PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROLANDO TALINGDAN @ BOYET, RAYMUNDO TIERRA @ REMY, AND ALCETO TALLEDO @ ASING, ACCUSED. ALCETO TALLEDO @ ASING, AND ROLANDO TA…

In the information filed with the than Court of First Instance of
Abra Rolando Talingdan (alias Boyet),
Raymundo Tierra (alias Remy) and Alceto
Talledo (alias Asing)
were charged with the crime of murder committed as follows:

“That on or about the
2nd day of August, 1975, in Cabaruan, Dolores, Abra, and
within the jurisdiction of this
Honorable Court, the three above-named accused, conspiring and confederating
with each other and helping one another, did then and
there, wilfully, unlawfully and feloniously, with
treachery and taking advantage of nighttime, shoot and kill Bernardino Biniegas.” (Rollo, p. 6)

After trial, the lower court rendered judgment finding the three
accused guilty of the crime charged.  The
dispositive portion of the decision reads as follows:

“WHEREFORE, judgment is hereby rendered that there being a
prima facie case beyond reasonable doubt that the accused are guilty of the
crime of murder as charged they are hereby sentenced to suffer the penalty of
reclusion temporal in its maximum period to death as defined under Article 248 of the Revised Penal Code or a period
of SEVENTEEN (17) YEARS and ONE (1) DAY as minimum to TWENTY (20) YEARS as
maximum by applying the Indeterminate Sentence Law and to indemnify the heirs
of the late Bernardino Biniegas in the sum of TWELVE
THOUSAND (P12,000.00) PESOS, without subsidiary imprisonment in case of
insolvency and to pay the cost.

“In case of appeal, the bailbond
fixed without any reduction for each of the accused is P40,000.00.”
(CA-Record, p. 37)

Thereafter, the three accused elevated their case to the Court of Appeals.

On October 12, 1978,
the Court of Appeals issued a resolution certifying the case to the Supreme
Court for final determination considering that in the court’s opinion, the imposable penalty is reclusion
perpetua.

On October 27, 1985, Raymundo Tierra, one of the accused,
filed a motion to withdraw his appeal which was granted by the Second Division
of the Supreme Court in a resolution dated November 25, 1985.

On November 7, 1988, the
Supreme Court resolved to return the case to
the Court of Appeals for
proper disposition pursuant to the
court’s ruling in People v. Daniel, (86 SCRA 511, 540 [1978]).

Finally on July 23, 1990,
the Court of Appeals made its own findings and affirmed the conviction of the
appellants.  It then certified this case
to the Supreme Court for final determination.

As to how the crime was committed, and the events immediately
preceding and following the commission thereof, the prosecution’s version is
presented in the People’s Brief as
follows:

“On August 2, 1975,
between 7:30 to 8:30 p.m. in Cabaruan, Dolores, Province
of Abra,
the victim Bernardino Biniegas a member of the police
force of that town and his wife, Adelina, were inside
their house conversing with each other. 
As they were about to sleep they heard a voice calling ‘Pari pari.’ Consequently, the
victim stood up, peeped through a slit in the window and saw four persons.  His wife then asked him who were the persons
outside and the victim identified them as Leonico Talingdan and accused-appellants Rolando Talingdan, Raymundo Tierra, and Alceto Talledo.  Thereafter, the victim pushed the window and
was met by a volley of shots inflicting wounds on him.  As the victim fell, his wife went to his aid.  The victim told his wife that the aforenamed
persons were the ones who fired at him (pp. 81-84, tsn,
May 11, 1976)

“Meanwhile, Honorata Biniegas, the victim’s mother who was living in the next
house, upon hearing the shots, went down her house and saw the appellants and a
fourth man who, henceforth, ran away from the scene of the crime.  Appellants Talingdan
and Tierra were armed with rifles (pp. 147-151, 154, tsn,
June 14, 1976).  Thereafter, the victim’s neighbor came to his
aid and brought him to a place called Talogtog.  Later, the mayor and others arrived at Talogtog, loaded the victim in their jeep and brought him
to the Abra
Provincial Hospital
for treatment (pp. 101-102, tsn, May 11, 1976).

“At the hospital, at about 3:00 a.m. of the following day
(August 3, 1975), PC CIC Josefino Valencia arrived
and took the ante-mortem statement of the victim identifying appellants and Leonico Talingdan as the
perpetrators (pp. 4-10, tsn, December 11, 1975) the
contents of which are as follows:

1.    Q –    What’s
your name?

A –     Bernardino Biniegas,
sir.

2.    Q –    What
happened to you?

A –     I was shot, sir.

3.    Q –    Who
shot you?

A –     Asing Barbosa, Boyet Talingdan, Remie Tierra and Leonico Talingdan, were the ones
I saw, sir.

4.    Q –    Why
did they shoot you?

A –     Because
of a criminal suit they wanted to be settled, sir.

5.    Q –    What
gun did they use?

A –     Carbine, sir.

6.    Q –    At
what time did they shoot you?

A –     At 8:00 p.m.
on the 2nd day of August, 1975, sir.

7.    Q –    How
are you feeling now?

A –     Very critical, sir.

8.    Q –    Can
you sign your statement?

A
–     No, sir.

BLOOD

THUMBMARK OF PAT. BINIEGAS

(Record, p. 10, Exh. “A”
– Translation)

“As a result of the above shooting, the victim suffered the
following injuries which subsequently caused his death on August 3, 1975 at about 11:00 p.m.:

‘This is to certify that
Mr./Mrs./Miss PATROLMAN BERNARDINO BINIEGAS Male/Female 26 years of DOLORES,
ABRA was examined/treated in this Hospital from/on 8/2/75 at 11:00 p.m.,19_ to
_ for the following:

– Circular wound 8th
intercostals space left, parasternal line, directed posteriorly upward, thru and thru.  Wound of entrance measures 1/2 inch in
diameter; wound of exit – 1 x 1 inch in diameter, infra scapular region, left.

– Circular wound,
lumbar region left about 2 inches above the anterior superior iliac spine,
non-penetrating directed posteriorly downward. Wound
of entrance measures 5 mm. in diameter; wound of exit – measures ½ inch in
diameter, about 2 inches posterior to the wound of entrance.

– Circular wound, wrist, exterior
aspect radial side, penetrating the bone of the index finger.  Wound of entrance – measures 5 mm. diameter;
wound of exit – measures 7 mm. in diameter.

Exploratory Laparotomy Findings:

– Perforating wound,
stomach thru and thru measuring 1 1/2 x 1 1/2 inch in diameter;

– Lacerated wound
involving the left lobe of liver and anterior surface of the spleen.

– Perforating injury
diaphragm inferior portion right about 1 1/2 inch in diameter.

– Fracture costo?chondral junction 9th rib. left.

Note:   Distal portion of fractured ribs perforated
the superior aspect of diaphragm, left.

Cause of Death:

– Irreversible shock,
secondary to gunshot wound involving the diaphragm stomach, spleen and
liver.  (Record, p. 3, Exhibit
“G”)

“Previous to the incident, the victim, who was a member of the
police force of Dolores, Abra was investigating a
case involving a theft of large cattle where the appellants were the
suspects.  The appellants were then
persuading the victim to drop the case or settle the matter amicably but the
latter refused to accede to their demands (p.
54, tsn., January 21, 1976; pp. 99-101, tsn., May 11, 1976, p. 158-161, tsn.,
June 14, 1976).

“At the scene of the crime the investigators found eleven
shells of a .30 caliber carbine on the ground, around four meters from the
house of the victim, and immediately below the window where he had peeped.  They also found bullet holes on the said
window and at the adjoining wall (p. 14, tsn.,
December 11, 1975, p. 12-14, tsn, January 19,
1976).” (People’s Brief, pp. 3-7)

In their appeal, the appellants made the following assignment of
errors:

I

“THE TRIAL COURT ERRED IN HOLDING THAT THE ACCUSED-APPELLANTS
ARE THE AUTHORS OF THE CRIME.

II

THE TRIAL COURT ERRED IN NOT GIVING FAITH AND CREDIT TO THE
TESTIMONIES OF THE ACCUSED AND THEIR WITNESS.

III

THE TRIAL COURT ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANTS.”
(Rollo, pp. 151-152)

We agree with the Court of Appeals that the appellants are indeed
guilty beyond reasonable doubt of the crime charged.  They were identified as two of the
perpetrators of the crime through the dying declaration of the victim, Bernardino Biniegas
and the testimonies of PC CIC Josefino Valencia, Adelina Biniegas, the victim’s wife and Honorata
Biniegas, the victim’s mother.

The Court of Appeals correctly ruled that the dying declaration
of the victim, Bernardino Biniegas is admissible in
evidence.  A dying declaration is made by a person under a consciousness impending death concerning the
cause and circumstances of the injury from
which he thereafter dies.  The requisites
for its admissibility are as
follows:

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

2) that
at the time the declaration was made, the declarant
was under a consciousness of an impending death;

3) that
the declarant is competent as a witness;

4) that
the declaration is offered in a criminal case for homicide, murder or
parricide, in which the declarant is the victim.  (Section 31, Rule 130, Rules of Court)

In the case at bar, the requisites were all satisfied.  When Bernardino Biniegas
made his statement, he was still in full possession of his mental faculties,
although he was then weak due to his wounds. 
He declared with clarity and certainty that he was shot with a carbine
by Asing Barbosa, Boyet Talingdan, Remie Tierra and Leonico Talingdan because of a criminal case his assailants wanted
him to drop.

Asing Barbosa
is the same Alceto Talledo
alias “Asing“, one of the appellants in
this case and Boyet Talingdan
is none other than Rolando Talingdan, the other
appellant.

When asked how he was feeling, Biniegas
replied that he was very critical which just shows that he was conscious of the
fact that his death, which occurred a day after, was imminent.

The contention that Bernardino Biniegas’
statement is worthless since he can no longer be cross-examined was
sufficiently answered by the Court of Appeals. 
A dying declaration is an exception to the
constitutional right of an accused to confront
and cross examine the
witness against him.  It is admissible being one of the exceptions to the rule excluding
hearsay evidence on grounds of necessity and trustworthiness.

PC CIC Josefino Valencia
who conducted the investigation of the shooting
incident was the one who took the ante-mortem statement of Bernardino Biniegas.  He
testified that the victim was already in serious condition when his statement was taken. 
He then requested Dr. Herminio B. Venus and Estrella Damian, two of the people who were present when Biniegas made
his dying declaration to sign
the statement as witnesses.

Adelina Biniegas,
wife of the victim testified that her husband revealed to her the identities of
his assailants.  The pertinent portions
of her testimony are as follows:

“A    For
the length of time that we have been conversing with my husband that night,
there was somebody who uttered, ‘pari, pari‘ from the ground under the floor of the house, sir and
my husband having heard the voice stood up and went to peep thru a space
created by the bamboo split and
after having peeped thru, he said, ‘they are Remy, Boyet,
Asing and Leonico Talingdan,’ he said.

Q    And after your husband has said those
words to you, what transpired next, if any?

A     He
again peeped looking thru the window shutter and after that,
that was the time when a gun detonated, sir.  A gun detonation occurred.

Q    How
did your husband open your
window?

A     He
did not open, sir.  He merely pushed it
like this.  (The
witness demonstrating an act of pushing forward with her left hand, putting the
shutter forward).

Q    And
the moment your husband has opened your window by pushing forward-upward with
his left hand, what transpired next?

A     That
was the time there was a gun detonation; that guns were fired and after the
firing, he fell and lost his
balance and fell to the place where we were lying down already wounded.

Q    And
when your husband fell already wounded, what did you do?

A     At
that Moment I asked repeatedly, ‘Who are those who are those,’ I said and he
said, ‘they are Remy, Boyet, Arcing and Leonico.'” (Rollo, pp.
159-160)

The appellants contend that her testimony should not be given
credence since she did not personally see them in the act of shooting.  In refutation, the Court of Appeals explained
that the statements made by the victim to his wife are part of the res gestae which is
another exception to the hearsay rule. 
The victim’s revelation of the identities of the appellants as the ones
who called him was made before and subsequent to the shooting incident.  (People v. Roca, 162 SCRA 696 [1988]).  Its admissibility is beyond
question.  The wife’s testimony is
therefore worthy of belief.  Honorata Biniegas the victim’s
mother also testified that she recognized three of the four assailants on the
night of the shooting as she testified, to wit:

“Q   On
the night of August 2, 1975,
between the hour of 7:30 and 8:30 where were you?

A     I
was in our house, sir.

Q    While
you were in you house at that hour, do you recall if there was anything unusual
that happened?

A     There
was, sir.

Q    Will
you please tell the Honorable Court what is that unusual incident that happened
on that night of August 2, 1975?

A     I
heard gun reports and on the
second time that I heard gun reports, I went down our house.

Q    From
what direction did you hear the gun reports coming from in relation to your
house?

A     According
to my hearing, the gun
detonations took place in front
of the house of my son, Bernardino, sir.

Q    Now, upon hearing the gun detonation
coming from the direction of the house of Bernardino Biniegas,
what did you do?

A     I
took the light and match and walked towards the house of Bernardino Biniegas and while I was walking I saw that there was also
a lamp on the window of Bernardino Biniegas and where
were persons that were lighted by that lamp, sir.

Q    When
you saw that there were persons lighted by that lamp in the house of Bernardino
Biniegas, what did you do with the match and the light that you were then holding?

INTERPRETER

 The witness answered the questions of the
Fiscal without first being interpreted and the answer was:

A     I
lighted the lamp and the lamp that I lighted is a kerozene
lamp which is made of a bottle and had a wick.

Q    After
you have lighted that lamp which is made of bottle with a wick as you said,
what did you do next?

A     I
ran to the place along side the window where there were persons, sir.

Q    And
what happened or what did you do when you were at that place near the window?

A     I
saw that there were four male persons, one of whom was under the acacia tree;
two were just under the window of the house and the one was under the house, sir.

Q    Now, you mentioned four male persons
that you saw after you lighted your lamp. 
Were you able to recognize any of
these four persons?

ATTY. BLANCO

We object, very
leading, Your Honor.

COURT

Next
question.

FISCAL PAREDES

Q    Now,
do you know who were…..

COURT

Q    Who
was that person under the acacia tree if you recognized him really?

A     I
was not able to recognize the person under the acacia tree because he ran away,
sir.  The other three were the ones I was able to recognize.

FISCAL PAREDES

Q    And
who are these three persons you said whom
you were able to recognize?

A     Rolando Talingdan,
Remy Tierra and Asing Talledo,
sir.  They are the ones whom I
recognized.

Q    Now,
you mentioned three persons and three names and you mentioned Rolando Talingdan.  Where was
Rolando Talingdan when you saw him?

A     He
was on the place just below the window of the house of Bernardino Biniegas but at that time they were already attempting to
run away, sir.

Q    How about Reynaldo Tierra alias Remy Tierra, where was he at the time you saw him?

A     He
was near the post of the house of Bernardino Biniegas
under the house, sir.

Q    How about Alceto
Talledo alias ‘Asing Talledo, where was he at the time you saw him?

A     He
was with Talingdan sir.  He was there side by side with Talingdan.

Q    You
mean Rolando Talingdan?

A     Yes, sir.

Q    Now,
when you saw and recognized these four male persons you mentioned and you
named, how far were you from them?

A     Maybe five meters or more, sir.

Q    And
how were you able to recognize these three persons at that distance?

A     I
lighted the bottle and after having lighted it, I did like this.  (The witness raises her right hand as if
raising a lamp) and upon raising the lamp like this, I saw their figures and I
saw their faces, that is why I recognized them,
sir.” (Rollo, pp. 160-164)

The witness was very certain on direct and cross-examinations
that she recognized three of the four assailants as she identified them to be
Rolando Talingdan, Remy Tierra, and Asing Talledo.  She was not very sure of the fourth man but
this uncertainty is not enough to overthrow her whole testimony.

On the other hand, the defenses presented by the appellants are
weak as against the clear and
positive identification made by the prosecution witnesses as the perpetrators
of the crime.  (People
v. Pineda, 157 SCRA 71 [1988]).

The main thrust of the defense of the appellants is alibi.

Appellant Talledo claimed that he was in the house of Honorata
Timbuga in Kinalaba,
Dolores, Abra from 7:30
to 8:00 o’clock that night listening
to a radio program “Crisanta“. 
Thereafter, he went to a dance nearby and stayed there until 11:00 o’clock.  He
declared that after the dance, he went home in the company of Danila Barber
and Mazareno Talledo and
slept in his house until 6:00 o’clock the following morning. Appellant Talingdan,
meanwhile alleged that from 7:00 to 9:00 o’clock in the evening of August 2, 1975, he and Raymundo
Tierra were in the house of Mr. and Mrs. Modesto Alcantara in Talogtog,
Dolores, Abra listening to the radio program “Crisanta” together with Purisimo Viloria and Flomio Valera.

Alibi is a defense easily fabricated.  These places where appellants claimed to have
been at the time of the commission of the crime were only about 2 to 3
kilometers from the scene thereof.  The
appellants failed to demonstrate
or present clear and convincing evidence that it was physically impossible for
them to proceed to the place of the commission of the crime,
commit the crime and immediately return thereafter.  The distance from the place where the
appellant was allegedly at the time of the incident to the place where the
incident happened does not certainly preclude that the appellants committed the
crime.  (People
v. Melicor, 160 SCRA 580 [1988]).  The
appellants’ alibi can not overcome the dying declaration of the victim and the
positive testimonies of the prosecution witnesses.  (People v. Orongan,
168 SCRA 586 [1988]; People v.
Garcia 141 SCRA 336 [1986])

Moreover, the defense also presented NBI chemist Rolando Vitug who testified that the paraffin test results of his
laboratory examination on the persons of the appellants, were found to be
negative.  This finding, however, is not conclusive to show that a
person has not fired a gun. 
As pointed out by the Court of Appeals, it is possible for a person to fire a gun and yet be negative for
the presence of nitrates, as
when firing while wearing gloves or by washing the hands afterwards,
(People v. Roallos 113 SCRA 584 [1982])

The Court of Appeals correctly appreciated the presence of the
aggravating circumstances of conspiracy and treachery.

There is no doubt that from the circumstances of the case,
appellants Talingdan and Talledo,
together with Tierra and a fourth man acted in concert pursuant to the same criminal objective.  The prosecution clearly established that all
these four men went to the victim’s house at nighttime.  Talingdan and Talledo posted themselves below the house of Biniegas, Tierra near the post of the house and the fourth
man, under a nearby acacia tree, acting as look out.  After Tierra and Talingdan
shot Bernardino Biniegas, all the four fled toward the same direction.  There was deliberate, sudden and unexpected
attack on the person of Bernardino Biniegas who
merely responded to the call of Tierra. 
And when the victim pushed the window, he was immediately met by a
volley of shots.  Bernardino Biniegas had no opportunity whatsoever to defend himself or
repel the assault.

The trial court correctly convicted the appellants but erred in the imposition of the penalty.  The Court of Appeals then made the following
corrections:

“xxx[U]nder
Article 248 of the Revised Penal Code, murder is punishable by reclusion
temporal in its maximum period to death. 
The imposable penalty which has three periods, namely, minimum
(reclusion temporal), medium (reclusion perpetua) and
the maximum (death), makes Article 64 of the Revised Penal Code
applicable.  In this case, the
prosecution was able to establish the qualifying aggravating circumstancs of treachery and abuse of superior strength
and the ordinary aggravating circumstance of nighttime.  However, abuse of superior strength and
nighttime or nocturnity are absorbed by
treachery.  (People v. dela Cruz,
147 SCRA 359) In the absence of
any mitigating circumstance, the imposable penalty should be reclusion perpetua, the medium period of the penalty pursuant
to Article 64 of the Revised Penal Code.” (Rollo,
p. 166)

WHEREFORE, the appealed judgment of the trial court as certified
by the Court of Appeals is MODIFIED.  The
appellants, are found GUILTY beyond reasonable doubt
of the crime of murder and are hereby SENTENCED to SUFFER the penalty of reclusion
perpetua and to indemnify the heirs of the
late Bernardino Biniegas.  In accordance with recent decisions of this
Court (see People v. Alegria, G.R. No. 86455,
September 14, 1990; People v. Sazon, G.R. No. 89684,
September 18, 1990), the civil indemnity is increased from P12,000.00 to
P50,000.00.

SO ORDERED.

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

Feliciano, J., on leave.