CRIMES AGAINST CIVIL STATUS

G.R. No. L-9279 March 25, 1915

THE UNITED STATES, plaintiff-appellants, vs. SATURNINO CAPILLO and PETRONA PADUGA, defendant-appellees. Office of the Solicitor-General Harvey for appellant. Ramon Salinas for appellees. CARSON, J.: This is an appeal by the United States from a decision of the Court of First Instances of Manila, dismissing this case upon a motion of the defendants, which was in substances and effect a demurrer to the information. The information is as follows: The undersigned accuses Saturnino Capillo and Petrona Paduga of the crime of exposing a legitimate child to lose his civil status, committed as follows: That on or about the 12th day of August, 1913, in the city of Manila, Philippine Islands, the said defendants Saturnino Capillo and Petrona Paduga, conspiring and confederating together and helping one another, did then and there willfully, unlawfully, and feloniously expose a child, 1 month old, the legitimate son of the accused Saturnino Capiullo and his wife Vicenta Umanbang to lose his civil status in the following manner to wit: that the defendant Saturnino Capillo, with intent to cause his legitimate child to lose his civil status and in cooperation with the defendant Petrona Paduga, took the said without the permission of his mother Vicenta Umanbang or the authority of the courts of this city and agreed with one Chua Pue Tee to deliver to him the said child and never to claim it again, asking the said Chua Pue Tee at the same time to lend them the sum of P150 to defray the expenses incurred by the defendant Saturnino Capillo during the last sickness and death of his wife Vicente Umanbang, and received from said Chua Pue Tee the sum of P106 of which P50 corresponded to the defendant Saturnino Capillo and P56 to defendant Petrona Paduga. That the living of said child under such circumstances in the possession of said Chua Pue Tee and His wife Sio Suat King exposes said child to lose his civil status, to wit, that of the legitimate son of the said defendant Saturnino Capillo and his wife Vicenta Umanbang to that of an unknown and nameless child or at the most to that of the child of one Chua Pue Tee and his wife. That in the commission of this crime the aggravating circumstance of price should be taken into consideration. To the above information the defendants pleaded not guilty on August 21, 1913. On September 1, 1913, the defendant's counsel filed a motion, in the nature of a demurrer and argument, a translation of which is substantially as follows: Now appears the undersigned attorney, on behalf of defendants, and respectfully prays: That the above-entitled case be dismissed, basing his contention upon the fact that the information fails to show facts of sufficient weight to constitute a cause of action, that is, that the facts stated do not constitute a crime. Article 468 of the Penal Code in force, paragraph 2 of which is mentioned by the prosecuting attorney, does not define as a crime the acts attributed to defendants. Nor is it inferred from the historical precedents

that the facts which gave rise to this case constitute a crime. The hypothesis of the legislator as to meaning of said paragraph 2 is the fact of concealing or exposing a legitimate child with intent to cause such a child to lose his civil status, when this act is done by the person to whom the child is intrusted for its nursing or for some other lawful purpose. This crime is rather applicable to Spain only, where nursing children are usually given to wet nurses, living out in the country, who are not able to move their residence to the city where the child's parents live. In the Philippines the children are usually nursed by their own mother, and, if they are given to a wet nurse, the latter goes to live at the house of the child's parents. In its decision the court remarked: "Although the presentation of this motion is out of the ordinary course of procedure, in view of the fact that its determination is conclusive of the case, the court will consider it as a demurrer, and, for the purpose of its consideration, the plea of not guilty will be considered withdrawn." The court thereupon decided that the complaint did not state facts sufficient to constitute the crime charged. The court held that the motion of the defendant must prevail and the case was dismissed with the costs de officio. The offense which the prosecution contends is charged in the information is that defined and penalized in the second paragraph of article 468 of the Penal Code. That article is as follows: La suposicion de partos y la sustitucion de un nio por otro seran castigadas con las penas de presidio mayor y multa de 625 a 6,250 pesetas. Las mimas penas se impordran al que ocultare o expusiero un hijo legitimo con animo de hacerle perder su estado civil. The English version of this article, as found in the English translation of the Penal Code edited by the Attorney General and printed by the Bureau of Printing in 1911, is as follows: The simulation of births, or the substitution of one child for another, shall be punished by presidio mayor and a fine of not less than six hundred and twenty-five and not more than six thousand two hundred and fifty pesetas. The same penalty shall be imposed upon any person who shall conceal or abandon any legitimate child with intent to cause such child to lose its civil status. The contentions of the parties on this appeal turn upon the meaning which should be given to the word "expusiere" as found in the original Spanish version. The verb "exponer" is given various meaning in "El Diccionario de la Lengua Castellana por la Real Academia Espaola," 12th edition. Among others "arriesgar, aventurar, poner una cosa en contingencia de perderse" (to risk, to adventure, to put a thing in danger of being lost); and also "dejar a un nio recien nacido a la puerta de una iglesia o casa o en otro paraje publico, por no tener con que criarlo sus padres o porque no se sepa quienes son" (to leave a recently born baby at the door of a church, or a house or other public place, the parents not having means to support it, or the paents being unknown). Having in mind the qualifying phrase which provides that the offense is committed when the child is exposed "con animo de hacerle perder su estado civil" (with intent to expose it to lose its civil status), the word must be held to have been used by the authors of the code in the sense of to "abandon," in some such manner as is indicated in the last of the above cited meaning given the word in the "Diccionario"; that being the clear, definite and well understood signification of the word when used by the Spanish authors of the code with relation to infants or children, as it manifestly is in this article.

The contention of the prosecution is that the true meaning of the language of the statute is that the prescribed penalties are to be imposed upon "one who conceals, or exposes or subjects to danger of loss of civil status, a legitimate child, with intent to cause it to lose its civil status." But without the addition of he qualifying phrase "with intent to cause it (the infant) to lose its civil status," the transitive verbs "ocultare" and "expusiere" convey no thought of loss of civil status, and in construing the verb "exponer" to mean "to expose or subject to danger of loss of civil status," the prosecution gives to it a meaning which is not found in any dictionary. It is worthy of observation, furthermore, that the transitive verb "expusiere" (shall expose) is joined in grammatical construction with the verb "ocultare" (shall conceal) and, like it, has for its sole object the word "child" (hijo), and sound principles of grammatical construction forbid the attempt to import into one of these verbs a meaning from the common qualifying phrase which it is manifestly impossible to give to the other. The practice of abandoning new-born infants and very young children at the door of hospitals, churches and other religious institutions was formerly so well known in Spain that, as will be seen from the definition above cited from the dictionary of the "Real Academia," it gave rise to the use of the verb "exponer" (to expose) in a peculiar and special sense with reference to this practice, when the grammatical object of the verb is an infant or small child. We are well satisfied that it is in this sense that the word is used in the article of the code under consideration, and that in this connection it may and should be construed in both Spanish and English by its substantial equivalent to "abandon." We are confirmed in our conclusion that true meaning of word "expusiere" (shall expose) in this article of the code involves the idea of abandonment by an examination of the commentaries of the learned Spanish law writers upon the corresponding article in the Spanish Criminal Code. Thus Groizard says (5 Groizard, 460): "the exposition which is caused by abandoning a new-born child in place where it cannot be easily assisted, intending that it should perish and save the honor of the mother, is a crime against life. The exposition of a child and the abandonment thereof in a place where it may not be in danger may be a crime against the safety of persons. Only that which has for its purpose the deprivation of the new-born child's civil status is what constitutes the present crime. In other that it may be so, it necessary therefore that the acts committed by the guilty party plainly show his intent. The fact that one abandons, in the midst of a lonely forest, an unfortunate child that needs all kinds of assistance during the first moments of coming into the world cannot be admitted as intent to destroy its civil status, but as an attempt against its life. On the contrary, he who places at the door of a charitable person, a new-born child which is in condition to stand the first in clemencies of the weather, is supposed to do it in order that it may be taken up and protected, and therefore the legal presumption must be that he does not act with any other purpose than to cause the loss of any trace as to the filiation of the child." And Viada says (vol. 3, p. 270): "Finally, the same penalty is imposed upon anyone who canceals or exposes a legitimate child with the intention of making him lose his civil status. It must be remembered that by the word child must be understood a fully developed and living being, as the child born not capable of living has no status, nor can he transmit any rights whatever. It is, therefore, an essential condition of this crime, that crime, that the child who has been exposed or concealed shall have been born alive, and therefore, the clandestine burial of a child who was born dead is not included within the provisions of the last paragraph of this article, although it may be included within the provisions of article 349 of this Code. It must be noted, furthermore, that the exposition or concealment must be of a legitimate child and done with the intention of making him lose his civil status , that is, his inherent rights as a legitimate child; and therefore, were he illegitimate, or, were the intentions of the one who concealed or exposed the child different, the act may constitute a crime against liberty and security, but certainly not an attempt against the civil status of the child." Examining the information we find no facts which allege an abandonment of a child in the sense indicated, and the ruling of the court below sustaining the demurrer to the information must therefore be sustained.

It is manifest from the information itself, and from the argument of counsel on the demurrer, that the real object sought to be attained by the prosecution is to penalize, under the provisions of article 468 of the code, the conduct of the father in turning over his new-born child to the Chinaman and his wife, with a promise not to reclaim it, taking from the Chinaman for so doing money by way of loan or otherwise. But it is very clear that it was not the intention of the authors of the coded to penalize such conduct by the provisions of the article relied upon by the prosecution. It is urged that the transaction set forth in the information was in truth and effect a heartless sale of his own flesh and blood by the accused for one hundred and odd pesos, and that he should not be permitted to go unpunished. It is not necessary for us to consider and decide, at this time, under what circumstances, if any, a father, left with a motherless child, may turn it over to others with or without an agreement to reclaim it, or whether, in the event that he does turn the child over to others, be would ever be permitted to receive money or other consideration from those who adopt the child. Our ruling at this time is merely that the offense defined and penalized in article 468 of the Penal Code is not the unlawful sale of a child by its father, and that such conduct cannot properly be penalized under its provisions. If the accused has been guilty of conduct constituting an offense of this kind, in violation of the laws of the Philippine Islands, he should be charged with and tried for the offense actually committed, so that the penalty to be imposed upon conviction may be adjudged by the courts in accord with the provisions of the statute defining and penalizing the crime of which he is found guilty. Let judgment be entered affirming the judgment entered in the court below, with the costs of this instance against the appellant. So ordered. Arellano, C.J., Torres, Johnson, Moreland, Trent and Araullo, JJ., concur.

G.R. No. 164435

September 29 2009

Victoria Jarillo, petitioner vs. People of the Philippines, respondents PERALTA, J.: This resolves the Petition for Review on Certiorari under Rule 45 of the Rules of Court, praying that the Decision [1] of the Court of Appeals (CA), dated July 21, 2003, and its Resolution[2] dated July 8, 2004, be reversed and set aside. On May 31, 2000, petitioner was charged with Bigamy before the Regional Trial Court (RTC) of Pasay City, Branch 117 under the following Information in Criminal Case No. 00-08-11: INFORMATION The undersigned Assistant City Prosecutor accuses VICTORIA S. JARILLO of the crime of BIGAMY, committed as follows: That on or about the 26th day of November 1979, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, Victoria S. Jarillo, being previously united in lawful marriage with Rafael M. Alocillo, and without the said marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with Emmanuel Ebora Santos Uy which marriage was only discovered on January 12, 1999. Contrary to law.

On July 14, 2000, petitioner pleaded not guilty during arraignment and, thereafter, trial proceeded. The undisputed facts, as accurately summarized by the CA, are as follows. On May 24, 1974, Victoria Jarillo and Rafael Alocillo were married in a civil wedding ceremony solemnized by Hon. Monico C. Tanyag, then Municipal Mayor of Taguig, Rizal (Exhs. A, A-1, H, H-1, H-2, O, O-1, pp. 20-21, TSN dated November 17, 2000). On May 4, 1975, Victoria Jarillo and Rafael Alocillo again celebrated marriage in a church wedding ceremony before Rev. Angel Resultay in San Carlos City, Pangasinan (pp. 25-26, TSN dated November 17, 2000). Out of the marital union, appellant begot a daughter, Rachelle J. Alocillo on October 29, 1975 (Exhs. F, R, R-1). Appellant Victoria Jarillo thereafter contracted a subsequent marriage with Emmanuel Ebora Santos Uy, at the City Court of Pasay City, Branch 1, before then Hon. Judge Nicanor Cruz on November 26, 1979 (Exhs. D, J, J-1, Q, Q-1, pp. 15-18, TSN dated November 22, 2000). On April 16, 1995, appellant and Emmanuel Uy exchanged marital vows anew in a church wedding in Manila (Exh. E). In 1999, Emmanuel Uy filed against the appellant Civil Case No. 99-93582 for annulment of marriage before the Regional Trial Court of Manila. Thereafter, appellant Jarillo was charged with bigamy before the Regional Trial Court of Pasay City x x x. xxxx Parenthetically, accused-appellant filed against Alocillo, on October 5, 2000, before the Regional Trial Court of Makati, Civil Case No. 00-1217, for declaration of nullity of their marriage. On July 9, 2001, the court a quo promulgated the assailed decision, the dispositive portion of which states: WHEREFORE, upon the foregoing premises, this court hereby finds accused Victoria Soriano Jarillo GUILTY beyond reasonable doubt of the crime of BIGAMY. Accordingly, said accused is hereby sentenced to suffer an indeterminate penalty of SIX (6) YEARS of prision correccional, as minimum, to TEN (10) YEARS of prision mayor, as maximum. This court makes no pronouncement on the civil aspect of this case, such as the nullity of accuseds bigamous marriage to Uy and its effect on their children and their property. This aspect is being determined by the Regional Trial Court of Manila in Civil Case No. 99-93582. Costs against the accused. The motion for reconsideration was likewise denied by the same court in that assailed Order dated 2 August 2001. [3]

For her defense, petitioner insisted that (1) her 1974 and 1975 marriages to Alocillo were null and void because Alocillo was allegedly still married to a certain Loretta Tillman at the time of the celebration of their marriage; (2) her marriages to both Alocillo and Uy were null and void for lack of a valid marriage license; and (3) the action had prescribed, since Uy knew about her marriage to Alocillo as far back as 1978. On appeal to the CA, petitioners conviction was affirmed in toto. In its Decision dated July 21, 2003, the CA held that petitioner committed bigamy when she contracted marriage with Emmanuel Santos Uy because, at that time, her marriage to Rafael Alocillo had not yet been declared null and void by the court. This being so, the presumption is, her previous marriage to Alocillo was still existing at the time of her marriage to Uy. The CA also struck down, for lack of sufficient evidence, petitioners contentions that her marriages were celebrated without a marriage license, and that Uy had notice of her previous marriage as far back as 1978. In the meantime, the RTC of Makati City, Branch 140, rendered a Decision dated March 28, 2003, declaring petitioners 1974 and 1975 marriages to Alocillo null and void ab initio on the ground of Alocillos psychological incapacity. Said decision became final and executory on July 9, 2003. In her motion for reconsideration, petitioner invoked said declaration of nullity as a ground for the reversal of her conviction. However, in its Resolution dated July 8, 2004, the CA, citing Tenebro v. Court of Appeals,[4] denied reconsideration and ruled that [t]he subsequent declaration of nullity of her first marriage on the ground of psychological incapacity, while it retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned, the said marriage is not without legal consequences, among which is incurring criminal liability for bigamy. [5] Hence, the present petition for review on certiorari under Rule 45 of the Rules of Court where petitioner alleges that: V.1. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN PROCEEDING WITH THE CASE DESPITE THE PENDENCY OF A CASE WHICH IS PREJUDICIAL TO THE OUTCOME OF THIS CASE. V.2. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN AFFIRMING THE CONVICTION OF PETITIONER FOR THE CRIME OF BIGAMY DESPITE THE SUPERVENING PROOF THAT THE FIRST TWO MARRIAGES OF PETITIONER TO ALOCILLO HAD BEEN DECLARED BY FINAL JUDGMENT NULL AND VOID AB INITIO. V.3. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT CONSIDERING THAT THERE IS A PENDING ANNULMENT OF MARRIAGE AT THE REGIONAL TRIAL COURT BRANCH 38 BETWEEN EMMANUEL SANTOS AND VICTORIA S. JARILLO. V.4. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT CONSIDERING THAT THE INSTANT CASE OF BIGAMY HAD ALREADY PRESCRIBED. V.5. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT CONSIDERING THAT THE MARRIAGE OF VICTORIA JARILLO AND EMMANUELSANTOS UY HAS NO VALID MARRIAGE LICENSE. V.6. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT ACQUITTING THE PETITIONER BUT IMPOSED AN ERRONEOUS PENALTY UNDER THE REVISED PENAL CODE AND THE INDETERMINATE SENTENCE LAW. The first, second, third and fifth issues, being closely related, shall be discussed jointly. It is true that right after the presentation of the prosecution evidence, petitioner moved for suspension of the proceedings on the ground of the pendency of the petition for declaration of nullity of petitioners marriages to Alocillo, which, petitioner claimed involved a prejudicial question. In her appeal, she also asserted that the petition for declaration of nullity of her marriage to Uy, initiated by the latter, was a ground for suspension of the proceedings. The RTC denied her motion for suspension, while the CA struck down her arguments. In Marbella-Bobis v. Bobis,[6] the Court categorically stated that:

x x x as ruled in Landicho v. Relova, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy, and in such a case the criminal case may not be suspended on the ground of the pendency of a civil case for declaration of nullity. x x x xxxx x x x The reason is that, without a judicial declaration of its nullity, the first marriage is presumed to be subsisting . In the case at bar, respondent was for all legal intents and purposes regarded as a married man at the time he contracted his second marriage with petitioner. Against this legal backdrop, any decision in the civil action for nullity would not erase the fact that respondent entered into a second marriage during the subsistence of a first marriage. Thus, a decision in the civil case is not essential to the determination of the criminal charge. It is, therefore, not a prejudicial question. x x x[7] The foregoing ruling had been reiterated in Abunado v. People,[8] where it was held thus: The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had already been consummated. Moreover, petitioners assertion would only delay the prosecution of bigamy cases considering that an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that. The outcome of the civil case for annulment of petitioners marriage to [private complainant] had no bearing upon the determination of petitioners innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted . Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding. In this case, even if petitioner eventually obtained a declaration that his first marriage was void ab initio, the point is, both the first and the second marriage were subsisting before the first marriage was annulled. [9] For the very same reasons elucidated in the above-quoted cases, petitioners conviction of the crime of bigamy must be affirmed. The subsequent judicial declaration of nullity of petitioners two marriages to Alocillo cannot be considered a valid defense in the crime of bigamy. The moment petitioner contracted a second marriage without the previous one having been judicially declared null and void, the crime of bigamy was already consummated because at the time of the celebration of the second marriage, petitioners marriage to Alocillo, which had not yet been declared null and void by a court of competent jurisdiction, was deemed valid and subsisting. Neither would a judicial declaration of the nullity of petitioners marriage to Uy make any difference.[10] As held in Tenebro, [s]ince a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. x x x A plain reading of [Article 349 of the Revised Penal Code], therefore, would indicate that the provision penalizes the mere act of contracting a second or subsequent marriage during the subsistence of a valid marriage.[11] Petitioners defense of prescription is likewise doomed to fail. Under Article 349 of the Revised Penal Code, bigamy is punishable by prision mayor, which is classified under Article 25 of said Code as an afflictive penalty. Article 90 thereof provides that [c]rimes punishable by other afflictive penalties shall prescribe in fifteen years, while Article 91 states that [t]he period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities, or their agents x x x . Petitioner asserts that Uy had known of her previous marriage as far back as 1978; hence, prescription began to run from that time. Note that the party who raises a fact as a matter of defense has the burden of proving it. The defendant or accused is obliged to produce evidence in support of its defense;

otherwise, failing to establish the same, it remains self-serving. [12] Thus, for petitioners defense of prescription to prosper, it was incumbent upon her to adduce evidence that as early as the year 1978, Uy already obtained knowledge of her previous marriage. A close examination of the records of the case reveals that petitioner utterly failed to present sufficient evidence to support her allegation. Petitioners testimony that her own mother told Uy in 1978 that she (petitioner) is already married to Alocillo does not inspire belief, as it is totally unsupported by any corroborating evidence. The trial court correctly observed that: x x x She did not call to the witness stand her mother the person who allegedly actually told Uy about her previous marriage to Alocillo. It must be obvious that without the confirmatory testimony of her mother, the attribution of the latter of any act which she allegedly did is hearsay. [13] As ruled in Sermonia v. Court of Appeals,[14] the prescriptive period for the crime of bigamy should be counted only from the day on which the said crime was discovered by the offended party, the authorities or their [agents], as opposed to being counted from the date of registration of the bigamous marriage.[15] Since petitioner failed to prove with certainty that the period of prescription began to run as of 1978, her defense is, therefore, ineffectual. Finally, petitioner avers that the RTC and the CA imposed an erroneous penalty under the Revised Penal Code. Again, petitioner is mistaken. The Indeterminate Sentence Law provides that the accused shall be sentenced to an indeterminate penalty, the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the Revised Penal Code, and the minimum of which shall be within the range of the penalty next lower than that prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The Indeterminate Sentence Law leaves it entirely within the sound discretion of the court to determine the minimum penalty, as long as it is anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence. [16] Applying the foregoing rule, it is clear that the penalty imposed on petitioner is proper. Under Article 349 of the Revised Penal Code, the imposable penalty for bigamy is prision mayor. The penalty next lower is prision correccional, which ranges from 6 months and 1 day to 6 years. The minimum penalty of six years imposed by the trial court is, therefore, correct as it is still within the duration of prision correccional. There being no mitigating or aggravating circumstances proven in this case, the prescribed penalty of prision mayor should be imposed in its medium period, which is from 8 years and 1 day to 10 years. Again, the trial court correctly imposed a maximum penalty of 10 years. However, for humanitarian purposes, and considering that petitioners marriage to Alocillo has after all been declared by final judgment [17] to be void ab initioon account of the latters psychological incapacity, by reason of which, petitioner was subjected to manipulative abuse, the Court deems it proper to reduce the penalty imposed by the lower courts. Thus, petitioner should be sentenced to suffer an indeterminate penalty of imprisonment from Two (2) years, Four (4) months and One (1) day of prision correccional, as minimum, to 8 years and 1 day of prision mayor, as maximum. IN VIEW OF THE FOREGOING, the petition is PARTLY GRANTED. The Decision of the Court of Appeals dated July 21, 2003, and its Resolution dated July 8, 2004 are hereby MODIFIED as to the penalty imposed, but AFFIRMED in all other respects. Petitioner is sentenced to suffer an indeterminate penalty of imprisonment from Two (2) years, Four (4) months and One (1) day of prision correccional, as minimum, to Eight (8) years and One (1) day of prision mayor, as maximum. SO ORDERED. Peralta, J., Ynares-Santiago, Chico-Nazario, Velasco, Nachura concur

G.R. No. 109454 June 14, 1994 JOSE C. SERMONIA, petitioner, vs. HON. COURT OF APPEALS, Eleventh Division, HON. DEOGRACIAS FELIZARDO, Presiding Judge, Regional Trial Court of Pasig, Br. 151, and JOSEPH SINSAY, respondents. Quasha, Asperilla, Ancheta, Pea and Nolasco for petitioner. Ponciano L. Escuadra for private respondent.

BELLOSILLO, J.: Bigamy is an illegal marriage committed by contracting a second or subsequent marriage before the first marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings. 1 Bigamy carries with it the imposable penalty of prision mayor. Being punishable by an afflictive penalty, this crime prescribes in fifteen (15) years. 2 The fifteen-year prescriptive period commences to run from the day on which the crime is discovered by the offended party, the authorities, or their agents . . . 3 That petitioner contracted a bigamous marriage seems impliedly admitted. 4 At least, it is not expressly denied. Thus the only issue for resolution is whether his prosecution for bigamy is already time-barred, which hinges on whether its discovery is deemed to have taken place from the time the offended party actually knew of the second marriage or from the time the document evidencing the subsequent marriage was registered with the Civil Registry consistent with the rule on constructive notice. The antecedents: In an information filed on 26 May 1992, petitioner Jose C. Sermonia was charged with bigamy before the Regional Trial Court of Pasig, Br. 151, for contracting marriage with Ma. Lourdes Unson on 15 February 1975 while his prior marriage to Virginia C. Nievera remained valid and subsisting. 5 Petitioner moved to quash the information on the ground that his criminal liability for bigamy has been extinguished by prescription. In the order of 1 October 1992, respondent judge denied the motion to quash. On 27 October 1992, he likewise denied the motion to reconsider his order of denial. Petitioner challenged the above orders before the Court of Appeals through a petition for certiorari and prohibition. In the assailed decision of 21 January 1993, his petition was dismissed for lack of merit. 6 In this recourse, petitioner contends that his criminal liability for bigamy has been obliterated by prescription. He avers that since the second marriage contract was duly registered with the Office of the Civil Registrar in 1975, 7such fact of registration makes it a matter of public record and thus constitutes

notice to the whole world. The offended party therefore is considered to have had constructive notice of the subsequent marriage as of 1975; hence, prescription commenced to run on the day the marriage contract was registered. For this reason, the corresponding information for bigamy should have been filed on or before 1990 and not only in 1992. Petitioner likewise takes issue with the "alleged concealment of the bigamous marriage" as declared by the appellate court, insisting that the second marriage was publicly held at Our Lady of Nativity Church in Marikina on 15 February 1975, and adding for good measure that from the moment of registration the marriage contract was open to inspection by any interested person. On the other hand, the prosecution maintains that the prescriptive period does not begin from the commission of the crime but from the time of discovery by complainant which was in July 1991. While we concede the point that the rule on constructive notice in civil cases may be applied in criminal actions if the factual and legal circumstances so warrant, 8 we agree with the view expounded by the Court of Appeals that it cannot apply in the crime of bigamy notwithstanding the possibility of its being more favorable to the accused. The appellate court succinctly explains Argued by the petitioner is that the principle of constructive notice should be applied in the case at bar, principally citing in support of his stand, the cases of People v. Reyes (175 SCRA 597); andPeople v. Dinsay (40 SCRA 50). This Court is of the view that the principle of constructive notice should not be applied in regard to the crime of bigamy as judicial notice may be taken of the fact that a bigamous marriage is generally entered into by the offender in secrecy from the spouse of the previous subsisting marriage. Also, a bigamous marriage is generally entered into in a place where the offender is not known to be still a married person, in order to conceal his legal impediment to contract another marriage. In the case of real property, the registration of any transaction involving any right or interest therein is made in the Register of Deeds of the place where the said property is located. Verification in the office of the Register of Deeds concerned of the transactions involving the said property can easily be made by any interested party. In the case of a bigamous marriage, verification by the offended person or the authorities of the same would indeed be quite difficult as such a marriage may be entered into in a place where the offender is not known to be still a married person. Be it noted that in the criminal cases cited by the petitioner wherein constructive notice was applied, involved therein were land or property disputes and certainly, marriage is not property. The non-application to the crime of bigamy of the principle of constructive notice is not contrary to the well entrenched policy that penal laws should be construed liberally in favor of the accused. To compute the prescriptive period for the offense of bigamy from registration thereof would amount to almost absolving the offenders thereof for liability therefor. While the celebration of the bigamous marriage may be said to be open and made of public record by its registration, the offender however is not truthful as he conceals from the officiating authority and those concerned the existence of his previous subsisting marriage. He does not reveal to them that he is still a married person. He likewise conceals from his legitimate spouse his bigamous marriage. And for these, he contracts the bigamous marriage in a place where he is not known to be still a married person. And such a place may be anywhere, under which circumstance, the discovery of the bigamous marriage is rendered quite difficult and would take time. It is therefore reasonable that the prescriptive period for the crime of bigamy should be counted only from the day on which the said crime was discovered by the offended party, the authorities or their agency (sic).

Considering such concealment of the bigamous marriage by the offender, if the prescriptive period for the offense of bigamy were to be counted from the date of registration thereof, the prosecution of the violators of the said offense would almost be impossible. The interpretation urged by the petitioner would encourage fearless violations of a social institution cherished and protected by law. 9

To this we may also add that the rule on constructive notice will make de rigueur the routinary inspection or verification of the marriages listed in the National Census Office and in various local civil registries all over the country to make certain that no second or even third marriage has been contracted without the knowledge of the legitimate spouse. This is too formidable a task to even contemplate. More importantly, while Sec. 52 of P.D. 1529 (Property Registration Decree) provides for constructive notice to all persons of every conveyance, mortgage, lease, lien, attachment, order, judgment, instrument or entry affecting registered land filed or entered in the office of the Register of Deeds for the province or city where the land to which it relates lies from the time of such registering, filing or entering, there is no counterpart provision either in Act No. 3753 (Act to Establish a Civil Register) or in Arts. 407 to 413 of the Civil Code, which leads us to the conclusion that there is no legal basis for applying the constructive notice rule to the documents registered in the Civil Register. Finally, petitioner would want us to believe that there was no concealment at all because his marriage contract with Ms. Unson was recorded in the Civil Registry which is open to all and sundry for inspection. We cannot go along with his argument because why did he indicate in the marriage contract that he was "single" thus obviously hiding his true status as a married man? Or for that matter, why did he not simply tell his first wife about the subsequent marriage in Marikina so that everything would be out in the open. The answer is obvious: He knew that no priest or minister would knowingly perform or authorize a bigamous marriage as this would subject him to punishment under the Marriage Law. 10 Obviously, petitioner had no intention of revealing his duplicity to his first spouse and gambled instead on the probability that she or any third party would ever go to the local civil registrar to inquire. In the meantime, through the simple expedience of having the second marriage recorded in the local civil registry, he has set into motion the running of the fifteen-year prescriptive period against the unwary and the unsuspecting victim of his philandering. Were we to put our imprimatur to the theory advanced by petitioner, in all likelihood we would be playing right into the hands of philanderers. For we would be equating the contract of marriage with ordinary deeds of conveyance and other similar documents without due regard for the stability of marriage as an inviolable social institution, the preservation of which is a primary concern of our society. WHEREFORE, finding no reversible error in the questioned decision of the Court of Appeals, the same is AFFIRMED. SO ORDERED. Cruz, Davide, Jr., and Quiason, JJ., concur. Kapunan, J., took no part. G.R. No. L-9604 November 19, 1914

THE UNITED STATES, plaintiff-appellee, vs. SANA LIM, ET AL., defendants-appellants.

William A. Kincaid, Jr., and Donald G. McVean for appellants. Office of the Solicitor General Corpus for appellee.

TORRES, J.: This action has come before us on appeal raised by the defendants Sionga Yap, Sana Lim, and Dina Lim, from the judgment of December 8, 1913, whereby the Honorable Adolph Wislizenus, judge, sentenced Tiburcio Ricablanca, Jing Kong Kiang ( alias Esteban), Sionga Yap, Sana Lim, and Dina Lim each to the penalty of six years ten months and one day of prision mayor, and to pay, each of them, one ninth of the costs. In the same judgment Rufino Cortes and Pedro Blando were acquitted, and by two orders of the same date, December 3, 1913, upon the petition of the provincial fiscal, the case was dismissed with respect to Eleno Suizo, in order to use him as a witness, and also Manuel Balbuena, with the costs de officio. (Record, pp. 24 and 25.) The record in this case shows that it was duly proven that some days prior to September 11, 1913, the Moro named Jamilassan disembarked from a vinta or small native boat, in which he and other moros were travelling, upon the beach of the barrio of Simala, pueblo of Sibonga, Island of Cebu, carrying with him 101 tins of opium, belonging to his employer, the Moro Tahil, for the purpose of selling the drug; that Jamilassan thereupon went to the store of the Chinaman King Kong Kiang (alias Esteban), situated in the said barrio and near the shore, to sell the opium, but that this Chinaman, instead of agreeing to buy it, went to the town of Sibonga and proposed its purchase to another Chinaman named Sionga, who in turn approached another Chinaman named Sana for the same purpose; that, as Sana did not have the money, Sionga then went to the municipal treasurer of the pueblo, Tiburcio Ricabalnca, to report the fact that the opium was being offered for sale; that Ricabalnca thereupon conceived the idea of seizing the opium brought by the Moro Jamilissan, with the intent to obtain in lawful gain, and, with this purpose in view, arranged that one of the Chinaman should pretend that he would buy the opium and upon his acquiring it the treasurer and his accomplices would proceed to arrest the Moro, seize the opium for the purpose of appropriating it to themselves, substitute molasses for a part of it and it deliver t the authorities the molasses and a part of the opium so seized, together with the bearer of the drug. In order to carry out the plan thus conceived, the Chinamen Sionga and Dina went to the pueblo of Carcar to buy molasses from the Chinaman Yap Chian, while the treasurer Ricablanca gave orders to the police sergeant Eleno Suizo to take two subordinates, dressed as civilians and without uniforms, and accompany those who were to execute the deed. On the night of the said 11th of September, 1913, the Moro Jamilassan, who, with his companions and his employer Tahil, was in the small boat anchored off the shore of the said barrio, believing that the Chinaman would buy the opium, went ashore carrying a sack that contained 101 tins of opium worth P3,333, or P33 a tin. Prior to his leaving the boat, the defendants had posted themselves in the vicinity of the place where the Moro was to land. When Jamilassan, who was carrying the opium, drew near to Sionga, the pretended purchaser, the latter, according to an arrangement previously made with his companions, twice lit some matches, whereupon the defendants appeared upon the scene preceded by the sergeant and his policemen who, brandishing their weapons to frighten the Moro, arrested him and seized the opium he was carrying in the sack. At this moment, as the Moro succeeded in escaping toward the boat, the sergeant fired his revolver four times and the treasurer Ricablanca also fired his. Thereupon the Moros in the boat precipitately filed from the shore, but the one who carried the opium was finally captured. The defendants then appropriated to themselves 77 tins of the opium, set aside 12 of them, and for the contents of the remaining 11 tins they substituted molasses, 1 tin having been lost. These 12 tins of opium and 11 tins of molasses were delivered by them to the authorities as having been legally seized the possession of the Moro Jamillasan, the bearer of the drug. By reason of the foregoing facts, the provincial fiscal filed in the Court of First Instance a criminal complaint against the Chinese appellants, the municipal treasurer of the pueblo of Sibonga, some policemen and others who took part, charging them with having seized opium of the value of P3,300,

the property of a Moro named Tahil, willfully, maliciously, and criminally, with intent to gain and by the use of violence and intimidation against the person of the Moro Jamilassan, who was carrying the said drug.
lawph!1.net

Article 502 of the Penal Code prescribes that the crime of robbery is committed by any person who, with intent to gain, shall take any personal property by the use of violence or intimidation against any person or force upon any thing. Although the subject matter of the robbery was an article whose introduction, use, and keeping were, and are, strictly prohibited by the laws in force in these Islands, wherefore all public officers vested with authority, and their agents, are under obligation to prosecute any violation of the law and to seize the prohibited drug and all similar substances which are of course confiscated, unless their use or keeping has been expressly authorized by competent authority; yet, when it has been fully proved at the trial that the capture and seizure of the opium was effected by a public officer, assisted by agents of the authorities, with the decided intent to gain thereby the price or value of the opium so seized, and not with the intention to comply with the law and further the purposes of the Government in the eradication and suppression of the vice of its use, one which is very prevalent among the Chinese residents of these Islands and is also spreading among the active inhabitants; and when the commission of the unlawful act was attended by violence and intimidation against the person who was carrying the opium, it is improper to consider such taking and seizure as lawful and permissible, even though executed by agents authorized to arrest and prosecute opium smugglers, inasmuch as the seizure of the opium was effected with intent to gain and by the use of violence and intimidation, in the present case, against the person of the Moro who, is the agent of its owner, had possession of the drug. The seizure of the opium and the arrest of its bearer by the agents of the authorities is indeed permissible and perfectly lawful; but that such agents, with the intent and purpose of appropriating to themselves the opium seized and of deriving benefit from its use or sale, should, with impunity and entire security, possess themselves of the opium, cannot be tolerated. Until the agents of the authorities have taken charge of it in the manner prescribed by the administrative law, it is the property of the owner. The Moro Jamilassan having been deprived of the 101 tins of opium, which, by order of the owner of the drug, he was carrying to sell, and this taking having been effected with violence and intimidation on the part of the agents of the authorities, who acted in apparent compliance with the law, but really with intent to obtain unlawful gain, it is unquestionable that the crime of robbery, provided for and punished by articles 502 and 503, paragraph 5, of the Penal Code, was committed. The legality and correctness of this classification of the crime are in no wise affected by the circumstance that the persons who committed it were agents of the authorities, assisted by some private parties, since the public character with which these agents were invested does not justify the criminal intent that prompted the execution of the punishable act, nor can it change the nature of the crime they committed, inasmuch as, on the occasion of its perpetration, they acted, not as agents of the authorities in the fulfillment of the duties imposed upon them by the law, but as mere private parties, accompanied by some Chinamen, all of whom conspired together and concerted, under the direction of the treasurer Ricablanca, for the purpose of seizing a considerable quantity of valuable opium which was not their property, but belonged to the Moro Tahil, and which is an article that, upon seizure and confiscation within the territory of this Archipelago, becomes the property of the Government. In this connection it is to be noted that the treasurer Ricablanca, before proceeding to seize the opium, gave no notice either to the municipal president or to the local chief of the Constabulary, nor did he request the latter's assistance; all of which shows that he did not act in good faith and according to the law. Without discussing the guilt of the defendant Ricablanca and the Chinaman King Kong Kiang, neither of whom has appealed, we shall confine ourselves in this decision to inquiring into that of the appellant Chinamen Sionga Yap, San Lim, and Dina Lim. Their participation in the robbery under prosecution was very different from that of the first two, inasmuch as Sionga Yap was present with the policemen during the perpetration of the robbery, he took a direct part therein and cooperated in its commission by the performance of acts without which, perhaps, his co-participants would not have succeeded in seizing the opium. It was he who pretended to purchase the drug by placing himself in direct communication with the Moro who carried it, and arranged the place and time when the latter should appear on the beach at Simala with the opium for sale; it was this same Chinaman who, in accordance with the agreement he had made with his codefendants, went to the shore ahead of the latter there to await the Moro Jamilassan who was expected with the opium; he, too, it was, who signaled the arrival of the Moro on the shore, by lighting two matches, at which signal the policemen and their companions came up and the former rushed upon the Moro, held him fast, and by force possessed themselves of the opium, the securing of which was the purpose of the common action of the plotters. It cannot be denied, therefore, that Sionga participated as a co-principal in the perpetration of the robbery in question.

We are of the opinion that the other appellants, Sana Lim and Dina Lim, acted as accomplices in the commission of the crime. They cooperated by acts prior and simultaneous with its perpetration, but the record does not show that they performed acts that were necessary and indispensable for its realization. With knowledge of the commission of the robbery and with the intent to obtain unlawful gain, they accompanied the principals in the crime up to a certain distance from, though not near, the place where it was perpetrated, but did not approach that place until after the robbery took place and when then for the sole purpose of sharing in the booty or the division of the opium stolen. Hence, as these two defendants do not fall within any of the three classes specified in article 13 of the Penal Code, which treats of principals, the said Sana Lim and Dina Lim are to be considered as mere accomplices of the principals in the robbery. Counsel for the defendants, arguing against the classification of the crime, alleges that at most it should be defined as estafa, and in support of his contention cites several decisions of this court and of the supreme court of Spain, where the principle is laid down that such acts should be qualified as estafa and not robbery, for the reason that the agents of the authorities were authorized to seize the opium and the persons having it in their possession or who were its owners, and because the officers of the law could not, in the act of the seizure of a prohibited article, have exercised violence and intimation upon the person of a transgressor; that it after the seizure of the opium, they conceived the purpose of gain and it was then that they appropriated to themselves the opium seized, they would in such a case have committed the crime of estafa, but not that of robbery. In answer to these allegations we must state that the robbery was engendered from the very moment when the principals resolved to possess themselves of the opium carried by the Moro Jamilassan, with the fixed and malicious intent to obtain unlawful gain from the said drug which, as was well and publicly known, obtained a high price, among the Chinese, its chief consumers. With that end in view, they came to an agreement, formed a conspiracy among themselves and, under the direction of the treasurer Ricablanca, decided upon the method by which they should possess themselves of the opium so that they might derive profit from its sale. They later took the opium the possession of its bearer by means of violence and intimidation, since four shots were fired by one of the policemen and another by the treasurer Ricablanca, who was present at the commission of the robbery. There is, therefore, no question that the persons who, with malicious intent to obtain unlawful gain and by the use of violence and intimidation, forcibly possessed themselves of the opium carried by the Moro Jamilassan, proceeded and acted in the same manner as robbers usually do who, with intent to gain, take possession of another's property against the will of its owner. In the cases cited by the defense to show that the crime under prosecution should be classified as estafa and not as robbery, the guilty persons first acted in good faith in the discharge of their duties and without any unlawful intention, and the intent to derive illicit gain was formed only after they had legally seized the property. For this reason those acts cannot be classified as robbery, only as estafa, because prior to and at the time of their performance, they acted as agents of the authorities and in accordance with law, and only after they were in possession of the property, did they conceive the idea of deriving profit therefrom by appropriating it to themselves for personal gain. In the case at bar, both the treasurer Ricablanca and the Chinese appellants, from the moment they proposed to seize the opium which the Moro Jamilassan carried for sale, had the intention to appropriate to themselves the greater part of the drug. They even planned to deceive the authorities by substituting molasses for the contents of 11 of the 23 tins of opium which they presented to the said authorities as legally seized from Jamilassan. They kept 77 of the tins so seized and made no report of them to their superior, nor does the record show that these tins were afterwards recovered from the possession of the defendants. Therefore it is just and proper that the crime in question should be classified as robbery, and not as estafa. In the commission of the crime account must be taken of the attendance of the aggravating circumstance No. 15, to wit, that the crime was committed in the nighttime and in an uninhabited place, without any extenuating circumstance to offset its effects. No weight can be given to abuse of superior strength, that circumstance being inherent in the crime of robbery, even though it were not committed by a band of armed men. For the foregoing reasons, whereby the errors assigned to the judgment appealed from are deemed to have been refuted, the said judgment is affirmed in so far as it degrees with this decision and reversed in so far as it does not, and we hereby sentence the Chinaman Sionga Yap, as a principal,

to the penalty of six years ten months and one day of presidio mayor and to the accessory penalties of article 57, and each of the other Chinamen, Sana Lim and Dina Lim, as accomplices, to six months of arresto mayorand the accessory penalties of article 61. Furthermore, Sionga is sentenced to restore, jointly and severally with his co-principals, the opium stolen or to pay the value thereof to the Government of the Philippine Islands, ad the accomplices, Sana Lim and Dina Lim, are held to be bound, also jointly and severally between themselves and subsidiary in default of fulfillment, for the civil liabilities incurred by the principals, and each of the three appellants shall pay one-third of the costs of this instance. The opium seized and all quantities thereof that may be recovered shall be confiscated. Arellano, C.J., Carson and Araullo, JJ., concur.

G.R. No. 104611 November 10, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FELIMON JAVA Y MERCADO, accused-appellant The Solicitor General for plaintiff-appellee. Aida D. Dizon for accused-appellant.

NOCON, J.: Convicted of the crime of robbery with homicide in Criminal Case No. 88-372 before the Regional Trial Court of Quezon City, Branch CIII, accused Felimon Java y Mercado interposed this present appeal. Enumerating eight (8) errors which the trial court allegedly committed, he dutifully discussed each of them and insisted on his innocence. Sequentially, we will analyze the merit of each of the said errors, to wit: I . . . . IN HOLDING THAT SALVADOR CAMBAYA POSITIVELY IDENTIFIED ACCUSED-APPELLANT AS A PRINCIPAL ACTOR IN THE COMMISSION OF THE CRIME AT BAR. II . . . . IN HOLDING THAT ACCUSED-APPELLANT COMMITTED ROBBERY AGAINST THE PERSONS OF MICHAEL VALDEZ AND VIRGINIA VALDEZ. III

. . . . IN GIVING CREDENCE TO THE TESTIMONY OF PASTOR VALDEZ IN SPITE THE FACT THAT HIS TESTIMONY WAS NOT FORMALLY OFFERED BY THE PROSECUTION. IV . . . . IN HOLDING THAT VIRGINIA VALDEZ POSITIVELY IDENTIFIED ACCUSED-APPELLANT AS A PRINCIPAL ACTOR IN THE COMMISSION OF THE CRIME AT BAR. V . . . . IN FINDING ACCUSED-APPELLANT GUILTY OF THE CRIME OF ROBBERY WITH HOMICIDE VI . . . . IN FINDING ACCUSED-APPELLANT GUILTY OF THE CRIME OF ROBBERY WITH HOMICIDE BASED ON EVIDENCE NOT ON RECORD. VII . . . . IN NOT GIVING CREDENCE TO TESTIMONY OF COL. RODOLFO GARCIA AND OTHER DEFENSE WITNESSES. VIII
. . . . IN NOT GIVING CREDENCE TO THE DEFENSE OF ALIBI OF ACCUSED-APPELLANT.
1

The facts upon which the trial court based its decision convicting the accused are as follows: At about 3:00 p.m. on March 19, 1988, at the V. Valdez Trading, a gravel and sand establishment located at P. Tuazon Street, Cubao, Quezon City, two men appearing to be customers, arrived. One of them proceeded to the office building while the other approached Salvador Cambaya a truck helper, while the latter was weighing cement in front of the establishment. This man poked a gun at Cambaya, announced a hold-up, divested him of his P20.00 and ordered him to enter the office building where he and other employees and a customer were gathered in front of the counter by the man identified later as accused Felimon Java. The other man ransacked the drawers and found some money which he took. Then he proceeded to the room where Michael Valdez, the son of the owner of the establishment was. Michael was heard as saying "Wala sa. akin ang susi" and "walang pera diyan". The employees gathered in front of the counter also heard something being destroyed and after a while, saw the man rush out holding a brown envelope. The two men hurriedly left. Meanwhile, Virginia Cabate Valdez, the mother of Michael Valdez, was at the beauty parlor in front of their establishment. She was informed by the owner of the parlor that a commotion was going on at their place. She rushed out and was informed by her son, Michael, that they had just been robbed of P50,000.00. Since Michael decided to run after the holduppers and he could not be stopped from doing so, she boarded the car of Michael, a 'Toyota, and went with him. They drove along 20th Avenue and turned left, at Boni Serrano where Michael saw and pointed to the get-away vehicle of the holduppers, which was a maroon-colored passenger jeepney. Michael bumped the jeepney several times and turned left at Katipunan Road. However, the holduppers followed them and bumped their car several times at the rear and sides. Somewhere further along the Katipunan Road, one of the holduppers fired a gun

hitting the rear glass of Michael's car. While the jeepney was side by side with their car, he fired more shots at them hitting Michael on the torso and on the left side of his body. As a result, Michael died. The holduppers sped away towards Quirino Labor Hospital. Salvador Cambaya described to the Quezon City cartographer the physical characteristics of the man who accosted him as follows: "5'5" and taas, mga 28-30 an edad, maitim, mabilog ang katawan, kulot na medyo maikli ang buhok, pabilog din ang mukha," 2 On the other hand, Mrs. Valdez described the man who killed her son as:
Bilog ang mukha, maitim, bilog ang katawan, mga 35-40, kulot ang buhok.
3

On August 25, 1988 at around 11:00 a.m., Pat. Zaragosa, a police operative, went to see Mrs. Valdez and asked her whether she would be able to recognize the man who killed her son if she saw him again. Answering in the affirmative, she was brought to Quezon City Hall and advised to be observant. When they were on a street near the office, of the Metro Manila Commission, she saw a man inside the building which was 20 to 25 meters away. She could see him from the neck up as the latter was facing the window. She positively declared that he was the gunman and could not be wrong because she could not forget the face, especially the eyes of the man who shot her son. As a result of such identification, accused was arrested on August 26, 1988 and on August 29, 1988, an information was filed with the Regional Trial Court of Quezon City charging him with the crime of Robbery with Homicide, which read as follows: That on or about the 19th day of March, 1988, in Quezon City, Philippines, and within the jurisdiction of this Court, the said accused, conspiring together, confederating with and mutually helping one another, with intent of gain, with violence and/or intimidation of person, did, then and there, willfully, unlawfully and feloniously (sic) VIRGINIA VALDEZ y CABOTE and MICHAEL VALDEZ y CABOTE, mother and son respectively, by then and there, pointing their respective firearms at them and thereafter take, rob and divested the victims' collection for the day amounting to P50,000.00, Philippine Currency, to the damage and prejudice of the said owner thereof in the total sum; that on the occasion of the said robbery, the said accused, conspiring together, confederating with and mutually helping one another, with intent to kill attack, assault and employ personal violence against Michael Valdez y Cabote, by then and there shooting him with a .38 cal. revolver marked Smith and Wesson, hitting him on his left breast, thereby inflicting him serious and mortal wounds which were the directed and immediate cause of his death, to the damage and prejudice of the heirs of the said Michael Valdez in such amount as may be awarded under the provisions of the Civil Code.
CONTRARY TO LAW. 4

At the trial of the case, Salvador Cambaya and Mrs. Valdez recounted the aforesaid facts. Mrs. Valdez testified that her family spent P13,833.20 for the Manila Memorial Park lot, P55,000, for the funeral services and P20,000.00 for the wake or a total of P48,833.20. Pastor Valdez, Michael's father testified that his establishment lost P50,000.00 to the robbers. He explained that Michael had collected P40,000.00 from a customer in Taguig, Rizal and the P10,000 came from the proceeds of the sale of construction materials that day. He handed the P10,000.00 to Michael to be placed together with the P40,000.00 in the cabinet. The defense evidence consisted, among others, of the testimony of accused Felimon Java and his witnesses, namely Col. Rodolfo Garcia, Patrolman Jose Malasa and Pfc. Mario Almariego. All their testimonies evinced the theory that accused could not have committed the crime charged as he was at the office of Colonel Rodolfo Garcia, who was then the Station Commander of the Quezon City Police Force at the precise time and date as that of the commission of the offense.

Felimon Java testified that he was a former Quezon City policeman; that he was dismissed from the service on April 24, 1987 in view of an administrative case against him for violation of domicile; that when he was separated from the service, he bought a tricycle to earn a living; that in the month of July, 1988, he was a member of the Quezon City People's Patrol serving as security guard for Sonny Pumarada; and that from August 1, 1988 up to the time of his arrest, he was working as civilian agent of Western Sector Command, Malacaang Park, Metro Manila. On August 26, 1988, he was at Quezon City Hall particularly at the Metro Manila Commission Compound, together with one Sgt. Caingles, conducting a surveillance, when he was apprehended by Patrolman Zaragosa and brought to the office of one Major Rosales at Kamuning, EDSA. He claimed that Major Rosales, being the Supreme of the Guardians Chapter and Pat. Zaragosa, a member thereof, had both an ax to grind against him because on January 13, 1987, he, shot dead two marines who were members of the Guardians who attacked their headquarters at Kamuning, Quezon City during, the coup attempt. He was then a sentinel at the said police headquarters. On March 19, 1988, from 2:30 to 4:00 p.m., he was at the office of Col. Rodolfo M. Garcia asking for a letter of recommendation to Col Guillermo Domondon for his reinstatement to the service. He presented to the court said letter of recommendation dated March 19, 1993 quoted herein as follows: Col. Guillermo Domondon C, C1 Division Camp Crame, Q.C. Dear Sir: Please help bearer, Pat Felimon Java in this reinstatement Regards,
Rudy 5

He brought the letter of recommendation to Col. Domondon but was informed by one Rodriguez that the latter was out of town and that anyway, he already had a recommendation from Colonel Jaro, an aide of then Gen. Fidel Ramos. He didn't know about that Jaro recommendation but remembered that he had previously sought Col. Jaro to accompany him to see Col. Domondon when he was with the People's Patrol. Pfc. Mario Almariego and Patrolman Jose Malasa corroborated his claim that he was at the office of Col. Garcia between 2:00 to 4:00 o'clock p.m. of March 19, 1988 for the purpose of securing a recommendation and that he lingered for some more time after getting the same. Col. Rodolfo M. Garcia likewise confirmed the visit of the accused but also admitted that his office is swarmed with visitors everyday and he cannot memorize the names of people who see him. He also said that the accused visited him again after he gave that note of recommendation asking for assistance to get employed. He, remembered recommending him to a certain Sonny Pumarada who works at the Quezon City Hall. After trial, accused was convicted of the offense charged, the dispositive portion of which read as follows: ACCORDINGLY, judgment is hereby rendered finding FELIMON JAVA Y MERCADO GUILTY beyond reasonable doubt. as principal for the crime of Robbery with Homicide. Said Felimon Java is hereby sentenced to suffer a jail term of RECLUSION PERPETUA

On the civil aspect said accused Felimon Java is hereby ordered to pay the spouses Pastor and Virginia Valdez the sum of P150,000.00 in relation to the robbery at bar, the sum of P50,000.00 as actual damages for the death of their son Michael Valdez, the sum of P100,000.00 as moral damages and another P100,000.00 as exemplary damages. No costs.
SO ORDERED. 6

Going through the eight assignments of errors allegedly committed by the trial court we note that the thrust of the defense particularly in the first assignment of error is centered on the want of positive identification of the perpetrator of the crime. The accused-appellant harped on the disparity in the cartographs of the supposed suspects, Exhibits "E" and "C", based on the descriptions given by the prosecution witnesses Salvador Cambaya and Virginia Valdez, respectively. While conceding that the cartographs do not portray the same person, a comparison, however, of 'the descriptions given by said prosecution witnesses in their respective sworn statements previously quoted herein shows that except for the age range of the accused-appellant, all the details agree and point to one and the same person. Both descriptions speak of a person with a circular face, stocky physique and curly hair. Thus, it is not the witnesses' fault if the cartographs came up with slightly different drawings of the accused-appellant. The cartographer could have perceived declarations along different lines. Nevertheless, the important factor is that both witnesses identified the accused-appellant in court when they came face to face with him and pinpointed to him respectively as one of the robbers and the gunman. While the evidence as to the identity of the accused-appellant as the person who committed the crime should be carefully analyzed, the Court has consistently held that where conditions of visibility are: favorable and the witness does not appear to be biased against the man on the dock, his or her assertions as to the identity of the malefactor should be normally accepted. 7 The witnesses in this case, particularly Mrs. Valdez, had a clear recollection of the identity of the assailant of her son. She categorically declared that she had a good look at him and could not forget his face, particularly his eyes. She was not the kind of person that would perjure herself just to get a man into trouble. She had no motive for filing the case against the accused-appellant other than to seek redress not so much for the loss of the earnings of their establishment but more so for the death of her son. In the face of her clear and positive testimony regarding the accused-appellant's role as the gunman of her son, as well as Cambaya's positive identification of the same person as the man who accosted him, there is no mistaking that accused-appellant is one of the perpetrators of the crime. Accused-appellant next claims in his second and third assignments of errors, that the prosecution failed to establish the fact of robbery because only two witnesses testified to the same, namely: Cambaya, who declared that accused-appellant got his P20.00, and Pastor Valdez, whose testimony was not offered by the prosecution at the time he testified in court on November 14, 1989 and hence cannot be considered pursuant to Sections 34 and 35 of Rule 132 of the Revised Rules of Court. Indeed, Section 34, Rule 132 of the Revised Rules of Court requires that for evidence to be considered, it should be formally offered and the purpose specified. This is necessary because judge has to rest his findings of fact and his judgment only upon the evidence offered by the parties at the trial. 8 Under, the new procedure as spelled out in Section 35 of the said rule which became effective on July 1, 1989, the offer of the testimony of a witness must be made at the time the witness is called to testify. The previous practice was to offer the testimonial evidence at the end of the trial after all the witnesses had testified. With the innovation, the court is put on notice whether the witness to be presented is a material witness and should be heard, or a witness who would be testifying on irrelevant matter or on facts already testified to by other witnesses and should therefore, be stopped from testifying further.

In the case at bar, we note that Pastor Valdez was not one of the witnesses originally intended to be presented by the prosecution. He was merely called to the witness stand at the latter part of the presentation of the prosecution's evidence. There was no mention why his testimony was being presented. However, notwithstanding that his testimony was not formally offered, its presentation was not objected to either. Section 36 of the aforementioned Rule requires that an objection in the course of the oral examination of a witness should be made as soon as the grounds therefor shall become reasonably apparent.. Since no objection to the admissibility of evidence was made in the court below, an objection raised for the first time on appeal will not be considered. 9 Besides, even if the testimony of Pastor Valdez were not admitted, the robbery was established by the testimony of Cambaya who not only stated that his P20.00 was taken at the point of a gun but that accused-appellant's companion ransacked their office, found and fled away with some money. He was not sure only of the exact amount taken. At any rate, the amount stolen came to be known when Mrs. Valdez who rushed to their office, after being informed of a commotion therein, testified to being informed by her son, Michael, that they have been robbed of P50,000.00. This statement is admissible as part of the res gestae, having been made immediately after a startling occurrence and before the declarant had time to concoct matters so that his utterance at that time was merely a reflex product of his immediate sensual impression. Said statements is admissible in evidence as one of the exceptions to the hearsay rule on the ground of trustworthiness and necessity. Zeroing in on Mrs. Valdez' identification of her son's assailant, subject of the fourth assignment of error, accused-appellant pointed out that at the time of the car chase, Mrs. Valdez was so tense, nervous and excited, continually hugging her son until the time that he was shot, so that her attention must have been focused on her son and not on the assailant. On top of that, Mrs. Valdez who was wearing eyeglasses admitted that she was crying at that time, so much so that the accused-appellant surmised that her glasses must have misted and blocked her vision. Accused-appellant's conjectures have no basis in fact and collide with Mrs. Valdez' testimony that she had a good look at the assailant in the passenger jeep. Indeed some circumstances do not always produce the same effects as accused-appellant would want us to believe. Considering the relative positions of the passenger jeepney where the accused-appellant was riding in and the Toyota car driven by the victim with his mother as passenger, which were running side by side at high speed when the shooting occurred, we find it impossible for the assailant not to be seen and identified by Mrs. Valdez. A witness usually strive to remember the uncovered face of the assailant. 10 This, Mrs. Valdez must have done. Accused-appellant's fifth and sixth assigned errors center on the alleged failure of the prosecution to prove that those who committed the robbery and those who killed the victim are one and the same persons as to establish the crime of robbery with homicide. Not only are these arguments fallacious but have no leg to stand on. Prosecution witness Salvador Cambaya positively identified the accused-appellant as one of those who held him up as well as the establishment where he works. While Mrs. Valdez identified the same accused-appellant as the jeep passenger who shot and killed his son. Hence, the connection between the robbery and the homicide was sufficiently established. True, the robbers in the case at bar had already fled with their loot when the shooting of the victim took place during his hot pursuit of the culprits. It is settled that where the deceased attacked and stopped the robbers when they had already come out of the store where the robbery was committed and got killed in the process, it cannot be denied that the act of killing was done in order to repel an aggression which, had it been effective, would have endangered the whole success of the robbery committed. it was done, in the final analysis, in order to defend the possession of the stolen property. It was therefore an act which tended to insure the successful termination of the robbery and secure to the robbers the possession and enjoyment of the goods taken. 11 It has also been held that where the deceased followed the robbers after he had been robbed and by reason thereof, he was fired upon by one of the robbers, the crime is robbery with homicide. 12

The same is true even if the murder was perpetrated at a place different from that of the robbery and after an appreciable interval of time. 13 As to accused-appellant's defense of alibi, subject of the seventh and eighth assignment of errors, accused-appellant contends that the same is supported by the testimony of no less than Colonel Rodolfo M. Garcia, Station Commander, QCPS, now Central Police District, who would not have sacrificed his name and integrity by testifying in his favor if it not true that he was in the colonel's office at the time of the commission of the offense. While it may be true that accused-appellant indeed sought Col. Garcia's recommendation for reinstatement to the service on the date in question as borne out by the letter of recommendation itself, which is dated March 19, 1988, such fact does not conclusively prove that accused-appellant was at the colonel's office on said date and time as that of the commission of the crime charged. There was no logbook which recorded his visit, nor the date and time thereof; nor was the letter of recommendation recorded as having been issued by the colonel's office on said date. Hence, there is no independent proof showing that Col. Garcia issued said letter on March 19, 1988. The good Col. Garcia even admitted that he could not remember the other people who visited him on said day or any day for that matter. Likewise, the trial judge noted that accused-appellant presented this defense only long after the case has gone to trial and more importantly, he noticed that the testimony of accused-appellant himself provided the clue that indicated that his defense predicated on alibi has been merely contrived. Said the Judge in his decision: 1. The centerpiece of the defense theory is the note of recommendation of Col. Rodolfo Garcia for Felimon Java dated March 19, 1988. On the date the accused by his own testimony, was still a tricycle driver as he joined the Quezon City People's Patrol only on July 1988 upon the recommendation of Col. Garcia.
The testimony of Col. Garcia is that he recommended the accused to Mr. Pumarada of the Quezon City People's Patrol after that March 19, 1988 visit made by Java to him. But according to Java, when he went to the office of Col. Domondon to present the note of recommendation issued by Col. Garcia, a sergeant Rodriguez there told him that the Garcia note is unnecessary already because he already has the Jaro Letter attached to Java's record. Consequently, the Col. Jaro note must have preceded the Col. Garcia note-which is what the defense wanted to convey. Yet, in the latter part of Java's narration in court he stated that he was already with the People's Patrol when Col. Jaro accompanied him to Col. Domondon. Inasmuch as (the) Col. Jaro note came ahead of (the) Col. Garcia note and by the time the Col. Jaro note was given the accused was already in the Quezon City People's Patrol, then the Col. Garcia note could not have been issued on March 19, 1988 when Java was still a tricycle driver. 14

Thus, notwithstanding the stature of accused-appellant's witnesses, their testimonies may be disregarded in the light of the other defense evidence at hand. Testimony to be believed must not only proceed from a credible witness but must be credible in itself and be able to stand the test of scrutiny along with the other testimonies. Thus, the accused-appellant's invocation of alibi is unavailing not only by reason of its inherent weakness but also because of the circumstances pointing to its contrived nature and his positive identification by the prosecution witnesses as one of the persons who participated in the robbery and shot the victim. In recapitulation, not even one of the eight arguments of accused-appellant in support of his appeal proved its worth as an error. Not a tinge of doubt was created on the guilt of the accused-appellant. On the other hand, the prosecution evidence showed that the positive identification made by of him by no less than two prosecution witnesses was direct, clear and positive. WHEREFORE, the decision appealed from is hereby AFFIRMED in toto being in accordance with law and the established facts of the case. SO ORDERED. Narvasa, C.J., Padilla, Regalado and Puno, JJ., concur. G.R. No. L-13899 September 29, 1961

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLO BLAZA and FRANCISCO MANGULABNAN, defendants, FRANCISCO MANGULABNAN, defendant-appellant. Office of the Solicitor General for plaintiff-appellee. Manansala and Saturnino for defendant-appellant.

PADILLA, J.: In an amended information subscribed by the Provincial Fiscal and filed in the Court of First Instance of Laguna, Pablo Blaza alias Fernandez and Francisco Mangulabnanalias Ellen were charged with the crime of kidnapping Dorotea Fernandez, Fe Fernandez and Buenaventura Fernandez on 23 April 1953, for the purpose of extorting ransom from them, defined and penalized under the provisions of Article 267 of the Revised Penal Code, as amended by Republic Act No. 18 (crim. case No. SC-161). Their alleged confederates are those named defendants in crim. case No. SC-120 of the same Court, to wit: Lope Cunanan alias Perla, Ruperto Esquillo aliases Sergio and Alex, Raymundo Abesamis aliases Rading, Reddy, Mike, Manding, Uto, Ben, Pepe and North. 1 Upon arraignment the defendants Blaza and Mangulabnan, assisted by counsel de oficio, pleaded not guilty. On 5 November 1957 the defendant Mangulabnan by counsel de parte, Attorney Emilia C. Saturnino, filed a motion to quash the information against him, claiming that he is one of the defendants in crim. case No. 1940 of the Court of First Instance of Pampanga, People vs. Guillermo Paquinto, et al., for "the complex crime of Rebellion with Multiple Murders, Robberies, Arsons and Kidnapping," on 27 counts of atrocities allegedly committed on different dates in the provinces of Pampanga, Pangasinan, Bulacan, Nueva Ecija, Tarlac and Laguna (Exhibits 1 & 1-A); that in criminal case No. 15909 of the Court of First Instance of Laguna, People vs. Apolinar Oracion, et al., for rebellion complexed with multiple murder, robbery, arson, rape and kidnapping, the kidnapping of Dorotea Fernandez, Fe Fernandez and Buenaventura Fernandez on 23 April 1957 (for which the defendant Mangulabnan was separately charged in crim. case No. SC-161) was for the purpose of raising funds for the HMB organization and a necessary means of committing the crime of rebellion (Annex B to motion to quash); that on 17 December 1956 the said court, rendering judgment in the latter case, held that "such act was in furtherance and a mere ingredient of the offense of rebellion" and "cannot be punished separately from the latter (rebellion) or complexed with it" (Annex C to motion to quash); and that the Supreme Court in the cases of People vs. Hernandez, 52 Off. Gaz. 5506; People vs. Geronimo, G.R. No. L-8936, 23 October 1956 and People vs. Togonon, G.R. No. L-8926, 29 June 1957, has held that "the crimes of murders, arsons, kidnappings, etc., when committed as a means to or in furtherance of the subversive ends, become absorbed in the crime of rebellion, and cannot be considered as giving rise to a separate crime;" and contending that the defendant Mangulabnan having been charged with the principal offense of rebellion in crim. case No. 1940 of the Court of First Instance of Pampanga is twice put in jeopardy of being punished for the same offense in crim. case No. SC-161 of the Court of First Instance of Laguna, prayed that the information in the latter case be quashed. After hearing, during which counsel de parte for the defendant Mangulabnan and the Provincial Fiscal appeared and orally argued in support of their motion and objection, on 5 November 1957 the Court denied the motion to quash and set the case for trial on 29 November 1957 at 9:00 o'clock in the morning. However, the Court cancelled the trial set for 29 November 1957 and reset it for trial on 12 December 1957 at the same time. On 11 December 1957 the defendant Mangulabnan filed a motion for reconsideration of the order denying his motion to quash and on 12 December 1957 the Provincial Fiscal, an objection thereto. On the same day, 12 December 1957, the Court denied the motion for reconsideration and set the case for trial on 27 January 1958 at 9:00 o'clock in the morning. On 16 January 1958 the defendant Mangulabnan by counsel de parte filed a petition praying that the case be reset for trial on 25 February 1958 on the ground that a petition for certiorari testing the legality of the denial of the defendant's motion to quash would be filed in the Supreme Court after the needed amount for filing and attorney's fees shall have been raised by the defendant.

On 22 January 1958 the defendant Blaza filed a motion praying for separate trial in view of the delay in the trial of the case due to several postponements at the behest of his co-defendant. On 23 January 1958 the Court denied Blaza's motion and reset the case for trial on 25 February 1958. On the day set for trial, 25 February 1958, the assistant provincial fiscal and counsel de parte for the defendant Blaza, Attorney Ariston Oblena, appeared but counsel de parte for the defendant Mangulabnan, Attorney Emilia C. Saturnino, did not appear despite previous notice. In view thereof the Court entered an order imposing upon the absent counsel a fine of P25, with subsidiary imprisonment in case of insolvency, appointing Attorney Tirso Caballero as counsel de oficio for the defendant Mangulabnan, who prayed that he be relieved from his appointment because he is related to the offended parties, setting the case for trial on 3, 4, 5, 6 and 7 March 1958 at 9:00 o'clock in the morning, and appointing Attorney Celso Cabalones, Leandro Rebong, Benjamin Agarao and Enrique Villanueva as counsel de oficio for the defendant Mangulabnan, should counsel de parte fail to appear on the first day of the trial. On 28 February 1958 counsel de parte for the defendant Mangulabnan filed a petition in the trial court explaining that her failure to attend the trial of the case on 25 February 1958 was due to a sudden indisposition that she felt of which there was no material time to notify the Court and prayed that she be excused for failure to attend the trial of the case on that date, and alleging that a petition for certiorari with preliminary injunction to be filed in the Supreme Court was being prepared to test the sufficiency and legality of the information filed against her client in criminal case No. SC-161 and that she had received subpoenas from the City Attorney of Quezon City, Courts of First Instance of San Pablo and Cabanatuan Cities and the City Fiscal of Manila to appear before them as counsel on 3, 4, 5 and 7 March 1958, prayed that the trial of the case be postponed indefinitely until the Supreme Court shall have decided her client's petition for certiorari with preliminary injunction. On 1 March 1958 the same counsel filed a motion for reconsideration of the order entered by the Court on 25 February 1958 imposing upon her a fine of P25, with subsidiary imprisonment in case of insolvency, reiterating the same reasons stated in her petition filed on 28 February 1958. On the date set for trial, 3 March 1958, counsel de parte for the defendant Mangulabnan did not appear. Whereupon the Court denied her motion for indefinite postponement of the trial of the case in behalf of her client and proceeded with the trial of the case, the defendants being assisted by their respective counsel de oficio. On the second day of the trial, 4 March 1958, counsel de parte for the defendant Mangulabnan appeared and prayed for indefinite suspension of the trial of the case against her client and reconsideration of the order imposing upon her a fine of P25. The Court denied the first part but granted the second part of her prayer and proceeded with the trial of the case. After hearing the testimony of the defendant Blaza and his witness Silverio Lintak, the Court entered an order setting the continuation of the trial of the case for 10 March 1958 at 9:00 o'clock in the morning. After trial, on 14 March 1958 the Court rendered judgment, which was promulgated on 26 March 1958, finding the defendants guilty of the crime charged and sentencing them to suffer the penalty of reclusion perpetua, the accessory penalties provided by law, and to pay the costs. On 26 March 1958 the defendant Mangulabnan filed a notice of appeal. On 2 April the defendant Blaza filed a motion for reconsideration. On 8 April the Court denied his motion for reconsideration. On 10 April the defendant Blaza filed a notice of appeal. On 14 May his counsel de oficio filed a motion for withdrawal of his appeal. On 16 May 1958 the trial court approved the withdrawal of his appeal. This appeal is by the defendant Francisco Mangulabnan only.

Dr. Zosimo Fernandez, his wife Dorotea, daughter Fe and cousin Buenaventura Fernandez, who was the chauffeur of the family, lived in the town of Pagsanjan, province of Laguna. At dinner time, about 7:00 o'clock in the evening of 23 April 1953, the Fernandez spouses heard a commotion and the barking of dogs in their yard and somebody knocking at the front door of the house. Dr. Fernandez asked Buenaventura to see what the commotion and barking of dogs were all about while Mrs. Fernandez peeped through an opening and saw people in army uniform. Buenaventura told the spouses that somebody who was trying to gain admission to the house wanted to see Dr. Fernandez at the behest of Captain Sebastian and that the house was surrounded by people in army uniform. Afterwards, they heard somebody knocking at the back door. Dr. Fernandez stood up, looked outside the window and asked what the man wanted. The latter answered that Captain Sebastian was sending for the doctor. The man's answer aroused Dr. Fernandez's suspicion that the visitor did not mean well because Captain Sebastian was residing in Cavinti. Dr. Fernandez slipped out of the house to ask aid and protection from the chief of police, who lived nearby, leaving behind his wife, daughter, cousin and maids. After Dr. Fernandez had left, the inmates of the house heard somebody persistently knocking at the door and trying to force it open. Mrs. Fernandez and her daughter Fe opened the kitchen door to escape but Lope Cunanan alias Captain Mendoza grabbed Fe by the hand. Cunanan went up the house and ordered Mrs. Fernandez, Fe and Buenaventura to go down with him. Downstairs, Mrs. Fernandez saw the companions of Lope Cunanan who were about 17 in number, armed with guns and revolvers, at the stairs of the house, in the backyard and surrounding area. The band forcibly took them along and made them wade through a kneedeep river and walk through coconut groves until they reached the outpost of the band in the mountains at about 3:00 o'clock the following morning. There the three victims were confined for two days guarded by the appellant, Pablo Blaza and their companions. After two days in the outpost of the band they were transferred to the inner part of the mountains where they stayed until they were released on 8 May 1953 after paying to their kidnappers a ransom of P40,000. Turning back to the night of the incident, 23 April 1953, when Dr. Fernandez returned to his house with some soldiers and policemen and found his wife, daughter and cousin gone, he went to the army headquarters but as he found nobody there, repaired to the old municipal building, to telephone and report on the incident to the army authorities in Camp Nazareth, Pila, Laguna, under the command of Coronel Friedlander. After searching the house, Dr. Fernandez's uncle found on a table inside the doctor's room a letter signed by Captain Mendoza stating that his wife, daughter and cousin were taken for the purpose of asking ransom from him. Days after Dr. Fernandez received about five or six letters signed by the same person asking for P100,000 ransom, for the release of the three victims, which amount was reduced to P80,000, P60,000 and finally to P40,000 through negotiations with the kidnappers.
1awphl.nt

On 8 May 1953, after the ransom was finally reduced to P40,000, Dr. Fernandez asked Dionisio Almario, his son Dionisio, Jr., Juan Abao, Conrado Velasco and one Ruperto to proceed to barrio Anibong. There, as agreed upon, Ceferino Llamas and Eliseo Zafra delivered the money to Dionisio Almario and his companions which they divided and strapped on their respective bodies. At that juncture Ruperto, whom Dionisio Almario had earlier dispatched together with Juan Abao to the place where the kidnap victims had been confined, arrived and reported to him that he had been assured by the kidnappers that the victims were in safe hands. Ruperto led them to where the victims were. About half an hour after arrival in the mountains, the three victims were produced to Dionisio Almario and his companions by Lope Cunanan and his band numbering about twenty. Among those in the band was the appellant. Dionisio gave the money to Mrs. Fernandez which was counted by some of the members of the band of Lope Cunanan in his presence. After counting, Cunanan took P10,000, gave P6,000 each to Pablo Blaza and one Pepe and distributed P1,000 each to the remaining members of the band. The balance of P4,000 was set aside for expenses of the band. After waiting for 5:00 o'clock in the afternoon, Cunanan allowed them to leave. The victims and the rescue party arrived in town at about 6:30 o'clock in the evening. The appellant denies complicity in the commission of the crime imputed to him. He claims that he joined the Huk organization sometime in 1948 and was with Basilio Balbosalias Commander Maning now dead; that later on he joined the unit of Tomas Calma as his security guard; that from 1950 to 1951 Calma's unit operated in the Sierra Madre Mountains; that thereafter his unit was transferred to the mountains of Bulacan and Arayat; that during the entire year 1953 his unit operated in the vicinity of San Luis, Candaba and Arayat and never left the jurisdiction of Pampanga; that his unit never operated in the province of Laguna, particularly in Pagsanjan; that he was a member of the unit of Tomas Calma until 1954; that he knew Lope Cunanan alias Commander Perla even before he joined the Huk organization because they lived in the same barrio but that he was never associated with him; and that he came to

know Apolinar Oracion only in 1956 when he was brought by the army authorities to Canlubang and confined in the stockade in connection with the Fernandez kidnapping case. The appellant's denial of complicity in the commission of the crime of kidnapping imputed to him and the members of the band of Lope Cunanan alias Captain Mendoza is ineffective in the face of the clear, direct and positive testimony of Mrs. Dorotea Fernandez, one of the victims, that he and his co-defendant Pablo Blaza were among those who stood guard over her, her daughter and cousin in-law; that she saw him with the band of kidnappers on the 23rd and 24th days of April 1953; and that he was present while the ransom money was being counted by the members of the band; and of Dionisio Almario that he saw the appellant with the band of kidnappers when the three victims were being led out from the mountains by the band on 8 May 1953 and that he was present when the ransom money was being counted by the band. The appellant assails the act of the trial court in proceeding with the trial of the case in the absence of his counsel de parte after appointing a counsel de oficio to assist him. Reviewing the various motions filed by his counsel de parte and the orders entered by the trial court thereon, we find that the appellant has no valid reason to complain. The motions for indefinite postponement of the trial of the case filed by his counsel de parte, on the ground that a petition for certiorari to test the legality of the denial of his motion to quash would be filed in the Supreme Court, but which was never filed, were plainly to delay the trial and disposition of the case. Despite receipt of notice his counsel de partefailed to appear on the first day of the trial (3 March 1958). On the second day (4 March 1958) she appeared but all that she did for her client was to reiterate his plea for indefinite suspension of the trial of the case and state that she "will just corroborate for the defense." On the third and last day (10 March 1958) she actively took part in the defense of the appellant, she herself conducting the direct examination of the appellant. The defendant was under detention and it is his constitutional right and the duty of the Court to have a speedy trial and disposition of the case. Moreover, it cannot be said that counsel de oficio who assisted the appellant in the absence of counsel de parte on the first day of the trial was remiss in the performance of his duties. As shown in the transcript of stenographic notes, he had endeavored to safeguard the appellant's rights as a defendant on trial. As regards the appellant's complaint that he had no been afforded sufficient time to present other witnesses in his defense, it appears in the transcript of stenographic notes that after the appellant had finished testifying in his behalf, counsel de parte stated that she could not close the evidence for the defense because she wanted to secure the appearance of Apolinar Oracion as a witness. Asked by the Court what his testimony would be about, she answered "that (the) kidnapping for ransom was to secure funds for the functions of the organization." The Court denied the continuation of the trial of the case and ordered the trial closed because the testimony of Oracion would not be of any help to the appellant in view of his denial of complicity in the kidnapping of the victims. Hence, the appellant cannot validly complain and the Court did not err in its last mentioned order. Furthermore, the appellant claims to have known Apolinar Oracion only in 1956 or 1957 when he was brought to the stockade of the Second Military Area in Canlubang. The crime imputed to the appellant was committed on 23 April 1953. Therefore, whatever testimony Apolinar Oracion would give in evidence would not be of much value to the appellant's defense. The appellant raises the question of double jeopardy. He points out the fact that he had been charged with the complex crime of rebellion with multiple murder, robbery, arson and kidnapping in criminal case No. 1940 of the Court of First Instance of Pampanga (Annexes A and A-1, motion to quash); that on 8 January 1959, after pleading guilty to the crime of simple rebellion, the said Court sentenced him to suffer the penalty of one year and five months of prision correccional and to pay his proportionate share of the costs (Annex B to petition to withdraw as counsel); in criminal case No. 15909 of the Court of First Instance of Laguna, People vs. Apolinar Oracion, et al., for rebellion complexed with multiple murder, robbery, arson, rape and kidnapping, the kidnapping of Dorotea Fernandez, Fe Fernandez and Buenaventura Fernandez on 23 April 1957 was alleged to be for the purpose of raising funds for the HMB organization and a necessary means of committing the crime of rebellion (Annex B, motion to quash); and that on 17 December 1956, the said Court held that "such act was in furtherance and a mere ingredient of the offense of rebellion" and "cannot be punished separately from the latter (rebellion) or complexed with it" (Annex C, motion to quash). He now contends that the crime of kidnapping imputed to him being a necessary means of committing and in furtherance of the crime of rebellion, the said crime is absorbed by rebellion and that, having been convicted of simple rebellion, he is now put twice in jeopardy of punishment for the same offense. The appellant's contention is untenable. A reading of the information filed in criminal case No. 1940 of the Court of First Instance of Pampanga (Annexes A and A-1; motion to quash) shows that the kidnapping of Dorotea Fernandez, Fe

Fernandez and Buenaventura Fernandez had never been mentioned as an overt act of rebellion and a scrutiny of the information filed in criminal case No. 15909 of the Court of First Instance of Laguna and the judgment rendered therein discloses no mention of the appellant as a defendant therein. The appellant, therefore, had never been put in jeopardy of punishment for the crime of rebellion and cannot maintain that he is being twice put in jeopardy of punishment for the same offense. In the instant case, the amended information filed in court against the appellant and his co-defendant was for "kidnapping with ransom" under the provisions of article 267 of the Revised Penal Code, as amended by Republic Act No. 18. The information filed in the Court of First Instance of Laguna against Lope Cunanan, et al. (SC No. 120) was also for the same offense. On appeal by Raymundo Abesamis, this Court found "that the kidnapping was made by Huks under the command of Capt. Mendoza, or Lope Cunanan, and Abesamis admittedly belonged to the Huk detachment under such command." Nevertheless, this court affirmed the judgment of the Court of First Instance finding Raymundo Abesamis guilty of the crime of kidnapping for the purpose of extorting ransom and sentencing him to suffer the penalty of reclusion perpetua. The herein appellant cannot be entitled to a penalty lighter than that imposed upon his confederates. The pronouncement of this Court in the case of People vs. Raymundo Abesamis, et al., G.R. No. L-13007, 23 December 1960, that the head of the band, Lope Cunanan, having been sentenced only to the penalty of reclusion perpetua, the same penalty should be meted out to the appellant therein, despite the presence of the aggravating circumstances of nighttime, with the assistance of armed men, and band, is equally applicable to the herein appellant. The judgment appealed from is affirmed, with costs against the appellant. Bengzon, C.J., Labrador, Concepcion, Reyes, J.B.L., Paredes and De Leon, JJ., concur. Barrera and Dizon, JJ., took no part.

G.R. Nos. 138972-73

September 13, 2001

PEOPLE OF THE PHILIPPINES, plaintiff , vs. EUGENIO MARQUEZ y BRIONES, JOSE MAGTIBAY, ANSELMO MAGTIBAY and NICASIO BACOLO, accused, EUGENIO MARQUEZ y BRIONES, appellant. PANGANIBAN, J.: We reiterate the doctrine that, in the assessment of the credibility of witnesses and their testimonies, the findings of trial courts deserve utmost respect. The Case Eugenio Briones y Marquez appeals the May 12, 1998 Judgment 1 rendered by the Regional Trial Court (RTC) of Lucena City, Branch 53. In Criminal Case No. 95-555, the RTC convicted him of frustrated robbery with homicide and frustrated homicide; and in Criminal Case No. 95-557, of illegal possession of firearm The charges stemmed from a bus holdup, which resulted in the killing of the bus conductor and the wounding of a police officer on February 17, 1995.

In Criminal Case No. 95-555, appellant, Jose Magtibay, Anselmo Magtibay and Nicasio Bacolo were charged in an Amended Information dated November 22, 1995,2 as follows: "That on or about the 17th day of February 1995, along Maharlika Highway at Barangay Sampaloc II, Municipality of Sariaya, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a caliber .38 'Smith & Wesson' revolver and bladed and pointed weapons, conspiring and confederating together and mutually helping one another, with intent to gain and to rob, by means of force, violence, threats and intimidation, did then and there willfully, unlawfully and feloniously hold-up JAC Liner bus with Plate No. NYE-839, thus performing all the acts of execution which should have produced the crime of robbery as a consequence, but which nevertheless did not produce it by reason of causes independent of the will of the accused, that is, by the timely intervention of SPO1 Rizaldy Merene, one of the passengers of said bus; and that on the occasion of said robbery, said accused, still in pursuance of their conspiracy, with intent to kill and taking advantage of their superior strength, did then and there willfully, unlawfully and feloniously attack, and shoot with said firearm Joselito Estrareja Halum, the conductor of said bus, thereby inflicting upon the latter gunshot wound, which directly caused his death, and also inflicting gunshot wounds and injuries on vital part of the body of SPO1 Rizaldy Merene, thus performing all the acts of execution which should have produced the crime of homicide as a consequence, but which nevertheless did not produce it by reason of causes independent of the will of the accused, that is, by the timely and able medical attendance rendered to said SPO1 Rizaldy Merene, which prevented his death." 3 In Criminal Case No. 95-557, appellant was indicted in an Information 4 dated. May 24, 1995, as follows: "That on or about the 17th day of February 1995, at Barangay Sampaloc II, Municipality of Sariaya, Province of Quezon, Philippines and within the jurisdiction of this Honorable Court, the above named accused, did then and there willfully, unlawfully and feloniously have in his possession, custody and control one (1) caliber .38 revolver 'Smith and Wesson', by keeping and carrying the' same without first securing the necessary license or permit, and further using the same in the commission of an offen[s]e." During his arraignment,5 appellant, assisted by Counsel de Oficio Uldarico Jusi, pleaded not guilty. The other accused, except Jose Magtibay, remained at large. The two cases were consolidated and tried jointly. Thereafter, on May 12, 1998, the trial court rendered its assailed Decision, the dispositive portion of which reads as follows: "WHEREFORE, premises considered, the Court in Criminal Case No. 95-555 finds Eugenio Marquez y Briones guilty beyond reasonable doubt of the crime of frustrated robbery with homicide and frustrated homicide punished under Article 297 of the Revised Penal Code and applying the Indeterminate Sentence Law, with no mitigating or aggravating circumstance present, Eugenio Marquez is sentenced to suffer reclusion perpetua and he is ordered to pay the costs. "Eugenio Marquez is ordered to pay the heirs of Joselito Halum P50,000.00 as death indemnity. He is also ordered to reimburse SPO1 Rizaldy Merene the sum of P9,000.00 which he incurred for his medical treatment. "The case against Jose Magtibay is dismissed for insufficiency of evidence. His release from detention unless he is being detained for another cause, is ordered. "In Criminal Case No. 95-557 the Court finds Eugenio Marquez y Briones guilty beyond reasonable doubt of the crime of illegal possession of firearm punished under Section 1 of Presidential Decree No. 1866 as amended by Republic Act No. 8294 and, applying the Indeterminate Sentence Law, [of] the commission of homicide as an aggravating circumstance. Eugenio Marquez is hereby sentenced to suffer the penalty of four (4) years and two (2) months of prison correctional as minimum to six (6) years of prison correccional as maximum and he is ordered to pay a fine of P15,000.00 and to pay the costs.

"The officer-in-charge of this court is directed to deposit the caliber .38 revolver 'Smith and Wesson' (Exhibit A in Criminal Case No. 95-555 and Exhibit A in Criminal Case No. 95-557) and the envelope with the three (3) live bullets and one slug (Exhibit A-1 in Criminal Case No. 95-555 and Exhibit A-1 in Criminal Case No. 95-557) with the Philippine National Police at Camp Nakar, Lucena City, in accordance with existing rules." 6 The Facts Version of the Prosecution The solicitor general summarized the evidence for the prosecution in this wise: 7 "[O]n the evening of February 17,1995, a JAC Liner bus driven by Modesto Ferrer with Joselito Halum as conductor was on its way from Metro Manila to Lucena City. Among the passengers was SPO1 Rizaldy Merene of the Southern Police District Command. Merene was seated directly behind the driver (TSN, p. 3, February 9, 1996). Another passenger, Manuel Fleta, occupied the third seat on the left side of the bus. When the bus reached the Mazapan junction in Barangay Santo Cristo, Sariaya, Quezon, four men boarded the bus (TSN, p. 6, September 9,1996). "Two or three kilometers away from the Mazapan junction, two passengers stood up as if to alight from the bus (TSN, PP. 2-4, February 16, 1996[)]. When they reached the front portion of the bus, however, one of the men (later found to be appellant Marquez) poked a gun at the driver and announced a 'hold-up.' His companion poked a knife at the conductor[.] Merene who was seated right behind quickly drew his firearm, but Marquez was able to fire at him first. Although hit, Merene returned fire. Panicking, Marquez and his companion jumped out of the bus. The conductor, Halum, fell to the floor of the bus, fatally wounded (TSN, pp. 4-7, February 9, 1996; pp. 7-8, September 9, 1996)[.] "After the hold-up men left the bus, Merene asked the driver to bring him to the nearest hospital where he was treated for his wound. "Manuel Fleta, who witnessed the announcement of the hold-up and the exchange of fire between one of the hold-up men and SPO1 Merene went to the PNP Sariaya station to report the incident. Chief of Police Concordio Tapulayan and PO3 Enrico Perez accompanied Fleta to the place where the incident happened and later to the Greg Hospital where SPO1 Rizaldy Merene was questioned (TSN, p. 12, December 16, 1996). While they were there, the police officers received a radio message from the Candelaria police station informing them that a wounded man was brought to the Bolaos Hospital in Candelaria (Ibid., at p. 13). This was followed by another broadcast declaring that the wounded man was transferred to the Quezon Memorial Hospital in Lucena City. With this information, PO3 Perez with two other policemen and Manuel Fleta went to the Quezon Memorial Hospital. At the emergency room there, Manuel Fleta identified the wounded man to the police officers as one of the hold-up men, Eugenio Marquez (TSN, pp. 14-15, December 16, 1996). "At the time the hold-up inside the JAC Liner bus was taking place, spouses Mauricio and Zenaida Ilao and their children were watching a movie inside their house at Barangay Sampaloc II, Sariaya, Quezon. Their house was about 30 meters away from the Maharlika Highway and 100 meters away from the Lagnas bridge. A few minutes after the aborted hold-up (which the Ilao family was unaware of), a man suddenly appeared at the door of their house, naked above the waist, bloodied and asking for help (TSN, PP. 1-3, March 12, 1997). Mauricio asked the man if he knew a person in their barangay. The man mentioned the name of Julie Ann Veneosa who, the couple knew, was working at the poultry farm nearby. Zenaida Ilao, accompanied by her daughter Irene, went to fetch Julie Ann. They returned with Julie Ann on board a jeep ( Ibid., p. 4). When Julie Ann arrived, she recognized him as Eugenio Marquez and immediately brought him to the hospital in Candelaria ( Ibid., at p. 5). "The next morning, Mauricio Ilao was surprised to find a firearm at the back of their house. He immediately went to the Sariaya police station to report this. Four policemen went with him to his house where the .38 caliber gun with three live bullets was found (TSN, pp. 18-19, March 12,1997)."

Version of the Defense On the other hand, appellant's version of the incident is as follows: 8 "On February 17, 1995, herein accused-appellant went to the house of Julie Anne Veneosa, a distant relative and friend, in Montecillo, Sariaya, Quezon. Upon arriving thereat at about 6:00 in the evening, he was informed by Gladys Veneosa, mother of Julie Anne, that the latter was still at her work. After spending some ten (10) minutes in that house, he decided to go to the place of work of Julie Anne in Sampaloc II at Max Tabangcora Poultry, and he went to the junction at Sto. Cristo, Sariaya to wait for any passenger vehicle, and after sometime he hailed and boarded an air-conditioned bus, JAC Liner, with plate No. NYE 839, which was then with many passengers. He boarded said bus alone. After he ha[d] boarded the bus some other six passengers also hailed and boarded said bus. Reaching the place of his destination at Sampaloc II, Sariaya, he stood up and walked towards the conductor to tell the latter that he was unboarding, but when he was barely two seats away from the driver, herein accused-appellant heard some[one] saying 'hold-up ito', and saw a man poking his gun at the driver of the bus, and suddenly there was exchange of fire. He was about to go back to his seat but he was hit by a bullet. During the exchange of fire many of the passengers jumped out of the bus, and he also jumped out. After jumping out of the bus he saw a house, some twenty meters away, which [later], turned out to be owned by Zenaida Ilao, from whom he requested that his cousin Julie Anne Veneosa be fetched to take him to a hospital. First he was taken to Bolanos Hospital, then to Quezon Memorial Hospital, then later transferred to Philippine General Hospital, where he was confined for a week. When he was released from the hospital, he was taken by Sariaya Police to the Municipal Jail, and after two (2) months, he was transferred to the Provincial Jail[.] (TSN, Eugenio Marquez y Briones, August 11, 1997, pp. 3-10) "When arraigned, he pleaded NOT GUILTY to the two (2) charges. "Prosecution presented its witnesses and rested its case, and so with the defense. Herein accused-appellant himself testified in open court." The Trial Court's Ruling In convicting appellant of frustrated robbery with homicide and frustrated homicide, the court a quo gave full faith and credence to the testimonies of the primary prosecution witnesses, SPO1 Rizaldy Merene and Manuel Fleta. It underscored their straightforward and cohesive identification of appellant as the culprit who had announced the holdup and exchanged gunfire with Merene, resulting in the wounding of the police officer and the killing of the bus conductor. The court a quo debunked the assertion of appellant that he was a mere passenger who had been injured in the crossfire. It was convinced that his actions and the circumstances surrounding the incident indubitably showed his participation in the attempted robbery, as well as in the consequent wounding of Merene and death of the bus conductor. The trial court likewise found appellant guilty beyond reasonable doubt of illegal possession of firearm. It stressed the fact that the gun which was subsequently identified by Merene as the weapon used in the attempted robbery was found at the back of Mauricio Ilag's house, the place where appellant had sought solace after being injured. Hence, this appeal.9 The Assigned Errors In his Brief, appellant bewails the following alleged errors of the trial court:

"I In convicting the accused on the basis of the testimonies of SPO1 Rizaldy Merene and Manuel Fleta, despite grave contradictions on material points in their testimonies, and in concluding that appellant was the same person who engaged in fire fight with said police officer, despite absence of any direct evidence, or sufficient circumstantial evidence pointing at him as the person who announced the hold up and as the person who engaged in the exchange of fire with said police officer. "II In convicting the appellant of the crimes charged despite doubt as to his identity and culpability, and in not acquitting him on ground of reasonable doubt; in convicting the appellant under Section 1, PD 1866, despite the fact that the subject .38 revolver was not found in his possession." 10 The Court's Ruling The appeal is partly meritorious. First Issue: Credibility of Witnesses In impugning the testimonies of Prosecution Witnesses SPO1 Rizaldy Merene and Manuel Fleta, appellant points out the alleged ambivalence of their testimonies. He contends that these two witnesses differed in their narrations with regard to the positions of the holduppers and the bus conductor during the holdup, even if the two were then seated near them. That Merene admitted during trial that he was not sure if he had shot the holdupper during their gunfight is also stressed by appellant. The latter further avers that, before the holdup was announced, Fleta had been watching a bus movie and, during the gunfight, was crouching to avoid being hit; thus, this witness was not in a position to identify the culprit. We are not persuaded. True, there is a marked discrepancy between the testimonies of Merene and Fleta as regards the whereabouts of the bus conductor before, during and immediately after the holdup. It must be noted, however, that the points of recall of the two witnesses were different. Merene was an active participant in the gunfight; thus, he could not be expected to remember the peripherals of the incident. Fleta was a passive eyewitness; as such, he was able to observe things that the former might have overlooked. Moreover, the Court has held that "[t]otal recall or perfect symmetry is not required as long as witnesses concur on material points." 11 It must be emphasized that the above-mentioned testimonial disparity does not negate the fact that appellant was positively identified by both witnesses as the malefactor who had announced the holdup and exchanged gunshots with the police officer. There is no contrariety with regard to this vital fact. Both witnesses consistently, cohesively and certainly identified appellant as the culprit. Merene testified thus: Assistant Provincial Prosecutor Salamillas: Q A SPO1 Merene[,] on February 18, 1995 at about seven o'clock to seven twenty do you still recall where you were? Yes sir.

Q A Q A Q A

Where were you then? I was aboard a bus JAC Liner Bus going to Lucena City from Manila. At that time were there other passengers in that JAC Liner bus? Yes sir. How many of them if you know? More or less fifteen passengers.

Q When the bus that you were then boarding was at the vicinity of Sariaya, Quezon can you still recall if some unusual incident occurred during that time? A Q Yes sir, there was. What was that unusual incident that took place when the bus reached Sto. Cristo, Sariaya, Quezon?

A Two passengers alighted before reaching the Lagnas Bridge. Four men stood up inside the bus and the one who was behind the driver announced a hold up. Q A Q A Q A Where were the other three at that time? One was positioned at the 'estribo' running board, and the two were on the road. Four men alighted from the bus. You that two of the passengers went down the bus how did it happen that four men alighted from the bus? When the two passengers alighted from the bus the two followed. Do you know what these two men who alighted ahead [of] the two passengers did? One of the men poked a gun at the driver the other one poke[d] a knife [at] the conductor.

COURT: Q A Where was the conductor at that time? On the road.

Assistant Provincial Prosecutor Salamillas:

Do you know why the conductor alighted from the bus?

Atty. Jusi: Incompetent. COURT: Sustained. Assistant Provincial Prosecutor Salamillas: Q A Q Where was the conductor at that time when the hold up was announced? He was already on the ground near the door. Why was he [on] the ground near the door?

Atty. Jusi: Incompetent. COURT: Sustained. Q What did you do Mr. Witness when you heard that there was an announcement of hold up?

A As I was about to draw my .38 caliber firearm one of the hold[-]uppers who was poking his gun at the driver saw me and he suddenly poked his gun at me and immediately fired a shot. COURT: Q A Q A How far were you from that holdupper who poked his gun at you? One seat away. You were seated at the driver's side? Yes your Honor.

Assistant Provincial Prosecutor Salamillas: Q A Q A Q A Q A How many times were you fired upon by the holdupper? Two times, sir. Were you hit by the second shot? No sir. What did you do after you felt that you were hit? I drew my .38 caliber gun and immediately fired at the holdupper. What happened to the holdupper who fired at you? I think I hit the holdupper, after that he jumped out of the bus.

COURT: At the time that you fired at the holdupper two of the robbers were already on the ground? A Yes your Honor. xxx Q A Q A xxx xxx

And when the holdupper jumped out of the bus where was the fourth holdupper? He was running away. What about the other passengers at the bus[,] do you know what happened to them? They remained on their seats."12 xxx xxx xxx

Q A Q

If one or two of those persons [are] present in Court now will you be able to point to them? Yes sir. Please point to him[.]

A Q A Q A Q A Q A

Witness pointing to accused Eugenio Marquez. What about the other person[,] can you point to him? Accused pointing to accused Jose Magtibay. How about the two other holduppers[,] are [they] present in Court? They are not here. If you will see them again [will] you recognize them? Yes sir. Can you still recall what was the participation of the accused Eugenio Marquez? He was the one who poked a gun at the driver and the one who shot me ."13

Fleta, the other witness, narrated the holdup incident in this manner: PROS. R. SALAMILLAS Q A Where were you on February 17, 1995 at about 7:00 to 7:15 in the evening? I was on board the passenger bus JAC Liner Bus, sir. xxx Q A Q A xxx xxx

. . . [W]here did you come from at that time? From San Pablo City, sir. In what particular place in the bus were you seated at that time? At the 3rd seat, right side of the conductor['] side. xxx xxx xxx

COURT xxx xxx xxx

Q A Q A

[Was] there anything unusual that happened while the bus was negotiating the distance from San Pablo to Lucena City? Yes, your Honor. What was that unusual incident? There was a hold-up that happened, your Honor. xxx xxx xxx

PROS. SALAMILLAS Q Will you please tell the Honorable Court how that hold-up took place?

A At the junction near Mazapan, two passengers alighted from the bus then four (4) persons boarded the bus taking their seats at the different parts of the bus. xxx xxx xxx

PROS. SALAMILLAS Q A What happened immediately before the hold-up? Before the holdup one [of] the holduppers said, "Dito na lang pala kami," sir. xxx Q A xxx xxx

Did the driver stop the bus? Yes, your Honor. One of the holduppers announced it was a hold up and he raised the revolver he was holding. 14 xxx xxx xxx

Q A

After the announcement of the hold-up, what happened? There was an exchange of gunfire, sir. xxx xxx xxx

. . . [W]here did the exchange of gunfire come from?

A One coming from the person seated behind the driver's seat and the other one from the man beside the conductor who announced the holdup sir. xxx Q A xxx xxx

What about the person who announced the hold-up, what happened to him? They jumped out of the bus and they [fled], sir. xxx xxx xxx

Q A Q A Q A

You said there were four men who held up this bus, if ever you will [see] them again will you be able to identify them? I can recognize the one holding the revolver, sir. If that man is in court now will you be able to identify him? Yes, sir. Will you please point to him. That man, sir. (Witness pointing to a person who identified himself as Eugenio Marquez )15 xxx xxx xxx

ATTY. JUSI: "Q A Q A Q A Q You claimed that the alleged robber who sat across the place where you were [was] the one who announced the holdup? Yes, sir. And after the announcement of the holdup it [was] also the person who announced the hold-up who raised his gun? Yes, sir. And after the announcement of said hold up there was an exchange of fire? Yes, sir. And you heard according to you four firing shots?

Yes, sir.

Q And immediately after hearing the first firing shot you ducked at your seat and only after you stood up you found out that the conductor was lying face down and the person who identified himself as a policeman ordered the driver to bring him to the hospital, is that correct? A Q A Yes, sir. You claimed during your direct testimony that the policeman who identified himself as such was seated at the back of the driver's seat? Yes, sir.

Q By your answer, do I get from you that the alleged holdupper was at the back of the policeman considering that according to you he was seated at the 3rd seat? A Q A No, sir. When he announced the hold up he was already there at the side of the driver. It is not correct to say that he was [on] the 3rd seat when he announced the holdup? I did not say that he was [on] the third seat, sir.

COURT: Q The court would just like to find out if that man who was seated on the third seat behind the driver is the person who also said 'dito na lang po pala kami[?] A Yes, Your Honor, After that man said that he moved towards . . . the driver.

ATTY. JUSI: Q A And so he was on the right side of the driver when the shooting took place? He was not on the right side, he was on the side of the driver and conductor when the shooting took place, sir.

Q When the alleged holdupper said that 'dito na lang po pala kami' did this allege hold-upper immediately [stand] up and [go] to the exit door of the bus? A No, sir.

ATTY. JUSI: Q Before the two holduppers allegedly alighted from the bus, did you notice whether the bus conductor also alighted?

A Q A Q A Q you? A

No, sir. You mean he stood still near the driver['] seat and [let] the two companions of the holdupper to go down? Yes, sir. Before the exchange of fire that you claimed that you notice[d] did you see what kind of firearm the policeman was holding? Revolver also, sir. And you cannot determine from whom or . . . how many shots were made by the policeman or the holdupper, only four shots were heard by

Yes, sir.

ATTY. JUSI Q You claimed that it was only on February 17, 1995 at 7:00 o'clock in the evening more or less when you first saw the person whom you just identified? A Q A Q A Q Yes, sir. And the second time that you saw him according to you was . . . today, is that correct? Yes, sir. Do you have [such] photographic memory to remember the face of a person after a lapse of one year? I could remember, because that was a hold up, sir. How about the other companion of the person whom you had just identified, if you could see them again, could you recognize them?

A What I can recognize only is the one who drew the gun and announced the holdup, aside from that I could not recognize the three others, sir."16 The quoted testimonies of Merene and Fleta indubitably establish that on February 17, 1995, between 7:00 and 7:20 p.m., a JAC liner bus going to Lucena City was held up; and that appellant was identified as the culprit who had announced the holdup and engaged Merene in a gunfight. The proximity of these witnesses to appellant, in addition to the fact that there was no showing of ill will or motive on their part, give credence to their testimonies. The Court regards as too incredulous appellant's version of the holdup incident: that he was a mere passenger who caught, hit and wounded in the crossfire jumped off the bus to save himself. First, the JAC Liner bus was air-conditioned, and so its windows were closed. Thus, the passengers would

not have been able to immediately open and jump from those windows. Second, because the gunfight happened in front, appellant could not have jumped out of the bus from its door, which was located near that area. Lastly, given his gunshot wounds, the flight of appellant from the scene of the crime casts doubts on his protestations of innocence; more important, he was positively identified as one of the culprits. We agree with the court a quo's assessment of the credibility of the witnesses, specifically with regard to the identification of appellant. In this case, we adhere to the legal truism that such assessment is accorded great weight and respect, for the trial court had the opportunity to observe the witnesses' demeanor and deportment as they testified before it. 17 Likewise, we hold that appellant's denial cannot prevail over the positive identification by credible witnesses.18 Second Issue: Crime and Punishment Appellant was charged with, and eventually convicted of, frustrated robbery with homicide and frustrated homicide, as well as violation of PD 1866 (illegal possession of firearms). In robbery with homicide, it is imperative that the prosecution prove a direct relation between the robbery and the killing. It must convincingly show that robbery was the original criminal design of the culprit, and that homicide was perpetrated with a view to the consummation of the robbery, by reason or on occasion thereof.19 That appellant intended to rob the passengers of the JAC Liner bus is evident. The robbery was foiled, however, when SPO1 Rizaldy Merene decided to fight back. Were it not for the presence and the bravery of this police officer, appellant and his cohorts would have successfully consummated their original plan. In the gunfight that ensued between appellant and Merene, bus conductor Joselito Halum was killed. Clearly, his death occurred by reason or as an incident of the robbery. Even if it was merely incidental (he was caught in the crossfire), still, frustrated robbery with homicide was committed. 20 With regard to the charge of frustrated homicide, appellant, in shooting Merene almost pointblank, had performed all the acts necessary to kill the latter, who survived because of timely medical intervention. Thus, appellant's conviction for frustrated robbery with homicide and frustrated homicide must be sustained. On the other hand, we agree with the Office of the Solicitor General that the trial court's conviction of appellant for violation of PD 1866 should be reversed; he should be acquitted. In crimes involving illegal possession of firearm, the prosecution has the burden of proving the following (1) the existence of the subject firearm and (2) the fact that the accused who owns it does not have a license or permit to carry it. 21 In the present case, it must be emphasized that the subject gun was not found in the possession of appellant; rather, it was discovered at the back of the house of Mauricio Ilao, from whom the former had sought solace after the holdup incident. While the prosecution, considering the circumstances, assumes that the gun was brought there by appellant, such conjecture does not satisfy the elements of the crime; it is clearly not enough to prove beyond reasonable doubt that he was guilty of illegal possession of firearm. Furthermore, in People v. Molina,22 this Court has ruled that the use of an unlicensed firearm merely aggravates a killing and may no longer be the source of a separate conviction for the crime of illegal possession of a deadly weapon. This doctrine was reiterated in People v. Feloteo23 and People v. Narvasa.24 In People v. Macoy25 it was held that, being favorable to the accused, the same may be invoked even if the illegal possession had been committed prior to the effectivity of RA 8294 on July 6, 1997. 26

In view, however, of the failure of the prosecution to prove illegal possession on the part of appellant, we cannot even apply the Molina doctrine to aggravate the penalty. WHEREFORE, the appeal is PARTIALLY GRANTED. The Decision of the Regional Trial Court in Criminal Case No. 95-557 is REVERSED and SET ASIDE, and Appellant Eugenio Briones y Marquez is hereby ACQUITTED of violation of PD 1866. However, his conviction for frustrated robbery with homicide and frustrated homicide, together with the penalty imposed by the trial court in Criminal Case No. 95-555, is AFFIRMED. SO ORDERED. Melo, Vitug, Gonzaga-Reyes and Sandoval-Gutierrez, JJ., concur.

G.R. No. L-41008 June 18, 1987 PEOPLE OF THE PHILIPPINES, plaintiff- appellee, vs. ARTURO PECATO, ET AL., accused. FELIX PECATO AND ERENEO PERUDA, accused-appellants.

SARMIENTO, J: Before us on automatic review is a decision 1 of the then Court of First Instance of Surigao del Norte, 15th Judicial District, Branch II, Surigao City, in Criminal Case No. 185, finding the accused Felix Pecato and Ereneo Peruda guilty beyond reasonable doubt of the crime of robbery with violence against or intimidation of persons as defined and penalized under Article 294 of the Revised Penal Code, sentencing them to suffer the supreme penalty of death by electrocution together with all the accessory penalties prescribed by law, to indemnify the heirs of Felix Larong in the sum of twelve thousand pesos, and to pay their proportionate share of the costs. In an Information 2 dated February 16, 1972, the lst Assistant Provincial Fiscal of Surigao del Norte accused Arturo Pecato, Felix Pecato, Victoriano Leyros, and Ereneo Peruda of the crime of robbery with homicide committed as follows: xxx xxx xxx That on or about the lst day of November, 1971 in the municipality of Gigaquit, province of Surigao del Norte, Philippines and within the jurisdiction of this Honorable Court, the herein accused, Arturo Pecato, Felix Pecato, Victoriano Leyros and Ereneo Peruda, conspiring, confederating and helping one another, and armed with the following deadly weapons to wit: One revolver Cal. 22; two sharp pointed instruments; two shotguns, with intent of gain and by means of violence and intimidation on persons that is shooting Felix Larong and manhandling Uldarica Larong, his daughter, the latter sustained injuries in the different parts of her body, did then and there willfully, unlawfully, and feloniously take, from Felix Larong and Luciana Larong, husband and wife respectively, the amount of Three Hundred Fifty (P350.00) Pesos, Philippine Currency, belonging to Felix Larong, to the damage and prejudice of the latter in the amount aforestated.

That on the occasion of said robbery and for the purpose of enabling them to take, steal and carry the amount of Three Hundred and Fifty (P350.00) Pesos, the herein accused in pursuance of their conspiracy, with intent to kill did then and there willfully, unlawfully and feloniously, with evident premeditation, taking advantage of superior strength, disregard of rank on account of age; in band, nighttime and treachery, attack, assault and shoot Felix Larong, with the use of firearms, thereby inflicting upon the latter, the following injuries, to wit: 1. Shotgun wounds a exists (sic) irregular in shape 1.5 left iliac region. 2.1. umbilicus b entrance circular in shape located at the spinal column between the iliac crests. Internal examination: a Penetrated wounds small intestine, large intestine, mesenteries. b severed spinal column c extracted pellets. 1.2. from the abdominal wall 2.1. from the spinal column. and as a consequence thereof cause the death of Felix Larong thereby causing moral damages to the heirs of the victim. Contrary to Art. 294 paragraph 1 of the Revised Penal Code with the generic aggravating circumstance of treachery and the aggravating circumstance of insult or disregard of rank, in band, use of superior strength and night time. xxx xxx xxx Of the four accused, only three, Arturo Pecato, Felix Pecato, and Ereneo Peruda, were arrested. Victoriano Leyros went into hiding, evaded arrest, and has remained at large. Upon their arraignment on February 18, 1974 3 the three accused, Arturo Pecato, Felix Pecato, and Ereneo Peruda, pleaded not guilty. Whereupon, the trial court proceeded with the trial of the case. However, before the actual trial in the court below, specifically on June 23, 1974, the accused Arturo Pecato died, hence, "his criminal responsibility in the case whatever he may have, was extinguished." 4 However, the case proceeded and was decided against Felix Pecato and Ereneo Peruda.

The dispositive portion of the 109-page decision dated February 4, 1975, now under review, states: xxx xxx xxx WHEREFORE, in view of all the foregoing considerations, this Court hereby finds the accused FELIX PECATO and ERENEO PERUDA guilty beyond reasonable doubt of the crime of Robbery with Violence Against or Intimidation of Persons, defined and penalized under Article 294 of the Revised Penal Code, with the aggravating circumstances of treachery, disregard of rank, in band and abuse of superior strength and nighttime, with no mitigating circumstance to offset the same, and invoking the provisions of Article 294 of the same Code with respect to the aspect that the crime was committed in band, the Court hereby sentences the said two accused to suffer the supreme penalty of DEATH by electrocution together with all the accessories prescribed by law. The same accused are hereby ordered to indemnify, jointly and severally, the heirs of Felix Larong in the sum of P12,000.00 and to pay their proportionate share of the costs. The home-made shotgun, Exhibit "D," being one of the instruments of the crime, the same is hereby ordered forfeited in favor of the Government. Let this case, insofar as the accused Victoriano Leyros who is at large be archived without prejudice to its reinstatement as soon as said accused shall have been apprehended and brought to the jurisdiction of this Court.
IT IS SO ORDERED. 5

xxx xxx xxx The records of the case establish the following facts: At about nine o'clock in the evening of November 1, 1971, 6 in Lahi, Gigaquit, Surigao del Norte, while Felix Larong, about 70 years old, 7 and his family, consisting of his wife Luciana Larong, about 85 years of age, 8 and his 31-year old unmarried daughter, 9 Uldarica Larong, were preparing to sleep, 10 several men called from outside their small house, a one-room affair, 4 1/2 by 5 meters (3 by 2 fathoms) in dimensions. 11 The said men after bidding the house occupants "good evening," requested that they be allowed to enter the Larongs' house. 12Hearing these, Felix Larong opened the door of their house 13 and thereupon, four men, each carrying a gun, entered. 14 Having thus gained entrance to and once inside the house, the four heavily armed men again greeted the house occupants 15 and with the use of flashlights they carried, illuminated the inside of the house. 16 This they did notwithstanding the presence of a lighted kerosene lamp inside the house. 17 The intruders then ordered the Larongs to he face down on the floor 18 and demanded money from Felix Larong. 19 When the old man replied that he had no money, he was ordered to produce his pistol to which he answered that he had none. 20 At this point, Felix Larong was asked by one of the intruders whether he recognized them. 21 When he answered in the positive since he said they were still his relatives, and even while he was lying face down on the floor, one of the men, Arturo Pecato, shot him. 22 He died as a result of the shotgun wounds he sustained. After shooting Felix Larong, the intruders next turned their attention on Uldarica Larong and demanded money from her. 23 When she refused, she was manhandled and hit with gun butt on different parts of her body. 24 One even struck the side of her face. 25 Luciana Larong, seeing what the malefactors

were doing to her daughter, ordered the latter to give them money. 26 Uldarica Larong first gave the men P300.00, but when they still demanded for more, she gave an additional P50.00. 27 After a while, the intruders left. Fearful that the robbers-killers would come back, Uldarica Larong and Luciana Larong went out of their house and hid themselves among the bushes nearby. 28 True enough, the robbers later returned but finding no one around, they did not tarry long. 29 After staying for only about an hour, they left. 30 On the following morning, November 2, 1971, the robbery killing was reported to the Police Department of Gigaquit . 31 The Chief of Police upon learning of the incident dispatched several policemen to the scene of the crime to conduct an investigation. 32 The policemen on reaching Lahi went to the house of the Larongs and there asked Luciana Larong and her daughter Uldarica Larong who perpetrated the crime. The two women positively Identified and pointed to Arturo Pecato, Felix Pecato, Victoriano Leyros, and Ereneo Peruda as the criminals who robbed them and killed Felix Larong. 33 Based on the Identification made by the two Larong women, the policemen arrested on that same day Arturo Pecato and Felix Pecato at their separate residences which were also located at Lahi. 34 Ereneto Peruda was apprehended the following day, November 3, 1971, in the Poblacion of Gigaquit. 35 Victoriano Leyros was nowhere to be found and thus was never arrested. 36 At the trial of the case, the prosecution presented five (5) witnesses, namely: Dominador Paray, one of the policemen who conducted the investigation on November 2, 1971; Judge Capistrano C. Navallo, the municipal judge of Gigaquit who conducted the preliminary examination of the accused; Nicasio Erazo, the Chief of Police of Gigaquit at the time the crime was committed; Dr. Bernardo Moran, who interpreted and explained the medical findings contained in the autopsy report on the victim Felix Larong submitted by Dr. Celso Valmores; 37 and Uldarica Larong. Incidentally, the widow of the victim, Mrs. Luciana Vda. de Larong, was not presented at the trial. However, her deposition dated January 16, 1973, which was taken with the express permission of the trial court, 38was presented in evidence by the prosecution as Exhibit "C". 39 The defense on its part presented as witnesses Felicidario Bayla, Daniel Latorre, Encarnacion Peruda, Vicenta Pelajes Pecato, Francisco Gonzales, and the two remaining accused themselves, Felix Pecato and Ereneo Peruda. Against the positive Identification made by prosecution witnesses Uldarica Larong and the widow, the accused interposed alibi for their defense. Accused Felix Pecato claimed that he did not commit the crime as he was at his house on that night of November 1, 1971 and never at any instance went out. 40 He stated that on the date of the incident he was sick, suffering from fever and chilling, 41 and was very weak. 42 He swore that with him that night of November 1, 1971 were his wife, their child, and his mother , 43 who massaged him, 44 and spent the night with him and his family. 45 This alibi of appellant Felix Pecato was corroborated by his mother, Vicente Pelajes Pecato, who testified that she spent the night of November 1, 1971 in the house of her son, Felix Pecato. 46 She asserted that she was there to take care of her sick son and even massaged him. 47 She further testified that her son Felix never left the house that night 48 as he was then very weak and still recuperating from fever and chills. 49 Appellant Ereneo Peruda, on the other hand, averred that he spent the whole night of November 1, 1971 at home with his family and several other guests. 50 He recounted that early on that night there was a small feast held in their house as it was then his younger sister's birthday. 51 According to him, he retired to sleep at about eleven o'clock that night 52 and even shared his bed with one of their guests who stayed and spent the night at their house. 53 From that time and until eight o'clock in the morning of the next day, November 2, 1971, when he woke up, he never went out of his house. 54 The narration made by the appellant Ereneo Peruda as to his whereabouts on the night of November 1, 1971 was supported by the testimonies of two of the defense witnesses, Felicidario Bayla and Daniel Latorre. Bayla testified that he met accused Ereneo Peruda late in the afternoon of that All Saints' Day after a cockfight, 55 and together they proceeded to the latter's house as there was a small party being held then at that place. 56 He further said that he

stayed at the Peruda's place for three more hours after his arrival at about seven o'clock in the evening 57and Ereneo never left the house all the while that he was there. 58 Daniel Latorre testified that he also met the accused after the cockfight held that afternoon of November 1, 1971. 59 Afterwards, Daniel Latorre declared that along with several others, he went to the house of Ereneo Peruda as there was a small feast there. 60 He narrated how he was with Ereneo Peruda the whole night of November 1, 1971. He added that he even spent that night in the Perudas' place and slept side by side with the accused, sharing a bed. 61 He stated hat he never noticed the accused leave the house at any single moment the whole night of November 1, 1971. 62 Encarnacion Peruda, an older sister of accused Ereneo Peruda's father 63 and a witness for the defense, stated that she immediately went to the house of the Larongs on November 2, 1971 after hearing of the death of Felix Larong. 64 According to her, upon reaching the place, she inquired from Uldarica Larong what happened and who did it. 65 Uldarica Larong allegedly told her (witness) that they, the Larongs, were not able to recognize the malefactors as their faces were covered or masked and they were wearing hats. 66 Francisco Gonzales, the Municipal Mayor of Gigaquit at the time the crime was committed, 67 was presented by the accused obviously to support their accusation that they were subjected to physical maltreatment by the policemen of Gigaquit while they were under detention. However, this witness only testified that he was approached by the mother of Arturo and Felix Pecato for help regarding her sons who were then already under police custody as she was afraid that they might be mauled by the policemen. 68 Responding to the entreaty, the mayor-witness said that he summoned the Chief of Police and ordered the latter to see to it that the detainees were taken good care of. 69 The crux of this review is the determination as to which prevails between the positive Identification of the two appellants and their alibi. As already mentioned, the trial court found that herein two accused, Felix Pecato and Ereneo Peruda, guilty beyond reasonable doubt of the crime of robbery with violence against or intimidation of persons, as defined and penalized in Article 294 of the Revised Penal Code, and sentenced them to death. After a thorough review of all the evidence on record, we are constrained to affirm, as we hereby affirm, the judgment of the trial court. While indeed, "(T)he prosecution has the onus probandi of establishing the guilt of the accused beyond reasonable doubt and the weakness of the defense does not relieve it of its duty ...," 70 in the case at bar, we are fully satisfied that the prosecution has established a clear and positive Identification of the accused. Luciana Larong and Uldarica Larong, the two prosecution witnesses who were themselves victims of the crime complaint of and subject of this criminal case, and who Identified the two accused as among the perpetrators of the crime, never in the main, wavered in their testimonies. From as early as right after the incident, during the police investigation. in the lengthy and thorough preliminary investigation conducted by Municipal Judge Capistrano C. Navallo, and at the trial of the case, these two witnesses-victims readily, positively, and unequivocally Identified Arturo Pecato, Felix Pecato, Victoriano Leyros, and Ereneo Peruda as the four persons who entered their home, robbed them of P350.00, killed Felix Larong, and manhandled and pistol-whipped Uldarica Larong on that fateful night of November 1, 1971. They recognized these malefactors as there was a lighted kerosene lamp inside their house that night. The two women were certain of the Identity of the four men because the latter were not wearing masks, hats, or anything to hide their Identities. 71 Moreover, these witnesses and the appellants are close relatives. 72 On the other hand, the defense tried to attribute the inculpatory testimonies and hostility of the Larongs against the appellants to the "bad blood" that allegedly exists between them. This "bad blood," which is now being foisted by the defense as the motive of the Larongs in falsely accusing the appellants and testifying against them, purportedly arose when one of the accused, Arturo Pecato, now deceased, brother of appellant Felix Pecato and a friend of appellant Ereneo Peruda, testified in a stabbing incident against Jose Escudo, a grandson of the victim Felix Larong. 73 Appellant Ereneo Peruda, on the other hand, claimed that his father was, at one time, hacked by Jose Escudo. 74 The proffered motive has not been proven satisfactorily. Indeed, considering that the two witnesses-victims, are closely related by blood to the appellants, it would take much more than just "bad blood," engendered in the way revealed by the defense, to constrain close blood relatives to impute falsely the

commission of a capital offense to other relatives which would mean the imposition of the extreme penalty of death. The Filipino psyche abhors such an irreverent and false imputation, This abomination is especially true among rural and simple folks like the Larongs. It is more likely that the Larongs had been impelled to testify against their relatives as a concomitant of their quest for justice. We agree with the trial court that the so-called "bad blood" that allegedly exists between the accused and the Larongs appears as mere illusions, concocted by them in a desperate but vain effort to be extricated from the crushing wheels of justice. Even defense witness Vicenta Pelajes Pecato in her testimony admitted that if there was indeed an ill-will between them and the Larongs, the victim, Felix Larong, endeavored to patch things up by admonishing his grandson, who was allegedly the source of the rift. 75 Thus it is shown that the claim of the defense on this score is, at best, flimsy. It is a rule well-settled in this jurisdiction that alibi cannot prevail over the positive Identification by the prosecution's witnesses of the accused as the perpetrators of the crime especially when there was no physical impossibility for the accused to be at the scene of the crime at the time of its commission. 76 The rule holds more true where the accused is positively Identified by one who has no reason to charge falsely the accused with an offense that is punishable with death. 77 The alibi presented by accused Felix Pecato is even more dubious and weak because it was attempted to be established mainly by the appellant himself and his mother, Vicente Pelajes Pecato, and not by third persons "who would, in the natural order of things, be best to support the tendered alibi. 78 In People v. Romero, 79 we ruled that the testimony of a mother corroborating her son's alibi scarcely merits any probative value. It is undeniably tainted with bias for it springs from the natural desire of a mother to exculpate her son from criminal liability . 80 Further, "alibi" is at best a weak defense and easy of fabrication especially between parents and children, relatives, and even those not so related. 81 More importantly, however, from the testimonies of the witnesses, both for the prosecution as well as for the defense, it has been proven that the two appellants, Felix Pecato and Ereneo Peruda, reside in places very near the scene of the crime. 82 In fact, it would only take them less than a two- hour trek from either place to the house of the victims. 83 Thus, there was no physical impossibility for the appellants to be at the scene of the crime on the night of November 1, 1971. But above all, the defense was not able to rebut the positive Identification by Luciana Larong and Uldarica Larong of the two appellants as among the four heavily armed men who shot and killed Felix Larong, robbed them of P350.00, and mauled Uldarica, inflicting physical injuries in the different parts of her body. The crime committed by the accused is Robbery with Homicide as defined and penalized under Article 294 (1), of the Revised Penal Code. Felix Larong was shot to death during the robbery. We have repeatedly held that: (A)s long as homicide resulted during or because of, the robbery, even if the killing is by mere accident robbery with homicide is committed,- it is only the result obtained, without reference or distinction as to the circumstances, causes, modes or persons intervening in the commission of the crime that has to be taken into consideration 84Further, whenever a homicide has been committed as a consequence of or on the occasion of a robbery, all those who took part as principals in the commission of the crime are also guilty as principals in the special complex crime of robbery with homicide although they did not actually take part in the homicide unless it clearly appeared that they endeavored to prevent the homicide. 85 In this instance, the evidence on record is bereft of any showing that any of the accused tried to prevent the killing of Felix Larong. What is shown instead is that they merely stood watching and did nothing when one of their companions shot the victim. 86 Additionally, the term "homicide" in robbery with homicide should be understood as a generic term and includes murder. 87 To determine the propriety of the penalty imposed by the trial court on the accused for the crime they committed, the circumstances attendant to the commission of the crime must be considered. While the Information alleges the presence of the aggravating circumstances of treachery, insult or disregard of rank, in band, abuse of superior strength, and nighttime, the decision under review found the attendance of treachery, disregard of rank, in band, abuse of superior strength, and nighttime. The trial court is correct in ruling that there was treachery in the commission of the crime. Felix Larong was shot to death while he was lying face down on the floor, 88 without any warning and thus was not able to defend himself at all.

The aggravating circumstances of in band, abuse of superior strength, and nighttime were likewise present in the commission of the crime. The robbers, numbering four were all armed. 89 Felix Larong, who was already 70 years old on November 1, 1971, was shot and killed by one of the robbers all of whom were younger and physically stronger. The robbers likewise especially sought nocturnally in committing the crime. This is shown by their act of providing themselves with flashlights 90 which they used in illuminating the interior of the Larong's home after they had gained entrance therein. Additionally, the aggravating circumstance of dwelling is also present in this case inasmuch as the crime took place and was committed by the accused in the house of the victims. We have held that dwelling is an aggravating circumstance in the crime of robbery with homicide 91 as the authors thereof could have very well committed the crime without the need of violating the domicile of the victims. 92 The aggravating circumstance of disregard of rank cannot, however, be appreciated in this case. Disregard of rank finds no application in robbery with homicide, a crime primarily against property and not against persons. 93 The crime of robbery with homicide is punishable by reclusion perpetua to death. This case being attended by the generic aggravating circumstances of treachery, in band, abuse of superior strength, nocturnally, and dwelling, without any mitigating circumstance to offset the same, and observing the provisions of Article 63, second paragraph, of the Revised Penal Code, the penalty that must be imposed on the two appellants, Felix Pecato and Ereneo Peruda, should be, as correctly meted out by the trial court, death. However, pursuant to Section 19(l), Article III, Bill of Rights, of the 1987 Constitution, the death penalty has already been abolished. Thus, the penalty imposable on the accused is only reclusion perpetua. Parenthetically, the observation by the People in its Brief for the Appellee, 94 that the trial court should not have mentioned Article 296 of the Revised Penal Code in its decision, is well taken. As early as in the case of People vs. Apduhan 95 this Court had the occasion to state that the special aggravating circumstance of "use of unlicensed firearm" mentioned in Article 296, Revised Penal Code, is applicable only to cases of robbery committed by a band therein defined, which fall within the scope of and are punishable under Article 295 in relation to subdivisions (3), (4), and (5) of Article 294. 96 WHEREFORE, with the above MODIFICATIONS and the increase of the indemnity that must be paid to the heirs of the late Felix Larong to Thirty Thousand Pesos (P30,000.00), 97 the decision of the trial court is hereby AFFIRMED. With costs against the accused-appellants. SO ORDERED. Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ., concur.

G.R. No. 67973 October 29, 1992 THE PEOPLE OF THE PHILIPPINES, plaintiff, vs. CONRADO LAGMAY Y GARCES alias "JOJO GARCES", FERNANDO BAETIONG Y CAMPOPOS, and FRANCISCO PADULLANA, accusedappellants.

GUTIERREZ, JR. J.:

A review of the decision of the Regional Trial Court of Quezon City, Branch LXXXIV is sought by appellants Conrado Lagmay Garces alias Jojo Garces and Francisco O. Padullana, who are among the three accused convicted of the crime of Robbery with Frustrated Homicide and sentenced to suffer the penalty of reclusion perpetua. The other accused, Fernando Baetiong y Campopos escaped from prison after the prosecution had rested its case and remains at large. The three accused were initially charged in two separate informations, namely: in Criminal Case No. Q-15192 for Robbery with the Use of Force and Violence against Persons, and Criminal Case No. Q-15193 for Robbery and Frustrated Homicide. The two cases were jointly tried by the same court. In Criminal Case No. Q-15192, all three accused were acquitted. The information in Criminal Case No. Q-15193 alleged: That on or about the 20th day of July, 1980, in Quezon City, Philippines, the above-named accused, conspiring together, confederating with, and mutually helping one another, with intent of gain, with the use of force, violence and intimidation against persons, did, then and there willfully, unlawfully and feloniously, rob the following offended parties of their personal properties, to wit: 1. Adela Alfonso y Marquez: One Lady's wrist watch with calculator valued at P385.00 Ace Shoulder bag, valued at 40.00 P425.00 2. Maria L. Jesus: One college ring valued at P500.00 One gold ring with stone valued at P250.00 One lady's Citizen watch valued at P600.00 P1350.00 3. Edgar Fulleros: One Seiko chronograph valued at P600.00 4. Victoriano Madrigal: Cash money representing his earnings as driver of the jeepney robbed (in different denominations) P180.00 5. Pat. Casiano Pedrana (should be Pedrano) Cash money in different denominations P14.00 One pistol, caliber .45 colt, SN No. 1638482 with seven rounds of ammunition Undermined amount in the following manner, to wit: the said accused, pursuant to their conspiracy, rode in a passenger jeepney driven by the offended party Victoriano Madrigal at Blumentritt Street, Manila bound for Novaliches, and when said passenger jeepney was near 11th Avenue, A.

Bonifacio Street, this City, said accused brought out their unlicensed firearm and bladed weapons and told the passengers that it was a hold-up and threatened said passengers with death if they resisted or cried for help and thereafter with intent of gain, take, rob and carry away the personal properties of the offended parties mentioned above and when Pat. Casiano Pedrano resisted, said accused with intent to kill, stab (sic) him on different parts of his body and fired at him with their firearm thereby inflicting upon Pat. Casiano Pedrano serious and mortal wounds which could have produced his death were it not for the damage prejudice of offended parties in the aforesaid sum indicated above and in such other amount as may be awarded to them under the provisions of the Civil Code. ( Rollo, pp. 6-7) After trial, the court rendered a conviction, the dispositive potion of which reads: In Criminal Case No. Q-15193, the court finds the accused Conrado Lagmay y Garces, Fernando Baetiong y Campopos and Francisco O. Padollana (should be Padullana) GUILTY as principals and beyond reasonable doubt of the crime of Robbery with Frustrated Homicide under Section 2, Article 294 of the Revised Penal Code with the attending aggravating circumstance of use of an unlicensed firearm and no attending mitigating circumstance and hereby sentences all three of them to suffer the penalty of life imprisonment ( reclusion perpetua) together with all the accessories attendant thereto. Since the articles subject of the offense appear to have been recovered, no civil indemnity is imposed for the value thereof. However, they are sentenced to indemnify jointly and severally Pat. Casiano Pedrano in the amount of P36,000.00. Also, they are sentenced to pay jointly the costs of the proceedings. ( Rollo, p. 10) The evidence on which the conviction was based is summarized in the decision as follows: In Criminal Case No. Q-15193, the case for the prosecution was testified to by two of the passengers, Pat. Casiano Pedrano and Adela Alfonso. Pat. Casiano Pedrano is a member of the Manila Police Department. On July 20, 1980, at 11:30 o'clock p.m., he was abroad a passenger jeepney bound for Novaliches, Quezon City and was seated in the back at the right side. A hold-up was staged by three (3) persons whom he identified as the accused herein. The accused Baetiong stabbed him in the chest while the accused Lagmay shot him on the right and left thighs with a .22 caliber revolver. His service gun (Exh. "D"), his wallet (Exh. "E"), his badge (Exhs. "E-1"), his cash money consisting of two 2 5-peso bills (Exhs. "F" & "F-1") and two 2 2-peso bills (Exhs. "F-2" & "F-4"), and his shoulder bag (Exh. "G") were taken from him by the robbers. He was then dropped on the highway. He was brought to and treated at the MCU-FDT Medical Foundation Hospital (Exh. "A") and incurred an expense of about P36,000.00. Adela Alfonso was a passenger of that same jeepney with her sister Lydia, cousin Maria Rosal de Jesus, and Restituto Rivera. As the jeepney traveled along, the man beside her was always pressing his body towards hers. Along A. Bonifacio St. near 11th Avenue in Quezon City, a passenger whom she identified as the accused Lagmay drew a gun announced: "This is a hold-up." There were three (3) robbers. Baetiong hit Rivera with a gun in the mouth while Lagmay slapped her. They took from her Casio calculator watch worth P385.00 and her bag worth P50.00. It was accused Lagmay who got the things from her. The accused Padollana was the one who took and collected the jewelries of the other passengers. Lagmay stood up and boxed her and by reason of the force of the blow, she fell from the jeepney. She suffered a dislocation in the right shoulder and was treated at the National Orthopedic Hospital (Exh. "C"). She was investigated by the police on the following morning and she gave a written statement (Exh. "B"). In addition to the foregoing, the prosecution presented the extrajudicial admissions of the accused Lagmay (Exhs. "H" & "H-1") and of accused Padollana (Exhs. "I" & "I-1") (Rollo, pp. 7-8) The accused interposed their respective defenses denying their alleged participation in the hold-up.

Conrado Lagmay alleged that on July 20, 1980 at about 11:00 in the evening in Blumentritt Street, he was alone as he boarded a jeepney bound for Novaliches. Of all the passengers inside that jeepney, only Francisco Baetiong was known to him. He did not reach his destination because of a trouble that occurred while the vehicle was running in which Fernando Baetiong stabbed another male passenger for reasons he did not know. He jumped out from the back exit of the vehicle after that stabbing incident but was arrested by a security guard. He however admitted having blood on his clothes which he explained to have due to injury on his forearm caused by his jumping out and rolling on the ground. (TSN, April 19, 1983, pp. 7-8) He said that there was one female passenger who fell from the jeep but he did not come to her aid. He also said that he did not confront his co-accused Baetiong who insisted that it was he (Conrado Lagmay) who shot and wounded the latter on his right foot. ( Ibid., p. 9) The accused likewise said that he did not know nor did he see Padullana. Meanwhile, Francisco Padullana narrated that he is a provinciano who came from Tacloban. Leyte eleven (11) days before the alleged incident took place, to look for a job in Manila. He said that after being taught by his aunt on how to commute from his cousin's place in Tondo to Blumentritt, and from Blumentritt to his aunt's house in Caloocan, he took a jeepney alone on the night of June 20, 1980 from Blumentritt but failed to arrived at his destination. While the jeepney was running, he saw two men quarrelling with each other. He was later threatened by one of the men (referring to Fernando Baetiong) who pointed a bladed instrument at his (Padullana's) side, to go with him by a taxicab to a house of a friend or relative in Tondo. In that house, Baetiong ate and slept but Padullana did not. He did not leave that house because he did not know the way from there to his aunt's place in Caloocan. According to him, police officers arrested him and Fernando Baetiong in that house after some hours and held them for questioning. He said that despite his insistence that he was not involved in the hold-up, the police even mauled him and forced him to signed a statement. (TSN, May 24, 1983, pp. 7-13) Padullana said that he did not know his co-accused Conrado Lagmay ( Ibid, 1983, p. 4) Finding the denials of the accused to be weak and not credible the trial court convicted all three of them. Only the accused Lagmay and Padullana appealed the decision to this Court and assigned the following errors: I THE TRIAL COURT ERRED IN FINDING THAT CONSPIRACY EXISTS IN THIS INSTANT CASE. II THE TRIAL COURT ERRED IN NOT HOLDING THAT THE CONSTITUTIONAL RIGHTS OF THE APPELLANTS TO REMAIN SILENT AND TO COUNSEL DURING CUSTODIAL INVESTIGATION HAD BEEN VIOLATED. III THE COURT A QUO COMMITTED REVERSIBLE ERROR IN ADMITTING IN EVIDENCE THE EXTRA JUDICIAL CONFESSIONS OF THE ACCUSED WHICH WERE EXTRACTED THROUGH FORCE, DURESS, THREATS AND INTIMIDATION. IV THE TRIAL COURT ERRED IN FINDING THAT THE GUILTY OF APPELLANTS HAD BEEN ESTABLISHED BEYOND REASONABLE DOUBT. (Appellant's Brief, p. 1 in Rollo, p. 25)

It is argued that there can be no conspiracy among the three accused in the present case because there was no proof that all three of them were known to each other and that there was no sufficient proof of a pre-conceived agreement to commit the robbery. The accused-appellants Lagmay and Padullana testified that they did not know each other and that they did not see each other inside the jeepney. They likewise admit that both of them knew Fernando Baetiong. Padullana, however, makes the qualification that he knew Baetiong only because he was threatened by the latter to go to a house in Tondo. We emphasize that conspiracy which determines criminal culpability need not entail a close personal association or at least an acquaintance between or among the participants to a crime. Moreover, evidence of a previous agreement or plan to commit a crime is not essential to establish conspiracy. (People v. Maranion, 199 SCRA 421 [1991]; People v. Dionisio, 200 SCRA 207 [1991]) Conspiracy is established by evidence of unity of purpose at the time of the commission of the offense and unity in its execution. (People v. Bravante, 150 SCRA 569 [1987]; People v. Cantuba, 183 SCRA 289 [1990]) What is important is that in the performance of the specific acts necessary to achieve their goal, there was "such closeness and coordination that would indicate a common purpose or design." (People v. Petenia, 143 SCRA 361 [1986]; People v. Francisco, 182 SCRA 305 [1990]) In the present case, conspiracy was established by conclusive evidence. It was shown to exist as clearly as the commission of the crime itself. (De la Concepcion v. People, 173 SCRA 253 [1989]) There is evidence of participatory acts of each of the three accused. Contrary to what the counsel for the accused-appellants suggests, the Court finds that Padullana is not spared a finding of conspiracy since the evidence positively manifests the same intent on his part to take things against the will of the complainants and other passengers. The accused-appellant Padullana was found to have cooperated and given material aid in the consummation of the crime. The Solicitor General aptly describes the manner in which the crime was committed. a. As soon as accused Baetiong announced that they were staging a hold-up in the passenger jeepney on July 20, 1980, both he (referring to Baetiong) and accused-appellant Lagmay took turns in hitting victims Casiano Pedrano and Adela Alfonso who resisted in handing their valuables to the former (TSN, July 13, 1981, p. 2; TSN, August 26, 1981, p. 6). Once certain that the other jeepney passengers would provide no resistance for fear of their life and limb, accused-appellant Padolana took the jewelries of passengers Marylou de Jesus and Restituto Rivera (TSN, August 26, 1981, p. 7). His acts, if nothing else, indicate criminal intent to deprive others of their property in accordance with a common plan as agreed upon with his co-accused Baetiong and Lagmay." (Appellee's Brief, p. 15) The above observations are based on the testimonies of the prosecution witnesses. The appellant's counsel, however, asks us to believe that the prosecution witnesses testified on the lack of participation of accused-appellant Padullana. There is no basis for this opinion. The Court notes and views with disfavor the manner by which desired portions of the testimonies were lifted and the more important ones left out just to convince us that the prosecution in fact proved the innocence of Padullana. The witnesses Adela Alfonso and Pat. Casiano Pedrano who were victims of the crime at first answered in the negative in their respective direct examinations regarding the participation of Padullana, but after further questioning and more lucid differently and particularly attested to Padullana's presence and act of collecting the items with intent to rob the passengers. The testimony of each of the prosecution witnesses is shown to be characterized by candor that normally accompanies an unrehearsed and honest delivery of facts personally and vividly known to a witness. Minor discrepancies caused by the needed deeper reflection do not affect the veracity of a testimony for as long as the fact of participation was duly established. The credibility of the witnesses are even reinforced. (People v. Lucille Sendon, G.R. No. 95903-05, June 8, 1992; People v. Bautista 147 SCRA 500 [1987]; People v. Alfredo Hoble y Leornardo, G.R. No. 96091, July 22, 1992)

The pertinent portion of the testimony of Adela Alfonso, the victim who was slapped by accused-appellant Lagmay and who fell from the jeepney, is as follows: xxx xxx xxx Q Now you said there were three persons involved in the robbery hold-up. You mentioned Fernando Baetiong, you identified Conrado Lagmay as the person who took your calculator, watch and shoulder bag. Now could you recognize that 3rd person if you see him again? A Yes, sir. (Witness pointing to Francisco Padollana) Q What did Francisco Padollana do? A He did not do anything. Q What was he doing all the while from the start that this Lagmay drew his gun, slapped and got your calculator and shoulder bag? A He was the one who got the jewelries of my companions . Q Who is that companions (sic) of yours? A (Witness pointing to Marylou de Jesus and Restituto Rivera) (TSN, August 26, 1981, p. 7; Emphasis supplied) Pat. Casiano Pedrano, the victim who was stabbed, shot and seriously wounded testified: Q How about the accused Francisco Padollana, did you observe if there was anything in his possession at that time? A There was none. Q While this robbery was going on what was Padollana doing? A (No answer) COURT: Do you want to impress to the Honorable Court that all the wound sustained in your body were inflicted by accused Baetiong?

A Yes, sir. FISCAL: While you were being stabbed by Baetiong do you still recall what the other passengers were doing? A The other passengers cannot move because Padollana has a gun . (TSN, July 13, 1981, p. 3; Emphasis supplied) It can be seen that the prosecution witnesses were able to positively identify Padullana as one of the three men responsible for the robbery. The mere presence of accused-appellant Padullana instilled fear among the passengers. Moreover, his act in collecting the personal belongings against the will of the owners makes him a co-conspirator to the unlawful taking of property. Hence, the allegations that he was a provinciano from Leyte who came here several days before the robbery took place to look for a job, and that he was forcible asked by accused Baetiong to go to a house in Tondo are mere denials which do not overturn the strength of the prosecution evidence. The Court agrees with the argument of the Solicitor General that if indeed accused-appellant Padullana was forced against his will by the accused Baetiong to accompany him to a house in Tondo, why could he not devise a scheme to escape? (Appellee's Brief, p. 16; Rollo, p. 51) The second and third assigned errors refer to the propriety of the admission in evidence of the extrajudicial confessions (exhibits "H" and "I"; Original Records, pp. 208-211) of the two accused-appellants allegedly obtained in violation of the constitutional right to remain silent and to counsel, and by means of mauling and electrocution administered by policemen in civilian clothes. We agree with the appellants that the confessions taken without assistance of counsel should not have been considered by the trial court. However, the confessions are not necessary to support the judgment of conviction. The testimonies of the prosecution witnesses identifying the accused-appellants and linking them to the successful accomplishment of a common plan to rob the passengers of their valuables, constitute strong and convincing evidence to establish the guilt of the accused beyond reasonable doubt. The negative testimonies of the accused-appellants denying their participation cannot prevail over the positive testimonies of the prosecution witnesses. (People v. Joselito Villalobos and Roberto Villalobos, G.R. No. 71526, May 27, 1992) The prosecution witnesses related their first-hand account of the specific involvement of the three accused who, armed with a gun and a bladed knife, were able to overcome the resistance of the passengers to the extent of inflicting injuries, and successfully stashed away the things belonging to the victims. Since in a conspiracy, the act of one is the act of all, every one of the conspirators is equally guilty and must then suffer the same penalty prescribed by law. This, notwithstanding the different modes of participation of each one in the crime. (People v. Quinones, 183 SCRA 747 [1990]) However, the trial court erred in designating the crime committed as robbery with frustrated homicide, in applying Section 2, Article 294 of the Revised Penal Code, and in appreciating the use of an unlicensed firearm as an aggravating circumstance. There is no such crime as robbery with frustrated homicide. Section 2 of Article 294 which penalizes robbery that is accompanied by rape or intentional mutilation, or on the occasion of or by reason of which any of the physical injuries resulting in insanity, imbecility, impotency or blindness is inflicted, is certainly not applicable to the present case. The records do not show any of such circumstances to be present.

Inasmuch as the prosecution did not established with absolute certainty the gravity or seriousness of the physical injuries suffered by Patrolman Pedrano, the Court deems it proper that the accused-appellants be held liable under Section 4, Article 294 of the Revised Penal Code which states: Art. 294. Robbery with violence against or intimidation of persons . Penalties Any person guilty of robbery with the use of violence against or intimidation of any person shall offer: xxx xxx xxx 4. The penalty of prision mayor in its maximum period to reclusion temporal in its medium period, if the violence or intimidation employed in the commission of the robbery shall have been carried to a degree clearly unnecessary for the commission of the crime, or . . . Section 4, Article 294 penalizes robbery, in the course of the execution of which, the offender shall have inflicted upon any person not responsible for the commission of robbery, serious physical injuries defined in paragraphs 3 and 4 of Article 263 of the same code. We note that the offense was committed under at least two (2) of the circumstances mentioned in Article 295. The robbery was consummated by attacking a moving motor vehicle such that the passengers thereof were taken by surprise. It was likewise committed along a street on the regular route taken by the passenger jeepney with the use of a firearm. According to Article 295, the offenders shall be punished by the maximum periodof the prescribed penalty in Section 4, Article 294, or reclusion temporal in its medium period. WHEREFORE, the decision appealed from is hereby AFFIRMED, with the modification that the accused-appellants Conrado Lagmay y Garces and Francisco O. Padullana are held guilty of the offense of robbery defined in Section 4, Article 294, in the course of the execution of which serious physical injuries enumerated in paragraphs 3 and 4 of Article 263 were inflicted and the circumstances mentioned in Article 295 were present. Applying the Indeterminate Sentence Law, the accused-appellants are sentenced to an indeterminate penalty of ten (10) years and one (1) day as minimum to seventeen (17) years and four (4) months as maximum. The accused-appellants shall likewise be credited in the service of their sentence with the full time of their preventive imprisonment provided that they previously agreed voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners; however, if they did not so abide, then they shall be credited with four-fifths of the time. SO ORDERED Bidin, Davide, Jr., Romero and Melo, JJ., concur.

G.R. No. 173479 July 12 2007 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs. JUAN CABBAB, accused-appellants. GUTIERREZ, JR. J.: GARCIA, J.:

Before the Court on automatic review is the decision [1] dated February 22, 2006 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00968 which affirmed, with modification, an earlier decision of the Regional Trial Court (RTC) of Bangued, Abra, Branch 2, in Criminal Case No. 687, finding appellant Juan Cabbab, Jr., guilty beyond reasonable doubt of the crime of Robbery with Homicide and Attempted Murder and sentencing him to suffer the penalty of reclusion perpetua. Pursuant to our pronouncement in People v. Mateo[2] which modified the provisions of the Rules of Court insofar as they provide for direct appeals from the RTC to this Court in cases where the penalty imposed by the trial court is death, reclusion perpetua or life imprisonment, this case was earlier[3] referred to the CA, whereat it was docketed as CA-G.R. CR-H.C. No. 01978, for appropriate action and disposition. The Case In the court of origin, appellant Juan Cabbab, Jr., along with his cousin-in-law Segundino Calpito, was charged with the crimes of Double Murder and Attempted Murder with Robbery in an Information[4] alleging, as follows: That on or about April 22, 1988, in Sitio Kayawkaw, Barangay Kimmalasag, Municipality of San Isidro, Province of Abra, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with the intent to kill, treachery and evident premeditation, while armed with a firearm (notrecover), conspiring, confederating and mutually helping one another, did then and there, willfully, unlawfully and feloniously assault, attack and shot from ambush WINNER AGBULOS and EDDIE QUINDASAN, consequently inflicting thereby multiple gunshot wounds on the different parts of their bodies, killing Winner Agbulos on the spot and causing the death of Eddie Quindasan shortly thereafter, then and there willfully, unlawfully and feloniously, with intent to kill, shot William Belmes, said accused having commenced the execution of Murder by overt acts but were unable to perform all the acts of execution, which would have produced the crime of Murder as a consequence thereof, due to alertness of victim William Belmes to roll and poor marksmanship of the accused thus prevented his death, then and there willfully and unlawfully and feloniously, with the intent of gain, take, steal and carry away the money of Winner Agbulos in the amount of Twelve Thousand Pesos (P12,000.00), Philippine currency.. ALL CONTRARY TO LAW with the aggravating circumstance of: (1) uninhabited place. On arraignment, appellant Juan Cabbab, Jr. and accused Segundino Calpito separately entered their pleas of Not Guilty to the crimes charged. Thereafter, trial on the merits ensued, in the course of which the prosecution presented the oral testimonies of M/Sgt. Godofredo Tubadeza, a police investigator at Camp Villamor, Bangued, Abra; PO William Belmes, a member of the Integrated National Police at the Villaviciosa Police Station; Vidal Agbulos, father of the victim Winner Agbulos; Dra. Leona Garcia-Beroa, medico-legal officer who conducted an autopsy on the body of Winner Agbulos; and Dr. Godofreco Gasa, a physician at the AbraProvincial Hospital. For its part, the defense presented the appellant himself; accused Segundino Calpito; and George de Lara, a Forensic Chemist of the National Bureau of Investigation (NBI). The Evidence The Peoples version of the incident is succinctly summarized by the Office of the Solicitor General (OSG) in its Appellees Brief, [5] to wit: In the morning of 22 April 1988, father and son Vidal Agbulos and Winner Agbulos, together with Eddie Quindasan, Felipe Abad and Police Officer (PO) William Belmes, went to Barangay Kimmalasag, San Isidro, Abra to attend a fiesta celebration. Upon arrival in the area, they found out that the fiesta celebration was already over, thus, they decided to go home in Villaviciosa, Abra. Since it was already lunchtime, the group took their lunch at Sitio

Turod, located in the same area of Barangay Kimmalasag. After taking their lunch and on their way home, they were met by accused-appellant Juan Cabbab, Jr. and Segundino Calpito who invited them to play pepito, a local version of the game of russian poker. Only Winner Agbulos and Eddie Quindasan played pepito with the group of accused-appellant. Winner Agbulos played the dealer/banker in the game while accused-appellant and Segundino Calpito acted as players therein. Around 3:00 oclock p.m., PO William Belmes told Winner Agbulos and Eddie Quindasan that they should be going home after three (3) more deals. About 3:30 p.m., Winner Agbuloss group wrapped-up the game and were set for home together with his group. Winner Agbulos won the game. While walking on their way home from Sitio Turod, PO William Belmes, who was behind Winner Agbulos and Eddie Quindasan picking-up guava fruits from a tree, saw accused-appellant, accused Segundino Calpito and a companion running up a hill. Suddenly, he heard gunshots and saw Winner Agbulos and Eddie Quindasan, who were then walking ahead of the group, hit by the gunfire. By instant, PO William Belmes dove into a canal to save himself from the continuous gunfire of accused-appellant. PO William Belmes ran towards Vidal Agbulos and Felipe Abad, who were walking behind the group, and informed the two that Winner Agbulos and Eddie Quindasan were ambushed by accused-appellant and Segundino Calpito. The three (3) proceeded to the crime scene where they saw the dead body of Winner Agbulos together with Eddie Quindasan whom they mistook for dead. The three sought help from the police authorities of Pilar, Abra and returned to the scene of the crime where they found Eddie Quindasan who was still alive and who narrated that it was Juan Cabbab, Jr. and Segundino Calpito who ambused them and took the money, estimated at P12,000.00, of Winner Agbulos which he won in the card game. Eddie Quindasan was brought to the Abra Provincial Hospital but died the following day. Postmortem examination of Winner Agbulos showed that the cause of his death was cardio respiratory arrest secondary to hemorrhage due to multiple gunshot wounds. On the other hand, Eddie Quindasans cause of death was cardio respiratory arrest secondary to hypovolemic shock due to multiple gunshot wounds. For the defense, appellant himself took the witness stand claiming that in the morning of April 22, 1988, he went to Palao, Baddek, Bangued, Abra to visit his friends Romeo, Demetrio and Restituto, all surnamed Borreta. He stayed there almost the entire day and left only at around 5:00 p.m. He arrived home in Kimmalasag,San Isidro, Abra at around 5:30 p.m. He declared that his co-accused Calpito was not with him that day. He likewise averred that he did not know prosecution witnesses PO William Belmes and Vidal Agbulos nor did he know of any motive for them to testify against him. Appellants co-accused Calpito denied having committed the crimes charged. He testified that at around 8:30 a.m. of April 22, 1988, he went fishing at Kimmalasag, San Isidro, Abra until 4:00 a.m. of the following day. George de Lara, Forensic Chemist of the NBI, testified that he conducted an examination on the paraffin cast taken from appellant to determine the presence of gunpowder residue or nitrates on appellants hands. The results of the said examination showed that appellant was negative of nitrates. He opined that certain factors may affect the result of the test such as perspiration, wind velocity, humidity or the type of gun used. He also theorized that a paraffin test would yield a negative result if fertilizers or cosmetics are applied to the hands before the cast is taken. The Trial Courts Decision In a decision[6] dated August 26, 1997, the trial court acquitted Segundino Calpito but found appellant Juan Cabbab, Jr. guilty of two crimes, i.e. (1) robbery with double homicide and (2) attempted murder. Dispositively, the decision reads:

WHEREFORE, the court finds accused Juan Cabbab, Jr. guilty beyond reasonable doubt of double murder with robbery or better put, robbery with double homicide and attempted murder as defined in Art. 248 of the Revised Penal Code in relation to Art. 294 of the same Code or robbery with double homicide defined and penalized under Art. 248 in relation to Art. 6 of the Same Code with aggravating circumstance of uninhabited place with no mitigating circumstances and sentences him with the penalty of reclusion perpetua for each of the killing of Winner Agbulos and for robbing the said victim after killing him and for the killing of Eddie Quindasan. The court likewise finds the accused Juan Cabbab, Jr. guilty beyond reasonable doubt of the attempted murder defined and penalized in Art. 48 in relation to Art. 6 of the Revised Penal Code. These offenses attended by the aggravating circumstance of uninhabited place with no mitigating circumstances and sentence him to suffer an indeterminate penalty of FOUR (4) MONTHS and ONE (1) DAY of arresto mayor as minimum to FOUR (4) YEARS and TWO (2) MONTHS of prision correccional as maximum. He is hereby ordered to pay the heirs of the victims P50,000.00 for each of them plus P20,000.00 also for each of them as actual expenses and finally, the amount of P100,000.00 also for each of them as moral and exemplary damages and to pay the costs of this suit. Accused Segundino Calpito is acquitted for insufficiency of evidence. SO ORDERED. The records of the case were then transmitted to this Court on automatic review. As stated at the onset hereof, the Court, in its Resolution[7] of January 17, 2006and pursuant to its ruling in People v. Mateo,[8] referred the case and its records to the CA for appropriate action and disposition, whereat it was docketed as CA-G.R. CR-H.C. No. 00968. In a decision dated February 22, 2006, the CA modified the trial courts decision and found appellant guilty of the special complex crime of Robbery with Homicide and imposed upon him the penalty of reclusion perpetua. The CA also affirmed appellants conviction, as well as the penalty imposed, for the separate crime of attempted murder. From the CA, the case was then elevated to this Court for automatic review. In its Resolution [9] of September 20, 2006, the Court resolved to require the parties to submit their respective supplemental briefs. In a Manifestation dated November 16, 2006, the OSG, in behalf of appellee People, informed the Court that it is no longer filing a supplemental brief and was merely adopting its appellees brief before the CA as its supplemental brief. Appellant, on the other hand, filed on December 18, 2006 his supplemental brief on the lone assigned error, that: THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REJECTING THE DEFENSE OF ALIBI INTERPOSED BY THE ACCUSEDAPPELLANT, DESPITE THE FACT THAT THE VERSION IS MORE CREDIBLE AND SUPPORTED BY EVIDENCE. Insisting that the prosecution failed to prove his guilt beyond reasonable doubt, appellant pleads for acquittal. He avers that the witnesses for the prosecution failed to positively identify him as the perpetrator of the crime as they did not actually see him shoot the victims. Appellant also relies on the results of the paraffin test showing that he was negative of gunpowder nitrates. The appeal must fail.

Appellants contention that the witnesses for the prosecution failed to identify him as the perpetrator of the crime is belied by the testimony of PO William Belmes, who was with the victims when the incident happened. We quote from the transcripts of the stenographic notes: William Belmes on Re-direct Examination FISCAL FLORES: Q. Mr. Witness, when you gave your statement on April 30, 1988, exactly eight (8) days after the incident when the incident wherein you were investigated upon still very very fresh in your mind (sic). Now, in your statement which you gave to the investigator, Pat. Tubadeza, you stated that you saw the persons shot at Winner Agbulos and Eddie Quindasan and after the two (2) had fell down then you also likewise saw them shot at you at the time you were rolling to the ground. Do you affirm and confirm this statement of yours which you subscribed before Fiscal Ricarte Valera? ATTY. YANURIA: Your Honor, it is misleading, we object, in so far as the shooting of Eddie Quindasan and Winner Agbulos was not seen. He only saw the persons who were firing at him namely: Juan Cabbab and Segundino Calpito. COURT: In his testimony before the court he testified before the court that he saw Juan Cabbab and Segundino Calpito shot at Eddie Quindasan and Winner Agbulos. Reform the question. FISCAL FLORES: Q. A. Q. A. Q. A. xxx However, you saw these two (2) accused, Juan Cabbab and Segundino Calpito shoot at you? Yes, sir. Will you tell the court if how far were these two (2) accused when they were firing at you? Eight (8) meters, sir. And therefore what time is it when they were firing at you? If Im not mistaken it was 4:00 oclock in the afternoon.[10] xxx xxx

William Belmes on cross-examination ATTY. YANURIA: Q. In other words, it was you being shot out by Segundino Calpito and Juan Cabbab but you did not see them shoot at Winner Agbulos and Eddie Quindasan? A. I saw Juan Cabbab and Segundino fire at Winner Agbulos and Eddie Quindasan (the witness using the word banat) and when they already fell down, they continued firing attempt and in my case I rolled and they also fired at me. [11]

The above testimony adequately showed that Belmes was able to look at and see appellant at the time he perpetrated the crime. To our mind, Belmes could not have made a mistake with respect to appellants identity, what with the fact that just a few hours before the incident, it was even appellant himself who invited Belmes and his group to play poker. For sure, Belmes had a face-to-face encounter with appellant before the assault and thus would be able to unmistakably recognize him especially because at the time of the attack, Belmes was just eight (8) meters away from appellant and conditions of visibility were very good at the time of the incident as it was only around 4:00 in the afternoon. Jurisprudence recognizes that it is the most natural reaction of victims of violence to strive to see the appearance of the perpetrators of the crime and to observe the manner in which the crime was committed.[12] Belmes testimony was corroborated by that of Vidal Agbulos who was also with the group when the robbery and shooting took place. Again, we quote from the transcripts of stenographic notes:

Vidal Agbulos on direct examination FISCAL FLORES: Q. A. Q. A. What did you do next when Felipe Abad informed you again that your son was already killed and Eddie Quindasan was injured? Even if he told me about that I just went ahead. What happened next when he told you that? When I went ahead I saw Juan Cabbab took the wallet from my son.

COURT: Q. A. At that time, Winner Agbulos was already prostrate on the ground? Yes, sir, my son was lying on the ground facing down. [13]

Clearly, then, Vidal Agbulos positively identified appellant as the person who robbed his son, Winner, of his winnings. Just like Belmes, Agbulos could also not have been mistaken as to appellants identity considering that it was appellant who personally approached Agbulos group and invited them to play poker just a few hours prior to the commission of the crime. Further, Agbulos testified that he was familiar with appellant as he would often see him in a cockpit in San Isidro, Abra. To be sure, the trial court which had the unique opportunity to observe at first hand the demeanor of witnesses Belmes and Agbulos and asses whether they are telling the truth or not, gave full faith and credence to their testimonies. Finding no facts and circumstances of weight and substance that would otherwise warrant a different conclusion, the Court accords the highest respect to the trial courts evaluation of the credibility of these witnesses. Appellant likewise capitalizes on the results of the paraffin test showing that both his hands yielded no trace of gunpowder residue. Unfortunately for appellant, the results of the paraffin test would not exculpate him. The negative findings of said test do not conclusively show that a person did not discharge a firearm at the time the crime was committed. This Court has observed that it is quite possible for a person to discharge a firearm and yet exhibit no trace of nitrates: when, e.g., the assailant fired the weapon while wearing gloves or where the assailant thoroughly washes his hands thereafter. [14] As George de Lara of the NBI stated in his testimony before the trial court, if a person applies cosmetics on his hands before the cast is taken, gunpowder residue would not be found in that persons hands. He also testified that certain factors could contribute to the negative result of a paraffin test such as perspiration, humidity or the type of firearm used. In fine, a finding that the paraffin test on the person of the appellant yielded negative results is not conclusive evidence to show that he indeed had not fired a gun. Too, appellant has not shown any evidence of improper motive on the part of prosecution witnesses Belmes and Agbulos that would have driven them to falsely testify against him. In fact, appellant himself declared that he did not know of any reason why Belmes and Agbulos would implicate him in the crime. Where there is nothing to show that the witnesses for the prosecution were actuated by improper motive, their positive and categorical declarations on the witness stand under the solemnity of an oath deserve full faith and credence. [15] Interjected as a defense is alibi, appellant claiming that he went to Palao, Baddek, Bangued, Abra to visit his friends in the morning of April 22, 1988 and returned home only at around 5:30 p.m. For alibi to prosper, however, the hornbook rule requires a showing that the accused was at another place at the time of the perpetration of the offense and that it was physically impossible for him to be at the scene of the crime at the time of its commission. [16] Where there is even the least chance for the accused to be present at the crime scene, the defense of alibi will not hold water. [17]

Here, the evidence shows that Palao, Baddek, Bangued, Abra where appellant allegedly visited his friends was only 30 minutes drive from Barangay Kimmalasag,San Isidro, Abra where the crime was committed. In short, appellant failed to establish by clear and convincing evidence the physical impossibility of his presence at the scene of the crime on the date and time of its commission. The weakness of appellants alibi is heavily underscored by the fact that appellant was positively identified by witnesses Belmes and Agbulos who were with the victims at the time of the incident. For sure, appellants positive identification as the perpetrator of the crime renders his defense of alibi unworthy of credit.[18] The crime committed by appellant was correctly characterized by the appellate court as Robbery with Homicide under Article 294, paragraph 1 of the Revised Penal Code (RPC) which reads: Art. 294. Robbery with violence against or intimidation of persons Penalties . Any person guilty of robbery with the use of violence against any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson. To warrant conviction for the crime of Robbery with Homicide, the prosecution is burdened to prove the confluence of the following elements: (1) (2) (3) (4) the taking of personal property is committed with violence or intimidation against persons; the property taken belongs to another; the taking is characterized by intent to gain or animo lucrandi; and by reason of the robbery or on the occasion thereof, homicide is committed. [19]

In Robbery with Homicide, so long as the intention of the felon is to rob, the killing may occur before, during or after the robbery. It is immaterial that death would supervene by mere accident, or that the victim of homicide is other than the victim of robbery, or that two or more persons are killed. Once a homicide is committed by reason or on the occasion of the robbery, the felony committed is the special complex crime of Robbery with Homicide. [20] Here, the prosecution adduced proof beyond reasonable doubt that appellant, having lost to Winner Agbulos in the game of poker, intended to divest Agbulos of his winnings amounting to P20,000.00. In pursuit of his plan to rob Agbulos of his winnings, appellant shot and killed him as well as his companion, Eddie Quindasan. The prescribed penalty for Robbery with Homicide under Article 294 of the RPC, as amended by R.A. No. 7659 (Death Penalty Law), is reclusion perpetua to death. In the application of a penalty composed of two indivisible penalties, like that for Robbery with Homicide, Article 63 of the RPC provides that when in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied. In this case, the aggravating circumstance of treachery attended the commission of the crime, as appellants attack on the victims who were then unsuspectingly walking on their way home was sudden and done without any provocation, thus giving them no real chance to defend themselves.

However, considering that the crime was committed in 1988 or prior to the effectivity of R.A. No. 7659, [21] the trial court and the CA correctly imposed upon appellant the lesser penalty of reclusion perpetua. The Court feels, however, that the two courts below erred in convicting appellant of the separate crime of attempted murder for the shooting of PO William Belmes. Attempted homicide or attempted murder committed during or on the occasion of the robbery, as in this case, is absorbed in the crime of Robbery with Homicide which is a special complex crime that remains fundamentally the same regardless of the number of homicides or injuries committed in connection with the robbery.[22] We now come to the award of damages. Conformably with existing jurisprudence, the heirs of Winner Agbulos and Eddie Quindasan are each entitled to civil indemnity in the amount of P50,000.00,[23]to moral damages in the amount of P50,000.00,[24] and to exemplary damages in the sum of P25,000.00.[25] With respect to actual damages, Winners father, Vidal Agbulos, testified that he spent a total of P50,000.00 as burial expenses but he failed to present receipts therefor. In People v. Abrazaldo,[26] we laid down the doctrine that where the amount of actual damages for funeral expenses cannot be determined because of the absence of receipts to prove them, temperate damages may be awarded in the amount of P25,000.00. Thus, in lieu of actual damages, temperate damages in the amount of P25,000.00 must be awarded to the heirs of Winner because although the exact amount was not proved with certainty, it was reasonable to expect that they incurred expenses for the coffin and burial of the victim. We, however, cannot grant the same to the heirs of Eddie Quindasan for their failure to testify on the matter. Finally, appellant is obliged to return to the heirs of Winner Agbulos the amount of P20,000.00 he had taken from Winner. WHEREFORE, the decision dated February 22, 2006 of the CA in CA-G.R. CR-H.C. No. 00968 is hereby AFFIRMED with the followingMODIFICATIONS: 1. Appellant Juan Cabbab, Jr. is found GUILTY beyond reasonable doubt of Robbery with Homicide and sentenced to suffer the penalty of reclusion perpetua. 2. Appellant is hereby ordered to return to the heirs of Winner Agbulos the amount of P20,000.00 representing the amount stolen from him. He is likewise ordered to indemnify the heirs of Winner Agbulos the following: (a) P50,000.00 as civil indemnity; (b) P50,000.00 as moral damages, (c) P25,000.00 as exemplary damages; and (c) P25,000.00 as temperate damages. 3. Appellant is further ordered to pay the heirs of Eddie Quindasan P50,000.00 as civil indemnity, another P50,000.00 as moral damages, and P25,000.00 as exemplary damages. 4. For reasons herein stated, appellant is ACQUITTED of the separate crime of attempted murder against the person of PO William Belmes. Costs de oficio. SO ORDERED.

G.R. No. 86453 December 5, 1991

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LAWRENCE PONCIANO y SABOLAN, defendant-appellant. The solicitor General for plaintiff-appellee. Public Attorney's Office for defendant-appellant.

GUTIERREZ, JR., J.:p This is an appeal from the decision of the Regional Trial Court, Branch 171, Valenzuela, Metro Manila, the dispositive portion of which reads: WHEREFORE, the Court finds the guilt beyond reasonable doubt, accused Lawrence Ponciano y Sabolan is hereby sentenced to suffer the penalty of RECLUSION PERPETUA on Three (3) counts and to pay the costs. The accused is hereby ordered to pay the legal heirs of Ricardo Rivera and Alicia Rivera the sum of P13,230,00 and the legal heirs of Regina Villanueva the amount of P10,000.00 representing the expenses for the funeral, burial and wake and to indemnify the legal heirs of Ricardo Rivera, Alicia Rivera and Regina Villanueva, the sum of Thirty Thousand Pesos (P30,000.00) for each (People v. dela Fuente, G.R. No. 63251-52, Dec. 29, 1983). The stolen articles/items having been recovered, their return to the lawful owner is hereby ordered. (Rollo, p. 30) The information filed against the appellant states: That on or about the 29th day of July, 1986, in the municipality of Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there wilfully, unlawfully and feloniously, with intent of gain and by means of force and violence and while armed with a bladed instrument, take, rob and carry away with him the following: one (1) Sony Betamax with remote control worth 1,600.00 (Saudi Rials), one (1) transformer worth 300 (Saudi Rials), one (1) Rewinder worth 150.00 (Saudi Rials) all belonging to Alejandro Rivera, herein represented by Rowena Fernandez and two (2) wrist watch worth 400.00 (Saudi Rials) belonging to Ricardo Rivera and Alicia Rivera, to the damage and prejudice of its owners in the total amounts of Saudi Rials 2,050.00 and Saudi Rials 400.00 or their equivalent in Philippine pesos; That during the commission of the crime of robbery and/or by reason/on occasion thereof, the above-named accused did then and there wilfully, unlawfully and feloniously stab and assault Regina Villanueva, Ricardo Rivera and Alicia Rivera with the bladed weapon he was provided inflicting on them physical injuries which directly resulted in their death. (Records,pp. 1-2) The prosecution evidence upon which the trial court based its finding of guilt beyond reasonable doubt is as follows: Eulogio Sanchez, 25 years old, single, jobless and residing at Balangcas,Valenzuela, Metro Manila, substantially testified that in the evening of July 29, 1986, he and the accused were in the house of Carding Rivera (deceased Ricardo Rivera) located at Balangcas, Valenzuela, Metro Manila, drinking beer; that he felt (sic) asleep and when someone woke him up, he saw Lotlot on the floor near his feet wounded and asking him to help bring her to the hospital; that he tried to lift her but he cannot carry her because he was heavily drunk; that he asked the help of one Zosimo Mendiola; that he called for police assistance at the Polo sub-station; that due to his drunkenness he could not go with the police to the scene of the incident so he went home and slept; that

he do (sic) not know Lotlot (Alicia Rivera) was wounded; that it was only Lotlot that he saw wounded; that when he woke up, he saw the accused standing in the kitchen holding a knife; that the person depicted in Exhibit B is Rading (Ricardo) Rivera; that Rading was killed that same evening; that he did not see the actual killing; that he felt asleep in the sala, that Rolando Silvestre, the accused and Rading (Ricardo) Rivera were drinking when he fell asleep; that the wounded girl Lotlot woke him up and asked him for help; that he cannot lift her so he called Zosing Mendiola; that the person depicted on Exhibit F is Rolando Silvestre one of the persons with whom they had drinking session; that they partook a long neck bottle of White Castle Whisky and a Tanduay. On cross-examination, he said he fell asleep between 11:00 and 12:00 o'clock midnight; that before he fell asleep, Rolando Silvestre, the accused and Rading Rivera were viewing a Betamax film and were talking to each other; that he did not notice any heated discussion between them. On additional direct, he identified his written statement given before the police investigator; he likewise Identified the knife he mentioned during the police investigation. On recross-examination, he said that it was the same knife the accused was holding when he saw him in the kitchen. Rowena Fernandez-Rivera substantially testified that she was residing at Balangcas, Valenzuela, Metro Manila, together with her late husband Ricardo Rivera, his niece Alicia and her mother-in-law Brigida Rivera; that in the evening of July 29, 1986, the accused together with her husband, Eulogio Sanchez, and Orlando Silvestre were having a drinking session in their house; that Alicia entered their room and asked her why was it that my husband Ricardo was already lying down; that she answered Alicia that he might be very drunk; that she and Alicia went downstairs to advise the accused and companions to go home; that the accused do (sic) not want to leave so they forced him to go home; that the accused took out a bladed instrument, approached her and Alicia and brandished the weapon at them; that Eulogio Sanchez was then sitting at the main door and Orlando Silvestre was standing by the window looking outside; that the accused lunged at Alicia; that she ran and went to her mother-in-law's room and kept herself inside the room; that she heard Alicia was asking for help; that she did not come out of the room; that he heard a voice coming from the room where her husband was saying `Pare'; that he heard moaning sound from the room; that she came out the room when the policemen arrived; that the policemen presented to her the accused; that when she went downstairs, she noticed that their things inside the house were not in proper places; that her husband was sprawled on the bed with a piece of wood on one side of the body; that their Sony Betamax set, the transformer, the rewinder and the remote control were all placed on the side of a table; that the policemen told her that Alicia is already dead; that her husband was also dead; that she noticed the wristwatch of her husband was missing; that the Betamax set was on the side of a round table about 7 to 8 steps away from its original place; that the wristwatch of her husband and Alicia's watch were recovered from the Fiscal's Office in Malolos, Bulacan; that the two wristwatches were valued 400 Saudi rials, the Betamax set cost 600.00 Saudi rials and the transformer cost 300.00 Saudi rials while the rewinder is 150 Saudi rials; that she saw Alicia again when her body was brought home for vigil; that while she was inside the room of her mother-in-law, she heard shouts coming from outside; that after one hour stay inside the room, policemen came and knocked; that when the person knocking on the door Identified himself as policeman, she opened the door; that there were three policemen, one of them was Pat. Orig; that the policemen informed her and and her mother-in-law that Alicia alias Lotlot, Regina and Ricardo were killed; that Regina is a friend of Alicia; that Ricardo and Alicia are uncle and niece; that they went out the room and peeped inside her and her husband's room; that she saw her husband lying and bloodied; that she saw Regina lying on the sala also spattered with blood; that Rowena's photograph was taken in the emergency room of the hospital; that the person depicted lying on the cemented steps of the house is Alicia Rivera; that they were already dead; that the Betamax set, transformer, rewind and the remote control were originally placed on the sala; that she saw these items at the side of the round table after the incident; that they belong to her brother-in-law Alejandro Rivera; that the conversion of one Saudi rial is equivalent to P5.00; that her husband Ricardo was engaged in buy and sell business; that he earns P100.00 and sometimes P200.00 a day; that he gave to her all his earnings; that she felt painful experience upon his death; that her sister-in-law Amelita and her brother-in-law Alex Rivera spent for the funeral expenses of her husband; that Amelita spent for the funeral of Alicia Rivera; that her husband was 33 years old and Alicia was 19 years old when they died; that Regina was 25 years old; that she gave her written statement the following morning; that the small knife was the same knife used by the accused in poking at her and Alicia; that the accused took the knife from his left waist.

On cross-examination, she said that the accused, Eulogio Sanchez and Orlando Silvestre are friends of her husband; that she do (sic) not know whether they have (sic) misunderstanding before the incident; that they have drank a long neck bottle of White Castle and one flat bottle; that they started drinking at around 8:00 o'clock in the evening; that she was already inside their bedroom when they arrived; that her husband went up and asked her to prepare coffee for him; that when she returned to their room, her husband was already sleeping; that the accused asked her to wake her husband up but he cannot be awakened; that Alicia went upstairs; that she and Alicia went downstairs to request the accused and the two companions to leave and go home; that the accused and Eulogio Sanchez were in the sala while Orlando Silvestre was outside the house; that they were all drunk; that she ran upstairs and locked herself inside her mother-in-law's room when the accused chased her with a knife. Amelita Rivera substantially testified that Ricardo is her brother and Alicia is her niece; that Alicia is the daughter of her brother Reynaldo; that she spent for the funeral and burial of Ricardo and Alicia; that she spent P11,730,00 for the funeral, burial and wake for the two (Exhs. J, J-1, J-2, K, K-1 and K-2) for the brass name for the tombs (Exh. D) and the mass (Exh. M). Benjamin Rivera substantially testified that he is the brother of Ricardo and Alicia is his niece; that he also spent P1,000.00 for their funeral and wake. Valenzuela Pat. Ildefonso Orig, Jr. substantially testified that in the early morning of July 29, 1986, he was at Polo sub-station; that he received report of the stabbing incident at Balangcas, Valenzuela, Metro Manila, from the barangay chairman of Balangcas; that they responded and went to the place of the incident; that they found the accused in the terrace of the house of the victim; that he asked the accused to surrender and he did; that he appeared to be high on drugs or highly intoxicated; that he was holding a stainless kitchen knife before he surrendered; that they found the victim Ricardo Rivera lying on the bed bloodied; that there (sic) stab wounds on his body; that they found the two other victims at the back of the house, one was already dead while the other (Dina) was still alive and caused her to be brought to the hospital; that Pfc. Chua frisked the accused and found in his possession two wristwatches, a lady's watch and a man's wristwatch and the push button of the Betamax machine. Orlando Silvestre substantially testified that he has been residing at Balangcas, Valenzuela, Metro Manila, since birth; that in the evening on July 29, 1986, he, Eulogio Sanchez, the accused and Carding Rivera were in the latter's house and had a drinking session; that the accused invited him to a drinking session; that he thought they will drink in the house of the accused, but they went to the house of Carding instead; that Carding was drunk and the accused accompanied him to his room; that he urinated outside the house; that after he had urinated, the accused called him and showed him the room of Carding and said, "Look, he (Carding) is already dead"; that when he looked inside the room he saw that Carding was already dead; that the accused was holding a knife stained with blood; that on his way out he saw Lotlot and noticed her to have stab wounds; that Lotlot suddenly fell down; that he tried to lift her but the accused admonished him not to touch her or else he will attack him; that he ran away; that the accused had bloodstains on the upper portion of his pants; that he proceeded to the house of barangay chairman of the place but he was out; that he went to the house of one Sosing; that he fetched the police mobile patrol and he went with the mobile patrol to the scene of the incident; that upon reaching the place, they saw the accused outside the house holding a knife. On cross-examination, he testified that they started drinking between 11:00 and 12:00 midnight; that he do (sic) not know if there was misundertanding between Carding (Ricardo) Rivera and the accused; that the accused accompanied Carding to the room before 12:00 midnight; that the accused called him upstairs and showed him the lifeless body of Carding. Susana Torres-Villanueva substantially testified that victim Regina Villanueva is her daughter; that she died on July 29, 1986; that in the early morning of July 30, 1986 a policeman came and informed her of her daughter's death; that they went to the place of incident at Balangcas, Valenzuela, Metro Manila, but her daughter was already in the hospital; that they went to Polo Emergency Hospital but was told that Regina was in the morgue; that they went to the municipal building and saw the accused; that they proceeded to the Funeraria Popular; that her daughter was buried on August 3, 1986 at the San Bartolome Parish cemetery at Malabon, Metro Manila; that she spent the sum of P10,000.00 for the wake and funeral of Regina; that she paid P1,500.00 for embalming, P3,800.00 for the coffin (Exh. O), P1,200.00 for the niche, P700.00 for the washout of the niche, P250.00 for the band, P2,398.00 for four

days wake; that she paid P300.00 to the San Bartolome Parish Church (Exh. P); that she prepared the list of expenses (Exh. Q); that she had heart breaking experience because of the loss of a daughter; that Regina is single and is 25 years old at the time of her death; that Regina is not working; that she was just living with her married sister and helping the latter in the household chores. On cross-examination, she said that she learned of her daughter's death from the police officer named Willy; that she was informed that the accused killed her daughter. Dr. Rodolfo Lezondra, NBI medico-legal officer, substantially testified that he conducted autopsy on the cadavers of Alicia Rivera, Regina Villanueva and Ricardo Rivera on July 30, 1986 at Funeraria Popular; that he prepared the autopsy reports on the post-mortem examination on the cadaver of Alicia Rivera (Exhs. R, R-1 to R-4), the post-mortem examination on the cadaver of Regina Villanueva (Exhs. T, T-1 to T-2), the post-mortem examination on the cadaver of Ricardo Rivera (Exhs. V, V-1 to V-5), and the sketches of the human body showing the location of the injuries, sketch of the human body re: Alicia Rivera (Exhs. S and S-1),sketch of the human body re: Regina Villanueva (Exhs. U and U-1), sketch of the human body for the examination conducted on the body of Ricardo Rivera (Exhs. W and W-1); that the injuries sustained by Alicia Rivera was contused abrasion on several parts of the body, incised wound on the base of the neck and on the left forearm, five stab wounds located on the right chest, left chest, upper front portion of the left shoulder and on the abdomen; that the cause of death was hemorrhage, secondary to multiple stab wounds, chest, abdomen and left arm; that the injuries found in the body of Regina Villanueva are contused abrasion on several parts of the body, two stab wounds on the left chest and in the abdomen; that the cause of death was hemorrhage, secondary to stab wounds, chest and abdomen; that the injuries found on Ricardo Rivera's body was incised wound on the left side of the neck, right side of the neck and back portion left arm, nine stab wounds; that the victim was lying down and the assailant was standing; that the cause of death was hemorrhage, secondary to multiple stab wounds, neck, chest and abdomen; that the instrument used was a single bladed knife such as a kitchen knife. (Rollo, pp. 21-26) The appellant's defense on the other hand is as follows: Accused Lawrence Ponciano, 29 years old, single, detention prisoner and residing at Balangcas, Valenzuela, Metro Manila, substantially testified that on July 29, 1986 at around 11:30 in the evening, he, Carding (Ricardo) Rivera, Dante and Odie were in the residence of Ricardo Rivera; that they have drinking session; that they drank whisky; that after drinking for about two hours, he became drunk and was under the influence of drugs; that he do (sic) not know what happened afterwards; that before they drank liquor he took plenty of blue max or tribo thrill tablets; that he has been taking drugs prior to July 29, 1986; that he do not have misunderstanding with Ricardo Rivera nor with Regina Villanueva. On cross-examination, he said they are paying Ricardo Rivera for the liquor; that on July 29, 1986, Eulogio Sanchez paid for the drinks; that they have been in the house of Ricardo Rivera several times before July 29, 1986; that they went there in group; that he has been taking drugs about two months before the incident; that he took drugs and drank liquor at the same time before July 29, 1986; that no untoward incident happened on that occasion; that he did not feel anything wrong with him; that on July 29, 1986, they drank in the sala of the house of Ricardo Rivera; they consumed one long neck bottle and one flat bottle of liquor; that after drinking, he felt sleepy, he went out to the garage and slept; that he do not know what happened anymore; that he was awakened by the police officer that arrested him; that he noticed his pants was covered with blood; that every time he drank liquor and took the drugs, he felt drowsy and felt (sic) asleep; that on previous occasion he was able to go home; that he knows that taking drugs is illegal and bad to the health. (Rollo, pp. 26-27) The appellant raises the following assignment of errors, to wit: I

THE COURT A QUO ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH MULTIPLE HOMICIDE. II ASSUMING ARGUENDO THAT THE ACCUSED IS GUILTY AS CHARGED, THE COURT A QUO ERRED IN IMPOSING UPON HIM THE PENALTY OF RECLUSION PERPETUA ON THREE (3) COUNTS. (Appellant's Brief, p. 1) The appellant contends that the evidence presented by the prosecution is not sufficient to convict him of the crime of robbery with multiple homicide. But before we discuss the assigned errors, we would like to comment on the crime charged. He alleges that there is no evidence of the taking of the wristwatches, the Betamax machine and its accessories. In fact, the Betamax machine and its accessories were still in the house but were only moved from their usual setting. As to the wristwatches, he state that the testimony of Pat. Orig who related to the court that Pfc. Chua frisked him and found two wristwatches and the push button of the Betamax machine, is hearsay evidence as Orig had no personal knowledge of said fact as he was not the one who frisked the appellant. The appellant likewise, alleges that there is no evidence linking him to the killing as no one actually saw him kill the victims. These allegations must fail. But before we discuss the following errors, we would like to comment on the crime charged.The designation of the crime as robbery with multiple homicide is incorrect. Assuming that a complex crime was committed, it should be categorized as robbery with homicide regardless of the number of persons killed by reason or on occasion of the robbery. (People v. Maranion, G.R. No. 90672-73, July 18, 1991; People v. Nunag, G.R. No. 92570, April 22, 1991) The taking of the wristwatches and the remote control gadget of the Betamax machine has been established by the testimony of Orig. The appellant was caught red-handed in possession of the wristwatches, belonging to the victims Ricardo and Alicia Rivera, and the remote control of the Betamax machine. Such testimony of Orig is not hearsay as Orig was personally present when Pfc. Chua frisked the appellant and found the aforementioned articles in the appellant's possession. He had personal knowledge of the frisking and the items found on the appellant; therefore, his testimony cannot be categorized as hearsay evidence. Because the appellant was caught in possession of the stolen property, he is presumed to be the taker in the absence of satisfactory explanation of his possession. This is in accordance with Rule 131 Section 3 (j) of the Revised Rules on Evidence (Rule 131, Section 5 (j) of the Rules of Court) which states: That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possesses, or exercises acts of ownership over, are owned by him. In the case at bar, the appellant did not offer any explanation as to the property found on him. With regards to the killing, although it is true that there was no eyewitness to the actual killing of the victims, there are several circumstances, which when pieced together will lead to a definite conclusion that the appellant actually perpetrated the killing. These circumstances pointing clearly to the guilt of the appellant are: (1) the prosecution witnesses placed the appellant at the scene of the crime; he, himself, testified that he was there. (2) Sanchez and Orig, saw the appellant with a knife (3) Fernandez-Rivera stated that the appellant took out a bladed instrument, approached her and Alicia and brandished the weapon at them. She also saw the appellant lunge at Alicia (4) Silvestre saw Ricardo Rivera already dead, saw the appellant holding a knife stained with blood and saw that the appellant had bloodstains on the upper portion of his pants. The appellant admitted on cross examination that his pants were covered with blood. Silvestre also stated that the appellant admonished him not to touch Alicia.

Direct evidence of the appellant's participation in the actual stabbing is not necessary when circumstantial evidence sufficiently establishes that fact. (People v. Santito, Jr., G.R. No. 91628, August 22, 1991 citing People v. Roa, 167 SCRA 116, 122 [1988]) Circumstantial evidence is sufficient for conviction if (1) 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. (Rule 133, Section 4, Revised Rules on Evidence; formerly Rule 133, Section 5, Rules of Court) All the aforementioned requisites are present in the instant case. From the foregoing, the records show beyond reasonable doubt that the appellant killed the three victims and took the wristwatches and the remote control of the Betamax machine. The fact, however, are not adequate to convict the appellant of the crime of robbery with homicide. To sustain a conviction for this special complex crime, the original criminal design of the culprit must be robbery and the homicide is perpetuated with a view to the consummation of the robbery, by reason or on the occasion of the robbery (People v. Manalang, 170 SCRA 149, 162 [1989]). The intent to commit robbery must precede the taking of human life (People v. Luna, 58 SCRA 198, 208 [1974]). The records must show conclusively that the homicide was committed for the purpose of robbing the victim because a mere presumption of such fact is not sufficient to sustain a conviction for robo con homicidio. When a person is charged with robbery, the intent to rob must be proven. (See People v. Lanseta, 95 SCRA 166, 176 [1980]). In the case at bar, the requisite criminal design was not duly proven. There was no showing of the appellant's intention, determined by his acts, prior to, contemporaneous with and subsequent to the commission of the crime, to commit robbery. (See People v. Guiapar, 129 SCRA 539, 553 [1984]) The appellant's actuation do not show his intention to commit robbery. The appellant was a friend of one of the victims, Ricardo Rivera. What started as a drinking spree among friends ended in a killing spree by the appellant. The appellant himself admitted that he was drunk and under the influence of drugs. That robbery was his purpose does not appear to be a logical deduction. It is more logical to infer that the taking of the wristwatches was just an afterthought by the appellant after he had killed his three victims. To constitute robbery with homicide, there should be a direct relation, an intimate connection between the robbery and the killingwhether the latter be prior or subsequent to the former, or whether both crimes were committed at the same time. (People v. Verdad, 122 SCRA 239, 244 [1983] citing People v. Hernandez, 46 Phil. 48 [1924]). In the case at bar, the direct relation or intimate connection between the robbery and the killing was not established. We, therefore, follow the rule laid down in People v. Manalang, supra, to wit: We already had several occasions to hold that if the original design was not to commit robbery but that the idea of taking the personal property of another with intent to gain came to the mind of the offender after the homicide only as an afterthought or as a minor incident in the homicide, the criminal acts should be viewed as constituting two distinct offenses and not as a single complex crime; the crimes would be either homicide or murder, as the case may be, and theft. (People v. Atanacio, et al., No. L-11844, November 29, 1960, 110 Phil. 1032; People v. Elizaga, 86 Phil. 364 [1950]; People v. Glore, 87 Phil. 739 [1950]) Following this rule, the appellant is thus, convicted of three (3) separate crimes of homicide and another offense of theft. Notwithstanding that the information charged the appellant with robbery with multiple homicide, it is a well settled rule that when two or more offenses are charged in a single complaint or information, and the accused fails to object before trial, the Court may convict the accused of as many offenses as are charged and proved, and impose on him the penalty for each and every one of them, setting out the findings of fact and law in each case. (People v. Manalang, supra) As the allegations in the information determine what offense is charged, the appellant may be convicted of each homicide as alleged and proved and of theft as alleged and proved. Each separate homicide and the crime of theft have been proved. The aggravating circumstances of dwelling and abuse of confidence or obvious ungratefulness are appreciated in the killing of Ricardo Rivera. Ricardo Rivera was killed in his own home (See People v. Cuyo, G.R. No. 76211, April 30, 1991) by the appellant who was a guest of the deceased. (People v. Lobetania, 116 SCRA 297, 302, [1982]).

As to the circumstance of intoxication, there is no doubt that the appellant was drunk. This alternative circumstance cannot be considered mitigating as the appellant, aside from his self-serving testimony that he could not remember anything, has failed to prove that the liquor he drank impaired his mental faculties and that his drinking was not habitual or subsequent to the plan to commit the felony. (People v. Serenio, 179 SCRA 379, 383 [1989]) In fact, it should be considered as an aggravating circumstance since it was admitted by the appellant himself that he had been drinking liquor for a long time (TSN, March 2, 1988, p. 7) and he took part in at least 10 drinking sessions held in Ricardo Rivera's house (TSN, March 2, 1988, p. 5) He further stated that he tried to stop drinking liquor but he went back to his old habit. (TSN, March 2, 1988, p. 11) He was even drinking after this July 29, 1986 incident. (TSN, March 2, 1988, p. 12) Not only was the appellant drunk, but he testified that it was his habit to take prohibited drugs while drinking liquor. (TSN, March 2, 1988, p. 6) On the night in question, he admitted to have taken an estimate of 15 pieces of bluemax tablets and an undetermined amount of "exponie" tablets. (TSN, March 2, 1988, pp. 13-14) WHEREFORE, the decision appealed from is hereby MODIFIED and appellant Lawrence Ponciano y Sabolan is hereby: (1) found guilty of the separate offense of homicide for the death of Ricardo Rivera aggravated by dwelling, abuse of confidence or obvious ungratefulness, and intoxication in accordance with Article 249, in relation to Article 64 (6) of the Revised Penal Code and applying the Indeterminate Sentence Law, sentenced to an indeterminate penalty of ten (10) years and one (1) day to twenty (20) years and to indemnify the heirs of Ricardo Rivera the amount of P50,000.00; (2) found guilty of the separate offense of homicide for the death of Alicia Rivera aggravated by intoxication in accordance with Article 249, in relation to Article 64 (3) of the Revised Penal Code and applying the Indeterminate Sentence Law, sentenced to an indeterminate penalty of ten (10) years and one (1) day to twenty (20) years and to indemnify the heirs of Alicia Rivera the amount of P50,000.00 and the heirs of Alicia Rivera and Ricardo Rivera the amount of P13,230.00 representing expenses for funeral, burial and wake; (3) found guilty of the separate offense of homicide for the death of Regina Villanueva aggravated by intoxication in accordance with Article 249, in relation to Article 64 (3) of the Revised Penal Code and applying the Indeterminate Sentence Law, sentenced to an indeterminate penalty of ten (10) years and one (1) day to twenty (20) years and to indemnify the heirs of Regina Villanueva the amount of P50,000.00 as death indemnity and P10,000.00 representing expenses for funeral, burial and wake; (4) found guilty of the separate offense of theft in accordance with Article 309 (3) of the Revised Penal Code and applying the Indeterminate Sentence Law, sentenced to an indeterminate penalty of two (2) months and one (1) day to two (2) years and ten (10) months. The stolen items having been recovered, their return to the lawful owner is hereby ordered. SO ORDERED. Bidin, Davide, Jr. and Romero, JJ., concur. Fernan, C.J., is on leave.

[G.R. Nos. 135051-52. December 14, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CLARITO ARIZOBAL (at large), ERLY LIGNES and TWO (2) JOHN DOES, accusedappellants. DECISION PER CURIAM: Man in his inordinate pursuit of lucre oft equates human life with mere chattels and plunges himself into the bottomless pit of his own folly. He is thus driven to plunder and kill, crimes which are most reprehensible and ignominious as the criminal apparently leans towards material gains than to the inestimable value of human life. Clarito Arizobal and Erly Lignes come to us to assert and prove, if they must, that they are not cast of that mold. The factual backdrop: On 12 August 1994 two (2) separate Informations were filed before the Regional Trial Court of Cataingnan, Masbate, charging Clarito Arizobal, Erly Lignes, Rogelio Gemino and two (2) John Does with Robbery in Band with Homicide for robbing and slaying Laurencio Gimenez[1], Original Records.1 and his son Jimmy Gimenez.[2] After arraignment, the two (2) cases were tried jointly. However, on 14 May 1997, upon motion of accused Rogelio Gimeno, without objection from the prosecution, the two (2) Informations were dismissed as against him for lack of evidence. But the same cases remained as against accused Erly Lignes and Clarito Arizobal. Only accused Lignes appeared at the trial until its termination as Arizobal escaped from detention and had to be tried in absentia. [3] The two (2) John Does were never apprehended as they were not sufficiently identified. The prosecution presented, among others, Clementina Gimenez, wife of victim Laurencio Gimenez. She testified that on 24 March 1994 she together with her husband Laurencio Gimenez and a grandchild were sound asleep in their house in Tuybo, Cataingan, Masbate. At around 9:30 in the evening, Laurencio roused her from sleep and told her to open the door because there were persons outside the house. Since it was pitch-dark she lit a kerosene lamp and stood up to open the door. She was suddenly confronted by three (3) armed men pointing their guns at her. She recognized two (2) of them as Clarito Arizobal and Erly Lignes but failed to recognize the third person who was wearing a maskara. She readily identified Clarito because she used to pass by his house in San Rafael while Erly was also a familiar face as he was a regular habitue of the flea market. According to Clementina, Clarito asked her husband, "Tay, where is your gun." But she promptly interjected, "We have no gun, not even a bolo. If you want, you can look around for it." [4] While the man in maskara stood guard at the door, Clarito and Lignes barged into the master's bedroom and forcibly opened the aparador. The terrified couple could not raise a finger in protest but had to leave their fate to the whims of their assailants. The intruders ransacked their cabinet and scattered everything on the floor until they found P8,000.00 among sheets of paper. Before leaving with their loot they ordered Laurencio to go with them to Jimmy's house because "we have something to talk about." [5] Against his will, Laurencio went with them. Clementina recalled that shortly after the group left she heard a volley of shots. Her grandchild, as if sensing what befell her grandfather, could only mutter in fear, "Lolo is already dead!" Erlinda Gimenez, wife of Jimmy Gimenez, narrated that on 24 March 1994, after she and her son had taken supper, her husband Jimmy with one Francisco Gimenez arrived. Jimmy informed Erlinda that they had already bought a carabao. After he handed her the certificate of large cattle, and while he was in the process of skinning a chicken for their supper, three (3) men suddenly appeared and ordered them to lie face down. One of them pushed her to the ground while the others tied Francisco and Jimmy as they whipped the latter with an armalite rifle. She noticed one of them wearing a mask, another a hat, and still another, a bonnet.[6] Realizing the utter helplessness of their victims, the robbers took the liberty of consuming the food and cigarettes Erlinda was selling in her sarisari store. Finding no softdrinks to complete their snack, two (2) of the intruders ordered Erlinda to buy coke for them at the neighboring store. But they warned her not to make any noise, much less alert the vendor. When they returned to the house of Jimmy, the robbers proceeded to ransack the household in search for valuables. They took around P1,000.00 from her sari-sari store and told them to produce P100,000.00 in exchange for Jimmy's life. Since the couple could not produce such a big amount in so short a time, Erlinda offered to give their certificate of large cattle. The culprits however would not fall for the ruse and threw the document back to her. Three (3) masked men then dragged Jimmy outside the house and together with Laurencio

brought them some fifty (50) meters away while leaving behind Clarito Arizobal and Erly Lignes to guard Francisco and Erlinda's son. Moments later she heard a burst of gunfire which reverberated through the stillness of the night. When the masked men returned to Jimmy's house, one of them informed Erlinda that her husband and father-in-law had been killed for trying to escape. Upon hearing this, Erlinda, as if the heavens had fallen on her, slowly lost consciousness. The post-mortem examination report prepared by Dr. Allen Ching showed that Jimmy Gimenez sustained injuries: (a) a gunshot wound located at the victim's zygomatic area (right side near the ear) which may have caused brain hemorrhage; (b) a non-serious gunshot wound at the upper back right side (armpit area); (c) a wound located at the middle side of the trunk - considered as exit of wound No. 2; (d) gunshot wound at the right forearm; and, (e) a wound considered as a complication of the trajectory point of wound No. 4 that caused the fracturing of a bone and exited as lacerated bone at the posterior.[7] The medico-legal examination conducted on Laurencio Gimenez also showed: (a) a chest wound penetrating the pericardium; (b) gunshot wound at the right thigh exiting at the lumbar area, back; (c) gunshot wound at the left thigh below the knee; and, (d) cause of death was respiratory arrest secondary to gunshot wounds.[8] Erly Lignes who testified in his defense explained that on 24 March 1994 at around 9:30 in the evening he was at the house of a neighbor, one Noli Hermosa, attending a house blessing in San Pedro, Cataingan, Masbate. He helped as cook and food server. The occasion was attended by around twenty (20) well-wishers who feasted on fried chicken and tuba. In fact, two (2) of his friends, Andres Lapay and Alberto Senelong, were among the group of drinkers. The celebration finally ended at 1:00 o'clock in the morning. Early that morning he went home, which was only about a hundred meters away.
[9]

Erly Lignes also presented Andres Lapay who confirmed his defense of alibi. Andres recounted that at 9:30 in the evening of 24 March 1994 he was at the house of Noli Hermosa for the latter's house blessing. There he saw Erly in the kitchen preparing food and drinks for the visitors. He also attended to Andres' group whenever they needed additional food and tuba. According to witness Andres, he was certain that from the time of his arrival at 7:00 o'clock in the evening to 11:00 o'clock Erly never went out of the house of Hermosa. When asked whether he knew where Tuybo was, Andres answered in the affirmative. He also clarified that it would take a person about one and a-half (1-) hours by foot and about one hour (1) by horseback to travel from San Pedro to Tuybo. On 30 March 1994 Erly Lignes was arrested in the house of Noli Hermosa and then detained at the Cataingan Municipal Jail. Erlinda Gimenez, accompanied by three (3) policemen, later went to the municipal jail and pointed to Clarito Arizobal as one of the suspects in the robbing and killing of Laurencio and Jimmy Gimenez. Erly insisted that he was not implicated by Erlinda as a suspect in the crime. But the trial court gave full credence to the testimony of the prosecution witnesses and rejected the alibi of accused-appellant Erly Lignes. On 7 July 1998 the court found both accused Clarito Arizobal and Erly Lignes guilty of robbery with homicide, sentenced them to suffer the supreme penalty of Death and to indemnify the legal heirs of Laurencio Gimenez P50,000.00 for his death and P20,000.00 for moral damages, and the legal heirs of Jimmy Gimenez P50,000.00 also for his death and P20,000.00 for moral damages, plus P30,000.00 for exemplary damages.[10] Their cases are now before us on automatic review in view of the penalty imposed. As the lower court explained x x x x There is direct relation and intimate connection between the robbery and the killing. The accused were positively identified as perpetrators of the crime by witnesses Clementina Gimenez and Erlinda Gimenez who have no motive to falsely testify x x x x Inasmuch as no improper motive have (sic) been ascribed to prosecution witnesses and no shadow of evidence appears on record to blacken their credibility, their testimony is worthy of full faith and credit x x x x[11]

Going to the denial and alibi interposed by accused Erly Lignes that he was at San Pedro, Cataingnan, Masbate, helping as cook and food server of his neighbor Noli Hermosa during a house blessing at the time of the robbing and killing and his belief that he was not identified (Exh. "2") by witnesses (especially Erlinda Gimenez), and that he did not know Clarito Arizobal, the same cannot be given any credence in the face of the testimony of Clementina Gimenez and Erlinda Gimenez positively identifying him (Erly Lignes) and his co-accused Clarito Arizobal as the culprits x x x x The place of the crime is only about six kilometers and more or less one and a half hour travel by foot from the place where the accused Erly Lignes was at the time of the commission of the crime. The robbery with killing was aggravated: 1) By a band because the malefactors were more than three armed robbers acting together; 2) With treachery because the robbers tied the hand of the victims before killing them; 3) By nighttime (nocturnity) because the accused took advantage of the night; and, 4) By dwelling because the robbery is (sic) committed with violence against or intimidation of persons x x x and the commission of the crime begun in the dwelling x x x x[12] Accused-appellant Erly Lignes attempted to discredit the testimonies of the prosecution witnesses by underscoring their alleged inconsistent, conflicting and incredible statements. He pointed out that: (a) Clementina testified on direct examination that she saw Erly Lignes in the flea market four (4) times, but on cross-examination she averred that she saw the accused at the flea market in only three (3) occasions; (b) she stated that three (3) persons entered their house and recognized Arizobal and Lignes because they lighted a kerosene lamp and that she did not recognize the third person because he was wearing a mask thus implying that Arizobal and Lignes were not wearing masks, in utter disregard of the risk of being identified; (c) she failed to witness the actual killing when she stated in her testimony that she came to know of it only the following morning after she was informed by a neighbor thus implying that accused-appellant Erly Lignes was not positively identified as the killer of the two (2) victims; and, (d) Erlinda Gimenez stated that three (3) robbers were not wearing masks while two (2) were wearing masks but later contradicted herself when she stated that three (3) of the masked robbers executed her husband and father-in-law. [13] In essence, the issues raised are factual and involve the credibility of the witnesses. It is doctrinally settled that in the absence of any showing that the trial court's calibration of factual issues, particularly on the matter of credibility, is flawed this Court is bound by its assessment. The rationale is the presumption that the trial court is in a better position to decide the question, having heard the witnesses and observed their deportment and manner of testifying during the trial.[14] We find no plausible reason to deviate therefrom. Admittedly, the prosecution witnesses did not give a consistent account of the whole gut-wrenching episode, particularly on the matter of the number of times Clementina allegedly saw the accused-appellant at the flea market; the exact number of masked robbers and other minor details. These lapses however are not so serious as to warrant the reversal of the verdict of conviction of accused-appellant and his co-accused who, as the record shows, were categorically identified as two (2) of the perpetrators of the crime. Accused-appellant Erly Lignes asserts that the failure of Clementina Gimenez to actually witness the killing of her son and her husband is adequate proof that she failed to identify him as the killer. We do not agree. Accused-appellant seems to have overlooked the significance of conspiracy, as a rule for collective criminal liability, where 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 unmistakably to indicate a common purpose or design in bringing about the death of the victim.[15] The fact that accused-appellant conspired in the commission of the crime charged was sufficiently and convincingly shown by his active participation in ransacking the belongings of the two (2) Gimenez families, tying and holding Francisco and Erlinda's son immobile while the others led the two (2) hapless victims to the threshold of their obliteration. Alibi, as it has been repeatedly held, is one of the weakest defenses as it is easy to concoct although difficult to prove. In the face of positive identification by credible prosecution witnesses, accused-appellant's defense of alibi must necessarily crumble. For alibi to be believed, credible and tangible proof of physical impossibility for the accused to be at the scene of the crime is indispensable. [16] The trial court is correct in appreciating dwelling as an aggravating circumstance. Generally, dwelling is considered inherent in the crimes which can only be committed in the abode of the victim, such as trespass to dwelling and robbery in an inhabited place. However, in robbery with homicide the

authors thereof can commit the heinous crime without transgressing the sanctity of the victim's domicile. [17] In the case at bar, the robbers demonstrated an impudent disregard of the inviolability of the victims' abode when they forced their way in, looted their houses, intimidated and coerced their inhabitants into submission, disabled Laurencio and Jimmy by tying their hands before dragging them out of the house to be killed. But treachery was incorrectly considered by the trial court. The accused stand charged with, tried and convicted of robbery with homicide. This special complex crime is primarily classified in this jurisdiction as a crime against property, and not against persons, homicide being merely an incident of robbery with the latter being the main purpose and object of the criminals. As such, treachery cannot be validly appreciated as an aggravating circumstance under Art. 14 of The Revised Penal Code. [18] This is completely a reversal of the previous jurisprudence on the matter decided in a litany of cases before People v. Bariquit.[19] While it appears that at least five (5) malefactors took part in the commission of the crime, the evidence on record does not disclose that "more than three" persons were armed, and robbery in "band" means "more than three armed malefactors united in the commission of robbery." Nowhere in the records can we gather that more than three (3) of the robbers were armed. Hence, "band" cannnot be aggravating where no proof is adduced that at least four (4) of the five (5) perpetrators involved in this case were armed. In this regard, we are quoting pertinent portions of Clementina Gimenez's testimony Q: While you were in your house do you still remember of any unusual incident that happened? A: Yes, sir. Q: What was that incident about? A: Armed persons entered our house. Q: How many? A: Three (3). Q: You said that these 3 persons were armed, will you tell this Honorable Court the kind of weapon or arms they were bringing with them at that time? A: One person carrying a long firearm. Q: How about the other two? A: One person standing at the door carrying a long firearm and the two went upstairs. Q: Were they carrying weapons? A: They have (sic) both of them were carrying short firearms. [20] On cross examination she further clarified Q: Where were you when you saw that the two accused Clarito Arizobal and Erly Lignes got the money? A: At the sala. Q: When they ransacked your aparador you did not object? A: They let us sit and warned us not to move. Q: But you have not seen them armed with any firearm, is that correct? A: They have.

Q: Who were armed with firearms? A: Clarito Arizobal and Erly Lignes. Q: What kind of firearm? A: Short arm. Q: And where was the third person who was wearing mask at the time these two accused Erly Lignes and Clarito Arizobal ransacked your aparador and got the money? A: At the door of our house. Q: What was he doing? A: On guard. Q: Was he armed? A: Bringing a long gun, masked.[21] For her part, Erlinda Gimenez testified Q: Did you see who killed your husband? A: My husband was brought towards a distance about 50 meters because it could be seen from where I was and then I heard a burst of firearm thereafter the one who brought him told me that he ran so that they have (sic) to kill him. Q: Who told you? A: The one wearing mask. Q: Where were accused Clarito Arizobal and Erly Lignes at that time? A: The two (2) took guard on Boboy Gimenez (referring to Francisco) and my son. Q: Were they armed? A: Yes sir, short gun, sir. Q: When your husband was brought by three of these five (5) persons, your son and Francisco Gimenez were left behind? A: Yes sir, because they were tied.[22] We likewise hold that the aggravating circumstance of nighttime did not attend the commission of the crime. The fact that the offense was committed at 9:30 in the evening does not suffice to sustain nocturnidad for, by itself, nighttime is not an aggavating circumstance. [23] To be properly so considered, it must be shown that nocturnidad was deliberately and intentionally sought by accused-appellants to help them realize their evil intentions. [24] Nowhere can we infer from the records that the malefactors sought the cover of darkness to facilitate the accomplishment of their devious design. On the contrary, the locus criminis was well lighted and nighttime was merely an incidental element to the whole drama. First. The houses of the victims were adequately lighted by kerosene lamps when the robbers entered and went about their looting spree. In People v. Pallarco[25] this Court clarified this modifying circumstance thus -

Nor can the aggravating circumstance of nighttime be appreciated, for the prosecution failed to demonstrate (a) that the malefactor particularly sought or took advantage of the darkness to commit the offense, or (b) that nighttime facilitated the commission of the crime. In any event, the prosecution presented no evidence to establish the fact thatnocturnidad attended the killing. Nighttime cannot be considered if it is shown that the place was adequately lighted. In this case, it was established that the place was sufficiently illuminated by a kerosene lamp. Second. The robbers, particularly referring to accused-appellant and his co-accused, lingered in the locus criminis and even conversed with their intended victims for an appreciable period of time inside the well-lit houses. As Erlinda Gimenez testified, the place where the victims were gunned down was adequately illuminated by the moonlight, although for undisclosed reasons she did not see the actual shooting. [26] All these taken together belie the assumption that the culprits took advantage of the intrinsic impunity afforded by the cover of darkness and made the same as an ally to accomplish their nefarious plan. Nocturnity lures those who crave for blood to yield to their baser impulses with the false courage borne out of the belief that their identity would not be brought in the open. We do not discern any such intention in this case. We also note with approval the view of the trial court that the offenders did not commit two (2) separate counts of robbery with homicide but only a delito continuado, as the ransacking of the two (2) houses and the killing of the victims were not entirely disconnected and distinct acts of depredation. They arose from a single criminal impulse and intent, "there being unity of purpose and of right violated." [27] As to actual damages, it was proved that the robbers took the amount of P8,000.00 from the family of the deceased Laurencio Gimenez and P1,000.00 from that of Jimmy Gimenez. Their legal heirs must therefore be indemnified for these losses. However, the award of the trial court of P20,00.00 for moral damages and P30,000.00 for exemplary damages must be modified to P50,000.00 and P20,000.00 for moral damages and exemplary damages, respectively for the legal heirs of each victim. The trial court correctly found accused-appellant and his co-accused Clarito Arizobal guilty of the crime of robbery with homicide as defined in Art. 294, par. (1), of The Revised Penal Code. The prosecution has established beyond any scintilla of doubt through the prosecution witnesses that Erly Lignes in conspiracy with Clarito Arizobal and three (3) other unidentified persons used violence and intimidation against the members of the two (2) Gimenez families in carrying out the robbery and on the occasion thereof killed Laurencio and Jimmy Gimenez. The special complex crime of robbery with homicide carries with it the penalty of reclusion perpetua to death. In conformity with Art. 63, par. (1), of The Revised Penal Code,when the crime is attended by an aggravating circumstance with no circumstance mitigating it, the higher penalty shall be imposed. Four (4) members of the Court are steadfast in their adherence to the view that RA 7659 is unconstitutional insofar as it prescribes the death penalty. However, they bow to the majority opinion that the aforesaid law is constitutional and, therefore, the penalty prescribed thereunder has to be imposed. WHEREFORE, the Decision of the Regional Trial Court of Cataingan, Masbate, finding accused-appellant ERLY LIGNES and accused CLARITO ARIZOBAL GUILTY of Robbery with Homicide and imposing upon both of them the penalty of DEATH, is AFFIRMED with the MODIFICATION that accused-appellant ERLY LIGNES and his co-accused CLARITO ARIZOBAL (who is still at large) are ordered in addition: (a) to pay jointly and solidarily the legal heirs of Laurencio Gimenez and Jimmy Gimenez P50,000.00 for civil indemnity, another P50,000.00 for moral damages, and P20,000.00 for exemplary damages, for each set of heirs; and, (b) to pay jointly and solidarily the legal heirs of Laurencio Gimenez P8,000.00 and those of Jimmy Gimenez P1,000.00 representing their respective actual damages. In accordance with Sec. 25 of RA 7659 amending Art. 83 of The Revised Penal Code, upon the finality of this Decision, let the records of the case be forwarded to His Excellency, the President of the Philippines, for the possible exercise of his pardoning power. Costs against both accused. SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, YnaresSantiago and De Leon, Jr., JJ.,concur.

G.R. No. 132470 April 27, 2000 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERNANDO SULTAN y LATO, accused-appellant.

BELLOSILLO, J.: FERNANDO SULTAN y LATO appeals from the Decision of the trial court finding him guilty of the special complex crime of robbery with rape, sentencing him to reclusion perpetua and ordering him to return to his victim one (1) wrist watch, one (1) ring, one (1) pair of earrings, and one (1) necklace valued at P1,600.00, P850.00, P500.00, and P2,100.00, respectively, and cash of P130.00; otherwise, to pay P5,180,00 if restitution be no longer feasible. He was further ordered to pay P50,000.00 for moral damages. 1 The evidence for the prosecution was based principally on the testimony of complaining witness Juditha M. Bautista. According to her, on 2 June 1997 at 9:00 o'clock in the evening she was on her way home from a visit to her cousin Cristina Mansilongan in Novaliches, Quezon City; when she passed the dark alley in her cousin's compound she was accosted by someone, later identified as accused-appellant Fernando L. Sultan, who pointed a sharp instrument at her neck and announcing it was a "hold-up." He grabbed her and brought her to a house along the alley which turned out to be his. Once inside the house, he made her sit down. He offered her a drink; she refused it. Then he started divesting her of her watch, ring, earrings, and necklace the values of which are now reflected in the Decision of the court a quo, and her cash of P130.00. After taking her valuables, he started kissing her on the lips and cheeks. As if to discourage him from making further sexual advances, she told him that she was married with two (2) children but accused-appellant was not dissuaded from pursuing his intentions. While pointing an ice pick at her he ordered her to undress. She acceded for fear that he would kill her as she was under constant threat. After she had completely undressed, accused-appellant ordered her to lie down on the floor. He then kissed her again from head down. Still she could not resist him because of fear. He went on top of her, held her two (2) hands on the level of her head, spread her thighs and inserted his penis into her vagina. The coital encounter lasted for ten (10) to fifteen (15) minutes. 2 After satisfying his lust, he ordered her to put on her bra and panty, tied her hands and went out of the room to smoke. After ten (10) to fifteen (15) minutes, he came back, untied her, and once again with threat and intimidation sexually abused her. Thereafter, he tied her hands to a protruding piece of wood in the room and held her in his arms. She cried. He told her that he loved her and that he would answer for what he had done to her. They talked until noon the following day without sleeping. 3 In her effort to release herself from his clutches she "agreed" to elope with him. Perhaps convinced that she was going to run away with him, he allowed her to go home at noon to get her things. She was then staying with her cousin Nita del Rosario, at No. 9 Sta. Eleuteria Street, Gulod, Novaliches, Quezon City. He even accompanied her to the highway to get a ride home. 4 When Juditha arrived home she saw her sister Antonette in the house. She was not actually residing there but went there only that day. Juditha lost no time in narrating her harrowing experience to her sister. Immediately Antonette called her brother SPO1 Fernando M. Bautista who resides in

Bulacan. 5 SPO1 Bautista arrived at ground 3:00 or 4:00 o'clock in the afternoon and was told about what happened. 6 He then advised Juditha to go back to the house of accused-appellant for the "planned elopement" so that he and his two (2) companions 7could stage an arrest. 8 On their way to the house of accused-appellant, Juditha rode in a passenger jeep with her sister Antonette and cousin Nita while her brother and his two (2) companions followed them on board an XLT Van. Juditha alighted near the house of accused-appellant while her companions waited for her and accused-appellant along the highway. When she arrived at accused-appellant's place, he was already waiting for her outside the store nearby. They went inside his house and came out twenty (20) minutes later. They boarded a passenger bus while SPO1 Bautista and his companions trailed them. When the bus reached the corner of Forest Hill Subdivision, Gulod, Novaliches, it slowed down because of the traffic thus making it easier for SPO1 Bautista and his companions to board the bus. Upon seeing her brother and his companions, Juditha motioned to them. They immediately approached accused-appellant and boxed him before they could arrest him. The other passengers of the bus joined in hitting accused-appellant. This caused a commotion in the bus. Some policemen who were in the barangay hall across the street saw the disturbance. They boarded the bus to find out what happened. Then they assisted in facilitating the arrest of accused-appellant and brought him to the barangay hall. He was later on transferred to the police headquarters for further interrogation. At the police station the authorities investigated Juditha who readily identified accused-appellant as her robber and rapist. The police then requested for physical examination to find signs of sexual abuse. Medico-Legal Inspector Dr. Dennis G. Bellin found no external signs of violence although there was a deep fresh laceration at 5 o'clock position in Juditha's hymen. He also discovered other lacerations, deep healed, at 3, 7 and 9 o'clock positions. Dr. Bellin also observed that Juditha's external vaginal orifice offered moderate resistance to his examining index finger and virgin-sized vaginal speculum. She was no longer a virgin when the alleged rape transpired. 9 On 5 June 1997 an Information 10 for the special complex crime of robbery with rape was filed against accused-appellant Fernando Sultan y Lato, docketed as Crim. Case No. Q-97-71353. But accused-appellant brushed aside the charge and claimed that it was simply a sexual congress of consenting adults. Finding the complaining witness' version more credible, the trial court, on 5 June 1998, found accused-appellant guilty as charged and sentenced him to reclusion perpetua. He was ordered to return to Juditha Bautista one (1) wrist watch valued at P1,600.00, one (1) ring worth P850.00, one (1) pair of earrings worth P500.00, one (1) necklace worth P2,100.00 and cash in the amount of P130.00, or the payment of P5,180.00 if return was not possible. Accused-appellant was further directed to pay his victim P50,000.00 for moral damages. 11 In this appeal, accused-appellant submits that there is no convincing proof that he is guilty of the crime charged. As to the robbery, he contends that the testimony of complainant that she was robbed of her personal valuables should not be given weight and credence as (a) no evidence was presented in court to prove her claim and that (b) if he had really robbed her, why did she not ask him for restitution of her valuables after the alleged threat had ceased, i.e., when there was already an agreement between them to elope? These arguments fail to persuade us. The testimony of complainant as to the taking of her cash and valuables is evidence enough to sustain a conviction for robbery considering that we find no fault in the pronouncement of the trial court that her testimony is credible. The persuasive value of the declaration of credibility is bolstered by our own scrutiny of the testimony of complainant showing her answers to the incisive questions propounded to her to be firm and straightforward. While there may have been no effort on the part of complainant to retrieve her personal belongings from accused-appellant even after all threats had ceased, her failure to do so does not under the circumstances necessarily dispute the commission of robbery. Article 293 of the Revised Penal Code provides that "[a]ny person who, with intent to gain, shall take any personal property belonging to another, by means of violence against or intimidation of

person, or using force upon anything, shall be guilty of robbery." When accused-appellant divested complaining witness of her personal belongings he committed the crime of robbery. All the elements necessary for its execution and accomplishment were present, i.e., (a) personal property belonging to another, (b) unlawful taking, (c) intent to gain, and (d) violence or intimidation. It is therefore immaterial that she failed to ask for the return of her personal things. Moreover, her actuation could only be fairly interpreted to mean that she did not want accused-appellant to be suspicious of her moves. As for the charge of rape, accused-appellant maintains that the requisite force or intimidation was not proved by the prosecution beyond reasonable doubt; that there was some form of consent to the sexual intercourse as complainant did not put up tenacious resistance despite lack of threat on her life during the alleged rape; and, that complainant on cross-examination was not certain whether accused-appellant was armed at the commencement of the rape. We likewise find these contentions of accused-appellant unconvincing. The prosecution for rape in the instant case is based solely on the testimony of complaining witness. Thus, the basic issue that must be addressed is her credibility. Doctrinally, the trial court's assessment of the credibility of witnesses is accorded the highest respect and weight by the appellate courts. It is normally sustained unless material facts and circumstances have been overlooked, misunderstood or misapplied. 12 There is no such showing in this case. Accused-appellant might not have employed force in committing the rape but he definitely used intimidation which was sufficient to make complainant submit herself to him against her will for fear of life and personal safety. Accused-appellant grabbed her and dragged her to his house. He was armed with an ice pick and threatened to kill her with it if she did not follow his wishes. She was naturally intimidated and her intimidation started from that moment on, and subsisted in her mind when the rape was started until its consummation. Intimidation is subjective so it must be viewed in the light of the victim's perception and judgment at the time of the commission of the crime, and not by any hard and fast rule. It is enough that it produces fear, as in the present case, fear that if the complainant does not yield to the bestial demands of accused-appellant something would happen to her at that moment or even thereafter. Thus, it is irrelevant that she was not certain when cross-examined that accused-appellant was armed with an ice pick when the rape commenced; it was enough that he was holding something that looked like an ice pick which engendered fear in her. With fear instilled in her mind, it is understandable that she did not offer any resistance since any attempt to do so would only be futile. Such failure on her part should not be taken to mean consent so as to make her a willing participant in the sexual confrontation. The Information charges accused-appellant with the special complex crime of robbery with rape. The record shows that the prosecution has established that he committed both robbery and rape with the intent to take personal property of another preceding the rape. Under Art. 294, par. (1), of the Revised Penal Code, ". . . [a]ny person guilty of robbery with the use of violence against or intimidation of persons shall suffer: 1. The penalty of reclusion perpetua to death, . . . when the robbery shall have been accompanied by rape . . . ." Complaining witness Juditha Bautista was raped twice on the occasion of the robbery. In this regard, this Court had declared in some cases that the additional rapes committed on the same occasion of robbery would not increase the penalty. 1 There were also cases; however, where this Court ruled that the multiplicity of rapes committed could be appreciated as an aggravating circumstance. 14 Finally, in the recent case of People v. Regala, 15 the Court held that the additional rapes committed should not be appreciated as an aggravating circumstance despite a resultant "anomalous situation" wherein robbery with rape would be on the same level as robbery with multiple rapes in terms of gravity.16 The Court realized that there was no law providing for the additional rape/s or homicide/s for that matter to be considered as aggravating circumstance. It further observed that the enumeration of aggravating circumstances under Art. 14 of the Revised Penal Code is exclusive, unlike in Art. 13 of the same Code which enumerates the mitigating circumstances where analogous circumstances may be considered, hence, the remedy lies with the legislature. Consequently, unless and until a law is passed providing that the additional rape/s or homicide/s may be considered aggravating, the Court must construe the penal law in favor of the offender as no person may be brought within its terms if he is not clearly made so by the statute. Under this view, the additional rape committed by accused-appellant is not considered an aggravating circumstance. Applying Art. 63, par. (2), of the Revised Penal Code which provides that "[i]n all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof . . . . 2. [w]hen there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied," the lower penalty of reclusion perpetua should be imposed on accused-appellant.

As to the award of damages to the complaining witness, an additional amount of P50,000.00 may be given as damages ex delicto in line with recent jurisprudence. 17 WHEREFORE, the Decision of the court a quo finding accused-appellant FERNANDO SULTAN Y LATO GUILTY of the special complex crime of robbery with rape and sentencing him to reclusion perpetua, to pay Juditha M. Bautista P50,000.00 for moral damages, P5,180.00 for actual damages representing the value of the personal properties plus the cash amount of P130.00 taken from her is AFFIRMED with the MODIFICATION that the amount of P50,000.00 be added as civil indemnity in conformity with prevailing jurisprudence. Costs against accused-appellant. SO ORDERED.1wphi1.nt Mendoza, Quisumbing, Buena and De Leon, Jr., JJ., concur.

G.R. No. 136394

February 15, 2001

PEOPLE OF THE PHILIPPINES, plaintiff- appellee, vs. HERSON NAAG y LOBAS, accused-appellant. PUNO, J.: One of the more interesting conceptual exercises in the field of Criminal Law is the characterization of a crime. The challenge is not only to prove existence of its elements. The challenge is to correctly categorize it. In the case at bar, a man sexually defiled then immediately divested his woman-victim of her belongings. Is he guilty of the special crime of Robbery with Rape or the separate crimes of Robbery and Rape? The answer lies in his intent. The accused in this case is a certain indicted for Robbery with Rape under an Information which reads: "That on or about the 8th day of January, 1996 at Daraga, Albay x x x the above named accused, armed with a screw driver, by means of violence and intimidation, did then and there willfully, unlawfully and feloniously, have carnal knowledge of the complainant Desiree Gollena, against her will, by inflicting upon her with the use of said screw multiple serious physical injuries, and thereafter said accused, having been fully satisfied of his carnal lust over said Desiree Gollena and believing her to be dead, with intent of gain, divested and took her personal belongings, to wit: (1) one bag containing clothes worth P500.00 (2) one gold bracelet worth PI,500.00 (3) wallet containing Pl,800.00 and (4) ladies wristwatch valued at P600.00 to the damage and prejudice of said Desiree Gollena. ACTS CONTRARY TO LAW."1 He pleaded "not guilty" during arraignment and the action proceeded to trial. The evidence for the prosecution shows that Desiree was a singer in a band which regularly plays at the Gloss and Glitters Disco located in Tabaco, Albay. On the morning of January 8, 1996, she went home to Sipi, Daraga, Albay, to visit her family. She took the bus and by about 4 o'clock in the morning, she alighted at the town's Freedom Park in Daraga. She crossed a street where two tricycles were parked. She woke up one of the drivers and inquired

whether she could be brought to Sipi. Getting a positive response, she boarded it. Upon reaching her place, she told him to stop and handed to him her fare. To her surprise, what she received in return was not loose change, but a slap. The driver then began to maul her. Desiree fought back as hard as she could, but this made the driver more ferocious in his assault. She was strangled, boxed and kicked. She was repeatedly stabbed with a screw driver on her face, head, and different parts of her body. Her head was banged against the sidecar. She realized that her struggle was in vain and would only put her life in greater danger. She stopped resisting and pretended to be dead. He then transported her to another place. He lifted her from the tricycle and she thought she would be thrown to a ravine or cliff beside what appeared to be an abandoned house. lnstead, she was tossed to the ground, The driver removed her pants and panties. She could not resist, fearing death, After her garments were removed, her legs were spread apart and he copulated with her. After satisfying his lust, the driver took her wristwatch worth P600.00, a bracelet worth P1,500.00 and fled with her bag containing her clothes, wallet containing P1,800,00 in cash, and some loose change. When Desiree sensed that he has left the premises, she rolled down the ravine. She did not have the energy to stand and walk and so she crawled until she reached a house, which turned out to be the dwelling place of witness Engineer Antonio Balacano located at Sybil Subdivision, Sipi, Daraga. She cried for help. Engr. Balacano responded to Desiree's call for assistance. He saw Desiree, a bloodied girl, cold and torn, squatting by the gate with her pants down and hanging on one leg. It was already 5 o'clock in the morning. The wife of the engineer telephoned local police authorities for assistance. In the meantime, Desiree was brought to the Albay Provincial Hospital where she was given medical treatment. Dr. Jose Solano testified that the girl was in pain when he examined her and that she sustained multiple lacerations and stab wounds on different parts of her body, and had blackening of her left and right eyes. Dr. Aileen Francis Bartilet examined Desiree's genitalia and noted the absence of any sign of injury: there was no bleeding, no laceration of the hymen, no contusion in the vulvar wall of the vagina, and no abrasion. Later that morning of January 8, 1996, policemen came to the hospital to investigate the incident. Desiree gave a description of the suspect as well as the tricycle. The next day, on January 9, SPO1 Pastor Perena Jr. and SPO 2 Domingo Mabini happened to apprehend one Herson Naag y Lobas, a tricycle driver, for driving a public utility tricycle without the necessary license. Naag and the vehicle were brought to the police station of Daraga. Perena and Mabini realized that Naag fit the description of the malefactor given by Desiree. They brought the confiscated student driver's permit of Naag (which contains his photograph) to the hospital for identification. Their hunch was confirmed when Desiree, upon being shown the permit, identified the man in the picture as the one who raped and robbed her. When the policemen returned to the station, Naag was already gone, but not without leaving his tricycle behind. They brought the tricycle to the hospital for identification. Desiree did not have any difficulty in identifying the tricycle as the same vehicle she boarded on the morning of January 8. A criminal complaint was then filed against Naag. On February 25, 1996, he was arrested by the NBI agents of Naga City at Tagkawayan, Quezon. The accused alleged, in his defense, that it was impossible for him to be the author of the crime at bar. He claimed that at the time and date of the incident, he was sleeping in their house approximately seven kilometers away from where it happened. His tricycle was not in a serviceable condition then, and he was repairing it the night before. It was fixed only on January 9 since he was able to buy the spare part that he needed at about 8:30 a.m. of January 8. The previous day was a Sunday and almost all of the motor shops were closed. Hence, he alleged that he could not have operated on the Sipi route on the 8th as his tricycle was not in running condition. He explained that he was in Tagkawayan when he was arrested because he had undergone hospitalization and was on an errand. The defense also called two other witnesses to the stand who backstopped the testimony of the accused. It presented his wife who basically reiterated the story of her husband. She said that he was with her from the night of January 7 up to the morning of January 8, at about 8:30, when he had to buy the

spare part that he needed for his tricycle. Similarly, it presented a certain Lino Era, a next-door neighbor who recalled seeing the accused at about 10 o'clock in the evening of January 7 doing some repairs on his tricycle. 1wphi1.nt In the end, the trial court chose not to believe Naag, It held: The accused in his defense put up alibi, a shabby excuse, a defense indicties never seem to tire of. (People vs. Bracamonte, 257 SCRA 380) This defense of the accused cannot prevail over the positive identification by the victim Desiree of the accused and of the tricycle. This defense of alibi is worthless in the face of his being positively identified by the victim Desiree. (People vs. Rivera, 242 SCRA 26)" 2 However, the trial court did not convict him of the crime he was originally charged with, which is Robbery with Rape. Instead he was meted out two different sentences for the separate crimes of Robbery and Rape, viz: "WHEREFORE, premises considered, the accused Herson Naag y Lobas is hereby found GUILTY beyond reasonable doubt of the crime of Rape under Art. 335 (1) of the Revised Penal Code as amended, and he is hereby sentenced to suffer the penalty of imprisonment of Reclusion Perpetua with all the accessory penalties thereto appertaining, to pay Desiree Gollena P50,000.00 as Indemnity and P50,000.00 as moral damages. The accused Herson Naag y Lobas is also found GUILTY beyond reasonable doubt of the separate crime of Robbery under Art. 294 (4) of the Revised Penal Code, and taking into consideration the Indeterminate Sentence Law he is hereby sentenced to suffer the penalty of imprisonment of ten (10) years of Prision mayor medium in its maximum period as the minimum to fourteen (14) years, ten months and twenty (20) days of Reclusion Temporal medium period in its medium period as the maximum and to return the ladies wrist watch worth P600.00, bracelet worth P1,500.00, bag of clothes worth P500.00 or their total value of P2,600.00 if return cannot be had and the cash of P1,800.00. Costs against the accused. SO ORDERED."3 Dissatisfied with the verdict, the accused interposed this appeal. In his brief, he made this lone assignment of error: "The Lower Court erred in finding the accused guilty of the separate crimes of Robbery and Rape." 4 We affirm the conviction. There is no cogent reason to disturb the findings of the lower court. Well-entrenched is the rule that an appellate court will generally not disturb the assessment of the trial court on factual matters considering that the latter, as a trier of fact, is in a better position to appreciate the same. The only exceptions allowed are when the trial court has plainly overlooked certain facts of substance which, if considered, may affect the result of the case, or in instances where the evidence fails to support or substantiate the lower court's findings and conclusions, or where the disputed decision is based on a misapprehension of facts.5 This case does not fall under any of the exceptions. Hence, there is no reason for us to modify the factual findings of the lower court. Even then, the appellant raises two points in support of his assignment of error designed to sow in our minds seeds of doubt. The first relates to the medical evidence on record while the second deals with his identity.

The appellant capitalizes, firstly, on Dr. Bartilet's testimony on the absence of fresh injury on the private part of the offended party although she was examined almost immediately after the assault. According to him, the findings of said medical expert negate the charge of rape. On the other hand, the prosecution contends that the lack of injury and the healed laceration could be attributed to the sexual intercourse she had with her boyfriend. The appellant's argument fails to impress. It is to be noted that Dr. Bartilet herself explained that her findings did not eliminate the possibility of sexual intercourse. She opined that it must have been done "only outside the vagina: but within the external vulva by merely pushing and giving some force to it."6 She added that the appellant could have ejaculated and discharged semen on the external genitalia even without penetrating into the vagina. In rape cases, what is material is that there is penetration of the female organ no matter how slight. 7 In a long line of decisions, we have ruled that the only essential point is to prove the entrance or at least the introduction of the male organ into the labia of the pudendum. 8 Hence, the moment the accused's penis knocks at the door of the pudenda it suffices to constitute the crime of rape. 9 The appellant next assails the identification made by Desiree. He contends that it was still dark at the time of the incident. He argues that when people board a tricycle, they do not usually focus their attention on the driver. He states that the identity of the driver could be the least of Desiree's concern for at 4 o'clock in the morning, she would have just wanted to go home and rest in the comfort of her bed. We are not persuaded. Desiree could not have failed to recognize the appellant because she was the victim of the assault. A truism founded on ordinary experience is that victims of criminal, violence often strive hard to recognize their assailants. 10 Furthermore, a victim has a natural knack in remembering the face of an assailant for she, more than anybody else, would be interested in bringing the malefactor to justice. 11 On the other hand, it would be unnatural for someone who is interested in vindicating the crime to accuse somebody other than the real culprit. 12 To be sure, Desiree was very emphatic in her identification of the appellant as her assailant, thus: "Court: Desiree Q: A: Q: A: Now that person Herson Naag, how is he related to the accused in this case? : He is the one and same person who raped and robbed me.

You said it was the first time you saw the accused on January 8, 1996. It was still dark is (sic) it not? It was bright at the centro. But it was not in park (sic) he was sleeping at that time in his tricycle. Is it not? (sic) It was bright because there were lights.

Q: But you saw him only once on Jan. 8, 1996. How were you able to recognize him in the Municipal building when you were asked to identify him after one month, being detained? A: As I have said, I can never forget his face."13

Moreover, Desiree should have no difficulty in identifying the appellant because when she first approached him at the centro to hire his services, the place was bright and well-lighted.

The appellant further argues that Desiree's initial identification of him through his picture is unreliable considering the physical and emotional state she was in at that time. It is urged that due to her physical and mental instability, the showing of the student permit must have generated a prejudice ill her mind that "the person shown in the picture of the driver's ID is the one who assaulted her." 14 The argument proceeds from a wrong assumption. It assumes that the picture was shown before the victim gave the description to the police. It was the other way around. Thus: "Court: Desiree Have you seen him in that parking area before January 8, 1996? : No, your honor.

Q: Now, while you were in the Hospital you said that an ID was shown to you and the picture of a person and whose picture you recognize to be that of a person who raped you. Who showed you that picture? A: Q: A: The Police Officer. How come that the Policeman was able to go to Albay Provincial Hospital with that ID? Because when they interviewed me in the hospital, I gave them the description of the accused and his tricycle." 15

The point is made more explicit during Desiree's cross-examination: "Atty. Gomez (continuing on cross-examination) Q: A: Q: A: Q: A: Now, on that date Jan. 9, 1996 were you told by the policemen that the person whose ID was shown to you was one of their suspects? The policeman told me to identify the person in the ID. Were you told that the owner of the ID was apprehended for violation of traffic law? No, Sir. I was just asked to identify him. After the ID was shown to you that was the time when you also gave them the description of the person, is (sic) it not? No, Sir. It was on Jon. 8,1996 when I gave the description of the tricycle driver." 16

We shall now ascertain the nature and extent of the criminal responsibility of the appellant. The issue is whether the crime committed by him is Robbery with Rape or the two separate felonies of Robbery and Rape. In the special complex crime of robbery with rape, the true intent of the accused must first be determined because it is his intent that determines the offense he has committed. This Court in People vs. Dinolo,17 citing the cases of People vs. Conostre18 and People vs. Foigono,19 held:

"x x x if the intention of the accused was to rob, but rape was committed even before the asportation, the crime is robbery with rape. But if the original plan was to rape but the accused after committing the rape also committed the robbery when the opportunity presented itself, the offense should be viewed as separate and distinct. To be liable for the complex crime of robbery with rape the intent to take personal property of another must precede the rape." We must ascertain the force which moved the appellant when he employed violence and intimidation against the person of Desiree. It is true that the appellant raped Desiree before she was dispossessed of her personal properties. This, however, is not decisive. Article 294 of the Revised Penal Code does not distinguish whether the rape was committed before, during or after the robbery. It suffices that the robbery was accompanied by rape. 20 We agree with the conclusion of the trial court that rape was the primary intent of the appellant and his taking away of the belongings of the victim was only a mere afterthought. Although the trial court did not state the reasons for its ruling, there exists sufficient evidence on record from where such deduction can be made. First. It is obvious from the degree and character of the violence and intimidation which the appellant employed (and when he employed it) upon Desiree that his intent was to rape her. He applied such force as to render her resistance to his lust inutile. The kind of force used was unnecessary if he only planned to rob Desiree. On the other hand, the excessive force was clearly meant to attain his lustful scheme. Resultantly, when he finally forced his bestial desire on her, he was able to traverse, in a manner of speaking, the path of least resistance. Second. The appellant transported Desiree from where he first mauled her to an abandoned place. All the time that Desiree was helpless after her mauling, appellant did not concern himself with robbing Desiree even if he could have done so with ease if not with impunity. Instead, he preoccupied himself in finding a location more suited, nay, comfortable, for his plan of lying, with her. Needless to say, an abandoned house fits well. Lastly, at no time did the appellant ask for the belongings of Desiree. Neither did he search her for valuables, except for the wallet in her pants. What is apparent is that he only: (1) took her watch and bracelet, both easily seen and noticeable, and (2) fled with her bag which was already in the tricycle. These overt acts only indicate that he decided to take Desiree ' s belongings as an afterthought and only when the opportunity presented itself. We disagree, however, on the ruling of the trial court that the appellant is guilty of robbery. He should only be convicted of theft because, when he took the personal properties of Desiree, the element of violence and intimidation was no longer present. While it is true that he inflicted force upon her person, that was with the view and in pursuance of the rape, not of the taking. When the asportation happened, Desiree was near lifeless, incapable of putting any form of opposition. The penalty for theft is determined by the value of the property taken. Under Article 309 of the Revised Penal Code, any person guilty of theft shall be punished by "the penalty of prision correccional in its minimum and medium periods, if the value of the thing stolen is more than 200 pesos but does not exceed 6,000 pesos." Applying the Indeterminate Sentence Law, the minimum penalty to be meted out on the appellant Naag should be anywhere within the range of 2 months and 1 day to 6 months of arresto mayor; and the maximum should be within the range of 6 months and 1 day to 4 years and 2 months of prision correccional. Considering that no aggravating or mitigating circumstance attended the commission of the crime, the appellant should be sentenced to an indeterminate prison term of 4 months and 21 days of arresto mayor maximum as the minimum, to 1 year, 8 months and 21 days of prision correccional as the maximum. IN VIEW WHEREOF, the impugned decision is hereby MODIFIED. The accused-appellant Herson Naag y Lobas is found GUILTY beyond reasonable doubt of the crime of RAPE under Article 335 (1) of the Revised Penal Code as amended, and he is hereby sentenced to suffer the penalty of imprisonment of reclusion perpetua with all the accessory penalties thereto appertaining, to pay Desiree Gollena P50,000.00 as, indemnity and P50,000.00 as moral damages.

The accused-appellant Herson Naag y Lobas is also found GUILTY beyond reasonable doubt of the separate crime of THEFT under Article 308 of the Revised Penal Code, and taking into consideration the Indeterminate Sentence Law, he is hereby sentenced to suffer the penalty of imprisonment of 4 months and 21 days of arresto mayor maximum as the minimum, to 1 year, 8 months and 21 days of prision correccional as the maximum, and to return the ladies wristwatch worth P600.00, bracelet worth Pl,500.00, bag of clothes worth P500.00 or their total value of P2,600.00 if return cannot be made and the cash of Pl,800.00. Costs against the accused. SO ORDERED. Davide, Jr., Kapunan Pardo, and Ynares-Santiago, JJ., concur.1wp

G.R. No. L-35281 September 10, 1979 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JESSIE TAPALES y VARGAS and PEDRO CORANEZ y TATUALLA, defendants-appellants. Vicente A. Torres for appellants. Solicitor General E. P. Mendoza, Assistant Solicitor General C. T. Limcaoco and Solicitor P. O. Guerrero for appellee.

PER CURIAM: This is an automatic review of the judgment of the Circuit Criminal Court of Manila, dated April 21, 1972, finding accused-appellants, Jessie Tapales y Vargas and Pedro Coranez y Tatualla, guilty of the crime of Robbery with Homicide, with the mitigating circumstance of plea of guilty offset by the aggravating stances of multiple Rape, use of motor vehicle and nighttime, and sentencing both said accused to the extreme penalty of death. The Information filed against the accused charged them with the crime of Robbery with Homicide and Rape as follows: That on or about October 28, 1971, at nighttime y sought to better accomplish their ends, in the City of Manila, Philippines, the said accused, conspiring and confederating together with another, whose Identity and whereabouts are still unknown and helping one another did then and there wilfully, unlawfully and feloniously, with intent to gain and by means of force, violence and intimidation to wit: by boarding the taxi being then occupied by Eugenie Calaykay y Baldonado and Diana Ang y Navales while mud vehicle was at a ship position at Jones Bridge, in said City and pointing a knife at Diana Ang y Navales and a gun at Eugenio Calaykay y Baldonado, take, steal and carry away against their will and consent, one (1) men's wrist watch, "Rado" brand gold plated and one (1) brown wallet with cash money of undetermined amount belonging to said Eugenie Calaykay y Baldonado, and Mexican money worth P2.00 and one (1) Parker ball pen valued at P10.00 or a total value of P12.00 belonging to said Diana Ang y Navales to the damage and prejudice of said owners in the aforesaid respective amounts that by reason of and on the occasion of the said robbery, the said accused, in furtherance of their conspiracy, did then and there wilfully, unlawfully and feloniously, with intent to kill, attack, assault and use personal violence upon the

person of Eugenio Calaykay y Baldonado by then and there shooting him twice with the gun and stabbing him with the balisong knife on the chest, thereby inflicting upon him mortal wounds which were the direct cause of his death thereafter; that by reason of and on the occasion also of the said robbery, the said accused, in furtherance of their conspiracy, did then and there , unlawfully and feloniously and by means of force, violence and intimidation, to wit.- by threatening to stab and kill the said Diana Ang y Navales with said balisong knife and firearm, which they were holding then at the time, succeed in having sexual intercourse with her, one after the other all -against her win and consent. Contrary to law and with the generic aggravating circumstances of the use of motor vehicle and employment of craft in the commission of said offense. Upon arraignment, appellants, through their counsel de officio, manifested their desire to enter a plea of guilty. The trial Court duly informed them of the gravity of the offense and the imposable penalty therefor of life imprisonment or death. When asked by the Court whether they understood the full consequences of a plea of guilty, both answered affirmatively. They admitted to the Court that they robbed Eugenie Calaykay and Diana Ang and that they killed the former when he shouted, "hold-up". However, both of them denied having raped Diana Ang contending that she had consented to have carnal knowledge with them. The Court below, citing the case of People vs. Mongado, 1 where Rape was considered a generic aggravating circumstance to the crime of Robbery with Homicide, considered appellants to have entered an unconditional plea of guilty to the offense of Robbery with Homicide, 2 and proceeded to receive evidence to ascertain not only the existence of rape but also of attendant modifying circumstances that could affect criminal liability. Diana Ang narrated the incident as follows: On October 27, 1971 at around 11:00 o'clock in the evening, Diana Ang, 20 years old, married but estranged from her husband, Valentin Katigdas, was in the company of her boyfriend of six months, Eugenio Calaykay, 32 years old, single, at the Jai Alai Bamboo Room, Taft Avenue, Manila. After some betting, Eugenio invited Diana for a snack at the International House at Ongpin, Binondo. They left the Jai Alai at around 11:45 P.M. They then hailed a taxicab parked in front of the Keg Room of Jai Alai. Both sat at the rear of the taxi, Diana sitting at the left side and Eugenio sitting at the right side. When they were at the middle of Jones Bridge, the driver stopped and said "Pare, just a while, the right door of the taxi is open. " He opened and closed the right front door four times. At this juncture, two men alighted from a taxicab immediately behind. One armed with a knife, Identified by Diana as Pedro Coranez approached the taxi from the left and the other, armed with a gun, Identified by Diana as Jessie Tapales, approached the taxicab from the right. As they entered the taxicab they said "This is a holdup, we only need money." Inside the taxicab, Jessie Tapales divested Eugenio of his "Rado" wrist watch, while Pedro Coranez ransacked Diana's bag and took her "Parker" ball pen worth P10.00 and Mexican money worth P2.00. While Diana and Eugenio were being robbed, the taxicab driver continued driving down to the foot of Jones badge where he made a "U" turn, proceeded up the bridge, made a right turn on Bonifacio Drive, went straight ahead until they reached the Fire Department at Intramuros. At this point, Eugenie shouted, "hold-up, hold- up". Instantly, Eugenio was stabbed by Coranez and shot by Tapales A commotion ensued inside the taxicab prompting the driver to tell Eugenia "pare, tumalon ka na lamang. " Diana then grappled with Coranez for the possession of the knife while Eugenia already wounded, squeezed himself out of the right window. Eugenie fell in the middle of Del Pan bridge. With Diana still inside the taxicab, Tapales ordered the driver to proceed to Quezon City. Tapales then pulled down Diana's pants and panty, mashed her breast and inserted his fingers into her private parts. While Tapales was abusing Diana, Coranez was also her, his right hand around Diana's shoulders and his left hand poking a knife at her left side. Scared and tremble Diana pleaded that she be spared as she was pregnant but said pleas were in vain. On the way to Quezon City, Diana noticed that they took the Tondo, Balintawak and Highway route. Tapales introduced himself as "Fernando" and Coranez as "Johnny". Before reaching Quezon City, Coranez suggested to Tapales" that they proceed to the place of Tapales "kapatid" at Kamuning which, however, was objected to by Tapales. Tapales opted to look for a vacant lot in Quezon City. When they found one, they ordered the driver to stop. Diana was ordered to alight, followed by Coranez. After apparently taking instructions from Tapales, the driver left the place. About six meters from where they alighted, Coranez forced Diana to lie on the wet cogon grass. Tapales then placed his jacket on the grass where Diana was made to lie down. There and then Coranez and Tapales took turns in raping her. Although Diana admitted that Tapales and Coranez did not make use of their weapons when they reached the vacant lot, she claimed that she submitted to their bestial acts as she was too weak and terribly scared to resist the appellants. After that, Diana asked appellants to get another taxicab but Tapales told her that the taxi they took would return, as in fact, it did. The three of them boarded the taxi and they cruised around the other street. Diana was finally dropped off behind the Carbungco restaurant. Before alighting from the taxi, appellants gave Diana 118.00 and threatened to kill her if she reported the matter to

the police. Despite the threats, Diana told the people around of her dreadful experience. One took pity on her and took her to a policeman in a restaurant near the Center Theatre. The policeman instructed them to proceed to Precinct 8 where she reported the incident to Pat. Libao. An Advance Information or Alarm Report 3 was forthrightly issued. While in the precinct, Diana saw the shoes of Eugenie. Later, Diana was taken by the police to the morgue where she Identified the dead body of Eugenie. The next morning Diana was physically examined by one Dr. Lucero at Precinct 2. 4 After some sleuthing, the police apprehended appellants, but the two taxicab drivers remained at large. Appellants admitted culpability in their sworn statements. 5 In open Court, Jessie Tapales declared that he was invited by Pedro Coranez to commit Robbery and admitted the commission of that crime as well as Homicide and Rape. 6 For his part, Pedro Coranez while admitting the commission of Robbery with Homicide, denied having raped Diana Ang content ding that it was she who suggested that they look for a vacant lot. Pedro Coranez even testified that he was constrianed to have carnal knowledge with Diana Ang despite the fact that the place was a with human excreta. On cross examination, Pedro Coranez admitted that he and Jessie Tapales conspired with two taxi drivers known as Pintong (driver of the taxi taken by the victims), and Bruno Borja (driver of the taxi used by appellants in following the taxi of the victims) in the commission of robbery. 7 The trial Court gave full credence to the spontaneous and straight- forward testimony of Diana Ang, and held: The Court cannot subscribe to the claim of the accused that Diana Ang voluntarily agreed to have carnal knowledge with them and was even the one who invited them. It is indeed highly inconceivable how Diana Ang, who was already robbed and who, by reason or on the occasion of the robbery her boyfriend died would still have the sexual urge. ... On April 21, 1972, the trial Court handed down its Decision, the decretal portion of which reads: WHEREFORE, both accused are hereby found guilty beyond reasonable doubt as principals of the crime of robbery with homicide and there being proved the aggravating circumstances of multiple rapes, the use of motor vehicle and nighttime offset only by the mitigating circumstance of their plea of guilty, the court sentences each one of them to DEATH; to jointly and severally the heirs of the victim Eugenie Calaykay the sum of P12,000.00 for the death of the latter, the sum of P10,000.00 for moral damages; the sum of P10,000.00 for exemplary damages; and to return to the heirs of victim Calaykay the Rado watch and the black wallet with cash taken from Calaykay. The Court further orders the said accused to jointly and y in the victim Diana Ang, the sum of P12,000.00 for moral damages, the sum of P10,000.00 for exemplary damages and to return to her the cash and article taken from her or to jointly and severally indemnify her in the amount of P12.00 value therefor if they fail to do so and to pay the costs. Hence, this mandatory review. Appellants, through counsel de officio ascribe the following errors to the trial Court, to wit: I. THE TRIAL COURT ERRED IN CONSIDERING RAPE AS AN AGGRAVATING CIRCUMSTANCE IN THIS CASE; II. THE TRIAL COURT ERRED IN CONSIDERING NIGHTTIME AS AN AGGRAVATING CIRCUMSTANCE IN THIS CASE; III. THE TRIAL COURT ERRED IN SENTENCING APPELLANTS TO DEATH.

We find the errors assigned bereft of merit. 1. This Court has consistently held that the legal definition of the crime committed herein is Robbery with Homicide, with Rape being considered an aggravating circumstance. It is the uniform jurisprudence of the Supreme Court that where the crime charged is robbery with homicide and rape, the legal definition of the crane is robbery with homicide punishable under paragraph 1, Article 294 of the Penal Code; and the rape committed on the occasion of that crime is considered an aggravating circumstance (People vs. Ganal,, 85 Phil. 743, 751; People vs. Bacsa, 104 Phil. 136, 142; and People vs. Tarrayo, 27 SCRA 953 (1969). See also: People vs. Carillo, 85 Phil. 611, 635). Instead of ignominy, therefore, it is the rape itself that aggravates (People vs. Mongado, 28 SCRA 642,651-652, (1969). The defense argues, however, that the foregoing doctrine should be re-examined and abandoned considering that there is no law that makes Rape an aggravating circumstance nor one that classifies it as a generic aggravating circumstance. 8 Article 294 of the Revised Penal Code provides: Art. 294. Robbery with violence against or intimidation of persons Penalties.Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crane of homicide shall have been committed. xxx xxx xxx Indeed, the special complex crime contemplated in the foregoing provision does not include Rape. However, there can be no question, and this appellant admits in Ms Brief, that Rape committed on the occasion of Robbery with Homicide increases the moral evil of the crime. Moreover, it is incorrect to state that there is no law which considers Rape as an aggravating circumstance simply because it is not specifically enumerated in Article 14 of the Revised Penal Code as an aggravating circumstance. As enunciated in the case of People vs. Racaza, 82 Phil. 623,(1949), ...Rapes, wanton robbery for personal gain, and other forms of cruelties are condemned and their perpetration will be regarded as aggravating circumstances of ignominy and of deliberately augmenting unnecessary wrongs to the main criminal objective, under paragraphs 17 and 21 of Article 14 of the Revised Penal Code. ... Said paragraphs read thus: Art. 14. Aggravating circumstances. The following are aggravating circumstances: xxx xxx xxx 17. That means be employed or circumstances brought about which add ignominy to the natural effects of the act. xxx xxx xxx

21. That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for its commission. This Court's consistent ruling, therefore, which holds that when Rape and Homicide co-exist in the commission of Robbery, it is paragraph 1 of Article 294 which applies, the Rape to be considered as an aggravating circumstance (People vs. Ganal, et al., 85 Phil. 743 (1950); People vs. Carillo, 85 Phil. 611 (1950); People vs. Bacsa, 104 Phil. 136 (1958); People vs. Tarrayo, 27 SCRA 953 (1969); People Mongado, 28 SCRA 643 (1969), should be upheld, for a settled judicial construction put upon a statute has almost the same authority as the statute itself, and this Court win not disregard or overrule it except for the most cogent reasons. 9 Alternatively, appellants contend that even if the ruling that Rape is an aggravating circumstance in Robbery with Homicide be upheld, the crime of Rape herein should be considered, by time and distance, as a separate and distinct offense from that of Robbery with Homicide because while the Robbery was committed at Jones Bridge, the Homicide in Intramuros, both in Manila, the Rape was committed in Quezon city. 10 While there may have been an appreciable interval of time between the robbery and the killing, on the one hand, and the rape, on the other, there can be no question but that there was a direct relation, an intimate connection between them such that it can be stated, without fear of contradiction, that it was by reason or on occasion of the robbery that Homicide and Rape were committed. 11 2. Appellants contention that the trial Court erred in considering nighttime as an aggravating circumstance is neither well taken. The crime was committed between the hours of 11:45 P.M., and 1:00 A.M. As early as 6:00 P.M. of October 27, 1971, both accused had already planned the robbery. It is evident that they purposely sought nighttime and took advantage of it to facilitate the commission of the offense and to avoid discovery. 12 In fact, when the victim Eugenio Calaykay shouted "hold-up, hold-up," no one responded to his can because of the lateness of the night. When he forced himself out of the taxi and fell on Del Pan Bridge, no one saw or noticed it. Again, because of the wee hours of the morning, appellants were able to cruise around leisurely from Manila to Quezon City looking for a vacant lot. In the meantime, both appellants, taking advantage of the darkness of night inside the taxi-cab, were able, with impunity, to take liberties with the person of Diana Ang. In itself nighttime is not an aggravating circumstance, and becomes one only where it is specially sought by the offender or taken advantage of by him to facilitate the commission of the crime or to avoid discovery and thus minimize the risk of capture. 13 3. Considering, therefore, that the commission of Robbery with Homicide was attended by the circumstances of multiple rape , use of motor vehicle, and nighttime, in aggravation, which overwhelmingly offset the lone circumstance of plea of guilty, in litigation the accused-appellants, by the law, must be meted out the extreme penalty of death. 14 WHEREFORE, finding no error in the judgement automatically elevated to this Court for review, the same is hereby affirmed. Costs against accused-appellants, Jessie Tapales y Vargas and Pedro Coranez y Tatualla. SO ORDERED. Teehankee, Antonio, Concepcion, Jr., Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera, JJ., concur.

G.R. No. 86163 April 26, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO CANASARES, and SIMPLICIO CANASARES, BIENVENIDO SALVILLA, defendantappellant. The Solicitor General for plaintiff-appellee. Resurreccion S. Salvilla for defendant-appellant.

MELENCIO-HERRERA, J.: Accused Bienvenido Salvilla alone appeals from the Decision of the Regional Trial Court, Branch 28, Iloilo City, *dated 29 August 1988, in Criminal Case No. 20092, finding him and his co-accused Reynaldo, Ronaldo and Simplicio, all surnamed Canasares, guilty beyond reasonable doubt of the crime of "Robbery with Serious Physical Injuries and Serious Illegal Detention" and sentencing them to suffer the penalty of reclusion perpetua. The Information filed against them reads: The undersigned City Fiscal accuses BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO CANASARES, and SIMPLICIO CANASARES, whose maternal surnames, dated and places of birth cannot be ascertained of the crime of ROBBERY WITH SERIOUS PHYSICAL INJURIES AND SERIOUS ILLEGAL DETENTION (Art, 294, paragraph 3, in conjunction with Article 267 of the Revised Penal Code), committed as follows: That on or about the 12th day of April, 1986, in the City of Iloilo, Philippines and within the jurisdiction of this Court, said accused, conspiring and confederating among themselves, working together and helping one another, armed with guns and handgrenade and with the use of violence or intimidation employed on the person of Severino Choco, Mary Choco, Mimie Choco and Rodita Hablero did then and there wilfully, unlawfully and criminally take and carry away, with intent of gain, cash in the amount of P20,000.00, two (2) Men's wrist watches, one (1) Lady's Seiko quartz wrist watch and one (1) Lady's Citizen wrist watch and assorted jewelries, all valued at P50,000.00; that on the occasion and by reason of said robbery, Mary Choco suffered serious physical injuries under paragraph 2 of Article 263, Bienvenido Salvilla likewise suffered serious physical injuries and Reynaldo Canasares also suffered physical injuries; that the said accused also illegally detained, at the compound of the New Iloilo Lumber Company, Iznart Street, Iloilo City, Severino Choco, owner/proprietor of said Lumber Company, Mary Choco, Mimie Choco, who is a minor, being 15 years of age, and Rodita Hablero, who is a salesgirl at said Company; that likewise on the occasion of the robbery, the accused also asked and were given a ransom money of P50,000.00; that the said crime was attended by aggravating circumstances of band, and illegal possession of firearms and explosives; that the amount of P20,000.00, the ransom money of P50,000.00, two (2) Men's wrist watches, two (2) lady's wrist watches, one (1) .38 caliber revolver and one (1) live grenade were recovered from the accused; to the damage and prejudice of the New Iloilo Lumber Company in the amount of P120,000.00. The evidence for the prosecution may be re-stated as follows:

On 12 April 1986, a robbery was staged by the four accused at the New Iloilo Lumber Yard at about noon time. The plan was hatched about two days before. The accused were armed with homemade guns and a hand grenade. When they entered the establishment, they met Rodita Hablero an employee thereat who was on her way out for her meal break and announced to her that it was a hold-up. She was made to go back to the office and there Appellant Salvilla pointed his gun at the owner, Severino Choco, and his two daughters, Mary and Mimie the latter being a minor 15 years of age, and told the former that all they needed was money. Hearing this, Severino told his daughter, Mary, to get a paper bag wherein he placed P20,000.00 cash (P5,000.00, according to the defense) and handed it to Appellant. Thereafter, Severino pleaded with the four accused to leave the premises as they already had the money but they paid no heed. Instead, accused Simplicio Canasares took the wallet and wristwatch of Severino after which the latter, his two daughters, and Rodita, were herded to the office and kept there as hostages. At about 2:00 o'clock of the same day, the hostages were allowed to eat. The four accused also took turns eating while the others stood guard. Then, Appellant told Severino to produce P100,000.00 so he and the other hostages could be released. Severino answered that he could not do so because it was a Saturday and the banks were closed. In the meantime, police and military authorities had surrounded the premises of the lumber yard. Major Melquiades B. Sequio Station Commander of the INP of Iloilo City, negotiated with the accused using a loud speaker and appealed to them to surrender with the assurance that no harm would befall them as he would accompany them personally to the police station. The accused refused to surrender or to release the hostages. Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and joined the negotiations. In her dialogue with the accused, which lasted for about four hours, Appellant demanded P100,000.00, a coaster, and some raincoats. She offered them P50,000.00 instead, explaining the difficulty of raising more as it was a Saturday. Later, the accused agreed to receive the same and to release Rodita to be accompanied by Mary Choco in going out of the office. When they were out of the door, one of the accused whose face was covered by a handkerchief, gave a key to Mayor Caram. With this, Mayor Caram unlocked the padlocked door and handed to Rodita the P50,000.00, which the latter, in turn, gave to one of the accused. Rodita was later set free but Mary was herded back to the office. Mayor Caram, Major Sequio and even volunteer radio newscasters continued to appeal to the accused to surrender peacefully but they refused. UItimatums were given but the accused did not budge. Finally, the police and military authorities decided to launch an offensive and assault the place. This resulted in injuries to the girls, Mimie and Mary Choco as well as to the accused Ronaldo and Reynaldo Canasares. Mary suffered a "macerated right lower extremity just below the knee" so that her right leg had to be amputated. The medical certificate described her condition as "in a state of hemorrhagic shock when she was brought in to the hospital and had to undergo several major operations during the course of her confinement from April 13, 1986 to May 30, 1986." For his part, Appellant Salvilla confirmed that at about noon time of 12 April 1986 he and his co-accused entered the lumber yard and demanded money from the owner Severino Choco He demanded P100,000.00 but was given only P5,000.00, which he placed on the counter of the office of the lumber yard. He admitted that he and his co-accused kept Severino, his daughters, and Rodita inside the office. He maintained, however, that he stopped his coaccused from getting the wallet and wristwatch of Severino and, like the P5,000.00 were all left on the counter, and were never touched by them. He claimed further that they had never fired on the military because they intended to surrender. Appellant's version also was that during the gunfire, Severino's daughter stood up and went outside; he wanted to stop her but he himself was hit by a bullet and could not prevent her. Appellant also admitted the appeals directed to them to surrender but that they gave themselves up only much later. After trial, the Court a quo meted out a judgment of conviction and sentenced each of the accused "to suffer the penalty of reclusion perpetua, with the accessory penalties provided by law and to pay the costs." Appellant Salvilla's present appeal is predicated on the following Assignments of Error:

1. The lower court erred in holding that the crime charged was consummated and in not holding that the same was merely attempted. 2. The lower court erred in not appreciating the mitigating circumstance of voluntary surrender." Upon the facts and the evidence, we affirm. The defense contends that "The complete crime of larceny (theft/robbery) as distinguished from an attempt requires asportation or carrying away, in addition to the taking, In other words, the crime of robbery/theft has three consecutive stages: 1) the giving 2) the taking and 3) the carrying away or asportation And without asportation the crime committed is only attempted" (Memorandum for Appellant Salvilla, Records, p. 317). There is no question that in robbery, it is required that there be a taking of personal property belonging to another. This is known as the element of asportation the essence of which is the taking of a thing out of the possession of the owner without his privity and consent and without the animus revertendi (Aquino, Revised Penal Code, p. 97, citing 5 C.J. 607). In fact, if there is no actual taking, there can be no robbery. Unlawful taking of personal property of another is an essential part of the crime of robbery. Appellant insists that while the "giving" has been proven, the "taking" has not. And this is because neither he nor his three co-accused touched the P5,000.00 given by Severino nor the latter's wallet or watch during the entire incident; proof of which is that none of those items were recovered from their persons. Those factual allegations are contradicted by the evidence. Rodita, the lumberyard employee, testified that upon demand by Appellant, Severino put P20,000.00 inside a paper bag and subsequently handed it to Appellant. In turn, accused Simplicio Canasares took the wallet and wristwatch of Severino. In respect of the P50,000.00 from Mayor Caram, Rodita declared that the Mayor handed the amount to her after she (the Mayor) had opened the padlocked door and that she thereafter gave the amount to one of the holduppers. The "taking" was, therefore, sufficiently proved (TSN, July 1, 1987, pp. 12-13, 15-16, 27-31). The money demanded, and the wallet and wristwatch were within the dominion and control of the Appellant and his co-accused and completed the taking. The State established a "taking" sufficient to support a conviction of robbery even though the perpetrators were interrupted by police and so did not pick up the money offered by the victim, where the defendant and an accomplice, armed with a knife and a club respectively, had demanded the money from the female clerk of a convenience store, and the clerk had complied with their instructions and placed money from the register in a paper bag and then placed the bag on the counter in front of the two men; these actions brought the money within the dominion and control of defendant and completed the taking . (Johnson vs. State, 432 So 2d 758). "Severance of the goods from the possession of the owner and absolute control of the property by the taker, even for an instant, constitutes asportation (Adams vs. Commonwealth, 154 SW 381; State vs. Murray, 280 SW 2d 809; Mason vs. Commonwealth, 105 SE 2d 149) [Emphasis supplied]. It is no defense either that Appellant and his co-accused had no opportunity to dispose of the personalities taken. That fact does not affect the nature of the crime, From the moment the offender gained possession of the thing, even if the culprit had no opportunity to dispose of the same, the unlawful taking is complete (Reyes, Revised Penal Code Annotated, Book II, 1981 ed., p. 594). The crime is consummated when the robber acquires possession of the property, even if for a short time, and it is not necessary that the property be taken into the hands of the robber, or that he should have actually carried the property away, out of the physical presence of

the lawful possessor, or that he should have made his escape with it" (People vs. Quinn, 176 P 2d 404; Woods vs. State, 220 SW 2d 644; People vs. Beal, 39 P 2d 504; People vs. Clark, 160 P 2d 553). Contrary to Appellant's submission, therefore, a conviction for consummated and not merely attempted Robbery is in order. It is the contention of Appellant that Rodita could not have seen the taking because the place was dark since the doors were closed and there were no windows. It will be recalled, however, that Rodita was one of the hostages herself and could observe the unfolding of events. Her failure to mention the taking in her sworn statement would not militate against her credibility, it being settled that an affidavit is almost always incomplete and inaccurate and does not disclose the complete facts for want of inquiries or suggestions (People vs. Andaya, G.R. No. L-63862, 31 July 1987, 152 SCRA 570; People vs. Tan, et al., 89 Phil. 337 [1951]). The fact, too, that Rodita was an employee of Severino would not lessen her credibility. The defense has not proven that she was actuated by any improper motive in testifying against the accused. In the last analysis, the basic consideration centers around the credibility of witnesses in respect of which the findings of the Trial Court are entitled to great weight as it was in a superior position to assess the same in the course of the trial ( see People vs. Ornoza G.R. No. L-56283, 30 June 1987, 151 SCRA 495; People vs. Alcantara, G.R. No. L-38042, 30 June 1987, 151 SCRA 326). Anent the second assignment of error, the "surrender" of the Appellant and his co-accused cannot be considered in their favor to mitigate their liability. To be mitigating, a surrender must have the following requisites: (a) that the offender had not been actually arrested; (b) that the offender surrendered himself to a person in authority or to his agent; and (c) that the surrender was voluntary (People vs. Canamo, G.R. No. L-62043, 13 August 1985, 138 SCRA 141). The "surrender" by the Appellant and his co-accused hardly meets these requirements. They were, indeed, asked to surrender by the police and military authorities but they refused until only much later when they could no longer do otherwise by force of circumstances when they knew they were completely surrounded and there was no chance of escape. The surrender of the accused was held not to be mitigating as when he gave up only after he was surrounded by the constabulary and police forces (People vs. Sigayan et al., G.R. Nos. L-18523-26, 30 April 1966, 16 SCRA 839; People vs. Mationg G.R. No. L-33488, 29 March 1982, 113 SCRA 167). Their surrender was not spontaneous as it was motivated more by an intent to insure their safety. And while it is claimed that they intended to surrender, the fact is that they did not despite several opportunities to do so. There is no voluntary surrender to speak of (People vs. Dimdiman 106 Phil. 391 [1959]). All told, the assigned errors remain unsubstantiated and we find the guilt of the accused-appellant, Bienvenido Salvilla, established beyond reasonable doubt. Although unassigned as an error, we deem it necessary to turn now to the nature of the linked offenses involved and the penalty imposed by the Trial Court. Appellant and his co-accused were charged in the Information with "Robbery with Serious Physical Injuries and Serious Illegal Detention ("Art. 295, par. 3, in conjunction with Art. 267, RPC )and sentenced to reclusion perpetua. We agree with the Trial Court that a complex crime under Article 48 of the Revised Penal Code has been committed such that the penalty for the more serious offense of Serious Illegal Detention (Art. 267, Revised Penal Code), or "reclusion perpetua to death," is to be imposed instead of the penalty prescribed for Robbery with Serious Physical Injuries (Art. 294 (3), which is reclusion temporal.

Under Article 48, a complex crime arises "when an offense is a necessary means for committing the other." The term "necessary means" does not connote indispensable means for if it did then the offense as a "necessary means" to commit another would be an indispensable element of the latter and would be an ingredient thereof. The phrase "necessary means" merely signifies that one crime is committed to facilitate and insure the commission of the other (Aquino, Revised Penal Code, Vol. I, 1987 ed., p. 624, citing Dissent, Montemayor, J., Amado Hernandez, 99 Phil. 515). In this case, the crime of Serious Illegal Detention was such a "necessary means" as it was selected by Appellant and his co-accused to facilitate and carry out more effectively their evil design to stage a robbery. The facts of this case differ from those in People vs. Astor, et al. (G.R. Nos. L-71765-66, 29 April 1987, 149 SCRA 325) where the accused were convicted of Robbery but acquitted in the case for Serious Illegal Detention and where it was held that "the detention is absorbed in the crime of robbery." For one, in Astor, there were two (2) separate Informations filed, one for Robbery and another for Serious Illegal Detention. In the present case, only one Information was filed charging the complex offense. For another, in Astor, the robbery had already been consummated and the detention was merely to forestall the capture of the robbers by the police. Not so in this case, where the detention was availed of as a means of insuring the consummation of the robbery. Further, inAstor, the detention was only incidental to the main crime of robbery so that it was held therein: . . . were appellants themselves not trapped by the early arrival of the police at the scene of the crime, they would have not anymore detained the people inside since they have already completed their job. Obviously, appellants were left with no choice but to resort to detention of these people as security, until arrangements for their safe passage were made. This is not the crime of illegal detention punishable under the penal laws but an act of restraint in order to delay the pursuit of the criminals by peace officers (People v. Sol, 9 Phil. 265; People v. Uday 55 Phil. 167, cited in the Revised Penal Code, Aquino, Vol. 3, 1976 ed., p. 1337). Where the victims in a robbery case were detained in the course of robbery, the detention is absorbed by the crime of robbery (P. v. Baysa, 92 Phil. 1008, id.). In the case at bar, the detention was only incidental to the main crime of robbery, and although in the course thereof women and children were also held, that threats to kill were made, the act should not be considered as a separate offense. Appellants should only be held guilty of robbery. In contract, the detention in the case at bar was not only incidental to the robbery but was a necessary means to commit the same. After the amount of P20,000.00 was handed to Appellant, the latter and his co-accused still refused to leave. The victims were then taken as hostages and the demand to produce an additional P100,000.00 was made as a prerequisite for their release. The detention was not because the accused were trapped by the police nor were the victims held as security against the latter. The detention was not merely a matter of restraint to enable the malefactors to escape, but deliberate as a means of extortion for an additional amount. The police and other authorities arrived only much later after several hours of detention had already passed. And, despite appeals to appellant and his co-accused to surrender, they adamantly refused until the amount of P100,000.00 they demanded could be turned over to them. They even considered P50,000.00, the amount being handed to them, as inadequate. The foregoing features also distinguish this case from those of U.S. v. Sol, 9 Phil. 265 [1907] where the restraint was for no other purpose than to prevent the victims from reporting the crime to the authorities; from People v. Gamboa, 92 Phil. 1085 [1953] where the victims were taken to a place one kilometer away and shot in order to liquidate the witnesses to the robbery; from People v. Baysa, 92 Phil. 1008 [1953]; People v. Manzanilla, 43 Phil. 167 [1922], all of which cases were cited in Astor and where the victims were only incidentally detained so that the detention was deemed absorbed in robbery. In other words, unlike in the above cases, the elements of the offense of Serious Illegal Detention are present in this case. The victims were illegally deprived of their liberty. Two females (Mary and Minnie) and a minor (Minnie), a specified circumstance in Article 267 (3), were among those detained. The continuing detention was also for the purpose of extorting ransom, another listed circumstance in Article 267 (last parag.) not only from the detained persons themselves but even from the authorities who arrived to rescue them. It follows then that as the detention in this case was not merely incidental to the robbery but a necessary means employed to facilitate it, the penalty imposed by the Trial Court is proper.

WHEREFORE, the judgment appealed from is hereby AFFIRMED. Proportionate costs. SO ORDERED. Paras, Padilla Sarmiento and Regalado JJ., concur.

G.R. No. 140756

April 4, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN GONZALES ESCOTE, JR. @ Jun Mantika of Sta. Lucia, Angat, Bulacan and VICTOR ACUYAN y OCHOVILLOS @ Vic Arroyo of Sto. Nio, Poblacion, Bustos, Bulacan, accused-appellants. CALLEJO, SR., J.: Robbery with homicide is classified as a crime against property. Nevertheless, treachery is a generic aggravating circumstance in said crime if the victim of homicide is killed treacherously. The Supreme Court of Spain so ruled. So does the Court rule in this case, as it had done for decades. Before the Court on automatic review is the Decision1 of Branch 11 of the Regional Trial Court of Bulacan in Criminal Case No. 443-M-97 convicting accused-appellants Juan Gonzales Escote, Jr. and Victor Acuyan of the complex crime of robbery with homicide, meting on each of them the supreme penalty of death, and ordering them to pay the heirs of the victim, SPO1 Jose C. Manio, Jr., the total amount of P300,000.00 by way of actual and moral damages and to pay to Five Star Bus, Inc., the amount of P6,000.00 by way of actual damages. The Facts The antecedent facts as established by the prosecution are as follows: On September 28, 1996 at past midnight, Rodolfo Cacatian, the regular driver of Five Star Passenger Bus bearing Plate No. ABS-793, drove the bus from its terminal at Pasay City to its destination in Bolinao, Pangasinan. Also on board was Romulo Digap, the regular conductor of the bus, as well as some passengers. At Camachile, Balintawak, six

passengers boarded the bus, including Victor Acuyan and Juan Gonzales Escote, Jr. who were wearing maong pants, rubber shoes, hats and jackets.2 Juan seated himself on the third seat near the aisle, in the middle row of the passengers' seats, while Victor stood by the door in the midportion of the bus beside Romulo. Another passenger, SPO1 Jose C. Manio, Jr., a resident of Angeles City, was seated at the rear portion of the bus on his way home to Angeles City. Tucked on his waist was his service gun bearing Serial Number 769806. Every now and then, Rodolfo looked at the side view mirror as well as the rear view and center mirrors installed atop the driver's seat to monitor any incoming and overtaking vehicles and to observe the passengers of the bus. The lights of the bus were on even as some of the passengers slept. When the bus was travelling along the highway in Plaridel, Bulacan, Juan and Victor suddenly stood up, whipped out their handguns and announced a holdup. Petrified, Rodolfo glanced at the center mirror towards the passengers' seat and saw Juan and Victor armed with handguns. Juan fired his gun upward to awaken and scare off the passengers. Victor followed suit and fired his gun upward. Juan and Victor then accosted the passengers and divested them of their money and valuables. Juan divested Romulo of the fares he had collected from the passengers. The felons then went to the place Manio, Jr. was seated and demanded that he show them his identification card and wallet. Manio, Jr. brought out his identification card bearing No. 00898. 3 Juan and Victor took the identification card of the police officer as well as his service gun and told him: "Pasensya ka na Pare, papatayin ka namin, baril mo rin and papatay sa iyo." The police officer pleaded for mercy: "Pare maawa ka sa akin. May pamilya ako." However, Victor and Juan ignored the plea of the police officer and shot him on the mouth, right ear, chest and right side of his body. Manio, Jr. sustained six entrance wounds. He fell to the floor of the bus. Victor and Juan then moved towards the driver Rodolfo, seated themselves beside him and ordered the latter to maintain the speed of the bus. Rodolfo heard one of the felons saying: "Ganyan lang ang pumatay ng tao. Parang pumapatay ng manok." The other said: "Ayos na naman tayo pare. Malaki-laki ito." Victor and Juan further told Rodolfo that after they (Victor and Juan) shall have alighted from the bus, he (Rodolfo) should continue driving the bus and not report the incident along the way. The robbers assured Rodolfo that if the latter will follow their instructions, he will not be harmed. Victor and Juan ordered Rodolfo to stop the bus along the overpass in Mexico, Pampanga where they alighted from the bus. The robbery was over in 25 minutes. When the bus reached Dau, Mabalacat, Pampanga, Rodolfo and Romulo

forthwith reported the incident to the police authorities. The cadaver of SPO1 Manio, Jr. was brought to the funeral parlor where Dr. Alejandro D. Tolentino, the Municipal Health Officer of Mabalacat, Pampanga, performed an autopsy on the cadaver of the police officer. The doctor prepared and signed an autopsy report detailing the wounds sustained by the police officer and the cause of his death: "Body still flaccid (not in rigor mortis) bathed with his own blood. There were 6 entrance wounds and 6 exit wounds. All the entrance were located on his right side. An entrance (0.5 cm x 0.5 cm.) located infront of the right ear exited at the left side just below the ear lobe. Another entrance through the mouth exited at the back of the head fracturing the occiput with an opening of (1.5 cm x 2 cm). Blood CSF and brain tissues came out. Another fatal bullet entered at the upper right cornea of the sternum, entered the chest cavity pierced the heart and left lung and exited at the left axillary line. Severe hemorrhage in the chest cavity came from the heart and left lung. The other 3 bullets entered the right side and exited on the same side. One entrance at the top of the right shoulder exited at the medial side of the right arm. The other entered above the right breast and exited at the right lateral abdominal wall travelling below muscles and subcutaneous tissues without entering the cavities. Lastly another bullet entered above the right iliac crest travelled superficially and exited above the right inguinal line. Cause of Death: Shock, massive internal and external hemorrhage, complete brain destruction and injury to the heart and left lung caused by multiple gunshot wounds."4 Rodolfo and Romulo proceeded to the police station of Plaridel, Bulacan where they reported the robbery and gave their respective sworn statements.5 SPO1 Manio, Jr. was survived by his wife Rosario Manio and their four young children. Rosario spent P20,000.00 for the coffin and P10,000.00 for the burial lot of the slain police officer. 6 Manio, Jr. was 38 years old when he died and had a gross salary of P8,085.00 a month. 7 Barely a month thereafter, or on October 25, 1996, at about midnight, SPO3 Romeo Meneses, the team leader of Alert Team No. 1 of Tarlac Police Station, and PO3 Florante S. Ferrer were at the police checkpoint

along the national highway in Tarlac, Tarlac. At the time, the BambangConcepcion bridge was closed to traffic and the police officers were tasked to divert traffic to the Sta. Rosa road. Momentarily, a white colored taxi cab without any plate number on its front fender came to view. Meneses stopped the cab and asked the driver, who turned out to be the accused Juan Gonzales Escote, Jr., for his identification card. Juan told Meneses that he was a policeman and handed over to Meneses the identification card of SPO1 Manio, Jr. and the money which Juan and Victor took from Manio, Jr. during the heist on September 28, 1996.8 Meneses became suspicious when he noted that the identification card had already expired on March 16, 1995. He asked Juan if the latter had a new pay slip. Juan could not produce any. He finally confessed to Meneses that he was not a policeman. Meneses brought Juan to the police station. When police officers frisked Juan for any deadly weapon, they found five live bullets of a 9 millimeter firearm in his pocket. The police officers confiscated the ammunition. In the course of the investigation, Juan admitted to the police investigators that he and Victor, alias Victor Arroyo, staged the robbery on board Five Star Bus and are responsible for the death of SPO1 Manio, Jr. in Plaridel, Bulacan. Meneses and Ferrer executed their joint affiavit of arrest of Juan. 9 Juan was subsequently turned over to the Plaridel Police Station where Romulo identified him through the latter's picture as one of those who robbed the passengers of the Five Star Bus with Plate No. ABS-793 and killed SPO1 Manio, Jr. on September 28, 1996. In the course of their investigation, the Plaridel Police Station Investigators learned that Victor was a native of Laoang, Northern Samar.10 On April 4, 1997, an Information charging Juan Gonzales Escote, Jr. and Victor Acuyan with robbery with homicide was filed with the Regional Trial Court of Bulacan. The Information reads: That on or about the 28th day of September 1996, in the municipality of Plaridel, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping each other, armed with firearms, did then and there wilfully, unlawfully and feloniously, with intent of (sic) gain and by means of force, violence and intimidation, take, rob and carry away with one (1) necklace and cash in [the] undetermine[d] amount of one SPO1 Jose C. Manio, Jr., to the damage and prejudice of the said owner in the said undetermine[d] amount; that simultaneously or on the occassion (sic) of said robbery, said accused by means of violence and intimidation and in furtherance of their conspiracy attack, assault and shoot with the service firearm of the said SPO1 Jose C. Manio, Jr., thereby inflicting serious physical

injuries which resulted (sic) the death of the said SPO1 Jose C. Manio, Jr. Contrary to law.11 On the strength of a warrant of arrest, the police officers arrested Victor in Laoang, Northern Samar and had him incarcerated in the Bulacan Provincial Jail. Assisted by Atty. Ramiro Osorio, their counsel de parte, Juan and Victor were duly arraigned and entered their plea of not guilty to the charge. Trial thereafter ensued. After the prosecution had rested its case on August 26, 1998, Juan escaped from the provincial jail. 12 The trial court issued a bench warrant on September 22, 1998 for the arrest of said accused-appellant.13 In the meantime, Victor adduced his evidence. Victor denied the charge and interposed the defense of alibi. He testified that in 1996, he worked as a tire man in the vulcanizing shop located in Banga I, Plaridel, Bulacan owned by Tony Boy Negro. On one occasion, Ilarde Victorino, a customer of Tony Boy Negro, ordered Victor to sell a tire. Victor sold the tire but did not turn over the proceeds of the sale to Ilarde. The latter hated Victor for his misdeed. The shop was later demolished and after two months of employment, Victor returned to Barangay Muwal-Buwal, Laoang, Northern Samar. On September 26, 1996, at 9:30 p.m., Victor was at the town fiesta in Laoang. Victor and his friends, Joseph Iringco and Rickey Lorcio were having a drinking spree in the house of Barangay Captain Ike Baluya. At 11:30 p.m., the three left the house of the barangay captain and attended the public dance at the town auditorium. Victor and his friends left the auditorium at 5:30 a.m. of September 27, 1996. Victor likewise testified that he never met Juan until his arrest and detention at the Bulacan Provincial Jail. One of the inmates in said provincial jail was Ilarde Victorino. Victor learned that Ilarde implicated him for the robbery of the Five Star Bus and the killing of SPO1 Manio, Jr. to hit back at him for his failure to turn over to Ilarde the proceeds of the sale of the latter's tire. On January 14, 1999, Juan was rearrested in Daet, Camarines Norte.14 However, he no longer adduced any evidence in his behalf. The Verdict of the Trial Court On March 11, 1999, the trial court rendered its Decision judgment finding Juan and Victor guilty beyond reasonable doubt of the crime charged, meted on each of them the penalty of death and ordered them to pay

P300,000.00 as actual and moral damages to the heirs of the victim and to pay the Five Star Bus Company the amount of P6,000.00 as actual damages. The decretal portion of the decision reads: WHEREFORE, this Court finds both accused, Juan Gonzales Escote, Jr. and Victor Acuyan GUILTY beyond reasonable doubt of Robbery with Homicide as penalized under Art. 294 of the Revised Penal Code as amended and hereby sentences both to suffer the supreme penalty of Death and to indemnify the heirs of the late SPO1 Jose C. Manio, Jr., the amount of P300,000.00 as actual and moral damages and to pay the Five Star Bus P6,000.00 as actual damage. SO ORDERED.15 Assignment of Errors Juan and Victor assail the Decision of the trial court and contend that: I THE TRIAL COURT ERRED IN HOLDING THAT RODOLFO CACATIAN AND ROMULO DIGAP, DRIVER AND CONDUCTOR OF THE FIVE STAR BUS, RESPECTIVELY, WERE ABLE TO POSITIVELY IDENTIFY THE TWO (2) MEN WHO HELD-UP THEIR BUS AND KILLED ONE PASSENGER THEREOF AT AROUND 3:00 O'CLOCK IN THE EARLY MORNING OF SEPTEMBER 28, 1996. II THE TRIAL COURT ERRED IN FINDING THE TWO (2) ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH HOMICIDE.16 The Court's Verdict Anent the first assignment of error, Juan and Victor contend that the trial court committed a reversible error in relying on the testimony of Rodolfo, the bus conductor, for convicting them of the crime charged. They aver that although their counsel was able to initially cross-examine Rodolfo, the former failed to continue with and terminate his cross-examination of the

said witness through no fault of his as the witness failed to appear in subsequent proceedings. They assert that even if the testimonies of Rodolfo and Romulo were to be considered, the two witnesses were so petrified during the robbery that they were not able to look at the felons and hence could not positively identify accused-appellants as the perpetrators of the crime. They argue that the police investigators never conducted a police line-up for the identification of the authors of the crime. The contentions of Juan and Victor are not meritorious. There is no factual and legal basis for their claim that they were illegally deprived of their constitutional and statutory right to fully cross-examine Rodolfo. The Court agrees that the right to cross-examine is a constitutional right anchored on due process.17 It is a statutory right found in Section 1(f), Rule 115 of the Revised Rules of Criminal Procedure which provides that the accused has the right to confront and cross-examine the witnesses against him at the trial. However, the right has always been understood as requiring not necessarily an actual cross-examination but merely an opportunity to exercise the right to cross-examine if desired. 18 What is proscribed by statutory norm and jurisprudential precept is the absence of the opportunity to cross-examine.19 The right is a personal one and may be waived expressly or impliedly. There is an implied waiver when the party was given the opportunity to confront and cross-examine an opposing witness but failed to take advantage of it for reasons attributable to himself alone.20 If by his actuations, the accused lost his opportunity to cross-examine wholly or in part the witnesses against him, his right to cross-examine is impliedly waived.21 The testimony given on direct examination of the witness will be received or allowed to remain in the record.22 In this case, the original records show that after several resettings, the initial trial for the presentation by the prosecution of its evidence-in-chief was set on November 18, 1997 and December 5, 1997, both at 9:00 a.m.23 Rodolfo testified on direct examination on November 18, 1997. The counsel of Juan and Victor forthwith commenced his cross-examination of the witness but because of the manifestation of said counsel that he cannot finish his cross-examination, the court ordered the continuation thereof to December 5, 1997.24 On December 5, 1997, Rodolfo did not appear before the court for the continuation of his cross-examination but Rosemarie Manio, the widow of the victim did. The prosecution presented her as witness. Her testimony was terminated. The court ordered the continuation of the trial for the cross-examination of Rodolfo on January 20, 1998 at 8:30 a.m.25 During the trial on January 20, 1998, Rodolfo was present but accused-appellants' counsel was absent. The court issued an

order declaring that for failure of said counsel to appear before the court for his cross-examination of Rodolfo, Victor and Juan waived their right to continue with the cross-examination of said witness.26 During the trial set for February 3, 1998, the counsel of Juan and Victor appeared but did not move for a reconsideration of the court's order dated January 20, 1998 and for the recall of Rodolfo Cacatian for further cross-examination. It behooved counsel for Juan and Victor to file said motion and pray that the trial court order the recall of Rodolfo on the witness stand. Juan and Victor cannot just fold their arms and supinely wait for the prosecution or for the trial court to initiate the recall of said witness. Indeed, the Court held in Fulgado vs. Court of Appeals, et al: xxx The task of recalling a witness for cross examination is, in law, imposed on the party who wishes to exercise said right. This is so because the right, being personal and waivable, the intention to utilize it must be expressed. Silence or failure to assert it on time amounts to a renunciation thereof. Thus, it should be the counsel for the opposing party who should move to cross-examine plaintiff's witnesses. It is absurd for the plaintiff himself to ask the court to schedule the cross-examination of his own witnesses because it is not his obligation to ensure that his deponents are cross-examined. Having presented his witnesses, the burden shifts to his opponent who must now make the appropriate move. Indeed, the rule of placing the burden of the case on plaintiff's shoulders can be construed to extremes as what happened in the instant proceedings. 27 The trial was reset to March 31, April 17 and 24, 1998, all at 8:30 a.m. because of the non-availability of the other witnesses of the prosecution.28 On March 31, 1998, the prosecution presented Dr. Alejandro Tolentino, PO2 Rene de la Cruz and Romulo Digap. During the trial on April 17, 1998, the counsel of Juan and Victor failed to appear. The trial was reset to June 3, 19 and 26, 1998.29 The trial scheduled on June 3, 1998 was cancelled due to the absence of the counsel of Juan and Victor. The court issued an order appointing Atty. Roberto Ramirez as counsel for accused-appellants.30 During the trial on August 26, 1998, Atty. Ramirez appeared in behalf of Juan and Victor. The prosecution rested its case after the presentation of SPO2 Romeo Meneses and formally offered its documentary evidence.

The next trial was set on September 23, 1998 at 8:30 a.m. 31 On November 11, 1998, Juan and Victor commenced the presentation of their evidence with the testimony of Victor.32 They rested their case on January 27, 1999 without any evidence adduced by Juan. Juan and Victor did not even file any motion to reopen the case before the trial court rendered its decision to allow them to cross-examine Rodolfo. They remained mute after judgment was rendered against them by the trial court. Neither did they file any petition for certiorari with the Court of Appeals for the nullification of the Order of the trial court dated January 20, 1998 declaring that they had waived their right to cross-examine Rodolfo. It was only on appeal to this Court that Juan and Victor averred for the first time that they were deprived of their right to cross-examine Rodolfo. It is now too late in the day for Juan and Victor to do so. The doctrine of estoppel states that if one maintains silence when in conscience he ought to speak, equity will debar him from speaking when in conscience he ought to remain silent. He who remains silent when he ought to speak cannot be heard to speak when he should be silent. 33 The contention of accused-appellants Juan and Victor that Rodolfo and Romulo failed to identify them as the perpetrators of the crime charged is disbelieved by the trial court, thus: As can be gathered from the testimonies of the witnesses for the prosecution, on September 28, 1996, the accused boarded at around 3:00 a.m. a Five Star Bus driven by Rodolfo Cacatian, bound to Pangasinan, in Camachile, Balintawak, Quezon City. Twenty (20) minutes or so later, when the bus reached the vicinity of Nabuag, Plaridel, Bulacan, along the North Espressway, the accused with guns in hand suddenly stood up and announced a hold-up. Simultaneously with the announcement of a hold-up, Escote fired his gun upwards. Acuyan, meanwhile, took the gun of a man seated at the back. Both then went on to take the money and valuables of the passengers, including the bus conductor's collections in the amount of P6,000.00. Thereafter, the duo approached the man at the back telling him in the vernacular "Pasensiya ka na pare, papatayin ka namin. Baril mo rin ang papatay sa iyo." They pointed their guns at him and fired several shots oblivious of the plea for mercy of their victim. After the shooting, the latter collapsed on the floor. The two (2) then went back at the front portion of the bus behind the driver's seat and were overheard by the bus driver, Cacatian, talking how easy it

was to kill a man. The robbery and the killing were over in 25 minutes. Upon reaching the Mexico overpass of the Expressway in Pampanga, the two (2) got off the bus. The driver drove the bus to the Mabalacat Police Station and reported the incident. During the investigation conducted by the police, it was found out that the slain passenger was a policeman, SPO1 Jose C. Manio, Jr. of the Caloocan City Police Department. The above version came from Rodolfo Cacatian and Romulo Digap, bus driver and conductor, respectively, of the ill-fated Five Star Bus.34 The Court agrees with the trial court. It may be true that Romulo was frightened when Juan and Victor suddenly announced a holdup and fired their guns upward, but it does not follow that he and Rodolfo failed to have a good look at Juan and Victor during the entire time the robbery was taking place. The Court has held in a catena of cases that it is the most natural reaction of victims of violence to strive to see the appearance of the perpetrators of the crime and to observe the manner in which the crime was committed.35Rodolfo and Romulo had a good look at both Juan and Victor before, during and after they staged the robbery and before they alighted from the bus. The evidence on record shows that when Juan and Victor boarded the bus and while the said vehicle was on its way to its destination, Romulo stationed himself by the door of the bus located in the mid-section of the vehicle. The lights inside the bus were on. Juan seated himself in the middle row of the passengers' seat near the center aisle while Victor stood near the door of the bus about a meter or so from Romulo.36 Romulo, Juan and Victor were near each other. Moreover, Juan divested Romulo of his collection of the fares from the passengers.37 Romulo thus had a face-to-face encounter with Juan. After shooting SPO1 Manio, Jr. at the rear portion of the bus, Juan and Victor passed by where Romulo was standing and gave their instructions to him. Considering all the facts and circumstances, there is no iota of doubt that Romulo saw and recognized Juan and Victor before, during and after the heist.38 Rodolfo looked many times on the rear, side and center view mirrors to observe the center and rear portions of the bus before and during the robbery. Rodolfo thus saw Juan and Victor stage the robbery and kill SPO1 Manio, Jr. with impunity: xxx Q So, the announcement of hold-up was ahead of the firing

of the gun? A Yes, sir.

Q And before the actual firing of the gun it was even still said bad words before saying the hold-up? A After they fired the gun they uttered bad words, sir.

Q Mr. Witness before the announcement of the hold-up you do not have any idea that you will encounter that nature which took place, is that correct? A None, sir.

Q Within the two (2) year[s] period that you are plying the route of Manila to Bolinao that was your first experience of holdup? A Yes, sir.

Q And the speed of above 70 kilometers per hour your total attention is focus in front of the road, correct, Mr. witness? A Once in a while the driver look at the side mirror and the rear view mirror, sir. Q Before the announcement there was no reason for you to look at any at the rear mirror, correct, Mr. witness? Court: Every now and then they usually look at the side mirror and on the rear, that was his statement. Atty. Osorio: (to the witness)

Q Fiscal:

I am asking him if there was no reason for him....

Before the announcement of hold-up, there was no mention. Court: Every now and then. Atty. Osorio: (to the witness) Q When you said every now and then, how often is it, Mr. witness? A I cannot tell how often but I used to look at the mirror once in a while, sir. Q A Q How many mirror do you have, Mr. witness? Four (4), sir. Where are these located?

A Two (2) on the side mirror, center mirror and rear view mirror, sir. Q A The two side mirror protruding outside the bus? Yes, sir, they are in the side of the bus, sir.

Q One of them is located on the left and the other on the right, correct? A Q Yes, sir. You only look at the side mirror when you are going to over

take, Mr. witness? A Q A Q No, sir. Where is this center mirror located, Mr. witness? In the center, sir. What is the purpose of that?

A So that I can see the passengers if they are already settled so that I can start the engine, sir. Q A Q What about the remaining mirror? Rear view mirror, sir. What is the purpose and where is it located?

A The rear view is located just above my head just to check the passengers, sir. Q So that the center mirror and the rear view mirror has the same purpose? A Q They are different, sir. How do you differentiate of (sic) one from the other?

A The center mirror is used to check the center aisle while the rear mirror is for the whole view of the passengers, sir. Q If you are going to look at any of your side mirrors, you will never see any passengers, correct, Mr. witness? A None, sir.

Q If you will look at your center mirror you will only see the aisle and you will never see any portion of the body of your

passengers? A Q A Yes, sir. Seated passengers? It is only focus (sic) on the middle aisle sir.

Q If you look at your rear mirror, you will only see the top portion of the head of your passengers, correct? A Only the portion of their head because they have different hight (sic), sir. Q You will never see any head of your passengers if they were seated from the rear mirror portion, correct, Mr. witness? A Yes, sir.

Q Before the announcement of hold-up, all of your passengers were actually sleeping? A Some of my passengers were sleeping, some were not, sir.

Q But you will agree Mr. witness that when you said every now and then you are using your mirror? It is only a glance, correct? A Yes, sir.

Q And by mere glancing, Mr. witness you were not able to identify any person on the basis of any of your mirror, correct? A sir. If only a glance but when I look at him I can recognize him,

Q You agree a while ago by every now and then it is by glancing, as a driver, Mr. witness by your side mirror? A Not all glancing, there are times when you want to

recognize a person you look at him intently, sir. Q The purposes of your mirror inside your Bus is mainly of the safety of your passengers on board, Mr. witness? A Yes, sir.

Q And as a driver, Mr. witness, you do not used (sic) your mirror to identify the person particularly when you are crossing (sic) at a speed of 70 kilometers per hour? A I do that, sir.

Q How long Mr. witness can you focus your eyes on any of these mirror before getting back your eyes into the main road? A Seconds only, sir.

Q When you said seconds, for how long the most Mr. witness that you can do to fix your eyes on any of your mirrors and the return back of (sic) your eyes into the main road? A Two seconds, sir.

Q At that time Mr. witness, that you were travelling at about 70 kilometers you were glancing every now and then on any of your mirrors at about two seconds, correct? A Yes, sir.

Q And when you heard the announcement of hold-up your natural reaction is to look either at the center mirror or rear mirror for two seconds, correct? A Yes, sir.

Q And you were instructed Mr. witness to even accelerate your speed upon the announcement of hold-up?

A Fiscal:

No sir, they just told me to continue my driving, sir.

May I request the vernacular "alalay ka lang, steady ka lang. Atty. Osorio: (to the witness) Q A Steady at what speed? 70 to 80, sir.

Q What is the minimum speed, Mr. witness for Buses along North Expressway? A 60 kilometers, sir.

Q Are you sure of that 60 kilometers, minimum? Are you sure of that? A Yes, sir.

Q That is what you know within the two (2) years that you are driving? Along the North Expressway? A Yes, sir.

Q And while you were at the precise moment, Mr. witness, you were being instructed to continue driving, you were not looking to anybody except focus yours eyes in front of the road? Fiscal: May I request the vernacular. Nakikiramdam ako. Atty. Osorio:

(to the witness) Q That's what you are doing?

A During the time they were gathering the money from my passengers, that is the time when I look at them, sir. Q A For two seconds, correct? Yes, sir.

Q Which of the four (4) mirrors that you are looking at within two seconds, Mr. witness you said you are nakikiramdam? A Q A The rear view mirror, sir. The Bus that you were driving is not an air con bus? Ordinary bus, sir.

Q And at what time your passengers, most of your passengers were already sleep (sic), Mr. witness? A Most of my passengers, sir. Some of my passengers were still sleep (sic), sir. Q A And the lights inside the Bus are off, correct Mr. witness? The lights were on, sir.

Q While the passengers were sleep (sic) the light was still on, Mr. witness, at the time of the trip.? A Yes, sir.

Q Now, Mr. witness when the hold-up was announced and then when you look for two seconds in the rear mirror you were not able to see any one, you were only sensing what is happening inside your bus?

I saw something, sir.

Q You saw something in front of your Bus? You can only see inside when you are going to look at the mirror? A Yes, sir.

Q That is the only thing that you see every now and then, you said you were looking at the mirror? A Yes, sir.

Q How many times, Mr. witness did you look Mr. witness at the rear mirror during the entire occurance (sic) of the alleged hold-up? A There were many times, sir.

Q The most that you can remember, please inform the Honorable Court? During the occurance (sic) of the alleged holdup, Mr. witness? A Q A I cannot estimate, sir. How long did the alleged hold-up took place? More or less 25 minutes, sir.39

When Rodolfo gave his sworn statement to the police investigators in Plaridel, Bulacan after the robbery, he described the felons. When asked by the police investigators if he could identify the robbers if he see them again, Rodolfo declared that he would be able to identify them: 8. T: Natatandaan mo ba kung ano ang itsura ng dalawang lalaki na nanghold-up sa minamaneho mong bus ? S: Halos magkasing taas, 5'4" o 5'5" katam-taman ang pangangatawan, parehong nakapantalon ng maong naka-suot ng jacket na maong, parehong naka rubber shoes at pareho ring naka sumbrero.

9. T: Kung sakali bang makikita mo pa ang mga ito ay makikilala mo pa sila? S: Makikilala ko po sila.40

When asked to identify the robbers during the trial, Rodolfo spontaneously pointed to and identified Juan and Victor: Q Fiscal:

(to the witness) xxx Q Those two man (sic) who stated that it was a hold-up inside the bus and who fired the gun are they inside the Court room (sic) today? A Q Yes, ma'am. Point to us?

Interpreter: Witness pointing to a man wearing red T-shirt and when asked his name answered Victor Acuyan and the man wearing green T-shirt and when asked his name answered Juan Gonzales.41 For his part, Romulo likewise spontaneously pointed to and identified Juan and Victor as the culprits when asked by the prosecutor to identify the robbers from among those in the courtroom: xxx Q You said that you were robbed inside the bus, how does (sic) the robbing took place? A They announced a hold up ma'am, afterwards, they

confiscated the money of the passengers including my collections. Q You said "they" who announced the hold up, whose (sic) these "they" you are referring to? A Those two (2), ma'am.

Interpreter: Witness pointing to the two accused. Public Pros.: May we request that the accused be identified, Your Honor. Court: (to both accused) What are your names? A Juan Escote, Your Honor. Victor Acuyan, Your Honor.

Public Pros.: May we know from the accused if his name is Juan Escote Gonzales because he just said Juan Escote. In the Information, it is one Juan Gonzales, Jr., so, we can change, Your Honor.42 Moreover, when he was accosted by SPO3 Romeo Meneses on October 25, 1997 in Tarlac, Tarlac, Juan was in possession of the identification card43 of the slain police officer. Juan failed to explain to the trial court how and under what circumstances he came into possession of said identification card. Juan must necessarily be considered the author of the robbery and the killing of SPO1 Manio, Jr. In People v. Mantung,44 we held: xxx [T]he recovery of part of the loot from Mantung or the time of his arrest gave rise to a legal presumption of his guilt. As this

Court has held, '[I]n the absence of an explanation of how one has come into possession of stolen effects belonging to a person wounded and treacherously killed, he must necessarily be considered the author of the aggression and death of the said person and of the robbery committed on him.' While police investigators did not place Juan and Victor in a police line-up for proper identification by Rodolfo and Romulo, it cannot thereby be concluded that absent such line-up, their identification by Romulo and Rodolfo as the authors of the robbery with homicide was unreliable. There is no law or police regulation requiring a police line-up for proper identification in every case. Even if there was no police line-up, there could still be proper and reliable identification as long as such identification was not suggested or instigated to the witness by the police.45 In this case, there is no evidence that the police officers had supplied or even suggested to Rodolfo and Romulo the identities of Juan and Victor as the perpetrators of the robbery and the killing of SPO1 Manio, Jr. The Felony Committed by Juan and Victor The Court finds that the trial court committed no error in convicting Juan and Victor of robbery with homicide. Article 294, paragraph 1 of the Revised Penal Code, as amended by Republic Act 7659, reads: Art. 294. - Robbery with violence against or intimidation of persons. - Penalties. - Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson. To warrant the conviction of Juan and Victor for the said charge, the prosecution was burdened to prove the confluence of the following essential elements: xxx (a) the taking of personal property with the use of violence or intimidation against a person; (b) the property thus taken belongs to another; (c) the taking is characterized by intent to gain or animus lucrandi and (d) on the occasion of the robbery or by

reason thereof, the crime of homicide, which is therein used in a generic sense, was committed. xxx46 The intent to rob must precede the taking of human life. 47 In robbery with homicide, so long as the intention of the felons was to rob, the killing may occur before, during or after the robbery. In People v. Barut,48 the Court held that: In the controlling Spanish version of article 294, it is provided that there is robbery with homicide "cuando con motivo o con ocasin del robo resultare homicidio". "Basta que entre aquel este exista una relacin meramente ocasional. No se requiere que el homicidio se cometa como medio de ejecucin del robo, ni que el culpable tenga intencin de matar, el delito existe segn constanta jurisprudencia, aun cuando no concurra animo homicida. Incluso si la muerte sobreviniere por mero accidente, siempre que el homicidio se produzca con motivo con ocasin del robo, siendo indiferente que la muerte sea anterior, coetnea o posterior a ste" (2 Cuello Calon, Derecho Penal, 1975 14th Ed. P. 872). Even if the victim of robbery is other than the victim of the homicide committed on the occasion of or by reason of the robbery, nevertheless, there is only one single and indivisible felony of robbery with homicide. All the crimes committed on the occasion or by reason of the robbery are merged and integrated into a single and indivisible felony of robbery with homicide. This was the ruling of the Supreme Court of Spain on September 9, 1886, et sequitur cited by this Court in People v. Mangulabnan, et al.49 We see, therefore, that in order to determine the existence of the crime of robbery with homicide it is enough that a homicide would result by reason or on the occasion of the robbery (Decision of the Supreme Court of Spain of November 26, 1892, and January 7, 1878, quoted in 2 Hidalgo's Penal Code, p. 267 and 259-260, respectively). This High Tribunal speaking of the accessory character of the circumstances leading to the homicide, has also held that it is immaterial that the death would supervene by mere accident (Decision of September 9, 1886; October 22, 1907; April 30, 1910 and July 14, 1917), provided that the homicide be produced by reason or on occasion of the robbery, inasmuch as it is only the result obtained, without reference or distinction as to

the circumstances, causes, modes or persons intervening in the commission of the crime, that has to be taken into consideration (Decision of January 12, 1889 see Cuello Calon's Codigo Penal, p. 501-502). Case law has it that whenever homicide has been committed by reason of or on the occasion of the robbery, all those who took part as principals in the robbery will also be held guilty as principals of robbery with homicide although they did not take part in the homicide, unless it appears that they endeavored to prevent the homicide.50 In this case, the prosecution proved beyond reasonable doubt that Juan and Victor conspired and confabulated together in robbing the passengers of the Five Star Bus of their money and valuables and Romulo of his collections of the fares of the passengers and in killing SPO1 Manio, Jr. with impunity on the occasion of the robbery. Hence, both Juan and Victor are guilty as principals by direct participation of the felony of robbery with homicide under paragraph 1, Article 294 of the Revised Penal Code, as amended by R.A. 7659, punishable by reclusion perpetua to death. The Proper Penalty The trial court imposed the supreme penalty of death on Juan and Victor for robbery with homicide, defined in Article 294, paragraph 1 of the Revised Penal Code, punishable with reclusion perpetua. Under Article 63, paragraph 1 of the Revised Penal Code, the felons should be meted the supreme penalty of death when the crime is committed with an aggravating circumstance attendant in the commission of the crime absent any mitigating circumstance. The trial court did not specify in the decretal portion of its decision the aggravating circumstances attendant in the commission of the crime mandating the imposition of the death penalty. However, it is evident from the findings of facts contained in the body of the decision of the trial court that it imposed the death penalty on Juan and Victor on its finding that they shot SPO1 Manio, Jr. treacherously on the occasion of or by reason of the robbery: xxx The two (2) accused are incomparable in their ruthlessness and base regard for human life. After stripping the passengers of their money and valuables, including the firearm of the victim, they came to decide to execute the latter seemingly because he was a

police officer. They lost no time pouncing him at the rear section of the bus, aimed their firearms at him and, in a derisive and humiliating tone, told him, before pulling the trigger, that they were rather sorry but they are going to kill him with his own gun; and thereafter, they simultaneously fired point blank at the hapless policeman who was practically on his knees begging for his life. Afterwhich, they calmly positioned themselves at the front boasting for all to hear, that killing a man is like killing a chicken ("Parang pumapatay ng manok"). Escote, in particular, is a class by himself in callousness. xxx.51 The Court agrees with the trial court that treachery was attendant in the commission of the crime. There is treachery when the following essential elements are present, viz: (a) at the time of the attack, the victim was not in a position to defend himself; and (b) the accused consciously and deliberately adopted the particular means, methods or forms of attack employed by him.52 The essence of treachery is the sudden and unexpected attack by an aggressor on the unsuspecting victim, depriving the latter of any chance to defend himself and thereby ensuring its commission without risk of himself. Treachery may also be appreciated even if the victim was warned of the danger to his life where he was defenseless and unable to flee at the time of the infliction of the coup de grace.53 In the case at bar, the victim suffered six wounds, one on the mouth, another on the right ear, one on the shoulder, another on the right breast, one on the upper right cornea of the sternum and one above the right iliac crest. Juan and Victor were armed with handguns. They first disarmed SPO1 Manio, Jr. and then shot him even as he pleaded for dear life. When the victim was shot, he was defenseless. He was shot at close range, thus insuring his death. The victim was on his way to rejoin his family after a hard day's work. Instead, he was mercilessly shot to death, leaving his family in grief for his untimely demise. The killing is a grim example of the utter inhumanity of man to his fellowmen. The issues that now come to fore are (1) whether or not treachery is a generic aggravating circumstance in robbery with homicide; and if in the affirmative, (b) whether treachery may be appreciated against Juan and Victor. On the first issue, we rule in the affirmative. This Court has ruled over the years54 that treachery is a generic aggravating circumstance in the felony of robbery with homicide, a special complex crime (un delito especial complejo) and at the same time a single and indivisible offense (uno solo indivisible).55 However, this Court in two cases has held that robbery with homicide is a crime against property and hence treachery which is appreciated only to crimes against persons should not be

appreciated as a generic aggravating circumstance. 56 It held in another case that treachery is not appreciated in robbery with rape precisely because robbery with rape is a crime against property. 57 These rulings of the Court find support in case law that in robbery with homicide or robbery with rape, homicide or rape are merely incidents of the robbery, with robbery being the main purpose and object of the criminal. 58 Indeed, in People vs. Cando,59 two distinguished members of this Court advocated a review of the doctrine that treachery is a generic aggravating circumstance in robbery with homicide. They opined that treachery is applicable only to crimes against persons. After all, in People vs. Bariquit,60 this Court in a per curiam decision promulgated in year 2000 declared that treachery is applicable only to crimes against persons. However, this Court held in People vs. Cando that treachery is a generic aggravating circumstance in robbery with homicide, citing its prior rulings that in robbery with homicide, treachery is a generic aggravating circumstance when the victim of homicide is killed with treachery. This Court opted not to apply its ruling earlier that year in People vs. Bariquit. Legal Luminaries in criminal law and eminent commentators of the Revised Penal Code are not in full accord either. Chief Justice Ramon C. Aquino (Retired) says that treachery is appreciated only in crimes against persons as defined in Title 10, Book Two of the Code. 61 Chief Justice Luis B. Reyes (Retired) also is of the opinion that treachery is applicable only to crimes against persons.62 However, Justice Florenz D. Regalado (Retired) is of a different view.63 He says that treachery cannot be considered in robbery but can be appreciated insofar as the killing is concerned, citing the decisions of this Court in People vs. Balagtas64 for the purpose of determining the penalty to be meted on the felon when the victim of homicide is killed with treachery. It must be recalled that by Royal Order of December 17, 1886 the 1850 Penal Code in force in Spain, as amended by the Codigo Penal Reformado de 1870 was applied in the Philippines. The Penal Code of 1887 in the Philippines was amended by Act 3815, now known as the Revised Penal Code, which was enacted and published in Spanish. In construing the Old Penal Code and the Revised Penal Code, this Court had accorded respect and persuasive, if not conclusive effect to the decisions of the Supreme Court of Spain interpreting and construing the 1850 Penal Code of Spain, as amended by Codigo Penal Reformado de 1870.65

Article 14, paragraph 16 of the Revised Penal Code reads: ART. 14. Aggravating circumstances. The following are aggravating circumstances: xxx 16. That the act be committed with treachery (alevosia). There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. The law was taken from Chapter IV, Article 10, paragraph 2 of the 1860 Penal Code and the Codigo Penal Reformado de 1870 of Spain which reads: Art. 10 ...2. Ejecutar el hecho con alevosia. Hay alevosia cuando el culpable comete cualquiera de los delitos contra las personas empleando medios, modos o for mas en la ejecucion que tiendan directa y especialmente a asegurarla sin riesgo para su persona, que proceda de la defensa que pudiera hacer el ofendido. xxx Article 14, paragraph 16 of the Revised Penal Code is a reproduction of the 1850 Penal Code of Spain and the Codigo Penal Reformado de 1870 with a slight difference. In the latter law, the words "las personas" (the persons) are used, whereas in Article 14, paragraph 6, of the Revised Penal Code, the words "the person" are used. Going by the letter of the law, treachery is applicable only to crimes against persons as enumerated in Title Eight, Chapters One and Two, Book II of the Revised Penal Code. However, the Supreme Court of Spain has consistently applied treachery to robbery with homicide, classified as a crime against property. Citing decisions of the Supreme Court of Spain, Cuello Calon, a noted commentator of the Spanish Penal Code says that despite the strict and express reference of the penal code to treachery being applicable to persons, treachery also applies to other crimes such as robbery with homicide:66 Aun cuando el Codigo solo se refiere a los delitos contra las

personas, cabe estimarla en los que no perteneciendo a este titulo se determinan por muerte o lesiones, como, en el robo con homicidio, y en el homicidio del Jefe del Estado que es un delito contra la seguridad interior del Estado, y no obstante la referencia estricta del texto legal a los delitos contra las personas no es la alevosia aplicable a la mayoria de ellos, no lo es en el homicidio, pues como su concurrencia lo cualifica lo transforma en delito distinto, en asesinato, ni en el homicidio consentido (art. 409), ni en la ria tumultuaria (art. 408) ni en el infanticidio (art. 410). xxx. 67 Viada also says that treachery is appreciated in crimes against persons (delitos contra personas) and also in robbery with homicide (robo con homicidio).68 "Contra las personas. - Luego la circunstancia de alevosia solo puede apreciarse en los delitos provistos desde el art. 417 al 447, y en algun otro, como el de robo conhomicidio, atentario, a la vez que contra la propriedad, contra la persona." Thus, treachery is a generic aggravating circumstance to robbery with homicide although said crime is classified as a crime against property and a single and indivisible crime. Treachery is not a qualifying circumstance because as ruled by the Supreme Court of Spain in its decision dated September 11, 1878, the word "homicide" is used in its broadest and most generic sense.69 Article 62, paragraph 1 of the Revised Penal Code provides that in diminishing or increasing the penalty for a crime, aggravating circumstances shall be taken into account. However, aggravating circumstances which in themselves constitute a crime specially punishable by law or which are included by the law in defining a crime and prescribing a penalty therefor shall not be taken into account for the purpose of increasing the penalty.70 Under paragraph 2 of the law, the same rule shall apply with respect to any aggravating circumstances inherent in the crime to such a degree that it must of necessity accompany the commission thereof. 1. Aggravating circumstances which in themselves constitute a crime specially punishable by law or which are included by the law in defining a crime and prescribing the penalty therefor shall not

be taken into account for the purpose of increasing the penalty. xxx 2. The same rule shall apply with respect to any aggravating circumstances inherent in the crime to such a degree that it must be of necessity accompany the commission thereof. Treachery is not an element of robbery with homicide. Neither does it constitute a crime specially punishable by law nor is it included by the law in defining the crime of robbery with homicide and prescribing the penalty therefor. Treachery is likewise not inherent in the crime of robbery with homicide. Hence, treachery should be considered as a generic aggravating circumstance in robbery with homicide for the imposition of the proper penalty for the crime. In its Sentencia dated March 14, 1877, the Supreme Court of Spain declared that treachery is a generic aggravating circumstance not only in crimes against persons but also in robbery with homicide. The high court of Spain applied Article 79 of the Spanish Penal Code (Article 62 of the Revised Penal Code) and ruled that since treachery is not a constitutive element of the crime of robbery with homicide nor is it inherent in said crime, without which it cannot be committed, treachery is an aggravating circumstance to said crime. The high court of Spain was not impervious of the fact that robbery with homicide is classified as a crime against property. Indeed, it specifically declared that the classification of robbery with homicide as a crime against property is irrelevant and inconsequential in the application of treachery. It further declared that it would be futile to argue that in crimes against property such as robbery with homicide, treachery would have no application. This is so, the high tribunal ruled, because when robbery is coupled with crimes committed against persons, the crime is not only an assault (ataca) on the property of the victims but also of the victims themselves (ofende) : xxx que la circunstancia agravante de alevosia ni es constitutiva del delito complejo de robo y homicidio, ni de tal modo inherente que sin ella no pueda cometerse, sin que quepa arguir que en los delitos contra la propiedad no debe aquella tener aplicacion, porque cuando estos son complejos de los que se cometen contra las personas, no solo se ataca a la propiedad, sino que se ofende a estas. xxx71

In fine, in the application of treachery as a generic aggravating circumstance to robbery with homicide, the law looks at the constituent crime of homicide which is a crime against persons and not at the constituent crime of robbery which is a crime against property. Treachery is applied to the constituent crime of "homicide" and not to the constituent crime of "robbery" of the special complex crime of robbery with homicide . The crime of robbery with homicide does not lose its classification as a crime against property or as a special complex and single and indivisible crime simply because treachery is appreciated as a generic aggravating circumstance. Treachery merely increases the penalty for the crime conformably with Article 63 of the Revised Penal Code absent any generic mitigating circumstance. In its Sentencia, dated July 9, 1877, the high tribunal of Spain also ruled that when the victim of robbery is killed with treachery, the said circumstance should be appreciated as a generic aggravating circumstance in robbery with homicide: xxx que si aparece probado que el procesado y su co-reo convinieron en matar a un conocido suyo, compaero de viaje, para lo cual desviaron cautelosamente los carros que guiaban, en uno de los cuales iba el interfecto, dirigiendolos por otro camino que conducia a un aljibon, y al llegar a este, valiendose de engao para hacer bajar a dicho interfecto, se lanzaron de improviso sobre el, tirandolo en tierra, robandole el dinero, la manta y los talegos que llevaba, y atandole al pie una piedra de mucho peso, le arrojaron con ella a dicho aljibon, dados estos hechos, no cabe duda que constituyen el delito complejo del art. 516, num. I, con la circunstancia agravante de alevosia, puesto que los medios, forma y modos empleados en la ejecucion del crimen tendieron directa y especialmente a asegurarla sin riesgo para sus autores, procedente de la defensa del ofendido .72 In sum then, treachery is a generic aggravating circumstance in robbery with homicide when the victim of homicide is killed by treachery. On the second issue, we also rule in the affirmative. Article 62, paragraph 4 of the Revised Penal Code which was taken from Article 80 of the Codigo Penal Reformado de 1870,73 provides that circumstances which consist in the material execution of the act, or in the means employed to accomplish it, shall serve to aggravate or mitigate the liability

of those persons only who had knowledge of them at the time of the execution of the act or their cooperation therein. The circumstances attending the commission of a crime either relate to the persons participating in the crime or into its manner of execution or to the means employed. The latter has a direct bearing upon the criminal liability of all the accused who have knowledge thereof at the time of the commission of the crime or of their cooperation thereon. 74 Accordingly, the Spanish Supreme Court held in its Sentenciadated December 17, 1875 that where two or more persons perpetrate the crime of robbery with homicide, the generic aggravating circumstance of treachery shall be appreciated against all of the felons who had knowledge of the manner of the killing of victims of homicide, with the ratiocination that: xxx si por la Ley basta haberse ejecutado un homicidio simple con motivo ocasin del robo para la imposicion de la pena del art. 516, num. I, no puede sere ni aun discutible que, concurriendo la agravante de alevosia, se aumente la criminalidad de los delincuentes; siendo aplicable a todos los autores del hecho indivisible, porque no es circunstancia que afecte a la personalidad del delincuente, de las que habla el art. 80 del Codigo penal en su primera parte, sino que consiste en la ejecusion material del hecho y en los medios empleados para llevarle a cabo, cuando de ellos tuvieron conocimiento todos los participantes en el mismo por el concierto previo y con las condiciones establecidad en la segunda parte del citado articulo. 75 Be that as it may, treachery cannot be appreciated against Juan and Victor in the case at bar because the same was not alleged in the Information as mandated by Section 8, Rule 110 of the Revised Rules on Criminal Procedures which reads: 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. Although at the time the crime was committed, generic aggravating circumstance need not be alleged in the Information, however, the general rule had been applied retroactively because if it is more favorable to the accused.76 Even if treachery is proven but it is not alleged in the

information, treachery cannot aggravate the penalty for the crime. There being no modifying circumstances in the commission of the felony of robbery with homicide, Juan and Victor should each be meted the penalty of reclusion perpetuaconformably with Article 63 of the Revised Penal Code. Civil Liability of Juan and Victor The trial court awarded the total amount of P300,000.00 to the heirs of SPO1 Manio, Jr. The court did not specify whether the said amounts included civil indemnity for the death of the victim, moral damages and the lost earnings of the victim as a police officer of the PNP. The Court shall thus modify the awards granted by the trial court. Since the penalty imposed on Juan and Victor is reclusion perpetua, the heirs of the victim are entitled to civil indemnity in the amount of P50,000.00. The heirs are also entitled to moral damages in the amount of P50,000.00, Rosemarie Manio having testified on the factual basis thereof.77 Considering that treachery aggravated the crime, the heirs are also entitled to exemplary damages in the amount of P25,000.00. This Court held in People vs. Catubig78 that the retroactive application of Section 8, Rule 110 of the Revised Rules of Criminal Procedure should not impair the right of the heirs to exemplary damages which had already accrued when the crime was committed prior to the effectivity of the said rule. Juan and Victor are also jointly and severally liable to the said heirs in the total amount of P30,000.00 as actual damages, the prosecution having adduced evidence receipts for said amounts. The heirs are not entitled to expenses allegedly incurred by them during the wake as such expenses are not supported by receipts.79 However, in lieu thereof, the heirs are entitled to temperate damages in the amount of P20,000.00.80 The service firearm of the victim was turned over to the Evidence Custodian of the Caloocan City Police Station per order of the trial court on October 22, 1997.81 The prosecution failed to adduce documentary evidence to prove the claim of Five Star Bus, Inc. in the amount of P6,000.00. Hence, the award should be deleted. However, in lieu of actual damages, the bus company is entitled to temperate damages in the amount of P3,000.00. 82 The heirs are likewise entitled to damages for the lost earnings of the victim. The evidence on record shows that SPO1 Manio, Jr. was born on August 25, 1958. He was killed on September 28, 1996 at the age of 38.

He had a gross monthly salary as a member of the Philippine National Police of P8,065.00 or a gross annual salary of P96,780.00. Hence, the heirs are entitled to the amount of P1,354,920.00 by way of lost earnings of the victim computed, thus: Age of the victim Life expectancy = 38 years old = 2/3 x (80 age of the victim at the time of death) = 2/3 x (80-38) = 2/3 x 42 = 28 years Gross Annual Income = gross monthly income x 12 months = P8,065.00 x 12 = P96,780.00 Living Expenses = 50% of Gross Annual Income = P96,780.00 x 0.5 = P48,390.00 Lost Earning Capacity = Life expectancy x [Gross Annual Income-Living expenses] = 28 x [P96,780.00 P48,390.00] = 28 x P48,390.00 = P1,354,920.00 IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Bulacan is hereby AFFIRMED with MODIFICATIONS. Accusedappellants Juan Gonzales Escote, Jr. and Victor Acuyan are hereby found guilty beyond reasonable doubt of the felony of robbery with homicide defined in Article 294, paragraph 1 of the Revised Penal Code and, there being no modifying circumstances in the commission of the felony, hereby metes on each of them the penalty of RECLUSION PERPETUA. Said accused-appellants are hereby ordered to pay jointly and severally the heirs of the victim SPO1 Jose C. Manio, Jr. the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P1,349,920.00 for lost earnings, P30,000.00 as actual damages and P25,000.00 as exemplary damages. The award of P6,000.00 to the Five Star Bus, Inc. is deleted. However, the said corporation is awarded the amount of P3,000.00 as

temperate damages. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Carpio, Austria-Martinez, Corona, Carpio-Morales, and Azcuna, JJ., concur. Vitug J., please see separate opinion. Ynares-Santiago, J., I join J. Vitug's separate opinion. Sandoval-Gutierrez, JJ., join J. Vitug's separate opinion.

Separate Opinion VITUG, J.: Should an attendant aggravating circumstance of treachery, exclusive to crimes against persons, be appreciated in the special complex crime of robbery with homicide which Article 294 of the Revised Penal Code categorizes as a crime against property? I humbly submit that it should not be appreciated. A brief background. At past midnight on 28 September 1996, a Five Star passenger bus with plate No. ABS-793, bound for Bolinao from Manila, stopped at the Balintawak junction to pick up some passengers. Six passengers, among them victor Acuyan and Juan Gonzales Escote, boarded the bus. Escote seated himself on the third seat near the aisle while Acuyan took the mid-portion of the vehicle beside the bus conductor. Along the highway in Plaridel, Bulacan, passengers Escote and Acuyan suddenly stood up, took their positions and declared a holdup. Escote fired his gun upwards, jolting to consciousness the sleepy and dozing passengers. The duo promptly divested the passengers of their valuables. The bus conductor, Romulo Digap, was dispossessed of the fares he earlier collected from the passengers. When the two repaired to the rear end of the bus, they came upon SPO1 Jose C. Manio, a passenger on his way to Angeles City. The felons demanded that Manio show them his

identification card and wallet. Manio took out his identification card and his service gun. At this point, the duo told the hapless law officer: "Pasensya ka na pare, papatayin ka namin, baril mo rin ang papatay sa iyo." Ignoring his pleas for mercy, the robbers mercilessly and repeatedly shot Manio to death. The two then proceeded to the driver's seat. Rodolfo Caciatan, the driver, overheard one of the felons boast: "Ganyan lang ang pumatay ng tao. Parang pumapatay ng manok." The other said: "Ayos na naman tayo pare. Malaki-laki ito." After warning Caciatan not to report the incident to the authorities, the two alighted at an overpass in Mexico, Pampanga. The bus driver and the bus conductor reported the incident to the police authorities in Dau, Mabalacat, Pampanga. The lifeless body of SPO1 Manio, Jr., was brought to a nearby funeral parlor where Dr. Alejandro D. Tolentino performed an autopsy. Less than a month later, on 25 October 1996, about midnight, SPO3 Romeo Meneses, the team leader of Alert Team No. 1 of the Tarlac Police Station, and SPO3 Florante S. Ferrer were at a checkpoint along the Tarlac national highway. The police officers were diverting the traffic flow to the Sta. Rosa Road because of the temporary closure of the BambangConcepcion bridge to motorists. Meneses stopped the driver of a whitecolored taxicab without any plate number. The driver turned out to be Juan Gonzales Escote, Jr. Escote introduced himself to be a police officer. When asked to present his identification card, Escote at once produced the card issued to and in the name of SPO1 Manio. Meneses became suspicious after noticing that the card had already expired. When asked to produce a new pay slip, Escote was not able to show any. Amidst intensive probing, Escote finally confessed that he was not a policeman. Meneses forthwith brought Escote to the police station where five live bullets of a 9-millimeter firearm were confiscated from him. Escote owned responsibility for the highway robbery committed aboard the Five Star passenger bus and for the death of SPO1 Manio, Jr. Escote was turned over to the custody of the Plaridel Police Station where the bus conductor, Romulo Digap, later identified Escote as having been one of the two robbers. A further investigation on the case led to the arrest of Victor Acuyan in Laoang, Northern Samar. On 04 April 1997, an Information for robbery with homicide was filed before the Regional Trial Court of Bulacan against Juan Gonzales Escote and Victor O. Acuyan. When arraigned, Escote and Acuyan entered a plea of not guilty. The trial ensued. After the prosecution had rested its case, Escote escaped from the provincial jail. Only Acuyan was able to adduce evidence in his defense. Acuyan denied the charge and interposed the defense of alibi. At the time of the robbery, he claimed, he

was in Laoang, Samar, for the town fiesta and had a drinking spree with friends, after which they attended a public dance that lasted until dawn of the next day. He denied having met Juan Escote before. On 14 January 1999, Juan Escote was re-arrested in Daet, Camarines Norte, but he chose not to adduce any evidence in his behalf. The trial court found Juan Escote and Victor Acuyan guilty beyond reasonable doubt of the crime of robbery with homicide and meted upon each of them the penalty of death. In imposing the penalty of death upon appellants, the trial court considered treachery as an aggravating circumstance as to justify its imposition of the maximum penalty of death. The ponencia, while finding that treachery could not be appreciated for not having been aptly alleged in the information, expressed in an obiter, however, that had it been otherwise, i.e., that had treachery been properly alleged, this circumstance could have aggravated the crime. It is on the last pronouncement that I beg to differ. Unlike ordinary complex crimes, robbery with homicide, defined by Article 294 of the Revised Penal Code, is a special complex crime against property, explicitly carrying a corresponding penalty of reclusion perpetua to death. In an ordinary complex crime, Article 48 of the Revised Penal Code expresses that "the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period ." Article 48 means then that in the imposition of the penalty for such an ordinary complex crime, i.e., where no specific penalty is prescribed for the complex crime itself, the composite offenses and their respective penalties are individually factored, and it is possible, indeed warranted, that any aggravating circumstance, generic or qualified, even if it be peculiar to only one of the constituent crimes, can and should be logically considered in order to determine which of the composite crimes is the "most serious crime," the penalty for which shall then "be applied in its maximum period." The rule evidently is not in square with a special complex crime, like robbery with homicide, where the law effectively treats the offense as an individual felony in itself and then prescribes a specific penalty therefore. Article 294 is explicit, and it provides"Art. 294. Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer:

"(1) The penalty of reclusion perpetua to death, when by reason or on the occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson." There being just an independent prescribed penalty for the offense, any circumstance that can aggravate that penalty should be germane and generic not to one but to both of the constituent offenses that comprise the elements of the crime.1 The suggestion that treachery could be appreciated "only insofar" as the killing is concerned would unavoidably be to consider and hold robbery and homicide as being separately penalized and to thus discount its classification under Article 294 of the Code as a distinct crime itself with a distinct penalty prescribed therefor. Most importantly, such interpretation would be to treat the special complex crime of robbery with homicide no differently from ordinary complex crimes defined under Article 48, where the composite crimes are separately regarded and weighed in the ultimate imposition of the penalty. If such were intended, the law could have easily so provided, with the penalty for the higher of the two offenses to be then accordingly imposed on the malefactor. In prescribing, however, the penalty of reclusion perpetua to death, where homicide results by reason or on occasion of the robbery, the law has virtually taken into account the particularly "nefarious" nature of the crime, where human life is taken, howsoever committed, to pursue the criminal intent to gain with the use of violence against or intimidation of any person. Distinct penalties prescribed by law in special complex crimes is in recognition of the primacy given to criminal intent over the overt acts that are done to achieve that intent. This conclusion is made implicit in various provisions of the Revised Penal Code. Thus, practically all of the justifying circumstances, as well as the exempting circumstances of accident (paragraph 4, Article 12) and lawful or insuperable cause (paragraph 7, Article 12), are based on the lack of criminal intent. 2 In felonies committed by means of dolo, as opposed to those committed by means of culpa (including offenses punished under special laws), criminal intent is primordial and overt acts are considered basically as being mere manifestations of criminal intent. Paragraph 2, Article 4, of the Revised Penal Code places emphasis on "intent" over effect, as it assigns criminal liability to one who has committed an "impossible crime," said person having intended and pursued such intent to commit a felony although, technically, no crime has actually been committed. Article 134 of the same Code, penalizing the crime of rebellion, imposes a distinct penalty, the rebel being moved by a single intent which is to overthrow the existing

government, and ignores individual acts committed in the furtherance of such intent. If a circumstance, peculiar to only one of the composite crimes, could at all be allowed to aggravate the penalty in robbery with homicide, it should be with respect to the main offense of robbery, the intent to gain being the moving force that impels the malefactor to commit the crime. The attendant offense of homicide cannot be further modified, "homicide" this time being so understood, as it should be, in its generic sense, comprehending even murder or parricide, when committed "by reason or on the occasion of the robbery." The generic character of "homicide" in this special complex crime, has been exemplified, for instance, in People vs. Mangulabnan,3 where the court has held that, "[i]n order to determine the existence of the crime of robbery with homicide, it is enough that a homicide would result by reason or on the occasion of the robbery and it is immaterial that the death would supervene by mere accident provided that the homicide be produced by reason or on occasion of the robbery inasmuch as it is only the result obtained, without reference or distinction as to the circumstances, causes , modes or persons intervening in the commission of the crime, that has to be taken into consideration." 4 If the term "homicide" were not to be understood in its generic sense, an aggravating circumstance, such as evident premeditation or treachery, would qualify the killing into murder. Two separate crimes of robbery and homicide inevitably would result that effectively would place the two felonies outside the coverage of Article 294. And, as to whether or not those crimes should be complexed with each other would depend on the attendance of the requisites enumerated in Article 48 for ordinary complex crimes, i.e., a) that a single act constitute two or more grave or less grave felonies or, b) that an offense is a necessary means for committing the other. It is on the foregoing predicate, I am convinced, that this Court in People vs. Timple5 has rejected the idea of appreciating treachery as being an aggravating circumstance in the crime of robbery with homicide, an offense, I might repeat, is by law classified as a crime against property . I certainly will not view the ruling as having been made in any cavalier fashion and with little or no effort for an introspective ratiocination. Timple has, in fact, been stressed in People vs. Arizobal;6 viz: "But treachery was incorrectly considered by the trial court. The

accused stand charged with, tried and convicted of robbery with homicide. This special complex crime is primarily classified in this jurisdiction as a crime against property, and not against persons, homicide being merely an incident of robbery with the latter being the main purpose and object of the criminals. As such, treachery cannot be validly appreciated as an aggravating circumstance under Art. 14 of The Revised Penal Code. (People v. Bariquit, G.R. No. 122733, 2 October 2000, 341 SCRA 600.) This is completely a reversal of the previous jurisprudence on the matter decided in a litany of cases beforePeople v. Bariquit."7 G.R. No. L-19491 August 30, 1968 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. APOLONIO APDUHAN, JR. alias JUNIOR, ET AL., defendants, APOLONIO APDUHAN, JR. alias JUNIOR, defendant-appellant. Office of the Solicitor General for plaintiff-appellee. Alberto M. Meer for defendant-appellant. CASTRO, J.: This is an automatic review of the judgment rendered on August 30, 1961 by the Court of First Instance of Bohol (Judge Hipolito Alo presiding) convicting Apolonio Apduhan, Jr. of robbery with homicide and sentencing him to death and "to idemnify the heirs of the deceased Geronimo Miano in the amount of P6,000.00, to indemnify the heirs of the other deceased Norberto Aton in the same amount of P6,000.00 ..." On August 2, 1961 the accused Apduhan, then represented by Atty. David Ocangas, together with his co-accused Rodulfo Huiso and Felipe Quimson, both represented by Atty. David Tirol, pleaded not guilty to a second amended information which recites:. The undersigned Provincial Fiscal accuses Apolonio Apduhan, Jr., alias Junior, Rodulfo Huiso and Felipe Quimson of the crime of Robbery with Homicide, committed as follows: That on or about the 23rd day of May, 1961, at about 7:00 o'clock in the evening, in the Municipality of Mabini, Province of Bohol, Philippines, the above-named accused and five (5) other persons whose true names are not yet known (they are presently known only with their aliases of Bernabe Miano, Rudy, Angel-Angi, Romeo and Tony) and who are still at

large (they will be charged in separate information or informations as soon as they are arrested and preliminary proceedings in Crim. Case No. 176 completed before the Justice of the Peace Court), all of them armed with different unlicensed firearms, daggers, and other deadly weapons, conspiring, confederating and helping one another, with intent of gain, did then and there willfully, unlawfully and feloniously enter, by means of violence, the dwelling house of the spouses Honorato Miano and Antonia Miano, which was also the dwelling house of their children, the spouses Geronimo Miano and Herminigilda de Miano; and, once inside the said dwelling house, the above-named accused with their five (5) other companions, did attack, hack and shoot Geronimo Miano and another person by the name of Norberto Aton, who happened to be also in the said dwelling house, thereby inflicting upon the said two (2) persons physical injuries which caused their death; and thereafter the same accused and their five (5) other companions, did take and carry way from said dwelling house cash money amounting to Three Hundred Twentytwo Pesos (P322.00), Philippine Currency, belonging to Honorato Miano and Geronimo Miano, to the damage and prejudice of the said Honorato Miano and the heirs of the deceased Geronimo Miano in the sum of Three Hundred Twenty-two Pesos (P322.00) with respect to the amount robbed, and also to the damage and prejudice of the heirs of deceased Geronimo Miano and Norberto Aton by reason of the death of these two persons. Act committed contrary to the provisions of Art. 294, par. 1, of the Revised Penal Code with the special aggravating circumstance that the crime was committed by a band with the use of unlicensed firearms (Art. 296, Rev. Penal Code), and other aggravating circumstances, as follows: 1. That the crime was committed in the dwelling of the offended parties without any provocation from the latter; 2. That nighttime was purposely sought to facilitate the commission of the crime; and. 3. That advantage was taken of superior strength, accused and their companions, who were fully armed, being numerically superior to the offended parties who were unarmed and defenseless. When the case was called for trial on August 9, 1961, Atty. Tirol informed the court a quo that he was appearing also for Apduhan, but only as counsel de oficio. In view of this manifestation, the trial court appointed Atty. Tirol as counsel de oficio for the said accused. Forthwith, Atty. Tirol

manifested that Apduhan would change his former plea of not guilty to a plea of guilty. The record discloses that after the trial, judge had repeatedly apprised Apduhan of the severity of the offense for which he was indicted and the strong possibility that the capital penalty might be imposed upon him despite a plea of guilty, Apduhan persisted in his intention to plead guilty with the request, however, that the death penalty be not imposed. Then after hearing the arguments of Provincial Fiscal Jesus N. Borromeo and Atty. Tirol on the effect of articles 295 and 296 of the Revised Penal Code on the case at bar, the trial judge advised the herein accused anew that he could be sentenced to death notwithstanding his projected plea of guilty, but the latter reiterated his desire to confess his guilt on the specific condition that he be sentenced to life imprisonment. Eventually, however, Apduhan desisted from pleading guilty and let his previous plea stand on record after further warnings that he faced the grave danger of being sentenced to death in view of the circumstances of his case. But the aforesaid desistance was merely momentary as it did not end the accused's equivocation on the matter of his plea. After a five-minute recess requested by Atty. Tirol in order to confer with the accused, the former informed the court a quo that his client would insist on entering a plea of guilty. The following appears on record: Atty. D. TIROL: Your Honor, please, I had a conference with the accused and I apprised him with the situation of the case and after hearing our apprisal he manifested that he will insist on his entering a plea of guilty, Your Honor. I made it clear to him that we are not forcing him to enter the plea of guilty. COURT (To accused Apolonio Apduhan, Jr.) Q. Is it true that you are withdrawing your plea of not guilty? A. I will just enter the plea of guilty. Q. Have you been forced to enter the plea of guilty by your lawyer?. A. No, Sir. Q. And why do you said "I will JUST enter the plea of not guilty"?

A. I have proposed to enter the plea of guilty even before. Q. Now the Court warns you again. Are you conscious of the fact that notwithstanding your plea of guilty the Court may impose upon you the penalty of death? A. I will just enter the plea of guilty, at the discretion of the Court. Q. Even with all those dangers mentioned by the Court to you? . A. Yes, Sir. (t.s.n. pp. 23-25). Subsequently the prosecuting fiscal and the counsel de oficio resumed their oral arguments regarding the effect on the instant case of articles 295 and 296, particularly the use of unlicensed firearm as a special aggravating circumstance under the latter article. Also discuss were the existence and effect of the alleged mitigating and aggravating circumstances. All of these points will be later analyzed. When the lower court subsequently reviewed the proceedings, it found that the accused's plea of guilty was ambiguous. Hence, on August 30, 1961, the case was reopened with respect to Apduhan, and on said date the latter entered a categorical plea of guilty, as evidenced by the record: COURT (To Accused Apduhan, Jr.): The Court reopened this case because after a review of the proceedings it found that your plea was not definite. In answer to a question of the Court you simply said "I will just enter the plea of guilty". The Court wants to know whether you enter the plea of guilty of the crime charged in the second amended information. ACCUSED APDUHAN:. I enter the plea of guilty. COURT (To same accused Apduhan): Q. Therefore, you admit that you have committed the crime charged in the second information?

A. Yes, Your Honor. Q. Is it necessary for you that the second amended information be read again? A. No more; it is not necessary. Q. Do you want that the second amended information be read to you again? A. No more, Your Honor. (t.s.n. pp. 50-51). On the same day, the court a quo rendered its decision, the pertinent dispositive portion of which reads:. PREMISES CONSIDERED, the Court renders judgment finding accused Apolonio Apduhan, Jr., alias Junior guilty of the complex crime of robbery with homicide, punished by Article 294 of the Revised Penal Code, in relation to Article 296 of the game Code, as amended, and sentences him to suffer the penalty of death. Considering that Apduhan had voluntarily confessed his guilt in open court, then the only aspect of the case properly subject to review is the correctness of the penalty imposed by the court a quo. In this respect, the appreciation of the use of unlicensed firearm as a special aggravating circumstance (art. 296) in fixing the appropriate penalty for robbery with homicide (Art, 294 [1]) committed by a band with the use of unlicensed firearms, and the interplay and counter-balancing of the attendant mitigating and aggravating circumstances, would determine the severity of the penalty imposable. The disposition of the question at hand necessitates a discussion of the interrelation among articles 294, 295 and 296 of the Revised Penal Code. For this purpose the said articles are hereunder quoted: ART. 294. Robbery with violence against or intimidation of persons Penalties. Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been

committed. 2. The penalty of reclusion temporal in its medium period to reclusion perpetua, when the robbery shall have been accompanied by rape or intentional mutilation, or if by reason or on occasion of such robbery, any of the physical injuries penalized in subdivision 1 of article 263 shall have been inflicted. 3. The penalty of reclusion temporal, when by reason or on occasion of the robbery, any of the physical injuries penalized in subdivision 2 of the article mentioned in the next preceding paragraph, shall have been inflicted. 4. The penalty of prision mayor in its maximum period to reclusion temporal in its medium period, if the violence or intimidation employed in the commission of the robbery shall have been carried to a degree clearly unnecessary for the commission of the crime, or when in the course of the execution, the offender shall have inflicted upon any person not responsible for its commission any of the physical injuries covered by subdivisions 3 and 4 of said article 263. 5. The penalty of prision correccional in its maximum period to prision mayor in its medium period in other cases. (As amended by Rep. Act 18.). ART 295. Robbery with physical injuries, committed in an uninhabited place and by a band, or with the use of firearm on a street, road or alley. If the offenses mentioned in subdivisions three, four, and five of the next preceding article shall have been committed in an uninhabited place or by a band, or by attacking a moving train, street car, motor vehicle or airship, or by entering the passengers' compartments in a train or, in any manner, taking the passengers thereof by surprise in the respective conveyances, or on a street, road highway, or alley, and the intimidation is made with the use of a firearm, the offender shall be punished by the maximum period of the proper penalties. (As amended by Rep. Acts Nos. 12 and 373.) (Emphasis supplied) . ART. 296. Definition of a band and penalty incurred by the members thereof. When more than three armed malefactors take part in the commission of a robbery, it shall be deemed to have been committed by a band. When any of the arms used in the commission of the offense be an unlicensed firearm the penalty to be imposed upon all the malefactors shall be the maximum of the corresponding penalty provided by

law, without prejudice to the criminal liability for illegal possession of such unlicensed firearm. Any member of a band who is present at the commission of a robbery by the band, shall be punished as principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the same. (As amended by Rep. Act No. 12). (Emphasis supplied). The afore-quoted art. 294 enumerates five classes of robbery with violence against or intimidation of persons and prescribes the corresponding penalties. The case at bar falls under art. 294(1) which defines robbery with homicide and fixes the penalty from reclusion perpetua to death. Article 295 provides, inter alia, that when the offenses described in subdivisions 3, 4 and 5 of art. 294 are committed by a band, the proper penalties must be imposed in the maximum periods. The circumstance of band is therefore qualifying only in robbery punished by subdivisions 3, 4, and 5 of art. 294. Consequently, art. 295 is inapplicable to robbery with homicide, rape, intentional mutilation, and lesiones graves resulting in insanity, imbecility, impotency or blindness. If the foregoing classes of robbery which are described in art. 294(1) and (2) are perpetrated by a band, they would not be punishable under art. 295, but then cuadrilla would be a generic aggravating under Art. 14 of the Code.1 Hence, with the present wording of art. 2952 there is no crime as "robbery with homicide in band." If robbery with homicide is committed by a band, the indictable offense would still be denominated as "robbery with homicide" under art. 294(1), but the element of band, as stated above, would be appreciated as an ordinary aggravating circumstance. Article 296, as quoted above, defines "band", creates the special aggravating circumstance of use of unlicensed firearm, and provides the criminal liability incurred by the members of the band. The ascertainment of the definite function and range of applicability of this article in relation to articles 294 and 295 is essential in the disposition of the case at bar. In imposing the death penalty, the trial court appears to have accorded validity to the Provincial Fiscal's contention that in robbery with homicide committed by a band, the use of unlicensed firearm must be appreciated as a special aggravating circumstance pursuant to art. 296. Thus convinced, the trial judge stressed in his decision that "under the express mandate of the law, we cannot escape the arduous task of imposing the

death penalty." Subscribing to the said position, the Solicitor General adds that the "penalty for robbery under the circumstances mentioned in Articles 294, paragraph 1, and 296 of the Code is the maximum of reclusion perpetua to death, or the supreme penalty of death. This is mandatory." . On the other hand, Atty. Alberto M. Meer, the accused's counsel de oficio in the present review, contends that the use of unlicensed firearm, if ever appreciated in the case at bar, must be considered a generic aggravating factor which "may be off-set by the existence of mitigating circumstances so that the penalty to be imposed should be the penalty of reclusion perpetua." . Both the foregoing contentions are untenable. After a perceptive analysis of the provisions of art. 296, we reach the considered opinion that the said article is exclusively linked and singularly applicable to the immediately antecedent provision of art. 295 on robbery in band, as the latter article, in turn, is explicitly limited in scope to subdivisions 3, 4, and 5 of art. 294. Consequently, although the use of unlicensed firearm is a special aggravating circumstance under art. 296, as amended by Rep. Act 12, 3 it cannot be appreciated as such in relation to robbery with homicide, described and penalized under paragraph 1 of art. 294. As previously stated, art. 295 provides that if any of the classes of robbery described in subdivisions 3, 4, and 5 of art. 294 is committed by a band, the offender shall be punished by the maximum period of the proper penalty. Correspondingly, the immediately following provisions of art. 296 define the term "band", prescribe the collective liability of the members of the band, and state that "when any of the arms used in the commission of the offense be in unlicensed firearm, the penalty to be imposed upon all the malefactors shall be the maximum of the corresponding penalty provided by law." Viewed from the contextual relation of articles 295 and 296, the word "offense" mentioned in the above-quoted portion of the latter article logically means the crime of robbery committed by a band, as the phrase "all the malefactors" indubitably refers to the members of the band and the phrase "the corresponding penalty provided by law" relates to the offenses of robbery described in the last three subdivisions of art. 294 which are all encompassed within the ambit of art. 295. Evidently, therefore, art. 296 in its entirety is designed to amplify and modify the provision on robbery in band which is nowhere to be found but in art. 295

in relation to subdivisions 3, 4, and 5 of art. 294. Verily, in order that the aforesaid special aggravating circumstance of use of unlicensed firearm may be appreciated to justify the imposition of the maximum period of the proper penalty it is a condition sine qua non that the offense charged be robbery committed by a band within the contemplation of art. 295. To reiterate, since art. 295, does not apply to subdivision 1 and 2 of art. 294, then the special aggravating factor in question, which is solely applicable to robbery in band under art. 295, cannot be considered in fixing the penalty imposable for robbery with homicide under art. 294(1), even if the said crime was committed by a band with the use of unlicensed firearms. The legislative intent of making art. 296 corollary to art. 295 with respect to robbery in band was unmistakably articulated by Congressman Albano in his sponsorship speech on H. B. No. 124 (subsequently enacted as Rep. Act No. 12, amending, among others, articles 295 and 296 of the Revised Penal Code). Said Congressman Albano: "Article 296 as a corollary of Article 295 would change the definition heretofore known of the term "band" under the law. The purpose of this amendment is to inject therein the element of aggravation, when any member of the band carries an unlicensed firearm . ." 4. The special aggravating circumstance of use of unlicensed firearm, however, was initially applicable to all the subdivisions of art. 294 since the said Rep. Act No. 12 also amended art. 295 to include within its scope all the classes of robbery described in art. 294. With the then enlarged coverage of art. 295, art. 296, being corollary to the former, was perforce made applicable to robbery with homicide (art. 294[1]). Thus, in People vs. Bersamin, 5 this Court, in passing, opined: "The use of unlicensed firearm is a special aggravating circumstanceapplicable only in cases of robbery in band (Art. 296, Revised Penal Code, as amended by Section 3, Republic Act No. 12)." . In the said case, this Court declared in effect that in robo con homicidio the use of unlicensed firearm is not a special aggravating circumstance when the said offense is not committed by a band. Inferentially, had the robbery with homicide in Bersamin been perpetrated by a band, the use of unlicensed firearm would have been appreciated. This implied pronouncement would have been justified under art. 296 in relation to art. 295, as amended by Rep. Act 12. But the aforesaid inference lost all legal moorings in 1949 with the enactment of Rep. Act 373 which excluded subdivisions 1 and 2 of art. 294 from the coverage of art. 295. Since art. 296, as repeatedly emphasized above, is corollary to art. 295, the

diminution of the latter's scope correspondingly reduced the former's extent of applicability. In other words, the passage of the foregoing amendment did not only jettison the first two subdivisions of art. 294 from the periphery of art. 295 but also removed the said subdivisions (which pertain, inter alia, to the offense of robbery with homicide) from the effective range of art. 296. Notwithstanding that the special aggravating circumstance of use of unlicensed firearm cannot be appreciated in the instant case, we are constrained, in the final analysis, to observe that the imposition of the death penalty on the accused Apduhan would appear to be a logical legal consequence, because as against the attendant mitigating circumstances the aggravating circumstances numerically and qualitatively preponderate. After Apduhan had pleaded guilty, the defense counsel offered for consideration three mitigating circumstances, namely, plea of guilty, intoxication, and lack of intent to commit so grave a wrong. Subsequently, however, the defense withdrew the last mentioned mitigating circumstance after the prosecution had withdrawn the aggravating circumstance of abuse of superior strength. The following manifestations appear on record: . "FISCAL BORROMEO: . "In fairness to the accused, because the crime charged is robbery in band (the case at bar is actually robbery with homicide), it is natural that in robbery in band there is already abuse of superior strength, so we will just withdraw that superior strength. "COURT (To Atty. D. Tirol): . "What do you say now? . "ATTY. D. TIROL: . "Such being the case, we will not insist on presenting evidence in support of our contention that the accused did not intend to commit so grave a wrong.

"COURT: . "Moreover by the mere use of firearm the accused cannot claim that he did not intend to commit so grave a wrong as that committed. So now you withdraw your petition that you be allowed to present evidence to that effect? . "ATTY. D. TIROL: . "Yes, Your Honor." (t.s.n. pp. 47-48). Thus, only two alleged mitigating circumstances remain for consideration. Anent the plea of guilty, we believe that under art. 13 (7) its appreciation in the case at bar is beyond controversion. However, apropos the alternative circumstance of intoxication, we find no evidence on record to support the defense's claim that it should be considered as a mitigating factor. This absence of proof can be attributed to the defense's erroneous belief that it was not anymore its burden to establish the state of intoxication of the accused when he committed the offense charged since anyway the prosecution had already admitted the attendance of the said mitigating circumstance on the ground that the State did not have strong evidence to overthrow the accused's claim of non-habituality to drinking. The record discloses the following pertinent discussion: . "COURT (To Fiscal Borromeo):. "Do you agree, Mr. Fiscal, that the non-habitual intoxication of the accused be also taken into account in his favor as a mitigating circumstance? "FISCAL BORROMEO: . "We have no evidence exactly to know at this time that the accused was intoxicated, but his affidavit states that before the commission of the crime they took young coconuts and there is no mention about the taking of any liquor, so that, as it is now, we are constrained to object. "COURT (To the Fiscal): .

"But do you have evidence to counteract that allegation? . "FISCAL BORROMEO: . "We do not have any evidence to counteract that. "COURT (To the Fiscal): . "But do you not admit the attendance of that circumstance? . "FISCAL BORROMEO: With that manifestation we submit because actually we do not have evidence to counteract that he was a habitual drinker. "COURT (To the Fiscal): . "But do you prefer to admit that mitigating circumstance or you need that evidence be presented to that effect? "FISCAL BORROMEO: . "Inasmuch as we do not have strong evidence to contradict that circumstance in fairness to the accused, we would rather submit. "COURT (To the Fiscal): . "The attendance of the mitigating circumstance of non-habitual intoxication? . "FISCAL BORROMEO: . "Yes, Your Honor." (t.s.n. pp. 7-9) (Emphasis supplied) . From the above proceedings in the trial court, it would appear that what the prosecution actually intended to admit was the non-habituality of the accused to drinking liquor, not as a matter of fact, but due to the State's inability to disprove the same. The prosecution apparently did not concede the actual intoxication of the accused. We are of the firm conviction that, under the environmental circumstances, the defense was not relieved of its burden to prove the accused's actual state of intoxication. Otherwise, to appreciate the attendance of a mitigating factor on the mere allegation of the accused, coupled with the dubious acquiescence of the prosecution, would open wide the avenue for unscrupulous and deceitful collusion between defense and prosecution in order to unduly and unjustly minimize the penalty imposable upon the

accused. The last paragraph of art. 15 of the Code provides:. "The intoxication of the offender shall be taken into consideration as a mitigating circumstance when the offender has committed a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to commit said felony but when the intoxication is habitual or intentional it shall be considered as an aggravating circumstance. (Emphasis supplied). Under the foregoing provision, intoxication is mitigating when it is not habitual or intentional, that is, not subsequent to the plan to commit the crime. However, to be mitigating the accused's state of intoxication must be proved. 6 Once intoxication is established by satisfactory evidence, 7 then in the absence of proof to the contrary" it is presumed to be nonhabitual or unintentional. 8 . In People vs. Noble 9 the defendant testified that before the murder he took a bottle of wine and drank little by little until he got drunk. The policeman who arrested the accused testified that the latter smelled wine and vomited. The Court held that the evidence presented was not satisfactory to warrant a mitigation of the penalty. Intoxication was likewise not competently proved in a case 10 where the only evidence was that the defendant had a gallon of tuba with him at the time he committed the crime. In the case at bar the accused merely alleged that when he committed the offense charged he was intoxicated although he was "not used to be drunk," 11This self-serving statement stands uncorroborated. Obviously, it is devoid of any probative value. To recapitulate, the accused has in his favor only one mitigating circumstance: plea of guilty. As aforementioned, the defense withdrew its claim of "lack of intent to commit so grave a wrong" and failed to substantiate its contention that intoxication should be considered mitigating. While an unqualified plea of guilty is mitigating, it at the same time constitutes an admission of all the material facts alleged in the information, including the aggravating circumstances therein recited. 12 The four aggravating circumstances are (1) band; (2) dwelling; (3)

nighttime; and (4) abuse of superior strength. The circumstance of abuse of superiority was, however, withdrawn by the prosecution on the ground that since the offense of robbery with homicide was committed by a band, the element of cuadrilla necessarily absorbs the circumstance of abuse of superior strength. We believe that said withdrawal was ill-advised since the circumstances of band and abuse of superiority are separate and distinct legal concepts. The element of band is appreciated when the offense is committed by more than three armed malefactors regardless of the comparative strength of the victim or victims. Hence, the indispensable components of cuadrilla are (1) at least four malefactors and (2) all of the four malefactors are armed. On the other hand, the gravamen of abuse of superiority is the taking advantage by the culprits of their collective strength to overpower their relatively weaker victim or victims. Hence, in the latter aggravating factor, what is taken into account is not the number of aggressors nor the fact that they are armed, but their relative physical might vis-a-vis the offended party. Granting, however, that the said withdrawal was valid, there still remain three aggravating circumstances which render inutile the solitary extenuating circumstance of plea of guilty. The prosecution does not need to prove the said three circumstances (all alleged in the second amended information) since the accused by his plea of guilty, has supplied the requisite proof. 13 Hence, we will not belabor our discussion of the attendance aggravating circumstances. The settled rule is that dwelling is aggravating in robbery with violence or intimidation of persons, 14 like the offense at bar. The rationale behind this pronouncement is that this class of robbery could be committed without the necessity of transgressing the sanctity of the home. Morada is inherent only in crimes which could be committed in no other place than in the house of another, such as trespass and robbery in an inhabited house. 15 This Court in People vs. Pinca, 16 citing People vs. Valdez, 17 ruled that the "circumstances (of dwelling and scaling) were certainly not inherent in the crime committed, because, the crime being robbery with violence or intimidation against persons (specifically, robbery with homicide) the authors thereof could have committed it without the necessity of violating or scaling the domicile of their victim." Cuello Calon opines that the commission of the crime in another's dwelling shows greater perversity in the accused and produces greater alarm. 18. Nocturnity is aggravating when it is purposely and deliberately sought by the accused to facilitate the commission of the crime 19 or to prevent their

being recognized or to insure unmolested escape. 20 Nocturnidad must concur with the intent and design of the offender to capitalize on the intrinsic impunity afforded by the darkness of night. 21 In the case at bar, the affidavit (exh. I-1) of the accused Apduhan shows that he and his comalefactors took advantage of the nighttime in the perpetration of the offense as they waited until it was dark before they came out of their hiding place to consummate their criminal designs. In his decision, the trial judge recommends to, the President of the Republic the commutation of the death sentence which he imposed on the accused to life imprisonment. The Solicitor General supports this recommendation for executive clemency. We find no compelling reason to justify such recommendation. Contrary to the trial judge's observation, the accused's plea of guilty was far from "spontaneous" and "insistent". It will be recalled that his initial plea was one of not guilty. Later, he changed his plea but with the persistent condition that he be sentenced to life imprisonment, not death. It was only after much equivocation that he finally decided to "just" plead guilty. Because his plea was still ambiguous, the court a quo had to reopen the case to ascertain its real nature. Conceding, however, that his plea was "spontaneous" and "insistent," such manifestation of sincere repentance cannot serve to obliterate the attendant aggravating circumstances which patently reveal the accused's criminal perversity. It appears from a cursory reading of the decision under review that the trial judge also anchored his recommendation on the ground that there is "the possibility that the firearm was used in order to counteract the resistance of the deceased." This is no justification at all for executive clemency. Firstly, the above observation is a mere conjecture - in the language of the presiding judge, a "possibility." Secondly, even granting that the said observation relates to the actual happening, to employ a firearm in subduing the lawful resistance of innocent persons is a criminal act by any standard. Even as we purge the decision under review of its errors, we must hasten to commend the trial judge, the Hon. Hipolito Alo, for his earnest and patient efforts to forestall the entry of an improvident plea of guilty by the accused Apduhan, notwithstanding that the latter was already represented by a counsel de oficio and hence presumed to have been advised properly. Judge Alo made sure that the accused clearly and fully understood the seriousness of the offense charged and the severity of the

penalty attached to it. When the accused proposed to confess his guilt, Judge Alo repeatedly warned him that the death penalty might be imposed despite his plea of guilty. As aforementioned, when it appeared that Apduhan's plea of guilty was ambiguous, Judge Alo reopened the case to determine with definitiveness the nature of his plea. The virtue of Judge Alo's efforts in ascertaining whether Apduhan pleaded guilty with full knowledge of the significance and consequences of his act, recommends itself to all trial judges who must refrain from accepting with alacrity an accused's plea of guilty, for while justice demands a speedy administration, judges are duty bound to be extra solicitous in seeing to it that when an accused pleads guilty he understands fully the meaning of his plea and the import of an inevitable conviction. As a final commentary on the criminal conduct of the accused herein, it must be emphasized that the instant review was delayed for several years because he escaped from the New Bilibid Prisons on June 17, 1963, less than six months after he was committed to the said penitentiary. He was recommitted on July 10, 1964 with a new mittimus from the Court of First Instance of Leyte for robbery in band in criminal case 10099, for which he was sentenced to serve a prison term of from 8 years and 1 day to 12 years and 1 day commencing on October 31, 1963. 22 His recommitment was reported to this Court only on July 5, 1966. Notwithstanding the foregoing disquisition, for failure to secure the required number of votes, the penalty of death cannot be legally imposed. The penalty next lower in degree - reclusion perpetua - should consequently be imposed on the accused. ACCORDINGLY, with the modification that the death sentence imposed upon Apolonio Apduhan, Jr. by the court a quo is reduced to reclusion perpetua, the judgment a quo is affirmed in all other respects, without pronouncement as to costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Angeles and Fernando, JJ., concur.

G.R. No. L-28547 February 22, 1974 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs. ELIAS JARANILLA, RICARDO SUYO, FRANCO BRILLANTES and HEMAN GORRICETA, accused. ELIAS JARANILLA, RICARDO SUYO, and FRANCO BRILLANTES, defendants-appellants. Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Felicisimo R. Rosete and Solicitor Antonio M. Martinez for plaintiff-appellee. Sixto P. Dimaisip for defendants-appellants.

AQUINO, J.:p This is an appeal of defendants Elias Jaranilla, Ricardo Suyo and Franco Brillantes from the decision of the Court of First Instance of Iloilo, which convicted them of robbery with homicide, sentenced each of them to reclusion perpetua and ordered them to pay solidarily the sum of six thousand pesos to the heirs of Ramonito Jabatan and the sum of five hundred pesos to Valentin Baylon as the value of fighting cocks (Criminal Case No. 11082). The evidence for the prosecution shows that at around eleven o'clock in the evening of January 9, 1966, Gorriceta, who had just come from Fort San Pedro in Iloilo City, was driving a Ford pickup truck belonging to his sister, Remia G. Valencia. While he was in front of the Elizalde Building on J. M. Basa Street, he saw Ricardo Suyo, Elias Jaranilla and Franco Brillantes. They hailed Gorriceta who stopped the truck. Jaranilla requested to bring them to Mandurriao, a district in another part of the city. Gorriceta demurred. He told Jaranilla that he (Gorriceta) was on his way home. Jaranilla prevailed upon Gorriceta to take them to Mandurriao because Jaranilla ostensibly had to get something from his uncle's place. So, Jaranilla, Brillantes and Suyo boarded the pickup truck which Gorriceta drove to Mandurriao. Upon reaching Mandurriao, Gorriceta parked the truck at a distance of about fifty to seventy meters from the provincial hospital. Jaranilla, Suyo and Brillantes alighted from the vehicle. Jaranilla instructed Gorriceta to wait for them. The trio walked in the direction of the plaza. After an interval

of about ten to twenty minutes, they reappeared. Each of them was carrying two fighting cocks. They ran to the truck. Jaranilla directed Gorriceta to start the truck because they were being chased. Gorriceta drove the truck to Jaro (another district of the city) on the same route that they had taken in going to Mandurriao. It is important to note the positions of Gorriceta and his three companions on the front seat of the track. Gorriceta the driver, was on the extreme left. Next to him on his right was Suyo. Next to Suyo was Brillantes. On the extreme right was Jaranilla. While the truck was traversing the detour road near the Mandurriao airport, then under construction, Gorriceta saw in the middle of the road Patrolmen Ramonito Jabatan and Benjamin Castro running towards them. Gorriceta slowed down the truck after Patrolman Jabatan had fired a warning shot and was signalling with his flashlight that the truck should stop. Gorriceta stopped the truck near the policeman. Jabatan approached the right side of the truck near Jaranilla and ordered all the occupants of the truck to go down. They did not heed the injunction of the policeman. Brillantes pulled his revolver but did not fire it. Suyo did nothing. Jaranilla, all of a sudden, shot Patrolman Jabatan. The shooting frightened Gorriceta. He immediately started the motor of the truck and drove straight home to La Paz, another district of the city. Jaranilla kept on firing towards Jabatan. Jaranilla, Suyo and Brillantes alighted in front of Gorriceta's house. Gorriceta parked the truck inside the garage. Jaranilla warned Gorriceta not to tell anybody about the incident. Gorriceta went up to his room. After a while, he heard policemen shouting his name and asking him to come down. Instead of doing so, he hid in the ceiling. It was only at about eight o'clock in the morning of the following day that he decided to come down. His uncle had counselled him to surrender to the police. The policemen took Gorriceta to their headquarters. He recounted the incident to a police investigator. Victorino Trespeces, whose house was located opposite the house of Valentin Baylon on Taft Street in Mandurriao, testified that before midnight of January 9, 1966, he conducted a friend in his car to the housing project in the vicinity of the provincial hospital at Mandurriao. As he neared his

residence, he saw three men emerging from the canal on Taft Street in front of Baylon's house. He noticed a red Ford pickup truck parked about fifty yards from the place where he saw the three men. Shortly thereafter, he espied the three men carrying roosters. He immediately repaired to the police station at Mandurriao. He reported to Patrolmen Jabatan and Castro what he had just witnessed. The two policemen requested him to take them in his car to the place where he saw the three suspiciouslooking men. Upon arrival thereat, the men and the truck were not there anymore. Trespeces and the policemen followed the truck speeding towards Jaro. On reaching the detour road leading to the airport, the policemen left the car and crossed the runway which was a shortcut. Their objective was to intercept the truck. Trespeces turned his car around in order to return to Mandurriao. At that moment he heard gunshots. He stopped and again turned his car in the direction where shots had emanated. A few moments later, Patrolman Castro came into view. He was running. He asked Trespeces for help because Jabatan, his comrade, was wounded. Patrolman Castro and Trespeces lifted Jabatan into the car and brought him to the hospital. Trespeces learned later that Jabatan was dead. Doctor Raymundo L. Torres, the chief medico-legal officer of the Iloilo City police department, conducted an autopsy on the remains of Patrolman Jabatan. He found: (1) Contusion on left eyebrow. (2) Bullet wound one centimeter in diameter, penetrating left anterior axilla, directed diagonally downward to the right, perforating the left upper lobe of the lungs through and through, bitting the left pulmonary artery and was recovered at the right thoracic cavity; both thoracic cavity was full of blood. Cause of death: Shock, hemorrhage, secondary to bullet wound. Valentin Baylon, the owner of the fighting cocks, returned home at about six o'clock in the morning of January 10, 1966. He discovered that the door of one of his cock pens or chicken coops (Exhs. A and A-1) was broken. The feeding vessels were scattered on the ground. Upon investigation he found that six of his fighting cocks were missing. Each

coop contained six cocks. The coop was made of bamboo and wood with nipa roofing. Each coop had a door which was locked by means of nails. The coops were located at the side of his house, about two meters therefrom. Baylon reported the loss to the police at Mandurriao. At about ten o'clock, a group of detectives came to his house together with the police photographer who took pictures of the chicken coops. The six roosters were valued at one hundred pesos each. Two days later, he was summoned to the police station at Mandurriao to identify a rooster which was recovered somewhere at the airport. He readily identified it as one of the six roosters which was stolen from his chicken coop (Exh. B). Gorriceta, Jaranilla, Suyo and Brillantes were charged with robo con homicidio with the aggravating circumstances of use of a motor vehicle, nocturnity, band, contempt of or with insult to the public authorities and recidivism. The fiscal utilized Gorriceta as a state witness. Hence, the case was dismissed as to him. On February 2, 1967, after the prosecution had rested its case and before the defense had commenced the presentation of its evidence, Jaranilla escaped from the provincial jail. The record does not show that he has been apprehended. The judgment of conviction was promulgated as to defendants Suyo and Brillantes on October 19, 1967 when it was read to them in court. They signed at the bottom of the last page of the decision. There was no promulgation of the judgment as to Jaranilla, who, as already stated, escaped from jail (See Sec. 6, Rule 120, Rules of Court). However, the notice of appeal filed by defendants' counsel de oficio erroneously included Jaranilla. Inasmuch as the judgment has not been promulgated as to Jaranilla, he could not have appealed. His appeal through counsel cannot be entertained. Only the appeals of defendants Suyo and Brillantes will be considered. In convicting Suyo, Jaranilla and Brillantes of robo con homicidio, the trial court assumed that the taking of the six fighting cocks was robbery and that Patrolman Jabatan was killed "by reason or on the occasion of the robbery" within the purview of article 294 of the Revised Penal Code.

In this appeal the appellants contend that the trial court erred in not finding that Gorriceta was the one who shot the policeman and that Jaranilla was driving the Ford truck because Gorriceta was allegedly drunk. Through their counsel de oficio, they further contend that the taking of roosters was theft and, alternatively, that, if it was robbery, the crime could not be robbery with homicide because the robbery was already consummated when Jabatan was killed. After evaluating the testimonies of Gorriceta and Brillantes as to who was driving the truck and who shot policeman, this Court finds that the trial court did not err in giving credence to Gorriceta's declaration that he was driving the truck at the time that Jaranilla shot Jabatan. The improbability of appellants' theory is manifest. The truck belonged to Gorriceta's sister. He was responsible for its preservation. He had the obligation to return it to his sister in the same condition when he borrowed it. He was driving it when he saw Brillantes, Jaranilla and Suyo and when he allegedly invited them for a paseo. There is no indubitable proof that Jaranilla knows how to drive a truck. The theory of the defense may be viewed from another angle. If, according to the appellants, Gorriceta asked Jaranilla to drive the truck because he (Gorriceta) was drunk then that circumstance would be inconsistent with their theory that Gorriceta shot Jabatan. Being supposedly intoxicated, Gorriceta would have been dozing when Jabatan signalled the driver to stop the truck and he could not have thought of killing Jabatan in his inebriated state. He would not have been able to shoot accurately at Jabatan. But the fact is that the first shot hit Jabatan. So, the one who shot him must have been a sober person like Jaranilla. Moreover, as Jaranilla and his two comrades were interested in concealing the fighting cocks, it was Jaranilla, not Gorriceta, who would have the motive for shooting Jabatan. Consequently, the theory that Gorriceta shot Jabatan and that Jaranilla was driving the truck appears to be plausible. Was the taking of the roosters robbery or theft? There is no evidence that in taking the six roosters from their coop or cages in the yard of Baylon's house violence against or intimidation of persons was employed. Hence, article 294 of the Revised Penal Code cannot be invoked. Neither could such taking fall under article 299 of the Revised Penal Code

which penalizes robbery in an inhabited house (casa habitada), public building or edifice devoted to worship. The coop was not inside Baylon's house. Nor was it a dependency thereof within the meaning of article 301 of the Revised Penal Code. Having shown the inapplicability of Articles 294 and 299, the next inquiry is whether the taking of the six roosters is covered by article 302 of the Revised Penal Code which reads: ART. 302. Robbery in an uninhabited place or in private building .Any robbery committed in an uninhabited place or in a building other than those mentioned in the first paragraph of article 299, if the value of the property exceeds 250 pesos, shall be punished by prision correccional in its medium and maximum periods provided that any of the following circumstances is present: 1. If the entrance has been effected through any opening not intended for entrance or egress. 2. If any wall, roof, floor or outside door or window has been broken. 3. If the entrance has been effected through the use of false keys, picklocks or other similar tools. 4. If any door, wardrobe, chest, or any sealed or closed furniture or receptacle has been broken. 5. If any closed or sealed receptacle, as mentioned in the preceding paragraph, has been removed, even if the same be broken open elsewhere. xxx xxx xxx In this connection, it is relevant to note that there is an inaccuracy in the English translation of article 302. The controlling Spanish original reads: ART. 302. Robo en lugar no habitado o edificio particular . El robo cometido en un lugar no habitado o en un edificio que no sea de los comprendidos en el parrafo primero del articulo 299, ... . (Tomo 26, Leyes Publicas

479). The term "lugar no habitado" is erroneously translated. as "uninhabited place", a term which may be confounded with the expression "uninhabited place" in articles 295 and 300 of the Revised Penal Code, which is the translation of despoblado and which is different from the term lugar no habitado in article 302. The term lugar no habitado is the antonym of casa habitada (inhabited house) in article 299. One essential requisite of robbery with force upon things under Articles 299 and 302 is that the malefactor should enter the building or dependency, where the object to be taken is found. Articles 299 and 302 clearly contemplate that the malefactor should enter the building (casa habitada o lugar no habitado o edificio). If the culprit did not enter the building, there would be no robbery with force upon things. (See Albert, Revised Penal Code, 1932 edition, p. 688). Thus, where the accused broke the show-window of the Bombay Palace Bazar at Rizal Avenue, Manila and removed forty watches therefrom, the crime was theft and not robbery because he did not enter the building. The show-window was outside the store. (People vs. Adorno, CA 40 O. G. 567, per Montemayor, J., who later became a member of this Court). * In the instant case, the chicken coop where the six roosters were taken cannot be considered a building within the meaning of article 302. Not being a building, it cannot be said that the accused entered the same in order to commit the robbery by means of any of the five circumstances enumerated in article 302. The term "building" in article 302, formerly 512 of the old Penal Code, was construed as embracing any structure not mentioned in article 299 (meaning not an "inhabited house or public building or edifice devoted to worship" or any dependency thereof) used for storage and safekeeping of personal property. As thus construed, a freight car used for the shipment of sugar was considered a private building. The unnailing of a strip of cloth nailed over the door, the customary manner of sealing a freight car, was held to constitute breaking by force within the meaning of article 512, now article 302. (U.S. vs. Magsino, 2 Phil. 710). The ruling in the Magsino case is in conflict with the rulings of the Supreme Court of Spain that a railroad employee who, by force, opens a sealed or locked receptacle deposited in a freight car, does not commit

robbery. He is guilty of theft because a railroad car is neither a house nor a building within the meaning of article 302 which corresponds to article 525 of the 1870 Spanish Penal Code. Article 302 refers to houses or buildings which, while not actually inhabited, are habitable. Thus, a pig sty is not a building within the meaning of article 302. The stealing of hogs from a pig sty is theft and not robbery, although the culprit breaks into it. Article 302 refers to habitable buildings. (Guevara, Revised Penal Code, 1939 Edition, pages 555-6, citing II Hidalgo Codigo Penal 636-7, 642, which in turn cites the decisions of the Spanish Supreme Court dated March 2, 1886 and April 25, 1887). ** As may be seen from the photographs (Exhs. A and A-1) Baylon's coop, which is known in the dialect as tangkal or kulungan, is about five yards long, one yard wide and one yard high. It has wooden stilts and bamboo strips as bars. The coop barely reaches the shoulder of a person of average height like Baylon. It is divided into six compartments or cages. A compartment has an area of less than one cubic yard. A person cannot be accommodated inside the cage or compartment. It was not intended that a person should go inside that compartment. The taking was effected by forcibly opening the cage and putting the hands inside it to get the roosters. Therefore, the taking of the six roosters from their coop should be characterized as theft and not robbery. The assumption is that the accused were animated by single criminal impulse. The conduct of the accused reveals that they conspired to steal the roosters. The taking is punishable as a single offense of theft. Thus, it was held that the taking of two roosters in the same place and on the same occasion cannot give rise to two crimes of theft (People vs. De Leon, 49 Phil. 437, citing decision of Supreme Court of Spain dated July 13, 1894 and 36 C. J. 799; People vs. Tumlos, 67 Phil. 320; People vs. Villanueva, 49 O.G. 5448, L-10239, August 7, 1953). Nocturnity and use of a motor vehicle are aggravating. Those circumstances facilitated the commission of the theft. The accused intentionally sought the cover of night and used a motor vehicle so as to insure the success of their nefarious enterprise (People vs. Tan, 89 Phil. 647, 660; People vs. Gardon, 104 Phil. 372). Also to be appreciated against appellants Suyo and Brillantes is the aggravating circumstance of recidivism which was alleged in the information. They admitted their previous convictions for theft (130, 132

tsn; Exhs. I and J; Art. 14[9], Revised Penal Code). The theft of six roosters valued at six hundred pesos is punishable by prision correccional in its minimum and medium periods (Art. 309[3], Revised Penal Code). That penalty should be imposed in its maximum period because only aggravating circumstances are present (Art. 64[3], Revised Penal Code). Although recidivists, appellants Suyo and Brillantes are not habitual delinquents. They are entitled to an indeterminate sentence (Sec. 2, Act No. 4103). With respect to the killing of Patrolman Jabatan, it has already been noted that the evidence for the prosecution points to Jaranilla as the malefactor who shot that unfortunate peace officer. The killing was homicide because it was made on the spur of the moment. The treacherous mode of attack was not consciously or deliberately adopted by the offender (U.S. vs. Namit, 38 Phil. 926; People vs. Tumaob, 83 Phil. 738; People vs. Abalos, 84 Phil. 771). The twenty-four year old Jabatan was an agent of authority on night duty at the time of the shooting. He was wearing his uniform. The killing should be characterized as a direct assault (atentado) upon an agent of authority (Art. 148, Revised Penal Code) complexed with homicide. The two offenses resulted from a single act. (Art. 48, Revised Penal Code; People vs. Guillen, 85 Phil. 307; People vs. Lojo, Jr., 52 Phil. 390). The evidence for the prosecution does not prove any conspiracy on the part of appellants Jaranilla, Suyo and Brillantes to kill Jabatan. They conspired to steal the fighting cocks. The conspiracy is shown by the manner in which they perpetrated the theft. They went to the scene of the crime together. They left the yard of Baylon's residence, each carrying two roosters. They all boarded the getaway truck driven by Gorriceta. The theft was consummated when the culprits were able to take possession of the roosters. It is not an indispenable element of theft that the thief carry, more or less far away, the thing taken by him from its owner (People vs. Mercado, 65 Phil. 665; Duran vs. Tan, 85 Phil. 476; U.S vs. Adiao, 38 Phil. 754). It is not reasonable to assume that the killing of any peace officer, who would forestall the theft or frustrate appellants' desire to enjoy the fruits of

the crime, was part of their plan. There is no evidence to link appellants Suyo and Brillantes to the killing of Jabatan, except the circumstance that they were with Jaranilla in the truck when the latter shot the policeman. Gorriceta testified that Suyo did not do anything when Jabatan approached the right side of the truck and came in close proximity to Jaranilla who was on the extreme right. Brillantes pulled his revolver which he did not fire (47, 53-55 tsn). Mere presence at the scene of the crime does not necessarily make a person a co-principal thereof. Jaranilla heard Gorriceta's testimony that he (Jaranilla) shot Jabatan. Instead of taking the witness stand to refute the testimony of Gorriceta, Jaranilla escaped from jail. That circumstance is an admission of guilt. The instant case is different from People vs. Mabassa, 65 Phil. 568 where the victim was killed on the occasion when the accused took his chickens under the house. It is distinguishable from the People vs. Gardon, 104 Phil. 372 and People vs. Salamudin No. 1, 52 Phil. 670 (both cited by the Solicitor General) where the robbery was clearly proven and the homicide was perpetrated on the occasion of the robbery. As already noted, theft, not robbery, was committed in this case. The situation in this case bears some analogy to that found in the People vs. Basisten, 47 Phil. 493 where the homicide committed by a member of the band was not a part of the common plan to commit robbery. Hence, only the person who perpetrated the killing was liable for robbery with homicide. The others were convicted of robbery only. There is a hiatus in the evidence of the prosecution as to the participation of Suyo and Brillantes in the killing of Jabatan by Jaranilla. As already stated, no robbery with homicide was committed. Therefore, it cannot be concluded that those two appellants have any responsibility for Jabatan's death. Their complicity in the homicide committed by Jaranilla has not been established. WHEREFORE, the judgment of the trial court convicting appellants Ricardo Suyo and Franco Brillantes of robbery with homicide is reversed. They are acquitted of homicide on the ground of reasonable doubt. As co-principals with Elias Jaranilla in the theft of the six fighting cocks, they are (a) each sentenced to an indeterminate penalty of six (6) months of arresto mayor as minimum to four (4) years and two (2) months of prision correccional as maximum and (b) ordered to indemnify solidarily

the complainant, Valentin Baylon, in the sum of five hundred pesos (P500). Each appellant should pay one-third of the costs. As to the liability of Elias Jaranilla for theft and homicide, with direct assault upon an agent of authority, trial court should render a new judgment consistent with this opinion (See Sec. 19, Art. IV, Constitution). So ordered. Zaldivar (Chairman), Fernando, Antonio and Fernandez, JJ., concur.

G.R. No. 146865

February 18, 2004

PEOPLE OF THE PHILIPPINES, appellee vs. ELGIN LATAYADA (at large), appellant. DECISION PANGANIBAN, J.: When the evidence falls short of proving all the elements of carnapping with homicide, but the killing is conclusively established, the accused may be convicted only of homicide when the Information does not allege any qualifying circumstance. The Case For automatic review before this Court is the December 29, 2000 Decision1 of the Regional Trial Court (RTC) of Cagayan de Oro City (Branch 18) in Criminal Case No. 97-917, finding Elgin Latayada guilty beyond reasonable doubt of carnapping with homicide. The decretal portion of the Decision reads: "WHEREFORE, in view of all the foregoing considerations, the Court hereby finds accused ELGIN LATAYADA, GUILTY beyond reasonable doubt of the crime of CARNAPPING WITH HOMICIDE, in violation of RA 6539, known as Anti-Carnapping

Act of 1972, as amended by Sec. 20 of Republic Act 7659, and there being one generic aggravating circumstance of treachery without any mitigating circumstances, the said accused is hereby sentenced to suffer the supreme penalty of DEATH by lethal injection.He is also directed to pay the heirs of the victim the sum of P18,899.70 as hospitalization expenses, another P7,300.00 as burial expenses, P50,000.00 moral damages and further directed to pay the cost of this proceeding. Let another Warrant of Arrest be issued to the convict for him to serve his sentence. Pursuant to R.A. 7975 and Rule 122, Sec. 10 of the Rules of Court, let the entire records of this case be forwarded to the Supreme Court for automatic review."2 In an Information dated March 7, 1997, appellant was charged with carnapping with homicide as follows: "That on or about 6:00 oclock in the evening, more or less, of October 29, 1995 at Sitio Hanopolan, Claveria, Misamis Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to gain and without the consent of the owner, did then and there, willfully, unlawfully and feloniously take, steal and drive away one (1) unit Honda TMX Motorcycle, color blue, bearing plate No. 9B-6096-T, with Serial Chassis No. 951-50025, with Motor No. KCOIE-028425 PH, Model 1995, owned and belonging to Rodrigo Estrada, valued at P63,000.00 to his damage and prejudice and in the course of the commission of the carnapping of the vehicle, accused with intent to kill, did then and there, willfully, unlawfully and feloniously stab one Pedro Payla, the driver of the motorcycle, with the use of a sharp bladed weapon, thus hitting the victim on different parts of his body causing his death thereafter." 3 During his arraignment on September 12, 1997,4 appellant, with the assistance of his counsel de oficio,5 pleaded not guilty to the charge. After trial in due course, the court a quo rendered the assailed Decision. The Facts Version of the Prosecution In its Brief, the Office of the Solicitor General (OSG) quoted from

appellants Brief the summary of the evidence for the prosecution, which is as follows: "Sometime on October 29, 1995 at about 6:00 o clock in the evening, Pedro Payla arrived at the house of Vicenta Cordino at Sitio Hanopolan, Claveria, Misamis Oriental. Pedro Payla allegedly told Vicenta Dont be afraid, Nang, I am the son of Lucia Payla, I was stabbed by Elgin Latayada, bring me to the hospital. Vicenta, who was already old, then called her neighbor Joseph Tion for help and the latter responded. Joseph treated the wounds of Pedro and asked what happened. Pedro allegedly told Joseph that Elgin asked to be brought to Hanopolan, Claveria, Misamis Oriental. On their way, Elgin told Pedro to stop because he wanted to answer the call of nature. After Elgin relieved himself, instead of boarding at the back of the motorcycle, he stabbed Pedro and escaped on board the motorcycle. "When a passenger jeepney passed by, Pedro was loaded and brought to Claveria Hospital. When they passed by a police station, the conductor of the passenger jeep reported the stabbing incident. At Claveria Hospital, Pedros wound was treated and sutured. However, due to inadequate medical facilities at Claveria Hospital, the doctor thereat advised Gina Payla, wife of Pedro, to bring Pedro to Cagayan de Oro. On that same night, Pedro Payla was brought to [the] Medical Center in Cagayan De Oro City. Pedro died on October 30, 1995. "On October 30, 1995, at around 9:00 oclock in the morning, Gina Payla, Pedros wife, was able to converse with him. Again, Pedro pointed to appellant as his assailant and further narrated the circumstances surrounding his stabbing. "At around 1:00 oclock in the afternoon of the same day, SPO1 Victorino Busalla arrived at the hospital and then proceeded to take the ante-mortem statement of Pedro. Pedro could not write because of his injuries; hence, he placed his thumb mark using his own blood in lieu of his signature on the said statement. The same statement was signed by Gina Payla who was present when the statement was taken. Pedro died on the same day. "The motorcycle driven by Pedro with Chassis No. 951-50025, color blue, was originally owned by Rodrigo Estrada. He later sold

the same to [Kagawad Verano] Caabay for P10,000.00. It was [Kagawad] Caabay who had an arrangement with Pedro regarding the use of the motorcycle to transport passengers. "The motorcycle was recovered only on November 4, 1995, already cannibalized, at Cugman, Cagayan de Oro City. "After the prosecution rested its case on June 21, 2002, appellant escaped from prison which is evidenced by a Notice of Escape submitted to the court a quo. He has remained at large."6 (Citations omitted) Version of the Defense In its Brief, the defense averred that the accused had escaped from jail after the presentation of the prosecutions evidence 7 and therefore failed to testify. Ruling of the Trial Court The RTC found appellant guilty beyond reasonable doubt of carnapping with homicide. Held as part of the res gestae were Pedro Paylas statements uttered before his death to his wife, Gina; and to Prosecution Witnesses Joseph Tion and Vicenta Cordino that it was appellant who had stabbed him. His Statement taken by a police officer a day after the incident and on the same day he died, was admitted by the court a quo as a dying declaration. It admitted these pieces of prosecution evidence as exceptions to the hearsay rule. The lower court also ruled that circumstantial evidence indicated that appellant was responsible for the disappearance of the motorcycle. Further, the RTC upheld Joseph Tions testimony that on the pretext of wanting to answer the call of nature, the accused had asked Payla to stop the motorcycle and, without any warning or provocation, stabbed the latter on the back. Finding treachery to have qualified the killing, the lower court imposed on the accused the supreme penalty of death.

Hence, this automatic review.8 The Issues In his 7-page Brief, appellant raises this lone error for our consideration: "The trial court gravely erred in imposing the penalty of death upon the accused-appellant when x x x treachery was not alleged in the Information either as [a] qualifying or as a generic aggravating circumstance."9 In addition to the issue raised by appellant, we find it proper to review first his conviction for carnapping with homicide, as well as the civil liabilities imposed therefor. Since an appeal in a criminal action opens the whole case for review, it becomes the duty of this Court to correct any error in the appealed judgment, whether it has been assigned or not.10 The Courts Ruling The appeal is partly meritorious. Appellant is guilty of homicide only, not carnapping with homicide. First Issue: Culpability of the Accused In every criminal conviction, the prosecution is required to prove two things beyond reasonable doubt: first, the fact of the commission of the crime charged, or the presence of all the elements of the offense; and second, the fact that the accused was the perpetrator of the crime. 11 Elements of Carnapping with Homicide The charge filed against appellant for which he was convicted -carnapping with homicide -- is punishable under Section 2, in relation to Section 14 of RA 653912 as amended by RA 7659.13 Under Section 2 of RA 6539, carnapping is the taking, with intent to gain, of a motor vehicle belonging to another without

the latters consent; or by means of violence against or intimidation of persons; or with the use of force upon things. On the other hand, Section 14 of the same act, as amended by RA 7659, provides: "SEC. 14. Penalty for Carnapping. --- Any person who is found guilty of carnapping, as this term is defined in Section Two of this Act, shall, irrespective of the value of the motor vehicle taken, be punished by imprisonment for not less than fourteen years and eight months and not more than seventeen years and four months, when the carnapping is committed without violence or intimidation of persons, or force upon things, and by imprisonment for not less than seventeen years and four months and not more than thirty years, when the carnapping is committed by means of violence against or intimidation of any person, or force upon things; and the penalty of reclusion perpetua to death shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed or raped in the course of the commission of the carnapping or on the occasion thereof." (Italics supplied) RA 7659 introduced three amendments to the last clause of Section 14:14 (1) the change of the penalty from life imprisonment to reclusion perpetua, (2) the inclusion of rape, and (3) the change of the phrase "in the commission of the carnapping" to "in the course of the commission of the carnapping or on the occasion thereof."15 The Court has held that the third amendment clarifies the intention of the law to make the offense a special complex crime, in the same way that robbery with violence against or intimidation of persons is treated under paragraphs 1 to 4 of Article 294 of the Revised Penal Code (RPC).16 Hence, the prosecution must prove not only that the essential requisites of carnapping17 were present; but also that it was the original criminal design of the culprit, and that the killing was perpetrated "in the course of the commission of the carnapping or on the occasion thereof."18 In the present case, the prosecution had the burden of proving that 1) appellant took the motorcycle; 2) his original criminal design was carnapping; 3) he killed Payla; and 4) the killing was perpetrated "in the course of the commission of the carnapping or on the

occasion thereof." It is undisputed that the motorcycle driven by Payla had been taken without his consent on October 29, 1995, and recovered days later in a cannibalized condition. The elements of taking and intent to gain were thus established. The prosecution also proved it was appellant who had killed him. It failed, however, to discharge its burden of proving the two other requisites of carnapping. Insufficiency of Proof of Carnapping The trial courts finding was that there was indeed no direct evidence showing that appellant had taken the motorcycle driven by Payla.19 The culpability of the former was deduced from the following pieces of circumstantial evidence: 1) the motorcycle was left with him after Payla had run for his life; 2) as shown by the police blotter, the stabbing and carnapping incident was immediately reported to the police; 3) the vehicle was recovered, its parts missing, five days after the accused had been arrested on June 2, 1997 in Cugman, Cagayan de Oro City, which was only about 25 kilometers from the scene of the crime; and 4) the accused escaped while in detention at the provincial jail, 33 days after the prosecution had rested its case. To be sufficient for a conviction, circumstantial evidence must prove that (1) there is more than one circumstance; (2) the facts from which the inferences are derived have been established; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 20 The pieces of circumstantial evidence must also constitute an unbroken chain leading to one fair and reasonable conclusion: that the accused, to the exclusion of all others, is the guilty person. 21 The circumstantial evidence in the instant case is not sufficient to show that appellant is guilty of carnapping. On the contrary, the records and the transcripts of stenographic notes of the proceedings cast doubt on the correctness of the trial courts conclusion that after stabbing Payla, he fled on board the motorcycle or was the last person seen with it. First, there is no mention in the purported antemortem

Statement22 of Payla or in his statement to his wife and the other prosecution witnesses that appellant carnapped his motorcycle. Payla merely stated that appellant had stabbed him twice in the back and once in the face. In fact, the former did not know why he had been stabbed, as he said in response to a query from his wife23 and from Joseph Tion.24 If appellant had wanted to carnap the motorcyle, Payla would have pointed this out as the reason for the attack. Yet, the records show that the former intended only to kill the latter. Tion testified as follows: "PROS. B. APEPE: x x x Q So after Pedro Payla told you that he was stabbed at the back twice by Elgin Latayada, what else happened according to Pedro Payla, if any? A After he was stabbed twice, he asked Elgin what is this now and Elgin Latayada answered that [D]ont ask questions anymore, this is killing already[] and after that, Elgin stabbed him (Pedro Payla) on his left cheek (witness pointing to portion of his left cheek below the ear) and Pedro Payla ran away leaving his motorcycle behind. Q Where did Payla go x x x when he ran away? ATTY BAGABUYO: We object, your Honor. COURT: On what ground? ATTY. BAGABUYO: He just ran away. COURT: (to the witness)

Q Did he tell you where he ran away to? A Yes, your Honor, to the house of Mrs. Condino. PROS. B. APEPE: Q Did he tell you where was Elgin Latayada after he ran towards the direction of the house of Mrs. Condino? A No, sir, Elgin Latayada followed him (P. Payla) about 30 meters from where the motorcycle was and after that distance, I dont know anymore where Elgin Latayada proceeded."25 On the other hand, Gina Payla testified in this wise: "Q When your husband told you that it was Elgin Latayada who stabbed him, did you ask him why? A Yes, sir, I asked my husband why x x x Elgin Latayada stabbed him and he answered [I] do not know why he stabbed me[] and I told him maybe you have a misunderstanding with him and he told me they have no misunderstanding. In fact my husband and Elgin Latayada are schoolmates before and in fact they are also barkada or friend[s]. x x x [T]hat time, Elgin requested him to bring him to Hinopolan but my husband told him []No Gaw, I cannot bring you there because I am going to go home[] but Elgin insisted to bring him to that place and he will pay P30.00. [M]y husband agreed and when they were in the isolated place just before the house of Condino, Elgin told my husband Gaw, stop the motor because I am going to urinate so my husband stopped the motor[cycle]. When Elgin rode at the back of the motorcycle], Elgin tapped the back of my husband (witness demonstrating by placing her two hands on her back just below the shoulder) and when my husband started the motor[cy]cle, put more gas on the engine, right there and then Elgin stabbed my husband (witness pointing to her back right below his left shoulder) and after that he pulled out the knife and again stabbed him (witness pointing to her back just below her right back)

and my husband said What is this Gaw, is this killing already?" and Elgin answered Yes, Gaw, accept your last moment and after that he was about to stab my husband x x x (witness pointing to the left side of her n[e]ck) but my husband was able to crouch and that is why he was hit on the left cheek and he was able to run towards the house of Condino."26 (Italics supplied) Second, still according to Tions testimony, appellant followed Payla for about 30 meters from where the motorcycle stood, then stabbed the latter, who then ran to Vicenta Condinos house for help.27 There is no evidence showing that appellant went back to take the motorcycle; hence, there is no basis for concluding that he stole it. On cross-examination, Tion wavered on whether it was his neighbor -- herein appellant -- whom he had seen with the motorcycle when the former tried to retrieve it. It is likewise unclear from the testimony of Tion whether the motorcycle was already missing at the time. He further testified thus: "ATTY. R. BAGABUYO: (x x x) Q You stated here in this affidavit that you went to where the motorcycle was driven by Pedro Payla to use the same in transporting Pedro Payla to the hospital? A Yes, sir. Q And were you alone in going there? A Yes, sir. Q And you saw the motorcycle driven by Pedro Payla, is it not? A No, sir. Q When you said, "sa diha ako na unta kuhaon ang Motor nga gimaniho ni Pedro, aron maoy among sakyan paingon sa hospital, naa may tawo nga nagsandig sa motor ug nag tanao kanamo nga nagpaingon dito sa motor . . . ," which x x x in English means, when I was

about to get the motorcycle driven by Pedro for the purpose of using it in transporting him (Pedro) to the hospital, I saw a person standing by the motorcycle[,] he was looking at us. What do you mean by that? COURT: (to the witness) Q Before that, which is which, you told the Court just now in your last answer that the motorcycle was not already there, you did not find the motorcycle there, but in your affidavit, you said the motorcycle was there and there was somebody standing near the motorcycle, which is which, which is correct? What is your answer? A What happened, sir, was that as we were about to go to that direction, we met on the way some people and we were not sure if these were the ones who stabbed [Payla], so we were reluctant to proceed, thats why we did not go anymore. Q When you say we, whom are you referring to, who was with you when you were on the way to go there? A The members of Mrs. Condinos household particularly her grandchildren and children. Q How many were you who went there on the way? A There were 4 or 5 of us, I was not so sure because they were only following me. Q Did you not say a while ago that you were alone when you went to the motorcycle, you went by yourself? A Actually, it was I who suggested to go to where the motorcycle was, I went ahead and they followed. x x x I believe it was only their apprehension as to what will happen to me thats why they followed. Q You told the Court that you asked Pedro Payla when you arrived at the Condinos house or residence, you

asked Pedro Payla several times who stabbed him. [And] several times he answered, he told you that it was Elgin Latayada, you remember telling the Court then? A Yes, sir. Q And you also told the Court that even before that date you already knew Elgin Latayada for a long time because, in fact, you were neighbors, is not that correct? A Yes, sir. Q Alright, those people whom you met, by the way, you said you met some people when you were on the way to where the motorcycle was, how many were they whom you met on the way? A Only one (1), sir. Q This person whom you met on the way was not Elgin Latayada? A It was not Elgin Latayada. Q And yet, youre telling the Court that you were somewhat reluctant or worr[ied] to proceed farther because that person you met might have been the one x x x responsible, and yet you told the Court that what Pedro Payla told you that it was Elgin Latayada and the person you met was not Elgin Latayada, how come? Explain to the Court why did you think that probably this was the person thats responsible when Pedro Payla already told you that it was Elgin Latayada and this person you met was not Elgin Latayada? You explain to the Court. A Actually, it did not enter my mind whether that person I met was the one responsible or the perpetrator in Pedro Paylas wounding, that did not enter my mind. Q [W]hen you first testified on that particular point you

said there were people you met thats why the question now did you not tell the Court a while ago that you were reluctant to go any farther because those might be the persons? PROS. B. APEPE: He said he met only one (1) person. Q Alright, let me clarify that point. Earlier on you said on the way to the motorcycle you met some people then later on x x x, you said there was only one person you met on the way, which statement is correct, your statement that you met some people or your latest statement that there was only one? A I only met one person, sir. [I]n fact, when we pass[ed], he was at a distance and I could not clearly see who he was. Q So, in effect, you are correcting what you said earlier that there were some people you met because actually, there was only one person you met? A Yes, sir. Q And you said just now that that person is somewhat at a distance, you could not recognize really who he was, that is what you said just now, is it not correct? A Yes, sir. Q Did you not tell the Court when I was asking you earlier, [and] that you sounded to be quite sure, that that person you met was not Elgin Latayada, you told the Court that earlier, isnt it? A Yes, sir. Q Now you are telling the Court that you cannot clearly see or identify and yet you told the Court earlier that that

was not Elgin Latayada? PROS. B. APEPE: What he said, Your Honor, was they did not actually meet each other. COURT: Q Yes, you said that you saw the person only from a distance thats why you could not clearly see or identify who he was but earlier you told the Court that the one you met was not Elgin Latayada? You try to explain to the Court. A It was only my assumption. I based it on his physical appearance, built, the way he carr[ied] himself, the way he walk[ed] and I thought that this is not Elgin Latayada by the way he walk[ed]. Q Alright, proceed counsel. You have more questions? ATTY. R. BAGABUYO: Yes, Your Honor, based on this question and answer. Q Now, you said you met not many but one [person] on your way to the motorcycle, is that correct? A Yes, sir. Q And therefore, the person you met was not going to that motorcycle but away from the motorcycle, correct? A He was going up, sir. Q In your affidavit on paragraph 6, you said you saw a person standing by the motorcycle. Kindly look again at your affidavit? A No, sir, this is not correct. We were on our way to the

motorcycle when we met that person. Q Is it not a fact that before I [had] this Affidavit marked, x x x I allowed you to read it and after reading it, I asked you whether you are going to affirm and confirm the statement in the affidavit? A This portion was not very clear to me (witness referring to 1-B). Q Is it not also a fact that you x x x mentioned that you read that affidavit before you affixed your signature? A Yes, sir. Q At the time x x x you read the affidavit, you read the entire contents of this affidavit marked now as Exhibit 1, is it not? A Yes, sir. Q And at that time, you found the Question and Answer on paragraph 6 to be true and correct, is it not? A Yes, sir. Q Now, you are saying that that is not correct, is that what you are saying? A No, sir, the policeman who was taking this affidavit did not get me correctly upon my statement here, maybe the policeman based this [on] the statement of Mrs. Condino x x x that her grandchildren went to the place where the motorcycle was[. B]ut actually, I did not go to where the motorcycle was[. Maybe] this statement here was based by the policeman who made this affidavit on what Mrs. Condino told them. Q But at the time when you read this one you did not tell the policeman that that is not correct, is it not?

A I did not, sir. Q As a matter of fact, you did not tell anybody until now that that is not correct? A Yes, sir. Q What is the truth that you did not even attempt to go to where the motorcycle was, is that the truth? A The truth is that we tried to go to where the motorcycle was but we were only 10 meters away from the house of the Condinos. Q And what made you decide not to proceed? COURT: He already explain[ed] that."28 (Italics supplied) On whether the stabbing and carnapping incident was immediately reported to the police, suffice it to state that entries in the police blotter should not be given undue significance or probative value, for these are normally incomplete and inaccurate.29 This dictum applies to the present case with greater force, because the report was made by a truck conductor 30 who was a complete stranger to the incident. As the carnapping by appellant was not proved beyond reasonable doubt, it cannot be said that the killing of Payla was an incident thereof, or that it was committed "in the course of the carnapping or on the occasion thereof." The provisions of the Anti-Carnapping Act are therefore inapplicable. The killing of Payla is punishable under the Revised Penal Code, either as homicide or as murder.31 Proof of Homicide Sufficient We now go to the issue of the culpability of appellant for the killing of Payla. In his Comment32 to the prosecutions Formal Offer of Exhibits, the former questioned the admissibility of the

latters alleged antemortem Statement or dying declaration, which had been taken by SPO1 Victorino Q. Busalla. Asking the RTC to disregard the Statement, appellant pointed out that when it was made, Payla was unaware of his impending death. He also averred that on it appeared a thumbprint that allegedly belonged to Payla, but that has not been authenticated. A dying declaration pertains to ones statement, made under a consciousness of impending death,33 on the cause and the surrounding circumstances thereof. It is given credence on the premise that no one who knows of ones impending death will make a careless and false accusation.34 For a dying declaration to be admissible in evidence, it must be shown that 1) death was imminent and the declarant was conscious of that fact; 2) the declaration refers to the cause and the surrounding circumstances of the death; 3) the declaration relates to facts that the victim was competent to testify on; 4) the declarant thereafter died; and 5) the declaration is being offered in a criminal case in which the declarants death is the subject of inquiry.35 True, Payla made no express statement showing that he was conscious of his impending death. The law, however, does not require the declarant to state explicitly a perception of the inevitability of death.36 The foreboding may be gleaned from surrounding circumstances, such as the nature of the declarants injury and conduct that would justify a conclusion that there was consciousness of impending death.37 In this case, Payla could not talk when his wife arrived at the municipal hospital where he had first been brought. 38 He kept moaning in pain and bleeding profusely from the stab wounds on his back, while he was being transported to the medical center in Cagayan de Oro City.39 Within minutes after arriving there, he lost consciousness40 as a result of one of the stab wounds that penetrated his lungs.41 On the morning before he died, in his wifes presence he lamented that he could no longer raise his children as a result of his condition.42 He died about eight hours after executing his written Statement before SPOI Busalla. 43 There is no merit in the averment that the thumbmark of the

victim, imprinted on his Statement with his own blood, has not been authenticated. His wife, Gina, testified that he could not sign the Statement because of the wound on his back below his right shoulder.44 Thus, SPO1 Busalla held the hand of her husband and imprinted the latters thumbmark on the Statement, 45 which she signed 46 as a witness. Her testimony was corroborated by SPO1 Busalla. As the police officer47 who had taken the Statement of the victim, the former identified the thumbprint appearing thereon as the latters.48 Further testifying that Payla could no longer move his hand to sign the Statement, SPO1 Busalla allegedly placed the formers right thumbprint on it, using as ink the blood drawn from the left side of the victims face.49 In the light of these circumstances, the trial court did not err in admitting Paylas antemortem Statement. Res Gestae No error was committed, either, when the trial court admitted the testimonies of Gina, Vicente Condino and Joseph Tion on the declaration of Payla that it was appellant who stabbed him. The utterances separately made by the victim to each of the witnesses were correctly appreciated as part of the res gestae, since they had been made immediately after a startling occurrence50 and had complied with the following requirements: 1) the statements were spontaneous; 2) they were made immediately before, during and after the startling occurrence; and 3) they related the circumstances thereof.51 Most telling was the declaration made by Payla within minutes after the stabbing, and while he was calling for Vicenta Condino to ask for help. Condino testified thus: "ATTY. I. LICO: x x x Q Your residence is [in] what barangay? A Anopolan.

Q What town? A Claveria. Q Do you own the house where you are living? A Yes, sir. Q Where were you on October 29, 1995 at about 6:00 oclock in the afternoon? A I was in the house. Q Do you recall if there was an unusual incident that happened at th[at] time? A Yes, sir. Q Kindly relate to the Honorable Court what [was] this unusual incident that happened on October 29, 1995 at about x x x 6:00 oclock. A At that time, we were about to take our supper. When I was on the table, somebody came up to the kitchen and I was afraid because I did not know him and he told me[D]ont be afraid, Nang, I am the son of Lucia Payla, I was stabbed by Elgin Latayada and bring me to the hospital. Q And then what happened after that? A I [had] my neighbor Joseph Tion called and when he arrived, I told him [he] will be the one to bring [Payla] to the municipal hospital and [to] inform his parents because I am old, I cannot manage anymore."52 (Italics supplied) Verily, the utterances of Payla to Condino were instinctively made at a time when he had no more opportunity to concoct a fabricated version of the startling event; hence, the words he spoke were credible.53

In the same category were the statements uttered by Payla to his wife, Gina; and to Tion. The transcript of stenographic notes of the proceedings amply shows that the victim identified appellant as the assailant, and that the former narrated details of the stabbing to his wife and to Tion shortly after the incident. Second Issue: Treachery Appellant contends that the RTC erred in appreciating treachery, since it was not alleged as an aggravating circumstance in the Information as required by Sections 8 and 9 of the Revised Rules of Court.54 He argues that the maximum penalty that may be imposed on him is reclusion perpetua, not death. The OSG agrees with his submission. We sustain their position that treachery should not have been considered by the court a quo. Sections 8 and 9 of Rule 110 of the Revised Rules of Court require that the complaint or information shall state, among others, the qualifying and aggravating circumstances as follows: "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. "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 those 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." (Italics supplied) Indeed, a perusal of the Information in this case readily reveals that treachery was not alleged as an aggravating or a qualifying circumstance in the commission of the crime charged. Consistent

with the new Rules, treachery may not be appreciated, because it was not alleged in the Information.55 It is settled that procedural rules are applicable to actions pending and undetermined at the time they were approved, especially when they are more favorable to the accused.56 In the absence of any qualifying circumstance, appellant may be convicted of homicide only. Third Issue: Penalty and Indemnity Under Article 249 of the Revised Penal Code, the imposable penalty for homicide is reclusion temporal, the range of which is 12 years and 1 day to 20 years. Since appellant escaped from confinement after the prosecution had rested, the Indeterminate Sentence Law is not applicable. 57 There being no aggravating or mitigating circumstances, he should be sentenced to reclusion temporal in its medium period.58 As to his civil liability, prevailing jurisprudence imposes the amount of P50,000 as indemnity ex delicto for homicide.59 The award of actual damages in the form of hospitalization and burial expenses, which were adequately proved by receipts, 60 is affirmed. Being adequately supported by the evidence on record, the grant of moral damages in the amount of P50,000 is also affirmed. In addition, the heirs of the victim must also be indemnified for loss of earning capacity of the deceased.61 The widow, Gina, testified that her husbands net daily income was P250. 62 She also testified that they had three children, 63 and that the deceased was 27 years old at the time of his death. 64 The loss of earning capacity is thus computed as follows:65 Net earning capacity = life expectancy 66 x (gross annual income less living expenses67) = 2 ( 80 - 27) 3 x (P90,00068 - P45,000)

= 35.33 x P45,000 = P1,589,850.00

Effect of Appellants Escape When an appellant escapes detention pending appeal, the appeal is normally dismissed, and the lower courts judgment thus becomes final and executory.69 However, this Court has held in People v. Esparas,70 People v. Prades,71 and People v. Raquino72 that this rule does not apply to death cases, in which an automatic review is mandated by law even if appellant has absconded.73 WHEREFORE, the appeal is PARTLY GRANTED. The Decision of the Regional Trial Court of Cagayan de Oro City (Branch 18) in Criminal Case No. 97-917 is herebyMODIFIED as follows: 1. Appellant is found GUILTY of HOMICIDE and is sentenced to suffer imprisonment of 14 years, 8 months and 1 day. 2. Appellant is likewise ordered to pay to the heirs of the deceased the amount of P50,000 as civil indemnity ex delicto, P26,199 as actual damages, P50,000 as moral damages, and P1 ,589,850 for loss of earning capacity. No pronouncement as to costs. SO ORDERED. Davide, Jr., C.J., Puno, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur. Vitug, J., in the result.

[G.R. No. 142380. September 5, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SPO1 DANILO LOBITANIA, accused-appellant. DECISION PER CURIAM: On automatic appeal is the decision[1] of Regional Trial Court of Urdaneta City, Branch 48, Pangasinan, in Criminal Case No. U-10024, convicting accused-appellant SPO1 Danilo Lobitania of the crime of aggravated carnapping with murder and sentencing him to suffer the penalty of death. The dispositive portion of the decision reads: WHEREFORE, JUDGMENT is hereby rendered CONVICTING SPO1 DANILO LOBITANIA beyond reasonable doubt of the crime of Aggravated Carnapping with Murder and the Court sentences him to suffer the penalty of DEATH to be implemented in the manner as provided for by law; Danilo Lobitania is likewise ordered to indemnify the heirs of the victim, Alexander de Guzman, the sum of P75,000.00 as moral damages and another sum of P25,000.00 as exemplary damages and to reimburse the heirs of Alexander de Guzman the sum of P60,000.00 spent for the funeral and other incidental expenses incurred in connection thereto. The Branch Clerk of Court is hereby ordered to prepare the mittimus and to transmit the whole records of this case to the Honorable Supreme Court of the Philippines for automatic review, fifteen days from date of promulgation of this Decision. The Jail Warden, Bureau of Jail Management and Penology, Urdaneta District Jail, Urdaneta City, is hereby ordered to deliver the person of SPO1 Danilo Lobitania to the National Bilibid Prisons, Muntinlupa City, fifteen days from receipt of this Decision. Let copies of this Decision be furnished the Director General, PNP, Camp Crame, Quezon City and the Chief of Police, PNP, Navotas, Quezon City, for their information. SO ORDERED. [2] The amended information charging accused-appellant of carnapping with murder reads as follows:

That on or about December 6, 1998, in the City or Urdaneta and within the jurisdiction of this Honorable Court, accused SPO1 Danilo Lobitania with grave abuse of authority being a member of the Navotas PNP-NPD Command, Navotas, Metro Manila, together with three still unidentified companions, armed with firearms by means of force and intimidation with intent to gain, conspiring with one another, did, then and there willfully, unlawfully, and feloniously take, steal and carry away one Yamaha motorized tricycle with Plate No. 2N-7910 owned by David Sarto and driven at the time by Alexander de Guzman against the latters will and without his consent, and on the occasion of the carnapping or by reason thereof, accused with intent to kill, treachery and taking advantage of superior strength conspiring with one another, did, then and there willfully, unlawfully and feloniously box, hogtie, shoot and push out of the moving tricycle which caused the instantaneous death of said Alexander de Guzman, to the damage and prejudice of his heirs. CONTRARY to R.A. 6539, as amended by Arts. 248, Revised Penal Code, as amended by R.A. 7659. [3] When arraigned on August 17, 1999, accused-appellant, assisted by counsel, pleaded not guilty.[4] The facts of the case as culled from the testimonies of witnesses and records are as follows: Prosecution witness Jolito Sanchez was a cargador at the Navotas Fishport. He first met accused-appellant, Danilo Lobitania, on December 4, 1998 outside a beerhouse at the fishport when the latter ordered fish from him. On December 5, 1998, after the delivery of the fish, accusedappellant offered him a job as a helper in an ice plant in Pangasinan. Sanchez agreed and, together with accused-appellant and his companions Montolo, Sidro, Daniel and Jr. Saburin, they boarded a bus bound for Urdaneta, Pangasinan at around nine o clock in the evening. At the instance of accused-appellant, the group alighted at Barangay Nancayasen and flagged down a tricycle driven by victim Alexander de Guzman. Daniel and Jr. Subarin rode at the back of the driver while accused-appellant, Montolo and Sidro were inside the tricycle with Sanchez in the sidecar. Following accused-appellants instruction, the driver turned left at an alley and after traveling a short distance, the driver was shot at the right side of his chest below the armpit by Montolo. Sidro then grabbed the driver from his seat, tied his hands behind his back and then shoved him out of the tricycle. Sanchez and Jr. Saburin tried to help the driver but Montolo and accused-appellant poked their guns at them

and threatened that the same thing would happen to them if they did not go with accused-appellants group. The group took the tricycle, now driven by Daniel and proceeded towards the direction of Manila. The tricycle driver, shouting saklolo, saklolo, was left behind. Upon reaching a sugarcane plantation, Sanchez and Jr. Saburin, on orders of accused-appellant, detached the sidecar from the motorcycle and left them in separate places inside the plantation. It was already around three oclock in the morning when the group boarded a different tricycle which brought them to the fish market in Urdaneta. At the fish market, Sanchez and Jr. Saburin were told by accused-appellant to stay and wait. However, after two hours of waiting, Sanchez and Jr. Saburin decided to leave and head back for Manila. After Sanchez arrival at his house in Navotas, accused-appellants companion, Daniel, arrived and warned him not to squeal lest something happened to him. Sanchez then went out to look for Jr. Saburin whom he later found out was at the Presidential Anti-Organized Task Force (PAOCTF) in Camp Crame. Sanchez decided to follow Jr. Saburin to Camp Crame and there they revealed to Major Danny Salvador (PAOCTF member) what they knew of the incident in Pangasinan. Sanchez and Jr. Saburin were accompanied by Major Salvador and Police Officer Nolasco to the sugarcane plantation located in Barangay San Agustin, San Manuel Tarlac where the sidecar [5] and motorcycle [6] were left but they found only the chain and cover. They did not find the sidecar and motocycle because these were already in the custody of the barangay captain of San Agustin, San Manuel, Tarlac who recovered the items on December 6, 1998. Thereafter, they went to the Urdaneta Police Station where Sanchez and Jr. Saburin gave their sworn statements regarding the theft of the tricycle and the killing of its driver whom they later identified as victim Alexander de Guzman. The Urdaneta police received the report of the killing of de Guzman, the recovery of the sidecar on December 6, 1998 and of the tricycle on December 12, 1998 from the police authorities of San Manuel, Tarlac where these items were found. The owner, David Sarto, went to the San Manuel police station, identified the sidecar and motorcycle as his, and stated that the vehicle was regularly driven by victim de Guzman. Based on the autopsy report of Dr. Ramon Gonzales, City Health Officer of Urdaneta City, driver de Guzman died due to hypovolemic shock due to gunshot wound, lungs, right. [7] Accused-appellant assails the credibility of prosecution eyewitness

Sanchez. He alleges that Sanchez is a member of the Tirtir Gang, a syndicate led by Rizalito Galinato, alias Boy Muslim, who was arrested by accused-appellant on November 4, 1998. Accused-appellant claims that Sanchez, on orders of Boy Muslim, concocted his testimony to avenge Boy Muslims publicized arrest[8] by accused-appellant. According to accused-appellant, a multi-awarded policeman of seventeen years, the testimony of Sanchez, a mere cargador who had no permanent employment, should not be believed over his. Accused-appellant likewise puts up the defense of denial and alibi. At the trial, he presented defense witness SPO1 Michael Legaspi, the leader of the SMART-SWAT Team to which accused-appellant belongs, who testified that accused-appellant reported for work on December 6 and 7, 1998, from eight oclock in the morning until eight oclock at night. Accused-appellant also presented his wife, Valeriana Lobitania, to corroborate his alibi that, on the night of the incident, he was at home in Commonwealth Avenue, Quezon City, from ten oclock onwards. On 21 December 1999, the trial court rendered a decision finding accused-appellant guilty beyond reasonable doubt of aggravated carnapping with murder and sentenced him to suffer the supreme penalty of death. The accused-appellant raises the following errors in his brief: I. THE LOWER COURT ERRED IN CONVICTING HIM WHEN THE EVIDENCE PRESENTED BY THE PROSECUTION WAS INSUFFICIENT TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

II. THE LOWER COURT ERRED IN ORDERING THAT THE APPELLANT COMPENSATE THE PRIVATE COMPLAINANTS WITH DAMAGES. We affirm the decision of the trial court. After a thorough review of the records, we find that the prosecution was able to prove that accused-appellants guilt beyond reasonable doubt. Based on the facts proven, the offense committed by accusedappellant is the special complex crime of qualified carnapping or carnapping in an aggravated form[9] under Section 14 of Republic Act No. 6539, the Anti-Carnapping Act of 1992, as amended by Section 20 of Republic Act No. 7659, the Death Penalty Law, which took effect on 31 December 1993. Section 2 of R. A. 6536 as amended, defines the crime of carnapping as the taking, with intent to gain, of a motor vehicle belonging to another

without the latters consent, or by means of violence against or intimidation of persons, or by using force upon things. It becomes qualified when in the course of the commission or on occasion of the carnapping, the owner, driver or occupant of the carnapped vehicle is killed or raped.[10] When the carnapping is qualified, the penalty imposable is reclusion perpetua to death.[11] In the case at bar, all the elements were duly proven by the prosecution. Based on the testimony of Sanchez, [12] accused-appellant and his companions shot the driver of the tricycle, abandoned him and took possession of the vehicle. [13] The testimony of Sanchez that the driver was unknown to the group clearly establishes the fact that the motive of accused-appellant was to steal the tricycle and that the killing of the driver was incidental thereto. COURT: Q: You know if the driver of the tricycle was known to Lobitania when he was flagged down? A: No, sir. xxx xxx xxx Q: Was Montolo known to the driver? A: No, sir. [14] Accused-appellant assails the credibility of the lone eyewitness, Jolito Sanchez. We do not share his doubts. The defense was unable to prove that prosecution witness Sanchez was impelled by an improper motive allegedly to avenge his supposed gang leaders (Boy Muslim) arrest - in testifying against accused-appellant. No evidence was adduced to show that Sanchez was a member of the Tirtir Gang and that his testimony was a vengeful fabrication. Furthermore, the defense failed to prove that Sanchez was not present at the scene of the crime. The witness testimony thus leaves no other conclusion but that he, indeed, witnessed the killing of victim de Guzman and the taking of his tricycle. Sanchez testimony was clear, categorical and consistent despite exhaustive crossexamination: ATTY. BINCE: Q: How long have you traveled the alley when you heard the gunshot? A: I do not know, sir. Q: Have you traveled already a long distance when you heard the gunshot?

A: No when there was a gun fired the tricycle stopped. Q: When the driver stopped after you heard the gunshot did you see who fired the gun? A: Yes, sir. Q: After you saw Montolo fired the shot Sidro pulled the tricycle driver pushed into the sidecar of the tricycle? A: Sidro pulled the driver from the seat. Q: After Sidro pulled the driver from his seat where was the driver pulled? A: He pulled and pushed him inside the tricycle. Q: After he was pulled into the sidecar of the tricycle according to you he was pushed outside by the tricycle by Sidro? A: Not yet he was tied. Q: What was tied? A: Witness demonstrating the hands at the back then tied. Q: And the person who did this was Sidro is that correct? A: Yes, sir. Q: And after the drivers hands were tied by Sidro what happened next if any? A: Montolo went outside the sidecar and pushed the driver on the road. Q: And what happened to the driver when he was pushed by Montolo into the road? A: The driver told SAKLOLO, SAKLOLO. Q: In your testimony you said that you were about to help him when Danilo Lobitania allegedly pointed a gun at you is that correct? A: Yes, sir. Q: Montolo and Danilo Lobitania told you come with us if you do not want to be involved is that correct? A: Yes, sir. Q: In other words you are telling the court that Danilo Lobitania acted

only after Montolo fired at the driver after Sidor tied him after Montol pushed him outside the tricycle that is what really happened is it not? A: Yes, sir. [15] Besides, well-settled is the rule that the assessment of the witnesses credibility and their testimonies is a matter best undertaken by the trial court.[16] Thus, appellate courts will not usually interfere with the judgment of trial courts on the credibility of witnesses unless there appears in the record some fact or circumstance of weight and influence which the trial court has overlooked or the significance of which it has misapprehended or misinterpreted.[17] In the present case, the findings of the trial court are amply supported by the evidence. The fact that Sanchez failed to mention EIigio Jr. Saburin in his sworn statement is not a material error to warrant his impeachment as a credible witness. On re-direct examination, he adequately explained why he did not mention Jr. Saburin in his sworn statement: PROS. BINCE (sic): Q: Why did you not mention in your statement the name of Jr. Saburin as one of your companion (sic) when you went to Pangasinan on December 5, 1998? A: Because we were two when they took our statement I thought they included them there. Q: You have been testifying about you and Jr. Saburin in going to Pangasinan is that correct? A: Yes, sir. Q: In your statement here you said you did not mention the name Jr. Saburin as one of your companion (sic) here in going to Pangasinan? A: I did not mention. Q: Why did you not mention Jr. Saburin in your statement? A: We were two when we were investigated. I thought Jr. Saburin has already stated.[18] His explanation on re-direct is bolstered by his use of the pronoun we in his sworn statement. When asked to relate the incident, he started his narration by saying we were offered job (sic) as a ice plant helper by SPO1 Danilo Lobitania PNP member of the Navotas Police Office

xxx.[19] It is clear from his testimony on re-direct as well as his sworn statement that he was assuming the investigating officers understood his narration to already include Jr. Saburin. The fact that Sanchez failed to point out the omission of Jr. Saburins name when Prosecutor Ambrosio later read his statement to him did not weaken his testimony inasmuch as this was still consistent with his assumption that the officers understood the inclusion of Jr. Saburins name in his narration. This Court has repeatedly ruled that inconsistencies between the sworn statements and direct testimony given in open court do not necessarily discredit the witness since affidavits are oftentimes incomplete and are generally inferior to the testimony of the witness in open court. [20] The categorical testimony of Sanchez positively identifying accusedappellant as the perpetrator of the crime prevails over the accusedappellants defense of denial and alibi. [21]This Court has repeatedly ruled that the defense of alibi is always considered with suspicion or caution, not only because it is inherently weak and unreliable but also because it can be fabricated easily to suit the ends of those who propound it. [22] Denial and alibi, if not substantiated by clear and convincing evidence, are negative and self-serving evidence and bear no weight in law. [23] The only witness who corroborated his alibi that he was at home the night of the incident was his wife, Valeriana. Although mere relationship of a party does not militate against the credibility of a witness, [24] this Court has long ruled that alibi becomes less plausible as a defense when it is corroborated by relatives whose motives are suspect, for it must receive credible corroboration from disinterested witnesses. [25] Also, for alibi to prosper, it must be shown that it was physically impossible for the accused-appellant to have been at the scene of the crime at the time of its commission. [26] The fact that accused-appellant reported for work in Navotas, Metro Manila at eight oclock in the morning on December 6, 1998, several hours after the incident, did not at all negate the possibility that he could have been in Pangasinan at two oclock[27] in the morning perpetrating the carnapping and killing of de Guzman. Accused-appellants wife Valeriana testified that her husband left their house in Commonwealth, Quezon City at six thirty oclock in the morning of December 6, 1998, the day of the incident. The distance from Urdaneta, Pangasinan (where accused-appellant boarded a bus to Manila[28] around three oclock in the morning) to Commonwealth Avenue (where accused-appellant lived) is approximately 200 kilometers, a distance that can easily be covered in three-and-a-half (31/2) hours, especially in the wee hours of the morning when traffic is extremely light. We further affirm the finding of the trial court that conspiracy was

present in the commission of the crime. The unity in purpose and design was evident in the execution of the crime: the tricycle driver was ordered to turn left at an alley from the highway by accused-appellant; Montolo fired at the driver; Sidro grabbed the driver, tied his hands and pushed him out of the tricycle; Daniel and accused-appellant both poked their guns at prosecution witness Sanchez and Jr. Saburin and threatened them; Daniel drove the tricycle after the driver was left on the road. Longsettled is the rule that in conspiracy, the act of one is the act of all. All are deemed guilty of the crime committed regardless of who fired the fatal shot.[29] Now for the proper imposable penalty. As the crime was committed on December 6, 1998, R. A. 7659 applies to the case at bar. Under the amendatory law, the penalty ofreclusion perpetua to death is imposed when the owner, driver or occupant of the carnapped motor vehicle is killed or raped in the course of the commission of the carnapping or on occasion thereof. In imposing the penalty for a crime punishable by two indivisible penalties, Article 63 of the Revised Penal Code provides that when there is no mitigating or aggravating circumstance, the lesser penalty should be applied.[30] In the present case, however, we find that there was one aggravating circumstance: abuse of superior strength. We thus uphold the penalty of death imposed by the trial court but not for the reasons stated by the court below. In imposing the death penalty, the trial court considered three aggravating circumstances against the accused-appellant: the use of unlicensed firearms, grave abuse of authority and treachery. We agree with the penalty; we do not with the justification. The use of unlicensed firearms was not alleged in the information and cannot therefore be taken against accused-appellant. Grave abuse of authority also cannot be appreciated inasmuch as it was not proven that accused-appellant took advantage of the prestige or ascendancy of his position as a police officer. [31] Treachery cannot likewise serve to aggravate the crime inasmuch as it only applies to crimes against persons.[32] Accused-appellant is found guilty of qualified carnapping or carnapping in an aggravated form, a special complex crime, which is essentially a crime against property. The Courts ruling in People vs. Tan, [33] penned by Chief Justice Hilario G. Davide, Jr., is clear on this matter: There is no arguing that the anti-carnapping law is a special law, different from the crime of robbery and theft included in the Revised Penal Code. It particularly addresses the taking, with intent to gain, of a motor vehicle belonging to another without the latters consent, or by means of violence

against or intimidation of persons, or by using force upon things. But a careful comparison of this special law with the crimes of robbery and theft readily reveals their common features and characteristics, to wit: unlawful taking, intent to gain, and that personal property belonging to another is taken without the latters consent. However, the anti-carnapping law particularly deals with the theft and robbery of motor vehicles. Hence a motor vehicle is said to have been carnapped when it has been taken, with intent to gain, without the owners consent, whether the taking was done with or without the use of force upon things. Without the anti-carnapping law, such unlawful taking of a motor vehicle would fall within the purview of either theft or robbery which was certainly the case before the enactment of said statute. So, essentially, carnapping is the robbery or theft of a motorized vehicle and it becomes qualified or aggravated when, in the course of the commission or on the occasion of the carnapping, the owner, driver or occupant is killed or raped. As we have ruled in People vs. Mejia: [34] the killing or the rape merely qualifies the crime of carnapping xxx and no distinction must be made between homicide and murder. Whether it is one or the other which is committed in the course of carnapping or on the occasion thereof makes no difference insofar as the penalty is concerned. It is similar to the special complex crime of robbery with homicide and in People vs. Bariquit,[35], we ruled that: In the present case, the accused-appellants were charged with, tried, and convicted for the crime of robbery with homicide. In our jurisdiction, this special complex crime is primarily classified as a crime against property and not against persons, homicide being a mere incident of the robbery with the latter being the main purpose and object of the criminal. Under Article 14 of the Revised Penal Code, treachery is applicable only to crime against persons. Accordingly, inasmuch as robbery with homicide is a crime against property and not against persons, treachery cannot be validly considered in the present case. The separate opinion of Justice Jose C. Vitug in People vs. Cando[36] is also very enlightening: Robbery with homicide is a special complex crime where homicide is committed by reason or on occasion of robbery. In the same way that

alevosia will not result in qualifying the offense to murder, where the original and real intent of the accused is robbery, so, also, must treachery be ignored in aggravating this special crime. Robbery with homicide is an offense against property under Title Ten, Book Two, of the Revised Penal Code, and treachery is an aggravating circumstance obviously applicable only to crimes against persons under Title Eight, Book Two, of the same Code. In sum, therefore, since qualified carnapping is a crime against property, the trial court erred in appreciating treachery inasmuch as the latter can only be considered in crimes against persons. This provides no comfort to accused-appellant, however, because we find that the crime was aggravated by the abuse of superior strength, a circumstance alleged in the information and duly proven by the prosecution. We have ruled that this aggravating circumstance is present not only when the offenders enjoy numerical superiority, or when there is a notorious inequality of forces between the victims and the aggressors, but also when the offenders use powerful weapons out of proportion to the defenses available to the offended party.[37] These were all present in the case at bar. The six perpetrators, two of whom were armed, deliberately used their combined strength and weapons to wrest control of the tricycle driven by the unarmed, 54 tall and 120-pound [38] victim de Guzman. On this score, let this case serve as a warning to the officers of the law who choose to betray society. We extend no sympathy or mercy to accused-appellant, notwithstanding his supposedly sterling record of 17 years in the police force. This one act of unforgivable atrocity by one who has sworn to uphold the law and be the protector of the people is enough to wipe out whatever good deeds he might have done in the past. With regard to the accused-appellants civil liabilities, this Court awards seventy-five thousand pesos (P75,000.00) as civil indemnity to the heirs of the victim.[39] We reduce the award of moral damages to fifty thousand pesos (P50,000.00) in the light of current jurisprudence on the matter.[40] The award of exemplary damages on the basis of the fact that one aggravating circumstance attended the commission of the crime, is affirmed.[41] No actual damages can be awarded inasmuch as no receipts were presented by the victims family regarding funeral expenses or by the owner of the carnapped tricycle regarding repair expenses. We have time and again ruled that only substantiated and proven expenses will be recognized to justify an award for actual damages. [42]

Three members of the Court maintain their position that Republic Act No. 7659, insofar as it prescribes the death penalty, is unconstitutional; nevertheless they submit to the ruling of the Court, by majority vote, that the law is constitutional and the death penalty should be accordingly imposed. WHEREFORE, the decision dated 21 December 1999 of the Regional Trial Court of Urdaneta City, Branch 46, in Criminal Case No. U10024 finding accused appellant guilty beyond reasonable doubt of qualified carnapping (or carnapping in an aggravated form) is AFFIRMED with MODIFICATIONS. Accused-appellant is sentenced to suffer the penalty of DEATH and is ordered to pay the heirs of the victim Alexander de Guzman the sum of P75,000 as civil indemnity, P50,000 as moral damages and P25,000 as exemplary damages. In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let certified copies hereof, as well as the records of this case, be forwarded without delay to the Office of the President for the possible exercise of executive clemency. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, and Corona, JJ., concur. Sandoval-Gutierrez, J., on leave. Carpio-Morales and Callejo, Sr., JJ., no part.

G.R. Nos. 118940-41 and G.R. No. 119407 July 7, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GREGORIO MEJIA y VILLAFANIA, EDWIN BENITO, PEDRO PARAAN, and JOSEPH FABITO, accused-appellants.

DAVIDE, JR., J.: In the evening of 10 March 1994, along the expressway at Barangay

Ventinilla, Sta. Barbara, Pangasinan, several persons on board a passenger jeepney driven by Teofilo Landingin attacked the latter and a passenger, Virgilio Catugas, thereby inflicting upon them multiple stab wounds. Landingin was pulled out from his seat and dumped on the shoulder of the road. One of the attackers took the wheel of the jeepney and drove away. Catugas was thrown out to the middle of the road when the jeepney started to move away. Landingin died as a consequence of the injuries he sustained. Catugas survived. Held to account for the above acts were Gregorio Mejia, Edwin Benito, Pedro Paraan, Joseph Fabito, Romulo Calimquim, one alias Dennis, Alex Mamaril, one alias Mondragon, and another unidentified person. Mejia and Benito were taken into police custody a few hours after the incident; Paraan, the following day; and Fabito, five days after. Calimquim was found dead three days after the incident in question, while the others have remained at large. Three separate criminal complaints for murder, 1 frustrated murder, 2 and violation of R.A. No. 6539 (Anti Carnapping Act of 1992, as amended) 3 were filed against them with the Municipal Trial Court of Sta. Barbara, Pangasinan. Despite service on them of subpoenas requiring submission of counteraffidavits, accused Mejia, Benito, Paraan, and Fabito and did not submit their counter-affidavits. On 9 May 1994, Judge Lilia C. Espanol issued an order 4 declaring the accused "to have waived their right to be heard in preliminary investigation"; finding a prima facie case against the accused; recommending that they be charged with and prosecuted for the crimes of murder, frustrated murder, and violation of R.A. No. 6539, as amended; and ordering that the records of the cases be forwarded to the Office of the Provincial Prosecutor for appropriate action. After appropriate proceedings, the Office of the Provincial Prosecutor of Pangasinan filed with the Regional Trial Court (RTC) of Dagupan City three separate informations for murder, frustrated murder, and violation of the Anti-Carnapping Act of 1972, as amended, against the aforenamed persons. The informations were docketed as Criminal Cases Nos. 9400617-D, 94-00619-D, and 94-00620-D, respectively. The first was later amended. The accusatory portions of the informations read as follows: CRIMINAL CASE NO. 94-00617-D (as amended)

That on or about March 10, 1994 in the evening along the expressway at barangay Ventinilla, Municipality of Sta. Barbara, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with knives with intent to kill, treachery, evident premeditation and taking advantage of superior strength, conspiring, confederating and mutually helping one another, did then and there wilfully, unlawfully and feloniously attack and stab TEOFILO LANDINGIN inflicting upon him stab wounds which caused his instant death to the damage and prejudice of his heirs.
Contrary to Art. 248 of the Revised Penal Code as amended by Republic Act No. 7659. 5

CRIMINAL CASE NO. 94-00619-D That on or about March 10, 1994 in the evening along the expressway at barangay Ventinilla, Municipality of Sta. Barbara, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with knives and with intent to kill, treachery, evident premeditation, and taking advantage of superior strength, conspiring, confederating and mutually helping one another, did then and there wilfully, unlawfully and feloniously attack and stab VIRGILIO CATUGAS Y CASTAEDA inflicting upon him multiple stab wounds, the accused having then performed all the acts of execution which would have produced the crime of Murder as a consequence but which nevertheless, did not produce it by reason of causes independent of the will of the accused and that is due to the timely and able medical assistance rendered to said Virgilio Catugas y Castaeda which prevented his death to his damage and prejudice.
Contrary to Art. 248 in relation with Art. 6 of the Revised Penal Code. 6

CRIMINAL CASE NO. 94-00620-D That on or about March 10, 1994 in the evening along the expressway at barangay Ventinilla, Municipality of Sta. Barbara, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused armed with

knives by means of violence against person by stabbing to death TEOFILO LANDINGIN, owner-driver of a passenger jeep bearing Plate No. APP-432 with marking Lovely and thereafter with intent to gain, conspiring, confederating and mutually helping one another did then and there wilfully, unlawfully and feloniously take and drive away said passenger jeep bearing Plate No. APP-432 with marking Lovely owned and driven by Teofilo Landingin without the latter's consent, to the damage and prejudice of his heirs.
Contrary to Republic Act 6539 as amended. 7

The first two were assigned to Branch 44 of the RTC of Dagupan City presided by Judge Crispin C. Laron (hereafter, LARON court) and thereafter consolidated and jointly tried. The third was assigned to Branch 43 of the said court presided by Judge Silverio Q. Castillo (hereafter, CASTILLO court). At their arraignments, Mejia, Benito, Paraan, and Fabito entered a plea of innocence in each case. I THE CASE IN THE LARON COURT In Criminal Case No. 94-00617-D (Murder) and Criminal Case No. 9400619-D (Frustrated Murder) in the LARON court, the prosecution presented the following witnesses: Virgilio Catugas, policemen Dominguillo Gulen and Bernardo Clemente, Dr. Cristito Garcia, Ma. Nora Landingin, and Dr. Roberto Valenzuela. Virgilio Catugas was recalled as rebuttal witness. In their defense, accused Mejia, Benito, Paraan, and Fabito took the witness stand. They also presented as additional witnesses Roberto Lambot, Shirley Lomboy, Conrado Benito, policeman Bernardo Clemente, and Felicidad Fabito in their evidence in chief and Julia Paraan as sur-rebuttal witness. The evidence for the prosecution in these cases may be summarized as follows: At around 7:00 p.m. of 10 March 1994, Virgilio Catugas was in front of the CSI Supermarket in Dagupan City waiting for a transportation to take him to his home at Talibaew, Calasiao, Pangasinan. Later, a passenger jeepney plying the Dagupan City Calasiao route and driven by Teofilo

Landingin arrived. He boarded it and occupied that portion of the passengers' seat behind the driver's seat. There were already some passengers inside the jeepney, but they disembarked before the jeepney reached the boundary of Dagupan City and Calasiao, leaving behind Landingin, Catugas, and two other passengers. 8 When the jeepney reached the MacArthur Highway in San Miguel, Calasiao, nine persons flagged down the jeepney and boarded it. One of them, whom Catugas identified to be accused Edwin Benito, sat beside the driver; the rest took the passenger seats behind the driver's seat. Catugas fully recognized Benito because there was light at the ceiling of the jeepney and at the "signboard" portion of the jeepney and the latter sometimes turned his face toward the back where Catugas was seated. Catugas had further observed Benito's face, ears, and eyes. 9He also recognized accused Mejia, Fabito, and Paraan. 10 The nine passengers told Landingin that they were bound for Pangasinan Village Inn (PVI) in Bued, Calasiao. But when they reached PVI, one of them said that his companions did not know where they were going, and informed Landingin that he would take care of the fare upon reaching Nansangaan, Sta. Barbara, Pangasinan. Upon reaching Nansangaan, one of the nine passengers asked Landingin to drive a little farther. Later, Mejia asked Catugas whether he was Landingin's companion; Catugas answered in the affirmative. Mejia then announced: "[T]his is a hold-up"; while Benito said: "[N]obody will be able to be saved his life [sic]." Another companion of Mejia said: "Proceed." All of the nine drew their daggers and stabbed Landingin and Catugas. 11 Landingin died on that same evening. Dr. Cristito Garcia, who conducted an autopsy on Landingin's cadaver, found three stab wounds two of which were fatal. According to him, the cause of Landingin's death was cardiorespiratory arrest resulting from hypovolemic shock due to internal hemorrhage. 12 Nora Landingin, wife of Teofilo Landingin, spent P1,500 daily during the wake of her husband; P12,000 for his burial; and P16,000 for the tomb. Nora felt sad because of his death. 13 On the other hand, Catugas, who was pushed out of the jeepney and landed on the road, was brought by some people to the Villaflor Memorial Hospital. 14 Dr. Roberto Valenzuela performed on Catugas exploratory laparatomy debridement and found three multi-lacerations in the right upper extremities and several others on the left upper extremities which could have been caused by bladed instruments. 15 Catugas survived and

was confined for seven days. He spent more than P50,000 for his hospitalization and medical expenses. The hospital billed him in the amount of P44,667.25. 16 In the same evening of 10 March 1994, while Policeman Dominguillo Gulen of the Mabini Police Station, Mabini, Pangasinan, was approaching his residence at the poblacion in Sual, Pangasinan, on board a police patrol car, he saw six men walking in front of his house. When he stopped the car, the men ran away. He gave chase and caught two of them, namely, accused Mejia and Benito. Gulen thought that they belonged to an "akyat-bahay gang." When asked what they were doing, the two answered that they were not doing anything and that they were not robbers. They told Gulen that they were from Sta. Barbara. Benito even showed his driver's license and told Gulen that he did not commit any crime and that he was willing to go to the police station. Gulen then brought the two and turned them over to the police station in Sual, Pangasinan. 17 Policeman Bernardo Clemente, who was the desk officer at 1:00 a.m. of 11 March 1994, entered in the police blotter this turn-over and talked to the two. In the course of their conversation, Benito reported that they rode on a jeepney, which was abandoned somewhere in Sual. Clemente decided to make a follow-up of this report. With Benito as their guide, Clemente and three other policemen were able to find the jeepney with the marking LOVELY in Sitio Nipa, Barangay Baguioen, Sual, Pangasinan. The jeepney had bloodstains on the front and back seats. They brought it to the police station and had the matter recorded in the police blotter. Clemente then instructed the radio operator to call the police station of Sta. Barbara and inform it of the turn-over of Mejia and Benito. At 1:45 a.m. of 11 March 1994, the PNP elements of Sta. Barbara Police Station came and received the two, as well as the passenger jeepney. 18 Also on 11 March 1994, at 12:00 noon, some concerned citizens of Sual apprehended Joseph Fabito in Sitio Looc, Poblacion Sual, as a murder suspect. He was turned over to the Sual Police Station. After having been informed of this arrest, the Sta. Barbara Police Station took him into its custody. These facts were entered in the Sual Police Station blotter. 19 The accused admitted to having flagged down and boarded Landingin's jeepney that fateful evening of 10 March 1994, but denied having committed the crimes. They claimed that it was Romulo Calimquim and

his companions who killed Landingin, stabbed Catugas, and drove away the jeepney. The following is a summary of their version of the events. Edwin Benito, a resident of Ventinilla West, Sta. Barbara, Pangasinan, was the driver of the Elf truck of Lito Lomboy of Bued, Calasiao, Pangasinan, which was used in hauling sand and gravel. His co-accused Mejia Paraan and Fabito were his helpers. At around 3:00 p.m. of 10 March 1994, after they completed delivering sand and gravel, the accused returned the truck and went to the house of Fabito's brother-in-law in San Miguel, Calasiao. After two hours of waiting in vain for the brother-in-law, Paraan suggested that they go to the house of his future brother-in-law in Bacayao Norte, Calasiao. After some snacks they proceeded to the town proper and strolled for a while. Then, Benito thought that it was time to go home to Sta. Barbara and suggested that they should. They proceeded to a waiting shed near the National High School to wait for a transportation for Sta. Barbara. At the waiting shed, they saw Romulo Calimquim with three other companions, who were also waiting for a transportation for Sta. Barbara. Calimquim then flagged down an approaching passenger jeepney. He and his companions boarded it. So did Benito and his companions. Calimquim sat beside the driver. The rest took the back seat. 20 According to Paraan, it was Alex Mamaril, the man with a "huge body," who sat beside the driver. 21 At the junction of the roads leading to the Municipal Hall of Sta. Barbara and that leading to the national highway, the man who sat beside the driver (Calimquim, according to Benito; Mamaril, according to Paraan) ordered the driver to proceed to the national highway; the driver did. But after reaching the highway, in Ventinilla, Sta. Barbara, the former ordered the latter to stop, announced that "this is a hold up," then stabbed the driver several times, pulled his body out of the jeepney, took over the wheel, and drove the jeepney. 22 In the meantime, at the back seat, one of the companions of Calimquim pointed a knife at Benito; while the others told Benito's companions to lie on their belly. It was when Catugas attempted to fight back that he was stabbed. 23 Catugas was then thrown out of the jeepney. 24 Benito and his companions were prevented by the group of Calimquim from alighting from the jeepney. Upon reaching a mountain in Sual, Pangasinan, 25 the man on the wheel ordered Benito, Mejia, Paraan, and

Fabito to alight from the jeepney. The group of Calimquim pointed knives 26 and a gun 27 at them. Then suddenly there was a light coming from below. They ran away from the group of Calimquim. 28 Benito and Mejia were together. 29 Later, a policeman saw them. The two told the policeman that they are not "troublesome persons." The policeman brought them to the Police Station of Sual. There, Benito reported what had happened and accompanied the policemen to the place where the jeepney in question was located. 30Afterwards, the two were detained at Sta. Barbara Police Station. While in detention, they were informed that Calimquim was killed and his body was found in Alaminos. 31 Paraan lost his way. He returned to Sta. Barbara only on 14 March 1994 and went to the house of Roland, his brother-in-law, in Bacayao Norte, to ask him to request a barangay councilman to accompany him to the police station. It was the barangay captain who accompanied him the following day to the police station. There, the police authorities told him that he was among the assailants of Landingin and that he was the one who stabbed Catugas in the night of 10 March 1994 and one of the suspects in the carnapping of the jeepney of Landingin. 32 Paraan was forthwith placed inside the jail. Fabito stayed for awhile in the mountain. At 2:00 a.m. of 11 March 1994, he was by the seashore. He stayed there until 6:00 a.m. and inquired from someone the location of the police station. He went to that station which happened to be Sual Police Station. There, he narrated to the policemen what had happened. When a policeman asked him whether he was the killer, he answered in the negative. At around 1:00 p.m., he was brought to the Sta. Barbara Municipal Jail, where he was detained for three months. Then, he was committed to the Provincial Jail. 33 Sometime after Catugas was discharged from the hospital and was already driving a tricycle, the parents of the accused met with him and informed him that the accused told them that they (the accused) did not commit any wrong. Catugas answered that he had suffered several wounds and spent much for his hospitalization and that since the accused were the ones apprehended, he would just tell a lie so he could recover the amounts he spent. Catugas then asked P20,000 from each of the accused, or a total of P80,000, and repeated this demand five to six

times. 34 The defense, through the testimony of Policemen Bernardo Clemente, also proved that Romulo Calimquim died due to a gunshot wound on 13 March 1994 in Barangay Paitan West, Sual, Pangasinan, as evidenced by Entry No. 4338 of Page 260 of the Police Blotter. 35 On rebuttal, Catugas insisted that it was accused Edwin Benito who stabbed Landingin and that accused Mejia, Paraan, and Fabito were the ones who stabbed him. He further declared that it was the parents of the accused who offered to pay him, but he refused because such an offer could not "be accepted by [his] conscience." 36 The defense then presented Julia Paraan as surrebuttal witness. She denounced as untrue the testimony on rebuttal of Catugas that the parents of accused were the ones who offered to pay him money. Julia declared that they visited Catugas to ask him whether it was true that their children committed the crime. On their first visit, Catugas told them that he could not yet answer that question; but when they returned, Catugas told them that they had to pay the aggregate sum of P80,000, or P20,000 per family of the accused. 37 The trial court gave full credit to the version of the prosecution and relied heavily on the identification of the accused by Catugas, the absence of ulterior motive on the part of the latter, and the offer of the parents of the accused to compromise the cases. In its decision dated 17 November 1994, 38 the LARON court convicted accused Mejia, Benito, Paraan, and Fabito of the crime of murder and of frustrated murder, with treachery as the qualifying circumstance and nighttime and band as aggravating circumstances. Accordingly, it sentenced the first three accused to suffer the penalty of death for the crime of murder; and ten years and one day of prision mayor to seventeen years, four months, and one day of reclusion temporal for the crime of frustrated murder. It credited Paraan with the privileged mitigating circumstance of minority, he being only seventeen years old at the time of the commission of the crimes charged; and sentenced him to reclusion perpetua for murder, and six years of prision correccional to ten years an one day of prision mayor for frustrated murder. The Court also ordered the four accused to pay the heirs of Teofilo Landingin the amounts of P50,000 as death indemnity; P16,000 for the cost of the tomb; and P12,000 for funeral expenses; and to pay Catugas the amount of P44,687.25 for

hospital expenses, plus costs. II THE CASE IN THE CASTILLO COURT In Criminal Case No. 94-00620-D (violation of the Anti-Carnapping Act) in the CASTILLO Court, the prosecution presented as its witnesses Virgilio Catugas and Nora Landingin. The former was recalled as rebuttal witness. The accused Mejia, Benito, Paraan, and Fabito took the witness stand and presented as additional witnesses Conrado Benito and Felicidad Fabito. Their testimonies were substantially the same as those they made in the murder and frustrated murder cases in the LARON court. Prosecution witness Virgilio Catugas added that after Landingin was stabbed, he was thrown out of the jeepney to the shoulder of the road and that one of the culprits took the wheel of the jeepney, started off its engine, and drove off. 39 He further declared that while he was confined at the hospital, the policemen of Sta. Barbara investigated him, showed him pictures of the suspects, supplied the suspect's names, 40 and took his statement.41 After he was discharged therefrom, he was able to talk with the father of accused Benito. He told the father of his hospitalization expenses and asked P80,000, as a settlement of the case, to be paid by the parents of the accused on an agreed date; but before that date came, he had already testified against the accused. 42 Prosecution witness Nora Landingin, widow of Teofilo Landingin, further testified that her husband owned the passenger jeepney in question, as evidenced by Certificate of Registration No. 19253856, 43 and Official Receipt No. MVRR 91354948. 44 The jeepney was worth P140,000. 45 The CASTILLO court gave full faith to the testimony of Virgilio Catugas. It debunked the version of the defense on account of the following "inculpating evidence," which, according to it, bolstered its finding that the accused were the authors of the crime charged: 1. Accused Gregorio Mejia, Edwin Benito, Joseph Fabito and Pedro Paraan speak of innocence and fear for their lives during the ruthless incident, unfortunately they never sustained any bodily injury on their bodies. If the intention of Mok Calimquim and company is

to hurt anybody, they could not have concentrated on the persons of Teofilo Landingin and Virgilio Catugas only but they should have also inflicted stabbing thrusts against their persons (accused). 2. They (accused) posited that for fear of their lives they did not do anything except to passively stay at the back seat of the jeepney motionless from the place of stabbing incident in Sta. Barbara, Pangasinan up to the mountains in Sual, Pangasinan. Again, if one of the motives of Mok and company is to carnapp [sic] the passenger jeepney of Teofilo Landingin then the logical conclusion that can be had in the instant situation is for the group of Mok to liquidate the driver and all passengers for that matter, including the four (4) accused to eliminate the presence of eyewitnesses. Unfortunately, the four (4) accused joined the group of Mok in going to Sual, Pangasinan without offering any slight resistance in the premises. The natural conclusion that can be derived thereat is that, Mok and company belonged to the group of the four (4) accused who were responsible in perpetrating the offense charged. 3. Assuming en gratia argumenti that Mok and company are the real offenders, why is it that during the long span of travel from Sta. Barbara to Sual, they never made any attempt to jump off the passenger jeepney; neither did they show positive signs to invite the attention of PNP members stationed along the long route starting in Dagupan City, Binmaley, Lingayen, Bugallon, Labrador, Pangasinan. 4. Accused Gregorio Mejia and Edwin Benito steadfastly claim innocence of the crime charged. In fact, they averred that upon reaching Sual,

Pangasinan, they reported to the responding peace officers what happened to them and that their reports was recorded in the Police Blotter of Sual Station. The assertion of accused Benito and Mejia is tainted with absolute falsity and is debunked by the entry in the Police Blotter of Sual Police Station (Exh. G); the subject certification negates accused's statement of innocence. The subject entry which is contained in the Book of Events of Sual Police Station belies any complaint/report made by accused Edwin Benito/Gregorio Mejia that they were kidnapped or deprived of their liberty with the use of guns and bladed weapons. Upon the other hand, the Certification squarely bespeaks of the incarceration/detention of said accused (Mejia and Benito) at Sual Police Station for they were suspected of having carnapped the passenger jeepney involved in the above case. 5. With respect to accused Joseph Fabito and Pedro Paraan, they likewise vehemently denied the accusation lodged against them. Unfortunately, their conclusion of innocence crumbled when they joined the group from the crime scene starting in Sta. Barbara, Pangasinan up to their destination in Sual, Pangasinan. In fact when they reached Sual, Pangasinan they scampered and run away to different directions to avoid apprehension.
Instead of proceeding to the Sual Police Station or making any report to the nearest authority i.e. Barangay Captain of the place they decided to escape which they did with impunity. The records in the Police Blotter of Sual is negatived (sic) of any entry about the whereabouts of accused Paraan and Fabito. 46

The court then convicted accused Gregorio Mejia, Edwin Benito, Pedro Paraan, and Joseph Fabito guilty of the violation of the Anti-Carnapping Act of 1972, as amended. It sentenced the first three accused to death; and Paraan, to reclusion perpetua on account of the privileged mitigating

circumstance of minority. It also ordered them to pay the costs. III THE APPEALS AND ASSIGNMENT OF ERRORS Although review in cases where the death penalty is imposed by the trial court is automatic pursuant to Section 22 of R.A. No. 7659, 47 the convicted accused filed with this Court their notices of appeal from the decision of the LARON court and of the CASTILLO court on 18 November 1994 and 22 February 1995, respectively. Criminal Cases Nos. 94-00617-D and 94-00619-D were docketed in this Court as G.R. Nos. 118940-41, and Criminal Case No. 94-00620-D was docketed as G.R. No. 119407. On 2 February 1996, after they filed separate Appellant's Briefs in G.R. Nos. 118940-41 and in G.R. No. 119407, the appellants filed a motion for the consolidation of these cases, which we granted on 27 February 1996. In their Appellant's Brief in G.R. Nos. 118940-41, the appellants impute upon the trial court the following errors: (a) in giving full faith and credence to the unsubstantiated testimony of prosecution witness Virgilio Catugas relative to the incident in question; (b) in holding them as the persons who stabbed the jeepney driver and Virgilio Catugas in the evening of 10 March 1994 despite the fact that clear and convincing evidence were proffered to point at the real culprits, Romulo Calimquim and his companions; (c) in rendering a verdict of conviction notwithstanding the failure of the prosecution to prove their guilt beyond reasonable doubt; and (d) in convicting them of the crimes charged instead of the crimes homicide and frustrated homicide on the assumption that they are guilty. Being interrelated, the appellants discussed jointly these assigned errors. They submit that: (1) The uncorroborated testimony of Catugas on the identification of the appellants leaves much to be desired. He should not be believed, for he could not even remember who among the appellants were wearing short pants, hat, and shoes at that time. If policeman Gulen could not even identify in court appellant Mejia whom he

apprehended in the evening of 10 March 1994 and brought to the Sual Police Station, it was with more reason that Catugas could not have identified the assailants since it was nighttime. The possibility that Catugas got confused, if not mentally and physically drained, as a result of the shocking incident is not far-fetched. There is then a very strong and compelling reason to believe that Catugas mistook the appellants as the real holduppers. (2) Catugas told Conrado Benito and Felicidad Fabito that their children did not commit any wrong, but Catugas "vacillated and testified falsely against accused-appellants when they were not able to produce the amount of P20,000.00 each as earlier demanded from them." Catuga's denial of their testimony is self-serving and cannot overcome the positive testimony of Conrado and Felicidad. (3) The actuations of appellants specifically that of Edwin Benito augurs well with their claim of innocence," when they were apprehended. Benito readily showed his driver's license, answered questions propounded by policeman Clemente, and without hesitation he helped or guided the policemen in locating the jeepney at the place where it was abandoned. He did not try to hide or conceal anything when he was confronted about the incident. Moreover, when Benito and Mejia were picked up by a policeman on that fateful night, they were not "tainted with blood." (4) On the assumption that they are guilty they could only be liable for homicide and frustrated homicide, since treachery was not established. In their Appellants' Brief in G.R. No. 119407, they make the following assignment of errors: (a) the facts charged in the information do not constitute violation of the crime of Anti-Carnapping Act of 1972, as amended; (b) The courta quo erred in convicting them of the crime

charged on the basis of surmises and conjecture; and (c) the court a quo erred in convicting them by relying fully on the evidence of the prosecution and completely disregarding the evidence of the defense. As to the first, the appellants argue that intent to gain, which is an essential ingredient of the crime of carnapping, was not proved. They claim that from the evidence adduced "it is very clear that the incident was only a hold-up and that the jeepney was taken to Sual as escape vehicle." In support of the second and third assigned errors, which they discussed jointly, the appellants submit that: (1) The trial court's conclusion on their culpability was based on mere surmises and conjectures and contradicted by the evidence on the record. The fact that the group of Calimqium did not hurt any of the four appellants and that the latter offered no resistance does not prove appellant's membership in Calimquim's group. That they did not even jump off the passenger jeepney or show positive signs to invite the attention of the PNP stationed along the route from Dagupan City to Sual, it was because of fear since Calimquim's group pointed knives at each of them and ordered them to lie down in stooping position. The absence of conspiracy was shown by the fact that in Sual, after they were released as hostages, they ran in separate directions and did not join the group of Calimquim. (2) The entry in the Sual Police Station police blotter that Benito and Mejia were suspected of having carnapped the passenger jeepney does not bind them, for it was made by a police officer and was contrary to what they had reported. (3) There is no basis for the conclusion that Paraan and Fabito had escaped. (4) The trial court should not have relied on the testimony of Catugas whose identification of the appellants was based only on the pictures and on

the information of the policemen. It was impossible for Catugas to narrate in detail the participation of each accused, considering that the light in the jeepney was dim and his principal attention was concentrated on defending himself. (5) Appellant's reporting of the incident disproved their membership in the group of Calimquim. If they were members, their natural course would have been to hide from the authorities. Their voluntary submission to the police immediately after the incident should have been given credence as part of the res gestae. In the Consolidated Appellee's Brief, the Office of the Solicitor General (OSG) urges us to affirm in toto the challenged decisions for failure of the appellants to show that the trial court committed error in finding the prosecution evidence clear, sufficient, and convincing to convict. Catugas, who made an eyewitness account, had the opportunity to observe the appellants during the commission of the crime and had no ill-motive to implicate the appellants falsely. As to the charge that he perjured because the appellants were not able to produce the amount of P80,000 which he allegedly demanded from them, the same should not be believed. The truth is, it was the parents of the appellants who approached Catugas and offered him P80,000 in order that he would not testify against the appellants. Catugas did not accept the offer, as it was against his principles to tell a lie. The OSG also maintains that treachery was duly proved and, hence, the trial court was correct in convicting the appellants of murder for the death of Teofilo Landingin and frustrated murder for stabbing Virgilio Catugas. Their conviction for violation of the Anti-Carnapping Act is also proper, since their main purpose was to get the jeepney and they killed Landingin in order that they could get it. They presented to evidence to prove that they ran away with the jeepney for any lawful purpose. In their Consolidated Reply Brief, the appellants try to show that the identification made by prosecution witness Catugas cannot be denominated as clear, positive, and convincing; for, while it may be true that he "could have taken glimpse or glance at the faces of all the accused-appellants, this fact alone is not adequate and fell short of the required test of 'positive identification'." They strongly suggest that

Catugas had ill-motive to testify falsely against them in that he was not paid the P80,000 he demanded. IV THE CRIMES COMMITTED AND THE ISSUE OF CULPABILITY OF APPELLANTS Before we go any further, remarks on some procedural matters are in order. The crimes charged in the informations filed before the LARON court and CASTILLO court are irretrievably linked with or related to one another. They arose out of the same incident, are founded on the same factual milieu, and would be proved by testimonies of the same witnesses. The three cases then should have been consolidated and jointly tried in one branch of the RTC of Dagupan City. What were jointly tried were only the cases for murder and frustrated murder. Section 14 of Rule 119 of the Rules of Court provides: Sec. 14. Consolidation of trials of related offenses . Charges for offenses founded on the same facts or forming part of a series of offenses of similar character may be tried jointly at the court's discretion. The purpose or object of consolidation is to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, simplify the work of the trial court, and save unnecessary cost or expense; in short, the attainment of justice with the least expense and vexation to the parties litigants. 48 In Raymundo v. Elipe, 49 we held that although consolidation of several cases involving the same parties and the same subject matter is one addressed to the sound discretion of the trial court, joint hearing becomes a matter of duty if two or more cases are tried before the same judge, or even filed with the different branches of the same court, provided one of such cases has not been partially tried . We are unable to understand why neither the LARON court or the CASTILLO court nor any of the parties caused, or moved for, a consolidation of the case for violation of the Anti-Carnapping Act (which has the higher docket number) with the cases for murder and frustrated murder in the LARON court (which have lower docket numbers). It was only after the filing of their separate Appellant's Brief in G.R. Nos. 11894041 and in G.R. No. 119407 that the appellants moved to consolidate the

latter with the former. This failure to consolidate the three cases at the trial court level could contribute some difficulty in the appreciation of the evidence. The principal witnesses of the parties testified in all the three cases. Yet, the assessment of their testimony and credibility in the LARON court must not be influenced by their testimonies in the case before the CASTILLO court, and vice versa. In the LARON court, prosecution witness Catugas was unclear in some details of the incident, but clear in the CASTILLO court. Upon the other hand, there were details he disclosed in one of the courts which were not given in the other court. The same observation may be had on the testimonies of the appellants before both courts. As one reads the transcripts of the testimonies of these witnesses in both cases, it would be quite difficult to avoid forming impressions in light of the totality of their testimonies in both courts. Our minds and mental processes must be kept away from the pitfalls of such impressions, for the rules on evidence and the constitutional presumption of innocence in favor of the appellants dictate that we resolve the appeals in the cases before the LARON court and the case before the CASTILLO court solely on the basis of the evidence presented before such courts, respectively. The next preliminary matter to be resolved is whether the crimes of murder in Criminal Case No. 94-00617-D and frustrated murder in Criminal Case No. 94-00619-D are absorbed in the violation of the AntiCarnapping Act in Criminal Case No. 94-00620-D. R.A. No. 7659 which took effect on 31 December 1993 50 is applicable to these cases because the crimes were committed on 10 March 1994. Section 14 of the Anti-Carnapping Act was amended by Section 20 of R.A. No. 7659 and now imposes the penalty of reclusion perpetua to death when the owner, driver, or occupant of the carnapped motor vehicle is killed or raped in the course of the commission of the carnapping or on the occasion thereof. This Section, as amended, reads in full as follows: Sec. 14. Penalty for Carnapping. Any person who is found guilty of carnapping, as this term is defined in Section Two of this Act, shall, irrespective of the value of motor vehicle taken, be punished by imprisonment for not less than fourteen years and eight months and not more than seventeen years and four months, when the carnapping is committed without violence or intimidation of persons, or force upon things; and by imprisonment for not less than seventeen years and four months and not more

than thirty years, when the carnapping is committed by means of violence against or intimidation of any person, or force upon things;and the penalty of reclusion perpetua to death shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed or raped in the course of the commission of the carnapping or on the occasion thereof . (Emphasis supplied). In the original Section 14 of R.A. No. 6539, the last clause read as follows: and the penalty of life imprisonment to death shall be imposed when the owner, driver or occupant of the carnapped vehicle is killed in the commission of the carnapping. (emphasis supplied). Three amendments have thus been made, viz: (1) the change of the penalty of life imprisonment to reclusion perpetua, (2) the inclusion of rape, and (3) the change of the phrase "in the commission of the carnapping" to "in the course of the commission of the carnapping or on the occasion thereof." The latter makes clear the intention of the law to make the offense a special complex crime, by way of analogy vis-avis paragraphs 1 to 4 of Article 294 of the Revised Penal Code on robbery with violence against or intimidation of persons. As such, the killing (or the rape) merely qualifies the crime of carnapping which for lack of specific nomenclature may be known asqualified carnapping or carnapping in an aggravated form. In short, considering the phraseology of the amended Section 14, 51 the carnapping and the killing (or the rape) may be considered as a single or indivisible crime or a special complex crime which, however, is not covered by Article 48 of the Revised Penal Code. Since Section 14 of R.A. No. 6539 uses the words "IS KILLED," no distinction must be made between homicide and murder. Whether it is one or the other which is committed "in the course of carnapping or on the occasion thereof" makes no difference insofar as the penalty is concerned. It follows then that the killing of the driver, Teofilo Landingin whether it be homicide or murder cannot be treated as a separate offense, but should only be considered to qualify the crime of carnapping. Nonetheless, although there could only be one single offense of qualified carnapping or carnapping in an aggravated form, the prosecution had still to prove the essential requisites of the homicide or murder of Landingin

and that of carnapping. This should have been another reason for the consolidation of the carnapping case in the CASTILLO court with the cases before the LARON court. But do the words "IS KILLED" in the last clause of Section 14 of R.A. No. 6539, as amended, include the crime of frustrated murder or homicide? Put a little differently, does murder or homicide in its frustrated stage also qualify carnapping if it is committed "in the course of the commission of the carnapping or on the occasion thereof"? The answer must be in the negative in light of the use in said Section 14 of the words "IS KILLED". The unmistakable import thereof is that it refers only to the consummated felony of either murder or homicide. If attempted or frustrated murder or homicide is committed "in the course of the commission of the carnapping or on the occasion thereof," then it must be deemed to fall under the clause (of Section 14) "when the carnapping is committed by means of violence against or intimidation of any person." We shall now take up the issue of the culpability of the appellants. The evidence adduced by the prosecution has established beyond reasonable doubt the carnapping of Teofilo Landingin's passenger jeepney, which is a motor vehicle under the definition in Section 2 of R.A. No. 6539. 52 The passenger jeepney was taken, with intent of gain, from Landingin by means of violence against him which caused his death and against a passenger, Virgilio Catugas, who suffered physical injuries. But, has the prosecution established with moral certainty the guilt of the appellants? The LARON and the CASTILLO courts held that it did. Enshrined in the Bill of Rights is the right of the accused to be presumed innocent until the contrary is proved. 53To overcome the presumption, nothing but proof beyond reasonable doubt must be established by the prosecution. 54 Save in certain circumstances as where, for instance, the accused admits the commission of the acts alleged to constitute a crime but interposes justifying circumstances, the burden is never shifted to the accused or diminished by the weakness of his defense. Indeed, unless the prosecution successfully discharges that burden, the accused need not even offer evidence in his behalf. 55 In our jurisdiction accusation is not synonymous with guilt. The freedom of

the accused is forfeit only if the requisite quantum of proof necessary for conviction be in existence. This, of course, requires the most careful scrutiny of the evidence for the State, both oral and documentary, independent of whatever defense is offered by the accused. Every circumstance favoring the accused's innocence must be duly taken into account. The proof against the accused must survive the test of reason. Strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the accused could be laid the responsibility for the offense charged. 56 If the prosecution fails to discharge the burden, then it is not only the accused's right to be freed; it is, even more, the court's constitutional duty to acquit him. 57 After a painstaking review of the records and the transcripts of the stenographic notes of the testimonies of the witnesses in the cases before the LARON court and the CASTILLO court, we are not convinced with moral certainty that the appellants committed the crimes charged. Reasonable doubt burdens our conscience; our minds cannot rest easy on a verdict of conviction. The prosecution had nine suspects in these cases: the four appellants and the five others, namely, Romulo Calimquim, Alex Mamaril, a certain Dennis, a certain Mondragon, and another described as John Doe. All nine were forthwith charged with the crimes of murder, frustrated murder, and carnapping in Criminal Cases Nos. 3310,58 3313, 59 3311, 60 respectively, of the Municipal Trial Court of Sta. Barbara, Pangasinan, and then in the informations in Criminal Cases Nos. 94-00617-D, 61 and 94-00619-D 62 of the LARON court and Criminal Case No. 94-00620-D 63 of the CASTILLO court, respectively. The theory of the appellants is that they were not members of the group of Romulo Calimquim. The prosecution has no proof to prove otherwise; but the LARON and the CASTILLO courts, through inferences from certain facts, concluded that the appellants were. The conclusion is rather tenuous. While the rigorous cross-examination of the appellants in all these cases has established close relationship among the appellants by reason of their residence and work, (Benito, as sand-and-gravel truck driver and Mejia, Fabito, and Paraan as his keepers), it miserably failed to establish any relationship between them and the five others headed by Calimquim. What then looms large in our minds is that the appellants and the five others happened to be passengers of Landingin's jeepney by accident, not by design. If the appellants were with the five others until Sual, Pangasinan, it was because they were intimidated and made to lie

down on their belies inside the jeepney. Another circumstance further proves that the appellants did not belong to the group of Calimquim. Upon arrival in the mountains of Sual, they fled from the Calimquim group when the first opportunity to do so came. We find to be absolutely without basis the statement of the CASTILLO court that the appellants abandoned Landingin's jeepney in Sitio Nipa, Baquioen, Sual, Pangasinan, "upon seeing the arrival of concerned citizens and members of the Sual Police Station; the responding peace officers effected the recovery of the subject jeepney sans the accused/culprits." No prosecution witness so testified. In the CASTILLO court, no policeman was presented as witness for the prosecution. The evidence presented by both the prosecution and the defense reveal that after appellants Benito and Mejia were picked up by Policeman Gulen on the latter's suspicion that they were members of an akyat-bahay gang, they voluntarily informed the police authorities of the Sual Police Station of what happened. It was this information that brought the policemen to where the subject jeepney was located. Benito even accompanied the policemen. This resulted in the recovery of the jeepney by the policemen. Appellant Paraan also presented himself later to the Police Station of Sta. Barbara. Appellant Fabito, although apprehended by concerned citizens of the place to where he had fled, voluntarily reported what he knew to the police authorities of Sual and Sta. Barbara. Unfortunately, the CASTILLO court relied heavily on the entries in the police blotters of the police stations of Sual and Sta. Barbara. The silence of the entries on what the appellants had declared in court is not conclusive evidence that they did not report the incident to the police authorities. They had no participation in the preparation of the entries. Entries in the police blotters should not be given undue significance or probative value, for they are normally incomplete and inaccurate sometimes from either partial suggestion of for want of suggestion or inquiries.64 The entries in question are sadly wanting in material particulars. At the very most, they only recorded the impression that the appellants were "suspects." As to the alleged participation of the appellants in the commission of the crimes, the prosecution had to rely solely on the testimony of Virgilio Catugas. The totality of his testimony in the cases before the LARON court leaves much to be desired. The prosecutor who conducted the direct examination was unable to propound sensible questions to elicit clear answers bound to reconstruct faithfully the events surrounding the

commission of the alleged crimes. This deficiency thus tempted the trial judge to ask more questions. Despite the latter's participation, the testimony of Catugas fails to convince us that the appellants indeed participated in the commission of the crimes. On cross-examination in the LARON court, Catugas categorically admitted that he did not know the names of the appellants and that he could recognize only three of the nine accused. Thus: ATTY. TAMINAYA: Q Now, in paragraph 8 of your statement, you said and you mentioned the names of the person and I will now read: Q How about the true names of the suspect, do you know them? A In fact I do not know, however, based on the police investigation of Sta. Barbara PNP, they were, Gregorio Mejia, Edwin Benito, Joseph Fabito, Pedro Paraan, Mok Calimquim, alyas Dennis, Alex Mamaril, Dennis Abrigo alyas Mondragon and one unidentified person. can you tell this Court why these persons were written in your statement? A Because of the police investigation. Q So, were it not of the police and the pictures, you were not able to identify the accused, is that correct? A I can recognize the others, sir. Q How many of the nine (9) can you recognize?

A Three (3) of them, sir. COURT: Q What you do mean when you said that that you can recognize three (3) of them? A I can remember those persons who sat near me. Q Who of the four (4) accused who sitted [sic] near you? A The one wearing red T-shirt, the second to the last of the four accused. Q So, how were you able to identify these [sic] persons who is [sic] wearing in [sic] red T-shirt? A I saw his face, sir. Q How were you able to recognize the last person (referring to Edwin Benito)?
A He was besides [sic] the driver, Sir. 65

Further indicating the uncertainty of his identification, he made the following admissions on cross-examination: Q Now, you said you recognized the persons who sat besides [sic] the driver, is it not? A Yes, sir. Q Please point to him? A He was wearing a dark color. Q Was it a T-shirt or a polo shirt?

A I cannot tell, sir. Q How about the person sitting in front of you whom you pointed to this person wearing in red Tshirt? A I can no longer remember, sir. Q How about the person next to the one with red tshirt, do you remember his shirt? A I don't know, sir. Q How about Gregorio Mejia, do you remember his clothes? A I cannot remember, sir. Q You can't remember also whether one of these accused was wearing a hat at that time? A I cannot remember, sir. In the case before the CASTILLO court, he declared that he was stabbed by the nine persons. Thus: COURT: Q Who were involved in stabbing? A All of them, sir. Q Who was the assailant and who was stabbed? A The 9 persons, sir. Q When you said 9 persons, they were the 9 persons who participated in the stabbing incident and who were the victims?

A Me and the driver, sir. PROS. MARATA: Q How many times were you stabbed by the nine persons, four of whom were inside the courtroom?
A From the scar left of my body, there are 22 stabbed wounds, sir. 66

Yet, no further questions were asked for him to convincingly show that the appellants inflicted any of the stab wounds on his body. Further compounding the uncertainty and unreliability of Catuga's testimony, he candidly admitted on cross-examination that only one person stabbed him. Thus: ATTY. TAMINAYA: Q How many times were you stabbed by them? A Twice, sir. Q And you cannot recognize the person who stabbed your? A I can identify him, sir. Q How many persons stabbed you then?
A Only one (1) person, sir. 67

Upon further questioning by the court, Catugas declared that six of the nine stabbed him: COURT: Q How many stab wounds did you sustain? A More than twenty (20) stab wounds, sir.

Q A while ago you mentioned there were two (2) initial stab blows with respect to the other stab blow who delivered this stab blow? A His companions and also Gregorio Mejia, sir. COURT: Proceed. ATTY. TAMINAYA: Q When you said his companions and Gregorio Mejia are you referring to the five (5) other persons as the companions of Gregorio Mejia who participated in stabbing you?
A I think it is about six (6) of them who stabbed me, sir. 68

He could not remember anymore the person who inflicted the last stab wound, and then declined to point to anyone of the herein four appellants as the person who did it. Thus: COURT: Q When they stopped stabbing you they did not stab you anymore? A They still stabbed me on my right upper arm, sir. (Witness showing his scar near the shoulder.) Q You said you were stabbed on your right shoulder, who stabbed you among these nine (9) persons? A I could not remember anymore, sir. Q When you said you cannot remember, you cannot tell this Court whether it was one among the four (4) accused in this case who stabbed you

on your right upper arm?

A I could not point the person responsible in stabbing my shoulder because that is the last stab wound, sir. 69

It would thus be sheer speculation and conjecture to conclude from Catuga's testimony in the CASTILLO court that the appellants had inflicted any of the stab wounds on Catugas. Moreover, on question by the trial judge in the CASTILLO court, Catugas categorically admitted that none of the appellants participated in the stabbing of Landingin. Thus: COURT: xxx xxx xxx Q These two persons who participated in stabbing Teofilo Landingin, can you inform the Court if the four (4) accused now or these two persons are among the four (4) accused now?
A They are not here, sir. 70

Finally, Catugas was not entirely free from any ulterior motive in implicating the appellants. He admitted that he demanded P80,000 from the parents of the appellants, but before they could give the money on the agreed date, he testified against the appellants in the LARON court. The following exchanges between him and counsel for the defense before the CASTILLO court are revealing: ATTY. TAMINAYA: Q After you were released from the hospital, were you able to talk with the father of Edwin Benito? A Yes, sir. Q And you told them about your expenses in the

hospital, is that correct? A Yes, sir. Q And you demanded from them to pay P40,000.00 is that correct? A I was asking P80,000.00, sir. COURT: Q Why were you asking the amount of P80,000.00 then? A Because he pleaded to me, sir. Q What you are trying to convey to the Court is that you are settling the case with Edwin Benito the amount of P80,000.00? A Yes, sir. COURT: Proceed. ATTY. TIMANAYA: Q And the parents of Edwin Benito cannot pay that P80,000.00 because they are poor? A They will not pay that amount on that date, we have agreed of another date for them to pay, sir. COURT: Q Did the parents of Edwin Benito made a counter offer?

A That is already their counter proposal, sir. Q What you want to tell the Honorable Court is that you agreed to pay you P80,000.00 but he cannot pay you at that very moment? A Yes, sir. COURT: Proceed. ATTY. TAMINAYA: Q Did you agree for the amount of P80,000.00? COURT: That is the settlement money. ATTY. TAMINAYA: Q So, it is clear that if only they have given P80,000.00, you should not have testified in this case? A PROSECUTOR MARATA: Improper, your honor. ATTY. TAMINAYA As follow-up question, you Honor. COURT: Sustained. Hypothetical. ATTY. TAMINAYA:

Q You said that there was the agreed date, what happened on the agreed date? A The date has not yet arrived but I have already testified, sir. COURT: Q When you said you have already testified, you are referring to your testimony in RTC Branch 44?
A Yes, sir. 71

In the LARON court, efforts were made by the prosecution to cushion the impact of Catugas' demand for payment of P80,000 in consideration of his exculpatory testimony. It wanted to prove that the parents of the appellants were in fact the ones who proposed. But the testimony of Conrado Benito, which the prosecution failed to satisfactorily rebut, is that the parents went to see him to verify whether their children had indeed committed the crimes; but Catugas replied that since the appellants were the ones apprehended, he would just pinpoint them so that he could recover what he had spent. He then demanded P80,000, which he equally apportioned among the parents of the four appellants. Conrado Benito testified as follows: Q What did you tell him? A I told him that our children telling us that they did not commit any wrong and I told them to tell the truth and we are not consenting them to whatever they have done if they done something wrong. Q What was the answer of Virgilio Catugas? A He said, he suffered several wounds and that he spent so much for his hospitalization, and he said also that they were the persons who were apprehended and so, I will just tell a lie for the same because how could I collect for the amount I spent if I will not tell a lie?

COURT: Q You consider Virgilio Catugas as a liar and you are not a liar? A Yes, sir. ATTY. TAMINAYA: Q Can you tell this Court what did you tell him about that expenses? A I said, "then we can at least help you", because he is saying that he suffered several wounds. Q How much did Virgilio Catugas tell you? A The last time that we talked, he ask[ed] us to give P20,000.00 each. COURT: Q How many times did he tell your?
A For 5 to 6 times because he told us to return to him. 72

But the parents could not deliver the P20,000 each was to pay, for they could not afford it. Conrado so declared, thus: ATTY. TAMINAYA: Q When Virgilio Catugas told you to give P20,000.00, can you tell this court if he made mention to the wife of Teofilo Landingin? A Because he is collecting from us P20,000.00, he told us that we would not tell the same to Mrs. Landingin.

Q Were you able to give that P20,000.00? A No sir, not even a single centavo. Q Why?
A We cannot pay because even payment for attorney's fees, we cannot afford. 73

The LARON court gave credence to the version of the prosecution and even took the incident as offer of compromise, which may be considered an implied admission of guilt. Said court misapplied Section 27 of Rule 130 of the Rules of Court. 74 There is no evidence whatsoever that any of the appellants authorized his parents to approach Catugas or knew the matter of payment of P80,000. Moreover, if one were to believe the explanation of Catugas that the amount of P80,000 represented the expenses he incurred for his hospitalization and medical bills, then the offer to reimburse it is not admissible in evidence as proof of criminal liability pursuant to the last paragraph of Section 27 of Rule 130. On the whole then we entertain, unavoidably, serious doubt on the participation of the appellants in the commission of the crimes charged. WHEREFORE, the challenged decisions in Criminal Case No. 94-00617D (for Murder) and Criminal Case No. 94-00619-D (for Frustrated Murder) of Branch 44 and in Criminal Case No. 94-00620-D (violation of AntiCarnapping Act of 1972) of Branch 43 of the Regional Trial Court of Dagupan City are REVERSED. Accused-appellants Gregorio Mejia, Edwin Benito, Pedro Paraan, and Joseph Fabito are ACQUITTED on the ground that their guilt therefor has not been proved beyond reasonable doubt or with moral certainty. Their immediate release from detention is hereby ordered, unless other lawful and valid grounds for their further detention exist. No costs. SO ORDERED. Narvasa, C.J., Padilla, Regalado, Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Francisco and Panganiban, JJ., concur.

Puno, Hermosisima, Jr. and Torres, Jr., JJ., are on leave.

hi1

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