PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. VIRGILIO OSIAS Y MALLARI, AND FERNANDO SANCHEZ Y DE LA CRUZ, ACCUSED.  VIRGILIO OSIAS Y MALLARI, APPELLANT.

In this appeal interposed
by Virgilio Osias y Mallari who was
convicted in Criminal Case No. 22478, entitled, “People vs. Virgilio Osias y. Mallari, et al.”, of the Regional Trial Court (RTC)
Branch 124, Kalookan
City, he submits that the trial
court committed a reversible error in finding him guilty beyond reasonable
doubt of the crime of robbery with homicide. 
He claims that the trial court failed to consider the attendant
circumstances, to wit:

I.  Ricardo Durana’s testimony is weak and full of inconsistencies
thereby making his testimony not credible.

II.  Ricardo Durana is a paid witness, as such his testimony should not
be believed.

III.  Ricardo Durana has not positively identified appellant as one of
the perpetrators of the criminal act.^[1]

He argues that if the foregoing
circumstances are taken either singly or collectively, reasonable doubt of his
guilt would be created.  Moreover, his
defense of alibi would be brought to sharper focus.  In either case, he should be then absolved of
the accusation.

The case had its beginnings at 10
o’clock in the morning of April
25, 1984.  Romeo Cuaderno y de la Cruz was riding an easy rider
butterfly-type bicycle along J.P. Rizal
Street, Kalookan City
when suddenly, accused Fernando Sanchez y de la Cruz, nicknamed
“Dodo,” appeared and tried to grab the bicycle from him.  Romeo fell but stood up immediately to
prevent his assailant from getting his bicycle. 
While the two were grappling, the other accused and sole appellant Virgilio Osias y Mallari, nicknamed “Benjie,”
who was positioned at the back
of Romeo, stabbed the latter on the left side of the neck “by making a
sway of his right hand upward going downward” with a 6-inch double-bladed
knife.

Gaining possession of the bicycle, Dodo and Benjie
carried it with them as they ran in the direction of Manila.  Meanwhile, Romeo walked towards the Martinez
Hospital which was about ten meters
away, but collapsed near the gate of the said hospital.

The incident was seen by Ricardo Durana,
the sole eyewitness presented by the prosecution, who was standing in front of St. Joseph’s
Pharmacy on the other side of J.P. Rizal
Street, which was about six meters away from the
scene of the crime.  He had just come out
of the pharmacy where he bought a drug called prosteclin;
from where he stood he had a full view of the stabbing incident as there was no
motor vehicle that passed by at that particular time when it happened.

Romeo Cuaderno, who sustained one
wound, died at 10:30 in the morning of April 25, 1984 from shock, traumatic,
due to “a stab wound at the right side of the neck, measuring 5 x 3.5 x 12
cm. deep, lacerating the right jugular vessel, trachea, and the left
lung.”^[2]

On May 24, 1984,
an information for robbery with homicide was filed against herein appellant Virgilio Osias and his co-accused
Fernando Sanchez y de la Cruz.^[3]

It was only on January 1,
1987 that the appellant was arrested.  His co-accused, Fernando Sanchez y de la
Cruz, was not apprehended, and remains at large up to now as far as the records
show.

On January 26, 1987,
Virgilio Osias y Mallari entered a plea of not guilty.^[4]
Thereafter, trial was commenced by Judge Cancio C.
Garcia, now Justice of the Court of Appeals, who heard the testimonies of the
witnesses for both the prosecution and the defense.  Judge Garcia, however, was replaced by Judge
Rene Victorino who penned the decision, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING, this Court finds the accused VIRGILIO OSIAS y MALLARI guilty beyond
reasonable doubt, as principal, of Robbery with Homicide as defined and
penalized under paragraph 1 of Article 294 of the Revised Penal Code, as
amended, and hereby sentences him to suffer imprisonment of Reclusion Perpetua; to indemnify the heirs of the victim in the
amount of P30,000.00 as consequential damages; to return the bicycle,
subject-matter of the robbery, and if unable to do so, to pay the value thereof
in the amount of P1,000.00, to the legal heirs of the victim and to pay the
costs.

The accused shall be credited in the service of his sentence with
the full time he has undergone preventive imprisonment pursuant to Article 29
of the Revised Penal Code, as amended, provided the conditions prescribed
therein have been complied with.

The case as against accused FERNANDO SANCHEZ y DELA CRUZ is to be
archived as he has not yet been apprehended.

SO ORDERED.^[5]

The appellant denies having committed such a crime.  He sets
up the defense of alibi.

The appellant narrated at the trial that on April 25, 1984, he was with his sisters,
Patricia, Metring, and Paring, at the family
residence at No. 111 B. Santos Street,
Isla de San Juan,
Kalookan City.  They were all busy preparing and cooking coconut jam, for sale, their means
of livelihood, from about 6:00 o’clock in the morning up to around 3:00 o’clock in the afternoon.  The appellant’s role was to remove the
coconut meat from the shells.  He also helped in the cooking.  At around 3:00
o’clock in the afternoon, he went to the public market to buy sweet
peanuts to be mixed with the coconut meat. 
He stayed home the rest of the day.

Luisa Osias, a sister of the appellant,
substantially corroborated her brother’s testimony.

In this review, we shall resolve the errors allegedly committed
by the trial court in the order enumerated above.

I.  Ricardo Durana’s testimony is
weak and full of inconsistencies, thereby making his testimony not
credible.

The appellant claims that inasmuch as Durana
reported the alleged stabbing incident to the police authorities only six (6) days later–i.e. on May 3, 1984
when he gave a sworn statement to the Kalookan City
police–and testified only upon the insistence of the father of the victim who
is a neighbor and a family
friend, the crime imputed against the appellant is a fabricated one.  For this
reason, Durana should not be relied upon at all, the
appellant contends.

There is no correlation between the credibility of a witness and
his belated reporting to the authorities of a crime he had witnessed. 
In this case, we see nothing wrong in the behaviour
of Durana.  As a matter of fact he immediately informed
the relatives of the victim of the stabbing incident.^[6]
The initial reluctance of an eyewitness to a crime to come to the open and get
himself involved in a criminal investigation and prosecution is common and
understandable, and has been judicially declared as not affecting credibility.^[7]
Besides, Durana explained satisfactorily that he
waited until after the burial of
the victim before reporting the incident to the authorities.^[8]

Per se a witness
who is a neighbor and a family friend of the victim does not inescapably make
one a biased witness unworthy of belief. 
In order to be denigrated as such, there must be extant other factors.  For example, motive must be established why
the witness falsely testified against the accused.  Or the witness has a special interest in the accused’s conviction. 
In this case, the evidence confirms the absence of motive or special
interest.  In fact, the appellant does
not know of any reason why Durana testified against him.^[9]

Likewise, the appellant submits that Durana
should not be believed at all, especially in his detailed description of the
milieu of the incident, where, in the words of the appellant, “everything
seemed to be suspended in time and motion, the busy street gave way to allow Durana to vividly witness the commission of the heinous
act.”^[10]
We do not agree.  Other than this bare
assertion, the appellant did not present any evidence demonstrating that the
milieu at the time of the incident was otherwise.  On the other hand, Durana
is categorical and unwavering in his positive eyewitness testimony.

ATTY. PACIS:      And there were many passenger jeepneys
passing along the road?

WITNESS DURANA:       Yes, sir.  There were
many passenger jeepneys passing by.

Q:   And
there were also many persons passing to and from along that road?

A:    There
were, sir.

Q:   And
there were many customers buying from the said pharmacy?

A:    There
were about six persons, sir.

Q:   So that
the traffic was stopped because of this struggling or grappling for the possession of the bicycle between
Romeo Cuaderno and Dodo?

A:    No,
sir, because it happened at the
other side of the road.

Q:   And
so between you, you were located infront of the
pharmacy and the two persons grappling for the possession of the bicycle there
were passing vehicles?

A:    There
were, sir.

Q:   So
that you could not see all the things that happened between these two because
your line of vision of your eyes was obstructed by the passing transportation
vehicles?

A:    No,
sir, because when the grappling for the
possession of the bicycle occurred I saw it exactly because no vehicle passed
by.^[11]

We are convinced that the detailed narration of Durana on the milieu of the crime attests to the clarity of
his observation and the truthfulness of his account.

Another alleged inconsistency in the testimony of Durana is his account of seeing the appellant standing at
the back of the victim and stabbing him only once with a six-inch long
double-bladed knife at the left side of the neck by swaying his right hand upward
then downward,^[12]
as against the victim still able to negotiate the 10-meter distance to the
Martinez Hospital.^[13]
The appellant contends that the physical evidence revealed that the victim
sustained one stab wound on the right side of the neck^[14]
and that according to Dr. Abelardo Lucero, the
physician at the Martinez Hospital who had attended to the victim, the
assailant was facing the victim with a knife, stabbed him on the neck, and put
the knife downward,^[15]
and that the victim died on the spot.^[16]

We are not impressed.  We
consider such contradictions minor and collateral and as such do not impair the
credibility of Durana.  We subscribe to the observations of the
Solicitor General that it is understandable if the witness is unable to pinpoint exactly where
the fatal blow was inflicted, whether on the right or left side of the neck,
and not know the relative positions of the malefactors with respect to the victim, considering that the
assailants and the victim were grappling for the possession of the bicycle and were therefore in constant motion
and changing positions.^[17]

Between the opinion of Dr. Lucero that the victim died on the
spot and Durana who
testified that the victim was still able to walk about 10 meters to the
Martinez Hospital,
we give credence to the latter.  For
obvious reason:  Durana
saw the victim walk to the Martinez
hospital.

II.  Durana
is a paid witness, as such his testimony should not be believed.

The appellant capitalizes on the admission of the father of the
victim, Vicente Cuaderno, that he gave Durana P25.00 each day he appeared in court to testify,
which could have amounted to P1,000.00,^[18]
thus rendering his testimony not credible at all.

While we held in a case^[19]
that the witness, by receiving money from the complainant, morally becomes beholden
to the giver, this generalization, nevertheless, must be viewed in its proper
perspective.  By itself, this giving of
money to the witness does not compel outright dismissal of his testimony as
incredible or manufactured.  Instead, it
should be considered as one of
the factors in evaluating its probative value. 
In the case at bar, we believe such admission is an indicium
of the truthfulness of the version of the prosecution regarding the killing and
robbery.  While the father of the victim could have denied outright having
given the witness money, he nonetheless admitted it with frankness.  And the money received by Durana,
as pointed out by the Solicitor General, was relatively meager.  Nor was it shown by the appellant that
without said amount the witness would not have testified.  In People v. Rafael Lacson,
et al., decided in 1961,^[20]
in which it was charged by the appellants that the prosecution witnesses were
being supported during the trial by political enemies of the accused, the Court
held that assuming that to be true, it was no evidence that for such trifling sums the witnesses would agree to
perjure themselves and falsely charge the appellants of a capital offense.^[21]
We here uphold this doctrine.

III.  Ricardo Durana has not positively identified the appellant as one
of the perpetrators of the criminal act.

To underscore this contention, the defense cited the declaration
of Durana that he only met the appellant twice in his
life.  The first one occurred at the
stabbing and robbery incident he witnessed. 
And the second time happened on October
28, 1987 when he testified at the trial of this case.^[22]
Yet Durana in his statement before the Kalookan City Police Station on May 1, 1987 stated that the appellant was the
person who stabbed the victim, Romeo Cuaderno.^[23]
This knowledge, it is argued, is based on the hearsay information Durana acquired from Bonie, the
brother of Dodo (co-accused Fernando Sanchez y dela
Cruz), who is the witness’ friend, that it was Benjie
(appellant Virgilio Osias y
Mallari) who was Dodo’s companion at the time of the
incident.^[24]
Thus, his supposed positive identification as one of the perpetrators of the
criminal act is a pure conjecture, the appellant concludes.

This is only half the truth. 
It is true that Durana testified that he only
met the appellant twice.  That is, on April 25, 1984, at the incident he
witnessed, and on October 28, 1987,
when he testified in the trial court. 
But Durana likewise declared that he already
knew the appellant while still at 9th
Avenue.^[25]

This apparent contradiction will come into light when viewed from
the perspective of the entire testimony of Durana.  The clarificatory
questions propounded by Judge Cancio upon Durana did seem to exact a heavy toll on Durana’s answers, as note the following excerpt from the
stenographic notes.

[Judge Cancio
asking clarificatory questions]

COURT:   Under
what circumstances why you came to know the alias of Osias
as Benjie?

A:    When
I met Bonie,
sir, the brother of Dodo at about 2:00 o’clock in the afternoon of that day I
told him that his brother’s companion stabbed somebody and it was then that Bonie told me that the companion of his brother was Benjie.

COURT:   But
at the time Bonie told you that the companion of his
brother Dodo was Benjie you don’t know who was this Benjie then?

A:    Yes,
sir.

COURT:   And
at the time also you don’t know yet the person of Virgilio
Osias?

A:    Yes,
sir.

COURT:   In fact, the person you pointed in court as Virgilio Osias to be the same
person allegedly you saw stabbed Romeo Cuaderno was
unknown to you at the time of the
incident?  Or do you know him already?

A:    I
don’t know him yet.

COURT:   Alright, so Bonie
the brother of Dodo told you at about 2:00
o’clock in the afternoon of the incident that the companion of his
brother Dodo was a certain Benjie?

A:    Yes,
sir.^[26]

xxx                               xxx                               xxx

COURT:   Who
gave you the name Virgilio Osias?

A:    Bonie sir, the brother of Dodo.

COURT:   Did
you not testify a while ago that what Bonie told you
was that the name of that man was Benjie?

A:    Yes,
sir.  What he told me was that he was Benjie.

COURT:   And that is what I am asking from you, how
did you come to know that this Benjie refer to Virgilio Osias when you don’t know Virgilio
Osias from then on?

A:    Yes,
sir, because I saw him only at the time of stabbing.

COURT:   But you did not answer my question.  My question to you is you admitted that you
don’t know Virgilio Osias,
now how did you come to know that the nickname Benjie
which was furnished to you by the brother of Dodo refer to a person whose real
name is Virgilio Osias?

A:    I
just know him by his face, sir.

xxx                               xxx                               xxx

COURT:   But when you were asked to point to Virgilio Osias you pointed to
that man whose name was Virgilio Osias,
how did you know that Virgilio Osias
is the name of that man?

[Witness
could not answer the question]^[27]

The answers provided by Durana, who is
a toy vendor, suggest that he was confused and bewildered and obviously did not
understand the questions propounded by Judge Cancio.

However, when Atty. Pacis made further
clarification, Durana answered in this tenor:

COURT:   When you entered this courtroom before this
case was called, Vicente Cuaderno, the father of the
deceased pinpointed to you that Benjie is the one Virgilio Osias the accused in
this case before you testified in this court now?

A:    No,
sir, I know him already when we were still at 9th
Avenue.^[28]

What Durana probably meant was that he
already knew the appellant while still at 9th Avenue, but was not quite
familiar with him, and from the time he transferred therefrom
to 502 Socorro Street, Kalookan City, i.e. his
present address, he had not seen the appellant again, save on those two
instances.  And that Bonie,
the brother of Dodo, (co-accused Fernando Sanchez y de la Cruz) who is his
friend, told him the real name of the appellant at about 2 o’clock in the afternoon of April 25, 1984, when the two met.

Nevertheless, granting arguendo that Durana lied that he knew the appellant before the stabbing
incident, the same does not render false the rest of his testimony.

It is perfectly reasonable to believe the testimony of a witness
with respect to some facts and disbelieve it with respect to other facts.  And it has been aptly said that even when
witnesses are found to have deliberately falsified in some material particulars,
it is not required that the whole of their uncorroborated testimony be rejected
but such portions thereof deemed worthy of belief may be credited.^[29]

The primordial consideration is that the witness was present at
the scene of the crime and that he positively identified Virgilio
Osias as one of the perpetrators of the crime charged^[30]–robbery
with homicide.

First, Durana recalled that he was just
six meters away from the place
where the stabbing and robbery incident took place, and that he had an unobstructed
view of the incident because no vehicle passed by when the incident took place.^[31]

Second, Durana vividly witnessed the
stabbing and robbery incident.  His
testimony on this matter is
positive, clear, and categorical.

[Ricardo Durana
on direct examination]

FISCAL
RALAR:  You said when you saw Dodo taking
possession of the bicycle from Romeo Cuaderno, who
was with him if there was?

A:    There
was, sir.

Q:   Who
was with him during that time?

A:    Virgilio Osias, sir.

Q:   When
you saw Dodo taking possession of the bicycle from Romeo Cuaderno,
how far were you?

A:    I
was about six (6) meters away from them, sir.

Q:   What
happened when Dodo was taking the bicycle from Romeo Cuaderno?

A:    I
saw Benjie stab Romeo Cuaderno.

Q:   Who
is this Benjie you referred to, Mr. Witness?

A:    Virgilio Osias, sir (witness
pointing to the accused herein whom he earlier identified).^[32]

And third, Durana was able to identify
positively the appellant, thus:

[Durana on
redirect examination]

FISCAL
RALAR:  May I ask one more question, your
Honor.  What made you sure that it was Virgilio Osias who was the one who stabbed the deceased
Romeo Cuaderno as the person now whom you identified
today?

A:    Because
I got familiar with his face as he and Dodo were carrying the bicycle away.^[33]

xxx                                   xxx                               xxx

[Durana
on recross examination]

COURT:   x x x My question to you is you admitted that you don’t know Virgilio Osias, now how did you
come to know that the nickname Benjie which was
furnished to you by the brother of Dodo refer to a person whose real name
is Virgilio Osias?

A:    I
just know him by his face, sir.^[34]

Perforce the defense of alibi put up by the appellant must
fail.  As correctly ruled by the trial
court:

The defense set up by the accused is one of alibi.  It was not
established that it was physically impossible for him to have been at the scene
of the crime on the date and at the time of the incident.  The accused admitted in his testimony that he was at his residence the entire day of April 25, 1984 – the day of the incident.  His house, however, is also located at Caloocan City.  This
being so, his defense cannot be relied upon. 
(See People vs. Regato, 127 SCRA 288).

Moreover, the accused was
positively identified by the eyewitness and the other prosecution witnesses.  Positive identification by the prosecution
witnesses of the accused renders the defense of alibi totally destroyed.  (People vs. Danes, 131 SCRA 286).^[35]

WHEREFORE, the
decision appealed from is hereby AFFIRMED subject to the modification that the
civil indemnity is increased to P50,000.00 in accordance with current
jurisprudence.  Costs against the
appellant.

SO ORDERED.

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

---

^[1]
Appellant’s Brief, 7.

^[2]
Exhibit “B”.

^[3]
Original Record, 1.

^[4]
Ibid, 12.

^[5]
Rollo, 26.

^[6]
TSN, October 28, 1987, 10.

^[7]
People v. Delfin,
et al., L-15230 and L-15979-81, July 31, 1961, 2 SCRA
911.

^[8]
TSN, October 28, 1987, 22.

^[9]
TSN, November 23, 1987, 6.

^[10]
Appellant’s Brief, 19.

^[11]
TSN, October 28, 1987,
16-17.

^[12]
Ibid, 12.

^[13]
Ibid, 9.

^[14]
Exhs. C, C-1.

^[15]
TSN, October 27, 1987, 8.

^[16]
Exh. C.

^[17]
Appellees Brief, 13.

^[18]
TSN, October 29, 1987, 16-17.

^[19]
People v. Pampaluna,
Justice Makasiar, ponente,
L-33805-9, March 31, 1980, 96 SCRA 787, 815.

^[20]
1 SCRA 414, 449.

^[21]
Cited in People v. Cuadra, No. L-27973, October 23, 1978, 85 SCRA 576, 587.

^[22]
TSN, October 28, 1988, 30.

^[23]
Ibid.

^[24]
Ibid, 25-26.

^[25]
Ibid, 30-31.

^[26]
Ibid, 25-26.

^[27]
Ibid, 30-31.

^[28]
Ibid, 31.

^[29]
People vs. Mozar,
G.R. No. L-33544, July 25, 1984, 130 SCRA 579, citing People vs. Malilos, 24 SCRA 133.

^[30]
People vs. Cacho,
No. 60990, September 23, 1983, 124 SCRA 671.

^[31]
TSN, October 28, 1987, 17.

^[32]
Ibid, 5-6.

^[33]
Ibid, 28.

^[34]
Ibid, 31.

^[35]
Decision, Rollo, 25.