PRESIDENTIAL DECREE No.

1612 ANTI-FENCING LAW OF 1979 WHEREAS, reports from law enforcement agencies reveal that there is rampant robbery and thievery of government and private properties; WHEREAS, such robbery and thievery have become profitable on the part of the lawless elements because of the existence of ready buyers, commonly known as fence, of stolen properties;lawphil.net WHEREAS, under existing law, a fence can be prosecuted only as an accessory after the fact and punished lightly; WHEREAS, is imperative to impose heavy penalties on persons who profit by the effects of the crimes of robbery and theft. NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers vested in me by the Constitution, do hereby order and decree as part of the law of the land the following: Section 1. Title. This decree shall be known as the Anti-Fencing Law. Section 2. Definition of Terms. The following terms shall mean as follows: (a) "Fencing" is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft. (b) "Fence" includes any person, firm, association corporation or partnership or other organization who/which commits the act of fencing. Section 3. Penalties. Any person guilty of fencing shall be punished as hereunder indicated: (a) The penalty of prision mayor, if the value of the property involved is more than 12,000 pesos but not exceeding 22,000 pesos; if the value of such property exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, the penalty shall be termed reclusion temporal and the accessory penalty pertaining thereto provided in the Revised Penal Code shall also be imposed.

(b) The penalty of prision correccional in its medium and maximum periods, if the value of the property robbed or stolen is more than 6,000 pesos but not exceeding 12,000 pesos. (c) The penalty of prision correccional in its minimum and medium periods, if the value of the property involved is more than 200 pesos but not exceeding 6,000 pesos. (d) The penalty of arresto mayor in its medium period to prision correccional in its minimum period, if the value of the property involved is over 50 pesos but not exceeding 200 pesos. (e) The penalty of arresto mayor in its medium period if such value is over five (5) pesos but not exceeding 50 pesos. (f) The penalty of arresto mayor in its minimum period if such value does not exceed 5 pesos. Section 4. Liability of Officials of Juridical Persons. If the fence is a partnership, firm, corporation or association, the president or the manager or any officer thereof who knows or should have known the commission of the offense shall be liable. Section 5. Presumption of Fencing. Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing. Section 6. Clearance/Permit to Sell/Used Second Hand Articles. For purposes of this Act, all stores, establishments or entities dealing in the buy and sell of any good, article item, object of anything of value obtained from an unlicensed dealer or supplier thereof, shall before offering the same for sale to the public, secure the necessary clearance or permit from the station commander of the Integrated National Police in the town or city where such store, establishment or entity is located. The Chief of Constabulary/Director General, Integrated National Police shall promulgate such rules and regulations to carry out the provisions of this section. Any person who fails to secure the clearance or permit required by this section or who violates any of the provisions of the rules and regulations promulgated thereunder shall upon conviction be punished as a fence. lawphi1.net Section 7. Repealing Clause. All laws or parts thereof, which are inconsistent with the provisions of this Decree are hereby repealed or modified accordingly. Section 8. Effectivity. This Decree shall take effect upon approval. Done in the City of Manila, this 2nd day of March, in the year of Our Lord, nineteen hundred and seventy-nine.

RULES AND REGULATIONS TO CARRY OUT THE PROVISIONS OF SECTION 6 OF PRESIDENTIAL DECREE NO. 1612, KNOWN AS THE ANTIFENCING LAW. Pursuant to Section 6 of Presidential Decree No. 1612, known as the Anti-Fencing Law, the following rules and regulations are hereby promulgated to govern the issuance of clearances/permits to sell used secondhand articles obtained from an unlicensed dealer or supplier thereof: I. Definition of Terms 1. "Used secondhand article" shall refer to any goods, article, item, object or anything of value obtained from an unlicensed dealer or supplier, regardless of whether the same has actually or in fact been used. 2. "Unlicensed dealer/supplier" shall refer to any persons, partnership, firm, corporation, association or any other entity or establishment not licensed by the government to engage in the business of dealing in or of supplying the articles defined in the preceding paragraph. 3. "Store", "establishment" or "entity" shall be construed to include any individual dealing in the buying and selling used secondhand articles, as defined in paragraph hereof. 4. "Buy and Sell" refer to the transaction whereby one purchases used secondhand articles for the purpose of resale to third persons. 5. "Station Commander" shall refer to the Station Commander of the Integrated National Police within the territorial limits of the town or city district where the store, establishment or entity dealing in the buying and selling of used secondhand articles is located. II. Duty to Procure Clearance or Permit 1. No person shall sell or offer to sell to the public any used secondhand article as defined herein without first securing a clearance or permit for the purpose from the proper Station Commander of the Integrated National Police. 2. If the person seeking the clearance or permit is a partnership, firm, corporation, or association or group of individuals, the clearance or permit shall be obtained by or in the name of the president, manager or other responsible officer-in-charge thereof. 3. If a store, firm, corporation, partnership, association or other establishment or entity has a branch or subsidiary and the used secondhand article is acquired by

such branch or subsidiary for sale to the public, the said branch or subsidiary shall secure the required clearance or permit. 4. Any goods, article, item, or object or anything of value acquired from any source for which no receipt or equivalent document evidencing the legality of its acquisition could be presented by the present possessor or holder thereof, or the covering receipt, or equivalent document, of which is fake, falsified or irregularly obtained, shall be presumed as having been acquired from an unlicensed dealer or supplier and the possessor or holder thereof must secure the required clearance or permit before the same can be sold or offered for sale to the public. III. Procedure for Procurement of Clearances or Permits 1. The Station Commanders concerned shall require the owner of a store or the president, manager or responsible officer-in-charge of a firm, establishment or other entity located within their respective jurisdictions and in possession of or having in stock used secondhand articles as defined herein, to submit an initial affidavit within thirty (30) days from receipt of notice for the purpose thereof and subsequent affidavits once every fifteen (15) days within five (5) days after the period covered, which shall contain: (a) A complete inventory of such articles acquired daily from whatever source and the names and addresses of the persons from whom such articles were acquired. (b) A full list of articles to be sold or offered for sale as well as the place where the date when the sale or offer for sale shall commence. (c) The place where the articles are presently deposited or kept in stock. The Station Commander may, at his discretion when the circumstances of each case warrant, require that the affidavit submitted be accompanied by other documents showing proof of legitimacy of the acquisition of the articles. 2. A party required to secure a clearance or permit under these rules and regulations shall file an application therefor with the Station Commander concerned. The application shall state: (a) The name, address and other pertinent circumstances of the persons, in case of an individual or, in the case of a firm, corporation, association, partnership or other entity, the name, address and other pertinent circumstances of the president, manager or officer-in-charge. (b) The article to be sold or offered for sale to the public and the name and address of the unlicensed dealer or supplier from whom such article was acquired.

In support of the application, there shall be attached to it the corresponding receipt or other equivalent document to show proof of the legitimacy of acquisition of the article. 3. The Station Commander shall examine the documents attached to the application and may require the presentation of other additional documents, if necessary, to show satisfactory proof of the legitimacy of acquisition of the article, subject to the following conditions: (a) If the legitimacy of acquisition of any article from an unlicensed source cannot be satisfactorily established by the documents presented, the Station Commander shall, upon approval of the INP Superintendent in the district and at the expense of the party seeking the clearance/permit, cause the publication of a notice in a newspaper of general circulation for two (2) successive days enumerating therein the articles acquired from an unlicensed dealer or supplier, the names and addresses of the persons from whom they were acquired and shall state that such articles are to be sold or offered for sale to the public at the address of the store, establishment or other entity seeking the clearance/permit. In places where no newspapers are in general circulation, the party seeking the clearance or permit shall, instead, post a notice daily for one week on the bulletin board of the municipal building of the town where the store, firm, establishment or entity concerned is located or, in the case of an individual, where the articles in his possession are to be sold or offered for sale. (b) If after 15 days, upon expiration of the period of publication or of the notice referred to in the preceding paragraph, no claim is made with respect to any of the articles enumerated in the notice, the Station Commander shall issue the clearance or permit sought. (c) If, before expiration of the same period for publication of the notice or its posting, it shall appear that any of the articles in question is stolen property, the Station Commander shall hold the article in restraint as evidence in any appropriate case to be filed. Articles held in restraint shall be kept and disposed of as the circumstances of each case permit, taking into account all considerations of right and justice in the case. In any case where any article is held in restraint, it shall be the duty of the Station Commander concerned to advise/notify the Commission on Audit of the case and comply with such procedure as may be proper under applicable existing laws, rules and regulations. 4. The Station Commander concerned shall, within seventy-two (72) hours from receipt of the application, act thereon by either issuing the clearance/permit requested or denying the same. Denial of an application shall be in writing and shall state in brief the reason/s therefor.

5. The application, clearance/permit or the denial thereof, including such other documents as may be pertinent in the implementation of Section 6 of P.D. No. 1612 shall be in the forms prescribed in Annexes "A", "B", "C", "D", and "E" hereof, which are made integral parts of these rules and regulations. 6. For the issuance of clearances/permit required under Section 6 of P.D. No. 1612, no fee shall be charged. IV. Appeals Any party aggrieved by the action taken by the Station Commander may elevate the decision taken in the case to the proper INP District Superintendent and, if he is still dissatisfied therewith may take the same on appeal to the INP Director. The decision of the INP Director may also be appealed to the INP Director-General whose decision may likewise be appealed to the Minister of National Defense. The decision of the Minister of National Defense on the case shall be final. The appeal against the decision taken by a Commander lower than the INP Director-General should be filed to the next higher Commander within ten (10) days from receipt of notice of the decision. The decision of the INP Director-General should be appealed within fifteen (15) days from receipt of notice of the decision. V. Penalties 1. Any person who fails to secure the clearance or permit required by Section 6 of P.D. 1612 or who violates any of the provisions of these rules and regulations shall upon conviction be punished as a fence. 2. The INP Director-General shall recommend to the proper authority the cancellation of the business license of the erring individual, store, establishment or the entity concerned. 3. Articles obtained from unlicensed sources for sale or offered for sale without prior compliance with the provisions of Section 6 of P.D. No. 1612 and with these rules and regulations shall be held in restraint until satisfactory evidence or legitimacy of acquisition has been established. 4. Articles for which no satisfactory evidence of legitimacy of acquisition is established and which are found to be stolen property shall likewise be held under restraint and shall, furthermore, be subject to confiscation as evidence in the appropriate case to be filed. If, upon termination of the case, the same is not claimed by their legitimate owners, the article/s shall be forfeited in favor of the government and made subject to disposition as the circumstances warrant in accordance with applicable existing laws, rules and regulations. The Commission on Audit shall, in all cases, be notified.

5. Any personnel of the Integrated National Police found violating the provisions of Section 6 of P.D. No. 1612 or any of its implementing rules and regulations or who, in any manner whatsoever, connives with or through his negligence or inaction makes possible the commission of such violations by any party required to comply with the law and its implementing rules and regulations, shall be prosecuted criminally without prejudice to the imposition of administrative penalties. VI. Visitorial Power It shall be the duty of the owner of the store or of the president, manager or responsible officer-in-charge of any firm, establishment or other entity or of an individual having in his premises articles to be sold or offered for sale to the public to allow the Station Commander or his authorized representative to exercise visitorial powers. For this purpose, however, the power to conduct visitations shall be exercise only during office or business hours and upon authority in writing from and by the INP Superintendent in the district and for the sole purpose of determining whether articles are kept in possession or stock contrary to the intents of Section 6 of P.D. No. 1612 and of these rules and regulations. VII. Other Duties Imposed Upon Station Commanders and INP District Superintendent and Directors Following Action on Applications for Clearances or Permits 1. At the end of each month, it shall be the duty of the Station Commander concerned to: (a) Make and maintain a file in his office of all clearances/permit issued by him. (b) Submit a full report to the INP District Superintendent on the number of applications for clearances or permits processed by his office, indicating therein the number of clearances/permits issued and the number of applications denied. The report shall state the reasons for denial of an application and the corresponding follow-up actions taken and shall be accompanied by an inventory of the articles to be sold or offered for sale in his jurisdiction. 2. The INP District Superintendent shall, on the basis of the reports submitted by the Station Commander, in turn submit quarterly reports to the appropriate INP Director containing a consolidation of the information stated in the reports of Station Commanders in his jurisdiction. 3. Reports from INP District Superintendent shall serve as basis for a consolidated report to be submitted semi-annually by INP Directors to the Director-General, Integrated National Police.

4. In all cases, reports emanating from the different levels of the Integrated National Police shall be accompanied with full and accurate inventories of the articles acquired from unlicensed dealers or suppliers and proposed to be sold or offered for sale in the jurisdictions covered by the report. These implementing rules and regulations, having been published in a newspaper of national circulation, shall take effect on June 15, 1979. FOR THE CHIEF OF CONSTABULARY DIRECTOR-GENERAL, INP:

PRESIDENTIAL DECREE No. 1829 PENALIZING OBSTRUCTION OF APPREHENSION AND PROSECUTION OF CRIMINAL OFFENDERS WHEREAS, crime and violence continue to proliferate despite the sustained vigorous efforts of the government to effectively contain them; WHEREAS, to discourage public indifference or apathy towards the apprehension and prosecution of criminal offenders, it is necessary to penalize acts which obstruct or frustrate or tend to obstruct or frustrate the successful apprehension and prosecution of criminal offenders; NOW, THEREFORE, I, FERDINAND, E. MARCOS, President of the Philippines, by virtue of the powers vested in me by law do hereby decree and order the following: Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following acts: (a) preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats; (b) altering, destroying, suppressing or concealing any paper, record, document, or object, with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases;

(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest prosecution and conviction; (d) publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes; (e) delaying the prosecution of criminal cases by obstructing the service of process or court orders or disturbing proceedings in the fiscal's offices, in Tanodbayan, or in the courts; (f) making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in, criminal cases; (g) soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discounting, or impeding the prosecution of a criminal offender; (h) threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of or in official proceedings in, criminal cases; (i) giving of false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or to the court. If any of the acts mentioned herein is penalized by any other law with a higher penalty, the higher penalty shall be imposed. Section 2. If any of the foregoing acts is committed by a public official or employee, he shall in addition to the penalties provided thereunder, suffer perpetual disqualification from holding public office. Section 3. This Decree shall take effect immediately. Done in the City of Manila, this 16th day of January, in the year of Our Lord, nineteen hundred and eighty-one.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 134298 August 26, 1999

RAMON C. TAN, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. PARDO, J.: The case before the Court is an appeal via certiorari from a decision of the Court of Appeals * affirming that of the Regional Trial Court of Manila, Branch 19, ** convicting petitioner of the crime of fencing. Complainant Rosita Lim is the proprietor of Bueno Metal Industries, located at 301 Jose Abad Santos St., Tondo, Manila, engaged in the business of manufacturing propellers or spare parts for boats. Manuelito Mendez was one of the employees working for her. Sometime in February 1991, Manuelito Mendez left the employ of the company. Complainant Lim noticed that some of the welding rods, propellers and boat spare parts, such as bronze and stainless propellers and brass screws were missing. She conducted an inventory and discovered that propellers and stocks valued at P48,000.00, more or less, were missing. Complainant Rosita Lim informed Victor Sy, uncle of Manuelito Mendez, of the loss. Subsequently, Manuelito Mendez was arrested in the Visayas and he admitted that he and his companion Gaudencio Dayop stole from the complainant's warehouse some boat spare parts such as bronze and stainless propellers and brass screws. Manuelito Mendez asked the complainant's forgiveness. He pointed to petitioner Ramon C. Tan as the one who bought the stolen items and who paid the amount of P13,000.00, in cash to Mendez and Dayop, and they split the amount with one another. Complainant did not file a case against Manuelito Mendez and Gaudencio Dayop. On relation of complainant Lim, an Assistant City Prosecutor of Manila filed with the Regional Trial Court, Manila, Branch 19, an information against petitioner charging him with violation of Presidential Decree No. 1612 (Anti-Fencing Law) committed as follows: That on or about the last week of February 1991, in the City of Manila, Philippines, the said accused, did then and there wilfully, unlawfully and feloniously knowingly receive, keep, acquire and possess several spare parts and items for fishing boats all valued at P48,130.00 belonging to

Rosita Lim, which he knew or should have known to have been derived from the proceeds of the crime of theft. Contrary to law. Upon arraignment on November 23, 1992, petitioner Ramon C. Tan pleaded not guilty to the crime charged and waived pre-trial. To prove the accusation, the prosecution presented the testimonies of complainant Rosita Lim, Victor Sy and the confessed thief, Manuelito Mendez. On the other hand, the defense presented Rosita Lim and Manuelito Mendez as hostile witnesses and petitioner himself. The testimonies of the witnesses were summarized by the trial court in its decision, as follows: ROSITA LIM stated that she is the owner of Bueno Metal Industries, engaged in the business of manufacturing propellers, bushings, welding rods, among others (Exhibits A, A-1, and B). That sometime in February 1991, after one of her employees left the company, she discovered that some of the manufactured spare parts were missing, so that on February 19, 1991, an inventory was conducted and it was found that some welding rods and propellers, among others, worth P48,000.00 were missing. Thereafter, she went to Victor Sy, the person who recommended Mr. Mendez to her. Subsequently, Mr. Mendez was arrested in the Visayas, and upon arrival in Manila, admitted to his having stolen the missing spare parts sold then to Ramon Tan. She then talked to Mr. Tan, who denied having bought the same.1wphi1.nt When presented on rebuttal, she stated that some of their stocks were bought under the name of Asia Pacific, the guarantor of their Industrial Welding Corporation, and stated further that whether the stocks are bought under the name of the said corporation or under the name of William Tan, her husband, all of these items were actually delivered to the store at 3012-3014 Jose Abad Santos Street and all paid by her husband. That for about one (1) year, there existed a business relationship between her husband and Mr. Tan. Mr. Tan used to buy from them stocks of propellers while they likewise bought from the former brass woods, and that there is no reason whatsoever why she has to frame up Mr. Tan. MANUELITO MENDEZ stated that he worked as helper at Bueno Metal Industries from November 1990 up to February 1991. That sometime in the third week of February 1991, together with Gaudencio Dayop, his coemployee, they took from the warehouse of Rosita Lim some boat spare parts, such as bronze and stainless propellers, brass screws, etc. They delivered said stolen items to Ramon Tan, who paid for them in cash in the amount of P13,000.00. After taking his share (one-half (1/2) of the

amount), he went home directly to the province. When he received a letter from his uncle, Victor Sy, he decided to return to Manila. He was then accompanied by his uncle to see Mrs. Lim, from whom he begged for forgiveness on April 8, 1991. On April 12, 1991, he executed an affidavit prepared by a certain Perlas, a CIS personnel, subscribed to before a Notary Public (Exhibits C and C-1). VICTORY [sic] SY stated that he knows both Manuelito Mendez and Mrs. Rosita Lim, the former being the nephew of his wife while the latter is his auntie. That sometime in February 1991, his auntie called up and informed him about the spare parts stolen from the warehouse by Manuelito Mendez. So that he sent his son to Cebu and requested his kumpadre, a police officer of Sta. Catalina, Negros Occidental, to arrest and bring Mendez back to Manila. When Mr. Mendez was brought to Manila, together with Supt. Perlas of the WPDC, they fetched Mr. Mendez from the pier after which they proceeded to the house of his auntie. Mr. Mendez admitted to him having stolen the missing items and sold to Mr. Ramon Tan in Sta. Cruz, Manila. Again, he brought Mr. Mendez to Sta. Cruz where he pointed to Mr. Tan as the buyer, but when confronted, Mr. Tan denied the same. ROSITA LIM, when called to testify as a hostile witness, narrated that she owns Bueno Metal Industries located at 301 Jose Abad Santos Street, Tondo, Manila. That two (2) days after Manuelito Mendez and Gaudencio Dayop left, her husband, William Tan, conducted an inventory and discovered that some of the spare parts worth P48,000.00 were missing. Some of the missing items were under the name of Asia Pacific and William Tan. MANUELITO MENDEZ, likewise, when called to testify as a hostile witness, stated that he received a subpoena in the Visayas from the wife of Victor Sy, accompanied by a policeman of Buliloan, Cebu on April 8, 1991. That he consented to come to Manila to ask forgiveness from Rosita Lim. That in connection with this case, he executed an affidavit on April 12, 1991, prepared by a certain Atty. Perlas, a CIS personnel, and the contents thereof were explained to him by Rosita Lim before he signed the same before Atty. Jose Tayo, a Notary Public, at Magnolia House, Carriedo, Manila (Exhibits C and C-1). That usually, it was the secretary of Mr. Tan who accepted the items delivered to Ramon Hardware. Further, he stated that the stolen items from the warehouse were placed in a sack and he talked to Mr. Tan first over the phone before he delivered the spare parts. It was Mr. Tan himself who accepted the stolen items in the morning at about 7:00 to 8:00 o'clock and paid P13,000.00 for them.

RAMON TAN, the accused, in exculpation, stated that he is a businessman engaged in selling hardware (marine spare parts) at 944 Espeleta Street, Sta. Cruz, Manila. He denied having bought the stolen spare parts worth P48,000.00 for he never talked nor met Manuelito Mendez, the confessed thief. That further the two (2) receipts presented by Mrs. Lim are not under her name and the other two (2) are under the name of William Tan, the husband, all in all amounting to P18,000.00. Besides, the incident was not reported to the police (Exhibits 1 to 1-g). He likewise denied having talked to Manuelito Mendez over the phone on the day of the delivery of the stolen items and could not have accepted the said items personally for everytime (sic) goods are delivered to his store, the same are being accepted by his staff. It is not possible for him to be at his office at about 7:00 to 8:00 o'clock in the morning, because he usually reported to his office at 9:00 o'clock. In connection with this case, he executed a counter-affidavit (Exhibits 2 and 2-a).1 On August 5, 1996, the trial court rendered decision, the dispositive portion of which reads: WHEREFORE, premises considered, the accused RAMON C. TAN is hereby found guilty beyond reasonable doubt of violating the Anti-Fencing Law of 1979, otherwise known as Presidential Decree No. 1612, and sentences him to suffer the penalty of imprisonment of SIX (6) YEARS and ONE (1) DAY to TEN (10) YEARS of prision mayor and to indemnify Rosita Lim the value of the stolen merchandise purchased by him in the sum of P18,000.00. Costs against the accused. SO ORDERED. Manila, Philippines, August 5, 1996. (s/t) ZENAIDA R. DAGUNA Judge Petitioner appealed to the Court of Appeals. After due proceedings, on January 29, 1998, the Courts of Appeals rendered decision finding no error in judgment appealed from, and affirming the same in toto.

In due time, petitioner filed with the Court of Appeals a motion for reconsideration; however, on June 16, 1998, the Court of Appeals denied the motion. Hence, this petition. The issue raised is whether or not the prosecution has successfully established the elements of fencing as against petitioner.2 We resolve the issue in favor of petitioner. "Fencing, as defined in Section 2 of P.D. No. 1612 is "the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft."3 "Robbery is the taking of personal property belonging to another, with intent to gain, by means of violence against or intimidation of any person, or using force upon things."4 The crime of theft is committed if the taking is without violence against or intimidation of persons nor force upon things.5 "The law on fencing does not require the accused to have participated in the criminal design to commit, or to have been in any wise involved in the commission of, the crime of robbery or theft."6 Before the enactment of P.D. No. 1612 in 1979, the fence could only be prosecuted as an accessory after the fact of robbery or theft, as the term is defined in Article 19 of the Revised Penal Code, but the penalty was light as it was two (2) degrees lower than that prescribed for the principal.7 P.D. No. 1612 was enacted to "impose heavy penalties on persons who profit by the effects of the crimes of robbery and theft." Evidently, the accessory in the crimes of robbery and theft could be prosecuted as such under the Revised Penal Code or under P.D. No. 1612. However, in the latter case, the accused ceases to be a mere accessory but becomes a principal in the crime of fencing. Otherwise stated, the crimes of robbery and theft, on the one hand, and fencing, on the other, are separate and distinct offenses.8 The State may thus choose to prosecute him either under the Revised Penal Code or P.D. No. 1612, although the preference for the latter would seem inevitable considering that fencing is malum prohibitum, and P.D. No. 1612 creates a presumption of fencing9 and prescribes a higher penalty based on the value of the property. 10

In Dizon-Pamintuan vs. People of the Philippines, we set out the essential elements of the crime of fencing as follows: 1. A crime of robbery or theft has been committed; 2. The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime; 3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and 4. There is on the part of the accused, intent to gain for himself or for another.11 Consequently, "the prosecution must prove the guilt of the accused by establishing the existence of all the elements of the crime charged."12 Short of evidence establishing beyond reasonable doubt the existence of the essential elements of fencing, there can be no conviction for such offense.13 "It is an ancient principle of our penal system that no one shall be found guilty of crime except upon proof beyond reasonable doubt (Perez vs. Sandiganbayan, 180 SCRA 9)."14 In this case, what was the evidence of the commission of theft independently of fencing? Complainant Rosita Lim testified that she lost certain items and Manuelito Mendez confessed that he stole those items and sold them to the accused. However, Rosita Lim never reported the theft or even loss to the police. She admitted that after Manuelito Mendez, her former employee, confessed to the unlawful taking of the items, she forgave him, and did not prosecute him. Theft is a public crime. It can be prosecuted de oficio, or even without a private complainant, but it cannot be without a victim. As complainant Rosita Lim reported no loss, we cannot hold for certain that there was committed a crime of theft. Thus, the first element of the crime of fencing is absent, that is, crime of robbery or theft has been committed. There was no sufficient proof of the unlawful taking of another's property. True, witness Mendez admitted in an extra-judicial confession that he sold the boat parts he had pilfered from complainant to petitioner. However, an admission or confession acknowledging guilt of an offense may be given in evidence only against the person admitting or confessing.15 Even on this, if given extra-

judicially, the confessant must have the assistance of counsel; otherwise, the admission would be inadmissible in evidence against the person so admitting.16 Here, the extra-judicial confession of witness Mendez was not given with the assistance of counsel, hence, inadmissible against the witness. Neither may such extra-judicial confession be considered evidence against accused.17 There must be corroboration by evidence of corpus delicti to sustain a finding of guilt.18 Corpus delicti means the "body or substance of the crime, and, in its primary sense, refers to the fact that the crime has been actually committed."19 The "essential elements of theft are (1) the taking of personal property; (2) the property belongs to another; (3) the taking away was done with intent of gain; (4) the taking away was done without the consent of the owner; and (5) the taking away is accomplished without violence or intimidation against persons or force upon things (U.S. vs. De Vera, 43 Phil. 1000)."20 In theft, corpus delicti has two elements, namely: (1) that the property was lost by the owner, and (2) that it was lost by felonious taking.21 In this case, the theft was not proved because complainant Rosita Lim did not complain to the public authorities of the felonious taking of her property. She sought out her former employee Manuelito Mendez, who confessed that he stole certain articles from the warehouse of the complainant and sold them to petitioner. Such confession is insufficient to convict, without evidence of corpus delicti.22 What is more, there was no showing at all that the accused knew or should have known that the very stolen articles were the ones sold him. "One is deemed to know a particular fact if he has the cognizance, consciousness or awareness thereof, or is aware of the existence of something, or has the acquaintance with facts, or if he has something within the mind's grasp with certitude and clarity. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence unless he actually believes that it does not exist. On the other hand, the words "should know" denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in performance of his duty to another or would govern his conduct upon assumption that such fact exists. Knowledge refers to a mental state of awareness about a fact. Since the court cannot penetrate the mind of an accused and state with certainty what is contained therein, it must determine such knowledge with care from the overt acts of that person. And given two equally plausible states of cognition or mental awareness, the court should choose the one which sustains the constitutional presumption of innocence."23 Without petitioner knowing that he acquired stolen articles, he can not be guilty of "fencing".24 Consequently, the prosecution has failed to establish the essential elements of fencing, and thus petitioner is entitled to an acquittal.

WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of Appeals in CA-G.R. C.R. No. 20059 and hereby ACQUITS petitioner of the offense charged in Criminal Case No. 92-108222 of the Regional Trial Court, Manila.1wphi1.nt Costs de oficio. SO ORDERED. Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 116736 July 24, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN ORTEGA, JR. y CONJE, MANUEL GARCIA y RIVERA and JOHN DOE, accused, BENJAMIN ORTEGA, JR. y CONJE and MANUEL GARCIA y RIVERA, accused-appellants.

PANGANIBAN, J.: A person who commits a felony is liable for the direct, natural and logical consequences of his wrongful act even where the resulting crime is more serious than that intended. Hence, an accused who originally intended to conceal and to bury what he thought was the lifeless body of the victim can be held liable as a principal, not simply as an accessory, where it is proven that the said victim was actually alive but subsequently died as a direct result of such concealment and burial. Nonetheless, in the present case, Appellant Garcia cannot be held liable as a principal because the prosecution failed to allege such death through

drowning in the Information. Neither may said appellant be held liable as an accessory due to his relationship with the principal killer, Appellant Ortega, who is his brother-in-law. Statement of the Case This case springs from the joint appeal interposed by Appellants Benjamin Ortega, Jr. and Manuel Garcia from the Decision, 1 dated February 9, 1994 written by Judge Adriano R. Osorio, 2 finding them guilty of murder. Appellants were charged by State Prosecutor Bernardo S. Razon in an Information 3 dated October 19, 1992, as follows:
That on or about October 17, 1992 in Valenzuela, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping one another, without any justifiable cause, with treachery and evident premeditation and with abuse of superior strenght (sic) and with deliberate intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and stab repeatedly with a pointed weapon on the different parts of the body one ANDRE MAR MASANGKAY y ABLOLA, thereby inflicting upon the latter serious physical injuries which directly caused his death.

During arraignment, Appellants Ortega and Garcia, assisted by counsel de oficio, 4 pleaded not guilty to the charge. 5 Accused "John Doe" was then at large. 6 After trial in due course, the court a quo promulgated the questioned Decision. The dispositive portion reads: 7
WHEREFORE, finding accused Benjamin Ortega, Jr. y Conje and Manuel Garcia y Rivera [g]uilty beyond reasonable doubt of the crime charged, the Court hereby sentenced (sic) them to suffer the penalty of RECLUSION PERPETUA and to pay the costs of suit. Accused are hereby ordered to pay the offended party the sum of P35,000.00 for funeral expenses of deceased Andre Mar Masangkay and death indemnity of P50,000.00.

The Notice of Appeal, dated March 9, 1994, was thus filed by Atty. Evaristo P. Velicaria 8 who took over from the Public Attorney's Office as counsel for the accused. The Facts Evidence for the Prosecution The trial court summarized the testimonies of the prosecution witnesses as follows: 9

Diosdado Quitlong substantially testified that on October 15, 1992 at about 5:30 in the afternoon, he, the victim Andre Mar Masangkay, Ariel Caranto, Romeo Ortega, Roberto San Andres were having a drinking spree in the compound near the house of Benjamin Ortega, Jr. at Daangbakal, Dalandanan, Valenzuela, Metro Manila. That while they were drinking, accused Benjamin Ortega, Jr. and Manuel Garcia who were [already] drunk arrived and joined them. That victim Andre Mar Masangkay answered the call of nature and went to the back portion of the house. That accused Benjamin Ortega, Jr. followed him and later they [referring to the participants in the drinking session] heard the victim Andre Mar shouted, "Don't, help me!" (Huwag, tulungan ninyo ako!) That he and Ariel Caranto ran towards the back portion of the house and [they] saw accused Benjamin Ortega, Jr., on top of Andre Mar Masangkay who was lying down in a canal with his face up and stabbing the latter with a long bladed weapon. That Ariel Caranto ran and fetched Benjamin Ortega, Sr., the father of accused Benjamin, Jr. That he [Quitlong] went to Romeo Ortega in the place where they were having the drinking session [for the latter] to pacify his brother Benjamin, Jr. That Romeo Ortega went to the place of the stabbing and together with Benjamin Ortega, Jr. and Manuel Garcia lifted Andre Mar Masangkay from the canal and brought Andre Mar to the well and dropped the latter inside the well. That Romeo Ortega, Benjamin Ortega, Jr. and Manuel Garcia then dropped stones measuring 11 to 12 inches high, 2 feet in length and 11 to 12 inches in weight to the body of Andre Mar Masangkay inside the well. That Romeo Ortega warned him [Quitlong] not to tell anybody of what he saw. That he answered in the affirmative and he was allowed to go home. That his house is about 200 meters from Romeo Ortega's house. That upon reaching home, his conscience bothered him and he told his mother what he witnessed. That he went to the residence of Col. Leonardo Orig and reported the matter. That Col. Orig accompanied him to the Valenzuela Police Station and some police officers went with them to the crime scene. That accused Benjamin Ortega, Jr. and Manuel Garcia were apprehended and were brought to the police station. On cross-examination, he said that he did not talk to the lawyer before he was presented as witness in this case. That he narrated the incident to his mother on the night he witnessed the killing on October 15, 1992. That on October 15, 1992 at 5:30 in the afternoon when he arrived, victim Andre Mar Masangkay, Romeo Ortega, Serafin and one Boyet were already having [a] drinking spree and he joined them. That accused Benjamin Ortega, Jr. and Manuel Garcia were not yet in the place. That the stabbing happened between 12:00 midnight and 12:30 a.m. That they drank gin with finger foods such as pork and shell fish. That he met the victim Andre Mar Masangkay only on that occasion. That accused Benjamin Ortega, Jr. and Manuel Garcia joined them at about 11:00 p.m. That there was no altercation between Benjamin Ortega, Jr. and Manuel Garcia in one hand and Andre Mar Masangkay, during the drinking session. That at about 12:30 a.m. Andre Mar Masangkay answered the call of nature and went to the back portion of the house. That he cannot see Andre Mar Masangkay from the place they were having the drinking session. That he did not see what happened to Andre Mar Masangkay. That he only heard Masangkay asking for help. That accused Manuel Garcia was still in the drinking session when he heard Masangkay was asking for help. That Benjamin Ortega, Jr. and Manuel Garcia are his friends and neighbors. That when he heard Andre Mar Masangkay was asking for help, he and Ariel Caranto ran to the back portion of the house and saw Benjamin Ortega, Jr. on top of Andre Mar Masangkay and stabbing the latter. That Andre Mar Masangkay was lying down with his back in the canal and Benjamin Ortega, Jr. on top stabbing the former. That he did not see any injuries on Benjamin Ortega, Jr. That he called Romeo Ortega to pacify his brother Benjamin, Jr. That he did not do anything to separate Benjamin Ortega, Jr. and Masangkay. That he knows

that Andre Mar Masangkay was courting Raquel Ortega. That Raquel Ortega asked permission from Andre Mar Masangkay when she left between 8:00 and 9:00 p.m. That there was no trouble that occurred during the drinking session. PNP Superintendent Leonardo Orig substantially testified that Diosdado Quitlong is his neighbor for about 9 years. That on October 16, 1992 at 5:00 in the morning, he was summoned by Diosdado Quitlong and reported to him the stabbing incident that occurred at Daangbakal near the subdivision he is living. That he relayed the information to the Valenzuela Police Station and a police team under police officer Param accompanied them to the place. That he asked the police officers to verify if there is a body of person inside the well. That the well was covered with stones and he asked the police officers to seek the help of theneighbors (sic) to remove the stones inside the well. That after the stones were removed, the body of the victim was found inside the well. That the lifeless body was pulled out from the well. That the body has several stab wounds. That he came to know the victim as Andre Mar Masangkay. That two men were arrested by the police officers. On cross-examination, he said that he saw the body when taken out of the well with several stab wounds. That Diosdado Quitlong told him that he was drinking with the victim and the assailants at the time of the incident. That Benjamin Ortega, Jr. stabbed the victim while the latter was answering the call of nature. NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially testified that he conducted [an] autopsy on the cadaver of Andre Mar Masangkay on October 16, 1992 at the Valenzuela Memorial Homes located at Macarthur Highway. That he prepared the autopsy report and the sketch of human head and body indicating the location of the stab wounds. That the cause of death is multiple stab wounds, contributory, [a]sphyxia by submersion in water. That there were 13 stab wounds, 8 of which were on the frontal part of the body, 2 at the back and there were contused abrasions around the neck and on the left arm. There was stab wound at the left side of the neck. That the contused abrasion could be produced by cord or wire or rope. That there is (an) incised wound on the left forearm. That the stab wounds which were backward downward of the body involved the lungs. That the victim was in front of the assailant. That the stab wound on the upper left shoulder was caused when the assailant was in front of the victim. That the assailant was in front of the victim when the stab wound near the upper left armpit was inflicted as well as the stab wound on the left chest wall. That the stab wound on the back left side of the body and the stab wound on the back right portion of the body may be produced when the assailant was at the back of the victim. That the assailant was in front of the victim when the stab wound[s] on the left elbow and left arm were inflicted. That the large airway is filled with muddy particles indicating that the victim was alive when the victim inhaled the muddy particles. The heart is filled with multiple hemorrhage, loss of blood or decreased of blood. The lungs is filled with water or muddy particles. The brain is pale due to loss of blood. The stomach is one half filled with muddy particles which could [have been] taken in when submerged in water. On cross-examination, he said that he found 13 stab wounds on the body of the victim. That he cannot tell if the assailant or the victim were standing. That it is possible that the stab wounds was (sic) inflicted when both [referring to participants] were standing or the victim was lying down and the assailant was on top. That he cannot tell the number of the assailants.

Evidence for the Appellants

Appellant Manuel Garcia testified that in the early morning of October 15, 1992, he and his wife, Maritess Garcia, brought their feverish daughter, Marjorie, to the Polo Emergency Hospital. He left the hospital at seven o'clock in the morning, went home, changed his clothes and went to work. 10 After office hours, he and Benjamin Ortega, Jr. passed by the canteen at their place of work. After drinking beer, they left at eight o'clock in the evening and headed home. En route, they chanced on Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay, who invited them to join their own drinking spree. Thereupon, Appellant Garcia's wife came and asked him to go home because their daughter was still sick. To alleviate his daughter's illness, he fetched his mother-in-law who performed a ritual called "tawas." After the ritual, he remained at home and attended to his sick daughter. He then fell asleep but was awakened by police officers at six o'clock in the morning of the following day. Maritess Garcia substantially corroborated the testimony of her husband. She however added two other participants in the drinking session aside from Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay, namely, a Mang Serafin and Boyet Santos. 11 Benjamin Ortega, Jr. likewise substantially corroborated the testimony of Appellant Manuel Garcia. 12 According to him, between eleven and twelve o'clock in the evening, Masangkay left the drinking session. Thirty (30) minutes after Masangkay left, he also left the drinking place to urinate. 13 He went behind the house where he saw Masangkay peeping through the room of his sister Raquel. He ignored Masangkay and continued urinating. 14 After he was through, Masangkay approached him and asked where his sister was. He answered that he did not know. Without warning, Masangkay allegedly boxed him in the mouth, an attack that induced bleeding and caused him to fall on his back. When he was about to stand up, Masangkay drew a knife and stabbed him, hitting him on the left arm, thereby immobilizing him. Masangkay then gripped his neck with his left arm and threatened to kill him. Unable to move, Ortega shouted for help. Quitlong came and, to avoid being stabbed, grabbed Masangkay's right hand which was holding the knife. Quitlong was able to wrest the knife from Masangkay and, with it, he stabbed Masangkay ten (10) times successively, in the left chest and in the middle of the stomach. When the stabbing started, Ortega moved to the left side of Masangkay to avoid being hit. 15 Quitlong chased Masangkay who ran towards the direction of the well. Thereafter, Ortega went home and treated his injured left armpit and lips. Then, he slept. When he woke up at six o'clock the following morning, he saw police officers in front of his house. Taking him with them, the lawmen proceeded to the well. From the railroad tracks where he was asked to sit, he saw the police officers lift the body of a dead person from the well. He came to know the identity of the dead person only after the body was taken to the police headquarters. 16

The Trial Court's Discussion The trial court explained its basis for appellants' conviction as follows: 17
The Court is convinced that the concerted acts of accused Benjamin Ortega, Jr., Manuel Garcia, Jr. and one Romeo Ortega in lifting, carrying and dumping the victim Andre Mar Masangkay who was still alive and breathing inside the deep well filled with water, head first and threw big stones/rocks inside the well to cover the victim is a clear indication of the community of design to finish/kill victim Andre Mar Masangkay. Wounded and unarmed victim Andre Mar Masangkay was in no position to flee and/or defend himself against the three malefactors. Conspiracy and the taking advantage of superior strength were in attendance. The crime committed by the accused is Murder. Concert of action at the moment of consummating the crime and the form and manner in which assistance is rendered to the person inflicting the fatal wound may determine complicity where it would not otherwise be evidence (People vs. Yu, 80 SCRA 382 (1977)). Every person criminally liable for a felony is also civilly liable. Accused (m)ust reimburse the heirs of victim Andre Mar Masangkay the amount of P35,000.00 for the funeral expenses of the deceased.

The Issues In their ten-page brief, appellants fault the trial court with the following: 18
I. The trial court erred in holding that there is conspiracy on the basis of the prosecution's evidence that at the time both accused and one Romeo Ortega lifted the body of Andrew Masangkay from where he succumbed due to stab wounds and brought and drop said body of Andrew Masangkay to the well to commit murder; II. The trial court erred in finding and holding that Andrew Masangkay was still alive at the time his body was dropped in the well; III. The trial court erred in convicting Manuel Garcia and in not acquitting the latter of the crime charged; and IV. The trial court erred in not finding that if at all Benjamin Ortega Jr. is guilty only of homicide alone.

On the basis of the records and the arguments raised by the appellants and the People, we believe that the question to be resolved could be simplified thus: What are the criminal liabilities, if any, of Appellants Ortega and Garcia? The Court's Ruling

We find the appeal partly meritorious. Appellant Ortega is guilty only of homicide. Appellant Garcia deserves acquittal. First Issue: Liability of Appellant Ortega The witnesses for the prosecution and defense presented conflicting narrations. The prosecution witnesses described the commission of the crime and positively identified appellants as the perpetrators. The witnesses for the defense, on the other hand, attempted to prove denial and alibi. As to which of the two contending versions speaks the truth primarily rests on a critical evaluation of the credibility of the witnesses and their stories. In this regard, the trial court held: 19
The Court has listened intently to the narration of the accused and their witnesses and the prosecution witnesses and has keenly observed their behavior and demeanor on the witness stand and is convinced that the story of the prosecution is the more believable version. Prosecution eyewitness Diosdado Quitlong appeared and sounded credible and his credibility is reinforced by the fact that he has no reason to testify falsely against the accused. It was Diosdado Quitlong who reported the stabbing incident to the police authorities. If Quitlong stabbed and killed the victim Masangkay, he will keep away from the police authorities and will go in hiding. . . .

Because the trial court had the opportunity to observe the witnesses' demeanor and deportment on the stand as they rendered their testimonies, its evaluation of the credibility of witnesses is entitled to the highest respect. Therefore, unless the trial judge plainly overlooked certain facts of substance and value which, if considered, might affect the result of the case, his assessment of credibility must be respected. 20 In the instant case, we have meticulously scoured the records and found no reason to reverse the trial court's assessment of the credibility of the witnesses and their testimonies 21 insofar as Appellant Ortega is concerned. The narration of Eyewitness Diosdado Quitlong appears to be spontaneous and consistent. It is straightforward, detailed, vivid and logical. Thus, it clearly deserves full credence. On the other hand, in asserting alibi and denial, the defense bordered on the unbelievable. Appellant Ortega claimed that after he was able to free himself from Masangkay's grip, he went home, treated his injuries and slept. 22 This is not the ordinary reaction of a person assaulted. If Ortega's version of the assault was true, he should have immediately reported the matter to the police authorities, if only out of gratitude to Quitlong who came to his rescue. Likewise, it is difficult to believe that a man would just sleep after someone was stabbed in his own backyard. Further, we deem it incredible that Diosdado Quitlong would stab Masangkay ten (10) times successively, completely ignoring Benjamin Ortega, Jr. who was grappling with Masangkay. Also inconsistent with human experience is his narration that Masangkay persisted in choking him instead of defending himself from the alleged successive stabbing of Quitlong. 23 The natural tendency

of a person under attack is to defend himself and not to persist in choking a defenseless third person. Murder or Homicide? Although treachery, evident premeditation and abuse of superior strength were alleged in the information, the trial court found the presence only of abuse of superior strength. We disagree with the trial court's finding. Abuse of superior strength requires deliberate intent on the part of the accused to take advantage of such superiority. It must be shown that the accused purposely used excessive force that was manifestly out of proportion to the means available to the victim's defense. 24 In this light, it is necessary to evaluate not only the physical condition and weapon of the protagonists but also the various incidents of the event. 25 In his testimony, Witness Dominador Quitlong mentioned nothing about Appellant Ortega's availment of force excessively out of proportion to the means of defense available to the victim to defend himself. Quitlong described the assault made by Appellant Ortega as follows: 26
ATTY. ALTUNA: Q Will you please tell me the place and date wherein you have a drinking spree with Andrew Masangkay and where you witnessed a stabbing incident? A It was on October 15, 1992, sir, at about 5:30 in the afternoon we were drinking in the house of Mr. Benjamin Ortega, Sr., because the house of Benjamin Ortega Sr. and the house of his son Benjamin Ortega, Jr. are near each other. xxx xxx xxx Q Mr. Witness, who were the companions of said persons, Benjamin Ortega, Jr., Manuel Garcia, you (sic) in drinking in said place? A The other companions in the drinking session were Ariel Caranto y Ducay, Roberto San Andres and Romeo Ortega. Q What about this victim, Andrew Masangkay, where was he at that time? A Also the victim, Andrew Masangkay, he was also there. Q You said that the two accused, Manuel Garcia and Benjamin Ortega, Jr. arrived drunk and joined the group? A Yes, sir.

Q What happened next? A While we were there together and we were drinking ... (interrupted by Atty. Altuna) Q Who is that "we"? A Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel Caranto, Romeo Ortega, Roberto San Andres, myself and Andrew Masangkay. Andrew Masangkay answer to a call of nature and went to the back portion of the house, and Benjamin Ortega, Jr. followed him where he was. Q What happened next? A And afterwards we heard a shout and the shout said "Huwag, tulungan n'yo ako". Q From whom did you hear this utterance? A The shout came from Andrew Masangkay. Q After Benjamin Ortega, Jr. followed Andrew Masangkay to answer a call of nature and after you heard "huwag, tulungan n'yo ako" coming from the mouth of the late Andrew Masangkay, what happened next? A Ariel Caranto and I ran towards the back portion of the house. Q And what did you see? A And I saw that Benjamin Ortega, Jr. was on top of Andrew Masangkay and he was stabbing Masangkay. Q Will you please demonstrate to the Honorable Court how the stabbing was done telling us the particular position of the late Andrew Masangkay and how Benjamin Ortega, Jr. proceeded with the stabbing against the late victim, Andrew Masangkay? INTERPRETER: (At this juncture, the witness demonstrating.) Andrew Masangkay was lying down on a canal with his face up, then Benjamin Ortega, Jr. was "nakakabayo" and with his right hand with closed fist holding the weapon, he was thrusting this weapon on the body of the victim, he was making downward and upward motion thrust. ATTY. ALTUNA: (To the witness)

Q How many times did Benjamin Ortega, Jr. stabbed Andrew Masangkay? A I cannot count the number of times.

It should be noted that Victim Masangkay was a six-footer, whereas Appellant Ortega, Jr. was only five feet and five inches tall. 27 There was no testimony as to how the attack was initiated. The accused and the victim were already grappling when Quitlong arrived. Nothing in the foregoing testimony and circumstances can be interpreted as abuse of superior strength. Hence, Ortega is liable only for homicide, not murder. Second Issue: Liability of Appellant Manuel Garcia Appellants argue that the finding of conspiracy by the trial court "is based on mere assumption and conjecture . . ." 28 Allegedly, the medico-legal finding that the large airway was "filled with muddy particles indicating that the victim was alive when the victim inhaled the muddy particles" did not necessarily mean that such muddy particles entered the body of the victim while he was still alive. The Sinumpaang Salaysay of Quitlong stated, "Nilubayan lang nang saksak nang mapatay na si Andrew ni Benjamin Ortega, Jr." Thus, the prosecution evidence shows Masangkay was already "dead" when he was lifted and dumped into the well. Hence, Garcia could be held liable only as an accessory. 29 We do not agree with the above contention. Article 4, par. 1, of the Revised Penal Code states that criminal liability shall be incurred by "any person committing a felony (delito) although the wrongful act done be different from that which he intended." The essential requisites for the application of this provision are that (a) the intended act is felonious; (b) the resulting act is likewise a felony; and (c) the unintended albeit graver wrong was primarily caused by the actor's wrongful acts. In assisting Appellant Ortega, Jr. carry the body of Masangkay to the well, Appellant Garcia was committing a felony. The offense was that of concealing the body of the crime to prevent its discovery, i.e. that of being an accessory in the crime of homicide. 30 Although Appellant Garcia may have been unaware that the victim was still alive when he assisted Ortega in throwing the body into the well, he is still liable for the direct and natural consequence of his felonious act, even if the resulting offense is worse than that intended. True, Appellant Garcia merely assisted in concealing the body of the victim. But the autopsy conducted by the NBI medico-legal officer showed that the victim at that time was still alive, and that he died subsequently of drowning. 31 That drowning was the immediate cause of death was medically demonstrated by the muddy particles found in the victim's airway, lungs and stomach. 32 This is evident from the expert testimony given by the medico-legal officer, quoted below: 33
ATTY. ALTUNA:

Q Will you please explain this in simple language the last portion of Exhibit N, beginning with "tracheo-bronchial tree", that is sentence immediately after paragraph 10, 2.5 cms. Will you please explain this? A The trancheo-bronchial tree is filled with muddy particles. Q I ask you a question on this. Could the victim have possibly get this particular material? A No, sir. Q What do you mean by no? A A person should be alive so that the muddy particles could be inhaled. Q So, in short, you are telling or saying to us that if there is no inhaling or the taking or receiving of muddy particles at that time, the person is still alive? A Yes, sir. Q Second point? A The heart is pale with some multiple petechial hemorrhages at the anterior surface. Q And this may [be] due to stab wounds or asphyxia? A These are the effects or due to asphyxia or decreased amount of blood going to the heart. Q This asphyxia are you referring to is the drowning? A Yes, sir. Q Next point is the lungs? A The lungs is also filled with multiple petechial hemorrhages. Q What could have caused this injury of the lungs? A This is due to asphyxia or the loss of blood. Q Are you saying that the lungs have been filled with water or muddy particles? A Yes, sir. Q And, precisely, you are now testifying that due to stab wounds or asphyxia, the lungs have been damaged per your Report?

A Yes, sir. Q Continuing this brain and other visceral organs, pale. What is this? A The paleness of the brain and other visceral organs is due to loss of blood. Q And, of course, loss of blood could be attributed to the stab wound which is number 13? A Yes, sir. Q And the last one, under the particular point "hemothorax"? A It indicates at the right side. There are around 1,400 cc of blood that accumulate at the thoraxic cavity and this was admixed with granular materials? Q And what cause the admixing with granular materials on said particular portion of the body? A Could be muddy particles. Q Due to the taking of maddy (sic) materials as affected by asphyxia? Am I correct? A It's due to stab wounds those muddy particles which set-in thru the stab wounds. Q So, because of the opening of the stab wounds, the muddy particles now came in, in that particular portion of the body and caused admixing of granular materials? A Yes, sir. Q Continuing with your report, particularly, the last two portions, will you please explain the same? A The hemoperitoneum there are 900 cc of blood that accumulated inside the abdomen. Q And what could have cause the same? A [T]he stab wound of the abdomen. Q The last one, stomach 1/2 filled with muddy particles. Please explain the same? A The victim could have taken these when he was submerged in water.

Q What is the take in? A Muddy particles. Q And he was still alive at that time? A Yes, sir. (Emphasis supplied)

A Filipino authority on forensic medicine opines that any of the following medical findings may show that drowning is the cause of death: 34
1. The presence of materials or foreign bodies in the hands of the victim. The clenching of the hands is a manifestation of cadaveric spasm in the effort of the victim to save himself from drowning. 2. Increase in volume (emphysema aquosum) and edema of the lungs (edema aquosum). 3. Presence of water and fluid in the stomach contents corresponding to the medium where the body was recovered. 4. Presence of froth, foam or foreign bodies in the air passage found in the medium where the victim was found. 5. Presence of water in the middle ear.

The third and fourth findings were present in the case of Victim Masangkay. It was proven that his airpassage, or specifically his tracheobronchial tree, was filled with muddy particles which were residues at the bottom of the well. Even his stomach was half-filled with such muddy particles. The unrebutted testimony of the medico-legal officer that all these muddy particles were ingested when the victim was still alive proved that the victim died of drowning inside the well. The drowning was the direct, natural and logical consequence of the felony that. Appellant Garcia had intended to commit; it exemplifies praeter intentionem covered by Article 4, par. 1, of the Revised Penal Code. Under this paragraph, a person may be convicted of homicide although he had no original intent to kill. 35 In spite of the evidence showing that Appellant Garcia could be held liable as principal in the crime of homicide, there are, however, two legal obstacles barring his conviction, even as an accessory as prayed for by appellants' counsel himself. First. The Information accused Appellant Garcia (and Appellant Ortega) of "attack[ing], assault[ing], and stab[bing] repeatedly with a pointed weapon on the different parts of the body one ANDRE MAR MASANGKAY y ABLOLA." The prosecution's evidence itself shows that Garcia had nothing to do with the

stabbing which was solely perpetrated by Appellant Ortega. His responsibility relates only to the attempted concealment of the crime and the resulting drowning of Victim Masangkay. The hornbook doctrine in our jurisdiction is that an accused cannot be convicted of an offense, unless it is clearly charged in the complaint or information. Constitutionally, he has a right to be informed of the nature and cause of the accusation against him. To convict him of an offense other than that charged in the complaint or information would be a violation of this constitutional right. 36 Section 14, par. 2, of the 1987 Constitution explicitly guarantees the following:
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. (Emphasis supplied)

In People vs. Pailano, 37 this Court ruled that there can be no conviction for rape on a woman "deprived of reason or otherwise unconscious" where the information charged the accused of sexual assault "by using force or intimidation," thus:
The criminal complaint in this case alleged the commission of the crime through the first method although the prosecution sought to establish at the trial that the complainant was a mental retardate. Its purpose in doing so is not clear. But whatever it was, it has not succeeded. If the prosecution was seeking to convict the accused-appellant on the ground that he violated Anita while she was deprived of reason or unconscious, such conviction could not have been possible under the criminal complaint as worded. This described the offense as having been committed by "Antonio Pailano, being then provided with a scythe, by means of violence and intimidation, (who) did, then and there, wilfully, unlawfully and feloniously have carnal knowledge of the complainant, Anita Ibaez, 15 years of age, against her will'. No mention was made of the second circumstance. Conviction of the accused-appellant on the finding that he had raped Anita while she was unconscious or otherwise deprived of reason and not through force and intimidation, which was the method alleged would have violated his right to be informed of the nature and cause of the accusation against him. [Article IV, Sec. 19, Constitution of 1973; now Article III, Sec. 14(2)] This right is safeguarded by the Constitution to every accused so he can prepare an adequate defense against the charge against him. Convicting him of a ground not alleged while he is concentrating his defense against the ground alleged would plainly be unfair and underhanded. This right was, of course, available to the herein accused-appellant. In People vs. Ramirez, [fn: 69 SCRA 144] we held that a person charged with rape could not be found guilty of qualified seduction, which had not been alleged in the criminal complaint against him. In the case of People vs. Montes, [fn: 122

SCRA 409] the Court did not permit the conviction for homicide of a person held responsible for the suicide of the woman he was supposed to have raped, as the crime he was accused of and acquitted was not homicide but rape. More to the point is Tubb v. People of the Philippines, [fn: 101 Phil. 114] where the accused was charged with the misappropriation of funds held by him in trust with the obligation to return the same under Article 315, paragraph l(b) of the Revised Penal Code, but was convicted of swindling by means of false pretenses, under paragraph 2(b) of the said Article, which was not alleged in the information. The Court said such conviction would violate the Bill of Rights.

By parity of reasoning, Appellant Garcia cannot be convicted of homicide through drowning in an information that charges murder by means of stabbing. Second. Although the prosecution was able to prove that Appellant Garcia assisted in "concealing . . . the body of the crime, . . . in order to prevent its discovery," he can neither be convicted as an accessory after the fact defined under Article 19, par. 2, of the Revised Penal Code. The records show that Appellant Garcia is a brother-in-law of Appellant Ortega, 38 the latter's sister, Maritess, being his wife. 39 Such relationship exempts Appellant Garcia from criminal liability as provided by Article 20 of the Revised Penal Code:
Art. 20. Accessories who are exempt from criminal liability. The penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees with the single exception of accessories falling within the provisions of paragraph 1 of the next preceding article.

On the other hand, "the next preceding article" provides:

Art. 19. Accessories. Accessories are those who, having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners: 1. By profiting themselves or assisting the offender to profit by the effects of the crime. 2. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery. 3. By harboring, concealing, or assisting in the escape of the principal of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime.

Appellant Garcia, being a covered relative by affinity of the principal accused, Benjamin Ortega, Jr., is legally entitled to the aforequoted exempting provision of the Revised Penal Code. This Court is thus mandated by law to acquit him. Penalty and Damages The award of actual damages should be reduced to P31,790.00 from P35,000.00. The former amount was proven both by documentary evidence and by the testimony of Melba Lozano, a sister of the victim. 38 Of the expenses alleged to have been incurred, the Court can give credence only to those that are supported by receipts and appear to have been genuinely incurred in connection with the death of the victim. 39 However, in line with current jurisprudence, 40 Appellant Ortega shall also indemnify the heirs of the deceased in the sum of P50,000.00. Indemnity requires no proof other than the fact of death and appellant's responsibility therefor. 43 The penalty for homicide is reclusion temporal under Article 249 of the Revised Penal Code, which is imposable in its medium period, absent any aggravating or mitigating circumstance, as in the case of Appellant Ortega. Because he is entitled to the benefits of the Indeterminate Sentence Law, the minimum term shall be one degree lower, that is, prision mayor. WHEREFORE, premises considered, the joint appeal is PARTLY GRANTED. Appellant Benjamin Ortega, Jr. is found GUILTY of homicide and sentenced to ten (10) years of prision mayor medium, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal medium, as maximum. Appellant Ortega, Jr. is also ORDERED to pay the heirs of the victim P50,000.00 as indemnity and P31,790.00 as actual damages. Appellant Manuel Garcia is ACQUITTED. His immediate release from confinement is ORDERED unless he is detained for some other valid cause. SO ORDERED. Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 132159 January 18, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CESAR GIVERA y GAROTE, accused-appellant. MENDOZA, J.: This is an appeal from the decision1 of the Regional Trial Court, Branch 102, Quezon City finding accused-appellant Cesar Givera y Garote guilty of murder of Eusebio Gardon y Arrivas and sentencing him to suffer the penalty of reclusion perpetua with the accessory penalties prescribed by law, to indemnify the heirs of the deceased in the amount of P50,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs of the suit.1wphi1.nt The information in this case, dated April 10, 1995, charged as follows: That on or about the 2nd day of May, 1993, in Quezon City, Philippines, the said accused [CESAR GIVERA], conspiring together, confederating with EPEFANIO GAYON y GERALDE2 and ARTURO GAYON y GERALDE, and mutually helping one another who were charged with the same offense at the Regional Trial Court of Quezon City, Branch 104, and docketed as Criminal Case No. Q93-44315, did, then and there, willfully, unlawfully and feloniously, with intent to kill, taking advantage of superior strength, with evident premeditation and treachery, attack, assault, and employ personal violence upon the person of EUSEBIO GARDON y ARRIVAS, by then and there stabbing him with a knife hitting him on the different parts of his body, and striking him with a piece of stone on the head, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his untimely death, to the damage and prejudice of the heirs of EUSEBIO GARDON y ARRIVAS. CONTRARY TO LAW.3 Accused-appellant pleaded not guilty during his arraignment on April 10, 1996, whereupon he was tried. Accused-appellant's companions, namely Epifanio Gayon, Arturo Gayon, and Maximo Givera, were separately prosecuted and found guilty of murder by the Regional Trial Court, Branch 104, Quezon City in a decision, dated June 6, 1994, in Crim. Case No. Q93-44315. The three were sentenced to suffer the penalty of reclusion perpetua with the

accessory penalties prescribed by law, to indemnify the heirs of the deceased the sum of P100,000.00 without subsidiary imprisonment in case of insolvency and to pay the costs of the suit. On appeal to this Court, the decision of the trial court was affirmed with modification. The dispositive portion of the decision reads: WHEREFORE, the judgment appealed from is MODIFIED. We instead find accused-appellants EPIFANIO GAYON, ARTURO GAYON and MAXIMO GIVERA guilty beyond reasonable doubt of MURDER committed with grave abuse of superior strength and imposes upon each of them the penalty of reclusion perpetua with the accessory penalties provided by law, and ordering them to indemnify the heirs of the deceased Eusebio Gardon in the amount of P100,000.00. Costs against accused-appellants.4 For the prosecution, the victim's daughter Milagros Gardon and his niece Melinda Delfin were presented as witnesses. On the other hand, only accused-appellant testified in his defense. The incident took place at about 4 p.m. on May 2, 1993 at Purok IV, Area 5, Laura St., Old Balara, in Diliman, Quezon City. Milagros Gardon testified on direct examination:5 Q: A: Q: A: Q: Particularly about 4:00 p.m., were you at your residence at that time? Yes, sir. And what were you doing there at that time? I was in the house because I was watching my father, sir. What was your father doing at that time?

A: I let him go to sleep because he was a little bit drunk, and I was watching him so that he will not go outside. Q: out? Why do you say you were watching him so that he would not anymore go

A: Because he was warned by [accused-appellant Cesar Givera] that if he goes outside, he will kill my father. Q: At that time and place while you were watching your father, what else happened if any? ....

A:

[O)ur house was being stoned.

Q: Who was stoning your house? Could you tell us who was throwing stones to your house? .... COURT: She mentioned that because her father was not coming out of the house, the accused started stoning the house. Q: A: Q: Who was stoning your house? Cesar Givera, sir. Was he alone at that time?

A: They were in a group, sir, but he was the only one stoning the house. And the other one, who was already arrested, by the name of Onying went inside the house. Q: You said a while ago that there was somebody with Cesar who went to your house, could you recall that somebody? A: Q: A: Onying [Epifanio Gayon], sir. You said he was already "nakakulong"? Yes, sir.

Q: Now, what happened after this person Cesar and the other one Onying went inside the house? A: Onying asked my father to go out of the house while Cesar was stoning the house. Onying led my father out of the house, and when they were already outside, Cesar was waiting for them. Then Cesar scampered away and my father followed him. Cesar caused my father to run after him until they reached the place where there was another person, and that person stabbed my father. Q: A: So how many persons in all have you seen? They were four in all, sir. ....

Q:

What did these 4 persons do when her father was with them if any? ....

A: Cesar was stoning the house. Then Onying got my father from the house. Turing [Arturo Gayon] told the other one to stab my father while the one who stabbed my father was waiting under the bridge. .... Q: A: What happened to your father after you said he was stabbed or mauled? After he was stabbed, the person who stabbed him ran away, sir.

On cross-examination, Milagros Gardon said:6 Q: A: Q: A: Who else were with you at that time? My brother and sister, sir. They were Laura Gardon and Leonardo Gardon, correct? Yes, sir.

Q: And your father inside the house because he was already resting after having been from a drinking spree, correct? A: Yes, sir. .... Q: A: And you were watching TV at that time, correct? Yes, sir.

Q: And then suddenly you heard stones being thrown on the roof of your house, is that correct? A: Yes, sir. .... Q: A: This Onying [Epifanio Gayon] suddenly entered your house, correct? Yes, sir.

Q: A: Q: A:

He was alone when he entered your house, correct? Yes, sir. How did he effect his entrance in your house? He went inside directly, sir. ....

Q: At that time were you in a position so as to see him actually effect his entrance through the front door? A: Q: A: Q: A: Yes, sir. Why? Where were you at that time? I was in the sala, sir. You were in the sala right next to your father, is that correct? Yes, sir.

Q: And likewise with your two other companions Laura and Leonardo, they were situated right near to your father, correct? A: Yes, sir. .... Q: Now, when this Onying entered the house, did he call out the name of your father if you can remember? A: Q: A: Q: Yes, sir. And your father, did he give any response thereto? Yes, sir. What was his response if any?

A: He asked Onying if he need anything. And Onying asked him to go out with him. ....

Q: A:

And your father stood up and joined Onying in going out of the house? Yes, sir. ....

Q: Then you together with your two other companions got back to watching the television show is that correct? A: Q: A: No, sir. But you stayed inside the house, you and your two other companions? No, sir.

Q: Now, thereafter you heard stones thrown again towards your house, is that correct? A: Yes, sir.

Q: But just the same, you did not peep out through any opening of your house for safety? A: We were already outside when they were stoning the house. We followed him outside. .... Q: A: Was Onying also hit by any of those stones? No, sir. Only my father and my sister. .... Q: A: Q: A: Q: A: What is the name of that sister of yours who was also hit? Laura Gardon, sir. And where was Laura hit? At her left shoulder, sir. And how many stones if you know hit Laura? Only one, sir, because while they were stoning they were running away.

Q: A: Q: A:

Who were these people running away? Onying and Cesar, sir. Are you saying that Onying also stoned your father? No, sir.

Q: Because he was right next by your father at that time, that is why he was not at all stoning your father, correct? A: He was boxing him. .... Q: You saw Cesar Givera actually stoning towards the direction of your father, is that what you mean? A: Yes, sir. .... Q: A: Q: A: Q: A: Q: A: Q: And your father followed Cesar Givera, is that what you mean? Yes, sir. Likewise, with Onying, he followed Cesar Givera? Yes, sir. And they ran quite a distance, correct? Yes, sir. And then you lost sight of them yes or no? No, sir. But you stayed in the house, correct?

A: No, sir. I was outside the house. When the incident happened, I was already outside the house. Q: But because you did not state that you also followed your father as he ran after Cesar, does that mean that you just stayed in front of your house?

A: We stopped because we already saw the place where my father was stabbed, that is why we did not follow them. Q: How far did they get, using as reference the front door of your house? How far did they get as they ran away? A: Q: A: Q: A: Q: A: Q: A: Q: A: About fifteen meters away, sir. Did they not turn corners? It is straight, sir. They only made a turn after the stabbing incident, sir. They turned a corner after your father was stabbed? Yes, sir, because they ran away, sir. Only one of the accused stabbed your father, correct? Yes, sir. And who was this? Bingo Givera [Maximo Givera], sir. Did you actually see him stab your father? Yes, sir.

On re-direct examination, Milagros said:7 Q: Madam witness, you said a while ago that you saw while your father was stabbed, and the name of that person is Onying who stabbed your father? A: Maximo Givera, sir. .... Q: Now, when you saw Maximo Givera stab your father, where was Cesar at that time? .... A: He was also at the same place, sir.

Q: And the other 3 accused Arturo Gayon and Efipanio Gayon, could you tell us where they were when Maximo was stabbing your father?

A:

They were also at that place, sir.

Melinda Delfin, niece of the victim, corroborated the testimony of Milagros Gardon. She said:8 Q: At about 4:00 p.m. of May 4, 1993, could you tell us where you were at that time? A: Q: Yes, sir, I was about to reach the house of Eusebio Gardon. What was your purpose in going there?

A: Eusebio Gardon called me up because he has just come from Bicol and he will give me rice. Q: You said you were about to arrive at the residence of Eusebio Gardon at 4:00 p.m. on May 4, 1993, what did you notice or observe when you were about to arrived at that place of his residence? A: I saw "Onying" [Epifanio Gayon] with his hand on the shoulder of Eusebio Gardon going out of their yard. (Nakita ko si Onying akbay akbay si Eusebio Gardon palabas sa bakuran nila.) .... Q: A: What else did you notice? When I came out of the gate I saw Cesar Givera boxed Eusebio Gardon.

(Paglabas ko ng bakuran nakita ko si Cesar na sinalubong ng suntok si Eusebio Gardon.) .... Q: What else did you see aside from the fact that you saw Cesar Givera boxing Eusebio Gardon? A: Cesar boxed him and also Onying boxed him, they both helped each other in boxing Eusebio Gardon, and then they back to the house of Eusebio Gardon and my uncle followed them. Not quite far, Bingo [Maximo Givera] and Turing [Arturo Gayon] were there. ....

Q:

And what happened when you said this Bingo was there?

A: Onying and Cesar gave fistic blows to Eusebio Gardon and he was also stabbed by Bingo, and they were also kicking Eusebio Gardon. Q: A: Q: A: Eusebio Gardon was boxed by Onying and Cesar Givera? Yes, sir. And stabbed by? Bingo, sir.

Q: Actually, how many persons were there when [Eusebio] Gardon was stabbed and being boxed? A: Q: A: I saw four of them, sir. Would you made these four (4)? Turing, Bingo, Cesar and Onying. .... Q: And what happened to Eusebio Gardon, whom you said was boxed, mauled and then stabbed? A: He was lying down under the bridge for about thirty (30) minutes, and then his children arrived. .... Q: You said earlier that you saw Cesar Givera and Epifanio Givera threw stones towards the victim's house, is that true? PROSECUTOR CONCHA: Excuse me, Your Honor, the witness said she saw that fellow by the name of Onying and Cesar boxing --? WITNESS: "Suntok, bato at sipa." ATTY. MASCALAS:

Q: A: Q: A:

Where did you see them doing these acts on Eusebio? Outside the premises, sir. Whose premises? The premises of Eusebio Gardon, sir.

Q: Did you not say earlier that Onying came out with Eusebio Gardon from the latter's house? A: Q: A: I saw Onying, "akbay-akbay niya.." You even saw Onying embracing Eusebio Gardon, correct? Yes, sir. .... Q: A: Q: A: Were there stones being hurled to Onying and Eusebio? Yes, sir. Did you see who were throwing those stones? It was Cesar, sir. .... Q: A: Q: A: Did you see if Gardon was hit by any of these stones? Yes, sir. And you also saw Onying hit by stones, correct? No, sir. .... Q: A: Who boxed your uncle? Cesar, sir.

Q: Are you saying that Cesar while throwing stones to your uncle was so close to him that he was able to box him?

A: Because they were advancing towards my uncle and Onying. They were going towards them. .... Q: And when they were able to come near, how near did Cesar get to your uncle? A: Q: A: Q: A: Maybe three to four meters, sir. That was when Cesar boxed your uncle? Not yet, sir. When did Cesar box your uncle? When they come near to my uncle. .... Q: A: And then Cesar Givera ran away and your uncle gave chase? Yes, sir.

Q: And upon reaching the bridge which is about fifteen (15), meters away from the victim's house, you saw Bingo stabbed your uncle? A: Yes, sir.

Q: There were only You said that there were only four (4) persons in that place where your uncle was stabbed and those persons do not include Milagros Gardon? A: Q: A: No, sir. Because Milagros Gardon was still in their house? She was already outside their house.

Q: She was outside their house -- although outside their house she was still inside the premises of their lot? A: She was still inside, but she saw the incident.

Q: And that premises of the victim was about 15 meters away from the bridge where the alleged incident took place?

A: Q: A:

Yes, sir. Were you also with Milagros Gardon at the time that stabbing was done? We were not together but I was approaching their house. ....

Q: So you were also about 15 meters away from the bridge where the alleged incident took place? A: Yes, sir.

Q: And that is your distance when you were claiming that you saw this incident? A: It was just a little less. (Makalampas lang ng konti). .... Q: It was Turing Gayon [Arturo Gayon] whom you heard shout: "Sige, todasin na yan!" A: Q: A: Yes, sir. And it was Bingo [Maximo Givera] whom you saw stabbed your uncle? Yes, sir. .... Q: You said that it was Bingo who stabbed the victim Eusebio Gardon. You said that you saw it? A: Q: A: Q: A: Yes, sir. What was Cesar Givera doing when the victim was stabbed by Bingo? They were kicking and boxing my uncle. Givera was doing that? I was asking you about Cesar Givera? He was boxing and kicking my uncle.

Q: A:

Who, Eusebio Gardon, the victim? Yes, sir.

To prove the fact and cause of death of Eusebio Gardon, the prosecution presented in evidence the testimony9 of medico-legal officer, P/Maj. Florante Baltazar, given in Criminal Case No. Q-93-44315. The testimony shows that the victim sustained one fatal stab wound possibly caused by a single bladed weapon.10 In addition, he sustained abrasions in his lower chin, possibly hitting a rough surface, as well as an incised wound caused by a bladed weapon, on his posterior middle left arm.11 The stab wound appears to be fatal because it pierced the pericardium and left ventricle of the heart, which could be the immediate effect of hemorrhage, shock and eventual death of the victim.12 A death certificate13 evidencing the death of the victim was presented by the prosecution. Accused-appellant testified in his behalf. He was a resident of Laura St., Old Balara, Quezon City at the time of the incident. He denied any involvement in the killing of the victim who was his relative by affinity.14 Accused-appellant claimed that at the time of the incident on May 2, 1993, at around 4:00 p.m., he was having a drink in his cousin's house, some 30 meters away from the victim's house. On the other hand, Maximo Givera and Arturo Gayon were in the victim's house also having drinks. Accused-appellant said he was fetched by his cousin, Recto Gardon, because Maximo and the victim Eusebio Gardon were having an altercation. He went to pacify the protagonists and then led the victim to his house. Without his knowledge, however, Eusebio went back and again engaged Maximo in a fist fight, as a result of which the victim Eusebio was knocked down. Accused-appellant said he was going to help the victim get up, but he saw the victim's son, Ronilo Gardon, coming with a bolo. He, therefore, ran away and left the victim behind. He added, that he did not see if his three companions did anything more than box the victim.15 Accused-appellant said he learned that the victim had died only two days after the incident.16 Accused-appellant was arrested on May 4, 1996 at the East Avenue Medical Center. He stated that the children of the victim implicated him in the killing of Eusebio Gardon only because he was present when the incident happened.17 On August 29, 1997, the trial court rendered its decision finding accused-appellant guilty of murder. The dispositive portion of its decision reads:18 WHEREFORE, judgment is hereby rendered finding the accused Cesar Givera guilty beyond reasonable doubt of the crime of murder as charged. The accused is hereby sentenced to reclusion perpetua, with the accessory penalties of the law, and to indemnify the heirs of the deceased in the amount of P50,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs.

SO ORDERED. Hence, this appeal. Accused-appellant's sole assignment of error is thatDUE TO THE PRESENCE OF REASONABLE DOUBT, THE COURT A QUO HAS COMMITTED AN ERROR IN CONVICTING THE ACCUSEDAPPELLANT OF THE CRIME CHARGED The appeal has no merit. First. The prosecution presented evidence which shows beyond reasonable doubt that accused-appellant and his companions (Epifanio Gayon, Arturo Gayon, and Maximo Givera), all of whom were convicted of murder in another case, were responsible for the killing of Eusebio Gardon on May 2, 1993. Milagros Gardon's testimony, an excerpt from which is quoted at the beginning of this opinion, is spontaneous, detailed, arid consistent. The defense tried to discredit it through cross examination, but, as shown earlier, the defense only succeeded in enabling her to give further details of her testimony in chief. There are apparent lapses in the testimony of Milagros, as when she testified that she knew at the very beginning, that it was accused-appellant who was stoning their house when in fact, as she admitted, she only knew this because the victim said so. Moreover, it may be doubted whether the victim's other daughter, Laura, was hit by the stones hurled by accused-appellant as she came out of their house, since the door of the house was so narrow that only one person at a time could pass through it. Nonetheless, a close reading of the records will show that indeed it was accused-appellant who was stoning the house because when the witness followed the victim outside, she saw accused-appellant throwing stones at their house. She then saw accused-appellant hitting the victim with stones. In the process, Laura was also hit. In any event, these discrepancies are minor and insignificant and do not detract from the substance of her testimony. This Court has time and again said that a few discrepancies and inconsistencies in the testimonies of witnesses referring to minor details and not in actuality touching upon the central fact of the crime do not impair the credibility of the witnesses. Instead of weakening their testimonies, such inconsistencies tend to strengthen their credibility because they discount the possibility of their being rehearsed testimony.19 Thus, according to Milagros Gardon, accused-appellant taunted the victim and challenged him to come out of the house. After succeeding in drawing the victim out of his house, accused-appellant and his companions ganged up on him, kicking and pummelling him and finally stabbing him. Milagros' testimony belies accused-appellant's claim that he was merely trying to pacify the victim and Maximo Givera and that he ran away because the victim's son, armed with a bolo, charged at him (accused-appellant). There was no reason for the victim's son to want to attack accused-appellant, if the latter was merely trying to help the victim.

Nor is it probable that accused-appellant did not see what his companions did to the victim aside from giving him fist blows and kicks, because according to accusedappellant, he ran away shortly after they had attacked the victim. As accused-appellant said he saw the assailants run way, this could only be after they had been done with their victim. The defense also tries to discredit the testimony of the other prosecution witness, Melinda Delfin. It is contended that, contrary to her claim, she was not really present at the incident. For this purpose, it is pointed out that she failed to give a sworn statement regarding said incident to the police. The contention has no merit. As Melinda explained, she did not give a statement to the police because she was told they would call on her later for her statement. Melinda testified:20 Q: The police did not get your statement because you did not tell them that you were an eyewitness and if it is true, correct? A: No, sir.

Q: You were only asked by your relatives - -You testified in this case in the sala of Judge Asuncion after the children of the victim asked you to? Correct? A: They did not tell me. I voluntarily testified, sir, because I saw the incident.

Q: What do you mean by saying that you voluntarily testified? Did you just come to court and asked the court to take you as witness in this case? A: No, sir, because in the police station the police told me that they will not take my statement. They will just "ihahabol na lang ako." Q: Did you not inquire from them why your statement will not longer be taken and what do you mean by that "ihahabol na lang ikaw"? A: I did not ask because I do not know anything about that. That was the first time that incident happened to my life. It is noteworthy that both Milagros Gardon and Melinda Delfin knew accused-appellant and the other assailants, and that in fact some of them are related to the witnesses. Accused-appellant has not shown that these witnesses were motivated by ill will against him. As correctly observed by the trial court:21 [T]he court has no reason to doubt the testimonies of the prosecution witnesses. In the first place, accused Cesar Givera has not shown any motive on the part of the prosecution witnesses to testify as they did against said accused.

Second, accused Cesar Givera and the other accused in this case are all residing within the vicinity where the crime was committed, and are even related by affinity to the deceased. There is, therefore, no reason to doubt their identification by the prosecution witnesses." All things considered, we think the trial court correctly dismissed accused-appellant's claim and gave credence to the testimonies of the prosecution witnesses. From the fact that the victim died and that accused-appellant and his companions were the last persons seen with the victim before he died, it can be concluded that they are responsible for the victim's death. Second. The allegations of conspiracy in the information have been established. The victim was at home sleeping after coming from a drinking session, when the accusedappellant and his companions stoned his house to force him to come out. When they failed, one of them, Epifanio (Onying) Gayon, went inside the victim's house and told him to come out. Disoriented because he was drunk, the victim went with Onying. Once the victim was outside, accused-appellant pelted him with stones, while Onying started raining fistic blows on him. Then Onying and accused-appellant ran away to lure him to go toward the bridge where the other two, Arturo Gayon and Maximo Givera, were waiting. When the victim reached the place, he was attacked by the gang. He was kicked and boxed by Onying and when Arturo shouted "Sige todasin na yan!," Maximo stabbed the victim. The evidence thus clearly and convincingly shows a coordinated action by the group in the execution of the crime. In conspiracy, it is not necessary to show that all the conspirators actually hit and killed the victim. What is important is that all participants performed specific acts with such closeness and coordination as to unmistakably indicate a common purpose or design to bring about the death of the victim. The act of each conspirator in furtherance of the common purpose is in contemplation of law the act of all. Consonant with this legal principle, accused-appellant is guilty of the crime of murder as if he himself dealt the deathblow that sent the victim to his grave.22 Third. However, evident premeditation cannot be appreciated in this case. Where conspiracy is directly established, with proof of the attendant deliberation and selection of the method, time and means of executing the crime, the existence of evident premeditation can be appreciated.23 But in an implied conspiracy, such as in this case, evident premeditation cannot be appreciated in the absence of proof as to how and when the plan to kill the victim was hatched or what time elapsed before it was carried out, so that it cannot be determined if the accused had "sufficient time between its inception and its fulfillment dispassionately to consider and accept the consequences." There should be a showing that the accused had the opportunity for reflection and persisted in effectuating his criminal design which the prosecution failed to establish in the case at bar.24 Nor can the qualifying circumstance of treachery be taken into account. The trial court held:25

...[T]reachery will also be deduced from the evidence on record. The deceased was unarmed when he was stabbed by on Maximo Givera and boxed and kicked by accused Cesar Givera and two other accused. . . . From the evidence adduced, accused Givera and Epifanio Gayon taunted and provoked the deceased by throwing stones at him and then lured him to run after them towards the bridge where the other accused were lying in wait ready to pounce on the deceased without risk to themselves as the deceased was then defenseless." Treachery is the deliberate and unexpected attack on the victim, without any warning and without giving him an opportunity to defend himself or repel the initial assault. For treachery to be appreciated, it must be shown to be present at the inception of the attack, otherwise, even if present at a subsequent stage, it cannot be considered.26 In the instant case, the victim cannot be said to have been totally oblivious of the impending attack by all the group of accused-appellant. He thus had every opportunity to escape from the attack. In fact, his daughter Milagros testified that prior to the stoning incident, the victim had been threatened with harm by accused-appellant the moment he went out of his house, which is why she stayed beside her father to make sure he did not go out of the house. Indeed, the victim had been forewarned of the danger posed by accused-appellant and his group. Moreover, by coming out of his house and running after two of the assailants, the victim showed that he was prepared for the attack by accused-appellant and his gang and could have been hardly surprised when he was actually attacked. Treachery must be proven by convincing evidence. The fact that the victim may have been surprised because he had not expected that he would be outnumbered when he saw two other attackers waiting for him under the bridge is not sufficient to show that the victim was completely unaware of the attack that might come from his assailants.27 However, the presence of the qualifying circumstance of abuse of superiority was correctly appreciated in this case. The victim was unarmed and was clearly outnumbered by the four assailants, with one of them armed with a knife.28 Fourth. Accused-appellant claims that his arrest at the East Avenue Medical Center on May 4, 1996 was made without a warrant. This is not true. He was arrested by virtue of a warrant issued by the court on April 27, 1995. However, as the records show, the warrant of arrest was returned unserved by the arresting officer on June 7, 1995 as accusedappellant could not be found. He was finally found only on May 4, 1996. Now, no alias warrant of arrest is needed to make the arrest. Unless specifically provided in the warrant, the same remains enforceable until it is executed, recalled or quashed. The ten-day period provided in Rule 113, 4 is only a directive to the officer executing the warrant to make a return to the court.29 At any rate, accused-appellant must be deemed to have waived his right to object thereto because he failed to move for the quashal of the information before the trial court, entered

a plea of not guilty and participated in the trial.30 As this Court has held, any objection involving a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of an accused must be made before he enters his plea, otherwise the objection is deemed waived.31 On the matter of the admissibility of the testimony of the medico-legal taken in the first case, involving the three other accused for the death of the same victim, offered in evidence in the case at bar, this Court must declare the same inadmissible. As correctly contended by the defense, because they did not have the opportunity to cross-examine Dr. Baltazar, his testimony cannot be used in evidence against accused-appellant. Indeed, where the opposing party failed to cross-examine a witness, this Court in several cases held:32 Oral testimony may be taken into account only when it is complete, that is, if the witness has been wholly cross-examined by the adverse party or the right to crossexamine is lost wholly or in part thru the fault of such adverse party. But when cross-examination is not and cannot be done or completed due to causes attributable to the party offering the witness, the uncompleted testimony is thereby rendered incompetent. Still and all the fact and cause of death of the victim had been sufficiently proved by the accounts of the two eyewitnesses, corroborated by the offer in evidence of the death certificate of the victim. Fifth. The award of damages by the trial court, in favor of the victim should be modified. Aside from the award of P50,000.00 as indemnity, the heirs of Eusebio Gardon are entitled to an award of P50,000.00 as moral damages irrespective of proof thereof.33 WHEREFORE, the decision of the Regional Trial Court, Branch 102, Quezon City finding accused-appellant Cesar Givera y Garote, guilty of murder of Eusebio Gardon y Arrivas and sentencing him to suffer the penalty of reclusion perpetua with the accessory penalties prescribed by law is AFFIRMED with the MODIFICATION that, in addition to the amount of P50,000.00 to be paid as indemnity, accused-appellant is hereby ordered to pay to the heirs of Eusebio Gardon amount of P50,000.00 as moral damages, plus the costs of the suit. 1wphi1.nt SO ORDERED. Bellosillo, Quisumbing, Buena, and De Leon, Jr., JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 153559 June 8, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO COMADRE, GEORGE COMADRE and DANILO LOZANO, appellants. DECISION PER CURIAM: Appellants Antonio Comadre, George Comadre and Danilo Lozano were charged with Murder with Multiple Frustrated Murder in an information which reads: That on or about the 6th of August 1995, at Brgy. San Pedro, Lupao, Nueva Ecija, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill and by means of treachery and evident premeditation, availing of nighttime to afford impunity, and with the use of an explosive, did there and then willfully, unlawfully and feloniously lob a hand grenade that landed and eventually exploded at the roof of the house of Jaime Agbanlog trajecting deadly shrapnels that hit and killed one ROBERT AGBANLOG, per the death certificate, and causing Jerry Bullanday, Jimmy Wabe, Lorenzo Eugenio, Rey Camat, Emelita Agbanlog and Elena Agbanlog to suffer shrapnel wounds on their bodies, per the medical certificates; thus, to the latter victims, the accused commenced all the acts of execution that would have produced the crime of Multiple Murder as consequences thereof but nevertheless did not produce them by reason of the timely and able medical and surgical interventions of physicians, to the damage and prejudice of the deceaseds heirs and the other victims. CONTRARY TO LAW.1 On arraignment, appellants pleaded "not guilty".2 Trial on the merits then ensued. As culled from the records, at around 7:00 in the evening of August 6, 1995, Robert Agbanlog, Jimmy Wabe, Gerry Bullanday,3 Rey Camat and Lorenzo Eugenio were having a drinking spree on the terrace of the house of Roberts father, Barangay Councilman Jaime Agbanlog, situated in Barangay San Pedro, Lupao, Nueva Ecija. Jaime Agbanlog was seated on the banister of the terrace listening to the conversation of the companions of his son.4

As the drinking session went on, Robert and the others noticed appellants Antonio Comadre, George Comadre and Danilo Lozano walking. The three stopped in front of the house. While his companions looked on, Antonio suddenly lobbed an object which fell on the roof of the terrace. Appellants immediately fled by scaling the fence of a nearby school.5 The object, which turned out to be a hand grenade, exploded ripping a hole in the roof of the house. Robert Agbanlog, Jimmy Wabe, Gerry Bullanday, Rey Camat and Lorenzo Eugenio were hit by shrapnel and slumped unconscious on the floor.6 They were all rushed to the San Jose General Hospital in Lupao, Nueva Ecija for medical treatment. However, Robert Agbanlog died before reaching the hospital.7 Dr. Tirso de los Santos, the medico-legal officer who conducted the autopsy on the cadaver of Robert Agbanlog, certified that the wounds sustained by the victim were consistent with the injuries inflicted by a grenade explosion and that the direct cause of death was hypovolemic shock due to hand grenade explosion.8 The surviving victims, Jimmy Wabe, Rey Camat, Jaime Agbanlog and Gerry Bullanday sustained shrapnel injuries.9 SPO3 John Barraceros of the Lupao Municipal Police Station, who investigated the scene of the crime, recovered metallic fragments at the terrace of the Agbanlog house. These fragments were forwarded to the Explosive Ordinance Disposal Division in Camp Crame, Quezon City, where SPO2 Jesus Q. Mamaril, a specialist in said division, identified them as shrapnel of an MK2 hand grenade.10 Denying the charges against him, appellant Antonio Comadre claimed that on the night of August 6, 1995, he was with his wife and children watching television in the house of his father, Patricio, and his brother, Rogelio. He denied any participation in the incident and claimed that he was surprised when three policemen from the Lupao Municipal Police Station went to his house the following morning of August 7, 1995 and asked him to go with them to the police station, where he has been detained since.11 Appellant George Comadre, for his part, testified that he is the brother of Antonio Comadre and the brother-in-law of Danilo Lozano. He also denied any involvement in the grenade-throwing incident, claiming that he was at home when it happened. He stated that he is a friend of Rey Camat and Jimmy Wabe, and that he had no animosity towards them whatsoever. Appellant also claimed to be in good terms with the Agbanlogs so he has no reason to cause them any grief.12 Appellant Danilo Lozano similarly denied any complicity in the crime. He declared that he was at home with his ten year-old son on the night of August 6, 1995. He added that he did not see Antonio and George Comadre that night and has not seen them for quite sometime, either before or after the incident. Like the two other appellants, Lozano denied having any misunderstanding with Jaime Agbanlog, Robert Agbanlog and Jimmy Wabe.13

Antonios father, Patricio, and his wife, Lolita, corroborated his claim that he was at home watching television with them during the night in question.14 Josie Comadre, Georges wife, testified that her husband could not have been among those who threw a hand grenade at the house of the Agbanlogs because on the evening of August 6, 1995, they were resting inside their house after working all day in the farm.15 After trial, the court a quo gave credence to the prosecutions evidence and convicted appellants of the complex crime of Murder with Multiple Attempted Murder,16 the dispositive portion of which states: WHEREFORE, in view of the foregoing, judgment is hereby rendered: 1. Finding accused Antonio Comadre, George Comadre and Danilo Lozano GUILTY beyond reasonable doubt of the complex crime of Murder with Multiple Attempted Murder and sentencing them to suffer the imposable penalty of death; 2. Ordering Antonio Comadre, George Comadre and Danilo Lozano to pay jointly and severally the heirs of Robert Agbanlog P50,000.00 as indemnification for his death, P35,000.00 as compensatory damages and P20,000.00 as moral damages; 3. Ordering accused Antonio Comadre, George Comadre and Danilo Lozano to pay jointly and severally Jimmy Wabe, Rey Camat, Gerry Bullanday and Jaime Agbanlog P30,000.00 as indemnity for their attempted murder. Costs against the accused. SO ORDERED. Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. Appellants contend that the trial court erred: (1) when it did not correctly and judiciously interpret and appreciate the evidence and thus, the miscarriage of justice was obviously omnipresent; (2) when it imposed on the accused-appellants the supreme penalty of death despite the evident lack of the quantum of evidence to convict them of the crime charged beyond reasonable doubt; and (3) when it did not apply the law and jurisprudence for the acquittal of the accused-appellants of the crime charged.17 Appellants point to the inconsistencies in the sworn statements of Jimmy Wabe, Rey Camat, Lorenzo Eugenio and Gerry Bullanday in identifying the perpetrators. Wabe, Camat and Eugenio initially executed a Sinumpaang Salaysay on August 7, 1995 at the hospital wherein they did not categorically state who the culprit was but merely named Antonio Comadre as a suspect. Gerry Bullanday declared that he suspected Antonio Comadre as one of the culprits because he saw the latters ten year-old son bring something in the nearby store before the explosion occurred.

On August 27, 1995, or twenty days later, they went to the police station to give a more detailed account of the incident, this time identifying Antonio Comadre as the perpetrator together with George Comadre and Danilo Lozano. A closer scrutiny of the records shows that no contradiction actually exists, as all sworn statements pointed to the same perpetrators, namely, Antonio Comadre, George Comadre and Danilo Lozano. Moreover, it appears that the first statement was executed a day after the incident, when Jimmy Wabe, Rey Camat and Lorenzo Eugenio were still in the hospital for the injuries they sustained. Coherence could not thus be expected in view of their condition. It is therefore not surprising for the witnesses to come up with a more exhaustive account of the incident after they have regained their equanimity. The lapse of twenty days between the two statements is immaterial because said period even helped them recall some facts which they may have initially overlooked. Witnesses cannot be expected to remember all the details of the harrowing event which unfolded before their eyes. Minor discrepancies might be found in their testimony, but they do not damage the essential integrity of the evidence in its material whole, nor should they reflect adversely on the witness credibility as they erase suspicion that the same was perjured.18 Honest inconsistencies on minor and trivial matters serve to strengthen rather than destroy the credibility of a witness to a crime, especially so when, as in the instant case, the crime is shocking to the conscience and numbing to the senses.19 Moreover, it was not shown that witnesses Jimmy Wabe, Rey Camat, Lorenzo Eugenio and Gerry Bullanday had any motive to testify falsely against appellants. Absent evidence showing any reason or motive for prosecution witnesses to perjure, the logical conclusion is that no such improper motive exists, and their testimony is thus worthy of full faith and credit. The trial court is likewise correct in disregarding appellants defense of alibi and denial. For the defense of alibi to prosper, the accused must prove not only that he was at some other place at the time of the commission of the crime but also that it was physically impossible for him to be at the locus delicti or within its immediate vicinity.20 Apart from testifying with respect to the distance of their houses from that of Jaime Agbanlogs residence, appellants were unable to give any explanation and neither were they able to show that it was physically impossible for them to be at the scene of the crime. Hence, the positive identification of the appellants by eyewitnesses Jimmy Wabe, Jaime Agbanlog, Rey Camat and Gerry Bullanday prevails over their defense of alibi and denial.21 It was established that prior to the grenade explosion, Rey Camat, Jaime Agbanlog, Jimmy Wabe and Gerry Bullanday were able to identify the culprits, namely, appellants Antonio Comadre, George Comadre and Danilo Lozano because there was a lamppost in front of the house and the moon was bright.22

Appellants argument that Judge Bayani V. Vargas, the Presiding Judge of the Regional Trial Court of San Jose City, Branch 38 erred in rendering the decision because he was not the judge who heard and tried the case is not well taken. It is not unusual for a judge who did not try a case to decide it on the basis of the record for the trial judge might have died, resigned, retired, transferred, and so forth.23 As far back as the case of Co Tao v. Court of Appeals24 we have held: "The fact that the judge who heard the evidence is not the one who rendered the judgment and that for that reason the latter did not have the opportunity to observe the demeanor of the witnesses during the trial but merely relied on the records of the case does not render the judgment erroneous." This rule had been followed for quite a long time, and there is no reason to go against the principle now.25 However, the trial courts finding of conspiracy will have to be reassessed. The undisputed facts show that when Antonio Comadre was in the act of throwing the hand grenade, George Comadre and Danilo Lozano merely looked on without uttering a single word of encouragement or performed any act to assist him. The trial court held that the mere presence of George Comadre and Danilo Lozano provided encouragement and a sense of security to Antonio Comadre, thus proving the existence of conspiracy. We disagree. Similar to the physical act constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. Settled is the rule that to establish conspiracy, evidence of actual cooperation rather than mere cognizance or approval of an illegal act is required.26 A conspiracy must be established by positive and conclusive evidence. It must be shown to exist as clearly and convincingly as the commission of the crime itself. Mere presence of a person at the scene of the crime does not make him a conspirator for conspiracy transcends companionship.27 The evidence shows that George Comadre and Danilo Lozano did not have any participation in the commission of the crime and must therefore be set free. Their mere presence at the scene of the crime as well as their close relationship with Antonio are insufficient to establish conspiracy considering that they performed no positive act in furtherance of the crime. Neither was it proven that their act of running away with Antonio was an act of giving moral assistance to his criminal act. The ratiocination of the trial court that "their presence provided encouragement and sense of security to Antonio," is devoid of any factual basis. Such finding is not supported by the evidence on record and cannot therefore be a valid basis of a finding of conspiracy. Time and again we have been guided by the principle that it would be better to set free ten men who might be probably guilty of the crime charged than to convict one innocent

man for a crime he did not commit.28 There being no conspiracy, only Antonio Comadre must answer for the crime. Coming now to Antonios liability, we find that the trial court correctly ruled that treachery attended the commission of the crime. For treachery to be appreciated two conditions must concur: (1) the means, method and form of execution employed gave the person attacked no opportunity to defend himself or retaliate; and (2) such means, methods and form of execution was deliberately and consciously adopted by the accused. Its essence lies in the adoption of ways to minimize or neutralize any resistance, which may be put up by the offended party. Appellant lobbed a grenade which fell on the roof of the terrace where the unsuspecting victims were having a drinking spree. The suddenness of the attack coupled with the instantaneous combustion and the tremendous impact of the explosion did not afford the victims sufficient time to scamper for safety, much less defend themselves; thus insuring the execution of the crime without risk of reprisal or resistance on their part. Treachery therefore attended the commission of the crime. It is significant to note that aside from treachery, the information also alleges the "use of an explosive"29 as an aggravating circumstance. Since both attendant circumstances can qualify the killing to murder under Article 248 of the Revised Penal Code,30 we should determine which of the two circumstances will qualify the killing in this case. When the killing is perpetrated with treachery and by means of explosives, the latter shall be considered as a qualifying circumstance. Not only does jurisprudence31 support this view but also, since the use of explosives is the principal mode of attack, reason dictates that this attendant circumstance should qualify the offense instead of treachery which will then be relegated merely as a generic aggravating circumstance.32 Incidentally, with the enactment on June 6, 1997 of Republic Act No. 829433 which also considers the use of explosives as an aggravating circumstance, there is a need to make the necessary clarification insofar as the legal implications of the said amendatory law vis--vis the qualifying circumstance of "by means of explosion" under Article 248 of the Revised Penal Code are concerned. Corollary thereto is the issue of which law should be applied in the instant case. R.A. No. 8294 was a reaction to the onerous and anachronistic penalties imposed under the old illegal possession of firearms law, P.D. 1866, which prevailed during the tumultuous years of the Marcos dictatorship. The amendatory law was enacted, not to decriminalize illegal possession of firearms and explosives, but to lower their penalties in order to rationalize them into more acceptable and realistic levels.34 This legislative intent is conspicuously reflected in the reduction of the corresponding penalties for illegal possession of firearms, or ammunitions and other related crimes under the amendatory law. Under Section 2 of the said law, the penalties for unlawful possession of explosives are also lowered. Specifically, when the illegally possessed explosives are used to commit any of the crimes under the Revised Penal Code, which

result in the death of a person, the penalty is no longer death, unlike in P.D. No. 1866, but it shall be considered only as an aggravating circumstance. Section 3 of P.D. No. 1866 as amended by Section 2 of R.A. 8294 now reads: Section 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows: Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives. The penalty of prision mayor in its maximum period to reclusion temporal and a fine of not less than Fifty thousand pesos (P50,000.00) shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s), rifle grenade(s), and other explosives, including but not limited to "pillbox," "molotov cocktail bombs," "fire bombs," or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person. When a person commits any of the crimes defined in the Revised Penal Code or special law with the use of the aforementioned explosives, detonation agents or incendiary devises, which results in the death of any person or persons, the use of such explosives, detonation agents or incendiary devices shall be considered as an aggravating circumstance. (shall be punished with the penalty of death is DELETED.) xxx xxx x x x.

With the removal of death as a penalty and the insertion of the term "xxx as an aggravating circumstance," the unmistakable import is to downgrade the penalty for illegal possession of explosives and consider its use merely as an aggravating circumstance. Clearly, Congress intended R.A. No. 8294 to reduce the penalty for illegal possession of firearms and explosives. Also, Congress clearly intended RA No. 8294 to consider as aggravating circumstance, instead of a separate offense, illegal possession of firearms and explosives when such possession is used to commit other crimes under the Revised Penal Code. It must be made clear, however, that RA No. 8294 did not amend the definition of murder under Article 248, but merely made the use of explosives an aggravating circumstance when resorted to in committing "any of the crimes defined in the Revised Penal Code." The legislative purpose is to do away with the use of explosives as a separate crime and to make such use merely an aggravating circumstance in the commission of any crime already defined in the Revised Penal Code. Thus, RA No. 8294 merely added the use of unlicensed explosives as one of the aggravating circumstances specified in Article 14 of the Revised Penal Code. Like the aggravating circumstance of "explosion" in paragraph 12, "evident premeditation" in paragraph 13, or "treachery" in paragraph 16 of Article 14,

the new aggravating circumstance added by RA No. 8294 does not change the definition of murder in Article 248. Nonetheless, even if favorable to the appellant, R.A. No. 8294 still cannot be made applicable in this case. Before the use of unlawfully possessed explosives can be properly appreciated as an aggravating circumstance, it must be adequately established that the possession was illegal or unlawful, i.e., the accused is without the corresponding authority or permit to possess. This follows the same requisites in the prosecution of crimes involving illegal possession of firearm35 which is a kindred or related offense under P.D. 1866, as amended. This proof does not obtain in the present case. Not only was it not alleged in the information, but no evidence was adduced by the prosecution to show that the possession by appellant of the explosive was unlawful. It is worthy to note that the above requirement of illegality is borne out by the provisions of the law itself, in conjunction with the pertinent tenets of legal hermeneutics. A reading of the title36 of R.A. No. 8294 will show that the qualifier "illegal/unlawful ...possession" is followed by "of firearms, ammunition, or explosives or instruments..." Although the term ammunition is separated from "explosives" by the disjunctive word "or", it does not mean that "explosives" are no longer included in the items which can be illegally/unlawfully possessed. In this context, the disjunctive word "or" is not used to separate but to signify a succession or to conjoin the enumerated items together.37 Moreover, Section 2 of R.A. 8294,38 subtitled: "Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives", clearly refers to the unlawful manufacture, sale, or possession of explosives. What the law emphasizes is the acts lack of authority. Thus, when the second paragraph of Section 3, P.D. No. 1866, as amended by RA No. 8294 speaks of "the use of the aforementioned explosives, etc." as an aggravating circumstance in the commission of crimes, it refers to those explosives, etc. "unlawfully" manufactured, assembled, dealt in, acquired, disposed or possessed mentioned in the first paragraph of the same section. What is per se aggravating is the use of unlawfully "manufactured or possessed" explosives. The mere use of explosives is not. The information in this case does not allege that appellant Antonio Comadre had unlawfully possessed or that he had no authority to possess the grenade that he used in the killing and attempted killings. Even if it were alleged, its presence was not proven by the prosecution beyond reasonable doubt. Rule 110 of the 2000 Revised Rules on Criminal Procedure requires the averment of aggravating circumstances for their application.39 The inapplicability of R.A. 8294 having been made manifest, the crime committed is Murder committed "by means of explosion" in accordance with Article 248 (3) of the Revised Penal Code. The same, having been alleged in the Information, may be properly considered as appellant was sufficiently informed of the nature of the accusation against him.40

The trial court found appellant guilty of the complex crime of murder with multiple attempted murder under Article 48 of the Revised Penal Code, which provides: Art. 48. Penalty for complex crimes. When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means of committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. The underlying philosophy of complex crimes in the Revised Penal Code, which follows the pro reo principle, is intended to favor the accused by imposing a single penalty irrespective of the crimes committed. The rationale being, that the accused who commits two crimes with single criminal impulse demonstrates lesser perversity than when the crimes are committed by different acts and several criminal resolutions. The single act by appellant of detonating a hand grenade may quantitatively constitute a cluster of several separate and distinct offenses, yet these component criminal offenses should be considered only as a single crime in law on which a single penalty is imposed because the offender was impelled by a "single criminal impulse" which shows his lesser degree of perversity.41 Under the aforecited article, when a single act constitutes two or more grave or less grave felonies the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period irrespective of the presence of modifying circumstances, including the generic aggravating circumstance of treachery in this case.42 Applying the aforesaid provision of law, the maximum penalty for the most serious crime (murder) is death. The trial court, therefore, correctly imposed the death penalty. Three justices of the Court, however, continue to maintain the unconstitutionality of R.A. 7659 insofar as it prescribes the death penalty. Nevertheless, they submit to the ruling of the majority to the effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at bar. Finally, the trial court awarded to the parents of the victim Robert Agbanlog civil indemnity in the amount of P50,000.00, P35,000.00 as compensatory damages and P20,000.00 as moral damages. Pursuant to existing jurisprudence43 the award of civil indemnity is proper. However, the actual damages awarded to the heirs of Robert Agbanlog should be modified, considering that the prosecution was able to substantiate only the amount of P18,000.00 as funeral expenses.44 The award of moral damages is appropriate there being evidence to show emotional suffering on the part of the heirs of the deceased, but the same must be increased to P50,000.00 in accordance with prevailing judicial policy.45 With respect to the surviving victims Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday, the trial court awarded P30,000.00 each for the injuries they sustained.

We find this award inappropriate because they were not able to present a single receipt to substantiate their claims. Nonetheless, since it appears that they are entitled to actual damages although the amount thereof cannot be determined, they should be awarded temperate damages of P25,000.00 each.46 WHEREFORE, in view of all the foregoing, the appealed decision of the Regional Trial Court of San Jose City, Branch 39 in Criminal Case No. L-16(95) is AFFIRMED insofar as appellant Antonio Comadre is convicted of the complex crime of Murder with Multiple Attempted Murder and sentenced to suffer the penalty of death. He is ordered to pay the heirs of the victim the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P18,000.00 as actual damages and likewise ordered to pay the surviving victims, Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday, P25,000.00 each as temperate damages for the injuries they sustained. Appellants Gregorio Comadre and Danilo Lozano are ACQUITTED for lack of evidence to establish conspiracy, and they are hereby ordered immediately RELEASED from confinement unless they are lawfully held in custody for another cause. Costs de oficio. In accordance with Section 25 of Republic Act 7659 amending Article 83 of the Revised Penal Code, upon finality of this Decision, let the records of this case be forwarded to the Office of the President for possible exercise of pardoning power. SO ORDERED. Davide, Jr., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 181084 June 16, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. BARTOLOME TAMPUS1 and IDA MONTESCLAROS, Defendants. IDA MONTESCLAROS, Appellant. DECISION PUNO, C.J.: On appeal is the decision2 of the Court of Appeals, Visayas Station, dated September 29, 2006 in CA-G.R. CR-HC No. 00215. The Court of Appeals affirmed, with modification, the decision3 of the Regional Trial Court of Lapu-lapu City in Criminal Case No. 013324L, finding appellant Ida Montesclaros (Ida) guilty as an accomplice in the commission of rape. The present appeal stems from two criminal cases: (1) Criminal Case No. 013324-L charging Bartolome Tampus (Tampus) and Ida as conspirators in the rape of ABC4 on April 1, 1995 at 4:30 p.m.; and (2) Criminal Case No. 013325-L charging Tampus of raping ABC on April 4, 1995 at 1:00 a.m. The Information5 in each case reads as follows: CRIM. CASE NO. 013324-L6 That on the 1st day of April 1995, at about 4:30 oclock [sic] in the afternoon, in Looc, Lapulapu City, Philippines, within the jurisdiction of this Honorable Court, accused Bartolome Tampus, taking advantage that [ABC] was in deep slumber due to drunkenness, did then and there willfully, unlawfully and feloniously have carnal knowledge with [sic] the latter, who was at that time thirteen (13) years old, against her will, in conspiracy with the accused Ida Montesclaros who gave permission to Bartolome Tampus to rape [ABC]. CONTRARY TO LAW. CRIM. CASE NO. 013325-L7 That on the 3rd day of April, 1995,8 at about 1:00 oclock [sic] dawn, in Looc, Lapulapu City, Philippines, within the jurisdiction of this Honorable Court, the above-named

accused, armed with a wooden club (poras), by means of threat and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with [sic] [ABC], who was at that time thirteen (13) years old, against her will. CONTRARY TO LAW. The offended party, ABC, is the daughter of appellant Ida, and was 13 years old at the time of the incident. Ida worked as a waitress in Bayanihan Beer House in Mabini, Cebu City. On February 19, 1995, Ida and ABC started to rent a room in a house owned by Tampus, a barangay tanod. On April 1, 1995, about 4:30 p.m., ABC testified that she was in the house with Ida and Tampus9 who were both drinking beer at that time. They forced her to drink beer10 and after consuming three and one-half (3 ) glasses of beer, she became intoxicated and very sleepy.11 While ABC was lying on the floor of their room, she overheard Tampus requesting her mother, Ida, that he be allowed to "remedyo"12 or have sexual intercourse with her.13 Appellant Ida agreed and instructed Tampus to leave as soon as he finished having sexual intercourse with ABC. Ida then went to work, leaving Tampus alone with ABC. ABC fell asleep and when she woke up, she noticed that the garter of her panties was loose and rolled down to her knees. She suffered pain in her head, thighs, buttocks, groin and vagina, and noticed that her panties and short pants were stained with blood which was coming from her vagina.14 When her mother arrived home from work the following morning, she kept on crying but appellant Ida ignored her.15 ABC testified that on April 4, 1995 around 1:00 a.m., she was left alone in the room since her mother was at work at the beer house.16 Tampus went inside their room and threatened to kill her if she would report the previous sexual assault to anyone.17 He then forcibly removed her panties. ABC shouted but Tampus covered her mouth and again threatened to kill her if she shouted.18 He undressed himself, spread ABCs legs, put saliva on his right hand and he applied this to her vagina; he then inserted his penis into ABCs vagina and made a push and pull movement.19 After consummating the sexual act, he left the house. When ABC told appellant Ida about the incident, the latter again ignored her.20 On May 4, 1995, after being maltreated by her mother, ABC sought the help of her aunt, Nellie Montesclaros (Nellie). She told Nellie about the rape and that her mother sold her.21 ABC, together with Nellie and Norma Andales, a traffic enforcer, reported the incident of rape to the police. On May 9, 1995, Nestor A. Sator , M.D. (Dr. Sator), head of the Medico-Legal Branch of the Philippine National Crime Laboratory Services, Regional Unit 7, conducted a physical examination of ABC and issued a Medico-Legal Report.22 Dr. Sator testified that the result of his examination of ABC revealed a deep healed laceration at the seven (7) oclock position and a shallow healed laceration at the one (1) oclock position on ABCs hymen. On September 22, 1995, ABC filed two Complaints. She accused Tampus of taking advantage of her by having carnal knowledge of her, against her will, while she was intoxicated and sleeping on April 1, 1995 at 4:30 p.m. She declared in her Complaint that

this was done in conspiracy with accused Ida who gave permission to Tampus to rape her. And again, she stated that on April 3, 1995, she was threatened with a wooden club by Tampus, who then succeeded in having sexual intercourse with her, against her will. Tampus denied raping ABC on April 1, 1995. He claimed that at 4:00 p.m. of April 1, 1995, he left the house to go to the public market of Lapu-lapu City. When he arrived home at 6:00 p.m., ABC and Ida were not there as they usually go to the beer house at 4:00 p.m. or 5:00 p.m.23 He denied forcing ABC to drink beer. He also denied asking Ida to allow him to have sexual intercourse with ABC.24 Appellant Ida also testified that she and ABC left for the beer house at 4:00 p.m. of April 1, 1995 and they came back at 6:00 a.m. the following day.25 She said that she always brought her daughter to the beer house with her and there was never an instance when she left her daughter alone in the house.26 She denied forcing ABC to drink beer at 4:30 p.m. of April 1, 1995, and she denied giving permission to Tampus to have sexual intercourse with ABC.27 Tampus also denied raping ABC on April 4, 1995. He testified that he arrived at the Barangay Tanod Headquarters between 7:00 p.m. and 8:00 p.m. of April 3, 199528 and that his actual duty time shift was from midnight to 5:00 a.m. of April 4, 1995. Guillermo Berdin (Berdin), a defense witness, testified that on April 3, 1995, Tampus reported for duty at the police outpost at 8:00 p.m. and left at 5:00 a.m. of April 4, 1995, as reflected in the attendance logbook. However, on cross-examination, Berdin could not tell whether the signature appearing on the logbook really belonged to Tampus. It was noted by the trial court that the handwriting used by Tampus in the logbook entry on April 2, 1995 is different from his handwriting appearing on April 3, 1995.29 It was also revealed that the house of Tampus is just 500 meters away or just a three-minute walk from the barangay tanod outpost and that the barangay tanod on duty could leave the outpost unnoticed or without permission.30 Agustos B. Costas, M.D.31 (Dr. Costas), the Head of the Department of Psychiatry of the Vicente Sotto Memorial Medical Center, issued a Medical Certification,32 which showed that appellant Ida was treated as an outpatient at the Vicente Sotto Memorial Medical Center Psychiatry Department from November 11, 1994 to January 12, 1995 and was provisionally diagnosed with Schizophrenia, paranoid type. The trial court convicted Tampus of two counts of rape, as principal in Criminal Case No. 013324-L and Criminal Case No. 013325-L. Appellant Ida was found guilty as an accomplice in Criminal Case No. 013324-L. The trial court appreciated in Idas favor the mitigating circumstance of illness which would diminish the exercise of will-power without depriving her of the consciousness of her acts, pursuant to Article 13(9) of the Revised Penal Code.33 The dispositive portion of the trial courts decision states, viz.: WHEREFORE, in the light of the foregoing considerations, the Court finds accused Bartolome Tampus GUILTY BEYOND REASONABLE DOUBT of two counts of rape, as principals [sic], in Criminal Case No. 013324-L and Criminal Case No. 013325-L and he is hereby sentenced to suffer the penalty of Reclusion Perpetua in each of the aforementioned cases.

The Court also finds accused Ida Montesclaros GUILTY BEYOND REASONABLE DOUBT as an accomplice in Criminal Case No. 013324-L, and she is hereby sentenced to suffer the penalty of twelve (12) years and one (1) day to fourteen (14) years, and eight (8) months of Reclusion Temporal. Both accused are hereby ordered, jointly and severally, to indemnify the offended party, [ABC], the sum of P50,000.00 in Criminal Case No. 013324-L. With costs against the accused. SO ORDERED. 34 Pending resolution of the appeal before the Court of Appeals, accused Tampus died on November 16, 200035 and his appeal was dismissed by the Third Division of this Court.36 Thus, the appeal before the Court of Appeals dealt only with that of appellant Ida. The appellate court gave credence to the testimony of ABC and affirmed the trial courts decision with modification. It appreciated the mitigating circumstance of illness in favor of Ida, but found that Ida failed to prove that she was completely deprived of intelligence on April 1, 1995. On the basis of the medical report and the testimony of the attending physician, Idas schizophrenia was determined by both the trial court and the Court of Appeals to have diminished the exercise of her will-power though it did not deprive her of the consciousness of her acts. The dispositive portion of the decision of the Court of Appeals states: WHEREFORE, the instant appeal is DISMISSED for lack of merit. The assailed decision is AFFIRMED with MODIFICATION. Appellant Ida Montesclaros is guilty beyond reasonable doubt as accomplice in the commission of rape and hereby sentenced to suffer the indeterminate penalty of ten (10) years and one (1) day of prision mayor as minimum, to twelve (12) years and one (1) day of reclusion temporal as maximum. Further, she is ORDERED to pay moral damages in the amount of fifty thousand pesos (Php 50,000.00) and exemplary damages in the amount of twenty-five thousand pesos (Php 25,000.00).37 We find the findings of the lower courts to be well-taken. The finding of guilt of Ida as an accomplice in the rape of ABC is dependent on proving the guilt of the principal accused. Upon examination of the records of the case, we agree with the ruling of the trial and appellate courts that the testimony of ABC is clear and straightforward, and is sufficient to conclude that Tampus is guilty beyond reasonable doubt as principal in the rape of ABC, in Criminal Case No. 013324-L, as well as to convict appellant Ida as an accomplice in the same criminal case. The findings of the trial courts carry great weight and respect and, generally, appellate courts will not overturn said findings unless the trial court overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which will alter the assailed decision or affect the result of the case.38 The rule finds an even more stringent application where the said findings are sustained by the Court of Appeals.39

The trial court has carefully scrutinized the testimony of complainant ABC and has given full faith and credence to her testimony. Both the trial and appellate courts found that the rape of ABC by Tampus on April 1, 1995 has been established beyond reasonable doubt. Indeed, it is highly inconceivable for a young girl to impute the crime of rape, implicate her own mother in such a vile act, allow an examination of her private parts and subject herself to public trial if she has not been a victim of rape and was impelled to seek justice for the defilement of her person. Testimonies of child-victims are normally given full credit.40 Tampus was positively identified by ABC as the person who had carnal knowledge of her against her will on April 1, 1995. The denial of Tampus cannot prevail over the positive and direct identification by the victim, ABC. Although ABC was asleep and unconscious at the time the sexual debasement was committed by Tampus, circumstantial evidence established beyond doubt that it is Tampus who raped ABC. Circumstantial evidence is sufficient for conviction if: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.41 In cases like the one at bar, the Court takes into consideration the events that transpired before and after the victim lost consciousness in order to establish the commission of the act of coitus.42 The trial court correctly determined, thus: The prosecution has clearly established by its evidence that accused Bartolome Tampus had carnal knowledge of [ABC] on April 1, 1995 under the circumstance set forth in Article 335 (2) of the Revised Penal Code, as amended; that is, when the woman is deprived of reason or otherwise unconscious. xxxx The Court cannot accept accused Bartolome Tampus defense of denial and alibi. His denial pales in effect against the positive evidence given by [ABC] that he ravished her [on] two occasions. xxxx It is true that in the first incident on April 1, 1995, [ABC] did not see Tampus lie down with her. What she saw was the aftermath of her deflowering upon waking up. Nevertheless, the Court has taken note of the following circumstances: (1) The drinking session where the complainant was forced to drink beer by both accused; (2) The conversation between the two accused when accused Tampus requested accused Ida Montesclaros, and was granted by the latter, permission to have sexual intercourse with the complainant; (3) Accused Tampus and the complainant were the only persons left in the house when Ida Montesclaros went to work after acceding to the request of Tampus; (4) The bloodstained pants, the pain and blood in complainants vagina and the pain in her head, groin and buttocks; (5) The threat made by accused Tampus on the complainant

in the dawn of April 4, 1995 that he would kill her if she would tell about the previous incident on April 1, 1995; and (6) The second incident of rape that immediately ensued. These circumstances form a chain that points to accused Bartolome Tampus as the person who had carnal knowledge of [ABC] when she was asleep in an inebriated condition. 43 After establishing the guilt of Tampus as principal, the trial court then determined the guilt of Ida. Although Ida was charged as a conspirator, the trial court found her liable as an accomplice. The trial court ruled that her act of forcing or intimidating ABC to drink beer and then acceding to the request of co-accused Tampus to be allowed to have sexual intercourse with ABC did not prove their conspiracy.44 Hence, it held that, "[u]ndoubtedly, Ida Montesclaros participated in the commission of the crime by previous acts but her participation, not being indispensable, was not that of a principal. She is liable as an accomplice."45 In her appeal, appellant Ida argued that it is against human nature for a mother to allow her daughter to be raped. She maintained that there was no instance when she left ABC alone in the house. The Court of Appeals dismissed appellant Idas appeal as it also gave credence to the testimony of ABC. In her appeal brief filed before this Court, Ida raises the following assignment of errors: I THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED BARTOLOME TAMPUS OF THE CRIMES OF RAPE DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. II THE TRIAL COURT ERRED IN CONVICTING IDA MONTESCLAROS AS ACCOMPLICE TO THE CRIME OF RAPE DESPITE FAILURE OF THE PROSECUTION TO PROVE HER GUILT BEYOND REASONABLE DOUBT.46 We affirm the trial and appellate courts in ruling that Ida is liable as an accomplice in the rape of her daughter, ABC. Accomplices are persons who, not being included in Article 17 of the Revised Penal Code, cooperate in the execution of the offense by previous or simultaneous acts.47 The following requisites must be proved in order that a person can be considered an accomplice: (a) community of design, i.e., knowing that criminal design of the principal by direct participation, he concurs with the latter in his purpose;

(b) he cooperates in the execution of the offense by previous or simultaneous acts; and, (c) there must be a relation between the acts done by the principal and those attributed to the person charged as accomplice.48 The testimony of ABC establishes that Ida cooperated in the execution of the rape by Tampus when prior to the act of rape by Tampus, she forced ABC to drink beer and she agreed to Tampus request for him to have sexual intercourse with ABC. Idas acts show that she had knowledge of and even gave her permission to the plan of Tampus to have sexual intercourse with her daughter.1avvphi1 During the cross-examination by the defense counsel, Atty. Paulito Cabrera, of witness ABC, she testified that: Q Before this date, April 1, 1995, did you already usually drink beer? A No, sir. Q So, you are telling the Honorable Court that it was only on April 1, 1995 that you first drank beer? A Yes, sir. Q What did you say, you were forced to drink beer? A Yes, sir. Q Who forced you to drink beer in that afternoon of April 1, 1995? A Bartolome Tampus and "Nanay", my mother.49 xxxx Q By the way, your mother proposed to you to drink beer? A Yes, sir. Q Before you concede to her proposition, did you not complain that you had not been used to drinking beer and then, why suddenly, she would let you drink beer at that time? A No, sir. Q Did you not tell her that, "I am not used to drinking beer, so, I would not drink beer"?

A Because the beer was mixed with Coke. Q So, you mean that you also agreed to drink beer at that time? A I just agreed to the proposal of my mother. Q But you never voiced any complaint or any refusal to her at that time? A No, sir because I was afraid that she might maltreat me. Q At that time when she proposed to you to drink beer, was she already threatening to maltreat you if you would not drink that beer? A Not yet. Q And how were you able to conclude that she might maltreat you if you would not drink that beer that she proposed for you to drink? A Because "Nanay" stared at me sharply and she had a wooden stick prepared. Q Are you sure that she was doing that while she was offering the glass of beer to you? A Yes, sir.50 xxxx Q While you were drinking beer, your mother and Bartolome went out of the house and you overheard Bartolome asking or proposing to your mother that he would have sexual intercourse with you which you term in the Visayan dialect "remedyo", Bartolome would want to have a "remedyo" with you. When [sic], particular moment did you allegedly hear this statement, while you were drinking beer or after you had finished drinking beer? A When I was already lying on the floor of the room we were renting.51 xxxx Q And, of course, as you have stated now, it was you, you were quite sure that it was you who was being referred by Bartolome Tampus when he said to your mother in the Visayan dialect that "gusto siya moremedyo nimo", he wants to have sexual intercourse with you? A Yes, sir, but I dont know the meaning of "remedyo". Q At that time, you did not know the meaning of "remedyo"?

A Not yet, sir.52 xxxx Q Was that the very first time that you ever heard of the word "remedyo"? A Yes, sir53 xxxx Q And when your mother came back from work at about 7:00 oclock [sic] in the morning of April 2, 1995, did you not also bother to tell her of what you suspected that something serious or bad had happened to you in the previous day? A Because she already knew, sir. Q How did you know that she already knew? A Because I heard her telling Omeng,54 "After you have sexual intercourse with her, leave her immediately!"55 xxxx Q Considering that you never knew what is the meaning of the word, "remedyo", when your mother arrived in the morning of April 2, 1995, did you not confront your mother, did you not tell her that, "Is this what you mean by "remedyo", as what you had agreed with Bartolome Tampus that he would do something to my genitals? A No sir, because when she arrived, she kept on laughing.56 All the requisites concur in order to find Ida guilty as an accomplice to Tampus in the rape of ABC. The testimony of ABC shows that there was community of design between Ida and Tampus to commit the rape of ABC. Ida had knowledge of and assented to Tampus intention to have sexual intercourse with her daughter. She forced ABC to drink beer, and when ABC was already drunk, she left ABC alone with Tampus, with the knowledge and even with her express consent to Tampus plan to have sexual intercourse with her daughter. It is settled jurisprudence that the previous acts of cooperation by the accomplice should not be indispensable to the commission of the crime; otherwise, she would be liable as a principal by indispensable cooperation. The evidence shows that the acts of cooperation by Ida are not indispensable to the commission of rape by Tampus. First, because it was both Ida and Tampus who forced ABC to drink beer, and second because Tampus already had the intention to have sexual intercourse with ABC and he could have consummated the act even without Idas consent.

The acts of Ida are closely related to the eventual commission of rape by Tampus. They both forced ABC to drink beer; when ABC was already drunk, Tampus asked Ida if he could have sexual intercourse with ABC and Ida gave her consent; and lastly, Ida left ABC alone with Tampus so that he proceed with his plan to rape ABC. Circumstances affecting the liability of the Appellant as an Accomplice We agree with both the trial and appellate courts in their appreciation of the mitigating circumstance of illness as would diminish the exercise of willpower of Ida without depriving her of the consciousness of her acts, pursuant to Article 13(9) of the Revised Penal Code. Dr. Costas testified that Ida was provisionally treated for schizophrenia a few months before the incident, from November 11, 1994 to January 12, 1995. Based on his expert opinion, Ida was not totally deprived of intelligence at the time of the incident; but, she may have poor judgment. On Direct Examination of Dr. Costas by City Prosecutor Celso V. Espinosa, he testified as follows: Q Doctor, taking into consideration your diagnosis, as you said, is provisional, would you say that the patient [sic] totally deprived of intelligence or reason? A Not totally. Q She will be conscious of her acts? A She may be, that is possible, for certain cause. Q And there will be loss of intelligence? A There could be. Q Now, Doctor, she is charged her [sic] as one of the principals in the commission of the crime of rape for having given her daughter to be sexually abused by her co-accused, allegedly convinced by her co-accused on the first day of April, 1995. Now, if she was then under treatment, Doctor, from November 11, 1994 to January 12, 1995, would you say, Doctor, that having taken this diagnosis for [sic] schizophrenic patient, at the time, after January 12, 1995, she must have acted with discernment? A It is possible because you are this kind of mental illness even with the treatment, and even without any medication, it may be what we called spontaneous, really it will get back. Q At that time it will loss the intelligence? [sic] A I think because it might be back, the treatment should be yearly.

Q Doctor, in your opinion, since our office is very much concern [sic] on this, if a person is totally deprived of intelligence, he has still discernment, she is unconscious of her act, she or he may be exempted from any criminal liability, please tell, Doctor, in your personal opinion for the purpose of this proceedings she may be acting with discernment and with certain degree of intelligence? A It is possible but I think of a mother feeding her own daughter to somebody, I think there is a motive, she wants to gain financial or material things from the daughter if no material gain, then perhaps it was borne out of her illness. This is my opinion.57 xxxx Q Doctor, is this schizophrenic person can distinguish the right or wrong? [sic] A If they are in the [sic] state of illness, judgment is impaired to discern between right or wrong. Q In the case of this particular accused, what would you say at the state of her ailment? A When she was brought to the hospital, Your Honor, I think, although the mother alleged that the sickness could be more than one year duration, it is in acute stage because she was allegedly destroying everything in the house according to the mother, so she was in acute stage.58 On cross-examination by Atty. Paulito Cabrera, Dr. Costas testified thus: Q Would you say, Doctor, that that particular ailment of Ida Montesclaros affected her sense of judgment? A I think, so. Q And that being scizophronic [sic] somehow, it has, while in that stage, the patient lost contact with reality? A Yes, that is possible. Q In your opinion, Doctor, granting, for the sake of argument, the alleged accusation against her is true, being an expert on scizophrania, could you tell the Honorable Court as a mother, who would allegedly do such an offense to her daughter, is it still in her sound mind or proper mental sane [sic]? A I think, as I said, one thing to be considered is the motivation if she want [sic] to gain some material things, if not, it is because of her judgment.

Q If she would not gain anything from allowing her daughter allegedly to be rubbished by another person, then there must be something wrong? A There must be something wrong and it came up from scizpphrania. A It is the judgment, in the case of the schizophrenic.59 We have previously held that Schizophrenia may be considered mitigating under Art. 13(9) if it diminishes the exercise of the willpower of the accused.60 In this case, the testimony of Dr. Costas shows that even though Ida was diagnosed with schizophrenia, she was not totally deprived of intelligence but her judgment was affected. Thus, on the basis of the Medical Certification that Ida suffered from and was treated for schizophrenia a few months prior to the incident, and on the testimony of Dr. Costas, Idas schizophrenia could be considered to have diminished the exercise of her willpower although it did not deprive her of the consciousness of her acts. We note that in the case at bar, the undisputed fact that Ida is the mother of ABCwho was 13 years old at the time of the incidentcould have been considered as a special qualifying circumstance which would have increased the imposable penalty to death, under Article 266-B of the Revised Penal Code, viz.: ARTICLE 266-B. Penalties. xxxx The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: 1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim; xxxx Both the circumstances of the minority and the relationship of the offender to the victim, either as the victims parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim, must be alleged in the information and proved during the trial in order for them to serve as qualifying circumstances under Article 266-B of the Revised Penal Code.61 In the case at bar, although the victim's minority was alleged and established, her relationship with the accused as the latter's daughter was not properly alleged in the Information, and even though this was proven during trial and not refuted by the accused, it cannot be considered as a special qualifying circumstance that would serve to increase the penalty of the offender. Under the 2000 Rules of Criminal Procedure, which should be given retroactive effect following the rule that statutes governing court proceedings

will be construed as applicable to actions pending and undetermined at the time of their passage,62 every Information must state the qualifying and the aggravating circumstances attending the commission of the crime for them to be considered in the imposition of the penalty.63 Since in the case at bar, the Information in Criminal Case No. 013324-L did not state that Ida is the mother of ABC, this circumstance could not be appreciated as a special qualifying circumstance. Ida may only be convicted as an accomplice in the crime of simple rape, which is punishable by reclusion perpetua. In any event, Republic Act No. 9346, entitled an "An Act Prohibiting the Imposition of Death Penalty in the Philippines," which was signed into law on June 24, 2006 prohibits the imposition of the death penalty. Civil indemnity imposed against the appellant The dispositive portion of the trial court's decision ordered Tampus and Ida "jointly and severally, to indemnify the offended party, [ABC], the sum of P50,000.00 in Criminal Case No. 013324-L."64 The Court of Appeals, however, did not award any civil indemnity to ABC, and only awarded moral and exemplary damages. We deem it necessary and proper to award ABC civil indemnity of P50,000.00. Civil indemnity ex delicto is mandatory upon finding of the fact of rape. This is distinct from moral damages awarded upon such finding without need of further proof, because it is assumed that a rape victim has actually suffered moral injuries entitling the victim to such award.65 Consistent with prevailing jurisprudence, the victim in simple rape cases is entitled to an award of P50,000.00 as civil indemnity ex delicto and another P50,000.00 as moral damages. 66 However, Tampus civil indemnity ex delicto has been extinguished by reason of his death before the final judgment, in accordance with Article 89 of the Revised Penal Code.67 Thus, the amount of civil indemnity which remains for accomplice Ida to pay is put at issue. It becomes relevant to determine the particular amount for which each accused is liable when they have different degrees of responsibility in the commission of the crime and, consequently, differing degrees of liability. When a crime is committed by many, each one has a distinct part in the commission of the crime and though all the persons who took part in the commission of the crime are liable, the liability is not equally shared among them. Hence, an accused may be liable either as principal, accomplice or accessory. The particular liability that each accused is responsible for depends on the nature and degree of his participation in the commission of the crime. The penalty prescribed by the Revised Penal Code for a particular crime is imposed upon the principal in a consummated felony.68 The accomplice is only given the penalty next lower in degree than that prescribed by the law for the crime committed69 and an accessory is given the penalty lower by two degrees.70 However, a felon is not only criminally liable, he is likewise civilly liable. 71 Apart from the penalty of imprisonment imposed on him, he is also ordered to indemnify the victim and to make whole the damage caused by his act or omission through the payment of civil indemnity and damages.

Civil liability arising from the crime is shared by all the accused. Although, unlike criminal liabilityin which the Revised Penal Code specifically states the corresponding penalty imposed on the principal, accomplice and accessorythe share of each accused in the civil liability is not specified in the Revised Penal Code. The courts have the discretion to determine the apportionment of the civil indemnity which the principal, accomplice and accessory are respectively liable for, without guidelines with respect to the basis of the allotment. Article 109 of the Revised Penal Code provides that "[i]f there are two or more persons civilly liable for a felony, the courts shall determine the amount for which each must respond." Notwithstanding the determination of the respective liability of the principals, accomplices and accessories within their respective class, they shall also be subsidiarily liable for the amount of civil liability adjudged in the other classes. Article 110 of the Revised Penal Code provides that "[t]he principals, accomplices, and accessories, each within their respective class, shall be liable severally (in solidum) among themselves for their quotas, and subsidiarily for those of the other persons liable."72 As courts are given a free hand in determining the apportionment of civil liability, previous decisions dealing with this matter have been grossly inconsistent. In People v. Galapin,73 People v. Continente,74 United States v. Lasada,75 People v. Mobe,76 People v. Irinea,77 People v. Rillorta,78 People v. Cagalingan,79 People v. Villanueva,80 People v. Magno,81 People v. del Rosario,82 People v. Yrat,83 People v. Saul,84 and People v. Tamayo,85 the principal and accomplice were ordered to pay jointly and severally the entire amount of the civil indemnity awarded to the victim. In People v. Sotto,86 the accomplice was ordered to pay half of the amount of civil indemnity imposed by the trial court, while the principal was liable for the other half. In People v. Toring,87 the principal, accomplice and the accessory were made jointly and severally liable for the entire amount of the civil indemnity. In the cases mentioned above, the principal and accomplice were made to pay equal shares of the civil indemnity. This makes the accomplice who had less participation in the commission of the crime equally liable with the principal for the civil indemnity. The degree of their participation in the crime was not taken into account in the apportionment of the amount of the civil indemnity. This is contrary to the principle behind the treble division of persons criminally responsible for felonies, i.e., that the liability must be commensurate with the degree of participation of the accused in the crime committed. In such a situation, the accomplice who just cooperated in the execution of the offense but whose participation is not indispensable to the commission of the crime is made to pay the same amount of civil indemnity as the principal by direct participation who took a direct part in the execution of the criminal act. It is an injustice when the penalty and liability imposed are not commensurate to the actual responsibility of the offender; for criminal responsibility is individual and not collective, and each of the participants should be liable only for the acts actually committed by him.88 The proportion of this individual liability must be graduated not only according to the nature of the crime

committed and the circumstances attending it, but also the degree and nature of participation of the individual offender. In Garces v. People,89 People v. Flores,90 People v. Barbosa,91 People v. Ragundiaz,92 People v. Bato,93 and People v. Garalde,94 the accomplice was held to be solidarily liable with the principal for only one-half (1/2) of the amount adjudged as civil indemnity. In Garces, the accomplice was held solidarily liable for half of the civil indemnity ex delicto but was made to pay the moral damages of P50,000.00 separately from the principal. In Flores, Ragundiaz, Bato, and Garalde, the accomplice was held solidarily liable for half of the combined amounts of the civil indemnity ex delicto and moral damages. In Ragundiaz, the accomplice was also made solidarily liable with the principal for half of the actual damages, and in Garalde the accomplice was also held solidarily liable with the principal for half of the exemplary damages, aside from the civil and moral damages. In these cases, the accomplice was made jointly and severally liable with the principal for only half of the amount of the civil indemnity and moral damages, only for purposes of the enforcement of the payment of civil indemnity to the offended party. When the liability in solidum has been enforced, as when payment has been made, the person by whom payment has been made shall have a right of action against the other persons liable for the amount of their respective shares.95 As against each other, whoever made the payment may claim from his co-debtors only the share that corresponds to each, with interest for the payment already made.96 In these cases, therefore, payment is made by either the principal or the accomplice, the one who made the payment to the victim could demand payment of the part of the debt corresponding to his co-debtor. If for example the principal paid the victim the entire amount of the civil indemnity, he could go against the accomplice for one-fourth (1/4) of the total amount of civil indemnity and damages. The principal was primarily liable for only one-half (1/2) of the total amount of civil indemnity and he was solidarily liable with the accomplice for the other half. Since the principal paid for the half which the accomplice is solidarily liable with, he could claim one-half (1/2) of that amount from the accomplice. Thus, the principal would have become ultimately liable for three-fourths (3/4) of the total amount of the civil indemnity and damages, while the accomplice would have become liable for one-fourth (1/4) of such amount. In People v. Cortes,97 People v. Budol,98 People v. Nulla,99 and People v. Madali,100 the principal was ordered to pay twice the share of the accomplice in the civil indemnity. In Nulla, the Court determined the respective amounts for which the principal, accomplice and accessory were liable for. The principal was ordered to pay P20,000.00, the accomplice was ordered to pay P10,000.00, and the accessory was ordered to pay P2,000.00. Unlike the cases cited above where the principal and accomplice were held solidarily liable for the entire amount of the civil indemnity or half of it, in Nulla, the court particularly determined the amount for which each shall respond. This is consistent with Article 109 and Article 110 of the Revised Penal Code, which require that the courts should determine the amount for which the principals, accomplices and accessories must respond to and upon specifying this amount, the principals are solidarily liable within their class for their quota, the accomplices are solidarily liable among themselves for

their quota and the accessories are solidarily liable for their quota. If any one of the classes is unable to pay for its respective quota, it becomes subsidiarily liable for the quota of the other classes, which shall be enforced first against the property of the principals; next, against that of the accomplices; and lastly, against that of the accessories.101 There are also cases where the principal was ordered to pay more than double the amount that the accomplice is liable for. In Lumiguis v. People,102 the civil liability of P6,000.00 was apportioned as follows: the sole principal was primarily liable for P3,000.00, the four accomplices were primarily liable in solidum among themselves for the other half of the indemnity, or P3,000.00. Thus, each accomplice was answerable for one-fourth (1/4) of P3,000.00 or one-eighth (1/8) of the entire amount of civil indemnity, which is P750.00. Similarly in People v. Bantagan,103 the principal was required to indemnify the heirs of the deceased in the amount of P500.00. In case of his insolvency, his three accomplices should be jointly and severally liable. The three accomplices were jointly and severally liable for the other P500 and in case of their insolvency the principal was secondarily liable for such amount. In People v. Castillo,104 the accomplice was ordered to pay one-fourth (1/4) of the amount of the civil indemnity, while the principal was liable for the remaining three-fourths (3/4). In People v. Cariaga,105 the total amount of indemnity and damages due to the heirs of the victim amounted to P601,000.00. The sole accomplice was ordered to pay P101,000.00 which is roughly one-sixth (1/6) of the entire civil indemnity, while the two principals were ordered to pay the rest of the indemnity and damages amounting to P500,000.00. The cases cited above demonstrate the ad hoc method by which the ratio of shares of the civil indemnity and damages among the principal, accomplice and accessory is determined. Though the responsibility to decide the respective shares of persons liable for a felony is left to the courts, this does not mean that this amount can be decided arbitrarily or upon conjecture. The power of the courts to grant indemnity and damages demands factual, legal and equitable justification, and cannot be left to speculation and caprice. The entire amount of the civil indemnity, together with the moral and actual damages, should be apportioned among the persons who cooperated in the commission of the crime according to the degree of their liability, respective responsibilities and actual participation in the criminal act. Salvador Viada, an authority in criminal law, is of the opinion that there are no fixed rules which are applicable in all cases in order to determine the apportionment of civil liability among two or more persons civilly liable for a felony, either because there are different degrees of culpability of offenders, or because of the inequality of their financial capabilities.106 On this note, he states in his commentaries on the 1870 Penal Code of Spain that the law should leave the determination of the amount of respective liabilities to the discretion of the courts.107 The courts have the competence to determine the exact participation of the principal,

accomplice, and accessory in the commission of the crime relative to the other classes because they are able to directly consider the evidence presented and the unique opportunity to observe the witnesses. We must stress, however, that the courts discretion should not be untrammelled and must be guided by the principle behind differing liabilities for persons with varying roles in the commission of the crime. The person with greater participation in the commission of the crime should have a greater share in the civil liability than those who played a minor role in the crime or those who had no participation in the crime but merely profited from its effects. Each principal should shoulder a greater share in the total amount of indemnity and damages than every accomplice, and each accomplice should also be liable for a greater amount as against every accessory. Care should also be taken in considering the number of principals versus that of accomplices and accessories. If for instance, there are four principals and only one accomplice and the total of the civil indemnity and damages is P6,000.00, the court cannot assign two-thirds (2/3) of the indemnity and damages to the principals and one-third (1/3) to the accomplice. Even though the principals, as a class, have a greater share in the liability as against the accomplice-- since one-third (1/3) of P6,000.00 is P2,000.00, while two-thirds (2/3) of P6,000.00 is P4,000.00-- when the civil liability of every person is computed, the share of the accomplice ends up to be greater than that of each principal. This is so because the two-thirds (2/3) share of the principalsor P4,000.00is still divided among all the four principals, and thus every principal is liable for only P1,000.00. In the case at bar, the trial court ruled that the accomplice is solidarily liable with the principal for the entire amount of the civil indemnity of P50,000.00. This is an erroneous apportionment of the civil indemnity. First, because it does not take into account the difference in the nature and degree of participation between the principal, Tampus, versus the accomplice, Ida. Idas previous acts of cooperation include her acts of forcing ABC to drink beer and permitting Tampus to have sexual intercourse with her daughter. But even without these acts, Tampus could have still raped ABC. It was Tampus, the principal by direct participation, who should have the greater liability, not only in terms of criminal liability, but also with respect to civil liability. Second, Article 110 of the Revised Penal Code states that the apportionment should provide for a quota amount for every class for which members of such class are solidarily liable within their respective class, and they are only subsidiarily liable for the share of the other classes. The Revised Penal Code does not provide for solidary liability among the different classes, as was held by the trial court in the case at bar.lavvphi1 Thus, taking into consideration the difference in participation of the principal and accomplice, the principal, Tampus, should be liable for two-thirds (2/3) of the total amount of the civil indemnity and moral damages and appellant Ida should be ordered to pay one-third (1/3) of the amount. Civil indemnity for simple rape was correctly set at P50,000.00 and moral damages at P50,000.00. The total amount of damages to be divided between Tampus and Ida is P100,000.00, where Tampus is liable for P66,666.67 (which is two-thirds [2/3] of P100,000.00) and Ida is liable for P33,333.33 (which is one-third [1/3] of P100,000.00). This is broken down into civil indemnity of P16,666.67 and moral

damages of P16,666.67. However, since the principal, Tampus, died while the case was pending in the Court of Appeals, his liability for civil indemnity ex delicto is extinguished by reason of his death before the final judgment.108 His share in the civil indemnity and damages cannot be passed over to the accomplice, Ida, because Tampus share of the civil liability has been extinguished. And even if Tampus were alive upon the promulgation of this decision, Ida would only have been subsidiarily liable for his share of the civil indemnity of P66,666.67. However, since Tampus civil liability ex delicto is extinguished, Idas subsidiary liability with respect to this amount is also eliminated, following the principle that the accessory follows the principal. Tampus obligation to pay P66,666.67 his quota of the civil indemnity is the principal obligation, for which Ida is only subsidiarily liable. Upon the extinguishment of the principal obligation, there is no longer any accessory obligation which could attach to it; thus, the subsidiary liability of Ida is also extinguished. On the matter of exemplary damages, we find that exemplary damages were incorrectly awarded by the Court of Appeals. In criminal cases, exemplary damages are imposed on the offender as part of the civil liability when the crime was committed with one or more aggravating circumstances.109 Also known as "punitive" or "vindictive" damages, exemplary or corrective damages are intended to serve as a deterrent to serious wrongdoings, and as a vindication of undue sufferings and wanton invasion of the rights of an injured or a punishment for those guilty of outrageous conduct.110 Exemplary damages may be awarded only when one or more aggravating circumstances are alleged in the information and proved during the trial.111 In the case at bar, no qualifying or aggravating circumstance was appreciated against Ida. Although, the minority of the victim coupled with the fact that the offender is the parent of the victim could have served to qualify the crime of rape, the presence of these concurring circumstances cannot justify the award of exemplary damages since the relationship of the offender, Ida, to the victim, ABC, was not alleged in the Information.112 The minority of the rape victim and her relationship with the offender must both be alleged in the information and proved during the trial in order to be appreciated as an aggravating/qualifying circumstance.113 While the information in the instant case alleged that ABC was a minor during the incident, there was no allegation that Ida was her parent. Since the relationship between ABC and appellant was not duly established, the award of exemplary damages is not warranted. IN VIEW WHEREOF, the Decision of the Court of Appeals, Visayas Station, dated September 29, 2006, in CA-G.R. CR-HC No. 00215, finding appellant Ida Montesclaros guilty beyond reasonable doubt as accomplice in the crime of rape and sentencing her to suffer the indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as maximum, is AFFIRMED with MODIFICATION. Appellant Ida Montesclaros is ORDERED to pay civil indemnity in the amount of sixteen thousand, six hundred sixty-six pesos and sixtyseven centavos (P16,666.67), and moral damages in the amount of sixteen thousand, six

hundred sixty-six pesos and sixty-seven centavos (P16,666.67). The award of exemplary damages is DELETED. SO ORDERED. REYNATO S. PUNO Chief Justice

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 149368 April 14, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. FRANCISCO DACILLO alias DODOY AND JOSELITO PACOT y IBARRA (case provisionally dismissed), accused, FRANCISCO DACILLO alias DODOY, appellant. DECISION CORONA, J.: Before us on automatic review is the decision1 of the Regional Trial Court of Davao City, Branch 31, in Criminal Case No. 45,283-2000 convicting appellant Francisco Dacillo y Timtim alias Dodoy of the crime of murder and sentencing him to suffer the penalty of death. Appellant Dacillo together with Joselito Pacot y Ibarra were indicted for murder in an information that read: The undersigned accuses the above-named accused of the crime of Murder, under Art. 248 of the Revised Penal Code, as amended by R.A. 7659, committed as follows: That on or about February 6, 2000, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned

accused, conspiring, confederating together and helping one another, with treachery and evident premeditation, and with intent to kill, willfully, unlawfully and feloniously attacked, assaulted and stabbed one Rosemarie B. Tallada with a bladed weapon, thereby inflicting upon the latter mortal wounds which caused her death. That the commission of the foregoing offense was attended by the aggravating circumstance of abuse of superior strength. CONTRARY TO LAW.2 The case against appellants co-accused, Joselito Pacot, was provisionally dismissed for lack of sufficient evidence to identify him with certainty. Appellant was arraigned on February 21, 2001 and, assisted by counsel, pleaded not guilty. Pre-trial was conducted on March 1, 2001 and trial ensued thereafter. To establish appellants guilt, the prosecution presented the following witnesses: Charlita Tallada, the victims mother; Patricia Turlao, the victims aunt; appellant Dacillos neighbors, Jovelyn Dagmil, Augusto Cesar Arara, Roche Abregon, Resna Abregon, Allan Castanares, Jupiter Campaner; police officers SPO2 Rodolfo Taburda and SPO1 Avelino Alcobus, and medico-legal officer Dr. Danilo P. Ledesma. The facts, as established by the prosecution witnesses collective testimonies, follow. The victim, seventeen-year-old Rosemarie B. Tallada, was last seen alive at dusk on February 6, 2000, on the bridge near appellants house at Purok No. 3, New Society Village, Ilang, Davao City. Around 7:45 p.m. that evening, witness Jovelyn Dagmil, who was living with her aunt in the house adjacent to appellants, was looking for her cousin when she saw the victim Rosemarie on the bridge. Because it was drizzling, she invited Rosemarie inside their house but the latter declined and told her she was waiting for someone.3 After a while, Jovelyn heard a man inside appellants house calling "Psst, psst . . ." Thinking the call was meant for her, she turned but instead saw Rosemarie walking towards and entering appellants house.4 Not long after Rosemarie went inside the house, a struggle was heard therein. Witnesses Roche and Resna Abregon, who were in the adjacent house singing with a karaoke machine, suddenly felt the floor shaking as if a scuffle was going on at the other side of the wall. The houses were built on stilts above the seashore, adjoining one another with mere wooden partitions in between. Roche Abregon peeped through a hole on the wall and saw appellant and another man grappling with a woman who was gagged with a handkerchief.5 When Roche saw appellant choking the woman, she informed her aunt

about the commotion in appellants house but the aunt brushed it aside as a simple family quarrel.6 For a while they heard the sound of a woman being beaten up. Then everything became quiet. Later that evening, they saw appellant leaving his house.7 The following day, February 7, 2000, at around 8:00 a.m., appellant was seen entering his house carrying lumber and screen.8 He was observed going in and out of his house several times, each time carefully locking the gate as he left.9 At around 9:00 a.m., appellant was seen with ready-mixed cement in a plastic pail and, when asked what he was going to do with the cement, replied that it was for the sink he was constructing.10 Later, appellant entrusted a bag of womans personal belongings to barangay tanod Allan Castaares and told the latter that it belonged to his woman companion. He allegedly could not bring it home because his wife might see them.11 By February 11, 2000, neighbors started smelling the rotten odor of Rosemaries already decomposing body.12 At 5:00 p.m. the same day, witnesses Roche, Resna, and Rachel were gathering seashells under appellants house when they saw droplets of blood and pus dripping from appellants comfort room. They immediately reported it to their aunt who in turn instructed her husband to get a stick and poke the sacks covering the comfort room. However, the husband instead climbed up the house and was greeted by the stink emanating from the corner where he saw a tomb-like structure. They immediately reported the matter to barangay officials who called the police.13 At about 10:00 p.m., policemen arrived at appellants house, accompanied by his wife, and forcibly opened the lock. They proceeded to where the tomb was located. When cracked open, the tomb revealed the decomposing body of a woman.14 The corpse was brought to the Rivera Funeral Parlor where it was identified by the victims mother Charlita Tallada and aunt Patricia Turlao as that of Rosemarie, through the keloid scar on her forearm. Dr. Danilo Ledesma conducted an autopsy on Rosemaries remains. His necropsy report revealed that Rosemarie died from a stab wound in the abdomen. The report further disclosed that she suffered contusions in the anterior chest wall and her right hand; an incised wound on her left middle finger; a stab wound on the left side of the face and fractures on the 2nd, 3rd, 4th, 5th, 6th and 7th ribs on her side.15 Dr. Ledesma testified that the wounds suffered by Rosemarie indicated that she put up a struggle and the wounds were inflicted before her death.16 In his defense, appellant admitted complicity in the crime but minimized his participation. Appellant alleged that he only held down Rosemaries legs to prevent her

from struggling and, after the latter was killed by another man he identified as Joselito Pacot, he encased the corpse in cement. He claimed that Pacot, a co-worker at Davao Union Cement Corporation (DUCC), was looking for a house where he and his girlfriend Rosemarie could spend the night. He offered his brothers house which was under his care. In the evening of February 6, 2000, he and Joselito Pacot brought Rosemarie to the house at Purok No. 3, New Society Village, Ilang, Davao City. After accompanying the couple there, he went home to take supper. Later that evening, he returned to the house with the bottle of Sprite Pacot had ordered. When he arrived, Pacot and Rosemarie were already grappling with each other and Pacot was strangling the girl. He told Pacot to stop but instead of heeding him, the latter ordered him to close the door. Pacot told appellant that he was going to be implicated just the same so he closed the door as ordered and helped Pacot "(hold) the feet of the woman" as "her feet kept hitting the walls."17 The two men stopped only when Rosemarie was already motionless. Pacot wanted to dump the body into the sea but appellant told him it was low tide. Appellant then suggested that they entomb the body in cement for which Pacot gave appellant P500. Pacot left the house at dawn the following day, February 7, 2000. At past 10:00 a.m., appellant brought the concrete mixture and cast the dead body in cement. After finishing the job in the afternoon of that day, appellant reported for work at DUCC. When the body was discovered in the evening of February 11, 2000, appellant immediately left for Cebu City, arriving there the next day, February 12, 2000. He stayed in Cebu City until his arrest the following year. On May 31, 2001, the trial court rendered judgment finding appellant guilty of murder and imposed upon him the supreme penalty of death: WHEREFORE, this Court finds the accused Francisco Dacillo GUILTY beyond reasonable doubt of the crime of MURDER for the death of Rosemarie Tallada, as defined and penalized under Art. 248 of the Revised Penal Code, as amended. Considering the aggravating circumstance of recidivism with no mitigating circumstance to offset the same, he is hereby sentenced to the extreme penalty of DEATH, He is further ordered to indemnify the heirs of the offended party in the amount of P50,000.00, plus the sum of P50,000.00 as moral damages, and the sum of P50,000.00 as exemplary damages. His immediate confinement to the national penitentiary is hereby ordered. Costs de oficio.

SO ORDERED.18 Thus, this automatic review. In his brief, appellant raises the following errors allegedly committed by the trial court: I THE COURT A QUO GRAVELY ERRED IN FINDING THE APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER. II THE COURT A QUO GRAVELY ERRED IN AWARDING THE HEIRS OF THE OFFENDED PARTY THE AMOUNT OF PHP50,000.00, WHICH APPEARS AS PAYMENT FOR ACTUAL DAMAGES.19 Appellant admitted that he had a hand in the killing of Rosemarie but attempted to downgrade his participation in the crime by claiming he only held Rosemaries legs as Pacot was strangulating her. The rule is that any admission made by a party in the course of the proceedings in the same case does not require proof to hold him liable therefor. Such admission may be contradicted only by showing that it was made through palpable mistake or no such admission was in fact made. There was never any such disclaimer by appellant. Moreover, despite appellants self-serving, exculpatory statement limiting his involvement in the crime, all circumstances pointed to his guilt. His declaration faltered in the face of the testimonies of eyewitnesses positively identifying him as one of the two men who were with Rosemarie when she was killed. Witness Roche Abregon pointed to appellant as the one who strangled Rosemarie. He was established to be inside the house at the time the witnesses heard a woman being battered. Thus, assuming for the sake of argument that Pacot was the mastermind, appellants admission that he participated in its commission by holding Rosemaries legs made him a principal by direct participation. Two or more persons taking part in the commission of a crime are considered principals by direct participation if the following requisites are present: 1. they participated in the criminal resolution and 2. they carried out their plan and personally took part in its execution by acts which directly tended to the same end.20 Both requisites were met in this case. Two or more persons are said to have participated in the criminal resolution when they were in conspiracy at the time of the commission of the crime. To establish conspiracy, it is not essential that there be proof of the previous

agreement and decision to commit the crime, it being sufficient that the malefactors acted in concert pursuant to the same objective.21 The prosecution was able to prove appellants participation in the criminal resolve by his own admission that, right after he was told by Pacot to close the door, he held down Rosemaries legs. He was pinpointed as the one who throttled the victim. He admitted that they only stopped when they were sure that Rosemarie was already dead. The two men planned how to dispose of the victims body; it was in fact appellants idea to pour concrete on the body, prevailing over Pacots suggestion to just dump the body into the sea. It was appellant himself who encased the body in cement and made sure that there were no leaks from which foul odor could emanate. He was a conspirator in the killing and, whether or not he himself did the strangling or the stabbing, he was also liable for the acts of the other accused. It is well-settled that a person may be convicted for the criminal act of another where, between them, there is conspiracy or unity of purpose and intention in the commission of the crime charged.22 Conspiracy need not be proved by direct evidence of prior agreement on the commission of the crime as the same can be inferred from the conduct of the accused before, during, and after the commission of the crime showing that they acted in unison with each other pursuant to a common purpose or design.23 We are convinced beyond doubt of the joint and concerted effort between appellant and the man he identified as Pacot in the killing of Rosemarie. Appellant likewise contends that the trial court erred in ruling that the presence of the aggravating circumstance of abuse of superior strength qualified the killing to murder. He contends that the qualifying circumstance of abuse of superior strength was not specifically alleged in the information. Nothing can be farther from the truth. A cursory reading of the information reveals that appellant was sufficiently informed of the charges against him, including the use of superior strength in killing the hapless and defenseless female victim. The aggravating circumstance of abuse of superior strength necessitates a showing of the relative disparity in the physical characteristics of the aggressor and the victim such as age, gender, physical size and strength. We agree with the trial court that the killing of Rosemarie was committed with abuse of superior strength. As found by the court a quo, two grown-up men against a young fragile woman whose ability to defend herself had been effectively restrained revealed a shocking inequality of physical strength. The victim was much weaker in constitution and could not have possibly defended herself from her stronger assailants.24 Such disparity was manifest in the contusions in the chest and hands, wounds on the fingers, a stab wound on the left side of the face and multiple fractures in the ribs of the victim.25 The abuse of superior strength was obvious in the way Rosemarie was mercilessly beaten to a pulp.

The killing of Rosemarie was thus correctly qualified to murder by the abuse of superior strength, a circumstance specifically pleaded in the information and proved beyond reasonable doubt. The Court, however, finds that the trial court erred in imposing the death penalty on the ground that appellant admitted during re-cross examination that he had a prior conviction for the death of his former live-in partner. The fact that appellant was a recidivist was appreciated by the trial court as a generic aggravating circumstance which increased the imposable penalty from reclusion perpetua to death. In order to appreciate recidivism as an aggravating circumstance, it is necessary to allege it in the information and to attach certified true copies of the sentences previously meted out to the accused.26 This is in accord with Rule 110, Section 8 of the Revised Rules of Criminal Procedure which states: SEC. 8. Designation of the offense. - The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. (Emphasis supplied) The aggravating circumstance of recidivism was not alleged in the information and therefore cannot be appreciated against appellant. Hence the imposable penalty should be reduced to reclusion perpetua. Regarding the award of P50,000 as civil indemnity to the heirs of the victim, appellant claims that said amount was awarded by the trial court as payment for actual damages. This claim is misleading. As aptly pointed out by the Solicitor General, the amount was granted by the trial court by way of indemnity ex delicto to compensate for the death of the victim which prevailing jurisprudence fixes at P50,000.27 The award of such indemnity requires no proof other than the death of the victim and the accuseds responsibility therefor.28 The award of P50,000 as moral damages is proper, supported as it was by the testimony of Charlita Tallada, the victims mother, that Rosemaries death caused her immeasurable pain.29 In addition, the Court awards P25,000 in temperate damages, said amount being awarded in homicide or murder cases when no evidence of burial and funeral expenses is presented in the trial court.30 With regard to the award of exemplary damages, the Civil Code of the Philippines provides:

ART. 2229. Exemplary or corrective damages are imposed, by way of example of correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages. ART. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party. In People vs. Catubig,31 we explained that: The term "aggravating circumstances" used by the Civil Code, the law not having specified otherwise, is to be understood in its broad or generic sense. The commission of an offense has a two-pronged effect, one on the public as it breaches the social order and the other upon the private victim as it causes personal sufferings, each of which is addressed by, respectively, the prescription of heavier punishment for the accused and by an award of additional damages to the victim. The increase of the penalty or a shift to a graver felony underscores the exacerbation of the offense by the attendance of aggravating circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal liability which is basically a State concern, the award of damages, however, is likewise, if not primarily, intended for the offended party who suffers thereby. It would make little sense for an award of exemplary damages to be due the private offended party when the aggravating circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or qualifying nature of an aggravating circumstance is a distinction that should only be of consequence to the criminal, rather than to the civil, liability of the offender. In fine, relative to the civil aspect of the case, an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an award of exemplary damages within the unbridled meaning of Article 2230 of the Civil Code. Thus, the award of exemplary damages is warranted under Art. 2230 of the Civil Code in view of the presence of the aggravating circumstance of abuse of superior strength. Imposition of exemplary damages is also justified under Art. 2229 of the Civil Code in order to set an example for the public good.32 For this purpose, we believe that the amount of P25,000 may be appropriately awarded. WHEREFORE, the assailed judgment in Criminal Case No. 45,283-2000 of the Regional Trial Court of Davao City, Branch 31, is hereby AFFIRMED with MODIFICATION. Appellant Francisco Dacillo y Timtim alias Dodoy is declared guilty beyond reasonable doubt of murder as defined and penalized under Article 248 of the Revised Penal Code. There being neither aggravating nor mitigating circumstances, appellant is hereby sentenced to reclusion perpetua and is further ordered to indemnify the heirs of Rosemarie Tallada the sum of P50,000 as civil indemnity, P50,000 as moral damages, P25,000 as temperate damages and P25,000 as exemplary damages.

Costs de oficio. SO ORDERED. Davide, Jr., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Morales, Callejo, Sr., Azcuna, and Tinga JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 146308 July 18, 2002

PEOPLE OF THE PHILIPPINES, appellee, vs. SIXTO PARAGAS Y DELA CRUZ and AMADO PARAGAS y ABALOS, appellants. PANGANIBAN, J.: Under the present Rules on Criminal Procedure, qualifying and aggravating circumstances must be alleged or specified in the Information. Otherwise, even if they are proven, they cannot be appreciated in determining the nature of the crime and imposing the penalty. Statement of the Case For automatic review by this Court is the September 14, 2000 Decision1 of the Regional Trial Court (RTC) of Pasig City, Branch 263, in Criminal Case No. 105201, finding Sixto Paragas y dela Cruz and Amado Paragas y Abalos guilty of murder beyond reasonable doubt and sentencing them to death. The dispositive portion of the Decision reads as follows: "WHEREFORE, the Court finds both the accused Sixto Paragas and Amado Paragas GUILTY beyond reasonable doubt of the crime of MURDER defined and penalized in Art. 248 of the Revised Penal Code, as amended. Accordingly Sixto Paragas and Amado Paragas are hereby sentenced to suffer the penalty of Death.

"Moreover, they are ordered to indemnify, jointly and severally, the heirs of the victim the following: 1. The sum of P50,000.00 for the death of the victim; 2. The sum of P100,000.00 as moral damages. "Costs against the accused."2 Appellants were charged in the Information3 dated March 15,1994, in these words: "That on or about the 4th day of March 1994 in the Municipality of Tag[u]ig, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping and aiding one another, armed with a bladed weapon, with intent to kill and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and stab with said bladed weapon one Ferdinand Gutierrez on the left side of his chest, thereby inflicting upon the latter [a] mortal wound which caused his death."4 Duly assisted by their counsel,5 appellants pleaded not guilty to the charge during their arraignment on April 26, 1994.6 After due trial, the court a quo rendered the assailed Decision. The Facts Version of the Prosecution In its Brief,7 the Office of the Solicitor General (OSG) presents the prosecution's version of the facts as follows: "Ferdinand Gutierrez, single and residing at PNR Site, Bicutan, Metro Manila, operates a watch repair stall at LMR Tenement Market, Taguig, Metro Manila. Appellant Amado Paragas is a market stall owner at the LMR Tenement Market and serves as board director of the Western Vendor Multi-Purpose Cooperative. His co-appellant, Sixto Paragas, is his cousin/caretaker/salesman. Both appellants reside at the LMR Tenement Market, Taguig, Metro Manila which is five (5) minutes away by car from the place where the criminal incident happened. "Prior to the subject incident, co-appellant Sixto filed against witness Lilia Serrano's son, Allan, a complaint for Highway Robbery allegedly committed on January 23, 1994. In relation to this complaint, Ferdinand Gutierrez became a witness for Allan and executed on February 22, 1994 a sworn statement before the Asst. Provincial Prosecutor of Pasig where he attested that Allan was not among those whom Sixto had a fistfight with on January 23, 1994.

"On March 4, 1994, at around 7:30 in the evening, Ferdinand Gutierrez and prosecution witnesses, namely: Robert Venturado, Alejandro Malila, Virgilio Mabbun and Eduardo Peralta, were at the Caltex gasoline station located near the Bliss, FTI Compound, Taguig, Metro Manila. They were waiting for a public transportation. Except for Malila and Mabbun who were co-workers, the rest were strangers to one another. Momentarily, a well-lighted passenger jeepney bound for Tanyag, Taguig, Metro Manila stopped at the gasoline station to pick up passengers. The aforenamed witnesses all boarded the vehicle. Ferdinand Gutierrez and appellants were among the first to board the jeepney. Ferdinand seated himself in the front seat of the vehicle, between the jeepney driver and a lady passenger. On the other hand, co-appellant Sixto, who was wearing short pants, sleeveless shirt and with a towel tied on his forehead sat behind the driver and Ferdinand. Appellant Amado, who was wearing long sleeves sat on the opposite bench, near the rear door of the vehicle. "The jeepney cruised inside the FTI Compound in Taguig for about ten (10) minutes. As they were passing under a bridge, co-appellant Sixto was seen glancing at Amado as if waiting for a response. When appellant Amado nodded his head, his co-appellant Sixto rose from his seat and grabbed Ferdinand by the neck. With his left arm, co-appellant Sixto stabbed Ferdinand on the left chest with a bladed weapon. Thereafter, co-appellant Sixto immediately alighted from the jeepney and fled towards the direction of the LMR Tenement Market. The other passengers namely: Mabbun, Peralta and Venturado, immediately rose from their seats to chase the assailant but they were prevailed upon by appellant Amado to stay put in their places as he told them that he will be the one to chase coappellant Sixto. Appellant Amado directed them to assist and bring the victim to the hospital. However, it was observed that appellant Amado simply walked away and did not run after Sixto. "The jeepney driver, together with Mabbun, Peralta, Malila and Venturado, brought Ferdinand to the Paraaque Medical Center Hospital where he died upon arrival. In his autopsy report, Dr. Antonio Vertido, NBI Medico-Legal Officer stated that the victim died of cardiac tamponade secondary to stab wound in the chest. That same night of March 4, 1994, Malila executed a sworn statement about the incident."8 (Citations omitted) Version of the Defense Resorting to the defense of denial, appellants narrate in their Brief9 their version of the facts as follows: "Accused AMADO PARAGAS expressed absolute disavowal of the crime charged. On May 11, 1994, at around 6:00 o'clock in the morning, he started his routinary chore of vending fruits and vegetables in his stall at the LMR Market, Taguig, Metro Manila, together with his cousin and helper, Sixto Paragas. At around 12:00 noon of the same date, some policemen, led by a certain Graciano

Cangco, invited them for a 'salu-salu' at Block 1. After eating their lunch, the policemen suddenly put handcuffs on their wrists and hit his stomach. Sixto Paragas was likewise hit and kicked by the policeman. The two of them were then brought by the policemen at a police mini-station in Taguig and locked them inside a cell, without showing them any warrant for their arrest nor informing them of its cause. It was only during the night of March 11, 1994 when the jail warden informed them that they were suspects in a stabbing incident that occurred on March 4, 1994. He flatly denied this accusation. "On March 4, 1994, he started his day by vending fruits and vegetables at his stall. At around 4:00 o'clock in the afternoon, he proceeded to a meeting called by his cooperative, the Western Bicutan Multi-Purpose Cooperative, held at the East Service Road, Western Bicutan. The meeting lasted between 4:00 o'clock in the afternoon until 7:30 in the evening and was attended by at least twenty (20) members of the organization, though only about eighteen (18), including himself, had signed the attendance sheet and the minutes of the meeting. Accused Amado Paragas surmised that they were being implicated in the stabbing incident for the reason that the victim, Ferdinand Gutierrez, was a witness for the accused in a criminal case instituted by his cousin and co-accused, Sixto Paragas, against a certain Alan Serrano. "The testimony of accused Amado Paragas as to his whereabouts relative to the time between 4:00 o'clock PM to 7:45 in the evening of March 4, 1994 was corroborated by witness NENITA TUMOL. The said witness is the secretary of the Western Bicutan Vendors Multi Purpose Cooperative where the accused, Amado Paragas, is a Board of Director. On March 4, 1994, Amado Paragas arrived for the meeting of the cooperative at around 4:35 PM. As secretary, she required those present at the said meeting, including Amado Paragas, to sign the attendance sheet. The witness likewise reiterated that Amado Paragas actively participated on the issues being deliberated during the meeting. "The testimonies of the first two witnesses for the defense, relative to the presence of accused Amado Paragas at the meeting of the cooperative, between 4:00 PM to 7:45 PM of March 4, 1994, was further corroborated by FELINO ILAGAN, the chairman of the Western Vendor Multi Purpose Cooperative. The witness further testified that after the adjournment of the meeting at around 7:45 P.M. of March 4, 1994, he, together with the accused Amado Paragas proceeded to the stall of the latter at the LMR Market to further discuss their agenda. There, he saw Sixto Paragas taking care of the stall of Amado Paragas. "Accused SIXTO PARAGAS, testifying on his behalf, corroborated the testimony of co-accused Amado Paragas. Accordingly, on March 11, 1994, at around 10:30 in the morning, a certain Lilia Serrano, together with some companions, approached him while he was peddling fruits at a stall inside the Tenement Market, Taguig, Metro Manila. Mrs. Serrano pleaded [with] him to withdraw a case which he had filed against some of her children. When he replied

that the case was already filed in court, Mrs. Serrano and her companions threatened that they would implicate him in a case, even if he is innocent. The woman's companions, who turned out to be policemen, then invited him to the police precinct near the Tenement Market in the guise of celebrating their Lieutenant's birthday. The policemen, however, prevented him from getting out of the precinct even after he had partook of the food served by the birthday celebrant. A policeman in uniform named Tangco, then came, and frisked and handcuffed him. Queried whether they had a warrant for his arrest, the policemen retorted that he would just be asked questions at the Taguig Municipal Hall, where he was sent inside a cell. At around midnight, he was blindfolded and brought out of the cell. He felt that many people were in the vicinity and that somebody was pointing at him. He then heard somebody says: 'iyan si Sixto Paragas'. He surmised that the voice sounded like that of Lilia Serrano's. The people around him then asked him to admit a murder charge against him and he was beaten for about three (3) hours. "NATIVIDAD LAUREANO, another vendor of the LMR Market, Taguig, Metro Manila, testified that accused Amado Paragas and Sixto Paragas were at their stall from 7:00 AM to 8:00 P.M. of March 4, 1994."10 (Citations omitted) Ruling of the Trial Court The trial court gave full faith and credence to the testimonies of the four (4) prosecution witnesses, who had been aboard the jeepney where the stabbing incident occurred. It ruled that their testimonies had corroborated each other on every material point and clearly established the identities of appellants as the culprits.11 The RTC rejected appellants' alibi, which had failed to show that it was physically impossible for the two to be at the scene of the crime at the time of the stabbing incident. It also concluded that conspiracy could be inferred from their acts. Finally, it held that the prosecution was able to establish the elements of evident premeditation as a qualifying, and treachery as an aggravating, circumstance. Hence, this automatic review.12 Issues Appellants assign three alleged errors for our consideration: "I The Court a quo gravely erred in giving undue credence to the alleged positive identification of the accused by the prosecution witnesses as the perpetrators of the crime charged; "II

The Court a quo gravely erred in finding both the accused guilty of the crime of murder despite the insufficiency of evidence adduced to prove the qualifying circumstances thereto; "III The Court a quo committed a reversible error in not imposing the proper penalty for the crime allegedly proven."13 In sum, the issues boil down to two: (1) sufficiency of the prosecution evidence and (2) proper penalty for the crime proven. The Court's Ruling The appeal is partly meritorious; appellants are guilty of homicide only, not murder. First Issue: Sufficiency of Prosecution Evidence Appellants contend that the RTC erred in giving credence to the identification made by the prosecution witnesses. They argue that since the witnesses had only a fleeting observation of the stabbing incident, the latter could not have positively identified the perpetrators.14 We are not convinced. Well-settled is the rule that the assessment by the trial court of the credibility of witnesses is accorded great respect.15 This is because of its unique opportunity to observe them firsthand and to note their demeanor, conduct and attitude.16 It is aided by various indicia that are not readily apparent from the records: "the candid answer, the hesitant pause, the nervous voice, the undertone, the befuddled look, the honest gaze, the modest blush, or the guilty blanch" reveal if they are telling the gospel truth or just spinning a web of lies.17 Hence, its findings on such matters are binding and conclusive on appellate courts, unless some facts or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted.18 In the present case, the RTC found the testimonies of the four passenger-witnesses to be credible, coherent and straightforward accounts of what had transpired inside the passenger jeepney on the night of March 4, 1994.19 Prosecution Witness Roberto Venturado narrated the circumstances surrounding the stabbing incident as follows: Q Mr. Venturado, do you remember where you were at around 7:30 in the evening of March 4, 1994? A I was at the Caltex on my way home to Bicutan, sir. xxx xxx xxx

Q A Q A Q A

You said you were on your way to your home, why were you there? I was on my way home and the jeepney passed by. When the jeepney passed, what did you do? We rode the jeepney, sir. So that was the jeep that you took on your way home to Bicutan? Yes, sir.

Q While you were on the jeep, do you remember of anything unusual that happened inside? A Q Yes, sir, there is. What was it?

A When the jeepney went around the FTI and when it passed under the bridge, when I was getting my fare from my pocket. Q While you were getting that fare, what happened?

A When I was getting my fare from my pocket, this suspect looked at the back at the side and he nodded his head, 'tumango.' Q After this man who nodded his head or 'tumango' what happened[?]

Atty. Ilagan That's leading, your Honor. COURT Witness may answer. A When the other suspect was 'tumango' to the other suspect, the other suspect suddenly put his arm around the victim's neck. xxx xxx xxx

Q After putting his arm or placed his arm around the neck of the victim, what else happened, if any?

A After putting his arms on the victim, he drew out a bladed weapon and then stabbed the victim. Q A Q A Q A Q Where was the victim seated inside that jeepney? Beside the driver, sir. How far was Sixto Paragas from the victim? Sixto was sitting at the back of the driver. How many times if you know did Sixto Paragas stab the victim? That is the one I do not know, sir. After he stabbed the victim, what happened?

A After stabbing the victim, we were about to run after the suspect and we were about to go down and run after the suspect but Amado Paragas stopped us and told us that he will be the one to run after the suspect. Q So, you mean to say that after stabbing, Sixto Paragas hurried out of the passenger jeep that's why you had to chase him? Atty. Ilagan It's leading your Honor. Q Okay, you said you were to chase Sixto Paragas, where was he when you started to go down and chase and attempted to chase him? A He was a little bit far from the jeepney already when we were about to run after him, sir, when we were stopped by Amado Paragas and said that"wag na raw kaming humabol at siya na lang ang bahala." Q When Amado Paragas stopped you telling you that he will be the one to chase Sixto Paragas, what did you do? A What we did was we just help the victim to the hospital, sir. xxx xxx xxx

Q Did you see what Amado Paragas did after he told you that he will be the one to run after Sixto Paragas?

A He ran after Sixto Paragas but his running was slower than the running of a dog, sir."20 Further, Prosecution Witness Alejandro Malila was certain as to the identities of appellants, as shown during his cross-examination which proceeded in this manner: "Q Would you inform the Honorable Court aside from Mabun, if you come to know the name of the passengers at the back? A Q A Q A Q A Q No, sir. As a matter of fact, you do not/or you did not recognize anyone of them? By name, sir, no, sir. But you saw their faces, is that what you want us to understand? Yes, sir. Because you were looking at them sternly? Yes, sir. Why, do you do that everytime you are riding a jeepney?

A Nakasanayan ko na pon iyon, sir. Kada pagsakay ko ng jeep, tumitingin po ako sa mga pumapasok, at least kung may vacant pa, puwede mong ituro sa kanila po."21 The testimonies of the prosecution witnesses more than sufficiently established the fact of the killing and the identities of the persons responsible therefor.22 First, the witnesses had a clear view of the stabbing incident, because they were seated next to one another while on board a passenger jeepney. Besides, the jeepney was lit, and the light from a Meralco post further illumined the scene.23 As witnesses of violence, their most natural reaction was to strive to look at the appearance of the perpetrators of the crime and observe the manner in which it was committed.24 Most often the faces and the body movements of the assailants create lasting impressions that cannot be easily erased from memory.25 Second, the witnesses' recollections of the specific details of the crime26 -- the fact that the victim was stabbed on the chest, the use of a knife in stabbing him, and the position of the assailant -- were corroborated by the medicolegal's testimony27 and the Autopsy Report.28 A detailed testimony acquires greater weight and credibility when confirmed by autopsy findings.29 In addition, the usually stressful condition of the witnesses can serve as a catalyst for their recollections.30

Third, there is no evidence to indicate that the witnesses for the prosecution were moved by improper motive and, thus, their testimonies are entitled to full faith and credit.31 It is a well-settled rule that the positive identification of the accused -- where categorical, consistent and without any showing of ill motive on the part of the eyewitness testifying on the matter -- prevails over alibi and denial. These lines of defense, if not substantiated by clear and convincing evidence, are deemed to be negative and self-serving.32 Appellants' Alibi Appellant Sixto Paragas insists that he was at the LMR Market, tending the stall of Amado Paragas from 5:00 a.m. to 7:30 p.m. on the day of the stabbing incident.33 The latter claims to have attended a meeting of the Western Bicutan Vendors Multipurpose Cooperative from 4:35 p.m. to 7:45 p.m.34 Basic is the rule that alibi is always viewed with suspicion, because it is inherently weak and unreliable.35 Like denial, it amounts to nothing more than negative and self-serving evidence undeserving of any weight in law.36 Alibi assumes significance or strength only when it is amply corroborated by a credible witness.37 For it to prosper, the accused must be able to prove (a) that they were in another place at the time of the perpetration of the offense, and (b) that it was physically impossible for them to be at the scene of the crime at the time it happened.38 In the case at bar, the alibis of appellants fail to meet the requisites for a valid defense.39 While their presence at another place at the time of the perpetration of the offense was tried to be established by the defense witnesses, the latter failed to raise any scintilla of doubt about the physical impossibility of the former's presence at the locus criminis or its immediate vicinity at the time of the incident.40 In fact, Sixto Paragas admitted that the flea market, where he allegedly was at the time of the incident, was near the Food Terminal Incoporated (FTI) compound -- the crime scene.41 Thus, there still existed the possibility of his leaving the LMR stall and being physically present at the crime scene or its immediate vicinity.42 Amado Paragas, during his cross- examination, likewise admitted that the distance of the FTI complex from the place where the meeting was held was "more or less one kilometer."43 It was therefore not physically impossible for him to be at the locus criminis and then go back to the meeting place.44 Thus, appellants' alibis, being inherently weak, must fail vis--vis the witnesses' confirmation of their presence at the crime scene.45 Between appellants' negative defenses and the witnesses' positive testimonies, there is no doubt that the latter are entitled to credence.46 Second Issue: Crime and Punishment

Evident Premeditation Not Proven Appellants argue further that the RTC erred in appreciating the qualifying circumstance of evident premeditation, which the prosecution had failed to establish.47 We agree. To show the elements of evident premeditation, the trial court held as follows:" A perusal of the statement given by Ferdinand Gutierrez shows that it exculpates the sons of Lilia Serrano from the charge imputed to them by the accused Sixto Paragas. This statement may have impelled the accused to kill the victim so that he may no longer testify in court. The victim gave the statement on February 22, 1994 which the Court infers to be the time when the accused had determined to eliminate his victim. The fact that he was later positively identified as the killer of Mr. Gutierrez indicates that he had clung to his determination to kill him. Considering further that it took the accused thirteen days within which to kill his victim shows that he had sufficient time to reflect on his course of action."48 Like any other circumstance that qualifies a killing as murder, evident premeditation must be established by clear and positive evidence;49 that is, by proof beyond reasonable doubt.50 Essentially, premeditation is present if, during a space of time sufficient to arrive at a calm judgment, cool thought or reflection upon the resolution to carry out the criminal intent precedes the execution of the act51 Indispensable to proving premeditation is showing how and when the plan to kill was hatched or how much time had elapsed before it was carried out.52 The following are the elements of this qualifying circumstance: (1) the time when the accused decided to commit the crime; (b) the overt act manifestly indicating that they clung to their determination; and (c) a sufficient lapse of time between the decision and the execution, allowing the accused to reflect upon the consequences of their act.53 In the case at bar, it cannot be presumed that Sixto Paragas decided to kill the victim when the latter, in his court testimony, exculpated the sons of Lilia Serrano. Premeditation must be based on external acts that are not merely suspicious but also notorious, manifest, evident and indicative of deliberate planning.54 Even assuming that Sixto had intended to commit the crime, no convincing evidence was presented by the prosecution to prove when and how he and Amado had concocted the plan to kill, or clung to their determination to kill, the victim.55 Neither does it appear that their decision to kill prior to the moment of its execution was the result of meditation, calculation, reflection, or persistent attempts.56 Without such evidence, mere presumptions and inferences will not suffice.57 Hence, because the prosecution failed to establish the presence of all the elements of evident premeditation, it cannot be appreciated to qualify the killing as murder.58 Thus, appellants can be convicted of homicide only,59 for which the imposable penalty under the Revised Penal Code is reclusion temporal.60

Conspiracy Proven Conspiracy exists when two or more persons come to an agreement and decide on the commission of a felony.61 Well-settled is the rule that the existence of conspiracy cannot be presumed.62 Thus, like any other element of the crime, it must be established and proven beyond reasonable doubt.63 There is no necessity for direct proof that the coconspirators had a prior agreement to commit the crime; proof that they acted in concert to pursue the same objective is sufficient.64 Thus, criminal conspiracy must be founded on facts, not on mere surmises or conjectures.65 In the instant case, as correctly found by the RTC, the prosecution was able to show that appellants had conspired to kill the victim,66 as shown by the following facts: "First, Sixto glanced at Amado and the two nodded at each other before Sixto stabbed the victim. Second, Amado immediately and successfully prevented the other passengers from pursuing Sixto by volunteering to go after Sixto instead. Third, Mr. Venturado characterized the pursuit made by Amado to be half-hearted while Mr. Peralta testified that both accused were simply walking and not running. Fourth, by their actions, the accused were able to successfully consummate the crime with the least resistance from the other passengers. From these facts, the Court can conclusively infer the presence of a concerted action and a community of interest."67 The foregoing acts of appellants before, during and after the crime clearly indicated joint purpose, concerted action and concurrence of sentiments.68 Since their collective and individual acts demonstrated the existence of a common design for the accomplishment of the same unlawful purpose, conspiracy was evident; thus, all the perpetrators should be held liable as principals.69 All in all, the prosecution satisfied the quantum of evidence required in a criminal prosecution, and the trial court's finding that appellants committed the crime beyond reasonable doubt was indubitable and logical under the circumstances.70 Treachery Improperly Appreciated by the Lower Court Appellants aver that the RTC erred in appreciating the aggravating circumstance of treachery, as it was not alleged in the Information -- either as a qualifying or as an aggravating circumstance. We agree. Under the old Rules on Criminal Procedure, only qualifying circumstances were required to be alleged in the Information. On the other hand, aggravating circumstances, even if not alleged, could still be appreciated except in cases wherein they would result in the imposition of the death penalty.71 However, the 2000 Rules on Criminal Procedure require that both qualifying and aggravating circumstances must be specifically alleged in the Information.72 Sections 8 and 9 of Rule 110 now provide as follows:

"SEC 8. Designation of the offense. The complaint or information shall state the designation of the offense given by statute, aver the acts or omission constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. "SEC. 9. Cause of the accusation.- The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment." Even if treachery were duly established by the prosecution, it cannot be held to qualify or aggravate the offense charged because it was not alleged in the Information.73 This principle is now applicable to all criminal cases, not only to those in which aggravating circumstances would increase the penalty to death.74 The Information in the present case did not allege the presence of treachery. Hence, this circumstance cannot be appreciated in determining the crime committed and the penalty to be imposed. Article 249 of the Revised Penal Code prescribes reclusion temporal as the penalty for homicide. There being no aggravating or mitigating circumstance, the imposable penalty on appellants is the medium period, pursuant to Article 64(1) of the same Code; or 14 years, six (6) months and one (1) day to 17 years and four (4) months. Applying the Indeterminate Sentence Law, the penalty imposable is six (6) years and one (1) day of prision mayor medium, as the minimum penalty; to 14 years, eight (8) months and one (1) day of reclusion temporal medium, as maximum penalty. WHEREFORE, the Decision of the RTC of Pasig City (Branch 263) is MODIFIED. Appellants are CONVICTED of homicide and SENTENCED to suffer the indeterminate sentence of six (6) years and one (1) day of prision mayor medium, as minimum; to 14 years, eight (8) months and one (1) day of reclusion temporal medium, as maximum. They are also ORDERED TO PAY the heirs of the victim the amount of P50,000 as indemnity ex delicto and another P50,000 as moral damages pursuant to current jurisprudence.75 No pronouncement as to costs. SO ORDERED. Davide, Jr.*, Bellosillo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, and Corona, JJ., concur.

EN BANC [G.R. No. 139185. September 29, 2003] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFONSO RIVERA @ Ponso and TEDDY RIVERA (At large), accused-appellants. [1]
1

DECISION PUNO, J.: One shot in Jonnifer Losarias head turned what would have been an evening of fun and drinks into a night of horror and death. On April 24, 1998, an information for Murder was filed against the accused Alfonso Rivera and Teddy Rivera, viz: That on or about the 19th day of October, 1997, in the evening, in Barangay Dumga, Municipality of Makato, Province of Aklan, Republic of the Philippines, and within the jurisdiction of the Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with treachery and evident premeditation, without just motive, with intent to kill one Jonnifer T. Losaria, and armed with a gun, did then and there willfully, unlawfully and feloniously attack, assault and wound said JONNIFER T. LOSARIA, thereby inflicting upon the latter mortal wound, to wit: HEENT: (+) gunshot wound, head Point of Entry: x , temporal area, left Point of Exit: None Note: One deformed slug was recovered beneath the scalp, parietal area, right. As per certification of Dr. Rane L. Tabanar, M.D., Municipal Health Officer, Makato, Aklan, herein attached, which wound directly caused the death of the said Jonnifer T. Losaria. That as a result of the criminal acts of the accused, the heirs of the victim suffered actual and compensatory damages in the amount of FIFTY THOUSAND PESOS (P50,000.00). CONTRARY TO LAW. [2]
2

As the accused Teddy Rivera was at large, only the accused-appellant Alfonso Rivera was arraigned. He entered a plea of not guilty.

1 2

The lone eyewitness for the prosecution was Renato Losaria, younger brother of the victim, Jonnifer Losaria. Renato lives with his parents-in-law at Dumga, Makato, Aklan, while Jonnifer lives in the Losaria abode. Both of them are tricycle drivers. At about 5:00 p.m. on October 19, 1997, Renato was in his parents-in-laws house. Renato was standing at the balcony, waiting for Jonnifer to pass by to tell him that Junior Casimero whom he was supposed to fetch in the nearby Casimero residence had already left at about 4:30 p.m. The two were going to drink tuba together. At about 6:00 to 7:00 p.m., Renato saw Jonnifer on his tricycle parked in front of Casimeros house, about ten arms length from the house of Renatos parents-in-law. Renato headed towards their gate to go to Jonnifer and tell him that Junior already went ahead. But when Renato was already outside the gate, the accused Teddy Rivera and his younger brother Alfonso Rivera, the appellant, suddenly appeared on a motorcycle, coming from the direction of Tangalan to Numancia, or behind Jonnifer. Appellant was the driver while Teddy was the back passenger. The Riveras slowed down in front of the Casimero abode, and upon reaching the left side of Jonnifer, Teddy crossed his arms, left over right, and at a distance of three feet shot Jonnifer once using a 0.38 caliber revolver. Jonnifer, still on his tricycle and holding the handle bars, was shot on the left temple. Renato is familiar with a 0.38 caliber revolver as this is used by the police. The Riveras then sped away. It was about 6:20 p.m. Renato saw the shooting incident as he was just about ten meters in front of Jonnifer and the accused Riveras and the place was illuminated by the street light. Afraid that he might also be shot, Renato hid behind the banana trees near the road. When the Rivera brothers left, Renato went to Jonnifer and checked if he could still be brought to the hospital, but he was already dead. Renato is unaware of the reason why his brother was shot. He knows the accused Riveras as they are his friends. The police investigated Renato. He executed an affidavit [3] regarding the shooting incident and affirmed its execution and contents during his testimony. He also identified appellant during his testimony. [4]
3 4

SPO2 Ferdinand Relayson corroborated Renatos testimony. He has been a PNP officer in the Makato Police Station since July 1991. At the time of the shooting incident, he was an investigator at the station. He is also a resident of Makato, Aklan. On October 19, 1997, at around 6:25 p.m., Barangay Kagawad Edwin Torrenueva of Barangay Dumga reported the shooting incident to Relayson. He entered the report in the police blotter. He and some companions, including Chief of Police Senior Inspector Rey Tang, proceeded to the crime scene and arrived there at about 6:30 p.m. There were many people gathered around the body of the victim. The police team investigated several people therein, among which was Renato Losaria. The latter told them that he witnessed the crime and that the perpetrators rode a motorcycle. They asked him the name of the assailants and he answered that he was not sure of their names, but was certain that he could identify them. Relaysons team also gathered from the residents of the barangay that the suspects went towards Makato. They went after the Rivera brothers. Upon arrival at the Makato public market, they learned from some tricycle drivers that a motorcycle passed the national road towards Numancia. By nighttime, they were able to 3 4

talk to one of the tricycle drivers, Juanito Baylon, who informed them that somebody asked him earlier that day if he knew the residence of Jonnifer Losaria. Pursuing the lead the police team gathered, Relayson invited the Rivera brothers for identification of the witnesses about two days after the shooting incident. Only the appellant Alfonso Rivera went to the station. Renato Losaria and Juanito Baylon were present. When the appellant was seated at the complaint desk, Losaria identified appellant as one of the two assailants. Baylon also identified appellant as the person who inquired about Jonnifer Losaria on the day he was killed. Appellant was identified not in a police line-up or with other persons, contrary to the police stations standard operating procedure in the identification of suspects. Relayson neither took appellants statement nor did he arrest him after the identification. Instead, he was made to go home. Relayson also took possession of a slug [5] which was turned over one day after the shooting incident by the Rural Health Physician, Dr. Rane Tabanar. He examined the body of Jonnifer Losaria. About a month after the shooting incident, or on November 20, 1997, Relayson took Baylons and Losarias statements regarding the incident. He then prepared a complaint and explained that he did not immediately file the complaint because one of the witnesses, Renato Losaria, was still busy with the wake of his brother, Jonnifer Losaria. Relayson also prepared a sketch of the crime scene. [6]
5 6

Dr. Rane Tabanar, Rural Health Physician of Makato Rural Health Unit and a resident of Poblacion, Makato, autopsied the body of Jonnifer Losaria on October 20, 1997 upon request of the Makato Police Station. He reduced his findings into a report [7] and indicated in a sketch of a human body the location of the gunshot wound on the left temporal area. [8] The cause of the victims death was cardio-respiratory arrest secondary to hemorrhagic shock, secondary to gunshot wound. With this wound, there was no chance for the victim to have survived. Dr. Tabanar did not notice any powder burn or contusion mark at the point of entry of the bullet. There was no point of exit. Dr. Tabanar recovered a slug beneath the victims scalp, parietal area, and turned this over to the police on October 20, 1997 after the post-mortem examination. In his opinion, the gunman was on the left side of the victim, approximately more than or about one meter.
7 8 9

[9]

Juanito Baylon, a tricycle driver and resident of Dumga, Makato, testified that on October 19, 1997, at around 6:00 p.m., he was driving his tricycle towards Barangay Cabatanga, Makato, Aklan to burn rice stalks. On his way there, two men on a black Yamaha motorcycle stopped him. They came from the opposite direction. The driver asked Baylon if he knew Jonnifer Losaria. Baylon saw the two men clearly as he was about only one meter away from them and there was still light coming from the sun. He did not see, however, the face of the back passenger as he was facing sideways and Baylons attention was focused on the driver who was talking to him. He did not know their 5 6 7 8 9

names; it was the first time he met them. Later, when he returned home from Barangay Cabatanga, he passed the crime scene at about 7:00 p.m. Chief of Police Rey Tang was there. Baylon told Tang about the two men who had earlier asked him about the victim. About three days after the shooting incident, the police invited Baylon to the police station to identify the suspect. When he met appellant Alfonso Rivera, he immediately told the police that he was the person who asked him about Jonnifer Losaria. The police did not present other suspects with appellant. After identifying him, Baylon learned from a policeman that his name was Alfonso Rivera. On November 20, 1997, he executed an affidavit in relation to the shooting incident. [10] He identified the appellant in open court. [11]
10 11

The defense foisted the defense of alibi. Arlenie Villanueva, a resident of Navitas, Numancia, Aklan since birth, testified. He is the neighbor of the accused Riveras. On October 19, 1997, Villanueva was in Merlinda Riveras house, hauling gravel, sand and water to mix with cement. He was working with Joel, Joe, Rowen, Harry, Pabling and the appellant Alfonso Rivera. They started working at 7:00 a.m. and finished at 4:30 p.m. Upon finishing their work, they washed up and rested, then drank one container of tuba and Tanduay Rhum. They finished drinking at about 10:00 p.m. The whole time, from 7:00 a.m. to 10:00 p.m., the appellant did not leave the group. At past 10:00 p.m., Villanueva went home as he was already dizzy. Appellant was left in the house. As a resident of Navitas since birth, Villanueva testified that neither appellant nor his parents owned any kind of motorcycle. Nobody in Navitas, he said, owned a black motorcycle. The other accused, Teddy Rivera, was not in Aklan at that time. He was employed in the Philippine Army and was assigned in Nueva Ecija. [12]
12

John Donald Ili, Sangguniang Kabataan (SK) Chairman of Navitas, Numancia, Aklan since June 1996, also took the witness stand. He has known the appellant Alfonso Rivera since 1985 when he (Ili) started living in Navitas. He does not know the victim, Jonnifer Losaria. On October 19, 1997, the SK sponsored a basketball tournament in Navitas in preparation for the forthcoming fiesta on October 24, 1997. The tournament was scheduled to start at 6:00 p.m. At about 5:45 p.m., he looked for some barangay tanods to maintain peace and order during the game. He found some in the house of Merlinda Rivera, the appellant Alfonso Riveras mother. They were having a drinking spree with appellant. He approached the tanods and told them to report to duty at the plaza. Only one reported for duty, but the rest assured him that they would follow. Ili then went back to the plaza. Ili does not know the distance between the crime scene and the house of Merlinda Rivera, thus he could not tell whether the appellant was in the crime scene at the time Jonnifer Losaria was killed. He did not execute an affidavit regarding the whereabouts of the appellant on October 19, 1997 and was asked by Merlinda Rivera to testify only two days 10 11 12

before she took the witness stand. She asked him to tell the truth that he knew appellant was in Merlindas house at the time of the shooting incident. When the prosecutor asked Ili why Merlinda was aware that Ili knew appellant was not involved in the killing of Jonnifer, Ili answered that Merlinda saw him when he went to Merlindas residence. Upon clarification of the court, he testified that he did not see Merlinda in her residence when he was there. [13]
13

Finally, the appellant Alfonso Rivera testified. He is a businessman and resident of Navitas, Numencia, Aklan. He lives in the house of his mother, Merlinda Rivera. He knows the victim, Jonnifer Losaria, as he is a friend of his elder brother, his co-accused Teddy Rivera who has been with the 7th Infantry Division stationed at Fort Ramon Magsaysay in Palayan City, Nueva Ecija even before the shooting incident. When the accused Teddy Rivera takes a vacation in Navitas, Jonnifer pays a visit in the Rivera abode. The last time Teddy was in Navitas prior to the shooting incident was on October 5, 1997. He stayed for only two days with his wife and three children, then left with his wife for La Carlota, Bacolod City. The appellant denied the accusation against him. At about 6:20 p.m. on October 19, 1997, he was at home in Navitas, Numancia, Aklan. He was helping out in the construction of his mothers kitchen with some companions, namely, Pabling, Harry, Joel, Joe, and Arlenie Villanueva, in the spirit of bayanihan. The group started working at about 7:00 a.m. and finished at 4:30 p.m. Thereafter, they took a rest, washed up and drank liquor until 10:00 p.m. He then took a rest. Three days after, or on October 22, 1997, the Numancia police summoned him to the police station. He was not told of the reason for the invitation and when he arrived in the station, he was told to wait for a police officer from Makato. When the latter did not arrive, he was told to go home at about noontime. The following day or on October 23, 1997, the Makato police summoned him to the station. The police asked him his whereabouts on the day of the killing and he said that he was working in their house. While he was being questioned, Renato Losaria and Juanito Baylon arrived. Appellant did not know the two. A policeman put his hand on appellants shoulder and asked the two if he was the one involved in the killing of Jonnifer Losaria. The two looked at each other, then went out. Afterwards, they were told to go home. Neither appellant nor his co-accused brother or parents own a motorcycle. His relative, Noel Castillo, owns a motorcycle but it is not black. Both appellant and accused Teddy Rivera know how to drive a motorcycle. Alfonso does not know the location of Barangay Dumga, the scene of the crime, but knows where Barangay Cabatanga is because his wife has an aunt there. However, on questions by the trial judge, Alfonso declared that Barangay Dumga is about ten kilometers away from Navitas where he claims to have been at the time of the killing. Riding a motorcycle on average speed, the distance could be traversed in twenty minutes. A portion of the road connecting Navitas and Numancia is rough while another portion is asphalted. To prove that the accused Teddy Rivera was not in Aklan at the time of the killing, the defense presented to the court the mission order of the accused Teddy Rivera dated 13

October 4, 1997 authorizing him to proceed to La Carlota, Bacolod City [14] and a certification dated November 24, 1998 issued by Mess Sgt. Arturo Sabado stating that Teddy Rivera has been dropped from his mess effective October 5, 1997 to October 15, 1997 and assumed his mess upon reporting on October 16, 1997. Attached to the certification was the daily disposition of troops stating that on October 16, 1997, the accused Teddy Rivera was included in his daily disposition of troops. [15] Merlinda Rivera secured the documents from the accused Teddy Rivera. Appellant Alfonso Rivera executed an affidavit relating his version of the case. [16]
14 15 16

The trial court upheld the prosecution and convicted the appellant Alfonso Rivera, viz: WHEREFORE, the Court finds the accused ALFONSO RIVERA Y URETA alias Ponso GUILTY beyond reasonable doubt of MURDER and hereby imposes upon him the penalty of DEATH. Further, the Court hereby orders the said accused to pay to the heirs of the victim Jonnifer T. Losaria, the amount of P50,000.00 as indemnity for the death of the latter. Furthermore, the Court hereby orders that the case filed herein against the accused Teddy U. Rivera, who, up to this point, is still at large, be ARCHIVED, [17] without prejudice to its revival upon his apprehension.
17

With COSTS against the accused. SO ORDERED.

18

[18]

Hence this automatic review where the appellant Alfonso Rivera claims that the trial court erred, viz: 1. IN HOLDING THAT THE PROSECUTIONS SOLE WITNESS TESTIFIED IN AN UNREHEARSED, NATURAL AND POSITIVE MANNER; 2. IN HOLDING THAT THE RELATIONSHIP OF THE SAID EYEWITNESS, THEY BEING BROTHERS, RENDERS HIS TESTIMONY MORE WORTHY OF BELIEF; 3. IN HOLDING THAT THERE WAS NO EVIDENCE TO SHOW, OR INDICATION, OF ANY DUBIOUS REASON OR IMPROPER MOTIVE WHY SAID EYEWITNESS SHOULD TESTIFY FALSELY AGAINST THE APPELLANT OR FALSELY IMPLICATE HIM TO THE HEINOUS CRIME CHARGED; 14 15 16 17 18

4. IN HOLDING THAT THERE EXISTS NO DISCREPANCIES BETWEEN SAID EYEWITNESS TESTIMONY IN OPEN COURT AND THE STATEMENTS IN HIS AFFIDAVIT, EXCEPT MERE LAPSES PERTAINING TO TRIVIAL MATTERS OR MINOR DETAILS AND NOT TO THE VERY CORE OF HIS ACCOUNT; 5. IN HOLDING THAT THE DEFENSE OF ALIBI PROPPED UP BY APPELLANT IS PRACTICALLY WORTHLESS IN THE LIGHT OF THE POSITIVE IDENTIFICATION BY SAID EYEWITNESS PLACING THE APPELLANT AT THE SCENE OF THE CRIME; AND 6. IN HOLDING THAT APPELLANT IS GUILTY OF THE CRIME CHARGED BEYOND REASONABLE DOUBT. [19]
19

The Court finds no reason to disturb the trial courts assessment of the credibility of the sole eyewitness, Renato Losaria. Well-settled is the rule that the findings of a trial court on the credibility of witnesses deserve great weight as the trial judge has a clear advantage over the appellate magistrate in appreciating testimonial evidence. The trial judge is in the best position to assess the credibility of the witness as he had the unique opportunity to observe the witness firsthand and note his demeanor, conduct and attitude under grueling examination. Absent any showing that the trial courts calibration of credibility was flawed, we are bound by its assessment. [20]
20

Neither can the defense fault the trial court for relying on a lone eyewitness account in convicting the appellant Alfonso Rivera. Time and again, we have held that the testimony of a sole eyewitness is sufficient to support a conviction so long as it is clear, straightforward and worthy of credence by the trial court. [21] The trial court noted that Renato Losaria was an unrehearsed eyewitness who testified in a natural and straightforward manner. [22] The appellant, however, stresses Renatos testimony that the triggerman was three feet away from the victim and the arm he used in shooting the victim was extended when he shot him, thus the distance between the gun and the victim was less than three feet. However, Dr. Tabanar opined that the gunman must have been approximately more than or about one meter. There is no substantial inconsistency between Renato and Dr. Tabanars testimonies for Renato stated that the distance of the gunman from the victim was about three feet while Dr. Tabanar stated that it was about one meter or more. One meter is equivalent to three feet and three inches or approximately one meter.
21 22

The appellant points out that the prosecution did not establish the motive for the killing. However, with Renatos positive identification of the appellant Alfonso Rivera, it is not essential to establish motive to convict him. [23] Neither is there any showing of any ill intent for Renato to falsely testify against the appellant. The running case law is that
23

19 20 21 22 23

where there is no evidence that the principal witness for the prosecution was actuated by improper motive, the presumption is that he was not so actuated and his testimony is entitled to full faith and credit. [24] Moreso in the case of Renato who was the victims brother as we have ruled that relatives of the victim have a natural knack for remembering the face of the assailant for they, more than anybody else, would be concerned with seeking justice for the victim and bringing the malefactor to face the law. [25] In addition, Baylons testimony that the accused brothers, riding a motorcycle, asked him about Jonnifer Losaria earlier on the day of the latters killing, corroborated Renatos identification of the appellant as the culprit.
24 25

The defense makes much of the fact that there are discrepancies between the affidavit of Renato Losaria and his testimony in court regarding the time Renato saw Jonnifer Losaria in front of Casimeros house, [26] the presence of Renatos father in the crime scene, [27] and the direction from which the accused Riveras came, [28] among others. The appellant asserts that these inconsistencies are not only minor and thus erode the credibility of Renatos testimony. Whether the discrepancies are minor or major, we have ruled that affidavits are generally subordinate in importance to open court testimonies. Affidavits are not complete reproductions of what the affiants have in mind because they are generally prepared by the administering officer and the affiants simply sign them after the same have been read to them. [29]
26 27 28 29

The appellant Alfonso Rivera also alleges that Renato Losaria and Baylon identified him as the culprit upon suggestion of the policemen at the police station. He has not adequately proven this allegation. The police investigators are presumed to have performed their duties regularly and in good faith, [30] and in the absence of adequate proof to overthrow this presumption, appellants positive identification remains free from any taint of irregularity. Baylon testified that when he saw appellant at the police station, he immediately told the police that he was the person who asked him about Jonnifer Losaria on the day the latter was killed. SPO2 Ferdinand Relayson also testified that Renato Losaria and Baylon independently identified appellant Alfonso Rivera at the police station. While it is true that the latter was identified not in a police line-up or in the company of other suspects, appellants out-of-court identification is nevertheless valid.
30

We explained the procedure for out-of-court identification and the test to determine the admissibility of such identification in People v. Teehankee, Jr., [31] viz:
31

24 25 26 27 28 29 30 31

Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the suspect alone is brought face to face with the witness for identification. It is done thru mug shots where photographs are shown to the witness to identify the suspect. It is also done thru line-ups where a witness identifies the suspect from a group of persons lined up for the purpose. . . In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness opportunity to view the criminal at the time of the crime; (2) the witness degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and, (6) the suggestiveness of the identification procedure. Applying the totality-of-circumstances test to the case at bar, we find that eyewitness Renato Losarias identification of appellant Alfredo Rivera as one of the malefactors through a show-up is credible as borne out by several salient facts. From a distance of about ten meters and with light provided by the street lamp, Renato saw the appellant driving a motorcycle with the gunman as the back passenger. Renatos attention was focused on the accused Riveras and the victim, Jonnifer Losaria, as he (Renato) was approaching the latter to talk to him. When Renato was investigated at the crime scene, he stated with certainty that he could identify the culprits and did not vacillate when he identified the appellant Alfredo Rivera at the police station. The identification took place within three days from the shooting incident. Even assuming arguendo that the appellant Alfonso Riveras out-of-court identification was tainted with irregularity, his subsequent identification in court cured any flaw that may have attended it. Without hesitation, the two prosecution witnesses, Renato Losaria and Juanito Baylon identified the appellant as one of the assailants. In People v. Timon, [32] the accused were identified through a show-up. The accused assailed the process of identification because no other suspect was presented in a police line-up. We ruled that a police line-up is not essential in identification and upheld the identification of the accused through a show-up. We also held that even assuming arguendo that the out-of-court identification was defective, the defect was cured by the subsequent positive identification in court for the inadmissibility of a police line-up identification x x x should not necessarily foreclose the admissibility of an independent in-court identification. [33]
33

32

It is not decisive whether Juanito Baylon did not know or Renato Losaria was not certain of the appellants name when Jonnifer Losaria was killed and when appellant was identified at the police station. We have previously held that identification of a person is not solely through knowledge of his name. In fact, familiarity with physical features, particularly those of the face, is the best way to identify a person. One may be familiar with the face but not necessarily the name. It does not follow therefore that to be able to 32 33

identify a person, one must necessarily know his name. [34] Experience shows that precisely because of the unusual acts of bestiality committed before their eyes, eyewitnesses, especially the victims to a crime, can remember with a high degree of reliability the identity of criminals. [35] Even if Renato Losaria was initially not certain of the name of the appellant Alfonso Rivera, the appearance of the latter was etched in his memory as he brought about the tragic death of his brother.
34 35

That there was conspiracy between the accused Riveras is clearly borne out by the records. It is immaterial therefore that it was the accused Teddy Rivera, and not the appellant Alfonso Rivera, who fatally shot Jonnifer Losaria. In conspiracy, the act of one is the act of all. [36] There is conspiracy among perpetrators of a crime when there is a unity in purpose and intention in the commission of a crime. [37] It does not require a previous plan or agreement to commit assault as it is sufficient that at the time of such aggression, all the accused manifested by their acts a common intent or desire to attack. [38] The appellant Alfonso Rivera and accused Teddy Rivera manifested at the time of the attack a common purpose to kill Jonnifer Losaria when they rode one motorcycle, slowed down at the left side of the tricycle Losaria rode, shot him, then sped away. The trial court correctly observed, viz:
36 37 38

Accused Alfonso Riveras acts of driving the motorcycle asking for the whereabouts of the victim, maneuvering their motorcycle towards the victim upon seeing the latter, slowing down the speed of their motorcycle when they were already aligned and near the victim and then, making their motorcycle run at a high speed away from the victim after the backrider (accused Teddy Rivera), shot the victim, indubitably showed that he acted in conspiracy with his brother in bringing about the success of their mission the killing of their quarry. [39]
39

In light of eyewitness Renato Losarias positive identification of appellant Alfonso Rivera as one of the assailants of Jonnifer Losaria and his testimony detailing how the accused brothers attacked Jonnifer Losaria, the appellants defense of alibi will not prevail. [40] Moreover, this defense requires proof (1) that the accused was present at another place at the time of the perpetration of the crime and (2) that it was physically impossible for him to be present at the crime scene during its perpetration. [41] Appellant himself testified, however, that riding a motorcycle on average speed, the distance between the crime scene and his mothers house where he claims to have been at the time of the killing, could be traversed in only twenty minutes.
40 41

34 35 36 37 38 39 40 41

We now come to the aggravating circumstances attending the killing of Jonnifer Losaria. That the attack was treacherous is beyond doubt. The essence of treachery is the sudden and unexpected attack on an unsuspecting victim by the perpetrator of the crime, depriving the victim of any chance to defend himself or repel the aggression, thus insuring its commission without risk to the aggressor and without any provocation on the part of the victim. [42] Needless to say, the unsuspecting Jonnifer Losaria who was riding his tricycle was taken by surprise as the malefactors came from behind him. He had no means to defend himself, having been shot while still holding the handle bars of the tricycle.
42

We find, however, that evident premeditation cannot be appreciated. The following are the elements of evident premeditation: (1) the time when the accused decided to commit the crime; (2) an overt act manifestly indicating that he has clung to his determination; (3) sufficient lapse of time between decision and execution to allow the accused to reflect upon the consequences of his act. [43] The essence of premeditation is that the execution of the criminal act was preceded by cool thought and reflection upon the resolution to carry out the criminal intent during a space of time sufficient to arrive at a calm judgment. [44] For this aggravating circumstance to be considered, it is indispensable to show how and when the plan to kill was hatched or how much time had elapsed before it was carried out. There is a dearth of evidence on such a plan. Neither can we appreciate use of a motor vehicle which the trial court appreciated as this was not alleged in the information. [45]
43 44 45

Anent the damages, the trial court was correct in ordering the appellant to pay the heirs of the victim P50,000.00 as civil indemnity. Additionally, the appellant is ordered to pay them P25,000.00 as temperate damages. IN VIEW WHEREOF, the impugned decision is AFFIRMED with the MODIFICATION that the appellant is sentenced to suffer the penalty of reclusion perpetua and to pay the heirs of the victim, Jonnifer Losaria, P50,000.00 as civil indemnity and P25,000.00 as temperate damages. Costs against the accused-appellant. SO ORDERED. Davide, Jr., C.J., Bellosillo, Vitug, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Tinga, JJ., concur. Azcuna, J., on leave.

42 43 44 45

THIRD DIVISION [G.R. No. 138608. September 24, 2002] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO TAMAYO, JULIO TAMAYO, FLORENCIO PATALINGHUG, JR., a.k.a. FELIX PATALINGHUG ,JR., and NATIVIDAD TAMAYO (ACQUITTED), accused. FLORENCIO PATALINGHUG, JR., accused-appellant. DECISION
CORONA, J.:

Accused Rolando Tamayo, Julio Tamayo, Florencio Patalinghug, Jr., [1] and Natividad Tamayo were charged with double murder before the Regional Trial Court of the Seventh Judicial Region (Branch 62, Oslob, Cebu) in an information dated November 29, 1994, to wit:
i

That on October 25, 1994 at 7:30 oclock in the evening, more or less, at sitio Tubod, Cerdea, Municipality of Malabuyoc, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above named accused, conspiring, confederating and mutually helping with one another, with deliberate intent to kill, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously assault, attack and shoot Leodegario Fuentes and Renante Fuentes, with the use of unknown caliber handgun, thereby inflicting upon them multiple gunshot wounds which caused their instantaneous death. CONTRARY TO LAW. [2]
ii

After a plea of not guilty was entered, the accused filed motions for admission to bail before the Regional Trial Court of Cebu City, Branch 20, where this case was originally raffled. However, these motions were denied by said court in an order dated March 25, 1996. With the creation and operation of RTC-Oslob, Cebu on February 15, 1996, this case was ordered unloaded from RTC-Cebu City, Branch 20, and transferred to RTC-Oslob, Cebu, Branch 62, in an amended order dated September 23, 1996. Further presentation of prosecution evidence was thereafter conducted in the latter court. The prosecution presented several witnesses. Lilia Fuentes recalled that at about 7:30 oclock in the evening of October 25, 1994, she was having dinner with her husband, Leodegario, and their six children in their house at Cerdea, Malabuyoc, Cebu, when they heard the dogs barking. Leodegario was about to check why the dogs were barking when three persons whom she identified as Rolando

Tamayo, Julio Tamayo and Florencio Patalinghug, Jr., suddenly barged into their house through an unlocked kitchen door. Rolando came first, followed by Julio who was holding a flashlight and Florencio who entered last. Julio focused the flashlight on Leodegarios face and seconds later, Rolando shot Leodegario on the chest. After shooting Leodegario, Rolando fired his gun again, this time hitting Renante, 18-year old son of Leodegario and Lilia. Overcome with fear, Lilia embraced her other children who were crying. She saw Rolando aiming his gun at them. She heard three clicks from the gun but fortunately the gun did not fire. Thereafter, Rolando, Julio and Florencio left, dragging Renante out of the house. Lilia then gathered the rest of her children and, while going down the stairs of their house, Lilia saw Natividad Tamayo, the wife of Julio, hurriedly walking away from their house. Lilia and her children went to the house of their neighbor, Helen Ambos, to seek refuge. After an hour, they proceeded to the house of Amalia Fuentes, Lilias niece, and stayed there until the morning of the following day. That day, the dead body of Renante was found some 200 meters away from their house. On October 27, 1994, Lilia reported the incident to the police. [3]
iii

SPO2 Faustino Filipinas of Malabuyoc Police Station testified that at around 2 oclock in the morning of October 26, 1994, Alex Cardines, a barangay tanod of Cerdea, Malabuyoc, Cebu, reported a shooting incident, allegedly perpetrated by Rolando Tamayo, Julio and Natividad Tamayo, and Florencio Patalinghug, Jr. On October 27, 1994, Lilia lodged a complaint against the four accused for the death of her husband Leodegario and son Renante. That same morning, Rolando and Julio were arrested while Natividad and Florencio were arrested the following day. [4]
iv

Dr. Danilo Cabigon, Municipal Health Officer of Malabuyoc, Cebu, testified that he conducted a post-mortem examination on the cadavers of the victims on October 26, 1994. Dr. Cabigons autopsy showed that Leodegario sustained one gunshot wound above the right chest. He declared that Leodegario died due to hemorrhage, thoracic cavity due to gunshot wound, penetrating the big blood vessel and right lung. On the other hand, his post-mortem examination of Renantes body revealed that the victim sustained a single gunshot wound on his left chest which resulted in massive hemorrhage causing death. [5]
v

The defense presented its own version through its witnesses. Accused Natividad Tamayo claimed that at around 7 oclock in the evening of October 25, 1994, she was eating her supper along with husband, Julio, and daughter, Leonida, in their house at Cerdea, Malabuyoc, Cebu. After finishing her household chores, she went to sleep at about 8:30 oclock in the evening. On October 26, 1994, while she and Julio were working at their farm at Sitio Lapad Bato, a barangay tanod approached and told them that they needed to go to the barangay hall to clarify some important matters. It was then that they learned they were being implicated in the death of Leodegario and Renante Fuentes. [6]
vi

Julio Tamayo corroborated his wife Natividads testimony in all points material to their common defense. [7]
vii

Rey Cardente, a relative of Helen Ambos, declared that in the evening of October 25, 1994, he was at the house of Helen Ambos when a nervous Lilia Fuentes arrived and told Helen that Leodegario and Renante were shot. But when asked who committed the crime, Lilia answered that she did not know. She just continued sobbing. [8]
viii

Accused Rolando Tamayo claimed that, at the time of the alleged incident, he was at home for a novena prayer in honor of the Blessed Virgin Mary. After the event, all the participants went home except for Gregorio Balansag who opted to spend the night at Rolandos house. The next day, Rolando was invited for questioning at the barangay hall. There he saw his father, Julio, and mother, Natividad, and learned that the three of them were implicated in the killing of Leodegario and Renante Fuentes. [9]
ix

Gregorio Balansag affirmed the testimony of Rolando Tamayo that a novena prayer was held at Rolandos place from 6:30 p.m. to 8:00 p.m. on October 25, 1994. He stayed at Rolandos house for the night and all the time that he was there, Rolando did not go out of his house. [10]
x

Crisanto Cardente, a neighbor of Florencio Patalinghug, Jr. at Cerdea, Malabuyoc, Cebu, testified that in the afternoon of October 25, 1994, he met Florencio Patalinghug, Jr. who invited him to come to his house for the death anniversary of his younger sister. He had dinner with Florencios family and went home at around 11 oclock in the evening. He was sure that Florencio did not leave the house that night. [11]
xi

Accused Florencio Patalinghug, Jr., a resident of Cerdea, Malabuyoc, Cebu, asserted that, on October 25, 1994, he was at home for the death anniversary of his younger sister. The affair lasted until 11:00 p.m. The next morning, a policeman brought him to the house of Lilia Fuentes where he was asked whether he knew who killed Leodegario and Renante. He answered that he did not know who the perpetrators were. He even helped in cleaning the caskets of the victims. On October 28, 1994, while peddling mangoes in Malabuyoc, Cebu, he was approached by a policeman who told him that he was being invited for investigation by the Chief of Police of Malabuyoc, Cebu. The policeman asked him to pin down the Tamayos as the persons responsible for the killing of Leodegario and Renante, otherwise, he would be included as one of the accused. He admitted knowing his co-accused as he used to work at their farm. [12]
xii

The prosecution presented Carmelita Cardao as a rebuttal witness. She maintained that no novena prayers were held on October 25, 1994 inasmuch as the image of Our Lady of Fatima had already been transferred to another sitio. She further averred that she was always present everytime there was a prayer meeting as she was usually the prayer leader. In fact, she never saw Rolando Tamayo in any of the novena prayers. [13]
xiii

On September 15, 1998, the trial court rendered the assailed decision, the dispositive portion of which reads: WHEREFORE, the Court finds accused Julio Tamayo, Rolando Tamayo and Florencio Patalinghug, Jr. guilty of the crime of Double Murder beyond reasonable doubt and they

are hereby sentenced to suffer the penalty of reclusion perpetua each for two (2) counts and to indemnify the heirs of the victims jointly and severally the sum of P100,000.00 as civil indemnity. Accused Natividad Tamayo is hereby acquitted for insufficiency of evidence. The Provincial Warden, Cebu Provincial Detention and Rehabilitation Center (CPDRC) Cebu City is hereby directed to discharge from custody the live person of accused Natividad Tamayo immediately upon receipt hereof, unless there is any other cause for which she should continue to be detained. Cost to be taxed against the three (3) accused also jointly and severally. SO ORDERED.
xiv

[14]

Only accused Florencio Patalinghug, Jr. interposed the instant appeal, contending that the trial court erred: I. IN GIVING CREDENCE TO THE TESTIMONY OF THE PROSECUTIONS LONE EYEWITNESS, LILIA FUENTES; II. IN RULING THAT THE ACCUSED-APPELLANTS DEFENSE OF ALIBI CANNOT PREVAIL OVER THE POSITIVE IDENTIFICATION BY PROSECUTIONS LONE EYEWITNESS; III. IN RULING THAT THE EVIDENCE PRESENTED BY THE PROSECUTION WAS SUFFICIENT TO CONVICT HE ACCUSED-APPELLANT BEYOND REASONABLE DOUBT OF TWO (2) COUNTS OF MURDER; AND IV. IN FINDING THE ACCUSED-APPELLANT GUILTY OF TWO (2) COUNTS OF MURDER AND SENTENCING HIM TO SUFFER THE PENALTY OF RECLUSION PERPETUA FOR EACH COUNT. [15]
xv

The first and second assignments of error being interrelated, shall be discussed together. In assailing the decision of the trial court, accused-appellant attacks the credibility of the lone eyewitness, Lilia Fuentes, wife and mother of victims Leodegario and Renante, respectively, alleging that Lilias version was replete with improbabilities and inconsistencies. Accused-appellant also tries to discredit Lilia by claiming that she could not have positively identified him because the assault happened in the dark as the exact place where the crime was committed was lit only by a kerosene lamp. We do not agree. Lilia Fuentes positively established the presence of accused-appellant in her house on the night of October 25, 1994 and we find no reason to disturb the trial courts evaluation of her testimony. She testified on direct examination as follows:

Atty. Abellana: (to witness) Q A Q A Q A Q A Q Who entered first into your house when those three men barged your door? Rolando Tamayo. Who followed him? Julio Tamayo. Who was next? Nickname is Felix and the full name is Florencio Patalinghug. Why do you know them? Because they are from that place, sitio Kaluktugan. If Rolando Tamayo is in the court room now, will you please point him out?

A - (Witness pointing to a man and when asked, he identified himself as one Rolando Tamayo.) Q How about Julio Tamayo, if he is in the courtroom, will you please point him out?

A - (Witness pointing to man and when asked, he identified himself as one Julio Tamayo.) Q How about Felix Patalinghug?

A - (Witness pointing to a man and when asked, he identified himself as one Felix Patalinghug.) Q What happen (sic) when those three (3) persons entered into your house?

A - Julio Tamayo was the one bringing the flashlight and beam the light to my husband and Rolando Tamayo was the one who shot my husband. Q A Q A Was your husband hit when your husband was shot by Rolando Tamayo? Yes, he was hit. Where was your husband hit? On his breasts.

Atty. Abellana: (to witness) Q A Q A What did the three do especially Rolando Tamayo after shooting your husband? He fired again and then it was my son who was hit. To what direction this second shot was made to which your son was being hit? Towards my son.

COURT: (to witness) Q A How old is your son? 18 yrs. old your Honor.

Atty. Abellana: (to witness) Q A Q A Q A What is the name of your son again? Renante Fuentes. When Rolando Tamayo shoot his firearm for the second time, was your son hit? Yes, sir. Where was he being hit? He shouted, Ma, naigo ko! (Ma, I was hit.)
xvi

[16]

Also, on cross-examination, Lilia declared: Q: A: On the day of the incident, there was no moon? I was not able to notice if there was moon because of fear but it was a little bright.

ATTY. SON: Q: When you used the term a little bright or hayag, what was the source of that light? A: xxx From the sky. xxx xxx
xvii

[17]

xxx

Q: Now, you mentioned yesterday that there was light coming from the sky, did that light reached (sic) the inside portion of your house? A: xxx There was light inside our house, sir, because we have lamps. xxx xxx

Q: Alright, that lamp which you said was inside the house, emitted light inside the house, is that correct? A: Q: A: Yes, because there was light in the sala and also there was light in the kitchen Bright enough, when a person goes inside the house, he can be seen? Yes, sir.

Q: How far were you from the door when the 3 accused allegedly entered and barged into your house? A: About one meter more or less.
xviii

[18]

Indubitably, Lilia was able to identify accused-appellant because she was at the scene of the crime. In fact, she was situated at a distance of only about one meter from the accused-appellant and his companions. Likewise, there was ample illumination coming from the lamps located in the kitchen and living room of their house. Further, the flashlight used by Julio Tamayo adequately improved the lighting condition of the place. Illumination produced by a kerosene lamp or flashlight is sufficient to allow identification of persons. [19]
xix

Accused-appellant also attempts to make much capital out of inconsistencies in the testimony of Lilia. He specifically points to the declaration of Lilia that at the time he, Julio and Rolando entered her house, the kitchen was illuminated by a gas lamp which was on a table between herself and the three assailants. [20] However, when the trial court sought clarification on the exact location of the gas lamp, Lilia stated that the table was in the living room and not in the kitchen. [21] These conflicting statements, accusedappellant insists, makes the witness credibility doubtful.
xx xxi

The contradictions in the testimony of the eyewitness Lilia pointed out by accusedappellant refer to a very minor detail which is not sufficient to overthrow the probative value accorded by the trial court to her testimony. It has been our standard ruling that minor inconsistencies and contradictions in the testimony do not affect the credibility of witnesses. On the contrary, they may even be considered badges or manifestations of truthfulness and thus enhance a witness credibility. [22]
xxii

The defense argues that the trial court (Regional Trial Court of Oslob, Cebu, Branch 62) had no opportunity to observe and examine the demeanor of the prosecutions eyewitness

Lilia because her testimony was given before the Regional Trial Court of Cebu City, Branch 20 during the hearings on the application for bail filed by all the accused. Thus, the conclusions and findings of the trial court should not be given evidentiary weight. Contrary to accused-appellants contention, the fact that Judge Jesus dela Pea (who rendered the appealed decision) was not the one who heard the testimony of the eyewitness will not per se warrant a reversal of the decision, more so when the judgment is fully supported by the evidence on record as in the case at bar. This Court has ruled that, while the trial judge who presided at the trial would be in a better position to ascertain the truth or falsity of the testimony of the witnesses, it does not necessarily follow that a judge who was not present during the trial cannot render a valid and just decision. This is in fact the main reason why all trial courts are mandatorily required to be courts of record. Whoever is tasked to render judgment in a case can rely on the transcribed stenographic notes taken during the trial as the basis for his decision. [23] In this case, Judge dela Peas evaluation of Lilias testimony is supported by the evidence on record. It is settled that the trial courts factual findings are binding on this Court when they are supported by the evidence on record. [24]
xxiii xxiv

Accused-appellant further claims that Lilias behavior while the shooting incident was happening and her failure to immediately report the crime were contrary to human nature and experience. It is an accepted fact that people react differently in particular situations and respond to stimuli in varying ways and degrees. Witnesses of startling occurrences do not react similarly, depending on the situation and their state of mind. [25]
xxv

Lilia mentioned in her testimony that, after her husband and son were shot, she was terrified and all she could do was embrace her little children. Clearly, what was foremost in her mind then was to shield her children from the same tragedy that struck her husband and son. Truly, no clear-cut standard form of behavior can be drawn. If Lilia did not run for cover after her husband and son were shot, it was because she was terrified and this was perfectly normal. Accused-appellant also hinges his defense on alibi. For such a defense to prosper, it is not enough for the accused to prove that he was somewhere else when the crime occurred. He must also demonstrate that it was physically impossible for him to have been at the scene of the crime. [26]
xxvi

Accused-appellant claims that when the shooting occurred, he was at home commemorating the death anniversary of his younger sister. However, his house was only one kilometer away from where victim Leodegario Fuentes and his family lived. Thus, it was not physically impossible for him to have been at the scene of the crime. Moreover, positive identification by an eyewitness prevails over the defense of alibi. Hence, accused-appellants attempt to exculpate himself through alibi must fail.
xxvii

[27]

The third assignment of error pertains to the issue of conspiracy among Julio Tamayo, Rolando Tamayo and accused-appellant. In ruling that there was conspiracy among the

three accused, the trial court relied mainly on the testimony of the eyewitness, Lilia Fuentes, who testified that she saw the three accused enter her house and shoot her husband and son. We disagree with the trial court on this respect. Article 8 of the Revised Penal Code provides that a conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. There is need for concurrence of wills or unity of action and purpose or for common and joint purpose and design. Admittedly, direct proof of a previous agreement need not be established for conspiracy may be deduced from the acts of the accused pointing to a joint purpose, concerted action and community of interest. [28] Nevertheless, except in the case of the mastermind of a crime, it must also be shown that the accused performed an overt act in furtherance of the conspiracy. [29] Mere knowledge, acquiescence or approval of the act, without the cooperation or agreement to cooperate, is not enough to make one a party to a conspiracy. As this Court has repeatedly stated, criminal conspiracy must be established, not by conjectures but by positive and conclusive evidence. In fact, the same quantum of proof necessary to establish the crime is required to support a finding of conspiracy, that is, proof beyond reasonable doubt. [30]
xxviii xxix xxx

Lilia Fuentes testimony regarding accused-appellants participation in the shooting of her husband and son consisted of the following: (1) he was one of the three men who entered her house on the night of October 25, 1994 and (2) he, together with the two other accused, dragged the body of Renante out of the house after Renante was shot by Rolando Tamayo. Lilias testimony contained nothing that could indicate that accusedappellant directly participated in the overt act of shooting the victims. The fact that accused-appellant was with the other accused when the crime was committed is insufficient proof of conspiracy. Mere presence at the scene of the crime does not amount to conspiracy. The prosecution must establish conspiracy beyond reasonable doubt. [31] The testimony of Lilia failed to do so.
xxxi

However, though accused-appellants presence was not enough to prove conspiracy, he was definitely not an innocent spectator either. He was at the scene of the crime to aid or abet the commission thereof. This made him not a conspirator but an accomplice. An accomplice is one who knows the criminal design of the principal and cooperates knowingly or intentionally therewith by an act which, even if not rendered, the crime would be committed just the same. [32] To hold a person liable as an accomplice, two elements must be present: (1) the community of criminal design, that is, knowing the criminal design of the principal by direct participation, he concurs with the latter in his purpose and (2) the performance of previous or simultaneous acts that are not indispensable to the commission of the crime.
xxxii

It is significant to note that the plan to kill the Fuenteses could have been accomplished even without accused-appellants participation. It should be noted further that he was unarmed that night. The prosecution evidence has certainly not established that accusedappellant was part of the conspiracy to kill the victims. The lack of such complete

evidence of conspiracy impels this Court to impute to him a milder form of responsibility, i.e., guilt of a mere accomplice. The resolution of the fourth assignment of error is relevant in view of its effect on accused-appellants penalty. Accused-appellant asserts that the qualifying circumstances of treachery and evident premeditation were not properly established in this case, thus the crime committed was not murder. Under our penal law, treachery is present when the attack is sudden and unexpected, and renders the victim unable to defend himself. Even if the attack is frontal, treachery may still exist when it is done in a sudden and unexpected manner, and the victim is not given any chance to retaliate and defend himself, thus ensuring the safety of the malefactors. [33] In the present case, it is obvious that the victims were caught off-guard by the unexpected attack of the assailants. The victims were having dinner when Julio, Rolando and Florencio surreptitiously entered their house and, without warning, shot the victims who were at that time unarmed and completely unaware of any impending danger to their lives. There was no way the victims could have defended themselves from the assailants treacherous attack.
xxxiii

However, the prosecution was not able to prove evident premeditation. For this circumstance to be appreciated, there must be proof, as clear as that of the killing, of the following elements: (1) the time when the offender determined to commit the crime; (2) an act indicating that he clung to his determination; and (3) sufficient lapse of time between determination and execution to allow himself time to reflect upon the consequences of his act. [34] None of these elements was proven in this case. Evident premeditation could not therefore aggravate the offense committed.
xxxiv

All told, the crime committed is murder and the penalty prescribed for it is reclusion perpetua to death. Under Article 63 of the Revised Penal Code, where two indivisible penalties are prescribed for an offense and there is neither mitigating nor aggravating circumstances in the commission of the crime, the lesser penalty shall be applied. Inasmuch as no mitigating or aggravating circumstance attended the commission of the offense, the lesser penalty of reclusion perpetua shall be imposed on the principal accused. On the accused-appellant as an accomplice, the proper penalty is one degree lower than that of a principal. He is also entitled to the benefits of the Indeterminate Sentence Law. WHEREFORE, the appeal is hereby PARTIALLY GRANTED. Accused-appellant Florencio Patalinghug, Jr. is convicted as an accomplice, not as a principal, in the crime of murder. He is therefore sentenced to an indeterminate prison term of 8 years and 1 day of prision mayor as minimum, to 14 years 8 months and 1 day of reclusion temporal as maximum, for each of the two counts of murder. He shall also, jointly and severally with the other accused, pay as civil indemnity the amount of P50,000 for each count. SO ORDERED.

Puno, (Chairman), Panganiban, Sandoval-Gutierrez, and Morales, JJ., concur.

i ii iii iv v vi vii viii ix x xi xii xiii xiv xv xvi xvii xviii xix xx xxi xxii xxiii xxiv xxv xxvi xxvii xxviii xxix xxx xxxi xxxii xxxiii xxxiv