VOL.

158, FEBRUARY 23, 1988 111

People vs. Dy

*
No. L-74517. February 23, 1988.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

BENNY DY, accused-appellant.

Criminal Procedure; Evidence; Murder; Case history and the

documentary evidence attesting strongly to appellant's oral
confession and voluntary surrender.—The case history and the
documentary evidence attest strongly to Appellant's oral
confession and voluntary surrender. Thus, (1) Entry No. 3904 in
the police blotter of the Malay Police Substation, dated 8 May
1984, supra, confirms three significant details: a) Pat. Padilla's
testimony that he had accompanied the Accused to police
headquarters in the early morning of 8 May 1984 after the latter
admitted having "shot a tourist"; b) Appellant's voluntary
surrender to the Chief of Police; and c) his surrender of his Smith
& Wesson revolver, cal 38, also to the Chief of Police.
Same; Same; Same; Complaint forms part of the record of the
proceedings and is prima facie evidence of the facts therein stated.
—The sworn Complaint for "Murder with Use of Unlicensed
Firearm" signed by the Chief of Police (Exhibit "H"), dated 8 May
1984, also attests to Appellant's oral confession. Said officer could
not have prepared the Complaint with such promptitude sans
investigation at "0700H" the morning after the incident were it
not for Appellant's outright admission. That Complaint forms part
of the record of the proceedings before the Municipal Circuit Trial
Court of Buruanga, Aklan, and is prima facie evidence of the facts
therein stated (Section 38, Rule 130, Rules of Court). That said
Complaint was sworn to before the Municipal Circuit Trial Court
Judge and filed before his Court only on 17 May 1984 will not
detract from the fact that the Chief of Police had taken official
action promptly the very morning of Appellant's surrender by
charging him with "Murder with the Use of Unlicensed Firearm"
after having heard his admission.
Same; Same; Same; It would be at variance with ordinary
human behavior for appellant to have voluntarily placed himself
under police custody absent any culpability for any offense.—The
fact of Appellant's surrender is further borne out by the Order of
the Municipal Circuit Trial Court Judge, Judge Tonel, dated 17
May 1984, categorically reciting that "no warrant of arrest is
issued for the apprehension of the accused for the reason that he
is already under police custody before the

_______________

* SECOND DIVISION.

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112 SUPREME COURT REPORTS ANNOTATED

People vs. Dy

filing of the complaint". It would have been at variance with

ordinary human behavior for Appellant to have voluntarily placed
himself under police custody absent any culpability for any
offense.
Same; Same; Declaration of an accused acknowledging his
guilt of the offense charged may be given in evidence against him.
—Contrary to the defense contention, the oral confession made by
the Accused to Pat. Padilla that "he had shot a tourist" and that
the gun he had used in shooting the victim was in his bar which
he wanted surrendered to the Chief of Police (t.s.n., October 17,
1984, pp. 6-9). is competent evidence against him. The declaration
of an accused acknowledging his guilt of the offense charged may
be given in evidence against him (Sec. 29, Rule 130, Rules of
Court). It may in a sense be also regarded as part of the res
gestae. The rule is that, any person, otherwise competent as a
witness, who heard the confession, is competent to testify as to
the substance of what he heard if he heard and understood all of
it. An oral confession need not be repeated verbatim, but in such a
case it must be given in substance.
Same; Same; Same; Constitutional procedure on custodial
interrogation not applicable in the instant case.—What was told
by the Accused to Pat. Padilla was a spontaneous statement not
elicited through questioning, but given in an ordinary manner. No
written confession was sought to be presented in evidence as a
result of formal custodial investigation. (People vs. Taylaran, G.R.
No. 49149, October 31, 1981, 108 SCRA 373). The Trial Court,
therefore, cannot be held to have erred in holding that compliance
with the constitutional procedure on custodial interrogation is not
applicable in the instant case, as the defense alleges in its Error
VII.
Same; Same; Testimony of prosecution's witness corroborated.
—TUMAOB's motive in testifying the way he did, further assailed
in Error III, is immaterial considering the corroboration his
testimony received from Appellant's proven actuations after the
incident. Efforts by the defense to discredit him as a "professional
witness," who allegedly asked for a consideration from Appellant
of P500.00 to swing the testimony in Appellant's favor, but which
the latter rejected, with the insinuation that he could have been
paid by Swiss authorities to testify the way he did in Court, is
unavailing since conviction is not based on his testimony alone.
Same; Same; Alibi; Defense of alibi rejected in the face of
overwhelming evidence against the accused.—The defense of alibi
must likewise be rejected in the face of overwhelming evidence
against the Accused. The

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People vs. Dy

Trial Court cannot be faulted, therefore, for denying Appellant's

bid for acquittal contrary to the allegations in Errors IV, X and
XI.
Same; Same; No error committed by Trial Court in denying
Motion for New Trial.—Lastly, neither was any error committed
by the Trial Court in denying the defense Motion for New Trial
(Error XII) based on the affidavit of recantation of witness
TUMAOB that he was not at Benny's Bar when the victim was
shot. Even assuming that it can be considered as newly discovered
evidence it is insufficient to overturn the judgment already
rendered. for., it bears emphasizing that conviction is not based
on TUMAOB's testimony alone.

APPEAL from the judgment of the Regional Trial Court of

Kalibo, Aklan, Br. 6.

The facts are stated in the opinion of the Court.

MELENCIO-HERRERA, J.:

At around midnight of 7 May 1984, death cast its shadow

over Boracay Island, an internationally known tourist spot
famous for its powdery white sand beach. The Island is
accessible by land from Kalibo, Aklan, after a one-and-a-
half hour trip. It can also be reached in twenty (20)
minutes by pumpboat from Barangay Caticlan, the loading
point for tourists going to the Island. Caticlan has a small
airfield which can service small planes. Felled by a gunshot
wound on the neck, which caused his death approximately,
six (6) hours later, was Christian Langel y Philippine, a
Swiss tourist who was vacationing on the Island together
with his sister and some friends.
The following day, 8 May 1984, the follo wing police
report was entered as Entry No. 3904 in the police blotter
of the Malay Police Sub-station, Malay, Aklan:

That on or about 0700H 8 May 1984, Pat. Padilla RR reported (to)

this sub-station with the living body of one Beny Dy, with caliber
.38 Danao made, as suspect to the shooting incident at Sitio
Angol, ManocManoc, Malay, Aklan, which cause(d) the untimely
death of one Christian Langel Philippine, tourist, 24 years old and
a Swiss nationale. Pat. Salibio rushed to the hospital at Caticlan
to obtain ante-mortem but the victim died at about 0600H in the
morning. Suspect Benny Dy voluntarily surrendered to the sub-
station commander with his caliber 38 with serial number 33169
Smith and Wesson (US), [Exhibit 'G']."

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114 SUPREME COURT REPORTS ANNOTATED

People vs. Dy

Acting on the report, Chief of Police Tambong, also on 8

May 1984, prepared a Complaint (Exhibits "H" and "H-1")
charging the Accused, Benny Dy, the owner of "Benny's
Bar," situated on the Island, with the crime of "Murder
With the Use of Unlicensed Firearms" (ibid., p. 2, Original
Record). The Complaint was subscribed and sworn to
before Judge Jaime R. Tonel of the 5th Municipal Circuit
Trial Court of Buruanga, Aklan, on 17 May 1984 (Exhibit
"H-2") and docketed as Criminal Case No. 1776 of that
Court on the same day (Exhibit "H-3", Order, p. 4, Original
Record).
The witnesses listed in that Complaint, namely,
Bernadette Langel of Chatelaine Geneve, Switzerland, who
is the victim's sister, and Ian Mulvey, of Essex, England,
executed separate Sworn Statements giving their
respective versions of the incident (Exhibits "H-4" and "H-
7"). They did not take the stand, however, "for fear of
reprisal" so that said Statements were correctly considered
by the Trial Court as hearsay.
On 17 May 1984, Judge Tonel issued the following:

"ORDER

"Having conducted the preliminary examination of this case, this

Court finds probable cause that the crime as charged has been
committed and that the accused may be responsible thereof.
WHEREFORE, let the records of this case be registered in the
docket. No warrant of arrest is issued for the apprehension of the
accused for the reason that he is already under police custody
before the filing of the complaint. For the provisional liberty of the
accused, bail is hereby fixed in the amount of Thirty Thousand
Pesos (P30,000.00)." (p. 4, Original Record)

The Accused posted the required bail on 13 June 1984,

which was approved by Judge Tonel on the same day. On
12 July 1984 the records of the case were forwarded to the
Office of the Provincial Fiscal, Kalibo, Aklan, "for further
proceedings" (Order, p. 10, Original Record)
On 27 July 1984 the Provincial Fiscal filed the
Information before the Regional Trial Court of Kalibo,
Aklan, charging the Accused with Murder. The case was
docketed as Criminal Case No. 2001 in that Court.
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People vs. Dy

**
After trial, the lower Court rendered judgment on 9
December 1985 with the following decretal portion:

"WHEREFORE, judgment is hereby rendered finding the accused

BENNY DY y LIM guilty beyond reasonable doubt of the crime of
MURDER and sentencing him to suffer the penalty of
RECLUSION PERPETUA and to indemnify the heirs, for the
death of the victim, in the sum of P30,000.00; actual damages of
P33,243.10; moral damages of P30,000.00; exemplary damages of
P30,000.00; and to pay the costs."

Hence, this appeal. The last Brief before this Court was
filed on 26 February 1987 and the case was deliberated
upon on 25 January 1988.
Testifying for the prosecution in the Court below, one
Wilson TUMAOB, a resident in the area, and a fisherman
by occupation, gave his account of the incident as follows:

"At around 12:00 midnight while inside the bar, he saw the
accused Benny Dy shoot a white person, (meaning a European)
who was hit on the right side of the neck (Tsn. Nov. 12,1984, pp.
78, 80). He recognized the accused as the one who shot the white
person because of the light coming from the petromax lamp which
was in front of him and he was just one-and-one-half meters from
the accused and about the same distance from the victim (Tsn,
Nov. 12,1984, p. 81). When he saw the accused shoot the victim,
he did not hear any conversation between them (Tsn. Nov.
14,1984, pp. 81,82). At that precise time, there were many people
of different nationalities coming in and out of the bar. He did not
know anyone of them except the accused Benny Dy (Tsn. Nov.
14,1984, p. 108). Neither did he know the helpers in the bar, nor
see anyone of these customers to be residents of, or friends of his
from, barrio Balusbos, Malay, where he resides.
"In the courtroom during the trial, the witness Wilson Tumaob
demonstrated how the accused shot the victim.

Q. When you said you saw Benny Dy shoot the victim, can you
demonstrate to the Court how he did it?
A. (As demonstrated, the victim and the accused were sitting and
facing then immediately the accused stood up and shot the
victim. (Tsn. Nov. 14,1984, pp. 117, 118).

Wilson Tumaob testified that the accused was about one meter
from the victim when the accused shot the latter. The table where
he was sitting

_______________

** Penned by Judge Jaime D. Discaya.

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116 SUPREME COURT REPORTS ANNOTATED

People vs. Dy

was parallel to the table where the victim was sitting. He was
looking at the accused and the victim when he saw the accused
shoot the victim, and the chair occupied by him and the chair
occupied by the victim were at the same side. (Tsn. Nov. 14,1884,
pp. 119420). After shooting the victim, the accused remained at
the place where the accused was standing (Tsn. Nov. 14,1984, p.
118).
The victim was carried by the victim's companions to the shore
and they loaded him on a pumpboat which was anchored about
fifty meters from the bar. Wilson Tumaob helped in carrying the
victim to the pumpboat to be brought to the hospital in
Caticlan(Tsn. Nov. 12,1984, pp. 82, 83). After the incident the eye-
witness (Wilson Tumaob) went home and slept at around 1:30 in
the morning of May 8,1984. (pp. 4-5, Annex '1', Appellant's Brief)."

Additional prosecution evidence is to the effect that in the

early morning after the incident, the Accused confessed
orally to Pat. Rodolfo Padilla, the operator of the radio
station on the Island. and voluntarily surrendered the gun
he had used in shooting the victim. Pat. Padilla's testimony
reads in part:

"ATTY. RESURRECCION:
Q Sometime on May 8,1984, can you tell the Honorable
Court if you have met the accused Benny Dy?
A At home after coming from the radio station, Benny Dy
came to me and inquired if the Office of the Chief of
Police was opened?
Q And what did you answer him when the accused asked
you that?
A I answered him that the Office of the Chief of Police is
opened for twenty four hours.
Q Did you ask Benny Dy why he asked you if the Office of
the Chief of Police was opened?
A I inquired him why, then he answered me that he had
shot a tourist." (p. 6, t.s.n., October 17, 1984).
  xxx      xxx
"ATTY. RESURRECCION:
Q When Benny Dy answered you that he shot a tourist,
what did you do?
A I inquired him further if the tourist was dead but he
answered me that the victim was brought to the
hospital.
Q What did you do as police officer when Benny Dy told
you

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People vs. Dy

  that he shot a tourist?

A He asked me to accompany him to the Office of the
Chief of Police and I further asked him the gun he used
in shooting the victim and he answered that it was still
in his house.
Q When Benny Dy told you that the gun he used in
shooting the tourist was in his house, what did you do?
A I advised him to get that gun and give it to me to be
deposited in the Office of the Chief of Police.
Q Were you able to get that gun from the house of Benny
Dy?
A Yes, sir,
Q Were you alone when you went to the house of Benny
Dy to get that gun?
A I called one of the policemen to accompany me.
Q What is the name of the policeman who accompanied
you?
A Pat. Manuel Casimiro.
Q Were you able to get the gun from the house of Benny
Dy together with your companion Pat. Manuel
Casimiro?
A Benny Dy voluntarily gave the gun to us.
Q So do we understand from you that it was Benny Dy
also together with your companion Manuel Casimiro
who gave or surrendered the gun to you?
"ATTY. MARIN:
  Benny Dy voluntarily gave the gun to him and Pat.
Casimiro.
"COURT TO THE WITNESS:
Q Where did Benny Dy give to you and Pat. Manuel
Casimiro the gun that is surrendered to you?
A In their house.
"COURT;
  Proceed.
"ATTY. RESURRECCION:
Q Who were the persons present in the house of Benny Dy
when the gun was given to you by him?
A His houseboy called ‘Tan-tan’.
Q Was this Tan-tan already adult or teen-ager?
A Teen-ager.
Q What time of May 8,1984, did Benny Dy give to you and
Pat. Manuel Casimiro the gun he gave to you?
A About 6:00 in the morning." (pp. 7-9, id.)

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118 SUPREME COURT REPORTS ANNOTATED

People vs. Dy

  xxx      xxx
Q When Benny Dy told you that he shot a tourist in his
establishment, known as Benny's Bar, what else did he
tell you?
A He told me that after shooting the victim he requested
somebody to rush the victim to the hospital.
Q Did you ask him why he shot the victim?
A I did not.
Q You stated that the accused Benny Dy surrendered to
you a gun together with Pat. Manuel Casimiro, if that
gun is shown to you, will you be able to identify the
same?
A Yes, sir.
Q I am showing to you a gun in a container revolver
caliber .38 and one (1) bullet exhibit against Benny Dy,
which we request that this container be marked as
Exhibit 'A' for the prosecution, Your Honor.
"COURT:
  Mark it.
"ATTY. RESURRECCION:
Q Is this the same gun you are referring to which was
surrendered by Benny Dy?
A Yes, sir, this is the one. (Witness identifying the gun.)"
(pp. 11-12, id.)

The sequence of events presented by the prosecution then

discloses that

"Together with Pat. Manuel Casimiro, Pat. Padilla accompanied

Benny Dy to the police headquarters at the Poblacion of Malay. At
the police headquarters, Pat. Padilla gave the gun surrendered by
Benny Dy to Chief of Police Ariston Tambong who in turn handed
it over to police supply officer Pat. Romulo Sijano for safekeeping
(pp. 13-24, 27, id)." (pp. 7-9, Appellee's Brief).

The defense version, on the other hand, professes the

innocence of the Accused, denies his presence inside the bar
during the shooting, and attributes the offense to an
unrecognized person. Thus:

"On May 7, 1984, Benny Dy was inside his bar. However, he

remained therein for a few hours as he had a headache. He left
his bar at around 9:30 or 10:00 o'clock in the evening, and went to
bed in a room

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People vs. Dy
at the annex building behind the bar. He left his friend, Francisco
Ureta known as Tan-tan' and his new helper, Romy, to attend and
take charge of the bar.
"In that evening of May 7, 1984, there were several customers
inside the bar. Some people were dancing. At about midnight, a
person entered Benny's Bar and in less than two (2) minutes, an
explosion was heard inside the bar. The explosion caused the
customers to scream; they rushed out of the bar including the
person who entered immediately before the explosion.
"The loud explosion coupled with the screaming and rushing of
customers, awakened Benny Dy. He was prompted to immediately
come out of his room and directly proceeded to the bar. Inside the
bar, Benny saw a man lying on the sand floor with blood on his
shirt.
"lnstinctively, Benny Dy carried this man to the beach, and
woke up Charlie the owner of a pump boat which could take the
wounded man to the hospital. While the wounded man was being
loaded in a pumpboat, several persons arrived including
Australian Nurses to render assistance. The wounded man was
finally brought to Aklan Baptist Hospital at Caticlan, Malay,
Aklan for treatment. Unfortunately, the patient, whose real name
is Christian Langel, died.
"The shooting in Benny's Bar 'may nabaril sa Benny's Bar',
immediately, spread like forest wild fire in the small Island of
Boracay and rapidly transferred from one ear to another and in
the course thereof, it became distorted from 'may nabaril sa
Benny's Bar' to 'may nabaril sa Benny' and finally 'may nabaril si
Benny'. Consequently, loose talks rapidly spread that somebody
was shot by Benny ('may nabaril si Benny').
"Appellant Benny Dy who carried the victim to the shore to be
brought to the hospital to save the latter, and who facilitated the
surrender to Pat. Rodolfo Padilla a gun which his helper found
the following morning while cleaning the bar. eventually found
himself the suspect in shooting of Langel.” (pp. 1-3, Appellant's
Brief)

All defense witnesses were one in testifying that the culprit

was someone else other than the Accused. Thus, Rodrigo
Lumogdang, a carpenter allegedly hired by a friend of the
Accused to repair the kitchen of the bar, testified that
around 11:30 P.M. of 7 May 1984, he saw a person go inside
Benny's Bar but could not recognize him because the
petromax lamp in the bar was not so bright as it was
covered by colored red paper. In less than two minutes
after said person entered, a shot exploded from the inside
of the bar. Thereafter he saw the man who had just

120

120 SUPREME COURT REPORTS ANNOTATED

People vs. Dy

entered rush outside holding a gun tucked to his waist

(t.s.n., June 25, 1985, pp. 7-8). He then ran a few meters
away and when he came back he saw the Accused asking
"Tantan" what had happened to which the latter replied
that a white person had been shot. In particular,
Lumogdang stated that he did not see the Accused at 6:30
P.M., when he took a stroll in the beach nor when he came
back at around 11:30 P.M. Much less did he see TUMAOB
inside the bar.
 Another defense witness, Rogelio Lakandula, testified
that he went to Benny's Bar at around 10:00 P.M. of 7 May
1984. While drinking beer thereat he saw a white person,
who was three meters away from him, shot by a person he
did not recognize but he saw him come from the door and
enter Benny's Bar alone. Before and after the shooting
incident, he did not see either the Accused or TUMAOB
inside the bar.
Wolfer Tumaob, Jr., a nephew of the principal
prosecution witness, TUMAOB, testified that on 7 May
1984 at 11:00 P.M., TUMAOB, Jover Casidsid, Welmer
Taunan, Wolfer Tumaob, Sr., and he, went out fishing at
midsea staying thereat up to 6:00 A.M. of 8 May 1984 and
that they did not pass Boracay Island at all on 7 May 1984
but went home on 8 May 1984.
The accused stoutly denied having made any oral
confession alleging that he went to Pat. Padilla not to
report the incident but to state that a boy helper in the bar
had found a gun on the sand floor while cleaning and that
Pat Padilla picked up the gun from the bar at his
(Accused's) request (t.s.n., September 2, 1985, pp. 33-36),
The Accused argues that even if he did make such a
confession, the same would be inadmissible in evidence.
The Trial Court found the testimonies of defense
witnesses enmeshed in contradictions on material points,
rejected the disclaimers they had made, accorded more
credence to the prosecution version, and as previously
stated, rendered a judgment of conviction.
In this appeal, the accused raises the following

Assignments of Error

The trial Court erred in holding that the Smith & Wesson
revolver cal.

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People vs. Dy

.38 with Serial No. 33169 was the gun which caused the death of
Christian Langel.

II

The trial Court erred in finding that Wilson Tumaob testified

in court ahead of Dr. Caturan, so the former's testimony on the
relative position of the accused and victim could not have been
influenced or tailored to conform to Dr. Caturan's findings on the
trajectory of the bullet slug found in the victim's body.

III

The trial Court erred in holding that Wilson Tumaob had no

unfair motive to fabricate a story different from what he actually
witnessed, and in giving weight to his testimony.

IV

The trial Court erred in holding that accused shot Langel.

V
 The trial Court erred in holding that the conflicting
testimonies of Pat. Padilla and Casimiro relate to minor matters
which do not affect their credibility.

VI

The trial Court erred in holding that appellant made the oral
confession, and in admitting the same as well as the entries in the
police blotter.

VII

The trial Court erred in holding that compliance with the

constitutional procedure on custodial interrogation is not
applicable in the instant case.

VIII

The trial Court erred in holding that the uncorroborated

testimony of Wilson Tumaob is sufficient to sustain appellant's
conviction.

IX

The trial Court erred in holding that the evidence adduced by

the prosecution is overwhelming and satisfied the test of proof
beyond reasonable doubt in convicting appellant.

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122 SUPREME COURT REPORTS ANNOTATED

People vs. Dy

The trial Court erred in holding that appellant's defense of alibi is

weak.

XI

The trial Court erred in convicting accused-appellant,

XII

The trial Court erred in denying accused-appellant's motion for

new trial.

The basic issue is actually one of credibility, the crucial

question being whether the Accused had orally admitted
his authorship of the crime and surrendered the gun he
had used in shooting the victim, as the prosecution claims,
or, whether he had no involvement whatsoever, the gun
surrendered having been found by a boy helper inside the
bar while cleaning the place the morning after the incident,
as the defense would have us believe.
The case history and the documentary evidence attest
strongly to Appellant's oral confession and voluntary
surrender. Thus, (1) Entry No. 3904 in the police blotter of
the Malay Police Substation, dated 8 May 1984, supra,
confirms three significant details: a) Pat. Padilla's
testimony that he had accompanied the Accused to police
headquarters in the early morning of 8 May 1984 after the
latter admitted having "shot a tourist;" b) Appellant's
voluntary surrender to the Chief of Police; and c) his
surrender of his Smith & Wesson revolver, cal. .38, also to
the Chief of Police,
 It may be that Chief of Police Ariston T. Tambong, who
had presumably made such entry, died on 15 August 1984
before the start of the trial of this case below and was not
in a position to identify the same before the Court. His
successor (Lt. Audie Arroyo), however, was presented as a
prosecution witness and identified said entry (t.s.n.,
October 17, 1984, pp. 29-33).
The revolver, marked as Exhibit "F," in turn, was
identified by Pat. Padilla as the firearm surrendered by the
Accused. When Pat. Padilla stated that he saw the fatal
gun, its serial number and name for the first time (t.s.n.,
October 17, 1984, pp. 17-19) he was clearly referring to
particulars which he did not concern
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VOL. 158, FEBRUARY 23, 1988 123

People vs. Dy

himself with at the time of surrender.

Appellant's assertion that the gun he had surrendered
was merely found by a boy helper while cleaning the bar
deserves no credence for, if it were so, it would have been
absurd for him to have placed himself under police custody
in the early morning after the incident.
(2) The sworn Complaint for "Murder with Use of
Unlicensed Firearm" signed by the Chief of Police (Exhibit
"H"), dated 8 May 1984, also attests to Appellant's oral
confession. Said officer could not have prepared the
Complaint with such promptitude sans investigation at
"0700H" the morning after the incident were it not for
Appellant's outright admission. That Complaint forms part
of the record of the proceedings before the Municipal
Circuit Trial Court of Buruanga, Aklan, and is prima facie
evidence of the facts therein stated (Section 38, Rule 130,
Rules of Court). That said Complaint was sworn to before
the Municipal Circuit Trial Court Judge and filed before
this Court only on 17 May 1984 will not detract from the
fact that the Chief of Police had taken official action
promptly the very morning of Appellant's surrender by
charging him with "Murder with the Use of Unlicensed
Firearm" after having heard his admission.
(3) The fact of Appellant's surrender is further borne out
by the Order of the Municipal Circuit Trial Court Judge,
Judge Tonel, dated 17 May 1984, categorically reciting that
"no warrant of arrest is issued for the apprehension of the
accused for the reason that he is already under police
custody before the filing of the complaint." It would have
been at variance with ordinary human behavior for
Appellant to have voluntarily placed himself under police
custody absent any culpability for any offense.
Contrary to the defense contention, the oral confession
made by the accused to Pat. Padilla that "he had shot a
tourist" and that the gun he had used in shooting the
victim was in his bar which he wanted surrendered to the
Chief of Police (t.s.n., October 17, 1984, pp. 6-9), is
competent evidence against him. The declaration of an
accused acknowledging his guilt of the offense charged may
be given in evidence against him (Sec. 29, Rule 130, Rules
of Court). It may in a sense be also regarded as part of the
res gestae. The rule is that, any person, otherwise
competent as a witness, who heard the confession, is
competent to testify as to
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124 SUPREME COURT REPORTS ANNOTATED

People vs. Dy

the substance of what he heard if he heard and understood

all of it. An oral confession need not be repeated verbatim,
but in such a case it must be given in substance (23 C. J.S.
186, cited in People vs. Tawat, G.R. No. 62871, May 25,
1985, 129 SCRA 431),
What was told by the Accused to Pat. Padilla was a
spontaneous statement not elicited through questioning,
but given in an ordinary manner. No written confession
was sought to be presented in evidence as a result of formal
custodial investigation. (People vs. Taylaran, G.R. No.
49149, October 31, 1981, 108 SCRA 373), The Trial Court,
therefore, cannot be held to have erred in holding that
compliance with the constitutional procedure on custodial
interrogation is not applicable in the instant case, as the
defense alleges in its Error VII.
With the indubitable official and documentary evidence
on record, the identity of the Accused as the victim's
assailant is indisputable. The denials by the defense
immediately lose their credibility and the errors it has
assigned are rendered without any merit whatsoever.
Thus, contrary to Error I, the gun which Appellant
surrendered to Pat. Padilla and the Chief of Police, coupled
with his voluntary surrender, cannot but be the weapon
which caused the death of the victim. That is no inference;
it is clear and direct evidence. To further require a ballistic
examination and a paraffin test would have been a
superfluous exercise.
The issue raised in Error II as to who testified ahead,
TUMAOB or the examining physician, Dr. Othello
Caturan, also becomes irrelevent, TUMAOB's testimony
being corroborated by the documentary evidence heretofore
mentioned. Besides, even without TUMAOB's testimony
the documentary evidence on record more than suffices to
overcome the disclaimers by Appellant and on which his
assigned Errors VIII & IX are predicated.
TUMAOB's motive in testifying the way he did, further
assailed in Error III, is immaterial considering the
corroboration his testimony received from Appellant's
proven actuations after the incident. Efforts by the defense
to discredit him as a "profes-sional witness," who allegedly
asked for a consideration from Appellant of P500.00 to
swing the testimony in Appellant's favor, but which the
latter rejected, with the insinuation that he could
125

VOL. 158, FEBRUARY 23, 1988 125

People vs. Dy

have been paid by Swiss authorities to testify the way he

did in Court, is unavailing since conviction is not based on
his testimony alone.
 Whatever inconsistencies there may have been in the
testimonies of Patrolmen Padilla and Casimiro, posited in
Error V, are sufficiently overcome by the documentary
evidence of record.
As to the testimonial evidence presented by the defense,
which the Trial Court rejected, we find no reversible error
in the meticulous assessment it had made thereof, ably
pointing out the material contradictions in the testimonies
and consequently their lack of credibility.
The entries in the police blotter were properly admitted
by the Trial Court, contrary to the allegation in Error VI
forming, as they do, part of official records,
The defense of alibi must likewise be rejected in the face
of overwhelming evidence against the Accused. The Trial
Court cannot be faulted, therefore, for denying Appellant's
bid for acquittal contrary to the allegations in Errors IV, X
and XI.
Lastly, neither was any error committed by the Trial
Court in denying the defense Motion for New Trial (Error
XII) based on the affidavit of recantation of witness
TUMAOB that he was not at Benny's Bar when the victim
was shot. Even assuming that it can be considered as
newly discovered evidence it is insufficient to overturn the
judgment already rendered, for, it bears emphasizing that
conviction is not based on TUMAOB's testimony alone.
Moreover,

"Affidavits of retraction executed by witnesses who had previously

testified in court will not be countenanced for the purpose of
securing a new trial.—It would be a dangerous rule for courts to
reject test imonies solemnly taken before courts of justice simply
because the wit nesses who bad given them later on change their
mind for one reason or another, for such a rule would make
solemn trials a mockery and place the investigation of truth at the
mercy of unscrupulous witnesses. Affidavits of retraction can be
easily secured from poor and ignorant witnesses usually for a
monetary consideration. Recanted testimony is exceedingly
unreliable. So courts are wary or reluctant to allow a new trial
based on retracted testimony." (People vs. Saliling, et al, L-27974,
February 27, 1976, 69 SCRA 427, cited in Ibabao vs. People, L-
36957, September 28, 1984, 132 SCRA 216).

126

126 SUPREME COURT REPORTS ANNOTATED

People vs, Dy

The penalty of reclusion perpetua imposed by the Trial

Court, however, will have to be modified. With the abolition
of the death penalty in the 1987 Constitution, the penalty
for Murder is now reclusion temporal in its maximum
period to reclusion perpetua. With the mitigating
circumstance of voluntary surrender to which the Accused
should be entitled, the penalty is imposable in its minimum
period or from seventeen (17) years, four (4) months and
one (1) day to eighteen (18) years and eight (8) months. For
the application of the Indeterminate Sentence Law, the
range of the penalty next lower is prision mayor in its
maximum period to reclusion temporal in its medium
period, or, from ten (10) years and one (1) day to seventeen
(17) years and four (4) months.
 WHEREFORE, the test of proof beyond reasonable
doubt having been met, the judgment appealed from is
hereby AFFIRMED but with the penalty MODIFIED to an
indeterminate sentence of ten (10) years and one (1) day of
prision mayor, as minimum, to seventeen (17) years, four
(4) months and one (1) day of reclusion temporal, as
maximum, Costs against the accused-appellant Benny Dy.
SO ORDERED.

     Yap (Chairman), Paras, Padilla and Sarmiento, JJ.,

concur,

Judgment affirmed with modification.

Notes.—Defense of alibi cannot overcome the dying

declaration of the victim and the testimonies of prosecution
eyewitnesses. (People vs, Ebora, 141 SCRA 282.)
Appellant's conviction not based on his alleged oral
admission of the crime but based solely on the credible oral
testimony of the prosecution witnesses. (People us. Rubio,
142 SCRA 329.)

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127

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