THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. BARTOLOME JABEGUERO, DEFENDANT-APPELLANT.

Appeal by Bartolome Jabeguero
upon his conviction by the then Court of First Instance of Samar
in Criminal Case No. 1024 for the crime of murder qualified by treachery. He
was sentenced “to suffer the penalty of RECLUSION PERPETUA, with the
accessories of the law; to indemnify the heirs of the deceased Valentin Niedo in the amount of
P12,000.00; and to pay one-third of the costs.”
His co-accused, Miguel Jabeguero and Sofronio Latorre were acquitted
on ground of reasonable doubt.

The People’s evidence shows that about 4:00 in the afternoon of September 24, 1975 Valentin Niedo was walking along the street in Patong,
barrio Estaka, Catbalogan, Samar. Following him, about seven meters away,
was his sister, Dominga Niedo
Orral, age 42. When Valentin
was about ten meters away from the house of appellant Bartolome
Jabeguero, the latter, who was at the window of his
house, fired a shot at Valentin who sustained wounds
on his face, neck and face, caused by pellets (small shot leads used in
shotgun), two of which found its exit at the back causing ruptures of his innominate artery and apex of the right lung. (Exhibit
“F”)

The shooting was witnessed by Dominga Orral who also saw Miguel Jabeguero
and Sofronio Latorre
standing near the appellant at the time. Thereafter, the assailant, Miguel Jabeguero and Sofronio Latorre jumped out of the house and ran towards the
seashore.

Ernesto Balasbas, a Barangay
Councilman, was at the seashore at the time and, upon hearing the shot,
immediately rushed towards the place. He saw Valentin
Niedo near the basketball court, about to fall. He
ran towards Valentin and inquired who shot him. Valentin answered, “Tome Jabeguero.”

Valentin Niedo
was carried to a motor boat to be transported to the hospital but, on the way,
he died.

Appellant’s defense is alibi. He claims that at about 9:00 that morning of September 24, 1975 he was at the seashore of Barangay Estaka Buri waiting for trans­portation to Mercedes, Catbalogan to attend the town fiesta. He was not able to
get water transportation but was able to take a passenger jeepney,
arriving at the house of one Donato Pantaleon at about 11:00 in the morning. He stayed in the house of Pantaleon the
whole day and left the place late afternoon. He then passed by the house of
one Loloy Pantaleon who
invited him to drink, after which he visited Simplicio
Magallanes. After having drunk three bottles of beer,
a man with a gun came and asked: “Are you Miguel Jabeguero?
And I told him, no, I am Tome, Bartolome Jabeguero, I am not Miguel. I have a brother Miguel but I
do not know where he is now. He is under medical treatment.” (tsn., pp.
231-232, April 28, 1981
hearing) Thereafter, the man brought him outside
the house and then to the stockade at Maulong
where he was maltreated and suspected of having killed Valentin
Niedo.

Coming to this
Court, appellant claims that the lower court “erred in giving credence to
the testimonies of the prosecution witnesses
which were biased, improbable and contrary to the physical facts; and, in
convicting” him.

Appellant argues that the eye-witness, Dominga
Niedo Orral, a sister of
the victim, would not have seen appellant and his companions inside the house
through an opening because she noticed the place only after the shot was fired and “it was highly
improbable for her to see who among the three fired the shotgun x x x that only one (1) shot
was fired which caused the death of her brother Valentin
Niedo, which should have been fired at an angle to the right of the victim x x x and that these were contradicted by Dr. Berbietta Macopia Pilpa x x x who
testified that the injuries sustained by the victim were the result of two
gunshots, and that the assailant was in front of the victim.” (pp. 2-3,
appellant’s brief). Further, appellant claims that considering the injuries
sustained by the victim it was improbable for him to have still talked, muchless seen who among the three fired the shotgun.

We are not persuaded. There was Dominga
Niedo Orral who positively
identified herein appellant as the one who shot her brother. She testified
thus:

“Q
     And what time did you leave the house
of Bartolome Papauran
together with your brother Valentin Niedo to go home?

A       At around 4:00.

Q      While you were on your way from the house of Bartolome
Papauran was there any unusual incident that
happened?

A       Yes, sir.

Q      What was that incident that happened?

A       Valentin Niedo was shot.

Q      By whom?

A       Bartolome
Jabeguero.

Q      Where was Valentin
Niedo particularly at the time when he was shot by Bartolome Jabeguero?

A       He was on the street walking.

Q      And where was Bartolome
Jabeguero at the time that he shot Valentin Niedo?

A       He was inside his house.

Q      Now, how did you know that it was Bartolome Jabeguero who shot Valentin Niedo when he was inside
his house?

A       Because I saw
him holding the gun.

Q      Now,
at the time that Valentin Niedo
was shot at by Bartolome Jabeguero,
how far were you to Valentin Niedo?

A       Seven (7)
meters.

Q
     And where were you particularly in
relation to Valentin Niedo
at the time when Valentin Niedo
was shot by Bartolome Jabeguero?

A       I was at his back because I was following
him.

Q      From Valentin Niedo to Bartolome Jabeguero at the time that the latter shot the former, what
was the distance?

A       Around ten (10)
meters.

Q      And how about from your place where you
were standing to Bartolome Jabeguero,
how far was it at that time that Valentin Niedo was shot by Bartolome Jabeguero?

A       Maybe fourteen (14)
meters.

Q      You said that when Bartolome
Jabeguero shot Valentin Niedo he was inside his house. Where parti­cularly inside
his house at the time when he shot Valentin Niedo?

A       Near the window.

Q      Was
it near or by the window?

A       By the window.

COURT:

Proceed.

FISCAL:

Q      How about Miguel Jabeguero,
where was he when Bartolome Jabeguero
shot Valentin Niedo?

A       He was at the side.

Q      Who is this he whom you are referring to?

A       Bartolome
Jabeguero.

Q      Which side of Bartolome
Jabeguero was Miguel Jabeguero?

A       Left side.

Q      How
about the other accused, Sofronio Latorre?

A       At the other side.
I mean behind them. (Ha luyo nira
an duha.)

Q      Now, how many times did Bartolome Jabeguero fired at Valentin Niedo?

A       Once.

Q      With what firearm?
Do you know, if you know, did Bartolome
Jabeguero use in firing Valentin
Niedo?

A       I don’t know, sir.

Q      That house of Bartolome
Jabeguero, is that a one storey house?

A       A one storey
house.

Q      How high is the flooring of that house to the ground?

A       More than one meter.

Q      And
what happened to x x x I
will withdraw the question. Was Valentin Niedo hit when he was fired at by Bartolome
Jabeguero?

A       Yes, sir.

Q      Where was he hit?

A       He was hit at the forehead, neck and at
the chest.

Q      And
what happened to Valentin Niedo
when he was hit?

A       He staggered towards the fence of Menie Magallanes.

Q      At the time when Valentin
Niedo staggered towards the fence of Menie Magallanes what did you do?

A       I ran because I saw them jumped out
through the door and I did not anymore embrace Valentin
Niedo.

Q      You said that you ran because you saw them
jumped out of the door. Who jumped out of the door?

A       Miguel Jabeguero, Bartolome Jabeguero and Sofronio Latorre.” (tsn., pp. 9-14, July 10, 1980 hearing)

The relationship of Dominga with the
victim does not discredit her testimony. Well settled is the rule that when
there is no showing of improper motive on the part of witnesses for testifying
against the accused, the fact that they are related to the victim does not
render their clear and positive testimony less worthy of full faith and credit.
“On the contrary, their natural interest in securing the conviction of the
guilty would deter them from implicating persons other then the culprits, for,
otherwise, the latter would thereby gain immunity” (People vs. Alcantara, et al., 33 SCRA 812).

With respect to the relative position between assailant and the
victim, Dr. Pilpa declared:

“Q      And what could have been the relative
position of the victim to his assailant at the time he received those injuries?

A       The assailant could have been in front of
the victim towards the right of the victim.” (tsn., p. 53, August 20, 1980 hearing)

Further, Ernesto Balasbas was able to
ask Valentin who the assailant was:

“Q
     Were you able to carry Valentin Niedo to the motor boat
which was at the sea?

A
      Not yet because we just place the
victim on the seashore because the motor boat was still on the sea.

Q      Now,
while you were carrying the body of Valentin Niedo towards the motor boat as Barangay
Councilor or first Councilor of your barrio, what did you do?

A       When we lifted him, we asked him who shot him.

Q      And
what was his answer if any?

A       He said Tome Jabeguero.

xxx                        xxx
                  xxx

Q      Who is this Tome Jabeguero
he mentioned, do you know?

A       Yes, sir.

Q      If that Tome Jabeguero
is now in Court which he referred to, can you point to
him?

A       Yes, sir.

Q      Will you please do so?

A       (Witness pointing to
the accused Bartolome Jabeguero).”
(tsn. pp. 9-11, July 22, 1980 hearing)

The statement made by the victim, Valentin
Niedo, pointing to appellant as the one who fired the
shot partakes of the nature of a dying declaration because when he made it his
hope for survival was very slim,
as in fact, he died minutes after the incident. And, as to whether he could
still talk after he was fired at, Dr. Pilpa
categorically answered in the affirmative.

“Q      You said here in this autopsy report
Doctor that the date, time and place of incident is on
the way to the Samar Provincial
Hospital At about 6:05 p.m., September 24, 1975, assuming Doctor that the deceased
survived some time after he was shot by his assailant and considering his death, rather his wounds, could he still
talk?

A       From
the autopsy report made the brain was intact so that the victim could
have talked after the incident happened.”
(tsn.
pp. 60-61, August 20, 1980 hearing)

Finally, We take note of the observation
and finding of the trial court that appellant went into hiding after the
incident:

“There, too, are circumstances extant in the evidence that
this defendant Bartolome Jabeguero
tried to elude the police authorities after the incident. The uncontradicted testimony of Barrio councilman Ernesto Balasbas shows that when he (Balasbas)
with Sgt. Claro and two other PC soldiers whom he and
his wife fetched from the Constabulary camp in Maulong,
Catbalogan, Samar, went to
the house of this accused in Bo. Estaka a few hours
after the shooting incident, the wife informed them that the accused was no
longer there as he had already gone to Luyo (other
side of Bo. Estaka). They took a motorboat and went to the place indicated –
to the house of the accused’s brother-in-law, Patro – but Bartolome was no longer there either. So the PC
soldiers just asked to be
brought back to camp. Again, there is the uncontradicted
testimony of Constable Raul Luna to the effect that when he went to the house
of Simplicio Magallanes the
day after the incident, the owner upon his inquiry told him that the accused was not there. But when the sister-in-law of the victim who accom­panied
him went upstairs, he heard a commotion in the house and when he went up, two persons jumped out of the
window; but he found accused Bartolome Jabeguero who locked himself inside a toilet and who
attempted to escape. This conduct is certainly incompatible with this accused’s innocence.” (pp. 3-4, Decision in Crim. Case No. 1024)

The foregoing evidence of the prosecution adds to appellant’s
guilt beyond reasonable doubt and negates his
alibi, a defense that is easy to
fabricate. His flight from the scene of the crime is a form of admission
by conduct which gives rise to the inference that he committed it (People vs. Molleda, 86 SCRA 667).

WHEREFORE, the judgment of conviction of the lower court
is hereby AFFIRMED in toto. Costs against appellant.

SO ORDERED.

Teehankee, (Chairman), Melencio-Herrera, Plana, and Gutierrez, Jr., JJ.,
concur.