PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.  EUTIQUIO APA-AP, JR.  ALIAS JUNIOR ANTIK AND ONE ALIAS BENIE, ACCUSED-APPELLANT.

Accused was charged with murder committed as follows:

That on or about the 26th day of September, 1987, at about 11:30
p.m., at barangay Balwarte, Municipality of Buenavista, Province of Bohol,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping each other,
with intent to kill, evident premeditation, and treachery by hiding under a
cart and suddenly attacking the victim without giving him the opportunity to
defend himself, did then and there, willfully, unlawfully and feloniously
attack, assault and stab with sharp bladed instruments one Ciriaco Diacor,
thereby inflicting multiple mortal wounds on his body, as shown in the
Certificate of Death, which directly caused the death of the victim; to the
damage and prejudice of the heirs of the deceased in an amount to be proved
during the trial of the case.

Acts committed contrary to the provisions of Article 248, in
relation to Article 14 of the Revised Penal Code with the qualifying
aggravating circumstance of nighttime being purposely sought for or taken
advantage of by the accused to facilitate the commission of the crime.

(p. 3, Rollo.)

After trial, the court a quo found accused-appellant
guilty as charged in a decision dated January 25, 1993, the dispositive portion
of which reads as follows:

PREMISES CONSIDERED, the Court finds the accused EUTIQUIO APA-AP,
JR. guilty of the crime of Murder punished under Article 248 in relation to
Article 14 of the Revised Penal Code and hereby sentences him to suffer an
imprisonment of RECLUSION PERPETUA, with the accessories of the law and to pay
the cost.

The accuse Eutiquio Apa-Ap, Jr. is further ordered to indemnify the
parents of the deceased victim Pablo Diacor in the amount of P50,000.00
representing indemnity and P5,000.00 representing funeral expenses. In both instances without subsidiary
imprisonment in case of insolvency.

(p. 15. Rollo.)

Hence, the instant appeal, with accused-appellant contending that
–

The court a quo erred in admitting the dying declaration of the
victim considering the fact that same did not comply all the essential
requisite for it to be admissible in evidence;

The court a quo erred in not appreciating the defense of alibi
interposed by the accused.

(p. 2, Appellant’s Brief;
ff. p. 30, Rollo.)

The facts of the case, as borne out by the evidence were
correctly synthesized by the trial court, and are as follows:

SPO1 Jesus P. Opalla of the PNP, Buenavista, Bohol, witness for the
prosecution, declared that on September 27, 1987, he was at Cagawal,
Buenavista, Bohol. He was then slated
to leave for Panglao together with several soldiers for he is connected with
the Seaborne Patrol, Provincial Headquarters. He saw a group of people which he approached, and found out that a
person was stabbed by the name of Ciriaco Diacor nicknamed Takan. He was weak and pale. He asked Takan as to who stabbed him who
answered that it was the accused Eutiquio Apa-ap, Jr. from Cagawa. He knows the accused referred to by the
victim Ciriaco Diacor for having been in prison many times. He took the Ante Mortem declaration of
Ciriaco Diacor which was thumbmarked by his own blood.

Pablo Diacor, witness for the prosecution, declared that on
September 29, 1987 at dawn, he was at his house at Cantuba, Buenavista,
Bohol. Someone called him. It was the son of Barangay Captain informing
him that his son Ciriaco Diacor was stabbed. He went to the scene of the stabbing incident and saw his son Ciriaco
Diacor lying on the ground. He asked
his son Ciriaco Diacor, the victim in the instant case, as to who stabbed him
who answered that it was the accused Eutiquio Apa-ap, Jr. They brought his son who had difficulty in
breathing, to the highway for they wanted to bring him to the hospital.

He saw and heard SPO1 Jesus Opalla who asked his son Ciriaco Diacor
as to who stabbed him who answered that it was the accused Eutiquio Apa-ap,
Jr., the accused in the instant case. SPO1 Jesus Opalla took the ante mortem declaration of his son Ciriaco
Diacor, the victim in the instant case.

His son Ciriaco Diacor was brought in a jeep of the Mayor to the
Dagohoy Hospital and finally to Tagbilaran who died on the way. They had to bring back his son home. His late son Ciriaco Diacor finished Grade
III. He could write and read. He spent P5,000.00 for the burial of his
son.

(p. 12, Rollo.)

Accused-appellant assails the admission of the dying declaration
of the victim, Ciriaco Diacor, maintaining that the same does not conform with
the requisites of a dying declaration.

Accused-appellant’s contention is devoid of merit.

In order that a dying declaration may be admissible, the
following requisites must concur:

[1]    The declaration must
concern the cause and surrounding circumstances of the declarant’s death;

[2]    The declarant, at the
time the declaration was made, was under the consciousness of an impending
death;

[3]    The declarant is
competent as a witness; and

[4] The declaration is offered in a criminal case
wherein the declarant’s death is the subject of inquiry (People vs. Clamor,
198 SCRA 642 [1991]).

There is no question in regard to the existence of the first
requisite. The declaration (Exhibit A)
relates to the stabbing of the victim, Ciriaco Diacor, and identifies
accused-appellant as the person who stabbed the victim.

Likewise, the presence of second requisite cannot be
gainsaid. The victim suffered fatal and
serious wounds and he died shortly after making the declaration. It has been held that the degree and
seriousness of the wound and the fact that death supervened shortly afterwards,
maybe considered as substantial evidence that the declaration was made by the
victim with full realization that he was in a dying condition (People vs.
Obngayan, 55 SCRA 465 [1974]). In
one case (People vs. Briosco, 375 SCRA 336 [1971]), it was held that
judged by the nature and extent of his wounds, the victim must have realized
the seriousness of his condition, and that it can be safely inferred that he
made the declaration under the consciousness of impending death considering
that he died only one hour after being shot. Further, the herein victim’s awareness of his impending death is vividly
depicted by the fact that he thumbmarked his dying declaration (Exhibit A) with
his own blood.

The third element is also present for there is nothing in the
record to show that the declarant was incompetent as a witness. As a matter of fact, when SPO1 Jesus Ozalla,
the policeman who took the dying declaration of the victim, was asked on the witness
stand what was the mental condition of the victim before his death, the
witness, a veteran police officer, stated that “when I interrogated him he
answered well” (p. 6, tsn, November 20, 1992) and that the victim was not
suffering from any mental disease (id.).

There is no question too as to the existence of the fourth
requisite for said dying declaration was offered in the instant action, a
criminal case where the declarant’s death is the very subject of inquiry.

We have to reject the defense of alibi set up by
accused-appellant. Alibi is a weak
defense for it is easy of fabrication (People vs. Ragas, 44 SCRA 152
[1972]). To establish alibi, it must be
shown that it was physically impossible for the accused to be present at the
place where the crime was committed at the time of commission (People vs.
Cruz, 208 SCRA 326 [1992]). Accused-appellant avers that on the day the crime was committed, he was
working and staying at the house of Engr. Hermilando Torregosa at Tubigon,
Bohol. Accused-appellant’s alibi does
not fulfill the requirements of a valid alibi for there is no showing that it
was physically impossible for him to have been at Barangay Balwarte when the
crime was committed even as he may have indeed worked at Tubigon. We can take judicial notice of the distance
between Tubigon, Bohol, and Buenavista, Bohol, which is approximately 30
kilometers. At such a distance it would
not have been physically impossible for accused-appellant to be present at the
scene of the crime at the time it was committed. In People vs. Adriano, (95 SCRA 107 [1980]), we rejected
the defense of alibi, where the accused claimed that he was in Sta. Rosa, Nueva
Ecija and the crime was committed in Manila. Likewise, in People vs. Jimenez, (105 SCRA 721 [1981]), we
rejected the defense of alibi where the accused asserted that they were at
Navotas, Rizal, at the time when the crime was committed in General Trias,
Cavite. With the availability of
motorized transport, a distance of 30 kilometers can easily be negotiated in
less than an hour.

Then too, it is a doctrine embedded in our jurisprudence that
alibi cannot prevail over the positive and clear identification of the accused
as the perpetrator of the crime (People vs. Catubig, 205 SCRA 643
[1992]; People vs. Rendoque, 205 SCRA 783 [1992]). Accused-appellant in the case at bench, was
positively identified by the victim himself who was at the point of death when
every motive for falsehood is silenced and the mind is induced by the most
powerful consideration to speak only the truth. Moreover, the defense of alibi is an issue of fact that hinges on
credibility and the relative weight which the trial court assigns to the
testimony of witnesses. Such
assessment, unless patently and clearly inconsistent, must be accepted (People
vs. Artieda, 90 SCRA 144 [1979]), for verily a careful evaluation of the
record does not reveal that the trial court’s rejection of accused-appellant’s
defense of alibi is inconsistent with the evidence on record.

The Solicitor General recommends that the qualifying circumstance
of treachery should not be appreciated. We agree.

Treachery cannot be appreciated in the absence of evidence of the
mode of attack; it cannot be presumed but must be proven positively (People
vs. Quilaton, 205 SCRA 279 [1992]). Where no particulars are known as to the manner in which the aggression
was made or how the act which resulted in the death of the victim began and
developed, it can in no way be established from mere supposition that the
killing was perpetrated by treachery (People vs. Devaras, 205 SCRA 676
[1992]). There is an absolute paucity
of evidence to establish the mode of attack, or the inception thereof, adopted
by accused-appellant in killing the victim. The qualifying circumstance of treachery should, therefore, not be
appreciated. In fine, the crime
committed by accused-appellant is homicide, not murder.

Under the Revised Penal Code, the penalty prescribed for homicide
is reclusion temporal (Article 249, Revised Penal Code). In the case at bench, there is no mitigating
nor aggravating circumstance. Applying
the Indeterminate Sentence Law, the proper sentence is an indeterminate penalty
ranging from six (6) years and one (1) day of prision mayor, as minimum,
to fourteen (14) years, eight (8) months, and 1 day of reclusion temporal,
as maximum.

WHEREFORE, the decision appealed from is hereby AFFIRMED,
with the modification that accused-appellant is found guilty of homicide only
and is consequently sentenced to an indeterminate imprisonment term of six (6)
years and one (1) day of prision mayor, as minimum, to fourteen (14)
years, eight (8) months, and one (1) day of reclusion temporal, as
maximum.

The civil indemnity imposed by the trial court stands.

SO ORDERED.

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