Case Digest Section 37-39

1. Pp vs. Hecto (Section 37)

Doctrine: 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.
Facts:
 The appellants, Jesus and Pedro Hecto, slaughtered a carabao but did not
pay the corresponding slaughter fee. Upon learning about this, Brgy. Captain
Catalion Pedrosa asked Jesus to pay the same. However, the latter said that
he could not pay the corresponding fee because those who bough meat from
him had also not paid him yet. When Pedrosa met with the municipal
treasurer, the municipal treasurer informed him according to the Hecto
brothers they had already paid the slaughter fee to him.
 Thereafter, when Pedrosa and his wife went to their farm, they met Jesus
and Pedro on their way home. A confrontation between them ensued and the
Hectos attempted to attack Pedrosa.
 Around March 1972, the Hecto brothers shot Pedrosa when he was on his
way back home. He was thereafter stabbed by Marcial Hecto and Robert
Silvano. Upon hearing the gunshot, his wife, Caridad Pedrosa, immediately
run to the door but was prevented by Loreto and Faustino. They also pointed
their guns at her, nevertheless, she witnessed everything.
 The appellants carried the victim to a nearby ditch where Roberto and Marcial
took turns in stabbing the victim.
 On trial, Jesus Hecto died shortly, Trial proceeded against Pedro and Loreto
Hecto while their confederates: Roberto Silvano, Marcial Hecto and Faustino
Silvano remained at large.
 The prosecution presented Caridad Pedrosa as witness, and presented the
affidavit of Constancio Bollena where he testified 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. However, Bollena did not testify at the hearing.
 After trial, the appellants were found guilty of murder with direct assault
upon a person in authority.
 On appeal, the appellants claim that 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.

Issue: Whether the affidavit of Bollena should be given evidentiary weight to

convict the accused of the crime charged.

Ruling: (NO)

Ratio:

The Court agreed with the appellant 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.

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. From their examination
during the trial, 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. The fact that appellants went into hiding after the incident is
also an evidence of guilt. 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.

2. Pp. vs Viovicente (Section 38)

Facts:
 Fernando Flores testified that while he was on his way to work, he saw his
co-worker Fernando Hoyohoy attacked by four men. Hoyohoy was buying
cigarettes at a store when, according to Flores, two persons emerged from
behind the store. Flores identified the two as accused-appellant Fernando
Viovicente, and one Balweg. 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 four then fled from the scene.
 Tomas Hoyohoy, the victims brother, testified 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. Cpl. Iluminado Combalicer of the Galas Police Sub-Station 4 testified11
that, upon receipt of the report of the incident, he went to the National
Orthopedic Hospital where he was able to talk to the victim. This was at 8
a.m. of July 21, 1991. Hoyohoy told him that he had been stabbed by
Maning. Cpl. Combalicer took down the victim’s statement and made him
sign it. Fernando Hoyohoy said, “Sinaksak po ako ni Maning at Duras
roon ring nakatira sa may likod ng bahay namin.
 The Regional Trial Court of Quezon City convicted accused-appellant of
murder. On Appeal, the appellant argued that the lower court erred in finding
him 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. 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 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
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
Issue: Whether the testimony of the victim may be given credence by the Court.
Ruling: YES
Ratio:
The Revised Rules on Evidence do not require that a dying declaration must be
made in writing to be admissible. Indeed, to impose such a requirement would be
to exclude many a statement from a victim in extremis for want of paper and pen
at the critical moment. Instead Rule 130, 37 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. 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 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. Tomas testified that he knew Cpl. Combalicer had talked to
his brother Fernando at the hospital implying that he did not then make a
statement because the matter was under investigation.

3. Goni vs. CA (Section 39)

Facts: TABACALERA owned 3 parcels of land known as San Sebastian, Sarria and
Dulce Nombre de Maria situated in Bais, Negros Occidental. The late Praxedes T.
Villanueva offered to purchase said lots. 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.
Villanueva then contracted or promised to sell to Vicente 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. Soon, 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. Meanwhile, Fields nos. 4 and 13 were
delivered to private respondent Vicente after the 1949-1950 milling season in
January and February, 1950.
On November 12, 1951, Villanueva died. Intestate proceedings were instituted on
his properties where Goni acted as administrator. 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. On April 25, 1956, private respondent Vicente amended his complaint
anew to include as parties-defendants the heirs of the late Praxedes Villanueva and
damages representing the produce of field no. 3 from 1949-50 until delivery
thereof to him.
the parties entered into a stipulation of facts, agreeing, among others, on the costs
of production and produce of the three fields in question. Defendants presented
Genaro Goni, who testified on the alleged verbal lease agreement.
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. CA affirmed
Issue: 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)
Ruling: (YES)
Ratio:
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.
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 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 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.s

4. Pp. vs. Laquinon

Summary:
Remonde made a dying declaration accusing Laquinon of the crime. SC held that
this was inadmissible since the deceased was in doubt as to whether he would
die or not. The declaration fails to show that the deceased believed himself to be
in extremis, ‘at the point of death when every hope of recovery is extinct’.

Doctrine:
Where a declaration was not made under the consciousness of a victim’s
imminent death, it does not qualify as an antemortem statement, although it
may be admitted as part of the res gestae if it was made immediately after the
incident and he had no sufficient time to concoct a charge against the accused.

Facts:
Brgy. Capt. Buat was at his house when he heard gunshots from the river and
then his brother told him that a man was shouting for help from the riverbank.
Buat then told his brother to call the barrio councilman and he proceeded to
where the unidentified man was. His brother and the barrio councilman arrived.
They found a man lying on the sand so they asked him who he was and he
answered: “I am Pablo Remonde.” His hands were tied and he was lying face
down. Buat then took the antemortem statement of Pablo Remonde. He asked
who shot him and he answered Gregorio Laquinon.
He asked if he would survive the gunshot wounds and he answered “I don’t
know.” Buat then reported the shooting to the vice mayor who went to the
scene of the incident and again asked who shot him and Remonde answered
that it was Gregorio Laquinon.
A slug was recovered from his body during his operation. 3 days later Remonde
died in the hospital because of the bullet wounds.
Laquinon’s defense was that he was a KM member. He and Nerosa were ordered
by Cabardo to fetch Remonde. Nerosa left after bringing Remonde to Cabardo.
Cabardo, after confronting Remonde as to why he never returned after being
commanded to buy provisions and upon Remonde answering that he spent the
money drinking and gambling, shot Remonde when he allegedly tried to flee.
Their mountain camp was raided by the PC two days after, as a result of which
raid Cabardo and two others were killed. Laquino was able to escape, went to
hide in a relative’s farm in North Cotabato, did farming there but believing that,
as a KM member, he had “committed something”, he finally surrendered to the
Davao PC Barracks.

Issues Ratio:
WON Remonde’s statement is admissible as an antemortem declaration - NO
Laquinon argues that it is inadmissible because it was not executed under a
consciousness of impending death and that he was not a competent witness.
In Remonde’s statement, when he was asked who shot him his answer was “Mr.
Laquinon, a person who ran for councillor before the ticket of Liberal last local
election and son of Suelo Maravillas whose name I don’t know.” The fact that he
had named the son of Suelo Maravillas who turned out to be Nerosa as one of
those who shot him doesn’t make him an incompetent witness nor does it render
his dying declaration incredible of belief. Nor does the testimony of 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.
However, the dying declaration is inadmissible as an antemortem declaration
since Remonde was in doubt as to whether he would die or not. The declaration
fails to show that he believed himself in extremis, “at the point of death when
every hope of recovery is extinct”, which is the sole basis for admitting this kind
of declaration as an exception to the hearsay rule. The same may be admitted,
however, as part of the res gestae since it was made immediately after the
incident and Remonde had no sufficient time to concoct a charge against
Laquinon.

The SC does not believe that it was Cabardo who shot Remonde for the ff.
reasons: 1) when he was allegedly delivered to Carbardo, he was already tied up
and as there were 10 men, it was hard to believe that he would flee, 2) if he did
try to flee, it would be away from Cabardo, as belied by the gunshot wound on
his abdomen.

As Cabardo can no longer speak in his behalf, it is not unlikely that Laquinon
conceived of his outlandish defense by pointing to Cabardo. Most important to
remember is that at the time Remonde gave his dying declaration, Cabardo was
still alive; that per Laquinon himself, he had no previous differences with the
deceased or with the barrio captain; and that from Buat when he took the
statement, Remonde was feeling strong, surely, under such circumstances it is
hard to believe that Remonde would name Laquinon with whom he had no
quarrel and Nerosa as his killers if that was really not the truth.

Dispositive:
Accused is guilty beyond reasonable doubt of the crime of murder qualified by
treachery.