G.R. No. 94785. July 01, 1992
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ELPIDIO A. LOSTE, @ “PEDIO”, DEFENDANT-APPELLANT.
ROMERO, J.:
The night of the town fiesta of Maydolong, Eastern Samar, on
August 15, 1980, was marred by the death of Ventura Elardo, 72-year old farmer,
due to severe hemorrhage caused by deep and fatal wounds in his right nipple
inflicted by accused-appellant Elpidio Loste who was found guilty of the crime of murder and
sentenced to suffer reclusion
perpetua.[1]
The prosecution
evidence shows that on August 15, 1980, Gregorio Busa, 63 years of age and
farmer, was a guest of his brother-in-law, Fausto Sanchez at Maydolong, Eastern
Samar.[2]
At about 8:00 o’clock in the evening, Busa walked home to Barangay Maybocog, Maydolong, Eastern Samar, with a
flashlight on hand to illuminate his way. It was at Sitio Malabon, near the house of one Rafael Busa where he
noticed his barriomate, Ventura Elardo, walking
behind him about one meter away, and together, they proceeded to go
home. After a half-hour walk, Elardo
stopped to answer the call of nature. Busa continued to move on when he heard a “lagatak,” slashing
sound. He beamed his flashlight in the direction where the sound came from. He was petrified when he saw Elpidio Loste
hacking Elardo with a sharp-edged bolo.[3] He then chased Busa but gave up after
a distance of about 40 meters.[4]
The beam of light from his flashÂlight
enabled Busa to witness the stabbing of Elardo by Loste, who was known to him
for years.
That same evening, Teofisto Busa, 28, farmer of Maybocog, Eastern
Samar, together with Juana Borac and Carmen Cafe, were on their way home.[5] At the left side of the road going to
Maybocog, they detected a fallen
body and with torchlight, recognized it to be that of their barriomate, Ventura
Elardo. Out of fear, they froze where
they stood. Immediately thereafter, Teofisto Busa
informed Bernardo Elardo, Ventura’s son about the gruesome scene.
Bernardo Elardo hired his neighbor’s vehicle for P500.00 and
together with his sister and Teofisto, they rushed their father to Borongan
Eastern Samar Provincial Hospital. While hovering between life and death,
Ventura told Bernardo that he was hacked by Elpidio Loste.[6]
As a result of the mortal wounds inflicted by Loste, Ventura
finally succumbed at 1:00 o’clock in the morning of August 16, 1980.
Dr. Reinerio Zamora who examined and treated the deceased,
certified that the deceased sustained two (2) wounds: wound no. 1 located in the right nipple cutting the lower ribs;
and wound no. 2 located two (2) inches below wound no. 1 and testified that
these wounds might have been caused by a sharp-bladed instrument like a bolo.[7]
The defense had a different story to tell.
On August 15, 1980, Elpidio Loste, 34, married, farmer, and
resident of Maydolong, Eastern Samar, visited his cousin, Prudencio Loste at
Maydolong where they had a tuba drinking spree.[8]
It was already 7:30 in the evening when he went home very
drunk. While he was approximately seven
(7) meters away from his abode, he was suddenly pursued by Leo Altar, Romeo
Capada, and Ernesto Dalino who were yelling and challenging him to a fight.[9]
For fear that these men would make good their threat, he screamed thrice for
his wife, Norma Loste, who readily
came to his succor. Once inside his
house, the men remained in the yard and stoned his home,[10]
prompting him to go down but was timely prevented by Norma, Felisima Hugo and
Engracia Obina. Having imbibed too much
tuba, he fell asleep unmindful of the stone-throwing and the people in his home
who stayed up the whole night to watch over him lest he might again go down.[11]
The following day, while Norma was fetching water near Malabon
bridge, the news about the death of Ventura Elardo broke the tranquility of the
morning. It was while she and her
family were taking breakfast that Patrolman Billy Cantado came and brought her
husband, Elpidio Loste, to Maydolong Municipal Building for investigation
regarding the heinous killing of Elardo.
Subsequently, an information was filed stating:
“That on or about the 15th day of August, 1980 at about 10:00
o’clock in the evening, along the National Road at Malabon, Maydolong, Eastern
Samar, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, with treachery and evident premeditation and with intent
to kill one, Ventura Elardo, did, then and there, wilfully, unlawfully and
feloniously, attack, assault, stab and wound the latter with the use of a bolo,
which the accused provided himself for the purpose, thereby inflicting wounds
on the body of said Ventura Elardo and the said wounds caused the death of the
latter.
CONTRARY TO LAW with the aggravating circumstance of nighttime
which was sought for to better accomplish the commission of the offense.“[12]
After trial, the court found Elpidio Loste guilty and imposed the
penalty adverted to earlier. Hence,
this appeal.
Only two (2) errors were assigned in the appellant’s brief:
1. The lower court erred in convicting Elpidio
A. Loste of the crime of murder without sufficient proof showing beyond
reasonable doubt the guilt of said accused.
2. The lower court erred in holding that the crime committed is murder.
Decisive in this controversy is the credibility of prosecution
witness Gregorio Busa.
Elpidio Loste brands as untruthful prosecution witness Busa’s
testimony that he was with the deceased when the macabre hacking took place
because the latter had caught up with him on the way home. He avers that there was no prior agreement
between Busa and the deceased to meet somewhere or near the house of one Rafael
Busa on the way home. As such, the
supposed rendezvous of Busa and the deceased never took place. Additionally, the deceased could not have
overtaken Busa on the highway since being nine years older, he walks slower.
We cannot accept Loste’s allegations. The meeting between Busa and Elardo by fluke of fate cannot be
rejected simply because Elardo, being older, is slower than Busa, as argued by Loste. By Busa’s account, he walked home very slowly which explains said
encounter.[13]
Besides, we cannot underestimate Elardo’s physical strength
simply because he was in his seventies. Farmers, as a general rule, are stronger than those who live and work in
the urban areas. Accustomed to tilling
the fields and loading and unloading
sacks of palay, they retain their health and stamina even in their old age.
This was bolstered by Elardo’s son who testified that his father
was strong and not physically infirm, as Loste would have us believe.[14]
But Loste insists that on a moonless night such as when the
alleged killing happened, it would have been impossible for Busa to see, much
less recognize, the assailant. Based on
Busa’s testimony, he might have seen only the back of the perpetrator and not
his face since the said perpetrator immediately chased him.[15]
It may be true that there was no moon when Elardo was killed,
which was probably why Loste was so confident that his identity was safe, but
by the light from his flashlight, Busa was able to clearly and positively
identify the assailant. His testimony
during the direct and cross examinations showed his indubitable identification
of Loste, thus:
“Q. What did you do when you heard that slashing sound?
A. I turned back and
focused the beam of my flashlight.
Q. What did you see when
you focused your flashlight?
A. I saw Elpidio Loste.
x x x x x x x x x
Q. What was in his possession
if any?
x x x x x x x x x
A. He was holding a bolo.
Q. And then what did
Elpidio Loste do after you focused your flashlight?
x x x x x x x x x
A. He started to chase me.”[16]
In the barrios, like Maydolong, people generally know one another
well. Hence, Busa could not have erred
in identifying Loste that night as Elardo’s killer.
If indeed Loste was innocent of the crime charged, he could have
acted the role of a good Samaritan and come to the succor of the fallen Elardo,
or brought him to the nearest hospital, or reported the incident to the
victim’s wife. But he did none of these
things. Instead he chased Busa
forthwith with his bolo and gave up only after running a distance of 40 meters
which puts his claim of innocence in doubt.
Interestingly, Busa executed an affidavit on February 4, 1991,
repudiating his testimony against Loste during the trial of the case.
We look with disfavor upon Busa’s alleged retraction. It is too late in the day for his
recantation without portraying himself as a liar. In the first place, the records show that it was executed ten
years after he testified in court. In
the second place, it was never presented in court. And in the third place, recantation made by a prosecution witness
after conviction of the accused is unreliable and deserves scant consideration.[17]
Be that as it may, Busa’s testimony remains unshaken. Bernardo Elardo, son of the deceased,
corroborated Busa’s testimony when he testified in court that before his father
died, he (Ventura) pinpointed Loste as his attacker.
We agree with the trial court that Elardo’s statement made an
hour before his death and right after the hacking incident bears all the
earmarks, either of a dying declaration, or part of the res gestae which is an exception to
the hearsay rule. Loste implicitly
recognized this fact when he failed to impugn its admissibility either before
the trial or in this appeal.[18]
The defense of alibi interposed by Loste miserably fails.
In a plethora of cases, we have consistently declared that for
the defense of alibi to prosper, it must be established by clear and convincing
evidence that the accused was at some other place for such a period of time as
to negate his presence at the time and place of the crime when it was committed.[19]
Loste himself admitted that he was in Maydolong, Eastern Samar when the killing
happened. In a fit of drunkenness, he
took the same road earlier taken by Busa and the deceased in going home to
Maybocong at around 7:30 in the evening. Between the hours 8:00 and 9:00 o’clock in the evening, Elardo was
hacked. Clearly then, it was physically
possible for Loste to be at the time and place of the crime when it was
committed.
The alibi proferred by Loste, his wife, auntie, and neighbor is
hardly credible. With their
testimonies, they were spinning webs of lies and prevarications.
The following are their testimonies.
Engracia Obina, 40, married, farmer, resident of Barrio Malabon,
Maydolong, Eastern Samar, and neighbor of Loste testified that at around 7:00
o’clock of August 15, 1980, she ran to Loste’s house to help prevent him from
going downstairs.[20] She
remained there till the following day when “the coast was clear,” so
to speak.
On the other hand, Felisima Hugo, 47, housekeeper, resident of
Barangay Barobo, Llorente, Eastern Samar, and auntie of Loste narrated that
Engracia went to the house of Loste at around 12:00 o’clock only after the
stone-throwing incident had stopped and a policeman had come.[21]
Both Engracia and Felisima testified that Loste slept in the sala
while they kept their vigil over him for fear he might confront the hostile
group downstairs. On the other hand,
Loste testified that all the while, he slept in his bedroom.[22]
Not much credence should be given to the testimonies of Felisima and
Engracia as they are Loste’s auntie and neighbor, respectively, and are
naturally biased in his favor. As for
Norma’s testimony that Loste slept the whole night and never woke up till the
following day, it is undeniably tainted with bias for it springs from the
natural desire of a wife to bail out her husband from criminal liability even
to the extent of lying.
During the direct examination, Loste said that three men
incessantly stoned his house with rocks. It taxes credulity that Loste would sleep the whole night while his home
was being pelted with rocks. Ironically, he did not file any charges against these men.
After a careful study of the case, we find the evidence presented
by the prosecution, upon which the trial court in turn based its judgment of
conviction, to be overwhelmingly against the pretended innocence and alibi of
Loste.
However, we disagree that the element of evident preÂmeditation
was present as to qualify the offense committed to murder. The prosecution had failed to establish how
and why the crime was planned.[23]
But treachery was, indeed, present. Under the cover of darkness, Loste suddenly and unexpectedly
sprang from the darkness and attacked Elardo with a deadly weapon. Unarmed and unsuspecting, Elardo was hacked
twice in his right nipple. The wounds
sustained by Elardo eloquently bespeak of his unpreparedness to defend
himself. He was not able to parry with
his hands before the fatal blows were delivered. Obviously, Loste employed means, methods or forms in the
execution of the felony which insures its commission without risk to himself
arising from any defense which the offended party might take.[24]
Again, the trial court erroneously appreciated the generic
aggravating circumstance of nighttime because it is already absorbed by the
circumstance of treachery or alevosia.
Finally, we note that the lower court’s judgment was penned by a
judge who did not hear the case. However, we find no cogent reason to reverse Judge Auxencio C.
Dacuycuy’s judgment. As earlier stated,
the verdict was fully substantiated and supported by evidence.[25]
WHEREFORE, the Decision of the court a quo dated January 12, 1989 is hereby AFFIRMED with the
modiÂfication that the civil liability of accused-appellant is increased to
P50,000.00 in line with current jurisÂprudence.
SO ORDERED.
Gutierrez, Jr., (Chairman), Feliciano, Bidin, and Davide, Jr., JJ., concur.
[1]
Regional Trial Court, 8th Judicial Region, Branch 1, Borongan, Eastern Samar,
Judge Auxencio C. Dacuycuy, Presiding.
[2]
T.S.N., August 4, 1981, p. 14.
[3]
Id., pp. 17, 30-31.
[4]
Id., p. 18.
[5]
T.S.N., August 10, 1981, pp. 62-66.
[6]
T.S.N., August 10, 1981, pp. 54-55.
[7]
T.S.N., June 29, 1981, pp. 2-6.
[8]
T.S.N., May 28, 1992, p. 144.
[9]
T.S.N., March 29, 1982, p. 3.
[10]
Id., p. 4.
[11]
Id., p. 7.
[12]
Regional Trial Court, 8th Judicial Region, Branch 1, Borongan, Eastern Samar,
First Assistant Provincial Fiscal, Almario A. Montes.
[13]
T.S.N., August 4, 1981.
[14]
Id.
[15]
T.S.N., August 24, 1981.
[16]
Id., August 4, 1981, pp. 17-18.
[17]
People v. Torino, Nos. L-18767 and L-18789-90, May 30, 1964, 11 SCRA
287.
[18]
People v. Mison, G.R. No. 63480, February 26, 1991, 194 SCRA 432.
[19]
People v. Noriel Fule, G.R. No. 83027, February 28, 1992.
[20]
T.S.N., December 7, 1981, pp. 83-87.
[21]
T.S.N., February 25, 1982, pp. 133-137.
[22]
T.S.N., May 28, 1982, p. 147.
[23]
People v. Laredo, G.R. Nos. 81249-51, May 14, 1990, 185 SCRA 383.
[24]
People v. Balatucan, et al., G.R. Nos. 93805-06, February 7, 1992.
[25]
People v. Buka, et al., G.R. Nos. 68311-13, January 30, 1992.