Child eyewitness

What is the probative value of the testimony of a five-year old child? This is answered in this case of Dario who has a five-year old son Bertie with his live-in partner Amy.

Amy was a dermatologist with a clinic in a city of a province up north where they were residing. Her relationship with Dario was somewhat rocky. Dario had been suspecting that she was having an affair with another guy.

On December 28, 2000, Bertie their son was in Amy’s clinic together with Amy’s assistant Sheila waiting for Amy. Mother and son were scheduled to leave for Hong Kong at about 11 p.m. that day together with Amy’s alleged new boy friend, Bobby. But when Amy failed to return at about 9 p.m. Sheila decided to close the clinic and brought Bertie home.

On December 29, 2000, at about 2 a.m., the police in the province, responding to a report, found a still burning corpse of a woman about five feet tall and fair complexioned on a spill way along the national road. After extinguishing the fire, they brought the corpse for autopsy and photographing. Taken from the left arm of the corpse were a ring and a wristwatch. On January 15, 2001, when the corpse remained unclaimed, the police buried it at the public cemetery.

In the meantime, Amy’s mother Rita worried about her missing daughter sought NBI assistance already. On February 1, 2001 some NBI agents accompanied by Rita tried to verify from the police whether the corpse found on the spill way was that of Amy. When shown the picture of the burned corpse, Rita identified her as Amy. So they went to the cemetery for the exhumation of the corpse and Rita confirmed that its facial features were really that of her daughter Amy. She also identified the ring and the watch as belonging to Amy.

As the main suspect, Dario was charged for Amy’s murder. Also suspected and accused were Amy’s new boyfriend Bobby and his friend, Boy.

At the trial, one of the prosecution witnesses was Amy’s son Bertie who testified that he saw his father kill his mother. According to Bertie, his mommy was already in heaven because his Daddy killed her. Bertie testified that his daddy hit his mommy’s head with a hammer and then stabbed her neck. He even demonstrated in court how his father killed his mommy.

Bertie’s testimony was corroborated by the medical and autopsy report showing that Amy sustained contusion, lacerated wounds and hematoma on the scalp and forehead and a neck stab wound. Amy‘s assistant Sheila also testified on what happened the day before she disappeared.

Based mainly on the testimony of Bertie, the trial court convicted Dario of murder because the killing was done with treachery. Also found were the aggravating circumstances of superior strength, dwelling, insult or disrespect of the offended party on account of sex, cruelty and outraging or scoffing at her person or corpse. So he was sentenced to death. But the other accused Bobby and Boy were acquitted.

 Dario questioned this decision on appeal. He alleged that the prosecution failed to prove his guilt beyond reasonable doubt. Was he correct?

No. The evidence for the prosecution clearly established that Dario murdered Amy. The most incriminatory evidence against him came from his five-year old son Bertie who saw him kill Amy. Clearly the killing was attended by treachery and abuse of superior strength. There is treachery when the mode of attack tends to insure the accomplishment of the criminal purpose without risk to the attacker arising from any defense the victim might offer. The injuries suffered by Amy clearly showed that she did not have a chance to defend herself. An attack by a man with a deadly weapon upon an unarmed and defenseless woman also constitutes abuse of superior strength. However, abuse of superior strength as an aggravating circumstance is already absorbed in treachery. The aggravating circumstance of dwelling could not also be considered because they resided in the same house. Disrespect on account of sex cannot likewise be appreciated since Dario did not deliberately intend to insult or disrespect Amy. But because the victim’s corpse was burned and left on the spill way to conceal the crime, the killing was attended by the aggravating circumstance of outraging or scoffing at the victim.

Only the penalty of reclusion perpetua without eligibility for parole can be imposed because R.A. 9346 prohibits the imposition of death penalty. But since the offense was attended by aggravating circumstances, exemplary damages of P25,000 should also be imposed aside from P50,000 moral damages and P75,000 civil indemnity (People vs. Brodett, G.R. 170136, January 18, 2008)

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