Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-49761

September 21, 1987

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ESPERIDION ALEGARBES, JR., defendant-appellant.

YAP, J.:
In a decision dated December 15, 1978, the then Court of First Instance of Lanao del Norte,
Branch III, Iligan City, convicted the accused Esperidion Alegarbes, Jr. for the murder of Arlington
Rara and sentenced him to death, and to pay the heirs of the victim the amount of P12,000.00 by
way of compensation for the death of the victim, and P10,000.00 by way of moral damages.
This case is before us on automatic review on account of the death penalty imposed on the
accused.
The prosecution's version is as follows: The crime was committed at about 8:30 o'clock in the
evening of April 23, 1978 right in the poblacion of Bacolod, Lanao del Norte. Earlier that evening,
the victim Arlington Rara was mauled by a group of men led by a certain Gorio Balani. Rara was
still lying in the middle of the road when two soldiers, in the company of some civilians who
reported the incident, arrived. The two soldiers raised Rara up and led him to a store nearby
where he could sit. They investigated Rara about the incident. Rara could not Identify his
assailants as he was not a resident of the place, so the two soldiers decided to bring Rara to their
checkpoint to rest.
Before they could take Rara to the checkpoint, the accused Esperidion Alegarbes, Jr., who was
then a soldier connected with the 40th Infantry Battalion and designated as Assistant Chief of the
Military Police assigned in Bacolod, Lanao del Norte, arrived. Alegarbes Jr. started investigating
Rara. When Rara could not Identify the persons who mauled him, being a stranger to the place,
Alegarbes immediately hit Rara with the back of his left hand, causing the latter to fall to the
ground. Alegarbes pulled the victim's hair with his left hand and raised him. Thereafter, Alegarbes
fired his revolver at the side of Rara, but not hitting him, and again asked him for the Identity of
the person who mauled him. When Rara could not name his attackers, Alegarbes took off the
victim's belt and whipped him with it until its buckle was taken off.
Rara knelt before Alegarbes and asked forgiveness. That act apparently angered Alegarbes and
he asked the victim why he should ask for forgiveness from him when he was not God and he
was not the one who mauled him. Immediately after saying this to the victim who was still
kneeling before him, Alegarbes Pulled his hair with his left hand and simultaneously drew his
revolver with his right hand and shot the victim pointblank, hitting him on the neck. The victim fell
down, sitting on the ground, with head bent downward.
One of the soldiers present approached the victim and verified where he was hit. Alegarbes must
have come to his senses, for he ordered those present to take Rara to a doctor. Rara was already
hovering between life and death when he was brought to the clinic of Dr. Daranan, where he died
shortly thereafter despite efforts to save his life.

The victim's cadaver was brought to the Municipal Auditorium where it was autopsied by Dr.
Guillermo Layos, the Municipal Health Officer of Bacolod, Lanao del Norte. The doctor issued a
post-mortem report 1 wherein he stated the following findings:
1.
Wound bullet about 1/3 cm. diameter, edge inward, over the anterior aspect neck, about 1
cm. below the adam's apple, on probing it is directed slightly posteriosly upward.
2.

Powder burns over the exterior aspect of neck.

According to the doctor, who testified at the trial, the presence of powder burns on the neck of the
victim showed that the gun was fired only about one (1) foot away by his assailant.
The version of the defense was as follows: At 9:00 o'clock in the evening of April 23, 1978, he
was on patrol in the market place of the poblacion of Bacolod, Lanao del Norte. When he was at
the checkpoint, a civilian reported that a person was being mauled by a group of men. When the
accused was told that a person was lying on the road, he got his service rifle (Armalite) and
proceeded to the place. He was also armed with a hand grenade. He had no other firearm When
he was on his way to the place where the person was allegedly mauled, the accused heard a
shot. By experience, he knew that the shot was from a.22 caliber firearm. When he arrived at the
place, he was informed that five persons participated in the mauling. Then, a person passed at
his back and tried to assault him, so he blocked him with his Armalite and fired a warning shot
upward. Another civilian told appellant that his warning shot hit somebody and he answered that it
was impossible for him to hit anybody because he fired his shot upward with his Armalite. The
accused then inspected the victim and when he saw the wound in the neck, he ordered that the
victim be brought to the clinic.
From the evidence adduced by the prosecution and the defense, the court a quo made the
following findings: In the evening of April 23, 1978 at around 7:00 o'clock, the victim Arlington
Rara, was seen lying unconscious on the road at the poblacion of Bacolod near the house of
Pablita Mejorada who informed the persons in the store of Martin Pumicpic, who was her
neighbor, about the man lying on the road. Two persons, namely, Damian Argao and Andres
Pumicpic, who were then in the store went to the MP Detachment which was around 100 meters
away to inform the soldiers of the presence of a man lying on the road. Two soldiers from the
detachment responded and went to the place where the man was lying unconscious on the road
and brought him to the premises of the store of Martin Pumicpic. They tried to find out from the
victim who were responsible for mauling him. He answered them that he did not know. The two
army men were about to bring him to the MP Checkpoint when the accused, Esperidion
Alegarbes, Jr. arrived at the scene. The accused was wearing short pants and a white T-shirt.
Alegarbes proceeded to investigate the victim Rara as to who mauled him. Rara could not give
the Identity of the person who mauled him. After repeated questioning by Alegarbes and the same
answer was given by Rara that he did not know who mauled him, the former struck the latter with
the back of his left hand, causing the latter to fall on the ground. Alegarbes then followed this by
pulling the victim's hair up, and, taking his revolver from his waist, he fired toward the side of the
victim but not hitting him. Still not getting an answer from the victim as to who mauled him,
Alegarbes then got hold of the belt of the victim and whipped him 5 times at the back. The victim
knelt before the accused and asked forgiveness. Alegarbes answered, "Why should you ask
forgiveness from me when I am not God and I was not the one who mauled you?" Then he pulled
up Rara by the hair and while doing so, he again took his revolver from his waist and shot Rara
hitting him on the neck, below the Adam's apple.
The trial court did not give credence to the accuser's defense that the victim tried to assault him,
firstly because the victim was already groggy after having been mauled by unknown persons.
Secondly, the three prosecution's eyewitnesses, namely, Damian Argao, Andres Pumicpic and
Rey Salvacion, belied the claim of the accused that the victim tried to assault him.

Appellant's assigned errors are as follows:

1.
Lower court erreed in holding the accused responsible for the death of Arlington Rara,
and in convicting the accused of the crime of murder;
2.
That, assuming the accused to be responsible for the death of Arlington Rara, the lower
court erred in considering against the accused the qualifying circumstance of treachery;
3.
That, assuming the accused to be responsible for the death of Arlington Rara, the lower
court erred in considering against the accused the ordinary aggravating circumstances of abuse
of public position and cruelty;
4.
That, assuming the accused to be responsible for the death of Arlington Rara, the lower
court erred in not considering in favor of the accused the mitigating circumstances of lack of
intention to commit so grave a wrong as that committed and voluntary surrender.
We find no merit in appellant's assignments of error.
The court's finding that the killing of the victim by the appellant was deliberate, intentional, cruel
and treacherous is supported by the testimonies of Damian Argao, Andres Pumicpic and Rey
Salvacion, who were eyewitnesses to the incident. None of the three had reason to testify falsely
against the appellant. The trial court believed the testimonies of these three witnesses, and we
have no reason to disturb its findings.
On the other hand, appellant's version was not corroborated. No witnesses, including his soldier
companions, testified for him.
It could not be true, as alleged by appellant, that he heard a shot when he was on his way to the
checkpoint. His version made it appear that the victim was already shot at the time he arrived on
the scene. But, according to the appellant, when he arrived at the scene, someone tried to attack
him from behind and he fired a warning shot upwards with his Armalite, which probably hit the
victim. The appellant's version is inconsistent. Besides, appellant's uncorroborated version cannot
prevail over the testimonies of three eyewitnesses who narrated the true version of the incident.
Treachery was present in the killing, because the victim was not in a position to defend himself
when he was unexpectedly shot by the accused. Unarmed, he was a helpless victim of the
senseless assault by the accused.
The trial court likewise did not err in considering both aggravating circumstances of abuse of
public position and cruelty. Appellant undoubtedly took advantage of his public position as a
soldier, when he maltreated and killed a civilian victim of mauling, whom he was supposed to
protect in the performance of his duties.
The cruelty inflicted on the victim before the accused shot him, boxing him, belting him with his
(the victim's) own belt, threatening him by firing his pistol in the air, is abundantly clear. The victim
was kneeling and helpless, and yet the appellant with abuse of superior strength, consciously and
deliberately did everything to torture and intimidate him. His actuations showed the appellant to
be heartless and without mercy. He knew that the deceased was not the aggressor, but was the
victim of a physical assault by unknown persons, and yet for the flimsy reason that the victim
could not Identify those who mauled him, appellant decided to turn his inexplicable ire on him.
The mitigating circumstance of voluntary surrender cannot be considered in his favor, because it
is not shown that there was a spontaneous acknowledgment by the accused of his guilt, or that
he wished to save the authorities from the trouble and expense incurred in his capture. In the
case at bar, appellant did not actually surrender to the police; what he did was merely to inform
the police headquarters about the incident. In fact, appellant tried to mislead the authorities by

claiming that he was not the one who shot the victim.
We find no reversible errors committed by the trial court in finding the accused guilty of the
offense charged beyond reasonable doubt.
Accordingly, the decision appealed from is hereby affirmed, with the modification that the penalty
imposed isreclusion perpetua, instead of death, in view of the provisions of the 1987 Constitution,
and the indemnity is increased to P30,000.00. No costs.
SO ORDERED.

G. R. No. L-65673

January 30, 1992

PEOPLE OF THE PHILIPPINES, appellee,

vs.
ABELARDO PENILLOS y LUCINDO @ GUILLERMO "BILLY" PENILLOS, MARIANO MARAO y
MENDEZ, JOSE NUYDA y MARMEDA and ROMEO NUYDA y PEDROSA, accused. ABELARDO
PENILLOS y LUCINDO @ GUILLERMO "BILLY" PENILLOS, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.

DAVIDE, JR., J.:

This is an appeal from the decision 1 of Branch 7 of the Regional Trial Court (RTC) of Legazpi
City, in Criminal Case No. 2144 entitled "People of the Philippines vs. Abelardo Penillos, et al.,"
promulgated on 28 September 1983, convicting the accused-appellant of the crime of Robbery
with Homicide and Attempted Homicide pursuant to Article 294 of the Revised Penal Code and
sentencing him to suffer the penalty of "reclusion perpetua or life imprisonment."
The information prepared by the then assistant city fiscal charges the above-named accused with
the crime of "Robbery with Homicide and Attempted Homicide" committed as follows:
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That on or about the 31st day of July, 1981, in the City of Legazpi, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and

helping one another for a common purpose, with intent of gain (sic) and by means of violence
against or intimidation, did then and there willfully, unlawfully and feloniously enter the house of
the spouses APRONIANO LLADONES and EPIFANIA LOPEZ LLADONES and once inside,
forcibly take the amount of P1,000.00 from the said spouses and by reason of or on occasion of
the robbery and with intent to kill, attacked, assaulted, hogtied and stabbed APRONIANO
LLADONES inflicting injuries upon the latter which directly caused his untimely death; while
EPIFANIA LOPEZ LLADONES was hacked on her shoulder, thus accused commenced the
commission of the crime directly by overt acts but did not perform all the acts of execution which
could produce the crime of Homicide upon said EPIFANIA LOPEZ LLADONES by reason of
causes other than their spontaneous desistance. 2
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Only accused-appellant Abelardo Penillos was apprehended. The others remain at large. 3
Accused-appellant entered a plea of not guilty upon arraignment and was given a separate trial.
The court a quo summarized the evidence for the prosecution, upon which it based its conviction
of appellant, as follows:
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Four defendants are charged with the offense of "Robbery with Homicide and Attempted
Homicide." Among them, only one was apprehended and a separate trial was held. On June 18,
1982, defendant Abelardo Penillos pleaded "Not Guilty."
The following facts are not disputed. On July 31, 1981, in the early hours of the evening or
thereabouts (sic), at Sitio Naontogan, Bariis, Legazpi (sic) City, Aproniano Lladones and spouse
Epifania Lopez were awakened as four (4) persons suddenly entered their house. The intruders
demanded money from the couple and when Aproniano Lladones refused to accede he was
carried outside his dwelling by the four persons. He was later on found hogtied and lifeless
suffering (sic) from multiple stab wounds. His wife, Epifania LIadones Lopez was also hacked
with a bolo by one of the entrants (sic) as she tried to follow to find out where her husband was
being taken. The following morning Abelardo Penillos was apprehended and after giving an extrajudicial confession, the present complaint was filed against him and his co-conspirators, Mariano
Marao, Romeo Nuyda and Jose Nuyda. The last three defendants remained at-large hence
Abelardo Penillos was afforded a separate trial.
Testifying for the prosecution, Epifania Lopez Lladones narrated that on the night in question
while she and her husband were asleep inside their house they were awakened by the entry of
four persons who demanded money from them; that one of the intruders even sat on the belly of
her husband who was caught still lying down and at that moment she was able to recognize one
of them as Abelardo Penillos because of the illumination coming from a kerosene lamp in the
kitchen adjoining the sala; that Abelardo Penillos was one of the four persons who brought her
husband outside the house and as she tried to follow she was hacked by one of them whose
identity she cannot tell; that she suffered a hack wound and later on she came to know that her
husband, hogtied, was found dead from stab wounds; that she crawled in the dark to the house of
her neighbor Celerino Nudo who reported the incident to the barangay captain who in turn lost no
time in notifying the police authorities; that recollecting the robbery she discovered the loss of
P1,000.00 kept in a bamboo basket and during the time she was confined at the hospital she
recognized Abelardo Penillos as one of the perpetrators when brought to her for confrontation.
Celerino Nudo also testifying recalls that in the evening of July 31, 1981 Epifania Lopez then
seriously injured from a hack wound arrived at his house to seek his help regarding an incident in
their house; that she mentioned a certain Billy Penillos as one of the men who forcibly entered
their dwelling while they were asleep; that he at once reported the matter to the barangay captain

and rushed Epifania Lladones to the hospital. 4

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Upon the other hand, appellant relied on alibi as his defense, which is summarized by the trial
court as follows:
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. . . Penillos testified that on July 3l, 1981, he was in the house of his grandmother at Barangay
Esperanza, Putiao, Sorsogon, in the morning until six o'clock in the evening; that he left Barangay
Esperanza thereafter riding on a carabao sledge loaded with coconuts and arrived at Barangay
Imalnod, Legaspi City, a distance of about 4 kilometers at past eight o'clock in the evening; that
he proceeded to the house of his father-in-law where he spent the night because he was already
tired; that he was able to surmise the time of his arrival because he overheard from the radio that
the drama serial Zimatar had just been concluded. 5
After trial, the lower court rendered the challenged decision, the dispositive portion of which
reads:
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All the foregoing and EVIDENCE considered, and finding the guilt of the defendant beyond
reasonable doubt, Abelardo "Billy" Penillos @ Guillermo Penillos is sentenced to suffer the
penalty of Reclusion Perpetua or life imprisonment and to indemnify the heirs of Aproniano
Lladones in the amount of P20,000; further, defendant to pay Epifania Lopez Lladones the
amount of Pl,000.00, cash stolen, in both instances without subsidiary imprisonment in case of
insolvency.
Credit the defendant the full time of any preventive imprisonment in the service of his sentence in
accordance with law. 6
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Appellant immediately filed a Notice of Appeal 7 wherein he manifested that he is appealing the
decision to the Intermediate Appellate Court. In view of the penalty imposed, the appeal should
have been made to this Court. The records of the case were erroneously transmitted to the then
Intermediate Appellate Court (now Court of Appeals) which properly forwarded the same to this
Court on 24 November 1983. 8 On 20 December 1983, We required the appellant to file his Brief,
9 which he complied with on 16 July 1984 10 after being granted several extensions. The
appellee, on the other hand, submitted its Brief on 15 November 1984. 11
Appellant submits the following assignment of errors:
I
THAT THE COURT A QUO ERRED IN GIVING CREDENCE TO THE IDENTIFICATION OF
APPELLANT BY THE COMPLAINT.
II.
THAT THE COURT A QUO ERRED IN GIVING THE STATEMENT OF APPELLANT GREAT
WEIGHT WHEN SAID STATEMENT WAS TAKEN IN DEROGATION OF APPELLANT'S
CONSTITUTIONAL RIGHTS AND IN CONTRAVENTION OF PROCEDURE ESTABLISHED BY
JURISPRUDENCE.

In support of the first assigned error, appellant insists that Epifania Lladones could not have made
a proper identification of the offenders because: (1) The only illumination at the scene of the
incident was a gas lamp which was placed in the kitchen. There were partitions between both the
kitchen and the sala and the sala and the bedroom where she and her deceased husband were
sleeping. There could not have been enough light for her to properly recognize the accused. (2)
Having just been roused from sleep by one of the perpetrators who sat on the deceased's belly,
she was most probably "in a state of shock or terror" and thus positive identification of the
accused is highly improbable. Besides, she testified that the very reason for her rushing to the
kitchen upon waking up was to get the gas lamp in order to see who her husband's attacker was.
(3) Even when Epifania was overtaken by the accused and pinned under a table, visibility was still
not sufficient as both were still some distance from the kitchen, the only source of illumination. (4)
Finally, her claim that she had known the accused prior to the incident should have compelled the
latter to have at least worn a mask so he would not be recognized.
Appellant also takes exception to the procedure undertaken by the police authorities on the day
after the incident when he was brought to the hospital to be identified by Epifania Lladones. He
laments that:
The evidence for the prosecution also pointed out that on the following morning of the incident
(August 1, 1981), Abelardo was made to face Epifania while the latter was still confined at the
Albay Provincial Hospital for medical treatment of the hack wound she sustained and that
Epifania pointed to Abelardo as one of the perpetrators of the offense charged. The defense
submits that this particular procedure undertaken by the police in showing the victim, Epifania, a
single person and asking her whether or not that man is one of those who perpetrated the
offense, is most unfair and violative of the constitutional rights of the accused. The proper
procedure should have been an identification in a line-up, whereby the suspect is made to line up
with other persons who are not suspects at all, and then the victim is asked to point to whoever
he or she recognize as the perpetrator of the offense. 12
Anent the second assigned error, appellant claims that his constitutional rights to remain silent, to
be entitled to counsel and to be informed of such rights "had no longer any meaning or purpose."
This is because before giving his confession to the police investigator, he was interviewed by
other policemen. The prosecution failed to show that in the said interview, the accused was
apprised of his constitutional rights. He further avers that he initially disclaimed responsibility for
the crime but when manhandled, boxed and struck with a piece of wood on the head, he was
forced to confess. Thus, the confession he prepared on 1 August 1981 (Exh. "B") is a mere
formality in spite of his having been informed by the police investigator during the formal
investigation of his constitutional rights.
And even conceding the absence of coercion during the initial interview, the signed confession
would still be inadmissible as it does not appear that a waiver of the right to counsel was made by
the accused.
In the People's Brief, the Solicitor General asserts the view that the principal issue to be resolved
is whether or not the appellant was sufficiently identified as one of the culprits responsible for the
offense.
Appellee avers, and We agree, that Epifania was able to sufficiently identify Abelardo Penillos as
the person who sat on her husband's belly and demanded money from her. She testified that she
was able to recognize Penillos when the latter pinned her down under the table; such
identification was aided by her having known Penillos long before the incident, when the latter
would go to the Lladones' house. 13 She was even able to declare that Penillos was wearing
short pants at the time of the commission of the crime. 14
Furthermore, the illumination provided by the kerosene lamp was enough for Epifania to have
recognized Penillos. This Court has held in the past that illumination produced by kerosene

(gasera) lamps is sufficient for the identification of persons. 15 Where conditions of visibility are
favorable, the ability of a witness to identify the malefactor should be upheld. 16
The frenetic efforts of the appellant's counsel to cast doubt on the positive identification by
Epifania, characterized by attempts to mislead the latter, proved to be a bad gamble for it only
provided the prosecution a rare opportunity to elicit the details for the positive identification, to wit:
Q
How were you able to say that it was Billy Penillos who sat on the stomach of your
husband and pointed the knife when you said there were two persons present inside your
bedroom?
A
I recognized him; he was then wearing short-pant while his other companions was (sic)
wearing long pants.
Q
And according to you after you ran away to get the lamp in the kitchen before you
reached the kitchen, Billy Penillos twisted your arm and pinned you under a table. Is that correct?
FISCAL:
No. It is misleading, Your Honor please, because she was already in the kitchen. Before she
could get hold of the lamp, that was the time when Abelardo Penillos twisted her right arm, she
was already in the kitchen.
COURT:
Witness may answer. She is under cross-examination.
A

He placed me under the table.

BENDAA:
Q

And it was under the table that you recognized the face of Billy Penillos?

While inside, I already recognized him inside. Before I have (sic) already recognized him.

Q
Did you not testify a while ago that you ran towards the kitchen to get a lamp, so that, you
can recognize the persons inside the room?
A

Yes, sir.

Q
And do you want to impress the (sic) Court that before you could get the lamp from the
kitchen, you were already able to recognize Billy Penillos?
A

Yes, sir.

Q
And you were able to recognize Billy Penillos although at that time you were running
towards the kitchen and Billy Penillos was behind inasmuch as he was sitting on the stomach of
your husband?
A

Yes. I already recognized him.

Q
So, your statement a while ago that you prefer (sic) in giving to the kitchen to get a lamp
was to recognize who the persons were inside your house is not correct?
A
He was the very first one to get inside the house while his companions who were wearing
long pants followed him. So I tried to recognize them.

Is there a partition between the kitchen and your room?

Yes, sir.

And you said the lamp is (sic) situated inside the kitchen?

Yes, sir, because there was (sic) a door leading to that place.

How far is the kitchen to your bed?

Very near.

Q
But the direct light of the lamp is (sic) being obstructed by the partition separating the
bedroom and the kitchen?
p

The gas lamp was situated near the door.

Is it the door of the room or near the door of the kitchen?

Near the door of the sala.

Q
So, you are now telling the Court that the lamp is (sic) near the sala and not in the
kitchen?
A

It is (sic) inside the kitchen but near the door leading to the sala.

Q
But your bedroom is inside a room which has a partition separating it from the sala, Is
there a partition?
A

Yes, sir.

So, you were not able to recognize the companions of Abelardo Penillos?

A
No, sir. I was not able to recognize the companions of Abelardo Penillos because when
Abelardo Penillos ran to hold my husband and then suddenly his companions entered. 17
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Q
So, the only moment that you were able to recognize Billy Penillos was while you were
inside the room, and while Abelardo Penillos was demanding from you some money while you
were being pinned under the table?
A

Yes, sir.

Q
And in these two instances where (sic) according to you, you recognized the face of
Abelardo Penillos, first, when you were in the room, the room was still dark because the lamp
was in the kitchen. Is that correct?
A

Yes, sir.

Q
And the second time that you recognized Billy Penillos was while you were being pinned
under the table, and under the table it was also dark at that time. Is that correct?
A
No, not dark, because the light from the kitchen was illuminating the place wherein I was
being pinned under the table. It was not dark.

Q
The table where you said you were pinned by Abelardo Penillos, how far was it from the
kitchen?
A

About two meters.

How big is the table?

It is small, we use it, for our eating purposes. 18

This Court cannot yield to the postulations of the appellant that Penillos would have worn a mask
during the incident knowing as he did that Epifania was familiar with him and that the latter was
impelled by evil motives in implicating him in the commission of the offense.
The first theory assumes that the wearing of masks to hide one's identity is a universal practice
resorted to by criminals who are known to their prospective victims and who exercise utmost
prudence and care in ensuring that no witness would be able to identify them while committing a
crime. These assumptions are, of course, without any empirical basis and are, at best,
speculative. On the other hand, the evil motive ascribed to Epifania by reason of an alleged prior
verbal exchange between Penillos and her is a mere figment of the former's imagination. Such
verbal disagreement allegedly arising from the refusal by Epifania to allow Penillos to use her
yard as a pathway, even if true, is inconsequential, trivial and insufficient to move one to accuse
another of committing robbery with homicide.
With his positive identification, appellant's defense of alibi must fail.
We defer to the conclusion by the court a quo that the protestations of the appellant "held in
contrast with the positive identification made by Epifania Lopez on his complicity in the
commission of the offense could not provide a justifiable ground to extricate him." 19
Appellant testified that between 6:00 p.m. and 8:00 p.m. on 31 July 1981, the day of the incident,
he was travelling by carabao from Sitio Esperanza to Nauntogan, the place of the incident, a
distance of about four (4) kilometers. He was allegedly accompanied by one Victor Marao.
Arriving at his destination at around 8:00 p.m., he proceeded to the house of his father-in-law, coaccused Mariano Marao, which is about thirty (30) meters away from the residence of the
victims. At the house of Mariano, appellant also encountered his other co-accused, Jose Nuyda
and Romeo Nuyda. While having supper therein, appellant overheard Mariano and the Nuydas
talking about something that they would divide among themselves. 20
Appellee easily demolishes this defense by alleging that: Penillos' alleged travel from Esperanza
to Nauntogan was not even corroborated by his supposed companion, Victor Marao, who was
not presented as a witness; Penillos' presence at the house of his co-accused, a mere thirty (30)
meters away from the scene of the crime, militates against his defense in view of the positive
identification by Epifania; and that it was not physically impossible for the appellant to have been
at the place of the incident during the commission of the crime.
Settled is the rule that alibi cannot prevail over a positive identification made by a prosecution
witness. 21 For alibi to prosper, it is not enough to prove that the accused was somewhere when
the crime was committed but that he must also demonstrate that it was physically impossible for
him to have been at the scene of the crime. 22
Appellant also questions the manner in which he was initially identified by Epifania Lladones in
the hospital while the latter was recuperating from her injury. The former contends that the
procedure for conducting a police line-up should have been strictly followed. In People vs.
Espiritu, 23 We ruled that there is no law requiring a police line-up as essential to a proper
identification. Clearly then, this argument must also fail.

And now on the second assigned error. In respect to the allegation that the signed confession
(Exh. "B") was defective and should not have been admitted in evidence, the appellee practically
concedes the irregularity when it avers thus:
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From the record, it appears that appellant's sworn statement was executed in a manner not in full
accord with his right to the assistance of counsel. This may be seen in the preliminary portion of
the sworn statement, on which appellant was:
". . . reminded that under the new rules of the Constitution you have the right to remain silent and
the right to have counsel of your own choice. You are also reminded that whatever you say here
might be used for or against you in any court proceedings. Is this clearly understood by you?
Answer:

Yes sir.

Question:
After having been informed of your constitutional rights do you wish to proceed
with this investigation?
Answer:

Yes sir.

Question:

Are you ready to give free voluntary statement?

Answer:

Yes sir. (Folder of Exhibits, p. 2)."

Neither the preliminary portion aforecited nor the testimony of the investigating officer showed an
affirmative offer to provide appellant with counsel de oficio if he could not retain counsel of his
choice. Consequently, the sworn statement may very well be inadmissible and may not be utilized
against appellant. 24
Indeed it does not appear that constitutional safeguards afforded an accused under investigation
for the commission of an offense were complied with. Aside from the Solicitor General's
observations, it is clear that waiver of the right to counsel was not made in the presence of
counsel. On cross-examination, police investigator Demosthenes Martillano testified:
xxx

xxx

xxx

COURT:
Q
Why did you not place in the investigation that the witness is waiving his right to a (sic)
counsel?
A

That is my error.

BENDAA:
Q
Why? What do you mean by that answer of yours that it was your error? Will you please
explain to us that answer of yours?
A

All I know is that if the suspect does not need a counsel, I think, it was (sic) also suffice.

Q
Tell the court whether or not during the investigation Billy Penillos did not waive his right
to a (sic) counsel?
FISCAL

It is already stated, Your Honor please, in his statement that when the affiant chose to proceed
with the investigation, to answer all questions, he in effect is waiving his right to a (sic) counsel
after having been informed of all his rights.
xxx

xxx

xxx

COURT:
The witness had already admitted that he did not place specifically that portion of waiver. But it
does not mean that he did not ask the suspect. It is a matter of interpretation how you are going
to interpret that portion of your question. The court under that respect will sustain the objection of
the Fiscal. 25
Even if the confession of an accused is gospel truth, if it was made without the assistance of
counsel, it is inadmissible in evidence regardless of the absence of coercion or even if it had been
voluntarily given. 26 The same would necessarily apply to a waiver of the right to counsel not
made in the presence of counsel.
In Morales vs. Enrile, et al., 27 this Court, applying and interpreting Section 20, Article IV of the
1973 Constitution, which provides as follows:
Sec. 20.
No person shall be compelled to be a witness against himself. 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.
laid down the duties of an investigator during custodial interrogation and ruled that the waiver of
the right to counsel shall not be valid unless made with the assistance of counsel, thus:
7.
At the time a person is arrested, it shall be the duty of the arresting officer to inform him of
the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed
of his constitutional rights to remain silent and to counsel, and that any statement he might make
could be used against him. The person arrested shall have the right to communicate with his
lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible
or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this
is accomplished. No custodial investigation shall be conducted unless it be in the presence of
counsel engaged by the person arrested, by any person on his behalf, or appointed by the court
upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may
be waived but the waiver shall not be valid unless made with the assistance of counsel. Any
statement obtained in violation of the procedure herein laid down, whether exculpatory or
inculpatory, in whole or in part, shall be inadmissible in evidence.
We reiterated the above ruling in People vs. Galit, 28 People vs. Lumayok, 29 People vs.
Albofera 30 and People vs. Marquez. 31 In view therefore of the law and jurisprudence, the sworn
statement of appellant, Exhibit "B", is hereby declared inadmissible in evidence and should have
been rejected by the trial court even if it is not in fact a confession for, as correctly observed by
the People, it is exculpatory in nature. Just the same, since it was taken in violation of appellant's
constitutional right to counsel, its exculpatory character did not cure the fatal defect.
We wish to underscore that Section 12(l) of Article III of the present Constitution has gone further
to protect, promote and enhance the right to counsel of any person under investigation by
expressly providing that such is a right "to have competent and independent counsel preferably of
his own choice" and that it "cannot be waived except in writing and in the presence of counsel."

Be that as it may, We affirm the judgment of conviction by the trial court on the basis of the
testimonies of the witnesses presented by the prosecution. Concluded the lower court: "The truth
and as clearly borne by the evidence is: the defendant was among the perpetrators of the
heinous offense. The robbery, left in its wake the death of Aproniano Lladones and the wounding
of his wife Epifania Lopez Lladones." 32
A trial court's findings of facts carry great weight for it has the privilege of examining the
deportment and demeanor of witnesses and, therefore, can discern if such witnesses are telling
the truth or not. 33 In the light of the evidence presented in the proceedings below, We do not see
any reason to disturb the lower court's factual conclusions.
We, however, modify the designation of the offense the appellant was convicted for on the basis
of the information prepared by the then assistant city fiscal. The information should have charged
the appellant simply with the special complex crime of Robbery with Homicide under Article 294
of the Revised Penal Code. This Court has consistently held that this offense is denominated as
such regardless of the number of the homicides or injuries committed. These other circumstances
merely serve as generic aggravating circumstances which can be offset by other mitigating
circumstances. 34 There is no crime of robbery with homicide and frustrated homicide 35 or
robbery with homicide and attempted homicide. 36 The term "homicide" in paragraph 1, Article
294 of the Revised Penal Code is to be understood in its generic sense; it includes murder and
slight physical injuries committed during the robbery which crimes are merged in the crime of
robbery with homicide. 37
The trial court, however, should have taken into consideration the aggravating circumstance of
dwelling. Dwelling is aggravating in robbery with homicide because this type of robbery could be
committed without the necessity of transgressing the sanctity of the home. 38 It is indisputably
clear from the pleadings and the decision of the trial court that although the homicide was
committed outside the house of the deceased, the principal offense of robbery was perpetrated
inside; the killing thus occurred as a result of the initial evil design to steal.
The penalty for robbery with homicide and physical injuries defined under Article 294 of the
Revised Penal Code is reclusion perpetua to death. Considering the presence of the aggravating
circumstance of dwelling, the greater penalty, which is death, shall be applied. 39 However, in
view of the abolition of the death penalty, the appellant is entitled to the reduced penalty of
reclusion perpetua.
As noted from the dispositive portion of the challenged decision, the trial court imposed the
penalty of "reclusion perpetua or life imprisonment." Evidently, it considered the latter as the
English translation of the former, which is not the case. Both are different and distinct penalties. In
the recent case of People vs. Baguio, 40 this Court held:
The Code 41 does not prescribe the penalty of "life imprisonment" for any of the felonies therein
defined, that penalty being invariably imposed for serious offenses penalized not by the Revised
Penal Code but by special laws. Reclusion perpetua entails imprisonment for at least thirty (30)
years after which the convict becomes eligible for pardon, it also carries with it accessory
penalties, namely: perpetual special disqualification, etc. It is not the same as "life imprisonment"
which, for one thing, does not carry with it any accessory penalty, and for another, does not
appear to have any definite extent or duration.
As early as 1948, in People vs. Mobe, 42 reiterated in People vs.
Pilones, 43 and in the concurring opinion of Justice Ramon Aquino in People vs. Sumadic, 44 this
Court already made it clear that reclusion perpetua is not the same as imprisonment for life or life
imprisonment. Every judge should take note of the distinction and this Court expects, that,
henceforth, no trial judge should mistake one for the other.
Finally, conformably with the stated policy of this Court, the award of civil indemnity in the amount

of P20,00.00 is increased to P50,000.00. 45

WHEREFORE, except as modified in its dispositive portion to specify that appellant Abelardo
Penillo's penalty is to be reclusion perpetua, to remove the alternative reference therein to "life
imprisonment" and to increase the indemnity for the death of Aproniano Lladones to be paid by
him to the heirs of said deceased, the judgment of the trial court in Criminal Case No. 2144 is
hereby AFFIRMED in all respects. The attempted homicide aspect of the charge is likewise
deemed absorbed in one special complex crime of robbery with homicide, defined and penalized
under Article 294 of the Revised Penal Code, and the civil indemnity for the death of Aproniano
Lladones is hereby increased to P50,000.00.
IT IS SO ORDERED

Decisions / Signed Resolutions

THIRD DIVISION
[G.R. No. 75267, September 10, 1990]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. CARLOS DELA CRUZ Y VENANCIO ALIAS "BOSYO", ACCUSED-APPELLANT.
DECISION
FELICIANO, J.:

There are not many crimes more morally repugnant than the sexual violation of a young child.
This case involves such a crime: rape committed, with the bravado of evil, in a place dedicated to
prayer and worship of the Supreme Being. Accused appellant was charged with raping a 7-year
old girl in Criminal Case No. SM-2219 in a complaint which read as follows:
"Criminal Complaint
The undersigned complainant, Marciano Venancio, father of the minor, Brigida Venancio, accuses
Carlos dela Cruz y Venancio alias 'Bosyo' of the crime of rape, penalized under the provisions of
paragraph 3, Art. 335 of the Revised Penal Code, committed as follows:
That on or about the 6th day of September, 1980, in the municipality of Sta. Maria, province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Carlos
dela Cruz y Venancio alias 'Bosyo', with lewd designs, did then and there wilfully, unlawfully and
feloniously had carnal knowledge with a seven-year old girl, Brigida C. Venancio, against her will
and consent committed with force and violence.
Contrary to law."1 (Underscoring supplied)
The accused during arraignment pleaded not guilty. After trial and in due course of time, on 20
February 1985, the trial court rendered a decision, the dispositive portion of which stated:
"WHEREFORE, finding the accused Carlos dela Cruz y Venancio, guilty beyond reasonable
doubt of the crime of rape defined and penalized under Article 335(3) of the Revised Penal Code,
as amended, he is hereby sentenced to Reclusion Perpetua. He is furthermore ordered to
indemnify the victim Brigida Venancio, in the amount of P30,000.00.
SO ORDERED."2
The evidence of the prosecution tended to establish the following:
At about 8:00 o'clock p.m. on 6 September 1980, Brigida Venancio -- then barely seven (7) years
old3 -- was walking through a heavy rain, alone and without an umbrella, bound for her
grandparents' house. While Brigida was passing by the Chapel in Sta. Cruz, Sta. Maria, Bulacan,
the accused Carlos dela Cruz y Venancio, a blood relative of Brigida (the record does not
disclose in what civil degree), suddenly reached out from the doorway and grabbed Brigida's arm
and pulled her inside the Chapel. In the Chapel, where it was dark the lights being off, the
accused led her to the last pew, pinned her down on the pew and removed her panty.4 Accused
also removed his pants and immediately introjected or sought to introject his penis into little
Brigida's private organ. While so engaged, the accused covered Brigida's mouth with his one
hand and twisted her arm with his other arm. Accused succeeded in placing his organ on top and
at least partially into Brigida's private part.5 Shortly, thereafter, while the two (2) lay down on the
pew, head to head, with panty and pants on, respectively, two (2) young parishioners Luzviminda
Mendoza and Marilou Carpio, entered the Chapel for a scheduled prayer rally and switched on
the lights. Luzviminda Mendoza saw Brigida, who immediately stood up almost simultaneously
with the accused, dazed and soaking wet.6 Another parishioner Mrs. Francisca Mendoza,
Brigida's teacher in Grade I primary school, arrived in the Chapel a little later. She too saw Brigida
and the accused and wondered why she was still abroad rather than at home at such a late
hour.7 Mrs. Mendoza advised Brigida to go home immediately which Brigida did. On her way
back to her parents' house, Brigida met Luzviminda Mendoza's father, Mang Domeng, who on
noticing her dazed condition accompanied her home to her doorstep.8
After the rally, Luzviminda who was an aunt of Brigida, did not go home directly but went to the
house of Brigida's parents9 and asked the mother why Brigida was soaking wet and still not at
home at that late hour. After Luzviminda had left, the mother asked Brigida what had happened.
Brigida then told her mother she had been violated by Carlos "Bosyo" dela Cruz.10
The next day, 7 September 1980, Brigida and her parents and accompanied by Marilou Carpio
went to the office of the Police Station Commander of Sta. Maria, Bulacan, and reported the rape
of Brigida by the accused and had the matter reflected on the police blotter.11 In the afternoon of
the same day, Brigida was brought by her parents to the National Bureau of Investigation ("NBI")
office in Manila for medical examination.12 The examination was conducted by Dr. Nieto M.

Salvador who issued a Medico Legal Report dated 7 September 1980 which set forth the
following
"F I N D I N G S
General Physical Examination:
Height: 67 cms.
Weight: 20 kgs.
Normally developed, fairly nourished, conscious, coherent, cooperative, ambulatory subject.
Breasts infantile.
No evident sign of extragenital physical injuries noted.
Genital Examination:
Pubic hair, absent. Labia majora and minora, coaptated. Fourchette, tense. Vestibule, reddish
and congested. Hymen, intact. Hymenal orifice, minular admits a tube 0.5 c.m. in diameter.
Conclusion:
Hymen intact."13
Brigida's parents, however, did not think very much of the medical examination conducted by Dr.
Salvador. Brigida's mother later testified in court that she believed the examination had been
done hurriedly and cursorily and haphazardly.14 Notwithstanding the conclusion of Dr. Salvador's
report that Brigida's "hymen [was] intact", Brigida's parents were determined to pursue their
complaint on behalf of Brigida. They were not, however, able to lodge one immediately against
the accused, since the police investigator was not in his office whenever they went to the police
station.15 Thus, on 18 September 1980, Brigida and her mother went to the Philippine
Constabulary Criminal Investigation Service ("CIS") at Camp Crame for assistance. There,
Brigida was again examined by PC Medico-Legal officer Dr. Desiderio Moraleda who made the
following
"FINDINGS:
General and Extragenital:
Fairly developed, fairly nourished and coherent female subject. Breasts are undeveloped.
Abdomen is flat and tight. There are not external signs of recent application of any form of
trauma.
Genital:
There is absence of pubic hair. Labia majora are full, convex and gaping with the pale brown
labia minora presenting in between. On separating the same are disclosed a congested vulvar
mucosa, a tight and intact fourchette and an elastic, fleshy-type hymen with a deep, healed
laceration at 6 and shallow, healed laceration at 3 and 9 o'clock. External vaginal orifice offers
strong resistance to the introduction of the examining index finger.
Vaginal and peri-urethral smears are negative for gram-negative diplococci and for spermatozoa.
Remarks:
Subject is in non-virgin state physically."16
The defense's version of the facts was simply that the rape never happened. The accused
testified that he had come from work and stopped by and stayed at the Chapel waiting for the rain
to stop.17 He dozed off, he said, and upon waking up, found a child sleeping on a pew some little
distance from where he himself had fallen asleep. He testified that he saw Mrs. Francisca
Mendoza talk to the child; that he had not done anything to Brigida; that he had not inserted his
organ into Brigida's private part; and he had not removed her panty nor lain on top of her.18
The accused's bare denial was not corroborated by any other witness. Luzviminda Mendoza's
testimony, even if presented by the defense, strongly suggested that something out of the
ordinary had happened on the evening of 6 September 1980 inside the Sta. Cruz Chapel; for, as
noted, she proceeded to Brigida's home right after the prayer rally, indicating that finding the child
Brigida with the accused in the Chapel in such a condition -- soaked to the skin and dazed -- had
aroused her concern.
Upon the other hand, the testimony of the child Brigida in open court was starkly simple and
straightforward. She said:

"Atty. Regalado:
Q: Brigida, do you know a person by the name of Carlos dela Cruz or 'Bosyo'?
A: Yes, sir.
Q: If he is inside this courtroom, can you point to him?
A: That man (witness pointing to a man who responded to the name of Carlos dela Cruz).
xxx
xxx
xxx
Q: Ida, you earlier said that you have a complaint please tell us what that complaint was? You
are complaining against whom?
A: Bosyo, sir.
Q: Why? Ida, did you also complain to your mother about Bosyo?
A: Yes, sir.
Q: What did you complain to your mother about?
A: Bosyo undressed me, sir.
Q: Are you also making the same complaint here or what?
A: The same, sir.
xxx
xxx
xxx
Court:
Proceed.
[Atty. Regalado:]
Q: On the night that you reported to your mother, what exactly did you tell your mother on the
night you reported it to your mother?
A: That Bosyo 'hinubaran po ako ni Bosyo at inilabas niya ang kanyang titi at inilagay sa kiki ko
po'.
Q: What else did he do to you?
A: He covered my mouth with his hands.
Q: What else?
A: He twisted my arm, sir.
Q: Will you please show the Honorable Court how your arm was twisted by the accused?
A: This way, sir. (Witness holding her right wrist by her left hand and twisting the same.)
Q: Now Bosyo you said 'hinubaran ka . . .
Court:
Was the panty removed?
Atty. Hernandez:
We agree to that translation, your Honor.
Court:
Go ahead.
Atty. Regalado:
Q: When Bosyo pulled down your panty, will you please state before this Honorable Court how
he put down your panty?
A: (Witness showing that her panty was being put down.)
Q: When your panty was down already, what did Bosyo do, if any?
A: He put his penis on my vagina, sir. (Witness demonstrated by movements)
Court:
Were you sitting or standing at the time or were you lying?
A: I was lying sir.
Q: And how did he do it?
A: (Witness demonstrated the manner how Bosyo laid on top of her.)
Court:
Proceed:
Atty. Regalado:
Q: At the time, what place was that where you said you were lying?
A: On a long bench, sir.
Q: Approximately, if you can remember what time was that in the evening?
A: Around 8:30 in the evening, sir.
Q: Where did the incident happen?
A: Inside the chapel, sir.

Q: You said chapel, what chapel was that?

A: Sta. Cruz, Sta. Maria, Bulacan, sir.
Court:
Aside from you and Bosyo, were there other persons there?
A: None, sir.
Atty. Regalado:
Q: How many minutes did this Bosyo had the opportunity of putting his penis in your vagina?
A: Quite a few seconds, sir.
xxx
xxx
x x x"19
(Underscoring supplied)
The trial court which heard Brigida's testimony from beginning to end, found that her statements
had the ring of truth and were convincing. The trial court said:
"The Court is not unmindful of that judicial pronouncement deeply embedded in jurisprudence
that the accusation for rape is easily made, hard to prove, but harder to be defended by the party
accused, though innocent. (U.S. v. Flores, 26 Phil. 262). In this case, however, it is
inconceivable and it is extremely difficult for the Court to believe that a seven year old girl,
unmotivated and so blissfully innocent, could concoct a narration such as she testified to in Court.
That she did not complain to her Aunt or to her teacher when the two found her in the Chapel with
the accused is understandable. She was so young, just a child. She must have been shocked by
what has been done to her by the accused. No wonder she was speechless. She could not
comprehend what happened. The pain in her vagina when she urinated upon reaching home
however must have been such that constrained her to tell her mother what the accused did to her.
Against the narration of a guileless 7 year old girl, the mere denial and protestation of innocence
of a 25 year old man cannot prevail. The Court is thoroughly convinced of the truth of Brigida
Venancio's story. No more need be said."20 (Underscoring supplied)
We find no basis for disagreeing with the evaluation of the trial court.
The appellant, however, insists that the charge against him had not been established beyond
reasonable doubt. He urges that there is significant variance between the result of the medical
examination conducted on Brigida by the NBI doctor, Dr. Nieto M. Salvador, who found Brigida's
hymen to have been "intact" and the result of the examination conducted a few days later by the
Philippine Constabulary CIS physician, Dr. Desiderio Moraleda who concluded that Brigida was
then "in a non-virgin state". Accused submits that the finding of Dr. Salvador should prevail over
that of Dr. Moraleda since the findings of the former were obtained barely twenty-four (24) hours
after the alleged rape had occurred while Dr. Moraleda examined Brigida some eleven (11) days
after the violation. Accused further argues that even assuming the truth of Brigida's testimony in
open court, such testimony indicated that the accused's male member was merely placed on top
of the private part of the victim Brigida and had not passed into it,21 and that there was no proof
at all that his male member had penetrated into the female opening of the victim.
Apropos the above argument, we note, firstly, that medical findings are not indispensable in the
prosecution of the crime of rape.22 We note, secondly, that the fact that a woman's hymen is
found intact does not show that there had been no penetration by an accused's male organ. It is
well-settled doctrine that the slightest penetration of the pudenda is quite sufficient for the
consummation of the crime of rape. In People v. Abonada,23 the Court pointed out that "the
medical finding that the hymen is intact does not negate rape. Penetration of the penis by entry
into the lips of the female organ even without rupture or laceration of the hymen suffices to
warrant conviction for rape".24 Moreover, Dr. Salvador testified that he had found physical
evidence of "manipulation" of the vagina or the vestibule thereof, which is consistent with entry
into the lips of the female part of Brigida:
"Court:
Q: You use the word manipulation, what was manipulated?
A: The attempt to insert a finger or in some other cases wherein the man attempts to insert his
erected penis on the child whose genitalia is not yet ripe, with that particular act, there is no way

that the penis can go inside the vaginal opening because at this age, the vaginal opening is still
narrow, normal, .5 cms.
Q: In this particular case of Brigida, there were signs that there were manipulations?
A: I think so because the appearance is reddish which is not normal, it should be pinkish.25
(Underscoring supplied)
Dr. Moraleda's finding, upon the other hand, was that Brigida's hymen had in fact been lacerated,
showing that there must have been some penetration. The fact that Dr. Moraleda's examination
of Brigida took place eleven (11) days after the examination by Dr. Salvador does not impair the
credit worthiness of Dr. Moraleda's findings. It is important to note, moreover, that the testimony
of the child Brigida herself is quite consistent with the findings and testimony of both Dr. Salvador
and Dr. Moraleda that there had been some penetration at least of the labia of Brigida's female
part. Brigida's testimony stated, in relevant part:
"Court:
Q: Ida, you said he put his penis into your vagina, does his penis get into your vagina or not?
A: Only on top, sir.
Q: It did not go in?
A: No, sir.
Q: And did you feel any pain or you did not feel any pain?
A: Yes, sir. I felt pain, sir.
Q: Why did you feel pain, what pain? Where was the pain on your vagina or your body as a
whole?
A: In my vagina, sir.
Q: Was medical report?
Fiscal:
The record of the fiscal's office show there were two medical examinations.
Court:
Q: Ida, you said a short time did you urinate at that time?
A: Yes, sir.
Q: What about this Bosyo did he urinate?
A: No, sir.
Q: How do you know you urinated?
A: (Witness does not answer.)
Q: Did you know whether something came out from the penis of Bosyo?
A: Sticky fluid and dropped on my thigh.
Q: But you said you urinated, when did you urinate at the time or when?
A: When I went home, sir.
Q: Did you notice any or rather did you notice whether or not there was blood around the area of
your vagina?
A: No, sir."26 (Underscoring supplied)
Brigida's statement that she had felt pain in her private part would have been incomprehensible if
there had been absolutely no penetration, not even of the labia, by the accused's male organ. It
appears to the Court, that the 7-year old Brigida was much too young to be capable of
distinguishing between the penis merely lying outside the vagina and on top of the pubes, from
the erect penis poking into the labia in the effort to get into the vaginal canal, but being unable to
do so because of the unripe or infantile condition of the canal. We agree with the conclusion of
the trial court that there had in fact been some penetration at least of the labia and that
consequently, the crime that was committed was consummated rape.
It was proven at the trial that the violation of the child Brigida took place in the Sta. Cruz Chapel in
Sta. Maria, Bulacan, a building dedicated to and actively used for religious worship. The criminal
information did not apparently specify the place of the commission of the rape. Nonetheless, the
trial court could have and should have found the presence of the generic aggravating
circumstance of commission of the offense in a place dedicated to religious worship.27 The trial
court made no mention of such aggravating circumstance in its decision. Because the
appropriately imposable penalty of reclusion perpetua is an indivisible penalty, and was in fact

imposed by the trial court, the finding that we here make of the presence of this generic
aggravating circumstance, does not impact upon the imposable penalty.28
WHEREFORE, the Decision of the trial court dated 20 February 1985 must be, as it is hereby,
AFFIRMED. Costs against appellant.
SO ORDERED.

G.R. No. 139970. June 6, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JIMMY DELA CRUZ Y QUIMPO, accusedappellant.
DECISION
QUISUMBING, J.:
Before us is the appeal from the decision[1] dated July 7, 1999, of the Regional Trial Court of
Kalibo, Aklan, Branch 2, in Criminal Case No. 5270, convicting accused-appellant JIMMY DELA
CRUZ y QUIMPO of murder and sentencing him to reclusion perpetua.
The Information against him alleged:
The undersigned Third Assistant Provincial Prosecutor of Aklan hereby accuses JIMMY DELA
CRUZ y QUIMPO of Barangay Mobo, Kalibo, Aklan of the crime of MURDER, committed as
follows:
That on or about the 1st day of September, 1998 in the evening, in Barangay Tigayon,
Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, while armed with a knife, with treachery and
with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and stab

one ARNULFO INOCENCIO, inflicting upon the latter physical injuries, to wit:
EXTERNAL EXAMINATION:
- (+) Stabbed Wound, (L) MCL, Level of 6th Intercostal Space, 3 cm in length.
INTERNAL EXAMINATION:
- (+) Stabbed Wound, Anterior Pericardium, 3 cm
- (+) Stabbed Wound/Perforation of Right Ventricle, 3 cm
- (+) Blood, 50 cc Pericardial Space
as per Post-Mortem Examination Finding and Certificate of Death, respectively, issued by
Segundo L. Anayan, Jr., M.D., Medical Officer III of the Dr. Rafael S. Tumbokon Memorial
Hospital, Kalibo, Aklan, copies of which are hereto attached as Annexes A and B, and made
as an integral part hereof, and which injuries sustained by the victim have caused his instant
death.
That by reason of the unlawful acts of the accused, the heirs of the victim have suffered actual
and compensatory damages in the amount of P50,000.00.
CONTRARY TO LAW.[2]
On December 1, 1998 appellant, assisted by counsel de oficio, entered a plea of not guilty to the
offense charged.[3] During the plea-bargaining stage, appellant proposed to plead guilty to the
lesser crime of homicide, claiming to have acted in self-defense. However, the family of the victim
rejected such offer. After his arraignment, trial ensued.
The prosecution presented the following witnesses, namely: Dr. Segundo Anayan, Jr., Jovelyn
Felizario, Glen Cipriano, and SPO4 Dioscoro Tolentino.
DR. SEGUNDO ANAYAN, JR., Medical Officer III of Dr. Rafael S. Tumbokon Memorial Hospital
testified that he conducted an autopsy on the body of the victim, Arnulfo Inocencio. He found that
the victim suffered a single stab wound located two ribs below the left nipple, which was fatal. He
opined that the wound could have been inflicted by the assailant while facing the victim.[4] His
post-mortem examination revealed:
EXTERNAL EXAMINATION:
- (+) Stabbed Wound, (L) MCL, Level of 6th Intercostal Space, 3 cm in length.
INTERNAL EXAMINATION:
- (+) Stabbed Wound, Anterior Pericardium, 3 cm
- (+) Stabbed Wound/Perforation of Right Ventricle, 3 cm
- (+) Blood, 50 cc Pericardia Space
CAUSE OF DEATH:
Hypovolemic Shock due to Perforation of Right Ventricle due to Stab Wound.[5]
JOVELYN I. FELIZARIO, first cousin of the victim Arnulfo Inocencio,[6] testified that in the

evening of September 1, 1998, several visitors were in her house at Tigayon, Kalibo, Aklan since
it was the birthday of her brother, Jonel. At around 11:00 that evening, Arnulfo Inocencio,
appellant Jimmy dela Cruz, and brothers Glenn, Gilbert and Greg Cipriano were having a drinking
session. Arnulfo played a guitar while appellant sang along. Afterwards, appellant requested
Arnulfo to give the guitar to Gilbert. Arnulfo obliged and rose to hand the guitar to Gilbert. When
Arnulfo returned to his seat, appellant suddenly drew his knife from his waist and stabbed Arnulfo.
According to the witness, appellant then pointed at Arnulfo and said, There, he is already dead.
The witness added she was just two meters away from the victim and the appellant when the
stabbing incident happened.
On cross-examination, Jovelyn Felizario said that she knew no reason for the attack, since no
altercation between the two took place.[7]
GLEN M. CIPRIANO, another eyewitness to the stabbing, corroborated the testimony of Jovelyn
Felizario. He testified that on September 1, 1998 at around 11:00 P.M., he was with the birthday
celebrant Jonel Felizario, his two brothers Gilbert and Greg, appellant, and Arnulfo. They had a
drinking spree at the house of Antonio Felizario at Brgy. Tigayon, Kalibo, Aklan. He was seated in
one corner talking to Jovelyn Felizario. In front of them were appellant and Arnulfo who were
standing beside each other. According to the witness, appellant suddenly stabbed Arnulfo with a
knife hitting the latter on the left side of his breast. The witness said he was just two meters
away. After stabbing Arnulfo, appellant said, There he is dead. The stabbing was not preceded
by any quarrel or altercation between Arnulfo and appellant, according to the witness. In fact,
they were even singing and playing the guitar before the incident. Further, he testified that the
victim was unarmed when he was assaulted by appellant.[8]
SPO4 DIOSCORO G. TOLENTINO, JR., desk officer of Kalibo PNP station, testified that past
midnight, at around 12:45 A.M. of September 2, 1998, barangay captain Gil Isberto of Barangay
Tigayon, Kalibo, Aklan, with appellant in tow, went to their station. Barangay captain Isberto
informed him that appellant surrendered to him (Isberto) after the stabbing incident. Thereafter,
SPO4 Tolentino made the appropriate entry in the police blotter and detained appellant. On the
following day, SPO4 Tolentino conducted an investigation and after securing the necessary
papers, filed the case with the Office of the Provincial Prosecutor.[9]
For the defense, witness Dr. Antonieta J. Templado and barangay captain Gil Isberto, and
appellant himself testified.
Appellant JIMMY DELA CRUZ y QUIMPO admitted stabbing the victim but claimed that it was the
victim who attacked him and that he merely acted in self-defense. He testified that at around 6:30
P.M. of September 1, 1998, he attended the birthday party of Jonel Felizario after having been
invited by Jonel, the victim Arnulfo Inocencio, and one Jimmy Inocencio. The party was held at
the residence of Jonels father, Antonio Felizario, in Brgy. Tigayon, Kalibo, Aklan. After eating his
dinner, he joined the other visitors who at that time were engaged in singing, playing a guitar, and
drinking beer and tuba (toddy). Sometime between 10:00 P.M. and 11:00 P.M., he asked
permission to go home from Arnulfo Inocencio. He did not ask permission from the owner of the
house because the latter was already asleep and his son Jonel, the birthday celebrant, was in the
kitchen. However, Arnulfo did not allow him to leave and asked him to stay a little longer as there
was still much liquor to drink. Appellant insisted and informed Arnulfo that he had to go for he had
promised his wife that he would be home by 10:00 P.M. He was about to leave when Arnulfo told
him, If you are going home, just bring this with you. When appellant turned around, he saw
Arnulfo thrusting a knife towards him. He parried the thrust and the knife hit his left hand. When
Arnulfo attempted to stab him a second time, appellant drew his own knife from his right waist
and stabbed the victim. Thereafter, he immediately left the house and proceeded to his fathers
residence. He surrendered to barangay captain Gil Isberto of Tigayon, Kalibo, Aklan who turned
over his person to the police. He said he was not able to surrender the knife he used in stabbing
Arnulfo because he threw it in the middle of the river.[10]

Appellant denied harboring any grudge against the victim although he admitted that his younger
brother figured in a quarrel with Arnulfo sometime earlier.[11]
DR. ANTONIETA TEMPLADO, Medical Officer IV of Dr. Rafael S. Tumbokon Memorial Hospital,
testified that on September 2, 1998, she treated appellant who suffered a one-inch long
superficial incised wound at the back of his left hand. She opined, however, that the wound could
have been self-inflicted and it could have been caused by a knife.[12]
GIL ISBERTO, barangay captain of Tigayon, Kalibo, Aklan testified that at around 12:00 midnight
of September 1, 1998, appellant, appellants father, brother-in-law, and Isbertos nephew went to
his house. They informed him that appellant stabbed a certain Inocencio. Isberto noticed that
appellant had a superficial wound about two inches long on his left wrist. He turned over
appellant to the police.[13]
The prosecution presented rebuttal evidence through the testimony of Jonel Felizario.
Felizario testified that appellants claim that he was in the kitchen when the latter asked
permission to leave his birthday celebration is not true. Neither was appellant stabbed by Arnulfo
Inocencio with a knife. He said that he was urinating outside of their house at the time of the
stabbing incident and the victim was unarmed since no knife has been recovered at the scene of
the crime.[14]
Rejecting appellants claim of self-defense, the trial court convicted him of the crime or murder
and sentenced him, thus:
WHEREFORE, the Court finds the accused JIMMY DELA CRUZ y QUIMPO GUILTY beyond
reasonable doubt of MURDER and hereby imposes upon him the penalty of RECLUSION
PERPETUA.
Further, the Court hereby orders the said accused to pay the legal heirs of the victim ARNULFO
INOCENCIO the amount of P50,000.00 as indemnity for the death of the latter.
Furthermore, the Court hereby orders that the said accuseds period of preventive imprisonment,
be credited in full in the service of his sentence.
With COSTS against the accused.
SO ORDERED.[15]
Hence, this appeal, in which appellant contends that:
I
THE COURT A QUO ERRED IN DISREGARDING THE CLAIM OF SELF-DEFENSE RAISED BY
THE ACCUSED-APPELLANT DESPITE THE FACT THAT THE LATTER WAS ABLE TO DULY
PROVE THE SAME WITH HIS CORROBORATED TESTIMONY.
II
THE COURT A QUO LIKEWISE ERRED IN FINDING THE TESTIMONY OF THE ACCUSEDAPPELLANT NOT CREDIBLE ON THE BASIS OF SPECULATIONS, CONJECTURES AND
SURMISES WHICH ARE UNTENABLE GROUNDS.
III
THE COURT A QUO COMMITTED REVERSIBLE ERROR IN RULING THAT TREACHERY IS

ATTENDANT IN THE CASE AT BAR NOTWITHSTANDING THAT THE PROSECUTION FAILED

TO ESTABLISH THE SAME.[16]
The main issue to be resolved by this Court is whether or not the lower court erred in rejecting
appellants plea of self-defense while giving full faith and credence to the prosecutions evidence.
Appellant admits that he killed the victim, Arnulfo Inocencio. However, he avers he did it in selfdefense. He claims that it was Arnulfo who attacked him first and that he had no recourse but to
stab Arnulfo. Appellant assails the credibility of the prosecution witnesses primarily on the basis
of their relationship with the victim as well as the relative weight given by the trial court to their
testimonies.
For the appellee, the Office of the Solicitor General (OSG), contends that the evidence for the
defense failed to establish the elements of self-defense as a justifying circumstance. In particular,
appellant failed to show unlawful aggression on the part of the victim. According to the OSG,
factual findings of the trial court and its evaluation of the testimonies of the witnesses must be
respected and given full weight on appeal.[17] Further, the OSG asserts that treachery attended
the killing of Arnulfo Inocencio. The attack was sudden and unexpected, affording the helpless
and unarmed victim no chance to resist or to escape.
After a careful review of the record, we find no cogent reason to overturn the assailed decision of
the trial court. By invoking self-defense, the burden is placed upon appellant to prove clearly and
convincingly the elements thereof: unlawful aggression on the part of the victim, reasonable
necessity of the means employed to prevent or repel the aggression, and lack of sufficient
provocation on his part.[18] Although all the three elements must concur, self-defense must rest
firstly on proof of unlawful aggression on the part of the victim.[19] If no unlawful aggression has
been proved, no self-defense may be successfully pleaded, whether complete or incomplete.[20]
In this case, appellants testimony miserably failed to prove the existence of unlawful aggression.
He claims that it was the victim who, without provocation on his part, suddenly attacked him. To
defend himself, he was constrained to pull out the knife from his waist and stab the victim on the
chest.
However, the testimonies of prosecution witnesses Jovelyn Felizario and Glen Cipriano
controverted appellants version of the incident. They both testified that the stabbing of the victim
by appellant was sudden and unprovoked. Their positive declarations certainly outweigh the selfserving allegation of appellant. Likewise, we note the trial courts observation of the appellant on
the witness stand, thus:
The accused seemed unconfident (sic) when he related before the Court his version of the
stabbing incident. He seemed anxious on the witness stand and he appeared to be hiding
something as he could not deliver his statements smoothly and naturally. Certainly, these
circumstances in his personal behavior as keenly observed on the witness stand, ruined his
credibility.[21]
With respect to the matter of credibility of witnesses, the well-settled rule is that in the absence of
a clear showing that some fact or circumstance of weight or substance had been overlooked,
misunderstood or misapplied,[22] the trial judges assessment of the witnesses and their
testimonies would not be disturbed on appeal. For the determination of credibility is the domain
of the trial court, and the matter of assigning values to the testimonies of witnesses is best
performed by it.[23]
Also, appellant attempted to impugn the credibility of the prosecution witnesses on account of
their relationship with the victim. However, the mere fact that Jovelyn and Jonel Felizario are
relatives of the victim and that Glen is the victims friend does not prove bias or partiality on their
part sufficient to undermine the veracity of their testimonies. It was not shown that they had any
ill motive that drove them to make false accusations against appellant. Relationship by itself does

not give rise to a presumption of bias or ulterior motive, nor does it ipso facto impair the credibility
of a witness. Besides, the natural interest of witnesses, who are relatives of the victim, in securing
the conviction of the guilty would deter them from implicating persons other than the true culprits;
otherwise, the guilty would go unpunished.[24] Further, Glen is a good friend of both the appellant
and the victim. There is no showing of any reason for him to testify falsely in favor of one and
against the other.
Appellant assails as purely speculative or conjectural the trial courts findings that his testimony is
of doubtful veracity and that the wound in his hand is nothing but a self-inflicted injury. He
contends that these findings disclose partiality against him on the part of the trial judge.
Unfortunately, appellants contention are not borne by the records of the case. Moreover, a judge
enjoys the presumption of regularity in the performance of his functions. The findings by the trial
judge are not manifestation of bias or partiality, but they are the result of observations by the
judge that he properly took into account in the rendition of judgment.[25]
In our view, the one-inch long wound in appellants left hand was too superficial to support his
claim that it was inflicted while he was parrying the thrust of the victim. The mere fact that he was
wounded does not prove indubitably his claim that he acted in self-defense. Nor that the victim
and not he was the aggressor. Note that appellant did not present a knife during the trial to
bolster his case. The witnesses for the prosecution denied that the victim was armed with a knife
and, indeed, none was recovered from the scene of the crime.
Based on the established facts, the Court agrees with the trial court that the killing of Arnulfo
Inocencio was attended by the qualifying circumstance of treachery. There is treachery when one
employs means, methods or forms in the execution of a crime without risk to oneself arising from
the defense which the offended party might make.[26] The victim was then unarmed and oblivious
to the possibility of a deadly attack as he was even having fun with his friends and appellant.
There was no altercation or confrontation that preceded the attack. The suddenness and
unexpectedness of the attack even failed to forewarn or arouse any alarm from the victims
drinking companions. They did not suspect that anything untoward would happen. Indeed, the
essence of treachery is the swift and unexpected attack on an unarmed victim that insures its
execution without risk to the assailant arising from the defense of his victim.[27] Moreover,
although the victim and his assailant were face to face at the time the stabbing was made, where
it appears that the attack was not preceded by a dispute and the offended party was unable to
prepare for his defense, treachery should be taken into account.[28]
Finally, to appellants credit, the trial court considered the mitigating circumstance of his voluntary
surrender to the barangay captain. Appellant spontaneously and unconditionally placed himself
in the hands of the authorities, and saved them the time and effort attendant to a search.[29] The
testimony of barangay captain Isberto and the police officer on this point were not contradicted by
the prosecution. Thus, we find that the trial court correctly imposed the minimum of the penalty
prescribed by law for the crime of murder which is reclusion perpetua. We also find proper the
award of P50,000 as civil indemnity but pursuant to current jurisprudence, another sum of
P50,000 as moral damages should also be awarded to the heirs of the victim, without need of
further proof other than the fact of the victims death.[30]
WHEREFORE, the decision of the Regional Trial Court of Kalibo, Aklan, Branch 2, in Criminal
Case No. 5270, is hereby AFFIRMED with MODIFICATION. Appellant JIMMY DELA CRUZ y
QUIMPO is found guilty beyond reasonable doubt of the crime of murder and sentenced to suffer
the penalty of reclusion perpetua, as well as to pay the heirs of the victim P50,000 as civil
indemnity, and P50,000 as moral damages, together with the costs.
SO ORDERED.

G.R. No. L-77912

March 6, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ERNESTO SANTOS, @ "KARIBA", accused-appellant.
The Office of the Solicitor General for plaintiff-appellee.
Ray G. Leonidas counsel de officio for accused-appellant.

GUTIERREZ, JR., J.:

The present appeal prays for an acquittal of the accused-appellant who was convicted of the
crime of statutory rape in Criminal Case No. 7790-M by the Regional Trial Court of Bulacan, Third
Judicial Region, Branch 14-Malolos. The decision sought to be reversed contains the following
dispositive portion:
WHEREFORE, judgment is hereby rendered, finding the accused guilty beyond reasonable doubt
of the crime of rape under Par. 3, Article 335 of the Revised Penal Code and is sentenced (sic) to
suffer Reclusion Perpetua or Life Imprisonment. To indemnify the victim P10,000.00 as moral
damages. With costs (RTC Decision, p. 7; Rollo, p. 42)
The original complaint in the instant case was filed by the victim's mother on March 6, 1985. On
August 9, 1985, an amended information was filed so as to have the victim herself as the
offended party assisted by her mother considering that she was a minor at the time of the criminal
incident and at the filing of the criminal charge against the accused-appellant. The amended
information reads:
The undersigned Provincial Fiscal on complaint of the offended party Priscilla Marcos assisted by
her mother Pilar G. Marcos accuses Ernesto Santos alias "Kariba" of the crime of rape, penalized
under the provisions of Art. 335 of the Revised Penal Code, committed as follows:
That on or about the 26th day of November 1984, in the municipality of Obando, province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Ernesto
Santos, alias "Kariba", did then and there wilfully, unlawfully, and feloniously, by means of force,
threats and intimidation, have carnal knowledge of the offended party Priscilla Marcos, a minor,
against her will and consent.
Contrary to law. (Records, p. 27)
The offended party at the time of the alleged crime was only nine-years old while the accusedappellant was twenty-five years old.
The pertinent facts as presented by the Solicitor-General are as follows:
In the morning of November 26, 1984, Pilar and son left their house and proceeded to a hospital

to attend to another son. She left behind her daughter Priscilla and three other sons, the eldest of
whom was 3 years old, to her sister-in-law, Asuncion Marcos, who was then residing with them
since Pilar's husband left to work abroad. (pp. 3-4, & 10 tsn, September 13, 1985; p. 9-10, 16 tsn,
October 4, 1985)
At about 6:00 o'clock that afternoon, as Asuncion went to a store nearby to buy something, the
appellant entered their house. And, finding Priscilla to be only with her three kid brothers,
appellant undressed her by removing her panty, and ordered her to lie down, which she did.
Thereafter, he removed his penis into his own pants and laid on top of her as he inserted his
penis into her vagina. That while the appellant was having sexual intercourse with her, Priscilla
felt pains (pp. 4-5, tsn, October 4, 1985; pp. 5-13, tsn, February 5, 1986.)
Meanwhile, as Asuncion was entering the house upon her arrival, she saw the appellant on top of
her niece, Priscilla, who were both naked. (sic) The appellant immediately stood up and put on
his clothes, as he pushed Priscilla who by then also stood up crying. The appellant left after
warning the two not to report the matter to Priscilla's mother (pp. 4-8, tsn, October 4, 1985).
As soon as Priscilla's mother arrived home at about 7:00 o'clock that evening, Asuncion reported
to her what happened to Priscilla. That same evening, they reported the incident to the police,
which conducted an investigation of the case. Thereafter, on the basis of the sworn statements of
Pilar and Asuncion (Exhibit "B" and "E", respectively), a complaint for rape (Exhibit "D") was filed
by Pilar against the appellant (pp. 14-15, tsn, October 4, 1985).
On November 28, 1984, Priscilla was submitted for medical examination to the Municipal Health
Office of Obando, Bulacan (p. 13, tsn, September 13, 1985; pp. 4-5, tsn, May 5, 1986) Obando
Municipal Health Officer, Dr. Rufino Bautista, who conducted the examination, issued under date
of December 10, 1984 a Medical Certificate (Exhibit "C") stating his findings, as follows:
No external physical findings noted except for internal examination of the reproductive organ
shows (sic) the following findings:
I. E. Erythema of the labia minora
Superficial laceration of the hymen at 9:00 o'clock.
Hardly admit 3 cms. in diameter test tube and 1/4 of an inch depth has reach. (sic)
He also stated therein his conclusion that: "As to my medical evaluation, the glans penis, has
entered the canal at 1/4 of an inch only and it was not consummated." (Appellee's Brief, pp. 3-5;
Rollo, pp. 96-98)
Upon arraignment, the accused-appellant, assisted by his counsel, entered a plea of not guilty.
After trial on the merits, the lower court, on February 12, 1987, rendered a judgment of conviction
from which this appeal was interposed assigning as errors to wit:
A
ON THE CRIMINAL ASPECT: THE LOWER COURT ERRED IN CONVICTING THE ACCUSED
ERNESTO SANTOS FOR THE CRIME OF RAPE UNDER PARAGRAPH 3, ARTICLE 335 OF
THE REVISED PENAL CODE, BEYOND REASONABLE DOUBT.
B
ON THE CIVIL ASPECT: THE LOWER COURT ERRED IN SENTENCING THE ACCUSED
ERNESTO SANTOS TO INDEMNIFY THE VICTIM, PRISCILLA MARCOS, THE AMOUNT OF
P10,000.00 BY WAY OF MORAL DAMAGES, PLUS COSTS.

It is the contention of the accused-appellant that the testimony of the offended party is
inadmissible considering that she was only ten years old when she testified, hence, of such a
tender age that she was incompetent to be a witness. In relation thereto, the accused-appellant
invokes Rule 130, Section 19, subparagraph (b) which states that:
Physical disqualification The following persons cannot be witnesses:
xxx

xxx

xxx

(b)
Children who appear to the court to be of such tender age and inferior capacity as to be
incapable of receiving correct impressions of the facts respecting which they are examined, or of
relating them truly.
The contention is untenable. As correctly observed by the trial court, the manner by which
Priscilla narrated how she was abused by the accused-appellant is so clear and convincing that
no question can be posed as to the credibility and integrity of her testimony. The aforequoted law
is clear as to who may not be witnesses. It is also clearly indicated by the evidence on record that
the nine-year old victim in the instant case is outside the ambit of the disqualification
contemplated by law. We agree that her testimony in court reveals a full understanding of what
she was stating and a truthful account of the crime perpetrated by her assailant. In all the child's
innocence and naivety she could not have possibly concocted the story she related in court as to
how she was ravished and assaulted sexually by the accused-appellant.
In the case of People v. Ricardo Salita y Betus, (G.R. No. 76531, November 15, 1989), we held
that:
The testimony of the offended party (nine years old) is clear and spontaneous. It is the revelation
of an innocent child whose chastity was abused by appellant. It deserves full credence. . . .
Likewise, in the case of People v. Fernando Perez, (G.R. No. 84362 July 7, 1989), we accorded
full credence to the testimony of an eight-year old child who imputed the crime of rape to the
accused therein. Thus, a mere allegation that a witness is of a tender age is not sufficient to
disqualify her from sitting on the witness' stand. Even the sole testimony of a minor of such a
tender age will suffice to convict a person accused of a crime as long as the said testimony is
credible. (see People v. Traya, 147 SCRA 381 [1987]).
The accused-appellant further attempts to discredit the testimony of the offended party by
pointing out certain contradictions and inconsistencies, namely: that in her oral testimony in court,
the offended party admitted having felt pain at the time the accused allegedly had sexual
intercourse with her while during the preliminary investigation, she stated otherwise; that the
offended party testified in court that the only part kissed by the accused was her right neck but
during the preliminary investigation, she stated that her private parts were also kissed by her
assailant; that in her police statement, the offended party declared that the accused made her to
lie down before he had intercourse with her while during the preliminary investigation, she
testified that the sexual act was done to her in a standing position.
After a careful perusal of the records of the instant case, we find the alleged variance in the
testimonies of Priscilla too trivial so as to actually affect the finding that the accused-appellant is
guilty of statutory rape. It is an oft repeated rule in criminal cases that minor inconsistencies in the
testimony of a witness do not affect his credibility. (see People v. Detuya, 154 SCRA 410 [1987];
People v. Marquez, 153 SCRA 700 [1987]; People v. Ferrera, 151 SCRA 113 [1987]; People v.
Dollantes, 151 SCRA 592 [1985]; People v. Pielago, 140 SCRA 418 [1985]; People v. Naz, 138
SCRA 420 [1985]; People v. Agudo, 137 SCRA 516 [1985]; People v. Manalo, 135 SCRA 84
[1985]).

The testimony of a child victim during the trial of a rape case cannot be a verbatim reproduction of
statements given during a preliminary investigation. The depth and intensity of questioning and
the atmosphere of the courtroom during trial will naturally result in a more detailed and generally
more accurate presentation. Thus, a child who immediately thinks of the kiss on her neck while
being questioned during the preliminary investigation may later on state at the trial that her vagina
was also kissed. She may have stated earlier that the kissing and molestation started before she
was forced to lie down but during the trial she would concentrate on the actual rape while lying
down. On the actual rape, however, the testimony of the victim that the appellant mounted and
sexually assaulted her is consistent.
Notwithstanding the inconsistencies pointed out by the accused-appellant, there is clear and
convincing proof that Ernesto alias "Kariba" committed the crime of statutory rape. The elements
of statutory rape are: (1) that the offender had carnal knowledge of a woman and (2) that such act
is committed when the victim is under twelve years of age. In her oral testimony in court, Priscilla
categorically stated that after she was kissed by the accused-appellant, she was instructed to lie
down and afterwards the accused had sexual intercourse with her (TSN, February 5, 1986, pp. 58). The testimony of the offended party was corroborated by the medical findings and testimony of
the physician who conducted the internal examination of the offended party. (Exhibit "C"; TSN,
May 5, 1986, pp. 4-12). There is further evidence supporting Priscilla's accusation consisting of
the oral testimonies and sworn statements of Asuncion Marcos, paternal aunt of Priscilla and
Priscilla's mother. (TSN, October 4, 1985, pp. 4-9; TSN, September 13, 1985, pp. 3-7) Asuncion
actually saw the accused-appellant while he was still on top of her niece. In the absence of any
strong motive of the victim to implicate the accused, the victim's testimony as to the crime of rape
sufficiently corroborated by witnesses and medical findings of the victim's attending physician at
the time of the incident stands the test of credibility. (See People v. Valdez, 150 SCRA 405 [1987])
The accused-appellant's claim that the corroborative evidence given by the aunt and mother of
the offended must not be given weight for being biased is unmeritorious considering that the fact
of relationship alone, either by consanguinity or affinity does not have any effect on the credibility
of witnesses. (People v. Atencio, 156 SCRA 242 [1987]; People v. Paras, 147 SCRA 594 [1987]).
More important, as held in the case of People v. David, (G.R. Nos. 72355-59, September 15,
1989):
It is inconceivable that a mother . . . would fabricate a rape charge subject her daughter to
physical examination and the embarrassment of a public trial. . . . (on p. 15; see also People v.
Carino, Sr., 167 SCRA 285 [1988]).
With respect to the defense of alibi, the same must fail for it was not enough to simply prove that
the accused-appellant was somewhere else when the crime was committed but he must likewise
show that it was physically impossible for him to have been at the scene of the crime. (People v.
Alvarez, G.R. No. 70441, Jan. 31, 1989; People v. Hortillano, G.R. No. 71116, September 19,
1989; People v. Alfonso, 153 SCRA 487 [1987]; People v. Urgel, 134 SCRA 483 [1985]).
On cross examination, Ernesto alias "Kariba" testified that his residence is merely four (4) houses
away from the offended party's house with a distance of about 20 meters and that the house of
the one Aling Paz where he claimed he was at the time Priscilla was raped is just opposite the
house of the offended party. (TSN, June 6, 1986, pp. 19-23) Hence, physical impossibility is
lacking in this case in order that the defense of alibi may be considered.
Finally, on the civil aspect of this case, the amount of P10,000.00 awarded by the trial court by
way of moral damages is increased to P50,000.00 in the light of our ruling in the case of People v.
Perez, supra that:
The sexual violence inflicted upon the eight-year old child is a particularly appalling outrage. The
trauma sustained by her is not merely physical and may be expected to remain with her for a
long, long time, possibly for life . . .

WHEREFORE, IN VIEW OF THE FOREGOING, the judgment of conviction by the trial court is
hereby AFFIRMED subject to the modification that the amount of moral damages is increased to
FIFTY THOUSAND PESOS (P50,000.00).
SO ORDERED

G.R. Nos. 93805-06

February 7, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RAMIL BALATUCAN and THREE (3) JOHN DOES, accused-appellants.

FELICIANO, J.:
Ramil Balatucan was found guilty of the murder of Jonnel Labao and of the frustrated murder of
Alex Balatucan, and appeals the two (2) verdicts.
Appellant was charged with murder in an information which read:
The undersigned 4th Assistant Provincial fiscal accuses Ramil Balatucan and three (3) John Does
of the crime of Murder committed as follows:
That on or about March 18, 1988, in the evening thereof, at Barangay Umabay Exterior,
Municipality of Mobo, Province of Masbate, Philippines, within the jurisdiction of this Court, the
above-named accused confederating together and helping one another, with deliberate intent to
kill, evident premeditation, treachery, superiority of strength and taking advantage of nighttime,
did then and there willfully, unlawfully and feloniously attack, assault and stab with a fan knife
(batangas) one Jonnel Labao, hitting the latter on the chest thereby inflicting wound which caused
his instantaneous death.
Contrary to law. 1
A second charge of frustrated murder was preferred against appellant in a separate information
which read:
The undersigned 4th Assistant Provincial fiscal accuses Ramil Balatucan and three (3) John Does
of the crime of Murder committed as follows:
That on or about March 18, 1988, in the evening thereof, at Barangay Umabay Exterior
Municipality of Mobo, Province of Masbate, Philippines, within the jurisdiction of this court, the
above-named accused confederating together and helping one another with deliberate intent to
kill, evident premeditation, treachery, superiority of strength and taking advantage of nighttime did

then and there willfully, unlawfully and feloniously attack, assault and stab with a fan knife
(batangas) one Alex Balatucan, hitting the latter on the left forearm, thus performing all the acts of
execution which would have produced the crime of Murder as a consequence, but nevertheless
did not produce it by reasons of causes independent of the will of the said accused that is timely
intervention of Jaime Balatucan and medical attendance rendered to the said victim which
prevented his death.
Contrary to law. 2
At arraignment, appellant pleaded not guilty to both charges and after trial, the trial court held him
guilty in a decision dated 30 April 1989. The dispositive portion of this decision is as follows:
WHEREFORE, based on the premises the court is convinced beyond reasonable doubt that
Ramil Balatucan is guilty of the two crimes filed against him, one for murder and one for frustrated
murder. For criminal case no. 5472 he is hereby sentenced to a penalty of reclusion perpetua as
there are no mitigating circumstances to reduce the penalty. For criminal case no. 5473 he is
further sentenced to a penalty after applying the indeterminate sentence law to TWO (2) years
FOUR (4) months and ONE (1) day, the medium of prison correccional to EIGHT (8) years and
ONE (1) day of the medium of prision mayor. He is further ordered to pay the amount of
P30,000.00 as damages to the heirs of Jonnel Labao and P10,000.00 to Alex Balatucan as
damages for his injury and to pay the cost of the suit.
SO ORDERED. 3
The prosecution presented Jaime Balatucan and his brother Alex Balatucan as witnesses, and
their testimonies tended to establish the following:
On the evening of 18 March 1988, Jaime Balatucan went to a dance held at the BLISS Housing
Project in Umabay Exterior, Mobo, Province of Masbate, on the occasion of the barangay fiesta.
When Jaime arrived at the scene of the dance and just before entering the hall where the dance
was being held, he was suddenly boxed by one Rudy Tugbo. Ruby Tugbo was then in the
company of appellant Ramil Balatucan, Arturo Natividad and one other unidentified person. After
striking Jaime, Rudy Tugbo ran away. Jaime pursued him but lost him. Jaime then joined his
brother, Alex Balatucan, the deceased Jonnel Labao and Joey Labao in the dance hall.
At around 10:00 o'clock in the evening, Jaime Balatucan and his companions left the dance hall
and proceeded on to the public highway. On the highway, they were met by appellant who rushed
towards Jonnel Labao and stabbed him with a knife. Jonnel collapsed on the highway, with a
knife thrust to the heart, and died on the spot. As Alex Balatucan tried to help Jonnel Labao up,
appellant also stabbed Alex. Jaime Balatucan grappled with appellant for possession of the knife,
but failed to disarm him. Jaime Balatucan managed to grab Ramil by the shirt; Ramil tore loose,
leaving his shirt or part of it in Jaime's hand. Alex Balatucan was brought to the Masbate
Provincial Hospital and was confined there for a week.
The prosecution also presented Arturo Natividad who testified that on the evening of 18 March
1988, he was drinking gin with appellant and four (4) other persons in a store in Barangay Cogon,
Mobo, Masbate. During the drinking, appellant Ramil Balatucan informed Arturo that "he (Ramil)
will stab" somebody without indicating who the unfortunate person(s) would be. Around 8:30 p.m.,
the gin drinkers proceeded to the dance hall and stayed there until about 10:30 p.m. when they
went out into the highway which is about 30 meters from the dance hall. They stayed on the
shoulder of the highway. In about an hour's time, Jaime Balatucan and his companions emerged
from the dance hall and started on the highway. Ramil Balatucan rushed towards the approaching
group and, Arturo Natividad testified, stabbed Jonnel Labao and Alex Balatucan.
Dr. Maria Belen Chan, another prosecution witness, testified that the knife wound sustained by
Alex Balatucan on his left arm could have been fatal as it produced profuse bleeding. Alex's injury

was more particularly described in a medico-legal certificate issued by Dr. Chan of the following
tenor:
1.5 inches wide stab wound through and through distal 3rd posterior (L) arm directed toward
medial aspect middle 3rd (L) arm 1 cm. wide, incised opening. 4
Dr. Artemio Capellan, who had conducted a postmortem examination on Jonnel Labao, issued a
report which contained the following
Findings:
1.
Stab wound affecting the lateral portion of the chest just above the mammary gland. Vital
organs and major blood vessels were affected.
Cause of Death: Hypovolomic (sic) shock due to single fatal
wound. 5
Dr. Capellan explained in open court that the cause of death was irreversible shock due to severe
hemorrhage.
The Court notes that while appellant Ramil had pleaded not guilty at arraignment and had
asserted the defense of alibi before the trial court, claiming that he could not have been the culprit
as he had been knocked unconscious during a fight at the dance hall, he now impliedly admits in
his appellant's brief having stabbed both Jonnel Labao and Alex Balatucan. Appellant asserts,
however, that he should have been found guilty of homicide and attempted homicide only,
claiming that the qualifying circumstances of evident premeditation and treachery had not been
sufficiently established. 6
The Solicitor General argues that both crimes had been attended by treachery, that the attack
had not been impulsively done and that the decision to kill was not a spontaneous on-the-spot
decision. The Solicitor General stressed that:
. . . [Appellant Ramil] went of the dance hall ahead of his intended victims, and purposely
positioned himself on the highway gutter to avoid notice. As soon as he spotted his prey, he
struck without warning and without giving the unarmed and hapless Jonnel and Alex the
opportunity to defend themselves. Indeed, appellant deliberately and consciously adopted that
mode of attack to preclude any risk to himself or retaliation from victim and to insure the
execution of the crime. Treachery was unquestionably present. 7 (Emphasis supplied)
Appellant, on the other hand, contends that neither of the two (2) crimes had been attended by
treachery. In respect of the slaying of Jonnel Labao, appellant claims that treachery should not
have been appreciated by the trial court considering that, according to appellant, the mode of
attack had not been previously considered and hence had not been consciously chosen but was
rather the result of a sudden decision made when the contending groups of high school students
(the group of Jaime Balatucan and the group of Ramil Balatucan) accidentally met.
There is treachery when the offender adopts means, methods or forms in the execution of the
felony which insures its commission without risk to himself arising from any defense which the
offended party might take. 8 In the instant case, the deadly attack upon Jonnel Labao was not
merely an unplanned attack which occurred during an accidental meeting of the two (2) groups.
On the contrary, the evidence of the prosecution showed that appellant had deliberately posted
himself on the shoulder or gutter of the highway not far from the dance hall and waited for about
an hour until his victim passed by. Appellant then suddenly flung himself on the approaching
group and thrust his knife at Jonnel Labao's chest, piercing the heart.
Appellant similarly denies treachery in the stabbing of Alex Balatucan, contending that "the

suddenness of attack does not, of itself, suffice to support a finding of alevosia (treachery) even if
the purpose was to kill, so long as the decision was made all of a sudden and the victim's
helpless position is accidental." 9
Examination of the record of this case shows that the near fatal wounding of Alex Balatucan was
properly classified as treacherous. Appellant stabbed Alex Balatucan while the latter was in the
act of lifting Jonnel Labao from the ground. Alex Balatucan testified:
Q:
Now when Jonnel Labao fell down after being stabbed by Ramil Balatucan what
happened next?
A:
When I saw Jonnel Labao fall down the ground, and I was about to lift him this Ramil
Balatucan stabbed him (sic).
COURT
Q:

From where did he come from in relation to the body in the right or left?

A:

From the left side.

Q:

From in front or behind (sic)?

A:

On my side (sic). 10

We consider that the treachery which attended the killing of Jonnel Labao also infected the attack
on Alex Balatucan. While the act of stabbing Jonnel on the chest was distinguishable from the act
of stabbing Alex through his left arm, the two (2) acts occurred on the same occasion, the interval
between them being measured in seconds. Jonnel and Alex were together as they walked down
the highway. Both were unarmed. Neither could respond to the knife-thrusts delivered by Ramil.
Alex was obviously disabled from defending himself when Ramil thrust his knife through and
through Alex's left arm, as Alex was trying to help Jonnel to his feet.
Appellant also claims that the trial court erred in finding the presence of the element of evident
premeditation. According to appellant, Arturo Natividad's testimony to the effect that appellant had
told Arturo that he (appellant) would stab "someone" 11 does not prove premeditation, since that
statement had been made after appellant had begun drinking hard liquor.
The Court has consistently held that for evident premeditation to be appreciated against an
accused, the following requisites must be established: (1) the time when the offender determined
to commit the crime; (2) an act manifestly indicating that the offender had clung to his
determination; and (3) the lapse of an interval of time between determination to commit the crime
and execution thereof, sufficient to allow the offender to reflect upon the consequences of his act.
12 The record of this case shows that these requisites had been proven in the instant case. The
determination to stab or kill "someone" had been arrived at as early as 6:30 in the evening of that
fatal day while appellant was engaged in a drinking session with Arturo Natividad, Boboy Adovas
and another male companion. Appellant repeated his announced threat at least three (3) times
that evening. At that time, appellant had with him a 10-inch batangas knife, the same knife that he
would later use to assault Jonnel and Alex. Between the time that appellant and his companions
were drinking and the time of the attack at about 11:00 o'clock of the same evening, appellant had
several hours to reflect on the crime that, per his own announcement, he was about to commit
and to desist from it if he had wanted so to desist. The slaying of Jonnel and the serious stab
wound inflicted on Alex demonstrated clearly that appellant had clung to his determination to kill.
Appellant also submits the argument that evident premeditation in the case of the stabbing of Alex
Balatucan should not have been taken into account, since there was no appreciable interval
between the time Ramil decided to stab Alex and the moment Ramil actually did so. We have,

however, already noted that appellant had previously stated his intent to stab someone that night,
without specifying any particular individual person or persons. The creative suggestion apparently
being made by the appellant's counsel here is that, because two (2) separate crimes had been
committed by Ramil, separate premeditation (and an adequate interval of time) must precede
each crime.
We are not persuaded. We believe that the evident premeditation which qualified the slaying of
Jonnel to murder also qualified the frustrated homicide of Alex into frustrated murder. The two (2)
crimes need to be considered and characterized in an integrated manner. The evident
premeditation which preceded the killing of Jonnel also in fact preceded the assault on Alex.
It is important in this connection to remember that evident premeditation may exist even if at the
time the offender determined to commit the crime, a definite victim had not been settled upon. In
U.S. v. Manalinde, 13 the accused acted upon the order of Datu Rajamuda Mupuck to "go
juramentado in Cotabato in order to kill somebody," because the Datu had certain grievances to
avenge against two (2) military officers. In holding that the element of premeditation had
accompanied the killing of a Chinaman and the wounding of a Spaniard whom Manalinde
encountered after forming his intent to kill, although Manalinde had never met either the
Chinaman or the Spaniard before in his life, the Court, speaking through Mr. Justice Torres, said:
As to the other circumstance it is also unquestionable that the accused, upon accepting the order
and undertaking the journey in order to comply therewith, deliberately considered and carefully
and thoughtfully meditated over the nature and the consequences of the acts which, under orders
received from the said datto, he was about to carry out, and to that end provided himself with a
weapon, concealing it by wrapping it up, and started on a journey of a day and a night for the sole
purpose of taking the life of two unfortunate persons whom he did not know, and with whom he
had never had any trouble; nor did there exist any reason which to a certain extent, might warrant
his perverse deed. The fact that the arrangement between the instigator and the tool considered
the killing of unknown persons, the first encountered, does not bar the consideration of the
circumstance of premeditation. The nature and the circumstances which characterize the crime,
the perversity of the culprit, and the material and moral injury are the same, and the fact that the
victim was not predetermined does not affect nor alter the nature of the crime. The person having
been deprived of his life by deeds executed with deliberate intent, the crime is considered a
premeditated one as the firm and persistent intention of the accused from the moment, before
said death, when he received the order until the crime was committed is manifestly evident. . . .
. . . On going to Cotabato the Moro Manalinde intended to and did kill the first two persons he
encountered, and the fact that the victim was not predetermined does not alter the nature,
conditions, or circumstances of the crime, for the reason that to cause the violent death of a
human being without any reasonable motive is always punishable with a more or less grave
penalty according to the nature of the concurrent circumstances.
xxx

xxx

xxx 14

(Emphasis supplied)
Appellant protests that he had no reason to assault either of the victims, as it was Rudy Tugbo,
and not the appellant, who had an altercation earlier in the evening with Jaime Balatucan. In his
testimony before the trial court, appellant had in fact tried to pin the blame for the slaying of
Jonnel and the wounding of Alex upon Rudy Tugbo. 15 It is, however, common doctrine that proof
of motive is immaterial when the identity of the appellant has been clearly established. As earlier
noted in the instant case, appellant admits having slain Jonnel and seriously wounded Alex and
only disputes the legal characterization of his acts.
We address next the question of the proper penalty imposable upon appellant. Appellant invokes
People v. Intino, 16 where the Court held that, with the abolition of the death penalty, the proper

imposable penalty for "murder is reclusion temporal maximum to reclusion perpetua with three (3)
periods lower half of reclusion temporal maximum, higher half of reclusion temporal maximum
and reclusion perpetua. 17
Intino has, however, been modified by People v. Muoz 18 where the Court held that "the original
penalty, including death was thus maintained except that the maximum period was not imposed
because of the constitutional prohibition. 19 Thus, the range of the minimum and medium periods
of the imposable penalty remain unchanged, such that in the absence of any mitigating or
aggravating circumstances, the penalty for murder would remain reclusion perpetua.
In the instant case, there are two (2) aggravating circumstances evident premeditation and
treachery either of which would qualify the killing to murder. In People v. Dueno 20 the Court
held that where there are two (2) qualifying aggravating circumstances, only one aggravating
circumstance should be considered to qualify the crime to murder, while the other should be
considered a generic aggravating circumstance merely. Because of the constitutional prohibition
against enforcement of the death penalty, the penalty properly imposable remains reclusion
perpetua. The crime of frustrated murder is punishable by prision mayor maximum to reclusion
temporal medium. Applying the Indeterminate Sentence Law, the minimum term may be fixed
within the range of the penalty next lower in degree to the penalty prescribed and properly
imposable under the Revised Penal Code, while the maximum term shall be the penalty properly
imposable under the same Code in view of the attendant circumstances of the offense.
ACCORDINGLY, for all the foregoing, the decision of the trial court is AFFIRMED in part and
MODIFIED in part.
In respect of the crime of murder, the judgment imposing the penalty of reclusion perpetua is
hereby AFFIRMED, but the award of damages is hereby INCREASED to P50,000.00, in line with
recent jurisprudence.
In respect of the crime of frustrated murder, the judgment is hereby MODIFIED by increasing the
penalty to an indeterminate sentence ranging from a minimum of eight (8) years and one (1) day
of prision mayor, to a maximum of seventeen (17) years and four (4) months of reclusion
temporal and AFFIRMED as to the award of P10,000.00 for the injury sustained by Alex
Balatucan. Costs against appellants.
SO ORDERED.

[G.R. No. 140756. April 4, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN GONZALES ESCOTE, JR. @ Jun
Mantika of Sta. Lucia, Angat, Bulacan and VICTOR ACUYAN y OCHOVILLOS @ Vic Arroyo of
Sto. Nio, Poblacion, Bustos, Bulacan, accused-appellants.
DECISION
CALLEJO, SR., J.:
Robbery with homicide is classified as a crime against property. Nevertheless, treachery is a
generic aggravating circumstance in said crime if the victim of homicide is killed treacherously.
The Supreme Court of Spain so ruled. So does the Court rule in this case, as it had done for
decades.
Before the Court on automatic review is the Decision[1] of Branch 11 of the Regional Trial Court
of Bulacan in Criminal Case No. 443-M-97 convicting accused-appellants Juan Gonzales Escote,
Jr. and Victor Acuyan of the complex crime of robbery with homicide, meting on each of them the
supreme penalty of death, and ordering them to pay the heirs of the victim, SPO1 Jose C. Manio,
Jr., the total amount of P300,000.00 by way of actual and moral damages and to pay to Five Star
Bus, Inc., the amount of P6,000.00 by way of actual damages.
The Facts
The antecedent facts as established by the prosecution are as follows:
On September 28, 1996 at past midnight, Rodolfo Cacatian, the regular driver of Five Star
Passenger Bus bearing Plate No. ABS-793, drove the bus from its terminal at Pasay City to its
destination in Bolinao, Pangasinan. Also on board was Romulo Digap, the regular conductor of
the bus, as well as some passengers. At Camachile, Balintawak, six passengers boarded the
bus, including Victor Acuyan and Juan Gonzales Escote, Jr. who were wearing maong pants,
rubber shoes, hats and jackets.[2] Juan seated himself on the third seat near the aisle, in the
middle row of the passengers seats, while Victor stood by the door in the mid-portion of the bus
beside Romulo. Another passenger, SPO1 Jose C. Manio, Jr., a resident of Angeles City, was
seated at the rear portion of the bus on his way home to Angeles City. Tucked on his waist was
his service gun bearing Serial Number 769806. Every now and then, Rodolfo looked at the side
view mirror as well as the rear view and center mirrors installed atop the drivers seat to monitor
any incoming and overtaking vehicles and to observe the passengers of the bus.
The lights of the bus were on even as some of the passengers slept. When the bus was travelling
along the highway in Plaridel, Bulacan, Juan and Victor suddenly stood up, whipped out their
handguns and announced a holdup. Petrified, Rodolfo glanced at the center mirror towards the
passengers seat and saw Juan and Victor armed with handguns. Juan fired his gun upward to
awaken and scare off the passengers. Victor followed suit and fired his gun upward. Juan and
Victor then accosted the passengers and divested them of their money and valuables. Juan
divested Romulo of the fares he had collected from the passengers. The felons then went to the
place Manio, Jr. was seated and demanded that he show them his identification card and wallet.
Manio, Jr. brought out his identification card bearing No. 00898.[3] Juan and Victor took the
identification card of the police officer as well as his service gun and told him: Pasensya ka na
Pare, papatayin ka namin, baril mo rin and papatay sa iyo. The police officer pleaded for mercy:
Pare maawa ka sa akin. May pamilya ako. However, Victor and Juan ignored the plea of the
police officer and shot him on the mouth, right ear, chest and right side of his body. Manio, Jr.
sustained six entrance wounds. He fell to the floor of the bus. Victor and Juan then moved
towards the driver Rodolfo, seated themselves beside him and ordered the latter to maintain the
speed of the bus. Rodolfo heard one of the felons saying: Ganyan lang ang pumatay ng tao.
Parang pumapatay ng manok. The other said: Ayos na naman tayo pare. Malaki-laki ito.
Victor and Juan further told Rodolfo that after they (Victor and Juan) shall have alighted from the
bus, he (Rodolfo) should continue driving the bus and not report the incident along the way. The
robbers assured Rodolfo that if the latter will follow their instructions, he will not be harmed.
Victor and Juan ordered Rodolfo to stop the bus along the overpass in Mexico, Pampanga where

they alighted from the bus. The robbery was over in 25 minutes.
When the bus reached Dau, Mabalacat, Pampanga, Rodolfo and Romulo forthwith reported the
incident to the police authorities. The cadaver of SPO1 Manio, Jr. was brought to the funeral
parlor where Dr. Alejandro D. Tolentino, the Municipal Health Officer of Mabalacat, Pampanga,
performed an autopsy on the cadaver of the police officer. The doctor prepared and signed an
autopsy report detailing the wounds sustained by the police officer and the cause of his death:
Body still flaccid (not in rigor mortis) bathed with his own blood. There were 6 entrance wounds
and 6 exit wounds. All the entrance were located on his right side. An entrance (0.5 cm x 0.5
cm.) located infront of the right ear exited at the left side just below the ear lobe. Another
entrance through the mouth exited at the back of the head fracturing the occiput with an opening
of (1.5 cm x 2 cm). Blood CSF and brain tissues came out. Another fatal bullet entered at the
upper right cornea of the sternum, entered the chest cavity pierced the heart and left lung and
exited at the left axillary line. Severe hemorrhage in the chest cavity came from the heart and left
lung. The other 3 bullets entered the right side and exited on the same side. One entrance at the
top of the right shoulder exited at the medial side of the right arm. The other entered above the
right breast and exited at the right lateral abdominal wall travelling below muscles and
subcutaneous tissues without entering the cavities. Lastly another bullet entered above the right
iliac crest travelled superficially and exited above the right inguinal line.
Cause of Death:
Shock, massive internal and external hemorrhage, complete brain destruction and injury to the
heart and left lung caused by multiple gunshot wounds.[4]
Rodolfo and Romulo proceeded to the police station of Plaridel, Bulacan where they reported the
robbery and gave their respective sworn statements.[5] SPO1 Manio, Jr. was survived by his wife
Rosario Manio and their four young children. Rosario spent P20,000.00 for the coffin and
P10,000.00 for the burial lot of the slain police officer.[6] Manio, Jr. was 38 years old when he
died and had a gross salary of P8,085.00 a month.[7]
Barely a month thereafter, or on October 25, 1996, at about midnight, SPO3 Romeo Meneses,
the team leader of Alert Team No. 1 of Tarlac Police Station, and PO3 Florante S. Ferrer were at
the police checkpoint along the national highway in Tarlac, Tarlac. At the time, the BambangConcepcion bridge was closed to traffic and the police officers were tasked to divert traffic to the
Sta. Rosa road. Momentarily, a white colored taxi cab without any plate number on its front
fender came to view. Meneses stopped the cab and asked the driver, who turned out to be the
accused Juan Gonzales Escote, Jr., for his identification card. Juan told Meneses that he was a
policeman and handed over to Meneses the identification card of SPO1 Manio, Jr. and the money
which Juan and Victor took from Manio, Jr. during the heist on September 28, 1996.[8] Meneses
became suspicious when he noted that the identification card had already expired on March 16,
1995. He asked Juan if the latter had a new pay slip. Juan could not produce any. He finally
confessed to Meneses that he was not a policeman. Meneses brought Juan to the police station.
When police officers frisked Juan for any deadly weapon, they found five live bullets of a 9
millimeter firearm in his pocket. The police officers confiscated the ammunition. In the course of
the investigation, Juan admitted to the police investigators that he and Victor, alias Victor Arroyo,
staged the robbery on board Five Star Bus and are responsible for the death of SPO1 Manio, Jr.
in Plaridel, Bulacan. Meneses and Ferrer executed their joint affiavit of arrest of Juan.[9] Juan
was subsequently turned over to the Plaridel Police Station where Romulo identified him through
the latters picture as one of those who robbed the passengers of the Five Star Bus with Plate No.
ABS-793 and killed SPO1 Manio, Jr. on September 28, 1996. In the course of their investigation,
the Plaridel Police Station Investigators learned that Victor was a native of Laoang, Northern
Samar.[10] On April 4, 1997, an Information charging Juan Gonzales Escote, Jr. and Victor
Acuyan with robbery with homicide was filed with the Regional Trial Court of Bulacan. The
Information reads:

That on or about the 28th day of September 1996, in the municipality of Plaridel, province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating together and mutually helping each other, armed with
firearms, did then and there wilfully, unlawfully and feloniously, with intent of (sic) gain and by
means of force, violence and intimidation, take, rob and carry away with one (1) necklace and
cash in [the] undetermine[d] amount of one SPO1 Jose C. Manio, Jr., to the damage and
prejudice of the said owner in the said undetermine[d] amount; that simultaneously or on the
occassion (sic) of said robbery, said accused by means of violence and intimidation and in
furtherance of their conspiracy attack, assault and shoot with the service firearm of the said SPO1
Jose C. Manio, Jr., thereby inflicting serious physical injuries which resulted (sic) the death of the
said SPO1 Jose C. Manio, Jr.
Contrary to law.[11]
On the strength of a warrant of arrest, the police officers arrested Victor in Laoang, Northern
Samar and had him incarcerated in the Bulacan Provincial Jail. Assisted by Atty. Ramiro Osorio,
their counsel de parte, Juan and Victor were duly arraigned and entered their plea of not guilty to
the charge. Trial thereafter ensued. After the prosecution had rested its case on August 26,
1998, Juan escaped from the provincial jail.[12] The trial court issued a bench warrant on
September 22, 1998 for the arrest of said accused-appellant.[13] In the meantime, Victor
adduced his evidence.
Victor denied the charge and interposed the defense of alibi. He testified that in 1996, he worked
as a tire man in the vulcanizing shop located in Banga I, Plaridel, Bulacan owned by Tony Boy
Negro. On one occasion, Ilarde Victorino, a customer of Tony Boy Negro, ordered Victor to sell a
tire. Victor sold the tire but did not turn over the proceeds of the sale to Ilarde. The latter hated
Victor for his misdeed. The shop was later demolished and after two months of employment,
Victor returned to Barangay Muwal-Buwal, Laoang, Northern Samar. On September 26, 1996, at
9:30 p.m., Victor was at the town fiesta in Laoang. Victor and his friends, Joseph Iringco and
Rickey Lorcio were having a drinking spree in the house of Barangay Captain Ike Baluya. At
11:30 p.m., the three left the house of the barangay captain and attended the public dance at the
town auditorium. Victor and his friends left the auditorium at 5:30 a.m. of September 27, 1996.
Victor likewise testified that he never met Juan until his arrest and detention at the Bulacan
Provincial Jail. One of the inmates in said provincial jail was Ilarde Victorino. Victor learned that
Ilarde implicated him for the robbery of the Five Star Bus and the killing of SPO1 Manio, Jr. to hit
back at him for his failure to turn over to Ilarde the proceeds of the sale of the latters tire.
On January 14, 1999, Juan was rearrested in Daet, Camarines Norte.[14] However, he no longer
adduced any evidence in his behalf.
The Verdict of the Trial Court
On March 11, 1999, the trial court rendered its Decision judgment finding Juan and Victor guilty
beyond reasonable doubt of the crime charged, meted on each of them the penalty of death and
ordered them to pay P300,000.00 as actual and moral damages to the heirs of the victim and to
pay the Five Star Bus Company the amount of P6,000.00 as actual damages. The decretal
portion of the decision reads:
WHEREFORE, this Court finds both accused, Juan Gonzales Escote, Jr. and Victor Acuyan
GUILTY beyond reasonable doubt of Robbery with Homicide as penalized under Art. 294 of the
Revised Penal Code as amended and hereby sentences both to suffer the supreme penalty of
Death and to indemnify the heirs of the late SPO1 Jose C. Manio, Jr., the amount of P300,000.00
as actual and moral damages and to pay the Five Star Bus P6,000.00 as actual damage.
SO ORDERED.[15]

Assignment of Errors
Juan and Victor assail the Decision of the trial court and contend that:
I
THE TRIAL COURT ERRED IN HOLDING THAT RODOLFO CACATIAN AND ROMULO DIGAP,
DRIVER AND CONDUCTOR OF THE FIVE STAR BUS, RESPECTIVELY, WERE ABLE TO
POSITIVELY IDENTIFY THE TWO (2) MEN WHO HELD-UP THEIR BUS AND KILLED ONE
PASSENGER THEREOF AT AROUND 3:00 OCLOCK IN THE EARLY MORNING OF
SEPTEMBER 28, 1996.
II
THE TRIAL COURT ERRED IN FINDING THE TWO (2) ACCUSED GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH HOMICIDE.[16]
The Courts Verdict
Anent the first assignment of error, Juan and Victor contend that the trial court committed a
reversible error in relying on the testimony of Rodolfo, the bus conductor, for convicting them of
the crime charged. They aver that although their counsel was able to initially cross-examine
Rodolfo, the former failed to continue with and terminate his cross-examination of the said
witness through no fault of his as the witness failed to appear in subsequent proceedings. They
assert that even if the testimonies of Rodolfo and Romulo were to be considered, the two
witnesses were so petrified during the robbery that they were not able to look at the felons and
hence could not positively identify accused-appellants as the perpetrators of the crime. They
argue that the police investigators never conducted a police line-up for the identification of the
authors of the crime.
The contentions of Juan and Victor are not meritorious. There is no factual and legal basis for
their claim that they were illegally deprived of their constitutional and statutory right to fully crossexamine Rodolfo. The Court agrees that the right to cross-examine is a constitutional right
anchored on due process.[17] It is a statutory right found in Section 1(f), Rule 115 of the Revised
Rules of Criminal Procedure which provides that the accused has the right to confront and crossexamine the witnesses against him at the trial. However, the right has always been understood
as requiring not necessarily an actual cross-examination but merely an opportunity to exercise
the right to cross-examine if desired.[18] What is proscribed by statutory norm and jurisprudential
precept is the absence of the opportunity to cross-examine.[19] The right is a personal one and
may be waived expressly or impliedly. There is an implied waiver when the party was given the
opportunity to confront and cross-examine an opposing witness but failed to take advantage of it
for reasons attributable to himself alone.[20] If by his actuations, the accused lost his opportunity
to cross-examine wholly or in part the witnesses against him, his right to cross-examine is
impliedly waived.[21] The testimony given on direct examination of the witness will be received or
allowed to remain in the record.[22]
In this case, the original records show that after several resettings, the initial trial for the
presentation by the prosecution of its evidence-in-chief was set on November 18, 1997 and
December 5, 1997, both at 9:00 a.m.[23] Rodolfo testified on direct examination on November 18,
1997. The counsel of Juan and Victor forthwith commenced his cross-examination of the witness
but because of the manifestation of said counsel that he cannot finish his cross-examination, the
court ordered the continuation thereof to December 5, 1997.[24] On December 5, 1997, Rodolfo
did not appear before the court for the continuation of his cross-examination but Rosemarie
Manio, the widow of the victim did. The prosecution presented her as witness. Her testimony
was terminated. The court ordered the continuation of the trial for the cross-examination of

Rodolfo on January 20, 1998 at 8:30 a.m.[25] During the trial on January 20, 1998, Rodolfo was
present but accused-appellants counsel was absent. The court issued an order declaring that for
failure of said counsel to appear before the court for his cross-examination of Rodolfo, Victor and
Juan waived their right to continue with the cross-examination of said witness.[26] During the trial
set for February 3, 1998, the counsel of Juan and Victor appeared but did not move for a
reconsideration of the courts order dated January 20, 1998 and for the recall of Rodolfo Cacatian
for further cross-examination. It behooved counsel for Juan and Victor to file said motion and
pray that the trial court order the recall of Rodolfo on the witness stand. Juan and Victor cannot
just fold their arms and supinely wait for the prosecution or for the trial court to initiate the recall of
said witness. Indeed, the Court held in Fulgado vs. Court of Appeals, et al:
xxx
The task of recalling a witness for cross examination is, in law, imposed on the party who wishes
to exercise said right. This is so because the right, being personal and waivable, the intention to
utilize it must be expressed. Silence or failure to assert it on time amounts to a renunciation
thereof. Thus, it should be the counsel for the opposing party who should move to cross-examine
plaintiffs witnesses. It is absurd for the plaintiff himself to ask the court to schedule the crossexamination of his own witnesses because it is not his obligation to ensure that his deponents are
cross-examined. Having presented his witnesses, the burden shifts to his opponent who must
now make the appropriate move. Indeed, the rule of placing the burden of the case on plaintiffs
shoulders can be construed to extremes as what happened in the instant proceedings. [27]
The trial was reset to March 31, April 17 and 24, 1998, all at 8:30 a.m. because of the nonavailability of the other witnesses of the prosecution.[28] On March 31, 1998, the prosecution
presented Dr. Alejandro Tolentino, PO2 Rene de la Cruz and Romulo Digap. During the trial on
April 17, 1998, the counsel of Juan and Victor failed to appear. The trial was reset to June 3, 19
and 26, 1998.[29] The trial scheduled on June 3, 1998 was cancelled due to the absence of the
counsel of Juan and Victor. The court issued an order appointing Atty. Roberto Ramirez as
counsel for accused-appellants.[30]
During the trial on August 26, 1998, Atty. Ramirez appeared in behalf of Juan and Victor. The
prosecution rested its case after the presentation of SPO2 Romeo Meneses and formally offered
its documentary evidence. The next trial was set on September 23, 1998 at 8:30 a.m.[31] On
November 11, 1998, Juan and Victor commenced the presentation of their evidence with the
testimony of Victor.[32] They rested their case on January 27, 1999 without any evidence
adduced by Juan.
Juan and Victor did not even file any motion to reopen the case before the trial court rendered its
decision to allow them to cross-examine Rodolfo. They remained mute after judgment was
rendered against them by the trial court. Neither did they file any petition for certiorari with the
Court of Appeals for the nullification of the Order of the trial court dated January 20, 1998
declaring that they had waived their right to cross-examine Rodolfo. It was only on appeal to this
Court that Juan and Victor averred for the first time that they were deprived of their right to crossexamine Rodolfo. It is now too late in the day for Juan and Victor to do so. The doctrine of
estoppel states that if one maintains silence when in conscience he ought to speak, equity will
debar him from speaking when in conscience he ought to remain silent. He who remains silent
when he ought to speak cannot be heard to speak when he should be silent.[33]
The contention of accused-appellants Juan and Victor that Rodolfo and Romulo failed to identify
them as the perpetrators of the crime charged is disbelieved by the trial court, thus:
As can be gathered from the testimonies of the witnesses for the prosecution, on September 28,
1996, the accused boarded at around 3:00 a.m. a Five Star Bus driven by Rodolfo Cacatian,
bound to Pangasinan, in Camachile, Balintawak, Quezon City. Twenty (20) minutes or so later,
when the bus reached the vicinity of Nabuag, Plaridel, Bulacan, along the North Espressway, the

accused with guns in hand suddenly stood up and announced a hold-up. Simultaneously with the
announcement of a hold-up, Escote fired his gun upwards. Acuyan, meanwhile, took the gun of a
man seated at the back. Both then went on to take the money and valuables of the passengers,
including the bus conductors collections in the amount of P6,000.00. Thereafter, the duo
approached the man at the back telling him in the vernacular Pasensiya ka na pare, papatayin
ka namin. Baril mo rin ang papatay sa iyo. They pointed their guns at him and fired several
shots oblivious of the plea for mercy of their victim. After the shooting, the latter collapsed on the
floor. The two (2) then went back at the front portion of the bus behind the drivers seat and were
overheard by the bus driver, Cacatian, talking how easy it was to kill a man. The robbery and the
killing were over in 25 minutes. Upon reaching the Mexico overpass of the Expressway in
Pampanga, the two (2) got off the bus. The driver drove the bus to the Mabalacat Police Station
and reported the incident. During the investigation conducted by the police, it was found out that
the slain passenger was a policeman, SPO1 Jose C. Manio, Jr. of the Caloocan City Police
Department.
The above version came from Rodolfo Cacatian and Romulo Digap, bus driver and conductor,
respectively, of the ill-fated Five Star Bus.[34]
The Court agrees with the trial court. It may be true that Romulo was frightened when Juan and
Victor suddenly announced a holdup and fired their guns upward, but it does not follow that he
and Rodolfo failed to have a good look at Juan and Victor during the entire time the robbery was
taking place. The Court has held in a catena of cases that it is the most natural reaction of
victims of violence to strive to see the appearance of the perpetrators of the crime and to observe
the manner in which the crime was committed.[35] Rodolfo and Romulo had a good look at both
Juan and Victor before, during and after they staged the robbery and before they alighted from
the bus. The evidence on record shows that when Juan and Victor boarded the bus and while the
said vehicle was on its way to its destination, Romulo stationed himself by the door of the bus
located in the mid-section of the vehicle. The lights inside the bus were on. Juan seated himself
in the middle row of the passengers seat near the center aisle while Victor stood near the door of
the bus about a meter or so from Romulo.[36] Romulo, Juan and Victor were near each other.
Moreover, Juan divested Romulo of his collection of the fares from the passengers.[37] Romulo
thus had a face-to-face encounter with Juan. After shooting SPO1 Manio, Jr. at the rear portion of
the bus, Juan and Victor passed by where Romulo was standing and gave their instructions to
him. Considering all the facts and circumstances, there is no iota of doubt that Romulo saw and
recognized Juan and Victor before, during and after the heist.[38] Rodolfo looked many times on
the rear, side and center view mirrors to observe the center and rear portions of the bus before
and during the robbery. Rodolfo thus saw Juan and Victor stage the robbery and kill SPO1 Manio,
Jr. with impunity:
xxx
Q

So, the announcement of hold-up was ahead of the firing of the gun?

Yes, sir.

Q And before the actual firing of the gun it was even still said bad words before saying the holdup?
A

After they fired the gun they uttered bad words, sir.

Q Mr. Witness before the announcement of the hold-up you do not have any idea that you will
encounter that nature which took place, is that correct?
A

None, sir.

Within the two (2) year[s] period that you are plying the route of Manila to Bolinao that was

your first experience of hold-up?

A

Yes, sir.

Q And the speed of above 70 kilometers per hour your total attention is focus in front of the
road, correct, Mr. witness?
A

Once in a while the driver look at the side mirror and the rear view mirror, sir.

Q Before the announcement there was no reason for you to look at any at the rear mirror,
correct, Mr. witness?
Court:
Every now and then they usually look at the side mirror and on the rear, that was his statement.
Atty. Osorio:
(to the witness)
Q

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

Fiscal:
Before the announcement of hold-up, there was no mention.
Court:
Every now and then.
Atty. Osorio:
(to the witness)
Q

When you said every now and then, how often is it, Mr. witness?

I cannot tell how often but I used to look at the mirror once in a while, sir.

How many mirror do you have, Mr. witness?

Four (4), sir.

Where are these located?

Two (2) on the side mirror, center mirror and rear view mirror, sir.

The two side mirror protruding outside the bus?

Yes, sir, they are in the side of the bus, sir.

One of them is located on the left and the other on the right, correct?

Yes, sir.

You only look at the side mirror when you are going to over take, Mr. witness?

No, sir.

Where is this center mirror located, Mr. witness?

In the center, sir.

What is the purpose of that?

So that I can see the passengers if they are already settled so that I can start the engine, sir.

What about the remaining mirror?

Rear view mirror, sir.

What is the purpose and where is it located?

The rear view is located just above my head just to check the passengers, sir.

So that the center mirror and the rear view mirror has the same purpose?

They are different, sir.

How do you differentiate of (sic) one from the other?

A The center mirror is used to check the center aisle while the rear mirror is for the whole view
of the passengers, sir.
Q If you are going to look at any of your side mirrors, you will never see any passengers,
correct, Mr. witness?
A

None, sir.

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

Yes, sir.

Seated passengers?

It is only focus (sic) on the middle aisle sir.

Q If you look at your rear mirror, you will only see the top portion of the head of your
passengers, correct?
A

Only the portion of their head because they have different hight (sic), sir.

Q You will never see any head of your passengers if they were seated from the rear mirror
portion, correct, Mr. witness?
A

Yes, sir.

Before the announcement of hold-up, all of your passengers were actually sleeping?

Some of my passengers were sleeping, some were not, sir.

But you will agree Mr. witness that when you said every now and then you are using your

mirror? It is only a glance, correct?

A

Yes, sir.

Q And by mere glancing, Mr. witness you were not able to identify any person on the basis of
any of your mirror, correct?
A

If only a glance but when I look at him I can recognize him, sir.

Q You agree a while ago by every now and then it is by glancing, as a driver, Mr. witness by
your side mirror?
A Not all glancing, there are times when you want to recognize a person you look at him
intently, sir.
Q The purposes of your mirror inside your Bus is mainly of the safety of your passengers on
board, Mr. witness?
A

Yes, sir.

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

I do that, sir.

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

Seconds only, sir.

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

Two seconds, sir.

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

Yes, sir.

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

Yes, sir.

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

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

Fiscal:
May I request the vernacular alalay ka lang, steady ka lang.
Atty. Osorio:

(to the witness)

Q

Steady at what speed?

70 to 80, sir.

What is the minimum speed, Mr. witness for Buses along North Expressway?

60 kilometers, sir.

Are you sure of that 60 kilometers, minimum? Are you sure of that?

Yes, sir.

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

Yes, sir.

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

Thats what you are doing?

A During the time they were gathering the money from my passengers, that is the time when I
look at them, sir.
Q

For two seconds, correct?

Yes, sir.

Q Which of the four (4) mirrors that you are looking at within two seconds, Mr. witness you said
you are nakikiramdam?
A

The rear view mirror, sir.

The Bus that you were driving is not an air con bus?

Ordinary bus, sir.

Q And at what time your passengers, most of your passengers were already sleep (sic), Mr.
witness?
A

Most of my passengers, sir. Some of my passengers were still sleep (sic), sir.

And the lights inside the Bus are off, correct Mr. witness?

The lights were on, sir.

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

Yes, sir.

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

I saw something, sir.

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

Yes, sir.

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

Yes, sir.

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

There were many times, sir.

Q The most that you can remember, please inform the Honorable Court? During the occurance
(sic) of the alleged hold-up, Mr. witness?
A

I cannot estimate, sir.

How long did the alleged hold-up took place?

More or less 25 minutes, sir.[39]

When Rodolfo gave his sworn statement to the police investigators in Plaridel, Bulacan after the
robbery, he described the felons. When asked by the police investigators if he could identify the
robbers if he see them again, Rodolfo declared that he would be able to identify them:
8. T:
Natatandaan mo ba kung ano ang itsura ng dalawang lalaki na nanghold-up sa
minamaneho mong bus?
S:
Halos magkasing taas, 54 o 55 katam-taman ang pangangatawan, parehong
nakapantalon ng maong naka-suot ng jacket na maong, parehong naka rubber shoes at pareho
ring naka sumbrero.
9.
S:

T:

Kung sakali bang makikita mo pa ang mga ito ay makikilala mo pa sila?

Makikilala ko po sila.[40]

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

(to the witness)

xxx
Q Those two man (sic) who stated that it was a hold-up inside the bus and who fired the gun
are they inside the Court room (sic) today?
A

Yes, maam.

Point to us?

Interpreter:
Witness pointing to a man wearing red T-shirt and when asked his name answered Victor Acuyan
and the man wearing green T-shirt and when asked his name answered Juan Gonzales.[41]
For his part, Romulo likewise spontaneously pointed to and identified Juan and Victor as the
culprits when asked by the prosecutor to identify the robbers from among those in the courtroom:
xxx
Q

You said that you were robbed inside the bus, how does (sic) the robbing took place?

A They announced a hold up maam, afterwards, they confiscated the money of the
passengers including my collections.
Q

You said they who announced the hold up, whose (sic) these they you are referring to?

Those two (2), maam.

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

Juan Escote, Your Honor. Victor Acuyan, Your Honor.

Public Pros.:
May we know from the accused if his name is Juan Escote Gonzales because he just said Juan
Escote. In the Information, it is one Juan Gonzales, Jr., so, we can change, Your Honor.[42]
Moreover, when he was accosted by SPO3 Romeo Meneses on October 25, 1997 in Tarlac,
Tarlac, Juan was in possession of the identification card[43] of the slain police officer. Juan failed
to explain to the trial court how and under what circumstances he came into possession of said
identification card. Juan must necessarily be considered the author of the robbery and the killing
of SPO1 Manio, Jr. In People v. Mantung,[44] we held:

xxx [T]he recovery of part of the loot from Mantung or the time of his arrest gave rise to a legal
presumption of his guilt. As this Court has held, [I]n the absence of an explanation of how one
has come into possession of stolen effects belonging to a person wounded and treacherously
killed, he must necessarily be considered the author of the aggression and death of the said
person and of the robbery committed on him.
While police investigators did not place Juan and Victor in a police line-up for proper identification
by Rodolfo and Romulo, it cannot thereby be concluded that absent such line-up, their
identification by Romulo and Rodolfo as the authors of the robbery with homicide was unreliable.
There is no law or police regulation requiring a police line-up for proper identification in every
case. Even if there was no police line-up, there could still be proper and reliable identification as
long as such identification was not suggested or instigated to the witness by the police.[45] In this
case, there is no evidence that the police officers had supplied or even suggested to Rodolfo and
Romulo the identities of Juan and Victor as the perpetrators of the robbery and the killing of
SPO1 Manio, Jr.
The Felony Committed by Juan and Victor
The Court finds that the trial court committed no error in convicting Juan and Victor of robbery
with homicide. Article 294, paragraph 1 of the Revised Penal Code, as amended by Republic Act
7659, reads:
Art. 294. - Robbery with violence against or intimidation of persons. - Penalties. - Any person
guilty of robbery with the use of violence against or intimidation of any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the
crime of homicide shall have been committed, or when the robbery shall have been accompanied
by rape or intentional mutilation or arson.
To warrant the conviction of Juan and Victor for the said charge, the prosecution was burdened to
prove the confluence of the following essential elements:
xxx (a) the taking of personal property with the use of violence or intimidation against a person;
(b) the property thus taken belongs to another; (c) the taking is characterized by intent to gain or
animus lucrandi and (d) on the occasion of the robbery or by reason thereof, the crime of
homicide, which is therein used in a generic sense, was committed. xxx[46]
The intent to rob must precede the taking of human life.[47] In robbery with homicide, so long as
the intention of the felons was to rob, the killing may occur before, during or after the robbery. In
People v. Barut,[48] the Court held that:
In the controlling Spanish version of article 294, it is provided that there is robbery with homicide
cuando con motivo o con ocasin del robo resultare homicidio. Basta que entre aquel este
exista una relacin meramente ocasional. No se requiere que el homicidio se cometa como
medio de ejecucin del robo, ni que el culpable tenga intencin de matar, el delito existe segn
constanta jurisprudencia, aun cuando no concurra animo homicida. Incluso si la muerte
sobreviniere por mero accidente, siempre que el homicidio se produzca con motivo con ocasin
del robo, siendo indiferente que la muerte sea anterior, coetnea o posterior a ste (2 Cuello
Calon, Derecho Penal, 1975 14th Ed. P. 872).
Even if the victim of robbery is other than the victim of the homicide committed on the occasion of
or by reason of the robbery, nevertheless, there is only one single and indivisible felony of
robbery with homicide. All the crimes committed on the occasion or by reason of the robbery are
merged and integrated into a single and indivisible felony of robbery with homicide. This was the
ruling of the Supreme Court of Spain on September 9, 1886, et sequitur cited by this Court in

People v. Mangulabnan, et al.[49]

We see, therefore, that in order to determine the existence of the crime of robbery with homicide
it is enough that a homicide would result by reason or on the occasion of the robbery (Decision of
the Supreme Court of Spain of November 26, 1892, and January 7, 1878, quoted in 2 Hidalgos
Penal Code, p. 267 and 259-260, respectively). This High Tribunal speaking of the accessory
character of the circumstances leading to the homicide, has also held that it is immaterial that the
death would supervene by mere accident (Decision of September 9, 1886; October 22, 1907;
April 30, 1910 and July 14, 1917), provided that the homicide be produced by reason or on
occasion of the robbery, inasmuch as it is only the result obtained, without reference or distinction
as to the circumstances, causes, modes or persons intervening in the commission of the crime,
that has to be taken into consideration (Decision of January 12, 1889 see Cuello Calons
Codigo Penal, p. 501-502).
Case law has it that whenever homicide has been committed by reason of or on the occasion of
the robbery, all those who took part as principals in the robbery will also be held guilty as
principals of robbery with homicide although they did not take part in the homicide, unless it
appears that they endeavored to prevent the homicide.[50]
In this case, the prosecution proved beyond reasonable doubt that Juan and Victor conspired and
confabulated together in robbing the passengers of the Five Star Bus of their money and
valuables and Romulo of his collections of the fares of the passengers and in killing SPO1 Manio,
Jr. with impunity on the occasion of the robbery. Hence, both Juan and Victor are guilty as
principals by direct participation of the felony of robbery with homicide under paragraph 1, Article
294 of the Revised Penal Code, as amended by R.A. 7659, punishable by reclusion perpetua to
death.

G.R. No. 130627 and Nos. 139477-78. May 31, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGUEDA T. ALBA, ADRIANO GORTAYO,
MARIBEL GORTAYO, SATURNINO REMBULAT JR., DAVID KINGKING, ALICIA KINGKING,
FRANCISCO ALOVERA, DANILO TOLIS, RONNIE GONZAGA, CLAUDIO ASPERA, AND JOHN
DOES, accused.
AGUEDA T. ALBA, ADRIANO GORTAYO, SATURNINO REMBULAT, JR., FRANCISCO
ALOVERA AND RONNIE GONZAGA, accused-appellants.
DECISION
PARDO, J.:
For their feet run to evil, they hasten to shed blood. It is in vain that a net is spread before the
eyes of any bird -- These men lie in wait for their own blood, they set a trap for their own lives.
This is the fate of everyone greedy of loot; unlawful gain takes away the life of him who acquires
it.
Proverbs 1:16 - 19

A bitter and long drawn out dispute over the ownership and possession of a fishpond, covering an
area of forty-one (41) hectares, located at Dongon West, Numancia, Aklan[1] violently culminated
in the bloody death of Roberto Acevedo. Accused stand charged with the gruesome murder--a
reminder that nothing, much more material things or property, is worth bloodied hands.
The Case
The case is an appeal from the decision of the Regional Trial Court, Aklan, Branch 5, Kalibo[2]
finding accused Agueda T. Alba, Saturnino Rembulat, Jr., Francisco Alovera, Ronnie Gonzaga
and Adriano Gortayo (hereafter, Alba, Rembulat, Alovera, Gonzaga and Gortayo) guilty beyond
reasonable doubt of murder for the killing of Roberto Acevedo, and attempted murder for the
shooting of Julito Magcope, sentencing each of them to reclusion perpetua for murder, and an
indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as
minimum, to six (6) years and one (1) day of prision mayor, as maximum, for for attempted
murder, to jointly and severally indemnify the heirs of Roberto Acevedo (hereafter, Acevedo) the
sum of P50,000.00 and P100,000.00 for funeral, burial and other necessary expenses and to pay
the costs.
The Facts
On July 25, 1990, at around seven oclock in the morning, Randy Ricaforte (hereafter,
Ricaforte),[3] was working in a fishpond in Brgy, Dongon, Numancia, Aklan. After placing the
potable water into a drum inside the hut, Ricaforte went to the fishponds water gate. At the gate,
accused David Kingking called out to him and asked Ricaforte to join him and others.[4] Ricaforte
testified that David Kingking was holding an M-16 armalite at that time. Ricaforte was brought to
accused Alba who asked him if he was one of Acevedos goons. Ricaforte answered in the
negative and was then brought to accused Rembulat and Gortayo, both of whom were also
carrying firearms. At this point, Rembulat and Gortayo started firing repeatedly at the hut[5] where
Acevedo was staying. Acevedo then started running out of the hut towards the fishpond tower.[6]
Gortayo continued to fire at Acevedo. When Acevedo reached the tower, Gortayo stopped firing
his armalite and instead used his rifle grenade.[7] After firing at the tower, Gortayo shouted,
"Bobby, if we cannot get you now, we will get you tomorrow.[8]
Ricaforte also testified that he saw several of the accused, namely, Alicia Kingking, Danilo Tolis
and others whom he could not identify running towards the fishpond carrying pieces of wood.[9]
After the firing, accused brought Ricaforte to the house of a certain Belen Artates where he later
heard, after two hours, the news that Acevedo was dead.[10] The police later found the bullet
ridden body of Acevedo under the tower, surrounded by sacks of fertilizer.[11]
Julito Magcope, Acevedos caretaker (hereafter, Magcope), also testified that he saw Acevedo
running towards the tower while being shot at. When accused Gonzaga and Alovera noticed
Magcope, they started shooting at him with their armalites. Fortunately, Magcope managed to
jump out of the line of fire, into the irrigation canal. He later on crawled towards the fishpond dike
where he hid himself during the firing.[12]
On October 11, 1990, the First Assistant Provincial Prosecutor of Aklan filed with the Regional
Trial Court, Kalibo, Aklan, an information against accused David Kingking, Alicia Kingking, Danilo
Tolis,[13] Maribel Gortayo, Claudio Aspera and accused Alba, Rembulat, Alovera, Gonzaga,
Gortayo and five other Does[14] for murder with and attempted murder, as follows:[15]
That on or about the 25th day of July, 1990, in the morning, in Barangay Dongon West,
Municipality of Numancia, Province of Aklan, Republic of the Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
helping one another, with evident premeditation and by means of a band and with intent to kill, did

then and there wilfully, unlawfully and feloniously raid, attack, and shoot ROBERTO ACEVEDO
and JULITO MAGCOPE with high powered rifles (sic) names: armalite M16 and M14 as well as
carbine, inflicting upon ROBERTO ACEVEDO the following injuries, to wit:
CYANOSIS, intergument and nailbeds.
Wound, gunshot, ENTRANCE, shape and size cannot be determined, modified by laceration and
suture, medial border, sorrounded by abrasion collar, 0.2 cm., medial canthus or right orbital
ridge, 1.5 cms. from anterior midline, 146.0 cms. from right heel, directed upwards, slightly
backwards and laterally, penetrating, causing punched in fracture, fronto-nasal injection with
beveling at the inner deploe of frontal bone with multiple linear extensions downward to tight
ithmoid bone. Left side to left portion of frontal bone, towards the right, to right temporal bone,
then downwards and laterally to right zygomatic bone with bone fragments missing at right frontal
bone and the right eyeball pushed inside, lacerating right frontal lobe of the brain where small
lead fragments lodged and recovered, make an EXIT, avulsion rectangular in shape right
eyebrow, center of which is 4.0 cms. from anterior midline, 148.0 cms. from right heel, with
multiple laceration around, on the lateral side, 11.5 cms., extending from lateral canthus of the
eye-lid to right temporal region, upwards, 6.0 cms. extending from forehead to medial end of the
right eyebrow, downwards 2.5 cms. along right side of bridge of the nose, 4.0 cms at the middle
portion on the upper side and 1.0 cm. on the infero-lateral side.
Subdural hemorrhage, massive, extensive.
Subarachnoidal hemorrhage, massive extensive.
Brains, lacerating frontal lobe, right side with portion, missing, Gyri flattened.
Heart, covered with moderate amount of fatty tissues. Ventricular, chambers, empty, coronary
arteries, patent.
Lungs, voluminous, criptous, congested. Cut section show focal areas of hemorrhage. Exude
sanguinous froth on pressure, moderate amount.
Other visceral organs, slightly congested.
Stomach, empty.
as per Necropsy Report No. 90-No.0-92, issued by Dr. Ricardo S. Jaboneta, M.D., Medico-Legal
Officer of the National Bureau of Investigation, Western Visayas Regional Office, Iloilo City, which
injuries caused the instantaneous death of said ROBERT ACEVEDO while in the case of JULITO
MAGCOPE, the herein accused have already commenced directly by overt acts the commission
of the crime of murder but did not perform all the acts of execution which would have produced
the felony by reason of causes other than their own spontaneous desistance, that is, by the timely
escape of said JULITO MAGCOPE.
As a result of the criminal acts of the accused, the family of the victim ROBERTO ACEVEDO and
JULITO MAGCOPE suffered actual damages in the total amount of One Hundred Thousand
Pesos (P100,000.00).
CONTRARY TO LAW.
On January 22, 1991, accused Alba, Gonzaga and Rembulat submitted themselves to the
jurisdiction of the court. Upon arraignment, they pleaded not guilty to the crimes charged.[16]
On April 18, 1991, accused Gortayo was likewise arraigned. He pleaded not guilty to the
charges.[17]

On November 21, 1991, accused Alovera pleaded not guilty upon arraignment.[18]
After due trial, on June 18, 1997, the trial court rendered a decision, the dispositive portion of
which reads:[19]
WHEREFORE, in view of the foregoing considerations, judgment is hereby rendered as follows:
xxx
2. In Criminal Case No. 3209, finding the accused AGUEDA T. ALBA, SATURNINO
REMBUBULAT, JR., ADRIANO GORATYO (GOROTAYO), RONNIE B. GONZAGA and
FRANCISCO C. ALOVERA guilty beyond reasonable doubt of the crime of Murder defined and
penalized under Article 248 of the Revised Penal Code for the killing of Engr. Roberto alias
Bobby Acevedo, each of them is hereby sentenced to suffer the penalty of reclusion perpetua
and to jointly and severally indemnify the heirs of Engr. Roberto Acevedo the sum of P50,000.00
and another P100,000.00 for funeral, burial, and other necessary expenses on account of the
victims death.
The Court also finds the afore-named accused guilty beyond reasonable doubt of the crime of
attempted murder for the shooting of Julito Magcope and each of them to suffer an indeterminate
penalty of two (2) years, four (4) months and one (1) day of prision correccional as minimum to
six (6) years and one (1) day of prision mayor as maximum and to pay the costs.
Accused DAVID KINGKING, ALICIA KINGKING and DANILO TOLIS are hereby ACQUITTED of
the offense charged for failure of the prosecution to establish their guilt beyond reasonable doubt.
The cases against the remaining accused who have remained at-large are hereby sent to the
archives to be revived upon their arrest.
SO ORDERED.
On June 24, 1997, accused Agueda T. Alba, Saturnino Rembulat, Jr., Francisco Alovera, Ronnie
Gonzaga and Adriano Gortayo filed their notice of appeal.[20]
On July 8, 1998, the Court resolved to accept their appeal.[21]
Accused-appellants simply submits that their guilt was not established beyond reasonable doubt.
[22]
The Courts Ruling
We do not agree. The concept of proof beyond reasonable doubt does not entail absolute
certainty of the fact that the accused committed the crime, and neither does it exclude the
possibility of error.[23] Only moral certainty is required.[24]
In the cases at bar, the quantum of proof beyond reasonable doubt was met. In People v.
Villablanca,[25] we held that the testimony of a single witness is sufficient to support a conviction
where it is both positive and credible. How much more in this situation where two prosecution
witnesses[26] gave unflinching and reliable testimonies against accused appellants? Witnesses
are weighed and not numbered. With this in mind, we sustain the convictions and discuss
accused-appellants individual culpabilities in seriatim.
Francisco Alovera and Ronnie Gonzaga were categorically identified by prosecution witness
Magcope. The latter testified that the accused-appellants both shot and fired at the tower where
Acevedo took refuge. These are specific and overt acts that leave no doubt as to their guilt in the

crime of murder.
We agree with the trial court that Adriano Gortayos cuplability is indisputable. We adopt the trial
courts reasoning, thus:[27]
Considering the testimony of Ricaforte that Gortayo was the only person who fired from Gate No.
1 (TSN, January 25, 1991, p. 23) no other conclusion can be drawn except that it was Gortayo
who shot and hit the victim (underscoring ours). Moreover, proof as to who among the armed
men that fired at the tower actually killed the victim is not necessary should the presence of
conspiracy be established. Where conspiracy is proven, the act of one is the act of all (People
vs. M/Sgt. Reynaldo Landicho, et. al., G. R. No. 116600, July 3, 1996).
Agueda T. Alba and Saturnino Rembulat, Jr. are likewise guilty of the crime charged. True, they
did not actually fire upon Acevedo. Still, their participation in the conspiracy to murder him is
apparent. First, they were conspicuously present during the commission of the crime, in such a
way that they could not be considered as innocent bystanders. Second, they arrived and left the
scene of the crime with the other accused-appellants. Third, they did nothing to prevent or stop
the successive shooting of the tower, where they knew Acevedo was hiding. Fourth, Alba had a
motive to kill Acevedo on account of the dispute over the fishpond which has become more bitter
through the years. We agree with the trial court:[28]
Accused Alba would have easily dissuaded her son-in-law, Gortayo from firing his gun if the
former has also no intention of inflicting harm on Engr. Acevedo. On the contrary, the Court
cannot simply disregard the fact that on account of the raging fishpond controversy between
accused Alba and the victim, the former was determined to eliminate Engr. Acevedo in order to
retake actually possession of the disputed fishpond. Presumably, she was able to attain her
purpose.
In People v. Taliman,[29] we held that coupled with enough circumstantial evidence, motive may
be sufficient to support a conviction. Motive was clearly established in this case.
Furthermore, we note that Alba and Gortayo were not immediately apprehended even after a
warrant was issued for their arrest. They tried to flee. Flight indicates guilt. Accused-appellants
act of not confronting their accuser goes against the principle that the first impulse of an innocent
man when accused with wrongdoing is to express his innocence at the first opportune time.[30]
Alibi and denial, which are the defenses interposed by accused-appellants, are the weakest of all
defenses[31] and must fail given the straightforward, candid and positive testimonies of the
prosecution witnesses.[32] Besides, the rule is that the trial courts assessment of the credibility of
witnesses is entitled to great respect. The court had the opportunity to observe the witnesses
demeanor and deportment on the witness stand.[33] In fact, the trial court noted the deportment
of the prosecution witnesses and hailed their manner of testifying as straightforwarddevoid of
any embellishment or exaggerations.[34] Anent the trial courts decision, The reliability and
veracity of their (prosecution witnesses) testimonies cannot be suspect.[35]
Attempted Murder
Given that there was a conspiracy, we likewise find all accused-appellants guilty of the crime of
attempted murder. Magcope testified that he witnessed Acevedo being fired at. At this point,
accused-appellants Gonzaga and Alovera started shooting at him with their armalites. The only
reason why he was not injured was because he was able to jump out of the irrigation canal and
was able to crawl towards the fishpond dike where he hid himself during the firing.[36] In a
conspiracy, the act of one is the act of all.
Article 6 of the Revised Penal Code provides:

Art. 6. Consummated, frustrated and attempted felonies.- x x x There is an attempt when the
offender commences the commission of a felony directly by overt acts, and does not perform all
the acts of execution which should produce the felony by reason of some cause or accident other
than his own spontaneous desistance.
Clearly, there was an attempt to murder Magcope, a plan that would have been carried out if it
werent for Magcopes timely dodging of the shots fired at him.
Penalties Imposed
At the time of the commission of the offense of murder,[37] the penalty imposable under Article
248 of the Revised Penal Code was reclusion temporal in its maximum period to death.[38] There
being no aggravating or mitigating circumstance that attended the murder, the proper imposable
penalty is reclusion perpetua.[39]
Article 51 of the Revised Penal Code provides that A penalty lower by two degrees than that
prescribed by law for the consummated felony shall be imposed upon the principals in an attempt
to commit the felony.
Damages Awarded
The records are bereft of any receipt or voucher to justify the trial courts award of actual
damages for funeral and burial expenses. Hence, we delete the same. Every pecuniary loss
must be established by credible evidence.[40]
An award of moral damages in the amount of fifty thousand pesos (P50,000.00) to the heirs of
Acevedo is proper.[41] Moral damages are also awarded taking into consideration the pain and
anguish of the victims family.[42]
Civil indemnity awarded for wrongful death in the amount of fifty thousand pesos (P50,000.00) is
in line with current jurisprudence. This can be awarded without need of proof other that the death
of the victim.[43]
The Fallo
WHEREFORE, the decision of the Regional Trial Court, Branch 5, Kalibo, Aklan, is AFFIRMED
with MODIFICATION.
Accused-appellants Agueda T. Alba, Saturnino Rembulat, Jr., Francisco Alovera, Ronnie
Gonzaga and Adriano Gortayo are found guilty beyond reasonable doubt of the crime of
MURDER defined and penalized under Article 248 of the Revised Penal Code and are sentenced
to reclusion perpetua. Accused-appellants are jointly and severally ordered to pay the heirs of
Roberto Acevedo, moral damages in the amount of fifty thousand pesos (P50,000.00) and civil
indemnity in the amount of fifty thousand pesos (P50,000.00). The award for funeral expenses to
the heirs of Roberto Acevedo is DELETED.
Accused-appellants are likewise found guilty beyond reasonable doubt of ATTEMPTED MURDER
defined and penalized under Article 248, in relation to Article 51 of the Revised Penal Code, and
in the absence of any modifying circumstances, are sentenced to an indeterminate penalty of four
(4) years and two (2) months of prision correctional, as minimum, to ten (10) years of prision
mayor, as maximum, and to pay the costs.
The case is archived as to accused who remain at large, until their arrest and submission to the
jurisdiction of the trial court.
SO ORDERED.

G.R. Nos. 81405-06

May 7, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
VALERIO CARMINA, accused-appellant.
The Solicitor General for plaintiff-appellee.
CLAO for accused-appellant.

GRIO-AQUINO, J.:
A farmer and his two sons were shot and decapitated for failure to pay the P500 "tax" demanded
by the accused, allegedly a member of the dreaded New People's Army or "NPA."
On September 30, 1986, Valerio Carmina, Israel Carmina alias "Boy" and Danilo Catundag alias
"Danny," were charged with murder and double murder in separate informations which were
docketed as Criminal Cases Nos. 1543 and 1544, alleging as follows:
CRIMINAL CASE NO. 1543
That on or about April 24, 1986, in the Municipality of Tarragona, Province of Davao Oriental,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating, and mutually helping one another, with treachery and evident
premeditation, armed with firearms and a bolo and with intent to kill, did then and there wilfully,
unlawfully and feloniously attack, assault, shoot and hack and/or stab with said weapons one
GENARO GAMBOA, thereby inflicting upon the latter mortal wounds which caused his death.
CONTRARY TO LAW.
CRIMINAL CASE NO. 1544
That on or about April 24, 1986, in the Municipality of Tarragona, Province of Davao Oriental,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused,

conspiring, confederating and mutually helping one another, with treachery and evident
premeditation, armed with firearms and a bolo, and with intent to kill, did then and there wilfully,
unlawfully, and feloniously attack, assault, shoot, stab and/or hack with said weapons JOELITO
GAMBOA and OSCAR GAMBOA, thereby inflicting upon the said victims mortal wounds which
caused their death.
CONTRARY TO LAW. (pp. 20-21, Rollo.)
Valerio Carmina entered a plea of not guilty to both charges. His co-accused have remained at
large. Both cases were jointly tried by agreement of the parties.
The prosecution, through the testimonies of Edgar and Orestes Gamboa, established that at
about five o'clock in the morning of April 24, 1986, Genaro Gamboa, and his four sons, Joelito,
Oscar, Edgar, and Orestes, arrived at their farm in Sitio Baesan, Tarragona, Davao Oriental. They
had come from their residence in Sitio Maitum Tubaon, also in Tarragona. They brought with them
three laborers, named Jun Cotabato (Gabato), Winny Quiboto and Federico de Lima, to clear the
fields in preparation for planting corn. Except for Edgar Gamboa who worked in his vegetable
garden "five fathoms away," the Gamboas and their laborers started clearing the fields, working
side by side.
At around 11:00 o'clock in the morning, a group of three men arrived. They were Valerio Carmina
who was armed with a carbine rifle, Israel Carmina who was armed with a garand rifle, and Danilo
Catundag who was armed with a bolo. They ordered Genaro and his sons, Joelito and Oscar, to
approach them, shouting: "Dali mo diri" (Come here quick!). As they did, Valerio shouted: "Here
come the persons who have no respect in paying the P500 as demanded." Joelito was asked
about the whereabouts of an airgun. He replied that it was in the farmhouse and directed his 11year old brother, Orestes, to get the airgun. Meanwhile, the armed group ordered the laborers,
Jun Cotabato and Winny Quiboto, to leave the place. They did not notice the third laborer,
Federico de Lima, who hid behind a narra tree.
When Orestes Gamboa returned with the airgun, Israel Carmina grabbed it from him and fired
one shot. Orestes scampered for safety and hid behind a tree. Genaro, Joelito and Oscar were
ordered by the armed men to lie face down on the ground. As soon as they obeyed, they were
shot by Valerio and Israel Carmina with their guns. Joelito died on the spot. Oscar was able to
stagger "ten fathoms away" before he succumbed to his wounds. The volley of shots missed
Genaro Gamboa, who got up and ran toward a nearby creek. Danilo Catundag chased him and
mercilessly hacked and beheaded him. Catundag returned to the spot where the Carmina's were,
his bolo dripping with Genaro's blood. Federico de Lima and Orestes Gamboa witnessed the
decapitation of Genaro. Orestes and Edgar fled in terror from their separate hiding places toward
the Kinunuan River. Upon encountering Edgar there, Orestes hysterically embraced his brother.
They rushed home to Sitio Maitum, Tubaon and reported the bloody incident to their mother,
Eustaquia. In the afternoon, Edgar reported the crime to Kagawad Rosendo. The barangay
officer's letter reporting the incident was personally delivered by Edgar to the INP (Integrated
National Police) station commander.
Aside from the eyewitnesses, Edgar and Orestes Gamboa, the other prosecution witnesses,
Eustaquia Vda. de Gamboa, Abraham T. Loganio and Cpl. Epimaco Cabilleda, adduced
corroborative testimony about the murder scene, the death of the victims and the registration of
their deaths.
Only Valerio Carmina was apprehended. He testified during the trial that he tended his farm in
Pagsilaan, Manay, Davao Oriental, where he resides, but he also used to commute regularly to
Ompao, Davao because he was a member of the NPA. In 1970 he allegedly was an informer for
the ICHDF in San Ignacio, Davao Oriental, but he got into trouble with the Badadao family in
1982 and in 1985 he became a fugitive and joined the NPA after shooting to death Elnoro
Badadao.

When the Gamboas were murdered, he allegedly was in the house of Francisco Antao in Bolongbolong (Ompao), Tarragona, with other NPA members named Alex Antao, Felix Maguinsay and
Ricardo Mandabon.
Francisco Antao affirmed that Valerio had "come down from the forest" to be in his (Antao's)
house in Bolongbolong at the time of the killing.
The trial court rendered judgment on October 23, 1987, finding the accused guilty beyond
reasonable doubt as principal in the commission of the three murders and sentenced him to
suffer the penalty of reclusion perpetua in each case with the accessory penalties provided by
law, to indemnify the heirs of each of the three victims in the sum of P30,000 without subsidiary
imprisonment in case of insolvency, and to pay the costs.
The appellant alleges that the court a quo erred in convicting him despite the absence of
evidence proving his guilt beyond reasonable doubt.
The appeal has no merit.
The testimonies of three eyewitnesses for the prosecution: the eleven-year-old Orestes Gamboa,
his older brother Edgar Gamboa, and the laborer, Federico de Lima, were consistent with each
other and were not overturned in any way by the defense.
The allegation of Valerio that he did not participate in the killing of the Gamboas by his son, Israel,
and Danilo Catundag, is not credible for, on the contrary, it was he who had a motive for revenge
for he resented Genaro's refusal to pay the P500 tax demanded by the NPA. His active
participation in the triple murders was proven by the testimonies of the eyewitnesses whose
credibility the defense failed to shake. He and his coaccused arrived together at the scene of the
crime and they left the place together, also convincing proof of conspiracy on the part of all the
accused in the commission of the heinous crime.
Valerio's defense of alibi crumbles in the face of direct and positive identification of Valerio at the
scene of the crime by the prosecution witnesses. Considering further the absence of proof that
the distance from the house of Antao in Ompao, Tarragona to Genaro's farm in Baesan also in
Tarragona was such as would have made it physically impossible for him to have been at the
scene of the crimes (People v. Jara, 144 SCRA 516; People v. Alcantara, 33 SCRA 812; People v.
Cabanit, 139 SCRA 94), the trial court properly rejected his alibi.
WHEREFORE, the decision sought to be reviewed is hereby AFFIRMED in toto.Costs against the
appellant.
SO ORDERED.

G.R. No. 75267 September 10, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CARLOS DELA CRUZ y VENANCIO alias "BOSYO", accused-appellant.
The Solicitor General for plaintiff-appellee.
Ponciano G. Hernandez for accused-appellant.

FELICIANO, J.:
There are not many crimes more morally repugnant than the sexual violation of a young child.
This case involves such a crime: rape committed, with the bravado of evil, in a place dedicated to
prayer and worship of the Supreme Being. Accused-appellant was charged with raping a 7-year
old girl in Criminal Case No. SM-2219 in a complaint which read as follows:
Criminal Complaint
The undersigned complainant, Marciano Venancio, father of the minor, Brigida Venancio accuses
Carlos dela Cruz y Venancio alias "Bosyo" of the crime of rape, penalized under the provisions of
paragraph 3, Art. 335 of the Revised Penal Code, committed as follows:
That on or about the 6th day of September, 1980, in the municipality of Sta. Maria, province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Carlos
dela Cruz y Venancio alias "Bosyo", with lewd designs, did then and there wilfully, lawfully and
feloniously had carnal knowledge with a seven-year old girl, Brigida C. Venancio, against her will
and consent committed with force and violence.
Contrary to law. 1 (Emphasis supplied)
The accused during the arraignment pleaded not guilty. After trial and in due course of time, on 20
February 1985, the trial court rendered a decision, the dispositive portion of which stated:
WHEREFORE, finding the accused Carlos dela Cruz y Venancio, guilty beyond reasonable doubt
of the crime of rape defined and penalized under Article 335 (3) of the Revised Penal Code, as
amended, he is hereby sentenced to Reclusion Perpetua. He is furthermore ordered to indemnify
the victim Brigida Venancio, in the amount of P30,000.00.
SO ORDERED. 2
The evidence of the prosecution tended to establish the following:
At about 8:00 o'clock p.m. on 6 September 1980, Brigida Venanciothen barely seven (7) years
old 3 was walking through a heavy rain, alone and without an umbrella, bound for her
grandparents' house. While Brigida was passing by the Chapel in Sta. Cruz, Sta. Maria, Bulacan,
the accused Carlos dela Cruz y Venancio, a blood relative of Brigida (the record does not
disclose in what civil degree), suddenly reached out from the doorway and grabbed Brigida's arm
and pulled her inside the Chapel. In the Chapel, where it was dark the lights being off, the
accused led her to the last pew, pinned her down on the pew and removed her panty. 4 Accused
also removed his pants and immediately introjected or sought to introject his penis into little
Brigida's private organ. While so engaged, the accused covered Brigida's mouth with his one
hand twisted her arm with his other arm. Accused succeeded in placing his organ on top and at
least partially into Brigida's private part. 5 Shortly, thereafter, while the two (2) lay down on the
pew, head to head, with panty and pants on, respectively, two (2) young parishioners Luzviminda
Mendoza and Marilou Carpio, entered the Chapel for a scheduled prayer rally and switched on
the lights. Luzviminda Mendoza saw Brigida, who immediately stood up almost simultaneously

with the accused, dazed and soaking wet. 6 Another parishioner Mrs. Francisca Mendoza,
Brigida's teacher in Grade I primary school, arrived in the Chapel a little later. She too saw Brigida
and the accused and wondered why she was still abroad rather than at home at such a late hour.
7 Mrs. Mendoza advised Brigida to go home immediately which Brigida did. On her way back to
her parents' house, Brigida met Luzviminda Mendoza's father, Mang Domeng, who on noticing
her dazed condition accompanied her home to her doorstep. 8
After the rally, Luzviminda who was an aunt of Brigida, did not go home directly but went to the
house of Brigida's parents 9 and asked the mother why Brigida was soaking wet and still not at
home at that late hour. After Luzviminda had left, the mother asked Brigida what had happened.
Brigida then told her mother she had been violated by Carlos "Bosyo" dela Cruz. 10
The next day, 7 September 1980, Brigida and her parents and accompanied by Marilou Carpio
went to the office of the Police Station Commander of Sta. Maria, Bulacan, and reported the rape
of Brigida by the accused and had the matter reflected on the police blotter. 11 In the afternoon of
the same day, Brigida was brought by her parents to the National Bureau of Investigation ("NBI")
office in Manila for medical examination. 12 The examination was conducted by Dr. Nieto M.
Salvador who issued a Medico Legal Report dated 7 September 1980 which set forth the
following
FINDINGS
General Physical Examination:
Height: 67 cms. Weight: 20 kgs.
Normally developed, fairly nourished, conscious, coherent, cooperative, ambulatory subject.
Breasts infantile.
No evident sign of extragenital physical injuries noted.
Genital Examination:
Pubic hair, absent. Labia majora and minora, coaptated. Fourchette tense. Vestibule, reddish and
congested. Hymen, intact. Hymenal orifice, minular admits a tube 0.5 c.m. diameter.
Conclusion:
Hymen intact. 13
Brigida's parents, however, did not think very much of the medical examination conducted by Dr.
Salvador. Brigida's mother later testified in court that she believed the examination had been
done hurriedly and cursorily and haphazardly. 14 Notwithstanding the conclusion of Dr. Salvador's
report that Brigida's "hymen [was] intact", Brigida's parents were determined to pursue their
complaint on behalf of Brigida. They were not, however, able to lodge one immediately against
the accused, since the police investigator was not in his office whenever they went to the police
station. 15 Thus, on 18 September 1980, Brigida and her mother went to the Philippine
Constabulary Criminal Investigation Service (CIS) at Camp Crame for assistance. There, Brigida
was again examined by PC Medico-Legal officer Dr. Desiderio Moraleda who made the following
FINDINGS:
General and Extragenital:
Fairly developed, fairly nourished and coherent female subject. Breasts are undeveloped.

Abdomen is flat and tight. There are not external signs of recent application of any form of
trauma.
Genital:
There is absence of pubic hair. Labia majora are full, convex and gaping with the pale brown labia
minora presenting in between. On separating the same are disclosed a congested vulvar
mucosa, a tight and intact fourchette and an elastic, fleshy-type hymen with a deep, healed
laceration at 6 and shallow, healed laceration at 3 and 9 o'clock. External vaginal orifice offers
strong resistance to the introduction of the examining index finger.
Vaginal and peri-urethral smears are negative for gram-negative diplococci and for spermatozoa.
Remarks:
Subject is in non-virgin state physically. 16
The defense's version of the facts was simply that the rape never happened. The accused
testified that he had come from work and stopped by and stayed at the Chapel waiting for the rain
to stop. 17 He dozed off, he said, and upon waking up, found a child sleeping on a pew some
little distance from where he himself had fallen asleep. He testified that he saw Mrs. Francisca
Mendoza talk to the child; that he had not done anything to Brigida; that he had not inserted his
organ into Brigida's private part; and he had not removed her panty nor lain on top of her. 18
The accused's bare denial was not corroborated by any other witness. Luzviminda Mendoza's
testimony, even if presented by the defense, strongly suggested that something out of the
ordinary had happened on the evening of 6 September 1980 inside the Sta. Cruz Chapel; for, as
noted, she proceeded to Brigida's home right after the prayer rally, indicating that finding the child
Brigida with the accused in the Chapel in such a conditionsoaked to the skin and dazedhad
aroused her concern.
Upon the other hand, the testimony of the child Brigida in open court was starkly simple and
straightforward. She said:
Atty. Regalado:
Q Brigida, do you know a person by the name of Carlos dela Cruz or "Bosyo"?
A Yes, sir.
Q

If he is inside this courtroom, can you point to him?

A That man (witness pointing to a man who responded to the name of Carlos dela Cruz).
xxx

xxx

xxx

Q
Ida, you earlier said that you have a complaint please tell us what that complain was?
You are complaining against whom?
A

Bosyo, sir.

Q Why? Ida, did you also complain to your mother about Bosyo?
A Yes, sir.
Q What did you complain to your mother about?

A Bosyo undressed me, sir.

Q

Are you also making the same complaint here or what?

The same, sir.

xxx

xxx

xxx

Court:
Proceed.
[Atty. Regalado:]
Q
On the night that you reported to your mother, what exactly did you tell your mother on
the night you reported it to your mother?
A
That Bosyo "hinubaran po ako ni Bosyo at inilabas niya and kanyang titi at inilagay sa kiki
ko po".
Q What else did he do to you?
A

He covered my mouth with his hands.

Q What else?
A He twisted my arm, sir.
Q

Will you please show the Honorable Court how your arm was twisted by the accused?

A This way, sir. (Witness holding her right wrist by her left hand and twisting the same.)
Q

Now Bosyo you said "hinubaran ka. . . "

Court:
Was the panty removed?
Atty. Hernandez:
We agree to that translation, your Honor.
Court:
Go ahead.
Atty. Regalado:
Q When Bosyo pulled down your panty, will you please state before this Honorable Court how he
put down your panty?
A

(Witness showing that her panty was being put down.)

When your panty was down already, what did Bosyo do, if any?

A He put his penis on my vagina, sir. (Witness demonstrated by movements)

Court:
Q

Were you sitting or standing at the time or were you lying?

A I was lying sir.

Q And how did he do it?
A (Witness demonstrated the manner how Bosyo laid on top of her.)
Court:
Proceed:
Atty. Regalado:
Q At the time, what place was that where you said you were lying?
A On a long bench, sir.
Q Approximately, if you can remember what time was that in the evening?
A Around 8:30 in the evening, sir.
Q Where did the incident happen?
A

Inside the chapel, sir.

Q You said chapel, what chapel was that?

A Sta. Cruz, Sta. Maria, Bulacan, sir.
Court:
Aside from you and Bosyo, were there other persons there?
A None, sir.
Atty. Regalado:
Q
How many minutes did this Bosyo had the opportunity of putting his penis in your
vagina?
A Quite a few seconds, sir.
xxx

xxx

xxx 19

(Emphasis supplied)
The trial court which heard Brigida's testimony from beginning to end, found that her statements
had the ring of truth and were convincing. The trial court said:
The Court is not unmindful of that judicial pronouncement deeply embedded in jurisprudence that
the accusation for rape is easily made, hard to prove, but harder to be defended by the party

accused, though innocent. (U.S. v. Flores, 26 Phil. 262). In this case, however, it is inconceivable
and it is extremely difficult for the Court to believe that a seven year old girl, unmotivated and so
blissfully innocent could concoct a narration such as she testified to in Court. That she did not
complain to her Aunt or to her teacher when the two found her in the Chapel with the accused is
understandable. She was so young, just a child. She must have been shocked by what has been
done to her by the accused. No wonder she was speechless. She could not comprehend what
happened. The pain in her vagina when she urinated upon reaching home however must have
been such that constrained her to tell her mother what the accused did to her.
Against the narration of a guileless 7 year old girl, the mere denial and protestation of innocence
of a 25 year old man cannot prevail. The Court is thoroughly convinced of the truth of Brigida
Venancio's story. No more need be said. 20 (Emphasis supplied)
We find no basis for disagreeing with the evaluation of the trial court.
The appellant, however, insists that the charge against him had not been established beyond
reasonable doubt. He urges that there is significant variance between the result of the medical
examination conducted on Brigida by the NBI doctor, Dr. Nieto M. Salvador, who found Brigida's
hymen to have been "intact" and the result of the examination conducted a few days later by the
Philippine Constabulary CIS physician, Dr. Desiderio Moraleda who concluded that Brigida was
then "in a non-virgin state". Accused submits that the finding of Dr. Salvador should prevail over
that of Dr. Moraleda since the findings of the former were obtained barely twenty-four (24) hours
after the alleged rape had occurred while Dr. Moraleda examined Brigida some eleven (11) days
after the violation. Accused further argues that even assuming the truth of Brigida's testimony in
open court, such testimony indicated that the accused's male member was merely placed on top
of the private part of the victim Brigida and had not passed into
it, 21 and that there was no proof at all that his male member had penetrated into the female
opening of the victim.
Apropos the above argument, we note, firstly, that medical findings are not indispensable in the
prosecution of the crime of rape. 22 We note, secondly, that the fact that a woman's hymen is
found intact does not show that there had been no penetration by an accused's male organ. It is
well-settled doctrine that the slightest penetration of the pudenda is quite sufficient for the
consummation of the crime of rape. In People v. Abonada, 23 the Court pointed out that "the
medical finding that the hymen is intact does not negate rape. Penetration of the penis by entry
into the lips of the female organ even without rupture or laceration of the hymen suffices to
warrant conviction for rape." 24 Moreover, Dr. Salvador testified that he had found physical
evidence of "manipulation" of the vagina or the vestibule thereof, which is consistent with entry
into the lips of the female part of Brigida:
Court:
Q

You use the word manipulation, what was manipulated?

A
The attempt to insert a finger or in some other cases wherein the man attempts to insert
his erected penis on the child whose genitalia is not yet ripe, with that particular act, there is no
way that the penis can go inside the vaginal opening because at this age, the vaginal opening is
still narrow, normal, .5 cms.
Q

In this particular case of Brigida, there were signs that there were manipulations?

A
I think so because the appearance is reddish which is not normal, it should be pinkish.
25 (Emphasis supplied)
Dr. Moraleda's finding, upon the other hand, was that Brigida's hymen had in fact been lacerated,
showing that there must have been some penetration. The fact that Dr. Moraleda's examination of

Brigida took place eleven (11) days after the examination by Dr. Salvador does not impair the
credit worthiness of Dr. Moraleda's findings. It is important to note, moreover, that the testimony of
the child Brigida herself is quite consistent with the findings and testimony of both Dr. Salvador
and Dr. Moraleda that there had been some penetration at least of the labia of Brigida's female
part. Brigida's testimony stated, in relevant part:
Court:
Q Ida, you said he put his penis into your vagina, does his penis get into your vagina or not?
A Only on top, sir.
Q It did not go in.
A No, sir.
Q

And did you feel any pain or you did not feel any pain?

A Yes, sir, I felt pain, sir.

Q
Why did you feel pain, what pain? Where was the pain on your vagina or your body as a
whole?
A In my vagina, sir.
Q Was medical report?
Fiscal:
The record of the fiscal's office show there were two medical examinations.
Court:
Q Ida, you said a short time did you urinate at that time?
A

Yes, sir.

Q What about this Bosyo did he urinate?

A

No, sir.

Q How do you know you urinated?

A

(Witness does not answer.)

Q Did you know whether something came out from the penis of Bosyo?
A Sticky fluid and dropped on my thigh.
Q But you said you urinated, when did you urinate at the time or when?
A When I went home, sir.
Q Did you notice any or rather did you notice whether or not there was blood around the area of
your vagina?

No, sir. 26 (Emphasis supplied)

Brigida's statement that she had felt pain in her private part would have been incomprehensible if
there had been absolutely no penetration, not even of the labia by the accused's male organ. It
appears to the Court that the 7-year old Brigida was much too young to be capable of
distinguishing between the penis merely lying outside the vagina and on top of the pubes, from
the erect penis poking into the labia in the effort to get into the vaginal canal, but being unable to
do so because of the unripe or infantile condition of the canal. We agree with the conclusion of
the trial court that there had in fact been some penetration at least of the labia and that
consequently, the crime that was committed was consummated rape.
It was proven at the trial that the violation of the child Brigida took place in the Sta. Cruz Chapel in
Sta. Maria, Bulacan, a building dedicated to and actively used for religious worship. The criminal
information did not apparently specify the place of the commission of the rape. Nonetheless, the
trial court could have and should have found the presence of the generic aggravating
circumstance of commission of the offense in a place dedicated to religious worship. 27 The trial
court made no mention of such aggravating circumstance in its decision. Because the
appropriately imposable penalty of reclusion perpetua is an indivisible penalty, and was in fact
imposed by the trial court, the finding that we here make of the presence of this generic
aggravating circumstance, does not impact upon the imposable penalty. 28
WHEREFORE, the Decision of the trial court dated 20 February 1985 must be, as it is hereby,
AFFIRMED. Costs against appellant.
SO ORDERED.