People v.

Ner
G.R. No. L-25504, July 31, 1969
Bunao

Doctrine: “Statements made by a person while a startling occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof, may be given in evidence as a part of the RES
GESTAE. …”

Parties:
Roberto Ner — convicted of murder (sentenced to life imprisonment with accessory penalties and to
indemnify the heirs of de Leon in the amount of P6,000 WITHOUT subsidiary imprisonment in case of
insolvency)

Jose de Leon “Boy” — deceased, shot through and through nine times (5 produced from a .38 or .45 caliber
firearm and 4 by a .32 caliber firearm)

Dr. Angelo Singian — Assistant Chief Medical Examiner of the Manila Police Department

Angelina Viray — the deceased’s common-law wife

Witnesses for the Prosecution:

Leonardo Bolea

Rodolfo Rosales

Artemio Tiong — mobile patrolman

Witnesses for the Defense:

Rolando Raymundo — an 18 year-old tricycle operator

Ernesto Pascual

Eduardo Benito

Teodoro Villanueva — father of Valentino Villanueva

Facts:
On May 17, 1964, at about 10:00 p.m., Jose de Leon was shot in his apartment and sustained several wounds
in different parts of the body.

The corresponding information for murder was filed against Roberto Ner y Feliciano, who allegedly killed
Jose de Leon "conspiring and confederating with two (2) others, whose true names, identities and
whereabouts are still unknown", although the complaint filed with the office of the City Fiscal of Manila
named Valentino Villanueva and Jose Lopena as the persons who had assisted Ner in the commission of the
crime.

After due trial, under a plea of not guilty, the lower court convicted and sentenced Ner as above stated. He
moved for a new trial, upon the ground of newly discovered evidence, but the motion was denied. Hence,
this appeal.

Ner did not take the witness stand. He now maintains that His Honor, the trial Judge, Hon. Federico
Alikpala, had erred in giving credence to the witnesses for the prosecution; in taking into account the
testimony of Patrolman Tiong, relative to the statements made to him by Angelina Viray, notwithstanding
the fact that she had not been placed on the witness stand; in drawing an unfavorable inference from his
(appellant's) failure to testify on his behalf; in not holding that the evidence is insufficient to establish his
guilt; and in denying his motion for a new trial.

The case hinges on whether or not Ner has been sufficiently identified as the killer or one of the killers of
Jose de Leon.

Statements of the Witnesses:

The lieutenant inquired about the identity of his assailant, to which Boy answered, in a "low voice"; "Bobby"
"Pirate". These are the nicknames of Ner.

He asked who Bobby/Pirate was but Boy did not answer.

Bolea
He saw Ner thrice accompanied by Jose Lopena and Valentino Villanueva, in the evening of May 17, 1964,
cruising aboard a red-colored jeep along Anacleto St., where he was.

1st time the jeep passed by him: Lopena greeted him after he had just bought cigarettes.

3rd time the jeep passed by: Bolea was seated in front of the house of one Aling Asiang, about 15 meters
away from the building in which Boy's apartment was. Ner was behind the "wheel", with Villanueva seated
beside him, and Lopena in the back seat.

Lopena alighted from the jeep and talked with someone seated on a bench. Ner, followed by Villanueva,
entered said building. Soon there was a volley of shots in Boy's apartment, after which Ner emerged
hurriedly from the building, holding a firearm, which he threw into the back of the jeep. He blew its born
twice, and, drove off alone.

Then Angelina Viray, Boy's common-law wife rushed out of the apartment shouting several times "Binaril si
Boy ni Pirate; binaril si Boy”.

The lieutenant came running towards the apartment.

Rosales
Same as Bolea except he added that the lieutenant went up the building and entered Boy's apartment.

Rosales followed the lieutenant to the third floor of the building and saw the body of Boy on the floor, in a
pool of blood.

The lieutenant held Boy's head and asked him who had shot him. Boy opened his eyes and, with a trembling
voice, replied: "Pirate" or "Bobby Pirate". The lieutenant further inquired: "What Bobby? What Pirate?"
Rosales heard no answer.

He was, also, one of those who brought Boy to the North General Hospital, but Boy died before reaching the
same.

Tiong
He asked Angelina Viray what had happened and she said that Boy lived with her in the apartment, she being
his wife; that between 9:50 and 10:00 o'clock that evening, Pirate Bobby Ner had visited them; that Boy and
Ner talked in the living room, after which, Ner left; that, when Boy and Angelina retired to their bedroom,
somebody knocked at the door; that as Boy opened the same, there was a hail of gunshots; that rushing out of
the bedroom, she saw Boy sprawled on the floor, mortally wounded; and that his assailant was Bobby Ner
alias Pirate.
Raymundo
He was with his tricycle, parked beside the house of one Mrs. Aguilar, across the street from Boy's
apartment.

Two (2) men came in an army jeep and went up the apartment.

Soon, several shots rang out in succession, whereupon said men rushed out of the apartment, boarded the
jeep and sped away. None of them was Ner, whom Raymundo knows. Neither did he see either the lieutenant
or Leonardo Bolea or Rodolfo Rosales, at the scene of the occurrence.
Pascual and Benito
Bolea and Rosales were in a pool-room at Rizal Avenue, from which they proceeded to the scene of the
occurrence after being informed that the same had taken place.

Teodoro Villanueva
Angelina Viray had never mentioned the name of Boy's assailant and that the first person who entered Boy's
apartment, after the occurrence, was one Corporal Herrera, not Lt. de Leon, who did not reach the apartment
until 12 minutes after the shooting.

Issue:
W/N the testimony of Patrolman Tiong concerning his conversation with Angelina Viray should be
disregarded as hearsay, for Angelina did not take the witness stand. — NO. Tiong's testimony about the
statements made by Viray, before she could deliberated on the events that had transpired a few minutes
before, was properly admitted under Sec. 36 of Rule 130 of the Rules of Court, pursuant to which…
“Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent
thereto with respect to the circumstances thereof, may be given in evidence as a part of the RES GESTAE.
…”

Ratio:
Said conversation took place in Boy's apartment, on May 17, 1964, between 10:09 and 10:30 p.m., or
immediately after the occurrence, and referred to the circumstances surrounding the same. At that time,
Angelina had not, as yet, fully recovered from the effects of the assassination of her common-law husband,
practically, if not actually, before her own eyes. In fact, she was not only crying; she had, also, been
repeatedly saying, almost hysterically, that Boy had been shot by "Pirate".

Indeed, it has been held:

... that declarations which are the natural emanations or outgrowths of the act or occurrence in litigation,
although not precisely concurrent in point of time, if they were yet voluntarily and spontaneously made so
nearly contemporaneous as to be in the presence of the transaction which they illustrate and explain, and
were made under such circumstances as necessarily to exclude the idea of design or deliberation, must, upon
the clearest principles of justice, be admissible as part of the act or transaction itself.

It is true that, in saying that Boy had been shot by Pirate, Angelina did not explain to Patrolman Tiong
whether or not she had seen the latter in the act of firing, although she said so in an affidavit made by her
in the City Fiscal's office. Her story to Patrolman Tiong indicated, however, that she had seen appellant and
Boy talking in the living room of his apartment, shortly before the shooting, and that, accordingly, she
had personal knowledge of appellant's presence at the scene of the occurrence.

The fact that Angelina's statement to Tiong was part of her narration, prompted by his questions about the
details of the occurrence, does not detract from the spontaneity of her statement. All that is required for the
admissibility of a given statement as part of the res gestae, is that:
1. it be made under the influence of a startling event witnessed by the person who made the declaration;
2. before he had time to think and make up a story;
3. or to concoct or contrive a falsehood;
4. or to fabricate an account;
5. and without any undue influence in obtaining it;
6. aside from referring to the event in question or its immediate attending circumstances.
Similarly, the following statements have been held to be part of the res gestae:
1. the statement of a child made within an hour of an alleged assault;
2. the testimony of a police officer as to what a victim told him not more than 30 minutes after the
commission of an alleged crime;
3. the statements of defendant's employees made about 30 minutes after an accident;
4. and the declaration of a victim some 5 to 10 minutes after an incident.