EN BANC

[G.R. No. 52787. February 28, 1985.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JESUS HECTO, PEDRO

HECTO and LORETO HECTO, Accused, PEDRO HECTO and LORETO
HECTO, Defendants-Appellants.

The Solicitor General for Plaintiff-Appellee.

Oscar Bati, for Defendants-Appellants.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; SWORN STATEMENT OF DECLARANT WHO DID NOT

TESTIFY IN CRIME; CONSIDERED HEARSAY. — We agree with appellants that the
sworn statement of Constancio Bollena who did not testify at the hearing should not
have been admitted and considered by the trial court. As aptly stated by the Solicitor
General in his brief, the affidavit of Bollena should not be considered in passing
judgment upon the guilt or innocence of herein appellants. "Such statement is hearsay
evidence for the reason that Bollena never testified in court. Appellants did not have
the opportunity to cross-examine him and test his credibility." (p. 167, Rollo)

2. CRIMINAL LAW; QUALIFYING CIRCUMSTANCE; CONSPIRACY ESTABLISHED BY

CONCERT OF ACTION AT TIME OF CONSUMMATING A CRIME. — Considering the
concerted action of Jesus Hecto, appellants Pedro and Loreto Hecto, Marcial Hecto,
Roberto and Faustino Silvano, conspiracy among them has been successfully
established by the prosecution. While their companions were slaying the deceased,
appellant Loreto Hecto and Faustino Silvano were by the stairs of the house of Catalino
to prevent any assistance which could come therefrom. After they had accomplished
their criminal or unlawful purpose, they left together. Time and again We have ruled
that concert of action at the time of consummating a crime and the form and manner in
which assistance is rendered to the person or persons inflicting the fatal wounds on
their victim determine complicity where it would not be otherwise evident. In a
conspiracy, all are liable for the acts of one.

3. REMEDIAL LAW; EVIDENCE; FLIGHT, EVIDENCE OF GUILT. — The fact that

appellants went into hiding after the incident is evidence of guilt. Pedro Hecto was
arrested two months later in Tacloban City, while Loreto Hecto presented himself before
the authorities in March 1974 or after two years. Their three companions have not yet
been arrested up to now.

4. ID.; ID.; CREDIBILITY OF WITNESSES; ALIBI, UNAVAILING TO THE FACE OF

POSITIVE IDENTIFICATION. — Against the testimony of the People’s witnesses,
appellants Loreto and Pedro Hecto claim that they were elsewhere when the killing took
place. Well established is the rule that where the accused have been positively
identified by witnesses as perpetrators of the offense, the defense of alibi is futile and
unavailing.

5. CRIMINAL LAW; COMPLEX CRIME; MURDER WITH ASSAULT UPON A PERSON IN

AUTHORITY; ASSAULT ON BARANGAY CAPTAIN OCCASIONED BY THE OFFICIAL DUTIES
DONE BY HIM. — We now come to the contention of the defense that the trial court
erred in convicting them of the complex crime of murder with assault upon a person in
authority. They pointed out that when the barangay captain was killed he was not in
actual performance of his official duties. Be that as it may, the fact is, the attack on the
deceased was occasioned by the official duties done by him. As the barangay captain, it
was his duty to enforce the laws and ordinances within the barangay. If in the
enforcement thereof he incurs the enmity of his people who thereafter treacherously
slew him, the crime committed is murder with assault upon a person in authority.

DECISION

RELOVA, J.:

From the decision of the then Court of First Instance of Leyte, rendered after trial in
Criminal Case No. 1093, finding accused Pedro Hecto and Loreto Hecto guilty beyond
reasonable doubt of the crime of murder with direct assault upon a person in authority
and sentencing "each of them to the death penalty to be executed at a date to be set
and in the manner provided for by law and to jointly and severally indemnify the heirs
of Barrio Captain Catalino Pedrosa (represented by Mrs. Caridad B. Pedrosa of San
Isidro, Dulag, Leyte) in the amount of P12,000.00, without subsidiary imprisonment in
case of insolvency and to pay 2/6 of the costs," (p. 22, Rollo) the aforementioned
accused have appealed to this Court. cralawnad

Following are the facts.

Sometime in January or February 1972, brothers Jesus Hecto and Pedro Hecto
slaughtered a carabao in barrio San Isidro, municipality of Dulag, Province of Leyte.
They did not pay the corresponding "tumbada" or slaughter fee and upon learning of
this non-payment, Barangay Captain Catalino Pedrosa asked him (Jesus) to pay the
same. Jesus replied that he could not yet pay the required slaughter fee because those
who bought meat from him had not also paid him yet. Thereafter, Pedrosa met
Municipal Treasurer Benedicto de la Paz who informed him that according to the Hecto
brothers they had already paid the slaughter fee to him (Pedrosa). Pedrosa denied
having received the fee mentioned.

On February 27, 1972, Catalino Pedrosa and his wife went to visit their farm and on
their way home, about 3:00 in the afternoon, they met Jesus and Pedro Hecto. Pedrosa
confronted the two about the false information they gave the municipal official
concerning the alleged payment of the slaughter fee to him. A heated discussion
ensued and the Hectos tried to attack Pedrosa. Mrs. Caridad Pedrosa pulled her
husband away and the trouble was averted.

About 6:00 in the afternoon of March 24, 1972, Catalino Pedrosa left his house in
barangay San Isidro to accompany a two-year old nephew to the house of the child’s
parents. On his way back, about 6:30 he was shot by Jesus Hecto and Pedro Hecto and
thereafter stabbed by Marcial Hecto and Roberto Silvano. chanrobles law library

Caridad Pedrosa at the time was in her house preparing supper. Upon hearing the
sound of a gunfire, she immediately ran to the door. However, she was prevented from
going down the house by Loreto Hecto and Faustino Silvano, son and nephew,
respectively, of Jesus Hecto. They pointed their guns at her. Notwithstanding, Caridad,
could see Jesus Hecto pointing a gun at her husband, Catalino Pedrosa, who was
already lying on the ground face up. This was followed by Pedro Hecto who also fired
his own gun at Pedrosa. Thereafter, Jesus Hecto, Pedro Hecto, Marcial Hecto and
Roberto Silvano carried the victim to a nearby ditch where Roberto and Marcial took
turns in stabbing him with their bolos. The four assailants then walked away. Loreto
Hecto and Faustino Silvano who were at the door of the house of the Pedrosas guarding
Caridad joined the four.

The police was informed of the incident. Acting Chief of Police Nerio dela Cruz, with
several policemen, arrived at the scene of the incident at about 8:00 that evening. They
found the dead Pedrosa with three gunshots and three stab wounds on his body.

During the trial of the case, the accused Jesus Hecto died shortly after he had testified.
Accordingly, the case against him was dismissed by the court. Trial proceeded against
Pedro and Loreto Hecto while their confederates: Roberto Silvano, Marcial Hecto and
Faustino Silvano remained at large.

The defense of appellants Loreto Hecto and Pedro Hecto was denial. Loreto testified
that at the date and time of the incident he was in his house two kilometers away from
barangay San Isidro drinking tuba with his hired farm laborers, Pablo Lirios and Felicito
Bico. In the morning of that day, March 24, 1972, his farm laborers plowed his cornfield
until about 4:00 in the afternoon. He then offered them tuba which they drank together
in his house. About 6:00, his sister Lolita arrived telling them that their father Jesus
fought with Catalino Pedrosa. He then left for barrio San Isidro to see his parents and,
as a precautionary measure, he brought his mother Maria Ganaron to his house.

Appellant Pedro Hecto declared that on March 23 and 24, 1972 he stayed in his house
because the palay which was harvested on March 21 was being threshed by Beato
Andrade and Victor Isyo. The threshing was finished about 11:00 in the evening of
March 24. About 9:00 some members of the police force of Dulag went to his house
looking for his brother Jesus Hecto. They left upon finding that he was not there. About
an hour later, Jesus arrived and said that he had killed somebody and that he was
going to town to surrender. After a few days, he (Pedro Hecto) left for Tacloban City
where he worked as carpenter until he was arrested on June 17, 1972.

Appellants claim that the trial court erred (1) in relying on inadmissible evidence in
making a finding of facts relevant to the judgment of conviction; (2) in rendering a
judgment of conviction even if their respective guilts were not proven beyond
reasonable doubt; and (3) in finding that the crime of murder was committed with
assault upon a person in authority. chanrobles lawlibrary : rednad

With respect to the first assigned error, We agree with appellants that the sworn
statement of Constancio Bollena who did not testify at the hearing should not have
been admitted and considered by the trial court. In said affidavit, Bollena said that he
was talking with Pedrosa when Jesus Hecto, Pedro Hecto, Loreto Hecto, Marcial Hecto,
Roberto Silvano and Faustino Silvano arrived; that after Loreto Hecto and Faustino
Silvano proceeded to Pedrosa’s house, Jesus Hecto immediately drew and fired his gun
twice at Pedrosa; that Jesus then turned his attention to Bollena who ran away and
succeeded in evading the shot fired at him by Jesus. As aptly stated by the Solicitor
General in his brief, the affidavit of Bollena should not be considered in passing
judgment upon the guilt or innocence of herein appellants. "Such statement is hearsay
evidence for the reason that Bollena never testified in court. Appellants did not have
the opportunity to cross-examine him and test his credibility." (p. 167, Rollo)

However, the conviction of appellants Pedro Hecto and Loreto Hecto by the trial court
was not entirely based on the affidavit of Bollena. There were the testimonies of
Caridad Pedrosa and Mario Cadayong. Hereunder are the said testimonies of Caridad
Pedrosa, wife of the victim —

"Q You said that you were inside your house. Immediately after you heard the first
gunshot, what did you do?

ATTY. SANTOS: chanrob1es virtual 1aw library

Answered already, Your Honor.

COURT: chanrob1es virtual 1aw library

Let her answer because her testimony on this point is not very clear.

FISCAL CABLITAS: chanrob1es virtual 1aw library

A I ran towards the door of the house.

Q And you said you were threatened by Loreto and Faustino with guns. Where were you
threatened by them?

A I was threatened by the door of our house because I was not able to go down. When
I opened the door they threatened me with guns.

x          x           x

Q Did you know what was that gun report — the fourth gunshot report about?

A Yes, sir.

Q What was it about?

A The gunshot was fired by Pedro Hecto. I could see him still holding the gun.

Q To whom was it aimed when you saw that gun which he fired?

A Towards my husband.

x          x           x

Q When this fourth gunfire was made, were Loreto and Faustino still pointing their guns
at you?

A Yes, they were still pointing their guns at me.

Q How did you manage to see what was happening to your husband?

A Because I looked at the two (2) persons pointing their guns to me and at the same
time I looked also at the place where my husband has fallen.

x          x           x

Q After your husband was fired upon by Pedro Hecto what happened after that?

A They lifted my husband to the culvert.

Q Who lifted your husband?

A The four (4) of them.

Q Who?

A Jesus Hecto, Pedro Hecto, Marcial Hecto and Roberto Silvano.

x          x           x

FISCAL CABLITAS: chanrob1es virtual 1aw library

Q Your husband, as you said, was the barrio captain of your place at the time when he
was gunned down by the accused and by the other persons charged in the information,
who are simply residents of the place who are supposed to be under him. Will you
please tell the Court the reason why your husband was killed?

x          x           x

A It was in the month of January or February when Jesus Hecto slaughtered their
carabao.
Q What year?

A 1972.

Q And then?

A My husband asked for the permit of slaughtering the carabao.

Q What is this "tumbada" in your local parlance?

A Whenever somebody slaughter a carabao, a certain amount is asked from them.

Q For what is this amount — where does this go?

A For the municipal treasurer.

Q Municipal treasurer or barrio treasurer?

A Municipal treasurer.

Q And then, was Jesus Hecto able to pay the ‘tumbada’ to the barrio captain, your
husband?

A Jesus Hecto did not give the amount to my husband because according to Jesus
Hecto, the persons who partook of the carabao did not pay him yet.

x          x           x

FISCAL CABLITAS: chanrob1es virtual 1aw library

I am asking for the motive, Your Honor.

COURT: chanrob1es virtual 1aw library

Witness is being asked on what she knows about the motive.

FISCAL CABLITAS: chanrob1es virtual 1aw library

A Benedicto de la Paz asked my husband about the amount as payment for the
slaughter of the carabao as according to his information, the amount was already given
to him.

Q As a result of this, do you know what happened on February 27, 1972, as a result of
this ‘tumbada’ in question?

A We were from our farm when we passed by Pedro and Jesus Hecto at the waiting
shed.

Q And then?
A My husband confronted Jesus Hecto by saying ‘You have told there that you have
already given the amount as payment for the slaughter of the carabao; but why did you
tell them when you have not given me this amount yet?’

Q What happened after this?

A There was an exchange of words between my husband and Jesus Hecto.

Q And then?

A I held my husband because they were about to harm my husband.

Q Who were about to harm your husband?

A Pedro Hecto and Jesus Hecto.

Q What did you do?

A I held my husband and we went home.

Q And what did Jesus Hecto and Pedro Hecto do when you held your husband and you
went home?

A He said ‘Ikaw, Capitan, ka nga estrikto, magkikita kita ha iba nga adlaw.’ Meaning,
‘You, Bo. Captain, you are very strict. We will see each other some day." (pp. 310, 311,
314, 315, 323, 3Z4, 325 and 326, tsn., Hearing on January 28, 1975.

and of Mario Cadayong: jgc:chanrobles.com.ph

"Q You said Catalino Pedrosa was killed, do you know how he was killed?

A Yes, sir.

Q How?

A He was shot.

Q By whom?

A He was shot by Jesus Hecto and Pedro Hecto.

Q Now you are talking about shots, you mean to say that there were guns during the
incident?

A Yes, sir.

Q How many guns have you seen?

A Pedro and Jesus Hecto were having one gun each.

 x          x           x

Q And when while you were running towards the coconut tree to take cover, you heard
a second shot?

A I did not run because the coconut tree was very near. While I was going to that tree
to hide I saw Jesus Hecto holding the gun and firing the second fire.

x          x           x

COURT: chanrob1es virtual 1aw library

Just answer the question whether Catalino Pedrosa died after quivering.

WITNESS: chanrob1es virtual 1aw library

A Not yet because he was still shot.

ATTY. TAN: chanrob1es virtual 1aw library

Q He was shot by whom?

A Pedro Hecto.(pp, 432, 433, 435 & 445, tsn., June 3, 1976 hearing).

x          x           x

COURT: chanrob1es virtual 1aw library

Will you describe to us in proper sequence what you saw from the time Jesus Hecto
pointed his gun to Catalino Pedrosa who was already fallen on the ground shaking?

A Catalino was shot again by Pedro. Catalino Pedrosa was carried by Pedro Hecto, Jesus
Hecto and Roberto Silvano to the ditch. After that, Catalino was stabbed by Roberto and
after that he was again stabbed by Marcial. We were stepping backwards as we saw
Man Caring pointed to with a gun by someone.

Q Who is Man Caring?

A Caridad Pedrosa.

Q Who was pointing a gun at Caridad Pedrosa?

A Loreto and Faustino.

x          x           x

Q How about Roberto? You said he stabbed Catalino. What weapon did he use in
stabbing at your uncle?

A He used a pisaw, a small bolo. Maybe it was pisaw.(Witness indicating a length of

one-third of a meter.)

x          x           x

Q Did you see Pedro Hecto actually fire upon Catalino Pedrosa?

A Yes, sir.

Q Was Catalino hit?

A Maybe, he was hit because Catalino was just in front of Pedro and whose position was
lying face upwards.

Q When Jesus Hecto fired upon Catalino Pedrosa, referring to the second shot you saw,
was Pedro around?

A Yes, sir. He was around. (pp. 243, 244, 245, 247, tsn., September 9, 1975 hearing)

x          x           x

Q When for the first time did you see Pedro Hecto in the scene of the incident?

A I saw them when they were going to the waiting shed. I saw Jesus Hecto, Pedro
Hecto, Marcial Hecto, Roberto Silvano going to the waiting shed." (p. 450, tsn., June 3,
1976 hearing)

Thus, it is clear that Mrs. Caridad Pedrosa and Mario Cadayong saw the killing of the
victim, Catalino Pedrosa Considering the concerted action of Jesus Hecto, appellants
Pedro and Loreto Hecto, Marcial Hecto, Roberto and Faustino Silvano, conspiracy
among them has been successfully established by the prosecution. While their
companions were slaying the deceased, appellant Loreto Hecto and Faustino Silvano
were by the stairs of the house of Catalino to prevent any assistance which could come
therefrom. After they had accomplished their criminal or unlawful purpose, they left
together. Time and again We have ruled that concert of action at the time of
consummating a crime and the form and manner in which assistance is rendered to the
person or persons inflicting the fatal wounds on their victim determine complicity where
it would not be otherwise evident. In a conspiracy, all are liable for the acts of one.
chanrobles.com : virtual law library

The fact that appellants went into hiding after the incident is evidence of guilt. Pedro
Hecto was arrested two months later in Tacloban City, while Loreto Hecto presented
himself before the authorities in March 1974 or after two years. Their three companions
have not yet been arrested up to now.

Against the testimony of the People’s witnesses, appellants Loreto and Pedro Hecto
claim that they were elsewhere when the killing took place. Well established is the rule
that where the accused have been positively identified by witnesses as perpetrators of
the offense, the defense of alibi is futile and unavailing.

We now come to the contention of the defense that the trial court erred in convicting
them of the complex crime of murder with assault upon a person in authority. They
pointed out that when the barangay captain was killed he was not in actual
performance of his official duties. Be that as it may, the fact is, the attack on the
deceased was occasioned by the official duties done by him. As the barangay captain, it
was his duty to enforce the laws and ordinances within the barangay. If in the
enforcement thereof he incurs the enmity of his people who thereafter treacherously
slew him, the crime committed is murder with assault upon a person in authority. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

WHEREFORE, the appealed judgment is hereby AFFIRMED with the modification that for
lack of necessary votes the sentence is reduced to reclusion perpetua and the
indemnity increased to P30,000.00. With costs.

SO ORDERED.
 SECOND DIVISION

G.R. No. 118707. February 2, 1998

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. FERNANDO VIOVICENTE y

GONDESA, Accused-Appellant.

DECISION

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:1cräläwvirtualibräry

That on or about the 21st day of July, 1991, in 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, wilfully, 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 amount 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-worker 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
victims 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 victims 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 cräläwvirtualibräry

Tomas Hoyohoy, the victims brother, testified7 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 in 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
examination9 were later issued. For the victims funeral, the family incurred P9,000.00 in
expenses.10cräläwvirtualibräry

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 victims 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-appellants 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 mothers house and, after
eating, went to the house of his cousins, Maning and Duras. It was there where he was
arrested. Accused-appellants mother, Filomena Canlas, corroborated his alibi. 14 cräläwvirtualibräry

The Regional Trial Court of Quezon City (Branch 92) 15 convicted accused-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 Appeals16 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 appellants 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-appellants brief contains the following assignment of errors:

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. This
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, 3717 simply requires for
admissibility of an ante mortem  statement that (a) it must concern the crime and the
surrounding circumstances of the declarants 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 Hoyohoys 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
his 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 hospital20 implying that he did not then make
a statement because the matter was under investigation.

Second.  Actually, the trial courts decision is anchored mainly on the testimony 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, Maam.

Q I am asking you the right shoulder?

A Fernando Viovicente.
Q And who held Hoyohoys left shoulder?

A Alias Balweg.

Q Do you know the complete name of Alias Balweg?

A No, Maam, 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, Maam.

Q What was Maning holding at the time?

A A bolo, Maam.

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, Maam.

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

A Yes, Maam.

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, Maam.

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 Maam.

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, Maam.

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 courts finding as to his testimony is entitled to great respect.
Indeed unless the trial judge plainly overlooked certain facts of substance and value
which, if 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 latters bare and self-serving
denials.22
cräläwvirtualibräry

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 accused. In addition, accused-appellants defense is weakened by
the inconsistencies between his testimony and his mothers. 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 cräläwvirtualibräry

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 cräläwvirtualibräry

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 P50,000.00, as civil indemnity for the
death of Fernando Hoyohoy.

SO ORDERED.

Regalado (Chairman), Melo, Puno and Martinez, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-27434 September 23, 1986

GENARO GOÑI, RUFINA P. vda. DE VILLANUEVA, VIOLA P. VILLANUEVA, OSCAR P.

VILLANUEVA, MARINA P. VILLANUEVA, VERNA P. VILLANUEVA, PRAXEDES P.
VILLANUEVA, JR., JOSE P. VILLANUEVA, SAMUEL P. VILLANUEVA, LOURDES P.
VILLANUEVA, MILAGROS P. VILLANUEVA DE ARRIETA, petitioners-appellants,
vs.
THE COURT OF APPEALS and GASPAR VICENTE, respondents-appellees.

Ambrosio Padilla Law Office for petitioners-appellants.

San Juan, Africa, Gonzales & San Agustin Law Office for respondents-appellees.

FERNAN, J.:

This is an appeal by certiorari from the decision of the then Court of Appeals in CA-G.R. No. 27800-
R entitled, "Gaspar Vicente, Plaintiff-Appellant, vs. Genaro Goni, et. al., Defendants-Appellants" as
well as from the resolution denying petitioners' motion for reconsideration.

The factual backdrop is as follows:

The three (3) haciendas known as San Sebastian, Sarria and Dulce Nombre de Maria situated in the
Municipality of Bais, Negros Oriental, were originally owned by the Compania General de Tabacos
de Filipinas [TABACALERA]. Sometime in 1949, the late Praxedes T. Villanueva, predecessor-in-
interest of petitioners, negotiated with TABACALERA for the purchase of said haciendas. However,
as he did not have sufficient funds to pay the price, Villanueva with the consent of TABACALERA,
offered to sell Hacienda Sarria to one Santiago Villegas, who was later substituted by Joaquin
Villegas. Allegedly because TABACALERA did not agree to the transaction between Villanueva and
Villegas, without a guaranty private respondent Gaspar Vicente stood as guarantor, for Villegas in
favor of TABACALERA. The guarantee was embodied in a document denominated as "Escritura de
Traspaso de Cuenta."  1

Either because the amount realized from the transaction between Villanueva and Villegas still fell
short of the purchase price of the three haciendas, or in consideration of the guaranty undertaken by
private respondent Vicente, Villanueva contracted or promised to sell to the latter fields nos. 3, 4 and
13 of Hacienda Dulce Nombre de Maria for the sum of P13,807.00. This agreement was reduced to
writing and signed by petitioner Genaro Goni as attorney-in-fact of Villanueva, thus:

En consideracion a la garantia que Don Gaspar Vicente assume con la Cia. Gral. de
Tabacos de Filipinas por el saldo de Don Santiago Villegas de P43,539.75 asumido
por Don Joaquin Villegas el que Subscribe Praxedes T. Villanueva se compromete
ceder es venta a Don Gaspar Vicente los campos nos. 3, 4 y 13 del plano de
porcelario de la Hacienda Dulce Nombre de Maria, en compra projectada de la Cia.
 Gral. de Tabacos de Filipinas. Estas campos representan 6-90-35 hectares por valor
de P13,807.00 que Don Gasper Vicente pagara directamente a Praxedes T.
Villanueva

Bais Central, Octubre 24, 1949.

Fdo. Praxedes T. Villanueva

Por: Fdo Genaro Goñi Apoderado 2

Private respondent Vicente thereafter advised TABACALERA to debit from his account the amount
of P13,807.00 as payment for the balance of the purchase price. However, as only the amount of
P12,460.24 was actually needed to complete the purchase price, only the latter amount was debited
from private respondent's account. The difference was supposedly paid by private respondent to
Villanueva, but as no receipt evidencing such payment was presented in court, this fact was
disputed by petitioners.

It is alleged by petitioners that subsequent to the execution of the contract/promise to sell, Villanueva
was able to raise funds by selling a property in Ayungon, Negros Oriental. He thus went to private
respondent Vicente for the purpose of rescinding the contract/promise to sell However, as the
amount of P12,460.24 had already been debited from private respondent's account, it was agreed
that lots 4 and 13 of the Hacienda Dulce Nombre de Maria would merely be leased to private
respondent Vicente for a period of five (5) years starting with crop-year 1950-51 at an annual rental
of 15% of the gross income, said rent to be deducted from the money advanced by private
respondent and any balance owing to Villanueva would be delivered by Vicente together with the
lots at the end of the stipulated period of lease.

On December 10, 1949, TABACALERA executed a formal deed of sale covering the three
haciendas in favor of Villanueva. Fields Nos. 3, 4 and 13 of the Hacienda Dulce Nombre de Maria
were thereafter registered in the name of Villanueva under TCT No. T-4780 of the Register of Deeds
of Negros Oriental. The fields were likewise mortgaged by Villanueva to the Rehabilitation Finance
Corporation (RFC), later transferred to the Philippine National Bank on December 16, 1955, for a
total indebtedness of
P334,400.00. 3

Meanwhile, Fields nos. 4 and 13 were delivered to private respondent Vicente after the 1949-1950
milling season in January and February, 1950.

On June 17, 1950, Villanueva executed a "Documento de la Venta Definitive" in favor of Joaquin
Villegas, covering Lot No. 314 of the Cadastral Survey of Bais with an area of 468,627 square
meters, more or less. (Hacienda Sarria). A supplemental instrument was later executed by
Villanueva in favor of Villegas to include in the sale of June 17, 1950 the sugar quota of the land.

On November 12, 1951, Villanueva died. Intestate proceedings were instituted on November 24,
1951 before the then Court of First Instance of Negros Oriental, docketed as Special Case No. 777.
Among the properties included in the inventory submitted to the court were fields nos. 3, 4 and 13 of
Hacienda Dulce Nombre de Maria. Field no. 13 with an area of 1 hectare, 44 ares and 95 centares
was listed as Lot no. 723 of the inventory while fields nos. 3 and 4, with areas of 3 hectares, 75 ares
and 60 centares, and 1 hectare, 69 ares and 80 centares, respectively, were included in Lot no. 257
of the inventory.
On October 7, 1954, the day before the intestate proceedings were ordered closed and the estate of
the late Praxedes Villanueva delivered to his heirs, private respondent Vicente instituted an action
for recovery of property and damages before the then Court of First Instance of Negros Oriental
against petitioner Goñi in his capacity as administrator of the intestate estate of Praxedes
Villanueva. In his complaint docketed as Civil Case No. 2990, private respondent Vicente sought to
recover field no. 3 of the Hacienda Dulce Nombre de Maria, basing his entitlement thereto on the
contract/promise to sell executed by the late Praxedes Villanueva in his favor on October 24, 1949.
He likewise prayed by way of attorney's fees and other costs the sum of P2,000.00 and for such
other further relief which the court may deem just and equitable in the premises.  4

On October 25, 1954, petitioner Goni as defendant in Civil Case No. 2990, filed an answer with
counterclaim for accounting of the produce of fields nos. 4 and 13, as well as the surrerder thereof
on June 20, 1955, the end of the fifth crop-year, plus moral damages in the sum of P30,000.00 and
P3,000.00 as attorney's fees. After an answer to the counter-claim had been filed, private
respondent Vicente amended his complaint on September 1, 1955, to include a prayer for damages
representing the produce of field no. 3 from 1949-50 until delivery thereof to him. An answer with
counterclaim to the amended complaint was duly filed, and on April 25, 1956, private respondent
Vicente amended his complaint anew to include as parties-defendants the heirs of the late Praxedes
Villanueva.

On July 13, 1957, the parties entered into a stipulation of facts, agreeing, among others, on the costs
of production and produce of the three fields in question. The case thereafter proceeded to trial.
Plaintiff presented two (2) witnesses: then party-plaintiff Gaspar Vicente, himself, who over the
objection of therein defendants testified on facts occurring before the death of Praxedes Villanueva,
and Epifanio Equio a clerk of TABACALERA Agency in the Bais Sugar Central. Defendants
presented Genaro Goni, who testified on the alleged verbal lease agreement.

On December 18, 1959, the trial court rendered a decision ordering therein defendants-heirs to
deliver to Gaspar Vicente field no 3, to execute a formal deed of sale covering fields nos. 3, 4 and 13
in favor of Vicente, to pay the latter actual or compensatory damages in the amount of P 81,204.48,
representing 15% of the total gross income of field no. 3 for crop-years 1950-51 to 1958-59, and
such other amounts as may be due from said field for the crop years subsequent to crop-year 1958-
59, until the field is delivered to Vicente, and to pay the sum of P2,000.00 as attorney's fees plus
costs. Therein defendant Goñi was relieved of any civil liability for damages, either personally or as
administrator of the estate. 
5

Both parties appealed the decision to the then Court of Appeals; the plaintiff from the portion
awarding damages on a claim that he was entitled to more, and defendants, from the entire decision.

On December 15, 1966, the Court of Appeals promulgated its decision, affirming that of the lower
court, with the modification that the amount of damages to be paid by defendant-heirs to the plaintiff
should be the total net income from field no. 3 from the crop year 1950-51 until said field is finally
delivered to the plaintiff plus interest thereon at the legal rate per annum.
6

Petitioners filed a motion for reconsideration, but were denied the relief sought in a resolution dated
February 9, 1967. Hence, the present appeal by certiorari whereby petitioners raise the following
questions of law:

MAY RESPONDENT GASPAR VICENTE TESTIFY ON MATTERS OF FACT

OCCURRING BEFORE THE DEATH OF PRAXEDES T. VILLANUEVA, WHICH
CONSTITUTES A CLAIM OR DEMAND UPON HIS ESTATE. IN VIOLATION OF
RULE 123, SEC, 26, PAR. (C), NOW RULE 130, SEC. 20 PAR. (A)?
 MAY NOT A WRITTEN PROMISE TO SELL DATED OCTOBER 24,1949 BE
NOVATED INTO A VERBAL AGREEMENT OF LEASE DURING THE LIFETIME OF
THE PROMISSOR, WHOSE DEATH OCCURRED ON NOVEMBER 12, 1951, BY
FACTS AND CIRCUMSTANCES SUBSTANTIATED BY COMPETENT ORAL
EVIDENCE IN THIS CASE?

SHOULD THE PROMISEE IN A PROMISE TO SELL, WHO PAID P12,460.24

WHICH WAS TO BE ACCOUNTED AND TO BE CREDITED AS RENTALS AFTER
FIVE (5) YEARS OF LEASE, WHO IN HIS ORIGINAL COMPLAINT DID NOT
ALLEGE NOR PROVE DAMAGES, EXCEPT THE SUM OF P2,000.00 AS
ATTORNEY'S FEES, RECEIVE A JUDGMENT FOR DAMAGES IN THE AMOUNT
OF P74,056.35 WHICH CONSISTS OF P37,121.26 PLUS LEGAL INTEREST FOR
THE CROP YEARS 1950-51 TO 1958-59 AND FOR P3,624.18 TO P4,374.78 FOR
EVERY CROP YEAR SUBSEQUENT TO 1958-59 PLUS
INTEREST? 7

We find that neither the trial nor appellate court erred in ruling for the admissibility in evidence of
private respondent Vicente's testimony. Under ordinary circumstances, private respondent
Vicente   would be disqualified by reason of interest from testifying as to any matter of fact occurring before the death of Praxedes T.
8

Villanueva, such disqualification being anchored on Section 20(a) of Rule 130, commonly known as the Survivorship Disqualification Rule or
Dead Man Statute, which provides as follows:

Section 20. Disqualification by reason of interest or relationship.-The following

persons cannot testify as to matters in which they are interested, directly or indirectly,
as herein enumerated:

(a) Parties or assignors of parties to a case, or persons in whose behalf a case is

prosecuted, against an executor or administrator or other representative of a
deceased person, or against a person of unsound mind, upon a claim or demand
against the estate of such deceased person or against such person of unsound mind,
cannot testify as to any matter of fact occurring before the death of such deceased
person or before such person became of unsound mind.

The object and purpose of the rule is to guard against the temptation to give false testimony in
regard to the transaction in question on the part of the surviving party and further to put the two
parties to a suit upon terms of equality in regard to the opportunity of giving testimony.  It is designed to 9

close the lips of the party plaintiff when death has closed the lips of the party defendant, in order to remove from the surviving party the
temptation to falsehood and the possibility of fictitious claims against the deceased. 10

The case at bar, although instituted against the heirs of Praxedes Villanueva after the estate of the
latter had been distributed to them, remains within the ambit of the protection. The reason is that the
defendants-heirs are properly the "representatives" of the deceased, not only because they
succeeded to the decedent's right by descent or operation of law, but more importantly because they
are so placed in litigation that they are called on to defend which they have obtained from the
deceased and make the defense which the deceased might have made if living, or to establish a
claim which deceased might have been interested to establish, if living.  11

Such protection, however, was effectively waived when counsel for petitioners cross-examined
private respondent Vicente. "A waiver occurs when plaintiff's deposition is taken by the
representative of the estate or when counsel for the representative cross-examined the plaintiff as to
matters occurring during deceased's lifetime.   It must further be observed that petitioners presented a counterclaim
12

against private respondent Vicente. When Vicente thus took the witness stand, it was in a dual capacity as plaintiff in the action for recovery
of property and as defendant in the counterclaim for accounting and surrender of fields nos. 4 and 13. Evidently, as defendant in the
counterclaim, he was not disqualified from testifying as to matters of fact occurring before the death of Praxedes Villanueva, said action not
having been brought against, but by the estate or representatives of the estate/deceased person.

Likewise, under a great majority of statutes, the adverse party is competent to testify to transactions
or communications with the deceased or incompetent person which were made with an agent of
such person in cases in which the agent is still alive and competent to testify. But the testimony of
the adverse party must be confined to those transactions or communications which were had with
the agent.   The contract/promise to sell under consideration was signed by petitioner Goñi as attorney-in-fact (apoderado) of Praxedes
13

Villanueva. He was privy to the circumstances surrounding the execution of such contract and therefore could either confirm or deny any
allegations made by private respondent Vicente with respect to said contract. The inequality or injustice sought to be avoided by Section
20(a) of Rule 130, where one of the parties no longer has the opportunity to either confirm or rebut the testimony of the other because death
has permanently sealed the former's lips, does not actually exist in the case at bar, for the reason that petitioner Goñi could and did not
negate the binding effect of the contract/promise to sell. Thus, while admitting the existence of the said contract/promise to sell, petitioner
Goñi testified that the same was subsequently novated into a verbal contract of lease over fields nos. 4 and 13 of the Hacienda Dulce
Nombre de Maria.

Novation takes place when the object or principal condition of an obligation is changed or altered.  14
 In
order, however, that an obligation may be extinguished by another which substitutes the same, it is imperative that it be so declared in
unequivocal terms, or that the old and the new obligations be on every point incompatible with each other.   "Novation is never presumed. It
15

must be established that the old and the new contracts are incompatible in all points, or that the will to novate appear by express agreement
of the parties or in acts of equivalent import. 16

The novation of the written contract/promise to sell into a verbal agreement of lease was clearly and
convincingly proven not only by the testimony of petitioner Goñi, but likewise by the acts and
conduct of the parties subsequent to the execution of the contract/promise to sell. Thus, after the
milling season of crop year 1949-50, only fields nos. 4 and 13 were delivered to private respondent
Vicente. Fields nos. 3, 4 and 13 were subsequently registered in Villanueva's name and mortgaged
with the RFC. Villanueva likewise executed a deed of sale covering Hacienda Sarria in favor of
Joaquin Villegas. All these were known to private respondent Vicente, yet he did not take any steps
toward asserting and/or protecting his claim over fields nos. 3, 4 and 13 either by demanding during
the lifetime of Villanueva that the latter execute a similar document in his favor, or causing notice of
his adverse claim to be annotated on the certificate of title of said lots. If it were true that he made
demands on Villanueva for the surrender of field no. 3 as well as the execution of the corresponding
deed of sale, he should have, upon refusal of the latter to do so, immediately or within a reasonable
time thereafter, instituted an action for recovery, or as previously observed, caused his adverse
claim to be annotated on the certificate of title. Considering that field no. 3, containing an area of
three (3) hectares, 75 ares and 60 centares, is the biggest among the three lots, an ordinary prudent
man would have taken these steps if he honestly believed he had any right thereto. Yet, private
respondent Vicente did neither. In fact such inaction persisted even during the pendency of the
intestate proceedings wherein he could have readily intervened to seek exclusion of fields nos. 3, 4
and 13 from the inventory of properties of the late Praxedes Villanueva.

The reason given by private respondent Vicente that field no. 3 was not delivered to him together
with fields nos. 4 and 13 because there were small sugar cane growing on said field at that time
belonging to TABACALERA, might be taken as a plausible explanation why he could not take
immediate possession of lot no. 3, but it certainly could not explain why it took him four years before
instituting an action in court, and very conveniently, as petitioners noted, after Villanueva had died
and at the time when the verbal contract of lease was about to expire.

Both the trial and appellate courts chose to believe in the contract/promise to sell rather than the
lease agreement, simply because the former had been reduced to writing, while the latter was
merely verbal. It must be observed, though, that the contract/promise to sell was signed by petitioner
Goñi as attorney-in-fact of the late Praxedes Villanueva, an indication, to our mind, that final
arrangements were made by petitioner Goñi in the absence of Villanueva. It was therefore natural for
private respondent Vicente to have demanded that the agreement be in writing to erase any doubt of
its binding effect upon Villanueva. On the other hand, the verbal lease agreement was negotiated by
and between Villanueva and private respondent Vicente themselves. Being close friends and
relatives   it can be safely assumed that they did not find it necessary to reduce the same into writing.
17

In rejecting petitioners' contention respecting the verbal lease agreement, the appellate court put
much weight on the failure of petitioners to demand an accounting of the produce of fields nos. 4 and
13 from 1950 to 1954, when the action for recovery of property was filed. Such failure was
satisfactorily explained by petitioners in their motion for reconsideration filed before the then Court of
Appeals, in this manner:

... Mr. Genaro Goni is also a farmer by profession and that there was no need for him
to demand a yearly accounting of the total production because the verbal lease
agreement was for a term of 5 years. The defendant Mr. Genaro Goni as a sugar
planter has already full knowledge as to the annual income of said lots nos. 4 and 13,
and since there was the amount of P12,460.25 to be liquidated, said defendant never
deemed it wise to demand such a yearly accounting. It was only after or before the
expiration of the 5 year lease that said defendant demanded the accounting from the
herein plaintiff regarding the production of the 2 lots that were then leased to him.

It is the custom among the sugar planters in this locality that the Lessee usually
demands an advance amount to cover the rental for the period of the lease, and the
demand of an accounting will be only made after the expiration of the lease period. It
was adduced during the trial that the amount of P12,460.75 was considered as an
advance rental of the 2 lots which was leased to the Plaintiff, lots nos. 4 and 13; so
we humbly believe that there was no necessity on the part of defendant Mr. Genaro
Goñi to make a yearly demand for an accounting for the total production of 2 parcels
leased to the plaintiff. 18

Petitioners, having clearly and sufficiently shown that the contract/promise to sell was subsequently
novated into a verbal lease agreement, it follows that they are entitled to a favorable decision on
their counterclaim. Discussion of the third issue raised therefore becomes unnecessary.

WHEREFORE, the decision appealed from is hereby reversed. The judicial administrator of the
estate of private respondent Gaspar Vicente and/or his successors-in-interest are hereby ordered to:
a) surrender possession of fields nos. 4 and 13 of the Hacienda Dulce Nombre de Maria to
petitioners; b) render an accounting of the produce of said fields for the period beginning crop-year
1950-51 until complete possession thereof shall have been delivered to petitioners; and c) to pay the
corresponding annual rent for the said fields in an amount equivalent to 15% of the gross produce of
said fields, for the periods beginning crop-year 1950-51 until said fields shall have been surrendered
to petitioners, deducting from the amount due petitioners the sum of P12,460.24 advanced by
private respondent Gaspar Vicente.

SO ORDERED.
 EN BANC

[G.R. No. 30472. January 20, 1930.]

MARIANO MARALIT AND EMETERIO LOTA, Plaintiffs-Appellants, v. REYNALDO

LARDIZABAL, as judicial administrator of the estate of Germana Solis, Defendant-
Appellant.

Jose V. Villapando,, for Plaintiffs-Appellants.

Guevara, Francisco & Recto,, for Defendant-Appellant.

SYLLABUS

1. PLEADING AND PRACTICE; COMPETENCY OF WITNESSES. — Section 383 of the

Code of Civil Procedure, providing that parties or assignors of parties to an action or proceeding,
or persons in whose behalf an action or proceeding is prosecuted against an executor or
administrator or other representative of a deceased person, upon a claim or demand against the
estate of such deceased person, cannot testify as to any matter of fact occurring before the death
of such deceased person, is applicable where the deceased died either or after the suit filed
against him, if, since the reason for the prohibition, which is to discourage perjury, exists in both
instances.

DECISION

AVANCEÑA, C.J.  :

On February 15, 1920, the deceased Germana Solis entered into a contract with the
plaintiffs for the repair of her house situated in the municipality of Lipa, Province of
Batangas, for the sum of P14,000.

Plaintiffs allege that they have performed the work, but have only received P11,550
from Germana Solis, thus leaving a balance of P2,450 due them according to the
contract. They also allege that they performed additional work not included in the
contract. They pray that the defendant, who is the judicial administrator of the intestate
estate of Germana Solis, be ordered to pay them the remainder of the price stipulated
in the contract, the value of the additional work done, and damages, which they allege
they sustained by reason of the contract.
The defendant, on the other hand, filed a cross-complaint for the foreclosure of the
mortgage given by the plaintiff, Mariano Maralit, to secure the fulfillment of his
obligations under the contract, and a counterclaim for the value of the materials and
labor engaged by defendant on account of the plaintiff’s having abandoned the work,
and for damages caused by the delay in the completion thereof.

The court below ordered the defendant to pay the plaintiffs the sum of P2,450, being
the unpaid balance of the price stipulated in the contract, with legal interest from the
date of the filing of the complaint, namely, January 17, 1926; absolved the defendant
from the other causes of action, and absolved the plaintiff’s from the counterclaim and
the cross-complaint. From this decision both parties appealed.

One of the errors assigned by the plaintiff’s to the court below is its failure to adjudge
the defendant in default, and its admission of the demurrer and answer filed by the
defendant after the period fixed for their presentation. At any rate, according to section
110 of the Code of Civil Procedure, it is within the discretion of the trial court to admit
these pleadings even after the same time fixed for their presentation. Not only do we
find that the trial court did not made use of it, considering that the defendant did not
file his demurrer and his answer within the legal period, because he awaited first the
ruling on his petition deprecating the plaintiff’s appeal from the resolution of the
committee on claims and appraisal.

The appellants also contend that the trial court committed an error in the rejection of
Exhibit C. Neither is there any merit in this assignment of error, for it appears that this
exhibit was only prepared during the trial of this case. And, even taking it into account,
it is valueless to prove the additional work alleged by the plaintiffs to have been
performed by them, for it contains no specification but simply the partial totals of the
amounts expended on said alleged additional work.

As to the court’s having refused to admit the testimony of plaintiff Mariano Maralit to
prove that the deceased Germana Solis, in the course of the work, ordered some
additional repairs to be made not included in the contract, neither do we find any error
in this conclusion, based upon section 383, paragraph 7 of the Code of Civil Procedure.
It is alleged that this provision is inapplicable because Germana Solis died only after the
complaint had been filed against her. But the law does not state that it only refers to
cases where the deceased died before the action was instituted. Moreover, the purpose
of the prohibition, which is to discourage perjury may be applied where the deceased
died either before or after the filing of the suit against her, if, when the testimony is
given, she is already dead and cannot disprove it.

As to the rest, a careful examination of the contract between parties and the additional
work alleged, leads to the same conclusion as that reached by the court below, that
said additional work may well come within the general terms of the contract, and that,
if there appears to be any, the evidence does not support the allegation.

With regard to the counterclaim filed by the defendant, we likewise agree with the trial
court that the expenses alleged to have been incurred by the defendant may have been
incurred upon the additional work admitted by the court below, although the evidence
contains no specification, or upon the old house not referred to in the contract. The
same may be said of the labor. The defendant admits that not all the materials listed in
Exhibit 1 were employed in repairs under the contract, and this exhibit contains
expenditures made subsequent to the delivery of the house.

With respect to the materials taken from the old house and used by the plaintiff in the
repairs, the latter is not bound to pay for them, for, although he undertook to pay for
the materials, the contract calls only for the enlargement and remodelling of the old
house, and he was therefore authorized to utilize the useful materials of the house
itself, if, as in this case, there is no agreement to the contrary.

As regards the P300 claimed as damages for the faulty construction of the azotea, the
repairs having not yet been made, this amount cannot be accepted as the exact cost.
The defendant’s mere statement to this effect is not sufficient as it does not appear that
he is an expert.

Upon the question of the damages claimed on account of the delay of one hundred
eighty six days in the completion of the work, the fact that the plaintiff performed some
additional work for the improvement of the house excuses him.

Wherefore, the judgment appealed from is affirmed, without costs. So ordered.

Johnson, Street, Villamor, Johns and Villa-Real, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-45470 February 28, 1985

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GREGORIO LAQUINON, alias "JOLLY", defendant-appellant.

CONCEPCION, JR., J.:

Accused Gregorio Laquinon was charged with the crime of murder in the Court of First Instance of
Davao del Sur for the killing of Pablo Remonde, coated as follows:

That on or about November 13, 1972, in the Municipality of Hagonoy, Province of

Davao del Sur, Philippines, and within the jurisdiction of this Honorable Court, the
above named accused, with treachery and evident premeditation, armed with a gun
and with intent to kill, did then and there willfully, unlawfully and feloniously shoot one
Pablo Remonde with said weapon, inflicting upon the latter wounds which caused his
death.

After the trial, the lower court rendered a decision finding the accused guilty of the crime charged
and sentenced him as follows:

IN VIEW OF ALL THE FOREGOING, the Court finds the accused guilty beyond
reasonable doubt of the crime of murder, and imposes upon him the penalty
of reclusion perpetua (Art. 248, Revised Penal Code); to indemnify the heirs of the
deceased in the sum of P 12,000.00 and to pay the costs.

From the foregoing judgment, accused Gregorio Laquinon interposed the present appeal.

The People's version of the case is as follows:

On November 13, 1972, at about 11:30 o'clock in the evening, Samama Buat, barrio
captain of Clib, Hagonoy, Davao del Sur, was at his residence in barrio Clib. In a
short while he heard gunshots coming from the bank of a river some three hundred
meters to the south of his house (pp. 4-6, tsn, Dec. 8, 1975). Then, his brother,
Leocario Buat, arrived and told him that a man was shouting for help at the bank of
the river. Samama Buat told his brother to call the barrio councilman. Thereafter, he
proceeded to the place where the unidentified man was. His brother, Leocario and
the barrio councilman also arrived there. Samama Buat found the man lying on the
sand and asked who he was. The man answered, "I am Pablo Remonde" (pp 7-
10, Id.). Remonde's two hands were tied on his back. He was lying face down (p. 10,
Id).
 Samama Buat then took the "ante mortem" statement of Pablo Remonde. He asked
him who he was to which he answered that he was Pablo Remonde. Samama Buat
asked "who shot you" and Remonde said that it was Gregorio Laquinon. He asked
Pablo Remonde whether from the gunshot wounds he suffered he would survive to
which the victim answered "I do not know" (pp. 11, 19, 21, Id.; see also Exh. A,
Folder of Exhibits). After that, barrio captain Buat went to the municipality of Hagonoy
and reported to Vice Mayor Antonio Biran the shooting of Pablo Remonde. Vice
Mayor Biran went to the scene of the incident and asked the victim who shot him to
which the latter answered that he was shot by Gregorio Laquinon (pp. 21 A to 23,
tsn, Dec. 8, 1975). Pablo Remonde was placed on a jeep of the Vice Mayor and
brought to the hospital (p. 23, Id,). Pablo Remonde was admitted to the Canos
Hospital in Digos, Davao del Sur where he was attended to by Dr. Alfonso Llanos.
Dr. Llanos performed an operation on the victim from whose body a slug was
recovered (pp. 15-16, tsn, Jan. 26, 1976; Exh. B). Pablo Remonde died in the
hospital on November 16, 1972 because of bullet wounds (pp. 17-20, tsn, Jan. 26,
1976; see also clinical chart. Exh. C, Folder of Exhibits).

The accused Gregorio Laquinon denied having killed the deceased. The trial court summarized his
defense, as follows:

In his defense, the accused declared that he was a KM member; that he was ordered
by one Noli Cabardo, then their CO, to fetch Pablo Remonde; he requested one
Cristino Nerosa to go with him, and matter of factly, they brought Remonde to the
place where said CO Cabardo with ten companions, was waiting at the riverbank;
that before reaching the place, Nerosa separated from him and he alone brought
Remonde to Cabardo. There Cabardo confronted Remonde why, having been
commanded to buy some provisions in Matanao, he (Remonde) never returned; to
which Remonde answered that he spent the money 'in drinking and gambling; when
upon Cabardo got mad and as Remonde attempted to escape, he (witness) heard a
shot which must have been fired by Cabardo as he was holding a .38 Cal. revolver;
that he (witness) also had that evening a Cal. 22 paltik; that after the shot he saw
Remonde sprawled on the ground, and then Cabardo ordered them to go to the
mountain as in fact they did; that two days later during the day, their mountain camp
was raided by the PC and Cabardo and two others were killed while he (witness) was
able to escape and went to Magpet, North Cotabato, and engaged in farming therein
with his relatives; but believing that as a KM member he 'cmmitted something,' he
surrendered to the Davao PC Barracks in May, 1975 (Exhibit '2'), where up to now he
is being confined.

The accused-appellant prays for the reversal of the appealed judgment on the ground that the lower
court erred in finding him guilty of the crime charged on the basis of the statement attributed to the
deceased Pablo Remonde which reads:

Q State your name and other personal circumstances.

A Pablo Remonde y Saballa, 24 years old, laborer and resident of

Pob. this mun.

Q Who shot you?

 A Mr. Laquinon, a person who ran for councilor before the ticket of
Liberal last local election and son of Suelo Maravllias whose name I
don't know.

Q Why you were shot by said persons above?

A They are suspecting me that I'm an informer of Vice Mayor Viran

regarding KM .

Q Do you think you'll die with your wound?

A I don't know sir.

The accused-appellant argues that the foregoing statement is inadmissible in evidence as an ante-
mortem declaration because it was not executed under a consciousness of an impending death; and
that the deceased was not a competent witness.

The fact that the deceased had named the son of Suelo Maravillas who turned out as Cristino
Nerosa as one of those who shot him in his dying declaration does not make the deceased an
incompetent witness. Nor does it render said dying declaration incredible of belief. The testimony of
the accused that he and Nerosa separated and that he alone brought the deceased to Noli Cabardo
is not corroborated. It may be that Nerosa was with the accused when the latter shot the deceased,
as stated in the dying declaration, but that the accused testified that Nerosa was not with him when
he brought the deceased to Noli Cabardo in order to free Nerosa from criminal liability.

Nor does the testimony of Barrio Captain Samama Buat that the place was dark and that the victim
had told him that he was shot by members of the KM make the deceased an incompetent witness.
On the contrary, it strengthens the statement of the deceased since the accused is a member of the
KM.

But the dying declaration of the deceased Pablo Remonde is not admissible as an ante-mortem
declaration since the deceased was in doubt as to whether he would die or not. The declaration fails
to show that the deceased believed himself in extremist, "at the point of death when every hope of
recovery is extinct, which is the sole basis for admitting this kind of declarations as an exception to
the hearsay rule." 
1

It may be admitted, however, as part of the res gestae since the statement was made immediately
after the incident and the deceased Pablo Remonde had no sufficient time to concoct a charge
against the accused.

On the whole, We are satisfied with the findings of the trial court that the accused was responsible
for the killing of Pablo Remonde. We cite with approval the following observations of the trial court:

Indeed, the Court cannot believe that CO Cabardo did the killing as related by the
accused for the following reasons:

First, when the deceased was allegedly delivered to CO Cabardo, he was already
hand-tied at his back, that the place of the shooting was "covered by thick bushes
and beside the river", and that CO Cabardo was with ten men excluding the accused;
under these circumstances, it is hard to believe that the deceased, with all those
overwhelming handicap, would attempt to flee.
 Second, if the deceased truly tried to flee, the logical thing he would do would be to
flee away from and not towards Cabardo; in doing the former he would turn to his
right or to his left or towards his back; if he fled to his left or right, or towards his
back, he would be exposing one side of his body, or his back, and when fired upon in
that position he would have been hit on one side of the body or at his back. The
evidence — as testified to by Dr. Llanos — however, shows that the deceased had
only one wound a gunshot wound, in the abdomen; this shows he was fired upon
frontally, the bullet going through and through the intestines and lodged, presumably
in the bony portions of his back, that is why the slug (Exhibit "B") was recovered. The
accused's version, therefore, that the deceased tried to flee is hard to believe for
being against the physical facts.

Now, if the accused is innocent, why should he relate such an incredible version?

Oh what a tangled web they weave when first day practice to deceive.

— Sir
Walter
Scott

With these observations, the Court cannot believe that the accused really delivered
the deceased to CO Cabardo and that it was Cabardo who shot him. As testified to
by him, their mountain camp was raided by the PC two days after the incident, as a
result of which raid Cabardo and two of their companions were killed. The accused
himself was able to escape, went to hide in a relative's farm in faraway Magpet,
North Cotabato, did farming there until one day in May, 1975, repentant that, as a
KM member, he had "committed something", he finally surrendered to the PC
Barracks in Davao City. Cabardo, may he rest in peace, having gone to the other
world, and can no longer speak in his behalf, it is not unlikely that the accused
conceived of this outlandish defense by pointing to CO Cabardo, to free himself from
responsibility.

Most important to remember on this point is that at the time the deceased grade his
"dying" statement, Cabardo was still alive; that per the accused himself, he had no
previous differences with the deceased or with the barrio captain; and that from the
prosecution witness Bo. Capt. Buat when he took the statement of the deceased, the
deceased was feeling strong, surely, under such circumstances it is hard to believe
that the deceased would name the accused with whom he had no quarrel and
Nerosa as his killers if that was really not the truth.

Accused is guilty beyond reasonable doubt of the crime of murder qualified by treachery. The victim
was apparently shot while his two hands were tied at his back. Accused, in shooting the victim,
obviously employed means or force in the execution of the offense which tended directly and
specially to insure its execution without risk to himself arising from the defense which the offended
party might make.

WHEREFORE, with the modification that the indemnity to be paid to the heirs of the deceased is
increased to P30,000.00, the judgment appealed from should be, as it is hereby, AFFIRMED. With
costs against the appellant.

SO ORDERED.
Makasiar (Chairman), Aquino, Abad Santos, Escolin and Cuevas, JJ., concur.