Jonna Maye Canindo

Sulpicio Lines vs. CA (GR 113578, 14 July 1995) First Division, Quiason (J): 3 concur, 1 on leave Facts: On 23 October 1988, Tito Duran Tabuquilde and his three-year old daughter Jennifer Anne boarded theM/V Dona Marilyn at North Harbor, Manila, bringing with them several pieces of luggage. In the morning of24 October 1988, the M/V Dona Marilyn, while in transit, encountered inclement weather which caused hugewaves due to Typhoon Unsang. Notwithstanding the fact that Storm Signal 2 had been raised by the PAG-ASA authorities over Leyte as early as 5:30 P.M. of 23 October 1988 and which signal was raised to Signal 3by 10 P.M. of the same day, the ship captain ordered the vessel to proceed to Tacloban when prudence dictatedthat he should have taken it to the nearest port for shelter, thus violating his duty to exercise extraordinarydiligence in the carrying of passengers safely to their destination. At about the same time, AngelinaTabuquilde, mother of Jennifer Anne, contacted the Sulpicio Office to verify radio reports that the vessel M/VDona Marilyn was missing. Employees of said Sulpicio Lines assured her that the ship was merely hidingthereby assuaging her anxiety. At around 2:00 P.M. of 24 October 1988, said vessel capsized, throwing Tito and Jennifer Anne, along with hundreds of passengers, into the tumultuous sea. Tito tried to keep himself andhis daughter afloat but to no avail as the waves got stronger and he was subsequently separated from hisdaughter despite his efforts. He found himself on Almagro Island in Samar the next day at around 11:00 A.M.and immediately searched for his daughter among the survivors in the island, but the search proved fruitless.In the meantime, Angelina tried to seek the assistance of the Sulpicio Lines in Manila to no avail, the latterrefusing to entertain her and hundreds of relatives of the other passengers who waited long hours outside theManila office. Angelina spent sleepless nights worrying about her husband Tito and daughter Jennifer Anne inview of the refusal of Sulpicio Lines to release a verification of the sinking of the ship. On 26 October 1988,Tito and other survivors in the Almagro Island were fetched and were brought to Tacloban Medical Center fortreatment. On 31 October 1988, Tito reported the loss of his daughter, was informed that the corpse of a childwith his daughters description had been found. Subsequently, Tito wrote a letter to his wife, reporting the sadfact that Jennifer Anne was dead. Angelina suffered from shock and severe grief upon receipt of the news. On3 November 1988, the coffin bearing the corpse of Jennifer Anne was buried in Tanauan, Leyte.On 24 November 1988, a claim for damages was filed by Tito with Sulpicio Lines before the RTC of QuezonCity (Branch 85, Civil Case Q-89-3048) in connection with the death of Titos daughter and the loss of Titosbelongings worth P27,580.00. On 3 January 1991, the trial court rendered a decision in favor of Tito DuranTabuquilde and Angelina de Paz Tabuquilde and against Sulpicio Lines,. Inc. ordering the latter to payP27,580.00 as actual damages, P30,000.00 for the death of Jennifer Tabuquilde, P100,000.00 as moraldamages, P50,000.00 as exemplary damages, and P50,000.00 as attorneys fees, and costs.Sulpicio Lines appealed to the Court of Appeals which affirmed the decision of the trial court. Sulpicio Linesthen filed a motion for reconsideration which was denied. Hence, the petition for review on certiorari.The Supreme Court affirmed the decision of the Court of Appeals with the modification that the award ofP27,580.00 as actual damages for the loss of the contents of the pieces of baggage is deleted and that theaward of P30,000.00 under Article 2206 in relation Article 1764 is increased to P50,000.00. 1.Duty of common carrier A common carrier is obliged to transport its passengers to their destinations with the utmost diligenceof a very cautious person (Laguna Tayabas Bus Co. v. Tiongson, 16 SCRA 940 [1966]). Herein, the trial courtfound that Sulpicio Lines failed to exercise the extraordinary diligence required of a common carrier, whichresulted in the sinking of the M/V Dona Marilyn. 2.Facts; Storm signal warnings involving Typhoon Unsang Typhoon Unsang entered the Philippine Area of Responsibility on 21 October 1988. The rain inMetro Manila started after lunch of 23 October 1988, and at about 5:00 p.m. Public Storm signal 1 washoisted over Metro Manila, signal 2 in Leyte and signal 3 in Samar. By 10:00 a.m. of 23 October 1988, PublicStorm signal 1 was already hoisted over the province of Leyte, which is the destination of M/V Dona Marilyn.This was raised to signal 2 at 4:00 p.m. and signal 3 at 10:00 p.m. on the same date. The following day, 24October 1988, at 4:00 a.m. and 10:00 a.m., Storm signal 3 remained hoisted in Leyte. At 4 p.m. on 24 October1988, Storm signal 3 remained hoisted in Leyte but was reduced to Storm signal 2.

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3.Facts; Meaning of storm signal warnings Signal 1 has maximum winds at 60 kph within 36 hours; signal 2 has maximum winds of from 60 kphto 100 kph within a period of 24 hours; and signal 3 has maximum winds of 100 kph and above within aperiod of 12 hours. Actual or compensatory damages must be proved to allow recovery Actual or compensatory damages, to be recovered, must be proved; otherwise, if the proof is flimsy, no damages will be awarded (Dichoso v. Court of Appeals, 192 SCRA 169 (1990). Herein, the trial court merely mentioned the fact of the loss and the value of the contents of the pieces of baggage without stating the evidence on which it based its findings. There is no showing that the value of the contents of the lost pieces of baggage was based on the bill of lading or was previously declared by Tito D. Tabuquilde before he boarded the ship. Hence, there can be no basis to award actual damages in the amount of P27,850.00. 9. Deaths caused by crime as quasi delict entitled to actual and compensatory damages without need of proof; Article 2206 NCC Under Article 2206 of the Civil Code of the Philippines, only deaths caused by a crime as quasi delict are entitled to actual and compensatory damages without the need of proof of the said damages. Said Article provides that the amount of damages for death caused by a crime or quasi delict shall be at least Three Thousand Pesos, even though there may have been mitigating circumstances. Herein, the trial court awarded an indemnity of P30,000.00 for the death of the daughter of Tabuquilde. The award of damages under Article 2206 has been increased to P50,000.00 (People v. Flores, 237 SCRA 653 [1994]). 10. Death caused by breach of contract of transportation entitled to actual and compensatory damages; Article 1764 Deducing alone from Article 2206 of the Civil Code, one can conclude that damages arising from culpa contractual are not compensable without proof of special damages sustained by the heirs of the victim. The Civil Code, however, in Article 1764 thereof, expressly makes Article 2206 applicable to the death of a passenger caused by the breach of contract by a common carrier. Accordingly, a common carrier is liable for actual or compensatory damages under Article 2206 in relation to Article 1764 of the Civil Code for deaths of

11. Moral damages; when recoverable in culpa contractual

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With respect to the award of moral damages, the general rule is that said damages are not recoverable in culpa contractual except when the presence of bad faith was proven.(Trans World Air Lines v. Court of Appeals, 165 SCRA 143 [1988]). However, in breach of contract of carriage, moral damages may be recovered when it results in the death of a passenger (Philippine Rabbit Bus Lines, Inc. v. Esguerra, 117 SCRA 741 [1982]; Vasquez v. Court of Appeals, 138 SCRA 553 [1985]). 12. Exemplary damages With respect to the award of exemplary damages, Article 2232 of the Civil Code of the Philippines gives the Court the discretion to grant said damages in breach of contract when the defendant acted in a wanton, fraudulent and reckless manner (Air France v. Carrascoso, 18 SCRA 155 [1966]). 13. Institution of exemplary damages for safe and reliable carriage of people and goods by sea; Mecenas vs. CA In the case of Mecenas v. Court of Appeals, 180 SCRA 83 (1989), the Court ruled that the Court will take judicial notice of the dreadful regularity with which grievous maritime disasters occur in our waters with massive loss of life. The bulk of our population is too poor to afford domestic air transportation. So it is that notwithstanding the frequent sinking of passenger vessels in our waters, crowds of people continue to travel by sea. This Court is prepared to use the instruments given to it by the law for securing the ends of law and public policy. One of those instruments is the institution of exemplary damages; one of those ends, of special importance in an archipelagic state like the Philippines, is the safe and reliable carriage of people and goods by sea. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 113578 July 14, 1995 SULPICIO LINES, INC., Petitioner, vs. The Honorable COURT OF APPEALS and TITO DURAN TABUQUILDE and ANGELINA DE PAZ TABUQUILDE,respondents.

QUIASON, J.: This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court of the decision of the Court of Appeals in CA-G.R. CV No. 32864, which affirmed the decision of the Regional Trial Court, Branch 85, Quezon City in Civil Case No. Q-89-3048. I

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The Court of Appeals found: On October 23, 1988, plaintiff Tito Duran Tabuquilde (hereinafter, "Tito") and his three-year old daughter Jennifer Anne boarded the M/V Dona Marilyn at North Harbor, Manila, bringing with them several pieces of luggage. In the morning of October 24, 1988, the M/V Dona Marilyn, while in transit, encountered inclement weather which caused huge waves due to Typhoon Unsang. Notwithstanding the fact that Storm Signal No. 2 had been raised by the PAG-ASA authorities over Leyte as early as 5:30 P.M. of October 23, 1988 and which signal was raised to Signal No. 3 by 10 P.M. of the same day, the ship captain ordered the vessel to proceed to Tacloban when prudence dictated that he should have taken it to the nearest port for shelter, thus violating his duty to exercise extraordinary diligence in the carrying of passengers safely to their destination. At about the same time, plaintiff-appellee Angelina Tabuquilde (hereinafter, "Angelina") mother of Jennifer Anne, contacted the Sulpicio Office to verify radio reports that the vessel M/V Dona Marilyn was missing. Employees of said Sulpicio Lines assured her that the ship was merely "hiding" thereby assuaging her anxiety. At around 2:00 P.M. of October 24, 1988, said vessel capsized, throwing plaintiff-appellee Tito and Jennifer Anne, along with hundreds of passengers, into the tumultuous sea. Tito tried to keep himself and his daughter afloat but to no avail as the waves got stronger and he was subsequently separated from his daughter despite his efforts. He found himself on Almagro Island in Samar the next day at round (sic) 11:00 A.M. and immediately searched for his daughter among the survivors in the island, but the search proved fruitless. In the meantime, Angelina tried to seek the assistance of the Sulpicio Lines in Manila to no avail, the latter refusing to entertain her and hundreds of relatives of the other passengers who waited long hours outside the Manila Office. Angelina spent sleepless nights worrying about her husband Tito and daughter Jennifer Anne in view of the refusal of Sulpicio Lines to release a verification of the sinking of the ship. On October 26, 1988, Tito and other survivors in the Almagro Island were fetched and were brought to Tacloban Medical Center for treatment. On October 31, 1988, Tito reported the loss of his daughter, was informed that the corpse of a child with his daughter's description had been found. Subsequently, Tito wrote a letter to his wife, reporting the sad fact that Jennifer Anne was dead. Angelina suffered from shock and severe grief upon receipt of the news. On November 3, 1988, the coffin bearing the corpse of Jennifer Anne was buried in Tanauan, Leyte. On November 24, 1988, a claim for damages was filed by Tito with the defendant Sulpicio Lines in connection with the death of the plaintiff-appellee's daughter and the loss of Tito's belongings worth P27,580.00. (Appellees' Brief, pp. 2-4) ( Rollo, pp. 52-54). On January 3, 1991, the trial court rendered a decision in Civil Case No. Q-89-3048 in favor of the plaintiffs Tito Duran Tabuquilde and Angelina de Paz Tabuquilde (private respondents herein) and against defendant Sulpicio Lines, Inc. (petitioner herein) ordering defendant to pay P27,580.00 as actual damages, P30,000.00 for the death of Jennifer

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Tabuquilde, P100,000.00 as moral damages, P50,000.00 as exemplary damages, and P50,000.00 as attorney's fees, and costs. Petitioner appealed to the Court of Appeals which affirmed the decision of the trial court. Petitioner then filed a motion for reconsideration which was denied. Hence, this petition. II Generally, the findings of fact of the trial court are entitled to great weight and not disturbed except for cogent reasons (Gatmaitan v. Court of Appeals, 200 SCRA 37 [1991]). One of the accepted reasons is when the findings of fact are not supported by the evidence (Sandoval Shipyard, Inc. v. Clave, 94 SCRA 472 [1979]). Corollary to this is the rule that actual or compensatory damages, to be recovered, must be proved; otherwise, if the proof is flimsy, no damages will be awarded (Dichoso v. Court of Appeals, 192 SCRA 169 [1990]). In the case at bench, the trial court merely mentioned the fact of the loss and the value of the contents of the pieces of baggage without stating the evidence on which it based its findings. There is no showing that the value of the contents of the lost pieces of baggage was based on the bill of lading or was previously declared by respondent Tito D. Tabuquilde before he boarded the ship. Hence, there can be no basis to award actual damages in the amount of P27,850.00. The Court of Appeals was correct in confirming the award of damages for the death of the daughter of private respondents, a passenger on board the stricken vessel of petitioner. It is true that under Article 2206 of the Civil Code of the Philippines, only deaths caused by a crime as quasi delict are entitled to actual and compensatory damages without the need of proof of the said damages. Said Article provides: The amount of damages for death caused by a crime or quasi delict shall be at least Three Thousand Pesos, even though there may have been mitigating circumstances. . . . Deducing alone from said provision, one can conclude that damages arising from culpa contractual are not compensable without proof of special damages sustained by the heirs of the victim. However, the Civil Code, in Article 1764 thereof, expressly makes Article 2206 applicable "to the death of a passenger caused by the breach of contract by a common carrier." Accordingly, a common carrier is liable for actual or compensatory damages under Article 2206 in relation to Article 1764 of the Civil Code for deaths of its passengers caused by the breach of the contract of transportation. The trial court awarded an indemnity of P30,000.00 for the death of the daughter of private respondents. The award of damages under Article 2206 has been increased to P50,000.00 (People v. Flores, 237 SCRA 653 [1994]). With respect to the award of moral damages, the general rule is that said damages are not recoverable in culpa contractual except when the presence of bad faith was proven (Trans World Air Lines v. Court of Appeals, 165 SCRA 143 [1988]). However, in breach of contract of carriage, moral damages may be recovered when it results in the death of a passenger (Philippine Rabbit Bus Lines, Inc. v. Esguerra, 117 SCRA 741 [1982]; Vasquez v. Court of Appeals, 138 SCRA 553 [1985]). With respect to the award of exemplary damages, Article 2232 of the Civil Code of the Philippines gives the Court the discretion to grant said damages in breach of contract when the defendant acted in a wanton, fraudulent and reckless manner (Air France v. Carrascoso, 18 SCRA 155 [1966]). Furthermore, in the case of Mecenas v. Court of Appeals, 180 SCRA 83 (1989), we ruled that: . . . . The Court will take judicial notice of the dreadful regularity with which grievous maritime disasters occur in our waters with massive loss of life. The bulk of our population is too poor to afford domestic air

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transportation. So it is that notwithstanding the frequent sinking of passenger in our waters, crowds of people continue to travel by sea. This Court is prepared to use the instruments given to it by the law for securing the ends of law and public policy. One of those instruments is the institution of exemplary damages; one of those ends, of special importance in an archipelagic state like the Philippines, is the safe and reliable carriage of people and goods by sea. . . . (at p. 100). A common carrier is obliged to transport its passengers to their destinations with the utmost diligence of a very cautious person (Laguna Tayabas Bus Co. v. Tiongson, 16 SCRA 940 [1966]). The trial court found that petitioner failed to exercise the extraordinary diligence required of a common carrier, which resulted in the sinking of the M/V Dona Marilyn. The trial court correctly concluded that the sinking of M/V Dona Marilyn was due to gross negligence, thus: . . . [i]t is undisputed that Typhoon Unsang entered the Philippine Area of Responsibility on October 21, 1988. The rain in Metro Manila started after lunch of October 23, 1988, and at about 5:00 p.m. Public Storm Signal No. 1 was hoisted over Metro Manila, Signal No. 2 in Leyte and Signal No. 3 in Samar. But at 10:00 o'clock (sic) in the morning of October 23, 1988, Public Storm Signal No. 1 was already hoisted over the province of Leyte, which is the destination of M/V Dona Marilyn. This was raised to Signal No. 2 at 4:00 p.m. and Signal No. 3 at 10:00 p.m. on the same date. The following day, October 24, 1988, at 4:00 a.m. and 10:00 a.m., Storm Signal No. 3 remained hoisted in Leyte. At 4 p.m. on October 24, 1988, Storm Signal No. 3 remained hoisted in Leyte but was reduced to Storm Signal No. 2 (Exh. G). Signal No. 1 has maximum winds at 60 kph within 36 hours; Signal No. 2 has maximum winds of from 60 kph to 100 kph within a period of 24 hours; and Signal No. 3 has maximum winds of 100 kph and above within a period of 12 hours. Warnings of the storm signal are issued by PAG-ASA thru DZZA, Office of Civil Defense, Philippine Navy, Coast Guard, Radio Stations, and other offices, every six (6) hours as soon as a cyclone enters the Philippine Area of Responsibility. At 10:30 a.m. on October 24, 1988, the vessel was estimated to be between Mindoro and Masbate, and the center of the typhoon then was around 130 degrees longitude with maximum winds of 65 kph (Exh. G-3), with a "radius of rough to phenomenal sea at that time of 450 kms. North and 350 kms. elsewhere; 350 kms. North center and all throughout the rest" (p. 12, TSN, Lumalda, Feb. 19, 1990). xxx xxx xxx In the same manner, (referring to the negligence of the crew of the ship that sank in Vasquez v. Court of Appeals, 138 SCRA 553 [1985]) the crew of the vessel M/V Dona Marilyn took a calculated risk when it proceeded despite the typhoon brewing somewhere in the general direction to which the vessel was going. The crew assumed a greater risk when, instead of dropping anchor in or at the periphery of the Port of Calapan, or returning to the port of Manila which is nearer, proceeded on its voyage on the assumption that it will be able to beat and race with the typhoon and reach its destination before it (Unsang) passes ( Rollo, pp. 45-47). The award of attorney's fees by the trial court to respondents is also assailed by petitioner, citing Mirasol v. De la Cruz, 84 SCRA 337 (1978). In this case, the petitioner filed before the Municipal Court an action for forcible entry against the private respondent. The said court dismissed the complaint. On appeal, the Court of First Instance of Camarines Sur sustained the decision of the lower court, dismissed the appeal and awarded attorney's fees in the sum of not less than P500.00 in favor of private respondent. Upon appeal to us, we deleted the award of attorney's fees because the text of the appealed decision was bereft of any findings of fact and law to justify such an award. Moreover, there was no proof, other than the bare allegation of harassment that the adverse party had acted in bad faith. The aforementioned decision is inapposite to the instant case where the decision clearly mentions the facts and the law upon which the award of attorney's fees were based.

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WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the MODIFICATION that the award of P27,580.00 as actual damages for the loss of the contents of the pieces of baggage is deleted and that the award of P30,000.00 under Article 2206 in relation Article 1764 is increased to P50,000.00. SO ORDERED. PEOPLE OF THE PHILIPPINES vs. JALOSJOS EN BANC Gentlemen: Quoted hereunder, for your information, is a resolution of this Court dated JAN 22 2002. G.R. Nos. 132875-76 (People of the Philippines vs. Romeo G. Jalosjos.) Accused-appellant seeds to reconsider the November 16, 2001 Decision of the Court convicting him beyond reasonable doubt of two (2) counts of Statutory Rape and six (6) counts of Acts of Lasciviousness. Accused-appellant raises points and arguments that merely reiterate the thrust of his appeal. The question relating to Ma. Rosilyn Delantar's credibility, her age, as well as the issue of whether accusedappellant's acts in Criminal Case Nos. Nos. 96-1985 and 96-1986 amounted to rape or to a lesser offense of acts of lasciviousness, have already been thoroughly passed upon and extensively discussed in the assailed decision. The Court sees no reason to disturb its finding of accused-appellant's guilt. Still grasping at straws, accused-appellant contends that, assuming he was guilty, the mitigating circumstances analogous to those mentioned in paragraphs 4, 6, and 9 of Article 13 [1]cralaw of the Revised Penal Code should have been considered by the Court to mitigate his criminal liability. With resounding absurdity, accused-appellant pictures himself as a captured, helpless and submissive prey enslaved by an overpowering passion instigated and provoked by an 11 year-old experienced sex worker. He desperately depicts himself as a victim prevailed upon by physical and psychological dysfunction that diminishes the exercise of will power. Accused-appellant's contention is untenable. Settled is the rule that the victim's unchaste character is neither a defense nor a mitigating circumstance in rape. Likewise, whatever consent or "provocation" an eleven-year old girl gave to a sexual congress is no consent or "provocation" at all. The very essence of the crime of statutory rape is the carnal knowledge of a woman below twelve years old. Being of such tender age, she is presumed not to have a will of her own. The law does not consider any kind of consent given by her as voluntary.[2]cralaw The same goes for children exploited in prostitution defined in Republic Act No. 7610. The Child Abuse Law was enacted precisely to protect children, who as set forth therein, mean male or female below 18 years of age. Their consent or "provocation" in the sexual intercourse or lascivious conduct occasioned by their prostitution is not mitigating. Thus, accused-appellant's contention that consent or provocation can mitigate his criminal liability is misplaced. Moreover, the spirit of lawlessness that impelled accused-appellant to commit the felonious acts at bar does not merit a mitigating circumstance analogous to "having acted upon an impulse so powerful as naturally to have produced passion."In the old but relevant case People v. Sanico,[3]cralaw the Court held that the accused who raped a woman is not entitled to the mitigating circumstance of having acted upon an impulse so powerful as naturally to have produced passion just because he "finds himself in a secluded place with a young ravishing woman, almost naked" [and therefore] "liable to succumb to the uncontrollable passion of his bestial instinct." The Court then held that: "The correct and sound

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interpretation given by the courts and the commentators limits the application of said circumstance to causes which originate from lawful feelings, not those which arise from vicious, unworthy, and immoral passions." Accused-appellant's reliance on the alleged mitigating circumstance analogous to "illness as would diminish the exercise of the will power" suffers from an utter lack of basis which does not merit any consideration by this Court. IN VIEW OF ALL THE FOREGOING, the instant motion for reconsideration is DENIED with FINALITY. Very truly yours, PEOPLE v. ROMEO JALOSJOS (2001) Facts Rape is a crime against human dignity, punishable by reclusion perpetua or death, particulary odious when committed against a minor. There were six other cases where the Jalosjos was acquitted of the charges of acts of lasciviousness for failure of the prosecution to prove his guilt beyond reasonable doubt. Eleven year old Rosilyn Delantar accused Romeo G. Jalosjos of sexual impropriety against her on the dates of June 18 & 20, 1996, at the Ritz Towers, Makati City. The rest of the information provided for lascivious conduct only. Allegedly, he paid Php10k, Php5k & Php5k on different dates. She was pimped by her homosexual adopted father Simplicio Delantar since the age of 9 (she was born in 1985) and first met Jalosjos in February 1996. He let her stay nights in his condominium unit and repeatedly kept trying to have sex with her, saying, After all, I am your daddy until, on the dates mentioned, he succeeded. This went on for some months until Rosilyn ran away in August 1996, when she was taken to DSWD and the NBI conducted an investigation into her rape claims. Jalosjos claimed that it was his brother Dominador who Rosilyn met and he was in the province allegedly at the time the sexual advances took place. This issue was allegedly crafted by his political enemies to put him at a disadvantage. chadosorio He was found guilty and sentenced to reclusion perpetua and Php50k for each count of rape (2), and reclusion temporal and Php20k damages for each count of acts of lasciviousness (6). THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO PLANA alias CATONG EDGARDO PERAYRA, RENE SALDEVEA and RICHARD BANDAY, defendant-appellants. DECISION PER CURIAM: This is an automatic review of the decision of the Regional Trial Court, Branch 15 of Roxas City in Criminal Case No. 4659 finding accused-appellants Antonio Plana, Edgardo Perayra, Rene Saldevea and Richard Banday guilty beyond reasonable doubt of the crime of Rape with Homicide and imposing upon them the supreme penalty of Death. The Information filed against accusedappellants reads: That on or about 10:30 oclock in the morning of September 23, 1994, at Brgy. Cubi, Dumarao, Capiz, and within the jurisdiction of this Court, the above-named accused did, then and there, wilfully and feloniously, and by conspiring and helping one another, gang-up and have carnal knowledge of HELEN PIROTE [should read Helen Perote]. will, and, thereafter, by means of cruelty which augmented her suffering, did, then and there, strike, mangle and stab said HELEN PIROTE several times with both blunt and sharpedged weapons thereby inflicting upon her serious multiple wounds causing massive hemorrhage which resulted to [sic] her death.[1] At their arraignment, accused-appellants pleaded not guilty. During the trial, the prosecution presented as its witnesses Dr. Ricardo Betita, Jr., Felix Lagud, Rene Bustamante, Antonio Mendoza, Amalia Rafael, Linda Perote and Romeo de la Torre Diaz. Their testimonies, taken together, establish that:

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On September 26, 1994, the victim, Helen Perote, was found dead by her brother and the police in Brgy. Cobe, Dumarao, Capiz. The body was in prone position and was already in an advance state of decomposition. Per the post mortem examination conducted by Dr. Ricardo Betita, Rural Health Officer of Cuartero, Capiz, the victim sustained the following injuries: 1. Clean edges stab wound 2x5 cm left anterior chest. 2. Avulsion with irregular edges wound 8x12 cm middle chest area. 3. Avulsion of the nose and upper lip portion/area. 4. Clean edges wound or stab wound 2x5 cm epigastric area. 5. Clean edges stab wound 2x5 cm left hypogastric area. 6. Clean edges stab wound 2x5 cm hypogastric area. 7. Clean edges stab wound 2x5 cm left posterior upper back. 8. Clean edges stab wound 2x5 cm mid upper portion of the back. 9. Clean edges stab wound 2x5 cm left posterior back level of 8th ribs. 10. Clean edges stab wound 2x5 cm left back level of left lumbar area. 11. Clean edges wound 2x5 cm middle low back area. 12. Clean edges wound 2x5 cm right low back area at level of lumbar area. 13. Clean edges wound 2x5 cm left gluteal area near the anus. 14. Vagina: Introitus can easily insert 2 fingers/Hymen with laceration 3 and 9 oclock (old laceration) and on the state of decomposition.

The most probable cause of death was massive hemorrhage or blood loss secondary to multiple stab wound[s]. [2] When he took the witness stand, Dr. Betita described the fourteen (14) wounds inflicted on the victim as follows: Wound No. 1 was located just above the left breast of the victim. It was seven (7) to nine (9) centimeters deep. It was a fatal wound as it hit the heart of the victim. Wound No. 2 was located in the middle chest area of the victim. Wound No. 3 was an avulsion on the nose and upper lip. There was also a missing tooth. The wound could have been caused by a hard object or that the victim fell with her face hitting the ground. Wound No. 4 was a stab wound located at the upper part of the abdomen. It was seven (7) centimeters deep and was probably caused by a knife or a bladed instrument. Wound No. 5 was a stab wound located at the left side above the pubis area. Wound No. 6 was a stab wound located above the pubis area also. It was seven (7) to ten (10) centimeters deep. The urinary bladder and the uterus could have been hit by this wound. Wound No. 7 was a stab wound and located at the right scapular area of the body. With a depth of seven (7) centimeters, the wound hit the lungs of the victim. Wound No. 8 was a stab wound and located at the upper back portion. It could have affected the spinal cord causing paralysis. Wound No. 9 was a fatal stab wound located at the left posterior back level of the 8th rib. The wound could have affected the spinal cord, the lungs and the abdominal aorta. Wound No. 10 was located at the left lumbar area which could have hit the kidney of the victim. Wound No. 11 was located at the middle low back area. Wound No. 12 was located at the middle portion of the back just above the right lumbar area. Wound No. 13 was located near the anus. The wound was inflicted with the victim facing downward or the assailant was at the back of the victim. Finally, Entry No. 14 was the laceration on the hymen of the victims sexual organ.[3] According to Dr. Betita, the victim died more than seventy-two (72) hours already before the police authorities found her body. [4] On September 23, 1994, or three (3) days before the victims body was found, at around 10:30 in the morning, Felix Lagud was walking at the feeder road in Barangay Cobe, Dumarao, Capiz. He just came from his farm in Alipasyawan, Dumarao and was on his way home to Poblacion Ilawod. A movement at about fifty meters to his left side caught his attention. He saw three persons who seemed to be wrestling. He came nearer so he would be able to see them more clearly. From about a distance of twenty (20) meters, he saw the three men holding a girl while another man was on top of her. The girl was being raped and she was later stabbed. Frightened that the assailants would see him, Lagud ran away. He intended to go straight home but when he passed by the house of Porferio Haguisan, the latter invited him for a milagrosa. Lagud obliged and stayed at the house of his kumpare until 2:00 in the afternoon.[5] On September 26, 1994, while he was in Ungon Ilaya, Lagud heard that a girl was found dead in Barangay Cobe. It was the same place where, three days earlier, he saw the four men gang up on the girl. He wanted to go to the place but he was told that the foul smell coming from the decomposed body already permeated the place. He later learned that the deceased was Helen Perote.[6] In his affidavit,[7] as well as in his testimony in court, Lagud identified accused-appellants Plana, Perayra and Saldevea as the three men who were holding the girl while their fourth companion was raping her. At the time of the incident, he did not yet

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recognize the fourth man who was on top of the girl. However, when he saw accused-appellants at the municipal hall where they were brought when they were arrested on September 26, 1994, he identified the fourth man to be accused-appellant Banday.[8] Rene Bustamante corroborated in part the testimony of Lagud. Between 10:30 to 11:00 in the morning of September 23, 1994, Bustamante was looking for his carabao. He found it near the fishpond owned by accused-appellant Saldevea in Barangay Cobe. Bustamante was tugging the carabao when he heard the sound of men laughing. When he looked back, he saw accused-appellant Saldevea, who was then shirtless, pull up his pants. Accused-appellant Saldevea were with three other men. They were washing their hands on the fishpond. Bustamante recognized one of them to be accused-appellant Perayra. Bustamante proceeded to his home in Barangay Ungon, Ilaya, Dumarao, Capiz.[9] On September 25, 1994, Bustamante was in their house with his wife and children. His mother-in-law, Linda Perote, arrived looking for her daughter Helen. The wife of Bustamante is the older sister of Helen. They learned that Helen had been missing since September 23, 1994. She was supposed to go to the house of her other sister, Susan, but she (Helen) never reached the latters place. They began to search for her. On September 26, 1994, they found her lifeless body with no clothes on but her panty. There were already maggots infesting her body. Bustamante confirmed in open court that accused-appellants were the men that he saw on September 23, 1994 near the place where the body of Helen was found. [10] Antonio Mendoza, barangay captain of Barangay Hambad, Dumarao, Capiz and storeowner, narrated during the hearing that on September 23, 1994, at past 8:00 in the morning, accused-appellants arrived at his store. They bought two bottles of ESQ whisky and proceeded to drink the liquor. Accused-appellants were drinking in Mendozas store until almost 10:00 in the morning. Thereafter, they left bringing with them the one-half full bottle of whisky that they did not consume.[11] Two days after that incident, on September 25, 1994, Porferio Haguisan and members of the Regional Security of the Armed Forces (RSAF) came to see Mendoza to ask him if he saw accused-appellants. Mendoza told them that accused-appellants were in his store in the morning of September 23, 1994. Haguisan and the police left. The following day, Mendoza heard that Helens body was found dead near the fishpond owned by the brother of accused-appellant Saldevea. The place is approximately 500 meters away from Mendozas store.[12] The last person who talked with the victim was her older sister Amalia Rafael. In the morning of September 23, 1994, Helen went to see Amalia to tell her that they were going to have a milagrosa in the house of their other sister, Susan. Amalia instructed Helen to go ahead. Helen then left to proceed to Susans house. Going there, Helen would usually pass by the railway track and the feeder road. After Helen left, Amalia followed her to their sisters house. Amalia took the same route passing by the railway track and feeder road. On her way, Amalia met accused-appellants on the feeder road near the fishpond. At the time, she only knew accusedappellants Plana and Perayra. She noticed that the four men were not wearing any shirts but only their denim pants. They were obviously drunk as their faces were red and they walked in a zigzag manner. Amalia saw that accused-appellant Plana had a knife tucked in his waist.[13] There were already many people when Amalia arrived at Susans house. However, Helen was nowhere to be found. Amalia did not stay long there as she only got food. On September 25, 1994, while she was working in the ricefield, their mother, Linda, came. She told Amalia that Helen had not come home. They then went to see Helens classmates to ask them if they knew where she went. All they knew is that she went to a milagrosa. On September 26, 1994, they found the body of Helen near the fishpond of accused-appellant Saldevea in Barangay Cobe, Dumarao, Capiz. Helen was then only eighteen years old.[14] The Chief of Police of Dumarao Police Station, Romeo dela Torre Diaz, received report of Helens disappearance in the afternoon of September 25, 1994. Later in the evening, he granted clearance to the 601st Mobile Force Company to conduct the search. The following day, upon hearing that the body of Helen was already found, Diaz went to the station of the 601st Mobile Force Company. Accused-appellants, who were already there, were turned over to him for investigation. Thereafter, Diaz went to the place where Helens body was found in Barangay Cobe. [15] Linda Perote, the victims mother, described on the witness stand the shock, grief and anguish that she felt upon learning of her daughters death. She averred that the family spent almost fifty thousand pesos (P50,000.00) for Helens wake and burial. [16] Upon the other hand, accused-appellants interposed the defense of denial and alibi. Their account of their activities on that fateful day of September 23, 1994 is as follows: At around 7:30 in the morning, accused-appellants had lomi in the eatery owned by Eddie Pendon. After eating, they accompanied accused-appellant Saldevea to the public market to buy fish. From the public market, they all boarded a tricycle to go to Barangay Bugnay. When they alighted the tricycle, they met barangay captain Tony Mendoza. Mendoza boarded the tricycle while

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accused-appellants proceeded to Mendozas store. Accused-appellants bought two bottles of whisky from the store. They drank the liquor at said store until past 10:00 in the morning. [17] Thereafter, accused-appellants Plana and Banday had to leave behind accused-appellants Saldevea and Perayra to go to the house of Planas aunt and uncle, Vicente and Felomina Docutan. They reached the house of the Docutans at around 10:30 in the morning. It only took them a couple of minutes to get there by foot. Accused-appellants Plana and Banday were tasked to cook the chicken for the celebration that night. Also at the house of the Docutan couple was Nolan Obena. Accused-appellants Plana and Banday stayed there until 9:00 in the evening. Accused-appellant Banday slept over at the house of accused-appellant Plana since he (accused-appellant Banday) lived quite far.[18] For their part, after accused-appellants Plana and Banday left the store, accused-appellants Perayra and Saldevea proceeded to the house of the latters sister-in-law, Monina Saldevea. Accused-appellant Saldevea cooked the fish that they earlier bought in the public market. They then had lunch and after eating, they slept. Accused-appellant Perayra slept until 4:00 in the afternoon. Accusedappellant Saldevea woke up earlier and was soon outside the house plowing the field. Accused-appellant Perayra went home at 4:30 in the afternoon.[19] To buttress their defense of denial and alibi, accused-appellants further accounted for their activities on the days subsequent to September 23, 1994. Accused-appellant Plana claimed that he spent the day gathering wood on September 24, 1994. The following day, he just stayed at their house but in the afternoon, he played basketball with accused-appellant Perayra and their friends. Later in the evening, at about 11:00, certain members of the RSAF came to the house of accused-appellant Plana. Accused-appellant Perayra was still there because he slept over at said house. The RSAF questioned them if they saw a girl named Helen Perote. They answered no. Accused-appellants Plana and Perayra then accompanied the law enforcers to see a certain Lando. The authorities inquired from Lando if there was a woman who boarded his bering transportation. Lando answered in the negative. Accused-appellants Plana and Perayra were then instructed by the police to go to the police detachment. Since it was already late, accused-appellants Plana and Perayra asked if they could just go there in the morning of the following day.[20] Accused-appellant Perayra averred that he stayed at his house the whole day of September 24, 1994. The following day, he went to the house of accused-appellant Plana in the afternoon. They agreed to meet later in the evening at the wake in the house of the Igaras family. They left the wake at 10:00 in the evening. Accused-appellant Perayra decided to spend the night at the house of accused-appellant Plana. At 11:00 in the evening, they were awakened by the brother of accused-appellant Plana. They were informed that members of the RSAF were outside the house looking for them. Accused-appellant Perayra was brought in front of the house while accused-appellant Plana was brought at the back. Accused-appellant Perayra was asked of his whereabouts on September 23, 1994.[21] Accused-appellant Banday recounted that he left the house of accused-appellant Plana early morning of September 24, 1994. He slept there the night before after they had dinner at the house of the Docutans. He never left his house on September 24 and 25, 1994. On September 26, 1994, he received word that the police chief wanted to ask him some questions. He thus went to the police detachment as instructed. He did not see the other accused-appellants when he arrived at the detachment. The authorities began interrogating him. They wanted him to confess to the killing and raping of Helen. When he refused, they punched him. Later in the afternoon, the four accused-appellants were brought to the municipal hall in Dumarao, Capiz. They were placed under detention there.[22] Aside from accused-appellants, the defense presented other witnesses, namely, Julia Barrientos, Nolan Obena, Igleserio Farinas, Rolando Naelgas and Monina Saldevea. Barrientos tried to refute the allegation of prosecution witness Felix Lagud that he saw accused-appellants rape and stab Helen in Barangay Cobe. Barrientos testified that on September 23, 1994, at 10:00 in the morning, on her way to the public market, she saw Lagud sitting on the bench outside his house. Lagud was then selling amakan, hence, he could not have seen what he claimed he saw.[23] Obena corroborated the alibi of accused-appellants Plana and Banday that from 10:30 in the morning to 8:00 in the evening on September 23, 1994, they were at the house of the Docutan couple. [24] Farinas, a basket vendor, said during his testimony that he saw accused-appellant Plana and his two companions at around 10:30 in the morning of that fateful day. They passed by the house of Ronie Saldevea, brother of accused-appellant Saldevea, where Farinas was buying baskets. He (Farinas) even had a short conversation with accused-appellant Plana. Farinas saw accused-appellant Plana and his companions head towards Barangay Cobe.[25] Naelgas corroborated the testimony of Obena. Naelgas saw Obena when the latter bought baskets from Ronie. He (Naelgas) affirmed that accused-appellants Plana and Banday passed by the house of Ronie. They came from the direction of the nearby high school and went down the hill going to Barangay Cobe. [26]

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Monina Saldevea, sister-in-law of accused-appellant Saldevea, corroborated the alibi of accused-appellants Saldevea and Perayra. She attested that on September 23, 1994, accused-appellants Saldevea and Perayra arrived at her house at 10:30 in the morning. They had their lunch there. Accused-appellant Saldevea helped prepare the same. Accused-appellant Perayra stayed at the house of Monina until 4:30 in the afternoon when he went home. On the other hand, accused-appellant Saldevea did not leave the house until September 25, 1994. The following day, he went to the detachment after he was informed by accused-appellant Perayra that the authorities wanted to investigate them for the death of Helen Perote. [27] Edith Perayra, mother of accused-appellant Perayra, averred that in the morning of September 23, 1994, her son asked permission from her to go to the public market. He told her that he was going there with accused-appellant Saldevea. When he got home at 5:00 in the afternoon, he told his mother that he ate lunch at the house of Monina Saldevea with accused-appellant Saldevea. Accused-appellant Perayra did not leave their house except to buy cigarettes in the afternoon of September 25, 1994. The following day, at 6:00 in the morning, accused-appellant Perayra reported to the police detachment after he learned that the authorities wanted to ask him questions. At the detachment, he was surprised to learn that be was one of the suspects in the rape-slaying of Helen. Accused-appellants were all brought to the municipal hall in Dumarao, Capiz where they were detained.[28] Lagud was called again to the witness stand by the prosecution to rebut the testimony of Julia Barrientos, witness for the defense. Lagud admitted that he knows Barrientos but denied seeing her on September 23, 1994. According to Lagud, Barrientos claim that she saw him selling amakan on that date is not true because he had already stopped said business in 1992. [29] On November 23, 1996, after due trial, a judgment was rendered by the trial court finding accused-appellants guilty beyond reasonable doubt of the crime of rape with homicide. The trial court imposed upon them the supreme penalty of death. The dispositive portion of the trial courts decision reads: WHEREFORE, finding accused ANTONIO PLANA, EDGARDO PERAYRA, RENE SALDEVEA and RICHARD BANDAY guilty beyond reasonable doubt of the complex crime of Rape with Homicide as defined and punished under Art. 335 of the Revised Penal Code, as amended by Rep. Act No. 7659, judgment is hereby rendered sentencing them to suffer the supreme penalty of DEATH and, likewise, ordering them to pay jointly and severally the heirs of the victim, Helen Perote, twenty five thousand pesos (P25,000.00) as actual damages and fifty thousand pesos (P50,000.00) as civil liability. SO ORDERED.[30] In their appeal brief, accused-appellants assail their conviction alleging that the trial court committed the following errors: a. The trial court erred in not appreciating the defense of alibi/denial put up by the appellants they had nothing to do with the commission of the crime as their testimonies and their witnesses, individually and collectively taken together, showed with clarity and beyond doubt they were not at the scene of the crime and did not commit the offenses charged. b. The trial court erred in not censuring the actuation of the police authorities in detaining appellants without benefit of Court filed information nor judicial order of detention as well as violation of their constitutional rights during their so-called custodial invitation and interrogation. c. The trial court erred in not appreciating the inconsistencies and inherent weaknesses/improbabilities of the testimonies of prosecutions witness which showed tons of doubt of appellants guilt entitling them to acquittal. [31] Accused-appellants vigorously deny that they committed the rape and killing of Helen. They maintain that their testimonies, taken together with that of the other defense witnesses, show that they were not at the scene of the crime. In other words, they fault the trial court for not giving credence to their defense of alibi. Corollarily, they point out the alleged inconsistencies and improbabilities in the testimonies of the witnesses for the prosecution. Accused-appellants likewise denounce as violative of their constitutional rights their detention without, at the time, a judicial order or an information filed in court. After a careful review of the evidence on record, the Court is constrained to affirm the judgment of conviction of accusedappellants. The first and last issues raised by accused-appellants shall be addressed jointly as they both involve the assessment of the witnesses credibility. It is well-entrenched in this jurisdiction that findings of the trial court on the credibility of witnesses and their testimonies are entitled to the highest respect and will not be disturbed on appeal in absence of any clear showing that the trial court

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overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which would have affected the result of the case. The trial court is in a better position to decide the question of credibility, having seen and heard the witnesses themselves and observed their behavior and manner of testifying. [32] In this case, the trial court correctly gave credence to the positive identification of accused-appellants as the assailants of Helen by Felix Lagud. His testimony was straightforward, direct and consistent: PUBLIC PROSECUTOR: Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Mr. Lagud, where were you at about 10:30 oclock in the morning on September 23, 1994? I was walking at the feeder road of barangay Cobe, Dumarao, Capiz. Where were you headed to? Going home to Poblacion Ilawod. And this Poblacion Ilawod is also of Dumarao, Capiz? Yes, sir. Where have you been? I came from Alipasyawan, Dumarao, Capiz, visiting my farm. This Alipasyawan is also of Dumarao, Capiz? Yes, sir. While walking in barangay road of Barangay Cobe, Dumarao, Capiz, was there anything unusual that attracted or called your attention? Yes, mam. What was that unusual incident that called your attention? I saw that as if there were wrestling. On which part of the barangay road where you were walking that you saw there seems to be wrestling persons? On my left side. Now, how far were you from the very spot where you saw there seems to be wrestling persons? 50 meters. About 50 meters. Now, when you saw this what did you do? I came near so that I could see it clearly. How near did you approached that spot, Mr. Witness? About twenty (20) meters. Now upon reaching that distance from the spot where you said you saw persons who seems to be wrestling what did you see? I saw three (3) persons holding the one who is being raped and one person was on the top of the girl. Now, did you recognized these three (3) persons whom you saw were holding the victim? Yes, sir. Who were these three (3) persons holding still the victim? Antonio Plana, Edgardo Perayra and Rene Saldevea.

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Q Now, before that incident that you saw have you already known these three (3) persons you have identified who have been holding the girl, one of them was actually raping -

ATTY. BARRERA: I object to the term actual raping. There is still no proof that there was any rape, was holding the girl only. He has not yet given testimony involving the rape. COURT: Witness may answer. A These three (3) persons I have already known them because we have gone together in a drinking session and I also passed by Cobe.

PUBLIC PROSECUTOR: Q Now, if these (3) persons are inside the courtroom, will you please go down from the witness stand and tap the shoulder of these three (3)?

ATTY. BARRERA: I request as he taps each of them he should mention the name. A (Witness came down from the witness stand and tapped the shoulder of Antonio Plana, next as Rene Saldevea and another person he named as Edgardo Perayra.

PUBLIC PROSECUTOR CONTINUING: Q A Q A Q A Q A Q A Now, what else did you see? The first, at first I saw the three persons holding the victim and the other one is on top of the victim. Later, I saw that the one who is on top of the girl raised his hand and stabbed the victim. Now, what happened after you saw that the one on top of the victim stabbed the victim? Because I was afraid, I ran away because they might also see me. Now, where did you proceed after you got frightened of what you saw? Going home to Poblacion Ilawod, Dumarao, Capiz. Were you able to immediately go home? I was not able to go home because when I passed by the house of Porferio Haguisan, he saw me and he invited me because it was their Milagrosa. How long did you stay in the house of your Compare Porferio? I stayed there long. I went home already 2:00 oclock. xxx PUBLIC PROSECUTOR: Q A Now, what did you do when you heard that a person was found there a dead person was found in that very place where you saw the accused on September 23, 1994, holding and raping I went to the Municipal Hall because I also heard that the accused were apprehended and I went there and I saw and recognized them.

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You mean to tell us Mr. Witness that on September 26, 1994, when the dead body was found in the feeder road of Cobe, you went to the Municipal Hall because the accused was arrested, is that what you mean?

14

COURT:

Jonna Maye Canindo

A Yes, sir. PUBLIC PROSECUTOR: Q A Q A Q A Q A Q A Q A What time have you gone to the Municipal Hall? Noon time. Now, who was the dead person that was found in that spot? Helen Perote. When this victim was still alive, have you any occasion to know her? Yes, I know her. Now, how about the fourth man who was on top of the girl and whom you saw also stabbed the girl on the morning of September 23, 1994, did you recognize him? On that incident I do not know him but when I saw him at the Municipal Hall I know him because they were also together. And did you know who this fourth man was when you went to the Municipal Hall? Yes, sir, Richard Banday. If he is inside the courtroom will you please go down from the witness stand and tap the shoulder of Richard Banday? (Witness went down from the witness stand and tapped the shoulder of a person who, when asked answered his name as Richard Banday).[33]

Lagud remained unwavering and consistent even when he was under the grueling cross-examination by accused-appellants counsel: ATTY. BARRERA: Q A Q A Q A Q A Q At that distance of 50 meters as you said from the place where you saw persons as if wrestling there was no obstruction to your view? There were grasses and trees not so tall. Now, would you agree with me that the place, I withdraw that. The place where you were and the area where you saw persons as if wrestling which is the elevated portion? On the place where I was. So, your portion being elevated you would agree with me that you can see the place where there are persons appearing to be wrestling because it was at the lower portion am I correct? Not so clear because there were grasses and that is why I went near. How were you able to identify the three (3) persons, namely, Plana, Saldevea and Perayra? When I came near that is the time that I recognized them. Now, you said that you came nearer to the place where persons were wrestling and you said you were 20 meters from them but when measured it was actually 12 meters. The question is, why did you approach the place where you saw persons wrestling? I went near so that it would be clear to me and I can recognize and confirm as to what they are doing. You want to tell the Court that it was out of curiosity that you approached the area where you saw persons appearing to be wrestling? Yes, that is what I plan. You were not afraid instead you were curious isn't it?

A Q A Q

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A Q I was afraid that is why when I went near I also crouched. Just answer my question. Were you afraid or you were curious that is why you approached the place where persons appeared to be wrestling.

COURT: Compaero, if you have any correction just make a manifestation, just make it formal, ATTY. BARRERA: I am sorry, your honor. COURT: Proceed. A Just for curiosity sake.

ATTY. BARRERA: Q A Q A Q Now, at a distance of 12 meters you recognized three (3) persons holding the arms and leg of the one lying and another person on top of the woman lying is that it? Yes, sir. And at that distance of 12 meters you identified the three persons as the herein accused, Plana, Perayra, and Saldevea whom you met according to you for three times at the store of Antonio Mendoza, is that correct? Yes, sir. Now, 12 meters distance from the place where you were sitting up to the place where you pointed at is the area where you identified the accused holding and another one on top of the person lying, there was no obstruction from the area from the place where you were to the area where you saw? It was clear because it was near. As a matter of fact the only vegetation you can find in the premises from where you were meters away from the area where you saw what you are telling this Court as green grass? Yes, sir. Short grasses. And you identified only three persons holding not the one lying, you said it was Plana, Perayra and Saldevea, and you do not know the person on top of the person lying, who was covered on top by a man, was he a man or a woman? I think it was a girl because I heard voices like that of a woman. You think it was a girl. At a distance of 12 meters and you said it was clear to your view can you not identify the person lying and covered by one on top as a woman? It is not clear because it was covered by a person on top. Definitely, you told the Court you do not know who was the person on top of the one lying, am I correct at that very moment? Yes, sir.

A Q A Q A Q A Q A

PUBLIC PROSECUTOR: Your honor, the translation is I did not yet know him.

Q A

What part of his body that person who was on top you saw? From his head to his back.

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ATTY. BARRERA:

Jonna Maye Canindo

Q A Q A You did not see his face? No, sir. What was he actually doing when you saw him for the first time? He was on top of the girl.

PUBLIC PROSECUTOR: There is a continuation, your honor, he said naga. A He was on top of the girl and he was

COURT: He was what? You say it? A Q A Q He is forcing that his will penetrate. What was that he wanted to have it penetrated? His organ. Did the Court get you right that you said you saw - you set properly. Make it of record that witness has been uneasy when being cross-examined. Dont make any undesirable you sit properly. Now, did the Court get you right that the man whom you saw at the top of the person lying was turning his back towards you? I saw his head and back and he was not on the back view but side view.

PUBLIC PROSECUTOR: May I interpret. And his back was not actually against me but he was somewhat side view position upon me. COURT: Q A Q A Q A Q A Q A Q A Did he have his clothes on when he was on top of the person lying? No, sir. You mean to tell us that he was naked throughout? His pants was lowered down. Was he naked up? Yes, sir. At that distance can you see his organ? I cannot see but as if he is trying to force because his back was also moving. So actually you did not see his organ that he was trying to have it penetrated? No, sir. Did you see the organ of that woman lying down? No, sir.

ATTY. BARRERA: Q A Now, so, did the man on top of that woman person lying whom you said was a girl had her pants you said lowered up to where? Up to about his knees.

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Q A Q A Q A And the woman at the time you said the man was trying to force his organ penetrate that of a person lying was that person lying struggling or what was that person lying doing? She was struggling and she was held by three persons. Alright, tell us, you identified Antonio Plana what was he holding at that moment you said you saw? The right foot of the girl. How about Perayra? On the left foot.

PUBLIC PROSECUTOR: I think not foot, it is the leg (witness indicating a little above the ankle). A Left lower part of the leg.

ATTY. BARRERA: Q A Q A Q A Q A Q A Q And Rene Saldevea, what part was he holding, if any according to you? Two (2) hands (witness raising his two hands above his head closed together). And at that position as you described none of the four (4) persons including the three you identified covered the mouth of the person lying? I cannot tell because I cannot see. You mean at a distance of 12 meters you cannot see if the mouth of the person lying was covered or not? I cannot see because she was covered by the person lying on top of her. You have not heard any sound or voice emanating from the person lying? I heard voices but it was not clear. Now, that voices you heard what were the nature of those voices? As if pleading. You wanted to tell us that the voice you heard was the crying or moaning or

PUBLIC PROSECUTOR: Your honor, the witness has already described the nature of the voice as if pleading. ATTY. BARRERA: I am trying to clarify what was it moaning, crying or saying something vocal. A Q A Q A Q Crying. You did not hear any word being uttered? The words was (sic) not clear. Now, the person lying (who is) whose pleading you heard was she moving or was she moving her body or any part of her body? She was moving but she was held by three persons.

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Now, you said that the person on top of that woman lying has his pants lowered up to his knee, on the other hand, the person lying did you see if she was totally naked or she had something on or you have not seen it?

Jonna Maye Canindo

A Q A Q A Q On his top was naked but her pants was lowered on the left leg. The pants was already taken on the right leg, the pants was not taken off. So that the person lying was not totally naked at the time you saw it? As to her body she was naked but only the pants on the right side was not taken off. So at the moment because the upper part of the body had no clothes except portion of the right leg that still retains the pants you would know that it was a woman lying of the ground is that it? Yes, sir. And at that point of time while the three accused, Plana, Perayra, and Saldevea were holding the hands of the girl and the other one on top of her, can you tell this Court if these four (4) persons while doing those things as you described were conversing or uttered any word? I heard voices but it was not clear. You mean you heard voices being made by persons you saw? Yes, sir. And you would like to tell the Court that at a distance of 12 meters from where you were you never heard audibly the words coming from their voices? I cannot understand because their voices were low. Were they laughing? I have not noticed. So, you did not notice if they were laughing? No, sir. You did not hear if they were shouting at one another? No, sir. You did not hear any of them saying go ahead, we follow also? No, sir. Now, and later you said you saw a person on top of that girl pulled a knife and stabbed that person lying whom you said was a girl is that it? Yes, sir. Considering that that person on top of that victim had dress over and had his pants on top of his knee how did he stabbed that victim whom you said was a woman? I noticed that but I do not know where he get (sic) the knife but I noticed that he just raised his hand. Not one of the three (3) whom you identified gave him the knife except that you only saw that person on top of that woman all of a sudden having a knife and stabbing is that it? Yes, sir. Now, is that person on top of the woman stabbing that woman did you hear any or uttered by that man stabbing that woman? I did not notice the words he uttered.

A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A

PUBLIC PROSECUTOR: Your honor, there is a continuation on the answer, I did not notice if he uttered any word because immediately I ran away.

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ATTY. BARRERA: Anyway, let it stay in the record. COURT: Proceed. ATTY. BARRERA: Q A Q A Q A By the way, how many times (did) you saw that man on top of the woman stabbed that woman? That was the first time when he raised his hand and stabbed her then I ran away. And so, you did not notice him how many times that person stabbed the woman? No, sir. At the time she was stabbed did you hear any voice being uttered? I heard as if there was a sound like a moan then I ran away. [34]

The testimony of Lagud positively identifying accused-appellants as the perpetrators of the dastardly crime was corroborated in its material points by the testimonies of the other prosecution witnesses. The prosecution had sufficiently established that accusedappellants were together and were drinking liquor at the early morning of September 23, 1994; Lagud saw them along the feeder road in Barangay Cobe raping a girl and later one of them stabbed her; Bustamante saw them boisterously laughing near the fishpond where the body of Helen was found; Rafael confirmed that Helen took that route on the way to their sisters house for the milagrosa; Rafael met accused-appellants, who were all drunk, along the feeder road while she was on her way to her sisters house and; when it was found on September 26, 1994, Helens body had already been lifeless for more than seventy-two hours. In light of the positive identification and the other strong corroborative evidence, the trial court properly gave scant consideration to accused-appellants defense of denial and alibi. Alibi is concededly one of the weakest defenses in criminal cases. It cannot prevail over, and is worthless in the face of, positive identification by credible witnesses that the accused perpetrated the crime.[35] Aside from accused-appellants who expectedly gave self-serving testimonies, the defense presented other witnesses, mainly relatives of accused-appellants, to establish that they were not at the scene of the crime at the time of its commission. Unfortunately, alibi becomes less plausible when it is corroborated by friends and relatives who may then not be impartial witnesses.[36] On the other hand, the defense failed to impute any ill motive on the part of the prosecution witnesses to testify falsely against accused-appellants. Moreover, accused-appellants' defense of alibi cannot be given credence considering that they themselves admit their proximity to the scene of the crime at the time that it occurred. Accused-appellants Plana and Banday claimed that they were at the time at the house of accused-appellant Planas relatives in Barangay Cobe. Accused-appellants Saldevea and Perayra insisted that they were then in the house of Monina Saldevea in Barangay Cobe. It must be noted that the rape and killing of Helen was committed in the feeder road also in Barangay Cobe. For alibi to prosper, the following must be established: (a) the presence of accused-appellant in another place at the time of the commission of the offense and; (b) physical impossibility for him to be at the scene of the crime.[37]Accused-appellants miserably failed to satisfy these requisites. Considering that they admit that they were all in Barangay Cobe, where Helen was raped and subsequently killed, it cannot be said that it was physically impossible for them to have committed the crime. Accused-appellants tried to discredit Lagud by making much of the fact that he did not immediately disclose what he witnessed to the authorities. This contention hardly destroys the testimony of Lagud and his credibility as a witness. As Lagud explained on cross-examination, he was afraid that accused-appellants would harm him had they known that he saw them commit the crime.[38] Besides, as consistently held by this Court, there is no standard form of the human behavioral response to a startling or frightful experience and delay in bringing up the matter to the authorities do not destroy the veracity and credibility of the testimony offered. The Court takes judicial notice of some peoples reluctance to be involved in criminal trials. Failure to volunteer what one knows to law enforcement officials does not necessarily impair a witness credibility. [39] In obvious attempt to evade the capital penalty of death, accused-appellants opine that granting arguendo that they are guilty of any crime, the crime is only murder because the rape of Helen allegedly had not been sufficiently established. This argument is untenable. The evidence on record indubitably establish that, while the other accused-appellants forcibly held Helen, accused-

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appellant Banday had carnal knowledge of her. Thereafter, they killed her. Lagud categorically testified on this fact.[40] The findings of the medico-legal corroborate Laguds testimony, thus: Q In entry No. 14, vagina, introitus can easily insert 2 fingers/Hymen with lacerations 3 and 9 oclock (old laceration) and on the state of decomposition. In that state of decomposition of the victim how were you able to determine the laceration of the hymen of the said victim? Actually, what I did I asked help from the owner of the Funeral Homes to spread the thigh of the victim so that I can easily see the inside of the vagina. Upon opening, I can easily insert my two fingers because of that I tried to spread the vaginal canal I saw three (3) lacerations, I have also seen blood clotting in that area but one reason that I can easily insert my two (2) fingers is because the victim was already in the state of decomposition. xxx Q A Doctor, you said it could have been caused by the laceration that you found which is 6x9, in what or what could have caused the vaginal laceration? In the vagina, the laceration in the hymen is caused only by sexual intercourse. If the female is a virgin, it could have been caused by sexual intercourse.[41]

In fine, accused-appellants guilt for the crime of rape with homicide had been proved beyond reasonable doubt in this case. Further, the trial court rightly appreciated the existence of conspiracy among the accused-appellants. Their individual acts, taken as a whole, revealed that they shared a common design to rape and kill Helen. They acted in unison and cooperation to achieve the same unlawful objective.[42] The principle that the act of one is the act of allis applicable to accused-appellants in this case. With respect to the second issue raised by accused-appellants, i.e., they were detained without judicial order and prior to the filing of the information, suffice it to say, that they already waived their right to question the irregularity, if any, in their arrest.[43] Accused-appellants respectively entered a plea of not guilty at their arraignment.[44] By so pleading, they submitted to the jurisdiction of the trial court, thereby curing any defect in their arrest, for the legality of an arrest affects only the jurisdiction of the court over their persons.[45] Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, reads: Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. 2. 3. By using force and intimidation; x x x; x x x. xxx When by reason or on occasion of the rape, a homicide is committed, the penalty shall be death. xxx Accused-appellants guilt for the crime of rape with homicide having been established beyond reasonable doubt, the imposition of the penalty of death upon them is warranted. Four members of the Court maintain their position that Republic Act No. 7659, insofar as it prescribes the death penalty, is unconstitutional; nevertheless they submit to the ruling of the Court, by majority vote, that the law is constitutional and the death penalty should be accordingly imposed. However, there is need to modify the damages awarded to the heirs of Helen by the trial court. In addition to the sum of P25,000.00 as actual damages, the trial court awarded to the heirs of Helen the sum of P50,000.00 as civil indemnity. This amount should be increased in consonance with prevailing jurisprudence [46]fixing the civil indemnity in cases of rape with homicide at P100,000.00. The Court, likewise, finds it proper to award the sum of P50,000.00 as moral damages. The award of moral damages

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may be made to the heirs of the victim in a criminal proceeding without need of proof. The fact that they suffered the trauma of mental or physical and psychological sufferings which constitute the basis for moral damages under the Civil Code are too obvious to still require recital thereof at trial.[47] WHEREFORE, the decision of the Regional Trial Court, Branch 15, Roxas City finding accused-appellants Antonio Plana, Edgardo Perayra, Rene Saldevea and Richard Banday, guilty of Rape with Homicide under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, and imposing upon them the supreme penalty of Death is AFFIRMED with the MODIFICATION that said accused-appellants are hereby ordered, jointly and severally, to pay the heirs of Helen Perote the amounts of P100,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as actual damages. Let the records of this case be forwarded to the Office of the President upon finality of this decision for possible exercise of executive clemency in accordance with Article 83 of the Revised Penal Code, as amended by Section 25of Republic Act No. 7659. SO ORDERED. People vs. Plana Facts: On 23 September 1994, at around 10:30 a.m., Felix Lagud was walking at the feeder road in Barangay Cobe, Dumarao, Capiz. He just came from his farm in Alipasyawan, Dumarao and was on his way home to Poblacion Ilawod. A movement at about 50 meters to his left side caught his attention. He saw 3 persons who seemed to be wrestling. He came nearer so he would be able to see them more clearly. From about a distance of 20 meters, he saw the 3 men holding a girl while another man was on top of her. The girl was being raped and she was later stabbed. Frightened that the assailants would see him, Lagud ran away. He intended to go straight home but when he passed by the house of Porferio Haguisan, the latter invited him for a milagrosa. Lagud obliged and stayed at the house of his kumpare until 2:00 a.m. On 26 September 1994, the victim, Helen Perote, was found dead by her brother and the police in Brgy. Cobe, Dumarao, Capiz. The body was in prone position and was already in an advance state of decomposition. Lagud identified Antonio Plana (@ Catong), Edgardo Perayra and Rene Saldevea as the three men who were holding the girl while their fourth companion was raping her. At the time of the incident, he did not yet recognize the fourth man who was on top of the girl. However, when he saw Plana, et. al. at the municipal hall where they were brought when they were arrested on 26 September 1994, he identified the fourth man to be Richard Banday. On the other hand, per the post mortem examination conducted by Dr. Ricardo Betita, Rural Health Officer of Cuartero, Capiz, the victim sustained the following injuries: (1) Clean edges stab wound 25 cm left anterior chest; (2) Avulsion with irregular edges wound 812 cm middle chest area; (3) Avulsion of the nose and upper lip portion/area; (4) Clean edges wound or stab wound 25 cm epigastric area; (5) Clean edges stab wound 25 cm left hypogastric area; (6) Clean edges stab wound 25 cm hypogastric area; (7) Clean edges stab wound 25 cm left posterior upper back; (8) Clean edges stab wound 25 cm mid upper portion of the back; (9) Clean edges stab wound 25 cm left posterior back level of 8th ribs; (10) Clean edges stab wound 25 cm left back level of left lumbar area; (11) Clean edges wound 25 cm middle low back area; (12) Clean edges wound 25 cm right low back area at level of lumbar area; (13) Clean edges wound 25 cm left gluteal area near the anus; (14) Vagina: Introitus can easily insert 2 fingers/Hymen with laceration 3 and 9 oclock (old laceration) and on the state of decomposition; and that the most probable cause of death was massive hemorrhage or blood loss secondary to multiple stab wounds. According to Dr. Betita, the victim died more than 72 hours already before the police authorities found her body. An information was filed against Plana, et. al. for the crime of rape with homicide before the Regional Trial Court, Branch 15 of Roxas City (Criminal Case 4659). At their arraignment, Plana, et. al. pleaded not guilty. On 23 November 1996, after due trial, a judgment was rendered by the trial court finding Plana, et. al. guilty beyond reasonable doubt of the crime of rape with homicide. The trial court imposed upon them the supreme penalty of death, and ordered them to pay jointly and severally the heirs of the victim, Helen Perote, P25,000.00 as actual damages and P50,000.00 as civil liability. Hence, the automatic review. ISSUE: ????

EN BANC

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[G.R. No. 137457. November 21, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROSAURO SIA y DICHOSO, JOHNNY BALALIO y DEZA, JIMMY PONCE y TOL and JOHN DOE @ PEDRO MUOZ (at large), accused-appellants. DECISION YNARES-SANTIAGO, J.: Christian Bermudez was beaten to death and the taxicab he was driving was taken by the assailants. His lifeless body, wrapped in a carton box, was recovered several days later in a fishpond in Meycauayan, Bulacan. For the felonies, the above-named accused were indicted for violation of R.A. 6539, otherwise known as the Anti-Carnapping Law, and Murder in two (2) separate Informations, to wit: Criminal Case No. Q-95-63962 for Violation of the Anti-Carnapping Law: That on or about August 23, 1995, in the City of Quezon, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, herein accused, conspiring, confederating and mutually helping one another did then and there willfully, unlawfully and feloniously take, steal, and carry away one (1) motor vehicle described as Toyota Tamaraw FX; Motor No. 2C-2983302; Chassis No. CF50-0014375; Plate No. NYT-243, owned by BIENVENIDO CRUZ, killing the driver Christian Bermudez in the process, to the damage and prejudice of the registered owner thereof and the heirs of Christian Bermudez. CONTRARY TO LAW.[1] Criminal Case No. Q-95-63963 for Murder: That on or about 23 August 1995, in the City of Quezon, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill qualified by treachery, evident premeditation, taking advantage of superior strength, employing means to weaken the defense or of means of persons to insure or afford impunity, conspiring, confederating and mutually helping one another, did then and there willfully, unlawfully and feloniously attack, assault and use violence upon the person of CHRISTIAN BERMUDEZ by beating him on the head and other parts of the body, thereby causing his death. CONTRARY TO LAW.[2] At the arraignment, only Johnny Balalio y Deza and Jimmy Ponce y Tol appeared and pleaded Not Guilty. [3] The third accused, Rosauro Sia y Dichoso, escaped from police custody while on the way to the hospital for treatment.[4] As a consequence, the two (2) cases were subsequently consolidated and jointly tried against accused Johnny Balalio and Jimmy Ponce only. After trial, the court a quo rendered judgment against both accused imposing upon them the supreme penalty of Death, thus: WHEREFORE, premises considered, judgment is hereby rendered finding the accused Johnny Balalio and Jimmy Ponce GUILTY beyond reasonable doubt as principals by conspiracy of violation of R.A. No. 6539, as amended and hereby sentences them to suffer the penalty of DEATH. Accused are likewise adjudged jointly and severally [liable] to pay to Agripina Bermudez, the mother of the deceased Christian Bermudez the sums of: a. P50,000.00 as compensatory damages for the death of Christian Bermudez; b. P200,000.00 as burial and other expenses incurred in connection with the death of Christian; and c. P3,307,199.60 (2/3 x [80-27] x 300 per day x 26 days (excluding Sundays) x 12 months) representing the loss of earning capacity of Christian Bermudez as taxi driver.

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Costs against accused. The cases of accused Rosauro Sia who escaped from custody before he was arraigned and as against Peter Doe who was never apprehended and whose identity has never been known are hereby ordered ARCHIVED, subject to activation when they are arrested and brought before the bar of justice. SO ORDERED.[5] On automatic review before this Court, accused-appellants raised the lone assigned error that: THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANTS FOR VIOLATION OF RA 6539 (ANTICARNAPPING LAW) SOLELY ON THE BASIS OF THE EXTRA-JUDICIAL CONFESSIONS OF ACCUSED ROSAURO SIA AND JIMMY PONCE (EXHIBITS C AND D, RESPECTIVELY) WHICH ARE INADMISSIBLE IN EVIDENCE. [6] The facts as summed up by the trial court are as follows: The vehicle claimed as carnapped is registered in the name of complainant Bienvenido C. Cruz of No. 1125 Primero de Mayo Street, Tondo, Manila[7] and operated as a taxi being Unit 2 of KIRBEE TAXI and bearing the following description: Make/Type Motor Number Chassis No. Plate No. Color : : : : : Toyota Tamaraw FX Wagon 2-C 2983302 CF 50-0014375 NYT-243 Maroon

The said taxi was taken from the garage and driven by its regular driver, Christian Bermudez, the alleged murder victim at about 6:00 a.m. on August 23, 1995. The taxi was last seen at the vicinity of the Pegasus Night Club in Quezon City at about 10:30 p.m. on the said date with an unidentified passenger who surfaced later as the accused Rosauro Sia, whose true name is allegedly Antonio Labrador (Mang Tony) and who resides at San Francisco Del Monte. Accused Rosauro Sia appears to have gypped driver Christian Bermudez to service him the following day (August 24, 1995) in the morning and to be paid P150.00 per hour which was apparently accepted because Rosauro gave instructions to accused Johnny Balalio and Jimmy Ponce to wait for him (Christian) that following morning. When Christian returned to Sias residence in San Francisco Del Monte that morning, he was told to come back in the afternoon because that was the instruction given him by accused Rosauro Sia. When Christian returned in the afternoon in the Sia residence, he was asked to get inside. As soon as he alighted from the Tamaraw FX taxi he was driving, his hands were tied by Johnny Balalio and was handed to a certain Pedro, the accused Peter Doe who has not been arrested and who told Johnny Balalio and Johnny (sic) Ponce Ako nang bahala dito. Christian was taken to accused Rosauro and shortly afterwards, the latter was seen lugging with him a big carton box from which blood was dripping. Accused Jimmy Ponce saw Rosauro hand the carton-wrapped lifeless body of Christian inside the carnapped FX taxi. Before leaving with the lifeless body of Christian loaded in the taxi, accused Sia gave P3,000.00 each to Jimmy Ponce, Johnny Balalio and Pedro and admonished them not to say anything about what happened. The ring taken from Christian[8] was given to accused Jimmy Ponce by Rosauro Sia. On August 26, 1995, the lifeless body of Christian Bermudez was found and retrieved from a fishpond in Meycauayan, Bulacan. This fact was broadcast over the radio and, after hearing the same, Agripina Bermudez went to see the lifeless body retrieved from the fishpond and confirmed it to be that of Christian, whom she claims is her eldest son who was earning about P650.00 a day as a taxi driver. Photographs were taken on the carton-wrapped body of Christian including one position which shows the latters body. [9]

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Dr. Benito Caballero, Medico Legal Officer of Bulacan, conducted a postmortem examination of the deceased body of Christian and found that the latters death was due to shock caused by massive external and intracranial hemorrhage on account of multiple lacerations on the head and fracture of the skull due to use of hard object, possibly iron, for which he issued certificates of death and postmortem death certificate.[10] In the meantime, Bienvenido Cruz, the owner of the carnapped vehicle, reported to the police authorities in Camp Crame the loss of his taxi.[11] On September 21, 1995, at about 10:30 p.m., the carnapped taxi was intercepted being driven by accused Rosauro Sia, who was immediately placed in custody of the anti-carnapping authorities. While in custody, Rosauro Sia managed to escape but he was recaptured on November 15, 1995 by the manhunt team created for that purpose. As accused Rosauro Sia claimed that he bought the hot car from his co-accused Johnny Balalio and Jimmy Ponce, the latter were picked up from their residence in Baseco, Isla Tawid, Port Area, Tondo, Manila and investigated. Sworn Statement of the accused Rosauro Sia and Jimmy Ponce were taken[12]narrating their respective participations such as Sias instruction to Jimmy to guard his (Sias) gate to deter passersby from snooping around and describing what transpired inside Sias residence at San Francisco Del Monte when Christian was tied and killed. The Sworn Statement of Bienvenido Cruz, owner of the missing vehicle, was likewise taken. On the basis of the sworn statements of accused Rosauro Sia and Jimmy Ponce, Dr. Benito Caballero, Provincial Health Officer of Bulacan, together with the Certificate of Registration of the FX Taxi and the Death and Postmortem Certificates mentioned heretofore, the Special Operations Unit, Traffic Management Command, PNP, Camp Crame, referred the matter to the authorities of the Department of Justice who, after finding probable cause in the preliminary investigation, filed these cases of Violation of R.A. 6539, as amended, and of Murder against the above-named accused which were consolidated together in this Branch for joint trial. [13] In their lone assigned error, accused-appellants contend in sum that the extra-judicial confessions of accused Rosauro Sia and Johnny Balalio, which the trial court heavily relied upon, are inadmissible in evidence since they were executed in violation of their right to counsel. Specifically, accused-appellants argue that the said extra-judicial statements are inadmissible because they were obtained without compliance with the requirements of the law for their admissibility. [14] The Solicitor General agrees, stating that during the custodial investigation, Ponce and Sia were not assisted by counsel as required by the Constitution. The trial courts finding that Sia and Ponce were assisted by Prosecutor Pormento when they executed their extrajudicial confessions did not meet the requirement of the law. The Solicitor General further contends that, during his testimony, Ponce vehemently denied having voluntarily executed his alleged statement; rather, he maintained that he was coerced to sign the same and that he did not even know its contents. Extrajudicial confessions must conform to the requirements of the Constitution. [15] Indeed, a suspects confession, whether verbal or non-verbal when taken without the assistance of counsel without a valid waiver of such assistance regardless of the absence of such coercion or the fact that it had been voluntarily given, [16] is inadmissible in evidence,[17] even if appellants confession were gospel truth.[18] Be that as it may, the inadmissibility of the extra-judicial statements of Sia and Ponce will not absolve accused-appellants from criminal liability because, as pointed out by the Solicitor General, there still is independent evidence to establish their authorship of the victims killing on the occasion of the carnapping. The Solicitor General asserts that while there was no prosecution witness who positively identified accused-appellants as particeps criminis, their culpability was nonetheless proven through circumstantial evidence. We agree. Direct evidence of the commission of the crime is not the only matrix wherefrom a court may draw its conclusions and findings of guilt.[19] The rules on evidence[20]and case law sustain the conviction of the accused through circumstantial evidence when the following requisites concur: (1) there must be more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all circumstances is such as to produce a conviction beyond reasonable doubt of the guilt of the accused.[21] A circumspect scrutiny of the testimonies of the witnesses of both prosecution and defense shows adequate evidentiary bases to establish the aforementioned circumstances. First, when the police apprehended accused Rosauro Sia while he was in possession of the carnapped vehicle, he immediately pointed to accused-appellants as his accomplices in taking away the victims vehicle. [22] Notably, accused-appellants claimed to have met Sia for the first time on August 24, 1995, when Sia supposedly passed by them looking for a certain person. They saw Sia for the

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second time on November 15, 1995, when Sia and some policemen came to their place to arrest them. If accused-appellants did not actually participate in the perpetration of the crime, it certainly defies reason why Sia would implicate them in so serious an offense when they were practically strangers to him. In this regard, it must be borne in mind that the fact that a witness may have been a coconspirator in the commission of the offense is not in itself sufficient to dilute the credibility of or, much less, be a ground to disregard altogether his testimony.[23] Indeed: By way of exception, the testimony of a co-conspirator may, even if uncorroborated, be sufficient as when it is shown to be sincere in itself, because given unhesitatingly and in a straightforward manner, and is full of details which by their nature could not have been the result of deliberate afterthought.[24] Second, defense witness Porferio Fernando testified that accused-appellants were with Rosauro Sia from August 25-28, 1995.[25] When accused-appellants came back on August 28, 1995, they informed him that they were to guard a bodega owned by Sia, which contained a carnapped vehicle.[26] This testimony of Fernando confirms the fact that accused-appellants were in the company of Rosauro Sia during that critical period when the crime was perpetrated. Third, upon his arrest, accused-appellant Jimmy Ponce voluntarily surrendered to the police authorities a ring, [27] admittedly belonging to the victim.[28] It is a well-settled rule that when a person is found in possession of a thing taken in the doing of a recent wrongful act, he is presumed to be the taker and doer of the whole act.[29] Thus, when property stolen is found in the possession of a person who is unable to give a satisfactory explanation of his possession thereof, he may be deemed to have committed the crime of theft of said property.[30] More apropos to the peculiar facts prevailing herein is the case of People v. Prado,[31] where we stated: In the absence of an explanation of how one has come into the possession of stolen effects belonging to a person wounded and treacherously killed, he must necessarily be considered the author of the aggression and death of the said person and of the robbery committed on him. The application of this presumption validly applies to a case of carnapping for, indeed, the concept of unlawful taking in theft, robbery and carnapping is the same and, had it not been for the enactment of the Anti-Carnapping Act, the unlawful taking of the motor vehicle would certainly fall within the purview of either theft or robbery. [32] All told, the Court finds no reason to reverse the ruling of the court a quo insofar as the crimes were committed. What remains to be determined is the propriety of the penalty imposed on accused-appellants. In connection with the penalty imposed, the Solicitor General invites the Courts attention to the erroneous imposition by the trial court of death on the accused-appellants. He points out that while the sentence was meted upon a finding that the aggravating circumstances of treachery, abuse of superior strength and evident premeditation attended the commission of the crime, these were not duly established in the case at bar. The observation is well-taken. Qualifying and aggravating circumstances which are taken into consideration for the purpose of increasing the degree of the penalty imposed must be proven with equal certainty as the commission of the act charged as criminal offense.[33] With regard to alevosia, there is treachery when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. [34] Treachery is considered present when: (1) there is employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2) the means or method of execution was deliberately or consciously adopted by the culprit. [35] For treachery to be appreciated, it must be present and seen by the witness right at the inception of the attack.[36] Where no particulars are known as to how the killing began, its perpetration with treachery cannot merely be supposed.[37] In this case, there was neither a description of how the attack was commenced whether it was sudden, unexpected and whether the victim was caught totally unaware nor has there been a showing that the method of execution in the commission of the crime was consciously or deliberately adopted by the malefactors. To reiterate, alevosia cannot be established where no particulars are known regarding the manner in which the aggression was carried out or how it developed. [38] It must be based on positive or conclusive proof, not mere suppositions or speculations,[39] and must be proved as clearly and as convincingly as the killing itself.[40]

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Similarly, the elements of evident premeditation must be established with equal certainty as the criminal act itself before it can be appreciated as a qualifying circumstance.[41] These elements are: (1) the time when the accused determined to commit the crime; (2) an overt act manifestly indicating that they clung to their determination to commit the crime; and (3) a sufficient lapse of time between the decision to commit the crime and the execution thereof to allow the accused to reflect upon the consequences of their act.[42] The essence of evident premeditation is that the execution of the criminal act is preceded by cool thought and reflection upon the resolution to carry out the criminal intent within a space of time sufficient to arrive at a calm judgment. [43] In this case, there is no showing that the killing of Christian Bermudez was the product of cool thought and reflection. There is absolutely no showing how and when the plan was hatched or how long a time had elapsed before the crime was carried out. On the contrary, what appears very much evident is that he was killed on the occasion of the carnapping itself. Without such evidence, mere presumptions and inferences, no matter how logical and probable, will not suffice to warrant the appreciation of this qualifying circumstance of evident premeditation.[44] Abuse of superior strength cannot likewise be appreciated. In People v. Flores,[45] this Court pointed out that this aggravating circumstance necessitates the showing of the relative disparity in physical characteristics, usually translating into the age, gender, the physical size and the strength of the aggressor and the victim. There is no proof that accused-appellant utilized any notorious inequality to his advantage. In other words, mere superiority in number is not enough to constitute superior strength. [46] To be appreciated as a qualifying circumstance, what should be considered is not that there were three or more assailants of one victim, but whether the aggressors purposely took advantage of their combined strength in order to consummate the offense. [47] In this case, the prosecution did not present any direct proof that there was a deliberate intent on the part of accused-appellants to take advantage of the obvious inequality of force between them and the victim. In the absence of any qualifying or aggravating circumstances which would merit the imposition of death, the proper imposable penalty should be reclusion perpetua, pursuant to Section 14 of R.A. No. 6539, viz: Penalty for Carnapping. Any person who is found guilty of carnapping, as the term is defined in Section Two of this Act, shall, irrespective of the value of the motor vehicle taken, be punished by imprisonment of not less than fourteen years and eight months and not more than seventeen years and four months, when the carnapping is committed without violence or intimidation of persons, or force upon things; and by imprisonment for not less than seventeen years and four months and not more than thirty years, when the carnapping is committed by means of violence against or intimidation of any person, or force upon things; and the penalty of reclusion perpetua to death shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed or raped in the course of the commission of the carnapping or on the occasion thereof. (Underscoring ours) On the other hand, Article 63 (2) of the Revised Penal Code states: Rules for the application of indivisible penalties. In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed. In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof: xxx xxx xxx

2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied. Anent the civil indemnity award, this Court finds the amount of P50,000.00 as death indemnity proper, following prevailing jurisprudence,[48] and in line with controlling policy.[49] The award of civil indemnity may be granted without any need of proof other than the death of the victim.[50] Though not awarded by the trial court, the victims heirs are likewise entitled to moral damages, pegged at P50,000.00 by controlling case law,[51] taking into consideration the pain and anguish of the victims family[52]brought about by his death.[53] However, the award of P200,000.00 as burial and other expenses incurred in connection with the death of the victim must be deleted. The records are bereft of any receipt or voucher to justify the trial courts award of burial and other expenses incurred in

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connection with the victims death. The rule is that every pecuniary loss must be established by credible evidence before it may be awarded.[54] Credence can be given only to claims which are duly supported by receipts or other credible evidence.[55] The trial court was correct in awarding damages for loss of earning capacity despite the non-availability of documentary evidence.[56] Damages representing net earning capacity have been awarded by the Court based on testimony in several cases.[57] However, the amount of the trial courts award needs to be recomputed and modified accordingly. In determining the amount of lost income, the following must be taken into account: (1) the number of years for which the victim would otherwise have lived; and (2) the rate of the loss sustained by the heirs of the deceased. The second variable is computed by multiplying the life expectancy by the net earnings of the deceased, meaning total earnings less expenses necessary in the creation of such earnings or income less living and other incidental expenses. Considering that there is no proof of living expenses of the deceased, net earnings are computed at fifty percent (50%) of the gross earnings. [58] The formula used by this Court in computing loss of earning capacity is: Net Earning Capacity = [2/3 x (80 age at time of death) x (gross annual income reasonable and necessary living expenses)][59] In this case, the Court notes that the victim was 27 years old at the time of his death and his mother testified that as a driver of the Tamaraw FX taxi, he was earning P650.00 a day. [60] Hence, the damages payable for the loss of the victims earning capacity is computed thus: Gross Annual Earnings = P650 x 261 working days in a year = Net Earning Capacity P169,650.00

= 2/3 x (80-27) x [P169,650.00 P84,825.00] = 35.33 x 84,825.00

P2,996,867.20 Based on the foregoing computation, the award of the trial court with regard to lost income is thus modified accordingly.

WHEREFORE, the decision of the Regional Trial Court of Quezon City, Branch 85, in Criminal Cases No. Q-95-63963, finding accused-appellant guilty beyond reasonable doubt of violation of Republic Act No. 6539 (The Anti-Carnapping Law) is AFFIRMED with MODIFICATIONS. Accused-appellants are SENTENCED to suffer the penalty of reclusion perpetua; and are ORDERED, jointly and severally, to pay the heirs of the victim Christian Bermudez the sum of P50,000.00 as civil indemnity, the sum of P50,000.00 as moral damages, and the sum of P2,996,867.20 representing lost earnings. The award of P200,000.00 as burial and other expenses is DELETED for lack of substantial proof. SO ORDERED. THIRD DIVISION

[G.R. No. 141217. September 26, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. EUSEBIO DUBAN y DOMINGO @ JUN, appellant. DECISION CARPIO-MORALES, J.:

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From the decision of the Regional Trial Court, Branch 18, Manila finding appellant Eusebio Duban y Domingo guilty beyond reasonable doubt of murder for the killing of Dionisio Barboza (the victim) and sentencing him to suffer the penalty of reclusion perpetua, he comes to this Court on appeal. In an information
[2] [1]

dated October 28, 1997, appellant was indicted as follows:

That on or about October 9, 1997 at 11:00 am, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, with intent to kill and with treachery and evident premeditation, attack, assault and use personal violence upon DIONISIO BARBOZA by then and there striking him with a stone at the back of his head, thereby causing traumatic head injury which cause (sic) his death thereafter. Contrary to law. Upon arraignment on November 18, 1997, appellant, assisted by counsel de oficio, entered a plea of not guilty. Thereafter, trial on the merits ensued. On October 9, 1997, at 11:00 a.m., appellant admittedly hurled at the victim a stone estimated to weigh one kilo, hitting the victim at the right rear portion of his head and ear, causing him to fall on the ground unconscious. The victim died hours later after he was brought to the Jose Reyes Memorial Medical Center. Appellant claimed self-defense, however. The prosecution claimed otherwise, alleging that it was plain murder. From the evidence of the prosecution, the following version is established. While prosecution witness Dionisio Poquiz, a jeepney driver, was outside his house at Ramon Magsaysay Boulevard, Sta. Mesa, Manila, the victim, a coconut vendor, passed by, pushing a cart loaded with coconuts. Poquiz bought coconut juice and repaired to the rear seat of his parked jeepney where he sat. As Poquiz was drinking the coconut juice, appellant approached the victim who was standing and waiting for a customer beside his cart. When appellant, a jeepney barker, was about a meter away from the victim, he suddenly hurled the stone which hit the right rear portion of his head and ear. Appellant then speedily left, foiling Poquizs attempt to apprehend him. The postmortem examination conducted on the victim by Dr. Ravell Ronald R. Baluyot of the National Bureau of Investigation Medico-Legal Division showed the following findings: Cyanosis, lips and nailbeds. Blood, oozing from right ear. Lacerated wound, stellate 2.6 x 1.5 cms., scalp, post-auricular area, right. Scalp Hematoma, right, extensive. Fracture, skill bones: middle and posterior fossae, linear, right. Intracranial hemorrhage: Epidural, right parietal area; Subdural and subarachnoid right cerebral hemisphere, extensive. Visceral organs, congested. Stomach, contains a small amount of brownish fluid.[4] (Underscoring supplied) Upon the other hand, appellant detailed his self-defense as follows: At about 12:00 noon of October 9, 1997, after alighting from a jeepney at the de la Fuente jeepney station, as he was walking on his way home, a jeepney driver whose name he no longer remembers, asked him to drink liquor with him. He declined the invitation as he had not yet eaten. The drunk companion of the driver (the victim) whom he met for the first time got a glass of gin, however, and echoed the offer, but he just the same declined it, prompting the victim to throw the contents of the glass at his face. Appellant thus shouted invectives at the victim who then took a bolo from the jeepney which he tried to hit him with, but which he (appellant) was able to evade.
[3]

Q: So what did you do when that somebody tried to hit you but missed it (sic)? A: They were inside the jeepney at the time drinking and they alighted from the jeep.

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[ATTY. OSORIO:]

Jonna Maye Canindo

COURT Q: How about you what did you do? A: I also got off from the jeep and I evaded the blows of the bolo aimed at me.
[5]

Continuing, appellant claimed that as the victim ran after him, he ran around the jeepney because there was an obstruction. Appellant thus took a stone placed under the tire of the jeep and with his right hand he threw it at the victim while the latter was approaching him at a distance of about 3 meters. The stone hit the victim on the [r]ight side of his [6] head, thus causing him to fall down. Appellant thereafter ran away and went home. Brushing aside appellants claim of self-defense, the trial court found him guilty beyond reasonable doubt of murder by Decision of November 15, 1999, the dispositive portion of which is quoted verbatim: WHEREFORE, the Court finds the accused, Eusebio Duban y Domingo, guilty beyond reasonable doubt of the crime of murder under Article 248 of the Revised Penal Code and hereby sentences him to suffer the penalty of reclusion perpetua with all the accessory penalties provided by law and to pay the costs. On the civil liability of the accused, the Court further sentences him to pay the legal heirs of the victim, Dionisio Barboza, moral and nominal damages in the respective sums of P200,000.00 and P70,000.00, and an additional sum ofP50,000.00, for the loss of the victims life with interest thereon at the legal rate of 6% per annum from today until fully paid. SO ORDERED. Hence, the present appeal anchored on the following assigned errors:
[7]

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT WHEN HIS GUILT HAS NOT BEEN PROVEN BEYOND REASONABLE DOUBT. ASSUMING ARGUENDO THAT ACCUSED-APPELLANT IS GUILTY, THE TRIAL COURT ERRED IN CONVICTING HIM WITH THE CRIME OF MURDER WHEN THE QUALIFYING CIRCUMSTANCE OF TREACHERY HAS NOT BEEN PROVEN BEYOND REASONABLE DOUBT. (Underscoring supplied) Appellant contends that the testimony of eyewitness Poquiz, even if he was not shown to have been actuated by any [8] improper motive, is full of improbabilities, hence, it cannot prevail over his (appellants) testimony. Appellant cites Poquizs testimony that he (appellant) was one arms length away from the victim as was Poquiz from the victim. If that were the case, appellant argues, there would have been no need for him to throw the stone at the [9] victim and Poquiz could have easily apprehended him (appellant). Whether Poquiz estimated the correct distance from where he was in relation to where appellant and the victim were is immaterial, however, appellant having himself admitted throwing the stone at the victim. Admittedly, Poquiz was not prompted by ill motive to falsely testify against appellant, hence, his testimony should be [10] entitled to full faith and credit. Additionally, by appellants account, he, who is right-handed, threw the stone at the victim who was about 3 meters away, while the latter was facing and approaching him with a bolo. But the victim was admittedly hit at the [12] right rear portion of the head, a fact confirmed by the above-stated result of the postmortem examination of the victim. As thus observed by the trial court, appellants version cannot be believed. For, it is highly improbable that the victim could be hit at the right rear portion of his head if he and appellant were facing each other and appellant threw the [13] stone with his right hand, or that the victim could be hit at the same right rear portion of his head if he were chasing appellant. Neither can appellants claim that the victim was very drunk and armed with a bolo be believed. The result of the postmortem examination of the victim gave no indication that he was drunk. As for the claim that the victim was armed with a bolo, why appellant did not take the bolo, if indeed he had, after the victim fell down on being hit, is contrary to
[11]

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human experience. For an innocent man under similar circumstances would naturally take it with him to prove his claim of [14] self-defense. Such course of action is fatal to such claim of appellant. And so is his running away from the scene of the [15] incident, for a truly innocent person would normally report the matter to the police. But appellant did not. Instead, he immediately fled. And while appellant claimed during direct examination that he told his side of the incident when he was arrested two [16] [17] weeks later, the police progress report accomplished on his arrest shows that he, after being apprised of his constitutional rights and of the charge against him, opted to remain silent. Persons who act in legitimate defense of their persons or rights invariably surrender themselves to the authorities [18] and describe fully and in all candor all that has happened with a view to justify their acts. But appellant did not. In fine, appellants version of the incident and his actuations soon after do not speak of his innocence. The trial court did not err thus in not crediting appellants claim of self-defense. Neither did it err in appreciating the presence of treachery in the killing. The essence of treachery is that the attack is deliberate and without warning, done in a swift and unexpected manner [19] of execution, affording the hapless and unsuspecting victim no chance to resist or escape. In the case at bar, the victim [20] was standing and selling coconut, totally oblivious of any impending harm when appellant suddenly threw the stone from behind him. There is no doubt then that appellant is guilty of murder, penalized under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7569. There being neither mitigating nor aggravating circumstance, the lesser penalty [21] of reclusion perpetua was correctly imposed by the trial court, pursuant to Article 63(2) of the Revised Penal Code. As to the civil aspect of the case, in line with prevailing jurisprudence, the award of indemnity to the heirs of the victim in the amount of P50,000.00 is affirmed, it being awarded without need of proof other than the fact that a crime was [22] committed resulting in the death of the victim and that the accused was responsible therefor. As for the award by the trial court of moral damages to the legal heirs of the victim in the amount of P200,000.00, not only is the amount exorbitant, there is also no evidence to show that the legal heirs of the victim suffered any mental anguish or serious anxiety arising from the victims death. The award of P70,000.00 for nominal damages must be deleted for lack of factual and legal basis. This Court notes that while Rolly Barboza, the victims brother, testified that the victims family incurred medical and [23] funeral expenses in the amount of P65,000.00, he, in support thereof, presented a list of expenses. Only substantiated and proven expenses, however, or those that appear to have been genuinely incurred in connection with the death, wake [24] or burial of the victim will be recognized in court. A list of expenses is not considered a competent proof and cannot [25] replace the official receipts necessary to justify the award of actual damages. Neither can the funeral [26] contract submitted in evidence by the prosecution be sufficient, it not being proof that what was stipulated therein was [27] eventually paid. Nonetheless, where no sufficient proof of actual damages is presented in the trial court (or when the actual damages proven is less than P25,000.00), the amount of P25,000.00 as temperate damages may be awarded, it being reasonable [28] to presume that when death occurs, the family of the victim necessarily incurs expenses for the wake and funeral. Under Article 2206 of the Civil Code, the heirs of the victim are entitled to indemnity for loss of earning capacity. Ordinarily, documentary evidence is necessary for the purpose. By way of exception, testimonial evidence may suffice if the victim was either (1) self-employed, earning less than the minimum wage under current labor laws, and judicial notice may be taken of the fact that in the victims line of work, no documentary evidence is available; or (2) employed as a daily[29] wage worker earning less than the minimum wage under current labor laws. In the case at bar, however, while the victims brother testified that the victim earned P300.00, he did not indicate whether the same referred to the victims [30] hourly, daily, monthly or annual income. Indemnification for loss of earning capacity partakes of the nature of actual damages which must be duly [31] [32] proven by competent proof and the best obtainable evidence thereof.

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Exemplary damages must be awarded too in accordance with Article 2230 of the Civil Code, the qualifying [33] circumstance of treachery being present. Finally, the award by the trial court of interest on damages at the legal rate of 6% per annum is in accordance with Article 2211 of the Civil Code which states that in crimes and quasi-delicts, interest as part of damages may, in proper cases, be adjudicated in the discretion of the court, and none has been shown that there has been abuse in the exercise [34] thereof. WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 18, finding appellant EUSEBIO DUBAN y DOMINGO guilty beyond reasonable doubt of Murder and sentencing him to suffer the penalty of reclusion perpetua is hereby AFFIRMED. The civil aspect of the case is MODIFIED to read as follows: Appellant is hereby ORDERED to pay the heirs of Dionisio Barboza the amounts of P50,000.00 as civil indemnity for his death, P25,000.00 as temperate damages, and P25,000.00 as exemplary damages, with legal interest to be paid at SIX PERCENT (6%) on the amount due computed from the promulgation of the decision of the trial court on November 15, 1999. SO ORDERED.

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