341 Phil. 173
FRANCISCO, J.:
“At about 3:00 o’clock x x x [in the] afternoon [of September 23, 1990], Rosita Emperio and her son Leopoldo, Jr., were watching television in their house with some neighbors. Momentarily, they were surprised to see her husband Leopoldo Emperio, Sr. home from work that early. Leopoldo, Sr. had earlier been informed that Rosita got into a quarrel. However, after he learned that the information was false, he set out to return to work. But before he could step out, Nicolas Oliver barged into the house armed with a hunting knife, and without warning, tried to stab Leopoldo. Sensing the peril he was in, Leopoldo backtracked to evade the thrust. He lost his balance and fell down on the floor. However, he managed to get hold of a bolo which he used effectively to stave off Oliver’s attack. Oliver ran out of the house pursued by Leopoldo. As soon as Leopoldo stepped out of his house, appellant attacked from the right side and struck Leopoldo’s right eye with a bamboo pole. The blow caused Leopoldo to fall from the makeshift bridge where he stood (tsn, Nov. 6, 1991, pp. 4-8; 23-25).On the bases of the separate sworn statements executed by Rosita Emperio, Arlyn Entension and Gener Diabordo, appellant Ignacio Zumil and Nicolas Oliver were charged with murder[1] for the death of Leopoldo, Sr.. When arraigned, Oliver pleaded guilty to a lesser offense of homicide and was accordingly sentenced by the trial court.[2] Appellant, on the other hand, entered a plea of not guilty. Full dress trial thereafter ensued against appellant culminating in this assailed verdict of conviction sentencing him “to suffer reclusion perpetua x x x and x x x pay the heirs of Leopoldo Emperio [the sum of] P50,000.00 as death indemnity.”[3]
“Herminigildo Magsalay, a neighbor, tried to help Leopoldo, but, he too was attacked and struck by appellant at the back. Seeing his advantage, Oliver also pounced on the hapless Magsalay and stabbed him several times. Thereafter, Oliver moved over to where Leopoldo lay unconscious and, mercilessly, stabbed him. Both Leopoldo and Magsalay died on the spot (ibid., pp. 8-9; 26-29).”
“1. The Lower Court erred in finding the Prosecution to have established beyond question that the environmental circumstances recited in the information had indeed taken place;It is indubitable that the trial court’s judgment of conviction was based principally on Rosita and Gener’s[5] testimony narrating appellant’s actual participation in the commission of the crime. Claiming that Rosita has “an entirely different version” of the incident from those of Gener and Leopoldo, Jr., appellant now insists that the testimony of the prosecution witnesses are unworthy of belief.[6] Specifically, appellant cites the following alleged inconsistent portions of their respective testimonies:
“2. The Lower Court erred in giving credence to the testimonies of the widow of the deceased victim, Leopoldo Emperio and of the boy-witness, Gener Diabordo, while, in the same breathe, it discredits the testimonies of the same said widow’s very own son, the other boy-witness, Leopoldo Emperio, Jr.;
“3. The Lower Court erred in finding that there is any judicial admission by the defense witness that the improbable did happen;
“4. The Lower Court erred in finding that the accused-appellant treacherously struck the victim, Leopoldo Emperio, while the latter was engaged in a death struggle with Nicolas Oliver y Dumanjug;
“5. The Lower Court erred in finding that the accused-appellant had incapacitated the other deceased Magsalay from helping the deceased, Leopoldo Emperio, by striking also Magsalay treacherously;
“6. The Lower Court erred in concluding that the leaving by the accused-appellant, after the killings, his residence for Pagadian City is a sign of guilty.”[4]
Rosita Emperio: Direct Examination
“x x x x x x x x x
Q When your husband fell down, what did you notice?
A My husband found a bolo and then he brandished that bolo to Nicolas Oliver in order that Nicolas Oliver will be out.[7]
x x x x x x x x x.”
Leopoldo Emperio, Jr.: Direct Examination
“x x x x x x x x x
Q While he was stepping backward trying to evade the thrust of Nicolas Oliver, what happened to your father?
A He got a bolo from the kitchen and brandished that bolo.[8]
x x x x x x x x x.”
Gener Diabordo: Direct Examination
“x x x x x x x x x
Q What did Leopoldo Emperio do while moving backward evading the thrust of Nicolas Oliver?
A He fell down and after that he stood up and got a bolo in the kitchen and brandished that bolo.”[9] (Underscoring Ours)
Q Upon examination of the body of Leopoldo Emperio, what did you find?On cross-examination, Dr. Rosauro dismissed the possibility that the wound on Leopoldo, Sr’s face was caused by his fall from the makeshift bridge. Hence:
A One stab wound and a lacerated wound at the head and there is a very small puncture wound here.
Q On the right eye?
A Yes, this a stab wound, this is a lacerated wound and this a pinpoint wound.
Q Can you tell the Court what must have caused the wound found above the right eye of the victim?
A I cannot determine exactly. Maybe there was an object used. I cannot determine exactly but somehow the wound was lacerated.”[20]
(Underscoring ours)
Q Is it possible that the deceased could have been injured as a result of having fallen down earthward, face down?On the other hand, appellant’s defense of denial which Nicolas Oliver,[22] the self-confessed author of the crime, corroborated is unworthy of belief. As against the testimony of the prosecution witnesses amply demonstrating appellant’s participation in the commission of the crime, his denial cannot prevail.[23] Well entrenched is the rule that positive testimony carries much weight than negative ones.[24]
A According to the characteristics of the wound that is not possible because the wound is linear, if it banged on a stone it will have corrugated edges.
Q Suppose the stone partakes a sharp instrument, is it possible if he hit a stone of that nature?
A If that is caused by a stone it could also be linear and very sharp.”[21]
“This Court, therefore, finds that the eyewitness testimonies of Rosita Emperio and Gener Diabordo have sufficiently established that accused treacherously struck the victim, Leopoldo Emperio, from behind or beside him, while the latter was engaged in a death struggle with Nicolas Oliver. In short, Emperio did not see accused’s blow coming and when it landed on him, it knocked him off his feet, totally rendering him impotent to deal with Oliver.”[30]Moreover, our settled rule is that in order to appreciate treachery in continuous aggression, the same must be shown present at the inception of the attack.[31] In this case, we note that treachery was already present when Oliver, armed with a hunting knife, suddenly entered the house of Leopoldo, Sr. and continuously stabbed the latter. While Oliver may not have succeeded in his initial thrusts, as in fact, he even retreated when Leopoldo, Sr. parried his blows with a bolo, this nonetheless is quite insignificant because the existence or non-existence of treachery is not dependent on the success of the assault.