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402 Phil. 166

THIRD DIVISION

[ G.R. No. 130643, January 16, 2001 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. NESTOR SEDUCO, ACCUSED-APPELLANT.

D E C I S I O N

VITUG, J.:

Two criminal indictments were filed against Roberto Millamina, Juan Sasi, John Sasi and Nestor Seduco for the crime of murder and attempted murder, viz:

"Criminal Case No. 46363:
"`The Provincial Prosecutor of Iloilo, through the undersigned accuses ROBERTO MILLAMINA alias `Pakit,' JUAN SASI, JOHN SASI and NESTOR SEDUCO of the crime of Murder, committed as follows:

"That on or about March 23, 1996, in the Municipality of San Joaquin, Province of Iloilo, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, armed with firearm of unknown caliber and bolos, with deliberate intent and decided purpose to kill, conspiring, confederating and mutually helping one another, with treachery, taking advantage of superior strength, with insult or in disregard of respect due to the offended party, on account of his rank, being a member of Sangguniang Bayan of the Municipality of San Joaquin, Province of Iloilo, such fact being known to all of the accused, did then and there willfully, unlawfully and feloniously attack, assault, shoot and hack NOE A. SELIBIO, with the mentioned weapons accused were then provided that time inflicting gunshot wounds and hacked wounds on said Noe A. Selibio which caused his death thereafter.'
"Criminal Case No. 46364:
"`The Provincial Prosecutor of Iloilo, through the undersigned accuses ROBERTO MILLAMINA alias `Pakit,' JUAN SASI, JOHN SASI and NESTOR SEDUCO of the crime of Attempted Murder, committed as follows:

"That on or about March 23, 1996, in the Municipality of San Joaquin, Province of Iloilo, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, armed with firearm of unknown caliber and bolos, with deliberate intent and decided purpose to kill, conspiring, confederating and mutually helping one another, with treachery and taking advantage of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and shoot DAVID M. SELIBIO with the mentioned weapons accused were then provided at that time, thus commencing the commission of a crime of murder directly by overt acts but did not perform all the acts of execution which should produce the offense of Murder by reason of some cause or accident other than the accused spontaneous desistance.'"[1]
Nestor Seduco surrendered to the authorities. He entered a plea of "not guilty" when arraigned. The three other accused remained at large.

The case for the prosecution. -

On 23 March 1996, around seven o'clock in the morning, David Selibio, a member of the Sangguniang Bayan, was at Barangay Igdagmay, San Joaquin, Iloilo, together with Noe Selibio and Rommel EspaƱola, to attend the town fiesta on the invitation of the Barangay Captain. While walking along a pathway in the hilly part of the barangay, they were suddenly shot at. At a distance of about eight meters, accused Roberto Millamina, firing a homemade shotgun, shot and hit Noe Selibio. David Selibio who was about two meters away from Noe instinctively "jumped over a slope." He could see from where he sought cover Juan Sasi, Nestor Seduco, and John Sasi, armed with bolos and shotguns, surge in and strike Noe with their bolos. David fled from the scene and proceeded to the house of the Barangay Captain. He, together with his cousins, went back to the ambush-site and brought Noe, now severely wounded, to the hospital. On their way, Noe uttered, "Daw mapatay ako" (I'm about to die), adding, when asked, that Roberto had shot him while Juan, John and Nestor delivered hacking blows on him. Noe did not make it to the hospital alive.

Rodolfo Monserrate, Jr., was in the house of Barangay Captain Selibio of Igdagmay, San Joaquin, Iloilo, at about seven o'clock in the morning of 23 March 1996 when he saw the malefactors suddenly appear from the rice paddy rushing towards Noe Selibio and David Selibio. From a distance of about fifty to sixty meters, he saw Roberto Millamina fire a shot at Noe Selibio. When Noe fell, John Sasi and Nestor Seduco rushed in to finish Noe.

Dr. Tito Doromal conducted an autopsy on the body of Noe and testified that the hack wounds inflicted on the victim were not as fatal as the pellet wounds he took.

The family of the deceased incurred P8,000.00 for the services of the funeral parlor and P500.00 for church services.

The case for the defense. -

The defense had its own version of the incident.
"In the evening of March 22, 1996, accused Nestor Seduco and his wife Grace Seduco were sleeping at their house, at Barangay Lanka, a mountainous barangay of San Joaquin, Iloilo some 21 kilometers away from the town proper;

"At about 4:30 o'clock in the morning of March 23, 1996, they were awaken by Rene Sasi informing them that Albert Millamina cousin of accused Roberto Millamina and Tomas Sasi cousin of accused Juan Sasi, were killed in the eve of the fiesta of Brgy. Igdagmay, San Joaquin, Iloilo, some twelve (12) kilometers away from Bgy. Langka, San Joaquin, Iloilo;

"As member of the peace maker of San Joaquin, Iloilo, accused Nestor Seduco decided to go to Brgy. Igdagmay, San Joaquin, Iloilo in order to verify what had really happened;

"Accused reached Brgy. Igdagmay, San Joaquin, Iloilo at about 7:00 o'clock in the morning, climbing up and running down the hills and mountains;

"Upon reaching a higher hill, he saw downhill, four persons walking which he later identified as Noe Selibio, David Selibio, Pablo Sambayan and their daughter, walking towards barangay proper of Brgy. Igdagmay, San Joaquin, Iloilo; Suddenly, there were two (2) armed persons who were later identified as Noberto Millamina also known as Roberto Millamina alias `Pakit' and Juan Sasi appeared in front of the four (Taberna, August 22, 1992, pp. 5-9);

"Then, Noe Selibio and David Selibio were told by Roberto Millamina and Juan Sasi to stop while Pablo Sambayan later joined by his wife Concepcion Sambayan and their daughter were allowed to go;

"Noe Selibio and David Selibio were interrogated by Roberto Millamina and Juan Sasi about the death of Albert Millamina and Tomas Sasi that happened in the eve of the fiesta. During the interrogation Juan Sasi and Roberto Millamina were aiming their guns at Noe and David Selibio;

"They were likewise asked about their identities and after it was ascertained that Noe Selibio was the person they were looking for, Roberto Millamina alias `Pakit' squeezed the trigger of his gun (homemade shotgun) aiming at Noe Selibio, however the gun did not fire; Noe Selibio was about to move away raising his arms, however Juan Sasi shot him and Noe Selibio was hit in his chest and he fell to the ground. Roberto Millamina alias `Pakit' (a disabled with small arm and shoulder) cocked again his homemade shotgun but still, it did not fire; then he put his gun to the ground held the victim Noe Selibio by the neck got his bolo and hacked Noe Selibio on his neck and other parts of his body; Juan Sasi was just on guard watching Roberto Millamina hacking Noe Selibio because Noe Selibio was fatally wounded;

"During the interrogation, accused Nestor Seduco was already clapping his hands as warning, in order that the two will not harm David and Noe Selibio, however despite his shout and warning Juan Sasi shot Noe Selibio and Roberto Millamina hacked Noe Selibio;

"Thus accused Nestor Seduco ran towards the two (2) in order to stop Roberto Millamina from further hacking Noe Selibio, however they did not heed him, consequently, he ran towards the barangay proper and shouted to other people to hide because he could no longer prevent the two (2) Roberto Millamina and Juan Sasi;

"Thereafter, the assailants went to the barangay proper of Brgy. Igdagmay following Nestor Seduco; after they left the place, the body of Noe Selibio was brought to the hospital and later was pronounced dead, accused Nestor Seduco on the other hand went home at Brgy. Lanka, San Joaquin, Iloilo;

"In the afternoon of March 23, 1996, accused Nestor Seduco learned that news spreading in the town of San Joaquin, Iloilo, that he was responsible in killing Noe Selibio, thus he went to the town in order to clear his side; however on his way to the town somewhere at Brgy. Siwaragan, San Joaquin, Iloilo he met the policemen of San Joaquin, Iloilo and was invited to go to the police station where he was detained (Tabud, August 26, 1996, pp. 1-2)."[2]
After a protracted trial, the trial court rendered a decision finding accused Nestor Seduco guilty beyond reasonable doubt of murder; it concluded:
"WHEREFORE, premises considered and in the light of the facts obtaining and the jurisprudence aforecited, judgment is hereby rendered finding the accused Nestor Seduco GUILTY BEYOND REASONABLE DOUBT of the crime of Murder in Criminal Case No. 46363 hereby sentencing the aforenamed accused to a penalty of RECLUSION PERPETUA and further condemning said accused to indemnify the heirs of the deceased Noe Selibio the sum of P8,500.00 actual damages and P50,000.00 as death compensation. The same accused, Nestor Seduco, is hereby acquitted in Criminal Case No. 46364 for Attempted Murder for failure of the prosecution to prove his guilt beyond reasonable doubt.

"The accused Nestor Seduco, who is presently detained, is entitled to full credit of his preventive suspension. Issue an alias order of arrest for the other accused Roberto Millamina, Juan Sasi and John Sasi who remained at-large up to the present time. The Warden of the Iloilo Rehabilitation Center is ordered to remit the person of the accused Nestor Seduco to the National Penitentiary at the earliest opportunity."[3]
An appeal was timely interposed to this Court; accused-appellant contended in his appeal brief that -
"1. The trial court erred in finding that accused Nestor Seduco is liable of the crime charged because his bare denial is weak and becomes weaker by the positive identification of the prosecution eyewitnesses, despite the fact that the testimonies of the purported eyewitness are grossly and materially inconsistent and presented just to implicate accused Nestor Seduco to the crime because the real perpetrators Roberto Millamina and Juan Sasi are at large;

"2. The trial court erred in finding that accused Nestor Seduco participated in killing the victim Noe Selibio despite the fact that accused even attempted to stop Juan Sasi and Roberto Millamina from firing and hacking the victim Noe Selibio;

"3. Granting arguendo that accused Nestor Seduco participated in killing the victim Noe Selibio, the trial court erred in not finding that accused is merely an accomplice."[4]
The appeal is bereft of merit.

Accused-appellant was positively identified by witnesses David Selibio and Rodolfo Monserrate, Jr., to have been one of the assailants of Noe Selibio. The two eyewitnesses, whose testimony was unblemished by major flaws, categorically pointed to accused-appellant Nestor Seduco as having delivered hacking blows on Noe Selibio. No ill motive on the part of the eyewitnesses was shown that would have impelled them to implicate accused-appellant.

David Selibio testified:
"QPlease tell us what was that unusual thing that happened?


"AWe were way laid by four (4) persons.


"QAnd do you know these four (4) persons who way laid you?


"AYes, Sir. They were Norberto Millamina, alias Paquit, Juan Sasi, Nestor Seduco and John Sasi.


"QWhy do you know these four (4) persons?


"AI knew them when the incident happened?


"QIs this Millamena in the Courtroom?


"ANo Sir.


"QHow about Juan Sasi?


"A

No Sir.



"QWhat about Jun Sasi?


"ANo Sir.


"QWho is inside the Courtroom?


"ANestor Seduco.


"QCan you identify Nestor Seduco?


"A
Yes, Your Honor. (witness stepped down in the witness stand and went to the accused bench pointing to a person who when asked what his name was, he answered he is Nestor Seduco).


"x x x x x x x x x


QAfter Norberto Millamena shot Noe Selibio, what happened?


"ANoe Selibio fell down with his hands up.


"QHow far were you from Noe Selibio when he was shot?


"ATwo (2) meters.


"QWhat did you do after you saw your companion Noe Selibio hit by the gun of Norberto Millamena?


"AI saw Jun Sasi and Nestor Seduco coming to me and I ran away from them.


"QWhy did you ran away from the group of Norberto Millemena and Jun Sasi?


"A

To save myself.



"COURT:


"QWas Jun Sasi and Nestor Seduco armed when they went towards you?


"AYes, Sir.


"QWhat firearm does Jun Sasi have?


"A`Pugakang.'


"QHow about Nestor Seduco?


"ABolo.


"COURT: Proceed.


"PROSECUTOR


"QWhat about firearm does he carry?


"AShort pugakang.


"Q

You said you escaped because you wanted to save yourself. What have you seen or what have you observed from these four (4) people?



"ANorberto Millamena cocked his pugakang.


"QAfter you saw Norberto Millamena cocked again his pugakang, that was the time you ran away?


"AYes, Sir.


"QWhat about Jun Sasi. Did he fire his firearm?


"ANo, Sir.


"QWhen you ran away from the scene, what happened?


"A

When I leaped in the slope, I heard another shot.



"QFrom whom did the shot come from?


"ATTY. FALCON: Objection, Your Honor.


"COURT: Sustained.


"Q

From whom did the shot emanate?



"AFrom the four (4) persons.


"COURT:


"QAfter you escaped from the group of Norberto Millamena, where did you proceed?


"AI looked at them because I heard chopping sound.


"QWhat was that chopping sound?


"AI saw them hacking Noe Selibio.


"QWho were hacking Noe Selibio?


"ANestor Seduco and Jun Sasi."[5]
Rodolfo Monserrate, Jr., the other eyewitness gave testimony of similar tenor; he declared at the witness stand:
"Q

When you said Noe Selibio was hit by the firing of the gun of alias Paket, what happened to Noe Selibio?



"AHe fell down.


"QAfter Noe Selibio fell down, what happened next?


"AThere were two (2) persons who came near Noe Selibio.


"QFrom where did these two (2) persons come from?


"AThey also suddenly appeared from the rice paddy.


"QWhat have you observed about these two (2) people who newly came out from the rice paddy?


"AThey have an intention towards Noe Selibio.


"COURT:


"QIntention to what?


"AThey are intending to shoot Noe Selibio.


"COURT:



Proceed.



"PROSECUTOR:


"QWhy are they also armed with firearms?


"ANo, sir, they were armed with Talibong.


"COURT:


"Q

What is your basis in telling the court that they have also an intention to attack Noe Selibio, what is your basis?



"AI don't have any basis that they have an intention against Noe Selibio.


"Q
Why are you telling the court that they have bad intention against Noe when you have no basis, so that is a baseless and of no worth?


"AI was referring to the two (2) persons Your Honor that they have an intention against Noe Selibio.


"Q
We are talking about the two (2) persons who later came after Noe fell who allegedly were armed with Talibong? Prosecutor Ventanilla was asking you what did you observe about these two (2) persons armed with talibong who later according to you came near the fallen Noe Selibio?


"A

They went straight to Noe Selibio and help each other in hacking Noe Selibio. The two (2) persons who came behind went towards Noe and hacked Noe Selibio.



"Q

Do you know these two (2) persons armed with talibong?



"AYes, Your Honor.


"QTell the court what is their name?


"AJohn Sasi and Nestor Seduco.


"QDo you personally know these John Sasi and Nestor Seduco?


"AYes, Your Honor.


"COURT:



Proceed.


"PROSECUTOR:


"QWhere was Noe Selibio hit by the hack of Nestor Seduco?


"A
I could not pinpoint where. What I have seen is that he is making the hack left and right direction."[6]
Excerpts from the official police blotter, confirmed by David Selibio at the trial, read:
"PAGE:0145
"ENTRY NO:II
"DATE : 23 Mar 96
"TIME :11:30 AM
- Shooting Incident (Cont'n) - he heard a successive gun fire and the people rattled and he found out that there was a dead person lying down there was a commotion and the gun fire outside the danceground. He further stated that after the commotion subside another person lying dead outside the danceground in line the main gate. He further stated that as a result of said commotion the peacemaker Lony Sapalaran Y Sayomac, 30 years old, single, a resident of Brgy. Igdagmay, this mplty was also wounded and was rushed to the hospital for treatment. He further stated that on or about 230700H Mar 96, together with Noe Selibio Y Armonio, 31 years old, single, farmer, a resident of Brgy. Danawan, this mplty were walking towards the house of Punong Barangay Eliseo Selibio of Brgy. Igdagmay, this mplty to drink coffee they were halted by Norberto Millamena Y Sasi, Alias `Pakit,' holding his long Homemade Shotgun and after knowing Noe Selibio he immediately shot Noe Selibio hitting at the front portion of the body and when Noe Selibio fall on the ground John Sasi, Lito Millamena and Nestor Seduco helping one another in hacking and stabbing Noe Selibio. He further alleged that when the suspects left Noe Selibio he asked for help and they brought Noe Selibio to the hospital but he was pronounced dead on arrival by the attending physician at Dr. Pedro Trono Memorial Hospital, Guimbal, Iloilo. He further stated that the group of the aforementioned suspects were still harassing the people of Brgy. Igdagmay, this mplty by firing their guns when they left the place. Case under investigation."[7]
Although David Selibio failed to mention the exact participation of accused-appellant in his sworn statement, he, nevertheless, did make it clear that Nestor Seduco, armed with a "talibong" ("fighting bolo"), was with the malefactors. Certain discrepancies between declarations in an affidavit and those made at the witness stand seldom could discredit the declarant.[8] Sworn statements, being taken ex parte, are almost always incomplete and often inaccurate for various reasons, sometimes from partial suggestion or for want of suggestions and inquiries.[9] At all events, there scarcely is any real incongruence between David Selibio's affidavit and his testimony in court.

The evidence given by the prosecution, detailing the involvement of accused-appellant in the commission of the crime, renders unacceptable his claim of alibi and denial.[10] Between the positive testimony of the prosecution witnesses and the mere negative averment of accused-appellant, the former is entitled to greater evidentiary weight.[11] Nor could significant probative value be given to accused-appellant's alibi considering the unmistakable identification provided by the two eyewitnesses.[12]

This Court also finds admissible the dying declaration of the victim testified to by David Selibio; thus:
"QDid you reach the place where Noe Selibio was lying?


"AYes, Sir.


"QWhat did you do when you reached the place?


"AWe lifted up Noe Selibio towards his hut and placed him in a hammock.


"QAfter placing him in the hammock, what did you do next?


"AWe carried and brought him to the hospital.


"QWhat did you observed of the physical condition of Noe Selibio?


"AIn the road, he told us that he is dying.


"QWhat did you do after you heard him say that he was about to die?


"AI asked him if he knew the persons who shot and hacked him.


"QDid he answer you?


"AYes, Sir.


"QAnd you heard these people mentioned by him?


"A
Norberto Millamena and the others who hacked him were Juan Sasi, Nestor Seduco, and Jun Sasi."[13]
A dying declaration is admissible in evidence when (a) the death of the declarant is imminent and he is conscious of that fact; (b) the declaration refers to the cause and surrounding circumstances of such death; (c) the declaration relates to facts which the declarant is competent to testify to; (d) the declarant in fact subsequently dies; and (e) the declaration is offered in the criminal case where the declarant's death is itself the subject of inquiry.[14] Dying declaration has often been considered reliable for being made in extremity when the party is at the point of death and when every hope of survival is gone, when every motive to falsehood is silenced, and when the mind is induced by the most powerful considerations to speak the truth.[15]

There was conspiracy. After Roberto Millamina had shot the victim causing the latter to fall to the ground, the other accused immediately approached and struck the fallen victim with their "talibongs."[16] Afterwards, the accused all left the scene of the crime together. The acts of the malefactors showed a concurrence of sentiments, a joint purpose and a concerted action[17] indicative of a common objective,[18] and thereby negating the claim of accused-appellant that he should merely be held an accomplice in the commission of a crime.

The attendance of treachery was sufficiently established.[19] The victim together with his companions were walking on their way home after attending a town fiesta when the victim, suddenly and without warning, was shot at and attacked by accused-appellants hardly providing their victim with any opportunity to defend himself. The attack, evidently deliberate, swift and unexpected, afforded the hapless, unarmed and unsuspecting victim with no chance to resist the aggression or to even escape.[20]

WHEREFORE, the judgment of the court a quo appealed from is AFFIRMED. Costs against accused-appellant.

SO ORDERED.

Melo, (Chairman, Third Division), Panganiban, Gonzaga-Reyes, and Sandoval-Gutierrez, JJ., concur.



[1] Rollo, pp. 22-23.

[2] Rollo, pp. 54-56.

[3] Rollo, pp. 32-33.

[4] Rollo, pp. 51-52.

[5] TSN, 25 July 1996, pp. 5-9.

[6] TSN, 15 August 1996, pp. 34-37.

[7] Roll of Exhibits, pp. 5-6.

[8] People vs. Travero, 276 SCRA 301.

[9] People vs. Abrera, 283 SCRA 1

[10] People vs. Herbieto, 269 SCRA 472.

[11] People vs. Chavez, 278 SCRA 230.

[12] P:eople vs. Salazar, 277 SCRA 67.

[13] TSN, 25 July 1996, pp. 11-12.

[14] People vs. Umadhay, 293 SCRA 545, 559; People vs. Padao, 267 SCRA 64, 73; see also People vs. Apa-ap, Jr., 235 SCRA 468; People vs. Brioso, 147 Phil. 291, 296.

[15] People vs. Nialda, 289 SCRA 521.

[16] See People vs. Jagolingay, 280 SCRA 768.

[17] People vs. Sumbillo, 271 SCRA 428.

[18] People vs. Fabro, 277 SCRA 19.

[19] People vs. Matubis, 288 SCRA 210.

[20] People vs. De la Cruz, 291 SCRA 164.

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