G.R. Nos. 132325-26 July 26, 2001PEOPLE OF THE PHILIPPINES,plaintiff-appellee,vs.ROMEO ESPINA,accused-appellant.Criminal Procedure; Witnesses; It is the prosecutions prerogative to determine who should be presented as witnesses on the basis of its own assessment of their necessity.Then too, the non-presentation of Eufronia Pagas as a prosecution witness is not damaging to the case of the prosecution. In Eufronias affidavit, she declared that after Rogelio Espina, Samson Abuloc and the deceased went out of her house, she heard three gunshots but bothered not to go outside because of fear. Evidently, Eufronia Pagas is not an eyewitness and her testimony would not do much for the prosecution. At any rate, it is the prosecutions prerogative to determine who should be presented as witnesses on the basis of its own assessment of their necessity. Hence, its choice of witnesses cannot be successfully challenged by accused-appellant.Witnesses; A witness who is a friend and a second cousin of the accused, he is expected to be familiar with his voice; Light from the stars or the moon, an oven, or a wick lamp or gasera can give ample illumination to enable a person to identify or recognize another.Neither do we find improbable the testimony of Samson Abuloc that he recognized the voice of accused-appellant. Being a friend and a second cousin of accused-appellant, he is expected to be familiar with his voice. So also, we find no reason to doubt the testimony of Abuloc that he was able to identify the pistol used by accused-appellant as well as witnessed the stabbing of the victim at the back. Not only was Abuloc only three to four meters away from accused-appellant, the prosecution was likewise able to establish that the moonlight illuminating the locus criminis afforded the witness a clear view of the shooting incident. The Court has previously held that the light from the stars or the moon, an oven, or a wick lamp or gasera can give ample illumination to enable a person to identify or recognize another. Under the circumstances, therefore, Abuloc could not have failed to recognize accused-appellant who is not only his barkada but a second cousin as well.Same; It is doctrinally settled that the assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses first hand and to note their demeanor, conduct and attitude under grilling examination.It is doctrinally settled that the assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses first hand and to note their demeanor, conduct and attitude under grilling examination. In the case at bar, the trial court did not err in giving credence to the version of the prosecution. The facts and circumstances alleged to have been overlooked by the trial court are not material to the case and will not affect the disposition thereof.Criminal Law; Murder; Hearsay Rule; Dying Declarations; Res Gestae; An alleged dying declaration of the victim should not be admitted as an ante mortem statement where the prosecution failed to show that the subject declaration was made under the consciousness of an impending death; Where the declaration of the deceased pointing to the accused as the culprit was made shortly after a startling occurrence and under the influence thereof, the victim evidently without any opportunity to contrive, the same may be admitted as part of the res gestae.The alleged dying declaration of the victim should not have been admitted as an ante mortem statement, considering that the prosecution failed to show that the subject declaration was made under the consciousness of an impending death. Prosecution witness Celmar testified that on the way to the hospital, the victim told him that it was accused-appellant who shot him. Though the victim eventually died two days after he was shot, there is nothing in the records that would show that the victim was under the impression that he was going to die. However, the declaration of the deceased pointing to accused-appellant as the culprit is admissible as part of res gestae. Having been made shortly after a startling occurrence and under the influence thereof, the victim evidently had no opportunity to contrive.Same; Same; Witnesses; Delay in revealing the identity of the perpetrator of a crime does not necessarily impair the credibility of a witness, especially where such witness gives a sufficient explanation.The delay of Felix Celmar in revealing the declaration of accused-appellant does not make Celmars testimony unworthy of belief. Delay in revealing the identity of the perpetrator of a crime does not necessarily impair the credibility of a witness, especially where such witness gives a sufficient explanation. In the case at bar, such delay was amply explained by the witness. Celmar testified that it took him four months to reveal what he knew because he thought he would not be utilized as witness for the prosecution. Moreover, after the incident, he had to leave for his work in Albay.Same; Same; Illegal Possession of Firearms; The amendatory provision of Republic Act No. 8294, amending Presidential Decree No. 1866, not being favorable to the accused, cannot be applied to the accused, lest it acquires the character of an ex post facto law.The third paragraph, Section 1, of R.A. No. 8294 (which took effect on July 6, 1997), amending P.D. No. 1866, provides that If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be used as an aggravating circumstance. This amendment, however, cannot be applied in the present case. It bears stressing that when the offenses at bar were perpetrated on September 30, 1992, the unlicensed firearm used in taking the life of another was not yet a special aggravating circumstance in murder or homicide. Not being favorable to the accused, the amendatory provision cannot be applied to accused-appellant, lest it acquires the character of an ex post facto law.Same; Same; Aggravating Circumstances; Treachery; As the treachery employed by the accused in shooting the victim is actually a circumstance that qualified the killing to murder, treachery cannot be offset by a mitigating circumstance.The trial court erred in treating alevosia merely as a generic aggravating circumstance, more so in offsetting the same by the generic mitigating circumstance of having committed the crime in immediate vindication of a grave offense. The treachery employed by accused-appellant in shooting the victim is actually a circumstance that qualified the killing to murder. Such being the case, treachery cannot be offset by a mitigating circumstance.Same; Same; Justifying Circumstances; Vindication of a Grave Offense; The act of the victim of urinating on the accused in front of guests undoubtedly insulted and humiliated the accused, a circumstance coming within the purview of a grave offense under Article 13, paragraph 5, of the Revised Penal Code, and for which the mitigating circumstance of acting in immediate vindication of a grave offense should be appreciated in favor of the accused.The trial court correctly appreciated the mitigating circumstance of having acted in immediate vindication of a grave offense. As the evidence on record show, accused-appellant was urinated on by the victim in front of the guests. The act of the victim, which undoubtedly insulted and humiliated accused-appellant, came within the purview of a grave offense under Article 13, paragraph 5, of the Revised Penal Code. Thus, this mitigating circumstance should be appreciated in favor of accused-appellant. [People vs. Espina, 361 SCRA 701(2001)]YNARES-SANTIAGO,J.:This is an appeal from the Decision1of the Regional Trial Court of Tagbilaran, Branch 47, in Criminal Case Nos. 8194 and 8155 convicting accused-appellant of the crime of Murder qualified by Illegal Possession of Firearms under P.D. No. 1866, as amended by R.A. No. 8294; and sentencing him to suffer the penalty ofReclusion Perpetuaand to pay the heirs of the deceased the sum of P50,000.00 and the costs.The information for the crime of murder alleged:That on or about the 30th day of September, 1992, in the municipality of Tubigon, province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused without justifiable motive, with treachery and abuse of superior strength, the accused being then armed with a short firearm and without giving opportunity to the victim to defend himself, did then and there willfully, unlawfully and feloniously attack, assault and shoot one Romeo Bulicatin, with the use of said firearm, hitting the latter on the vital part of his body resulting to his death; to the damage and prejudice of the heirs of the deceased.Acts committed contrary to the provisions of Article 248 of the Revised Penal Code with the aggravating circumstance of nighttime being purposely sought for or taken advantage of by the accused to facilitate the commission of the crime.2For Illegal Possession of Firearms, the information stated:That on or about the 30th day of September, 1992, in the municipality of Tubigon, province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to possess firearm and ammunition did then and there willfully, unlawfully and criminally keep, carry and have in his possession, custody and control a short firearm and ammunition without first obtaining the necessary permit or license to possess the said firearm and ammunition from competent authority, which firearm and ammunition were carried by the accused outside of his residence and used by him in committing the crime of Murder of which one Romeo Bulicatin was the victim; to the damage and prejudice of the Republic of the Philippines. Acts committed contrary to the provisions of Presidential Decree No. 1866.3Upon arraignment on June 27, 1994, accused-appellant pleaded not guilty to both charges;4thereafter trial followed.The facts as adduced by the prosecution are synthesized in the People's Brief, thus -In the afternoon of September 30, 1992, the members of an association locally known as the "ripa-ripa" went to the house of Eufronia Pagas located at sitio Batic, Tan-awan, Tubigon, Bohol for their scheduled contribution to a fund intended for a wedding celebration. (p. 3, August 23, 1996, TSN; p. 3, January 21, 1997, TSN) Among those present thereat were Romeo Bulicatin, Rogelio Espina, Samson Abuloc who were having a drinking spree and playing "chikika", a card game. (p. 4, May 9, 1995, TSN).When accused-appellant arrived, Romeo asked three (3) bottles of "kulafu" wine from him and he acceded by buying three (3) bottles of "kulafu" wine from the store of Eufronia Pagas. Later on, at around 4:00 of that afternoon, Romeo again demanded another bottle of "kulafu" wine from accused-appellant but this time, the latter refused to give in to the demand. (p. 4, January 21, 1997, TSN) Romeo then proceeded to where accused-appellant was playing cards and without any warning, urinated on the latter and clipped him under his (Romeo) arms. (p. 4, August 23, 1996, TSN) Accused-appellant got angry. He however did not engage Romeo in any altercation but instead turned away and went home. (p. 5, May 9, 1995, TSN)Later on in the evening, at about 9:00 p.m., while Romeo, Rogelio and Samson were still having a drinking spree at the store of Eufronia Pagas, they heard accused-appellant calling Romeo from outside, saying, "Borgs, get out because I have something to say." The trio came down from the house. Rogelio went down first, followed by Samson and Romeo (pp. 5-6,ibid.) When Rogelio reached the ground, accused-appellant told him to drop down while Samson also dropped himself to the ground when he saw accused-appellant about to draw his firearm. At that juncture, Romeo was still at the stairway and when he turned his back towards accused-appellant, the latter shot him, hitting him at the back. Romeo ran away but he was chased by accused-appellant who fired two (2) more shots at him. (p. 5, March 19, 1996, TSN; p. 7, May 9, 1995)Samson ran away from the scene of the incident and upon reaching the house of Poloy Concha, he saw Romeo outside the house asking for help. Samson asked some of residents to help him bring Romeo to barangay Cawayanan. (pp. 14-15, March 19, 1996, TSN) They loaded Romeo in a rattan cradle and upon reaching the said barangay at about 3:00 o'clock of the following morning, they transferred him to the vehicle owned by a certain Emiliano Fucanan. From the said barangay, Romeo was taken to the house of Mayor Placing Mascarinas in Poblacion, Tubigon, Bohol where he was transferred to the ambulance which took him to the Celestino Gallares Memorial Hospital in Tagbilaran City. On the way to the hospital, Felix Celmar asked Romeo what happened to him and the latter answered that he was shot by accused-appellant. (pp. 4-8, July 29, 1996, TSN) Romeo was brought to the emergency room and underwent operation. He however died at about 5:00 p.m. of October 2, 1992, due to septic shock irreversible, generalized peritonitis, gunshot wound, perforating ileum. (pp. 7 & 11, June 18, 1996, TSN)5The defense presented four witnesses, namely: Rogelio Espina, Dr. Harold B. Gallego, Maximiano Dormal and accused-appellant himself.The testimonies of accused-appellant and Maximiano Dormal may be summarized as follows:At around 1:00 o'clock in the afternoon of September 30, 1992, accused-appellant was in the house of Eufronia Pagas to represent his father in a meeting to prepare for a wedding celebration. Among those present in the said gathering were accused-appellant's brother, Rogelio Espina, and the deceased, Romeo Bulicatin who were having a drinking spree. When accused-appellant arrived thereat, Bulicatin asked him to buy 3 bottles of "kulafu" wine to which he acceded. At around 4:00 o'clock of the same afternoon, Bulicatin again demanded another bottle of "kulafu" wine from accused-appellant. The latter, however, refused to obey, prompting Bulicatin to urinate on accused-appellant. This infuriated accused-appellant, but instead of assaulting Bulicatin, he turned his back and walked away because he knew that Bulicatin always carried a knife. When accused-appellant was about 12 meters away from the house of Eufronia Pagas, Bulicatin pursued him. Accused-appellant tried to evade Bulicatin but the latter caught up with him and stabbed him on his side. Consequently, accused-appellant sustained a deep punctured wound but was fortunately able to escape until he passed out.6At around 6:00 o'clock p.m. of the same day, Maximiano Dormal who was then on his way home, saw accused-appellant wounded and lying on the ground. Recognizing the latter, Dormal immediately informed and accompanied accused-appellant's parents who lost no time in bringing him to the hospital.7On the other hand, defense witness Rogelio Espina (Rogelio), declared that in the afternoon of September 30, 1992, he was in the house of Eufronia Pagas, having a drinking spree with Romeo Bulicatin and Samson Abuloc, while his brother, herein accused-appellant, was playing cards. At around 3:00 o'clock p.m., he saw Bulicatin approach accused-appellant and forthwith urinated on him. Thereafter, Bulicatin grabbed accused-appellant under his arms but the latter was able to extricate himself from the hold of Bulicatin and ran away. Rogelio wanted to follow accused-appellant but was prevailed upon by Bulicatin to stay. They then continued their drinking spree until 9:00 o'clock p.m. When they were about to go home, Rogelio heard somebody calling Bulicatin, saying - "Get out, Borgs, as I have something to tell you." According to Rogelio, he is certain that the voice was not that of accused-appellant. When they decided to go home, he was the first one to go downstairs, followed by Samson Abuloc, and then by Bulicatin. Upon reaching the ground, Rogelio heard a gunshot and immediately scampered away without looking back to see who was shot. He claimed that it was only two days after the incident that he came to know who the victim of the shooting incident was. He added that from the house of Eufronia Pagas, he directly went home where he was told by his mother that accused-appellant was stabbed and was brought to the hospital.On August 25, 1997, the trial court rendered the assailed decision, holding as follows:WHEREFORE, Premises Considered, the Court finds the accused, Romeo Espina, guilty beyond reasonable doubt, for the crime of Murder defined and penalized by Article 248 of the Revised Penal Code and Qualified Illegal Possession of Firearms under Presidential Decree No. 1866, as amended by Republic Act No. 8294 and sentences him to suffer the straight penalty of imprisonment of RECLUSION PERPETUA with the inherent accessory penalties provided by law, there being a mitigating circumstance of vindication for a grave offense committed on the accused; to indemnify the heirs of the deceased, Romeo Bulicatin, in the amount of Fifty Thousand (P50,000.00) Pesos; and to pay the costs.SO ORDERED.8Hence, this appeal on the following grounds:ITHAT THE LOWER COURT HAS OVERLOOKED OR MISINTERPRETED THE SIGNIFICANCE OF SOME FACTS OR CIRCUMSTANCES OF WEIGHT AND INFLUENCE APPEARING IN THE RECORD IN FINDING THE ACCUSED GUILTY OF THE OFFENSES CHARGED.IITHAT THE LOWER COURT HAS GRAVELY ABUSED ITS DISCRETION IN FINDING ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE OFFENSES CHARGED.9In particular, accused-appellant points to the following facts and circumstances that had been allegedly overlooked by the trial court, to wit -1) The resolutions of the 2nd Municipal Circuit Trial Court of Tubigon, Bohol in Criminal Case Nos. 1245 and 1246 to the effect that there was no sufficient evidence that accused-appellant had committed the crimes charged;2) The non-presentation of Eufronia Pagas (the owner of the house where the victim and his companions had a drinking spree), despite being listed in the information as one of the witnesses for the prosecution.3) The testimony of prosecution eyewitness Samson Abuloc, that he does not know Felix Celmar who claimed to be one of the persons asked by the former to help him bring the victim to the hospital.4) The incredibility of the testimony of Samson Abuloc as regards his having identified accused-appellant through his voice and the type of firearm used by the latter in shooting the victim as well as his having seen the victim being hit at the back by the first gunshot fired at him by accused-appellant;5) The fact that at about 6:00 o'clock in the evening of September 30, 1992, accused-appellant was found by one Maximiano Dormal lying wounded and groaning near a pathway leading to the latter's house; and6) The length of time that elapsed before Felix Celmar revealed that the victim told him that accused-appellant was the one who shot him.10Accused-appellant makes capital of the November 23, 1992 Resolutions11of the 2nd Municipal Circuit Trial Court of Tagbuin-Clarin Bohol, which found the evidence against accused-appellant to be insufficient after conducting the preliminary investigation. We note, however, that said resolutions were reversed and superseded by the February 2, 1993 Omnibus Resolution12of the Second Assistant Provincial Prosecutor, who, after conducting a re-investigation of the instant case, found probable cause to hold accused-appellant for trial and accordingly filed the corresponding informations against accused-appellant.Moreover, the basis of the investigating judge in declaring insufficiency of evidence does not appear to be substantial. Pertinent portion of said resolution reads:Upon the foregoing facts, the court finds and is satisfied that the offense complained of has been committed, but there is insufficiency of evidence that the herein accused Romeo Espina committed the crime for the simple reason that according to the declaration of Eufronia Pagas who is an unbiased witness as compared to the declaration of Samson Abuloc who was a close barcada of the victim, the herein accused Romeo Espina was not in her house where the drinking spree was held from 6:00 to 9:00 o'clock in the evening of September 30, 1992.13Clearly, the fact that Eufronia did not see accused-appellant in her house between 6:00 9:00 o'clock in the evening of September 30, 1992, does not in any way contradict or refute the claim of the prosecution that accused-appellant left the house of Eufronia at around 4:00 in the afternoon after being urinated on by the victim and thereafter returned at about 9:00 p.m. and shot the victim outside the house of Eufronia.Then too, the non-presentation of Eufronia Pagas as a prosecution witness is not damaging to the case of the prosecution. In Eufronia's affidavit, she declared that after Rogelio Espina, Samson Abuloc and the deceased went out of her house, she heard three gunshots but bothered not to go outside because of fear.14Evidently, Eufronia Pagas is not an eyewitness and her testimony would not do much for the prosecution. At any rate, it is the prosecution's prerogative to determine who should be presented as witnesses on the basis of its own assessment of their necessity.15Hence, its choice of witnesses can not be successfully challenged by accused-appellant.Whether or not prosecution witness Samson Abuloc knew Felix Celmar who claimed to be one of the persons asked by the former to help him bring the victim to the hospital, is of no consequence. As correctly pointed out by the Solicitor General, it is possible that Felix Celmar, a resident of another barangay, is not known by name to Abuloc, especially so since their meeting on that fateful day was only casual.Neither do we find improbable the testimony of Samson Abuloc that he recognized the voice of accused-appellant. Being a friend and a second cousin of accused-appellant, he is expected to be familiar with his voice. So also, we find no reason to doubt the testimony of Abuloc that he was able to identify the pistol used by accused-appellant as well as witnessed the stabbing of the victim at the back. Not only was Abuloc only three to four meters away from accused-appellant,16the prosecution was likewise able to establish that the moonlight illuminating thelocus criminisafforded the witness a clear view of the shooting incident.17The Court has previously held that the light from the stars or the moon, an oven, or a wick lamp or gasera can give ample illumination to enable a person to identify or recognize another.18Under the circumstances, therefore, Abuloc could not have failed to recognize accused-appellant who is not only his "barkada" but a second cousin as well.Contrary to the claim of accused-appellant, the trial court did not overlook his contention that he could not have committed the offenses charged because at around 4:00 o'clock p.m. of September 30, 1992, he was unconscious due to a stab wound. In fact, the trial court treated the same as a defense of denial and alibi. Indeed, these defenses cannot prevail over the categorical and positive identification of accused-appellant by prosecution witness Abuloc who was not shown to have any ill motive to testify falsely against him.19Moreover, it is doctrinally settled that the assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses first hand and to note their demeanor, conduct and attitude under grilling examination.20In the case at bar, the trial court did not err in giving credence to the version of the prosecution. The facts and circumstances alleged to have been overlooked by the trial court are not material to the case and will not affect the disposition thereof.The alleged dying declaration of the victim should not have been admitted as anante mortemstatement, considering that the prosecution failed to show that the subject declaration was made under the consciousness of an impending death. Prosecution witness Celmar testified that on the way to the hospital, the victim told him that it was accused-appellant who shot him. Though the victim eventually died two days after he was shot, there is nothing in the records that would show that the victim was under the impression that he was going to die. However, the declaration of the deceased pointing to accused-appellant as the culprit is admissible as part ofres gestae.Having been made shortly after a startling occurrence and under the influence thereof, the victim evidently had no opportunity to contrive.21Furthermore, the delay of Felix Celmar in revealing the declaration of accused-appellant does not make Celmar's testimony unworthy of belief. Delay in revealing the identity of the perpetrator of a crime does not necessarily impair the credibility of a witness, especially where such witness gives a sufficient explanation. In the case at bar, such delay was amply explained by the witness. Celmar testified that it took him four months to reveal what he knew because he thought he would not be utilized as witness for the prosecution. Moreover, after the incident, he had to leave for his work in Albay.In convicting accused-appellant, the trial court appreciated the special aggravating circumstance of use of unlicensed firearm, pursuant to P.D. No. 1866, as amended by R.A. No. 8294. Considering the penalty provided for in Article 248 of the Revised Penal Code, as amended by R.A. No. 7659, the trial court imposed the penalty of death on accused-appellant. However, in view of the suspension of the imposition of the death penalty then, accused-appellant was sentenced to suffer the penalty ofreclusion perpetua.The third paragraph, Section 1, of R.A. No. 8294 (which took effect on July 6, 1997), amending P.D. No. 1866, provides that "If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be used as an aggravating circumstance." This amendment, however, cannot be applied in the present case. It bears stressing that when the offenses at bar were perpetrated on September 30, 1992, the unlicensed firearm used in taking the life of another was not yet a special aggravating circumstance in murder or homicide. Not being favorable to the accused, the amendatory provision cannot be applied to accused-appellant, lest it acquires the character of anex postfactolaw.22Likewise, the trial court erred in treatingalevosiamerely as a generic aggravating circumstance, moreso in offsetting the same by the generic mitigating circumstance of having committed the crime in immediate vindication of a grave offense. The treachery employed by accused-appellant in shooting the victim is actually a circumstance that qualified the killing to murder. Such being the case, treachery cannot be offset by a mitigating circumstance.The trial court correctly appreciated the mitigating circumstance of having acted in immediate vindication of a grave offense. As the evidence on record show, accused-appellant was urinated on by the victim in front of the guests. The act of the victim, which undoubtedly insulted and humiliated accused-appellant, came within the purview of a "grave offense" under Article 13, paragraph 5, of the Revised Penal Code. Thus, this mitigating circumstance should be appreciated in favor of accused-appellant.As to the imposable penalty, the applicable provision is Article 248 of the Revised Penal Code before its amendment by R.A. No. 7659 on December 31, 1993, the crime having been committed on September 30, 1992. Thereunder, the penalty for murder wasreclusion temporalin its maximum period to death. With one generic mitigating circumstance and no aggravating circumstance to offset it, the penalty should be imposed in its minimum period,i.e.,reclusion temporalmaximum. Applying the Indeterminate Sentence Law, accused-appellant should be sentenced to an indeterminate penalty of eight (8) years and one (1) day ofprision mayor, as minimum, to seventeen (17) years, four (4) months, and one (1) day ofreclusion temporal, as maximum.WHEREFORE, the Decision of the Regional Trial Court of Tagbilaran, Branch 47, in Criminal Case Nos. 8194 and 8195 finding the accused-appellant Romeo Espina guilty beyond reasonable doubt of the crime of murder, isAFFIRMEDwithMODIFICATIONthat the accused-appellant is hereby sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day ofprision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day ofreclusion temporal, as maximum; and to pay the heirs of Romeo Bulicatin the sum of P50,000.00 as death indemnity and to pay the costs.1wphi1.ntSO ORDERED.G.R. No. 122934. January 5, 2001.*PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANGEL PRECIADOS (At Large), ARTURO ENAD, EMIGDIO VILLAMOR, LEONCIO ALGABRE and FLORIANO ALGABRE @ LOLOY, accused. ARTURO ENAD, accused-appellant.Witnesses; Where the credibility of a witness is an issue, the established rule is that great respect is accorded to the evaluation of the credibility of witnesses by the trial court.Where the credibility of a witness is an issue, the established rule is that great respect is accorded to the evaluation of the credibility of witnesses by the trial court. It is in the best position to determine the issue of credibility of a witness, having heard his testimony and observed his deportment and manner of testifying. But, where there is a showing that the trial court overlooked material and relevant facts, which could affect the outcome of a case, the Court will not hesitate to set aside the lower courts findings and assessments regarding the credibility of witnesses.Same; The identification of an accused through his voice is acceptable, particularly if the witness knows the accused personally; Where the witness fails to remain consistent on important details, such as the identity of the person whose voice she heard, a suspicion is created that material particulars in her testimony had indeed been altered.We find Helens testimony riddled with inconsistencies and improbabilities which could affect the outcome of this case. Helen testified that upon hearing a different voice downstairs, she peeped through a two-inch hole in the floor and saw, with the moonlight cascading through the windows of the old mill, the accused forcibly make her husband, Primo, swallow poison. On direct examination, she stated, she heard the words Dont move. Under crossexamination, she said what she heard was Dont move so that the grenade will not be exploded. As the cross-examination progressed, however, she declared that what she actually heard was Dont move otherwise your family will be included. She initially admitted that the first words were uttered by a voice unknown to her. On further grilling by the defense, she claimed she recognized the voice as appellants. Relentless crossexamination, however, yielded an admission that it was the voice of accused Villamor she heard first. The identification of an accused through his voice is acceptable, particularly if the witness knows the accused personally. But the identification must be categorical and certain. We observed that the witness changed her version a number of times. A startling or frightful experience creates an indelible impression in the mind such that the experience can be recalled vividly. Where the witness, however, fails to remain consistent on important details, such as the identity of the person whose voice she heard, a suspicion is created that material particulars in her testimony had indeed been altered. If an eyewitness contradicts himself on a vital question, the element of reasonable doubt is injected and cannot be lightly disregarded.Same; Criminal Law; Murder; The wifes account that her husband violently struggled against his murderers yet soundlessly gulped down the poison they made him drink is unnatural.Her testimony regarding the murder of her husband, Primo, is less than credible. She said that while Primo struggled not to imbibe the poison, he did not utter a sound. According to her, Primo could not utter a sound as his neck was clipped, or headlocked as the trial court puts it. There was no showing, however, that the victims mouth was muffled to prevent him from shouting for help. From her testimony, she could have easily asked for help. It will be recalled that barangay captain and their neighbors quickly responded to her mother-in-laws shout for help after seeing Primos corpse. Helens account, that her husband violently struggled against his murderers yet soundlessly gulped down the poison they made him drink, is unnatural. It evokes disbelief. Evidence to be believed must not only proceed from the mouth of a credible witness but it must also be credible by itself, and must conform to the common experience and observation of mankind.Same; Same; Same; Hearsay Rule; Dying Declarations; Requisites; Words and Phrases; A dying declaration is the statement which refers to the cause and surrounding circumstances of the declarants death, made under the consciousness of an impending death, and it is admissible in evidence as an exception to the hearsay rule because of necessity and trustworthiness.A dying declaration is the statement which refers to the cause and surrounding circumstances of the declarants death, made under the consciousness of an impending death. It is admissible in evidence as an exception to the hearsay rule because of necessity and trustworthiness. Necessity, because the declarants death makes it impossible for him to take the witness stand and trustworthiness, for when a person is at the point of death, every motive for falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth. The requisites for the admissibility of a dying declaration are: (1) the death is imminent and the declarant is conscious of that fact; (2) the declaration refers to the cause and surrounding circumstances of such death; (3) the declaration relates to facts which the victim is competent to testify; (4) the declarant thereafter dies; and (5) the declaration is offered in a criminal case wherein the declarants death is the subject of inquiry.Same; Same; Same; Same; Same; A dying declaration is essentially hearsay, because one person is testifying on what another person stated; It is patently incorrect for a trial court to allow a prosecution witness to testify on a so-called dying declaration where the declarant is alive.In the present case, the foregoing requisites were not met. A dying declaration is essentially hearsay, because one person is testifying on what another person stated. This is because the declarant can no longer be presented in court to identify the document or confirm the statement, but more important, to be confronted with said statement by the accused and be crossexamined on its contents. It was patently incorrect for the trial court to have allowed prosecution witness PO3 Leonardo Inoc to testify on Antonios so-called dying declaration because Antonio was alive and later even testified in court. Same; Same; Same; Same; Res Gestae; Requisites; Where a victims statement may not be admissible as an ante mortem declaration, it may nonetheless be considered as part of the res gestae, if made immediately after a startling occurrence in relation to the circumstances thereof and when the victim did not have time to contrive a falsehood.But was the purported ante-mortem statement part of the res gestae? Where a victims statement may not be admissible as an ante mortem declaration, it may nonetheless be considered as part of the res gestae, if made immediately after a startling occurrence in relation to the circumstances thereof and when the victim did not have time to contrive a falsehood. For res gestae to be allowed as an exception to the hearsay rule, the following requisites must be satisfied: (1) that the principal act or res gestae be a starting occurrence; (2) the statement is spontaneous or was made before the declarant had time to contrive or devise, and the statement is made during the occurrence or immediately prior or subsequent thereto; and (3) the statement made must concern the occurrence in question and its immediately attending circumstances.Same; Same; Same; Same; Same; Thirty-nine hours is too long a time to be considered immediately subsequent to the startling event occurrenceeven as contemplated by the rules, statements given a day after the incident in answer to questions propounded by an investigator cannot be considered part of the res gestae.The element of spontaneity is lacking in the alleged ante-mortem statement. Antonios statement was taken by PO3 Inoc at around 3:00 oclock P.M., May 14, 1992 or some thirty-nine (39) hours after the incident. Thirty-nine hours is too long a time to be considered subsequent immediately (stress supplied) to the startling occurrence. Even as contemplated by the rules, statements given a day after the incident in answer to questions propounded by an investigator cannot be considered part of the res gestae. Furthermore, the testimony of the declarant, that the statement was made under threats and with coaching from losing candidates Ermac and Viva in order to get even with the winning candidate, Mayor Aana, is uncontroverted.Same; Same; Same; Same; Same; Dying declarations and statements which form part of the res gestae are exceptions to the hearsay rule, thus they must be strictly but reasonably construed and must extend only insofar as their language fairly warrants.Dying declarations and statements which form part of the res gestae are exceptions to the hearsay rule, thus they must be strictly but reasonably construed and must extend only insofar as their language fairly warrants. Thus, doubts should be resolved in favor of applying the hearsay rule, rather than the exceptions. Under said rule, Antonios so-called ante-mortem statement should not have been admitted in evidence, for it is neither a dying declaration nor a part of res gestae.Same; Retractions and Recantations; As a rule, retractions are generally unreliable and are looked upon with considerable disfavor by the courts because of the probability that recantation may later on be itself repudiated.Next we consider whether the trial court could properly rely on Antonios affidavit dated May 22, 1994 naming the persons responsible for the poisoning incident, notwithstanding his subsequent repudiation of said affidavit. As a rule, retractions are generally unreliable and are looked upon with considerable disfavor by the courts because of the probability that recantation may later on be itself repudiated. Furthermore, retractions can easily be obtained from witnesses through intimidation or for monetary consideration, and a mere retraction does not necessarily negate an earlier declaration. When faced with a situation where a witness recants an earlier statement, courts do not automatically exclude the original testimony. The original declaration is compared with the new statement, to determine which should be believed.Same; Affidavits; Hearsay Rule; Unless an affiant himself takes the witness stand to affirm the averments in his affidavit, the affidavit must be excluded from the judicial proceeding for being inadmissible as hearsay. The trial court rejected Antonios retraction of his affidavit dated May 22, 1992, for being contrary to human experience and inherently unworthy of belief. The trial court cited, by way of illustration, the portion of the affidavit where Antonio claimed that after he and Primo agreed to commit suicide and drinking a bottle of insecticide, Antonio wrote a farewell letter to his barangay-mates. We note, however, that Antonios second affidavit should have been rejected together with the first affidavit. Unless an affiant himself takes the witness stand to affirm the averments in his affidavit, the affidavit must be excluded from the judicial proceeding for being inadmissible as hearsay. In this case the affiant expressly refused to confirm the contents of his first affidavit. Instead, he testified that said affidavit, Exhibit E was prepared under grave threats and severe pressure from Ermac and Viva. His earlier affidavits contents were hearsay, hence inadmissible in evidence.Same; Denials; Denial, if unsubstantiated by clear and convincing evidence, is a negative and self-serving evidence undeserving of any weight in law.Appellants defense of denial in the present case is inherently weak. Denial, if unsubstantiated by clear and convincing evidence, is a negative and self-serving evidence undeserving of any weight in law. But such weakness does not excuse the prosecution from presenting the adequate quantum of proof of the crime charged. The guilt of the accused must be proved beyond reasonable doubt. And the prosecutions evidence must stand or fall on its own weight. It cannot rely on the weakness of the defense. In the instant case, the prosecution failed to prove the guilt of appellant with moral certainty. The testimony of its single purported eyewitness, while positive, was less than credible. It did not meet the test such testimony of a lone witness to sustain a judgment of conviction, must be both positive and credible. In our view, the burden of proof required for conviction of appellant has not been adequately discharged by the prosecution. [People vs. Preciados, 349 SCRA 1(2001)]QUISUMBING,J.:Accused-appellant Arturo Enad1assails the decision rendered by the Regional Trial Court of Tagbilaran City, Branch 1, in two consolidated cases, Criminal Case No. 7887 for murder and Criminal Case No. 7888 for frustrated murder. It convicted and sentenced him toreclusion perpetuain the first case and to a prison terms of six (6) years and one (1) day ofprision mayor, as minimum to twelve (12) years and one (1) day ofreclusion temporal, as maximum, in the second case.1wphi1.ntIn Criminal Case No. 7887, the Office of the Provincial Prosecutor of Bohol charged Angel Preciados, Arturo Enad, Emigdio Villamor, Leoncio Algabre, and Floriano Algabre alias "Loloy" with murder allegedly committed as follows:The on or about the 12thto the 13thday of May 1992, in the municipality of Sagbayan, province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping with (sic) one another, with intent to kill and without justifiable cause, did then and there, willfully, unlawfully, and feloniously pour poison into the mouth of one Primo Hilbero whereby causing the victim's untimely death; to the damage and prejudice of the heirs of the deceased in the amount to be proved during the trial.Acts committed contrary to the provisions of Article 248 of the Revised Penal Code, as amended, with the aggravating circumstances of (1) treachery, the victim being unaware and unsuspecting and (2) abuse of superior strength, two of the accused being armed with deadly weapons which they used in intimidating, threatening and forcing the victim to drink the poison.2In Criminal Case No. 7888, the same persons were charged with frustrated murder. The charge sheet reads:That on or about the 12thto the 13thday of May, 1992, in the municipality of Sagbayan, province of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping with (sic) one another, with intent to kill and without justifiable cause, did then and there willfully, unlawfully and feloniously pour poison into the mouth of one Antonio Hilbero thereby inflicting serious injuries on the victim's body; thus, the accused having performed in said manner all the acts of execution which would have produced the crime of Murder as a consequence, but which nevertheless did not produce it by reason of a cause independent of their will, that is, by the timely medical attendance and treatment rendered the damage and prejudice of the said offended party in the amount to be proved during the trial (sic).Acts committed contrary to the provisions of Article 248 in relation to Articles 6 and 50 of the Revised Penal Code, as amended, with the aggravating circumstances of (1) treachery, the victim being unaware and unsuspecting and (2) abuse of superior of strength two of the accused being armed with deadly weapon which they to used in intimidating, threatening and forcing the victim to drink the poison.3The informations were both dated July 20, 1992 but the cases were tried before differentsalas. Branch 4 of the Regional Trial Court of Tagbilaran City, tried Criminal Case No. 7887, while Branch 3 tried Criminal Case No. 7888.On August 26, 1992, the accused in Criminal Case No. 7888 were ordered arrested. But the police failed to apprehend any of the accused. Preciados and the Algebres were reported to have gone into hiding in Mindanao, while Enad and Villamor went to Cebu City. It was only on July 20, 1993, when appellant Arturo Enad was arrested. Arraigned in Criminal Case No. 7887, he pleaded not guilty. He waived pre-trial and the case was set for trial.On September 13, 1993, Judge Achilles L. Melicor of Branch 4, RTC of Tagbilaran City, inhibited himself from Criminal Case No. 7887, since the accused were the political leaders of Mayor Arthur Melicor-Aana, his cousin, while the victims were supporters of the mayor's political rival, Narzal B. Ermac.On February 14, 1994, Criminal Case No. 7888 was revived and jointly tried with Criminal Case No. 7887 in Branch 1, RTC of Tagbilaran City. Arraigned in Criminal Case No. 7888 on February 15, 1994, appellant entered a plea of not guilty. Thereafter, Criminal Cases Nos. 7887 and 7888 were jointly tried, without prejudice to the separate arraignment and trial of the other accused who continued to evade arrest.The facts of the case, culled from the prosecution's presentation, are as follows:Appellant and Antonio Hilbero,4the victim in Criminal Case No. 7888, are second cousins. Both are residents of Ubujan, Sagbayan, Bohol. Appellant is also a cousin of Primo Hilbero's mother-in-law. Primo Hilbero is the victim in Criminal Case No. 7887.During the May 11, 1992 elections, appellant and Antonio supported rival mayoralty candidates of Sagbayan. Appellant was a supporter and poll watcher of Arthur Aana, while Antonio, a barangay councilman of Ubujan, was a partisan of Narzal Ermac. Appellant's co-accused were also identified with Aana who won.At around 11:00 p.m. of May 12, 1992, Antonio with his common law wife and their two children, his brother, Primo and his wife, Helen with their three children, Antonio's mother, Dominga, and another brother, Severino were at the second floor of the old rice mill at Ubujan. Except for Helen, the clan had retired for the night. She was about to go to sleep when she noticed Antonio go downstairs. Minutes later, her husband Primo, followed him. Then she heard someone utter, "Don't move." Alarmed, she rose from her mat and peeped through a two-inch hole in the floor.5The ground floor was illuminated by moonlight. She saw appellant holding a hand grenade while his other arm was locked in a stranglehold around the neck of Antonio who knelt on the floor.6Nearby stood Angel Preciados with a gun pointed at Antonio.7She then heard Emigdio Villamor say "Don't move so that your family will not die." She saw the latter forcing Primo to shallow an object.8The other accused held her husband to prevent him from struggling. Shocked, Helen then soundlessly cried and embraced her children. Shortly afterwards, Helen's mother-in-law, Dominga, was awakened by the barking of the family dog. Dominga went downstairs where she saw Primo lifeless on the floor, reeking of poison.9Antonio was nowhere to be found. Dominga rushed upstairs and woke up Severino, all the while shouting for help. Minutes later, the barangay captain and some neighbors responded to her shouts for assistance. They found Primo dead on the floor. Informed that Antonio was missing, they searched the immediate surroundings for him but to no avail.10Early in the morning of May 13, 1992, the search for Antonio was resumed. He was finally found by his uncle, Simeon Degamo, holding on to rock in a natural well, some 300 meters away from the rice mill. A rope was thrown to him and he was pulled out from the well. Noticing that he smelled of some poisonous chemical, his rescuers made him drink coconut milk.11He was weak and appeared on the verge of death and brought to the hospital at Clarin, Bohol for emergency treatment.The next day, prosecution witness Zosimo Viva,12a defeated municipal councilor candidate in the same slate of Ermac, Antonio's common law wife, and two police investigators transferred Antonio to the Gov. Celestino Gallares Memorial Hospital in Tagbilaran City.13According to prosecution witness Dr. Mayda14Reyes who admitted Antonio to the hospital, Antonio told her that the latter was forced to drink a certain liquid, which smelled like insecticide.15Another physician, Dr. Maria Luisa Tage, who attended to Antonio diagnosed, "Poisoning, Etiology not determined, Brief reactive psychosis."16Since Antonio appeared to be dying, prosecution witness PO3 Leonardo Inoc, a police investigator, took his "ante-mortem" statement17in which he named the aforementioned accused as the persons responsible for poisoning him and dropping him in the well.18Meanwhile, Ermac asked the National Bureau of Investigation (NBI) to conduct an investigation.19The toxicological examination of Primo's body revealed the presence ofmethamidophos, the active ingredient of the insecticide "Tamaron" in Primo's organs.20The NBI also recovered two empty bottles, at the scene of the incident. Chemistry tests on them revealed that the "Hoechst" bottle was positive fordeltamethrine, an insecticide, while the other bottle revealed traces ofmethamidophos.21Appellant denied any involvement in the poisoning incident. He claimed an alibi. He said he spent the whole night of May 11, 1992, in the municipal hall of Sagbayan, as a watcher for the party of Mayor Aana. He went home early morning of May 12, 1992 and spent the whole day repairing his pigpens even if he had not slept the previous night. At around seven o'clock P.M. his wife and he went to the house of his co-accused Angel Preciados to attend the birthday party of the latter's son.22Afterwards, they returned home and went to sleep.23He woke up at around 9:00 A.M. and learned about the incident. He went to the old rice mill to find out more about the poisoning incident and saw the Hilberos. When he asked Helen what happened, she said she knew nothing about the death of her husband.24Later that day, he returned to Cebu City where he worked as a crane operator. He could not think of any reason why he would be suspected for committing a crime, as he was on good terms with the victims.25The defense offered a different version of the poisoning incident. According to the defense, Antonio and Primo agreed to commit suicide by taking poison.26It presented Antonio's affidavit dated February 28, 1994,27where he recanted his story in his affidavit of May 22, 1992.28Antonio testified that he and Primo decided to commit suicide by drinking poison to prevent defeated candidates Ermac and Viva from harming their families. Antonio refused to follow the orders of Viva to kill the political leaders of Mayor Aana, including the appellant. Thus, Antonio said, he and Primo feared for the lives of their relatives. After Primo and he drank poison, Primo immediately died. When he did not succumb right away, Antonio wrote a suicide note and tried to drown himself in the well.29After his rescue, Ermac and Viva took him into custody and bought him to Mindanao, allegedly for his safety.30The two, however, threatened to kill him and made him falsely charge the appellant with murder and frustrated murder.31Antonio totally repudiated his "ante-mortem"statement and his earlier affidavit charging the accused with murder and frustrated murder.Testifying for the defense, P/Col. Benjamin Absalon, of the Bohol Provincial Command of the Philippine National Police, testified that the police investigation revealed that Primo's death by poison was not due to foul play. He declared that they did not finish their investigation because Antonio disappeared from the hospital before they could interview him.32To rebut Antonio's testimony, Dr. Mayda Reyes was called anew to confirm what Antonio had told her, that he was forced to drink poison by several men.33SPO1 Leonardo Inoc testified again that he took Antonio's "ante-mortem" statement.34Apolinario Libranza, barangay captain of Ubujan, Sagbayan was presented to refute Antonio's claims regarding Zosimo Viva.35Antonio's mother, Dominga, testified that her son was not afraid of either Viva or Ermac36and affirmed the truthfulness of Helen's testimony.37In sur-rebuttal, Antonio maintained the veracity of his suicide account.Finding the prosecution's version more credible, the trial court on January 2, 1995, convicted appellant of the crimes charged in Criminal Cases Nos. 7887 and 7888. It concluded:PREMISES CONSIDERED, in Criminal Case No. 7887 the Court finds the accused Arturo Enad GUILTY of the crime of Murder punished under Article 248 of the Revised Penal Code and hereby sentences him to suffer an imprisonment ofRECLUSION PERPETUAwith the accessories of the law and to pay the costs.The accused Arturo Enad is further ordered to indemnify the surviving spouse of the deceased Primo Hilbiro (sic) in the amount of P50,000.00 representing indemnity and P50,000.00 representing moral and exemplary damages. In both instances without subsidiary imprisonment in case of insolvency.In Criminal Case No. 7888, the Court finds the accused Arturo Enad GUILTY of the crime of Frustrated Murder under Article 248 in relation with (sic) Articles 6 and 50 of the Revised Penal Code, as amended and hereby sentences him to suffer an Indeterminate Sentence from SIX (6) YEARS and ONE (1) DAY, the Minimum of the Minimum Period ofPrision Mayor, as Minimum, to TWELVE (12) YEARS and ONE (1) DAY, the Minimum of the Minimum Period ofReclusion Temporal, as Maximum, with the accessories of the law and to pay the cost.The Court makes no pronouncement as to indemnity and damages for the Court viewed the retraction of the complainant Antonio Hilbiro (sic) of his previous testimony, as a waiver of indemnity.It appearing that the accused Arturo Enad has undergone preventive imprisonment in Criminal Cases Nos. 7887 and 7888 he is entitled to the full time of his preventive imprisonment to be deducted from his term of sentences (sic) if he has executed a waiver.SO ORDERED.38On July 25, 1995, appellant filed his notice of appeal to this Court. On November 20, 1996, the Office of Legal Aid of the U.P. College of Law entered its appearance as counsel.Before us, appellant poses the following questions for resolution:1. WHETHER OR NOT THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE CONTRADICTORY AND IMPROBABLE TESTIMONIES OF THE WITNESSES OF THE PROSECUTION.2. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING AND GIVING WEIGHT TO THE DOCUMENTARY EVIDENCE PRESENTED BY THE PROSECUTION.3. WHETHER OR NOT THE TRIAL COURT ERRED IN NOT HOLDING THAT THE PROSECUTION FAILED TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT AND IN DISMISSING THE DEFNESE OF HE ACCUSED.In sum, appellant raises the following issues:First, Did the trial court err in giving credence to the testimony of alleged eyewitness Helen Hilbero?Second, Did the lower court err in relying on "dying statement" of Antonio Hilbero?Third, Did the prosecution evidence successfully overcome the presumption of innocence in favor of the accused?Thefirst issuedeals with the credibility of prosecution witness Helen Hilbero. Appellant argues that the testimony of the sole prosecution eyewitness, Helen Hilbero, is doubtful. He points out that it was odd that despite witnessing her husband murdered and her brother-in-law poisoned, Helen did not make a statement to the police on what she witnessed; that while the police took the sworn statement of Dominga, the mother of Primo and Antonio, they did not take the statement of the widow, who allegedly saw everything; and that even after meeting appellant face to face on the morning of May 13, 1992, no confrontation occurred between appellant and her. Furthermore, the prosecution did not rebut appellant's testimony that Helen admitted to appellant that she did not know what happened to her husband and brother-in-law. The prosecution suggests that Helen's testimony was a mere concoction of the political opponents of Mayor Aana and that Helen was coached on her testimony when it became apparent to Ermac and Viva that Antonio would not testify the way they wanted.The Office of the Solicitor General, for its part, contends that there is nothing unnatural in Helen's failure to immediately disclose what she knew. The failure to reveal the identities of the perpetrators should not impair her credibility since there is no set standards of human behavior when one is confronted with a strange, striking, or frightful experience. Moreover, she had her reasons to keep what she knew to herself. The accused were her neighbors and they could easily cause her and her family harm. Thus, the trial court, the OSG said, committed no error in relying on her testimony to convict appellant.Where the credibility of a witness is an issue, the established rule is that great respect is accorded to the evaluation of the credibility of witnesses by the trial court. It is in the best position to determine the issue of credibility of a witness, having heard his testimony and observed his deportment and manner of testifying.39But, where there is a showing that the trial court overlooked material and relevant facts, which could affect the outcome of a case,40the Court will not hesitate to set aside the lower court's findings and assessments regarding the credibility of witnesses.In giving full faith and credence to the testimonies of the prosecution witnesses, the trial court explained:The findings of the court relative to the credibility of the witnesses militate in favor of the prosecution witnesses (citations omitted). The court took into consideration 'the most important factor(s) (of) each witness, his manner and behavior on the witness stand and the general characteristics, tone, tenor and inherent probability of his statement (citations omitted)' for in most instances 'the demeanor of a witness on the witness stand is often a better evidence of his veracity than the answer he gives (citations omitted)' and 'it is perfectly reasonable to believe the testimony of a witness with respect to other parts. Everytime when witnesses are found to have deliberately falsified some material particulars it is not required that the whole of their uncorroborated testimony be rejected but some portions thereof deemed worthy of belief may be credited. (emphasis ours).41On record the lower court heavily relied on the testimony of Helen. However, it did not make any categorical finding as to her credibility or the veracity of her account.We find Helen's testimony riddled with inconsistencies and improbabilities which could affect the outcome of this case. Helen testified that upon hearing a different voice downstairs, she peeped through a two-inch hole in the floor and saw, with the moonlight cascading through the windows of the old mill, the accused forcibly make her husband, Primo, swallow poison.42On direct examination, she stated, she heard the words "Don't move."43Under cross-examination, she said what she heard was "Don't move so that the grenade will not be exploded." As the cross-examination progressed, however, she declared that what she actually heard was "Don't move otherwise your family will be included." She initially admitted that the first words were uttered by a voice unknown to her. On further grilling by the defense, she claimed she recognized the voice as appellant's Relentless cross-examination, however, yielded an admission that it was the voice of accused Villamor she heard first.44The identification of an accused through his voice is acceptable, particularly if the witness knows the accused personally.45But the identification must be categorical and certain. We observed that the witness changed her version a number of times. A startling or frightful experience creates an indelible impression in the mind such that the experience can be recalled vividly.46Where the witness, however, fails to remain consistent on important details, such as the identity of the person whose voice she heard, a suspicion is created that "material particulars" in her testimony had indeed been altered. If an eyewitness contradicts himself on a vital question, the element of reasonable doubt is injected and cannot be lightly disregarded.47Helen's testimony contained contradictory statements. In one instance she said she witnessed the fatal poisoning of her husband by the accused because the mil was lit by moonlight. In another instance she said the mill was dark and unlit.48On further cross-examination she claimed that she witnessed the events because of the bright moonlight.49First, she said the moonlight was very bright50then later she said the moon was not very full.51The defense showed that during that night, five nights before its fullness, the moon was in its first quarter52and it was not as bright as a full moon. Note also that Helen's view of the event was limited because she was only peeping through a small hole. Under these conditions, Helen's flip-flopping testimony created serious doubts regarding its veracity and credibility. Thus her testimony concerning the destruction of the bamboo slats in one window of the mill invites serious doubt. The mill had two windows covered with bamboo slats. To enter the mill through the windows, the bamboo slats must be destroyed. Yet, Helen did not hear the sound of the bamboo slats being destroyed, which was the only way the intruders could have entered.Her testimony regarding the murder of her husband, Primo, is less than credible. She said that while Primo struggled not to imbibe the poison, he did not utter a sound. According to her, Primo could not utter a sound as his neck was "clipped", or "headlocked" as the trial court puts it.53There was no showing, however, that the victim's mouth was muffled to prevent him from shouting for help. From her testimony, she could have easily asked for help. It will be recalled that barangay captain and their neighbors quickly responded to her mother-in-law's shout for help after seeing Primo's corpse.54Helen's account, that her husbandviolentlystruggled against his murderers yetsoundlesslygulped down the poison they made him drink, is unnatural. It evokes disbelief. Evidence to be believed must not only proceed from the mouth of a credible witness but it must also be credible by itself, and must conform to the common experience and observation of mankind.55As a rule, an eyewitness testimony cannot be disregarded on account of the delay in reporting the event, so long as the delay is justified.56In this case, Helen kept silent for almost two years. She had no affidavit during the preliminary investigation.57It was only at the trial that she came out to say she witnessed her husband's murder. She did not explain why. Her long silence is out of character and appears inconsistent with her behavior in immediately reporting to the police and the barangay captain an incident when an unidentified man accosted her on the whereabouts of Antonio.58Additionally, on direct testimony, she declared that she knew that Antonio was found in a hole filled with water on the morning of May 13, 1992.59Yet, cross-examination, she declared that she did not know where his rescuers found Antonio that morning.60Such contradictory statements tend to erode Helen's credibility as a prosecution witness and raise serious doubt concerning the prosecution's evidence.On thesecond issue, appellant submits that the trial court erred when it admitted and gave much weight to the probative value of the "ante mortem" statement of Antonio.61Appellant contends that the statement can neither be considered as dying declaration under Rule 130, Sec. 3762nor part of theres gestaeunder Rule 130, Section 4263of the Rules of Court. It is inadmissible for being hearsay. Furthermore, he avers it was error for the trial court to give weight to the first affidavit of Antonio,64since Antonio repudiated the same, stating that its contents were false. According to appellant, Antonio claimed said affidavit was given under duress.1wphi1.ntThe Solicitor General, for its part, argues that Antonio's actions during and immediately after the incident were completely inconsistent with those of a person who allegedly wanted to commit suicide. Hence, his retraction should be looked at with jaundiced eye, following our ruling inPeople v. Junio, 237 SCRA 826 (1994), where we held that retractions are generally unreliable and looked upon with considerable disfavor.A dying declaration is the statement which refers to the cause and surrounding circumstances of the declarant's death, made under the consciousness of an impending death."65It is admissible in evidence as an exception to the hearsay rule66because of necessity and trustworthiness. Necessity, because the declarant's death makes it impossible for him to take the witness stand67and trustworthiness, for when a person is at the point of death, every motive for falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth.68The requisites for the admissibility of a dying declaration are: (1) the death is imminent and the declarant is conscious of that fact; (2) the declaration refers to the cause and surrounding circumstances of such death; (3) the declaration relates to facts which the victim is competent to testify; (4) the declaration thereafter dies; and (5) the declaration is offered in a criminal case wherein the declarant's death is the subject of inquiry.69In the present case, the foregoing requisites were not met. A dying declaration is essentially hearsay, because one person is testifying on what another person stated. This is because the declarant can no longer be presented in court to identify the document or confirm the statement, but more important, to be confronted with said statement by the accused and be cross-examined on its contents.70It was patently incorrect for the trial court to have allowed prosecution witness PO3 Leonardo Inoc to testify on Antonio's so-called "dying declaration" because Antonio was alive and later even testified in court.But was the purportedante-mortemstatement part of theres gestae? Where a victim's statement may not be admissible as anante mortemdeclaration, it may nonetheless be considered as part of theres gestae, if made immediately after a startling occurrence in relation to the circumstances thereof and when the victim did not have time to contrive a falsehood.71Forres gestaeto be allowed as an exception to the hearsay rule, the following requisites must be satisfied: (1) that the principal act orres gestaebe a startling occurrence; (2) the statement is spontaneous or was made before the declarant had time to contrive or devise, and the statement is made during the occurrence or immediately prior or subsequent thereto; and (3) the statement made must concern the occurrence in question and its immediately attending circumstances.72In this case, the element of spontaneity is lacking in the allegedante-mortemstatement. Antonio's statement was taken by PO3 Inoc at around 3:00 o'clock P.M., May 14, 1992 or some thirty-nine (39) hours after the incident. Thirty-nine hours is too long a time to be considered subsequent immediately (stress supplied) to the startling occurrence. Even as contemplated by the rules, statements given a day after the incident in answer to questions propounded by an investigator cannot be considered part of theres gestae.73Furthermore, the testimony of the declarant, that the statement was made under threats and with coaching from losing candidates Ermac and Viva in order to get even with the winning candidate, Mayor Aana, is uncontroverted.74Dying declarations and statements which form part of theres gestaeare exceptions to the hearsay rule, thus they must be strictly but reasonably construed and must extend only insofar as their language fairly warrants.75Thus, doubts should be resolved in favor of applying the hearsay rule, rather than the exceptions. Under said rule, Antonio's so-calledante-mortemstatement should not have been admitted in evidence, for it is neither a dying declaration nor a part ofres gestae.Next we consider whether the trial court could properly rely on Antonio's affidavit dated May 22, 1994 naming the persons responsible for the poisoning incident, notwithstanding his subsequent repudiation of said affidavit. As a rule, retractions are generally unreliable and are looked upon with considerable disfavor by the courts76because of the probability that recantation may later on be itself repudiated.77Furthermore, retractions can easily be obtained from witnesses through intimidation or for monetary consideration,78and a mere retraction does not necessarily negate an earlier derclaration.79When faced with a situation where a witness recants an earlier statement, courts do not automatically exclude the original testimony. The original declaration is compared with the new statement, to determine which should be believed.80In this case, the trial court rejected Antonio's retraction of his affidavit dated May 22, 1992, for being contrary to human experience and inherently unworthy of belief. The trial court cited, by way of illustration, the portion of the affidavit where Antonio claimed that after he and Primo agreed to commit suicide and drinking a bottle of insecticide, Antonio wrote a farewell letter to his barangay-mates. We note, however, that Antonio's second affidavit should have been rejected together with the first affidavit. Unless an affiant himself takes the witness stand to affirm the averments in his affidavit, the affidavit must be excluded from the judicial proceeding for being inadmissible hearsay.81In this case the affiant expressly refused to confirm the contents of his first affidavit. Instead, he testified that said affidavit, Exhibit "E" was prepared under grave threats and severe pressure from Ermac and Viva.82His earlier affidavit's contents were hearsay, hence inadmissible in evidence.Noted further that Exhibit "E" and its sub-markings were offered, to prove that Antonio testified in detail before NBI Agent Atty. Amador Robeniol about what happened to him and his brother Primo in the hands of the five accused."83Even if said Exhibit was admissible, all that it proves is that Antonio testified and executed an affidavit before the NBI. It does not prove the truthfulness of the allegations made and contained therein.Coming now to thethird issue:has the prosecution succeeded in proving appellant's guilt beyond reasonable doubt?The records show that the only direct evidence linking appellant to the crimes charged and for which he was convicted are the direct testimony of eyewitness Helen Hilbero and the contents of Exhibit "E." But as discussed earlier, neither can be given much probative value. As to the testimonies of the other prosecution witnesses, we find them insufficient to convict appellant as none of them had any personal knowledge of facts that would directly link appellant to the offenses charged. Even if these witnesses testified in a straightforward and categorical manner, their testimonies contained insufficient evidence to establish appellant's guilt beyond reasonable doubt.Appellant's defense of denial in the present case is inherently weak.84Denial, if unsubstantiated by clear and convincing evidence, is a negative and self-serving evidence undeserving of any weight in law.85But such weakness does not excuse the prosecution from presenting the adequate quantum of proof of the crime charged. The guilt of the accused must be proved beyond reasonable doubt. And the prosecution's evidence must stand or fall on its own weight. It cannot rely on the weakness of the defense. In the instant case, the prosecution failed to prove the guilt of appellant with moral certainty. The testimony of its single purported eyewitness, while positive, was less than credible. It did not meet the test such testimony of a lone witness to sustain a judgment of conviction, must bebothpositive and credible.86In our view, the burden of proof required for conviction of appellant has not been adequately discharged by the prosecution.WHEREFORE,the decision of the Regional Trial Court of Tagbilaran City, Branch 1, in Criminal Cases Nos. 7887 and 7888, finding appellant Arturo Enad guilty of murder and frustrated murder is herebyREVERSEDandSET ASIDEfor insufficiency of the evidence to convict him beyond reasonable doubt. Appellant isACQUITTEDand orderedRELEASEDfrom confinement immediately unless he is held for another lawful cause.SO ORDERED.

G.R. No. 142654 November 16, 2001PEOPLE OF THE PHILIPPINES,appellee,vs.ROLANDO MENDOZA y CARPIO,appellant.Criminal Law; Murder; Evidence; Credibility of Witnesses; The findings of the trial court on this matter should not be disturbed on appeal, unless the latter has overlooked some facts or circumstances of substance and value which, if considered, might well affect the result of the case.Time and time again, this Court has declared that the findings of the trial court on this matter should not be disturbed on appeal, unless the latter has overlooked some facts or circumstances of substance and value which, if considered, might well affect the result of the case. This doctrine is premised on the undisputed fact that, since the trial court has the best opportunity to observe the demeanor of witnesses while on the stand, it can discern whether or not they are telling the truth. The unbending jurisprudence is that its findings on the matter of credibility of witnesses are entitled to the highest degree of respect and will not be disturbed on appeal.Same; Same; Same; Same; Minor inconsistencies in the narration of witnesses do not detract from their essential credibility as long as their testimonies are coherent and intrinsically believable on the whole.Considering the lapse of time and the treachery of human memory, truth-telling witnesses are not always expected to give error-free testimonies. They are not expected to remember every single detail of an incident with perfect or total recall. This Court has stated time and time again that minor inconsistencies in the narration of witnesses do not detract from their essential credibility as long as their testimonies are coherent and intrinsically believable on the whole. Inaccuracies may in fact suggest that they are truthful and unrehearsed.Same; Same; Same; Same; Affidavits; Affiants are not necessarily discredited by discrepancies between their testimonies on the witness stand and their ex-parte statements which are generally incomplete; Testimonial evidence carries more weight than an affidavit.The alleged conflict between the sworn statement and the testimony of Mariquit does not vitiate his credibility as a witness. It has been held that affiants are not necessarily discredited by discrepancies between their testimonies on the witness stand and their ex parte statements, which are generally incomplete. Basic is the rule that affidavits taken ex parte are judicially considered to be incomplete and often inaccurate, sometimes from partial suggestions and sometimes from want of suggestions and inquiries, without the aid of which witnesses may be unable to recall the connected circumstances necessary for their accurate recollection. Affidavits are generally subordinated in importance to open court declarations, because the former are often executed when affiants mental faculties are not in such state as to afford them a fair opportunity to narrate in full incidents that have transpired. Moreover, testimonial evidence carries more weight than an affidavit.Same; Same; Same; Dying Declaration; Requisites Before a Dying Declaration May be Admissible.A dying declaration, also known as an ante-mortem statement or a statement in articulo mortis, is admissible under the following requisites: (1) death is imminent and the declarant is conscious of that fact, (2) the declaration refers to the cause and the surrounding circumstances of such death, (3) the declaration relates to a fact which the victim is competent to testify to, and (4) the declaration is offered in a case wherein the declarants death is the subject of the inquiry.Same; Same; Same; Same; Issue of whether a declaration was made under the consciousness of an impending death is a matter of evidence.The issue of whether a declaration was made under the consciousness of an impending death is a matter of evidence. It must be shown that such declaration was made under a realization that one s demise or at least its imminence, not so much its rapid occurrence, was at hand. This may be proven by the statement of the victim or inferred from the nature and extent of the victims wounds or other relevant circumstances.Same; Same; Same; Same; The occurrence of a declarants death immediately thereafter is not indispensable.The fact that the victim did not expire right after his declaration, but survived seven days thereafter, will not alter the probative force of his dying declaration. The occurrence of a declarants death immediately thereafter is not indispensable. The rule on dying declarations does not require that the person should be at the time in the throes of death, or that he should die immediately, or within any specified time thereafter, in order to give the declaration probative force xxx.Same; Same; Same; Treachery; Requisites to Prove Treachery.To prove treachery, the following must be shown: (1) the employment of such means of execution as would give the person attacked no opportunity for self-defense or retaliation; and (2) the deliberate and conscious adoption of the means of execution.Same; Same; Same; Same; Same; The prosecution must prove that appellant deliberately and consciously adopted such means, method or manner of attack as would deprive the victim of an opportunity for self-defense or retaliation.Without any particulars as to the manner in which the aggression commenced or how the act that resulted in the victims death unfolded, treachery cannot be appreciated. It is not sufficient that the victim was unarmed and that the means employed by the malefactor brought the desired result. The prosecution must prove that appellant deliberately and consciously adopted such means, method or manner of attack as would deprive the victim of an opportunity for self-defense or retaliation. Same; Same; Same; Same; The same degree of proof to dispel any reasonable doubt is required before treachery may be considered as an aggravating or a qualifying circumstance.We have ruled in a litany of cases that treachery cannot be presumed; it must be proved by clear and convincing evidence or as conclusively as the killing itself. The same degree of proof to dispel any reasonable doubt is required before treachery may be considered as an aggravating or a qualifying circumstance. Hence, where the circumstances surrounding either the manner of the attack or how the aggression was commenced has not been proven, as in this case, the appellant should be given the benefit of the doubt, and the crime should be considered only as homicide defined and penalized under Article 249 of the Revised Penal Code. [People vs. Mendoza, 369 SCRA 268(2001)]PANGANIBAN,J.:The reasons for the admissibility of a dying declaration as an exception to the hearsay rule are (a) necessity and (b) trustworthiness. Necessity, because death renders a declarant's taking the witness stand impossible, and it often happens that there is no other equally satisfactory proof of the crime. Hence, the declaration is allowed to prevent a failure of justice. And trustworthiness, for in the language of Lord Baron Eyre, the declaration is made in extremity, when the party is at the point of death and every hope of this world is gone, when every motive for falsehood is silenced and the mind induced by the most powerful considerations to speak the truth. A situation so solemn and awful is considered by the law as creating an obligation equal to that which is imposed by an oath administered in court.1The idea, more succinctly expressed, is that "truth sits on the lips of dying men."2The CaseBefore us is an appeal from the March 15, 2000 Decision3of the Regional Trial Court (RTC) of Caloocan City (Branch 127) in Criminal Case No. C-55995 (99), convicting Rolando Mendoza of murder and sentencing him toreclusion perpetua.The decretal portion of the RTC Decision reads as follows:"WHEREFORE premises considered and the prosecution having established to a moral certainty the guilt of Accused ROLANDO MENDOZA of the crime of murder as defined and penalized under Art. 248 of the Revised Penal Code as amended by RA 7659, this Court hereby sentences the said accused to suffer the penalty of reclusion perpetua; to indemnify the legal heirs of the deceased the civil indemnity of P50,000.00; to compensate MELY CRUZ [for] the stipulated actual damages of P65,000.00; to pay Mrs. BEATRIZ VALDOZ moral damages of P40,000.00 and to pay the costs, without any subsidiary imprisonment in case of insolvency."The preventive imprisonment suffered by the accused shall be credited in full in the service of his sentence in accordance with Art. 29 of the Revised Penal Code."4The Information,5dated January 27, 1999, charged appellant, together with his co-accused Reynaldo Balverde, as follows:"That on or about the 11th day of October, 1998 in Caloocan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, without any justi[fi]able cause, conspiring together and mutually aiding one another, with deliberate intent to kill and with treachery and evident prem[e]ditation, did then and there wil[l]fully, unlawfully and feloniously attack, assault and stab with bladed weapons on the different parts of his body one PRUDENCIO VALDOZ Y SANTOS, thereby inflicting upon the latter serious physical injuries which injuries caused the victim's death at East Avenue Medical Center after several days of confinement."6On March 15, 1999, the trial court issued warrants of arrest7against the two accused. Herein appellant was arrested on October 19, 19998but his co-accused, Balverde, has remained at large. When arraigned on November 3, 1999, appellant pleaded9not guilty after the Information had been read and interpreted to him in a language that he fully understood.10After pretrial, trial on the merits ensued against him alone. Thereafter, the lower court promulgated its assailed Decision. The Public Attorney's Office, counsel for appellant, filed the Notice of Appeal on March 27, 2000.11The FactsVersion of the ProsecutionIn its Brief,12the Office of the Solicitor General presents the prosecution's version of the facts as follows:"About 8:00 in the evening of October 11, 1998, Eduardo Mariquit was walking on his way home from his sister's house. While traversing Sta. Rita Street, San Vicente Ferrer, Tala, Caloocan City, he saw Prudencio Valdoz repeatedly stabbed by appellant Rolando Mendoza alias 'Patsy' and Reynaldo Balverde, Jr. alias 'Jingjing.' Using a kitchen knife, appellant stabbed Prudencio Valdoz on the stomach. Likewise, Reynaldo Balverde stabbed Prudencio twice with a butcher's knife, hitting the latter below the left armpit. Wounded, Prudencio Valdoz staggered and collapsed. Reynaldo Balverde alias 'Jingjing' approached Eduardo Mariquit and warned him saying 'wala kang nakita, wala kang narinig.' Thereafter, appellant and Reynaldo Balverde fled. Eduardo Mariquit went to help Reynaldo Valdoz. He assisted him in going to his house which was about twelve (12) meters away. Eduardo Mariquit thereafter went to see the victim's brother, Manuel Valdoz, and informed him that Prudencio was stabbed by appellant Rolando Mendoza alias 'Patsy' and Reynaldo Balverde alias 'Jingjing.'"Meanwhile, Estrellita Carmelo was watching TV inside her house at 587 Barangay Sta. Rita, Tala, Caloocan City, when she noticed a commotion taking place outside. She heard people shouting that somebody was stabbed. Estrellita Carmelo went out and saw Prudencio, her neighbor and co-worker, lying still and wounded. Estrellita Carmelo, accompanied by her neighbors, brought Prudencio to the Tala Hospital in a tricycle. Because the Tala Hospital lacked the necessary equipment to treat the victim, he was transferred to East Avenue Medical Center in Quezon City. Inside the operating room, Prudencio Valdoz beckoned to Estrellita Carmelo to come near him. When Estrellita moved closer and placed her ear near Prudencio's mouth, Prudencio, who was in great pain, told Estrellita . . ., 'Ate, baka mamatay ako sasabihin ko sa iyo kung sino an[g] sumaksak sa akin, tandaan mo lang huwag mong kalimutan.' Prudencio told Estrellita that Rolando Mendoza alias 'Patsy' and Reynaldo Balverde alias 'Jingjing' stabbed him. Estrellita Carmelo stayed with the victim at the hospital till the next day."The following day, Manuel Valdoz called the police. PO3 Alex Barroga of the Caloocan City Police Station 6 arrived in the morning at the East Avenue Medical Center. He interviewed the victim and took his statements. In the presence of his relatives and Estrellita Carmelo, the victim, who was gasping for breath, gave his ante mortem statement. He pointed to appellant Rolando Mendoza alias 'Patsy' and Reynaldo Balverde alias 'Jingjing' as the persons who stabbed him. The victim affixed his signature on the ante mortem statement, with Manuel Valdoz and Merle Valdoz as witnesses."On October [1]9, 1998, the victim died."Police Superintendent Ma. Cristina B. Freyra, Medico-Legal Officer, PNP Crime Laboratory Services, Camp Crame, Quezon City conducted an autopsy on the cadaver of the victim. In a Medico-Legal Report No. M-1595-98, dated October 3, 1998, Dr. Freyra stated the following findings and conclusion:'FINDINGS:POSTMORTEM FINDINGS:Fairly nourished, fairly developed, male cadaver in rigor mortis with postmortem lividity at the dependent portions of the body. The conjunctiva lips and nailbeds are pale. There is a surgical incision along the anterior midline of the abdomen, measuring 35 cm long with 34 stitches applied, including 6 tension sutures. Needle puncture marks noted at the distal 3rd of both firearms.TRUNK:1) Stab wound, epigastric region measuring 2.6 cm long with 4 stitches applied, 13 cm left of the anterior midline, 120 cm from the heel, 6 cm deep, directed posteriorwards, upwards and medialwards, piercing the left dome of the diaphragm which was surgically repaired.2) Stab wound, periumbilical region, measuring 1 cm long, just left of the anterior midline, 105 cm from the heel, 9 cm deep, directed posteriorwards, upwards and medialwards, piercing the head of the pancreas and the loops and mesentery of the small intestine.3) Stab wound, left anterior lumbar region, measuring 1.5 cm long with 2 stitches applied, 19 cm from the anterior midline, 96 cm from the heel, 9 cm deep, directed posteriorwards, upwards and medialwards, piercing the loops and mesentery of the small intestine.There is thick greenish yellow exudate in the abdominal cavity.Stomach is empty.The rest of the visceral organs are grossly unremarkable.CONCLUSION:Cause of death is septic shock secondary to multiple wou[n]ds, trunk S/P Exploratory laparotomy.'"Dr. Freyra declared that a typographical error was committed by the typist who inadvertently omitted to state Stab Wound No. 3 in the Medico-Legal Report. Dr. Freyra thus indicated in her own handwriting, Stab Wound No. 3 as follows:'STAB WOUND NO. 3 ANTERIOR LUMBAR REGION, MEASURING 2 CM LONG WITH 1 STITCH APPLIED 14 CM FROM MIDLINE ANTERIOR, 107 CM FROM THE HEEL, 5 CM DEEP, DIRECTED POSTERIOR, UPWARD, AND MEDIALWARD, PIERCING THE LOOP AND MESENTERY OF SMALL INTESTINE.'"Dr. Freyra further declared that the four (4) stab wounds sustained by the victim were all fatal."13(Citations omitted)Version of the DefenseAppellant denies participation in the killing of Prudencio Valdoz.14He adds that the trial court gave too much weight and credence to the allegedly uncredible testimony of prosecution's principal witness. Appellant reproduced the trial court's narration of the facts, as follows:15"Evidence for the Defense"As summarized by the trial court, the evidence for the defense, on the other hand, is quoted hereunder:"At past 8:00 p.m. of 11 October 1998, he (Accused MENDOZA) with co-accused REYNALDO BALVERDE, JR., @ JING-JING (accused BALVERDE for short) was walking home toward Dr. Puno Street, Barrio Sta. Rita North, Tala, this City coming from Sta. Rita South. Upon reaching the closed store of the BALVERDE, they saw Victim standing thereat with both hands tucked in his pockets. Thereupon Accused BALVERDE asked Victim how come he was still there at that time and the latter, who was apparently drunk, retorted: 'BAKIT, ANONG PAKIALAM MO.' Thence Accused BALVERDE instructed Victim to go home but instead of acceding thereto Victim cursed him. At this junctu