PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. GREGORIO CLAMOR Y SANTIAGO, ACCUSED-APPELLANT.

Gregorio Clamor appeals from a Decision of the Regional
Trial Court of
Caloocan City
which imposed upon him the penalty of reclusion perpetua
for the murder of Ricardo Rivera.

The information filed against appellant and John Doe, the true
name, real identity and present whereabouts of the latter being still unknown, read
as follows:

“That on or about the 27th day of March 1981, in Caloocan, Metro Manila, and within the jurisdiction of this
Honorable Court, the above-named accused without any justifiable cause, with
deliberate intent to kill and with treachery and evident premeditation, conspiring together and mutually helping one
another, did then and there wilfully, unlawfully and
feloniously shoot one Ricardo Rivera, with a gun of unknown caliber, several
times on the different vital parts of the body, thereby inflicting serious
physical injuries upon the latter, which injuries caused his death at the Quezon City General Hospital.

Contrary to law.”^[1]

Appellant entered a plea of not guilty on arraignment.  The prosecution and the defense thereafter went to trial and adduced their
respective evidence.  Since John Doe
remained at large and unidentified, the case as against him was archived for
future disposition.  On 28 August 1987, the trial court
rendered a decision with the
following dispositive portion:

“IN VIEW OF ALL THE FOREGOING, the Court finds accused
Gregorio Clamor y Santiago GUILTY beyond reasonable doubt of the crime of
Murder defined and penalized under Art. 248 of the Revised Penal Code and
sentences him to suffer the penalty of RECLUSION PERPETUA (LIFE IMPRISONMENT)
with the accessories provided by law, indemnify the heirs of the deceased
Ricardo Rivera in the amount of P50,000.00 as death indemnity, and the further
sum of P12,700.00 as actual damages without subsidiary imprisonment in case of
insolvency, and to pay the costs.

This case shall remain pending as regards the other accused listed in the information whose
identity is not yet known.

SO ORDERED.”^[2]

The present appeal assigns the following errors:

1.  The lower court erred in appreciating the
alleged dying declaration of the deceased.

2.  The lower court erred in giving credence to
the testimonies of witnesses Inocencio Arellano and Eulogio Rivera.

3.  The lower court erred in finding the accused
guilty beyond reasonable doubt.^[3]

The trial court found the following facts to have been
established:

“On March 27, 1981
at about 7:30 p.m., Ricardo Rivera
with companion Jaime Pascual was walking along Deparo, Caloocan
City on their way to Bagumbong.  Upon
reaching a place thereat near the school and store of Aling
Maring, a motorcycle
with two (2) persons riding tandem passed by towards Novaliches.  As the motorcycle passed Ricardo Rivera and
companion, the rider behind the one driving the motorcyle
shot Ricardo Rivera.  The two (2) persons
then fled towards Novaliches.  Momentarily, for reasons only known to them
and apparently to make certain that Ricardo Rivera was dead, they turned back the
motorcycle, ran towards Ricardo Rivera and shot him again after alighting from
the motorcyle. 
The two (2) shots found their marks at the back of victim Ricardo
Rivera.  The victim fell down mortally
wounded.  Inocencio
Arellano, who was then at the store of Aling Maring buying cigarettes and Eulogio
Rivera, brother of the victim who was then on his way home to Bagumbong and after hearing shots, both responded to help
him.  Eulogio
Rivera placed the victim in a tricycle and rushed him to the Quezon City General Hospital. 
Fortunately, Inocencio Arellano witnessed
the whole incident as the place of the crime was lighted.  He saw and recognized the person who shot the
victim as he
positively pointed to accused Gregorio Clamor as the killer.  Eulogio Rivera was
also positive and certain that he saw and recognized the person at the back
seat of the motorcycle as the accused Gregorio Clamor, the compadre
of his deceased brother, Ricardo Rivera. 
Upon arrival at the Quezon
City General Hospital,
report of the incident was made by telephone to the Caloocan
City Police Headquarters.  Pat. Arsenio Alilam was assigned as
investigator.  He rushed to the hospital
where he found the victim mortally wounded. 
He then took an ante mortem statement of the victim in question and
answer method in the presence of Det. Cesar
Salting.  Attending Physician Dr. Alberto
Vergara and the victim’s brother Eulogio
Rivera.  x x x“^[4]

Appellant first assails the statement given by the deceased
Ricardo Rivera, the text of which is quoted below:

“8:45
P.M.  27 March 1981 QCGH

T –   Ano
ang iyong pangalan at ibang bagay na maaaring
pagkilanlan sa iyong pagkatao?

S –   Ricardo Rivera y
Arellano, 35 years old, M, Farmer,
Native and resident of Bo. Bagombong, Caloocan, Metro Manila.

T –   Ano
ang dahilan bakit ka narito sa hospital ng Quezon City?

S –   Pinagbabaril
po ako.

T –   Kilala
mo ba ang bumaril sa iyo?

S –   Opo.

T –   Sino and bumaril sa iyo kung kilala mo?

S –   Si
Gregorio Clamor na taga Bagombong, Caloocan
City.

T –   Anong
dahilan bakit ka pinagbabaril?

S –   Galit
sa akin iyang si Gregorio Clamor.

T –   Kailan
at saan nangyari ito?

S –   Kanina
alas 7:00 ng
gabi sa Bo. Bagumbong, ika 27 ng Marso 1981, habang pauwi kami
ni Jaime Pascual galing sa presinto
ng Urduja.

T –   Ikamamatay
mo ba ang mga sugat na
natamo mo?

S –   Sa palagay
ko po.

(SGD). RICARDO RIVERA

Statement taken by Det.
Alilam and signed in the presence of Det. C. Salting, Attending Physician Dr. Alberto Vergara.  Brought in at about 8:30 p.m., 27
March 1981.”^[5]

The trial court characterized and
accepted the above statement as a dying
declaration under Section 31 of Rule 130 of the Revised Rules of Court which
reads as follows:

“Sec. 31.  Dying
declaration. — The declaration of a
dying person, made under a consciousness of
an impending death, may be received in a criminal case wherein his death is the
subject of inquiry, as evidence of the cause and surrounding circumstances of
such death.”

The trial court said:

“Let us discuss first the ante mortem statement
of the deceased Ricardo Rivera when he was at the Quezon City General Hospital
lying mortally wounded and at the point of death.  Questions were asked of him by the
investigator:

‘T:      Kilala mo ba ang
bumaril sa iyo?

S:      Opo.

T:      Sino
ang bumaril sa iyo kung kilala
mo?

S:      Si Gregorio
Clamor na taga Bagumbong, Caloocan
City x x x

T:      Ikamamatay mo ba ang mga sugat na
natamo mo?

S:      Sa palagay ko
po.

x x x              x x x                 x x x’

This portion of the ante mortem statement
is the most telling evidence presented by the prosecution.  Its analysis (Exhibit ‘A’) would reveal that
it must have been obvious to the victim Ricardo Rivera that death was fast
approaching because of the mortal wounds which he must have surely felt.

Ante mortem statements are exceptions to the hearsay rule.  Section 31, Rule 130 of the Revised Rules of
Court provides x x x.

All the elements of a dying declaration as an exception to the hearsay rule
were all present in the instant case. 
The dying declaration of the victim Ricardo Rivera should be considered
as such for when the victim gave his statement he was in a serious condition
and at the point of death.  In his
statement Exhibit ‘A’ the victim positively identified the accused Gregorio
Clamor as the one who shot him.  It is to
be observed that when the victim made this statement he was conscious that he
was about to meet his creator as to vanish from his mind any attempt to tell
lies and his only comforting consideration then is to enjoy peace and serenity
of conscience was to tell the truth. 
There is a saying that ‘Truth lies on the lips of dying men.’

x x x              x x x                 x x x“^[6]

Appellant’s contention is that the deceased Ricardo Rivera was not
in a physical and mental condition to have intelligently given the question and
answer statement recorded by Detective Arsenio Alilam of the Caloocan Police
Department and (allegedly) signed by the deceased at about 11:00 p.m. on the same evening that he was shot.  Appellant seeks to base his contention here
on the testimony of Dr. Salvador, NBI Medico-Legal Officer, on
cross-examination that the bullet wounds sustained by the deceased would have
put the latter in deep trauma and shock within two (2) to five (5) hours after
the shooting.  Since Ricardo Rivera was
shot at about 7:30 p.m. in the
evening and the statement taken at about 11:00
p.m. in the same evening, appellant claims by that time.  Ricardo Rivera could not have understood the
questions put to him and given sensible answers thereto.

The principal difficulty with appellant’s argument is that it
places excessive reliance upon the precise time when the ante mortem
statement was, in appellant’s view, taken down and signed.  In the first place, appellant did not
challenge the genuineness of Ricardo Rivera’s signature on the statement.  In the second place, the signed statement,
which was taken in longhand, itself recorded the time it was supposed to have
been made; 8:45 p.m. on 27 March 1981 or about an hour and fifteen (15) minutes
after the victim was shot earlier in the evening.  Det. Alilam himself did estimate himself that the statement was
taken about 11:00 p.m. that evening.^[7]
It was clear from his statement, however, that Det. Alilam’s sense of the timing and sequence of events that
evening in the
hospital was rather impressionistic.  For
Det. Alilam also testified
that Ricardo Rivera died several hours after his statement was taken down in the presence of Det. Salting, and that Ricardo Rivera died at about 11:00 p.m. that evening.  One thing appears clear:  Det. Alilam testified that the statement was taken down not long
after the deceased was brought to the hospital; indeed, the attending physician
had not yet begun to examine the victim personally though a nurse had begun to
attend to him.^[8]
The entry of “8:45 p.m.” on the statement of Ricardo Rivera having
been made in the regular course of official police business, the Court is bound
to presume that that time was correctly recorded.^[9]
That presumption was not overcome by the impressionistic estimate given by Det. Alilam on cross-examination
that the ante-mortem statement was taken at about 11:00
p.m.  Finally, while Det.
Alilam had failed to have either Det.
Salting or Dr. Vergara sign the statement as
witnesses thereto, appellant has neither alleged nor proved that Det. Alilam had deliberately
fabricated the whole ante-mortem declaration to falsely accuse an
innocent man.

Thus, the Court believes that the trial court properly admitted
and took account of the ante-mortem statement of Ricardo Rivera.  We consider that that statement complied with
the requirements of a dying declaration, to wit?

“(a)  that the declaration must concern the cause
and surrounding circumstances of the declarant’s death;

 (b) 
that at the time the declaration was made, the declarant
was under the consciousness of an impending death:

 (c)  that the declarant
is competent as a witness; and

 (d) 
that the declaration is offered in a criminal case wherein the declarant’s death is the subject of inquiry.”^[10]

While the gunshot wounds inflicted on
Ricardo Rivera did not immediately cause his death, he had anticipated the
onset of death while giving his statement. 
When asked whether he believed he was mortally wounded.  Ricardo Rivera answered “(S)a palagay ko po.”
There is here sufficient indication that he believed that death would shortly
— in a matter of hours — take him away. 
We also agree with the trial court that the statement of Ricardo Rivera
naming appellant as the gunman who had shot him was part of the res gestae,
admissible as a separate exception to the hearsay rule.^[11]

After the trial court had rendered its decision sentencing
appellant for the crime of murder, two (2) of the prosecution witnesses
apparently executed affidavits in which they retract testimony given by
them:  Gregorio Rivera, father of the
victim Ricardo Rivera; and Inocencio Arellano, uncle
of the victim.^[12]
Gregorio Rivera had testified only in respect of hospital and funeral expenses
incurred by the family of Ricardo Rivera. 
His affidavit of retraction, where he makes statements to the effect
that appellant Gregorio Clamor knew nothing about the murder of Ricardo Rivera
and that Ricardo was unconscious when he arrived at the hospital, is clearly
worthless.  Inocencio
Arellano had, as prosecution
witness, identified appellant as the
gunman, riding on the backseat of the motorcycle, who had shot Ricardo Rivera
as the motorcycle zoomed past him.  The
retraction affidavit of Inocencio Arellano, where he denied
that he had seen appellant Gregorio Clamor shoot the victim, cannot, however,
be given effect to absolve appellant from any participation in the killing of Ricardo Rivera.  The well-settled rule is summarized in Reano, et al. v. Court of Appeals^[13]
in the following terms:

“1. The Court has looked with disfavor upon
retraction of testimonies previously given in court.  Thus, the Court has ruled against the grant
of a new trial on the basis of a retraction by a witness.  The rationale for the rule is obvious:

Affidavits of retraction can easily be secured from poor and
ignorant witnesses usually for a monetary consideration.  Recanted testimony is exceedingly
unreliable.  There is always the
probability that it may later be repudiated. 
So courts are wary or reluctant to allow a new trial based on retracted
testimony.

However, when aside from the testimonies of the retracting witness
or witnesses there is no other
evidence to support a judgment of conviction,
a new trial may be granted.

2.  Where a witness testifies for the prosecution
and retracts his or her testimony and subsequently testifies for the defense,
the test in determining which testimony to believe is one of comparison coupled
with the application of the general rules in evidence, as enunciated in People v. Ubina
[97 Phil. 515 (1955)], where the Court said:

The testimony of Ruben Francisco for the prosecution is claimed to
be unworthy of credit because later on he testified for the defense, declaring
that all he had stated against the defendants is not true. . .

The theory of the defense that Francisco’s previous testimony is
false, as he subsequently declared it to be so, is as illogical as it is
dangerous.  Merely because a witness says
that what he had declared is false and that what he now says is true, is not sufficient
ground for concluding that the previous testimony is false.  No such reasoning has ever crystallized into
a rule of credibility.  The rule is that
a witness may be impeached by a previous contradictory statement (Rule 123,
section 91); not that a previous testimony is presumed to be false merely
because a witness now says that the same is not true.  The jurisprudence of this Court has always
been otherwise, i.e., that contradictory testimony given subsequently does not
necessarily discredit the previous testimony if the contractions are
satisfactorily explained.  We have also
held that if a previous confession of an accused were to be rejected simply
because the latter subsequently makes
another confession, all that an accused would do to acquit himself would be to
make another confession out of harmony with the previous one.  Similarly, it would be a dangerous rule for
courts to reject testimonies solemnly taken before courts of justice simply because the witnesses who had given them
later on change their mind for one reason or another, for such rule would make
solemn trials a mockery and place the investigation of
truth at the mercy of unscrupulous witnesses. 
If Francisco says that when he testified for the prosecution he was paid P700,
what can prevent the court from presuming that subsequently he testified for
the defense because the defendants also paid him to testify for them?  The rule should be that a testimony
solemnly given in court should not be lightly set aside and that before this
can be done, both the previous testimony and the subsequent one be carefully
compared, the circumstances under which each given carefully scrutinized, the
reasons or motives for the change carefully scrutinized — in other words, all
the expedients devised by man to determine the credibility of witnesses should
be utilized to determine which of the contradictory testimonies represents the
truth.”^[14]
(Citations omitted; underscoring in the original)

The Court has examined the testimony given by Arellano before the
trial court and the retraction affidavit later executed by him.  The testimony of Arellano before the trial
court was forthright, clear and positive. 
Arellano had recognized appellant Clamor as the rider mounted behind the
man driving the motorcycle when the two (2) returned, after having passed and
shot Ricardo Rivera, and the rear rider dismounted, shot Ricardo again,
remounted the motorcycle and the two (2) riders sped off.^[15]
Upon the other hand, in his affidavit, Arellano stated that he did not see the
shooting of Ricardo that he did not remember who had first brought up the name
of appellant Clamor as a possible
suspect due to an earlier dispute Clamor had with Ricardo concerning some farm
animals owned by Clamor.^[16]
We do not believe that this simple, blanket denial warrants rejection of the
detailed testimony of Arellano, testimony that he had clung to throughout
cross-examination.  Finally, we must note
that the decision of the trial court did not rest exclusively on the testimony
of Arellano:  there was the dying
declaration of Ricardo and the equally positive identification in court of
appellant as the killer by Eulogio Rivera, a brother
of the victim.

Appellant raised as his principal defense that at the time
Ricardo Rivera was shot, he (appellant) was in Pajo
(or Maypajo), Meycauayan, Bulacan.  He
testified that as early as 9:00 o’clock in the morning of 27 March 1981, he
left his residence
at MBA Subdivision in Bagumbong, Caloocan
City for Pajo, Meycauayan, Bulacan at the invitation and in the company of several
friends.  It took them at least two (2)
hours to reach their destination because instead of taking a bus or jeepney, they decided to go to Pajo
on foot.  There, the group ate lunch at
the house of one Rody.  Later, they transferred to the place of one Kiko, also in Pajo, where they
finished two (2) bottles of gin.  At 4:00
o’clock in the afternoon, they proceded to the house
of a third friend, one Taruk, still in Pajo, to eat watermelons and then drank beer
afterwards.  They were, appellant claims,
in Pajo practically the whole day and evening leaving
at about 10:00 o’clock in the evening. 
They returned to Caloocan City again by foot
arriving thereat at 12:00 o’clock midnight. 
It was not until the following morning that Gregorio Clamor learned
about the death of Ricardo Rivera; stories about Gregorio’s alleged participation in
the crime came to his knowledge only on 29 March 1981.  He then sought the assistance of his uncle
who volunteered to accompany him to the headquarters of the Caloocan
City Police for investigation.  Appellant
gave a written statement before the police investigator and was made to undergo
a paraffin test.^[17]

The defense of alibi, however, cannot overcome the dying
declaration of the victim and the testimonies of the prosecution witnesses^[18]
which uniformly pointed to appellant as the person mounted on the back of the
motor­cycle who fired at Ricardo Rivera. 
Further, appellant had not sufficiently demonstrated that it was physically
impossible for him to be in Caloocan City at any time
during the day assuming he was indeed in Pajo, Meycauayan, Bulacan and was to
come from that place.  Appellant made it a point to
stress that he and his companions had gone on foot all the while.  Public motor transportation was, of course,
available.  Even if he had opted to walk,
he himself had testified that he could have reached Caloocan City
from Pajo, Meycauayan, Bulacan in approximately two (2) hours or even less.

The finding in the Chemistry Report^[19]
prepared by the Forensic Chemistry Section of the National Bureau of
Investigation (NBI), that nitrates were not found in the hands of appellant, is
not conclusive evidence that appellant did not fire a gun at the victim.  The Court notes that the paraffin test was
conducted by the NBI on 30 March 1981
at 5:00 o’clock in the afternoon
while the shooting incident occurred in the night of 27 March 1981. 
As testified to by the NBI Forensic Chemist on cross-examination, there
are many factors that could cause the disappearance of nitrates or gunpowder
residue, e.g., perspiration and washing of the hands.^[20]
It cannot be discounted that after the lapse of more than two (2) days, the
powder residues, if any, had been washed away.

The information alleges that appellant shot Ricardo Rivera with
treachery and evident premeditation.  The
trial court found both treachery and evident premeditation, either one of which
would of course qualify the killing to murder.

Treachery was correctly taken into account by the trial
court.  Appellant was armed with a gun,
riding tandem on a motorcycle, suddenly and without warning shot Ricardo Rivera
in the back as the motorcycle sped by. 
Ricardo Rivera was then walking with another man, Jaime Pascual, along the road to Bagumbong,
unsuspecting and unarmed.  The motorcycle
then turned back and returned to where Ricardo lay wounded, and appellant fired
at Ricardo once more, again hitting him in the back.  Ricardo had no effective opportunity to
defend himself and to strike back at the assassin.

Upon the other hand, evident premeditation cannot be said to have
been proved.  None of the elements of
evident Premeditation — (1) proof of the time when the accused decided to
commit the crime; (2) proof of an overt act showing that the accused had clung
to his determination to commit the crime; and (3) the lapse of time between the
decision and the execution of the crime sufficient to allow the accused to
reflect upon the consequences of his acts — ­had been established by the
prosecution.

Nighttime was similarly erroneously appreciated by the trial
court.  Towards the end of the Decision,
the trial judge observed that the crime had been committed at night and
concluded that it was purposely sought not only to assure successful execution
of the killing but also to prevent identification or recognition by
eyewitnesses.  The ordinary rule,
however, is that nocturnity is deemed absorbed in
treachery and as such is not be appreciated separately.^[21]

Appellant may be credited
with voluntary surrender.  Having learned
of the rumor about his participation in the killing of Ricardo Rivera,
appellant sought the advice of his uncle and then voluntarily went to the
police station for interrogation.  He
surrendered himself personally to the police authorities and had his hands
subjected to a paraffin test to determine the presence of nitrates or gunpowder
residue.  He was released from detention
only upon posting of a bond in the amount of P30,000.00.

WHEREFORE, the Decision of the Regional
Trial Court of
Caloocan City,
Branch 125 in Criminal Case No. 15953(81) is hereby MODIFIED so as to credit appellant Gregorio
Clamor with the mitigating circumstance of voluntary surrender.  Applying the Indeterminate Sentence Law,
appellant Gregorio Clamor is hereby SENTENCED to suffer imprisonment for an
indeterminate period ranging from twelve (12) years as minimum to twenty (20)
years as maximum.  Appellant is ORDERED
to indemnify the heirs of the late Ricardo Rivera in the amount of P50,000.00
as moral damages and P12,700.00 as actual damages, and to pay the costs of
suit.

SO ORDERED.

Fernan, C.J., (Chairman), Gutierrez,
Jr., Bidin, and
Davide, Jr., JJ., concur.

^[1]
Record p. 1.

^[2]
RTC Decision, p. 19; Record, p. 326.

^[3]
Brief for the Appellant, p. 4; Rollo, p. 62.

^[4]
Decision of the Trial Court, 9-10;
Record, pp. 317-318.

^[5]
Records, p. 122.

^[6]
Decision of the Trial Court, Rollo, pp. 31-32.

^[7]
TSN, 2 February 1982, pp. 32
and 48.

^[8]
Id., pp. 29-30.

^[9]
Section 5 (m) and (q), Rule 131, Revised Rules of Court.

^[10]
People v. Nabor, 185 SCRA 615 (1990); People v.
Saliling, 69 SCRA 427 (1976); People v. Sagario, 14 SCRA 468 (1965).

^[11]
People v. Reyes, 52 Phil. 538 (1928).

^[12]
The texts of these affidavits are reproduced in Appellant’s Brief, pp. 10-13.

^[13]
165 SCRA 525 (1988).

^[14]
165 SCRA at 530-531.  See also De Guzman v.
Intermediate Appellate Court.  184 SCRA
128 (1990); People v. Morales. 
113 SCRA 683 (1982).

^[15]
TSN, 23 March 1982, pp.
21-30.

^[16]
Affidavit, as quoted in Appellant’s Brief, Rollo,
p. 70.

^[17]
TSN, 5 December 1984, pp.
3-22.

^[18]
People v. Ebora, 141 SCRA 282 (1986).

^[19]
Records, p. 225.

^[20]
TSN, 12 January 1987, pp.
8-10.

^[21]
People vs. Maravilla, 167 SCRA 645 (1988);
People vs. Bardon, 165 SCRA 416 (1988).