Q What
were they doing when they visited the place?
A When
they arrived they just checked the dead body of my father and they asked some
questions from my mother as to the identity of the perpetrators, but my mother
told them that she did not see the identity of the culprits.
Q You
want to impress the Honorable Court that these military personnel including
P/Cpt. Francisco Alalong conducted an investigation in the place where the
crime was committed?
A The
policemen inquired from my mother whether my mother saw the culprits and my
mother told them that she was not able to see the culprits.
Q Is
it not a fact that you were one among those who was investigated by Francisco
Alalong?
A I was not asked, only my mother.
Q But
you where then around when your mother was asked by P/Cpt. Francisco Alalong?
A I was there.
Q Did
you not inform the military that you saw the accused when the incident took
place?
A Right
then and there I did not tell the military authorities, I only revealed to the
police authorities after my father was buried.
Q You
did not inform the military personnel right then and there because you were not
able to identify the accused?
A I recognized.
Q Why
is it that you did not tell the military men when you were asked together with
your mother?
A Because
I do not want to tell them regarding the identity of the accused because the
dead body of my father was still lying in state. I do not want further trouble so I waited for time until my
father will be buried.”[14]
The said witness failed to give a reasonable explanation why she
did not denounce accused?appellant and identify him to the military and
police investigators as among the persons she saw at the scene of the
crime. Her claim that she did not
identify the accused-appellant because the body of her father was still lying
in state and that she did not want further trouble is, in our view, quite
flimsy to be credible. On top of that,
she did not even inform her mother and sister that she saw accused-appellant at
the vicinity of the crime. Her behavior
was not in accord with human nature and experience. The natural tendency of a person who has witnessed the commission
of a crime is to report it, and describe the malefactors at the earliest
possible opportunity.[15] This
is particularly true where the victim is so closely related to the witness who
claims to have seen the commission of the crime. Edwina’s failure to promptly come out with such information to
the police, casts a serious doubt on the accuracy if not veracity of the
identification of accused-appellant later made by the same witness.
Testifying further on cross-examination, the same witness
(Edwina) declared that her father Venancio Fernandez, who was then the Brgy.
Captain of New Quezon, Hagonoy, Davao del Sur, was ousted as barangay captain
when the Escalante family reported to the authorities that he (Venancio
Fernandez) was an active supporter of the NPA. She testified as follows:
“xxx xxx xxx
Q You said that your father was Venancio Fernandez, how is he related to
Venancio Fernandez who was then the
barangay captain of New Quezon?
A He is the very same person.
Q How
is he related to Venancio Fernandez who was then a very active supporter of the
NPA?
A He
was a suspect by the military before that my father was a subversive member.
Q Suspected by whom?
A After the election of my father as a
barangay captain he was immediately reported to the municipal building that my
father was an active supporter of the NPA and the report was made by these same
people.
INTERPRETER:
The witness referring to the accused.
Q And
because of this report your father was ousted as a barangay captain.
A He resigned as a barangay captain because of some intrigues.
Q Do
you remember having executed an affidavit in relation to this case that you are
now testifying?
A Yes,
sir.
Q And
that you executed the same before P/Cpl. Diomedies Barimbad, Chief Investigator
of Hagonoy Police Station?
A Yes, sir.
Q And
that you affixed your signature on said affidavit on the 2nd day of May, 1988?
xxx xxx xxx
Q On
the said affidavit Mrs. Cortez there
appears a handwritten signature over the typewritten name Edwina
Fernandez Cortez, whose signature is this?
A This
is my signature, sir.
Q On Question No. 13 Mrs. Cortez which I will
read:
Q By the way, what is the position of your
father in the barangay?
A He was once elected as barangay captain of
New Quezon, Hagonoy, Davao del Sur but was ousted due to pressures of being
supporter of subversive elements and later elected as chairman of the NAKASAKA.
Q Do
you remember having been asked this question and made such kind of answer?
A I
remember this is my answer.
Q Will you affirm that as true and correct?
A True.
Q Therefore,
your father did not resign but he was ousted as a barangay captain?
A Because of the charge that he was an active
supporter of the NPA.
Q And
he was ousted because of the report of these accused, referring to the
Escalante family?
A Yes,
sir.
Q And that you are harboring ill-will against
the Escalante family?
A No,
sir.”[16]
The foregoing testimony of Edwina Fernandez Cortez engenders a
serious doubt as to her own motive in pointing to the accused-appellant Avelino
Escalante, his father Eugenio Escalante and brother Rodolfo Escalante as the
malefactors she allegedly saw at the vicinity of the crime and renders her
testimony highly suspicious.
On the other hand, prosecution witness Dominador Taneza, an
ex-convict, testified on direct examination that on 15 August 1987, he met all
the accused in the house of accused-appellant Avelino Escalante. He said that, in that meeting, Avelino
offered to hire him to kill Venancio Fernandez and offered also to pay him
P3,000.00 for the job. He further
declared that the reason given by Avelino for trying to hire him to kill
Venancio Fernandez was that the latter once confiscated his .22 caliber firearm
when he (Avelino) pointed his gun at one of the players during a gambling
session in the school building at Barangay New Quezon. He said that he did not accept Avelino’s
proposal.[17]
Testifying further on direct examination, the said witness
declared that on 16 January 1988, he again met accused-appellant at the
latter’s house, at which time he (Avelino) renewed his proposal to hire him to
kill Venancio Fernandez but, again, he did not accept the proposal. After their meeting, he said that he went to
his house, but, later on, he said that he reported the matter to Police Captain
Francisco Alalong, the Station Commander of the municipality of Hagonoy, Davao
del Sur.[18]
However, when the trial court asked him some clarificatory
questions, he declared that he did not go to the accused-appellant’s house for
the purpose of discussing the latter’s proposal to hire him to kill Venancio
Fernandez. He said that he was just
called by Avelino while he was passing by his (Avelino’s) house. He testified as follows:
“COURT: How did it happen that the proposal of
Avelino Escalante to kill Venancio was always proposed to you in his house?
A Because
I use to frequent New Quezon. He would
call me, Your Honor, when I would pass by his house.
COURT: Do
you want to impress the Court that it is not your going to New Quezon is not to
visit Avelino Escalante but you are only called?
A Yes, Your Honor.
COURT: Why do you usually go to New Quezon?
A Whenever
we conduct patrol at New Quezon.
xxx xxx xxx
COURT: Now,
again, when you refused at first
the proposal of Avelino Escalante to be hired in killing Venancio Fernandez on
August 15, 1987 by way of paying you P3,000.00 and you refused, why is it that
you came back in the house of Avelino Escalante on January of 1988?
A I
just pass by his house, Your Honor.
COURT: Is it not a
fact that it is on your own volition to see Avelino Escalante for the purpose of renewing the offer?
A No, Your Honor.”[19]
It would seem highly improbable that accused-appellant Avelino
Escalante would just call Dominador Taneza while the latter was passing by his
house and right then and there propose to him the killing of Venancio
Fernandez, as if the killing of a person were a matter of little or no
consequence at all. Matters of this
nature are usually done only after mature reflection and meditation, and only
after the proponent has gained the confidence of the person to whom he makes
the proposal. Besides, as pointed out
by accused-appellant in his brief, “(a)ssuming, without admitting, that
Dominador Taneza was really told as such, would it not be logical to deduce
that Taneza may have been a distinguished killer-for-hire? Why, of all the notorious and publicly known
criminals, did the accused have to select and hire Taneza to do such a risky
enterprise? Is Taneza a well-known
gun-for-hire? A celebrated
mercenary?”[20]
Moreover, his testimony becomes even more incredible when he declared on
cross-examination[21] that
he did not tell or inform the deceased or his family of the alleged plan of
Avelino Escalante to hire him to kill Venancio Fernandez, despite the fact that
he was close to one of the latter’s children.[22]
Since the testimonies of prosecution witnesses Edwina Fernandez
Cortez and Dominador Taneza are inherently improbable and inconsistent with
human experience, they cannot be considered a sufficient basis upon which to
rest a judgment of conviction for murder.
Aside from the foregoing, the trial court’s conclusion that the
incident whereby Venancio Fernandez confiscated the gun of Avelino Escalante
when the latter pointed his gun at one of the players in a gambling place, had
caused a quarrel between them, is not supported by the evidence on record and
is purely a surmise or speculation. On
the other hand, the evidence shows that prior to the death of Venancio Fernandez,
the latter had a good relationship with accused-appellant. It was Venancio Fernandez who recruited
accused-appellant into joining the Contra Force (Anti-Communist Group) under
the command of a certain June Pala and accused-appellant had been a member of
that Contra Force since 1987 under the leadership of Venancio Fernandez.[23]
Besides, the said incident (confiscation of gun) took place on 11 August 1987
while Venancio Fernandez was shot to death on 16 April 1988. Considering the time that had elapsed from
11 August 1987 to 16 April 1988, the accused-appellant could have already
recovered his equanimity. Otherwise
stated, his anger or resentment, if any, was already at a low ebb when Venancio
Fernandez was shot to death on 16 April 1988. Hence, it is improbable that because of the said incident the
accused-appellant was impelled to commit so serious a crime as that charged
against him.
Accused-appellant’s defense is alibi. He testified that on 16 April 1988, he was making some repairs in
his house together with carpenters Saen Datulayta and Boy Datulayta, his
father, Eugenio Escalante and brother, Rodolfo Escalante and that they started
repairing his house at 7 o’clock in the morning and stopped at 5 o’clock in the
afternoon. Thereafter, he and his carpenters
drank tuba at his store up to 6 o’clock in the evening. After drinking, tuba he went upstairs and
lay down; at the same time, he viewed
the television and while viewing television, he fell asleep. Sometime therafter, he was awakened by two
(2) guards of the NAKASAKA, Aurelio Genonsalao and Melecio Abrea, who informed
him of the killing of Venancio Fernandez. Then, he and Aurelio Genonsalao and Melecio Abrea went to the sentry
post. He sat at the sentry post while
the others patrolled the area, and he stayed at the sentry post up to the
following morning.[24]
It has been held “that courts should not at once look with
disfavor at the defense of alibi” and that “(w)hen an accused puts up
the defense of alibi, the court should not at once have a mental prejudice
against him. For, taken in the light of
all the evidence on record, it may be sufficient to acquit him.”[25]
In People vs. Omega,[26] this Court held:
“Although alibi is known to be the weakest of all defenses for
it is easy to concoct and difficult to disprove, nevertheless, where the
evidence for the prosecution is weak and betrays lack of concreteness on the
question of whether or not the accused committed the crime charged, the defense
of alibi assumes importance. Thus, in
the case of People vs. Fraga, et al., this Court held that:
‘x x x an accused cannot be convicted on the basis of evidence
which, independently of his alibi, is weak, uncorroborated, and inconcluÂsive. The rule that alibi must be satisfactorily
proven was never intended to change the burden of proof in criminal cases;
otherwise, we will see the absurdity of an accused being put in a more
difficult position where the proseÂcution’s evidence is vague and weak than
were it is strong.’
In other words, the prosecution has the
burden of proof in establishing the guilty of the accused beyond reasonable
doubt and the weakness of the defense does not relieve it of this
responsibility. The accused does not
have to prove his innocence because that is presumed. x x x x.”
In the present case, as discussed above, the evidence of the
prosecution falls short of that quantum of evidence which will justify the
conviction of accused-appellant Avelino Escalante for murder. His guilt has not been proven beyond
reasonable doubt. Hence, he is entitled
to an acquittal.
ACCORDINGLY, the judgment of the trial court dated
30 October 1990 is REVERSED and appellant AVELINO ESCALANTE is hereby ACQUITTED
based on reasonable doubt. Costs de
oficio.
SO ORDERED.
Davide, Jr., Bellosillo, Quiason, and
Kapunan, JJ., concur.
[1]
Original Record, p. 1
[2]
Ibid, p. 37
[3]
Original Record, pp. 215-218
[4]
Ibid., p. 215, penned by Judge Dominador Carrillo
[5]
Ibid., p. 223
[6]
Original Record, pp. 218-223
[7]
Ibid., p. 225
[8]
Ibid., p. 255
[9]
It was Judge Mariano C. Tupas
who heard the testimony of Edwina Fernandez Cortez and Dominador Taneza but it
was Judge Dominador Carillo who
penned the decision.
[10]
People vs. Omega, G.R. No. L-29091, 14 April 1977, citing People vs. Salas, L-35946,
7 August 1975, 66 SCRA 126, 132
[11]
People vs. Alto, G.R. Nos.
L-18660-61, 29 November 1968; People vs. Perurelo, G.R. No. L-50631, 29 June 1981, SCRA
226, 235
[12]
People vs. Alto, supra and cases therein cited; Borguilla vs. Court
of Appeals, et. al., G.R. No. L-47286, 7 January 1987, 147 SCRA 9
[13]
T.S.N., 21 November 1988, pp.
4-8, 8-10
[14]
T.S.N., 21 November 1988, pp.
14-16
[15]
People vs. Gallora, G.R. No. L-21740, 30 October 1969, 29 SCRA 780; People
vs. Peruelo, G.R. No. L-50631, 29 June 1981, 105 SCRA 226
[16]
T.S.N., 21 November 1988, pp.
16-18
[17]
T.S.N., 15 February 1989, pp. 8-10
[18]
Ibid., pp. 10-12
[19]
T.S.N., 15 February 1989, pp.
18, 19
[20]
Rollo, p. 59
[21]
T.S.N., 15 February 1989, p. 65
[22]
Cf. People vs. Ramirez, G.R. Nos. 65345-47, 31 January 1989, 169 SCRA
711
[23]
T.S.N., 21 February 1990, pp. 7-9
[24]
Ibid., pp. 5-7
[25]
People vs. Villacorte, G.R.
No. L-21860, 28 February 1974, 55 SCRA 640
[26]
G.R. No. L-29091, 14 April 1977, 76 SCRA 262