PEOPLE OF THE PHILIPPINES, appellee, vs. ARTEMIO INVENCION Y SORIANO, appellant. DAVIDE, JR., C.J.:
Before us for automatic review 1 is the Decision 2 dated 22 September 1997 of the Regional Trial Court of Tarlac, Tarlac, Branch 65, in Criminal Case No. 9375, finding accused-appellant Artemio Invencion y Soriano guilty beyond reasonable doubt of the crime of rape committed against his 16- year-old daughter Cynthia P. Invencion, and sentencing him to suffer the penalty of death and to pay Cynthia the sum of P50,000 as moral damages and P25,000 as exemplary damages, as well as the costs of suit.
Artemio was charged before the Regional Trial Court of Tarlac with thirteen counts of rape in separate complaints docketed as Criminal Cases Nos. 9363 to 9375, all dated 17 October 1996. The cases were consolidated and jointly tried. At his arraignment Artemio entered a plea of not guilty in each case.
The witnesses presented by the prosecution in its evidence in chief were Elven Invencion, Eddie Sicat, Gloria Pagala, Dr. Rosario Fider, and Atty. Florencio Canlas. Presented as rebuttal witnesses were Gloria Pagala and Celestino Navarro.
Elven Invencion, an 8-year-old grade two pupil of Sapang Tagalog Elementary School in Tarlac, Tarlac, testified that he is a half- brother of Cynthia and son of Artemio with his second common-law wife. Sometime before the end of the school year in 1996, while he was sleeping in one room with his father Artemio, Cynthia, and two other younger brothers, he was awakened by Cynthias loud cries. Looking towards her, he saw his father on top of Cynthia, doing a pumping motion. After about two minutes, his father put on his short pants. 3
Elven further declared that Artemio was a very strict and cruel father and a drunkard. He angrily prohibited Cynthia from entertaining any of her suitors. Whenever he was drunk, he would maul Elven and quarrel with his stepfather, Celestino Navarro. 4
Eddie Sicat, a 40-year-old farmer and neighbor of Artemio in Barangay Sapang Tagalog, Tarlac, Tarlac, testified that on the second week of March 1996, between 6:00 and 7:00 a.m., while he was passing by the house of Artemio on his way to the field to catch fish, he heard somebody crying. He then peeped through a small opening in the destroyed portion of the sawali wall of Artemios house. He saw Cynthia lying on her back and crying, while her father was on top of her, doing a pumping motion. Eddie observed them for about fifteen seconds, and then he left and proceeded to the field to catch fish. 5 He reported what he had witnessed to Artemios stepfather, Celestino, later that morning. 6
Gloria Pagala, the mother of Cynthia and former common-law wife of Artemio, testified that she and Artemio started living together in Guimba, Nueva Ecija, in February 1969. Out of their common-law relationship, they had six children, one of whom was Cynthia. In March 1982, she and Artemio parted ways permanently. Later, Gloria and her children lived in Pura, Tarlac. When Artemios mother died sometime in 1996, Cynthia lived with Artemio in a small one-room dwelling owned by Celestino and located in Barangay Sapang Tagalog, Tarlac, Tarlac. 7 On 30 August 1996, her son Novelito told her that Cynthia was pregnant. Gloria then went to the house of Artemio and asked Cynthia about her condition. The latter confessed that she had been sexually abused by her father. Gloria then went to the office of the National Bureau of Investigation (NBI) in Tarlac and reported what Artemio had done to their daughter Cynthia. 8
Dr. Rosario Fider of Tarlac Provincial Hospital testified that she examined Cynthia on 16 September 1996. She found Cynthia to be five to six months pregnant and to have incomplete, healed hymenal lacerations at 3, 5, 8 oclock positions, which could have been caused by sexual intercourse or any foreign body inserted in her private part. 9
Atty. Florencio Canlas, an NBI agent, testified that on 18 September 1996, Cynthia, accompanied by her mother, complained before him and NBI Supervising Agent Rolando Vergara that she was raped by her father Artemio. She then executed a written statement, 10 which she subscribed and sworn to before Atty. Canlas. 11
The defense did not present Artemio as a witness. Instead, his counsel de parte, Atty. Isabelo Salamida, took the witness stand and testified for the defense. He declared that on 24 June 1997 (the same day when he testified before the court), between 10:45 and 11:00 a.m., he and his secretary went to the house of Artemio in Barangay Sapang Tagalog. The hut was made of sawali. Its door was padlocked, and its windows were shut. When he went around the house and tried to peep through the old sawali walls on the front and left and right sides of the hut, he could not see anything inside the room where Artemio and his children used to sleep. Although it was then about noontime, it was dark inside. 12 Atty. Salamida then concluded that prosecution witness Eddie Sicat was not telling the truth when he declared having seen what Artemio did to Cynthia when he peeped through a small opening in the sawali wall of the house in the early morning sometime on the second week of March 1996.
On rebuttal, Gloria Pagala testified that the house where Artemio used to live was a small hut with some destroyed portions in its sawali walls. When she went there to visit her children sometime in December 1995, there was a hole in front and at the sidewall of the hut facing a vacant lot where people passed by to fish in a nearby brook. 13 When she went to the place again sometime in September 1996 after she was informed of Cynthias pregnancy, she noticed that the destroyed portions of the huts sawali walls were not yet repaired. 14
The second rebuttal witness Celestino Navarro, stepfather of Artemio, testified that he is the owner of the small house where Artemio and his children used to reside. At the time that Artemio and his children, including Cynthia, were living in that house, the huts old sawali walls had some small holes in them, thus confirming the testimony of Eddie Sicat. After Artemio was arrested on the basis of Cynthias complaint before the NBI, Celestino made some repairs in the hut by, among other things, placing galvanized iron sheets to cover the holes at the destroyed portions of the sawali walls. Thereafter, a person named Alvin occupied the house. 15
In its Decision of 22 September 1997, the trial court convicted Artemio in Criminal Case No. 9375. It, however, acquitted him in all the other twelve cases for lack of evidence.
In his Appellants Brief, Artemio contends that the trial court erred in I x x x BELIEVING THE TESTIMONIES OF THE PROSECUTION WITNESSES; II x x xNOT DISMISSING THIS CASE FOR FAILURE OF THE PROSECUTION TO PROVE [HIS] GUILT x x x BEYOND REASONABLE DOUBT.
Artemio attacks the competency and credibility of Elven as a witness. He argues that Elven, as his son, should have been disqualified as a witness against him under Section 20(c), Rule 130 of the Rules of Court. 16 Besides, Elvens testimony appears not to be his but what the prosecution wanted him to say, as the questions asked were mostly leading questions. Moreover, Elven had ill-motive in testifying against him, as he (Artemio) was cruel to him.
In another attempt to cast doubt on the credibility of the prosecution witnesses, Artemio points to the following inconsistencies in their testimonies: (1) as to the time of the commission of the crime, Elven testified having seen Artemio on top of his sister one night in March 1996, while Eddie Sicat testified having seen them in the same position between 6:00 and 7:00 a.m. in the second week of March 1996; (2) as to the residence of Cynthia in 1996, Gloria testified that the former was living with her in Guimba from November 1995 to September 1996, while Elven and Eddie declared that she was in Sapang Tagalog in March 1996; and (3) as to the residence of Artemio, Jr., Gloria stated that he was living with the appellant, but later she declared that he was living with her in Pura.
Artemio also argues that since his house had no electricity and was dark even at daytime, it was impossible for Elven and Eddie to see him allegedly doing pumping motion on top of Cynthia. In his Reply Brief, he likewise urges us to disregard the testimonies of rebuttal witnesses Celestino and Gloria. According to him, Celestino had an ax to grind against him (Artemio) because he had been badgering Celestino for his share of the lot where the hut stands, which was owned by Artemios deceased mother. On the other hand, Gloria wanted to get rid of Artemio because she was already cohabiting with another man.
In the Appellees Brief, the Office of the Solicitor General (OSG) prays for the affirmation of Artemios conviction and sentence, but recommends that a civil indemnity in the amount of P75,000 be awarded in addition to the awards of moral and exemplary damages.
We find no cogent reason to overturn the findings of the trial court on the culpability of Artemio.
It is doctrinally settled that the factual findings of the trial court, especially on the credibility of the witnesses, are accorded great weight and respect and will not be disturbed on appeal. This is so because the trial court has the advantage of observing the witnesses through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion, the sudden pallor of a discovered lie, the tremulous mutter of a reluctant answer, the forthright tone of a ready reply, the furtive glance, the blush of conscious shame, the hesitation, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, or the carriage and mien. 17 This rule, however, admits of exceptions, as where there exists a fact or circumstance of weight and influence that has been ignored or misconstrued by the court, or where the trial court has acted arbitrarily in its appreciation of the facts. 18 We do not find any of these exceptions in the case at bar.
As to the competency of Elven to testify, we rule that such is not affected by Section 25, Rule 130 of the Rules of Court, 19 otherwise known as the rule on "filial privilege." This rule is not strictly a rule on disqualification because a descendant is not incompetent or disqualified to testify against an ascendant. 20 The rule refers to a privilege not to testify, which can be invoked or waived like other privileges. As correctly observed by the lower court, Elven was not compelled to testify against his father; he chose to waive that filial privilege when he voluntarily testified against Artemio. Elven declared that he was testifying as a witness against his father of his own accord and only "to tell the truth." 21
Neither can Artemio challenge the prosecutions act of propounding leading questions on Elven. Section 10(c) of Rule 132 of the Rules of Court 22 expressly allows leading questions when the witness is a child of tender years like Elven.
The alleged ulterior motive of Elven in testifying against his father also deserves scant consideration. Such insinuation of ill- motive is too lame and flimsy. As observed by the OSG, Elven, who was of tender age, could not have subjected himself to the ordeal of a public trial had he not been compelled by a motive other than to bring to justice the despoiler of his sisters virtue. There is no indication that Elven testified because of anger or any ill-motive against his father, nor is there any showing that he was unduly pressured or influenced by his mother or by anyone to testify against his father. The rule is that where there is no evidence that the principal witness for the prosecution was actuated by improper motive, the presumption is that he was not so actuated and his testimony is entitled to full credence. 23
We find as inconsequential the alleged variance or difference in the time that the rape was committed, i.e., during the night as testified to by Elven, or between 6:00 and 7:00 a.m. per the testimony of Eddie. The exact time or date of the commission of rape is not an element of the crime. What is decisive in a rape charge is that the commission of the rape by the accused has been sufficiently proved. Inconsistencies and discrepancies as to minor matters irrelevant to the elements of the crime cannot be considered grounds for acquittal. 24 In this case, we believe that the crime of rape was, indeed, committed as testified to by Elven and Eddie.
The alleged inconsistencies in the testimonies of both Elven and Gloria do not impair the credibility of these witnesses. We agree with the trial court that they are minor inconsistencies, which do not affect the credibility of the witnesses. We have held in a number of cases that inconsistencies in the testimonies of witnesses that refer to minor and insignificant details do not destroy the witnesses credibility. 25 On the contrary, they may even be considered badges of veracity or manifestations of truthfulness on the material points in the testimonies. What is important is that the testimonies agree on essential facts and substantially corroborate a consistent and coherent whole. 26
Artemios allegation that it was impossible for both Elven and Eddie to have seen and witnessed the crime because the room was dark even at daytime was convincingly disputed by rebuttal witnesses Gloria Pagala and Celestino Navarro. Furthermore, as observed by the OSG, even if the hut was without electricity, Elven could not have been mistaken in his identification of Artemio because he had known the latter for a long time. Moreover, Elven was at the time only two meters away from Cynthia and Artemio. Even without sufficient illumination, Elven, who was jostled out of his sleep by Cynthias loud cry, could observe the pumping motion made by his father. 27
The alleged ill-motives on the part of Gloria and Celestino were not sufficiently proved. Nothing in the records suggests any reason that would motivate Gloria to testify falsely against Artemio, who is the father of her other children. Moreover, we have repeatedly held that no mother would subject her child to the humiliation, disgrace, and trauma attendant to the prosecution for rape if she were not motivated solely by the desire to have the person responsible for her childs defilement incarcerated. 28 As for Celestino, he testified that the lot where the hut stands is owned by his daughter Erlinda, and not by Artemios mother. 29 At any rate, even without Celestinos testimony, Artemios conviction would stand.
The remaining issue for our resolution is the correctness of the penalty of death imposed by the trial court. The death penalty was imposed because of the trial courts appreciation of the special qualifying circumstances that Artemio is the father of the victim and the latter was less than 18 years old at the time the crime was committed.
Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, which is the governing law in this case, pertinently reads:
Article 335. When and how rape is committed. The crime of rape shall be punished by reclusion perpetua. x x x The death penalty shall also be imposed if the crime of rape is committed with any of the following circumstances: 1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step- parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.
To justify the imposition of the death penalty in a rape committed by a father on a daughter, the minority of the victim and her relationship with the offender, which are special qualifying circumstances, must be alleged in the complaint or information and proved by the prosecution during the trial by the quantum of proof required for conviction. The accusatory portion of the complaint in Criminal Case No. 9375 reads as follows:
That on or about the month of March 1996 at Sapang Tagalog, Municipality of Tarlac, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the said accused Artemio S. Invencion did then and there willfully, unlawfully and feloniously by using force and intimidation have carnal knowledge of his daughter Cynthia P. Invencion who was sixteen (16) years old, in their house.
CONTRARY TO LAW. 30
Although the relationship of Cynthia with her father Artemio was alleged in the complaint and duly established by evidence during trial, the allegation in the complaint regarding her age was not clearly proved.
In the very recent case of People v. Pruna, 31 we set the guidelines in appreciating age either as an element of the crime or as a qualifying circumstance: 1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. 2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age. 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victims mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victims mother or relatives concerning the victims age, the complainants testimony will suffice provided that it is expressly and clearly admitted by the accused. 5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him. 6. The trial court should always make a categorical finding as to the age of the victim.
In the present case, no birth certificate or any similar authentic document was presented and offered in evidence to prove Cynthias age. The statement in the medical certificate showing Cynthias age is not proof thereof, since a medical certificate does not authenticate the date of birth of the victim. Moreover, pursuant to Pruna, Glorias testimony regarding Cynthias age was insufficient, since Cynthia was alleged to be 16 years old already at the time of the rape and what is sought to be proved is that she was then 18 years old. Moreover, the trial court did not even make a categorical finding on Cynthias minority. Finally, the silence of Artemio or his failure to object to the testimonial evidence regarding Cynthias age could not be taken against him.
It must be stressed that the severity of death penalty, especially its irreversible and final nature once carried out, makes the decision-making process in capital offenses aptly subject to the most exacting rules of procedure and evidence. 32 Accordingly, in the absence of sufficient proof of Cynthias minority, Artemio cannot be convicted of qualified rape and sentenced to suffer the death penalty. He should only be convicted of simple rape and meted the penalty of reclusion perpetua.
As regards the civil liability of Artemio, the awards of moral damages in the amount of P50,000 and exemplary damages in the amount of P25,000 are insufficient. Civil indemnity, which is mandatory upon the finding of the fact of rape, 33 should also be awarded. In simple rape, the civil indemnity for the victim shall not be less than P50,000.
WHEREFORE, the decision of the Regional Trial Court, Branch 65, Tarlac, Tarlac, in Criminal Case No. 9375 is hereby AFFIRMED with the modification that that accused Artemio Invencion y Soriano is held guilty beyond reasonable doubt as principal of the crime of simple rape, and is sentenced to suffer the penalty of reclusion perpetua and to pay the victim Cynthia Invencion the sums of P50,000 as indemnity; P50,000 as moral damages; and P25,000 as exemplary damages. Costs de oficio. SO ORDERED.
G.R. No. 177861 July 13, 2010 IN RE: PETITION FOR CANCELLATION AND CORRECTION OF ENTRIES IN THE RECORD OF BIRTH, EMMA K. LEE, Petitioner, vs. COURT OF APPEALS, RITA K. LEE, LEONCIO K. LEE, LUCIA K. LEE-ONG, JULIAN K. LEE, MARTIN K. LEE, ROSA LEE-VANDERLEK, MELODY LEE-CHIN, HENRY K. LEE, NATIVIDAD LEE-MIGUEL, VICTORIANO K. LEE, and THOMAS K. LEE, represented by RITA K. LEE, as Attorney-in- Fact, Respondents.
D E C I S I O N ABAD, J.: This case is about the grounds for quashing a subpoena ad testificandum and a parents right not to testify in a case against his children.
The Facts and the Case Spouses Lee Tek Sheng (Lee) and Keh Shiok Cheng (Keh) entered the Philippines in the 1930s as immigrants from China. They had 11 children, namely, Rita K. Lee, Leoncio K. Lee, Lucia K. Lee-Ong, Julian K. Lee, Martin K. Lee, Rosa Lee-Vanderlek, Melody Lee- Chin, Henry K. Lee, Natividad Lee-Miguel, Victoriano K. Lee, and Thomas K. Lee (collectively, the Lee-Keh children).
In 1948, Lee brought from China a young woman named Tiu Chuan (Tiu), supposedly to serve as housemaid. The respondent Lee- Keh children believe that Tiu left the Lee- Keh household, moved into another property of Lee nearby, and had a relation with him.
Shortly after Keh died in 1989, the Lee-Keh children learned that Tius children with Lee (collectively, the Lees other children) claimed that they, too, were children of Lee and Keh. This prompted the Lee-Keh children to request the National Bureau of Investigation (NBI) to investigate the matter. After conducting such an investigation, the NBI concluded in its report:
[I]t is very obvious that the mother of these 8 children is certainly not KEH SHIOK CHENG, but a much younger woman, most probably TIU CHUAN. Upon further evaluation and analysis by these Agents, LEE TEK SHENG is in a quandary in fixing the age of KEH SHIOK CHENG possibly to conform with his grand design of making his 8 children as their own legitimate children, consequently elevating the status of his second family and secure their future. The doctor lamented that this complaint would not have been necessary had not the father and his second family kept on insisting that the 8 children are the legitimate children of KEH SHIOK CHENG. 1
The NBI found, for example, that in the hospital records, the eldest of the Lees other children, Marcelo Lee (who was recorded as the 12th child of Lee and Keh), was born of a 17-year-old mother, when Keh was already 38 years old at the time. Another of the Lees other children, Mariano Lee, was born of a 23-year-old mother, when Keh was then already 40 years old, and so forth. In other words, by the hospital records of the Lees other children, Kehs declared age did not coincide with her actual age when she supposedly gave birth to such other children, numbering eight.
On the basis of this report, the respondent Lee-Keh children filed two separate petitions, one of them before the Regional Trial Court (RTC) of Caloocan City 2 in Special Proceeding C-1674 for the deletion from the certificate of live birth of the petitioner Emma Lee, one of Lees other children, the name Keh and replace the same with the name Tiu to indicate her true mothers name. In April 2005 the Lee-Keh children filed with the RTC an ex parte request for the issuance of a subpoena ad testificandum to compel Tiu, Emma Lees presumed mother, to testify in the case. The RTC granted the motion but Tiu moved to quash the subpoena, claiming that it was oppressive and violated Section 25, Rule 130 of the Rules of Court, the rule on parental privilege, she being Emma Lees stepmother. 3 On August 5, 2005 the RTC quashed the subpoena it issued for being unreasonable and oppressive considering that Tiu was already very old and that the obvious object of the subpoena was to badger her into admitting that she was Emma Lees mother.
Because the RTC denied the Lee-Keh childrens motion for reconsideration, they filed a special civil action of certiorari before the Court of Appeals (CA) in CA-G.R. SP 92555. On December 29, 2006 the CA rendered a decision, 4 setting aside the RTCs August 5, 2005 Order. The CA ruled that only a subpoena duces tecum, not a subpoena ad testificandum, may be quashed for being oppressive or unreasonable under Section 4, Rule 21 of the Rules of Civil Procedure. The CA also held that Tius advanced age alone does not render her incapable of testifying. The party seeking to quash the subpoena for that reason must prove that she would be unable to withstand the rigors of trial, something that petitioner Emma Lee failed to do.
Since the CA denied Emma Lees motion for reconsideration by resolution of May 8, 2007, 5 she filed the present petition with this Court.
The Question Presented The only question presented in this case is whether or not the CA erred in ruling that the trial court may compel Tiu to testify in the correction of entry case that respondent Lee-Keh children filed for the correction of the certificate of birth of petitioner Emma Lee to show that she is not Kehs daughter.
The Ruling of the Court Petitioner Emma Lee claims that the RTC correctly quashed the subpoena ad testificandum it issued against Tiu on the ground that it was unreasonable and oppressive, given the likelihood that the latter would be badgered on oral examination concerning the Lee-Keh childrens theory that she had illicit relation with Lee and gave birth to the other Lee children.
But, as the CA correctly ruled, the grounds citedunreasonable and oppressiveare proper for subpoena ad duces tecum or for the production of documents and things in the possession of the witness, a command that has a tendency to infringe on the right against invasion of privacy. Section 4, Rule 21 of the Rules of Civil Procedure, thus provides:
SECTION 4. Quashing a subpoena. The court may quash a subpoena duces tecum upon motion promptly made and, in any event, at or before the time specified therein if it is unreasonable and oppressive, or the relevancy of the books, documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof.
Notably, the Court previously decided in the related case of Lee v. Court of Appeals 6 that the Lee-Keh children have the right to file the action for correction of entries in the certificates of birth of Lees other children, Emma Lee included. The Court recognized that the ultimate object of the suit was to establish the fact that Lees other children were not children of Keh. Thus: It is precisely the province of a special proceeding such as the one outlined under Rule 108 of the Revised Rules of Court to establish the status or right of a party, or a particular fact. The petitions filed by private respondents for the correction of entries in the petitioners' records of birth were intended to establish that for physical and/or biological reasons it was impossible for Keh Shiok Cheng to have conceived and given birth to the petitioners as shown in their birth records. Contrary to petitioners' contention that the petitions before the lower courts were actually actions to impugn legitimacy, the prayer therein is not to declare that petitioners are illegitimate children of Keh Shiok Cheng, but to establish that the former are not the latter's children. There is nothing to impugn as there is no blood relation at all between Keh Shiok Cheng and petitioners. 7 (Underscoring supplied)
Taking in mind the ultimate purpose of the Lee-Keh childrens action, obviously, they would want Tiu to testify or admit that she is the mother of Lees other children, including petitioner Emma Lee. Keh had died and so could not give testimony that Lees other children were not hers. The Lee- Keh children have, therefore, a legitimate reason for seeking Tius testimony and, normally, the RTC cannot deprive them of their right to compel the attendance of such a material witness.
But petitioner Emma Lee raises two other objections to requiring Tiu to come to court and testify: a) considering her advance age, testifying in court would subject her to harsh physical and emotional stresses; and b) it would violate her parental right not to be compelled to testify against her stepdaughter. 1. Regarding the physical and emotional punishment that would be inflicted on Tiu if she were compelled at her age and condition to come to court to testify, petitioner Emma Lee must establish this claim to the satisfaction of the trial court. About five years have passed from the time the Lee-Keh children sought the issuance of a subpoena for Tiu to appear before the trial court. The RTC would have to update itself and determine if Tius current physical condition makes her fit to undergo the ordeal of coming to court and being questioned. If she is fit, she must obey the subpoena issued to her.
Tiu has no need to worry that the oral examination might subject her to badgering by adverse counsel. The trial courts duty is to protect every witness against oppressive behavior of an examiner and this is especially true where the witness is of advanced age. 8
2. Tiu claimed before the trial court the right not to testify against her stepdaughter, petitioner Emma Lee, invoking Section 25, Rule 130 of the Rules of Evidence, which reads:
SECTION 25. Parental and filial privilege.- No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants.
The above is an adaptation from a similar provision in Article 315 of the Civil Code that applies only in criminal cases. But those who revised the Rules of Civil Procedure chose to extend the prohibition to all kinds of actions, whether civil, criminal, or administrative, filed against parents and other direct ascendants or descendants.
But here Tiu, who invokes the filial privilege, claims that she is the stepmother of petitioner Emma Lee. The privilege cannot apply to them because the rule applies only to "direct" ascendants and descendants, a family tie connected by a common ancestry.1avvphi1
A stepdaughter has no common ancestry by her stepmother. Article 965 thus provides:
Art. 965. The direct line is either descending or ascending. The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descends.
Consequently, Tiu can be compelled to testify against petitioner Emma Lee.
WHEREFORE, the Court DENIES the petition and AFFIRMS the decision and resolution of the Court of Appeals in CA-G.R. SP 92555. SO ORDERED.
G.R. No. 157984 July 8, 2004 MOISES SIMANGAN, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
D E C I S I O N
CALLEJO, SR., J.: Before us is a petition for review of the Decision 1 of the Court of Appeals in CA-G.R. CR No. 11971 and its Resolution denying the petitioners motion for reconsideration of the said decision.
The Antecedents The petitioner Moises Simangan and Loreto Bergado were charged with murder in an Information filed with the Circuit Criminal Court in Cagayan, the accusatory portion of which reads: That on or about February 10, 1980, in the municipality of Solana, province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused, Moises Simangan y Trinidad and Loreto Bergado y Rigor alias Boy, together with Bening Gomabong (sic), who is still at large and not yet apprehended, and two (2) John Does, who were not identified, armed with guns and knives, conspiring together and helping one another, with intent to kill; with evident premeditation and with treachery, did then and there willfully, unlawfully and feloniously attack, assault and stab one Ernesto Flores, inflicting upon him several wounds on his body which caused his death. Contrary to law. 2
The accused, assisted by counsel, were duly arraigned, and pleaded not guilty to the charge.
The Case for the Prosecution At 8:00 p.m. on February 10, 1980, the petitioner, Loreto Bergado, Bening Gumabong and two other male persons arrived at the store of the spouses Ernesto Flores and Sofronia Saquing in Barangay Maasin, Solana, Cagayan. The Flores Spouses, along with fifteen-year-old Lorna Saquing, Sofronias niece, were then having dinner. The five men were in fatigue uniforms and were armed with long firearms. When they knocked on the door, Lorna responded and inquired what they wanted, and she was told that they wanted to buy cigarettes. Ernesto and Sofronia entertained the men, two of whom were their neighbors, Loreto Bergado and Bening Gumabong. Momentarily, the petitioner asked Ernesto to go with them to serve as a guide. In response, Ernesto invited the men to sleep at their house, but the latter refused. Ernesto then agreed to accompany the visitors. The petitioner warned Ernesto and Sofronia not to tell anyone that they had been to the store. As they were leaving, Romeo Galano, the couples helper at the store, arrived. Ernesto ordered Romeo to go with him, and the latter did as he was told. However, at about 9:00 p.m., Romeo returned to the store and told Sofronia that Ernesto had sent him back to get money, matches and cigarettes. He also told Sofronia that he and Ernesto were seated as they conversed with each other. Sofronia gave P50.00, a box of matches and a ream of Hope cigarettes. Romeo left the store at about 9:30 p.m. 3 Ernesto did not return that evening. 4
The next morning, Romeo Balunggaya arrived at Sofronias house and told her that Ernesto was dead, and that his body had been found about three hundred (300) meters away. Sofronia and Lorna rushed to the place, and found Ernestos body near the creek. 5 Ernesto was lying on the ground, face down, with his hands tied behind his back. Police investigators Pagulayan and Caronan arrived, along with a photographer. Pictures of the victim were taken. 6
Dr. Anastacia Taguba, the Municipal Health Officer, performed an autopsy of the cadaver and found that the victim sustained multiple stabwounds. She concluded that the victim died because of shock due to massive internal and external hemorrhage from multiple stab wounds. 7 She also signed the Certificate of Death of Ernesto. 8
On February 18, 1980, Fernando Saquing attended his classes in civil engineering at the St. Louis University in Tuguegarao, Cagayan. He noticed his seatmate and close friend, petitioner Moises Simangan, writing on a piece of paper. He grabbed the paper, read it, and saw that the petitioner had written the following: "Andres Buena alias Ka Ren, Cely Pea alias Ka Laarni, Moises Simangan alias Ka Ronie Ledesma." The petitioner warned Fernando not to divulge his secret to anybody. 9
On February 24, 1980, Fernando and the petitioner were on their way home from their ROTC classes at the St. Louis University. The petitioner then narrated to Fernando that at about 7:00 p.m. on February 10, 1980, after buying cigarettes from a store, the store-owner agreed to go with him and his four companions. The petitioner revealed that they brought the victim over to the place where twenty of his other comrades were waiting. He also told Fernando that he and his companions stabbed the victim over and over again, and tasted the latters blood so that "they would not get sick." The petitioner warned that if Fernando divulged to anyone what he had just revealed, he (the petitioner), would drink his blood, too. 10
The petitioner did not know that Fernando was the first cousin of Sofronia, the widow of Ernesto Flores, who was, in turn, the store-owner referred to by Moises. 11 Fernando immediately told Sofronia what the petitioner had told him.
On March 21, 24 and 25, 1980, Sofronia, Fernando and Lorna gave their respective statements 12 to Sgt. Quirino Espiritu of the Philippine Constabulary in Tuguegarao, Cagayan, in which they identified Moises as one of Ernestos assailants.
The Case for the Defense The petitioner denied any involvement in the killing of Ernesto. He testified that on the day that Ernesto was killed, he was in his boarding house in Tuguegarao. He was the classmate of Fernando at the St. Louis University in Tuguegarao, Cagayan, where they were enrolled in the civil engineering course. 13 Sometime in February 1980, Fernando asked him about Andres Balbuena who was from Solana, Cagayan. A week later, he was arrested on suspicions that he had something to do with the death of Ernesto. 14 Fernando, who was in the PC barracks, pointed to him as one of the assailants of Ernesto. He was surprised at Fernandos accusation. 15
The petitioner also denied knowing Loreto Bergado, claiming that he only met the latter at the provincial jail. 16 He had not been to Barangay Maasin, Solana.
The accused Loreto Bergado also denied killing Ernesto. He testified that he did not know Ernesto and the latters wife, Sofronia. On February 10, 1980, he was in his house at Nangalasauan, Amulung, Cagayan. After waking up the next day, he went to his farm. 17
To corroborate his testimony, Bergado presented his neighbor, Feliciano Trinidad, who testified that after his classes on February 10, 1980, he went out of their house at Barangay Nangalasauan, Amulung, Cagayan, to get a breath of fresh air. He then saw Bergado and spoke with him until 9:00 p.m. 18
Cornelia Trinidad corroborated the testimony of the petitioner that she boarded in the house of Rosendo Tuddao in February 1980.
The defense also presented Leona Balunggaya, who testified that between 4:00 and 5:00 a.m. on February 11, 1980, Sofronia and Leon Rigor arrived at their house, crying. Sofronia inquired if Ernesto had passed by, because her husband had not slept in their house. Balunggaya replied in the negative. When Balunggaya asked Sofronia if she recognized the armed men who were with her husband, Sofronia replied that she did not because their faces were new to her. 19 Aside from their house, there were no other houses in the vicinity of Sofronias place. Right after Sofronia and Leon had left, she and her husband Romeo went to their farm to drive away the birds and saw the cadaver of Ernesto, about three hundred (300) meters away.
After trial, the court rendered judgment finding the accused guilty beyond reasonable doubt of homicide. The decretal portion of the decision reads: WHEREFORE, the accused Moises Simangan y Trinidad and Loreto Bergado y Rigor having been found by the Court guilty beyond reasonable doubt of the crime of Homicide defined and penalized under Art. 249 of the Revised Penal code, and considering the presence of two aggravating circumstances, are hereby sentenced each to an indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum, to indemnify the heirs of the victim Ernesto Flores the sum of P30,000.00, proportionately and to pay costs pro rata. SO ORDERED. 20
On appeal to the Court of Appeals, it rendered judgment, affirming with modification, the decision of the trial court. It found the testimonies of Sofronia, Lorna, and Fernando, credible and entitled to full probative weight.
The Present Petition Petitioner Moises Simangan filed the instant petition for review on certiorari, asserting that: I THE TRIAL COURT ERRED IN BELIEVING THE PROSECUTION WITNESSES AND DISREGARDING THE EVIDENCE FOR THE DEFENSE. II THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF HOMICIDE. 21
The petitioner contends that the prosecution failed to adduce circumstantial evidence sufficient to prove his guilt of the crime of homicide beyond reasonable doubt. He asserts that Sofronia and Lorna pointed to and identified him only upon the prodding of Fernando, who told Sofronia that he (the petitioner) had admitted to stabbing and killing the victim together with twenty of his other companions. The petitioner contends that the testimony of Fernando is hearsay, as he had no personal knowledge that he was one of those who killed the victim.
On the other hand, the Court of Appeals declared in its assailed decision that the array of circumstantial evidence adduced by the prosecution constitutes proof beyond cavil that the petitioner was one of those who killed the victim. As catalogued by the appellate court: (1) at about 8:00 oclock in the evening of February 10, 1980, accused Moises Simangan, Loreto Bergado, Bening Gumabong and two unidentified companions each of whom were armed with long rifles, went to the store of the victim Ernesto Flores at Sitio Masin (sic), Iraga, Solana and bought cigarettes; (2) that Moises Simangan asked Ernesto Flores to guide Simangan, Bergado, Gumabong and their two companions on their way to the road; (3) that Simangan, Bergado and their two companions, together with Ernesto Flores and Romeo Galano, were out of the house; (4) that Simangan warned Sofronia and Lorna not to tell anybody that he and his companions went to the house; (5) that five days after the death of Ernesto, Simangan became worried when told by his classmate Fernando Saquing that several persons were arrested at Nangalasauan, Amulung, for the death of Ernesto; (6) that two weeks after the death of the victim, Simangan admitted to Fernando that he and twenty others had just killed a person in Masin, (sic) Iraga, Solana, after the victim accompanied them to show them the way; (7) and that Fernando was warned not to relate it to any other person with the threat that if it will be known by others, Simangan will drink his blood. 22
The Ruling of the Court We find the contention of the petitioner to be unmeritorious. Sofronia narrated in detail how the petitioner and his companions, armed with long firearms, managed to convince Ernesto to go with them and be their guide on the road. Sofronia pointed to and identified the petitioner in open court. Thus: Q On February 10, 1980, at 8:00, do you recall where you were? A Yes, Sir. Q Where were you? A We were at home, Sir. Q And you mentioned . . . and who were your companions at that time? A My husband, my sister Lorna Saquing, my daughter, Sir. Q What is the name of your daughter? A Jannet, Sir. Q How old was she at that time? A Two (2) years old, Sir. Q What is the name of your sister? A Lorna, Sir. Q And your husband? A Ernesto Flores, Sir. Q What were you doing at that time? A Eating, Sir. Q Where is your house located? A Masim (sic), Solana, Cagayan, Sir. Q Do you recall of anything unusual that happened on February 10, 1980, when you were actually eating with your family, if any? A On February 10, 1980, while we were actually taking our supper, there was a person who went to buy cigarette in our store and it was my sister Lorna who went to open the store and saw five persons holding gun (sic), Sir. Q Where is your store located? A In Masim (sic), Solana, Cagayan, Sir. Q Is your store also a part of your house where you live-in (sic)? A Yes, Sir. Q When these five persons came to your house and Lorna Saquing, your sister, was the one who opened the door, what happened next? A When those five persons entered our store, Lorna came to us in the kitchen and called for us and the three of us proceeded to the store and looked to those five persons, Sir. Q And what happened next when you went to see those five persons? A We saw five persons with long firearms, Sir. Q Do you know the names of those five persons whom you saw? A I know the three of them only, Sir. Q What are the names of these three persons whom you know? A Moises Simangan, Boy Bergado and Bening Bungabong (sic), Sir. Q This Bening Bungabong (sic), if he is in court, can you point him out? A No, he is not here in court, Sir. Q Yes, but this Loreto Bergado, if you can see him in the courtroom, can you point him out? A Yes, Sir. INTERPRETER: Witness pointing to that person in brown t-shirt who identified himself to be Loreto Bergado y Rigor when he was pointed to by the witness. Q How about this person by the name of Moises Simangan, will you look around the courtroom and see if he is here? A He is there, Sir. INTERPRETER: Witness pointing to a person seated in the courtroom who stood up when he was pointed to by the witness and identified himself to be Moises Simangan y Trinidad. 23
The petitioner even warned Sofronia and Ernesto not to tell anyone that he and his companions had been in their house: Q And when Moises Simangan came to know that your barangay captain in Iraga was Mr. Mario Marsan, what happened next, if any? A Then Moises Simangan requested my husband to accompany them to the road because Moises Simangan is new in our place, Sir. Q And what did your husband say, if any? A Then my husband told them if it will be alright for them, they may sleep in the house, Sir. Q And what did he say? A Then Moises Simangan answered my husband that: "we cannot sleep in your place because we might be late tomorrow," Sir. Q And what happened next? A And then Moises Simangan told us not to tell anybody about their going to our store, Sir. Q And when Moises Simangan warned you not to tell anybody about their presence in your place, what happened next, if any? A Then my husband told me that he would accompany them to the road, Sir. Q And when your husband told you that he would bring them to the road, what happened next, if any? A And then Moises Simangan and his companions took my husband to the road and not long afterwards, my boy by the name of Romeo Galano, went back to the store and told me that my husband told him to go back to get money and cigarette and also [a] match, Sir. Q And what time did they take away your husband from your house? A 8:00 oclock in the evening, Sir. Q Was it exactly 8:00 oclock or past 8:00? A Past 8:00, it could be past 8:00 oclock already, Sir. 24
Lorna also testified that when she attended to the petitioner and his companions, she saw their faces: Q Now, while at about that time on February 10, 1980, do you remember any unusual incident that happened in the house of your sister? A Yes, Sir. Q What was that incident that happened? A On that evening, Sir, while we were eating I heard a voice calling outside or I heard someone calling outside with the word "Diyos Apo" and when I finished eating, I went inside the house and asked who was that, and nobody answered, and so, what I did was to open the door and I was surprised there were five armed men at our door who went inside our house. Q You said that these five men who entered the house were armed, will you please tell this Honorable Court what were their arms? A All the five men who entered our house were armed with long rifle each of them (sic). Q Now, do you know the identity of these five armed men who entered the house where you were staying? ATTY. VELASCO: The question is vague, Your Honor.
Whether he refers to the present or at that time of the incident. COURT: Reformed. (sic) FISCAL HERNANDO: Q At the time of the incident, of these five armed men who entered the house of your sister upon your opening the door, do you know the identity of these five armed men or any of them? A Yes, Sir, I know them. Q Will you please tell this Honorable Court who were they? A Moises Simangan, Boy Bergado, Bening Gumabong and two others whom I do not know. Q You said that at the time you opened the door and these five men entered, you already knew three of them, namely Moises Simangan, Bening Gumabong and Boy Bergado, why do you know them? A I was able to recognize them, Sir, through their faces. Q Why were they familiar to you? A When I opened the door, Sir, and the five armed men entered our house, I stared at their faces. Q Will you please answer my question, why were you able or why were you familiar with the faces of these men when they entered the house of your sister that evening of February 10, 1980? ATTY. SORIANO: She answered, "I saw their faces." COURT: Witness may answer. A These Boy Bergado and Bening Gumabong were my barcada in Maasim, Solana, Cagayan. FISCAL HERNANDO: Q What do you mean by saying that Gumabong and Bergado were your barcada? A They were my companions, Sir. Q For how long were they your barcada before the incident? A Three years, Sir. Q Now, with respect to Moises Simangan, why do you say that his face is familiar to you at the time of the incident? A I stared at his face because he was new in our place. 25
It was only when Fernando told his cousin Sofronia that the petitioner had admitted to being one of those who inveigled Ernesto into going with them, and thereafter killed the victim, that she and Lorna heard the petitioners name for the first time. Q Now, do you know, I withdraw that question, Your Honor. How about Moises Simangan, did you know him already before February 10, 1980? A No, Sir. Q Why do you know his name then? A I came to know his name when Moises Simangan informed Fernando, my cousin, about those things that they have done to my husband, but Fernando did not mention to him that I am his cousin and it was Fernando, my cousin, who informed me about his name, Sir. 26
The testimony of Fernando, that the petitioner admitted to him that he was one of the victims killers, is not hearsay. The testimony of Fernando was offered to prove the petitioners extrajudicial admission of his involvement in the killing of Ernesto. Such admission is an admission against personal interest, and is admissible against the petitioner. 27
We note that the petitioner admitted during trial that he and Fernando were classmates in a civil engineering subject at St. Louis University, and in the ROTC training. The petitioner also admitted that he and Fernando were friends. Hence, it was not impossible for the petitioner to have revealed his involvement in the killing to Fernando. The petitioner did not hesitate to inform Fernando that he and his companions had killed Ernesto because an informer had told them that Ernesto was "bad." The testimony of Fernando reads, viz: Q What else did he tell you? ATTY. SORIANO: May we ask the witness that he be directed to speak louder. COURT: You speak louder. A There, Sir. FISCAL HERNANDO: Q And what was that? A He informed me that they had just killed a person in Maasim (sic), Solana, Cagayan and we threw him beside a creek. And I asked Moises Simangan, "How come that that person is bad," and he answered me, "We had an informer who is their neighbor." FISCAL HERNANDO: Q Now, you said that there were some companions of Moises Simangan because he used the word "WE," were you able to find out from him how many persons were those who perpetrated the crime in Maasim (sic),Solana, Cagayan, as you stated recently? ATTY. SORIANO: May we request that witness should stop. FISCAL HERNANDO: That is the narration, Your Honor. ATTY. SORIANO: May we request that the narration should be in a question and answer (sic). COURT: Continue. A What Moises Simangan narrated to me, Sir, is "We were five persons who went to the store of that person and (sic) to buy cigarette. At the time the persons were waiting in the store and after we bought the cigarette, we let the person accompany us on our way because we do not know the way and then Moises Simangan brought the person to the place where there were twenty persons waiting who were their companions and then they stabbed the person and in stabbing, each person tasted the blood (sic) that, according to Moises Simangan, they will not get sick. FISCAL HERNANDO: Q Did you or did you not ask him what time of the day or night was that? A No, Sir. When they visited the house of the victim to buy cigarette I was informed by Moises Simangan that it was 7:30 in the evening. Q Now, after having revealed to you all these things, do you remember if Moises Simangan told you anything else? A Yes, Sir. Q What did he tell you? A He told me that Nanding, I now warn you, and you know me, "once they know these, I am going to drink your blood." 28
The petitioners alibi and denial of the crime charged cannot prevail over the positive and straightforward identification made by Lorna and Sofronia that he was one of the armed men who left with Ernesto, coupled with the petitioners own admission that he was one of the victims assailants. We note that there is no evidence, nor any showing of any ill-motive on the part of Lorna, Sofronia and Fernando to prevaricate. In fact, the petitioner and Fernando were close friends. Thus, the presumption is that the said witness acted in good faith; hence, their testimonies must be accorded credence and full probative weight.
The three witnesses cannot be faulted, and their credibility denigrated for giving their statements to Sgt. Espiritu of the Philippine Constabulary only on March 21 to 25, 1980. As copiously explained by the Court of Appeals: Appellants attempt to cast doubt on the credibility of [the] positive identification made by Sofronia and Lorna that they were among those five (5) armed persons who took along the victim Ernesto Flores on the pretext that appellant Simangan being new to the place would need said victim to guide him on the road. Both Lorna and Sofronia knew personally appellant Bergado and Gumabong being Lornas former friends and Sofronias neighbors. On the other hand, the delay in revealing the identities of appellants Bergado and Simangan had been sufficiently explained. It must be recalled that appellant Simangan had made a stern warning before they left that Sofronia and Lorna should not tell anybody about their presence in the place that night. Those men being then armed and determined to take along with them the victim out on the road, even threatening Sofronia and Lorna not to divulge the incident to others, there was strong reason for said witnesses to keep mum on the identities of appellants even when the police investigators arrived the following morning and asked them about the names of the five (5) persons or at least any of them they had recognized. It is understandable when a witness does not immediately report the identity of the offender after a startling occurrence, more so when he is related to the victim as this makes it all the more traumatic. It is, likewise, understandable for a witness to fear for his safety especially when town mates are involved in the commission of the crime. Even if the principal witnesses, Lorna and Sofronia, did not witness the actual killing of Ernesto Flores, the circumstances that the latter was last seen alive together with the appellants and Gumabong, along with two (2) other unidentified companions that night who were armed with guns, that he was never to return home that night, and his dead body discovered in a nearby field, lying face down on the ground, both his arms tied at his back with multiple stab wounds on his neck and back the combination of these circumstances leave no doubt on their minds that those five (5) persons were responsible for Ernestos gruesome death and such conviction was enough to temporarily silence them from revealing immediately to the police investigators the identities of appellant Bergado and Gumabong, and subsequently, Simangan. 29
In sum, then, we find and so rule that the appellate court correctly affirmed the decision of the trial court convicting the petitioner of homicide. However, the appellate court erred in appreciating against the petitioner the aggravating circumstances of cruelty and nighttime. In the first place, such circumstances were not alleged in the Information as mandated by Section 8, Rule 110 of the Revised Rules of Criminal Procedure. 30 Although the petitioner committed the crime before the effectivity date of said Rules, the same should be applied retroactively as it is favorable to him. 31
Moreover, the crime is not aggravated by cruelty simply because the victim sustained ten stab wounds, three of which were fatal. For cruelty to be considered as an aggravating circumstance, there must be proof that, in inflicting several stab wounds on the victim, the perpetrator intended to exacerbate the pain and suffering of the victim. 32 The number of wounds inflicted on the victim is not proof of cruelty.
Consequently, then, the penalty imposed by the trial court on the petitioner must be modified. There being no modifying circumstances attendant to the crime, the maximum of the indeterminate penalty shall be taken from the medium period of the imposable penalty of homicide which is reclusion temporal. The minimum of the indeterminate penalty shall be taken from the full range of the penalty lower by one degree for reclusion temporal, which is prision mayor.
IN LIGHT OF THE FOREGOING, the petition is PARTIALLY GRANTED. The assailed decision of the Court of Appeals in CA-G.R. CR No. 11971 is AFFIRMED with MODIFICATION. The petitioner is hereby sentenced an indeterminate penalty of from Ten (10) Years and One (1) Day of prision mayor in its maximum period, as minimum, to Sixteen (16) Years of reclusion temporal in its medium period, as maximum. No costs. SO ORDERED.
GR. No. 146111 February 23, 2004 PEOPLE OF THE PHILIPPINES, appellee vs. ROLENDO GAUDIA @ "LENDOY" or "DODO", appellant.
D E C I S I O N PUNO, J.: There can be no greater violation of a persons right to feel safe and secure than the crime of rape. When one commits such a horrible act on another, he degrades not only that persons body; more importantly, he defiles that persons mind. When the victim is a little child, the act and the perpetrator himself assume a bestiality beyond the comprehension of normal human beings. Yet, the law must apply equally upon saints and sinners alike, even to the most salacious ruffian.
Before us is the Decision 1 dated 10 July 2000 of Branch 19 of the Regional Trial Court of Digos, Davao del Sur, finding appellant Rolendo Gaudia 2 guilty of the crime of rape, meting upon him the penalty of death, and ordering him to pay to private complainant Remelyn Loyola the amounts of fifty thousand pesos (P50,000.00) as moral damages, thirty thousand pesos (P30,000.00) as exemplary damages, and costs of suit.
The Information filed against the accused- appellant reads as follows: That on or about March 24, 1997 at about 6:30 oclock in the evening, in the Municipality of Hagonoy, Province of Davao del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did, then and there willfully, unlawfully and feloniously have carnal knowledge with Remelyn Loyola, a minor, against her will to her damage and prejudice.
The prosecution presented Remelyns mother, Amalia Loyola, as its primary witness. Amalia testified that on 24 March 1997, she left her two children Remelyn (3 1/2 years old) 3 and Kimberly (1 year old) 4 at their house in Clib, Hagonoy, Davao del Sur to gather pigs food at Bulatukan. At the time, her husband was working in Tulunan, South Cotabato. At about 4:00 in the afternoon, Amalia returned home and could not find Remelyn. She went to fetch water and proceeded to a neighbor to ask about the whereabouts of Remelyn. Nobody could provide her any information. On her way home, she shouted and called out Remelyns name. At about 6:00 p.m., Amalia heard Remelyn calling out to her, "Ma, I am here," from a grove of ipil- ipil trees. 5 Amalia rushed toward the place, but was met by Remelyn at the mango trees, some thirty (30) meters from their house. 6 She found Remelyn crying, naked, nagbakaang (walking with her legs spread apart) and with fresh and dried blood on her body. Ipil-ipil leaves clung to her forehead. Blood was oozing from her private organ. Amalia brought Remelyn home and washed her. Upon closer inspection, she found a whitish mucus-like substance coming from Remelyns private organ. 7
The following day, 2 March 1997, Amalia brought Remelyn to the house of a certain Tiya Coring, a quack doctor, for treatment. Among the people present in the premises were the relatives and parents of the appellant. 8 The quack doctor found both dried blood and fresh blood oozing in Remelyns vagina, and told Amalia, "Hoy! Amalia, your daughter was being (sic) raped." 9 At about 10:00 a.m., Tulon Mik, a neighbor, came and informed Amalia that he had seen the appellant pass by her house and take Remelyn. 10 At this point, the parents of appellant told Amalia, "Mal, let us talk about this matter, we will just settle this, we are willing to pay the amount of P15,000.00, for the crime that my son committed." 11 Police officers came and brought Amalia, Remelyn and two barangay officials (kagawads) to the police precinct of Hagonoy for investigation. Amalias statement was taken. 12
On 25 March 1997, Amalia brought Remelyn to the Hagonoy Health Center in Davao del Sur. Dr. Patricio Hernane, the municipal health officer, 13 conducted a genital examination of Remelyn, and made the following findings:
GENITAL EXAMINATION: Absence of Pubic Hair (Tanner Stage I). No contusions are noted on the external genitalia. Dried blood are (sic)noted on the labia minora. Fresh hymenal lacerations are noted at 12, 3, 6, 10 oclock (sic) are noted with fresh vaginal laceration noted at the posterior commissure but not extending to the perineum. No lacerations were noted at the anal opening.
Speculum examination is not done because even exposure of the labia minora make the child cry. (sic)
CONCLUSION: Physical virginity lost. 14
The doctor opined that the lacerations could have been caused by the insertion of a foreign object, such as the penis of a man. 15
On 26 March 1997, Amalia executed her affidavit complaint. 16 Amalia stated therein that Remelyn had told her "Buang Lendoy iya kong lugos." 17 (Meaning "crazy lendoy he forced me" in the Visayan dialect.) Amalia confirmed in her testimony that two weeks after the incident, Remelyn told her, "Ma, Lendoy is crazy, she (sic) brought me to the ipil-ipil trees." 18
The prosecution also presented Tulon Mik, Remelyns neighbor and a barangay kagawad in their area. Mik testified that on 24 March 1997, at about 4:00 p.m., he and his wife were on their way home after registering at the COMELEC office. They were in a hurry as their child was running a fever. Mik saw appellant carrying a small girl in his arms. 19 He identified the little girl as Remelyn Loyola, daughter of Amalia Loyola. Appellant and Remelyn were on their way toward the ipil-ipil trees. 20
The next morning, 25 March 1997, at about 7:00 a.m., a neighbor informed Mik that Remelyn had been raped. He proceeded to the house of the quack doctor where Amalia brought Remelyn for examination. Amalia confirmed to Mik that Remelyn had been raped. Mik told Amalia that appellant committed the crime. Mik then informed Barangay Official Rodrigo Malud 21 and the other tanods of the incident. They were instructed to locate the appellant. They passed to the police the information that appellant was in Barangay Mahayahay. The policemen came and took appellant for investigation. 22
The appellant, ROLENDO GAUDIA, interposed the defense of alibi. He averred that on 24 March 1997, at about 4:00 p.m., he went to the Barangay Center to register at the COMELEC for the National Elections. With him was Totong Loyola, the brother- in-law of Amalia Loyola. They finished at 5:00 p.m., left and repaired to the house of Catalina Cabano, appellants aunt, to ask for vinegar for their kinilaw (a dish composed of raw fish steeped in vinegar). They found Daylen Cabano, the small grandchild of Catalina, alone at her house. Daylen was crying, hence, they brought her with them as they proceeded to the place where Catalina was collecting tuba (fermented coconut wine). It was appellant who carried Daylen. 23 They reached Catalinas place after 5:00 p.m. Thereafter, they went to the house of appellant. Dodo Malon and appellants parents were in the house. At around 9:00 p.m., Totong and Dodo Malon left, after partaking of the kinilaw. Appellant stayed home. The following morning (25 March 1997), appellant and Dodo Malon went to the river to fish. At about 12:00 noon, appellant repaired to the house of his aunt, Victoria Gayod, in Mahayahay to drink tuba. He was located by the police and investigated. 24 He claimed that it was Daylen and not the victim Remelyn whom he was carrying.
As corroborative witness, appellant presented Alex "Totong" Loyola. Totong testified that on 24 March 1997, at about 4:00 p.m., they registered as voters in the barangay. After registering, they went home to appellants house, but again left to get vinegar from his aunt Catalina Cabano, for their kinilaw. In Catalinas house, they found her drunk husband, her 10-year old daughter, and her 3-year old grandchild Daylen. 25 Catalinas daughter directed them to the place where she was gathering tuba. As Daylen was crying, appellant carried her on their way to Catalina. It was then about 4:00 p.m. After Catalina finished gathering tuba, the four of them appellant, Totong, Catalina and Daylen, left together and repaired to Catalinas house for the vinegar. Appellant and Totong returned to appellants house where they spent the night. 26 Totong woke up at 6:00 a.m. the following day, and left appellants house. Totong came to know of appellants arrest the following day. 27
Catalina Cabano also corroborated appellants story. She relates that on 24 March 1997, she was gathering tuba, at a place around 2 kilometers from her house. She left Maritess, her youngest child and Daylen, her grandchild, at her house. 28 At about 5:30 p.m., appellant and Totong arrived. Appellant was carrying Daylen. They waited for Catalina to finish gathering tuba until 6:00 p.m. Appellant and Totong went to the formers house, had a drinking spree, and then parted ways at about 6:30 p.m. That night, according to Catalina, she talked to Tulon Mik at the premises near the house. Mik was looking for Remelyn. At that time, appellant was already at the house of Catalinas younger sister, which is located across the river, about 4 kilometers away. 29
After trial, the trial court found that there was sufficient circumstantial evidence to convict appellant for the crime of rape with the qualifying circumstance that the victim was below seven years of age. Appellant was sentenced to death and ordered to indemnify the victim the sums of fifty thousand pesos (P50,000.00) as moral damages, thirty thousand pesos (P30,000.00) as exemplary damages, and to pay the costs of suit.
In his Brief 30 to the Court, appellant assigned the following errors in the judgment of the trial court: I. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT, ROLANDO (sic) GAUDIA DESPITE THE FACT THAT HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT. II. EVEN GRANTING WITHOUT ADMITTING THAT ACCUSED-APPELLANT IS GUILTY OF THE CRIME CHARGED, THE TRIAL COURT STILL ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH DESPITE THE FAILURE OF THE PROSECUTION TO STATE WITH CERTAINTY THE QUALIFYING CIRCUMSTANCE OF AGE IN THE INFORMATION.
We convict appellant for simple rape, and not for qualified rape.
Under Rule 133, Section 4 of the Revised Rules of Court, conviction may be based on circumstantial evidence provided three requisites concur: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. The ruling case law is that for circumstantial evidence to be sufficient to support a conviction, all circumstances must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent and with every other rational hypothesis except that of guilt. 31
The first circumstantial evidence against the appellant is the testimony of prosecution witness Tulon Mik that at 4:00 p.m. on 24 March 1997, he saw him carrying Remelyn toward the direction of the ipil-ipil grove, some 130 meters from her house. 32 As a neighbor and relative of Remelyns stepfather, Mik had sufficient familiarity with the child Remelyn. The possibility that he could have been mistaken in identifying the victim is nil.
The second circumstantial evidence against the appellant is Amalias testimony that Remelyn emerged naked from the same ipil-ipil grove, with ipil-ipil leaves clinging to her forehead. Remelyn was crying and walking with her legs spread far apart. Remelyns private organ was bleeding and excreting a white mucus-like substance. 33
The third circumstantial evidence against appellant is Remelyns statement to her mother that it was appellant who had brought her to the ipil-ipil grove 34 and forced her to do something against her will. 35
There is no question that Remelyn was violated. After examining Remelyn, Dr. Patricio Hernane, the Municipal Health Officer of Hagonoy, found her to have a broken hymen, as well as fresh vaginal lacerations.
From these, the culpability of the appellant can be inferred with moral certainty. All the aforementioned circumstances have been indubitably proven, both by the testimonial and documentary evidence presented by the prosecution, and by the inability of the appellant to discredit their veracity.
The attempt of appellant to discredit the circumstantial evidence against him is futile. Appellant contends, first, that Tulon Miks testimony is weak, on the ground that Mik is a relative of the husband of Amalia. 36 He also questions the credibility of Mik because of his failure to confront appellant when he saw him carrying Remelyn. Neither did Mik inform Amalia about what he saw when Amalia was looking for Remelyn. Appellant insists that it was Daylen whom he carried and not Remelyn. Second, he stresses the fact that Remelyn did not make any categorical statement that he sexually molested her. Third, he maintains that the accusation of flight against him is false. Fourth, he avers that the offer of compromise by his parents as tendered to Amalia Loyola should not be taken against him, 37 while the offer of compromise he allegedly made to Amalias husband, as relayed by Amalia in her testimony, should be excluded as evidence for being hearsay. 38 Finally, he submits that inconsistencies in the testimony of Alex Loyola and Cabano should not be counted against him on the ground that any finding of guilt must rest on the strength of the prosecutions evidence.
We reject appellants arguments.
First, appellants attempt to discredit the testimony of Mik cannot succeed. It is true that Mik is a relative by affinity of Amalia Loyola. It is hoary jurisprudence, however, that mere relationship to one of the parties, without a showing of any other improper motive, is not sufficient basis to impair the credibility of the witness. 39 In the case at bar, appellant cannot impute any ill motive for Mik to testify adversely against him. Appellant questions the failure of Mik to challenge him why he was carrying Remelyn. Also, he assails Mik for failing to inform Amalia Loyola of such a sight. Mik had an explanation for the inadvertence. He said his own child was down with a fever, and he and his wife were hurrying home. 40 For this same reason, he revealed the fact that he saw appellant carrying Remelyn toward the ipil-ipil grove only when he learned of Remelyns fate. But thereafter, he lost no time in reporting the matter to the barangay chairman. 41 As a barangay kagawad, he also assisted in the pursuit and arrest of appellant at Barangay Mahayahay. 42 These subsequent actions strengthen Miks credibility.
The trial court accorded more credence to Miks narration of the events over the testimonies of Cabano and Loyola. It is a cornerstone of our jurisprudence that the trial judge's evaluation of the testimony of a witness and its factual findings are accorded not only the highest respect, but also finality, unless some weighty circumstance has been ignored or misunderstood which could alter the result of the judgment rendered. In the case at bar, there is no irregularity in the assessment of evidence by the lower court. It granted utmost credibility to Miks testimony. Given the direct opportunity to observe the witness on the stand, the trial judge was in a vantage position to assess his demeanor and determine if he was telling the truth or not. 43 The trial court found Miks testimony more worthy of credence over those of Catalina and Loyola. We have no reason to reverse its findings.
Next, appellant tried to capitalize on the fact that Remelyn never made any statement that he sexually molested her. This is a specious argument. Remelyn had told her mother, "Crazy Lendoy forced me." 44 Remelyn was 3 1/2 years old at the time. At such an infantile age, she could not be expected to have a comprehension of the concept of rape. Studies show that children, particularly very young children, make the "perfect victims". They naturally follow the authority of adults as the socialization process teaches children that adults are to be respected. The childs age and developmental level will govern how much she comprehends about the abuse and therefore how much it affects her. If the child is too young to understand what has happened to her, the effects will be minimized because she has no comprehension of the consequences. Certainly, children have more problems in providing accounts of events because they do not understand everything they experience. They do not have enough life experiences from which to draw upon in making sense of what they see, hear, taste, smell and feel. Moreover, they have a limited vocabulary. 45 The fact that Remelyn called appellant "Buang" or crazy shows that he did something which she knew was not right or proper. By saying "iya kong lugos," Remelyn clearly conveyed that he forced her to do something bad. With her limited comprehension, the child could not have a perfect way of relating that she had been sexually abused. Finally, it must also be considered that there is no actual counterpart for the word "rape" in Visayan parlance.
Appellants charge that the trial court erred when it ruled that he fled arrest, even if correct, is not pivotal to his guilt. There are enough pieces of circumstantial evidence to convict him. Neither will it affect the penalty or the award of damages rendered against him. Similarly, appellants charge that the offers of compromise allegedly made by the parents of the appellant to Amalia, and by the appellant himself to Amalias husband should not have been taken against him by the trial court, even if sustained, will not exculpate him. To be sure, the offer of compromise allegedly made by appellant to Amalia Loyolas husband is hearsay evidence, and of no probative value. It was only Amalia who testified as to the alleged offer, 46 and she was not a party to the conversation which allegedly transpired at the Hagonoy Municipal Jail. A witness can only testify on facts which are based on his personal knowledge or perception. 47 The offer of compromise allegedly made by the appellants parents to Amalia may have been the subject of testimony 48 of Amalia. However, following the principle of res inter alios acta alteri nocere non debet, 49 the actions of his parents cannot prejudice the appellant, since he was not a party to the said conversation, nor was it shown that he was privy to the offer of compromise made by them to the mother of the victim. They cannot be considered as evidence against appellant but we reiterate that these errors are not enough to reverse the conviction of the appellant.
Appellants defense hardly impresses. It is interesting to note that appellant and his witnesses claim that it was at around 5:00 p.m. when appellant carried the child Daylen toward her grandmother Catalina at the place where she was gathering tuba. Mik testified that it was around 4:00 p.m. when he saw appellant carrying Remelyn toward theipil-ipil grove. Given the 130-meter distance between the ipil-ipil grove and the houses of appellant and of Amalia Loyola, appellant could have easily taken Remelyn from her house, raped her at the ipil-ipil grove, and left her there, all in a matter of a few minutes. Sometime past 4:00 p.m., he could then have returned to his house, and together with Alex Loyola, proceeded to the COMELEC office to register, and did all the subsequent acts he claims to have done.
The Court also notes the inconsistencies in the testimonies of Catalina and Loyola. The discrepancies in the witnesses narration as to the time of arrival of appellant at the place where Catalina was gathering tuba, his time of arrival at his own house, and the time when Loyola and appellant actually parted ways, are not mere trivial details which could be forgotten by witnesses because of the passage of time. To make matters worse, the appellants testimony was, at times, contradicted by his own witnesses. Particularly telling was the conflict between appellants statement that Totong had already left his house on the night of 24 March 1997 and Totong and Catalinas own averments that Totong had stayed the night at appellants house. These contradictory testimonies only made more incredulous appellants tale.
We now review the penalty of death imposed upon appellant. In the case at bar, the Information states that appellant, "by means of force and intimidationwillfully, unlawfully and feloniously (had) carnal knowledge with Remelyn Loyola, a minor, against her will to her damage and prejudice." 50 (emphasis ours) The Information did not allege that Remelyn was below seven years old when she was violated. Appellant was therefore charged with simple rape, under Section 335 of the Revised Penal Code, as amended by Republic Act No. 7659 (the Death Penalty Law). Upon its passage, R.A. No. 7659 introduced seven new attendant circumstances, which when present, will transform the crime to qualified rape, punishable by death. We again stress that these new attendant circumstances must be properly pleaded in the information to justify the imposition of the death penalty. The facts stated in the body of the information determine the crime for which the accused stands charged and for which he must be tried. 51 The main purpose of requiring all the elements of a crime to be set out in the information is to enable the accused to suitably prepare his defense. It would be a denial of the right of the accused to be informed of the charges against him and, consequently, a denial of due process, if he is charged with simple rape and be convicted of its qualified form punishable with death, although the attendant circumstance qualifying the offense and resulting in capital punishment was not alleged in the indictment on which he was arraigned. 52
We now review the damages awarded by the trial court. Time and again, we have ruled that when there is a finding that rape had been committed, the award of civil indemnity ex delicto is mandatory. 53 If the death penalty has been imposed, the indemnity should be P75,000.00; otherwise the victim is entitled to P50,000.00 for each count of rape. 54 Thus, the appellant is ordered to pay the amount of P50,000.00 as civil indemnity to Remelyn Loyola. 55
We affirm the award of moral damages. This is automatically awarded in rape cases without need of further proof other than the commission of the crime, as it is assumed that a rape victim has suffered moral injuries entitling her to such an award. 56
We also find the award of exemplary damages made by the lower court in favor of complainant as proper because complainant has been correctly granted moral damages and the offense against her was committed with the aggravating circumstance 57 of age. However, the amount awarded must be reduced to P25,000.00 in line with prevailing jurisprudence. 58
WHEREFORE, the judgment of conviction of the Regional Trial Court, Branch 19, of Digos, Davao del Sur in Criminal Case No. 213(97) is hereby MODIFIED. Appellant is found guilty of the crime of simple rape, and is sentenced to suffer the penalty of reclusion perpetua. He is ordered to pay to complainant Remelyn Loyola the amounts of P50,000.00 as civil indemnity ex delicto, P50,000.00 as moral damages, and P25,000.00 as exemplary damages. Costs against the appellant.
SO ORDERED.
G.R. No. 144621 May 9, 2003
PEOPLE OF THE PHILIPPINES, appellee, vs. ISAGANI GUITTAP y PENGSON (Acquitted), WILFREDO MORELOS y CRUZ (Acquitted), CESAR OSABEL @ DANILO MURILLO @ DANNY @ SONNY VISAYA @ BENJIE CANETE, ARIEL DADOR y DE CHAVEZ (Discharge), DECENA MASINAG VDA. DE RAMOS, LUISITO GUILLING @ LUISITO (Acquitted), and JOHN DOE @ PURCINO, accused.
DECENA MASINAG VDA. DE RAMOS, appellant.
YNARES-SANTIAGO, J.:
Appellant Decena Masinag Vda. de Ramos assails the decision 1 of the Regional Trial Court of Lucena City, Branch 60, in Criminal Case No. 92-387, finding her and accused Cesar Osabel guilty beyond reasonable doubt of the crime of Robbery with Homicide and sentencing each of them to suffer the penalty of reclusion perpetua, with all the accessory penalties provided by law, and to indemnify the heirs of the victims the amounts of P100,000.00 as civil indemnity and P67,800.00 as actual damages.
On September 1, 1992, an Amended Information for Robbery with Double Homicide was filed against appellant Masinag, Isagani Guittap y Pengson, Wilfredo Morelos y Cruz, Cesar Osabel, 2 Ariel Dador y De Chavez, Luisito Guilling and John Doe @ "Purcino". The accusatory portion of the information reads:
That on or about the 17th day of July 1992, in the City of Lucena, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conspiring and confederating with one another, armed with bladed weapons, by means of violence, and with intent to gain, did then and there willfully, unlawfully and feloniously take, steal and carry away certain personal items, to wit: one (1) solid gold ring valued at P8,000.00 one (1) diamond ring valued at P40,000.00 one (1) necklace with pendant valued at P2,000.00 cash money in the amount of P4,500.00 one (1) samsonite bag valued at P650.00 one (1) .22 Cal. Squibbman with SN 64130 valued at P5,000.00 one (1) pair of sandal valued at P650.00 one (1) music mate (karaoke) valued at P5,000.00 one (1) jacket (adidas) valued at P1,000.00; and one (1) pair of shoes valued at P1,000.00 with a total value of P67,800.00, owned by and belonging to spouses Romualdo Jael and Lionela 3 Caringal, without the consent and against the will of the latter, to the damage and prejudice of the aforementioned offended parties in the aforestated sum of P67,800.00, Philippine Currency, and, on the same occasion of such robbery, the said accused, conspiring and confederating with one another, armed with the same bladed weapons, taking advantage of superior strength, and employing means to weaken the defense or of means or persons to insure or afford impunity, and with intent to kill, did then and there willfully, unlawfully and feloniously stab both of said spouses Romualdo Jael and Lionela Caringal thereby inflicting upon the latter several fatal wounds which directly caused the death of the aforenamed spouses. Contrary to law. 4
Upon arraignment, appellant Masinag pleaded "not guilty." Trial on the merits thereafter ensued. Accused Ariel Dador was discharged as a state witness while accused Purcino remained at large.
On February 15, 2000, the trial court rendered its decision, the dispositive portion of which states:
WHEREFORE, premises considered, this court finds Cesar Osabel and Decena Masinag GUILTY beyond reasonable doubt of the crime of robbery with homicide and they are sentenced to RECLUSION PERPETUAwith all the accessory penalties provided by law. For insufficiency of evidence, the accused Isagani Guittap, Wilfrido Morelos and Luisito Guilling are hereby ACQUITTED.
The accused Cesar Osabel and Decena Masinag are also ordered to indemnify the heirs of the deceased Romualdo Jael and Leonila Caringal Jael in the amount of (P100,000.00) One Hundred Thousand Pesos plus actual damages of (P67,800.00) Sixty Thousand and Eight Hundred Pesos, Philippine Currency. SO ORDERED. 5
During the trial, state witness Ariel Dador testified that in the evening of July 15, 1992, Cesar Osabel asked him and a certain Purcino to go with him to see appellant Masinag at her house in Isabang, Lucena City. When they got there, Osabel and Masinag entered a room while Dador and Purcino waited outside the house. On their way home, Osabel explained to Dador and Purcino that he and Masinag planned to rob the spouses Romualdo and Leonila Jael. He further told them that according to Masinag, the spouses were old and rich, and they were easy to rob because only their daughter lived with them in their house.
The following day, at 7:00 p.m., Dador, Osabel, and Purcino went to the house of the Jael spouses to execute the plan. Osabel and Purcino went inside while Dador stayed outside and positioned himself approximately 30 meters away from the house. Moments later, he heard a woman shouting for help from inside the house. After two hours, Osabel and Purcino came out, carrying with them one karaoke machine and one rifle. Osabel's hands were bloodied. He explained that he had to tie both the victims' hands with the power cord of a television set before he repeatedly stabbed them, He killed the spouses so they can not report the robbery to the authorities.
Osabel ordered Dador to hire a tricycle while he and Purcino waited inside the garage of a bus line. However, when Dador returned with the tricycle, the two were no longer there. He proceeded to the house of Osabel and found him there with Purcino. They were counting the money they got from the victims. They gave him P300.00. Later, when Dador accompanied the two to Sta. Cruz, Manila to dispose of the karaoke machine, he received another P500.00. Osabel had the rifle repaired in Gulang- Gulang, Lucena City.
Dador and Osabel were subsequently arrested for the killing of a certain Cesar M. Sante. During the investigation, Dador executed an extrajudicial confession admitting complicity in the robbery and killing of the Jael spouses and implicating appellant and Osabel in said crime. The confession was given with the assistance of Atty. Rey Oliver Alejandrino, a former Regional Director of the Human Rights Commission Office. Thereafter, Osabel likewise executed an extrajudicial confession of his and appellant's involvement in the robbery and killing of the Jaels, also with the assistance of Atty. Alejandrino.
Simeon Tabor, a neighbor of the Jaels, testified that at 8:00 in the morning of July 17, 1992, he noticed that the victims, who were known to be early risers, had not come out of their house. He started calling them but there was no response. He instructed his son to fetch the victims' son, SPO1 Lamberto Jael. When the latter arrived, they all went inside the house and found bloodstains on the floor leading to the bathroom. Tabor opened the bathroom door and found the lifeless bodies of the victims.
Dr. Vicente F. Martinez performed the post- mortem examination on the bodies of the victims and testified that since rigor mortis had set in at the back of the neck of the victims, Romualdo Jael died between six to eight hours before the examination while Leonila Jael died before midnight of July 16, 1992. The cause of death of the victims was massive shock secondary to massive hemorrhage and multiple stab wounds.
Appellant Masinag, for her part, denied involvement in the robbery and homicide. She testified that she knew the victims because their houses were about a kilometer apart. She and Osabel were friends because he courted her, but they never had a romantic relationship. She further claimed that the last time she saw Osabel was six months prior to the incident. She did not know Dador and Guilling at the time of the incident. According to her, it is not true that she harbored resentment against the victims because they berated her son for stealing their daughter's handbag. On the whole, she denied any participation in a conspiracy to rob and kill the victims.
From the decision convicting appellant Masinag and Osabel, only the former appealed, based on the lone assigned error: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF CONSPIRING WITH HER CO-ACCUSED TO COMMIT THE CRIME OF ROBBERY WITH HOMICIDE DESPITE THE ABSENCE OF HER ACTUAL PARTICIPATION IN THE COMMISSION OF THE SAID CRIME.
The appeal is meritorious.
While it is our policy to accord proper deference to the factual findings of the trial court, 6 owing to their unique opportunity to observe the witnesses firsthand and note their demeanor, conduct, and attitude under grueling examination, 7 where there exist facts or circumstances of weight and influence which have been ignored or misconstrued, or where the trial court acted arbitrarily in its appreciation of facts, 8 we may disregard its findings.
Appellant contends that the extrajudicial confessions of Osabel and Dador were insufficient to establish with moral certainty her participation in the conspiracy. Firstly, Dador was not present to hear appellant instigate the group to rob the Jael spouses. He only came to know about the plan when Osabel told him on their way home. Thus, Dador had no personal knowledge of how the plan to rob was actually made and of appellant's participation thereof. Secondly, while Osabel initially implicated her in his extrajudicial confession as one of the conspirators, he repudiated this later in open court when he testified that he was forced to execute his statements by means of violence.
On direct examination, Dador narrated what transpired in the house of appellant on July 15, 1992, to wit: PROSECUTOR GARCIA: Q. And do you remember the subject or subjects of that conversation that transpired among you? A. Yes, sir. Q. Please tell us what was the subject or subjects of the conversation that transpired among you on July 15, 1992 at the house of Decena Masinag? A. The subject of our conversation there was the robbing of Sps. Jael, sir. Q. How did that conversation begin with respect to the proposed robbery of Sps. Jael? A. It was only the two (2) who planned that supposed robbery, Daniel Murillo and Decena Masinag, sir. Q. And why were you able to say that it was Danilo Murillo and Decena Masinag who planned the robbery? A. Because they were the only ones who were inside the house and far from us and they were inside the room, sir. xxx xxx xxx Q. On that night, July 15, 1992 did you ever have any occasion to talk with Decena Masinag together with your companions Danilo Murillo and Purcino? A. No, sir. Q. Was there any occasion on the same date that Decena Masinag talk to you? ATTY. FLORES: Already answered, your Honor. COURT: Witness, may answer. WITNESS: None, sir. (emphasis ours) 9
We find that the foregoing testimony of Dador was not based on his own personal knowledge but from what Osabel told him. He admitted that he was never near appellant and that he did not talk to her about the plan when they were at her house on July 15, 1992. Thus, his statements are hearsay and does not prove appellant's participation in the conspiracy.
Under Rule 130, Section 36 of the Rules of Court, a witness can testify only to those facts which he knows of his own personal knowledge, i.e., which are derived from his own perception; otherwise, such testimony would be hearsay. Hearsay evidence is defined as "evidence not of what the witness knows himself but of what he has heard from others." 10 The hearsay rule bars the testimony of a witness who merely recites what someone else has told him, whether orally or in writing. 11 In Sanvicente v. People," 12 we held that when evidence is based on what was supposedly told the witness, the same is without any evidentiary weight for being patently hearsay. Familiar and fundamental is the rule that hearsay testimony is inadmissible as evidence. 13
Osabel's extrajudicial confession is likewise inadmissible against appellant. The res inter allos acta rule provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. 14 Consequently, an extrajudicial confession is binding only upon the confessant and is not admissible against his co-accused. The reason for the rule is that, on a principle of good faith and mutual convenience, a man's own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him. 15
The rule on admissions made by a conspirator, while an exception to the foregoing, does not apply in this case. In order for such admission to be admissible against a co-accused, Section 30, Rule 130 of the Rules of Court requires that there must be independent evidence aside from the extrajudicial confession to prove conspiracy. In the case at bar, apart from Osabel's extrajudicial confession, no other evidence of appellant's alleged participation in the conspiracy was presented by the prosecution. There being no independent evidence to prove it, her culpability was not sufficiently established.
Unavailing also is rule that an extrajudicial confession may be admissible when it is used as a corroborative evidence of other facts that tend to establish the guilt of his co-accused. The implication of this rule is that there must be a finding of other circumstantial evidence which, when taken together with the confession, establishes the guilt of a co-accused beyond reasonable doubt. 16 As earlier stated, there is no other prosecution evidence, direct or circumstantial, which the extrajudicial confession may corroborate. In People v. Berroya, 17 we held that to hold an accused liable as co-principal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or furtherance of the conspiracy. That overt act may consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance to his co- conspirators by being present at the time of the commission of the crime, or by exerting moral ascendancy over the other co- conspirators by moving them to execute or implement the conspiracy.
In the case at bar, no overt act was established to prove that appellant shared with and concurred in the criminal design of Osabel, Dador and Purcino. Assuming that she had knowledge of the conspiracy or she acquiesced in or agreed to it, still, absent any active participation in the commission of the crime in furtherance of the conspiracy, mere knowledge, acquiescence in or agreement to cooperate is not sufficient to constitute one as a party to a conspiracy. 18 Conspiracy transcends mere companionship. 19
Conspiracy must be proved as convincingly as the criminal act itself. Like any element of the offense charged, conspiracy must be established by proof beyond reasonable doubt. 20 Direct proof of a previous agreement need not be established, for conspiracy may be deduced from the acts of appellant pointing to a joint purpose, concerted action and community of interest. Nevertheless, except in the case of the mastermind of a crime, it must also be shown that appellant performed an overt act in furtherance of the conspiracy. 21
All told, the prosecution failed to establish the guilt of appellant with moral certainty. Its evidence falls short of the quantum of proof required for conviction. Accordingly, the constitutional presumption of appellant's innocence must be upheld and she must be acquitted. WHEREFORE, in view of the foregoing, the appealed decision of the Regional Trial Court of Lucena City, Branch 60 in Criminal Case No. 92-487, insofar only as it finds appellant guilty beyond reasonable doubt of the crime of Robbery with Homicide, is REVERSED and SET ASIDE. Appellant Decena Masinag Vda. De Ramos is ACQUITTED of the crime of Robbery with Homicide. She is ORDERED RELEASED unless there are other lawful causes for her continued detention. The Director of Prisons is DIRECTED to inform this Court, within five (5) days from notice, of the date and time when appellant is released pursuant to this Decision.
SO ORDERED.
G.R. No. 121982 September 10, 1999 PEOPLE OF THE PHILIPPINES, plaintiff- appellee, vs. LEONILO CUI y BALADJAY, BEVERLY CUI y CANTUBA, EDUARDO BASINGAN y SABELLO, WILFREDO GARCIA, alias "TOTO", JOSELITO GARCIA, alias "TATA GARCIA", EMMANUEL GARCIA, alias "MAWI", a certain SADAM, BEINVENIDO NACARIO y PARDILLO, alias "REY NACARIO", a certain EDGAR, a certain BENJIE, LUIS OBESO, alias "LEOS", HILARIA SARTE, alias "LARING", and YUL ALVAREZ, accused, LEONILO CUI y BALADJAY, BEVERLY CUI y CANTUBA, LUIS OBESO, alias "LEOS", and HILARIA SARTE, alias "LARING", accused-appellants.
PUNO, J.: In the evening of December 5, 1990, some ten (10) armed robbers raided the compound of Johnny and Rose Lim on Edison Street, Lahug, Cebu City. The Lims, their three (3) children, and the employees of the family-owned business, William's Educational Supply, were able to see the faces of the leader Wilfredo alias "Toto" Garcia and two of his men, Mawe Garcia and a certain Edgar. The other robbers could not be identified as they had flour sacks over their heads. The robbers carted away cash and jewelries worth twenty thousand pesos (P20,000.00). They also blindfolded and forcibly abducted seventeen (17) year old Stephanie, the youngest daughter of the Lims. They demanded a ransom of one million pesos (P1,000,000.00) for her release. Johnny Lim turned over to Toto Garcia the ransom amount in the afternoon of the next day at an arranged meeting place. Stephanie, in turn, was released to her father. Initially, the Lims kept the crime a secret. But on the third day, they reported the kidnapping to the Philippine National Police Cebu Metropolitan District Command (Cebu Metrodiscom) at Camp Sotero, Cabahug, Cebu City. The Metrodiscom Intelligence Security Team (MIST) 1 conducted an investigation and Johnny Lim was shown photographs of criminal elements to identify the suspects. From around ninety (90) photographs, Lim picked that of Toto Garcia. The identification of Toto Garcia gave MIST a valuable lead. Toto Garcia was known as the leader of a group of armed robbers called the Baong Gang. The gang's base of operation was pinpointed at Quiot, Pardo, Cebu. When the police learned from Lim that his house guard, Eduardo Basingan, hailed from Quiot, Pardo, Cebu City, they decided to interrogate him.1wphi1.nt Basingan's interrogation broke the case wide open. He identified Toto Garcia, Mawe Garcia and Edgar as the three (3) who did not wear masks, Sadam and Rey as the two (2) who held him and the Lims at gunpoint, and Tata Garcia, Yul Alvarez, a certain Benjie, a certain Leos and a certain Laring as the look-outs who stayed outside the Lim compound. He named Toto Garcia as the chief plotter of the crime at bar, and revealed that his neighbor and close family friends, the spouses Leonilo and Beverly Cui, participated in the plan. Basingan said he was asked to join the plot and was assured that he would not be under suspicion because he would be placed at gun point together with the other members of the Lim household when the crime is committed. However, he refused to join the plot during the December 2, 1990 meeting of the group at the residence of the Cuis in Quiot, Pardo, Cebu City. Leonilo Cui even invoked their close ties as godfathers of each other's children but he was unmoved. At the meeting were Toto Garcia, Mawi Garcia, Edgar, Rey, Sadam and the Cuis. On December 18, 1990, Basingan executed a sworn statement 2 reiterating these revelations in writing. Johnny and Rose Lim then formalized their complaint by executing a Joint Affidavit. 3 The members of the Metrodiscom Intelligence Security Team also executed a Joint Affidavit 4 relating their investigation. With these as bases, Assistant Prosecutor Bienvenido N. Mabanto, Jr. filed an information 5 for Kidnapping with Ransom against Basingan, the Cuis, and the members of the group of Toto Garcia as identified by Basingan in his sworn statement. On the same day, December 18, 1990, Basingan and Leonilo Cui were arrested. 6 Beverly Cui was also taken into custody on January 17, 1991. 7 The Cuis, however, were later granted bail and their plea for preliminary investigation was given due course. 8
On March 14, 1991, Joselito "Tata" Garcia, Hilaria Sarte and her live-in partner, Luis Obeso, referred to by Basingan as "Laring" and "Leos", respectively, were arrested in the neighboring Negros Island. The next day, however, Tata Garcia died due to "hemorrhage, severe, secondary to gunshot wounds" 9 . Upon presentation of his death certificate, the trial court ordered his name deleted from the information. On March 22, 1991, Obeso and Sarte filed their own motions for preliminary investigation. 10 Their motions were granted in an Order dated April 2, 1991. 11
On April 1, 1991, Basingan executed a second sworn statement 12 reiterating his first. In addition he detailed the role of the Cuis in the planning of the crime at bar. After preliminary investigation, Prosecutor Manuel J. Adlawan found that the participation of the Cuis was only that of accomplices. Thus, on May 13, 1991, an Amended Information was filed downgrading the charge against the Cuis as mere accomplices in the kidnapping with ransom of Stephanie Lim. It reads:
That on or about the 5th day of December, 1990, at about 9:00 P.M. more or less and for sometime subsequent thereto, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accuse, all private individuals, conniving and confederating together, and mutually helping with one another, armed with unlicensed firearms, with deliberate intent, with intent of gain, enter the dwelling house of spouses Johnny and Rose Lim and while inside therein with violence and intimidation, take and carry away cash and jewelries in the amount of P20,000.00 from the possession of and belonging to spouses Johnny and Rose Lim and that on the occasion thereof, and in connection therewith and for the purpose of extorting ransom from said spouses Johnny and Rose Lim, herein accused, in pursuance of their superior strength did then and there kidnap and detain Stephanie Lim 17 years old [sic] daughter of spouses Johnny and Rose Lim and while Stephanie Lim was under detention in the place other than the latter's dwelling place, the said accused demanded the amount of P1,000,000.00 for the release of Stephanie Lim to which demands and for fear of the latter's life spouses Johnny and Rose Lim delivered and caused to be delivered the amount of P1,000,000.00 to said accused; and accused
(1) Leonilo Cui y Baladjay and (2) Beverly Cui y Cantuba who are hereby charged for the same offense as accomplices cooperate in its execution by previous acts and subsequently profiting in the effects of the crime by receiving the amount of P10,000.00 from the principal accused as their share of the loot, to the damage and prejudice of Johnny, Rose and Stephanie Lim in the total amount of P1,020,000.00. CONTRARY TO LAW. 13
On May 15, 1991, Basingan, the Cuis, Obeso and Sarte were arraigned and they all pleaded not guilty. 14 On June 27, 1991, Basinga escaped from the prison. 15
Trial on the merit ensued against the Cuis, Obeso and Sarte. Basingan was tried in absentia. On February 13, 1992, Beinvenido Nacario, alias "Rey Nacario", was arrested. On arraignment on April 13, 1992, he pleaded not guilty. However, on May 5, 1991, he, too, escaped from detention and remains at large to this date. On August 18, 1992, the prosecuting fiscal manifested before the trial court that, per newspaper report, Toto Garcia had been killed in Davao. On December 6, 1993, the trial court convicted the Cuis, Obeso, Sarte, Basingan and Nacario. 16 It held:
In the light of the totality of the evidence adduced in the case at bar and the law and aforementioned jurisprudence, the Court is convinced that a conspiracy was hatched by all the accused in perpetrating the crime charged. For instance, as borne out by the testimony of Sgt. Narciso Ouano, Jr., police investigator of the Cebu Metrodicim [sic], accused Eduardo Basingan declared during his investigation that the plan was indeed carried out and he knew all the persons who participated in that robbery, naming Toto Garcia, Tata Garcia, Mawi Garcia, Rey, Edgar, Sadam, Yul Alvarez, Benjie, Leo and Laring. When the named robbers entered the residence of his master Johnny Lim, the robbers were wearing masks except Toto Garcia, Mawi Garcia and Edgar. The others, Rey, Sadam, Laring, Leo, Benjie and Yul Alvarez were wearing masks but Basingan was still able to identify them in spite of the fact that they were wearing masks because these persons were familiar to him already as they used to frequent the house of Leonilo and Beverly Cui. At the time of the robbery, only Toto Garcia, Mawi Garcia and Edgar, Rey and Sadam went inside the house of his master while Yul Alvarez, Benjie, Leos and Laring were guarding outside the building. On December 7, 1990, two days after the robbery, he was called by his Comadre Beverly Cui and the latter handed to him the amount of P40,000.00 in her house, saying that Toto Garcia left the said amount to be given to him. During the talk, Basingan verbally told them about the incident relative to the kidnapping and his having received P40,000.00 from Toto Garcia as his share of the ransom. A Formal investigation was conducted by Sgt. Armando Ballon in the presence of Atty. Elias Espinosa who assisted Eduardo Basingan.
. . . The denial of accused Luis Obeso and Hilaria Sarte as to their participation in the commission of the crime does not hold water for they were duly identified even during the initial phase of the commission of the crime. They were the renters of the house where Stephanie, the kidnapped victim, was placed. Stephanie had identified the house. The flight of these two accused to Bacong, Dumaguete City is indicative of their guilt. . . .
The prosecution has indeed established the guilt of the accused beyond reasonable doubt as against accused Eduardo Basingan, Bienvenido Nacario y Pardillo, @ "Rey Nacario," Luis Obeso, @ "Leos", Hilaria Sarte, @ "Laring", Leonilo Cui y Baladjay and Beverly Cui y Cantuba, the latter two are only as accomplices, to the crime of kidnapping with ransom. . . . 17
They were sentenced to suffer the following penalties:
WHEREFORE, in view of all the foregoing considerations, JUDGMENT is hereby rendered convicting the accused Eduardo Basingan, Bienvenido Nacario y Pardillo @ "Rey Nacario," Luis Obeso, @ "Leos", Hilaria Sarte, @ "Laring", as principals for the crime of KIDNAPPING WITH RANSOM and shall suffer the penalty of reclusion perpetua and the accused Leonilo Cui and Beverly Cui being accomplices, to suffer an imprisonment of eight (8) years and one (1) day ofprision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum. They are further ordered to jointly restitute to the victim the ransom money less the amount recovered. Accused Hilaria Sarte and Luis Obeso, being detention prisoners are credited in full during the whole period of their detention provided that they signify in writing that they will abide with the rules and regulations of the penitentiary. xxx xxx xxx SO ORDERED. 8
Obeso and Sarte filed their Notice of Appeal 19 on May 19, 1994. The Cuis filed theirs 20 on May 31, 1994.
In their Brief dated April 21, 1997, Obeso and Sarte prayed for their acquittal on the following grounds: I THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANTS ON THE BASIS OF THE EXTRA-JUDICIAL STATEMENT MADE BY EDUARDO BASINGAN AND THE TESTIMONY OF SGT. NARCISO OUANO JR. THEREON, WHICH ARE HEARSAY EVIDENCE. II THE TRIAL COURT ERRED IN FINDING THE TWO ACCUSED-APPELLANTS AS PRINCIPALS BY CONSPIRACY DESPITE THE ABSENCE OF ANY COMPETENT AND CONVINCING PROOF OF THEIR CULPABILITY 21
On June 25, 1997, the Cuis also filed their Brief. They contended: I. THE TRIAL COURT ERRED IN NOT FINDING THAT THE CONSTITUTIONAL RIGHTS OF APPELLANTS-SPOUSES LEONILO CUI AND BEVERLY CUI TO REMAIN SILENT, TO COUNSEL AND AGAINST SELF- INCRIMINATION HAD BEEN GROSSLY VIOLATED DURING THEIR CUSTODIAL INVESTIGATION. II. THE TRIAL COURT ERRED IN NOT EXCLUDING HEARSAY EVIDENCE OFFERED TO PROVE ALLEGED CONSPIRACY AND PARTICIPATION OF APPELLANTS-SPOUSES LEONILO CUI AND BEVERLY CUI, AS ACCOMPLICES IN THE CRIME CHARGED. 22
On August 13, 1998, the Office of the Solicitor General filed, in lieu of an Appellee's Brief, a Manifestation 23 recommending the acquittal of the Cuis, Obeso and Sarte on the ground that the prosecution failed to present adequate proof of their guilt beyond reasonable doubt. It was postulated:
It is clear that the only piece of evidence that would link appellants directly to the kidnapping of Stephanie Lim is the Sworn Statement executed by Eduardo Basingan (Exhibit "C") implicating appellants and describing their participation in detail. Basingan's extra-judicial confession, however, is inadmissible for being hearsay as he was not presented by the prosecution as its witness, he having escaped after arraignment. Hence, appellants were not afforded the opportunity to cross-examine him. Cross-examination is an indispensable instrument of criminal justice to give substance and meaning to the constitutional right of the accused to confront the witnesses against him and to show that the presumption of innocence has remained steadfast and firm . . . . It was intended to prevent the conviction of the accused upon depositions or ex- parte affidavits, and particularly to preserve the right of the accused to test the recollection of the witness in the exercise of his right of cross-examination . . . .
Perhaps realizing the futility of relying solely on Basingan's extra-judicial (sic) confession in order to secure appellants' conviction, the prosecution presented Sgt. [O]uano who testified on the informal investigation he conducted on Basingan. Part of his testimony was the same extra-judicial confession made by Basingan which was strongly objected to by appellants. It cannot be overemphasized that Sgt. [O]uano's testimony is not based on his own personal knowledge but on other evidence. He has no personal knowledge of the participation of the appellants in the kidnapping of the victim. Hence, his testimony is purely hearsay evidence and has no probative value, whether objected to or not . . . . 24
There is no question that Basingan escaped and never testified in court to affirm his accusation against the Cuis, Obeso and Sarte. Thus, the trial court committed reversible error in admitting and giving weight to the sworn statements of Basingan. In the same vein, the testimony of Sgt. Ouano confirming the content of Basingan's sworn statements is not proof of its truth and by itself cannot justify the conviction of appellants. Both the extrajudicial sworn statement of Basingan and the testimony of Sgt. Ouano are clear hearsay. Indeed, the records show that the trial court itself admitted Basingan's statements merely as part of the investigation of Sgt. Ouano, thus: Q: What else did Mr. Basingan tell you? A That it was the group of Toto Garcia who barged into the residence of Mr. Lim and that it was that group of Toto Garcia who kidnapped the daughter of Mr. Lim and also it was that group that gave him P40,000.00 out of the ransom money. COURT: xxx xxx xxx Q Were you able to determine who composed that group? A According to Basingan the group was composed of Wilfredo Garcia as he leader, Joselito Tata Garcia, Mawi Garcia, Edgar, a certain Rey, a certain Leon and a certain Laring. ATTY. GONZALEZ: We move to strike out the answer of this witness. It is hearsey [sic]. The answer['s] premise [is] according to. FISCAL ADLAWAN: That independence are relevant question which took action [sic]. COURT: Overruled. xxx xxx xxx FISCAL ADLAWAN: Q Was there any inquiries [sic] made by you on Eduardo Basingan how did he happen to know this group of Toto Garcia? ATTY. GONZALEZ: We object. I understand there are two investigations. He conducted his own investigation. ATTY. GONZALEZ: (Con't) Which investigation is he referring to. COURT: As preliminary investigation. ATTY. GONZALEZ: Before the formal investigation he conducted his own investigation? COURT: Answer. A Yes, I did inquire from him and that he told me Toto Garcia is frequently in the house of Leonilo and Beverly Cui and that he was introduced by the couple to Toto Garcia in one of those visits of Toto Garcia in the house and that subsequently thereafter he knew of the persons of [sic] Toto Garcia is associationg [sic] with because Toto Garcia went to the house of Leonilo Cui. ATTY. GONZALEZ: May we move to strike out from the records for being that he has no personal knowledge as to that information. COURT: Objection overruled. ATTY. GONZALEZ: In that case, your Honor may we make it of record that I am interposing a continuing objection as to the series of questioning considering that we strongly believe [sic] that what was given by this witness is hearsay. COURT: The objection is noted. The witness is only testifying regarding his investigation. 25
Despite its ruling, the trial court used the statements of Basingan, as testified to by Sgt. Ouano, as proofs of the guilt of the Cuis, Obeso and Sarte. Undeniably, they are hearsay for any oral or documentary evidence is hearsay by nature if its probative value is not based on the personal knowledge of the witnesses but on the knowledge of some other person who was never presented on the witness stand. 26
Conviction cannot be based on hearsay evidence. In the 1996 case of People v. Raquel, 27 we squarely addressed the issue of whether or not the extra-judicial statements of an escaped accused implicating his co-accused may be utilized against the latter. There we ordered an acquittal and held:
A thorough review of the records of this case readily revealed that the identification of herein appellants as the culprits was based chiefly on the extrajudicial statement of accused Amado Ponce pointing to them as his co-perpetrators of the crime. As earlier stated, the said accused escaped from jail before he could testify in court and he has been at large since then.
The extra-judicial statements of an accused implicating a co-accused may not be utilized against the latter, unless these are repeated in open court. If the accused never had the opportunity to cross-examine his co- accused on the extra-judicial statements, it is elementary that the same are hearsay as against said accused. That is exactly the situation, and the disadvantaged plight of appellants, in the case at bar.
Extreme caution should be exercised by the courts in dealing with the confession of an accused which implicates his co-accused. A distinction, obviously, should be made between extra-judicial and judicial confessions. The former deprives the other accused of the opportunity to cross- examine the confessant, while in the latter his confession is thrown wide open for cross-examination and rebuttal.
The res inter alios rule ordains that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. An extra-judicial confession is binding only upon the confessant and is not admissible against his co-accused. The reason for the rule is that, on a principle of good faith and mutual convenience, a man's own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him. 28
The res inter alios has exceptions. Thus, Section 30 of Rule 130 provides:
The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.
For this provision to apply, the following requisites must be satisfied:
a. That the conspiracy be first proved by evidence other than the admission itself; b. that the admission relates to the common objects; and c. that it has been made while the declarant was engaged in carrying out the conspiracy. 29
The general rule is that extra- judicial declarations of a co-conspirator made before the formation of the conspiracy or after the accomplishment of its object are inadmissible in evidence as against the other co-conspirators, on the ground that the accused in a criminal case has the constitutional right to be confronted with the witnesses against him and to cross-examine them. 30
In the case at bar, the alleged conspiracy among the accused was not priorly established by independent evidence. Nor was it was shown that the extra-judicial statements of Basingan were made while they were engaged in carrying out the conspiracy. In truth, the statements were made after the conspiracy has ended and after the consummation of the crime. They were not acts or declarations made during the conspiracy's existence. Since the extra- judicial admissions were made after the supposed conspiracy, they are binding only upon the confessant and are not admissible against his co-accused; as against the latter, the confession is hearsay. 31 In fine, the extra-judicial statements of Basingan cannot be used against the Cuis, Obese and Sarte without doing violence against their constitutional right to confront Basingan and to cross-examine him. 32
Be that as it may, we hold that on the basis of other evidence on record, the Cuis are guilty beyond reasonable doubt of being accessories, not accomplices as held by the trial court, in the kidnapping of Stephanie Lim.
Art. 8 of the Revised Penal Code, as amended, penalizes as accomplices those persons who cooperate in the execution of the offense by previous or simultaneous acts not indispensable to the consummation of the offense. Accomplices cooperate in the execution of the crime by previous or simultaneous acts, by means of which they aid, facilitate or protect the execution of the crime, without, however, taking any direct part in such execution, or forcing or inducing others to execute it, or contributing to its accomplishment by any indispensable act. 33 Had Basingan been able to testify on his affidavit detailing the role of the Cuis in the planning of the robbery of the Lim household, the trial court would have had sufficient basis to convict them as accomplices therein. As discussed above, however, Basingan escaped before taking the witness stand. This Court, however, holds that the Cuis profited from the kidnapping of Stephanie Lim and are liable as accessories.
Art. 19 of the Revised Penal Code, as amended, penalizes as accessories to the crime those who, subsequent to its commission, take part therein by profiting themselves or assisting the offenders to profit by the effects of the crime, without having participated therein, either as principals or accomplices. Conviction of an accused as an accessory requires the following elements: (1) that he has knowledge of the commission of the crime; and (2) that he took part in it subsequent to its commission by any of the three modes enumerated in Article 19 of the Revised Penal Code, as amended. 34 These twin elements are present in the case of the Cuis, and indubitable proof thereof is extant in the records of the case.
The members of the Metrodiscom Intelligence Security Team (MIST), namely, Lt. John P. Campos, Lt. Michael Ray B. Aquino, Sgt. Narciso L. Ouano, Jr., Sgt. Felipe Honoridez, Sgt. Armando Ballon, Sgt. Oscar Dadula, Cpl. Jeremias Canares, and Sgt. Catalino Ybanez, executed a Joint Affidavit dated December 18, 1990 stating, among other things, that "the couple Leonilo and Beverly Cui, although denying knowledge of the kidnapping revealed that Toto Garcia is their Compadre" and that "they also turned over to us the amount of P10,000.00 representing that given to them by Toto Garcia out of the ransom money". 35
This statement charging the Cuis with having partaken of the ransom money was not denied either in the Counter-Affidavit of Leonilo Cui dated February 15, 1991 or in the Counter-Affidavit of Beverly Cui of the same date. In his Counter-Affidavit, Leonilo Cui even admitted that he knew that Toto Garcia and Basingan had held secret meetings in his house and that he had already become suspicious of their acts, but he did not confront them because they treated each other as special friends, they being godfather of each other's children.
In their defense, the Cuis submitted an Affidavit dated February 15, 1991 executed by Myrna M. Limbagan, a niece of Beverly Cui who lived with them in their house in Pardo, Cebu City. But instead of exonerating the Cuis, this Affidavit inculpates them as it states in paragraph 10 that "on December 7, 1990, Toto Garcia, Eduardo Basingan and other persons visited the residence of the Spouse[s] Cui[s] and handed some amounts of money to the couple". 36 Significantly, it is Limbagan, a witness for the defense, who corroborates the incriminating statements made by the members of the Metrodiscom Intelligence Security Team in their Joint Affidavit.1wphi1.nt
Realizing the aggravation caused them by the affidavits of Limbagan and the members of the Metrodiscom Intelligence Security Team, the Cuis jointly executed a Supplement Counter-Affidavit 37 dated April 24, 1991 this time denying that they profited in any way from the kidnapping of Stephanie Lim. They explained that they turned over the sum of P10,000.00 to Lt. Michael Ray Aquino not as their share in the ransom money but as a "bribe" to prevent the members of the Metrodiscom Intelligence Security Team from further inflicting physical harm on the person of Leonilo Cui. In her testimony in open court, Beverly Cui claimed that she and her husband were arrested on December 14, 1990 at their residence in Pardo, Cebu City but that she was later released by the members of the Metrodiscom Intelligence Security Team so that she could withdraw money from the bank to them in exchange for her husband's freedom.
Two of the members of the Metrodiscom Intelligence Security Team, Sgt. Narciso Ouano and Sgt. Catalino Ybanez, testified rebutting the claim of Beverly Cui. Sgt. Ouano testified as follows: FISCAL ADLAWAN: xxx xxx xxx Q How about this P10,000.00 which according to you was recovered from the accused Cui couple? xxx xxx xxx Q How did you come into possession which according to you came from the Cui couple? A The P10,000.00 was turned over to us by Beverly Cui. Q Did Beverly Cui say anything when this P10,000.00 was handed to you? A She told us that the P10,000.00 represents the money given to her and her husband by Toto Garcia. Q And did you inquire from Beverly Cui why did Toto Garcia gave [sic] them P10,000.00? A They told us that Toto Garcia gave it to them sometime on December 7 and that was the share from the loot in the kidnapping. COURT: Q Was it given to them? A The couple told us it was given by Toto Garcia as their share of the ransom money as a result of the kidnapping of Stephanie Lim. xxx xxx xxx FISCAL ADLAWAN: Q Was Beverly Cui already under arrest when she gave you this information? A No, Sir. It was her husband who was held then. She was free. 38
For his part, Sgt. Catalino B. Ybanez testified in the following manner. COURT: Are you familiar with the P10,000.00? A Yes, sir. COURT: You mean the money given? A The money was turned over by Beverly Cui to Lt. Aquino, sir. COURT: In your presence? A Yes, sir. COURT: What did she tell Lt. Aquino? A She told Lt. Aquino that the money was for the ransom money which was given to him by Toto Garcia. COURT: Now, what was the remark of Lt. Aquino? A He accepted the money, sir. He accepted the money and he told the couple if he could execute an affidavit regarding their participation in the involvement of the kidnapping. COURT: What was the answer? A Actually, the couple denied the involvement, sir, but he was given the money. COURT: What was the answer of Beverly Cui to Lt. Aquino when it was mentioned that the P10,000.00 was a part of the stolen money? The answer of Beverly Cui to Lt. Aquino, what else did Beverly Cui say, did he tell Lt. Aquino? A The money was given to her. Q Was he made to execute an affidavit? A Actually he denied the involvement. COURT: But as you said, now, why did Lt. Aquino ask Beverly Cui to execute an affidavit that the P10,000.00 was a part of the ransom money? A Lt. Aquino told the couple go execute an affidavit. COURT: What was the answer of Beverly Cui? A They denied the[ir] involvement. xxx xxx xxx COURT: What is the remark of Beverly Cui? A According to Beverly Cui and Leonilo B. Cui, that they were not involved in the kidnapping, sir. xxx xxx xxx FISCAL ADLAWAN: xxx xxx xxx Q Now, Beverly Cui and Leonilo Cui testified in court that Beverly Cui was released on the same evening that she was arrested by your team, what do you say to this? COURT: Was she released? A She was released, your Honor. COURT: Beverly Cui? A On assurance that she will help in looking [for] the group of Toto Garcia, your Honor. Q What was the result, or was she able to locate the group? A She pointed to us to the house of the wife of Toto Garcia, but during the raid, unfortunately, Toto Garcia was not in their house. Q Who guided you to the house of Toto Garcia? A Beverly Cui, sir. Q Where is this house located? A Basak, sir. Q Was this the same house where those articles were raided and confiscated or recovered including the firearm owned by the complaining witness Johnny Lim already marked as Exhbit "A", a .22 caliber for the prosecution, is this the house? A Yes, sir. Q Had it not been for Beverly Cui, you would not be able to locate the house of Toto Garcia? A No, sir. Q Now, did Beverly Cui show to you any bank book? A Yes, sir. Q How many bank books were shown? A At first about 5 bank books, sir. xxx xxx xxx COURT: You stated that this P10,000.00 received by Cui was a part of the ransom money lifted only from the admission of the Cuis or the Cuis plus other parties? A By the Cuis, sir. COURT: No proof that the Cuis are beneficiaries of Lt. Aquino? A Only the couple, your Honor. COURT: In other words, you learned the P10,000.00 only when the money was returned by Beverly Cui? A During the confrontation the couple admitted that they have that other passbook, the P10,000.00, sir. COURT: I'm referring of (sic) the admission that the P10,000.00 was a part of the ransom money? A Yes, sir. COURT: When did you learn that it was a ransom-money? At the time the money was returned or before the return? A At the time when there was a confrontation, sir. COURT: What do you mean by confrontation? A When we confronted the accused, sir. COURT: The Cuis? A Yes, and she admitted she has with her in the bank, the P10,000.00. xxx xxx xxx COURT: You mean an interrogation not a confrontation by you? A Not by me, but by the investigator, sir. COURT: Who was doing the interrogation? A Ouano, sir. COURT: You mean Ouano interrogating the Cuis? Then you were listening? A Yes, sir. COURT: You heard the Cuis that they were given money by Toto Garcia and the money is in the bank. A Yes, sir. 39
Significantly, it is again the Cuis themselves, in their Motion for Reconsideration dated December 2, 1993, who corroborated Sgt. Ybanez's claim that Beverly Cui was temporarily released for the particular purpose of accompanying the police to the hideout of Toto Garcia and his men. Thus, in par. 5 of their Motion for Reconsideration, they allege that ". . . Beverly Cui was temporarily released from custody in order for her to lead the police to the hideouts of the other suspects of the crime". 40
As accessories to the consummated crime of kidnapping for ransom, the penalty imposable upon Leonilo and Beverly Cui is two degrees lower than that prescribed by law. 41 Under Article 267 of the Revised Penal Code, as amended, the penalty shall be death where the kidnapping was committed for the purpose of extorting ransom. However, when the crime was perpetrated in December 1990, the death penalty has been suspended by the 1987 Constitution and commuted to reclusion perpetua. Since no modifying circumstance is appreciated for or against the Cuis, the imposable penalty should be in the medium period of the indeterminate sentence applicable under Republic Act No. 4103, as amended. 42
Finally, while we affirm the conviction of the Cui spouses, we acquit Obeso and Sarte.
The only evidence linking Obeso and Sarte to the kidnapping of Stephanie Lim is Basingan's sworn statements that a certain Leos and a certain Laring were among the lookouts who stood as guards outside the house of the Lims while Toto Garcia and his group were inside. Basingan's sworn statements are hearsay, hence, inadmissible in evidence against his co- accused because he escaped before he could take the witness stand.
Except for Basingan who could not even give the real names of Obeso and Sarte and just referred to them as Leos and Laring, respectively, no one really knew them. And significantly, no prosecution witness identified them, not even Stephanie Lim. She never saw any of them during the robbery or in the house where she was detained. Her testimony runs, viz.:
DIRECT EX. BY FISCAL ADLAWAN xxx xxx xxx Q What else took place? A The blindfolded me and handcuffed me and brought me out, sir. Q What do you mean when you said you brought out, out of your residence? A That is correct, sir. They brought me to another place. Q By what means? A Our Fiera, sir. Q You owned the vehicle? A Yes, sir. Q While you were brought to (sic) outside, were you able to recognize one of them? A No, sir, because I was blindfolded. Q Was there an instance when your blindfold was taken off? A When I was placed in a room. xxx xxx xxx Q And how long did you stay in that house where you were brought by those persons known as Toto Garcia and others? A From dawn until afternoon. xxx xxx xxx COURT: What happened when you were brought back to your house? A Few days after I was asked to identify the house and the room where I stayed. Q You were brought to that place [a] few days after? A Yes, sir. Q Who were with you when you were brought to that place? A Members of the Metro Discom, sir. Q When you were brought to the place again [a] few days after you were released, did you come to know who occupied that room? ATTY. GONZALES: Hearsay, your Honor, she has no personal knowledge, whatever information given to her that's not of her own, your Honor. COURT: Let us find out, if she knows. A Laring, sir. xxx xxx xxx COURT: Cross? CROSS BY ATTY. GONZALES xxx xxx xxx Q And you mentioned of a certain Laring, you agree with me that this Laring was identified to you by people of the Metro Discom? A Yes, sir. Q And the people at the Metro Discom meaning the police officers, told you that it was Laring who occupied the place where you were allegedly brought, right? A Yes, sir. COURT: I can not hear. WITNESS: Yes, sir, occupied by Laring. Q You have not seen Laring? A Yes, sir. Q You have not seen Laring, you mean no? A Yes, sir. xxx xxx xxx Q Now, you mention, no. Now, in your house where this incident allegedly took place, you only saw Toto Garcia? A Yes, sir. Q You could not identify anybody there? A No, sir. xxx xxx xxx 43
Obeso and Sarte interposed the defense of alibi. They asseverated that in late November, 1990, they left the house they were renting in Linao, Minglanilla, Cebu and went to Banilad, Bacong, Dumaguete City where the parents of Sarte reside. It was there, in March 1991, that they were arrested.
The prosecution never rebutted the claim of live-in partners Obeso and Sarte that they were in Bacong, Dumaguete City as early as November, 1990. No direct evidence has been proffered by the prosecution to place Obeso and Sarte at the scene of the crime. Their alibi has to be given credence.
WHEREFORE, the Decision of the Regional Trial Court of Cebu City, Branch 18, dated December 6, 1993, in Criminal Case No. CBU-20464, is MODIFIED. Appellants Leonilo and Beverly Cui are CONVICTED as ACCESSORIES and are ORDERED to serve the indeterminate sentence of two (2) years, four (4) months and one day of prision correccional, as minimum, to eight (8) years and one day of prision mayor, as maximum. Appellants LUIS OBESO alias "LEOS", and HILARIA. SARTE, alias "LARING" are ACQUITTED and if presently detained, they are ordered immediately released from detention unless other legal reasons exist to detain them. The Director of Prisons is ordered to inform this Court within ten (10) days from receipt of this Decision his compliance. No costs.1wphi1.nt SO ORDERED.
G.R. Nos. 106210-11 January 30, 1998 PEOPLE OF THE PHILIPPINES, plaintiff- appellee, vs. ROBERTO "RAMBO" LISING, RODOLFO MANALILI, FELIMON GARCIA, ENRICO DIZON, and ROBIN MANGA,accused- appellants.
KAPUNAN, J.: The parents of Cochise and Beebom must have lifted their sorrowful faces heavenward and blurted out an anguished cry: "Oh God! Why must it be they, so young, so loving, so beautiful and so promising, to be brutally snatched from our embrace and never to be seen again?"
Cochise, whose full name was Ernesto Bernabe II, was 26 years old on the fateful day of April 26, 1990 and Ana Lourdes Castaos, or Beebom to her family friends, was 22. Cochise had just graduated from the University of the Philippines with a degree of Bachelor of Laws and was reviewing for the bar examinations, while Beebom was a graduating student at the College of Mass Communications from the same university. Both excelled in academic and extra-curricular activities.
The senseless and gruesome killing of the young man and woman, both full of promise, horrifies us. But what makes this crime more despicable in our eyes is the involvement of people sworn to uphold the law.
For the crimes for which they were charged and sentenced, appellants now come to this Court asking us to give their case a second look, insisting on their innocence.
Sometime in March, 1990, Rodolfo Manalili, a businessman asked Felimon Garcia, his townmate, if he knew somebody who could allegedly effect the arrest of one Robert Herrera, the suspect in the killing of his brother, Delfin Manalili.
Felimon Garcia said he knew one and arranged a meeting with him.
On April 21, 1990, Felimon Garcia called up Manalili and informed him that he already contacted a policeman to help him and said that the policeman wanted to talk to him. So an appointment was set at 12:00 p.m. of April 22, 1990 at Dau Exit, North Expressway, Mabalacat, Pampanga.
On said date Manalili, together with his son Richard, arrived at the Dau Exit at about 12:30 p.m. of April 22, 1990. Felimon Garcia was already there waiting for Manalili.
They proceeded to the Golden Palace Chinese Restaurant where they would meet Roberto Lising. They, however, had to change venue because Roberto Lising's live- in-partner, Ligaya Fausto and other companions were in the restaurant. So they went instead to a nearby carinderia and instructed Felimon Garcia to follow them there.
Shortly, Felimon Garcia arrived and introduced Roberto Lising, Enrico Dizon and another man armed with a service pistol to Manalili. During the meeting, Manalili offered to pay them P50,000.00 for the job. Initially, Manalili gave them P2,000.00 and instructed them to go and see Vic Nabua,* his employee who will point them the person to be arrested.
On April 23-24, Lising's group went to Quezon City and met with Vic Lisboa. They conducted a surveillance on the Castaos residence in the hope of seeing Herrera. Failing to do so, the group was asked to come back the next day.
On April 25, the same group arrived at the vicinity of the Castaos residence at around 5:00 p.m. to resume their surveillance. Two hours later, Lisboa alerted the group after allegedly spotting Herrera entering the Castaos residence.
Later, the group saw a man and a woman who happened to be Cochise and Beebom leave to the Castaos residence in a green box type Lancer car. The group followed the Lancer car with Lising, Dizon and Manga riding in a black car and Lisboa and Garcia in a motorcycle.
The Lancer car went to Dayrit's Ham and Burger House on Timog Circle, Quezon City where the couple intended to have dinner. Alighting from the car, they were accosted by Dizon and Manga who were both carrying firearms. Amidst protestations, Dizon poked his gun at Cochise, handcuffed him, and shoved him into the car. Beebom protested loudly at the arrest and was also shoved into the back of the car.
The young couple's failure to go home that night and the next day alarmed their parents, so a search was then initiated by close friends and relatives inquiring from hospitals, restaurants, friends' houses and possible places where the couple would go.
One group chanced upon Dayrit's Ham and Burger House where they were told that a couple who fitted their descriptions were taken by three (3) men believed to be from the military in the evening of April 25, 1990.
The abduction of Cochise and Beebom hit the front pages. Appeals by the parents to locate them reached the authorities where all possible angles of their disappearance were explored but there were no significant leads. After about two (2) months of futile search for their whereabouts, a break came on June 21, 1990 when two (2) security guards working in a Shellane Warehouse in San Fernando, Pampanga went to see Ms. Rosie Bernabe at her Pasay City Hall office and had information concerning her son, Cochise. Mrs. Bernabe referred the two guards to the CAPCOM who interviewed them.
The two guards told the CAPCOM that their friends Raul Morales and Jun Medrano, both employees of Roberto Lising, informed them that Lising killed a mestisuhin man and a woman in their warehouse.
On June 23, 1990, Raul Morales was picked up and told his story. In a sworn statement executed on even date, he stated that he was a pahinante residing in the warehouse where LPG cylinders are stored, located near Valle Verde Drive-In Lodge in San Fernando, Pampanga, owned by Ligaya Fausto, common-law wife of Roberto Lising alias "Rambo." In the main, he said:
21. T: Sa ikaliliwanag ng pagsisiyasat na ito, maaari bang isalaysay mo ang sinasabi mong hindi pangkaraniwang pangyayari?
S: Nangyari yan alas 2:00 ng madaling araw ng 26 April 1990 natutulog ako, nang mayron kumatok sa pinto ng bodega at nagising ako. Tinawag ko si Aida Morales para buksan ang gate tapos sabi ni Aida "Ikaw na lang ang magbukas" pagkatapos kinuha ko yung susi sa kanya para buksan yong gate. Noong binubuksan ko yong gate sabi sa akin ni Roberto Lising, "Bakit ang tagal mo" tapos pakabukas ko ng gate pumasok yong dalawang kotse, una yong itim pagkatapos yong green na kotse na Lancer, tapos unang bumaba sa kotse na itim si Rambo, pangalawa si Felimon bumaba sa kotse na Lancer may dala na pala. Pagkatapos lumabas ng gate si Felimon may dala na pala. Si Rambo naman binuksan yong dalawang pinto ng kotseng itim bumaba yong babae at saka yong lalaki hinila palabas ni Rambo. Pagkatapos tinalian niya ng alambre bukod pa sa pagtali ng alambre pati pa yong mukha tinalian ng damit. Pagkatapos pagtali ni Rambo, biglang dumating si Felimon dala pa yong pala pagkatapos sininyasan si Rambo na ilabas na iyong lalaki. Dinala ulit ni Rambo ang pala noong palabas na sila noong lalaki. Pagkatapos ayaw nga lumabas ng lalaki, itinulak ni Rambo papunta sa labas, sabi naman ng babae maawa naman po kayo sa amin dahil wala kaming kasalanan" pagkatapos tinutukan ni Rambo yong babae at sabi "Putang ina mo, wag kang maingay, papatayin rin kita". Noong dinala na ni Rambo, umiiyak na lang yong babae. Mga kalahating oras bago bumalik si Rambo sa bodega na hindi na kasama yong lalaki. Nakahubad siya at pinapawisan, bukod pa yan, naghugas pa ng kamay siya. Pagkatapos nag-usap-usap silang tatlo, si Rambo, si Felimon at yong kasama ni Rambo. Pagkatapos nagsabi si Rambo sa akin na buksan na ang gate at aalis na sila. Binuksan ko ang gate at nagsakayan sila sa kotse, si Rambo sa itim at saka yong babae, sa Lancer naman ang nakasakay yong kasama niya at si Felimon, at pagkatapos lumabas na sila, tuloy tuloy na umalis. 1
On June 25, 1990, the body of Cochise was exhumed. An autopsy was conducted where the finding was: Cause of Death: "Multiple Stab Wounds"
The next day, Beebom's body, which was in an advanced decomposing stage was exhumed from a shallow grave, two (2) kilometers from where Cochise's body was found.
After evading arrest the previous days, Roberto Lising was finally apprehended on June 30, 1990. In a Sworn Statement executed on the same day at Camp Bagong Diwa, Bicutan, he implicated Felimon Garcia and Rodolfo Manalili. According to him, this is what happened:
. . . at about 11:00 o'clock in the evening of April 25, 1990, he received a telephone call from FELIMON GARCIA informing that he and his companions were at Valle Verde Lodge at San Fernando, Pampanga and that they have a problem. He immediately went to that place and saw FELIMON GARCIA who introduced to him RUDY MANALILI who was then accompanied by six (6) other men; that he saw a yellow Mercedez Benz, a black Torana and a green Lancer; that on board the Lancer were a man and a woman who were blindfolded and were introduced to him by RUDY MANALILI as ROBERTO HERRERA and JOY MANALILI; that they proceeded to one of the rooms of the motel where MANALILI told him that the two persons should die because they killed his brother DELFIN MANALILI; that afterwards RUDY MANALILI paid the chit and they proceeded to the warehouse at Villa Victoria, San Fernando, Pampanga, owned by LIGAYA FAUSTO where he bound COCHISE and led him to the back of the warehouse; that MANALILI stabbed COCHISE and he acted only as a look-out; that FELIMON GARCIA and another person brought the blindfolded woman to Brgy. San Agustin where she was killed; that before he, FELIMON GARCIA and RUDY MANALILI parted ways, MANALILI told him to take care of the Lancer, change its color and later he will get it and after that he was given P40,000.00 in check which he encashed at the UCPB Diliman Branch, Quezon City on April 26, 1990; that he gave P15,000.00 to FELIMON GARCIA and kept the rest; that he had the Lancer repainted and used it. 2
Thereafter, the manhunt for Felimon Garcia and Rodolfo Manalili began. One by one, the men responsible for the killing of Cochise and Beebom fell into the hands of the authorities.
On January 4, 1991, Garcia surrendered and was brought to the NBI. He named Pat. Enrico Dizon as the companion of Lising when Cochise and Beebom were kidnapped and brought to Valle Verde Lodge. He refused to make a statement or give further information until Rodolfo Manalili was arrested.
On January 16, 1991, Enrico Dizon was turned over by his superiors to the NBI. He named a certain CIC Robin Manga as one of their companions and owner of the car they used when Cochise and Beebom were kidnapped. Thus, Manga was also picked up.
Meanwhile, Rodolfo Manalili, who was in Australia at that time was fetched by then NBI Director Alfredo Lim and Atty. Diego Gutierrez after proper representations were made with the Australian police.
On January 17, 1991 Felimon Garcia, with the assistance of his counsel, Atty. Redemberto Villanueva, executed a statement revealing that:
. . . he met RODOLFO MANALILI sometime in April 1987 in his office at No. 71 Mapang- akit Street corner V. Luna, Quezon City while soliciting contribution for the Barangay fiesta of San Isidro, Minalin. The relationship continued until he was requested by MANALILI to look for persons who could help in arresting ROBERTO HERRERA, the suspect in the killing of his brother DELFIN MANALILI. He contacted ROBERTO LISING alias RAMBO, a policemen assigned with Pampanga PC Intelligence Unit, thru LIGAYA FAUSTO, his relative and live-in-partner of LISING, to help in the arrest of HERRERA, and on April 21, 1990, while in the residence of LISING, he placed a long-distance call to MANALILI to inform him that LISING is willing to help. They talked over the phone and agreed to meet the following day in Dao.
He met MANALILI at the Dao-Mabalacat exit and accompanied the latter to LISING, ENRICO DIZON AND ANOTHER MAN ARMED WITH SERVICE PISTOL (.45 CALIBER) AND Armalite. MANALILI, during the meeting, said that VIC NABUA, his employee, will act as pointer of the persons to be arrested and LISING agreed and asked from MANALILI P50,000.00 for the job to which MANALILI agreed. Initially MANALILI gave P2,000.00 to LISING as expenses.
He together with LISING, ENRICO DIZON and the driver of a Tamaraw went to Quezon City on April 23 and 24, 1990, but VIC NABUA failed to spot HERRERA. On April 25, 1990, LISING and DIZON returned on board a black car, Colt Galant (sic) driven by ROBIN MANGA and NABUA finally told them that HERRERA was at a house near the Camelot. After a few minutes of surveillance NABUA approached them and told them to follow the car driven by a man with a woman companion. Said car proceeded to Timog Circle and parked in front of Dayrit Hamburger House, followed by the Colt Galant which they likewise followed on board a motor and handcuffed the man and the woman. Then LISING instructed him to contact MANALILI and to follow them to Pampanga. He, MANALILI and VIC NABUA proceeded to Pampanga PC where they were instructed by the military on duty to proceed to Valle Verde Lodge, San Fernando, Pampanga. There they saw LISING and ERNESTO COCHISE BERNABE and BEEBOM CASTAOS. MANALILI identified them and instructed him and LISING to release COCHISE and BEEBOM and assured that whatever MANALILI promised to LISING WILL BE PAID. Lising AGREED. However, after MANALILI left, LISING told him to bring COCHISE and BEEBOM to a warehouse owned by LIGAYA FAUSTO where COCHISE was killed by LISING. Thereafter BEEBOM was forced by ENRICO DIZON and ROBIN MANGA top board the Galant car which left the warehouse towards Barangay San Agustin.
He and LISING were left in the warehouse and proceeded to the house of LIGAYA FAUSTO at MALIGAYA Village in San Fernando. At about 9:00 a.m. he and LISING went to the warehouse of MANALILI at Xavierville Subdivision, Quezon City and there a check of P40,000.00 was given to LISING who encashed it with Fareast Bank and went to Pampanga. He alighted at Sto. Domingo, Minalin, Pampanga after LISING gave him P500.00. 3
Rodolfo Manalili, on the other hand, with the assistance of Atty. Rodolfo Jimenez manifested on January 18, 1991:
that he met LISING through FELIMON GARCIA whom he requested to look for some police officers who could help in the arrest of ROBERTO HERRERA, the accused in the killing of his brother DELFIN MANALILI.
He met LISING together with a certain Pat. ENRICO DIZON of the Guagua police and another police officer in Dau, Pampanga on April 22, 1990, and gave them a sketch of HERRERA. On April 24, 1990, he told GARCIA to postpone their plan against HERRERA due to his forthcoming travel to Germany on April 25. However, at about 10:00 p.m. of April 25, GARCIA came to his office at No. 71 Mapangakit, Diliman, Quezon City and informed that they have already arrested HERRERA with a lady companion and that he was instructed to go to Pampanga, which he did. He was accompanied in his car by GARCIA and VICTOR LISBOA. They proceeded to Valle Verde Hotel in San Fernando, Pampanga, and brought him to Room 213 where he saw a man slumped on the floor with his eyes and mouth covered with tape. The lady companions sitting on the bed had her eyes also taped. He told LISING that the man is not HERRERA. He was forced to peek (sic) inside the room anew, and this time recognized the woman to be BEEBOM CASTAOS. He pleaded LISING and his companions to release them and would give them whatever amount he promised them.
After he was told that BEEBOM and COCHISE would be released he instructed GARCIA to stay behind and see to it that his instructions were complied with. Then, he returned with VICTOR LISBOA. The following day, at about 8:00 a.m., LISING and GARCIA came to his house and told him that the man and BEEBOM were already released and in turn gave them a Far East Bank check in the amount of P40,000.00.
On April 26, he left for Germany and returned on May 28, 1990. While still in Germany his wife and househelps have been receiving threatening telephone calls and on the first week of June he received a call from GARCIA who gave the telephone to LISING who asked for P60,000.00, otherwise he will kill him or implicate him in the crime.
On June 21, 1990 he left for Hongkong then to Melbourne for fear of his life and that of his family.
He claimed that the police officers he saw in Valle Verde Hotel were Pampanga policemen and not Quezon City policemen. 4
Consequently, two (2) Amended Informations were filed in court against Roberto "Rambo" Lising, Rodolfo Manalili, Felimon Garcia, Enrico Dizon, Robin Manga, and Ligaya Fausto.
Criminal Case No. Q-90-15239
For Carnapping (Violation of Republic Act No. 6539) 5
That on or about the 25th day of April 1990, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the said accused, P/Pfc. Roberto Lising y Canlas, Enrico Dizon, Robin Manga y Quimzon, being then members of the Integrated National Police with Presidential waiver, and Rodolfo Manalili, Felimon Garcia and Ligaya Fausto, private individuals and several Does, conspiring together, confederating with and mutually helping one another, with intent to gain, and without the knowledge and consent of the owner thereof, by means of violence and intimidation against persons, did, then and there, willfully, unlawfully and feloniously take, rob and carry away one G.T. Lancer, with Plate No. PER 942 in an undetermined value and belonging to Ernesto Bernabe II, to the damage and prejudice of the offended party in such amount as may be awarded under the provisions of the Civil Code. 6
Criminal Case No. Q-90-15240 For: Kidnapping with Double Murder 7
That on or about the 25th day of April, 1990, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the said accused, P/Pcf. Roberto "Rambo" Lising y Canlas, Enrico Dizon, Roberto (sic) Manga y Quimzon, being then members of the Integrated National Police with Presidential waiver, and Rodolfo Manalili, Felimon Garcia, both private individuals, and several Does, conspiring together, confederating with and mutually helping one another, did, then and there, willfully, unlawfully and feloniously and for the purpose of detaining Ernesto Bernabe II y Blanco @ "Cochise" and Ana Lourdes Castaos y Jis de Ortega @ "Beebom," kidnap or in any manner deprive them of their liberty and thereafter, pursuant to their conspiracy, took them to San Fernando, Pampanga, and with intent to kill, with treachery, evident premeditation and cruelty, did, then and there stab them several times in the chest and slit open their necks, augmenting their sufferings which were the direct and immediate cause of their deaths and thereafter burying them to prevent discovery, and Ligaya Fausto, also a private individual, knowing the criminal intent of the above-named principal accused cooperated in the execution of the crime by supplying material and/or moral aid, to the damage and prejudice of the Heirs of said victims in such amounts as may be awarded to them under the provisions of the New Civil Code. 8
Upon arraignment, all the accused pleaded not guilty.
In building up their case, the prosecution presented two vital witnesses: Froilan Olimpia, who witnessed the abduction of the young couple at Dayrit's Ham and Burger House; and Raul Morales, the pahinantewho testified on the killing of Cochise.
On May 27, 1991, Froilan Olimpia testified in court and stated that he was 31 years old and was formerly a security guard of Nationwide Security and Investigation Agency. He was assigned at the Rotonda Wine Station, the establishment beside Dayrit's Ham and Burger House along Timog Circle, Quezon City. His tour of duty on April 25, 1990 was from 12:00 noon to 12:00 midnight.
At about 7:00 to 7:30 in the evening, Olimpia was at his post in front of the Wine Station. There was a green box type Lancer car which parked in front of the Dayrit's Ham and Burger House carrying a man and a woman. Then a black car with no license plate parked behind the green car and two men alighted from it carrying guns. They announced that they were policemen, one was carrying a .45 caliber firearm in his holster and the other was carrying a long firearm. These men went towards the green box type Lancer car and handcuffed its driver. He only heard the man being handcuffed retort "Bakit?" When asked about the female companion, he said that his attention was more focused on the handcuffing incident and just later noticed that the woman was already seated at the back of the car. He did not even see the other man driving the black car.
Olimpia further explained that the security guard of Dayrit's Ham and Burger House, Anastacio dela Cruz, was not really able to witness the whole incident since he was busy buying a cigarette stick from a nearby vendor. Just when the latter was returning to his post, the cars were already backing up ready to leave.
He did not tell anyone about the incident nor bothered to report to the authorities since he was aware that the perpetrators were policemen. He came to know about the identities of the man and woman and their disappearance when two female persons were making inquiries about them on April 27, 1990. The next time, another group of people asked him about what he witnessed until he was picked up by the NBI for further questioning about the whole incident.
Raul Morales was presented in court on April 17, 1991. He stated that since March 1988, he had been working for Ligaya Fausto and Roberto Lising as a pahinante or truck helper of Crown Gas Commercial, a dealer of LPG, located in Valle Victoria Village, San Fernando, Pampanga. He knew Roberto Lising to be a policeman and is known by the name "Rambo" Lising. He works as a policeman in the morning and when he returns home after work, helps in delivering gas. During his testimony, Morales was given a clean sheet of paper and a pen where he was asked to make a sketch of his place of work.
At about 2:00 in the morning of April 26, 1990, he was awakened by a knock at the gate of the warehouse. When he opened the gate, two cars came in: a green box- type Lancer car driven by Lising, with Felimon Garcia seated in front, a man and a woman at the back seat of the car; and a black car with Dizon and Manga. After the two cars entered the premises, he saw Lising go behind their sleeping quarters and get a wire. Lising and Dizon then brought Cochise to an area in the middle of the warehouse while Manga led Beebom to another end. After alighting from the car, Felimon Garcia got a spade from the back compartment of the car and went out of the warehouse. Lising and Dizon then removed the handcuffs of Cochise, tied his hands with the wire and blindfolded him with a tape and torn cloth.
Morales further testified that it was Lising who closed the gate but left it ajar. In a little while, he noticed another man enter the gate and walked towards Beebom. He heard the woman plead: "Uncle, maawa po kayo sa amin," while Manga was tying Beebom's hands with the wire. Garcia, after going inside the warehouse, was handed a knife by Lising which he used to stab Cochise on the chest. Lising then retrieved his knife from Garcia and continued to stab Cochise. When Cochise was already dead, the four men, namely Lising, Garcia, Dizon and Manga carried Cochise out of the warehouse. They were away for about half an hour and when they came back, the four men directly went to the well and washed their hands. The four walked towards Manalili and talked with each other. He could not hear the conversation but saw that they grouped themselves together.
Before leaving, Lising called on Morales and told him to close the gate and keep the shoes of Cochise. Lising boarded the green box type Lancer car with Garcia and the woman. He noticed Rudy Manalili walk out of the gate.
On April 26, 1991, the court conducted an ocular inspection of the scene of the crime. Witness Morales pointed to the court how the events transpired from where he was seated.
On the basis of the testimonies of the above witnesses, plus the confessions made in the extrajudicial statements executed by Roberto Lising, Felimon Garcia, and Rodolfo Manalili, the prosecution presented their version of the incident as quoted from the trial court's decision, to wit:
1. The conspiracy to abduct and subsequently kill Ernesto "Cochise" Bernabe II and Ana Lourdes "Beebom" Castaos was hatched sometime in March 1990 when accused Rodolfo Manalili secured the services of accused Felimon Garcia to look for men who would be willing to commit the dastardly deed for a fee. (Exhibits "HH" and "MM")
2. Accused Garcia then set about on his task and contacted accused Roberto Lising and Enrico Dizon for the "job." (Ibid.)
3. At a meeting arranged by Garcia on 22 April 1990, accused Manalili talked with Lising and Dizon at Mabalacat, Pampanga about the details of the conspiracy. (Ibid.)
4. Accused Manalili promised Lising, Dizon and their companions the amount of P50,000.00 for the "job." (Ibid.)
5. Lising and Dizon readily accepted Manalili's using a total of P10,000.00 as downpayment, the balance of P40,000.00 payable after the victims have been kidnapped and killed. (Ibid.)
6. Accused Lising and Dizon then recruited accused Robin Manga to help implement the orders of Manalili. (Ibid.)
7. On 25 April 1990, at around 5:00 o'clock in the afternoon, accused Lising, Dizon, Garcia and Manga, on board Manga's black car, went to the vicinity of the Camelot Hotel at Quezon City. They positioned themselves about 60 meters away from the Castaos residence and waited for the victims. (Exhibit "MM")
8. At around 6:30 o'clock in the evening of the same day, Cochise and Beebom went out of the Castaos residence, boarded Cochise's green colored 1985 Lancer car with plate No. PER 942. (Ibid.) This Lancer car is owned by, and registered under the name of Cochise's father, Fiscal Ernesto Bernabe. (Exhibit "DD")
9. Cochise and Beebom then proceeded toward Dayrit's Ham & Burger House at Timog Avenue, Quezon City. (Ibid.)
10. Accused Lising, Dizon, Garcia and Manga immediately boarded Manga's black car and tailed the green Lancer. (Ibid.)
11. Upon reaching Dayrit's Hamburger House, Cochise parked the green Lancer in front of the restaurant. (T.S.N, 7 May 1991, p. 6)
12. Immediately thereafter, Manga's black car was parked behind the green Lancer. (Ibid.)
13. Accused Dizon, armed with a .45 caliber pistol, and accused Manga, carrying a long firearm, alighted from the black car, proceeded towards the green Lancer and announced that they are policemen. (Id., at 7)
14. While Cochise and Beebom were alighting from the green Lancer, Dizon approached, pointed the .45 caliber pistol at Cochise and handcuffed Cochise's hands behind his back. (Id., at 8)
15. Cochise, visibly surprised and confused, asked Dizon, "Bakit?" (Id., at 14)
16. Accused Dizon ignored the question and rudely pushed Cochise into the back seat of the green Lancer. (Id., at 7-9)
17. Similarly, accused Manga approached Beebom at the other side of the green Lancer, and pushed her into the other back seat of the green Lancer. (Ibid.)
18. Accused Dizon and Manga then boarded the front of the green Lancer, backed the car out of the parking area of Dayrit's Ham & Burger House and drove away towards EDSA. (Id., at 11)
19. Accused Lising and Garcia, on board Manga's black car, immediately followed. (Ibid.)
20. After the forcible abduction of Cochise and Beebom, Garcia informed Manalili of the success of the operation. Garcia further told Manalili to go to a designated place in San Fernando, Pampanga, where Cochise and Beebom will be taken. (Exhibit "MM")
21. Manalili then proceeded to San Fernando, Pampanga on board his gray Mercedes Benz. (Ibid)
22. At around 2:00 o'clock in the morning of 26 April 1990, accused Lising, Dizon, Garcia and Manga brought Cochise and Beebom to a bodega in San Fernando, Pampanga owned by accused Ligaya Fausto. (T.S.N., 18 April 1991, p. 6)
23. At this time, Lising was driving the green Lancer with Garcia at the front seat. At the rear of the car were Cochise and Beebom. (Id., at 8).
24. Manga, on the other hand, was driving the black car, with Dizon beside him. (Id., at 8).
25. After the green Lancer and the black car were parked inside the bodega, Cochise, blind-folded, handcuffed and gagged with several strips of masking tape, was dragged out of the green Lancer by Lising and Dizon towards an area near the toilet. (Id., at 9- 10; T.S.N., 26 April 1991, p. 3).
26. Beebom, on the other hand, was taken by Manga to another area of the bodega where she could not see Cochise or hear what was being done to him. (Ibid.)
27. At this point in time, Manalili arrived, parked the car on the road outside the bodega and walked inside towards Beebom. (T.S.N., 18 April 1991, p. 11).
29. Manalili simply ignored Beebom's plea for mercy. (Ibid)
30. Meanwhile, Garcia went to the back of the green Lancer, got a spade from the truck compartment, and went out of the bodega (Ibid.). Garcia walked towards the back of the bodega and there, dug a shallow grave. (Exhibit "HH")
31. Lising went to the clothesline area of the bodega, got a length of a laundry wire and some clothes which he tore apart and made into makeshift ropes. (T.S.N., 18 April 1991, p. 12)
33. Garcia then returned to the bodega with the spade still in his hands and approached Cochise. (Id., at 14)
34. Lising handed a knife to Garcia, who then stabbed Cochise in the chest. (Ibid.)
35. Lising, appearing dissatisfied, grabbed the knife from Garcia and stabbed Cochise several times in the chest and stomach area, as if telling Garcia how to do it. All this time; Dizon was holding Cochise. (Id., at 14- 15)
36. Cochise then fell to the ground, mortally wounded. (Ibid)
37. Thereupon, Dizon motioned to Manga to help carry the body of Cochise. Manalili then was left to keep watch over Beebom. (Id., at 16)
38. Lising, Dizon, Garcia and Manga brought to the back of the bodega, into the shallow grave dug by Garcia. The four then covered Cochise with soil. (T.S.N., 26 April 1991, p. 6; Exhibit "MM")
39. They then reported to Manalili for final instructions. The order was for all of them to leave. (T.S.N., 26 April 1991, p.18)
40. Beebom inquired about Cochise, Lising and Dizon answered that they had released Cochise, and that they would likewise release her. (T.S.N., 18 April 1991, p. 18; Exhibit "MM")
41. Thus, the five accused left the bodega, Dizon and Manga on board the black car, Manalili in his own car, and Lising, Garcia and Beebom in the green Lancer. (T.S.N., 18 April 1991, p. 18)
42. Later, upon the instructions of Lising, Dizon and Manga took Beebom with them on the black car. (Exhibit "MM") This was the last time that Beebom was seen alive.
43. At around 5:00 o'clock in the morning of the same day, Fausto arrived at her bodega and waited for Lising to arrive. (T.S.N., 18 April 1991, p. 20)
44. About an hour later, Lising arrived on board the Lancer car taken from Cochise. Lising alighted from the Lancer car, proceeded to one of the huts in the bodega where Fausto was staying, and informed Fausto about the taking of the Lancer car. (Id., at 21).
45. After a few minutes, Fausto emerged from the hut and instructed a certain Jun Medrano, one of Fausto's helpers in the bodega, to drive the Lancer car to her house in Maligaya Village, San Fernando, Pampanga, and hide it there. (Id., at 22)
46. Pursuant to Fausto's instruction, Jun Medrano, together with two other helpers of Fausto, Raul Morales, and a certain Nonoy, drove the Lancer car to Fausto's house and hid it in the "barbelan" area of the house. (Id., at 23-24; Exhibit "Y")
47. Meanwhile, satisfied that his orders had been fully implemented, Manalili paid Lising the P40,000.00 balance of the "contract", by issuing a Far East Bank check for the said amount to Lising at around 8:00 o'clock in the morning of 26 April 1990. (Exhibits "K" and "HH")
48. Lising immediately encashed the check and distributed the proceeds among himself and the other accused, Exhibits "K-2" and "MM") 49. The Lancer car taken from Cochise, on the other hand, remained hidden for sometime at the residence of Fausto in Maligaya Village where it was repainted to a light gray color upon the instruction of Fausto. (T.S.N., 18 April 1991, pp. 26-27; Exhibits "CC", "CC-1" to "CC-6")
50. After the Lancer car was repainted to light gray, Fausto's helpers in the bodega, namely, Jun Medrano, Raul Morales, Rudy, Bebot and Arnold, upon Fausto's instructions, pushed the Lancer car for about fifteen minutes to have its engine started. Thereafter, the Lancer car was driven to Fausto's bodega. (T.S.N., 18 April 1991, pp. 28-29)
51. Lising and Fausto thereafter started using the Lancer car in going to the bank and other places in San Fernando, Pampanga. (Ibid.)
52. The Lancer car was subsequently recovered by the PC/CAPCOM and turned over to the custody of Fiscal Ernesto Bernabe. (Exhibits "CC", "CC-1" to "CC-6" and "EE")
53. On 25 June 1990, after two months of frantic and exhaustive search made by the Bernabe family, the body of Cochise was found and exhumed from the grave where Cochise was buried by Lising, Garcia, Dizon and Manga at the back of Fausto's bodega in San Fernando, Pampanga. It was determined during an autopsy that Cochise died to multiple stab wounds in his chest and upper stomach. (T.S.N., 10 April 1991, p. 33; Exhibits "D", "D-1", "E" and "E-1")
54. The next day, also after two months of frantic and exhaustive search made by the Castaos family, the body of Beebom was found and exhumed from a shallow grave about two kilometers from the bodega of Fausto. It was determined during the autopsy that Beebom died of severe hemorrhage, secondary to two stab wounds in the chest. (T.S.N., 10 April 1991, p. 40; Exhibits "1" and "J")
55. Cochise was 26 years old and Beebom was 22 years old when their lives were untimely ended by the accused. Cochise had just finished his Bachelor of Laws degree from the University of the Philippines and was then reviewing for his bar examinations when he was abducted on 25 April 1990. Beebom, on the other hand, was a graduating Mass Communication student of the University of the Philippines when she was abducted on 25 April 1990. Both Cochise and Beebom excelled in academic and extra-curricular activities, their written works having been published in periodicals and other publications. Cochise and Beebom were in the best of their youth and health at the time of their untimely death. (T.S.N., 9 August 1991, pp. 4-7; T.S.N., 23 July 1991, pp. 24-26; Exhibit "II")
56. The Bernabe family, in their attempt to locate Cochise spent a total of P380,000.00. In laying Cochise to his final rest, the Bernabe family spent a total of P632,222.00 for funeral and other expenses. (T.S.N., 9 August 1991, p. 12; Exhibits "LL", "LL-1 to "LL-3")
57. The Castaos family, on the other hand, spent a total of P350,000.00 for the funeral services for Beebom. (T.S.N., 23 July 1991, p. 39) 9
In their defense, the accused policemen claimed that there was insufficient evidence to sustain their conviction. At the same time, each one had an alibi.
Roberto Lising asserted that on April 25, 1990, he took a leave of absence from the office to be able to celebrate his father's birthday in Arayat, Pampanga and stayed there for the night. His father was presented to corroborate his assertion.
Enrico Dizon testified that April 25, 1990 was an ordinary working day for him. He left the office at 5:00 p.m. and headed for home at No. 107 Kamia St., Bgy. Sindalen, San Fernando, Pampanga. In fact, two of his neighbors recounted in court the verbal exchange they had when they saw each other in their neighborhood.
Roberto Manga, meanwhile, averred that it was impossible for him to participate in the commission of the crime since he was still nursing his gunshot wounds sustained in an encounter with lawless elements for about a year already.
Garcia and Manalili did not take the witness stand. They opted to rely on their extrajudicial statements executed the previous days manifesting the absence of criminal intent.
On July 1, 1992, the trial court rendered a decision with the following dispositive portion:
WHEREFORE, premises considered, this Court finds accused RODOLFO MANALILI, ROBERTO LISING y CANLAS, FELIMON GARCIA, ROBIN MANGA y QUIMZON and ENRICO DIZON y ESCARIO, GUILTY beyond reasonable doubt of the crime of Double Murder qualified with treachery and aggravated by evidence premeditation and abuse of public position by Lising, Manga and Dizon, and hereby sentences each one of them to suffer a penalty of double Reclusion Perpetua with all its accessory penalties provided by law (the death penalty having been abolished by the 1987 Constitution); to pay jointly and severally the heirs of Ernesto Bernabe II;
(a) P1,000,000.00 as funeral and other expenses; (b) P50,000.00 as compensatory damages; (c) P500,000.00 as moral damages; (d) P2,000,000.00 for Cochise's loss of earning capacity;
the heirs of Ana Lourdes Castaos: (a) P350,000.00 for funeral and other expenses; (b) P50,000.00 as compensatory damages; (c) P500,000.00 as moral damages;
The Court also finds accused Roberto Lising, Enrico Dizon and Robin Manga GUILTY beyond reasonable doubt of the crime of Slight Illegal Detention aggravated by use of a motor vehicle and hereby sentences each one of them to suffer the maximum penalty of Reclusion Temporal with imprisonment from Seventeen (17) years, Four (4) months and one (1) day to Twenty years, and to pay the cost.
Accused LIGAYA FAUSTO who is charged as an accessory after the fact (not accomplice as alleged by the Prosecution), is hereby acquitted for insufficiency of evidence.
Accused RODOLFO MANALILI, ROBERTO LISING, ENRICO DIZON, ROBIN MANGA and FELIMON GARCIA are given full credit of their respective periods of detention in the service of their respective sentences in this case.
With respect to Criminal Case No. Q-15239 for carnapping, all the accused are hereby ACQUITTED of the crime charged, it appearing that the use of the car was done only to facilitate the commission of the crime of Slight Illegal Detention. 10
In this appeal, the following assignment of errors were made: Roberto Lising contends that:
I. THAT THE HONORABLE TRIAL COURT ERRED IN ADMITTING AND CONSIDERING THE STATEMENTS OF RODOLFO MANALILI (EXHS. "HH", "HH-1" TO HH-25") AND THAT OF FELIMON GARCIA ("MM", "MM-1" TO "MM-14") ADMISSIBLE AS AGAINST ROBERTO "RAMBO" LISING;
II. THAT THE HONORABLE TRIAL COURT ERRED IN DECLARING RAUL MORALES AS A CREDIBLE WITNESS, ALSO AS AGAINST ROBERTO "RAMBO" LISING;
III. THE HONORABLE TRIAL COURT ERRED, LIKEWISE, IN STATING THAT HEREIN APPELLANT IMMEDIATELY ENCASHED THE CHECK AND DISTRIBUTED THE PROCEEDS AMONG HIMSELF AND THE OTHER (EXHS. "K-2" AND "MM");
IV. THE HONORABLE COURT ERRED IN DECLARING THE STATEMENT OF THE HEREIN APPELLANT AS ADMISSIBLE IN EVIDENCE AS AGAINST HIM;
V. THE HONORABLE COURT ERRED IN DECLARING THAT HEREIN APPELLANT (LISING IS EQUALLY LIABLE FOR KIDNAPPING THUS, JIVING (SIC) THE PLACE FOR PURPOSES OF JURISDICTION; AND
VI. THAT THE HON. COURT ERRED IN CONVICTING THE HEREIN APPELLANT (ROBERTO LISING) AS ONE OF ALL THE ACCUSED FOR THE CRIMES OF DOUBLE MURDER AND WITH ENRICO DIZON AND ROBIN MANGA FOR SLIGHT ILLEGAL DETENTION BEYOND REASONABLE DOUBT. 11
Enrico Dizon argues that:
1. THE LOWER COURT ERRED IN GRANTING THE MOTION TO DROP THE NAMES OF ROLANDO KHO, ROLANDO FERNANDEZ, NOEMI PANGAN AND JESUS REMOLACIO FROM THE INFORMATION AND ADMIT AMENDED INFORMATION IMPLICATING ACCUSED-APPELLANT ENRICO DIZON DESPITE CLEAR EVIDENCE OF THE PARTICIPATION OF KHO, FERNANDEZ, PANGAN AND REMOLACIO;
2. THE LOWER COURT ERRED IN ADOPTING THE PROSECUTION'S VERSION OF STATEMENT OF THE FACTS ALTHOUGH THERE WERE MISLEADING STATEMENTS AS PROVED BY THEIR CONTRADICTIONS TO THE TRANSCRIPTS OF STENOGRAPHIC NOTES, AND AFFIDAVITS PRESENTED;
3. THE LOWER COURT GRAVELY ERRED IN NOT CONSIDERING THE PRESUMPTION OF INNOCENCE FOR IT RELIED IN THE WEAKNESS OF THE DEFENSE OF ALIBI, WITHOUT REGARDING THE INCONSISTENCIES IN THE TESTIMONY OF PROSECUTION WITNESSES RAUL, MORALES AND FROILAN OLIMPIA;
4. THE LOWER COURT COMMITTED ERROR WHEN IT GAVE CREDENCE TO THE AFFIDAVITS EXECUTED BY LISING, MANALILI AND GARCIA DESPITE THE FACT THAT THEY WERE NOT PRESENTED AS WITNESSES BEFORE THE LOWER COURT;
5. THAT THE LOWER COURT GRAVELY ERRED IN ADJUDGING THE ACCUSED- APPELLANT GUILTY OF THE CRIMINAL ACTS BASED ON THE DECLARATION OF FELIMON GARCIA'S EXTRAJUDICIAL CONFESSION WITHOUT ESTABLISHING FIRST THE CONSPIRACY TO WHICH ACCUSED- APPELLANT DIZON WAS A PART. 12
Robin Manga asserts that:
I. THE LOWER COURT ERRED IN GIVING FULL WEIGHT AND CREDIT ON THE EXTRAJUDICIAL STATEMENT OF CO- ACCUSED RODOLFO MANALILI AND FELIMON GARCIA DESPITE THE FACT THAT THE TWO DID NOT TAKE THE WITNESS STAND NOR THEIR STATEMENTS OFFERED IN EVIDENCE;
II. THE LOWER COURT ERRED IN HOLDING THAT THE EXTRAJUDICIAL STATEMENTS OF RODOLFO MANALILI AND FELIMON GARCIA "AFFIRMED CONSPIRACY" AMONG THE ACCUSED-APPELLANTS DESPITE ITS UTTER LACK OF EVIDENTIARY VALUE;
III. THE LOWER COURT ERRED IN GIVING FULL WEIGHT AND CREDIT ON THE TESTIMONIES OF RAUL MORALES AND FROILAN OLIMPIA DESPITE THE FACT THAT THE STATEMENTS OF THE TWO ARE REPLETE WITH INCONSISTENCIES, SELF- CONTRADICTIONS AND ARE HIGHLY IMPROBABLE;
IV. THE LOWER COURT ERRED IN FINDING THAT FELIMON GARCIA'S NARRATION OF THE ABDUCTION WAS CONSISTENT WITH THE TESTIMONY OF FROILAN OLIMPIA WITH RESPECT TO THE PARTICIPATION OF ACCUSED-APPELLANT ROBIN MANGA DESPITE STATEMENTS BY OLIMPIA THAT HE SAW QUEZON CITY POLICEMEN ROLANDO KHO AND ROLANDO FERNANDEZ AS THE PERSONS WHO ABDUCTED "COCHISE" AND "BEEBOM" IN THE EARLY EVENING OF APRIL 25, 1990 AND DESPITE THE FACT THAT THE EXTRAJUDICIAL STATEMENT OF FELIMON GARCIA WAS NOT EVEN IDENTIFIED BY THE LATTER DURING THE TRIAL OF THESE CASES;
V. THE LOWER COURT ERRED IN CONSIDERING AS EVIDENCE MATTERS OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHT OF THE ACCUSED- APPELLANT MANGA;
VI. THE LOWER COURT ERRED IN FAILING TO OBSERVE THE PHYSICAL IMPOSSIBILITY OF ACCUSED-APPELLANT MANGA BEING INVOLVED IN THE OFFENSES CHARGED;
VII. THE LOWER COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANT MANGA. 13
Rodolfo Manalili avers that:
I. THE TRIAL COURT GRAVELY ERRED IN GIVING TOTAL CREDIBILITY TO RAUL MORALES AND IN NOT FINDING THAT RAUL MORALES WAS A REHEARSED AND PERJURED WITNESS INSOFAR AS IMPLICATING ACCUSED RODOLFO MANALILI IN THE COMMISSION OF THE CRIME OF DOUBLE MURDER IS CONCERNED;
II. THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT ACCUSED RODOLFO MANALILI DID NOT HAVE ANY CRIMINAL INTENT OF DOING AWAY WITH THE LIVES OF ERNESTO BERNABE II AND ANA LOURDES CASTAOS AND THAT HE LIKEWISE DID NOT HAVE ANY MOTIVE WHATSOEVER IN CONSPIRING TO DO SO;
III. THE TRIAL COURT GRAVELY ERRED IN NOT CONCLUDING THAT ACCUSED RODOLFO MANALILI NEVER ENTERED INTO A CONSPIRACY TO COMMIT THE CRIME OF DOUBLE MURDER NOR DID HE COMMIT ANY ACT/S ON THE BASIS OF WHICH IT CAN BE INFERRED THAT HE ENTERED INTO SUCH A CONSPIRACY TO COMMIT THE CRIME IMPUTED TO HIM;
IV. SINCE THERE WAS IN EFFECT SEPARATE TRIAL OF THE SEVERAL ACCUSED WHO WERE EACH REPRESENTED BY SEPARATE LAWYERS AND CONSIDERING THAT CONSPIRACY BETWEEN MANALILI AND HIS CO-ACCUSED HAS NOT BEEN SHOWN BY ANY ACT OR DECLARATIONDURING ITS EXISTENCE, THE TRIAL COURT GRAVELY ERRED IN TAKING INTO ACCOUNT THE SWORN STATEMENT OF ROBERTO LISING AS EVIDENCE AGAINST RODOLFO MANALILI TO THE EXTENT THAT IT PURPORTS TO ATTEST TO MANALILI'S INVOLVEMENT IN THE CRIME;
V. THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING SPECIAL CIRCUMSTANCES OF THE CASE ON THE BASIS OF WHICH IT CAN BE INFERRED THAT ANOTHER PARTY WHO WOULD BE MOST BENEFITED BY DOING AWAY WITH THE LIVES OF THE VICTIMS, WAS BEHIND THE COMMISSION OF DOUBLE MURDER;
VI. THE TRIAL COURT GRAVELY ERRED IN NOT APPLYING THE WELL-ESTABLISHED PRINCIPLE IN CRIMINAL LAW THAT WHEN THE FACTS AND CIRCUMSTANCES OF THE CASE ARE SUSCEPTIBLE TO TWO REASONABLE INTERPRETATIONS: ONE REASONABLE INTERPRETATION LEADING TO A DECISION OF CONVICTION, AND, THE OTHER REASONABLE INTERPRETATION LEADING TO A FINDING OF ACQUITTAL, THEN THE EVIDENCE OF THE PROSECUTION HAS NOT FULFILLED THE STRINGENT REQUIREMENT OF THE LAW OF PROVING THE GUILT OF ACCUSED RODOLFO MANALILI BEYOND DOUBT AND THEREFORE SAID ACCUSED MANALILI IS ENTITLED TO AN ACQUITTAL; AND
VII. THE LOWER COURT GRAVELY ERRED IN AWARDING INFLATED, UNSUBSTANTIATED, AND SPECULATIVE DAMAGES WHICH ARE NOT RECOVERABLE UNDER EXISTING JURISPRUDENCE. 14
Felimon Garcia contends that:
I. THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT RAUL MORALES WAS A REHEARSED AND PERJURED WITNESS TO MAKE FALSE ASSERTIONS IMPLICATING APPELLANT FELIMON GARCIA IN THE COMMISSION OF THE CRIME OF DOUBLE MURDER;
II. SINCE THERE WAS IN EFFECT SEPARATE TRIALS OF THE SEVERAL ACCUSED WHO WERE EACH REPRESENTED BY SEPARATE LAWYERS AND CONSIDERING THAT CONSPIRACY BETWEEN APPELLANT FELIMON GARCIA AND HIS CO-ACCUSED HAS NOT BEEN SHOWN BY ANY ACT OR DECLARATION DURING ITS EXPERIENCE, THE TRIAL COURT GRAVELY ERRED IN TAKING INTO ACCOUNT THE SWORN STATEMENT OF ROBERTO LISING AS EVIDENCE AGAINST APPELLANT FELIMON GARCIA;
III. THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT APPELLANT FELIMON GARCIA DID NOT HAVE ANY CRIMINAL INTENT NOR MOTIVE WHATSOEVER TO CONSPIRE WITH APPELLANT LISING ET AL TO KILL ERNESTO BERNABE II AND ANA LOURDES CASTAOS BOTH OF WHOM APPELLANT GARCIA HAS NEVER KNOWN OR MET BEFORE APRIL 25, 1990;
IV. THE TRIAL COURT GRAVELY ERRED IN NOT CONCLUDING THAT APPELLANT FELIMON GARCIA PERFORMED THE ACTS ADMITTED BY HIM UNDER THE COMPULSION OF AN IRRESISTIBLE FORCE AND/OR UNDER THE IMPULSE OF AN UNCONTROLLABLE FEAR OF AN EQUAL OR GREATER INJURY AND THEREFORE EXEMPT FROM CRIMINAL LIABILITY; AND
V. EVEN ASSUMING ARGUENDO THAT APPELLANT FELIMON GARCIA IS NOT EXEMPT FROM CRIMINAL LIABILITY, THE LOWER COURT GRAVELY ERRED IN NOT FINDING HIM GUILTY MERELY AS AN ACCOMPLICE OF THE CRIME OF DOUBLE MURDER AND THEREFORE ENTITLED TO A LOWER PENALTY IN VIEW OF THE PRESENCE OF VOLUNTARY SURRENDER, OBFUSCATION, AND LACK OF INTENTION TO COMMIT SO GRAVE A WRONG, AS MITIGATING CIRCUMSTANCES. 15
Basically the present appeal is anchored on three issues: (a) the admissibility of the extrajudicial statements of appellants Manalili, Garcia and Lising; (b) the credibility of prosecution witnesses Froilan Olimpia and Raul Morales and the (c) finding of conspiracy among the appellants.
Extrajudicial statements are as a rule, admissible as against their respective declarants, pursuant to the rule that the act, declaration or omission of a party as to a relevant fact may be given in evidence against him. This is based upon the presumption that no man would declare anything against himself, unless such declarations were true. A man's act, conduct and declarations wherever made, provided they be voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with the truth and it is his fault if they are not. 16
There is no question that their respective extrajudicial statement of Manalili and Garcia were executed voluntarily. They were assisted by their counsel and properly sworn to before a duly authorized officer. They merely relied on their extra-judicial statements and did not take the witness stand during the trial.
Lising, on the other hand, claims that he was coerced and tortured into executing the extrajudicial statement but nothing appears on record that such extrajudicial statement was made under compulsion, duress or violence on his person. Lising did not present himself for physical examination, nor did he file administrative charges against his alleged tormentors which would necessarily buttress the claim of torture in the absence of such evidence. There are in fact indicia of voluntariness in the execution of his extra-judicial statements, to wit: (a) it contains many details and facts which the investigating officer could not have known and could not have supplied, without the knowledge and information given by Lising himself; (b) it bears corrections duly initialed by him; (c) it tends to explain or justify his conduct and shift the blame to his co-accused Manalili. Moreover, the claim that Lising was not assisted by counsel is belied by the fact that the signature of his counsel Atty. Yabut appears in all the pages of his extrajudicial statements.
The rule that an extrajudicial statement is evidence only against the person making it, also recognizes various exceptions. One such exception worth noting is the rule that where several extrajudicial statements had been made by several persons charged with an offense and there could have been no collusion with reference to said several confessions, the facts that the statements are in all material respects identical, is confirmatory of the confession of the co- defendants and is admissible against other persons implicated therein. 17 They are also admissible as circumstantial evidence against the person implicated therein to show the probability of the latter's actual participation in the commission of the crime and may likewise serve as corroborative evidence if it is clear from other facts and circumstances that other persons had participated in the perpetration of the crime charged and proved. 18 These are known as "interlocking confessions."
No doubt that the statements were independently executed and rather identical with each other in their material details. There are also distinct similarities in the narration of events leading to the killings of Cochise and Beebom.
Manalili and Garcia's statements reveal that Manalili wanted to effect the arrest of Robert Herrera; that he asked help from Garcia if the latter knew of policemen who could do the job; that Garcia arranged the meeting with Lising who volunteered to take the job for the promised consideration of P50,000.00; that a downpayment of P2,000.00 was made; that Manalili was informed that Robert Herrera and Joy Ortega were arrested; that Manalili together with Garcia and Nabua proceeded to the PC-INP Headquarters in Pampanga where they were told to proceed to Valle Verde Motel; that they were met by Dizon and Manga at the motel and were told that Herrera was inside the room; that upon discovery that Lising's group had taken the wrong person and recognized Beebom's voice, Manalili pleaded to the group that the victim be released, assuring Lising that the balance P40,000.00 would still be paid; that Lising and his group refused but relented upon Manalili's persistence; that Manalili left for Manila but instructed Garcia to stay behind and ensure the release of the victims; and that the next day Lising went to his office and claimed the balance to which Manalili issued the corresponding check.
Garcia added that after Manalili had left, Lising told him to bring Cochise and Beebom to the warehouse owned by Ligaya where Cochise was killed. Thereafter, they forcibly took Beebom into the car and proceeded to Brgy. San Agustin.
Likewise, we find Lising's statement as corroborative evidence against the others. Except as to that portion where he exculpates himself from any liability stating that it was Manalili and Garcia who actually stabbed Cochise in the warehouse and that he was merely a lookout, Lising's statement is identical as to the other material facts, namely, that Cochise and Beebom were brought to the Valle Verde Motel, blindfolded where he met Manalili and Garcia; that they were brought to the warehouse on board a green box type Lancer car, where Cochise was killed; that Beebom was brought to Brgy. San Agustin where she was eventually killed; that he should take care of the green box type Lancer car and was given P40,000.00 in check.
Nonetheless, the trial court's decision, in convicting all the accused was based not on the aforesaid extrajudicial statements of the accused alone but mainly on the eyewitness account of the two witnesses, Froilan Olimpia and Raul Morales, which the trial court gave weight and credence as bearing the "chime of truth and honesty." Well-established is the rule that the trial court's evaluation of the credit-worthiness of the testimony given before it by witnesses should be accorded great respect. 19 Froilan Olimpia, a security guard of the Rotonda Wine Station, an establishment adjacent to the Dayrit's Ham and Burger House witnessed the abduction of Cochise and Beebom in front of the said restaurant.
He testified that he saw three men in a black car without a license plate drive to Dayrit's Ham and Burger House and park behind the green Lancer car. When the two men alighted from the car, they introduced themselves as policemen to the by- standers, one carrying a .45 caliber firearm in his holster and the other carrying a long firearm. The two men approached the green Lancer car and handcuffed its driver. Olimpia only heard the man say: "Bakit"? He later noticed that the woman was already seated at the back of the car. These two men drove the green Lancer car which was followed by the black car When asked to identify the three me, Olimpia unhesitatingly identified Dizon and Manga.
Q Mr. Witness, on April 25, 1990, where were you employed? A Security Guard of Nationwide Security & Investigation Agency. Q You said you were employed with Nationwide Security & Investigation Agency, as Security Guard on said date where, were you assigned as security guard? A At Rotonda Wine Station, sir. Q Where is this Rotonda Wine Station located? A At Timog Ave., sir. Q What city? A Quezon City, sir. Q You said you were employed as security guard of Rotonda Wine Station, Timog Ave., Quezon City, do you have proof to show that you were a security guard of said Rotonda Wine Station on April 25, 1990? A I have, sir, but it is filed with the agency. Q This Rotonda Wine Station, what establishments are beside this establishment, and let us talk first on the left and then right? A The left side of Rotonda Wine Station is the Dayrit Hamburger house and the right is a drugstore. Q What was your tour of duty on April 25, 1990? A 12:00 noon to 12:00 midnight, sir: Q And did you report for duty on said date? A Yes, sir. Q On or about 7:00 to 7:30 o'clock in the evening of April 25, 1990, what particular portion or Rotonda Wine Station were you posted? A I was at the door, sir. Q Door of what, front or back? A Front door of the Rotonda Wine Station, sir. Q When you said you were at the front door, inside the building or outside? A Outside of the door, sir. Q You mentioned a while ago that on the left side of the Rotonda Wine Station where were posted is the Dayrit Hamburger House, was there a security guard there? A Yes, sir. Q And do you know him? A Yes, sir. Q What is his name? A Anastacio dela Cruz, sir. Q You stated that at 7:00 to 7:30 in the evening of April 25, 1990, you positioned yourself in front or outside the door of Rotonda Wine Station, did you notice anything unusual while you were posting there? A Yes, sir, there was. Q What was that unusual incident that took place, if any? A There was a vehicle parking in front of Dayrit Hamburger house. Q What kind of a vehicle parked there? A Green Lancer, car, box type. Q Where was it parked particularly? A In front of Dayrit Hamburger house, at the side of the street. Q Did you notice the passenger of that green Lancer car? A No, I did not know them, sir. Q But did you have the occasion to look and see them? A Yes, sir. Q How many were they? A Two, sir. Q Were they male and female? A Yes, sir, one man and one woman. Q You said you noticed the car with two persons boarding it, what happened after the vehicle parked on the side of the street in front of the Dayrit Hamburger house? A After they had parked their vehicle, I noticed that another car parked behind that green Lancer car without any plate number. Q Did you notice what kind of a car was that which parked behind the seen Lancer car? A I noticed it was a black car without plate number but I did not notice the make. Q What happened after the black car parked behind the green Lancer car? A Two men from the black car alighted. Q What did the two men do after they alighted? A After they alighted they announced and introduced themselves that they were policemen and they went towards the green Lancer car. Q You said they introduced themselves as policemen, to whom? A To the people around the vicinity, to the by-standers. Q When the two men who introduced themselves as policemen, did you notice if they were armed? A Yes, sir. Q Please tell us what arm or weapon did they carry? A The other one was carrying a 45 firearm on his holster and the other one was carrying a long firearm, I do not know what kind of firearm that long firearm was. Q This person carrying 45 firearm, could you still recall him or his figure or feature? A If I see him again, I could recognize him. Q But can you describe him before this Court? A Yes, sir, he is tall, a little bit dark complexion and with a little mustache. Q You said that if you see that person again, you can recognize him. Will you please look around the courtroom and point to him if he is now inside? A Yes, he is here, sir. Q If he is here, will you please point to him? A Yes, I can point to him. Q Will you please go down from the witness stand, go to him and tap him on his shoulder? A (Witness went down from the witness stand, went to the person and tap the shoulder, who when asked of his name answered as ENRICO DIZON). Q Go back to the witness stand. ATTY. CRESCINI: May we make it of record, Your Honor, that at the time the witness was asked to identify Enrico Dizon, there are many people, at least one hundred in number, standing inside the courtroom closely to each other. FISCAL: I would like to adopt the same manifestation, Your Honor. Q You have identified the person with 45 caliber firearm, the person who was carrying a long firearm, can you still recognize him or can you remember his feature? A If I could see him again, I can recognize him. Q You said that you can see that person with long firearm again, you can recognize him, will you look around the courtroom and tell us if that person you are referring to is here? A Yes, he is here. Q Will you please point to him? A (Witness pointing to a person inside the courtroom who when asked of his name answered as ROBIN MANGA). Q Now, that you identified the two armed men who alighted from the black car and introduced themselves as policemen, what did these two men do after that? A They went towards the parked green Lancer car. Q And what did they do when they went towards the green Lancer car? A They immediately handcuffed the man driving the green Lancer car. Q This person who was handcuffed, were you able to look and see him? A Yes, sir. Q Can you still recognize him if you see him again? A Yes, sir, I can recognize him if I see him again. Q What about a picture, if you are shown a picture of that man who was handcuffed, could you still be able to identify him? A Yes, sir, I can. Q I am showing to you a picture marked as Exh. "X-4" please look at this picture and tell us if you could recognize this picture? A Yes, sir, I know this person. Q Who is this person? A He is Ernesto Bernabe II, sir. Q What relation has this person in this picture and the person who was handcuffed in the evening of April 25, 1990 at the time you saw him? A I know, sir, this person in the picture and the one who was handcuffed refer to one and the same person. Q You said that Ernesto Bernabe was handcuffed, you know where was his companion at the time, who was a woman? A I noticed she was already inside the car. Q What car are you referring, the green Lancer car or the black car without plate number? A The green Lancer car, sir. Q You said you saw the woman, were you able to look and see her that evening? A Yes, sir. Q Would you still be able to identify her if you see her again? A Yes, sir. Q I am showing to Exh. "X-4" will you look at this picture, and tell us what relation has this person in this picture to the one who was together with the man who was handcuffed? A She is the woman I am referring to, sir, whom I saw inside the green Lancer, they are one and the same. Q You said you saw the man whom you identified as Ernesto Bernabe being handcuffed by the two policeman, how far were you from them? A Five armslength (sic), sir. Q By the way, this front of Dayrit Hamburger house and this Rotonda Wine Store, are they lighted at night? A Yes, sir. Q What kind of light illuminates the area? A Mercury lamp, sir. Q How many lights are there? A Many, sir. Q You said there were lights, in the area during nighttime, can you describe to us from your point of comparison in daytime whether it is bright or not more particularly at the time of the incident in question? A It was bright just like daytime, sir. 20
As to the killing of the two victims, Raul Morales' testimony about what transpired in the warehouse in the morning of April 26, 1990 satisfied the trial court beyond reasonable doubt, as being consistent and credible, sufficient to convict all the accused for the crime of murder. He testified positively, that on that fateful morning, two cars entered the warehouse after he opened the gate. Lising and Garcia alighted from the green Lancer car and brought out from the backseat Cochise and Beebom. The other black car carried Dizon and Manga. Soon after, Manalili entered the gate which was left open by Lising, and stood beside Beebom. Cochise, whose hands were tied with a wire was brought to an area far from Beebom's view. He was stabbed by Garcia, and then by Lising. After killing Cochise, the four men carried him out of the warehouse while Manalili stayed with Beebom.
The trial court was even more convinced about the witnesses' credibility after conducting an ocular inspection of the scene of the crime.
ATTY. LLORENTE: Q Now, Mr. Morales, from yesterday's hearing, you mentioned that at about 2:090, April 26, you were awakened by a sound of a motor vehicle and somebody was knocking. Do you recall having stated that yesterday? A Yes, I remember that, sir. Q Now, apart from the sound of the motor vehicle and the knock at the door, what else do you recall? A Somebody called for Aida, Sir. Q What else? A I heard somebody said "Aida you open the door" and she told me "just open the door, Sir. Q And what did you do? A I opened the door, Sir. xxx xxx xxx Q After the gate was opened, what happened? A Two (2) cars got inside, Sir. Q Can you describe the first car that entered the gate. A The first one that got inside was colored green, Sir. Q Do you know the make model or kind of vehicle that is colored green? A It was a Lancer car, Sir. Q Did you notice also who was driving? A Yes, I saw, Sir. Q Who? A It was Roberto Lising, Sir. Q Was there anybody else inside the car? A There was, Sir. Q Who were inside that car? A One was in front and two were at the back seat, Sir. Q The one in front, do you know who was that? A Yes, Sir. Q Who? A Felimon Garcia, Sir. Q Was that the first time that you met this person? A Felimon Garcia? ATTY. LLORENTE: Yes. A That was the third time, Sir. Q Why do you know Felimon Garcia? A Because he is a cousin of Ligaya Fausto, Sir. Q Can you please look around the Courtroom and tell us if you can point to this Felimon Garcia and if you can, please do. That man, Sir. (Witness pointing to a man in white t-shirt who when asked answered by the name of Felimon Garcia). Q What about the two (2) passengers at the back of the Lancer car, who were they? A There was one woman and one man but I don't know their names, Sir. Q Let's go to the man. Did you see his condition? Physical condition, his appearance? A Tall, medium built, good-looking and hairy on the arms. He was wearing white t-shirt and was in shorts, Sir. Q What about the condition under which this person was seated at the back of the car, can you describe that? A I was not able to observe how he was seated, all I know is that I saw him when he went out of the car, Sir. Q What about the other passengers, the woman passenger. Can you describe her. A She was medium built, she was beautiful and fair-complexioned "puti". Q Now, let's go to the second car. Did you notice the driver of the second car? A Yes, Sir. Q Did you recognize this person? A Yes, Sir. Q Would you be able to identify, him? A Yes, Sir. Q Can you please look around if this person driving the second car is in this Courtroom and if so, please point to him. (witness pointing to a man in white shirt who when asked answered by the name of Robin Manga). Q Was there anybody else inside the second car aside from the driver? A There was, Sir. Q Would you be able to identify that person? A Yes, Sir. Q Can you again look around the Courtroom and tell us if that person is present and if so, please point to him. A (witness pointing to a man in stripe shirt who when asked answered by the name of Enrico Dizon). Q Now, the two (2) cars having entered the premises, could you please tell us what happened with these two (2) cars after entering the premises? A I saw Roberto Lising went behind the place of our sleeping quarters and got a wire, Sir. xxx xxx xxx Q How did that woman reach that portion of the Lancer car? Can you describe that? A She was brought to that portion by the companion of Rambo, Sir. Q Who in particular? A That man, Sir, (witness pointing to accused Robin Manga). Q What about the man, how was he brought to that portion which you have identified from the Lancer car? A It was Roberto Lising who brought him there, Sir. Q All by himself? A They were two (2), Sir. Q Who's the second aside from Mr. Lising? A (witness pointing to accused Enrico Dizon). Q After the man and the woman were placed in that position as you described, what happened? A Felimon Garcia came out and he was bringing with him a spade (pala), Sir. Q Did you notice where Felimon Garcia got that spade or pala? A Yes, Sir. Q Where? A They got it from the Lancer car, Sir. Q In what particular portion of the Lancer car? A At the back compartment of the car, Sir. Q Incidentally, Mr. Morales, what happened to the gate? Who closed the gate? A It was they who closed the gate, Sir. Q Did anybody else arrive? A Yes, there were, Sir. Q Who? (witness pointing to accused Rodolfo Manalili) witness pointed to a man in eyeglasses who when asked answered by the name of Rodolfo Manalili. Q Now, this person that you said arrived, how did he arrive? A When he arrive, he went direct to the woman and talked with the woman, Sir. Q Did you hear any conversation between that man as you identified as accused Manalili to the woman that you pointed to here in the sketch? A I only heard "Don't harm us. We have done no wrong". COURT: Who said that? A It was the woman, Your Honor. Q Did you hear how the woman address this man that you have identified as accused Manalili? A Yes, Sir. Q How? A Uncle, please pity us. We have done no wrong. ATTY. LLORENTE: Your Honor please, we heard the witness stating this time in tagalog and could be corrected by the counsels for the accused. May we respectfully request, Your Honor, that that particular portion stated by the witness in tagalog be placed on record also in tagalog. COURT: Place that on record. A Uncle, parang awa mo naman, wala naman kaming kasalanan. Q Did you hear Mr. Manalili say anything when you heard this plea by the woman? A I heard nothing, Sir. Q At that time when this plea was being made, what happened to the person beside the woman? I am referring to the accused that you have identified as Manga. What happened to him? A He was tying her with a wire, Sir. Q Now, let's go back to the man. What happened to him? A Also, he was tied with a wire, Sir. Q Let's talk about accused Lising. Before, this man that you have identified was being tied with the wire, what did Mr. Lising do? A He got wire, Sir. Q Where? A From here, Sir. ATTY. LLORENTE: For the record, Your Honor, witness pointed to the clothesline wire that he previously drew that were attached to hut no. 1. Q What else did Mr. Lising do apart from getting . . . securing those laundry wires? A They got the handcuff and then tied them with the wire, Sir. Q From this area where Mr. Lising got these laundry wires, where did he go? A He went towards the man, Sir. Q And when he was beside the man, what did he do? A He took off the handcuff of the man and tied the man with the wire, Sir. Q Did he remove the handcuff, tied the man with the wire all by himself? A They were two (2), Sir. Q Who is the other person helping Lising? A (witness pointed to Enrico Dizon) Q Could you demonstrate to us how were the hands of this man tied with the laundry wire? A Yes, Sir. Q Please show us, Mr. Morales. (witness placing his two arms behind his waist with crossed wrists) Q Mr. Morales, for clarification. In the event that you know subsequently, much, much later, did you ever come to know who was that man tied with his hands at the back that you have just demonstrated? Did you ever come to know his name later? A Yes, Sir. Q Who? A Cochise and Beebom, Sir. Q What about Beebom? You mentioned Beebom. Who is this Beebom? Who is that Beebom in relation to the person that you have described in that area present at that time? A They were sweethearts, Sir. Q Let me just refer you to the woman that was brought out of the green car, Lancer car. Did you ever come to know his name later on? A When I read it from the newspaper, Sir. Q And what was the name that you were able to read from the paper that made you identified that woman from the Lancer car? A Beebom, Sir. Q What is the complete name? A Beebom Castaos, Sir. Q What about the man. Did you also get her complete name? A Yes, Sir. Q What is his complete name? A Cochise Bernabe, Sir. Q Now, after this man that you have just identified as Cochise Bernabe, after his hands were tied at the back, what else did Mr. Lising and Mr. Dizon do with this man? A Felimon went inside the bodega, Sir. Q And what did Felimon do? A After that, he went towards Lising, Sir. Q And when Felimon approached Lising, what happened? A Felimon was given a knife, Sir. (witness in the vernacular said "kutsilyo"). Q What did Felimon do with the knife? A They went towards the man, Sir. Q And what happened? A Then he stabbed the man once, Sir. Q How? Can you demonstrate? A Yes, Sir. ATTY. LLORENTE: Please do. (witness demonstrating by placing his left hand on the height of his shoulder and making a thrust by his left hand forward). Q What else happened after what you had demonstrated happened? A Rambo grabbed and took the knife from Felimon, Sir. Q And what did Rambo do with the knife? A He also stabbed the man, Sir. ATTY. LLORENTE: Can you demonstrate to us how did he do this? A Yes, Sir. (witness demonstrating by putting his left hand forward at the height of his shoulder and making a forward thrust by his right hand several times). Q Did you notice what portion of Cochise was stabbed when Lising was doing this? A Yes, Sir. Q Where? A Inside the bodega, Sir. "Sa may bodega". xxx xxx xxx 21
The defense, however, would discredit the testimony of Raul Morales alleging that he was not a credible witness considering that there were inconsistencies and improbabilities in his testimony. To them, he was a rehearsed witness, since he was taken from the NBI to the residence of Governor Remulla's son, a good friend of Cochise, as sanctuary during the trial of this case.
Some of the inconsistencies pointed out are as follows: (1) in the sworn statement, Morales claimed that the black car driven by Lising entered the compound ahead followed by the green Lancer car driven by Garcia while he stated in his testimony in court that the green Lancer car was first to enter, driven by Lising with Garcia in the passenger seat followed by the black car with Manga and Dizon on board; (2) in his statement, Morales indicated that he did not see the actual killing of Cochise since the victim was brought out, while he testified in court that Garcia and Lising stabbed the victim inside the compound; (3) Morales made mention of a total of five persons, including the two victims, in the early morning of April 26, while in court, he identified the five accused seen with the two victims.
It has been held that inconsistencies and discrepancies in the testimony referring to minor details and not upon the basic aspect of the crime do not impair the witnesses' credibility. 22 These inconsistencies even tend to strengthen, rather than weaken, the credibility of witnesses as they negate any suspicion of a rehearsed testimony. 23
The defense finds it also improbable for Morales to have witnessed the events at such a vantage point from the steps of the hut, since the perpetrators of a crime would not unnecessarily expose themselves in committing the act to prevent possible identification.
Obviously, it never occurred to Lising at the time that Morales, who was under his control and who was afraid of him, would ever testify against him.
Manalili makes capital of the fact that Morales did not mention him at all in his prior sworn statement as being present at the scene of the crime. For Manalili, the omission of his name was a significant development as it appeared improbable that a vital witness will miss out an alleged perpetrator if indeed he was present at the scene of the crime.
Raul Morales himself admitted later on that there were omissions in his sworn statement made before the CAPCOM because he was afraid of his employer Lising and his companions. Understandably, he was reluctant to volunteer all the information about the killing for fear that he would suffer the same fate of Cochise and Beebom. The initial reluctance of witnesses to volunteer information about a criminal case and their unwillingness to be involved in the criminal investigation is of common knowledge and has been judicially declared as insufficient to affect credibility. 24 Besides, at that time, Raul Morales was merely concerned with bringing out his story without really paying particular attention to the details. He related the his employer Lising and companions brought a man and a woman to their warehouse and killed them both. He saw Cochise's face on the papers and recognized him to be the man whom Lising's group killed. Morales only mentioned Lising and Garcia's names in his sworn statement because they were the only ones known to him. Such omission and discrepancies should not be taken against him. It bears emphasis that a sworn statement or an affidavit does not purport to be a complete compendium of the details of the event narrated by the affiant. 25 It is a matter of judicial experience that a sworn statement being taken ex parte is almost always incomplete and often inaccurate. Thus, discrepancies between the statements of the affiant in his sworn statement and those made on the witness stand do not necessarily discredit him. 26 There is no rule of evidence to the effect that omission of certain particulars in an affidavit or sworn statement would estop an affiant in making an elaboration thereof during the trial. 27 Whenever there is an inconsistency between the affidavit and testimony of the witness, the latter commands greater weight. 28
Roberto Lising discredits Raul Morales as having a motive in implicating him to the crime since "he quelled a rally staged by Morales who was the most arrogant and stubborn of Fausto's employees, seeking an increase in pay". As pahinante in their LPG business, Morales, according to Lising, was oftentimes reprimanded for not doing his job well and held responsible for lost gas tanks.
The motive imputed to Morales is as far- fetched as it is unsubstantiated. It is highly unlikely that Morales, a mere pahinante, if he were arrogant and stubborn, would be tolerated by Lising, the live-in partner of Fausto.
By and large, the defenses raised by the accused do not persuade us. When it comes to the issue of credibility of the witnesses, appellate courts give much weight and respect to the findings of the trial court since the trial court is in the better position to examine real evidence as well as observe the demeanor of the witnesses. 29 With the eyewitnesses' account of Froilan Olimpia and Raul Morales, the culpability of the accused for the crimes charged have been established.
This brings us to the third issue of whether or not there was conspiracy.
Conspiracy is a unity of purpose and intention in the commission of a crime. 30 Where two or more persons come to an agreement concerning the commission of a felony and decide to commit it then conspiracy exists. While direct evidence is not necessary, conspiracy may be inferred from and proven by acts of the accused themselves when during and after said acts point to a joint purpose and design, concerted action and community of interest. 31
Undoubtedly, the trial court did not err in finding the existence of conspiracy in this case. With the interlocking confessions of Manalili, Garcia and Lising, the group came to an agreement to effect the arrest of Robert Herrera for a considerable sum of P50,000.00. The stake-out at the Castaos residence, the tailing of the car, the abduction at Dayrit's Ham and Burger Restaurant and the detention in the Valle Verde Motel and the subsequent killing of the two victims all show that all the accused acted in unison and cooperated with each other towards the accomplishment of a common criminal design. Where conspiracy is established, the act of one is the act of all.
Garcia, for his part, prays that his liability be mitigated on grounds of lack of intent or motive, acts made under the compulsion of an irresistible force, and voluntary surrender, which if considered would make him merely an accomplice to the crime. Unfortunately, these defenses are unavailing.
To be exempt from criminal liability, a person invoking irresistible force or uncontrollable fear must show that the force exerted was such that it reduced him to a mere instrument who acted not only without will but against his will. 32 That compulsion must be of some character as to leave the accused no opportunity for self- defense in equal combat or for escape. 33
Garcia's participation and presence from the time the abduction was hatched, up to the killing of the victims is undisputed. He was very well aware of Manalili's plans. He was instrumental in introducing Lising to Manalili. Likewise, Lising's intentions to silence both Cochise and Beebom at the end upon realizing an alleged mistake was known to him. He did not do anything to deter the commission or to report the crimes immediately thereafter. In fact, he stated that he and Lising saw each other after the incident but never mentioned anything about it, which only goes to show their intention of concealing the crime. Only after several months of being hunted, did he send feelers for his surrender.
Where conspiracy is established, the precise modality or extent of participation of each individual conspirator becomes secondary since the act of one is the act of all. 34 The degree of actual participation in the commission of crime is immaterial. In People v. Degoma, the Court explained:
. . . One who joins a criminal conspiracy in effect adopts as his own the criminal designs of his co-conspirators; he merges his will into the common felonious intent. A person who embraces a criminal conspiracy is properly held to have cast his lot with his fellow conspirators and to have taken his chances that things may go awry and that the offended party may resist or third persons may get killed in the course of implementing the basic criminal design. To free himself from such criminal liability, the law requires some overt act on the part of the conspirator, to seek to prevent commission of the second or related felony or to abandon or dissociate himself from the conspiracy to commit the initial felony. (People v. Salvador, 163 SCRA 574, 580-582 [1988]; People vs. Bazar, 162 SCRA 609, 617 [1988]; People v. Escober, 157 SCRA 541, 567 [1988]; People v. Pelagio, 20 SCRA 153, 159-160 [1967] (Emphasis supplied). 35
For the same reasons, Manalili can not likewise be exonerated from the crime. We have examined carefully the arguments of the Solicitor General in urging Manalili's acquittal, but the facts and circumstances surrounding the case do not support his stand.
We find it difficult to accept Manalili's contention that he had contracted the services of policemen to effect the "legal arrest" of Robert Herrera, the main suspect in the killing of his brother, Delfin Manalili. Equally preposterous is his assertion that upon arriving at the Valle Verde Hotel in San Fernando, Pampanga, he realized there was a mistake in the identities of the persons arrested, so he insisted that they be released. Neither is there factual basis to his claim that he had every reason to protect the life of Beebom, in particular, since the latter is a principal witness against Robert Herrera, the suspect in the shooting of his brother.
In the first place, why did he take it upon himself to employ persons unknown to him to effect the "arrest" of Herrera? The warrant of arrest of Herrera, if one was really issued, was never presented in evidence. In the second place, the surreptitious meeting of Manalili with Lising arranged by Garcia, the surveillance or stake out of the Castaos' residence, the manner of abduction where the victims were blindfolded, handcuffed and gagged at Valle Verde Motel, cannot certainly be considered as acts in the regular performance of their duties as policemen. Thirdly, if it was true that Manalili just wanted the arrest of Robert Herrera, why did he have to seek the assistance of Pampanga policemen? It would have been more logical and expedient to have utilized the NBI or Quezon City Police especially when the alleged warrant of arrest was issued by a Quezon City court. After all, it was not difficult to locate Robert Herrera as he was reportedly frequenting the Castaos' residence in Quezon City. Fourthly, it does not stand to reason why the victims were taken to Pampanga after allegedly being arrested in Quezon City. It would have been more cogent for the appellants to have delivered the victims to the nearest station of the Quezon City Police Department considering that the warrant of arrest was allegedly issued by a Quezon City court. If arrest was really in the minds of the accused, why did they hole-up with the victims in a motel when they arrived in Pampanga? Finally, if they were bent on legally arresting one Roberto Herrera, it was not necessary for them to also take into custody the woman companion of the person they mistook as Herrera.
All these only show that Manalili has premeditated in his mind a more sinister plot than merely effecting a "legal arrest."
It is an unmitigated absurdity for Manalili to pretend that upon his realization of the mistake in their "arrest," he insisted upon the release of the victims since he had every reason to keep Beebom alive. If he had just a bit of concern for Beebom's safety, why did Manalili leave for Manila without bringing her and Cochise with him to make sure that no harm would befall them, knowing fully well of Lising's resolve just revealed to him to silence both victims? What should be nearer the truth is that Beebom and Cochise became aware of Manalili's presence at the motel together with the other accused and this was the added reason why the two had to be eliminated, to do away with having to explain why he was at the scene. His pretension that he wanted to keep Beebom from harm's way because she was to have testified in the prosecution of his brother rings hollow. It cannot be assumed that had she lived she would have testified in court and pointed to Robert Herrera as the killer of Manalili's brother.
In any case, assuming the remote possibility, the mistake in the identity of the victims does not exonerate Manalili pursuant to the rule that one who performs a criminal act should be held liable for the act and for all its consequences although the victim was not the person whom the fellow intended to injure. 36
We are reminded of the rule that the conviction must not rest on the weakness of the defense but on the strength of the prosecution's evidence. In the instant case, apart from its interlocking sworn statements of appellants, Raul Morales' positive testimony that he saw Manalili enter the bodega, and stand beside Beebom, while Cochise was being killed, convinces us with moral certainty that Manalili is equally guilty of the crimes charged. His presence in the warehouse clearly belies his claim that from the motel, he left for Manila already. As against the positive testimony and identification, mere denials of the accused cannot prevail to overcome conviction by the court. 37 The inaction of Manalili where he could have prevented the killings only reveal his complicity to the crime. Manalili is certainly part of a complete whole without whom there would be no Cochise-Beebom double murder case.
Furthermore, the decision of the trial court exonerating Manalili and Garcia for the crime of Kidnapping and finding the rest of the accused guilty for the crime of Slight Illegal Detention only does not escape us. There being conspiracy, all the accused should be equally guilty for the crimes as charged. Unfortunately, we can no longer convict Manalili and Garcia for Kidnapping in consonance with the constitutional right against double jeopardy. Nonetheless, they stand to suffer the penalty of Reclusion Perpetua for the double murder. The crime of Slight Illegal Detention should be qualified to Serious Illegal detention under Article 267 of the Revised Penal Code considering that a female victim was involved.
WHEREFORE, this Court hereby renders judgment as follows: 1. The decision of the lower court finding accused Rodolfo Manalili, Roberto "Rambo" Lising, Felimon Garcia, Robin Q. Manga and Enrico Dizon guilty beyond reasonable doubt of the crime of double murder, including their civil liability is hereby AFFIRMED in toto, and 2. The decision of the lower court finding accused Roberto "Rambo" Lising, Enrico Dizon, and Robin Manga guilty of the crime of slight illegal detention aggravated by the use of motor vehicle is hereby MODIFIED, in that the said accused are hereby declared guilty of the crime of Kidnapping under Article 267(4) of the Revised Penal Code, and are hereby sentenced to suffer the penalty of reclusion perpetua. SO ORDERED.
G.R. No. L-30423 November 7, 1979
THE PEOPLE OF THE PHILIPPINES, plaintiff- appellee, vs. RAMIRO ALEGRE y CERDONCILLO, MARIO COMAYAS y CUDILLAN, MELECIO CUDILLAN y ARCILLAS, and JESUS MEDALLA y CUDILLAN, defendants-appellants.
ANTONIO, J.: This is an automatic review of a decision of the court of First Instance of Rizal, Seventh Judicial District, Branch VII, Pasay City finding all the accused, namely, Ramiro Alegre y Cerdoncillo, Mario Comayas y Cudillan, Melecio Cudillan y Arcillas and Jesus Medalla y Cudillan, guilty of the crime of Robbery with Homicide and sentencing them as follows:
WHEREFORE, this Court finds accused Melecio Cudillan, ,Jesus Medalla, Ramiro Alegre, and Mario Comayas guilty beyond reasonable doubt of ROBBERY WITH HOMICIDE, committed with four (4) aggravating circumstances, not offset by any mitigating circumstance, and hereby sentences all of them to suffer the penalty of death, to be carried out pursuant to the applicable provisions of law, to indemnify jointly and severally the heirs of Adlina Sajo in the amount of P350,000.00, representing the value of the pieces of jewelry unrecovered, to pay jointly and severally also the heirs of Adelina Sajo the amount of P12,000.00. and to pay the costs.
With or without appeal, let this case be elevated to the Supreme Court for review, pursuant to law.
During the pendency of this appeal, Melecio Cudillan died on arrival at the New Bilibid Prison Hospital on August 16, 1970, and the case as against the said accused, insofar as his criminal liability is concerned, was dismissed on August 29, 1974. This decision, therefore, is limited to appellants Ramiro Alegre, Mario Comayas and Jesus Medalla.
This case arose from the death of Adelina Sajo y Maravilla, Spinster, 57 years old, whose body was found in her bathroom inside her house at the Maravilla compound, Ignacio Street, Pasay City, in the early morning of July 26, 1966. According to the Necropsy Report, she died of asphyxia by manual strangulation, and the time of her death was placed between eighteen to twenty-two hours before 12:30 p.m. of July 26, 1966.
Her bedroom was in "shambles," evidently indicating that it was ransacked. The drawers and several cabinets were open, and some personal garments, hadbags and papers were scattered on the floor. No witness saw the commission of the crime. Appellant Ramiro Alegre, who was then living with relatives in one of the rented rooms on the ground floor of the victim's house, was taken to the Pasay City police headquarters for investigation in connection with the case, but was later released that same day for lack of any evidence implicating him in the crime.
During the latter part of July, 1966, Melecio Cudillan was apprehended in Tacloban City, Leyte, in the act of pawning a bracelet, one of the pieces of jewelry taken from the victim. In explaining how he came into possession of the stolen pieces of jewelry, he admitted his participation in the killing and robbery of Adlina Sajo. This appears in his extrajudicial confession before the police authorities of Tacloban City on July 29, 1966 (Exhibits "F", "F-1" and "F-2"). In this statement, which was written in the English language, Melecio Cudillan implicated a certain "Esok" of Villalon, Calubian, Leyte; Jesus Medalla, of Villahermosa, Calubian, Leyte; Mario Cudillan, also of Villahermosa, Calubian, Leyte; one "Danny" Fernandez, of Balaquid, Cabucgayan, Biliran Sub-province; and one "Rammy, " another Leyteno. When brought to Metro Manila and while he was inside the Pasay City police headquarters, Melecio Cudillan again executed an extrajudicial confession (Exhibits "A ", "A-1 " to "A-6" on July 31, 1966. This was sworn to before the Assistant City Fiscal of Pasay City on August 1, 1966. In this second statement, he narrated in detail the participation in the commission of the crime of Jesus Medalla, "Celso" Fernandez, "Rami" and "Mario." According to said statement, the declarant went near the cell within the Office of the Investigation Section, Secret Service Division, and Identified Ramiro Alegre, Jesus Medalla and Mario Comayas as the persons he referred to as Jesus Medalla, "Rami" and "Mario" in his declaration. On the basis of the aforementioned extrajudicial confession of Melecio Cudillan, an Information for Robbery with Homicide was filed by the Special Counsel of Pasay City against Celso Fernandez, alias "Esok," Jesus Medalla y Cudillan, Ramiro Alegre y Cerdoncillo, Mario Comayas y Cudillan, Melecio Cudillan y Arcillas, and one John Doe."
When arraigned on August 10, 1966, Mario Comayas, Melecio Cudillan, Jesus Medalla and Ramiro Alegre entered a plea of not guilty. The prosecution presented nine (9) witnesses. None of them, however, testified on the actual commission of the crime. The recital of facts contained in the decision under review was based principally and mainly on the extrajudicial confessions of Melecio Cudillan. Thus, the details of the planning and the execution of the crime were taken from the "Pasay Sworn Statement" (Exhibits "A", "A-1" to "A-6"). The only evidence, therefore, presented by the prosecution to prove the guilt of appellants are the testimonies of Sgt. Mariano Isla and Hernando Carillo.
The testimony of Sgt. Mariano Isla of the Pasay City police is to the effect that when he was investigating Melecio Cudillan, the latter pointed to Ramiro Alegre, Mario Comayas and Jesus Medalla as his companions in the commission of the crime. According to him, said appellants "just stared at him (Melecio Cudilla) and said nothing."
Q. In what particular place in the Police Department did you have to confront the accused Melecio Cudillan with the other suspects'? A. In the office of the Secret Service Division. Q. When you said there was a confrontation between the accused Melecio Cudillan and other suspects whom do you refer to as other suspects? A. Jesus Medalla, Celso Fernandez, Rosario Dejere and Mario. There was another person Eduardo Comayas. He was also one of those suspects but Melecio Cudillan failed to point to him as his companion. Q. Who were those persons or suspects pointed to by Melecio Cudillan in the Police Department of Pasay City as his companions? A. To Jesus Medalla, Ramiro Alegre and Mario Comayas. Q. When Melecio Cudilla pointed to these persons what did these three persons do? A. They just stared at him and said nothing. (t.s.n., pp. 15-16, Hearing of October 28, 1966). According to the trial court, had the appellants "really been innocent (they) should have protested vigorously and not merely kept their silence." Hernando Carillo, a detention prisoner in the Pasay City jail, declared that the three (3) appellants admitted to him that they took part in the robbery and homicide committed in the residence of the deceased, viz.: ATTY. DEPASUCAT: Q. Do you know the other accused Ramiro Alegre? A. Yes, sir. Q. If he is inside the court room, will you please point him out? INTERPRETER: Witness points to the fellow in the second row, fourth from the left who, upon being asked, gave his name as Ramiro Alegre. ATTY. DEPASUCAT: Q. Did you have any occasion to talk to Ramiro Alegre? A. Yes, sir. Q. Where? A. In the city jail because our cells are also near each other. Q. And what did you and Ramiro Alegre talk about? A. Concerning his case and he told me that he has also anticipated in the commission of the killing of Adelina Sajo. Q. By the way, when did you talk with Ramiro Alegre, more or less? A. About the middle of June. Q. And what else did Ramiro Alegre tell you, if any? A. That he was also inside the room when they killed Adelina Sajo. Q. Now, regarding that conversation you had with the accused Jesus Medalla, when did that take place, more or less? A. About that month also of June, about the middle of June. Q. What year? A. 1967. Q. Do you know the other accused Mario Comayas? A. Yes, sir. Q. Why do you know him? A. He is also one of the prisoners and our cells are near each other. Q. If he is inside the courtroom, will you please point him out? INTERPRETER: Witness indicating to the fellow who gave his name as Mario Comayas. ATTY. DEPASUCAT: Q. Did you have any occasion to talk with the accused Mario Comayas? A. Yes, sir. Q. When was that, more or less? A. In the month of June, about the middle part also of June. Q. And what did you talk about? A. Regarding this case of Adelina Sajo and he admitted to me that he was one of those who planned and killed Adelina Sajo. Q. I see! And what, else did he tell you, if any? A. That while the killing was being perpetrated upstairs he was told to by the door. Q. How about the other accused Melencio Cudillan, do you know him? A. Yes, sir. Q. If he is in court, will you please point him out? INTERPRETER: Witness pointing to the accused who gave his name as Melecio Cudillan. ATTY. DEPASUCAT: Q. Why do you know Melecio Cudillan? A. Because he is with me in one cell. Q. Were you able also to talk with Melecio Cudillan? A. Most of the time because we used to talk about our case. Q. When have you talked with Melecio Cudillan, more or less? A. Three days after my confinement and subsequently thereafter up to about the first week of June, 1967. Q. And what did the accused Melecio Cudillan tell you about this case? ATTY. RAMIREZ: Objection, Your Honor, leading. COURT: Witness may answer, there is already a basis. A. That they were the ones who planned and killed Adelina Sajo. (t.s.n., pp. 286-289, Hearing of July 21, 1967). However, during the trial, Melecio Cudillan repudiated both the Tacloban City and Pasay City sworn statements as the product of compulsion and duress. He claimed that he was not assisted by counsel when he was investigated by the police. Appellants Jesus Medalla and Mario Comayas denied any involvement in the crime. They testified that at the time of the incident in question. they were attending the internment of the deceased child of Ciriaco Abobote. According to Jesus Medalla, he and his companions left the Maravilla compound at 10:00 o'clock in the morning of July 25, 1966 to attend the internment. 'They left the cemetery at about 5:00 o'clock in the afternoon and proceeded directly to his house at Leveriza Street where he stayed the whole night. Mario Comayas confirmed that he and Jesus Medalla were at the house of Ciriaco Abobote in the morning of July 25, 1966, until after 5:00 o'clock in the afternoon when he returned to the bakery where he was employed to resume his work.
Appellant Ramiro Alegre did not testify but presented three (3) witnesses to support his defense. Thus, Urbano Villanueva testified that he was a sub-contractor of Jose Inton for the welding project of David M. Consunji at the Sheraton Hotel construction; that Ramiro Alegre began working at the construction as a welder on July 13, 1966, and that from 7:00 o'clock in the morning to 4:00 o'clock in the afternoon, Alegre worked in the project and that he knew this because he is the foreman and timekeeper in the project. He Identified the Time Record of Ramiro Alegre (Exhibit "1"). Rodolfo Villanueva and Romeo Origenes testified that from 7:00 o'clock in the morning up to 4:00 o'clock in the afternoon of July 25, 1966, appellant Ramiro Alegre was at the Sheraton Hotel construction at Roxas Boulevard. Their testimony is confirmed by the Time Record of Ramiro Alegre (Exhibit "1") which contained the number of hours he actually worked at the Sheraton Hotel construction project.
Appellants now contend that the lower court erred in utilizing the extrajudicial confessions of Melecio Cudillan (now deceased) as evidence against herein appellants; in concluding from the alleged "Silence" of appellants when allegedly pointed to by Melecio Cudillan as "his companions" in the commission of the crime, an admission of guilt; and in giving undue weight and credence to the testimony of an inmate of the Pasay City Jail that appellants admitted to him their participation in the crime.
I The extrajudicial confessions of Melecio Cudillan (Exhibits "A", "A- I " to "A-6" and "F", "F-1" and "F-2"), on the basis of which the trial court was able to reconstruct how Melecio Cudillan committed the crime in question, cannot be used as evidence and are not competent proof against appellants Ramiro Alegre and Jesus Medalla, under the principle of "res inter alios acta alteri nocere non debet" 1 there being no independent evidence of conspiracy. 2 As a general rule, the extrajudicial declaration of an accused, although deliberately made, is not admissible and does not have probative value against his co- accused. It is merely hearsay evidence as far as the other accused are concerned. 3 While there are recognized exceptions to this rule, the facts and circumstances attendant in the case at bar do not bring it within the purview of such exceptions. The only evidence, therefore, linking the appellants to the crime would be their purported tacit admissions and/or failure to deny their implications of the crime made by Melecio Cudillan, and/or their purported verbal confessions to Hernando Carillo, an inmate of the Pasay City jail.
II The next question to be resolved is whether or not the silence of appellants while under police custody, in the face of statements of Melecio Cudillan implicating them as his companions in the commission of the crime, could be considered as tacit admission on their part of their participation therein.
The settled rule is that the silence of an accused in criminal cases, meaning his failure or refusal to testify, may not be taken as evidence against him, 4 and that he may refuse to answer an incriminating question. 5 It has also been held that while an accused is under custody, his silence may not be taken as evidence against him as he has a right to remain silent; his silence when in custody may not be used as evidence against him, otherwise, his right of silence would be illusory. 6 The leading case of Miranda v. Arizona 7 held that the prosecution may not use at trial the fact that an individual stood mute, or claimed his privilege against self-incrimination, in the face of an accusation made at a police custodial interrogation. Prior to Miranda, it was the view of many authorities that a man to whom a statement implicating him in a crime is directed may fail to reply if he is in custody under a charge of the commission of that crime, not because he acquiesces in the truth of the statement, but because he stands on his constitutional right to remain silent, as being the safest course for him to pursue and the best way out of his predicament. 8 Other courts have held that the circumstance that one is under arrest by itself does not render the evidence inadmissible, and that an accusation of a crime calls for a reply even from a person under arrest or in the custody of an officer, where the circumstances surrounding him indicate that he is free to answer if he chooses. 9
We hold that the better rule is that the silence of an accused under custody, or his failure to deny statements by another implicating him in a crime, especially when such accused is neither asked to comment or reply to such implications or accusations, cannot be considered as a tacit confession of his participation in the commission of the crime. Such an inference of acquiescence drawn from his silence or failure to deny the statement would appear incompatible with the right of an accused against self- incrimination.
The right or privilege of a person accused of a crime against self- incrimination is a fundamental right. It is a personal right of great importance and is given absolutely and unequivocably. The privilege against self-incrimination is an important development in man's struggle for liberty. It reflects man's fundamental values and his most noble of aspirations, the unwillingness of civilized men to subject those' suspected of crime to the cruel trilemma of self- accusation, perjury or contempt; the fear that self-incriminating statements may be obtained by inhumane treatment and abuses, and the respect for the inviolability of the human personality and of the right of each individual "to a private enclave where he may lead a private life." 10
In the words of Chavez v. Court of Appeals: 11
... this right is 'not merely a formal technical rule the enforcement of which is left to the discretion of the court;' it is mandatory; it secures to a defendant a valuable and substantive right; it is fundamental to our scheme of justice ...
Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of his own free, genuine will. It must be stressed here that even under a regime of martial law, the operations of our laws governing the rights of an accused person are not open to doubt. Under the code for the administration of detainees, all officers, civilian and military personnel are sworn to uphold the rights of detainees. Among such fundamental rights are the right against compulsory testimonial self- incrimination, the right, when under investigation for the commission of an offense, to remain silent, to have counsel, and to be informed of his rights; the right not to be subjected to force, violence, threats, intimidation and degrading punishment or torture in the course of one's detention, and the safeguard that any confession obtained in violation of the foregoing rights shall be inadmissible in evidence. 12 The 1973 Constitution gives explicit constitutional sanction to the right to silence. Thus, in Section 20 of Article IV of the Constitution, there is this categorical mandate: "Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence."
This privilege against self-incrimination guaranteed by the Constitution protects, therefore, the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty for such silence. 13
This aspect of the right has been comprehensively explained by then Associate Justice Enrique M. Fernando, now Chief justice, in Pascual Jr. v. Board of Medical Examiners, 14 thus
The constitutional guarantee protects as well the right to silence. As far back as 1905, we had occasion to declare: 'The accused has a perfect right to remain silent and his silence cannot be used as a presumption of his guilt.' Only last year, in Chavez v. Court of Appeals, speaking through Justice Sanchez, we reaffirmed the doctrine anew that it is the right of a defendant 'to forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of his own free, genuine will.'
Identifying the right of an accused to remain silent with right to privacy, this Court, in Pascual explained that the privilege against self-incrimination "enables the citizen to create a zone of privacy which government may not force to surrender to its detriment."
We hold, therefore, that it was error for the trial court to draw from appellants' silence while under police custody, in the face of the incriminatory statements of Melecio Cudillan, the conclusion that the aforesaid appellants had tacitly admitted their guilt. We hold, further, that in view of the inadmissibility of the extrajudicial confession of Melecio Cudillan implicating herein appellants, the remaining evidence against them, consisting in the testimonies of Sgt. Mariano Isla and Hernando Carillo, is insufficient to sustain the judgment of conviction. Indeed, it is inherently improbable that herein appellants would have readily confessed their participation in the commission of a heinous crime to a casual acquaintance in a prison detention cell, considering that on the same occasion they strongly denied any involvement in such crime before the police authorities.
WHEREFORE, the judgement appealed from is reversed, and appellants Ramiro Alegre y Cerdoncillo, Mario Comayas y Cudillan and Jesus Medalla y Cudillan are hereby ACQUITTED of the crime with which they are charged. Their immediate release from detention is ordered, unless they or any one of them is otherwise held for some other lawful cause. SO ORDERED.
G.R. No. 120093 November 6, 1997 PEOPLE OF THE PHILIPPINES, plaintiff- appellee, vs. DAVID GARCIA y QUITORIO, accused- appellant.
REGALADO, J.: Accused-appellant David Garcia was found guilty beyond reasonable doubt of having raped herein complainant Jackielyn Ong, 1 a minor, one hundred eighty-three (183) times during the period from November, 1990 up to July 21, 1994, and was correspondingly sentenced to suffer one hundred eighty-three (183) penalties ofreclusion perpetua and to indemnify complainant in the amount of P50,000.00 as moral damages.
In an information dated July 25, 1994, appellant Garcia was charged with the crime of multiple rape allegedly committed as follows:
That from November 1990 up to July 21, 1994, in the City of Olongapo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously have multiple carnal knowledge of one Jackielyn Ong, a minor about twelve (12) years old, to the damage and prejudice of the latter.
Complainant Jackielyn Ong and her younger brother, Darwin, had been abandoned by their mother since birth and when their father Danilo Ong died, the latter's sister, Elizabeth Ong, took them under her care and custody. Jackielyn, who was born on June 3, 1982, was only eight years old when she, together with Darwin and a stepbrother, Allan, were left to the care of herein appellant Garcia, who was then the live-in partner of the victim's aforesaid aunt, when the latter left for the United States sometime in November, 1990. Appellant Garcia stayed with the children in the house of Elizabeth Ong at Fontaine Street, East Bajac-Bajac, Olongapo City. 2
On that fateful day of November 1990, after Elizabeth Garcia had left for the airport, complainant, who was then playing with Darwin outside the house, was called by appellant Garcia who told her to go upstairs. Once there, Garcia ordered her to remove her shirt and panty and, when she refused, the former was the one who removed them. He made her lie on the bed and he then removed his pants and brief. Thereafter, he climbed into the bed with her, spread her legs apart and inserted his private organ into hers. She felt pain when he forced himself upon her and he was moving up and down. Jackielyn narrated that Garcia pulled out his organ when a whitish substance was discharged therefrom. Then he ordered her to put back her shirt and panty. Later, complainant went back to play with her brother.
According to Jackielyn, from November, 1990 up to July 21, 1994, appellant Garcia raped her almost weekly. 3 These incidents happened in all the three places where they lived, that is, at Fontaine Street, East Bajac- Bajac, at 12th Street, Pag-asa, and at #40 14th Street, East Tapinac, all in Olongapo City. 4
On July 21, 1994. Jacqueline was sleeping in bed beside her brother, Darwin, when appellant woke her up, asked her to lie down beside him on the cushion inside the same room where he slept, and had intercourse with her.
Prosecution witness Angelito Ong testified that sometime in May, 1994. his sister Elizabeth Ong called to inform him that their brother in the States met an accident, and he was requested to support and take care of the children because she would not be able to send them money in the meantime. Thenceforth, the children would go to Angelito Ong's house for their food and other needs.
In the evening of July 22, 1994, Angelito was already becoming apprehensive because the children had not yet arrived to get their food. He decided to go to the house where the children were staying but he only saw the children's bags there. The door of the house was locked, and he found Jackielyn and Darwin at a nearby store. When he asked them why they did not get their food, they answered that the house was locked and the key was with appellant Garcia. They likewise told him that Garcia scolded them and would not allow them to go out of the house without the former's permission. Angelito told the children that just because they were getting their food from him, appellant had no right to be angry at them.
Thereafter, Angelito asked Jackielyn if she was having an affair with appellant or if she had been abused by him. When Jackielyn refused to answer and merely kept silent, Angelito took it as an admission that what he was asking her was true, so he brought Jackielyn to the Perpetual Help Clinic for checkup.
It appears that Angelito had already harbored suspicion because sometime in June, 1994, Darwin told him that several times in the past, although Jackielyn slept beside Darwin at night, the latter would wake up in the morning and see her sleeping beside appellant Garcia. At that time, Angelito merely warned Jackielyn that it was not proper for her to be sleeping beside appellant because she was already a big girl. He did not bother to confront appellant about it then because he did not want to appear invidious. Yet even before that, Angelito already thought it odd and suspicious why appellant would not allow the children's relatives to go to their house.
Since the doctor at the Perpetual Help Clinic was not available, Angelito decided to bring the children home. Along the way, Angelito kept on asking Jackielyn if she had been raped by appellant Garcia. At first, Jackielyn refused to answer, but due to Angelito's persistence and after threatening her that he would eventually know once she is examined by a doctor, she finally admitted that she had been raped several times by appellant. He then brought her to the Olongapo City General Hospital where Jackielyn was examined by Dr. Laila Patricio who thereafter issued a medicolegal certificate.
According to Dr. Patricio, the hymen of Jackielyn was no longer intact and, considering that there was no laceration, it was possible that there had been sexual contact for more than five times. She discounted the probability that there had been only one or two contacts, or that the loss of virginity was caused by biking, because otherwise there should have been a laceration. She likewise conducted a "spermatozoa determination" to see if there had been sexual intercourse during the past 24 hours, but the result was negative, although she clarified that the sperm normally stays in the vagina for 24 hours unless the woman washes herself very well. Jackielyn told her, during the medical examination, that she had been raped by the husband of her aunt who was in the States.
From the hospital, Angelito and Jackielyn proceeded to the police station where they filed a complaint for rape 6 against Garcia and later executed their sworn statements. 7 On the strength thereof, Garcia was apprehended in his house at 32 Jones Street, Olongapo City. At the time of his arrest, no formal complaint had as yet been filed in court nor had a warrant of arrest been issued. 8
Appellant Garcia could only offer bare denials to the inculpatory testimonies of the victim and the prosecution witnesses that he raped Jackielyn. He contends, however, that probably the reason why he was being falsely charged was because Elizabeth Ong's family was not satisfied with the way he managed the house entrusted to him and the money being sent by Elizabeth for the support of the children. He rationalizes that as the supposed guardian of the children and with the trust reposed in him by Elizabeth, he could not and would never do such a thing to Jackielyn. In his cross-examination, however, appellant Garcia admitted having sent a letter addressed to Elizabeth Ong and several others, dated August 24, 1994, 9 wherein he disclosed that he and Jackielyn were having a relationship and that he was asking for forgiveness from Elizabeth for what happened between him and Jackielyn.
The conviction of herein appellant is now being controverted and assailed essentially on two grounds, namely, that the information is defective and that the trial court erred in relying on the credibility of the testimony of the victim. 10
I. Appellant avers that the information for multiple rape filed against him is defective for failure to state the exact dates and time when the alleged acts of rape were committed since it was merely stated therein that the offense was committed "from November 1990 up to July 21, 1994." He asserts that each sexual act is a separate crime and, hence, must be proven to have been committed on a precise date and time.
The defense, in support of this argument, relies mainly on Section 11, Rule 110 of the Rules of Court, as revised, which provides: Sec. 11. Time of the commission of the offense. It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit.
It invokes the early case of U. S. vs. Dichao 11 wherein an order sustaining a demurrer to an information for failure to conform to the subscribed form was upheld by the Court, in effect authorizing the outright dismissal of the case, on the ground that: . . . The allegations of an information should, if possible, be sufficiently explicit and certain as to time to inform the defendant of the date on which the criminal act is alleged to have been committed. Unless the accused is informed of the day, or about the day, he may be, to an extent, deprived of the opportunity to defend himself.
While Section 7 of the Code of Criminal Procedure provides that "except when time is a material ingredient of an offense, the precise time of commission need not be stated in a complaint or information, but the act may be alleged to have been committed at any time before the filing thereof," this does not mean that the prosecuting officer may be careless about fixing the date of the alleged crime, or that he may omit the date altogether, or that he may make the allegation so indefinite as to amount to the same thing. Where the exact date cannot be fixed, or where the prosecuting officer is not thoroughly satisfied that he can prove a precise date, he should allege in the information that the crime was committed on or about a date named. Under such an allegation he is not required to prove any precise date but may prove any date which is not so remote as to surprise and prejudice the defendant. In case of surprise the court may allow an amendment of the information as to time and an adjournment to the accused, if necessary, to meet the amendment.
In the case before us the statement of the time when the crime is alleged to have been committed is so indefinite and uncertain that it does not give the accused the information required by law. To allege in an information that the accused committed rape on a certain girl between October 1910 and August 1912, is too indefinite to give the accused an opportunity to prepare his defense . . . Section 7 of the Code of Criminal Procedure does not warrant such pleading. Its purpose is to permit the allegation of a date of the commission of the crime as near to the actual date as the information of the prosecuting officer will permit, and when that has been done any date may be proved which does not surprise and substantially prejudice the defense. It does not authorize the total omission of a date or such an indefinite allegation with reference thereto as amounts to the same thing.
Assuming that this is still good case law, reliance cannot be placed thereon by appellant since the dicta are not squarely applicable to the present case due to factual differences. Taking into consideration the circumstances obtaining herein vis-a-vis the Dichao case, the distinguishing factor which is immediately apparent is the existence of a motion to quash in that case as pointed out in the aforequoted decision. There is no such motion in the case at bar, and this spells the big differences.
The rule is that at any time before entering his plea, the accused may move to quash the information 12 on the ground that it does not conform substantially to the prescribed form. 13 The failure of the accused to assert any ground for a motion to quash before he pleads to the information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of the grounds for a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty, and jeopardy. 14
Perforce, a formal defect in the information not being one of the exceptions to the rule, appellant's failure to invoke the same through a motion to quash is deemed to be a waiver of such objection and he cannot now be heard to seek affirmative relief on that ground. Moreover, objections as to matters of form or substance in the information cannot be made for the first time on appeal. 15
At any rate, even laying aside procedural technicalities and assuming arguendo that appellant Garcia could validly raise this legal question before us, we are still not inclined to apply the ruling in Dichao to the case now before us.
It may readily be inferred from the decision in Dichao that where there is such an indefinite allegation in the information as to the time of the commission of the offense which would substantially prejudice the defense, a motion to quash the information may be granted and the case dismissed without the benefit of an amendment. On the other hand, where there is a variance between the date of the commission of the crime alleged in the information and that proved at the trial, and it is shown to the trial court that the accused is surprised thereby, and that by reason thereof, he is unable to properly defend himself, the court may, in the exercise of sound discretion based on all the circumstances, order the information amended so as to set forth the correct date. It may further grant an adjournment for such a length of time as will enable the accused to prepare himself to meet the variance in date which was the cause of his surprise.
Apparently, that distinction was premised on the theory that the question on whether the allegations of the information are sufficiently definite as to time, and the question which arises from a variance between the particulars of the indictment and the proof, are different in nature and legal effect, and are decided on different principles. It would then result that, on the basis of the foregoing disquisition in Dichao, an amendment will not be allowed, and the motion to quash should instead be granted, where the information is, on its face, defective for failure to state with certainty when the offense was committed, and such ambiguity is so gross as to deprive the accused of the opportunity to defend himself. For all intents and purposes, however, a strict adherence thereto would no longer be a sound procedural practice, especially in criminal proceedings which bears the mandate on speedy trial and wherein the availability of bills of particulars have over time been adopted and recognized.
We believe that the principle laid down in the more recent case of Rocaberte vs. People, et al. 16 involving exactly the same issue, presents the more logical and realistic interpretation of the rules. While the Court there adverted to the Dichao case, it nevertheless resorted to a less restrictive application of the rules by disposing of the case in this wise:
A defect in the averment as to the time of the commission of the crime charged is not, however, a ground for a motion to quash under Rule 116 of the Rules of Court. Even if it were, a motion for quashal on that account will be denied since the defect is one that can be cured by amendment; instead, the court shall order the amendment to be made by stating the time with particularity.
The remedy against an indictment that fails to allege the time of the commission of the offense with sufficient definiteness is a motion for a bill of particulars, provided for in Section 6, Rule 116 of the Rules of Court of 1964. xxx xxx xxx
From all that has been said, the conclusion should be clear. The information against petitioner Rocaberte is indeed seriously defective. It places on him and his co- accused the unfair and unreasonable burden of having to recall their activities over a span of more than 2,500 days. It is a burden nobody should be made to bear. The public prosecutor must make more definite and particular the time of the commission of the crime of theft attributed to Rocaberte and his co-defendants. If he cannot, the prosecution cannot be maintained, the case must be dismissed.
WHEREFORE, the petition is GRANTED, and the writ of certiorari prayed for is ISSUED ANNULLING AND SETTING ASIDE the challenged Orders of respondent Judge . . . , and DIRECTING the amendment of the information in said case by the prosecution within such time as the respondent Judge may deem proper, failing which the criminal prosecution against the petitioner and his co-defendants shall be dismissed (Emphasis supplied).
Conformably thereto, where the allegation in the information as to the date or time of the commission of the offense is so uncertain, indefinite or ambiguous as to constitute a violation of the right of the accused to be informed of the nature and cause of the accusation against him, the proper disposition where a motion to quash is filed on that ground, is for the trial court to overrule the motion and order the prosecution to amend the information by stating the date or time with particularity, within such period as the trial court may deem proper under the circumstances.
This rule finds support in Section 4 of Rule 117 which provides that "if the motion to quash is based on an alleged defect in the complaint or information which can be cured by amendment, the court shall order the amendment to be made." Corollarily, Section 14 of Rule 110 states that "the information or complaint may be amended, in substance or form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the accused."
In the event that the public prosecutor still fails to make the necessary amendment within the time allowed therefor by the court, only then may the court order the dismissal of the case. Hence, if herein appellant Garcia had filed a motion to quash, the case would not require an outright dismissal.
Furthermore, it bears stressing that Section 11 of Rule 110 does not require that the precise time when the offense was committed be stated in the information, except when time is a material ingredient of the offense. In rape cases, the date or time is not an essential element of the crime and, therefore, need not be accurately stated. 17
II. The second issue hinges on the credibility of complainant's testimony. Appellant contends that the prosecution failed to prove multiple rape and that the trial court erred in accepting in full complainant's testimony that she was raped every week during the period earlier stated. It is averred that while complainant remembered the details of the first and last acts of rape, she failed to narrate with similar clarity the other acts that allegedly transpired in the interim.
We are strongly convinced that, based on the testimonies of complainant and the prosecution witnesses, appellant Garcia is guilty as charged. Absolute certainty of guilt is not demanded by the law for conviction of any criminal charge; only moral certainty is required as to every proposition of proof requisite to constitute the offense. 18 Such requirement has been complied with in the case at bar with respect to the criminal acts hereinafter specified. Besides, a prima facie case affords sufficient basis for conviction if not overcome by the evidence of the accused. 19
We have thoroughly examined the testimony of complainant Jackielyn Ong and we cannot but conclude that complainant, in spite of her youth at the time she testified, was very candid, spontaneous and consistent in her testimony in court, both in the direct and cross-examination. Her testimony is forthright, clear and free from serious contradictions. It is a basic rule, founded on reason and experience, that when the victim testifies that she has been raped, she says in effect all that is necessary to show that rape was committed. 20 Thus, if her testimony meets the test of credibility, the accused may be convicted on the basis thereof. On this aspect, it is an accepted precept that testimonies of rape victims who are young and of tender age are credible. Hence, the revelation of an innocent child whose chastity was abused deserves full credence. 21
Nor have we chosen to merely rely on such doctrinal rules. Our conclusion further resulted from a painstaking analysis of the evidence on record. The alleged inconsistency pointed out by appellant, to the effect that complainant remembered the details of the first and last acts of rape but failed to expound on the other violations committed against her, is not sufficient to render her testimony doubtful. Such failure does not necessarily detract from her credibility nor negate the commission of the rape. The testimony of a witness must be considered and calibrated in its entirety and not by truncated portions thereof or isolated passages therein. 22
Rape, as a harrowing experience, is usually not remembered in detail. For, such an offense is not something which enhances one's life experience as to be worth recalling or reliving but, rather, something which causes deep psychological wounds and casts a stigma upon the victim for the rest of her life, which her conscious or subconscious mind would prefer to forget. Thus, a rape victim is not and cannot be expected to keep an accurate account of her traumatic experience. 23 With more reason must we have greater compassionate understanding of herein complainant's plight who, at a very tender age, was mercilessly corrupted by a conscienceless human being with bestial desires.
The failure of complainant to immediately disclose the violations committed against her, and the fact that she went on to play with her brother after the first rape incident, cannot be considered as absolutely unnatural and contrary to normal human behavior. It must be remembered that the subject of appellant's lust is an innocent, naive and frail little girl of eight years, extremely ignorant of the ways of the world and of men. One cannot and should not expect such a wisp of a girl to act like an adult or like a mature and experienced woman who would know what to do under such difficult circumstances. 24 In fact, her subsequent action is confirmatory of the unreasoning innocence of childhood which in this case was mercilessly betrayed.
The alleged absence of resistance cannot likewise alter the condemnatory verdict against appellant. This Court has consistently held that rape is committed when intimidation is used on the victim and this includes the moral kind of intimidation or coercion. Intimidation is a relative term, depending on the age, size and strength of the parties, and their relationship with each other. 25 It can be addressed to the mind as well. 26 Moreover, the intimidation must be viewed in the light of the victim's perception and judgment at the time of the rape and not by any hard and fast rule. It is therefore enough that it produces fear fear that if the victim does not yield to the lustful demands of the accused, something would happen to her at the moment or thereafter. 27
In the instant case, a clear situation bespeaking abuse of transient authority is established by the records. There can be no doubt that appellant Garcia had a sort of moral dominance and influence over Jackielyn such that he could easily intimidate and force her to submit to his satyric desires, considering that she was very young at that time and under his custody. 28 Jackielyn was only eight years old when Garcia started molesting her sexually. Appellant himself admitted that he was expected to take care of complainant and her brother, and to give them guidance and advice. Hence, the victim could hardly be expected to use any discretion and discernment as to how she could resist the coercive power of appellant. 29
Jackielyn disclosed during her direct examination that she was afraid of appellant because sometimes he would get mad at her and beat her. 30 On cross- examination, she declared that she never confided to her older brother about the rape incidents because she feared that if she did so, appellant might get angry and beat her. 31 Her fear of appellant is vividly illustrated by the testimony of her uncle. Angelito Ong, about that incident when the victim and her younger brother failed to get their food from his house and he found them in a nearby store because they were locked out of the house by appellant. 32 So great was the fear instilled by appellant in the victim's mind that she would rather go hungry, which is an ordeal for young children, than incur his ire.
In sum, complainant's tender age and appellant's custodial control and domination over her, had rendered her so meek and subservient to his needs and desires, thus becoming an easy prey to appellant's lecherous advances. 33 This psychological predicament, in the mind of the Court, explains why the offended girl did not give any outcry or offer any resistance when she was being raped, 34 especially when she became inured to the outrage repeatedly committed over a period of time and which sexual assaults were corroborated by medicolegal evidence.
Perhaps, though, the most convincing evidence that appellant Garcia committed the acts charged is his very own admission of having had repeated carnal knowledge of the victim in a letter which he sent on August 24, 1994 from his place of detention to Elizabeth Ong, his live-in partner and aunt of the victim, wherein he pleaded that he be given another chance and promised to change for the better. 35 The following excerpts therefrom, to quote just a few, are indeed revealing and revolting:
. . . OO, tutuong may ng yari sa amin ni Jackylyn, Yon ay alam niya. Kayo mismo ang kumausap. Nitong May at June hanggang July 16, 1994. Yan ay inaamin ko pero hindi ko siya tinakot at ni rape. Alam ni Jackylyn yon . . . Una halikan lang muna siya panga ang nag-umpisa. Ng umabot ng June bago magpasukan nitong 1994 lang kami lumag- pas sa hindi dapat. At siya pa nga ang nagsabi sa akin dinadatnan na siya kaya mag-ingat kami at baka raw mabuntis ko siya. Di kako bahala ka ikaw ang babae. Mga 7 o 8 beses kami naulit. Mula May, June, July 16, 1994. Tapos kako nga pa sa kanya bakit gustong-gusto mo na ginaganoon ko siya at anong dahilan. Ang sabi niya ay wala. Kako hindi mo ba alam maraming magagalit at masasaktan. At saka kako hindi ka papayag ipaubaya ang pinakamahalagang bagay na iniingatan ng babae. Bakit kako mahal mo ba ako sabi naman OO. . . Humihingi ako sa inyo ng isang pagkakataon na ibalato na lang ninyo ang buhay ko kay Jackylyn . . . at Beth kung talagang mahal mo rin ako ay pabayaan mo na ang kalayaan ko at sarili kay Jackylyn. . . Kaya humihingi ako sa inyong lima ng isa pang pagkakataon na panagutan si Jackylyn. . . At yong ng yari samin ni Jackylyn ay kapwa namin kagustuhan. . . At hindi kunaman talaga ni rape. . . Handa kunaman panagutan. . . Kayo ang pag-asa ko para sa kaligtasan ng buhay ko dahil sa paratang nayan. . . Kaya nakikiusap ako at humihingi ng awa ninyo at isang pag-kakataon. . . .
If what appellant claims in his letter that he and Jackielyn were lovers is true, it is paradoxical that he never mentioned that in his testimony nor did he present any evidence to prove such supposed relationship. His silence on the matter becomes highly suspect, considering that such a defense was undeniably intended to possibly save the day for him. An elementary knowledge of human nature would expose his pretensions as merely an afterthought on the part of appellant, in a desperate and vain attempt to exculpate himself from his shameless and heinous acts.
Besides, it is the height of incredibility that, as appellant would want to suggest in his aforestated letter, the initiative came from the victim herself, this despite her age and the inbred modesty of a provincial lass. That would be stretching the imagination too far and insulting to the intelligence and credulity of even an ordinary layman. It has never been shown, nor has an insinuation been made, that Jackielyn was a girl of loose morals with the capacity to lure a much older man into such indiscretions over an incredible period of time.
In contrast, the defense relied solely on the testimony of appellant which, as earlier observed, leaves very much to be desired as it consists mainly of bare and pharisaical denials. Time and again we have said that denial, like alibi, is a weak defense which becomes even weaker in the face of the positive identification of the accused by prosecution witnesses. Appellant's denial constituted self-serving negative evidence which can hardly be considered as overcoming a straightforward and creditworthy eyewitness account. As between positive and categorical testimony which has the ring of truth on one hand, and a bare denial on the other, the former is generally held to prevail, 36 especially given the facts obtaining in this case.
III. Be that as it may, however, on the bases of the evidence adduced by the prosecution, appellant can be convicted only of the two rapes committed in November, 1990 and on July 21, 1994 as testified to by complainant, and for the eight counts of rape committed in May and June and on July 16, 1994 as admitted in appellants aforementioned letter of August 24, 1994. We cannot agree with the trial court that appellant is guilty of 183 counts of rape because, as correctly asserted by the defense, each and every charge of rape is a separate and distinct crime so that each of them should be proven beyond reasonable doubt. On that score alone, the indefinite testimonial evidence that complainant was raped every week is decidedly inadequate and grossly insufficient to establish the guilt of appellant therefor with the required quantum of evidence. So much of such indefinite imputations of rape, which are uncorroborated by any other evidence, fall within this category.
We are fully convinced, however, that appellant is guilty of statutory rape for the sexual act committed in November, 1990 when Jackielyn was only eight years old. Sexual congress with a girl under twelve years of age is always rape although there might have been consent to the sexual act. Being of such tender age, she is presumed not to have a will of her own. The law does not consider any kind of consent given by her as voluntary. 37
It has likewise been sufficiently established beyond reasonable doubt that Jackielyn was raped by appellant on July 21, 1994. The evidence is well-nigh conclusive that she was intimidated into submitting to appellant's libidinous craving and loathsome assault by reason of his authority and predominance over her. Jackielyn may well have been over twelve years of age at that time, but what is the difference in mental fitness and attitude between a twelve-year old girl and one who is twelve years and one month old? 38
Finally, appellant's admission in his letter of August 24, 1994 that "it happened 7 or 8 times in May, June until July 16, 1994," which was never explained away nor successfully refuted by the defense, should definitely be taken into consideration. It is said that although written admissions have sometimes been treated as competent evidence under the head of one of the exceptions to hearsay evidence, yet they are open to but few of the objections which may be urged against hearsay testimony. They are, it is true, declarations made out of court and without sanction of an oath, yet they are statements, not of third persons, but of a party to the litigation; and, where they are offered against him, it is only fair to presume, until the contrary is shown, that they are correct. Whatever a party voluntarily admits to be true, though the admission be contrary to his interest, may reasonably be taken for the truth. 39
No compelling reason exists in the case at bar to warrant the exclusion or disregard of these admissions of appellant. These are admissions against his own interest which no sane or reasonable man would make if they were not true. He voluntarily and intelligently made and even put them down in single-spaced handwriting on four full pages of legal size ruled pad. On top of that, he identified the same and testified thereon, without any repudiation, in open court on January 13, 1995, thus converting such extrajudicial admissions into judicial admissions. One might ask why, having been burned the first time, the offended girl did not thereafter stay away from appellant, thereby giving him other opportunities to inflict his lust on her. The obvious explanation is that we are dealing here not with a worldly-wise woman but with a young and innocent child of tender age whose acts were dominated more by fear than by reason. 40 This is especially understandable in this case where the victim is practically an orphan abandoned in the care of a stranger masquerading in the guise of a guardian, and who never felt a sense of belonging except to such a stranger whom she wrongly believed had a familial concern for her, but whom she realized too late was devilishly unworthy of her trust and respect.
IV. We now proceed to consider the proper imposable penalty on appellant in light of his proven criminal misdeeds consisting of ten acts of rape. Having been charged with the simple crime of rape, each of which warrants the imposition of the penalty of reclusion perpetua, both the trial court and the People's Tribune agree on that penalty to be imposed for each crime, although both contend that such penalty should be imposed on 183 acts of rape. We have already explained that appellant can be convicted of only ten crimes of rape, but we have not answered the unspoken question, since both the trial court and the Solicitor General have passed sub silentio thereover, on whether the ten convictions we sustain should be for simple rape or for its qualified form under the circumstances stated in Republic Act No. 7659 which amended Article 335 of the Revised Penal Code.
It is true that the appellant has been charged with simple rape, that the court below found him guilty only of simple rape as charged, and that no issue over the effect of the amendatory law has been raised. However, it is a long-settled rule in criminal procedure, which is now enshrined in the Rules of Court, 41 that an appeal throws the criminal case open for review by the appellate court which may thereafter reverse the decision a quo, or modify the same by reducing or increasing the penalty upon a concomitant modification of the findings on the nature of the crime committed or the computation of the penalty therefor. Here, we are further confronted by the situation wherein the first crime of rape in 1990 of which we find appellant guilty is covered by the original provisions of the Revised Penal Code, while the other nine crimes of rape committed in 1994 are governed by the amendatory provisions of Republic Act No. 7659, with circumstances necessitating higher penalties, and which took effect on December 31, 1993. 42
Section 11 of Republic Act No. 7659 provides that where the victim of the crime of rape is under eighteen years of age and the offender is, inter alia, a guardian of the victim, the death penalty shall be imposed. The inevitable query, since the fact is mentioned in passing in the records, is whether or not appellant is a guardian in the contemplation of this amendment to the law on rape such that, the victim being a minor, he should be punished with the higher penalty of death for the nine crimes of rape committed by him in May and June, 1994 and on July 16 and July 21, 1994.
In the law on rape, the role of a guardian is provided for in Article 344 of the Revised Penal Code, specifically as one who, aside from the offended party, her parents or grandparents, is authorized to file the sworn written complaint to commence the prosecution for that crime. In People vs. De la Cruz, 43 it was held that the guardian referred to in the law is either a legal or judicial guardian as understood in the rules on civil procedure.
That holding was rationalized as follows:
Article 344 of the Revised Penal Code, paragraph 3, is as follows:
"Tampoco puede procederse por causa de estupro, rapto, violacion o abusos deshonestos, sino en virtud de denuncia de la parte agraviada, o de sus padres, o abuelos or tutor, ni despues de haberse otorgado al ofensor perdon expreso por dichas partes, segun los casos." Without passing at this time on the question whether the tutor (legal guardian) may file a complaint in the temporary absence of the parents or grandparents of the offended party, it suffices to say that we cannot accept the view of the Government that an aunt who has the temporary custody of a minor in the absence of her father occupies the position of a tutor (legal guardian). The word "tutor" (guardian) appearing in article 344,supra, must be given the same meaning as in section 551 of the Code of Civil Procedure, that is to say, a guardian legally appointed in accordance with the provisions of Chapter XXVII of the Code of Civil Procedure.
It would not be logical to say that the word "guardian" in the third paragraph of Article 344 which is mentioned together with parents and grandparents of the offended party would have a concept different from the "guardian" in the recent amendment of Article 335 where he is also mentioned in the company of parents and ascendants of the victim. In Article 344, the inclusion of the guardian is only to invest him with the power to sign a sworn written complaint to initiate the prosecution of four crimes against chastity, while his inclusion in the enumeration of the offenders in Article 335 is to authorize the imposition of the death penalty on him. With much more reason, therefore, should the restrictive concept announced in De la Cruz, that is, that he be a legal or judicial guardian, be required in the latter article.
The Court notes from the transcripts of the proceedings in Congress on this particular point 44 that the formulators were not definitive on the concept of "guardian" as it now appears in the attendant circumstances added to the original provisions of Article 335 of the Code. They took note of the status of a guardian as contemplated in the law on rape but, apparently on pragmatic considerations to be determined by the courts on an ad hoc basis, they agreed to just state "guardian" without the qualification that he should be a legal or judicial guardian. It was assumed, however, that he should at the very least be a de facto guardian. Indeed, they must have been aware of jurisprudence that the guardian envisaged in Article 335 of the Code, even after its amendments by Republic Act No. 4111, would either be a natural guardian, sometimes referred to as a legal or statutory guardian, or a judicial guardian appointed by the court over the person of the ward
They did agree, however, that the additional attendant circumstances introduced by Republic Act No. 7659 should be considered as special qualifying circumstances specifically applicable to the crime of rape and, accordingly, cannot be offset by mitigating circumstances. The obvious ratiocination is that, just like the effect of the attendant circumstances therefore added by Republic Act No. 4111, although the crime is still denominated as rape such circumstances have changed the nature of simple rape by producing a qualified form thereof punishable by the higher penalty of death. 45
Coming back to the categorization of the functions of appellant in relation to private complainant and her brother, we are not prepared to say that, under the particular and peculiar facts obtaining in this case, the former sustained the relation of guardian to the latter, whether as a natural or legal, or even de facto and, much less, judicial guardian. He cannot be a legal or natural guardian as that refers to parents, nor even a guardian de son tort (sometimes referred to as a quasi-guardian or guardian by estoppel) since he did not on his own assume to act as a guardian of, say, a foundling. 46 The fact is that he is not related to and he did not even support the children as it was Elizabeth Ong, then later her brother who provided the food, other necessities and instructions for the care of the children, and they have been living in Elizabeth's house wherein appellant was in that respect merely a hanger-on and a freeloader. He was merely expected to carry out Elizabeth's directions, and Elizabeth continued to be the guardian de facto of the children.
Appellant has not been proven to have exercised any valid act of patria potestas over complainant and her brother, unless we consider beating and abusing them as within that concept. In fine, at the very most, appellant was only an unwilling custodian and caretaker, not unlike a domestic majordomo or steward of the house and the children, and for which services he obtained free board and lodging. Ironically, that amorphous role that he played in the lives of the children, and which enabled him to abuse them, offers him salvation from the death penalty which he deserves. This is because the Court proceeds only under the dictates of the law and never under errant emotionalism or maudlin sentimentality.
The law requires a legal or judicial guardian since it is the consanguineous relation of the solemnity of judicial appointment which impresses upon the guardian the lofty purpose of his office and normally deters him from violating its objectives. Such considerations do not obtain in appellant's case or, for that matter, any person similarly circumstanced as a mere custodian of a ward or another's property. The fiduciary powers granted to a real guardian warrant the exacting sanctions should he betray the trust.
In results, therefore, that appellant cannot be considered as the guardian falling within the ambit of the amendatory provision introduced by Republic Act No. 7659. He would not fall either in the category of the "common-law spouse of the parent of the victim" in the same enumeration, since his liaison is with respect to the aunt of Jackielyn. Since both logic and fact conjointly demonstrate that he is actually only a custodian, that is, a mere caretaker of the children over whom he exercises a limited degree of authority for a temporary period, we cannot impose the death penalty contemplated for a real guardian under the amendments introduced by Republic Act No. 7659, since he does not fit into that category.
One further observation, Article 335 originally provided only for simple rape punishable by reclusion perpetua, but Republic Act No. 4111 introduced amendments thereto by providing for qualified forms of rape carrying the death penalty, that is, when committed with the use of deadly weapon or by two or more persons, when by reason or on the occasion of the rape the victim becomes insane, or, under the same circumstances, a homicide is committed. The homicide in the last two instances in effect created a special complex crime of rape with homicide. The first two attendant circumstances are considered as equivalent to qualifying circumstances since they increase the penalties by degrees, and not merely as aggravating circumstances which effect only the period of the penalty but do not increase it to a higher degree. The original provisions of Article 335 and the amendments of Republic Act No. 4111 are still maintained.
As earlier observed, Republic Act No. 7659 thereafter introduced seven more attendant circumstances the presence of any of which takes the case out of the purview of simple rape, and effectively qualifies the same by increasing the penalty one degree higher through the imposition of the death penalty. All these new attendant circumstances, just like those introduced by Republic Act No. 4111, partake of the nature of qualifying circumstances, and not merely aggravating circumstances, on the same rationale already explained.
Now, it has long been the rule that qualifying circumstances must be properly pleaded in the indictment. If the same are not pleaded but proved, they shall be considered only as aggravating circumstance, 47 since the latter admit of proof even if not pleaded. 48 Indeed, it would be a denial of the right of the accused to be informed of the charges against him and, consequently, a denial of due process, if he is charged with a simple rape and be convicted of its qualified form punishable with death, although the attendant circumstance qualifying the offense and resulting in capital punishment was not alleged in the indictment on which he was arraigned.
Recapitulating, the information filed against appellant charged only the felony of simple rape and no attendant qualifying circumstance, specifically that of his being supposedly a guardian of the victim, was alleged. On this additional consideration, he cannot, therefore, be punished with the penalty of death even assuming arguendothat he is such a guardian. Neither can that fact be considered to aggravate his liability as the penalty for simple rape is the single indivisible penalty of reclusion perpetua. 49
The end result, therefore, is that for the ten crimes of rape of which we declare him guilty, only the penalty ofreclusion perpetua can be imposed. He must, however, be further held liable for the corresponding indemnity to the victim, as well as exemplary damages for each count of rape. 50
WHEREFORE, the challenged judgment of the court a quo is MODIFIED. Accused- appellant David Garcia y Quintorio is hereby declared guilty of ten (10) felonies of simple rape and ordered to serve the penalty ofreclusion perpetua for each felony, subject to the provisions of Article 70 of the Revised Penal Code. He is further ordered to indemnify Jackielyn Ong in the sum of P50,000.00 for each of the ten (10) felonies of rape, to pay her exemplary damages of P25,000.00 likewise for each of the ten (10) felonies of rape, and to pay the costs in all instances of this criminal proceeding. SO ORDERED. G.R. No. 144293 December 4, 2002 JOSUE R. LADIANA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
D E C I S I O N PANGANIBAN, J.: The Constitution bars the admission in evidence of any statement extracted by the police from the accused without the assistance of competent and independent counsel during a custodial investigation. However, a counter-affidavit voluntarily presented by the accused during the preliminary investigation, even if made without the assistance of counsel, may be used as evidence against the affiant.
The Case Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the April 10, 2000 Decision 1 and August 4, 2000 Resolution 2 of the Sandiganbayan (First Division) in Criminal Case No. 16988. The dispositive portion of the assailed Decision reads as follows: "WHEREFORE, judgment is hereby rendered finding accused JOSUE R. LADIANA GUILTY beyond reasonable doubt of the crime of homicide and, in the absence of any modifying circumstance, sentencing the said accused to: (a) suffer an indeterminate sentence of imprisonment of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum[;] (b) suffer all the appropriate accessory penalties consequent thereto; (c) indemnify the heirs of the victim, Francisco San Juan, in the total amount of Fifty Six Thousand Five Hundred Pesos (P56,500.00); and (d) pay the costs." 3
The assailed Resolution denied petitioners Motion for Reconsideration.
Petitioner was originally charged with murder before the Sandiganbayan in an Information 4 dated August 5, 1991. However, the anti-graft court issued an Order 5 dated October 14, 1991, noting that "besides the allegation that the crime was allegedly committed by the accused while he was taking advantage of his official position, nothing else is in the Information to indicate this fact so that, as the Information stands, nothing except a conclusion of fact exists to vest jurisdiction [in] this Court over the accused and over the crime for which he is charged."
Further, the Order gave the government sufficient time to amend the Information to show adequate facts to vest the Sandiganbayan with jurisdiction over the case. Subsequently, an Amended Information, 6 still charging petitioner with murder, was filed on April 1, 1992. The accusatory portion reads as follows: "That on or about the 29th day of December 1989, in the Municipality of Lumban, Laguna, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then a member of the Integrated National Police (INP now PNP) assigned at the Lumban Police Station, Lumban, Laguna, acting in relation to his duty which is primarily to enforce peace and order within his jurisdiction, taking advantage of his official position confronted Francisco San Juan why the latter was removing the steel pipes which were previously placed to serve as barricade to prevent the entry of vehicles along P. Jacinto Street, Barangay Salac, Lumban, Laguna, purposely to insure the safety of persons passing along the said street and when Francisco San Juan told the accused that the latter has no business in stopping him, said accused who was armed with a firearm, with intent to kill and with treachery, did then and there willfully, unlawfully and feloniously attack and sho[o]t Francisco San Juan with the firearm hitting Francisco San Juan at his head and neck inflicting upon him fatal wounds thereby causing the death of Francisco San Juan." 7
During his arraignment on May 8, 1992, petitioner, assisted by his counsel de parte, 8 pled not guilty. 9 After due trial, the Sandiganbayan found him guilty of homicide, not murder.
The Facts In their Memoranda, both the prosecution and the defense substantially relied upon the Sandiganbayans narration of the facts as follows: "The prosecution presented five (5) witnesses, namely: Caridad M. San Juan, PO2 Leopoldo Cacalda, Dr. Rogelio M. Javan, SPO2 Percival A. Gabinete, and Maria T. Cortez. Their respective testimonies, in essence are as follows, to wit: "1. CARIDAD MARGALLO SAN JUAN (hereinafter, Caridad) declared that she is the wife of Francisco San Juan (hereinafter Francisco), the victim in the case at bar. Caridad testified that Francisco was the Barangay Captain of Barangay Salac, Lumban, Laguna, until he was shot and killed by accused Ladiana, who happens to be also a distant relative of the decedent.
"Caridad recounted that, on December 29, 1989, she was in her house when an unidentified woman came and told her that her husband was killed by accused Ladiana. She immediately called up her sister-in-law before rushing to Jacinto Street where the gruesome incident allegedly transpired. Thereat, many people were milling around, and Caridad saw the lifeless body of Francisco lying in the middle of the road and being examined by [SPO2] Percival A. Gabinete.
"Caridad recalled that it was around 11:00 oclock a.m. when she reached the place of the subject incident. At that point in time, she was not even allowed by the police to touch, much less get near to, the cadaver of Francisco. Caridad, expectedly, was crying and one of her aunts advised her to go home.
"Caridad maintained that she was aware that her husband was killed by accused Ladiana because this was what the woman actually told her. Moreover, accused Ladiana had given himself up to the police authorities.
"Caridad went on to narrate that, on December 30, 1989, she was at the police station, where she gave her written statement before police investigator PFC Virgilio Halili (hereinafter, Halili).
"Additionally, Caridad presented the Death Certificate of her husband and testified that he was eventually buried at the Lumban Cemetery. She declared that she had incurred about Twenty Thousand Pesos (P20,000.00) for the funeral, burial and other incidental expenses by reason of the death of Francisco.
"On cross-examination, Caridad testified that, on December 29, 1989, she was in her house and that she did not hear any gunshot between 10:30 and 11:00 oclock a.m. Caridad also admitted she did not witness the killing of her husband.
"On questions propounded by the Court, Caridad narrated that her husband suffered two gunshot wounds - one on the upper right temple and the other on the left cheek. However, Caridad stated that she was told that the wounds were the entry and the exit points. She also told the Court that her husband was wearing short pants at the time of his death and that she found some bruises on his knees.
"Finally, Caridad recalled that, on the date of the incident, her husband was with his close friend, a certain Rodolfo Cabrera, and some other persons, and that they went to Jacinto Street to repair the steel humps which were used to block the street during school days for the protection and safety of the school children.
"2. PO2 LEOPOLDO DE RAMOS CACALDA, JR. (hereinafter, CACALDA) declared that he is a policeman assigned at the Lumban Police Station in Lumban, Laguna. He has been designated as the radio operator of the station since 1989.
"Cacalda recounted that, on December 29, 1989, at around 11:00 oclock a.m., somebody, whose name he could no longer recall, reported to him about an existing trouble along Jacinto Street in Barangay Salac Cacalda responded by going to the scene, where he was accompanied by Alberto Mercado, a member of the CAGFIL. Thereat, Cacalda saw the lifeless body of Francisco lying face up on the road. Cacalda did not examine the body of Francisco. He left the place of the incident when [SPO2] Percival A. Gabinete and other policemen subsequently arrived.
"Cacalda had gathered from the people milling around the body of Francisco that it was accused Ladiana who shot and killed Francisco. Cacalda immediately left to look for accused Ladiana. However, he eventually saw accused Ladiana already inside the jail of the police station and thereafter learned that said accused had surrendered to the police authority.
"Cacalda recalled that he was later on investigated by Halili because he was the responding policeman who went to the scene of the incident. Consequently, Cacalda executed a written statement in relation to the subject incident.
"On cross-examination, Cacalda testified that he was a radio operator and not an investigator of the police station. He also testified that he did not witness the incident subject matter of the case at bar.
"Cacalda went on to testify that the people milling around the place of the incident told him that accused Ladiana had already left. Because of this development, Cacalda proceeded to accused Ladianaa house but was told that he had already gone to the police station. Cacalda accordingly went to the police station where he saw accused Ladiana already locked inside the jail. He also saw a stab wound on accused Ladianas right bicep but he did not anymore ask him how he sustained the said injury.
"3. DR. ROGELIO JAVAN y MAGRACIA (hereinafter, Javan) declared that he is a physician and the Municipal Health Officer of Lumban, Laguna.
"Javan recounted that he was the one who performed the necropsy on the cadaver of Francisco and that he had prepared the corresponding reports and/or documents relating thereto. Javan made a sketch representing the anterior and posterior views of the body of Francisco, and labeled and placed red markings on the gunshot wounds found on the said cadaver. The marking Gunshot wound A is the point of entry, which is one (1) centimeter in diameter and situated two (2) inches behind the left ear. The marking Gunshot wound B is the point of exit of Gunshot wound A, which is two (2) centimeters in diameter and found above the right cheekbone and one (1) inch below the right eye. Javan also testified that there is another gunshot wound and the point of entry and exit are labeled as Gunshot wound C and Gunshot wound D, respectively. Gunshot wound D is one and one-half (1-1/2) centimeters in diameter and located at the left cheek, three and one-half (3-1/2) centimeters below the left eye, while Gunshot wound C is one (1) centimeter in diameter and found at the right lateral aspect of the neck, at the level of the adams apple.
"According to Javan, the assailant must be behind the victim when he inflicted Gunshot wound A. As regards Gunshot wound C, the assailant likewise must be behind the victim, at a distance of more than twenty-four (24) inches away.
"Lastly, Javan testified that he was not able to retrieve any bullet during the examination. However, judging from the size of the wound and the point of entry, Javan opined that the firearm used was probably a caliber 38.
"On questions propounded by the Court, Javan testified that Gunshot wound A could have been fired first because the trajectory is on the same level so much so that the assailant and the victim could have been both standing. Javan inferred that Gunshot wound C could have been inflicted while the victim was already falling down. Javan then stressed that both wounds are fatal in nature.
"4. SPO2 PERCIVAL AMBROSIO GABINETE (hereinafter, Gabinete) declared that he is a police officer and a resident of No. 4055 Villa Josefina Subdivision, Sta. Cruz, Laguna.
"The testimony of Gabinete was subsequently dispensed with, upon the admission of the defense that he was part of the group of policemen who proceeded to the place of the subject incident and that he found the body of Francisco lying along the road. Additionally, the defense admitted the existence of the receipt issued by Funeraria de Mesa dated January 3, 1990 in the sum of Six Thousand Five Hundred Pesos (P6,500.00).
"5. MARIO TALAVERA CORTEZ (hereinafter, Cortez) declared that he is a retired Assistant Prosecutor of Laguna.
"Prior to the conduct of the examination-in- chief on Cortez, the defense counsel made an admission as to the authorship, authenticity, and voluntariness of the execution of the counter-affidavit of accused Ladiana, which was subscribed and sworn to before Cortez. In said counter- affidavit, accused Ladiana allegedly admitted to making the fatal shots on Francisco. However, accused Ladiana allegedly did so in self-defense as Francisco was then purportedly attacking accused Ladiana and had, in fact, already inflicted a stab wound on the arm of accused Ladiana.
"However, Cortez emphasized that he was not the one who conducted the preliminary investigation of the complaint which led to the filing of the subject case. Additionally, Cortez testified that he would not be able to anymore recognize the face of the affiant in the said counter-affidavit, but maintained that there was a person who appeared and identified himself as Josue Ladiana before he affixed his signature on the counter- affidavit.
"After the presentation of Cortez, the prosecution filed its formal offer of evidence and rested its case.
"On May 31, 1995, this Court issued a resolution admitting all the documentary evidence submitted by the prosecution.
"On August 20, 1996, accused Ladiana filed a Motion for Leave of Court to File Demurrer to Evidence dated August 16, 1995, claiming that: (i) a review of the documentary and testimonial evidence adduced by the prosecution allegedly failed to show that the accused is guilty of the offense charged; (ii) at best, the evidence submitted by the prosecution are allegedly hearsay in character, considering that the supposed eyewitness in the person of Rodolfo Cabrera was never presented in court; and (iii) the prosecution was allegedly merely able to prove the fact of death of the victim, but not the identity of the person who caused said death.
"On August 23, 1996, this Court issued an Order of even date holding that the filing of a demurrer to evidence is no longer appropriate considering that accused Ladiana received a copy of this Courts resolution dated May 31, 1995 on the admission of the prosecutions documentary exhibits as early as May 25, 1995.
"On September 2, 1996, in view of his perception that the evidence submitted by the prosecution is allegedly inadequate to sustain a conviction, accused Ladiana, through counsel, waived his right to present controverting evidence. Instead, he asked for time to file a written memorandum. Thus, both parties were given time within which to do so, after which the case shall be deemed submitted for resolution.
"Thereafter, this Court received on October 25, 1996 by mail the Memorandum for the defense. As for the prosecution, it opted not to file any." 10 (Citations omitted)
Ruling of the Sandiganbayan The Sandiganbayan ruled that the prosecution had been able to establish the guilt of petitioner beyond reasonable doubt. The court a quo held that his Counter-Affidavit, 11 in which he had admitted to having fired the fatal shots that caused the victims death, 12 may be used as evidence against him. It underscored the admission made by the defense as to the authorship, the authenticity and the voluntariness of the execution of the Counter-Affidavit. 13 In short, it ruled that the document had sufficiently established his responsibility for the death of the victim. However, it found no evidence of treachery; thus, it convicted him of homicide only. 14
Hence, this Petition. 15
Issues
In his Memorandum, petitioner raises the following issues for this Courts consideration:
"I. Whether or not the Sandiganbayan may convict the accused-petitioner beyond reasonable doubt of the crime of homicide even in the absence of any eyewitness who personally saw the sho[o]ting of the victim by the accused, basing it only on the testimony of the prosecutor who had administered the oath on the Counter- affidavit filed by petitioner-accused.
"II. Whether or not the prosecution has presented proof beyond reasonable doubt to overcome the constitutional presumption of innocence of the accused and his right against self-incrimination on the basis of the Counter-affidavit whose execution was admitted by the counsel of the petitioner, but not by the accused personally.
"III. Whether or not the Counter-affidavit of the accused-petitioner which was considered by the Sandiganbayan in its decision as similar to an extrajudicial confession may [be] admitted against him as evidenc[e] of guilt beyond reasonable doubt even if he was not assi[s]ted then by counsel and while he was under custodial investigation.
"IV. Whether or not the Sandiganbayan is constitutionally and legally correct in issuing the Order of August 23, 1996 denying the Motion for Leave of Court to File Demurrer to Evidence dated August 16, 1995 filed by the accused in accordance with Sec. 15 of Rule 120 of the 1985 Rules on Criminal Procedure in relation to Rule XXI of the Revised Rules of Sandiganbayan.
"V. Whether or not accused is entitled to the mitigating circumstance of voluntary surrender which fact was admitted by the prosecution as it even used the same as proof of the guilt of the accused." 16
In short, petitioner raises the following questions in this appeal: (1) whether the Counter-Affidavit he executed during the preliminary investigation of this case is admissible proof showing his complicity in the crime, (2) whether the Sandiganbayan erred in denying his Motion for Leave to File a Demurrer to Evidence, and (3) whether he is entitled to the mitigating circumstance of voluntary surrender.
This Courts Ruling The Petition is not meritorious.
First Issue: Admissibility of Counter-Affidavit Undeniably, the resolution of this case hinges mainly on the admissibility of the Counter-Affidavit 17 submitted by petitioner during the preliminary investigation. He argues that no counsel was present when the Affidavit was executed. In support of his argument, he cites the Constitution thus:
"SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.
x x x x x x x x x (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him." 18
It is well-settled that the foregoing legal formalities required by the fundamental law of the land apply only to extra-judicial confessions or admissions obtained during custodial investigations. 19 Indeed, the rights enumerated in the constitutional provision "exist only in custodial interrogations, or in- custody interrogation of accused persons." 20
Custodial interrogation is the questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. 21
In the present case, petitioner admits that the questioned statements were made during the preliminary investigation, not during the custodial investigation. However, he argues that the right to competent and independent counsel also applies during preliminary investigations.
We disagree. A preliminary investigation is an inquiry or a proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed, and that the respondent is probably guilty thereof and should be held for trial. 22
Evidently, a person undergoing preliminary investigation before the public prosecutor cannot be considered as being under custodial investigation. In fact, this Court has unequivocally declared that a defendant on trial or under preliminary investigation is not under custodial interrogation. 23 It explained as follows:
"His [accused] interrogation by the police, if any there had been would already have been ended at the time of the filing of the criminal case in court (or the public prosecutors office). Hence, with respect to a defendant in a criminal case already pending in court (or the public prosecutors office), there is no occasion to speak of his right while under custodial interrogation laid down by the second and subsequent sentences of Section 20, Article IV of the 1973 Constitution [now Section 12, Article III of the 1987 Constitution], for the obvious reason that he is no longer under custodial interrogation." 24
There is no question that even in the absence of counsel, the admissions made by petitioner in his Counter-Affidavit are not violative of his constitutional rights. It is clear from the undisputed facts that it was not exacted by the police while he was under custody or interrogation. Hence, the constitutional rights of a person under custodial investigation as embodied in Article III, Section 12 of the 1987 Constitution, are not at issue in this case.
However, the accused -- whether in court or undergoing preliminary investigation before the public prosecutor -- unquestionably possess rights that must be safeguarded. These include: 1) the right to refuse to be made witnesses; 2) the right not to have any prejudice whatsoever imputed to them by such refusal; 3) the right to testify on their own behalf, subject to cross- examination by the prosecution; and 4) while testifying, the right to refuse to answer a specific question that tends to incriminate them for some crime other than that for which they are being prosecuted. 25
We do not, however, agree with the Sandiganbayans characterization of petitioners Counter-Affidavit as an extrajudicial confession. It is only an admission. Sections 26 and 33 of Rule 130 of the Revised Rules on Evidence distinguish one from the other as follows:
"SEC. 26. Admissions of a party. The act, declaration or omission of a party as to a relevant fact may be given in evidence against him.
"SEC. 33. Confession. The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him."
In a confession, there is an acknowledgment of guilt; in an admission, there is merely a statement of fact not directly involving an acknowledgment of guilt or of the criminal intent to commit the offense with which one is charged. 26 Thus, in the case at bar, a statement by the accused admitting the commission of the act charged against him but denying that it was done with criminal intent is an admission, not a confession. 27
The Counter-Affidavit in question contains an admission that petitioner actually shot the victim when the latter was attacking him. We quote the pertinent portion:
"[K]aya itong si Kapitan San Juan ay sumugod at hinawakan ako sa may leeg ng aking suot na T-shirt upang ako ay muling saksakin; sa dahilang hindi ako makatakbo o makaiwas sa kabila ng aking pananalag hanggang magpaputok ako ng pasumala sa kanya; sa bilis ng pangyayari ay hindi ko alam na siya ay tinamaan;" 28
Through the above statement, petitioner admits shooting the victim -- which eventually led to the latters death -- but denies having done it with any criminal intent. In fact, he claims he did it in self- defense. Nevertheless, whether categorized as a confession or as an admission, it is admissible in evidence against him.
Further, we do not doubt the voluntariness of the Counter-Affidavit. Petitioner himself submitted it to the public prosecutor to justify his actions in relation to the charges hurled against him. It escapes this Court how he can cavalierly deny a document that he has voluntarily submitted and originally relied upon in his defense.
In general, admissions may be rebutted by confessing their untruth or by showing they were made by mistake. The party may also establish that the response that formed the admission was made in a jocular, not a serious, manner; or that the admission was made in ignorance of the true state of facts. 29 Yet, petitioner never offered any rationalization why such admissions had been made, thus, leaving them unrebutted. In addition, admissions made under oath, as in the case at bar, are evidence of great weight against the declarant. They throw on him the burden of showing a mistake. 30
Petitioner contends that nowhere in the transcripts of this case can it be found that he has admitted to the authorship, the authenticity or the voluntariness of the Counter-Affidavit. We quote verbatim the proceedings in the Sandiganbayan: "PJ GARCHITORENA Well, he will identify the person who took the oath before him. Will you deny that it was your client who took the oath before the Fiscal at the preliminary investigation? ATTY. ILAGAN We will admit that, your Honor. PJ GARCHITORENA So in that case we will have no question about the authorship, authenticity and the voluntariness of the execution of the counter-affidavit dated July 31, 1990? Companiero? ATTY ILAGAN Admitted, your Honor." 31
The admissions of petitioner made through his counsel cannot be any clearer. To be sure, the unbroken stream of judicial dicta is that, in the conduct of their case, clients are bound by the actions of their counsels, save when the latters negligence is so gross, reckless and inexcusable that the former are deprived of their day in court. 32 Also, clients, being bound by the actions of their counsels, cannot complain that the result of the litigation might have been different had their lawyers proceeded differently. 33 A counsel may err as to the competency of witnesses, the sufficiency and the relevance of evidence, the proper defense, the burden of proof, the introduction or the withholding of witnesses or pieces of evidence, or the manner of arguing the case. This Court, however, has ruled several times that those are not even proper grounds for a new trial, unless the counsels incompetence is so gross that the clients are prevented from fairly presenting their case. 34
Having admitted that he had fatally shot the victim, petitioner had the duty of showing that the killing was justified, and that the latter incurred no criminal liability therefor. 35 Petitioner should have relied on the strength of his own evidence and not on the weakness of that for the prosecution. Even if his evidence be weak, it cannot be disbelieved after the accused has admitted the killing. 36
Petitioner argues that it was the prosecution that indirectly raised the issue of self-defense. Hence, he could not be bound by it. This argument deserves scant consideration. As discussed earlier, the declarations contained in his Counter- Affidavit are admissions that may be used as evidence against him. 37 The Sandiganbayan did not unfairly presume that he had indeed raised the theory of self- defense, because this argument had already been laid out in his Counter-Affidavit. No presumption was necessary, because the admission was clear and unequivocal.
Neither do we believe petitioners claim that the anti-graft court "miserably failed to give equal effect or treatment to all the allegations found therein (Counter- Affidavit) choosing deliberately and without reasonable basis the parts which are incriminating in character, and ignoring without sufficient legal basis the exculpatory assertions of the accused." 38
The unsubstantiated and uncorroborated statements of petitioner in his Counter- Affidavit are utterly insufficient to discharge his burden of proving that the act of killing was justified. It is hornbook doctrine that self-defense must be proved with certainty by sufficient, satisfactory and convincing evidence that excludes any vestige of criminal aggression on the part of the person invoking it. 39 It cannot be entertained if it is uncorroborated by any separate and competent evidence, and it is also doubtful. 40 The question whether the accused acted in self-defense is essentially a question of fact properly evaluated by the lower court; in this case, the Sandiganbayan. 41
By itself, the Counter-Affidavit miserably fails to establish the requisites of self- defense enumerated in the law. 42 Had petitioner been more vigilant in protecting his rights, he could have presented clear and cogent evidence to prove those elements. But, as found by the court a quo, he not only failed to discharge the burden of proving the existence of the justifying circumstance of self-defense; he did not even bother to present any evidence at all. 43 So, we do not see how the Sandiganbayan could have been selective in its treatment of his Counter-Affidavit.
Verily, if the accused fails to discharge the burden of proving the existence of self- defense or of any other circumstance that eliminates criminal liability, his conviction shall of necessity follow, on the basis of his admission of the killing. 44 Upholding this principle does not in any way violate his right to be presumed innocent until proven guilty. When he admitted to having killed the victim, the burden of proving his innocence fell on him. It became his duty to establish by clear and convincing evidence the lawful justification for the killing.
Therefore, petitioner can no longer invoke his constitutional right to be presumed innocent of the crime charged. 45 As far as he is concerned, homicide has already been established. The fact of death and its cause were established by his admissions coupled with the other prosecution evidence including the Certificate of Death, 46 the Certificate of Post-Mortem Examination 47 and the Medico-Legal Findings. 48 The intent to kill is likewise presumed from the fact of death. 49
Second Issue: Denial of Motion for Leave to File Demurrer Petitioner then argues that the Sandiganbayan erred in not giving due course to his Motion for Leave to File Demurrer to Evidence. He brands this denial as legally and constitutionally wrong. 50
We disagree. Prior leave to file a demurrer to evidence is discretionary upon the trial court. 51 And, unless there is grave abuse amounting to lack or excess of jurisdiction in its denial, the trial courts resolution may not be disturbed. 52
Final Issue: Voluntary Surrender After vigorously arguing against his own Counter-Affidavit, petitioner, in a surprising change of tenor, implores this Court to consider his voluntary surrender to the police authorities as a mitigating circumstance. He argues that two of the prosecution witnesses testified that he had surrendered to the police authorities after the shooting incident. 53 To buttress his argument, he contends that the "main reason for his voluntary surrender is that he sincerely believe[d] that he was legally justified in defending himself as a policeman when he fought the victim after he was attacked by the latter." 54 It goes without saying that this statement only reaffirms the admissions contained in his Counter-Affidavit, which he so vehemently tried to discredit.
For voluntary surrender to mitigate criminal liability, the following elements must concur: 1) the offender has not been actually arrested, 2) the offender surrenders himself to a person in authority or to the latters agent, and 3) the surrender is voluntary. 55 To be sufficient, the surrender must be spontaneous and made in a manner clearly indicating the intent of the accused to surrender unconditionally, either because they acknowledge their guilt or wish to save the authorities the trouble and the expense that will necessarily be incurred in searching for and capturing them. 56
The only pieces of evidence in support of the plea of voluntary surrender made by petitioner are statements made by two (2) prosecution witnesses that they were allegedly told by other people that he had already gone to the police station. There is no showing that he was not actually arrested; or that when he went to the police station, he surrendered himself to a person in authority. Neither is there any finding that he has evinced a desire to own to any complicity in the killing.1wphi1
We have ruled in the past that the accused who had gone to the police headquarters merely to report the shooting incident did not evince any desire to admit responsibility for the killing. Thus, he could not be deemed to have voluntarily surrendered. 57 In the absence of sufficient and convincing proof showing the existence of indispensable circumstances, we cannot appreciate voluntary surrender to mitigate petitioners penalty.
WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution AFFIRMED. Costs against petitioner. SO ORDERED.
GR. No. L-26282 November 29, 1976 PEOPLE OF THE PHILIPPINES, plaintiff- appellee, vs. BENITO SATORRE and PAULINO RONDINA accused-appellants.
CONCEPCION JR., J: Appeal from the decision of the Court of First Instance of Leyte (Carigara), Branch VI, in Criminal Case No. 2641, finding the accused Benito Satorre and Paulino Rondina guilty beyond reasonable doubt of the crime of double murder, the dispositive portion of which reads as follows:
WHEREFORE, the Court finds the accused Benito Satorre and Paulino Rondina guilty beyond reasonable doubt of the crime of double murder which is punished under Article 248 of the Revised Penal Code, without any aggravating or mitigating circumstances present in the Commission of the offense. Taking into consideration the provisions of said Article in relation to Article 64, paragraph 1, of the same Code, the court hereby sentences each of the defendants Benito Satorre and Paulino Rondina to suffer reclusion perpetua for each the two murders, and jointly and severally to indemnify the heirs of each of the deceased Carlos Espina and Loreto Silva the sum of Six Thousand pesos (P6,000.00) without subsidiary imprisonment in case of insolvency, the principal penalty being higher than prision correccional, and to pay the costs of the proceedings. However, the duration of the aggregate penalties herein imposed shall not exceed forty (40) years for each of the accused in accordance with the provision of Article 70 of the Revised Penal Code. 1
During the pendency of the appeal, the appellant Paulino Rondina died on December 11, 1975 in the New Bilibid Prison Hospital, Muntinglupa, Rizal, 2 and the case against him was dismissed per Resolution 3 of this Court, dated August 27,1976.
Hence, only the appeal of appellant Benito Satorre remains to be resolved.
From the evidence of record, the trial court found the facts as follows:
On May 2, 1962, the appellants Benito Satorre and Paulino Rondina, both members of the municipal police force of Leyte, Leyte, were sent by the Chief of Police to Bo. Toctoc to maintain peace and order on the occasion of the celebration of its barrio fiesta on the third of the same month. 4
On the eve of the barrio fiesta, the appellants together with Gavino Delantar, Domingo Espina, Santiago Dagandan, and Carlos Espina, were drinking "tuba" in the house of Juan Lucero. 5 Thereafter, the group went to the dance at the basketball court. 6
After the dance at about 2:00 o'clock in the morning of May 3, 1962, Carlos Espina, Gavino Delantar, Dodong Delima, and the appellants went to the place of Carlos Espina and stayed in front of his house. Thereupon, Gavino Delantar and the appellants invited Carlos Espina for more drinks, but the latter was advised by his brother, Domingo Espina, not to accept the invitation because he (Carlos) was already drunk. Carlos Espina answered him saying: "Do not be afraid, my brother, anyway the persons taking me are agents of the law." 7
Thereafter, the appellants placed their arms around the shoulder of Carlos Espina and pulled him away saying, "Come, Ling, let us go and drink a little more."Thereupon, his brother Domingo Espina held Carlos by the waist and drew him back. Carlos Espina resisted facing the appellants while Domingo Espina was dragged behind. Then, the appellants pointed their guns at Carlos Espina. Benito Satorre's gun exploded first, followed by the gunfire of Paulino Rondina. Immediately thereafter, Carlos Espina shouted, "I am hit", while Loreto Silva was also hit by the gunfire. 8 Thereupon, Domingo Espina sought cover inside the house of Carlos Espina and, while inside, he heard another shot. 9
Immediately after the shooting, Domingo Espina came out of the house and found Carlos lying on the ground, face down, already dead, while Loreto Silva was on the floor near the door with his breast bleeding. Domingo Espina sent Alfredo Silva to fetch the Barrio Lieutenant, 10 a certain Baltazar Montecillo. 11 Upon his arrival, Baltazar Montecillo immediately took the ante- mortem statement 12 of Loreto Silva to the effect that Benito Satorre shot him after shooting Carlos Espina with Paulino Rondina as his companion. Loreto Silva died after affixing his thumbmark to his dying declaration, aided by the Barrio Lieutenant. 13
The foregoing facts are not disputed in his appeal. The appellant merely assails the trial court in holding that there was treachery in the commission of the crime, and in convicting him of two separate crimes of murder.
The Solicitor General concedes that treachery did not attend the commission of the crime. We agree and adopt the well- reasoned observation of the Solicitor General in the following tenor:
It is generally conceded that there is no alevosia or treachery where attack is frontal (People vs. Matbagon, 60 Phil. 887) or where the assault is made face to face (People vs. Luna, 76 Phil. 101). But it is also true that although an assault is made face to face, yet it may also constitute treachery if the attack was sudden and unexpected to the point of incapacitating the victim to repel and/or escape from it (People vs. Noble, 77 Phil. 93). The doctrine deducible is that if the slayer makes a sudden and unexpected attack with a deadly weapon on an unarmed and unsuspecting victim under conditions which makes it impossible for the party assailed to flee or make defense before the fatal blow is delivered, the act should be considered qualified by alevosia (People v. Pengson, 44 Phil, 0224; People v. Felipe, G.R. No. L-4617, prom. Jan. 25, 1952). Be that as it may, it was held that an attack which was sudden and unexpected to the person assaulted would not constitute the element of alevosia necessary to raise a homicide to murder where it did not appear that the aggressor had consciously adopted a mode of attack intended to facilitate the perpetration of homicide without risk to himself. (People vs. Tumaob, 46 O.G. (Supp. 11) 190; U.F. vs. Namit, 33 Phil. 926).
The records in this case are berett on any evidence to indicate that appellants reflected, much less planned, on the means, method and form of killing the victims. The firing came immediately after the brother of the victim Carlos Espina was trying to wrest him away from appellants, and the latter were seen pointing the gun at said victim before the actual firing commenced. As to motive, the evidence is not clear, although it could be surmised, to be consistent with the legal presumption favoring an accused, that the latter killed the victims as a result of an impulsive decision brought about because of the alleged slight or insult, real or imagined, on appellants proximately caused by the act of the brother of Carlos Espina of taking him away from the former. It is to be noted that appellants were then intoxicated to the extent that their senses might have been blurred. In any event, a reasonable doubt appears as to the existence of the qualifying circumstance of treachery. 14
In the absence of treachery as a qualifying circumstance, the crime committed is only homicide and not murder.
This brings us to the question as to whether the herein appellant should be held liable for two separate crimes of homicide or for only one.
From the evidence, it appears that appellant Benito Satorre was the first one who fired his gun at Carlos Espina, followed immediately by the shot fired by Paulino Rondina. The two gunshot wounds suffered by the deceased Espina were therefore inflicted by Satorre and Rondina, in that order. 15 The lone gunshot wound suffered by the deceased Loreto Silva was inflicted also by appellant Satorre. This is clearly established in Silva's dying declaration taken by Barrio Lieutenant Baltazar Montecillo of Barrio Toctoc, Leyte, Leyte. In the said dying declaration, Silva categorically stated that he was shot by Benito Satorre. 16
Appellant Benito Satorre should therefore be held liable for two separate offenses of homicide. Under Article 249 of the Revised Penal Code, homicide is punishable by reclusion temporal. There being no mitigating or aggravating circumstances, the penalty imposed by law for the crime committed should be imposed in its medium period. 17
WHEREFORE, the appealed judgment is hereby modified. Appellant Benito Satorre is declared guilty of two separate offenses of homicide, without any mitigating or aggravating circumstances, and applying the Indeterminate Sentence Law, sentenced to imprisonment of not less than ten (10) years of prision mayor, as minimum, to seventeen (17) years of reclusion temporal, as maximum, for each offense. The indemnity awarded by the trial court to the heirs of Carlos Espina and Loreto Silva in the sum of P6,000.00 should be increased to P12,000.00, for each set of heirs. Thus modified, the judgment of the lower court is affirmed in all other respects, with costs. SO ORDERED.
G.R. No. L-25769 December 10, 1974 FRANCISCO FLORES and FRANCISCO ANGEL, petitioners, vs. PEOPLE OF THE PHILIPPINES, respondent.
FERNANDO, J.:p A plea based on the constitutional right to a speedy trial 1 led this Court to act affirmatively on a certiorariproceeding for the dismissal of a case then pending in the Court of Appeals. Considering the length of time that had elapsed, it is readily discernible why an inquiry into the matter is well-nigh unavoidable. The accusation for robbery against petitioners Francisco Flores and Francisco Angel was filed as far back as December 31, 1951. The decision rendered on November 29, 1955 found them guilty of the crime charged. The notice of appeal was filed on December 8, 1955. 2 For a period of three years, until February 10, 1958, no action was taken by the Court of Appeals. On that day, there was a resolution remanding the records of the case to the lower court for a rehearing of the testimony of a certain witness deemed material for the disposition of the case. 3 Such a resolution was amended by a second resolution dated August 5, 1959, which granted the motion for counsel of appellants, now petitioners, to set aside the decision so that evidence for the defense on certain new facts or matters may be received and that a new decision in lieu of the old one may be rendered in accordance with the facts as found. 4
Accordingly, the case was returned to the lower court with the former decision set aside so that the trial could be had, but nothing was done for about a year because the offended party failed to appear notwithstanding the six or seven dates set for such hearing. 5 It was further alleged that when thereafter he did take the witness stand, his testimony was far from satisfactory, characterized as a mere "fiasco" as he could no longer remember the details of the alleged crime; there was even a failure to identify the two accused. 6 Instead of rendering a new decision, the former one having been set aside as required by the Court of Appeals, the lower court merely sent back the records to the appellate tribunal. 7 At that stage, five more years having elapsed without anything being done, petitioners sought the dismissal of the cases against them due to such inordinate delay in their disposition, which covered the period of December 8, 1955 to May 10, 1965, a period of almost a decade; thus did they invoke their constitutional right to a speedy trial. 8
Respondent Court of Appeals was unresponsive, notwithstanding the vigorous plea on the part of counsel for petitioners, its last order being a denial of a second motion for reconsideration dated January 28, 1966. In the answer on behalf of the People of the Philippines, the facts as above set forth were substantially admitted. However, a special and affirmative defense raised was that the case was not properly captioned, as the People of the Philippines, against whom it is filed, is not a tribunal or an office exercising judicial functions and that without the Court of Appeals being made a party to the petition, it cannot be said that it stated facts sufficient to constitute a cause of action. Moreover, on the merits, the view was expressed that under the circumstances, it was not adequately shown that the right to a speedy trial had been violated, as the Court of Appeals had taken all the steps necessary to complete the transcript of stenographic notes of the original trial.
On the above undisputed facts, there is more than sufficient warrant for the conclusion that the right to a speedy trial, so zealously guarded in both the 1935 and the present Constitutions, had not been accorded due respect. There is thus merit in the petition. 1. The constitutional right to a speedy trial, as was noted in a rece 2. nt decision, Acebedo v. Sarmiento, 9 "means one free from vexatious, capricious and oppressive delays, ... ." 10 Thus, if the person accused were innocent, he may within the shortest time possible be spared from anxiety and apprehension arising from a prosecution, and if culpable, he will not be kept long in suspense as to the fate in store for him, within a period of course compatible with his opportunity to present any valid defense. As was also pointed out in Sarmiento: "The remedy in the event of a non-observance of this right is by habeas corpus if the accused were restrained of his liberty, or by certiorari, prohibition, or mandamus for the final dismissal of the case." 11 The above ruling is a reiteration of the doctrine announced, even before the 1935 Constitution, in Conde v. Rivera, 12 a 1924 decision. In that case, Justice Malcolm announced categorically that the trial, to comply with the requirement of the then organic law, the Philippine Autonomy Act, must be "free from vexatious, capricious, and oppressive delays." 13 Further: "We lay down the legal proposition that, where a prosecuting officer, without good cause, secures postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in this instance for more than a year, the accused is entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he be restrained of his liberty, by habeas corpus to obtain his freedom." 14
In the first Supreme Court decision after the 1935 Constitution took effect, People v. Castaeda, 15 where it was shown that the criminal case had been dragging on for almost five years and that when the trial did finally take place, it was tainted by irregularities, this Court set aside the appealed decision of conviction and acquitted the accused. As was pointed out by the ponente, Justice Laurel: "The Government should be the last to set an example of delay and oppression in the administration of justice and it is the moral and legal obligation of this court to see that the criminal proceedings against the accused come to an end and that they be immediately discharged from the custody of the law." 16 It was on the basis of the above judgment that the dismissal of a second information for frustrated homicide was ordered by this Court, where the evidence disclosed that the first information had been dismissed after a lapse of one year and seven months from the time the original complaint was filed during which time on the three occasions the case was set for trial, the private prosecutor twice asked for postponements and once the trial court itself cancelled the entire calendar for the month it was supposed to have been heard. 17 The same result followed in Esguerra v. De la Costa, 18 where the first complaint was filed on August 29, 1936, the accused having been criminally prosecuted for an alleged abuse of chastity in a justice of the peace court but after over a year and three months, with the lower court twice dismissing the case, he still had to face trial for the same offense on a new information, thus compelling him to resort to a mandamus suit to compel the lower court to terminate the case was his right to a speedy trial was violated, a remedy deemed appropriate by this Court.
There was another occasion where Justice Laurel spoke for this Court on this specific issue. That was inMercado v. Santos. 19 Here, for a period of about twenty months, the accused was arrested four times on the charge of falsifying his deceased wife's will. Twice, the complaints were subsequently withdrawn. The third time he was prosecuted on the same charge, he was able to obtain a dismissal. Then came on the part of the provincial fiscal, a motion for reinvestigation. The lower court was in a receptive mood. It ordered that the case be heard on the merits. The accused moved to dismiss, but he did not succeed. He tried the Court of Appeals, but he failed again. He elevated the matter to this Court; he prevailed. It was stressed in Justice Laurel's opinion: "An accused person is entitled to a trial at the earliest opportunity. ... He cannot be oppressed by delaying the commencement of trial for an unreasonable length of time. If the proceedings pending trial are deferred, the trial itself is necessarily delayed." 20 The opinion likewise considered as not decisive the fact that the provincial fiscal did not intervene until an information was filed charging the accused with the crime of falsification the third time. Thus: "The Constitution does not say that the right to a speedy trial may be availed of only where the prosecution for crime is commenced and undertaken by the fiscal. It does not exclude from its operation cases commenced by private individuals. Where once a person is prosecuted criminally, he is entitled to a speedy trial, irrespective of the nature of the offense or the manner in which it is authorized to be commenced." 21 The latest decision in point, Acebedo v. Sarmiento, 22 presented an even clearer case. The information for damage to property was filed on August 3, 1959. There the matter rested until May 19, 1965, when the accused moved to dismiss. The lower court denied the motion in his order of July 10, 1965. Two more years elapsed, the period now covering almost eight years, when the trial was commenced. When one of the witnesses for the prosecution failed to appear, the provincial fiscal sought the postponement, but the accused countered with a motion for dismissal. The lower court acceded, and this Court sustained him, even if thereafter it changed its mind and reinstated the case.
Petitioners can thus invoke the constitutional guarantee that the trial should be speedy. In the absence of any valid decision, the stage of trial has not been completed. In this case then, as of May 10, 1965, when they moved to dismiss in the Court of Appeals, petitioners could validly contend that they had not been accorded their right to be tried as promptly as circumstances permit. It was not the pendency in the Court of Appeals of their cases that should be deemed material. It is at times unavoidable that appellate tribunals cannot, even with due diligence, put an end to suits elevated to them. What is decisive is that with the setting aside of the previous decision in the resolution of August 5, 1959, petitioners could validly premise their plea for dismissal on this constitutional safeguard. That is the sole basis for the conclusion reached by us considering the controlling doctrine announced with such emphasis by this Court time and time again.
2. That is about all that needs be said. The crucial issue has been met. The decisive question has been answered. There is an affirmation of the worth of the constitutional right to a speedy trial. Not too much significance should be attached to the procedural defect pointed out in the answer of the People of the Philippines that the Court of Appeals should have been made the party respondent. What cannot be sanctioned was its failure to accord respect to this particular constitutional right. It did amount at the very least to a grave abuse of discretion. Whatever deficiency in the pleading may then be singled out, it cannot obscure the obvious disregard of one of the most important safeguards granted an accused. To deny petitioners the remedy sought would be to exalt form over substance. At any rate, the petition could be considered, and rightly so, as being directed at the Court of Appeals. Moreover, the defenses that could have interposed to justify the action taken were invoked by the People of the Philippines. They certainly did not avail. Our decisions on the right to a speedy rial speak too categorically to be misread. This is one of those situations then where, in the apt language of the then Justice, now Chief Justice, Makalintal, "technicalities should give way to the realities of the situation." 23
WHEREFORE, the petition for certiorari is granted, and the order of the Court of Appeals in CA-GR No. 16641-R entitled, People v. Francisco Flores, et al., of September 28, 1965 denying the motion to dismiss as well as its order of January 8, 1966 denying the motion for reconsideration, and the order of January 28, 1966 denying the second motion for reconsideration are hereby set aside, nullified, and considered of no force and effect. The criminal case against petitioners in the aforesaid CA-GR No. 16641-R are ordered dismissed. Costs de oficio.