5 PEOPLE V FERNANDEZ Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. L-32322-23 January 2 !

"#$2 T%E PEOPLE OF T%E P%&L&PP&NES! plaintiff-appellee, vs. EDUARDO FERNANDEZ ' JOCSON ( )EDD&E FERNANDEZ)! ANTON&O ANT&DO ' *ALATUCAN ( )TON' *AG'O)! RO*ERTO LA*RA ' SANTOS ( )*ERT&NG LA*RA) an+ *ENJAM&N *ARCELONA ' JUNGCOdefendants- appellants.

*ARREDO! J.: Appeal taken by the accused Edua do !e nande" y #ocson alias $Eddie !e nande"$, Antonio Antido y Balatucan alias $%ony Ba&yo$, Robe to 'ab a y (antos alias $Be tin& 'ab a$ and Ben)a*in Ba celona y #un&co f o* the )ud&*ent of conviction fo *u de and f ust ated *u de ende ed a&ainst the* by the Ci cuit C i*inal Cou t, (eventh #udicial +ist ict, Pasi&, Met o Manila, in its C i*inal Cases Nos. CCC-,---./.-0.C. and CCC-,---./1-0.C. -n C i*inal Case No. CCC-,---./.-0.C., the above-na*ed accused 2e e cha &ed 2ith M3R+ER in an info *ation eadin& as follo2s4 %hat on o about (epte*be 51, 56/6 in 0ue"on City, Philippines, the above-na*ed accused, conspi in& to&ethe , confede atin& 2ith and *utually helpin& one anothe , 2ith intent to kill and 2ithout any )ustifiable *otive, 2ith evident p e*editation and 2ith t eache y, and by takin& advanta&e of thei supe io st en&th, did, then and the e, 2illfully ,unla2fully, and feloniously attack, assault and e*ploy pe sonal violence upon the pe son of one RENA%7 PAN8-'-NAN y PAN8-'-NAN, by then and the e fi in& at and shootin& said RENA%7 PAN8-'-NAN y PAN8-'-NAN 2ith diffe ent kinds of fi ea *s 2hich the accused had 2ith the* at the ti*e, hittin& the said victi* on the chest, inflictin& upon hi* se ious and *o tal in)u y 2hich 2as the di ect and i**ediate cause of his death, to the da*a&e and p e)udice to the hei s of the said RENA%7 PAN8-'-NAN y PAN8-'-NAN in such a*ount as they *ay be entitled to unde the p ovisions of ou e9istin& la2s. Cont a y to la2. -n C i*inal Case No. CCC-,---./1-0.C., the sa*e accused 2e e like2ise indicted fo !R3(%RA%E+ M3R+ER in a sepa ate info *ation 2ith the follo2in& alle&ations4 %hat on o about (epte*be 51, 56/6 in 0ue"on City, Philippines the above-na*ed accused, conspi in& to&ethe , confede atin& 2ith and *utually helpin& one anothe , 2ith intent to kill and 2ithout any )ustifiable *otive, 2ith evident p e*editation and 2ith t eache y, and by takin& advanta&e of thei supe io st en&th. did, then and the e 2illfully, unla2fully and feloniously attack, assault and e*ploy pe sonal violence upon one AP7'-NAR-7 '7PE: y 'AC(AMANA, by then and the e fi in& at and shootin& the latte 2ith diffe ent kinds of fi ea *s 2hich the accused had 2ith the* at the ti*e, hittin& said AP7'-NAR-7 '7PE: y 'AC(AMANA on the chest, causin& hi*

to sustain se ious and *o tal in)u ies, the above-na*ed accused the eby pe fo *in& all the acts of e9ecution 2hich 2ould p oduce the c i*e of M3R+ER as a conse;uence, but 2hich neve theless 2as not p oduced by eason of causes independent of thei 2ill, that is, the ti*ely inte vention of *edical science, to the da*a&e and p e)udice of the said AP7'-NAR-7 '7PE: y 'AC(AMANA in such a*ount has he *ay be entitled to unde the p ovisions of ou e9istin& la2s. Cont a y to la2. A ai&ned on said info *ations, all the accused ente ed sepa ate pleas of $not &uilty$ to both cha &es. As the t2o cases a ose f o* a sin&le occasion and unde the sa*e ci cu*stances, a )oint t ial the eof 2as conducted by the t ial cou t, at the conclusion of 2hich it ende ed the above*entioned )ud&*ents of conviction 2ith the follo2in& <=ERE!7RE, in Case No. CCC-,---./1-0.C., the Cou t finds the accused, na*ely4 Edua do !e nande", Antonio Antido, Ben)a*in Ba celona and Robe to 'ab a, all 83-'%>, beyond easonable doubt of the c i*e of f ust ated Mu de , unde A ticle ?@A of the Revised Penal Code, in elation to A ticle BC the eto, as cha &ed in the info *ation, and he eby sentences each one of the* to suffe an indete *inate penalty of, f o* E-8=% DAE >EAR( AN+ 7NE D5E +A>, of p ision *ayo , as *ini*u*, to (E,EN%EEN D51E >EAR( AN+ !73R D@E M7N%=(, of eclusion te*po al as *a9i*u*F to pay the victi* Apolina io 'ope", the a*ount of %en %housand Pesos DPlC,CCC.CCE as *o al da*a&es, and anothe %en %housand Pesos DPlC,CCC.CCE as e9e*pla y da*a&es, and to pay thei p opo tionate sha e of the costs. -n C i*inal Case No. CCC-,---./.-0.C., the Cou t finds the accused, na*ely4 Edua do !e nande", Antonio Antido, Ben)a*in Ba celona and Robe to 'ab a, all 83-'%>, beyond easonable doubt of the c i*e of Mu de , unde A ticle ?@A of the Revised Penal Code, as cha &ed in the info *ation, and he eby sentences each one of the* to suffe the penalty of +EA%=F to inde*nify the hei s of the deceased Renato Pan&ilinan, the a*ount of %2elve %housand Pesos DPl?,CCC.CCE, to pay %2enty %housand Pesos DP?C,CCC.CCE as *o al da*a&es and anothe %2enty %housand Pesos DP?C,CCC.CCE as e9e*ption da*a&es to pay thei p opo tionate sha e of the costs. - %he p osecutionGs theo y of 2hat alle&edly happened in this case, as pu po tedly po t ayed in the di ect testi*onies of its *ain 2itnesses Rosanna 7 ti", =ila io (i&ua, !e nando +espo and Apolina io 'ope", is substantially thus4 7n (epte*be 51, 56/6, the e 2as a location shootin& of the *otion pictu e $Ako An& (asa&upa$ in the house of one M . Nasal at Biak-na-bato (t eet, 0ue"on City. A*on& those cast in the said sto y 2e e accused Edua do !e nande" 2ho 2as playin& the leadin& *anGs ole, Rosanna 7 ti" D,ioleta 7 beta in eal lifeE sta in& as the leadin& lady, and accused Robe to 'ab a 2ho 2as cast in a seconda y ole. Bet2een @4CC and B4CC oGclock that afte noon, 2hile the said location shootin& 2as in p o& ess, Renato Pan&ilinan Dthe deceasedE to&ethe 2ith his d ive Apolina io 'ope" and anothe co*panion, =ila io (i&ua, a ived at the place pu po tedly to see Rosanna. 7nly Pan&ilinan and (i&ua 2ent inside the Nasal esidenceF 'ope" stayed behind nea Pan&ilinanGs ca . 3pon bein& told of thei a ival, Rosanna ca*e out and int oduced the* to Edua do !e nande" and Robe to 'ab a, a*on& othe s. Afte the int oductions, Rosanna esu*ed he shootin& scenes inside the house, leavin& Pan&ilinan an& (i&ua 2ith !e nande" and 'ab a and so*e othe *e*be s of the fil*in& c e2 2ho 2e e doin& thei cho es about the place. As !e nande" and

'ab a 2e e then d inkin& <hite =o se <hiskey they invited Pan&ilinan and (i&ua to )oin the*, 2hich the latte t2o did. <hile they 2e e thus d inkin& and conve sin&, !e nande", 2ho by then appea ed to be feelin& the effects of the d inks, voiced his esent*ent about RosannaGs havin& caused delay in thei location shootin& that day, sayin& that she a ived only at about ?4CC oGclock despite she kne2 that the sa*e 2as scheduled in the *o nin&. Afte such outbu st, ho2eve , the conve sation continued no *aly. !e nande" and Pan&ilinan even talked about p oducin& fil*s to&ethe , as they continued d inkin&. Mean2hile, a telephone call 2as eceived at P ecinct - of the 0ue"on City Police +epa t*ent at Mayon (t eet elayin& the info *ation that a & oup of *en ca yin& fi ea *s 2as in the Nasal esidence at Biak-na-bato and, sho tly the eafte , t2o police*en in plain clothes a ived the eat. %hey int oduced the*selves and announced to those p esent in the house thei pu pose in co*in&, i.e., vis-a-vis the call they eceived at the p ecinct, 2he eupon Edua do !e nande" stood f o* his seat, aised his shi t sayin&. $Ako pa e, 2alan& dala, sila *e on$, D-, f iend, have nothin& 2ith *e, they have.E pointin& at Pan&ilinan and (i&ua. Pan&ilinan an& (i&ua eadily ad*itted to the peace office s that they indeed 2e e ca yin& fi ea *s, albeit they easoned out that the sa*e 2e e duly licensed- #ust the sa*e, the duo 2e e invited by the police*en to &o 2ith the* to thei p ecinct at Mayon (t eet fo the ve ification of thei licenses. And so, Pan&ilinan and (i&ua, as 2ell as the fo *e Gs d ive ,'ope", 2ent alon& 2ith the peace office s to the police p ecinct. %he eat, 2hile the desk office 2as ve ifyin& the authenticity of the licenses of the &uns p esented by (i&ua and Pan&ilinan, the & oup of !e nande", 'ab a, Rosanna, (ylvio, Ra*i o thei fil* di ecto , and thei d ive , accused Antido, a ived in a )eep. Rosanna 7 ti" had e;uested !e nande" and his co*panions to acco*pany he to the police p ecinct in o de to help Pan&ilinan and (i&ua in clea in& the p oble* of thei &uns. And afte a fe2 *inutes of conve sation in the confe ence oo* of the p ecinct a*on& Pan&ilinan, !e nande" and the police*en, the ;uestioned &uns 2e e duly ve ified and clea ed. Pan&ilinan and (i&ua ta ied a 2hile inside the confe ence oo* of the p ecinct 2aitin& fo the final elease of thei &uns, 2hile !e nande" and his & oup, includin& Rosanna 7 ti", boa ded the sa*e )eep they ode in &oin& the e, evidently to &o back to thei location shootin&. At this )unctu e, Rosanna hea d !e nande" o de in& the )eep d ive $Hunin *o an& *ahaba$ as he D!e nande"E &ot off the )eep and 2alked back to the p ecinct. Rosanna follo2ed !e nande". =o2eve , 2hen sa2 Rosana that Pan&ilinan and his & oup 2e e al eady co*in& out of the p ecinct, she did not &o back to the )eep but instead 2ent to ide in Pan&ilinanG s ca , afte the latte consented to take he back to the location shootin&. she occupied the back seat on the i&ht side of the ca . Pan&ilinans also occupied the back seat on the left side, side Rosanna. 'ope" occupied the d ive Gs seat, 2hile (i&ua took the f ont seat on the i&ht beside, beside the d ive and in f ont of Rosanna. ! o* the police p ecinct at Mayon (t eet, the ca left 2ith Pan&ilinan- Rosanna, (i&ua and 'ope" on boa d, follo2ed by Eddie !e nande" and his co*panions idin& in thei )eep a 2hile afte . %he ca c uised alon& Mayon (t eet, but instead of p oceedin& to2a ds Biak-na-bato o the scene of the location shootin&, the ca tu ned i&ht on A. Bonifacio (t eet, appa ently headin& fo Manila. !e nande" and his co*panions follo2ed suit. But the ca ca*e to a full stop 2hen it eached the vicinity of a &as station on A. Bonifacio (t eet nea the Manila-0ue"on City bounda y because the e 2as a heavy t affic )a* and at this )unctu e, Eddie !e nande" and his & oup ali&hted f o* the )eep and su ounded the ca of Pan&ilinan. Eddie !e nande" a *ed 2ith a pistoli"ed ca bine, app oached the ca f o* the i&ht side. Be tin& 'ab a and Antonio Antido, also 2ith d a2n &uns,

2ent to the left side, 2hile Ben)a*in Ba celona, 2ho had been in the p ecinct du in& the vacation of the pe *its fo the &uns of Pan&ilinan and (i&ua also 2ith a d a2n fi ea * positioned behind behind the back of the ca . ! o* a distance of about one and a half D5-5I?E *ete s f o* the i&ht side of the ca , Eddie !e nande" pointed his pistol ca bine at the occupants the eof and 2a ned the*4 $<alan& kikilos sa inyo, an& kikilos tata*aan$. As the &lass of the 2indo2 on the i&ht side of the ca 2as then open, Rosanna sa2 and hea d !e nande", and she pleaded to hi*, $Eddie, hu2a&, Eddie$ DEddie, donGt, EddieE. 'ike2ise, =ila io (i&ua ;uipped. .G=u2a&, pa e, hindi ka*i kalaban D+onGt, f iend, 2e 2ill not fi&ht.E -n spite of such pleas f o* Rosanna and (i&ua, ho2eve , Eddie !e nande", Antonio Antido, Robe to 'ab a and Ben)a*in Ba celona fi ed at the occupants of the ca al*ost si*ultaneously f o* the i&ht and left sides of the ca and f o* behind, 2he e they had espectively positioned the*selves. %he &lass of the left side 2indo2 of the ca 2hich 2as then closed 2as co*pletely shatte ed, 2hile the &lass on the ea 2as also b oken. Acco din& to 2itness, PC Ma)o C ispin 8a cia, the e 2as a bullet hole at the cente of the ea o back &lass of the ca . Renato Pan&ilinan 2as hit 2ith a bullet in the left chest. Apolonio 'ope" eceived a &unshot 2ound in his uppe left chest too, 2hile =ila io (i&ua 2as 2ounded on his i&ht hand bet2een the thu*b and the fo efin&e . As a esult of the 2ound he eceived, Renato Pan&ilinan slu*ped on RosannaGs lap, and the latte , upon eali"in& that Pan&ilinan 2as hit and 2as bleedin&, i**ediately o de ed 'ope", the d ive of the ca , to *ove the ca out of the place and p oceed to the Chinese 8ene al =ospital. Pan&ilinan Gs 2ound p oved to be fatalF in fact, he 2as p onounced dead on a ival at the hospital 'ope" su vived afte the &unshot 2ound in his chest 2as ope ated on, althou&h he 2as confined the ein fo seve al days and had to etu n the eto f o* ti*e to ti*e the eafte fo fu the *edical t eat*ent. (i&uaGs *ino 2ound in his i&ht hand e;ui ed but little *edical attention. -*po tantly, the p osecutionGs o2n evidence Dthe testi*onies of the police investi&ato sE also p oves that i**ediately afte the shootin& )ust na ated, accused !e nande" 2as b ou&ht to the National 7 thopedic =ospital late t ansfe ed to the ,. 'una 8ene al =ospital 2he e he 2as t eated and ope ated on fo t2o &unshot 2ounds and still late *oved to the 0ue"on Medical Cente 2he e he 2as ope ated on a&ain and a *etallic substance ad*itted to be pa t of a bullet of a. .? calibe &un 2as found and e9t acted f o* his body by no less than Captain D+ .E A nold 8 uspe 2ho had p eviously t eated and ope ated on hi* at ,. 'una 8ene al =ospital (u p isin&ly, the e is ha dly any *ention of this i*po tant evidence in the decision of the t ial cou t. No2, befo e 3s, the co**on & ipe of he ein accuses in thei sepa ate b iefs is that the t ial cou t e ed in e)ectin& enti ely the evidence in suppo t of thei individual defenses, and, instead, convicted the* of Mu de and ! ust ated Mu de by elyin& solely upon the testi*onies of the eye2itnesses fo the p osecution despite, they clai*, that the sa*e 2hethe taken sepa ately o to&ethe , suffe f o* fatal defects. -n effect they all conclude that assessin& all the evidence p esented at the t ial 2holly and i*pa tially, thei supposed &uilt had not been p oven beyond easonable doubt. -- -ndeed, it can be said that at fi st blush the above na ation of the PeopleGs ve sion of 2hat happened on the occasion unde in;ui y 2ould, in fai ness to the effo ts of the p osecuto s, likely pe suade one to accept the theo y alle&ed in the info *ation afo e;uoted that all the accused did, in conspi acy 2ith each othe , fi e 2ith thei espectively held &uns at the deceased Renato Pan&ilinan and his co*panions, Rosanna 7 ti" D,iolets 7 betaE, Apolonio 'ope" and =ila io (i&ua, and also, that inas*uch as said accused, fou in nu*be , 2e e all a *ed on said occasion they *ay be dee*ed to have acted as a band.

7n the othe hand, even a cu so y pe usal of the sa*e ve sion, ho2eve , eadily eveals that the $evident p e*editation, t eache y and takin& advanta&e of supe io st en&th$ e9p essly alle&ed as ;ualifyin& ci cu*stances to aise the offenses cha &ed a&ainst the accused to *u de and f ust ated *u de 2e e not p esent in the shootin& that esulted in the death of Pan&ilinan and the se ious and ve y li&ht in)u ies suffe ed by 'ope" and (i&ua, espectively. As a *atte of fact, the (olicito 8ene al hi*self concedes in his b ief that $2hethe o not t eache y and supe io st en&th *ay be conside ed as a&& avatin& DsicE ci cu*stances in the above-entitled cases should be esolved in the negative. $ Dp. @A, AppelleeGs B ief, -talics 7u sE <ithout in any2ay a& eein& fully 2ith the inculpato y pa ts the eof pinnin& do2n he ein accused, but )ust to point out even at this outset, that to speak of *u de and f ust ated *u de in these cases should i**ediately be uled to be )u idically inaccu ate, <e ;uote f o* the PeopleGs b ief4 %he clai* of appellants that t eache y cannot be decided in the absence of *eans, *ethods and fo *s 2hich tend di ectly and specially to insu e the e9ecution of the offense see*s tenable. <hile it is t ue that the st ate&y of appellant !e nande" in epo tin& Pan&ilinan and his & oup to the Police 2as desi&ned to divest the victi*s of thei possession of fi ea *s in o de to ende the* defenseless a&ainst the conte*plated attack, thei pu pose had not been eali"ed as the victi*s 2e e eleased by the police 2ithout thei a *s confiscated. %he efo e, the sche*e p epa ato y to the e9ecution of the intended killin& to insu e appellants a&ainst isks appa ently only exposed their intentions and warned the victims the eof. -n fact, the disclosu e of appellantsG c i*inal intent to the victi*s even beca*e evident 2hen Rosanna 7 ti" 2ho ode 2ith the deceased Pan&ilinan ove hea d appellant !e nande" o de in&, $ Hunin *o an& *ahaba $ Dt.s.n. p. ?C, May 5?, 561C, 7 betaE 2hich 2as *eant fo a lon& fi ea *. Mo e than this, (i&ua, anothe victi*, natu ally 2ould have placed hi*self on &ua d fo the 2o st 2hen he noticed !e nande" tuckin& his &un on his 2aist 2hile the latte and th ee othe co*panions 2e e on boa d the )eep that follo2ed Pan&ilinanGs ca Dt.s.n., p. 56, May 5?, 561C, (i&uaE. And yet, afte appellants had su ounded thei victi*s inside the ca , the ele*ent of su p ise 2as ce tainly not taken advanta&e of, since Rosanna and (i&ua still had ti*e to e*onst ate 2ith !e nande" Dt.s.n., pp. ./-.6, May 5?, 561C, 7 betaE. 7n the basis of the above-*entioned facts and cont a y to the obse vations of the t ial cou t, the e9ecution of the c i*es 2as, the efo e, ca ied out 2ith isk f o* any possible defense 2hich the Pan&ilinan & oup *i&ht have offe ed. -t is si&nificant to note that in spite of the tactical advanta&e affo ded to appellants in co donin& thei adve sa ies, these victi*s 2e e not enti ely helpless as they 2e e indeed a *ed 2ith t2o D?E pistols and a evolve Dt.s.n., pp. 5CA5 5C, Ap il ?@, 561C, (unicoF pp. @/-@6, May 5., 561C, ,inasE. %he e is no ;uestion that appellants delibe ately endeavo ed to adopt *eans o fo *s in o de to insu e the e9ecution of the c i*es 2ithout isk to the*selves a isin& f o* the defense 2hich the offended pa ty *i&ht *ake but obviously, the *ethod eso ted to did not p ovide appellants co*plete safety a&ainst any defensive o etaliato y act f o* thei victi*s, 2hich *eans that no oppo tunity is &iven the latte to do so. %he e;ui e*ents, the efo e, of the e9istence of t eache y as conte*plated by A ticle 5@, pa a& aph 5/ of the Revised Penal Code 2as not *et in these cases. %hus, the attack *ay be sudden, but if the e is no sho2in& that the victi*s 2e e not completelydenied an oppo tunity to p epa e and epel o avoid that attack ... DPeople vs. Pen&"on @@ Phil. ??@F People vs. (a&ayno, '-5B6/5-/?, 7ctobe .5, 56/.F People vs. 8lo e, A1 Phil. 1.6, e*phasis suppliedE it 2ould be e oneous to *ake a findin& that the offense 2as co**itted in a t eache ous *anne .

<ith espect to the a&& avatin& ci cu*stance of abuse of supe io st en&th, the fact that the victi*s 2e e also a *ed as bo ne by evidence, to this effect is self-e9planato y to ne&ate the findin&s of the lo2e cou t that this ci cu*stance 2as p esent. -n this e&a d, the contention of the fou D@E appellants that the facts 2e e insufficient to conside abuse of supe io st en&th as an a&& avatin& ci cu*stance in the instant case, is, pe haps 2ell taken as the conside ation of this ci cu*stance *ust depend upon the elative st en&th of the one attackin& and the one attacked DPeople vs. Bustos, B5 Phil. .ABE. De*phasis suppliedE DPp. @B-@A, PeopleGs B iefE A But the p osecution neve theless insists that evident p e*editation has been p oven. -t a &ues that4 -n the case of People vs. Belen, '-5.A6B, (epte*be .C, 56/., the (up e*e Cou t held that the e9istence of conspi acy p esupposes evident p e*editation and in the case of People vs. Cadag, '-5.A.C, May .5, 56/5, the sa*e Cou t uled that fo conspi acy to e9ist, it does not e;ui e an a& ee*ent fo an app eciable pe iod p io to the occu ence. %he above-*entioned cases a e elevant to ove co*e appellantsG vie2 that 2he e it appea s that they had only about half an hou fo *editation and eflection, the sa*e is insufficient in the )u idical sense to establish evident p e*editation as conte*plated by la2. <hile it is conceded that the )u isp udence on appellantGs clai* confo *s 2ith the e;ui e*ent that the e *ust be a pe iod sufficient to affo d and allo2 the conscience of the 2 on&doe s to ove co*e the esolutions of thei 2ill, this defense cannot apply in the instant cases. As bo ne out by the evidence, the p e*editation of appellants to ca y out the desi ed conse;uences of thei collective acts appea s to have be&un f o* the ti*e the, deceased Renato Pan&ilinan and his & oup a ived at B4CC P.M. on (epte*be 51, 56/6, at Biak-na-Bato 2he e the location shootin& of the pictu e $Ako An& (asa&upa$ 2as bein& fil*ed Dp. B, Appellant !e nande"Gs b iefE. %he c i*es in ;uestion actually took place at 1 oGclock in the evenin& of the sa*e date o t2o hou s, the eafte Dt.s.n., p. @C, May 5., 561C, ,inas E. %he clai* of appellant !e nande" that Guntil the *o*ent that !e nande" a ived at the Police P ecinct, he has no ill feelin& as yet to2a ds Pan&ilinanG p. ?C, Appellant !e nande"Gs b iefE is consistent 2ith the eco ds fo his decision to &et id of Pan&ilinan appa ently ca*e about 2hen the latte and his co*panions a ived at B4CC P.M. to visit Rosanna 7 ti". (uch intention is evident f o* the fact that he 2as not only an& y 2ith Rosanna at the *o*ent but also had caused Pan&ilinan and his co*panions to be disa *ed by the police in o de to insu e the eali"ation of the desi ed li;uidation 2ithout the least esistance f o* the victi*s. %he a &u*ent of !e nande" that the t ial cou t found hi* to have decided to eli*inate his ival ca*e only 2hen Rosanna ode 2ith Pan&ilinan in his ca is untenable. <hat the cou t si*ply *eant he e 2as that because Rosanna 7 ti" 2ent 2ith Pan&ilinan sittin& he self at the back seat of the ca beside Pan&ilinan, the decision to li;uidate victi*s even beca*e fi *e . -ndeed, the situation of !e nande"Gs bein& left behind, a&& avated his e*ba ass*ent. 7n the basis of the above ci cu*stances, it is obvious that the decision of !e nande" to eli*inate his ival 2as actually effected at B oGclock that afte noon, 2hen Pan&ilinanGs & oup a ived. %hus, bet2een the ti*e the intended killin& 2as hatched, and the ti*e it 2as actually ca ied out at about 14CC P.M. Dt.s.n., p. @C, May 5., 561C, ,inas is so*e t2o D?E hou s in du ation. All appellants, the efo e, had been affo ded *o e ti*e, sufficient enou&h to eflect on the evil cha acte of thei acts, befo e the sa*e 2e e e9ecuted. %he contention of the accused that the e 2as an absence of evident p e*editation, since they had only about half an hou o less fo

*editation and eflection to ove co*e the esolution of thei 2ills is co*pletely devoid of basis in fact. %he decisions of this Cou t on this issue suppo t the e9istence of evident p e*editation. And so, it has been held that p e*editation is p esent 2he e the e 2as a lapse of t2o hou s f o* the inception to e9ecution DPeople vs. =anasan, '-?B6A6, (epte*be .C, 56/6F People vs. Pa)enado, '-?1/AC, !eb ua y ?6, 561CE. DPp. @?-@B, PeopleGs B ief.E <e do not a& ee. % ite to say, in a p osecution fo *u de , the ;ualifyin& ci cu*stance *ust be p oved beyond easonable doubt, like the killin& itself, and in the instant cases, <e find it difficult to conclude 2ith *o al ce tainty that the testi*onies on eco d sho2 evident p e*editation on the pa t of the accused, even if <e looked e9clusively at the evidence of the p osecution, dis e&a din& enti ely that of the defense. Readin& bet2een the lines, the basic assu*ption of the People, albeit it has not spelled it out e9p essly in its b ief, is that so*e kind of inti*ate a*o ous elationship 2as al eady e9istin& that fatal afte noon bet2een Rosanna and accused !e nande", o , at least, that the said accused *ust have been nu sin& so*e deep affection fo he , so intense as to *ake hi* fu iously )ealous of anyone 2ho 2ould also fall fo he , hence, instantly, upon co*in& to kno2 Pan&ilinan and sensin& so*eho2 that Rosanna see*ed to sho2 unusual fondness not to say p efe ence fo the ne2 a ival, then and the e, the e a ose i**ediately 2ithin hi* a dete *ination to eli*inate the latte by killin& hi* that ve y day. -t is to e*phasi"ed, thou&h, that all these a e )ust con)ectu es to &ive so*e flesh to the theo y of evident p e*editation of the p osecution. <hat , on the othe hand, to 3s appea s to be *o e p o9i*ate to the t uth that stands out f o* the eco d is that the e is not a bit of evidence the ein indicatin& anythin& of such feelin& bet2een Rosanna and !e nande". %o be su e, 2hat !e nande" 2as sho2n to have felt fo Rosanna then 2as obvious an&e , not because of any eason havin& to do 2ith love, but because she a ived al*ost half a day late fo the shootin& schedule of the fil* they 2e e co-sta in& 2ith each othe in, And he *ade no sec et of the eason fo his an&e in his talk 2ith Pan&ilinan, even as he cooled do2n late and tu ned thei conve sation to the fil*in& business, to the e9tent of thei talkin& about the possibility of co-p oducin& a fil* to&ethe . %hese facts a e p oven beyond doubt by the PeopleGs o2n evidence. B -t is also theo i"ed by the p osecution that it 2as at the instance of !e nande" that, 2hile he and Pan&ilinan 2e e talkin& and d inkin& to&ethe , t2o 0ue"on City police*en a ived at the Nasal esidence 2ith the ob)ectives, fi st, of checkin& on 2hethe o not the $location shootin&$ had the co espondin& pe *it, and second, to follo2 up an alle&ed telephone epo t eceived at the P ecinct No. 5 that the e 2e e pe sons in that house 2ith unlicensed o ille&al fi ea *s. And )ust because !e nande", acco din& to (i&ua, had inst ucted a ce tain Ro&e to call up Police P ecinct No. 5, and upon a ival at the Nasal esidence of t2o 0ue"on City police*en,. !e nande" p o*ptly e*a ked that, GAko, pa e 2ala, sila D efe in& to Pan&ilinan and (i&uaE *e on$, it is clai*ed that !e nande" 2anted Pan&ilinan and his co*panion, 2ho* he sa2 had &uns, disa *ed the eby facilitatin& his D!e nande"GE then instantaneously conceived plan to kill Pan&ilinan. -n this connection, <e have al eady said <e Cannot pe ceive in the eco d any evidence that could have suddenly *otivated !e nande" to incubate in his *ind any -dea of doin& a2ay 2ith Pan&ilinan. And 2hat, to 7u *ind, ne&ates co*pletely, the p obability of such a dasta dly intent is that acco din& to the p osecutionGs o2n evidence, !e nande" did his bit, in helpin& in the clea in& of Pan&ilinan and (i&uaGs possession of thei &uns, even &oin& to the e9tent of boastin& about his

connections 2ith the then Mayo of 0ue"on City, the late =on. No be to A*o anto, and of spendin& P5,CCC.CC )ust to clea up *atte s 2ith the police*en at the p ecinct. -t is to 3s beyond belief that a pe son ha bo in& an intent to kill 2ould take the t ouble of seein& to it that his intended victi*s 2e e a *ed o ea *ed, Pan&ilinan 2ith a po2e ful B o2nin& 6 **. auto pistol Dp. A/, Reco dE, and (i&ua, 2ith a ..? calibe nickel evolve . <ithal, it is also to be 2onde ed that 2he eas, acco din& to the t ial cou t, (i&ua clai*ed he hea d !e nande" $called and o de ed one Ro&e to GRo&e , tu*a2a& ka sa P esinto 3no, sabihin *on& *ay *&a dalan& ba il an& *&a taon& itoG, $ Dp. .A-A, +ecision, anne9ed to b ief fo !e nande"E it does not appea that (i&ua did anythin& at all in the face of such obviously ala *in& di ective of !e nande". No *ally, he should have i**ediately told Pan&ilinan about it and they could have e9plained to !e nande" that they had the app op iate licenses and pe *its the efo . (uch o*ission, <e a e inclined to believe, *akes the supposed &ivin& of any such o de by !e nande" athe doubtful. C 7the 2ise stated, <e ente tain se ious doubt that the e is any fact duly de*onst ated in the eco d indicatin& 2hy !e nande" could have ente tained then any p e*editated desi e to kill Pan&ilinan. %he contention of the (olicito 8ene al that the act of Rosanna, upon co*in& out f o* the p ecinct, of &oin& instead 2ith Pan&ilinan in his ca , afte she 2as al eady in the )eep 2ith !e nande" and thei othe co*panions, *ust have so e*ba assed !e nande" as to induce hi* to conspi e then and the e 2ith. his co-appellants to li;uidate Pan&ilinan and his co*panions, is to 3s a athe stained theo y, ha dly p obable in the o dina y cou se in the hu*an e9pe ience. <e cannot accept the sa*e as p oof beyond easonable doubt of so*ethin& indicative of evident p e*editation, conside in& the othe details e9tant in the eco d. -f at all, 2hat see*s *o e easonable to believe is that, unde the ci cu*stances, 2hat *ust have sei"ed !e nande" 2as a suspicion, 2hich tu ned out to be co ect, that Rosanna 2ould not &o back to the location shootin&, causin& hi* to be *o e an& y at he fo bun&lin& and *uddlin& thei fil* 2o k, the eby dis uptin& in conse;uence his o2n schedule of othe co**it*ents. %o 7u *ind, even his bein& that an& y 2ith Rosanna could not have p ovoked hi* to kill anyone, *uch less Pan&ilinan. + <e hold, the efo e, that if the death of Pan&ilinan and the 2oundin& of 'ope" and (i&ua, *ay ulti*ately be att ibuted to appellants, as un)ustified and unp ovoked - the c ucial ;uestion <e shall deal 2ith anon - the sa*e 2as not the esult of evident p e*editation, *uch less of t eache y and use of supe io st en&th as alle&ed in the info *ation a&ainst he ein accused. As a *atte of fact, in a ivin& at this conclusion, <e do not even have to adopt any de& ee of libe al attitude, dictated by the constitutional p esu*ption of innocence, in favo of the appellants he ein. <e only have to take a ha d look at the evidence of the p osecution, as <e a e co**anded by the la2, and not depend on any possible 2eakness in the evidence of the accused in c i*inal cases. -t is ;uite plain to 3s that, at the *ost, takin& into account, pa ticula ly, the sho tness of the ti*e that inte vened bet2een the events e*phasi"ed by the People, on the one hand, and the actual shootin& incident, on the othe , 2hich could not have been *o e than half an hou , the p obability that the fou accused to have talked and delibe ated on killin& anybody is *ost e*ote, 2hat <e can hold he ein accused &uilty of cannot be *o e than ho*icide and f ust ated ho*icide. --- Co olla ily, the decisive issue that co*es up, at this )unctu e is 2hethe o not, vie2in& the *atte befo e 3s as a 2hole in the li&ht of the evidence of both the p osecution and the defense, such

ho*icide and f ust ated ho*icide have been p oven beyond easonable doubt to be unp ovoked and un)ustified. As i*po tantly, 2e have to dete *ine 2hethe all the fou accused no2 befo e 3s o only so*e of the* should be held esponsible o hable in the p e*ises. A %o be&in 2ith, it *ay not be a*iss to b in& out, at this point, the fact that eadin& the t ial cou tGs decision, e9tendin& to A@ pa&es and athe detailed, the sa*e appea s to 3s not to be enti ely f ee f o* the possible influence of so*e unfavo able i*p essions =is =ono had been appa ently ente tainin& in2a dly even befo e the t ial be&an a&ainst acto s and act esses in ou *ovieland. 0uite candidly, he could not hide such feelin& in his decision. <ithout any evidence at all p esented to such effect, this is ho2 he pictu ed the*4 -t is a sad co**enta y but nonetheless a &la in& t uth that 2e have been 2itnesses to *any incidents of the past 2he e *ovie folks a e in constant banne headline fo thei *ischiefs in public, as 2ell as p ivate life. %hey see* to have that unsatiable ;uest of &ettin& entan&led in deadly b a2ls, actin& as thou&h they a e those noto ious bandits o apacious pilla&e s o dina ily depicted on the sc een. %hey lived as captives of thei *is&uided illusions, e9hibitin& the stance of bein& the untouchables, uncon;ue ables, e;ual to none and unaf aid to no one. <ith espect to 2o*en act esses and sta lets by thei loose *o als, conduct and behavio , they have &ained that co**on eputation as uthless 2 ecke s of decent ho*es and fa*ilies, cont ibutin& to the al eady t oubled society, in dest oyin& the basic foundation of ou de*oc atic institution, the ho*e. %hey defy even the basic ele*ent of decency inhe ent to !ilipino 2o*anhood, by pa adin& the*selves openly in public 2ith nose hi&h up and dis&ustedly 2ith false p ide fo the 2hole 2o ld to kno2, in the co*pany of *en 2ith bu den of esponsibilities. DPp. 55.55@, ,ol. -, Reco d.E <e a e not sayin& that =is hono actually p e)ud&ed the case a&ainst accused *ovie acto s !e nande" and 'ab a, only because they a e *ovie sta s, but, ce tainly, it is difficult to assess ho2 *uch actually 2as the de& ee of undue influence the bad i*a&e he had spontaneously po t ayed of *ovie acto s and act esses *i&ht have s2ayed hi* to un2ittin&ly yield to an i esistible i*pulse to *ake *ovie fi&u es lea n a lesson o t2o f o* hi* in these cases. <e a e app ehensive that to so*e e9tent his )udicial eyes *i&ht have so*eho2 been blu ed by such p e)udice, hence his *anifest deviation f o* the st ai&ht no * of )udicious decision-*akin&. B !u the *o e, <e note too that kno2in&, as he ou&ht to have kno2n, that technically, ce tain facts ;uite unsavo y about the appellants, a e in la2 i**ate ial and could not affect the decision, still =is =ono *ade it of eco d that4 -n a epo t sub*itted by the Manila Police +epa t*ent 2hich is al eady a pa t of the eco ds of this case, !e nande" has been p eviously indicted of the follo2in& c i*inal offenses4 Mu de , in C i*inal Case No. @61? befo e the Pasay City Cou t of !i st -nstanceF (li&ht Physical -n)u ies, in C i*inal Cases Nos. 5?C6@ J 5?C6B of the Municipal Cou t of Pa ana;ue, Ri"alF and 8 ave %h eats, in C Case No. 5?C6. befo e the Municipal Cou t of Pa ana;ue, Ri"al Accused Antonio Antido in the sa*e epo t, 2as p eviously convicted fo Conceal*ent of +eadly <eapon and indicted fo Atte*pted Mu de , 8 ave %h eats and -lle&al Possession of !i ea * and A**unitions, on co*plaint of one Nilo Calpe of the %a*a a2 (tudio, -nc. DPa&e 55B, ,ol. -, Reco d.E %he (olicito 8ene al hi*self points out that such conside ations ou&ht to have been dis e&a ded4

-n the case of appellant !e nande", the epo t sub*itted by the Manila Police +epa t*ent that he has the follo2in& c i*inal eco ds4 GaE Mu de , in C i*inal Case No. @61? befo e the Pasay City Cou t of !i st -nstanceF bE (li&ht Physical -n)u ies, in C i*inal Case Nos. 5?C6@ J 5?C6B of the Municipal Cou t of Pa ana;ue, Ri"alF and cE 8 ave %h eats, in C i*inal Case No. 5?C6. befo e the Municipal Cou t of Pa ana;ue, Ri"alG. cannot be conside ed fo the pu pose of a&& avatin& his c i*inal liability as a ecidivist. %he ce tificate of the Chief of Police of the City of Manila sho2in& that appellant !e nande" has been indicted of an offense is not the best p oof DPeople vs. 7n& Chiu, ?A Phil. ?@?E and it cannot be assu*ed that such indict*ent ipened to final conviction, *o e so, 2hen appellant as in this case ob)ected fo the conside ation of the sa*e D%hi d assi&n*ent of e o , !e nande"E. -t like2ise appea s in said epo t sub*itted by the Manila Police +epa *ent to the t ial cou t and 2hich no2 fo *s pa t of the eco ds of the case that appellant Antido 2as p eviously convicted fo conceal*ent of +eadly <eapon and indicted fo Atte*pted Mu de , 8 ave %h eats and -lle&al Possession of !i ea * and A**unitions. <hile the conviction of he ein appellant fo conceal*ent of +eadly <eapon 2as al eady final du in& the t ial of the above entitled cases, yet ecidivis* as an a&& avatin& ci cu*stance cannot be conside ed a&ainst this appellant, since the fo *e conviction is not e*b aced in the sa*e title of the Penal Code as the offense he has been p osecuted he ein. %his bein& the case, the epo t bea in& on the c i*inal eco ds of appellant Antido did not, the efo e, a&& avate his c i*inal liability in the cases at ba . DPp. B.-B@, PeopleGs B ief.E C Bea in& in *ind such out-of-place e9p essed pe spectives of the t ial )ud&e, <e do not 2onde 2hy the e is a notable dea th of app op iate attention &iven in the decision unde evie2 to the ve y i*po tant and vital un ebutted evidence that aside f o* Pan&ilinan, 'ope" and (i&ua, accused !e nande" hi*self suffe ed &unshot 2ounds on the occasion in ;uestion. !e nande" testified that as he app oached the ca of Pan&ilinan una *ed and 2as *e ely askin& Rosanna 2hy they 2e e &oin& to2a ds the di ection opposite the site of the $location shootin&$ they had not yet finished a *ost no *al thin& fo anyone in his place 2ould have done as co-sta in the pictu e then bein& p epa ed by both of the* Pan&ilinan &ot an& y, and told (i&ua4 $%ala&an& asa and taon& ito, ti ahin *o na %otoy D(i&uaE$, 2he eupon (i&ua took his nickel plated ..? calibe evolve f o* his side and fi ed at !e nande" about fou ti*esF that !e nande" 2as actually hit and fell in a canal 2he e he lost consciousness 2hich he e&ained only at the National 7 thopedic =ospital f o* 2he e he 2as t ansfe ed late to the ,. 'una 8ene al =ospital 2he e he 2as t eated fo his t2o D?E &unshot 2ounds, one of the* th ou&h and th ou&h at the left chest and the othe in the abdo*en 2he ein pa t of a bullet 2as obse ved to be lod&ed, until it 2as e*oved at the 0ue"on City Medical Cente th u an ope ation unde taken by no less than Captain A nold 8 uspe the ve y su &eon of the ,. 'una 8ene al =ospital 2ho had ea lie attended to hi* the eat on the sa*e ni&ht of (epte*be 51, 56/6. DE9hibit /, !e nande", t.s.n., pp. 5A-?@, May ?A,561C.E Most i*po tantly, it is beyond 7u co*p ehension 2hy the t ial )ud&e paid no heed at all to the testi*onies of Ma)o Constantino 'eyva of the Philippine Constabula y and +o*in&o 8. del Rosa io, Assistant Chief of the Ballistic +ivision of the NB- leadin& al*ost to a point of ce tainty that the,. defo *ed slu& e9t acted f o* the body of accused !e nande" by Capt. 8 uspe su &eon of ,. 'una =ospital 2as fi ed f o* the ..? Calibe &un of p osecution 2itness (i&ua. (t an&ely, all that the t ial )ud&e e*a ked about those 2ounds of !e nande" 2as4

%he defense has attached *uch si&nificance to the findin&s of the National Bu eau of -nvesti&ation that the lead bullet taken f o* the body of Eddie !e nande" has *a kin&s indicatin& that it ca*e f o* E9hibit M-. the fi ea * issued in the na*e of =ila io (i&ua in o de to bolste the clai* that Eddie !e nande" did not fi e a &un and that it 2as the & oup of Pan&ilinan 2ho 2e e the a&& esso s. -t 2ill he noted ho2eve , that this is cont a y to the findin&s of the ballistician of the Philippine Constabula y to the effect that no definite conclusion can be *ade as to 2hethe o not the speci*en, a ..? calibe defo *ed lead 2as fi ed f o* the e9hibit fi ea * due to insufficient individual cha acte istics. 7f si&nificant value and ve y elevant to the point at issue is the ad*ission of defense 2itness, + . A nold 8 uspe the p incipal attendin& physician of Edua do !e nande", that the lead bullet taken f o* the body of Eddie !e nande" 2as e9a*ined by *e*be s of the fa*ily of !e nande", and that he ent usted the sa*e to #ose (a*son, the o2ne ad*inist ato of the 0ue"on City Medical Cente , and that the latte 2as the one 2ho sub*itted the lead bullet to the autho ities fo e9a*ination. ! o* this ci cu*stance, the dan&e and possibility of it bein& substituted o ta*pe ed 2ith is not at an e*ote o i*p obable, but on the cont a y, it is ve y p obable. Co olla y to this is the findin& that 'ope", (i&ua and Pan&ilinan 2e e all found to be ne&ative of po2de bu ns, 2he eas, !e nande", Antido and Ba celona 2e e found positive fo po2de bu ns, co obo atin& p osecutionGs theo y that they fi ed thei &uns a&ainst Pan&ilinanGs & oup. %hou&h 'ab a 2as found ne&ative of po2de bu ns, it does not necessa ily follo2 that he did not fi e a &un fo conside in& the *ake of &unpo2de s no2adays, po2de nit ates could be easily e*oved th ou&h the use of che*icals. DPp. 5CA-5C6, ,ol. -, Reco d.E %his, 2hen even the 2itness 2ho dese ved an eco*iu* f o* the )ud&e, albeit he did not see the actual shootin& incident but alle&edly only the incidents the eafte , the thi teen yea -old !e nando +espo, testified that he sa2 !e nande" 2as bein& helped o aided by alle&edly, his co-accused 'ab a, to a )eep behind anothe ca that 2as follo2in& Pan&ilinanGs Me cu y Cou&a and that !e nande" $fell at the back of the )eep.$ Dpp. 5?6-5.C, t.s.n., May 5?, 561C.E -t is ;uite la*entable f o* the )u idical point of vie2 that, unde the ci cu*stances )ust discussed, the t ial cou t &ave ve y little thou&ht to the testi*ony of !e nande" in his defense. %o be su e, !e nande" did not e9actly t y to p ove self-defense, because he denied bein& a *ed, thus clai*in& to be the victi* of an offense athe than the a&& esso . But even if he 2e e a *ed and had in fact fi ed a &un, 2hat is undeniable is that he 2as hi*self in)u ed. (uch a vital ci cu*stance should have dese ved due attention f o* =is =ono as vital facto in assessin& his &uilt o innocence. -n a shootin& incident 2he e both opposin& pa ties a e in)u ed, it is incu*bent upon the t ial )ud&e to 2ei&h the conflictin& ve sions of the p ota&onists in o de to pinpoint as fa as it is hu*anly asce tainable 2ho in fact sta ted the shootin&, 2hat p ovoked the sa*e and 2hy, and 2hethe o not the *eans e*ployed in epellin& the a&& ession by eithe of the* 2as )ustified. %his is specially t ue in the instant cases 2he e =is =ono sa2 fit to i*pose upon the accused !e nande" and 'ab a, a&ainst 2ho* he visibly had bad i*p essions as *ovie sta s, the e9t e*e penalty of capital punish*ent. %o eite ate, in the final analysis, the ulti*ate and pivotal issues <e have to esolve he e and should have been tho ou&hly assayed by the t ial cou t a e4 D5E 2hethe o not the accused !e nande" and Antido, 2ho ad*itted p esence at the scene of the offense cha &ed acted in selfdefense, and, D?E as to those 2ho denied thei p esence the eat, na*ely, 'ab a and Ba celona, 2hethe o not thei p etended alibi could be &iven sufficient c edit to entitle the* to ac;uittal. -, Conceded as it *ust be, the evidence the eof bein& unassailable, that in the evenin& in ;uestion, Renato Pan&ilinan died in his ca , of &unshot 2ounds 2ithout his bein& able to use the po2e ful

B o2nin& 6 **. auto-pistol he had 2ith hi* then, the cent al point to dete *ine is 2ho shot hi* and ho2. -n this espect, and at the isk of epeatin& an ea lie efe ence to the fou 2itnesses testified fo the p osecution, na*ely, D5E Rosanna 7 ti" D,iolets 7 beta - efe ed to he ein only as RosannaE, D?E a 5.-yea old boy na*ed !e nando +espo, D.E =ila io (i&ua, the co*panion of Pan&ilinan and D@E Apolina io 'ope", the d ive of Pan&ilinan 2ho at the ti*e of the incident 2as the one actually d ivin& the fatal ca . Rosanna, (i&ua and 'ope" decla ed unifo *ly that as Pan&ilinanGs ca 2as stopped by a t affic )a* nea the co*e of A. Bonifacio and Blu*ent itt (t eets, al*ost at the bounda y line of Manila and 0ue"on City but still 2ithin the te ito ial )u isdiction of the latte , they 2e e su ounded by a *ed *en, one of the* definitely the accused !e nande", and that afte a b ief 2a nin& f o* said accused, 2ho alle&edly 2as ai*in& a pistoli"ed ca bine at all fou of the* 2ho 2e e in the ca , $<alan& kikilos sa inyo, an& kikilos tata*aan,$ and Rosanna and (i&ua had pleaded to hi* not to ha * the*, hell b oke loose, the e 2as a flu y of &unshots, at the 2ake of 2hich Pan&ilinan slu*ped 2ounded on the lap of Rosanna, 'ope" 2as also hit in his uppe left chest 2hile (i&ua 2as sli&htly 2ounded bet2een the thu*b and fo efin&e of his i&ht hand. Rosanna 2as unhu t. +espo did not see the actual shootin&. =e hea d &unshots 2hile he 2as at the (hell &as station on the opposite side of A. Bonifacio st eet. %o ;uote f o* the pe tinent po tions of his testi*ony4 0 <hile you 2e e the e at that pa ticula hou DthatE date Dat seven oGclock in the evenin&E, can you tell the Cou t if the e 2as anythin& unusual that happenedK A %he e 2e e &unshots. 0 <he eK A At the othe side of the oad at A. Bonifacio (t eet. 0 And 2hat did you do afte you hea d those &unshotsK A - cli*bed the top of a t uck. DPp. 5??-5?., t.s.n. May 5?, 561C E 999 999 999 0 >ou cli*bed on the t uck. because you 2e e af aidK A >es, si . 0 And 2hat did you doK A 7n top of that t uck - looked a ound because - thou&ht the e 2as a shootin&. 0 (hootin& fil*K A >es, si . DP. 5@B, Id.E 999 999 999 0 <hat did you seeK A - sa2 Eddie !e nande" and Be tin& 'ab a. 0 <he e did you see Eddie !e nande" and Be tin& 'ab a K A - sa2 the* in a black ca . 0 -nside o outside the ca K A 7utside the black ca . 0 And this ca 2as unnin& o in a stop positionK A -t 2as in a stop position. 0 +o you kno2 2hy the ca 2as in a stop positionK A Because the e 2as a t affic )a*. 0 <he e, in 2hat po tion of the ca did you see Eddie !e nande"K A - sa2 hi* at the i&ht side of the ca . 0 %his Eddie !e nande", can you point to hi* no2K A >es, si . D2itness pointin& to the *an 2ith & een shi t 2ho upon bein& sked, ans2e ed by the na*e of Eddie !e nande", the accused accusedE

0 =o2 about Be tin& 'ab a you *entioned, 2he e 2as heK A =e 2as at the left side of the ca . 0 <hat 2e e they doin& 2hen you sa2 the*K A - sa2 the* at the left and i&ht side of the ca hidin& th u a passen&e Gs )eep and then they 2ent a2ay. 0 %hat 2as i**ediately afte you hea d the &unshotsK A >es, si . 0 +o you kno2 if any of the* 2as holdin& anythin&K A - sa2 Eddie !e nande" only holdin& so*ethin& this len&th of one foot. 0 <hat 2as Eddie !e nande"K A -t 2as a &un, a lon& &un. D2itness de*onst atin& a len&th of about one footE 0 =o2 about Be tin& 'ab a, 2as he holdin& so*ethin& 2hen you sa2 hi*K A - did not notice. 0 <e e the e any pe son aside f o* Eddie !e nande" and Be tin& 'ab a that you sa2 a ound that black ca K A %hey 2e e the only ones - noticed. 0 <hy do you kno2 this Eddie !e nande" and Be tin& 'ab aK A 7nce in a 2hile they lod&ed in the cockpit at 'a 'o*a. 0 %he t2o of the*K A >es, si . 0 =o2 about in the *ovies, have you seen the t2o in the *oviesK A >es, si . 0 %hat place 2he e you sa2 these t2o a ound that black ca , 2as it li&hted o da kK A -t 2as li&hted. 0 <hy 2as it li&htedK A Because it 2as ea lie . 0 <as the e a li&ht on the elect ic post a oundK A >es si . 0 %his )eep that you sa2 2he e Eddie !e nande" and Be tin& 'ab a ode did you see the d ive K A >es, si . 0 <ould you look a ound aid see if he is in Cou tK A =e is he e. 0 <ill you point to hi*K A =e is the e. D2itness pointin& to a pe son 2ho upon bein& asked, ans2e ed by the na*e of Antonio AntidoE 0 Aside f o* this d ive Antido, 2as the e any othe pe son inside the )eep 2he e Be tin& 'ab a and Eddie !e nande" odeK A - only sa2 those th ee, Eddie !e nande", Be tin& 'ab a and that one 2ith cu ly hai . 0 Afte the incident 2e e you able to see this pe son you pointed a&ainK A - sa2 hi* 2hen Eddie !e nande" ode on a )eep 2hich backed up and then fi ed anothe shot and then they *ade sho t cut in Calavite (t eet. - eco&ni"ed the d ive , the one 2ith a cu ly hai and black. 0 >ou said he fi ed anothe shot, 2ho 2as that pe son 2ho fi ed anothe shotK A Eddie !e nande". 0 %o2a ds 2hat di ection did you see Eddie !e nande" fi ed the shotK A =e 2as fi in& it to2a ds the black ca . 0 Afte that 2hat else did you seeK A %he black ca p oceeded to2a ds the Chinese. 0 =o2 do you kno2 thatK

A >es si , they p oceeded to2a ds the Chinese. 0 Afte the incident 2e e you investi&ated by any of the police a&enciesK A Afte that the follo2in& day, t2o police*en a ived and it so happened that - have a police f iend to 2ho* - na ated the incident and the police*an by the na*e of C u". My f iend police*an na ated it to +alanon. 0 And you 2e e taken by +etective +alanon to the police head;ua te K A >es, si . 0 >ou &ave you state*ent the eK A >es, si . DP.5?.-5?A, Id.E 999 999 999 0 <hen you sa2 Eddie !e nande" fo the fi st ti*e he 2as bein& aided by so*ebody, is it notK A - sa2 the* boa ded the )eep to&ethe and Be tin& 'ab a suppo ted Eddie !e nande", and Eddie fell at the back of the )eep. 0 -nside o outside the )eepK A 7utside the )eep. 0 Eddie !e nande", in spite of his bein& suppo ted by his co*panion then fell on the & ound outside the )eepK A -t 2as on the )eep 2hen he fell. 0 And because Eddie !e nande" 2as ve y 2eak then that is 2hy he 2as bein& suppo ted by his co*panion, that is co ect, is it notK A >es, si . 0 =o2 fa 2e e you f o* Eddie !e nande" at the fi st ti*e you sa2 hi*K A - 2as ve y nea , at a distance f o* this place up to that 2ood D2itness esti*atin& about 6 *ete sE 0 About 2hat ti*e 2as that in the evenin&K A -t 2as ;uite ea ly seven oGclock. 0 Acco din& to you you sa2 hi*G holdin& so*ethin&K A >es, si . 0 And at that distance you thou&ht it 2as a &un, is it notK A - sa2 hi* holdin& so*ethin& like this lon&. D2itness de*onst atin& about 5 5I? feet lon&E 0 %hat is all you can say - that he 2as holdin& so*ethin& that is lon&, is it notK A >es, si . 0 %hat 2as afte the shootin& that you hea dK A - hea d it only. 0 %his place 2he e you sa2 Eddie !e nande" 2as on the st eet - side of the st eet f o* the &asoline station 2he e you 2e e, is it notK A >es, si . 0 %hat *ust have been *o e than nine *ete s because the st eet the e definitely is *o e than nine *ete s, is it notK A No si , it is ve y nea to *e. 0 Afte you hea d the shots you *ust have sou&ht cove , is it notK A No, - cli*bed up the t uck. A%%>. CA(%R7 <e have no *o e ;uestions, you =ono . A%%>. BA3%-(%A C oss fo Antido. <ith the pe *ission of the =ono able Cou t.

C73R% P oceed. CROSS- !"#I$"%IO$ "%%&. R"'%IS%" 0 =o2 lon& afte the shootin& afte you sa2 the incident that you said you talked to the police*an 2ho* you said you f iendK A -t 2as a lon& ti*e. 0 Could it be t2o days afte the incidentK A >es, si . 0 <ho is this police*an, 2hat is his na*eK A =e has a ca inside the cockpit. 0 Aside f o* this police*an 2as the e any pe son to 2ho* you na ated this incidentK A None, si . 0 +id you not tell this incident to you pa entsK A - told it to the b othe of *y fathe . 0 =o2 lon& afte did you tell this incident to the b othe of you fathe K A Afte t2o days. 0 <ho 2as the fi st one to 2ho* you na ated this incident to the b othe of you fathe o the police*anK A At fi st to the police*an and second to the b othe of *y fathe . 0 +o you e*e*be havin& been investi&ated in connection 2ith the incident that you sa2K A >es, si . 0 <hen 2as thatK A %hat 2as <ednesday, (epte*be 51. 0 And 2as this investi&ation in 2 itin&K A -t 2as type2 itten by +alanon. 0 -f sho2n to you this investi&ation in 2 itin& 2ill you be able to eco&ni"e the sa*eK A >es, si . A%%>. BA3%-(%A May 2e e;uest the !iscal to p oduce the state*ent &iven by this 2itness. C73R% 8 anted. !-(CA' ME'EN+RE( - a* handin& to counsel Atty. Bautista state*ent of the 2itness !e nando +espo. A%%>. BA3%-(%A 0 - a* sho2in& to you this state*ent and fo pu poses of -dentification - 2ould like to e;uest that the sa*e be *a ked as E9hibit 5 Gfo Antido. Please tell us if this is the sa*e E9hibit 5 the state*ent that you &ave on (epte*be ?CK A >es, si . 0 All the ;uestions appea in& he e 2e e asked of you, is it notK A >es, si . 0 And that all the ans2e s he e 2e e &iven by you, is that co ectK A >es, si . 0 >ou stated in you di ect e9a*ination that you 2e e able to kno2 the d ive of the ed )eep and you pointed to the pe son of Antonio Antido, is that co ectK

A =e is Antonio Antido, the one 2ith a cu ly hai . D2itness pointin& to the accused Antonio AntidoE 0 - a* efe in& you no2 to ;uestion No. 5C, of this pa ticula state*ent *a ked E9hibit 5. %he ;uestion he e and - ;uote4 $Hun& *akikita *o uli iyon& na&*a*aneho n& pulan& )eep na sinakyan ni Eddie !e nande" pa&katapos n& ba ilan *akikilala *o pa ba siyaK$ %hat is the ;uestion and the ans2e is4 $=indi ko na po *akikilala. $ +id you &ive this ans2e to that ;uestionK A +u in& the t ial 2hen 2e used to &o in and out - 2as able to eco&ni"e hi* and pointed to +etective +alanon. 0 <hy is it that you said you 2ill not be able to eco&ni"e hi* any*o eK A Afte that 2hen - ente ed the doo - i**ediately eco&ni"ed hi*. - 2as able to ecall hi*, si . 0 -s it not a fact that so*ebody told you that he 2as the d ive of the )eepK A No si , - 2as the only one 2ho pointed to hi*.$ DPa&e 5.C- 5.1, -d.E 999 999 999 0 <hat 2as the atti e of Be tin& 'ab aK A - did not notice, - only noticed his face. 0 +o you kno2 2hethe he 2as 2ea in& a hat o notK A - sa2 his face only. 0 +id you notice if he 2as 2ea in& a Ba on& %a&alo& o a polo shi tK !-(CA' ME'EN+RE( Al eady ans2e ed. C73R% (ustained. A%%>. +-MAAN7 - a* testin& the c edibility of the 2itness. C73R% 2itness *ay ans2e . <-%NE(( A - 2as )ust lookin& at his face. 0 <hat about Eddie !e nande", 2hat 2as he 2ea in&K A - 2as lookin& at his face only. 0 >ou did not notice 2hethe Eddie !e nande" 2as 2ea in& a polo shi t o a Ba on& %a&alo&K A 7nly faces. DPp.5@B-5@1, Id.E As can be eadily obse ved, the fo e&oin& testi*ony bea s featu es that a e athe unusual and unbelievable, such as D5E his bein& af aid, Dit 2as only afte the fiscal that he talked of *ovie shootin&E still, he cli*bed at the top of a t uck to see 2hat 2as &oin& on, a *e e 5.-yea old boy as he 2asF D?E his va&ue desc iption of 2he e !e nande" and 'ab a 2e e 2hen he fi st sa2 the* and 2hat they 2e e espectively doin& thenF D.E his co ection of his ea lie 2 itten state*ent &iven to the police about the -dentification of accused AntidoF D@E his belated Dat fi st he said the ne9t day, only to ad*it late it 2as afte t2o daysE elatin& of 2hat he sa2 to his police*an f iend and the

b othe of his fathe D%hey 2e e the fi st to 2ho* he evealed the incidentF not to his fa*ilyEF DBE his inability to e*e*be ho2 !e nande" and 'ab a 2e e atti edF etc. But let 3s leave such 2eaknesses of evidentia y value of his testi*ony fo a 2hile. At this )unctu e, the i*po tant points to bea in *ind a e D5E that he did not see !e nande" fi in& the $lon& &un$ the 2itness said !e nande" held, e9cept 2hen he D!e nande"E and his co*panions 2e e *ovin& a2ay f o* the sceneF D?E he did not notice that 'ab a 2as holdin& any 2eapon o &unF D.E that he did not notice any othe pe son 2ith !e nande", 'ab a and Antido, thus o*ittin& Ba celonaF and ve y elevantly D@E that he sa2 !e nande" bein& aided by so*ebody to his )eep. %o ;uote hi* a&ain4 0 <hen you sa2 Eddie !e nande" fo the fi st ti*e he 2as bein& aided by so*ebody, is it notK A - sa2 the* boa ded the )eep to&ethe and Be tin& 'ab a suppo ted Eddie !e nande", and Eddie fell at the back of the )eep. 0 -nside o outside the )eepK A 7utside the )eep. 0 (o Eddie !e nande", in spite of his bein& suppo ted by his co*panion then fell on the & ound outside the )eepK A -t 2as on the )eep 2hen he fell. 0 And because Eddie !e nande" 2as ve y 2eak then that is 2hy he 2as bein& suppo ted by his co*panion, that is co ect, is it notK A >es, si . DP.5.C,t.s.n.,May l?, 561C.E the eby int oducin& the fi st indication of the i*po tant ele*ent, <e shall discuss late , that !e nande" ca*e out of the incident also 2ounded. RosannaGs evidence co obo ated +espoGs in the sense that Ba celona 2as not noticed a ound the place of the incident. And she added a pivotal point insofa as 'ab a is conce ned. (he did not notice hi* the e, even as she clai*ed she sa2 Antido, less kno2n to he , 2ho acco din& to (i&ua and 'ope" 2as alle&edly beside AntidoF she decla ed that 'ab a left the police p ecinct at Mayon ahead of the* to&ethe 2ith +i ecto Molina and Antido, the eby suppo tin& the contention of the defense that 'ab a could not have been 2ith !e nande" " at that fatal shootin& incident. %hus, only the testi*onies of t2o 2itnesses, (i&ua and 'ope", a e left to se ve as possible basis fo the conviction of 'ab a and Ba celona. 'et it be ecalled that althou&h 'ope" clai*ed he had no &un of his o2n, the evidence sho2s that in the &love co*pa t*ent 2ithin his each 2as no less than a. @B calibe pistol, alle&edly belon&in& also to Pan&ilinan. D%his &un 2as neve p oduced in evidenceF it 2as neve sho2n to the police fo e9a*ination.E (i&ua, on the othe hand, 2ho clai*ed to be a *e e f iend-co*panion of Pan&ilinan ad*itted that 2heneve they ode in the ca , he al2ays had his ..? **. &un by his side, not in a holste , not in his pocket but evidently eady fo use. %hus, it *i&ht be said, he 2as a so t of body&ua d of Pan&ilinan. -ndubitably, the efo e, <e cannot but take thei decla ations 2ith & ains of salt. %hey had to have so*ebody ans2e fo the death of thei $*aste $, and, of cou se, unde the ci cu*stances, 2ho could co*e in handy but !e nande" and 'ab a, Antido and Ba celona 2ho* they had *et ea lie in the house of Nasal and 2e e 2ith the* at the police p ecinct 2hen thei &uns 2e e bein& ve ified. -n othe 2o ds, it 2as easy fo the* to su *ise that those th ee 2e e 2ith !e nande" iii 2hateve he did. Mo e, they *ust have thou&ht so*eho2, that because p ecisely 'ab a 2as one of the co-acto s of !e nande" in the fil* then bein& done and Antido 2as his d ive to connect the* 2ith the doin&s o *isdoin&s of !e nande" 2ould easily be s2allo2ed by the undisce nin&. -n these p e*ises, <e find no difficulty in holdin& that 'ab a and Ba celona cannot be held esponsible fo the c i*es cha &ed he ein. %he least that can be said e&a din& the evidence a&ainst the* is that the sa*e does not p ove thei &uilt beyond easonable doubt as e;ui ed by

the ules, the Constitution and the )u isp udence inte p etative the eof. Afte e9a*inin& the eye2itnessG decla ations a&ainst said t2o accused, <e cannot say 2ith *o al ce tainty that they 2e e even at the scene of the c i*es cha &ed. A 'et 3s take the case of Ba celona. As al eady stated, +espo did not notice his p esence. Neithe did Rosanna. 7nly (i&ua and 'ope" 2ho *ust have been i*patiently conce ned 2ith the t affic )a* that caused thei ca to stop and, the efo e, *ust have had thei si&ht to2a ds the f ont, decla ed they sa2 hi* fi in& his &un f o*, of all places, behind the ca . =o2 they could have tu ned a ound 2hile the shootin& 2as &oin& on to see Ba celona in the seven oGclock da kness of the evenin& ta9es 7u c edulity to its b eakin& point. (i&ua, pa ticula ly, told the cou t that as soon as the shootin& sta ted, he )ust slid do2n in his seat to avoid bein& hit. =o2 could he have seen anyone behind the ca K -t is of si&nal elevance to note that (i&ua &ave t2o 2 itten state*ents elative to the incident unde in;ui y, the fi st on the ni&ht of (epte*be 51, 56/6 and the second on Nove*be ?5, 5616, 2ith the peculia ity that the latte 2as p epa ed in the p esence, if not 2ith the assistance, of Atty. No be to 0uisu*bin&, the fi st p ivate p osecuto in these cases. -n none of said state*ents, did (i&ua even *ention Ba celona o any fou th pe son 2ith !e nande". DE9hibits / and @-1, Ba celonaE Neithe 2as the e any *ention of any such fou th pe son, *uch less Ba celona, in the 2 itten state*ent of 'ope" &iven that evenin& of (epte*be 51, 56/6. <ithal, Ba celonaGs alibi cannot be st on&e . %hat he 2as at the Mayon police p ecinct at the ti*e the shootin& incident in ;uestion took place 2as assu ed to the cou t by fou *e*be s of the police depa t*ent 2ho 2e e then the e. (&t. 8on"alo Ma iano testified that Pat ol*an An&el +o*in&o called hi* by phone to info * hi* the e 2as a shootin& incident at A. Bonifacio and, the efo e, he had to send *o e *en the eto. =e sa2 that Ba celona 2as then at the p ecinct. =e also testified that he dispatched Pat ol*an Ma&tan&&ol Pascual, Edilbe to #i*ene" and Ro*eo Alonte to the place indicated by Pat. +o*in&o. Ba celona 2as left in the p ecinct. Pat ol*an Pascual and Pat ol*an #i*ene" co obo ated (&t. Ma ianoGs testi*ony in open cou t 2hich included the info *ation that Ba celona helped in handin& of the &un to one of the*. %hey even si&ned a )oint affidavit 2ith Alonte, to the sa*e effect. D(ee E9hibit AE All these police*en told the t ial cou t that Ba celona 2as in the p ecinct lon& befo e the shootin& incident and 2as still the e 2hen they etu ned the eto. %o dis e&a d such evidence as a&ainst the shaky testi*onies of (i&ua and 'ope" 2ould be i ational and cont a y to co**on sense. 7f cou se, the e is in the eco d the che*ist y epo t that a sin&le speck of nit ate 2as found at the e&ion of the distal phalan&e inde9 fin&e of Ba celonaGs i&ht hand and it appea s that the shatte ed pa t of the back &lass of Pan&ilinanGs ca had a hole havin& the appea ance of a bullet hole, 2hich facts could in a 2ay suppo t the PeopleGs pose that Ba celona did fi e his &un f o* behind Pan&ilinanGs ca . But the sin&le speck of nit ate efe ed to is to 3s inconclusive as, in fact, no atte*pt 2as *ade to *ake the e9pe t, Me cedes Bautista of the NB-, &ive he opinion that such 2as evidence that the sub)ect had fi ed a &un. Besides, that appa ent bullet hole *ay be e9plained by +espoGs decla ation that !e nande" fi ed a pa tin& shot at the back of the ca . B %u nin& no2 to 'ab a, the fi st and *ost i*po atant point in his favo is that his hands 2e e found ne&ative of any t aces that he had fi ed any &un. DE9hibit +, E9hibit ., 'ab aE =e denied bein& 2ith !e nande" at the shootin& incident. Rosanna p actically e9culpated hi* not only by sayin& that she did not notice hi* at the &un shootin& place but by affi *in& fu the that he left the p ecinct

ahead of eve yone to&ethe 2ith +i ecto Molina. Dpp. 6@-6B, t.s.n., May 5?,561CE =is alibi that he etu ned to the Nasal house and late to the house of Ma)o Alve e" and 2as the e in ve y d unken condition 2as co obo ated by +i ecto Molina and anothe pe son, Chito Ba on. +espoGs -dentification of 'ab a appea s to 3s ve y doubtful, as he 2as unable to say 2hat he 2as 2ea in& at the ti*e, 2hethe a polo shi t, a ba on& o 2hat. Mo eove , as <e shall discuss a&ain late , it 2ould be dan&e ous to convict anyone, 2ith +espoGs evidence, clutte ed as it 2as 2ith peculia ities that en&ende disbelief. C Alibi as a &ene al ule is the 2eakest of defenses in a c i*inal case. But this is so only 2hen the -dentity and p esence of the accused a e definitely established by c edible 2itnesses. -n the cases of 'ab a and Ba celona, <e have taken pains to e9a*ine ca efully not only thei espective alibi and found the* c edible but *o e, the pu po tedly inculpato y evidence a&ainst the* by the p osecution. As fa as Ba celona is conce ned only (i&ua and 'ope" clai*ed they sa2 hi* but as <e have al eady discussed, those 2itnesses can ha dly be dee*ed as havin& &iven definite and clea evidence of the p esence of Ba celona at the scene of the offenses in ;uestion. -t is not easy to believe that in the *idst of the shootin&, they could have seen hi*, behind thei ca , da k as the ni&ht 2as, as it 2as al eady seven oGclock. <ithal, said 2itness could ha dly be conside ed as unbiased. Ba celonaGs alibi is suppo ted st on&ly by no less than office s of the la2 the*selves, not one, but fou of the*. And the sa*e *ay be said of the atte*pts of (i&ua and 'ope" to inculpate 'ab a. =e fi ed no &un, acco din& to the NB- che*ist y epo t. Rosanna said he left ahead of the* f o* the police p ecinct and 2as not 2ith !e nande"F she did not, notice hi* at the &un-shootin& incident at A. Bonifacio. <e a e satisfied that his alibi suppo ted by +i ecto Molina and Chito Ba on out2ei&h the evidentia y value of (i&uaGs and 'ope"G testi*onies. Acco din&ly, 7u collective *inds cannot est easy in the *o al conviction that Ba celona and 'ab a 2e e at the scene of the offense he ein cha &ed and that they took pa t in the killin& of Pan&ilinan and the 2oundin& of 'ope" and (i&ua. Ba celona and 'ab a a e entitled to ac;uittal. Afte all, if in t uth, 2hich the evidence befo e 3s does not sho2, they had anythin& to do 2ith the c i*es in ;uestion, thei inca ce ation fo about a decade no2 could al*ost, if not co*pletely se ve as punish*ent enou&h, even unde the Revised Penal Code, since, as ea lie obse ved, the *ost they could be &uilty of is ho*icide and f ust ated ho*icide. , %he cases of accused !e nande" and Antido have to be vie2ed diffe ently. %hei p esence at the scene of the sub)ect offenses is ad*itted by the* and the only *atte <e have to in;ui e into as fa as they a e conce ned is the de& ee of thei pa ticipation the ein, fi st, 2hethe it is culpable o not and, in the affi *ative, 2hat is the natu e of thei espective liabilities. %o be su e, the th ust of the defense of !e nande" is that he 2as not the offende but, on the cont a y, the victi* of a&& ession on the pa t of Pan&ilinan as insti&ato and (i&ua as the actual a&& esso 2ith his..? calibe colt evolve . DE9h. M-. E. -t *ay be ecalled that acco din& to the p osecution, !e nande" app oached the stopped ca of Pan&ilinan f o* its i&ht side, 'ab a and Antido f o* its left and Ba celona f o* behind and that afte !e nande" had 2a ned the fou passen&e s, $<alan& kikilos sa inyo, an& kikilos tata*aan.$, 2ith his pistoli"ed ca bine ai*ed at all of the*, and Rosanna had pleaded $=u2a&, Eddie, hu2a&.$, 2hile (i&ua had e*a ked, $=indi ka*i lalaban$, shots 2e e si*ultaneously fi ed by all fou accused. %he afte *ath 2as that Pan&ilinan fell 2ounded on the lap of Rosanna, 'ope" &ot hit on the i&ht chest and (i&ua 2as sli&htly hu t in the fo efin&e of his i&ht hand. =o2 Rosanna 2ho

2as nea est to !e nande", fo she 2as sittin& on the i&ht side of the ca the ea 2indo2 of 2hich 2as open, ca*e out unscathed is not sho2n in the eco d. Acco din& to the p osecution, !e nande" *ust have been infu iated by RosannaGs &oin& 2ith Pan&ilinan in the latte Gs ca instead of &oin& back to 2o k at the location in NasalGs house that he decided to kill Pan&ilinan, obviously the cause of RosannaGs leavin&, and 2ithin the sca cely five *inutes that it took the* to tu n a ound and pu sue Pan&ilinanGs ca , he 2as able to convince his f iends 'ab a and Ba celona and his d ive Antido to conspi e 2ith hi*, each 2ith his definitely assi&ned pa t, hence the cha &es of *u de and f ust ated *u de in band o 2ith abuse of supe io st en&th a&ainst the*. %hat such ve sion of the p osecution cannot be 2holly t ue is i**ediately de*onst ated in 7u ea lie discussion that t eache y and evident p e*editation cannot be app eciated in these cases in the li&ht of the ci cu*stances e9tant in the eco d. Also, the accusation that the foil-accused he ein acted as a band o 2ith abuse of supe io st en&th cannot hold 2ate , fo the si*ple eason that as <e have found above, the p esence, *uch less the pa ticipation of Ba celona and 'ab a have not been p oven beyond easonable doubt, and any2ay, all th ee of the alle&ed victi*s 2e e the*selves a *ed. Conse;uently, if at all !e nande" and Antido *ay be held &uilty, the offenses co**itted by the* 2ould at *ost be only ho*icide and f ust ated ho*icide, 2ith the *iti&atin& ci cu*stance of volunta y su ende , a ci cu*stance conceded in the PeopleGs b ief Dp. B/E. A -n dete *inin& the de& ee of liability of !e nande", t2o ve y si&nificant ci cu*stances, 2hich to 3s have been satisfacto ily p oven by c edible evidence, *ust above all be conside ed, na*ely4 5. %hat !e nande" hi*self 2as 2ounded du in& the shootin& incident in his left chest and lo2e pa t of his body. %he testi*ony of +espo, the boy 2itness of the p osecution, *o e than su&&ested the ve acity of this fact, 2hen he decla ed that he sa2 that !e nande" 2as bein& aided on the 2ay to his )eep and that he $fell$ inside it, albeit the defense clai* he fell on the oadside. !e nande" 2as *edically t eated that sa*e ni&ht, fi st at the National 7 thopedic =ospital, late at the ,. 'una 8ene al =ospital, and 2hen he 2as ulti*ately ope ated on at the 0ue"on City Medical Cente by the sa*e *ilita y su &eon 2ho attended to hi* at ,. 'una, Captain A nold 8 uspe a defo *ed slu& 2as found lod&ed in his body. ?. %hat defo *ed slu& 2as -dentified by Ma)o Constantino 'eyva, Chief Ballistics B anch of the Philippine Constabula y as a ..? calibe bullet 2hich 2hen e9a*ined scientifically and co*pa ed 2ith test bullets fi ed f o* the ..? calibe &un (i&ua had that evenin& of the event in ;uestion sho2ed si&nificant si*ila ities, albeit not necessa ily conclusive to p ove the connection bet2een said t2o ob)ects. DE9h. 5?, !e nande", pp. .-B5, t.s.n., May ?6, 561CE <hen fu the tested by Assistant Chief +o*in&o R. del Rosa io of the NB- Ballistics +ivision, said e9pe t definitely concluded that the defo *ed bullet DE9hibit BE 2as $fi ed th ou&h the ba el of the above*entioned fi ea *$, efe in& to E9hibit M-., the sa*e &un of (i&ua. Dp. ?A, t.s.n., #une 5/, 561CF E9hibit 5. !e nande"E By *e e i*plication and 2ithout di ectly and e9p essly a &uin& to such effect, in its b ief, the People su&&ests that all the above evidence a e inc edible and could have been, to put it bluntly, fab icated. <e *ust e*phatically e)ect such a 2ild and baseless theo y, if only because, by its ve y natu e, the supposed confabulation involves seve al pe sons, of appa ently &ood p ofessional, official and social standin&. -t is ludic uous to conceive that they could have, fo no eason indicated any2he e in the p osecutionGs evidence, debased the*selves in &ivin& thei testi*onies.

% ue, the p osecution t ied to e9plain, 2hen conf onted 2ith evidence that indeed (i&uaGs &un had t aces of havin& been fi ed, that it 2as one Reynalo Pan&ilinan, an uncle of the deceased, 2ho fi ed the sa*e in vie2 of his dis&ust ove the death of his nephe2 and the failu e of (i&ua to defend hi*. 7ne has to be ve y naive to accept such a t anspa ent e9planation. (i&uaGs testi*ony as to ho2 his &un landed in the hands of Reynaldo Pan&ilinan, that ni&ht 2as not fla2less. =e clai*ed at one instance Din his 2 itten state*ent to the police that sa*e ni&ht. E9hibit @E, he could not e*e*be to 2ho* he handed it. At the t ial he said he &ave it to a secu ity &ua d at the Chinese 8ene al hospital but 2hen Reynaldo Pan&ilinan and his co*panions a ived, he &ave it to one of said co*panions, he could not e*e*be 2ho. But even in his second state*ent &iven befo e Atty. 0uisu*bin& on Nove*be ?5, 56/6, he also did not *ention the secu ity &ua d no the na*e of Reynaldo Pan&ilinan. DE9hibit @-AE -n any event, the fact e*ains that the &un of (i&ua 2as found to have been fi ed, and <e a e ha d put to believe it bein& athe unnatu al, As 2e see it, that Reynaldo Pan&ilinan 2as the one 2ho fi ed the sa*e at nobody five ti*es in the &a a&e of thei house )ust out of dis&ust that it 2as not used, as fa as he kne2, to defend his nephe2, Renato. -t is *o e likely that, such e9planation 2as &iven to vainly hide the fact p oven by the e9pe ts that (i&ua had indeed fi ed said &un du in& the shootin& incident and the slu& found in the body of !e nande" ca*e f o* his ..? calibe &un he al2ays had, by his o2n ad*ission, by his side in the ca 2heneve - he ode 2ith Renato Pan&ilinan. B -n the face of these ci cu*stances, 7u task is to dete *ine 2hich G,e sion app o9i*ates the t uth, that of the p osecution 'o the effect that !e nande" and his co*panions 2e e the fi st to fi e upon the passen&e s of the ca , o , that of !e nande", 2ho clai*ed that 2hen he e*onst ated Rosanna fo not etu nin& to thei place of 2o k, Pan&ilinan o de ed (i&ua $%otoy, ti ahin *o na$ afte sayin& $%ala&an& asa iton& ta antadon& ito$ D efe in& to !e nande"EK %he e bein& no sho2in& any2he e in the eco d of any a*o ous elationship bet2een !e nande" and Rosanna, and it bein& but natu al that !e nande", 2ho had al eady been *ade to 2ait fo he fo half a day to *ake thei scene in the fil*in& of $Ako and (asa&upa$, should be ve y *uch conce ned 2hy Rosanna 2ould take ! ench leave, so*ethin& that to 7u *ind, could ha dly induce any desi e to take anothe *anGs life, <e a e *o e inclined to believe that it 2as Pan&ilinan 2ho conside ed !e nande" a nuisance and in a *o*ent of b avado, he did di ect (i&ua to &ive !e nande" the 2o ks. %his is not to say, <e a e not convinced that !e nande" and Antido 2e e a *ed. <hat <e a e *o e pe suaded to believe, ho2eve , is that the one 2ho sta ted the &unshootin& 2as (i&ua. ,- As <e t y to visuali"e 2hat eally happened that fatal evenin& f o* the th ust of the espective evidence of the p osecution and the defense, the pictu e that e*e &es is one that p actically econciles the *ost i*po tant po tions of the opposin& theo ies of the pa ties. 'et it be ecalled that even befo e Pan&ilinanGs ca eached the t affic )a* at A. Bonifacio and Blu*ent itt, o*en of so*ethin& unto2a d that !e nande" ente tained 2ithin hi* al eady beca*e obvious to (i&ua 2ho decla ed that as they chan&ed thei cou se to &o to2a ds Manila instead of Biak-na-Bato o NasalGs esidence, he al eady noticed that !e nande" follo2ed the*. =e testified that in fact he sa2 !e nande" in the act of holdin& a &un then. <ith this ci cu*stance in *ind added to (i&uaGs ad*ission that he al2ays kept his &un eady by his side, it is but ational to assu*e that he had 2a ned his co*panions acco din&ly. (o, 2hen, as they *ust have anticipated, !e nande" ove took the* and app oached thei ca , they 2e e not

unp epa ed. <e a e convinced that !e nande" and Antido, both of the* b andishin& thei espective fi ea *s, app oached Pan&ilinanGs ca , !e nande" at the i&ht and Antido at the left the eof. <e believe the p osecutionGs evidence that at that *o*ent as he ca*e nea RosannaGs side !e nande" did say, $<alan& kikilos sa inyo, an& kikilos tata*aan. $ <e also believe, on the othe hand, that aside f o* the fo e&oin& 2a nin&, !e nande" also be ated Rosanna fo takin& ! ench leave and not &oin& back to thei 2o k. %hus, <e conclude that such acts of !e nande" and Antido constituted sufficient p ovocation fo Pan&ilinan and his co*panions to eact, and, acco din&ly, <e &ive c edence to the testi*ony of !e nande" that Pan&ilinan did say, $%ala&an& asa and ta antadon& ito. (i&ue, %otoy, ti ahin *o na.$ And eady as he 2as, (i&ua fi ed at !e nande" f o* his ..? calibe &un. !e nande" 2as hit and *ust have instantly t ied to etaliate, but the e is no clea evidence in 2hat di ection he succeeded in fi in&, no t aces of the bullets of the natu e of those that could have co*e f o* the kind of fi ea * he used havin& been p esented at the t ial. !o su e, it 2as not !e nande" 2ho hit Pan&ilinan. -t 2as Antido 2ho *ust have fi ed th ou&h the &lass ea 2indo2 of the ca in an obvious effo t to avoid Pan&ilinan f o* )oinin& (i&uaGs assault upon !e nande". -t 2as also Antido that *ust have hit 'ope", 2ho *ust have natu ally t ied hi*self to &et each of the.@B calibe pistol in the &love co*pa t*ent of the ca . =o2 (i&ua 2as hu t, he hi*self did not e9plain. -n these ci cu*stances, it is plain to 3s that havin& acted, albeit instantaneously, to help his *aste !e nande", Antido is &uilty of ho*icide and f ust ated ho*icide. But <e app eciate in his favo the *iti&atin& ci cu*stance of havin& acted in inco*plete defense of !e nande". =e only eacted to the assault upon !e nande" by (i&ua, sensin& evidently that Pan&ilinan and 'ope" *i&ht )oin (i&ua. 7f cou se, as al eady stated, the e 2as sufficient p ovocation on the pa t of !e nande" and Antido. But the e 2as unla2ful a&& ession on the pa t of (i&ua and by and la &e, takin& all ci cu*stances into account, <e cannot hold that the *eans used by Antido to epel the a&& ession 2e e enti ely un2a anted. -nas*uch as the p ovocation ca*e p incipally f o* !e nande" and it is satisfacto ily p oven that he also fi ed his &un, he *ust also be liable fo the death and in)u ies that esulted f o* his acts, even if it does not appea that he hi*self hit Pan&ilinan and 'ope". As in the case of Antido, he t ied to epeal an a&& ession 2ith *eans 2hich cannot be said to be un easonably uncalled fo in the p e*ises. (')*# $% %he fo e&oin& opinion is sha ed by Chief #ustice !e nando, #ustices Concepcion, !e nande", 8ue e o and +e Cast o. <hile #ustices Makasia , Plana and Escolin also a& ee as to the ac;uittal of appellants 'ab a and Ba celona, they find and hold that the offenses of ho*icide and f ust ated ho*icide co**itted by appellant !e nande" and Antido 2e e not acts of inco*plete self-defense, and that they 2e e *iti&ated only by thei volunta y su ende , hence they each dese ve $acco din&ly $ the indete *inate penalties of any2he e 2ithin p ision *ayo Df o* si9 D/E yea s and one D5E day to t2elve D5?E yea sE as *ini*u* to any2he e 2ithin eclusion te*po al in its *ini*u* pe iod Df o* t2elve D5?E yea s and one D5E day to fou teen D5@E yea s and ei&ht DAE *onthsE as *a9i*u*, fo the ho*icide and anothe indete *inate penalty each of one de& ee lo2e fo the f ust ated ho*icide. #ustice E icta concluded that all the appellants a e &uilty of ho*icide 2ith the *iti&atin& ci cu*stance of volunta y su ende offset by the a&& avatin& ci cu*stance of in band, fo 2hich the penalty should be indete *inate and any2he e 2ithin p ision *ayo , as *ini*u*, to eclusion te*po al in its *ediu* pe iod, fou teen D5@E yea s, ei&ht DAE *onths and one D5E day to seventeen D51E yea s and fou D@E *onthsE, as *a9i*u*.

#ustices %eehankee and Abad (antos voted to affi * the conviction of all the appellants fo *u de and f ust ated *u de , 2ith the *iti&atin& ci cu*stance of volunta y su ende offset by the a&& avatin& ci cu*stance of band, fo 2hich the penalties should be eclusion pe petua each fo the *u de and si9 D/E yea s and one D5E day of p ision *ayo to t2elve D5?E yea s and one D5E day of eclusion te*po al each, fo the f ust ated *u de . #ustices A;uino and Melencio-=e e a did not take pa t. <ith the fo e&oin& va yin& conclusions, the esult is that nine D6E *e*be s of the Cou t a e fo the ac;uittal of the appellants 'ab a and Ba celona, hence they a e both he eby ac;uitted and thei i**ediate elease is o de ed. =o2eve , as e&a ds appellants !e nande" and Antido, the e a e si9 D/E votes sustainin& the findin& of inco*plete self-defense Dof the Chief #ustice, #ustices Concepcion # ., !e nande", 8ue e o, +e Cast o and this 2 ite E and fo the i*position upon each of the* of the indete *inate penalties only of si9 D/E *onths of a esto *ayo as *ini*u* to si9 D/E yea s ...of p ision co eccional as *a9i*u*, fo the *u de , plus the st ai&ht penalty fou D@E *onths of a esto *ayo , fo each of the*, fo the f ust ated *u de . As al eady discussed above, si9 D/E othe *e*be s of the Cou t, D#ustices %eehankee, Makasia , Abad (antos, E icta, Plana and EscolinE voted fo hi&he penalties. -n othe 2o ds, the e a e si9 D/E #ustices 2ho voted fo the penalty i*posed by this ponente app op iate fo ho*icide 2ith the *iti&atin& ci cu*stances of inco*plete self- defense and volunta y su ende and e;ually si9 D/E votes fo va yin& hi&he penalties. Pu suant to (ection . of Rule 5?B, 2hen in an appeal in a c i*inal case the Cou t is e;ually divided as to the &uilt of the appellant o the necessa y votes fo a )ud&*ent of conviction Dei&htE can not be had, the $)ud&*ent of conviction of the lo2e cou t shall be eve sed and the defendant ac;uitted.$ By pa ity of easonin&, the Cou t, by the vote of t2elve D5?E *e*be s of the Cou t, na*ely, the Chief #ustice, and #ustices %eehankee, Makasia , A;uino, !e nande", 8ue e o, +e Cast o, =e e a, E icta, Plana, Escolin and this 2 ite , and 2ith #ustice Abad (antos ese vin& his vote and #ustice Concepcion # . bein& on leave, at the ti*e of invitin& on this pa ticula point of const uction ules that the lo2e penalty stated above should be i*posed, as the sa*e a e he eby i*posed upon each of the appellants !e nande" and Antido. -*po tantly, it need be stated he e that all fou appellants he ein have been in detention fo *o e than t2elve yea s. %he appellants !e nande" and Antido a e he eby fu the sentenced to pay )ointly and seve ally the hei s of Renato Pa&ilinan the su* of %<E',E %=73(AN+ DP5?,CCC.CCE PE(7( and Apolina io 'ope" the su* of !-,E %=73(AN+ DPB,CCC.CCE PE(7(, as civil inde*nity, 2ithout subsidia y i*p ison*ent. (hould it appea that thei pe iod of p eventive i*p ison*ent, to full c edit fo 2hich they a e fully entitled, the accused !e nande" and Antido have both al eady se ved the t2o penalties he einabove i*posed upon each of the* fo ho*icide as 2ell as that fo f ust ated ho*icide, the +i ecto of P isons is he eby o de ed to i**ediately elease the* to&ethe 2ith the ac;uitted accused 'ab a and Ba celona, unless thei continued confine*ent is le&ally 2a anted fo any othe cause. +ernando, C(., Concepcion, (r., +ernande,, *uerrero and )e Castro, ((., concur. %eehan-ee, (., I concur with the dissenting opinion o. #r. (ustice "/ad Santos.

"0uino, (., too- no part. #elencio-1errera, (., too- no part. ricta, (., %he .our de.endants should /e convicted o. homicide and .rustrated homicide. %he aggravating circumstance o. in /and and voluntary surrender should /e appreciated. Plana, (., I 2oin #r. (ustice #a-asiar in his partial dissent. scolin, (., I concur in (ustice #a-asiar3s dissent.

S,-ara., O-/n/ons MA0AS&AR! J., dissentin&4 Appellants !e nande" and Antido a e &uilty of ho*icide and f ust ated ho*icide, espectively, *iti&ated only by volunta y su ende , and the efo e should be sentenced acco din&ly. -nco*plete self-defense should not be app eciated in thei favo as they 2e e the ones 2ho follo2ed the victi*s and appellant !e nande" p ovoked the incident by app oachin& the ca of the victi*s and 2a ned the* not to *ove o they 2ill be shot. A*AD SANTOS! J., dissentin&4 %he c i*es co**itted 2e e *u de and f ust ated *u de ;ualified by evident p e*editation. P esent the a&& avatin& ci cu*stance of band and the *iti&atin& ci cu*stance of volunta y su ende the penalty fo the fi st is eclusion pe petua and fo the second an indete *inate sentence of / yea s and - day of p ision *ayo to 5? >ea s and 5 day of eclusion te*po al. S,-ara., O-/n/ons MA0AS&AR! J., dissentin&4 Appellants !e nande" and Antido a e &uilty of ho*icide and f ust ated ho*icide, espectively, *iti&ated only by volunta y su ende , and the efo e should be sentenced acco din&ly. -nco*plete self-defense should not be app eciated in thei favo as they 2e e the ones 2ho follo2ed the victi*s and appellant !e nande" p ovoked the incident by app oachin& the ca of the victi*s and 2a ned the* not to *ove o they 2ill be shot. A*AD SANTOS! J., dissentin&4 %he c i*es co**itted 2e e *u de and f ust ated *u de ;ualified by evident p e*editation. P esent the a&& avatin& ci cu*stance of band and the *iti&atin& ci cu*stance of volunta y su ende the penalty fo the fi st is eclusion pe petua and fo the second an indete *inate sentence of / yea s and - day of p ision *ayo to 5? >ea s and 5 day of eclusion te*po al. Foo.no.,s 5 Antido 2as 2ith !e nande", because acco din& to his o2n testi*ony afte conductin& Molina and 'ab a to the Nasal esidence, he 2ent back to the p ecinct to fetch !e nande".