people v. viovicente

Republic of the Philippines

SUPREME COURT

Manila

SECOND DIVISION

G.R. No. 118707 February 2, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

FERNANDO VIOVICENTE y GONDESA, accused-appellant.

MENDOZA, J.:

In an information dated August 8, 1991 accused-appellant Fernando Viovicente y Gondesa, together with John Doe, Peter Doe, and Mike Doe, was charged with murder, as follows: ¹

That on or about the 21st day of July, 1991, Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a bolo and an icepick, conspiring together, confederating with and mutually helping one another, did, then and there, willfully, unlawfully and feloniously with intent to kill, with treachery and evident premeditation and by taking advantage of superior strength, attack, assault and employ personal violence upon the person of FERNANDO HOYOHOY Y VENTURA, by then and there, stabbing him on the chest with the use of said bolo and icepick, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his untimely death, to the damage and prejudice of the heirs of said Fernando Hoyohoy y Ventura, in such amounts as may be awarded under the provisions of the Civil Code.

CONTRARY TO LAW.

Fernando Flores testified that while he was on his way to work at 6 a.m. on July 21, 1991, he saw his co-workers Fernando Hoyohoy attacked by four men. Hoyohoy was buying cigarettes at a store located in an alley of Tatalon Street, Quezon City when, according to Flores, two persons emerged from behind the store. Flores identified the two as accused-appellant Fernando Viovicente, alias "Macoy," and one "Balweg." The two approached the victim and seized him by the shoulders (accused-appellant held the victim's right shoulder, while "Balweg" held him by the left). Then, Flores said, two other persons, whom he identified as Maning and Duras, came up to the victim and stabbed him in the left side of the chest. The victim was struck first by Maning with a bolo, followed by Duras who stabbed Hoyohoy with an icepick. ² The four then fled from the scene.

During the whole incident, Fernando Flores was ten steps away from the victim. ³ Flores testified that he knew accused-appellant because both of them had worked in a department store in Sta. Mesa. ⁴ He said that two weeks after the incident, his sister saw accused-appellant in their neighborhood and told him. The two of them then informed the victim's brother who then tried to apprehend accused-appellant. Accused-appellant resisted and drew his knife, but neighbors joined in subduing him. Later, they turned him over to the barangay captain. ⁵ On August 6, 1991, Flores gave a statement regarding the incident to the police. ⁶

Tomas Hoyohoy, the victim's brother, testified ⁷ that after Fernando had been stabbed he ran to their house and identified Maning Viovicente, Duras Viovicente, accused-appellant Fernando "Macoy" Viovicente, and Romero "Balweg" Obando as his assailants. The four were neighbors of theirs is Tatalon.

Fernando Hoyohoy was taken to the National Orthopedic Hospital where he died at 11 a.m. of the same day (July 21, 1991). A death certificate ⁸ and certificate of postmortem examination ⁹ were later issued. For the victim's funeral, the family incurred P9,000.00 in expenses. ¹⁰

Cpl. Iluminado Combalicer of the Galas Police Sub-Station 4 testified ¹¹ that, upon receipt of the report of the incident, he went to the National Orthopedic Hospital where he was able to talk to the victim. This was at 8 a.m. of July 21, 1991. Hoyohoy told him that he had been stabbed by Maning. Cpl. Combalicer took down the victim's statement and made him sign it. ¹² The pertinent portion of the statement reads:

Tanong: Anong pangalan mo?

Sagot: Fernando Hoyohoy y Ventura, 25 taong gulang, binata, empleyado, tubo sa Manila, nakatira sa No. 11, Bicol Brigade, Tatalon, Q.C.

02 T: Bakit ka narito sa hospital?

S: Sinaksak po ako ni "Maning" at "Duras" roon ring nakatira sa may likod ng bahay namin.

03 T: Anong dahilan at ikaw ay sinaksak?

S: Hindi ko po alam.

Accused-appellant's defense was alibi. ¹³ He claimed that on July 21, 1991, the day of the incident, he was in Bataan. According to him, two weeks later he returned to Manila because he did not like his job in Bataan. He went to his mother's house and, after eating, went to the house of his cousins, Maning and Duras. It was there where he was arrested. Accused-appellant's mother, Filomena Canlas, corroborated his alibi. ¹⁴

The Regional Trial Court of Quezon City (Branch 92) ¹⁵ convicted accuse-appellant of murder and sentenced him to 17 years, 4 months, and 1 day of reclusion temporal, as minimum, to 20 years of reclusion temporal, as maximum, and ordered him to pay the heirs P9,000.00 as burial expenses, P50,000.00 moral damages, and the costs. On appeal, the Court of Appeals ¹⁶ thought the penalty should be increased to reclusion perpetua because of the absence of mitigating and aggravating circumstances and, in accordance with Rule 124, §13, certified the case to this Court for final review. The Court gave accused-appellant the opportunity of filing an additional appellant's brief but he found it unnecessary to do so. The case was therefore submitted for resolution on the basis of the briefs of the parties in the Court of Appeals and the record of the trial court.

Accused-appellant's brief contains the following assignment of errors:

I

THE COURT A QUO ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONIES OF THE PROSECUTION WITNESSES AND IN DISREGARDING THE THEORY OF THE DEFENSE.

II

THE COURT A QUO ERRED IN FINDING ACCUSED-APPELLANT FERNANDO VIOVICENTE GUILTY BEYOND REASONABLE DOUBT OF THE OFFENSE CHARGED DESPITE OF THE FAILURE OF THE VICTIM FERNANDO HOYOHOY TO IDENTIFY ACCUSED-APPELLANT AS ONE OF THE ASSAILANTS IN HIS ANTE-MORTEM STATEMENT HE HAD GIVEN TO THE POLICE INVESTIGATOR AT THE HOSPITAL.

First. Accused-appellant contends that it was error for the trial court to rely on the ante mortem statement of the deceased which he gave to his brother Tomas, in which the deceased pointed to accused-appellant and Balweg as his assailants. He argues that the alleged declaration cannot be considered a dying declaration under Rule 130, §37 of the Rules on Evidence because it was not in writing and it was not immediately reported by Tomas Hoyohoy to the authorities. Instead, according to accused-appellant, the trial court should have considered the statement (Exh. F) given by the victim to Cpl. Combalicer also on the day of the incident, July 21, 1991. In that statement, the victim pointed to the brothers Maning Viovicente and Duras Viovicente as his assailants. The contention is without merit. The Revised Rules on Evidence do not require that a dying declaration must be made in writing to be admissible. Indeed, to impose such a requirement would be to exclude many a statement from a victim in extremis for want of paper and pen at the critical moment. Instead Rule 130,
§37 ¹⁷ simply requires for admissibility of an ante mortem statement that (a) it must concern the crime and the surrounding circumstances of the defendant's death; (b) at the time it was made, the declarant was under a consciousness of impending death; (c) the declarant was competent as a witness; and (d) the declaration was offered in a criminal case for homicide, murder, or parricide in which the decedent was the victim. ¹⁸ These requisites have been met in this case. First, Fernando Hoyohoy's statement to his brother Tomas concerns his death as the same refers to the identity of his assailants. Second, he made the declaration under consciousness of an impending death considering the gravity of this wounds which in fact caused his death several hours later. Third, Fernando Hoyohoy was competent to testify in court. And fourth, his dying declaration was offered in a criminal prosecution for murder where he himself was the victim.

Nor is there merit in the contention that because Tomas Hoyohoy, to whom the alleged ante mortem statement was given, reported it to the police on August 5, 1991, after accused-appellant had been arrested, it should be treated as suspect. Delay in making a criminal accusation however does not necessarily impair a witness' credibility if such delay is satisfactorily explained. ¹⁹ Tomas testified that he knew Cpl. Combalicer had talked to his brother Fernando at the hospital ²⁰ implying that he did not then make a statement because the matter was under investigation.

Second. Actually, the trial court's decision is anchored mainly on the testimony of Fernando Flores. Flores was an eyewitness to the killing of Fernando Flores. Flores was an eyewitness to the killing of Fernando Hoyohoy. This witness pointed to accused-appellant and to three others (Balweg, Maning Viovicente, and Duras Viovicente) as the assailants, describing the part each played in the slaying of Fernando Hoyohoy, Flores testified:

FISCAL REYES:

Q While you were along that Alley at Tatalon, Quezon City, what happened if any, Mr. Witness?

A I saw Fernando Hoyohoy buying cigarette.

Q What happened while he was buying cigarette?

A Four (4) persons went near him while he was buying cigarette and two (2) held him by the hand.

Q Mr. witness you said that Fernando Hoyohoy at the time was buying cigarette where was he facing at the time?

A He was facing the store.

Q How far were you from Fernando Hoyohoy?

A Ten (10) steps away.

Q You said that four (4) persons appeared and two (2) held Fernando Hoyohoy by the shoulder, from where did these two (2) come from?

A The two (2) persons came behind the store.

Q Who held Hoyohoy by the right shoulder if you know, Mr. witness?

A Fernando Viovicente and Alias Balweg.

Q Only the right shoulder?

A Yes, Ma'am.

Q I am asking you the right shoulder?

A Fernando Viovicente.

Q And who held Hoyohoy's left shoulder?

A Alias Balweg.

Q Do you know the complete name of Alias Balweg?

A No, Ma'am, I do not know.

Q How about the other two (2) what did these two (2) persons do to Fernando Hoyohoy at the time?

A They were the ones who stabbed Fernando Hoyohoy.

Q What were the names of the two (2) persons who stabbed Fernando Hoyohoy?

A Maning and Duras.

Q Do you know the full name of these two (2) persons?

A No, Ma'am.

Q What was Maning holding at the time?

A A bolo, Ma'am.

Q What was Duras holding?

A Icepick.

Q Where did Maning stab the victim Fernando Hoyohoy?

A At the left chest.

Q Who stabbed first, Mr. witness?

A Maning.

Q And what did Duras do?

A He helped stabbed Fernando Hoyohoy.

Q With what weapon?

A Icepick.

Q You said that Fernando Viovicente was the one who held Fernando Hoyohoy by the right shoulder is that correct?

A Yes, Ma'am.

Q Is that Viovicente the same Viovicente who is now the accused in this Court?

A Yes, Ma'am.

Q Will you please look around and if he is around please point at him, Mr. witness?

A Witness pointing to a person who identified himself as Fernando Viovicente.

Q Mr. witness you mentioned that these Duras and Maning were brothers, is it not?

A Yes, Ma'am.

Q Do you know at least their family name?

A Viovicente.

Q Where are they residing if you know, Mr. witness?

A They are living with their sisters.

Q Is Fernando Viovicente the one whom you pointed in this courtroom a brother of Maning and Duras?

A No, Ma'am.

Q How many stabs did Fernando Hoyohoy receive from these two persons?

A Two (2) stab wounds.

Q How many from Maning?

A One (1) stab.

Q How about from Duras?

A One, Ma'am.

Q What happened after these two (2) persons Maning and Duras stabbed Fernando Hoyohoy?

A They ran away. ²⁰

Accused-appellant claims that Flores was biased, being a neighbor of the deceased. But so were the Viovicentes and Romero Obando his neighbors. No ill motive on his part that would impel Flores to testify falsely against accused-appellant has been shown. Consequently, the trial court's finding as to his testimony is entitled to great respect. Indeed, unless the trial judge plainly overlooked certain facts of substance and value which, of considered, might affect the result of the case, his assessment of the credibility of witnesses must be respected. ²¹ Flores' positive identification of accused-appellant should be given greater credence than the latter's bare and self-serving denials. ²²

Third. The foregoing evidence unequivocally showing accused-appellant as among those who conspired to kill Fernando Hoyohoy is dispositive of his defense that he was in Bataan on the day of the crime. It is settled that alibi cannot prevail against positive identification of the accuse. In addition, accused-appellant's defense is weakened by the inconsistencies between his testimony and his mother's. Accused-appellant testified that he departed for Bataan on a Sunday (July 21, 1991) at past 8:00 in the morning with his cousin Lucring, taking a ride in the car of his employer. ²³ But his mother testified that accused-appellant and Lucring left for Bataan at noontime on July 18, 1991 and they left by bus. ²⁴

The Court of Appeals correctly held accused-appellant guilty of murder and since there was neither mitigating nor aggravating circumstance, the penalty should be reclusion perpetua. No reason was really given by the trial court for meting out on accused-appellant the penalty of 17 years, 4 months, and 1 day of reclusion temporal, as minimum, to 20 years of reclusion temporal, as maximum. However, the award of the damages made by the trial court, as affirmed by the Court of Appeals, must be revised. In addition to the amount of P9,000.00 for burial expenses, which should be treated as actual damages, and the amount of P50,000.00 as moral damages, accused-appellant must be made to pay indemnity in the amount of P50,000.00. ²⁵

WHEREFORE, the decision appealed from is AFFIRMED with the modification that accused-appellant is sentenced to suffer the penalty of reclusion perpetua and ordered to pay to the heirs of Fernando Hoyohoy the sum of P9,000.00, as actual damages, P50,000.00, as moral damages, and P50,000, as civil indemnity for the death of Fernando Hoyohoy.

SO ORDERED.

Regalado, Melo, Puno and Martinez, JJ., concur.

^# Footnotes

1 Records, p. 1.

2 TSN, pp. 3-6, 11-14, Nov. 5, 1991.

3 Id., p. 3.

4 Id., p. 8.

5 Ibid.

6 Exh. A, Folder of Exhibits, pp. 1-2. A detail of the incident contained therein which was not brought out during the testimony of Fernando Flores was that the four assailants of Fernando Hoyohoy were drunk where they ganged up on him.

7 TSN, pp. 3-5, Nov. 12, 1991.

8 Exh. D, Folder of Exhibits, p. 5.

9 Exh. E, id., p. 6.

10 Per receipt dated July 27, 1991 issued by Funeraria Real, Exh. C, id., p. 4.

11 TSN, pp. 10-11, Nov. 21, 1991.

12 Exh. F, Folder of Exhibits, p. 7.

13 TSN, pp. 5-9, Dec. 3, 1991.

14 TSN, p. 3, Dec. 5, 1991.

15 Per Judge Pacita Cañizares-Nye.

16 Per Justice Ricardo J. Francisco and concurred in by Justices Ramon A. Barcelona, and Godardo A. Jacinto.

17 This provision reads: "Dying declaration. — The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death."

18 People v. Garma, G.R. No. 110872, April 18, 1997.

19 People v. Apongan, G.R. No. 112369, April 4, 1997; People v. Padao, 267 SCRA 64 (1997).

20 TSN, p. 5 Nov. 12, 1991. Tomas testified though that he was outside the room when Cpl. Combalicer conducted the investigation.

20 TSN, pp. 3-6, Nov. 5, 1991.

21 E.g., People v. Apongan, G.R. No. 112369, April 4, 1997.

22 People v. Obzunar, 265 SCRA 547 (1996).

23 TSN, pp. 7-8, Dec. 3, 1991.

24 TSN, p. 5, Dec. 5, 1991.

25 People v. Mendoza, G.R. No. 115809, Jan. 23, 1998.

The Lawphil Project - Arellano Law Foundation

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