PEOPLE OF THE PHILIPPINES PLAINTIFF-APPELLEE, VS. FELICISIMO MERZA Y DAVIS, DEFENDANT-APPELLANT.

A charge for rape with homicide under Article 335 of the Revised
Penal Code was lodged against accused-appellant in an Information reading:

That on or about the 9th day of October, 1990 in Quezon City,
Philippines and within the jurisdiction of the Honorable Court, the above-named
accused, did then and there, willfully, unlawfully and feloniously, by means of
force and intimidation, with leud design have carnal knowledge of one GENEROSA
CORDOVA Y CABELAN alias “BINGBING”, a minor, 12 years of age, without her
consent and against her will
and thereafter the accused with intent to kill, did then and there, strangled
said victim thereby inflicting upon her serious and mortal wounds which were
the direct and immediate cause of her untimely death, to the damage and
prejudice of the heirs of the said victim in such amount as may be awarded
under the provisions of the Civil Code.

Contrary to law.

(p. 6,
Rollo.)

After trial, accused-appellant was found guilty as charged by the trial court in a
decision dated August 13, 1993, the dispositive portion of which provides as follows:

ACCORDINGLY, judgment is hereby rendered finding FELICISIMO
MERZA Y DAVIS GUILTY as PRINCIPAL beyond reasonable doubt of the crime of Rape
with Homicide, and he is hereby sentenced to a jail term of RECLUSION PERPETUA.

On the civil aspect,
the accused Felicisimo Merza y Davis is hereby ordered to pay the heirs of
Generosa Cordova the sum of P50,000.00 as actual damages, the sum of P50,000.00
as moral damages and P50,000.00 as exemplary damages. Costs against the accused.

(p. 60, Rollo.)

Accused-appellant appealed, assigning the following alleged
errors of the trial court:

I. The lower court erred in declaring
the accused-appellant guilty of the crime of rape with homicide and
consequently in sentencing him, among others, to a jail term of reclusion
temporal completely disregarding that contrary to its findings, the
accused-appellant has not been positively
identified by any of the prosecution witnesses; specifically four (4)
such witnesses, most of whom except one, are children, pointed to the
accused-appellant in the police line-up constituted for the purpose as mere
look alike of the suspect in that case while one (1) could not identify him;
similarly it was the arresting officers who induced those witnesses to point to
the accused-appellant, which is clearly unwarranted. Moreover none of those witnesses knew the circumstances involving
the death and the alleged sexual abuse perpetrated against the aforesaid
victim. If at all, the evidence adduced
by the prosecution is only circumstantial which is not sufficient to overcome
the legal presumption of innocence of the accused-appellant. Such facts clearly bolster and strengthen
the defense of alibi raised by the latter before the court a quo.

II. The lower court in rendering its questioned decision,
likewise erred in holding the accused-appelant liable to pay the heirs of the
victim actual, moral and exemplary damages, as well as costs of suit.

(p. 27, Appellant’s Brief;
ff. p. 78, Rollo.)

Upon a rigorous examination of the record, we find that the
following facts, as succinctly synopsized by the Office of the Solicitor
General in appellee’s brief, are fully borne out by the evidence:

On October 9, 1990, at about 10:00 o’clock in the morning,
Generosa “Bingbing” Cordova, then age 8, Amornina Nagbuya, 8, Sonny
Boy Nagbuya, 9, and Santiago “Ago” Cordova (Bingbing’s brother) were on
their way home after getting “malunggay from the house of their
“lola-lolahan”, at Filinvest, Quezon City (TSN, Jan. 25, 1991, pp.
5-8). On their way, they noticed a man
following them (Ibid). He was
Felicisimo “Jake” D. Merza (Ibid, p. 12). When Merza came near
the group, he asked who was the eldest among them (Ibid p. 8). Bingbing answered that she was the eldest
(Ibid). Thereafter, Merza suddenly
grabbed Bingbing away from the group (Ibid, p. 9). Thereupon, Bingbing told her companions to follow them
(Ibid). Amornina Nagbuya tried to
follow them but Merza boxed her on the left eye, telling her not to follow them
(Ibid, p. 10). Merza intimated to the
group that he would be taking Bingbing along with him to the clubhouse at
Filinvest to sign some papers (lbid, p. 11). After having been boxed, Amornina Nagbuya desisted from following them
because of fear (Ibid). Sonny
Francisco, 12, and Ruel Galor, 11, both residents of Filinvest, saw Merza pulling
Bingbing, who was then crying, on their way to the said clubhouse (TSN, July
12, 1991, p. 8; Aug. 30, 1991, p. 6).

On the following day, October 10, 1990, at about 10:00 a.m.,
Bingbing was found dead on the other side of the creek located at Filinvest,
Quezon City (TSN, Jan. 25, 1991, pp. 12-13; June 3, 1991, p. 22). The medico-legal officer’s autopsy report
also showed that she was raped before she died (TSN, March 11, 1991, pp. 11,
16-18).

Consequently, an investigation on the gruesome death of the victim
was conducted by the police officers assigned at the Central Police District
PO3 Domingo Placido interviewed the children who were the companions of the
victim just before Merza accosted the latter. And the children described him as “balingkinitan ang pangangatawan
at kulot ang buhok” (TSN, Dec. 5, 1991, p. 11). He also interviewed a “Kagawad” of the barangay, who
told him that Merza used
to stand by near the place where the incident happened (Ibid, p. 12).

After having been informed by the wife of Merza’s employer that
Merza was in Siksikan Bridge, Talavera, Nueva Ecija, the police officers
conducting the investigation proceeded to said place (Ibid, p. 14). When the police officers arrested Merza and
informed him that he was a suspect in a rape-slay case, Merza pleaded the
police officers to settle the case and not to bring him to Manila (Ibid, p.
17). Nevertheless, they brought him to
Manila.

When they arrived in Quezon City, at Police Station No. 5, a
line-up of suspects was formed, composed of about ten (10) persons, including
Merza (Ibid, p. 19). Thereat, the
children were led, one by one, to the room where the suspects were lined up,
for them to identify the person who grabbed the victim from the group, and who
was later seen with the victim before the fateful incident (TSN, Dec. 15, 1992,
p. 16). In the line-up, Amornina
Nagbuya and Sonny Nagbuya, during their turn, pointed to Merza as the perpetrator while Santiago
Cordova was not able to recognize the culprit (Ibid, pp. 18, 20 & 21). Merza was also pointed to by Sonny Francisco
as the person he saw pulling the victim, who was then crying, on their way to
the clubhouse (Ibid, p. 25; TSN, Aug 30, 1991, p.6).

(pp. 2-5, Appellee’s Brief;
ff. p. 89, Rollo.)

Accused-appellant contends that the prosecution witnesses failed
to positively identify him as the perpetrator of the crime, pointing out that
said witnesses only stated that accused-appellant is a mere look-alike of the
person responsible for the rape-killing of the victim. Accused-appellant’s contention is devoid of
persuasive import. True, the
prosecution witnesses stated during the police investigation that
accused-appellant is a look-alike of the man who snatched the victim from her
companion. However, on the witness
stand, the prosecution witnesses, Amornina Nagbuya, Sonny Boy Nagbuya, and
Sonny Boy Fernandez, positively and unqualifiedly identified accused-appellant
as the one who snatched the victim, as manifested in their testimony.

Amornina Nagbuya

FISCAL ULIBARRI

Q.        If that man who you said
grabbed Bingbing and who boxed you is in court, will you please point to him?

WITNESS:

A.         Yes, sir, AYON PO.

INTERPRETER:

Witness pointed to a man inside the
courtroom who when asked by the court identified himself as one FELICISIMO
MERZA.

(TSN, Jan. 25, 1991, pp.
11-12)

Sonny Boy Nagbuya

FISCAL ULIBARRI:

Will you please describe to the court how Bingbing was taken.

WITNESS:

A. [A] MAMA told us who is the oldest among you[], I will ask him to sign
something.

FISCAL ULIBARRI:

Q. Who is this man?

WITNESS:

A. Si
JAKE.

FISCAL ULIBARRI:

Q. If
that Jake is in court will you please point to him.

WITNESS:

A. That
one, sir.

INTERPRETER:

Witness pointed to a person inside the
courtroom who when asked by the court identified himself as FELICISIMO DAVIS MERZA.
(TSN, March 4, 1991, pp. 8-9)

Sonny Boy Francisco

FISCAL ULIBARRI:

Q. If
that man you saw who was holding Bingbing and he was crying at that time, will
you please point to him?

A. That
man, Sir.

INTERPRETER:

Witness pointing to a person who [when
asked] answer [sic] by the name of FELICISIMO MERZA (TSN, Aug. 30, 1991, pp.
6-7)

(pp. 12-14, Appellee’s Brief; ff. p. 89,
Rollo).

The record being bereft of any evidence that the prosecution
witnesses were motivated by ill considerations and intents, their testimony
must be accorded full probative value. Moreover, said prosecution witnesses, all forthright and artless
children of tender years, Amornina Nagbuya being then 8 years old at the time
of the incident, Sonny Boy Nabuya, 9 years old, and Sonny Boy Francisco, 12
years old, can be relied upon to express the unvarnished truth.

In view of the foregoing findings that accused-appellant was
positively identified by the prosecution witnesses as the perpetrator of the crime,
necessarily accused-appellant’s defense of alibi must fall for well-enshrined
in our jurisprudence is the rule that alibi cannot prevail over the positive
identification of the accused (People
vs. Catubig, 205 SCRA 643 [1992]).

Finally, accused-appellant insists that he cannot be convicted as
the evidence adduced by the prosecution is merely circumstantial. We find no merit in accused-appellant’s
contention. Conviction upon
circumstantial evidence is authorized by the Rules of Court (Section 4, Rule
133). Direct evidence is not the only
basis upon which the guilt of an accused may be proved; it may also be
established through circumstantial evidence (People vs. Cagadas, Jr., 193 SCRA 216 [1991]). 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 (Section 4, Rule 133; People vs. Madriaga IV, 171 SCRA
103 [1989]; People vs. Cagadas, Jr., supra). The record is replete with circumstances inexorably establishing
the guilt of accused-appellant. The
following circumstances collated by the Office of the Solicitor General
unavoidably lead to the guilt of accused-appellant:

1. On October 9,
1990, at about 10:00 am., appellant, who was then following the group of
children, suddenly grabbed the victim away from her companions, at Filinvest,
Quezon City (TSN, Jan. 25, 1991, pp. 5-8).

2. When Amornina
Nagbuya, an eight year old companion of the victim, tried to follow them,
appellant boxed her on the left eye, which led to a hematoma (Ibid, p. 10).

3. Sonny
Francisco and Ruel Gabor saw appellant pulling the victim, who was then in
tears, on their way to the clubhouse (TSN, July 12, 1991, p. 8; Aug. 30, 1991,
p. 6).

4. On the
following day, October 10, 1990, at about 10:00 a.m., the cadaver of the victim
was discovered along the creek located at Filinvest, Quezon City (TSN, June 3,
1991, p. 22).

5. The autopsy,
conducted on October 10, 1990, disclosed that the victim was dead for more than
12 hours but less than 24 hours (TSN, March 11, 1991, p. 13).

6. Appellant was
the last person seen with the victim, under suspicious circumstances, on the
day before she was found dead and sexually abused.

7. When appellant
was arrested by the investigating police officer, at Talavera, Nueva Ecija, and
informed that he is suspect in a rape-slay case, he pleaded them to settle the
case and not to bring him to Manila (TSN, Dec. 5, 1991, p. 17).

8. Appellant’s
act of going to Talavera, Nueva Ecija, constituted flight, which evinces a
guilty conscience.

(pp. 9-10, Appellee’s Brief; ff. p. 89,
Rollo.)

The foregoing circumstances fully comply with the requirements set
forth under Section 4, Rule 133 of the Rules of Court. There is more than one circumstance; the
facts from which the inference of the guilt of accused-appellant is drawn have
been proven; and the combination of said circumstances produces no other conclusion
than the guilt of accused-appellant beyond reasonable doubt.

Due to accused-appellant’s failure to submit any argument in
support of his second assigned error, we need not be unduly detained, for
verily, the award of damages merely springs from the criminal act of accused-appellant (Article 100, Revised Penal code Section 1, Rule 111,
Rules of Court).

WHEREFORE, the appealed decision is hereby AFFIRMED.

SO ORDERED.

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

Feliciano, J., on leave.