PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. AMBROCIO NABOR AND AMANDO ROSETE, ACCUSED-APPELLANTS.

Before us on
appeal is the joint decision of the
Regional Trial Court, First Judicial Region, Branch 39, Lingayen,
Pangasinan in Criminal Cases Nos. 1376-A and 1377-A
convicting the accused-appellants of the crime of murder.  The dispositive portion of the decision reads:

“WHEREFORE, judgment is hereby rendered finding both accused Amando Rosete and Ambrocio Nabor, in both cases,
guilty beyond reasonable doubt, of the crime of Murder as charged and
therefore, sentences them to suffer the penalty of RECLUSION PERPETUA, in each case, the maximum of which shall
not exceed 40 years, with the accessories of the law and to pay the
proportionate costs.

“They should indemnify the heirs of the victim, Jean Tandoc, the sum of P30,000.00 also jointly and severally, the heirs of Harry Nicanor, without subsidiary imprisonment in case of
insolvency, in both cases.  They are
further ordered to pay the actual damages
incurred by the heirs of the victim Jean Tandoc in
the amount of P20,000.00 jointly and severally, and
the total sum of P17,390.00 to the heirs of Harry Nicanor,
without subsidiary imprisonment in case
of insolvency, in both cases.  Both
accused are ordered jointly and severally to pay moral damages, in the amount
of P50,000.00 to the heirs of both victims without
subsidiary imprisonment in case of insolvency. 
No pronouncement as to the claim for damages due to the loss of earning capacity for
insufficiency of evidence.

“It appearing that the accused are undergoing preventive
imprisonment and during the period of their confinement they manifested
voluntarily in writing that they were willing to abide by the rules applicable
to detention prisoners, under
Art. 29 of the Revised Penal Code, they should be credited with the entire
period of their temporary detention.” (Rollo, p.
65)

The accused-appellants
were charged with the crime of murder in two separate informations,
to wit:

Criminal Case No. 1376-A

“That on or about November 22, 1983, in the municipality of Agno, province of Pangasinan,
Republic of Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, conspiring, confederating and
mutually helping one another, with intent to kill, armed with a gun, with
evident premeditation and treachery, did then and there wilfully,
unlawfully and feloniously attack, assault and shoot Harry Nicanor,
inflicting upon him fatal gunshot wounds which caused his death, to the damage
and prejudice of the heirs of Harry Nicanor in the
amount of no less than P50,00.00″ (RTC Decision, p. 1; Rollo,
p. 34)

Criminal Case No. 1377-A

“That on or about November 22, 1983, in the municipality of Agno, province of Pangasinan,
Republic of the Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating and mutually helping
one another, with intent to kill, armed with a gun, with evident premeditation
and treachery, did then and there wilfully,
unlawfully and feloniously attack, assault and shoot Jean R. Tandoc, inflicting upon her fatal gunshot wounds which
caused her death, to the damage and prejudice of the heirs of Jean R. Tandoc in the amount of no less than P50,000.00.”           (RTC, Decision, p. 2; Rollo,
p. 35)

The facts for the
prosecution as summarized by the Solicitor General are as follows:

“On November 22,
1983, at about 6:00 o’clock
in the evening, Janette R. Tandoc, Jean R. Tandoc, Emma Español, Mila Viray and Harry Nicanor went to
the municipal town plaza of Agno, Pangasinan
to watch the different games being held celebration of the Agno
town fiesta.  At about 8:00 o’clock that same evening, the group
proceeded home.  While they were walking
along P. Burgos St., the
appellants Ambrosio Nabor
and Amando Rosete who were
then near an acacia tree, fired upon the group hitting Jean Tandoc
and Harry Nicanor. 
Jean Tandoc fell to the ground while Harry Nicanor, although hit, was able to run, reach their house.  (TSN, p. 3-4, February 19, 1985)

“Janette Tandoc upon seeing her
sister hit and sprawled on the
ground shouted for help.  A certain Asiong and Godie responded to said cries for help.  With the help of Godie,
Jean Tandoc was first rushed to a certain Dr. Genaro Sison and thereafter was
brought to the Nazareth General Hospital
at Dagupan City,
but was later transferred to the Pangasinan
Provincial Hospital
also at Dagupan
City where she expired on November 23, 1983.  On the other hand, Harry Nicanor
was also rushed to the Nazareth General
Hospital where he later died on November 29, 1983. 
(TSN, p. 5-6, February 19, 1985)

“On November 28,
1983, Harry Nicanor gave his ante-mortem
statement to Patrolman Marcelo Paragas, where he
declared, among others, that Ambrosio Nabor and Amando Rosete were the persons who shot him while he was in the company of Mila Viray, Jeannette Tandoc, Jean Tandoc and Emma Español.  (Exhibit “A”, p. 8, Records;
see also p. 4.  Decision RTC, July 29, 1986; TSN, February 20,
1985)

“Moreover, while still in the Hospital Harry Nicanor was able to
talk to his mother (Trinidad Nicanor) where he told
her “Mando is a traitor and Ambros
is a snake” obviously referring to the appellants Amando
Rosete and Ambrocio Nabor.  (TSN, p. 5-6,
March 7, 1985)

“Further, Perpetuo Nicanor (brother of Harry Nicanor)
testified that he together with his mother Trinidad, a
certain Hector Batalla and another Prudencio Narito brought Harry Nicanor to the Nazareth General
Hospital.  While in
the hospital, Harry told him the following words, “be careful
because Ando Rosete and Ambros
Nabor may go after you and you will be the next.  (TSN, p. 4, March 12, 1985)

“Jean Tandoc likewise declared in
her Ante-mortem statement taken by Patrolman Credo at the Pangasinan Provincial
Hospital, Dagupan City
on November 23, 1983, that
she was shot by two (2) persons she did not recognize.  One is
smaller than the other and they were wearing jackets.  (TSN, p. 4-7, April 25, 1985, Exhibit 1, Records)

“The incident happened at a place about 30 meters away from
the municipal hall and at a time when there was moonlight.  (p. 21,
Decision, July 29, 1986)

“Dr. Otto Raguindin, Senior Resident
Physician of the Pangasinan Provincial Hospital
Department of Surgery, Dagupan
City who examined and operated on
Harry Nicanor stated that said victim died on November 29, 1983.  And, according to his findings as embodied in
the medical certificate (Exhibit “H”) he issued on March 12, 1985,
Harry Nicanor suffered the following:

“a)  A gunshot wound with point of entry about one
centimeter in diameter with contusion collar at the level of the thorasic vertebrae.

“b)  Fatal
wounds in the small and large intestines and the liver.

“c)  Severe
hemorrhage and fulminary infection and the primary
cause of death was hemorrhagic shock.”

“Dr. Otto Raguindin likewise said he
attended to the injuries of Jean Tandoc and conducted
the surgical operation on her.  He
declared that the victim died in the operating room on November 23, 1983, while undergoing
operation.  He further declared that as
embodied in the medical certificate he issued (Exhibit “I”), Jean Tandoc suffered the following:

“a)  A gunshot wound
with the point of entry about one centimeter in diameter with contusion collar
right buttocks, penetrating the abdomen, lacerating the right ovary and
fallopian tube, tangentially lacerating the mid portion of the ascending
colon.  It also penetrated the right lobe
of the liver thru and thru, the mid portion of the right diaphragm, the lobes
of the right lung and the right clanicle.

“b)  A
gunshot wound with a point of entry of one centimeter in diameter with
contusion collar hitting the mid-portion of the T-9 posteriorly with metallic vertebral
canal transecting the spinal cord.

“c)  Bleeding of the lung and
intra-abdominal cavities.  (TSN, pp. 8-9,
March 14, 1985;” (Brief for the Appellee, pp. 4-9; Rollo,
pp. 149-154)

The accused-appellants,
on the other hand, present the following “Statement of Facts”:

“That on the night of November 22, 1983 in the Municipality of
Agno, Pangasinan the two
victims Harry Nicanor and Jean Tandoc
were gunned down on Burgos Street on their way home.  They came from the town plaza with three
other companions, namely:  Janette Tandoc, Mila Viray and Emma Español when the shooting took place and about (80) meters
away from the municipal building which was being manned by two policemen.  Earlier the victims with their companions
came from (sic) the town plaza where they watched games and amusements being
shown thereat as it was the eve of the town fiesta of Agno.

“The responding policemen found the body of Jean Tandoc sprawled on the road and the policemen rushed her
for emergency treatment to a certain Dr. Sison at Agno.  In the
meantime victim Harry Nicanor was able to walk back
home on his own.  Both victim
were rushed to the Nazareth General Hospital
at Dagupan City
for confinement and treatment
thereat but later Jean Tandoc was transferred to the Pangasinan General Hospital
at Dagupan City
where she later on expired.  Victim Harry
Nicanor also expired at the Nazareth
General Hospital
after a week’s confinement thereat.

“Due to
the absence of eye-witness to the incident, Pat. Credo, a police
investigator of the INP at Agno, Pangasinan
rushed to the Pangasinan General Hospital to take
down the dying declaration of Jean Tandoc on November
23, 1983 at 2:30 AM in the presence of her own sister Janette Tandoc who was as taking care of her at the Pangasinan General Hospital at Dagupan
City with a friend of both sisters Zenaida Nagal.  In essence declarant Jean Tandoc stated that
she did not recognize their assailants. 
We quote the question and answer, to wit:

“Question:  Did you
recognize them?

“Answer:  No, sir.  (Exh.
1-Dying Declaration of Jean Tandoc).

“Likewise the dying declaration of Harry Nicanor
was taken by T/Sgt. Jaime Acerit, Chief Investigator
of the PC/INP based at Alaminos, Pangasinan
at the Nazareth General Hospital
on November 26, 1983.  It consists of (3) pages each and every page
of which were signed by the declarant Harry Nicanor, Elisa B. Lomboy and
Virginia P. Mata who were present
when his declaration was taken.

“Essentially also Harry Nicanor
cannot recognize his/their assailants. 
We quote the following questions and answers as follows:

“3.          Q – And do
you know shot you? (sic)

A – I was not able to
recognize them.

“16.        Q
– If I will show you some persons who might have perpetrated the crime, can you
identify him/them?

A – I am not sure if I
can identify them, sir.  (Exh. 4 – Dying Declaration of Harry Nicanor).

“The two policemen who were on duty on the night of November
22, 1983 on the eve of the first said that the night was dark for there was
brown out and they have to use kerosene lamp to illumine their office.  Before the shooting they noticed already the
presence of the two accused Ambrosio Nabor and Amando Rosete sitting near each other on a Pantranco
Bench about (6) meters away from them. 
They were playing ‘dama‘ or chess and casually
glanced at the two who were still there. 
When the two policemen heard gun shots, they responded to the shooting
scene and one of them, Pat. Orilla returned to the
police station to get his tricycle to load victim Jean Tandoc
for treatment and while
maneuvering the tricycle the head lamp focussed on
the two who were still there sitting.” (At pp. 98-99, Rollo)

During the arraignment, the accused-appellants both entered a
plea of “Not Guilty”.  After a
joint trial, the lower court, unconvinced by the version of the defense, rendered
a judgment of conviction from which the present appeal was interposed assigning
as errors:

I

THAT THE LOWER
COURT ERRED IN NOT ACQUITTING BOTH ACCUSED FOR THE
CRIME OF DOUBLE MURDER BASED ON THE DYING DECLARATIONS OF BOTH VICTIMS.

II

THAT THE LOWER COURT
ERRED IN FAILING TO GIVE DUE WEIGHT AND CREDIT TO THEIR DEFENSE OF ALIBI.

III

THAT FINALLY THE LOWER
COURT ERRED IN CONVICTING BOTH ACCUSED BECAUSE
THERE WAS IN FACT GRAVE REASONABLE DOUBT ON THE GUILT OF THE ACCUSED.  (At p. 99, Rollo)

The pivotal issue in this
appeal is whether or not the lower court committed reversible error in giving
more weight to the dying declaration of Harry Nicanor
coupled with the testimony of an eyewitness presented by the prosecution rather
than the dying declaration and alibi presented by the defense.

The prosecution rested
its case on the positive identification of the accused given by Janette Tandoc and the dying declaration of Harry Nicanor taken down by Patrolman Marcelo Paragas
on November 28, 1983 implicating the accused-appellants as his
assailants.

On the dying declaration
of Harry Nicanor presented by the prosecution,
Patrolman Paragas, an investigator of the 154th PC
Company Headquarters in Alaminos, Pangasinan
at the time of the subject incident, stated in his testimony in court that he
took the ante-mortem statement of the said deceased in Ilocano
but translated the same in English when he reduced it to writing with one
Hector Batalla and Perpetuo
Nicanor as witnesses. 
The pertinent portion of the said ante-mortem statement on which the declarant affixed his right thumbmark
reads:

“I was shot.  They are Amando Rosete and Ambrocio Nabor.  My companions that time were Mila Viray, Jean Tandoc and Emma Español.”

The defense in its attempt to exculpate the accused-appellants from criminal liability
presented T/Sgt. Jaime Acerit, also an investigator
of the 154th PC Company Headquarters in Alaminos, Pangasinan who declared in open court that on November 26,
1983 he took down a three-page ante-mortem statement of
Harry Nicanor who affixed his signature thereon while
he was in a very serious condition at the Nazareth General Hospital.  The ante-mortem statement witnessed by one
Virginia Mata and one Elisa Lombaya essentially
stated that the declarant was not able to recognize
his assailants and that he was not sure whether he could identify them.

 The trial court, in giving more weight and
credence to the dying declaration taken down by Patrolman Paragas
made the following observations regarding the authenticity and due execution of
the ante-mortem statement gathered by T/Sgt. Acerit, to
wit:

“1. T/Sgt. Jaime Acerit under cross-examiration admitted that when he went to the hospital to take the statement of Harry Nicanor, the victim was in a very, very serious condition
such that he could hardly talk and hear, repeating his questions to him before
an answer is given.  Under such
condition, the alleged Harry Nicanor’s statement to
T/Sgt. Acerit is
unbelievable.

“2. That despite victim’s serious condition he was able to
write his name or sign the declaration in the presence of the two above-named
witnesses and Capt. Vinluan.  The alleged signing by the victim is
incredible, also under serious condition. 
If the victim, Harry Nicanor could really still sign the statement consisting of
three (3) pages, why were the first two pages left unsigned and only the last
page was signed?  This omission was not
properly explained.

“3. The fact that despite the presence of
Capt. Vinluan he was not required to sign the
declaration as a witness.  Instead
he required other persons to sign as witnesses, why?  This question remained unanswered.

“4. The fact that the defense did not at all make any attempt to present the two
witnesses and/or Capt. Vinluan, who are the proper persons who could
have shed light to the taking of
the statement.  The records yield no explanation for the suppression of their testimonies.

“Thus, the Court is more inclined to give credence and weight
to the declaration of victim
before Pfc. Paragas where he affixed his right thumbmark as more in consonance with human experience and
habits of life than that alleged declaration of the victim where it appears he
affixed his signature before
T/Sgt. Acerit while lying on bed in a very serious
condition.  The latter situation is
unnatural and repugnant.” (At pp. 61-62, Rollo)

We accord due respect to
the trial court’s finding that as between the two conflicting ante-mortem
statements, that which the prosecution had presented is more credible in consonance with the oft-repeated rule that credibility of witnesses is
an issue better addressed to the trial court for the conclusions reached by the
trial court on the basis of its own assessment are generally not disturbed on
appeal in the absence of grave abuse of discretion on the part of the trial
judge who has the advantage of actually examining both documentary and
testimonial evidence including the demeanor of the
witnesses as they present the same. 
(People v. Danilo Dumpe
y Jimenez alias “Isko” et al., G. R. Nos.
80110-11, March 22, 1990; People v. Raffy Cayaan, et al., G. R. No. 78900, March 21, 1990; People v. Pio Cantuba, et al., G.R. No.
79811, March 19, 1990; People v. Rosendo Delgado
alias “Nongnong“, G.R. No. 79672, February
15, 1990; People v. Benjamin Noguerras y Torres, G.R. No. 76238, January 11, 1990; and
People v. Alfredo Marmita, Jr., G.R. No. 75618,
December 29, 1989).

Under Rule 130, section
31 of the Rules of Court, a dying declaration, to be admissible in evidence
must have the following requisites:  (1) the
declarant’s statement must be made under the
consciousness of an impending death; (2) the declaration must refer to the
cause and surrounding circumstances of the declarant’s
death; and (3) the declarant’s death is the subject of inquiry in the case wherein the declarant’s
statement is sought to be admitted.  An
additional requisite must be that the declarant was a
competent witness (see People v. Delfin
Bustos, G.R. No. 35745, March 16, 1989 citing People
v. Balbas, 122 SCRA 859 [1983] and People v. Sabro, 102 SCRA 218 [1981]).

In the instant case, all
the above requisites are present although the declarant
did not categorically state that he believed that his death was inevitable at
the time he made his ante-mortem statement considering the nature of Harry
Nicanor’s wounds. 
For an ante-mortem statement to
be admissble as an exception to the hearsay rule, it
is enough that the deceased uttered the said statement while suffering from
serious wounds which would justify the conclusion that the declarant
was conscious of his impending death. 
(People v. Laureta, Jr., 159 SCRA 256 [1988]
citing People v. Sarabia, 127 SCRA 100 [1984]; People
v. Aquino, 133 SCRA 283 [1984])

The ante-mortem statement
of Harry Nicanor was corroborated by other evidence
on record such as the testimonies of: 
(1) Trinidad Nicanor, Harry’s mother who
stated in court that in the hospital her son told her that “Mando (referring to the appellant Amando Rosete)
is a traitor and Ambros (referring to the other appellant Ambrocio Nabor) is a snake.”
(TSN, March 7, 1985, p. 6); and (2) Perpetuo Nicanor, Harry’s brother who testified that while
his brother was confined at Nazareth General Hospital, the latter cautioned him in the following manner:  “Be careful because Amando
Rosete and Ambrosio Nabor might go after you next and you will be the
next.” (TSN, March 12, p. 4)

 Anent the dying declaration of Jean Tandoc as recorded by Patrolman Carlos Credo
on November 23,1983 which the accused-appellants claim
is inconclusive as to the guilt of the accused-appellants with respect to the declarant’s assailants, we affirm the trial court’s finding
that the description of physical height given in Jean’s ante-mortem statement
jibes with the actual height of the accused-appellant, one of them being taller
than the other.

The most important
evidence, however, is the positive testimony of Janette Tandoc pointing to the
accused-appellants as the perpetrators of the crime of double murder subject
matter of this appeal.  Janette was with the two victims before and
during the killing.  She saw the two
accused fire their guns at the victims. 
She knew both Nabor and Rosete
very well and positively identified them as the killers.

Considering that the
dying declarations of both victims in the case at bar are admissible in
evidence coupled with the fact that there is positive identification of the
accused-appellants as the victims assailants, the defense of alibi presented by the said accused-appellants must fail. 
(People v. Ebora, 141 SCRA 282 [1986]) For the defense of alibi to
prosper, it must not only be shown that the accused was at some other
place at the time of the incident but that it was physically impossible for the
accused to have been at the scene of the crime at the time of its commission.  (People v. Vicente Aldeguer, G.R. No.
L-47991, April 3,1990; People v. Melchor Besa, G.R. No. 78899, March 22,1990; People v. Jesus
Francisco, et al, G.R. No. 69580, February 15,1990; People v. Teofilo Obando,
et al., G.R. No. 72742, February 12, 1990) There being no proof of the required
physical impossibility of being present at the scene of the crime as the records of this case reveal and their having been positively
identified as the killers, the accused-appellants alibi is bereft of merit.

Finally, the records of this case support the
conclusion that the accused-appellants acted in concert in the perpetration of
the double murder of Harry Nicanor and Jean Tandoc.  Both
killings were qualified by treachery owing to the fact that the shooting
incident was sudden thereby insuring the accused-appellants’ commission of the
offense without any risk arising from the defense that their victim might
make.  However, as regards the presence
of evident premeditation as found by the trial court, a careful
examination of the records shows that the prosecution failed to prove the
essential elements thereof.  (See People
Francisco, et al., supra)

 WHEREFORE, IN VIEW
OF THE FOREGOING, the trial court’s finding that the accused-appellants are
GUILTY beyond reasonable doubt as charged and its judgment of conviction in the
two criminal cases raised on appeal are hereby AFFIRMED.

SO ORDERED.

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