PEOPLE OF THE PHILIPPINES, PLAINTIFF, VS. SEDAN ALEGARBES, RICHARD AGBU, RAMIL CESAR, ALVIN UCAB AND DODONG VEVARES, ACCUSED, SEDAN ALEGARBES, ACCUSED-APPELLANT.

At about 9:00 o’clock in
the evening of June 30, 1984,
Nino Velez left his house at First Street,
Nazareth, Cagayan
de Oro City. 
Later, he joined the accused in a drinking session on the lawn of the
house of accused Sedan Alegarbes about 250 meters
away from Nino’s house.  At about 11:00 o’clock of the same night Nino returned
home, bleeding from multiple wounds and asking for help.  He was brought to a nearby hospital but died
about two hours thereafter.  In the
aftermath of the incident, the five accused herein were charged before Branch
XXIII of the Regional Trial
Court of Cagayan de Oro City^[1]
with murder qualified by treachery and aggravated by nighttime and abuse of
superior strength.^[2]
Of the five accused, however, only Sedan Alegarbes
and Alvin Ucab were apprehended and stood trial.  The other co-accused are
still at large up to the present.

From the testimony of the prosecution witnesses, Nicolas Velez,
Sr.,^[3]
Nicolas Velez, Jr.,^[4]
and Rowena Velez,^[5]
the trial court pieced out the catena of events after the wounded victim
arrived at their house and which, by reason of their evidentiary significance,
we quote:

“x x x His brother, Nicolas Velez, Jr., heard the call for help
so he went out and saw Nino standing already bloody and then fell down
(sic).  He placed him on his lap and
called his sister.  Commotion followed
and he saw his father Nicolas Velez, Sr. coming out.

“While Nicolas Velez, Jr. was holding his brother, Nino, he
asked him as to who stabbed him.  He
answered Sedan, Richard and others
and after that he was not able to talk to him anymore.  Upon being asked where he was stabbed he
pointed to the house of Sedan near
his residence at 1st St., Nazareth.

“Nicolas Velez, Sr. also asked Nino who was bloody, as to who
stabbed him.  Nino answered that it was Sedan,
Richard and others.  He was not able to
talk to Nino anymore because he was gasping for breath.

“Nino was brought to the hospital.  Nicolas Velez, Sr. however did not go with
him.  He went with the police instead to
the house of Sedan.  Some people were there but Sedan
was not there.  While in Sedan’s
house, he saw blood in (sic) the lawn.

“From the house of Sedan,
he went with the policemen to the hospital. 
The policemen wanted to investigate Nino in the hospital, but he was
gasping for breath.

“About 1:00 o’clock
in the morning, July 1, 1984,
Nino Velez died.  Dr. Apolinar
Vacalares of the Northern
Regional Training
Hospital, Cagayan
de Oro City made the autopsy.  Nino Velez sustained six (6) stab wounds all
caused by either knife, bolo or any sharp pointed
instruments x x x“.^[6]

The defense, specifically that of accused Alvin
Ucab, denied participation in the criminal act.  Ucab alleged that
it was Richard Agbu who killed Nino Velez.  On the other hand, Alegarbes
put up the defense of alibi, claiming that during the alleged stabbing incident
he was in his room with his wife who was laboring in childbirth.  The testimonies of these two accused were
corroborated by witness Warren Villacorta.

After trial, the court a quo rendered a decision on December 29, 1986 convicting accused Sedan Alegarbes as principal in the crime of murder, qualified by
treachery, basing its findings mainly on the antemortem statement of the victim.  There being no modifying circumstance, he was
sentenced to suffer the penalty of reclusion perpetua “with
all the accessory penalties of the
law, to pay the heirs of Nino Velez the sum of P30,000.00 which is
jurisprudential, the further sum of P1,000.00 and P3,000.00 respectively (sic) as actual damages and P20,000.00
as moral damages which are in accordance
with the Civil Code, without subsidiary imprisonment in case of insolvency and
to pay proportionate costs of the proceedings”, with full credit for his
preventive imprisonment.  His co-accused,
Alvin Ucab, was acquitted on reasonable doubt.^[7]

The conviction of accused Alegarbes is
before this Court through a notice of appeal inceptively filed on January 19, 1987 erroneously with the
Court of Appeals.^[8]
Appellant contests his conviction, especially because of its basis on the dying
declaration of the victim, postulating that the fact that the victim
“sustained eight (8) stab wounds two of which were fatal”, and the
further fact that “the victim had to run the length of 250 meters in
distance between his house and the place where the stabbing incident
happened”,^[9]
make it highly improbable for the victim to have thereafter uttered even a
single word identifying his assailants. 
This belated and feeble attempt to deny the fact that a declaration in articulo mortis was made by the deceased is
adequately countered and refuted by the prosecution’s evidence.

Preliminarily, appellant misread the records since the victim
suffered only six (6), not eight (8) stab wounds.^[10]
At any rate, prosecution witness Dr. Apolinar Vacalares who autopsied the victim’s body testified that
with the wounds sustained by Nino, he could still be conscious and could still
communicate and travel because he had still approximately thirty (30) minutes
to one (1) hour to live.^[11]
This medical opinion of Dr. Vacalares was subsequently
sustained by the fact that the victim managed on his own power to reach home
and lived for about two (2) hours more after the criminal assault.  He was stabbed at around 11:00 o’clock in the evening and he died at about 1:00 o’clock the next day.^[12]

That the victim did make a dying declaration of the tenor
testified to by the prosecution witnesses is further
confirmed by the proven actuations of the victim’s father on that
occasion.  As the trial court observed,
right after Nicolas Velez, Sr. was told by Nino that it was Sedan,
Richard and some others who stabbed him, the father
did not even escort Nino to the hospital but forthwith called the police and
accompanied the responding policeman to the house of accused Sedan Alegarbes.  Had there
been no such declaration of the victim, it is not only unlikely but even
incredible that Nicolas Velez, Sr. would spontaneously act as he did since he
would have had no reason or basis for doing so, nor is there even an intimation
that foisting liability on the accused Alegarbes was
a mere contrivance of the offended family.

There can be no doubt that, in this criminal case wherein the
victim’s death is the subject of inquiry, all the requisites for the
admissibility of his statements as a dying declaration^[13]
are present:  said statements referred to
the cause and surrounding circumstances of his death and he was competent to
testify thereto.  That he made such
declaration under the consciousness of imminent death is confirmed by the
serious nature of his wounds as would necessarily engender a belief on his part
that he would not survive therefrom,^[14]
especially where, as in this case, he died around two hours thereafter.^[15]

On the foregoing considerations, the admissibility in evidence of
the victim’s declarations in articulo mortis,
as an exception to the hearsay rule, is ineluctably justified.

We have taken into
account that the rule on the admissibility of such kind of evidence does not
determine its weight and credibility. 
After its proof and admission as such, its credibility and weight should
be determined by the courts under the same rules used in testing the weight and
credibility of any other testimonial evidence.^[16]
Thus, such factors as where the facts narrated by the declarant
occurred under circumstances of rapidity and confusion should be considered
since the accuracy of the victim’s observation of the occurrences could be
affected by such unexpected
events and disorder and, therefore, he could be mistaken in his narration of
the facts.

Expectedly, appellant insists that even granting there was a
dying declaration, the same should not be given
credence in the light of other circumstances obtaining during the
incident.  He contends that the victim’s
observation could have been blurred by intoxication, darkness and the
suddenness of the attack.

We have carefully examined the records of this case but we cannot
find any evidence that would substantiate appellant’s submission.  It can even be deduced from the testimony of
the defense witnesses that Nino Velez was not intoxicated.  Defense witness Warren Villacorta
admitted that the victim was with the group of the accused only for a short
period of time, arriving just before the stabbing at 11:00 o’clock.^[17]
Also, accused Alvin Ucab testified that their group of about six to seven persons were drinking only two
pocket-size bottles of rum from 9:00 o’clock
to 11:00 o’clock that evening.^[18]
There is no dispute whatsoever that the victim knew the identities of the
persons present at the drinking party, having known them for a long time.  It is understandable, of course, for accused
Sedan Alegarbes not to testify on the incident
because it would be inconsistent with his defense of alibi.  Nevertheless, his failure to present evidence
in support of his aforesaid allegation, which is more in the nature of a theoretical surmise, cannot but
seriously undermine his defense.

We have to reject appellant’s denial of any participation in the
fatal stabbing of the deceased, and accused Ucab’s
claim that it was only Richard Agbu who was the
author of the crime.  Significantly and
conveniently for purposes of said imputation of the accused, Richard Agbu was never apprehended and is still at large.  Moreover, aside from being inherently
suspect, such disclaimer is further belied by the physical evidence. Dr. Vacalares categorically declared that the wounds of the
victim, particularly the serious ones at the back and at the chest, may have
been inflicted simultaneously because said wounds had bled the same amount of
blood; therefore, it would be impossible for one person to inflict both.^[19]

We also consider the backdrop, as established by the prosecution
that there was a standing grudge between the victim and appellant; that on June
11, 1984, appellant and a military
man with a gun were looking for the victim;^[20]
and that on June 26, 1984, appellant and one Victor Ybañez,
both armed with bolos, were again looking for the victim.^[21]

The invocation by appellant of the enervated defense of alibi is
unavailing, not only by reason of its inherent weakness but also because of the
circumstances attending the incident. 
The home of the accused where he claimed to be at the time of the
incident is very near the lawn where the victim was stabbed.  His allegation that he was at that time with
his wife who was in labor does not merit any credence considering that the
child was born fourteen days
thereafter.^[22]

On appellant’s assignment of error that the court a quo erred in ordering him to pay
the heirs of Nino Velez actual and moral damages,^[23]
We note with displeasure appellant’s failure to even
discuss the reason for the same.  As the
Solicitor General commented, “perhaps,
appellant’s second error is merely dependent on being acquitted under his first
assigned error”.^[24]
At any rate, the records of this case yield sufficient evidence to justify the
award of actual damages, P1,000.00 for the hospital
and P3,000.00 for the funeral parlor, and moral damages.^[25]

WHEREFORE, finding no reversible error on the
part of the trial court, the decision appealed from is hereby AFFIRMED in toto. ^[26]

SO ORDERED.

Melencio-Herrera, (Chairman), Paras, Padilla, and Sarmiento, JJ., concur.

^[1]
Hon. Leonardo N. Demecillo,
Presiding Judge.

^[2]
Rollo, 7.

^[3]
TSN, Feb. 28, 1986, 10-13; March 3, 1986, 8-20.

^[4]
TSN, March 3, 1986, 39-41;
45-47.

^[5]
TSN, May 19, 1986, 13-14.

^[6]
Rollo, 16-17.

^[7]
Ibid, 25.

^[8]
Original Record, 476-477.

^[9]
Appellant’s Brief, 3-4; Rollo, 36.

^[10]
TSN, May 19, 1986, 4.

^[11]
Ibid, id., 6.

^[12]
TSN, February 28, 1986, 14.

^[13]
Sec. 31, Rule 130, Rules of Court.

^[14]
People vs. Sarabia, et al.,
127 SCRA 100 (1984).

^[15]
See People vs. Brioso, et al., 37 SCRA 336
(1971); People vs. Garcia, 89 SCRA 440 (1979); People vs. Araja, et al., 105 SCRA 133 (1981).

^[16]
People vs. Aniel, 96 SCRA
199 (1980); People vs. Ola, 152 SCRA 1 (1987).

^[17]
TSN, June 16, 1986, 110-12.

^[18]
TSN, August 8, 1986, 20.

^[19]
TSN, May 19, 1986, 6.

^[20]
TSN, March 24, 1986, 84-85.

^[21]
TSN, id., 87-89.

^[22]
TSN, August 15, 1986, 21.

^[23]
Appellee’s
Brief, 12.

^[24]
Appellee’s Brief, 12.

^[25]
TSN, February 28, 1986, 22-24; TSN,
March 3, 1986, 34.

^[26]
The affirmance of the penalty of reclusion perpetua is in line with the doctrine in People vs.
Millora, et al., G.R. Nos. L-38968-70,
February 9,
1989, on which the writer has heretofore
expressed his dissent.