THIRD DIVISION

[G.R. No. 110872. April 18, 1997.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . ALEX GARMA ,

accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; DYING DECLARATION; REQUISITES THEREOF.

— We agree with the Court of Appeals that the statement of Sixto uttered shortly after
the assault and hours before his death identifying the appellant as one of the assailants,
quali es both as dying declaration and as part of res gestae. To elaborate, there are
four (4) requisites which must concur in order that a dying declaration may be
admissible in evidence, to wit: (a) it must concern the crime and the surrounding
circumstances of the declarant's death; (b) at the time it was made, the declarant was
under a consciousness of an 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.
2. ID.; ID.; ID.; ID.; PRESENT IN CASE AT BENCH. — In this case, the foregoing
requirements are undoubtedly present. First, Sixto's statement that " they were three (3)
but I recognize[d] only Alex Garma," is a statement of the surrounding circumstances of
his death as the same refers to the identity, of his assailants. Second, Sixto gave such
declaration under the consciousness of an impending death as shown by the serious
nature of his wounds, which in fact resulted in his death several hours later. Third, prior
to his death, Sixto was competent to be a witness in court. And fourth, Sixto's dying
declaration is offered in a criminal prosecution for murder where he was himself the
victim.
3. ID.; ID.; PART OF RES GESTAE; STATEMENT UTTERED RIGHT AFTER
SHOOTING INCIDENT ADMISSIBLE AS SUCH; CASE AT BENCH. — There can be no
plausible objection against its admissibility as part of res gestae even if said statement
was uttered by Sixto in response to a question posed by Herminigildo about the identity
of the assailants. This is because, the record bespeaks that such statement was made
right after the shooting incident and before Sixto had the opportunity to contrive or
devise a falsehood.
4. ID.; ID.; ALIBI; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION OF
ACCUSED; CASE AT BENCH. — Appellant interposes alibi as defense. According to him,
from 7:00 to 10:00 o'clock in the evening of December 2, 1987, he watched television
programs in the house of his grandfather Sotero Garma. Corroborating appellants
testimony were those of Edilberto Cali ores, Simeon Sonido, Maximo Pacis and David
Garma — who all con rmed appellant's presence in Sotero's house during the night
Sixto was gunned down. We are not persuaded. In the face of appellant's positive
identi cation by the victim as one of the authors of the crime, his defense of alibi
necessarily collapses. It is a settled rule that alibi can not prevail over a positive
CD Technologies Asia, Inc. © 2019 cdasiaonline.com
 identification.
5. ID.; ID.; CREDIBILITY OF WITNESSES; NOT AFFECTED BY MINOR
INCONSISTENCIES; CASE AT BENCH. — Appellant also impugns the credibility of the
prosecution witnesses contending that their testimonies are inconsistent with each
other in that: (1) Herminigildo and Gil testi ed that moments before his death, Sixto
uttered that "he cannot survive," while Maria and Perlita did not recount such a remark;
and (2) Maria and Perlita a rmed that the killing was triggered by the previous
altercation between Sixto and appellant about the hay which, however, was not
disclosed by Herminigildo and Gil. To our mind, these alleged inconsistencies are not
that material so as to cast serious doubts on the witnesses' credibility. As correctly
ruled by the Court of Appeals, these alleged inconsistencies are merely minor ones,
attributable as they are, to the frailty of human memory at times.
6. ID.; ID.; DYING DECLARATION; WITNESS NEED NOT REPRODUCE EXACT
WORDS OF DECEASED; CASE AT BENCH. — Neither can it be successfully argued that
since the prosecution witnesses "could not give the de nite words of Sixto," then their
testimonies should have been taken with a grain of salt. A witness testifying on the
dying declaration of the deceased need not reproduce exactly the words of the
deceased as long as he is able to give its substance. At any rate, the trial court which
had the opportunity to observe the demeanor of herein prosecution witnesses found
that their testimonies rang "with truth and sincerity." We nd no cogent reason to hold
otherwise.
7. ID.; ID.; TREACHERY; MUST BE PROVED BY CLEAR AND CONVINCING
EVIDENCE; CASE AT BENCH. — We agree with the appellant that both the trial court and
the Court of Appeals erred in appreciating the qualifying circumstance of treachery
against him. Our settled rule is that treachery cannot be presumed, but must be proved
by clear and convincing evidence, or as conclusively as the killing itself. In this case, the
trial court declared that the shooting of Sixto was "sudden and unexpected," which
cavalier pronouncement nds no basis from the record as there was no one who
testified to such manner of assault described by the trial court.
8. ID.; ID.; ID.; ID.; NOT ASSUMED FROM LOCATION OF FATAL WOUNDS;
CASE AT BENCH. — Neither may the presence of treachery be simply assumed, as what
the Court of Appeals apparently did, from the mere fact that the fatal wounds were
found at the back of Sixto. The location of the fatal wounds does not, by itself, compel a
nding of treachery. Such a nding must be based on some positive proof, and not be
merely an inference drawn more or less logically from hypothetical facts.

DECISION

FRANCISCO , J : p

At around 8:00 o'clock in the evening of December 2, 1987, while Herminigildo

Isidro was gathering hay just a few meters away from their house in Sitio Alinaay,
Baguingao, Cabugao, Ilocos Sur, he heard two shots red in succession. 1 Seconds
later, he then heard his uncle Sixto Selma cry: " Remy [referring to Herminigildo]
arayatennakman" or Remy, will you come to my rescue ." 2 Believing that Sixto has been
shot and that the assailants were still in the vicinity, Herminigildo immediately ran
toward their house to inform his relatives of what he heard. 3
CD Technologies Asia, Inc. © 2019 cdasiaonline.com
 Maria Isidro, Sixto's sister, also heard the gunshots and Sixto's subsequent call
for assistance. 4 She forthwith awakened Gil Morales, 5 her son-in-law, who, with Perlita
Gazmen-Selma, thereafter sought assistance from Councilor Jose Ardesani. 6 The
latter, however, refused to extend assistance as he was himself "afraid" of the
assailants. 7 Thus, left with no further alternatives, Gil, Perlita, Herminigildo and Maria,
mustered all their courage together and proceeded to the place from where they heard
Sixto moaning. They found the area deserted with Sixto lying on the ground — wounded.
8 Upon seeing them, Sixto promptly complained: "I am hit "; and when asked by
Herminigildo about the identity of the assailant, Sixto replied: "They were three (3) but I
recognize[d] only Alex Garma." 9
Sixto was rushed to the nearby Pura Clinic, but was transferred to Gabriela Silang
General Hospital in Tanog, Vigan, Ilocos Sur where he expired at around 12:00 o'clock in
the same evening. 1 0 The cause of his death: "Cardio respiratory arrest . . . [due] to
hypovolemic shock . . . to massive hemorrhage . . . to multiple gunshot wound." 1 1
On the basis of the separate sworn statements executed by Herminigildo and Gil,
appellant and an unidenti ed accused, were thereafter charged with Murder in an
Information that reads: cdasia

"That on or about the 2nd day of December, 1987, in the [M]unicipality of

Cabugao, [P]rovince of Ilocos Sur, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating
together and helping one another, with treachery and evident premeditation, and
with intent to kill, did then and there willfully (sic), unlawfully and feloniously
assault, attack and shoot with the use of illegally possessed rearm one Sixto
Selma, thereby in icting upon the latter mortal wound on his body, which wound
necessarily produced the death of said Sixto Selma, few hours later." 12

Appellant pleaded not guilty when arraigned. Trial ensued. On December 4, 1989,
the trial court handed down a verdict of conviction sentencing the appellant to suffer
ten (10) years and one (1) day of prision mayor, as minimum, to eighteen (18) years,
eight (8) months and one (1) day of reclusion temporal, as maximum. The trial court
likewise directed the appellant to indemnify Sixto's heirs in the amount of P30,000.00.
1 3 On appeal, the Court of Appeals a rmed the ndings of the trial court, except for the
penalty imposed and the amount of civil indemnity awarded which the Court of Appeals
increased to reclusion perpetua and P50,000.00, respectively. 1 4
The case is now certi ed to us by the Court of Appeals in accordance with Rule
124, Section 13 of the Rules of Court, 1 5 in relation to Article VIII, Section 5, paragraph
(2), subparagraph (d) of the 1987 Constitution. 1 6
It is evident that appellant's conviction was predicated principally on the
statement uttered by Sixto hours before his death, identifying appellant as one of the
assailants. Said statement was testi ed to by four (4) prosecution witnesses, namely:
(1) Herminigildo Aquino; (2) Gil Morales; (3) Maria Isidro; and (4) Perlita Gazmen-
Selma, who all claimed to have heard Sixto's revelation when they found him lying on the
ground-wounded. The trial court admitted such statement as part of res gestae, while
the Court of Appeals considered the same as both part of res gestae and dying
declaration.
We agree with the Court of Appeals that the statement of Sixto uttered shortly
after the assault and hours before his death identifying the appellant as one of the
assailants, quali es both as dying declaration and as part of res gestae. To elaborate,
there are four (4) requisites which must concur in order that a dying declaration may be
CD Technologies Asia, Inc. © 2019 cdasiaonline.com
 admissible in evidence, to wit: (a) it must concern the crime and the surrounding
circumstances of the declarant's death; (b) at the time it was made, the declarant was
under a consciousness of an 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. 1 7
In this case, the foregoing requirements are undoubtedly present. First, Sixto's
statement that "they were three (3) but I recognize[d] only Alex Garma," is a statement
of the surrounding circumstances of his death as the same refers to the identity of his
assailants. Second, Sixto gave such declaration under the consciousness of an
impending death as shown by the serious nature of his wounds, 1 8 which in fact
resulted in his death several hours later. 19 Third, prior to his death, Sixto was
competent to be a witness in court. And fourth, Sixto's dying declaration is offered in a
criminal prosecution for murder where he was himself the victim.
On the other hand, there can be no plausible objection against its admissibility as
part of res gestae even if said statement was uttered by Sixto in response to a question
posed by Herminigildo about the identity of the assailants. 2 0 This is because, the
record bespeaks that such statement was made right after the shooting incident and
before Sixto had the opportunity to contrive or devise a falsehood. 2 1
Appellant interposes alibi as defense. According to him, from 7:00 to 10:00
o'clock in the evening of December 2, 1987, he watched television programs in the
house of his grandfather Sotero Garma. 2 2 Corroborating appellant's testimony were
those of Edilberto Califlores, 2 3 Simeon Sonido, 2 4 Maximo Pacis 2 5 and David Garma 2 6
— who all con rmed appellant's presence in Sotero's house during the night Sixto was
gunned down. We are not persuaded. In the face of appellant's positive identi cation by
the victim as one of the authors of the crime, his defense of alibi necessarily collapses.
It is a settled rule that alibi can not prevail over a positive identification. 2 7
Appellant also impugns the credibility of the prosecution witnesses contending
that their testimonies are inconsistent with each other in that: (1) Herminigildo and Gil
testi ed that moments before his death, Sixto uttered that "he cannot survive," while
Maria and Perlita did not recount such a remark; and (2) Maria and Perlita a rmed that
the killing was triggered by the previous altercation between Sixto and appellant about
the hay which, however, was not disclosed by Herminigildo and Gil. 2 8
To our mind, these alleged inconsistencies are not that material so as to cast
serious doubts on the witnesses' credibility. 29 As correctly ruled by the Court of
Appeals, these alleged inconsistencies are merely minor ones, attributable as they are,
to the frailty of human memory at times. Neither can it be successfully argued that
since the prosecution witnesses "could not give the de nite words of Sixto," 30 then
their testimonies should have been taken with a grain of salt. A witness testifying on the
dying declaration of the deceased need not reproduce exactly the words of the
deceased as long as he is able to give its substance. 31 At any rate, the trial court which
had the opportunity to observe the demeanor of herein prosecution witnesses found
that their testimonies rang "with truth and sincerity." 32 We nd no cogent reason to
hold otherwise. cdphil

However, we agree with the appellant that both the trial court and the Court of
Appeals erred in appreciating the qualifying circumstance of treachery against him. Our
settled rule is that treachery cannot be presumed, 3 3 but must be proved by clear and
convincing evidence, or as conclusively as the killing itself. 3 4 In this case, the trial court
declared that the shooting of Sixto was "sudden and unexpected," 3 5 which cavalier
CD Technologies Asia, Inc. © 2019 cdasiaonline.com
 pronouncement nds no basis from the record as there was no one who testi ed to
such manner of assault described by the trial court.
Neither may the presence of treachery be simply assumed, as what the Court of
Appeals apparently did, from the mere fact that the fatal wounds were found at the
back of Sixto. The location of the fatal wounds does not, by itself, compel a nding of
treachery. 3 6 Such a nding must be based on some positive proof, and not be merely
an inference drawn more or less logically from hypothetical facts. 3 7
In ne, we hold that appellant is nonetheless guilty, albeit of the crime of
homicide only. Appellant's guilt has been proven by the prosecution through the dying
declaration of the victim himself which evidence, we must stress, is an evidence of the
highest order. 3 8
WHEREFORE, in view of the foregoing, the decision appealed from is hereby
MODIFIED. We nd appellant ALEX GARMA guilty beyond reasonable doubt of the
crime of HOMICIDE. Considering the absence of any mitigating or aggravating
circumstance and applying the Indeterminate Sentence Law in his favor, appellant is
hereby sentenced to suffer an indeterminate penalty ranging from Ten (10) years and
One (1) day of Prision Mayor, as minimum, to Sixteen (16) years, Two (2) months and
One (1) day of Reclusion temporal, as maximum. The civil indemnity awarded by the
Court of Appeals for the death of Sixto Selma in the amount of P50,000.00 is
AFFIRMED. cdasia

SO ORDERED.
Narvasa, C .J ., Davide, Jr., Melo and Panganiban, JJ ., concur.

Footnotes
1. TSN, Herminigildo Isidro, February 16, 1988, pp. 3-4, 6.

2. TSN, Herminigildo Isidro, March 10, 1988, pp. 9-10.

3. Id.
4. TSN, Maria Isidro, July 8, 1988, p. 7.
5. TSN, Maria Isidro, June 6, 1988, p. 4; See also TSN, Gil Morales, April 5, 1988, p. 4.

6. Councilor Ardesani's house is just 70 meters away from Sixto's house; see TSN,
Herminigildo Isidro, March 10, 1988, p. 8.
7. TSN, Gil Morales, April 5, 1988, p. 5; TSN, Perlita Gazmen-Selma, November 15, 1988, p.
8.
8. TSN, Herminigildo Aquino, March 10, 1988, pp. 13-14.

9. Id, pp. 15-16; See also TSN, Gil Morales, April 5, 1988, p. 6; TSN, Maria Isidro, June 6,
1988, p. 5; TSN, Perlita Gazmen-Selma, October 11, 1988, p. 9.

10. TSN, Dr. Benjamin Tolentino, December 1, 1988.

11. Exhibit "D"; Record, p. 77.
12. Information Dated January 20, 1988; Record, p. 1.

13. Regional Trial Court (RTC) of Ilocos Sur, First Judicial Region, Branch 24, Decision
CD Technologies Asia, Inc. © 2019 cdasiaonline.com
 dated 4 December 4, 1989, penned by Judge Florencio A. Ruiz, Jr.; Record, p. 108-115.

14. Court of Appeals, Sixth Division, Decision promulgated July 14, 1993, penned by
Associate Justice Asaali S. Isnani and concurred in by now Presiding Justice Nathanael
P. De Pano, Jr. and Associate Justice Lourdes K. Tayao-Jaguros, p. 4; Court of Appeals
Rollo, p. 55.
15. Rule 124, Section 13. Quorum of the Court. —

xxx xxx xxx

"Whenever the Court of Appeals should be of the opinion that the penalty of reclusion
perpetua or higher should be imposed in a case, the court after discussion of the
evidence and the law involved, shall render judgment imposing the penalty of reclusion
perpetua or higher as the circumstances warrant, refrain from entering judgment and
forthwith certify the case and elevate the entire record thereof the Supreme Court for
review." (Emphasis Ours)
16. Article VIII, Section 5. The Supreme Court shall have the following powers:

xxx xxx xxx

"(2) Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the
Rules of Court may provide, final judgments or orders of lower courts in:
xxx xxx xxx
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
17. People v. Elizaga et. al., 167 SCRA 516, 520 (1988); People v. Lanza, 94 SCRA 613
(1979); People v. Saliling et. al., 69 SCRA 427 (1976).
18. "AUTOPSY REPORT
December 3, 1987

xxx xxx xxx

"A. Gunshot Wound — 0.5 cm. Point of Entry
Right peravertal line-
Level thoracic 10
Penetrating
Point of Exit — 1 cm. right parasternal line,
9th Intercostal Space.
"B. Gunshot Wound — 0.5 cm. Point of Entry
Right paravertal line-
Level lumbar 3
Point of Exit — Right subcostal area
"C. 1 cm. laceration at the inferior lobe of the lung.
"D. Avulsion of the dome of the right lobe of the liver together with the
diaphragm transected hepatic vein.
"E. 0.5 — 1 cm., perforation at the transverse colon, ascending colon
"F. Massive hemothorax (R) — 2 liters of blood evacuated.
"G. Massive herroperitinium — 2 liters of blood evacuated.
CD Technologies Asia, Inc. © 2019 cdasiaonline.com
 xxx xxx xxx

Sgd. BENJAMIN TOLENTINO, M. D.

Resident Physician"

19. People v. De Gracia, 18 SCRA 197 (1966); People v. Cortez, 6 SCRA 408 (1962), citing
People v. Chan, 50 Phil 182 and People v. Andia et. al., G.R. No. L-14862, May 31, 1961;
People v. Abedosa, 53 Phil 788; See Moran, Rules of Court of the Philippines, Volume 5,
p. 297; See also Martin, Rules of Court in the Philippines With Notes and Comments,
Volume 5, p. 295.

20. People v De Gracia, 18 SCRA 197 (1966); People v. Sampang, Jr. et. al.; 16 SCRA 531
(1966).

21. People v. Masangkay, 157 SCRA 320 (1988).

22. TSN, Alex Garma, August 23, 1989, pp. 5-6.
23. TSN, Edilberto Califlores, March 20, 1989, p. 5.
24. TSN, Simeon Sonido, June 5, 1989, p. 4.
25. TSN, Maximo Pacis, July 12, 1989, p. 6.

26. TSN, David Garma, July 14, 1989, p. 3.

27. People v. Marapao, 188 SCRA 243; People v. Azugue, G.R. No. 110098, February 26,
1997.
28. Appellant's Brief Dated October 22, 1990, p. 10; Court of Appeals' Rollo, p., 54.
29. People v. Porras, 255 SCRA 517, 525 (1996), citing People v. Irenea, 164 SCRA 121
(1988) and People v. Cariño, 165 SCRA 664 (1988).
30. Appellant's Brief, Court of Appeals' Rollo, p., 54.
31. People v. Odencio, 88 SCRA 1, 6 (1979), See Moran's Comments on the Rules of Court,
Volume V, p. 302, citing People v. Chin Mok Sow, 51 Cal., 597 and Roberts v. State, 5
Tex. App. 141.
32. RTC Decision, p. 6; Record, p. 113.
33. People v. Elmer Belga, G.R. Nos. 943766-77, July 11, 1996; People v. Tiozon, 198 SCRA
368 (1991); People v. Manalo, 148 SCRA 98 (1987).
34. People v. Porras, 255 SCRA 514, 529 (1996), citing People v. Tiozon, 198 SCRA 368,
388 (1991) and People v. Agcaoili, 206 SCRA 606 (1992); See People v. Wilson
Villanueva, G.R. No. 116610, December 2, 1996.
35. RTC Decision, p. 8; Record, p. 115.
36. People v. Elmer Belga, G.R. Nos. 943766-77, July 11, 1996; People v. Manalo, 148 SCRA
98 (1987).
37. People v. Morin, 241 SCRA 709, 717, citing U.S . v. Rana, 4 Phil. 231; People v. Manalo,
148 SCRA 98 (1987).

38. People v. Montilla, 211 SCRA 119 (1992), citing People v. Almeda, 124 SCRA 486
(1983).

CD Technologies Asia, Inc. © 2019 cdasiaonline.com