Un-concocted and un-contrived

A LAW EACH DAY (KEEPS TROUBLE AWAY) - Jose C. Sison (The

Philippine Star)

Even the sole testimony of a witness like the victim himself who positively
identified the accused is enough proof to establish guilt beyond reasonable
doubt of the crime committed by said accused. The defense of alibi and
denial cannot prosper in the light of the positive identification by the
complainant himself given immediately after a startling occurrence known
in law as the res gestae. These are the rules explained in this case.

This case involves Ernie, a homosexual and beautician. One time when he
was seated alone on a bench outside the Church in their town, a person
later identified as Marco approached him and asked for a cigarette. When
Ernie could not produce one, Marco immediately stabbed him with a switch
blade knife and ran away.

Feeling pain and sensing that he was profusely bleeding, Ernie walked a
short distance and called for help. Two of his homosexual friends, Duday
and Tonya, came to his aid and brought him to a hospital upon his request.
He was admitted at about 12:40 a.m. as two doctors attended to him and
found him in critical condition because of a 2.5 centimeter stab wound
penetrating the liver which could have resulted in his death if not for the
timely medical intervention. He was operated on at about 5 a.m. which
ended at 7:30 a.m. Thereafter, SPO1 Luis went to the hospital to
investigate and took his ante-mortem statement. The other policeman
taking his statement had to put his ear near his mouth as Ernie tried to
catch his breath. He stated in the presence of the doctor that it was Marco
who stabbed him. So, the latter was charged with the crime of frustrated
murder.

At the trial he pointed to Marco again as his assailant. He said that he

recognized him because he used to see him at town fiestas playing hantak.
His employer and owner told him Ernie’s name. Moreover, he said that a
month before the incident, he had an accidental sexual affair with Marco
who thereafter asked him money but he had none.
Marco on the other hand put up the defense of alibi. He declared that he
came to know Ernie only in court and claimed that at the time of the
incident, he was inside the church decorating the altar with flowers from
neighbors. He named 41 persons inside the church watching him until he
finished at midnight and went to his house which was located about 200
meters away. He even said that he does not smoke and did not know of
any reason why Ernie pointed at him. His testimony was corroborated by
Marta, the second degree cousin of his mother.

But the lower court still found him guilty although only of frustrated
homicide. The court held that Ernie’s positive identification of Marco as the
one who stabbed him prevails over the denial and alibi of the latter. This
decision was affirmed by the Court of Appeals (CA).

Nevertheless, Marco still appealed to the Supreme Court (SC) contending

that the ante mortem statement of Ernie was not part of the res gestae
since it was taken only after Ernie’s operation the following morning and not
spontaneously, immediately after the occurrence of the act. Besides, no
other witnesses were presented to support his claim.

But the SC declared his contentions without merit. The SC said that Ernie’s
statement was still part of the res gestae because it was taken a few hours
after the operation when he regained consciousness. Therefore it is still the
reflex product of immediate sensual impressions. It was the shocking event
speaking through him and he did not have the opportunity to concoct or
contrive the story. So it is part of the res gestae and admissible in evidence.
Besides, it was not really impossible for Marco to be at the place of the
stabbing outside the church which was only 200 meters away and
reachable in less than five minutes from his house. The SC likewise said
that Ernie’s statement after his operation was not the sole basis for his
conviction. He also pointed to Marco after surviving the incident and during
the trial as the assailant who stabbed him. Conviction of the accused may
be had on the basis of the credible and positive testimony of a single
witness like Ernie if found credible by the Trial Court. This testimony
prevails over alibi and denial which, if not substantiated by clear and
convincing evidence, is negative and self-serving.
Thus Marco is really guilty of frustrated homicide and should be sentenced
to imprisonment of four years, two months and day minimum to eight years
and one day as maximum (Zarate vs, Regional Trial Court etc. G.R.
152263, July 3, 2009)