429 Phil. 754
YNARES-SANTIAGO, J.:
That on or about the 27th day of October, 1995, at about 8:00 o’clock in the morning, at the coconut plantation of Barangay Hinayagan, Municipality of Gandara, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another, with deliberate intent to kill, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault, and shot one Lolito de la Cruz with the use of firearms (M-14 rifle, M-1 rifle and shotgun), which the accused conveniently provided themselves for the purpose, thereby inflicting upon the latter fatal gunshot wound on his body, which caused the untimely death of said Lolito de la Cruz.When arraigned, the three accused-appellants, assisted by counsel, pleaded not guilty to the crime charged in each case.[2] Thereafter, the three cases were consolidated and tried jointly.[3]
CONTRARY TO LAW.
Statement of Lolito de la Cruz who was shot and these were the persons whom he saw, Nonoy Boller, Obat Boller and Bayani Boller, and they were clothed with military uniforms and some of them are members of CHDF of Bu-aw and the place where the shooting incident took place is near the coconut plantation of Arsenio Orquin.Lolito’s declaration was witnessed and heard by Roberto Tolin and Ponciano Orquin. The written statement, entitled “Ante-Mortem,” was signed by Sumagdon, Tolin and Orquin. According to them, Lolito was unable to move his right hand at that time.[10]
Accused-appellants proffered the following defense:
- On the victim Lolito de la Cruz:
- Exhibit “D” – The Autopsy Report with the following physical findings:
“A. Avulsed gunshot wound 4 x 3 inches at the umbilical area, transecting the superior and inferior apigastric arteries and veins with evisceration of the large intestines.
Diagnosis: Irreversible shock secondary to hemorrhage secondary to gunshot wounds.”- Exhibit “E” - The Anatomical Report.
- Exhibit “F” - The Certificate of Death.
- On the victim Jesus Orquin:
- Exhibit “G” – The Autopsy Report with the following findings:
“1. Avulsed gunshot wound 7 ½ inches x 4 ½ inches lower end of the anterior aspect of the left thigh transecting the femoral artery and veins with fracture of the distal end of the femur, left.
Diagnosis: Irreversible shock secondary to hemorrhage secondary to gunshot wound.”- Exhibit “H” - Anatomical Chart Series.
- Exhibit “I” - Certificate of Death.
- On the victim Arsenio Orquin:
- Exhibit “J” – Autopsy Report with the following post-mortem findings:
“1. Avulsed gunshot wound 3 ½ inches in diameter 2 inches deep at the anterior aspect of the right upper thigh transecting the lateral femoral circumflex artery and vein.
2. Avulsed gunshot wound 7 ½ x 3 inches at the upper chart, posterior aspect of the right leg transecting the posterior tribal artery and the small saphenous vein.
Diagnosis: Irreversible shock secondary to hemorrhage secondary to gunshot wounds.”- Exhibit “K” - Anatomical Chart Series.
- Exhibit “L” - Certificate of Death.[14]
The first witness, Ronito Boller, alias Obat, is one of the accused. He testified that on October 27, 1995 at around 7:00 a.m., he was fetched by Luz Villocero at their house to work in the latter’s farm which was about ten (10) minute hike away from their house. They stayed at the farm until 5:00 p.m., after which, he proceeded home. He said that it was Jacinto Orquin, the private complainant in this case, who killed his cousin Tantoy Boller. He was with Tantoy when the latter was killed. The elder brother of Tantoy, Eduardo, filed a case against Jacinto but the latter likewise killed Eduardo. He denied that he is a member of the CAFGU.[15]On May 16, 2000, the trial court rendered judgment, the dispositive portion of which reads:
The second witness, Luz Villocero, was presented to corroborate the testimony of Ronito Boller. She testified that on October 27, 1995 at around 7:00 a.m., she fetched Ronito Boller from their house to have him help them in harvesting the corn. They stayed at the farm till 5:00 p.m. She disclosed that, all the time, Ronito was with them.[16]
The third witness, Dianito Boller, is one of the accused. He testified that on October 27, 1995 at around 6:00 a.m., he was at their house taking his breakfast, after which he proceeded to the Camp because he was on duty up to 6:00 p.m. He took his lunch at their house at 12:00 p.m. and he returned to the Camp. He was with Sgt. Espiritu, Sgt. Palalay and PFC Raginal Narcing Selages who was his partner, and they stayed at the Camp until 6:00 p.m.[17]
The fourth witness, Zosimo Suarello, hired the services of Francisco Boller on October 27, 1995. He testified that on October 27, 1995 at around 7:00 a.m., Francisco Boller was at their house because he hired the services of the latter to fix the nipa roof of their house. Francisco ate lunch at his house and he stayed until 4:00 p.m. He paid Francisco P50.00.[18]
The fifth witness, Narciso Selajes, is a CAFGU member and the duty partner of Dianito Boller on October 27, 1995. He testified that on October 27, 1995 at around 6:00 a.m., he saw Dianito Boller enter the camp because they were on duty from 6:00 a.m. to 6:00 p.m. They were issued firearms but after their duty they left their firearms behind inside the camp.[19]
The last witness, Francisco Boller, is one of the accused. He testified that on October 24, 1995, he arrived at Barangay Buan because his father called for him to work in the farm. He arrived at Barangay Buan from Barangay Hinayagan where he is residing. He likewise helped his father on October 26, 1995 at around 5:00 p.m. But he did not return to Barangay Hinayagan because he promised Zosimo Suarino that he will repair his roof. He stayed at the house of Zosimo up to 4:00 p.m. At around 10:00 a.m., Zosimo left because he was called by their commandant at the camp on account of the fact that something happened. Upon the return of Zosimo, he was informed that Arsenio and Jesus Orquin were killed but the killers were not yet known. On October 28, 1995, they were arrested by the police in connection with the killing of Arsenio and Jesus Orquin.[20]
WHEREFORE, this Court declares all the accused, namely: Ronito Boller alias Obat, Dianito Boller alias Nonoy and Francisco Boller alias Bayani, GUILTY beyond reasonable doubt for three (3) counts of Murder in the above-entitled cases and hereby sentences each of them to suffer the penalties consisting of:Accused-appellants appealed directly to this Court raising the following assignments of error:
(1)In Crim. Case No. 3022: a. Reclusion Perpetua;b. To jointly and severally indemnify the surviving heirs of the late Lolito de la Cruz in the amount of P50,000.00;c. To pay the costs. (2)In Crim. Case No. 3023: a. Reclusion Perpetua;b. To jointly and severally indemnify the surviving heirs of Jesus Orquin in the amount of P50,000.00;c. To pay the costs. (3)In Crim. Case No. 3024: a. Reclusion Perpetua;b. To jointly and severally indemnify the surviving legal heirs of the late Arsenio Orquin, andc. To pay the costs.
In the service of the sentence, each of the accused shall be credited with the full period of their preventive imprisonment, provided each of them has voluntarily agreed in writing to abide by the same disciplinary rules imposed upon convicted prisoners, otherwise, they shall only be entitled to four-fifths thereof pursuant to the provisions of Art. 29 of the Revised Penal code, as amended.
SO ORDERED.[21]
In order that a dying declaration may be admissible in evidence, four requisites must concur:I
THE LOWER COURT ERRED IN CONSIDERING THE STATEMENT MADE BY LOLITO DE LA CRUZ AS A DYING DECLARATION WHEN IT FAILED TO COMPLY WITH THE FORMAL REQUIREMENTS OF LAW.II
THE LOWER COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY AGAINST ACCUSED-APPELLANTS WHICH WAS NOT PROVEN BY THE PROSECUTIONIII
THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS OF THE CRIME OF MURDER, WHEN THEIR GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.
All the above requisites are present in the case at bar. The statement of Lolito de la Cruz certainly pertains to the cause and surrounding circumstance that eventually led to his death. The victim was able to identify who the perpetrators were, their appearances and the place where the incident happened. The victim sustained fatal wounds and survival was a remote possibility. He pleaded that he be brought to a hospital.[23] He had to be carried in a hammock by several people,[24] but he died before reaching the hospital.[25] The autopsy conducted by Dr. Cresilda Teston-Aguilar confirmed the cause of his death as gunshot wounds.
- That the declaration must concern the cause and surrounding circumstances of the declarant’s death;
- That at the time the declaration was made, the declarant was under a consciousness of an impending death;
- That the declarant is competent as a witness; and
- That the declaration is offered in a criminal case for homicide, murder, or parricide, in which the declarant is a victim.[22]
The rule is that a dying declaration may be oral or written. If oral, the witness who heard it may testify thereto without the necessity of reproducing the word of the decedent, if he is able to give the substance thereof. An unsigned dying declaration may be used as a memorandum by the witness who took it down.[28]
Q Now, it appears that what you have written here appears to be merely abstract, that these are not actually the exact words that were given to you but your own words as a result of what you deduced from the statements given to you?A What I wrote down there were statements coming from him but my mistake was, I was not able to let him sign on it.[27]