G.R. No.

80762

March 19, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FAUSTA GONZALES, AUGUSTO GONZALES, CUSTODIO GONZALES, SR., CUSTODIO GONZALES, JR., NERIO
GONZALES and ROGELIO LANIDA, accused, CUSTODIO GONZALES, SR., accused-appellant.

SARMIENTO, J.:
In a decision 1 dated October 31, 1984, the Regional Trial Court of Iloilo, Branch XXXVIII (38), in Criminal Case No.
13661, entitled "People of the Philippines vs. Fausta Gonzales, Augusto Gonzales, Custodia Gonzales, Custodio
Gonzales, Jr., Nerio Gonzales and Rogelio Lanida," found all the accused, except Rogelio Lanida who eluded arrest
and up to now has remain at large and not yet arrained, guilty beyond reasonable doubt of the crime of murder as
defined under Article 248 of the Revised Penal Code. They were sentenced "to suffer the penalty of imprisonment
of twelve (12) years and one (1) day to seventeen (17) years and four (4) months of reclusion temporal, to
indemnify the heirs of the deceased victim in the amount of P40,000.00, plus moral damages in the sum of
P14,000.00 and to pay the costs." 2 The victim was Lloyd Peacerrada, 44, landowner, and a resident of Barangay
Aspera, Sara, Iloilo.
Through their counsel, all the accused, except of course Rogelio Lanida, filed a notice of appeal from the trial
court's decision. During the pendency of their appeal and before judgment thereon could be rendered by the
Court of Appeals, however, all the accused-appellants, except Custodio Gonzales, Sr., withdrew their appeal and
chose instead to pursue their respective applications for parole before the then Ministry, now Department, of
Justice, Parole Division. 3
On October 27, 1987, the Court of Appeals rendered a decision 4 on the appeal of Custodio Gonzales, Sr. It
modified the appealed decision in that the lone appellant was sentenced to reclusion perpetua and to indemnify
the heirs of Lloyd Peacerrada in the amount of P30,000.00. In all other respect, the decision of the trial court was
affirmed. Further, on the basis of our ruling in People vs. Ramos, 5 the appellate court certified this case to us for
review. 6
The antecedent facts are as follows:
At around 9:00 o'clock in the evening of February 21, 1981, Bartolome Paja, the barangay captain of Barangay
Tipacla, Ajuy, Iloilo, was awakened from his sleep by the spouses Augusto and Fausta Gonzales. Augusto informed
Paja that his wife had just killed their landlord, Lloyd Peacerrada, and thus would like to surrender to the
authorities. Seeing Augusto still holding the knife allegedly used in the killing and Fausta with her dress smeared
with blood, Paja immediately ordered a nephew of his to take the spouses to the police authorities at the
Municipal Hall in Poblacion, Ajuy. As instructed, Paja's nephew brought the Gonzales spouses, who "backrode" on
his motorcycle, to the municipal building. 7 Upon reaching the Ajuy Police sub-station, the couple informed the
police on duty of the incident. That same night, Patrolman Salvador Centeno of the Ajuy Police Force and the
Gonzales spouses went back to Barangay Tipacla. Reaching Barangay Tipacla the group went to Paja's residence
where Fausta was made to stay, while Paja, Patrolman Centeno, and Augusto proceeded to the latter's residence
at Sitio Nabitasan where the killing incident allegedly occurred. 8 There they saw the lifeless body of Lloyd
Peacerrada, clad only in an underwear, sprawled face down inside the bedroom. 9 The group stayed for about an
hour during which time Patrolman Centeno inspected the scene and started to make a rough sketch thereof and
the immediate surroundings. 10 The next day, February 22, 1981, at around 7:00 o'clock in the morning,
Patrolman Centeno, accompanied by a photographer, went back to the scene of the killing to conduct further
investigations. Fausta Gonzales, on the other hand, was brought back that same day by Barangay Captain Paja to
the police substation in Ajuy. When Patrolman Centeno and his companion arrived at Sitio Nabitasan, two
members of the 321st P.C. Company stationed in Sara, Iloilo, who had likewise been informed of the incident, were
already there conducting their own investigation. Patrolman Centeno continued with his sketch; photographs of
the scene were likewise taken. The body of the victim was then brought to the Municipal Hall of Ajuy for autopsy.
The autopsy of Lloyd Peacerrada's cadaver was performed at about 11:20 a.m. on February 22, 1981; after
completed, a report was made with the following findings:
PHYSICAL FINDINGS
1.

Deceased is about 5 ft. and 4 inches in height, body moderately built and on cadaveric rigidity.

EXTERNAL FINDINGS

1.
Puncture wound, 1 cm. in width, 9 cm. in length, located at the lower 3rd anterior aspect of the arm, right,
directed upward to the right axillary pit.
2.
Stab wound, thru and thru, located at the proximal 3rd, forearm right, posterior aspect with an entrance of
5 cm. in width and 9 cm. in length with an exit at the middle 3rd, posterior aspect of the forearm, right, with 1 cm.
wound exit.
3.

Stab wound, thru and thru, located at the middle 3rd, posterior aspect of the forearm right, 1 cm. in width.

4.
Incised wound, 4 cm. long, depth visualizing the right lateral border of the sternum, 6th and 7th ribs, right
located 1.5 inches below the right nipple.
5.
Stab wound, 2 cm. in width, 10.5 cm. in depth, directed inward to the thoracic cavity right, located at the
left midclavicular line at the level of the 5th rib left.
6.
Stab wound, 2 cm. in width, 9.5 cm. in depth directed toward the right thoracic cavity, located at the mid
left scapular line at the level of the 8th intercostal space.
7.
Puncture wound, 1 cm. in width, located at the base of the left armpit directed toward the left thoracic
cavity.
8.
Puncture wound, 1 cm. in width, 11 cm. in length, directed toward the left deltoid muscle, located at the
upper 3rd axilla left.
9.
Puncture wound, 3 cm in width, 11.5 cm in length, located at the anterior aspect, proximal 3rd arm left,
directed downward.
10.

Stab wound, thru and thru, 2.5 cm. in width, and 5 cm. in length, medial aspect, palm right.

11.
Stabwound, 4 cm.in width, iliac area, right, directed inward with portion of large intestine and mysentery
coming out.
12.
Stab wound, 4 cm. in width, located at the posterior portion of the shoulder, right, directed downward to
the aspex of the light thoracic cavity.
13.
Incised wound, 1 cm. in width, 10 cm. in length, located at the medial portion of the medial border of the
right scapula.
14.

Incised wound, 1 cm. in width, 4.5 cm. in length, located at the posterior aspect of the right elbow.

15.

Incised wound, 1 cm. in width, 2 cm. in length, located at the posterior portion, middle 3rd, forearm, right.

16.

Lacerated wound at the anterior tantanelle with fissural fracture of the skull.

INTERNAL FINDINGS:
1.

Stab wound No. 5, injuring the left ventricle of the heart.

2.

Stab wound No. 6, severely injuring the right lower lobe of the lungs.

3.

Stab wound No. 7, injuring the right middle lobe of the lungs.

4.

Stab wound No. 11, injuring the descending colon of the large intestine, thru and thru.

5.

Stab wound No. 12, severely injuring the apex of the right lungs (sic).

CAUSE OF DEATH:
MASSIVE HEMMORRHAGE DUE TO MULTIPLE LACERATED, STABBED (sic), INCISED AND PUNCTURED WOUNDS.
JESUS D. ROJAS, M.D.
Rural Health Physician
Ajuy, Iloilo 11

The autopsy report thus showed that Dr. Rojas "found sixteen (16) wounds, five (5) of which are fatal because
they penetrated the internal organs, heart, lungs and intestines of the deceased." 12
On February 23, two days after the incident, Augusto Gonzales appeared before the police sub-station in the
poblacion of Ajuy and voluntarily surrendered to Police Corporal Ben Sazon for detention and protective custody
for "having been involved" in the killing of Lloyd Peacerrada. He requested that he be taken to the P.C.
headquarters in Sara, Iloilo where his wife, Fausta, was already detained having been indorsed thereat by the Ajuy
police force. 13
Based on the foregoing and on the investigations conducted by the Ajuy police force and the 321st P.C. Company,
an information for murder dated August 26, 1981, was filed by the Provincial Fiscal of Iloilo against the spouses
Augusto and Fausta Gonzales. The information read as follows:
The undersigned Provincial Fiscal accuses FAUSTA GONZALES and AUGUSTO GONZALES of the crime of MURDER
committed as follows:
That on or about the 21st day of February, 1981, in the Municipality of Ajuy, Province of Iloilo, Philippines, and
within the jurisdiction of this Court, the above-named accused with four other companions whose identities are
still unknown and are still at large, armed with sharp-pointed and deadly weapons, conspiring, confederating and
helping each other, with treachery and evident premeditation, with deliberate intent and decided purpose to kill,
and taking advantage of their superior strength and number, did then and there wilfully, unlawfully and
feloniously attack, assault, stab, hack, hit and wound Lloyd D. Peacerrada, with the weapons with which said
accused were provided at the time, thereby inflicting upon said Lloyd D. Peacerrada multiple wounds on different
parts of his body as shown by autopsy report attached to the record of this case which multifarious wounds
caused the immediate death of said Lloyd D. Peacerrada.
CONTRARY TO LAW.
Iloilo City, August 26, 1981. 14
When arraigned on September 16, 1981, Augusto and Fausta both entered a plea of not guilty. Before trial,
however, Jose Huntoria 15 who claimed to have witnessed the killing of Lloyd Peacerrada, presented himself to
Nanie Peacerrada, the victim's widow, on October 6, 1981, and volunteered to testify for the prosecution. A
reinvestigation of the case was therefore conducted by the Provincial Fiscal of Iloilo on the basis of which an
Amended Information, 16 dated March 3, 1982, naming as additional accused Custodio Gonzales, Sr. (the herein
appellant), Custodio Gonzales, Jr., Nerio Gonzales, and Rogelio Lanida, was filed. Again, all the accused except as
earlier explained, Lanida, pleaded not guilty to the crime.
At the trial, the prosecution presented Dr. Jesus Rojas, the Rural Health physician of Ajuy who conducted the
autopsy on the body of the victim; Bartolome Paja, the barangay captain of Barangay Tipacla; Patrolman Salvador
Centeno and Corporal Ben Sazon of the Ajuy Police Force; Sgt. (ret) Nicolas Belicanao and Sgt. Reynaldo Palomo of
the 321st P.C. Company based in Sara, Iloilo; Jose Huntoria; and Nanie Peacerrada, the widow.
Dr. Jesus Rojas testified that he performed the autopsy on the body of the deceased Lloyd Penacerrada at around
11:20 a.m. on February 22, 1981 after it was taken to the municipal hall of Ajuy. 17 His findings revealed that the
victim suffered from 16 wounds comprising of four (4) punctured wounds, seven (7) stab wounds, four (4) incised
wounds, and one (1) lacerated wound. In his testimony, Dr. Rojas, while admitting the possibility that only one
weapon might have caused all the wounds (except the lacerated wound) inflicted on the victim, nevertheless
opined that due to the number and different characteristics of the wounds, the probability that at least two
instruments were used is high. 18 The police authorities and the P.C. operatives for their part testified on the
aspect of the investigation they respectively conducted in relation to the incident. Nanie Peacerrada testified
mainly on the expenses she incurred by reason of the death of her husband while Barangay Captain Bartolome
Paja related the events surrounding the surrender of the spouses Augusto and Fausta Gonzales to him, the
location of the houses of the accused, as well as on other matters.
By and large, the prosecution's case rested on Huntoria's alleged eyewitness account of the incident. According to
Huntoria, who gave his age as 30 when he testified on July 27, 1982, 19 at 5:00 o'clock in the afternoon on
February 21, 1981, he left his work at Barangay Central, in Ajuy, Iloilo where he was employed as a tractor driver
by one Mr. Piccio, and walked home; 20 he took a short-cut route. 21 While passing at the vicinity of the Gonzales
spouses' house at around 8:00 o'clock in the evening, he heard cries for help. 22 Curiosity prompted him to
approach the place where the shouts were emanating. When he was some 15 to 20 meters away, he hid himself
behind a clump of banana

trees. 23 From where he stood, he allegedly saw all the accused ganging upon and takings turns in stabbing and
hacking the victim Lloyd Peacerrada, near a "linasan" or threshing platform. He said he clearly recognized all the
accused as the place was then awash in moonlight. 24 Huntoria further recounted that after the accused were
through in stabbing and hacking the victim, they then lifted his body and carried it into the house of the Gonzales
spouses which was situated some 20 to 25 meters away from the "linasan". 25 Huntoria then proceeded on his
way home. Upon reaching his house, he related what he saw to his mother and to his wife 26 before he went to
sleep. 27 Huntoria explained that he did not immediately report to the police authorities what he witnessed for
fear of his life. 28 In October 1981 however, eight months after the extraordinary incident he allegedly witnessed,
bothered by his conscience plus the fact that his father was formerly a tenant of the victim which, to his mind,
made him likewise a tenant of the latter, he thought of helping the victim's widow, Nanie Peacerrada. Hence, out
of his volition, he travelled from his place at Sitio Nabitasan, in Barangay Tipacla Municipality of Ajuy, to Sara,
Iloilo where Mrs. Peacerrada lived, and related to her what he saw on February 21, 1981. 29
Except Fausta who admitted killing Lloyd Peacerrada in defense of her honor as the deceased attempted to rape
her, all the accused denied participation in the crime. The herein accused-appellant, Custodio Gonzales, Sr.,
claimed that he was asleep 30 in his house which was located some one kilometer away from the scene of the
crime 31 when the incident happened. He asserted that he only came to know of it after his grandchildren by
Augusto and Fausta Gonzales went to his house that night of February 21, 1981 to inform him. 32
The trial court disregarded the version of the defense; it believed the testimony of Huntoria.
On appeal to the Court of Appeals, Custodia Gonzales, Sr., the lone appellant, contended that the trial court erred
in convicting him on the basis of the testimony of Jose Huntoria, the lone alleged eyewitness, and in not
appreciating his defense of alibi.
The Court of Appeals found no merit in both assigned errors. In upholding Huntoria's testimony, the appellate
court held that:
. . . Huntoria positively identified all the accused, including the herein accused-appellant, as the assailants of
Peacerrada. (TSN, p. 43, July 27, 1982) The claim that Huntoria would have difficulty recognizing the assailant at
a distance of 15 to 20 meters is without merit, considering that Huntoria knew all the accused. (Id., pp. 37-39) If
Huntoria could not say who was hacking and who was stabbing the deceased, it was only because the assailant
were moving around the victim.
As for the delay in reporting the incident to the authorities, we think that Huntoria's explanation is satisfactory. He
said he feared for his life. (Id., pp. 50-51, 65) As stated in People vs. Realon, 99 SCRA 442, 450 (1980): "The
natural reticence of most people to get involved in a criminal case is of judicial notice. As held in People v. Delfin,
'. . . the initial reluctance of witnesses in this country to volunteer information about a criminal case and their
unwillingness to be involved in or dragged into criminal investigations is common, and has been judicially
declared not to affect credibility.'"
It is noteworthy that the accused-appellant self admitted that he had known Huntoria for about 10 years and that
he and Huntoria were in good terms and had no misunderstanding whatsoever. (TSN, p. 33, July 18, 1984) He said
that he could not think of any reason why Huntoria should implicate him. (Id., p. 34) Thus, Huntoria's credibility. is
beyond question. 33
The Court of Appeals likewise rejected the appellant's defense of alibi. 34 The appellate court, however, found the
sentence imposed by the trial court on the accused-appellant erroneous. Said the appellate court:
Finally, we find that the trial court erroneously sentenced the accused-appellant to 12 years and 1 day to 17 years
and 4 months of reclusion temporal. The penalty for murder under Article 248 is reclusion temporal in its
maximum period to death. As there was no mitigating or aggravating circumstance, the imposible penalty should
be reclusion perpetua. Consequently, the appeal should have been brought to the Supreme Court. With regard to
the indemnity for death, the award of P40,000.00 should be reduced to P30,000.00, in accordance with the rulings
of the Supreme Court. (E.g., People v. De la Fuente, 126 SCRA 518 (1983); People v. Atanacio, 128 SCRA 31
(1984); People v. Rado, 128 SCRA 43 (1984); People v. Bautista, G.R. No. 68731, Feb. 27, 1987). 35
The case, as mentioned earlier, is now before us upon certification by the Court of Appeals, the penalty imposed
being reclusion perpetua.
After a careful review of the evidence adduced by the prosecution, we find the same insufficient to convict the
appellant of the crime charged.

To begin with, the investigation conducted by the police authorities leave much to be desired. Patrolman Centeno
of the Ajuy police force in his sworn statements 36 even gave the date of the commission of the crime as "March
21, 1981." Moreover, the sketch 37 he made of the scene is of little help. While indicated thereon are the alleged
various blood stains and their locations relative to the scene of the crime, there was however no indication as to
their quantity. This is rather unfortunate for the prosecution because, considering that there are two versions
proferred on where the killing was carried out, the extent of blood stains found would have provided a more
definite clue as to which version is more credible. If, as the version of the defense puts it, the killing transpired
inside the bedroom of the Gonzales spouses, there would have been more blood stains inside the couple's
bedroom or even on the ground directly under it. And this circumstance would provide an additional mooring to
the claim of attempted rape asseverated by Fausta. On the other hand, if the prosecution's version that the killing
was committed in the field near the linasan is the truth, then blood stains in that place would have been more
than in any other place.
The same sloppiness characterizes the investigation conducted by the other authorities. Police Corporal Ben
Sazon who claimed that accused Augusto Gonzales surrendered to him on February 23, 1981 failed to state
clearly the reason for the "surrender." It would even appear that Augusto "surrendered" just so he could be safe
from possible revenge by the victim's kins. Corporal Sazon likewise admitted that Augusto never mentioned to
him the participation of other persons in the killing of the victim. Finally, without any evidence on that point, P.C.
investigators of the 321st P.C. Company who likewise conducted an investigation of the killing mentioned in their
criminal complaint 38 four other unnamed persons, aside from the spouses Augusto and Fausta Gonzales, to have
conspired in killing Lloyd Peacerrada.
Now on the medical evidence. Dr. Rojas opined that it is possible that the sixteen wounds described in the autopsy
report were caused by two or more bladed instruments. Nonetheless, he admitted the possibility that one bladed
instrument might have caused all. Thus, insofar as Dr. Rojas' testimony and the autopsy report are concerned,
Fausta Gonzales' admission that she alone was responsible for the killing appears not at all too impossible. And
then there is the positive testimony of Dr. Rojas that there were only five wounds that could be fatal out of the
sixteen described in the autopsy report. We shall discuss more the significance of these wounds later.
It is thus clear from the foregoing that if the conviction of the appellant by the lower courts is to be sustained, it
can only be on the basis of the testimony of Huntoria, the self-proclaimed eyewitness. Hence, a meticulous
scrutiny of Huntoria's testimony is compelling.
To recollect, Huntoria testified that he clearly saw all the accused, including the appellant, take turns in hacking
and stabbing Lloyd Peacerrada, at about 8:00 o'clock in the evening, on February 21, 1981, in the field near a
"linasan" while he (Huntoria) stood concealed behind a clump of banana trees some 15 to 20 meters away from
where the crime was being committed. According to him, he recognized the six accused as the malefactors
because the scene was then illuminated by the moon. He further stated that the stabbing and hacking took about
an hour. But on cross-examination, Huntoria admitted that he could not determine who among the six accused did
the stabbing and/or hacking and what particular weapon was used by each of them.
ATTY. GATON (defense counsel on cross-examination):
Q

And you said that the moon was bright, is it correct?

Yes, Sir.

Q
And you would like us to understand that you saw the hacking and the stabbing, at that distance by the
herein accused as identified by you?
A

Yes, sir, because the moon was brightly shining.

Q
If you saw the stabbing and the hacking, will you please tell this Honorable Court who was hacking the
victim?
A
Because they were surrounding Peacerrada and were in constant movement, I could not determine who
did the hacking.
ATTY. GATON:
The interpretation is not clear.
COURT:

They were doing it rapidly.

A
The moving around or the hacking or the "labu" or "bunu" is rapid. I only saw the rapid movement of their
arms, Your Honor, and I cannot determine who was hacking and who was stabbing. But I saw the hacking and the
stabbing blow.
ATTY. GATON:
Q

You cannot positively identify before this Court who really hacked Lloyd Peacerrada?

Yes sir, I cannot positively tell who did the hacking.

And likewise you cannot positively tell this Honorable Court who did the stabbing?

Yes sir, and because of the rapid movements.

Q
I noticed in your direct testimony that you could not even identify the weapons used because according to
you it was just flashing?
A

Yes, sir. 39

(Emphasis supplied)
From his very testimony, Huntoria failed to impute a definite and specific act committed, or contributed, by the
appellant in the killing of Lloyd Peacerrada.
It also bears stressing that there is nothing in the findings of the trial court and of the Court of Appeals which
would categorize the criminal liability of the appellant as a principal by direct participation under Article 17,
paragraph 1 of the Revised Penal Code. Likewise, there is nothing in the evidence for the prosecution that
inculpates him by inducement, under paragraph 2 of the same Article 17, or by indispensable cooperation under
paragraph 3 thereof. What then was the direct part in the killing did the appellant perform to support the ultimate
punishment imposed by the Court of Appeals on him?
Article 4 of the Revised Penal Code provides how criminal liability is incurred.
Art. 4. Criminal liability Criminal liability shall be incurred:
1.
By any person committing a felony (delito) although the wrongful act done be different from that which he
intended.
2.
By any person performing an act which would be an offense against persons or property, were it not for the
inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means.
(Emphasis supplied.)
Thus, one of the means by which criminal liability is incurred is through the commission of a felony. Article 3 of the
Revised Penal Code, on the other hand, provides how felonies are committed.
Art. 3. Definition Acts and omissions punishable by law are felonies (delitos).
Felonies are committed not only by means of deceit (dolo) but also by means of fault (culpa).
There is deceit when the act is performed with deliberate intent; and there is fault when the wrongful act results
from imprudence, negligence, lack of foresight, or lack of skill.
(Emphasis supplied.)
Thus, the elements of felonies in general are: (1) there must be an act or omission; (2) the act or omission must
be punishable under the Revised Penal Code; and (3) the act is performed or the omission incurred by means of
deceit or fault.
Here, while the prosecution accuses, and the two lower courts both found, that the appellant has committed a
felony in the killing of Lloyd Peacerrada, forsooth there is paucity of proof as to what act was performed by the
appellant. It has been said that "act," as used in Article 3 of the Revised Penal Code, must be understood as "any

bodily movement tending to produce some effect in the external world." 40 In this instance, there must therefore
be shown an "act" committed by the appellant which would have inflicted any harm to the body of the victim that
produced his death.
Yet, even Huntoria, as earlier emphasized, admitted quite candidly that he did not see who "stabbed" or who
"hacked" the victim. Thus this principal witness did not say, because he could not whether the appellant "hacked
or "stabbed" victim. In fact, Huntoria does not know what specific act was performed by the appellant. This lack of
specificity then makes the case fall short of the test laid down by Article 3 of the Revised Penal Code previously
discussed. Furthermore, the fact that the victim sustained only five fatal wounds out of the total of sixteen
inflicted, as adverted to above, while there are six accused charged as principals, it follows to reason that one of
the six accused could not have caused or dealt a fatal wound. And this one could as well be the appellant, granted
ex gratia argumenti that he took part in the hacking and stabbing alleged by Huntoria. And why not him? Is he not
after all the oldest (already sexagenarian at that time) and practically the father of the five accused? And
pursuing this argument to the limits of its logic, it is possible, nay even probable, that only four, or three, or two of
the accused could have inflicted all the five fatal wounds to the exclusion of two, three, or four of them. And
stretching the logic further, it is possible, nay probable, that all the fatal wounds, including even all the non-fatal
wounds, could have been dealt by Fausta in rage against the assault on her womanhood and honor. But more
importantly, there being not an iota of evidence that the appellant caused any of the said five fatal wounds,
coupled with the prosecution's failure to prove the presence of conspiracy beyond reasonable doubt, the
appellant's conviction can not be sustained.
Additionally, Huntoria's credibility as a witness is likewise tarnished by the fact that he only came out to testify in
October 1981, or eight long months since he allegedly saw the killing on February 21, 1981. While ordinarily the
failure of a witness to report at once to the police authorities the crime he
had witnessed should not be taken against him and should not affect his credibility, 41 here, the unreasonable
delay in Huntoria's coming out engenders doubt on his veracity. 42 If the silence of coming out an alleged
eyewitness for several weeks renders his credibility doubtful, 43 the more it should be for one who was mute for
eight months. Further, Huntoria's long delay in reveiling what he allegedly witnessed, has not been satisfactorily
explained. His lame excuse that he feared his life would be endangered is too pat to be believed. There is no
showing that he was threatened by the accused or by anybody. And if it were true that he feared a possible
retaliation from the accused, 44 why did he finally volunteer to testify considering that except for the spouses
Augusto and Fausta Gonzales who were already under police custody, the rest of the accused were then still free
and around; they were not yet named in the original information, 45 thus the supposed danger on Huntoria's life
would still be clear and present when he testified.
Moreover, Huntoria is not exactly a disinterested witness as portrayed by the prosecution. He admitted that he
was a tenant of the deceased. In fact, he stated that one of the principal reasons why he testified was because
the victim was also his landlord.
xxx

xxx

xxx

Q
Now, Mr. Huntoria, why did it take you so long from the time you saw the stabbing and hacking of Lloyd
Peacerrada when you told Mrs. Peacerrada about what happened to her husband?
A
At first I was then afraid to tell anybody else but because I was haunted by my conscience and secondly
the victim was also my landlord I revealed what I saw to the wife of the victim. 46
xxx

xxx

xxx

(Emphasis ours.)
At this juncture, it may be relevant to remind that under our socioeconomic set-up, a tenant owes the very source
of his livelihood, if not existence itself, from his landlord who provides him with the land to till. In this milieu,
tenants like Huntoria are naturally beholden to their landlords and seek ways and means to ingratiate themselves
with the latter. In this instance, volunteering his services as a purported eyewitness and providing that material
testimony which would lead to the conviction of the entire family of Augusto Gonzales whose wife, Fausta, has
confessed to the killing of Lloyd Peacerrada, would, in a perverted sense, be a way by which Huntoria sought to
ingratiate himself with the surviving family of his deceased landlord. This is especially so because the need to get
into the good graces of his landlord's family assumed a greater urgency considering that he ceased to be
employed as early as May 1981. 47 Volunteering his services would alleviate the financial distress he was in. And
Huntoria proved quite sagacious in his choice of action for shortly after he volunteered and presented himself to
the victim's widow, he was taken under the protective wings of the victim's uncle, one Dr. Biclar, who gave him
employment and provided lodging for his family. 48 Given all the foregoing circumstances, we can not help but
dismiss Huntoria as an unreliable witness, to say the least.

At any rate, there is another reason why we find the alleged participation of the appellant in the killing of Lloyd
Peacerrada doubtful it is contrary to our customs and traditions. Under the Filipino family tradition and culture,
aging parents are sheltered and insulated by their adult children from any possible physical and emotional harm.
It is therefore improbable for the other accused who are much younger and at the prime of their manhood, to
summon the aid or allow the participation of their 65-year old 49 father, the appellant, in the killing of their lone
adversary, granting that the victim was indeed an adversary. And considering that the appellant's residence was
about one kilometer from the scene of the crime, 50 we seriously doubt that the appellant went there just for the
purpose of aiding his three robust male sons (Custodia Jr., Nerio, and Augusta), not to mention the brother and
sister, Rogelio and Fausta, in the killing of Lloyd Peacerrada, even if the latter were a perceived enemy.
Finally, while indeed alibi is a weak defense, 51 under appropriate circumstances, like in the instant case in which
the participation of the appellant is not beyond cavil it may be considered as exculpatory. Courts should not at
once look with disfavor at the defense of alibi for if taken in the light of the other evidence on record, it may be
sufficient to acquit the accused. 52
In fine, the guilt of the appellant has not been proven beyond reasonable doubt.
WHEREFORE, the Decision of the Court of Appeals is REVERSED and SET ASIDE and the appellant is hereby
ACQUITTED. Costs de oficio.
SO ORDERED
G.R. No. 97471

February 17, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ISABELO PUNO y GUEVARRA, alias "Beloy," and ENRIQUE AMURAO y PUNO, alias "Enry," accused-appellants.
The Solicitor General for plaintiff-appellee.
Edward C. Castaeda for accused-appellants.

REGALADO, J.:
The primal issue for resolution in this case is whether accused-appellants committed the felony of kidnapping for
ransom under Article 267 of the Revised Penal Code, as charged in the information; or a violation of Presidential
Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974), as contended by the Solicitor General and
found by the trial court; or the offense of simple robbery punished by Paragraph 5, Article 294 of the Revised
Penal Code, as claimed by the defense.
In an information dated and filed on May 31, 1989 in the Regional Trial Court of Quezon City, Branch 103, as
Criminal Case No. Q-57404 thereof, appellants were charged with kidnapping for ransom allegedly committed in
the following manner:
That on or about the 13th day of January, 1988 in Quezon City, Philippines and within the jurisdiction of this
Honorable Court, the said accused, being then private individuals, conspiring together, confederating with and
mutually helping each other, did, then and there, wilfully, unlawfully and feloniously kidnap and carry away one
MARIA DEL SOCORRO SARMIENTO y MUTUC * for the purpose of extorting ransom, to the damage and prejudice of
the said offended party in such amount as may be awarded to her under the provisions of the Civil Code. 1
On a plea of not guilty when arraigned, 2 appellants went to trial which ultimately resulted in a judgment
promulgated on September 26, 1990 finding them guilty of robbery with extortion committed on a highway,
punishable under Presidential Decree No. 532, with this disposition in the fallo thereof:
ACCORDINGLY, judgment is hereby rendered finding the accused ISABELO PUNO and ENRIQUE AMURAO GUILTY as
principals of robbery with extortion committed on a highway and, in accordance with P.D. 532, they are both
sentenced to a jail term of reclusion perpetua.
The two accused are likewise ordered to pay jointly and severally the offended private victim Ma. Socorro M.
Sarmiento the sum of P7,000.00 as actual damages and P3,000.00 as temperate damages. 3

Before us now in this appeal, appellants contend that the court a quo erred (1) in convicting them under
Presidential Decree No. 532 since they were not expressly charged with a crime therein; (2) in applying Sections 4
and 5, Rule 120 of the Rules of Court since the charge under said presidential decree is not the offense proved
and cannot rightly be used as the offense proved which is necessarily included in the offense charged. 4
For the material antecedents of this case, we quote with approval the following counter-statement of facts in the
People's brief 5 which adopted the established findings of the court a quo, documenting the same with page
references to the transcripts of the proceedings, and which we note are without any substantial divergence in the
version proffered by the defense.
This is a prosecution for kidnapping for ransom allegedly done on January 13, 1988 by the two accused (tsn, Jan.
8, 1990, p. 7).
Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in Araneta Avenue, Quezon City called Nika Cakes and
Pastries. She has a driver of her own just as her husband does (Ibid., pp. 4-6).
At around 5:00 in the afternoon of January 13, 1988, the accused Isabelo Puno, who is the personal driver of Mrs.
Sarmiento's husband (who was then away in Davao purportedly on account of local election there) arrived at the
bakeshop. He told Mrs. Socorro that her own driver Fred had to go to Pampanga on an emergency (something bad
befell a child), so Isabelo will temporary (sic) take his place (Id., pp. 8-9).
Mrs. Socorro's time to go home to Valle Verde in Pasig came and so she got into the Mercedes Benz of her
husband with Isabelo on (sic) the wheel. After the car turned right in (sic) a corner of Araneta Avenue, it stopped.
A young man, accused Enrique Amurao, boarded the car beside the driver (Id., pp. 9-10).
Once inside, Enrique clambered on top of the back side of the front seat and went onto where Ma. Socorro was
seated at the rear. He poke (sic) a gun at her (Id., p. 10).
Isabelo, who earlier told her that Enrique is his nephew announced, "ma'm, you know, I want to get money from
you." She said she has money inside her bag and they may get it just so they will let her go. The bag contained
P7,000.00 and was taken (Id., pp. 11-14).
Further on, the two told her they wanted P100,000.00 more. Ma. Socorro agreed to give them that but would they
drop her at her gas station in Kamagong St., Makati where the money is? The car went about the Sta. Mesa area.
Meanwhile, Ma. Socorro clutched her Rosary and prayed. Enrique's gun was menacingly storing (sic) at her soft
bread (sic) brown, perfumed neck. He said he is an NPA and threatened her (Id., p.15).
The car sped off north towards the North superhighway. There Isabelo, Beloy as he is called, asked Ma. Socorro to
issue a check for P100,000.00. Ma. Socorro complied. She drafted 3 checks in denominations of two for P30
thousand and one for P40 thousand. Enrique ordered her to swallow a pill but she refused (Id., pp. 17-23).
Beloy turned the car around towards Metro Manila. Later, he changed his mind and turned the car again towards
Pampanga. Ma. Socorro, according to her, jumped out of the car then, crossed to the other side of the
superhighway and, after some vehicles ignored her, she was finally able to flag down a fish vendors van. Her
dress had blood because, according to Ma. Socorro, she fell down on the ground and was injured when she
jumped out of the car. Her dress was torn too (Id., pp. 23-26).
On reaching Balintawak, Ma. Socorro reported the matter to CAPCOM (Id., p. 27).
Both accused were, day after, arrested. Enrique was arrested trying to encash Ma. Socorro's P40,000.00 check at
PCI Bank, Makati. (tsn, Oct. 18, 1989, pp. 10-13) 6
As observed by the court below, the defense does not dispute said narrative of complainant, except that,
according to appellant Puno, he stopped the car at North Diversion and freely allowed complainant to step out of
the car. He even slowed the car down as he drove away, until he saw that his employer had gotten a ride, and he
claimed that she fell down when she stubbed her toe while running across the highway. 7
Appellants further testified that they brought the Mercedez Benz car to Dolores, San Fernando, Pampanga and
parked it near a barangay or police outpost. They thereafter ate at a restaurant and divided their loot. 8 Much
later, when he took the stand at the trial of this case, appellant Puno tried to mitigate his liability by explaining
that he was in dire need of money for the medication of his ulcers. 9

On these relatively simple facts, and as noted at the start of this opinion, three theories have been advanced as to
what crime was committed by appellants. The trial court cohered with the submission of the defense that the
crime could not be kidnapping for ransom as charged in the information. We likewise agree.
Prefatorily, it is worth recalling an accepted tenet in criminal law that in the determination of the crime for which
the accused should be held liable in those instances where his acts partake of the nature of variant offenses, and
the same holds true with regard to the modifying or qualifying circumstances thereof, his motive and specific
intent in perpetrating the acts complained of are invaluable aids in arriving at a correct appreciation and accurate
conclusion thereon.
Thus, to illustrate, the motive of the accused has been held to be relevant or essential to determine the specific
nature of the crime as, for instance, whether a murder was committed in the furtherance of rebellion in which
case the latter absorbs the former, or whether the accused had his own personal motives for committing the
murder independent of his membership in the rebellious movement in which case rebellion and murder would
constitute separate offenses. 10 Also, where injuries were inflicted on a person in authority who was not then in
the actual performance of his official duties, the motive of the offender assumes importance because if the attack
was by reason of the previous performance of official duties by the person in authority, the crime would be direct
assault; otherwise, it would only be physical injuries. 11
In the case at bar, there is no showing whatsoever that appellants had any motive, nurtured prior to or at the time
they committed the wrongful acts against complainant, other than the extortion of money from her under the
compulsion of threats or intimidation. This much is admitted by both appellants, without any other esoteric
qualification or dubious justification. Appellant Puno, as already stated, candidly laid the blame for his
predicament on his need for funds for, in his own testimony, "(w)hile we were along the way Mam (sic) Corina was
telling me "Beloy, I know your family very well and I know that your (sic) not (a) bad person, why are you doing
this?" I told her "Mam, (sic), because I need money and I had an ulcer and that I have been getting an (sic)
advances from our office but they refused to give me any bale (sic). . . ." 12
With respect to the specific intent of appellants vis-a-vis the charge that they had kidnapped the victim, we can
rely on the proverbial rule of ancient respectability that for this crime to exist, there must be indubitable proof
that
the actual intent of the malefactors was to deprive the offended party of her liberty, 13 and not where such
restraint of her freedom of action was merely an incident in the commission of another offense primarily intended
by the offenders. Hence, as early as United States vs. Ancheta, 14 and consistently reiterated thereafter, 15 it has
been held that the detention and/or forcible taking away of the victims by the accused, even for an appreciable
period of time but for the primary and ultimate purpose of killing them, holds the offenders liable for taking their
lives or such other offenses they committed in relation thereto, but the incidental deprivation of the victims'
liberty does not constitute kidnapping or serious illegal detention.
That appellants in this case had no intention whatsoever to kidnap or deprive the complainant of her personal
liberty is clearly demonstrated in the veritably confessional testimony of appellant Puno:
Q

At what point did Mrs. Sarmiento handed (sic) the bag containing the P7,000.00 to your nephew?

Santo Domingo Exit.

And how about the checks, where were you already when the checks was (sic) being handed to you?

Also at the Sto. Domingo exit when she signed the checks.

Q
If your intention was just to robbed (sic) her, why is it that you still did not allow her to stay at Sto.
Domingo, after all you already received the money and the checks?
A
Because we had an agreement with her that when she signed the checks we will take her to her house at
Villa (sic) Verde.
Q
And why did you not bring her back to her house at Valle Verde when she is (sic) already given you the
checks?
A
Because while we were on the way back I (sic) came to my mind that if we reach Balintawak or some other
place along the way we might be apprehended by the police. So when we reached Santa Rita exit I told her "Mam
(sic) we will already stop and allow you to get out of the car." 16

Neither can we consider the amounts given to appellants as equivalent to or in the nature of ransom, considering
the immediacy of their obtention thereof from the complainant personally. Ransom, in municipal criminal law, is
the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment
that releases from captivity. 17 It can hardly be assumed that when complainant readily gave the cash and checks
demanded from her at gun point, what she gave under the circumstances of this case can be equated with or was
in the concept of ransom in the law of kidnapping. These were merely amounts involuntarily surrendered by the
victim upon the occasion of a robbery or of which she was summarily divested by appellants. Accordingly, while
we hold that the crime committed is robbery as defined in Article 293 of the Code, we, however, reject the theory
of the trial court that the same constitutes the highway robbery contemplated in and punished by Presidential
Decree No. 532.
The lower court, in support of its theory, offers this ratiocination:
The court agrees that the crime is robbery. But it is also clear from the allegation in the information that the victim
was carried away and extorted for more money. The accused admitted that the robbery was carried on from
Araneta Avenue up to the North Superhighway. They likewise admitted that along the way they intimidated Ma.
Socorro to produce more money that she had with her at the time for which reason Ma. Socorro, not having more
cash, drew out three checks. . . .
In view of the foregoing the court is of the opinion that the crimes committed is that punishable under P.D. 532
(Anti-Piracy and Anti-Highway Robbery Law of 1974) under which where robbery on the highway is accompanied
by extortion the penalty is reclusion perpetua. 18
The Solicitor General concurs, with the observation that pursuant to the repealing clause in Section 5 of said
decree, "P.D. No- 532 is a modification of the provisions of the Revised Penal Code, particularly Article 267 which
are inconsistent with it." 19 Such opinion and complementary submission consequently necessitate an evaluation
of the correct interplay between and the legal effects of Presidential Decree No. 532 on the pertinent Provisions of
the Revised Penal Code, on which matter we are not aware that any definitive pronouncement has as yet been
made.
Contrary to the postulation of the Solicitor General, Presidential Decree No. 532 is not a modification of Article 267
of the Revised Penal Code on kidnapping and serious illegal detention, but of Articles 306 and 307 on brigandage.
This is evident from the fact that the relevant portion thereof which treats of "highway robbery" invariably uses
this term in the alternative and synonymously with brigandage, that is, as "highway robbery/brigandage." This is
but in line with our previous ruling, and which still holds sway in criminal law, that highway robbers (ladrones) and
brigands are synonymous. 20
Harking back to the origin of our law on brigandage (bandolerismo) in order to put our discussion thereon in the
proper context and perspective, we find that a band of brigands, also known as highwaymen or freebooters, is
more than a gang of ordinary robbers. Jurisprudence on the matter reveals that during the early part of the
American occupation of our country, roving bands were organized for robbery and pillage and since the then
existing law against robbery was inadequate to cope with such moving bands of outlaws, the Brigandage Law was
passed. 21
The following salient distinctions between brigandage and robbery are succinctly explained in a treatise on the
subject and are of continuing validity:
The main object of the Brigandage Law is to prevent the formation of bands of robbers. The heart of the offense
consists in the formation of a band by more than three armed persons for the purpose indicated in art. 306. Such
formation is sufficient to constitute a violation of art. 306. It would not be necessary to show, in a prosecution
under it, that a member or members of the band actually committed robbery or kidnapping or any other purpose
attainable by violent means. The crime is proven when the organization and purpose of the band are shown to be
such as are contemplated by art 306. On the other hand, if robbery is committed by a band, whose members
were not primarily organized for the purpose of committing robbery or kidnapping, etc., the crime would not be
brigandage, but only robbery. Simply because robbery was committed by a band of more than three armed
persons, it would not follow that it was committed by a band of brigands. In the Spanish text of art. 306, it is
required that the band "sala a los campos para dedicarse a robar." 22 (Emphasis supplied).
In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only a particular
robbery, the crime is only robbery, or robbery in band if there are at least four armed participants. 23 The martial
law legislator, in creating and promulgating Presidential Decree No. 532 for the objectives announced therein,
could not have been unaware of that distinction and is presumed to have adopted the same, there being no
indication to the contrary. This conclusion is buttressed by the rule on contemporaneous construction, since it is

one drawn from the time when and the circumstances under which the decree to be construed originated.
Contemporaneous exposition or construction is the best and strongest in the law. 24
Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of robbery
perpetrated by outlaws indiscriminately against any person or persons on Philippine highways as defined therein,
and not acts of robbery committed against only a predetermined or particular victim, is evident from the
preambular clauses thereof, to wit:
WHEREAS, reports from law-enforcement agencies reveal that lawless elements are still committing acts of
depredation upon the persons and properties of innocent and defenseless inhabitants who travel from one place
to another, thereby disturbing the peace, order and tranquility of the nation and stunting the economic and social
progress of the people:
WHEREAS, such acts of depredations constitute . . . highway robbery/brigandage which are among the highest
forms of lawlessness condemned by the penal statutes of all countries;
WHEREAS, it is imperative that said lawless elements be discouraged from perpetrating such acts of depredaions
by imposing heavy penalty on the offenders, with the end in view of eliminating all obstacles to the economic,
social, educational and community progress of the people. (Emphasis supplied).
Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by the accused as
their specific victim could be considered as committed on the "innocent and defenseless inhabitants who travel
from one place to another," and which single act of depredation would be capable of "stunting the economic and
social progress of the people" as to be considered "among the highest forms of lawlessness condemned by the
penal statutes of all countries," and would accordingly constitute an obstacle "to the economic, social, educational
and community progress of the people, " such that said isolated act would constitute the highway robbery or
brigandage contemplated and punished in said decree. This would be an exaggeration bordering on the ridiculous.
True, Presidential Decree No. 532 did introduce amendments to Articles 306 and 307 of the Revised Penal Code by
increasing the penalties, albeit limiting its applicability to the offenses stated therein when committed on the
highways and without prejudice to the liability for such acts if committed. Furthermore, the decree does not
require that there be at least four armed persons forming a band of robbers; and the presumption in the Code that
said accused are brigands if they use unlicensed firearms no longer obtains under the decree. But, and this we
broadly underline, the essence of brigandage under the Code as a crime of depredation wherein the unlawful acts
are directed not only against specific, intended or preconceived victims, but against any and all prospective
victims anywhere on the highway and whosoever they may potentially be, is the same as the concept of
brigandage which is maintained in Presidential Decree No. 532, in the same manner as it was under its
aforementioned precursor in the Code and, for that matter, under the old Brigandage Law. 25
Erroneous advertence is nevertheless made by the court below to the fact that the crime of robbery committed by
appellants should be covered by the said amendatory decree just because it was committed on a highway. Aside
from what has already been stressed regarding the absence of the requisite elements which thereby necessarily
puts the offense charged outside the purview and intendment of that presidential issuance, it would be absurd to
adopt a literal interpretation that any unlawful taking of property committed on our highways would be covered
thereby. It is an elementary rule of statutory construction that the spirit or intent of the law should not be
subordinated to the letter thereof. Trite as it may appear, we have perforce to stress the elementary caveat that
he who considers merely the letter of an instrument goes but skin deep into its meaning, 26 and the fundamental
rule that criminal justice inclines in favor of the milder form of liability in case of doubt.
If the mere fact that the offense charged was committed on a highway would be the determinant for the
application of Presidential Decree No. 532, it would not be farfetched to expect mischievous, if not absurd, effects
on the corpus of our substantive criminal law. While we eschew resort to a reductio ad absurdum line of
reasoning, we apprehend that the aforestated theory adopted by the trial court falls far short of the desideratum
in the interpretation of laws, that is, to avoid absurdities and conflicts. For, if a motor vehicle, either stationary or
moving on a highway, is forcibly taken at gun point by the accused who happened to take a fancy thereto, would
the location of the vehicle at the time of the unlawful taking necessarily put the offense within the ambit of
Presidential Decree No. 532, thus rendering nugatory the categorical provisions of the Anti-Carnapping Act of
1972? 27 And, if the scenario is one where the subject matter of the unlawful asportation is large cattle which are
incidentally being herded along and traversing the same highway and are impulsively set upon by the accused,
should we apply Presidential Decree No. 532 and completely disregard the explicit prescriptions in the Anti-Cattle
Rustling Law of 1974? 28
We do not entertain any doubt, therefore, that the coincidental fact that the robbery in the present case was
committed inside a car which, in the natural course of things, was casually operating on a highway, is not within

the situation envisaged by Section 2(e) of the decree in its definition of terms. Besides, that particular provision
precisely defines "highway robbery/brigandage" and, as we have amply demonstrated, the single act of robbery
conceived and committed by appellants in this case does not constitute highway robbery or brigandage.
Accordingly, we hold that the offense committed by appellants is simple robbery defined in Article 293 and
punished under Paragraph 5 of Article 294 of the Revised Penal Code with prision correccional in its maximum
period to prision mayor in its medium period. Appellants have indisputably acted in conspiracy as shown by their
concerted acts evidentiary of a unity of thought and community of purpose. In the determination of their
respective liabilities, the aggravating circumstances of craft 29 shall be appreciated against both appellants and
that of abuse of confidence shall be further applied against appellant Puno, with no mitigating circumstance in
favor of either of them. At any rate, the intimidation having been made with the use of a firearm, the penalty shall
be imposed in the maximum period as decreed by Article 295 of the Code.
We further hold that there is no procedural obstacle to the conviction of appellants of the crime of simple robbery
upon an information charging them with kidnapping for ransom, since the former offense which has been proved
is necessarily included in the latter offense with which they are charged. 30 For the former offense, it is sufficient
that the elements of unlawful taking, with intent to gain, of personal property through intimidation of the owner or
possessor thereof shall be, as it has been, proved in the case at bar. Intent to gain (animus lucrandi) is presumed
to be alleged in an information where it is charged that there was unlawful taking (apoderamiento) and
appropriation by the offender of the things subject of the robbery. 31
These foregoing elements are necessarily included in the information filed against appellants which, as
formulated, allege that they wilfully, unlawfully and feloniously kidnapped and extorted ransom from the
complainant. Such allegations, if not expressly but at the very least by necessary implication, clearly convey that
the taking of complainant's money and checks (inaccurately termed as ransom) was unlawful, with intent to gain,
and through intimidation. It cannot be logically argued that such a charge of kidnapping for ransom does not
include but could negate the presence of any of the elements of robbery through intimidation of persons. 32
WHEREFORE, the assailed judgment of the trial court is hereby SET ASIDE and another one is rendered
CONVICTING accused-appellants Isabelo Puno y Guevarra and Enrique Amurao y Puno of robbery as Punished in
Paragraph 5 of Article 294, in relation to Article 295, of the Revised Penal Code and IMPOSING on each of them an
indeterminate sentence of four (4) years and two (2) months of prision correccional, as minimum, to ten (10)
years of prision mayor, as maximum, and jointly and severally pay the offended party, Maria del Socorro M.
Sarmiento, the amounts of P7,000.00 as actual damages and P20,000.00 as moral damages, with costs.
SO ORDERED
G.R. No. 5272, U.S. v. Ah Chong, 15 Phil. 488
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
March 19, 1910
G.R. No. 5272
THE UNITED STATES, plaintiff-appellee,
vs.
AH CHONG, defendant-appellant.
Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
The evidence as to many of the essential and vital facts in this case is limited to the testimony of the accused
himself, because from the very nature of these facts and from the circumstances surrounding the incident upon
which these proceedings rest, no other evidence as to these facts was available either to the prosecution or to the
defense. We think, however, that, giving the accused the benefit of the doubt as to the weight of the evidence
touching those details of the incident as to which there can be said to be any doubt, the following statement of
the material facts disclose by the record may be taken to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley, Rizal Province,
and at the same place Pascual Gualberto, deceased, was employed as a house boy or muchacho. "Officers'
quarters No. 27" as a detached house situates some 40 meters from the nearest building, and in August, 19087,
was occupied solely as an officers' mess or club. No one slept in the house except the two servants, who jointly
occupied a small room toward the rear of the building, the door of which opened upon a narrow porch running
along the side of the building, by which communication was had with the other part of the house. This porch was
covered by a heavy growth of vines for its entire length and height. The door of the room was not furnished with a
permanent bolt or lock, and occupants, as a measure of security, had attached a small hook or catch on the inside
of the door, and were in the habit of reinforcing this somewhat insecure means of fastening the door by placing
against it a chair. In the room there was but one small window, which, like the door, opened on the porch. Aside
from the door and window, there were no other openings of any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night, was suddenly
awakened by some trying to force open the door of the room. He sat up in bed and called out twice, "Who is
there?" He heard no answer and was convinced by the noise at the door that it was being pushed open by
someone bent upon forcing his way into the room. Due to the heavy growth of vines along the front of the porch,
the room was very dark, and the defendant, fearing that the intruder was a robber or a thief, leaped to his feet
and called out. "If you enter the room, I will kill you." At that moment he was struck just above the knee by the
edge of the chair which had been placed against the door. In the darkness and confusion the defendant thought
that the blow had been inflicted by the person who had forced the door open, whom he supposed to be a burglar,
though in the light of after events, it is probable that the chair was merely thrown back into the room by the
sudden opening of the door against which it rested. Seizing a common kitchen knife which he kept under his
pillow, the defendant struck out wildly at the intruder who, it afterwards turned out, was his roommate, Pascual.
Pascual ran out upon the porch and fell down on the steps in a desperately wounded condition, followed by the
defendant, who immediately recognized him in the moonlight. Seeing that Pascual was wounded, he called to his
employers who slept in the next house, No. 28, and ran back to his room to secure bandages to bind up Pascual's
wounds.
There had been several robberies in Fort McKinley not long prior to the date of the incident just described, one of
which took place in a house in which the defendant was employed as cook; and as defendant alleges, it was
because of these repeated robberies he kept a knife under his pillow for his personal protection.
The deceased and the accused, who roomed together and who appear to have on friendly and amicable terms
prior to the fatal incident, had an understanding that when either returned at night, he should knock at the door
and acquiant his companion with his identity. Pascual had left the house early in the evening and gone for a walk
with his friends, Celestino Quiambao and Mariano Ibaez, servants employed at officers' quarters No. 28, the
nearest house to the mess hall. The three returned from their walk at about 10 o'clock, and Celestino and Mariano
stopped at their room at No. 28, Pascual going on to his room at No. 27. A few moments after the party separated,
Celestino and Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back
steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called Liuetenants Jacobs
and Healy, who immediately went to the aid of the wounded man.
The defendant then and there admitted that he had stabbed his roommate, but said that he did it under the
impression that Pascual was "a ladron" because he forced open the door of their sleeping room, despite
defendant's warnings.
No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it be that the
boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to frightened him by forcing
his way into the room, refusing to give his name or say who he was, in order to make Ah Chong believe that he
was being attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where he died
from the effects of the wound on the following day.
The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of simple
homicide, with extenuating circumstances, and sentenced to six years and one daypresidio mayor, the minimum
penalty prescribed by law.
At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto, but insisted
that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his lawful right of selfdefense.
Article 8 of the Penal Code provides that

The following are not delinquent and are therefore exempt from criminal liability:
xxx

xxx

xxx

4 He who acts in defense of his person or rights, provided there are the following attendant circumstances:
(1) Illegal aggression.
(2) Reasonable necessity of the means employed to prevent or repel it.
(3) Lack of sufficient provocation on the part of the person defending himself.
Under these provisions we think that there can be no doubt that defendant would be entitle to complete exception
from criminal liability for the death of the victim of his fatal blow, if the intruder who forced open the door of his
room had been in fact a dangerous thief or "ladron," as the defendant believed him to be. No one, under such
circumstances, would doubt the right of the defendant to resist and repel such an intrusion, and the thief having
forced open the door notwithstanding defendant's thrice-repeated warning to desist, and his threat that he would
kill the intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a small
room, with no means of escape, with the thief advancing upon him despite his warnings defendant would have
been wholly justified in using any available weapon to defend himself from such an assault, and in striking
promptly, without waiting for the thief to discover his whereabouts and deliver the first blow.
But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the defendant nor
his property nor any of the property under his charge was in real danger at the time when he struck the fatal blow.
That there was no such "unlawful aggression" on the part of a thief or "ladron" as defendant believed he was
repelling and resisting, and that there was no real "necessity" for the use of the knife to defend his person or his
property or the property under his charge.
The question then squarely presents it self, whether in this jurisdiction one can be held criminally responsible
who, by reason of a mistake as to the facts, does an act for which he would be exempt from criminal liability if the
facts were as he supposed them to be, but which would constitute the crime of homicide or assassination if the
actor had known the true state of the facts at the time when he committed the act. To this question we think there
can be but one answer, and we hold that under such circumstances there is no criminal liability, provided always
that the alleged ignorance or mistake or fact was not due to negligence or bad faith.
In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a
particular intent which under the law is a necessary ingredient of the offense charged (e.g., in larcerny, animus
furendi; in murder, malice; in crimes intent) "cancels the presumption of intent," and works an acquittal; except in
those cases where the circumstances demand a conviction under the penal provisions touching criminal
negligence; and in cases where, under the provisions of article 1 of the Penal Code one voluntarily committing a
crime or misdeamor incurs criminal liability for any wrongful act committed by him, even though it be different
from that which he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law,
sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People,
32 N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)
The general proposition thus stated hardly admits of discussion, and the only question worthy of consideration is
whether malice or criminal intent is an essential element or ingredient of the crimes of homicide and
assassination as defined and penalized in the Penal Code. It has been said that since the definitions there given of
these as well as most other crimes and offense therein defined, do not specifically and expressly declare that the
acts constituting the crime or offense must be committed with malice or with criminal intent in order that the
actor may be held criminally liable, the commission of the acts set out in the various definitions subjects the actor
to the penalties described therein, unless it appears that he is exempted from liability under one or other of the
express provisions of article 8 of the code, which treats of exemption. But while it is true that contrary to the
general rule of legislative enactment in the United States, the definitions of crimes and offenses as set out in the
Penal Code rarely contain provisions expressly declaring that malice or criminal intent is an essential ingredient of
the crime, nevertheless, the general provisions of article 1 of the code clearly indicate that malice, or criminal
intent in some form, is an essential requisite of all crimes and offense therein defined, in the absence of express
provisions modifying the general rule, such as are those touching liability resulting from acts negligently or
imprudently committed, and acts done by one voluntarily committing a crime or misdemeanor, where the act
committed is different from that which he intended to commit. And it is to be observed that even these exceptions
are more apparent than real, for "There is little distinction, except in degree, between a will to do a wrongful thing
and indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies the place
of the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again, "There is so little
difference between a disposition to do a great harm and a disposition to do harm that one of them may very well

be looked upon as the measure of the other. Since, therefore, the guilt of a crime consists in the disposition to do
harm, which the criminal shows by committing it, and since this disposition is greater or less in proportion to the
harm which is done by the crime, the consequence is that the guilt of the crime follows the same proportion; it is
greater or less according as the crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as
it has been otherwise stated, the thing done, having proceeded from a corrupt mid, is to be viewed the same
whether the corruption was of one particular form or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions punished by law.
Acts and omissions punished by law are always presumed to be voluntarily unless the contrary shall appear.
An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though the wrongful
act committed be different from that which he had intended to commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this article, say
that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that without intention (intention
to do wrong or criminal intention) there can be no crime; and that the word "voluntary" implies and includes the
words "con malicia," which were expressly set out in the definition of the word "crime" in the code of 1822, but
omitted from the code of 1870, because, as Pacheco insists, their use in the former code was redundant, being
implied and included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the crime can only be said to exempt from criminal
responsibility when the act which was actually intended to be done was in itself a lawful one, and in the absence
of negligence or imprudence, nevertheless admits and recognizes in his discussion of the provisions of this article
of the code that in general without intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have shown
above, the exceptions insisted upon by Viada are more apparent than real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which declared that where there is no intention there is no
crime . . . in order to affirm, without fear of mistake, that under our code there can be no crime if there is no act,
an act which must fall within the sphere of ethics if there is no moral injury. (Vol. 2, the Criminal Law, folio 169.)
And to the same effect are various decisions of the supreme court of Spain, as, for example in its sentence of May
31, 1882, in which it made use of the following language:
It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed from the
operation of the will and an intent to cause the injury which may be the object of the crime.
And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be the civil
effects of the inscription of his three sons, made by the appellant in the civil registry and in the parochial church,
there can be no crime because of the lack of the necessary element or criminal intention, which characterizes
every action or ommission punished by law; nor is he guilty of criminal negligence."
And to the same effect in its sentence of December 30, 1896, it made use of the following language:
. . . Considering that the moral element of the crime, that is, intent or malice or their absence in the commission
of an act defined and punished by law as criminal, is not a necessary question of fact submitted to the exclusive
judgment and decision of the trial court.
That the author of the Penal Code deemed criminal intent or malice to be an essential element of the various
crimes and misdemeanors therein defined becomes clear also from an examination of the provisions of article
568, which are as follows:
He who shall execute through reckless negligence an act that, if done with malice, would constitute a grave crime,
shall be punished with the penalty of arresto mayor in its maximum degree, toprision correccional in its minimum
degrees if it shall constitute a less grave crime.
He who in violation of the regulations shall commit a crime through simple imprudence or negligence shall incur
the penalty of arresto mayor in its medium and maximum degrees.

In the application of these penalties the courts shall proceed according to their discretion, without being subject to
the rules prescribed in article 81.
The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to or less than
those contained in the first paragraph thereof, in which case the courts shall apply the next one thereto in the
degree which they may consider proper.
The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent," and the
direct inference from its provisions is that the commission of the acts contemplated therein, in the absence of
malice (criminal intent), negligence, and imprudence, does not impose any criminal liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the word
"willful" as used in English and American statute to designate a form of criminal intent. It has been said that while
the word "willful" sometimes means little more than intentionally or designedly, yet it is more frequently
understood to extent a little further and approximate the idea of the milder kind of legal malice; that is, it signifies
an evil intent without justifiable excuse. In one case it was said to mean, as employed in a statute in
contemplation, "wantonly" or "causelessly;" in another, "without reasonable grounds to believe the thing lawful."
And Shaw, C. J., once said that ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in
other words, corruptly." In English and the American statutes defining crimes "malice," "malicious," "maliciously,"
and "malice aforethought" are words indicating intent, more purely technical than "willful" or willfully," but "the
difference between them is not great;" the word "malice" not often being understood to require general
malevolence toward a particular individual, and signifying rather the intent from our legal justification. (Bishop's
New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)
But even in the absence of express words in a statute, setting out a condition in the definition of a crime that it be
committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of the various modes
generally construed to imply a criminal intent, we think that reasoning from general principles it will always be
found that with the rare exceptions hereinafter mentioned, to constitute a crime evil intent must combine with an
act. Mr. Bishop, who supports his position with numerous citations from the decided cases, thus forcely present
this doctrine:
In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. In controversies
between private parties the quo animo with which a thing was done is sometimes important, not always; but
crime proceeds only from a criminal mind. So that
There can be no crime, large or small, without an evil mind. In other words, punishment is the sentence of
wickedness, without which it can not be. And neither in philosophical speculation nor in religious or mortal
sentiment would any people in any age allow that a man should be deemed guilty unless his mind was so. It is
therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is the
wrongful intent, without which it can not exists. We find this doctrine confirmed by
Legal maxims. The ancient wisdom of the law, equally with the modern, is distinct on this subject. It
consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea, "the act itself does not
make man guilty unless his intention were so;" Actus me incito factus non est meus actus, "an act done by me
against my will is not my act;" and others of the like sort. In this, as just said, criminal jurisprudence differs from
civil. So also
Moral science and moral sentiment teach the same thing. "By reference to the intention, we inculpate or
exculpate others or ourselves without any respect to the happiness or misery actually produced. Let the result of
an action be what it may, we hold a man guilty simply on the ground of intention; or, on the dame ground, we
hold him innocent." The calm judgment of mankind keeps this doctrine among its jewels. In times of excitement,
when vengeance takes the place of justice, every guard around the innocent is cast down. But with the return of
reason comes the public voice that where the mind is pure, he who differs in act from his neighbors does not
offend. And
In the spontaneous judgment which springs from the nature given by God to man, no one deems another to
deserve punishment for what he did from an upright mind, destitute of every form of evil. And whenever a person
is made to suffer a punishment which the community deems not his due, so far from its placing an evil mark upon
him, it elevates him to the seat of the martyr. Even infancy itself spontaneously pleads the want of bad intent in
justification of what has the appearance of wrong, with the utmost confidence that the plea, if its truth is credited,
will be accepted as good. Now these facts are only the voice of nature uttering one of her immutable truths. It is,
then, the doctrine of the law, superior to all other doctrines, because first in nature from which the law itself
proceeds, that no man is to be punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law, vol.
1, secs. 286 to 290.)

Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of abstract
justice result from the adoption of the arbitrary rule that Ignorantia juris non excusat("Ignorance of the law
excuses no man"), without which justice could not be administered in our tribunals; and compelled also by the
same doctrine of necessity, the courts have recognized the power of the legislature to forbid, in a limited class of
cases, the doing of certain acts, and to make their commission criminal without regard to the intent of the doer.
Without discussing these exceptional cases at length, it is sufficient here to say that the courts have always held
that unless the intention of the lawmaker to make the commission of certain acts criminal without regard to the
intent of the doer is clear and beyond question the statute will not be so construed (cases cited in Cyc., vol. 12, p.
158, notes 76 and 77); and the rule that ignorance of the law excuses no man has been said not to be a real
departure from the law's fundamental principle that crime exists only where the mind is at fault, because "the evil
purpose need not be to break the law, and if suffices if it is simply to do the thing which the law in fact forbids."
(Bishop's New Criminal Law, sec. 300, and cases cited.)
But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring mistake in fact
to be dealt with otherwise that in strict accord with the principles of abstract justice. On the contrary, the maxim
here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all cases of supposed offense, a
sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)
Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act
committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal liability
provided always there is no fault or negligence on his part; and as laid down by Baron Parke, "The guilt of the
accused must depend on the circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs.
Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg.
vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the
question as to whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be
determined by the circumstances as they appeared to him at the time when the mistake was made, and the effect
which the surrounding circumstances might reasonably be expected to have on his mind, in forming the intent,
criminal or other wise, upon which he acted.
If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts which will
justify a killing or, in terms more nicely in accord with the principles on which the rule is founded, if without
fault or carelessness he does believe them he is legally guiltless of the homicide; though he mistook the facts,
and so the life of an innocent person is unfortunately extinguished. In other words, and with reference to the right
of self-defense and the not quite harmonious authorities, it is the doctrine of reason and sufficiently sustained in
adjudication, that notwithstanding some decisions apparently adverse, whenever a man undertakes self-defense,
he is justified in acting on the facts as they appear to him. If, without fault or carelessness, he is misled
concerning them, and defends himself correctly according to what he thus supposes the facts to be the law will
not punish him though they are in truth otherwise, and he was really no occassion for the extreme measures.
(Bishop's New Criminal Law, sec. 305, and large array of cases there cited.)
The common illustration in the American and English textbooks of the application of this rule is the case where a
man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his friends in a spirit of
mischief, and with leveled pistol demands his money or his life, but is killed by his friend under the mistaken
belief that the attack is a real one, that the pistol leveled at his head is loaded, and that his life and property are
in imminent danger at the hands of the aggressor. No one will doubt that if the facts were such as the slayer
believed them to be he would be innocent of the commission of any crime and wholly exempt from criminal
liability, although if he knew the real state of the facts when he took the life of his friend he would undoubtedly be
guilty of the crime of homicide or assassination. Under such circumstances, proof of his innocent mistake of the
facts overcomes the presumption of malice or criminal intent, and (since malice or criminal intent is a necessary
ingredient of the "act punished by law" in cases of homicide or assassination) overcomes at the same time the
presumption established in article 1 of the code, that the "act punished by law" was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the person slain had a felonious design against him,
and under that supposition killed him, although it should afterwards appear that there was no such design, it will
not be murder, but it will be either manslaughter or excusable homicide, according to the degree of caution used
and the probable grounds of such belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418,
Lloyd's report of the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:

A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched arms and a
pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in
the same attitude, A, who has a club in his hand, strikes B over the head before or at the instant the pistol is
discharged; and of the wound B dies. It turns out the pistol was loaded with powder only, and that the real design
of B was only to terrify A. Will any reasonable man say that A is more criminal that he would have been if there
had been a bullet in the pistol? Those who hold such doctrine must require that a man so attacked must, before
he strikes the assailant, stop and ascertain how the pistol is loaded a doctrine which would entirely take away
the essential right of self-defense. And when it is considered that the jury who try the cause, and not the party
killing, are to judge of the reasonable grounds of his apprehension, no danger can be supposed to flow from this
principle. (Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are here set
out in full because the facts are somewhat analogous to those in the case at bar.
QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only of his wife,
without other light than reflected from the fire, and that the man with his back to the door was attending to the
fire, there suddenly entered a person whom he did not see or know, who struck him one or two blows, producing a
contusion on the shoulder, because of which he turned, seized the person and took from his the stick with which
he had undoubtedly been struck, and gave the unknown person a blow, knocking him to the floor, and afterwards
striking him another blow on the head, leaving the unknown lying on the floor, and left the house. It turned out
the unknown person was his father-in-law, to whom he rendered assistance as soon as he learned his identity, and
who died in about six days in consequence of cerebral congestion resulting from the blow. The accused, who
confessed the facts, had always sustained pleasant relations with his father-in-law, whom he visited during his
sickness, demonstrating great grief over the occurrence. Shall he be considered free from criminal responsibility,
as having acted in self-defense, with all the circumstances related in paragraph 4, article 8, of the Penal Code?
The criminal branch of the Audiencia of Valladolid found that he was an illegal aggressor, without sufficient
provocation, and that there did not exists rational necessity for the employment of the force used, and in
accordance with articles 419 and 87 of the Penal Code condemned him to twenty months of imprisonment, with
accessory penalty and costs. Upon appeal by the accused, he was acquitted by the supreme court, under the
following sentence: "Considering, from the facts found by the sentence to have been proven, that the accused
was surprised from behind, at night, in his house beside his wife who was nursing her child, was attacked, struck,
and beaten, without being able to distinguish with which they might have executed their criminal intent, because
of the there was no other than fire light in the room, and considering that in such a situation and when the acts
executed demonstrated that they might endanger his existence, and possibly that of his wife and child, more
especially because his assailant was unknown, he should have defended himself, and in doing so with the same
stick with which he was attacked, he did not exceed the limits of self-defense, nor did he use means which were
not rationally necessary, particularly because the instrument with which he killed was the one which he took from
his assailant, and was capable of producing death, and in the darkness of the house and the consteration which
naturally resulted from such strong aggression, it was not given him to known or distinguish whether there was
one or more assailants, nor the arms which they might bear, not that which they might accomplish, and
considering that the lower court did not find from the accepted facts that there existed rational necessity for the
means employed, and that it did not apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of
supreme court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the city, upon
arriving at a point where there was no light, heard the voice of a man, at a distance of some 8 paces, saying:
"Face down, hand over you money!" because of which, and almost at the same money, he fired two shots from his
pistol, distinguishing immediately the voice of one of his friends (who had before simulated a different voice)
saying, "Oh! they have killed me," and hastening to his assistance, finding the body lying upon the ground, he
cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been the victim of a joke, and
not receiving a reply, and observing that his friend was a corpse, he retired from the place. Shall he be declared
exempt in toto from responsibility as the author of this homicide, as having acted in just self-defense under the
circumstances defined in paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did
not so find, but only found in favor of the accused two of the requisites of said article, but not that of the
reasonableness of the means employed to repel the attack, and, therefore, condemned the accused to eight years
and one day of prison mayor, etc. The supreme court acquitted the accused on his appeal from this sentence,
holding that the accused was acting under a justifiable and excusable mistake of fact as to the identity of the
person calling to him, and that under the circumstances, the darkness and remoteness, etc., the means employed
were rational and the shooting justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.)
QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone thrown
against his window at this, he puts his head out of the window and inquires what is wanted, and is answered
"the delivery of all of his money, otherwise his house would be burned" because of which, and observing in an
alley adjacent to the mill four individuals, one of whom addressed him with blasphemy, he fired his pistol at one

the men, who, on the next morning was found dead on the same spot. Shall this man be declared exempt from
criminal responsibility as having acted in just self-defense with all of the requisites of law? The criminal branch of
the requisites of law? The criminal branch of the Audiencia of Zaragoza finds that there existed in favor of the
accused a majority of the requisites to exempt him from criminal responsibility, but not that of reasonable
necessity for the means, employed, and condemned the accused to twelve months of prision correctional for the
homicide committed. Upon appeal, the supreme court acquitted the condemned, finding that the accused, in
firing at the malefactors, who attack his mill at night in a remote spot by threatening robbery and incendiarism,
was acting in just self-defense of his person, property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.)
A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman
struck the fatal blow alleged in the information in the firm belief that the intruder who forced open the door of his
sleeping room was a thief, from whose assault he was in imminent peril, both of his life and of his property and of
the property committed to his charge; that in view of all the circumstances, as they must have presented
themselves to the defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief
that he was doing no more than exercising his legitimate right of self-defense; that had the facts been as he
believed them to be he would have been wholly exempt from criminal liability on account of his act; and that he
can not be said to have been guilty of negligence or recklessness or even carelessness in falling into his mistake
as to the facts, or in the means adopted by him to defend himself from the imminent danger which he believe
threatened his person and his property and the property under his charge.
The judgment of conviction and the sentence imposed by the trial court should be reversed, and the defendant
acquitted of the crime with which he is charged and his bail bond exonerated, with the costs of both instance de
oficio. So ordered
G.R. No. 130487

June 19, 2000

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROBERTO ESTRADA, accused-appellant.
PUNO, J.:
This is an automatic review of the death penalty imposed on accused-appellant by the Regional Trial Court,
Branch 44, Dagupan City in Criminal Case No. 94-00860-D. 1 We nullify the proceedings in the court a quo and
remand the case for proper disposition.
In an Information dated December 29, 1994, accused-appellant Roberto Estrada y Lopez was charged with the
crime of murder for the killing of one Rogelio P. Mararac, a security guard. The Information reads:
That on or about the 27th day of December 1994 in the City of Dagupan, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, ROBERTO ESTRADA Y LOPEZ, being then armed with a butcher's
knife, with intent to kill one ROGELIO P. MARARAC with treachery and committed in a holy place of worship, did
then and there, wilfully, unlawfully and criminally, attack, assault and use personal violence upon the latter by
stabbing him, hitting him on vital parts of his body with the said weapon, thereby causing his death shortly
thereafter due to "Cardiorespiratory Arrest, Massive Intrathoracic Hemorrhage, Stab Wound" as per Autopsy
Report and Certificate of Death both issued by Dr. Tomas G. Cornel, Assistant City Health Officer, this City, to the
damage and prejudice of the legal heirs of said deceased ROGELIO P. MARARAC in the amount of not less than
FIFTY THOUSAND PESOS (P50,000.00), Philippine currency, and other consequential damages.
Contrary to Article 248 of the Revised Penal Code.
Dagupan City, Philippines December 29, 1994. 2
At the arraignment on January 6, 1995, accused-appellant's counsel, the Public Attorney's Office, filed an "Urgent
Motion to Suspend Arraignment and to Commit Accused to Psychiatric Ward at Baguio General Hospital." It was
alleged that accused-appellant could not properly and intelligently enter a plea because he was suffering from a
mental defect; that before the commission of the crime, he was confined at the psychiatric ward of the Baguio
General Hospital in Baguio City. He prayed for the suspension of his arraignment and the issuance of an order
confining him at the said hospital. 3
The motion was opposed by the City Prosecutor. The trial court, motu proprio, propounded several questions on
accused-appellant. Finding that the questions were understood and answered by him "intelligently," the court
denied the motion that same day. 4

The arraignment proceeded and a plea of not guilty was entered by the court on accused-appellant's behalf. 5
The prosecution presented four (4) witnesses, namely: (1) Dr. Tomas Cornel, the Assistant Health Officer of
Dagupan City who issued the death certificate and conducted the autopsy on the victim; (2) Crisanto Santillan, an
eyewitness to the incident; (3) SPO1 Conrado Francisco, one of the policemen who apprehended accusedappellant; and (4) Rosalinda Sobremonte, the victim's sister. The prosecution established the following facts:
In the morning of December 27, 1994, at the St. John's Cathedral, Dagupan City, the sacrament of confirmation
was being performed by the Roman Catholic Bishop of Dagupan City on the children of Dagupan. The cathedral
was filled with more than a thousand people. At 11:00 A.M., nearing the close of the rites, the Bishop went down
the altar to give his final blessing to the children in the front rows. While the Bishop was giving his blessing, a man
from the crowd went up and walked towards the center of the altar. He stopped beside the Bishop's chair, turned
around and, in full view of the Catholic faithful, sat on the Bishop's chair. The man was accused-appellant.
Crisanto Santillan, who was assisting the Bishop at the rites, saw accused-appellant. Santillan approached
accused-appellant and requested him to vacate the Bishop's chair. Gripping the chair's armrest, accused-appellant
replied in Pangasinese: "No matter what will happen, I will not move out!" Hearing this, Santillan moved away. 6
Some of the churchgoers summoned Rogelio Mararac, the security guard at the cathedral. Mararac went near
accused-appellant and told him to vacate the Bishop's chair. Accused-appellant stared intensely at the guard.
Mararac grabbed his nightstick and used it to tap accused-appellant's hand on the armrest. Appellant did not
budge. Again, Mararac tapped the latter's hand. Still no reaction. Mararac was about to strike again when
suddenly accused-appellant drew a knife from his back, lunged at Mararac and stabbed him, hitting him below his
left throat. Mararac fell. Accused-appellant went over the victim and tried to stab him again but Mararac parried
his thrust. Accused-appellant looked up and around him. He got up, went to the microphone and shouted:
"Anggapuy nayan dia!" (No one can beat me here!). He returned to the Bishop's chair and sat on it again.
Mararac, wounded and bleeding, slowly dragged himself down the altar. 7
Meanwhile, SPO1 Conrado Francisco, who was directing traffic outside, received a report of a commotion inside
the cathedral. Rushing to the cathedral, SPO1 Francisco saw a man, accused-appellant, with red stains on his shirt
and a knife in one hand sitting on a chair at the center of the altar. He ran to accused-appellant and advised him
to drop the knife. Accused-appellant obeyed. He dropped the knife and raised his hands. Thereupon, Chief
Inspector Wendy Rosario, Deputy Police Chief, Dagupan City, who was attending the confirmation rites at the
Cathedral, went near accused-appellant to pick up the knife. Suddenly, accused-appellant embraced Chief
Inspector Rosario and the two wrestled with each other. Chief Inspector Rosario was able to subdue accusedappellant. The police came and when they frisked appellant, they found a leather scabbard tucked around his
waist. 8 He was brought to the police station and placed in jail.
In the meantime, Mararac, the security guard, was brought to the hospital where he expired a few minutes upon
arrival. He died of cardio-respiratory arrest, massive, intra-thoracic hemorrhage, stab wound." 9 He was found to
have sustained two (2) stab wounds: one just below the left throat and the other on the left arm. The autopsy
reported the following findings:
EXTERNAL FINDINGS
1. Stab wound, along the parasternal line, level of the 2nd intercostal space, left, 1 1/2" x 1 1/2" penetrating. The
edge of one side of the wound is sharp and pointed.
2. Stab wound, antero-lateral aspect, distal 3rd, arm, left, 1/2" x 1/4" x 1/2". The edge of one side of the wound is
sharp and pointed.
INTERNAL FINDINGS
Massive intrathoracic, left, hemorrhage with perforation of the upper and lower lobe of the left lung. The left
pulmonary blood vessel was severely cut. 10
After the prosecution rested its case, accused-appellant, with leave of court, filed a "Demurrer to Evidence." He
claimed that the prosecution failed to prove the crime of murder because there was no evidence of the qualifying
circumstance of treachery; that there was unlawful aggression by the victim when he tapped accused-appellant's
hand with his nightstick; and that accused-appellant did not have sufficient ability to calculate his defensive acts
because he was of unsound mind. 11
The "Demurrer to Evidence" was opposed by the public prosecutor. He alleged that the accused "pretended to be
weak, tame and of unsound mind;" that after he made the first stab, he "furiously continued stabbing and

slashing the victim to finish him off undeterred by the fact that he was in a holy place where a religious ceremony
was being conducted;" and the plea of unsound mind had already been ruled upon by the trial court in its order of
January 6, 1995. 12
On February 21, 1995, a letter was sent by Inspector Wilfredo F. Valdez, Jail Warden of Dagupan City to the trial
court. Inspector Valdez requested the court to allow accused-appellant, who was confined at the city jail, to be
treated at the Baguio General Hospital to determine whether he should remain in jail or be transferred to some
other institution. The other prisoners were allegedly not comfortable with appellant because he had been
exhibiting unusual behavior. He tried to climb up the jail roof so he could escape and see his family. 13
As ordered by the trial court, the public prosecutor filed a Comment to the jail warden's letter. He reiterated that
the mental condition of accused-appellant to stand trial had already been determined; unless a competent
government agency certifies otherwise, the trial should proceed; and the city jail warden was not the proper
person to determine whether accused-appellant was mentally ill or not. 14
In an order dated August 21, 1995, the trial court denied the "Demurrer to Evidence". 15 Accused-appellant
moved for reconsideration.
While the motion for reconsideration was pending, on February 26, 1996, counsel for accused-appellant filed a
"Motion to Confine Accused for Physical, Mental and Psychiatric Examination." Appellant's counsel informed the
court that accused-appellant had been exhibiting abnormal behavior for the past weeks; he would shout at the
top of his voice and cause panic among the jail inmates and personnel; that appellant had not been eating and
sleeping; that his co-inmates had been complaining of not getting enough sleep for fear of being attacked by him
while asleep; that once, while they were sleeping, appellant took out all his personal effects and waste matter and
burned them inside the cell which again caused panic among the inmates. Appellant's counsel prayed that his
client be confined at the National Center for Mental Health in Manila or at the Baguio General Hospital. 16
Attached to the motion were two (2) letters. One, dated February 19, 1996, was from Inspector Pedrito Llopis, Jail
Warden, Dagupan City, addressed to the trial court judge informing him of appellant's irrational behavior and
seeking the issuance of a court order for the immediate psychiatric and mental examination of accused-appellant.
17 The second letter, dated February 21, 1996, was addressed to Inspector Llopis from the Bukang Liwayway
Association, an association of inmates in the Dagupan City Jail. The letter, signed by the president, secretary and
adviser of said association, informed the jail warden of appellant's unusual behavior and requested that
immediate action be taken against him to avoid future violent incidents in the jail. 18
On September 18, 1996, the trial court denied reconsideration of the order denying the "Demurrer to Evidence."
The court ordered accused-appellant to present his evidence on October 15, 1996. 19
Accused-appellant did not take the witness stand. Instead, his counsel presented the testimony of Dr. Maria
Soledad Gawidan, 20 a resident physician in the Department of Psychiatry at the Baguio General Hospital, and
accused-appellant's medical and clinical records at the said hospital. 21 Dr. Gawidan testified that appellant had
been confined at the BGH from February 18, 1993 to February 22, 1993 and that he suffered from "Schizophrenic
Psychosis, Paranoid Typeschizophrenia, paranoid, chronic, paranoid type;" 22 and after four (4) days of
confinement, he was discharged in improved physical and mental condition. 23 The medical and clinical records
consisted of the following: (1) letter of Dr. Alfredo Sy, Municipal Health Officer, Calasiao, Pangasinan to Dr. Jesus
del Prado, Director, BGH referring accused-appellant for admission and treatment after "a relapse of his violent
behavior;" 24 (2) the clinical cover sheet of appellant at the BGH; 25 (3) the consent slip of appellant's wife
voluntarily entrusting appellant to the BGH; 26 (4) the Patient's Record; 27 (5) the Consent for Discharge signed
by appellant's wife; 28 (6) the Summary and Discharges of appellant; 29 (7) appellant's clinical case history; 30
(8) the admitting notes; 31 (9) Physician's Order Form; 32 (10) the Treatment Form/medication sheet; 33 and (11)
Nurses' Notes. 34
The trial court rendered a decision on June 23, 1997. It upheld the prosecution evidence and found accusedappellant guilty of the crime charged and thereby sentenced him to death, viz:
WHEREFORE, the court finds accused Roberto Estrada y Lopez guilty beyond reasonable doubt of the crime of
Murder and in view of the presence of the aggravating circumstance of cruelty which is not offset by any
mitigating circumstance, the accused is sentenced to suffer the Death Penalty and to indemnify the heirs of the
deceased in the amount of P50,000.00.1wphi1.nt
The accused is ordered to pay the sum of P18,870.00 representing actual expenses and P100,000.00 as moral
damages.
SO ORDERED. 25

In this appeal, accused-appellant assigns the following errors:

I
THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF THE CRIME CHARGED, DESPITE CLEAR
AND CONVINCING EVIDENCE ON RECORD, SUPPORTING HIS PLEA OF INSANITY.
II
THE LOWER COURT LIKEWISE ERRED IN HOLDING THAT THE STABBING TO DEATH OF ROGELIO MARARAC WAS
ATTENDED WITH TREACHERY AND AGGRAVATED BY CRUELTY, GRANTING ARGUENDO THAT ACCUSED-APPELLANT'S
PLEA OF INSANITY CANNOT BE CONSIDERED AN EXEMPTING CIRCUMSTANCE. 36
The basic principle in our criminal law is that a person is criminally liable for a felony committed by him. 37 Under
the classical theory on which our penal code is mainly based, the basis of criminal liability is human free Will. 38
Man is essentially a moral creature with an absolutely free will to choose between good and evil. 39 When he
commits a felonious or criminal act (delito doloso), the act is presumed to have been done voluntarily, 40 i.e., with
freedom, intelligence and intent. 41 Man, therefore, should be adjudged or held accountable for wrongful acts so
long as free will appears unimpaired. 42
In the absence of evidence to the contrary, the law presumes that every person is of sound mind 43 and that all
acts are voluntary. 44 The moral and legal presumption under our law is that freedom and intelligence constitute
the normal condition of a person. 45 This presumption, however, may be overthrown by other factors; and one of
these is insanity which exempts the actor from criminal liability. 46
The Revised Penal Code in Article 12 (1) provides:
Art. 12. Circumstances which exempt from criminal liability. The following are exempt from criminal liability:
1. An imbecile or an insane person, unless the latter has acted during a lucid interval.
When the imbecile or an insane person has committed an act which the law defines as a felony (delito), the court
shall order his confinement in one of the hospitals or asylums established for persons thus afflicted, which he shall
not be permitted to leave without first obtaining the permission of the same court.
An insane person is exempt from criminal liability unless he has acted during a lucid interval. If the court therefore
finds the accused insane when the alleged crime was committed, he shall be acquitted but the court shall order
his confinement in a hospital or asylum for treatment until he may be released without danger. An acquittal of the
accused does not result in his outright release, but rather in a verdict which is followed by commitment of the
accused to a mental institution. 47
In the eyes of the law, insanity exists when there is a complete deprivation of intelligence in committing the act.
Mere abnormality of the mental faculties will not exclude imputability. 48 The accused must be "so insane as to be
incapable of entertaining a criminal intent." 49 He must be deprived of reason and act without the least
discernment because there is a complete absence of the power to discern or a total deprivation of freedom of the
will. 50
Since the presumption is always in favor of sanity, he who invokes insanity as an exempting circumstance must
prove it by clear and positive evidence. 51 And the evidence on this point must refer to the time preceding the act
under prosecution or to the very moment of its execution. 52
To ascertain a person's mental condition at the time of the act, it is permissible to receive evidence of the
condition of his mind within a reasonable period both before and after that time. 53 Direct testimony is not
required. 54 Neither are specific acts of derangement essential to establish insanity as a defense. 55
Circumstantial evidence, if clear and convincing, suffices; for the unfathomable mind can only be known by overt
acts. A person's thoughts, motives, and emotions may be evaluated only by outward acts to determine whether
these conform to the practice of people of sound mind. 56
In the case at bar, there is no direct proof that accused-appellant was afflicted with insanity at the time he killed
Mararac. The absence of direct proof, nevertheless, does not entirely discount the probability that appellant was
not of sound mind at that time. From the affidavit of Crisanto Santillan 57 attached to the Information, there are
certain circumstances that should have placed the trial court on notice that appellant may not have been in full
possession of his mental faculties when he attacked Mararac. It was highly unusual for a sane person to go up to
the altar and sit in the Bishop's chair while the Bishop was administering the Holy Sacrament of Confirmation to

children in a jampacked cathedral. It goes against normal and ordinary behavior for appellant, without sufficient
provocation from the security guard, to stab the latter at the altar, during sacramental rites and in front of all the
Catholic faithful to witness. Appellant did not flee, or at least attempt to flee after the stabbing. He nonchalantly
approached the microphone and, over the public address system, uttered words to the faithful which the rational
person would have been made. He then returned to the Bishop's chair and sat there as if nothing happened.
Accused-appellant's history of mental illness was brought to the court's attention on the day of arraignment.
Counsel for accused-appellant moved for suspension of the arraignment on the ground that his client could not
properly and intelligently enter a plea due to his mental condition. The Motion for Suspension is authorized under
Section 12, Rule 116 of the 1985 Rules on Criminal Procedure which provides:
Sec. 12. Suspension of arraignment. The arraignment shall be suspended, if at the time thereof:
(a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable
to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his
mental examination and, if necessary, his confinement for such purpose.
(b) x x x

xxx

xxx

The arraignment of an accused shall be suspended if at the time thereof he appears to be suffering from an
unsound mental condition of such nature as to render him unable to fully understand the charge against him and
to plead intelligently thereto. Under these circumstances, the court must suspend the proceedings and order the
mental examination of the accused, and if confinement be necessary for examination, order such confinement
and examination. If the accused is not in full possession of his mental faculties at the time he is informed at the
arraignment of the nature and cause of the accusation against him, the process is itself a felo de se, for he can
neither comprehend the full import of the charge nor can he give an intelligent plea thereto. 58
The question of suspending the arraignment lies within the discretion of the trial court. 59 And the test to
determine whether the proceedings will be suspended depends on the question of whether the accused, even
with the assistance of counsel, would have a fair trial. This rule was laid down as early as 1917, thus:
In passing on the question of the propriety of suspending the proceedings against an accused person on the
ground of present insanity, the judges should bear in mind that not every aberration of the mind or exhibition of
mental deficiency is sufficient to justify such suspension. The test is to be found in the question whether the
accused would have a fair trial, with the assistance which the law secures or gives; and it is obvious that under a
system of procedure like ours where every accused person has legal counsel, it is not necessary to be so
particular as it used to be in England where the accused had no advocate but himself. 60
In the American jurisdiction, the issue of the accused's "present insanity" or insanity at the time of the court
proceedings is separate and distinct from his criminal responsibility at the time of commission of the act. The
defense of insanity in a criminal trial concerns the defendant's mental condition at the time of the crime's
commission. "Present insanity" is commonly referred to as "competency to stand trial" 61 and relates to the
appropriateness of conducting the criminal proceeding in light of the defendant's present inability to participate
meaningfully and effectively. 62 In competency cases, the accused may have been sane or insane during the
commission of the offense which relates to a determination of his guilt. However, if he is found incompetent to
stand trial, the trial is simply postponed until such time as he may be found competent. Incompetency to stand
trial is not a defense; it merely postpones the trial. 63
In determining a defendant's competency to stand trial, the test is whether he has the capacity to comprehend
his position, understand the nature and object of the proceedings against him, to conduct his defense in a rational
manner, and to cooperate, communicate with, and assist his counsel to the end that any available defense may
be interposed. 64 This test is prescribed by state law but it exists generally as a statutory recognition of the rule
at common law. 65 Thus:
[I]f is not enough for the . . . judge to find that the defendant [is] oriented to time and place, and [has] some
recollection of events, but that the test must be whether he has sufficient present ability to consult with his
lawyer with a reasonable degree of rational understandingand whether he has a rational as well as factual
understanding of the proceedings against him. 66
There are two distinct matters to be determined under this test: (1) whether the defendant is sufficiently coherent
to provide his counsel with information necessary or relevant to constructing a defense; and (2) whether he is
able to comprehend the significance of the trial and his relation to it. 67 The first requisite is the relation between
the defendant and his counsel such that the defendant must be able to confer coherently with his counsel. The

second is the relation of the defendant vis-a-vis the court proceedings, i.e., that he must have a rational as well as
a factual understanding of the proceedings. 68
The rule barring trial or sentence of an insane person is for the protection of the accused, rather than of the
public. 69 It has been held that it is inhuman to require an accused disabled by act of God to make a just defense
for his life or liberty. 70 To put a legally incompetent person on trial or to convict and sentence him is a violation of
the constitutional rights to a fair trial 71 and due process of law; 72 and this has several reasons underlying it. 73
For one, the accuracy of the proceedings may not be assured, as an incompetent defendant who cannot
comprehend the proceedings may not appreciate what information is relevant to the proof of his innocence.
Moreover, he is not in a position to exercise many of the rights afforded a defendant in a criminal case, e.g., the
right to effectively consult with counsel, the right to testify in his own behalf, and the right to confront opposing
witnesses, which rights are safeguards for the accuracy of the trial result. Second, the fairness of the proceedings
may be questioned, as there are certain basic decisions in the course of a criminal proceeding which a defendant
is expected to make for himself, and one of these is his plea. Third, the dignity of the proceedings may be
disrupted, for an incompetent defendant is likely to conduct himself in the courtroom in a manner which may
destroy the decorum of the court. Even if the defendant remains passive, his lack of comprehension
fundamentally impairs the functioning of the trial process. A criminal proceeding is essentially an adversarial
proceeding. If the defendant is not a conscious and intelligent participant, the adjudication loses its character as a
reasoned interaction between an individual and his community and becomes an invective against an insensible
object. Fourth, it is important that the defendant knows why he is being punished, a comprehension which is
greatly dependent upon his understanding of what occurs at trial. An incompetent defendant may not realize the
moral reprehensibility of his conduct. The societal goal of institutionalized retribution may be frustrated when the
force of the state is brought to bear against one who cannot comprehend its significance. 74
The determination of whether a sanity investigation or hearing should be ordered rests generally in the discretion
of the trial court. 75 Mere allegation of insanity is insufficient. There must be evidence or circumstances that raise
a "reasonable doubt" 76 or a "bona fide doubt" 77 as to defendant's competence to stand trial. Among the factors
a judge may consider is evidence of the defendant's irrational behavior, history of mental illness or behavioral
abnormalities, previous confinement for mental disturbance, demeanor of the defendant, and psychiatric or even
lay testimony bearing on the issue of competency in a particular case. 78
In the case at bar, when accused-appellant moved for suspension of the arraignment on the ground of accused's
mental condition, the trial court denied the motion after finding that the questions propounded on appellant were
intelligently answered by him. The court declared:
xxx

xxx

xxx

It should be noted that when this case was called, the Presiding Judge asked questions on the accused, and he
(accused) answered intelligently. As a matter of fact, when asked where he was born, he answered, in Tayug.
The accused could answer intelligently. He could understand the questions asked of him.
WHEREFORE, for lack of merit, the Urgent Motion to Suspend Arraignment and to Commit Accused to Psychiatric
Ward at Baguio General Hospital, is hereby DENIED.
SO ORDERED. 79
The fact that accused-appellant was able to answer the questions asked by the trial court is not conclusive
evidence that he was competent enough to stand trial and assist in his defense. Section 12, Rule 116 speaks of an
unsound mental condition that "effectively renders [the accused] unable to fully understand the charge against
him and to plead intelligently thereto." It is not clear whether accused-appellant was of such sound mind as to
fully understand the charge against him. It is also not certain whether his plea was made intelligently. The plea of
"not guilty" was not made by accused-appellant but by the trial court "because of his refusal to plead." 80
The trial court took it solely upon itself to determine the sanity of accused-appellant. The trial judge is not a
psychiatrist or psychologist or some other expert equipped with the specialized knowledge of determining the
state of a person's mental health. To determine the accused-appellants competency to stand trial, the court, in
the instant case, should have at least ordered the examination of accused-appellant, especially in the light of the
latter's history of mental illness.
If the medical history was not enough to create a reasonable doubt in the judge's mind of accused-appellants
competency to stand trial, subsequent events should have done so. One month after the prosecution rested its
case, the Jail Warden of Dagupan City wrote the trial judge informing him of accused-appellant's unusual behavior
and requesting that he be examined at the hospital to determine whether he should remain in jail or be placed in

some other institution. The trial judge ignored this letter. One year later, accused-appellant's counsel filed a
"Motion to Confine Accused for Physical, Mental and Psychiatric Examination." Attached to this motion was a
second letter by the new Jail Warden of Dagupan City accompanied by a letter-complaint of the members of the
Bukang Liwayway Association of the city jail. Despite the two (2) attached letters, 81 the judge ignored the
"Motion to Confine Accused for Physical, Mental and Psychiatric Examination." The records are barren of any order
disposing of the said motion. The trial court instead ordered accused-appellant to present his evidence. 82
Dr. Gawidan, testified that the illness of accused-appellant, i.e., schizophrenia, paranoid type, is a "lifetime illness"
and that this requires maintenance medication to avoid relapses. 83 After accused-appellant was discharged on
February 22, 1993, he never returned to the hospital, not even for a check-up. 84
Accused-appellant did not take the witness stand. His counsel manifested that accused-appellant was waiving the
right to testify in his own behalf because he was "suffering from mental illness." 85 This manifestation was made
in open court more than two (2) years after the crime, and still, the claim of mental illness was ignored by the trial
court. And despite all the overwhelming indications of accused-appellant's state of mind, the judge persisted in
his personal assessment and never even considered subjecting accused-appellant to a medical examination. To
top it all, the judge found appellant guilty and sentenced him to death!
Sec. 12, Rule 116 of the 1985 Rules on Criminal Procedure speaks of a "mental examination." 86 The human mind
is an entity, and understanding it is not purely an intellectual process but depends to a large degree upon
emotional and psychological appreciation. 87 Thus, an intelligent determination of an accused's capacity for
rational understanding ought to rest on a deeper and more comprehensive diagnosis of his mental condition than
laymen can make through observation of his overt behavior. Once a medical or psychiatric diagnosis is made,
then can the legal question of incompetency be determined by the trial court. By this time, the accused's abilities
may be measured against the specific demands a trial will make upon him. 88
If the mental examination on accused-appellant had been promptly and properly made, it may have served a dual
purpose 89 by determining both his competency to stand trial and his sanity at the time of the offense. In some
Philippine cases, the medical and clinical findings of insanity made immediately after the commission of the crime
served as one of the bases for the acquittal of the accused. 90 The crime in the instant case was committed way
back in December 1994, almost six (6) years ago. At this late hour, a medical finding alone may make it
impossible for us to evaluate appellant's mental condition at the time of the crime's commission for him to avail of
the exempting circumstance of insanity. 91 Nonetheless, under the present circumstances, accused-appellant's
competence to stand trial must be properly ascertained to enable him to participate, in his trial meaningfully.
By depriving appellant of a mental examination, the trial court effectively deprived appellant of a fair trial.1awphil
The trial court's negligence was a violation of the basic requirements of due process; and for this reason, the
proceedings before the said court must be nullified. In People v. Serafica, 92 we ordered that the joint decision of
the trial court be vacated and the cases remanded to the court a quo for proper proceeding. The accused, who
was charged with two (2) counts of murder and one (1) count of frustrated murder, entered a plea of "guilty" to all
three charges and was sentenced to death. We found that the accused's plea was not an unconditional admission
of guilt because he was "not in full possession of his mental faculties when he killed the victim;" and thereby
ordered that he be subjected to the necessary medical examination to determine his degree of insanity at the
time of commission of the crime. 93
IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 44, Dagupan City in Criminal Case No. 9400860-D convicting accused-appellant Roberto Estrada and sentencing him to death is vacated and the case is
remanded to the court a quo for the conduct of a proper mental examination on accused-appellant, a
determination of his competency to stand trial, and for further proceedings.1wphi1.nt
SO ORDERED
G.R. No. 125672. September 27, 1996]
JESUSA CRUZ, petitioner, vs. CORRECTIONAL INSTITUTION FOR WOMEN IN MANDALUYONG, respondent.
RESOLUTION
PANGANIBAN, J.:
After having served five and a half years of her life sentence, may petitioner -- who was convicted of selling 5.5
grams of prohibited drugs, namely, dried marijuana leaves -- be now entitled to the beneficent penalty provisions
of R.A. 7659 and be now released from imprisonment?
The Facts

Petitioner Jesusa Cruz, a.k.a. Jesusa Mediavilla, is at present confined at the Correctional Institution for Women in
Mandaluyong City serving the penalty of life imprisonment imposed upon her as a consequence of her conviction
on March 31, 1992 for violation of Section 4, Article II of R.A. 6425 otherwise known as the Dangerous Drugs Act of
1972. Her appeal from the judgment of conviction rendered by the Regional Trial Court of Iloilo City, Branch 33,
was dismissed by this Court on March 1, 1993 in G.R. No. 106389, People vs. Jesusa Cruz. Hence, her life
sentence has become final and executory.
On August 6, 1996, the present petition for habeas corpus was filed by Atty. Mylene T. Marcia-Creencia (of the law
firm of Fortun and Narvasa) who was appointed by this Court on September 13, 1995 as counsel de oficio to assist
the accused in the preparation of the said pleading. Petitioner alleges that, as of the date of filing of her herein
petition, she has already served five and a half years of her life sentence (February 2, 1991 to August 5, 1996).
She argues that the penalty of life imprisonment imposed by the trial court is excessive considering that the
marijuana allegedly taken from her was only 5.5 grams or less than 750 grams. The Solicitor General, in his
Comment filed with this Court on August 30, 1996, interposed no objection to a favorable application of Section
20, Article IV of R.A. No. 6425, as amended by R.A. No. 7659.
The Courts Ruling
The petition is meritorious.
R.A. 7659, which took effect on December 13, 1993, partly modified the penalties prescribed by R.A. 6425; that is,
inter alia, where the quantity of prohibited drugs involved is less than 750 grams, the penalty is reduced to a
range of prision correccional to reclusion perpetua. (Ordoez vs. Vinarao, G.R. No. 121424, March 28, 1996). In
People vs. Simon (234 SCRA 555, July 29, 1994) and People vs. De Lara (236 SCRA 291, September 5, 1994), this
Court ruled that where the marijuana is less than 250 grams, the penalty to be imposed shall be prision
correccional. Moreover, applying the Indeterminate Sentence Law, the penalty imposable is further reduced to
any period within arresto mayor, as minimum term, to the medium period of prision correccional as the maximum
term, there being no aggravating or mitigating circumstances (Garcia, et al. vs. Court of Appeals, et al., G.R. No.
110983, March 8, 1996).
All told, the petitioner should now be deemed to have served the maximum period imposable for the crime for
which she was convicted, i.e., selling 5.5 grams of dried marijuana leaves. Although her penalty of life
imprisonment had already become final, the beneficial effects of the amendment provided under R.A. 7659 should
be extended to petitioner.
WHEREFORE, the petition is GRANTED. The petitioner is hereby ORDERED RELEASED IMMEDIATELY, unless she is
being detained on some other legal charge. No costs.
SO ORDERED
G.R. Nos. 115008-09 July 24, 1996
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DANIEL QUIJADA Y CIRCULADO, accused-appellant.

DAVIDE, JR., J.:p

Accused-appellant Daniel Quijada appeals from the decision of 30 September 1993 of Branch 1 of the Regional
Trial Court (RTC) of Bohol convicting him of the two offenses separately charged in two informations, viz., murder
under Article 248 of the Revised Penal Code and illegal possession of firearm in its aggravated from under P.D. No.
1866, and imposing upon him the penalty of reclusion perpetua for the first crime and an indeterminate penalty
ranging from seventeen years, four months, and one day, as minimum, to twenty years and one day, as
maximum, for the second crime. 1
The appeal was originally assigned to the Third Division of the Court but was later referred to the Court en banc in
view of the problematical issue of whether to sustain the trial court's judgment in conformity with the doctrine laid
down in People vs. Tac-an, 2 People vs. Tiozon, 3 People vs. Caling, 4 People vs. Jumamoy, 5 People vs. Deunida, 6
People vs. Tiongco, 7 People vs. Fernandez, 8 and People vs. Somooc 9 or to modify the judgment and convict the
appellant only of illegal possession of firearm in its aggravated form pursuant to People vs. Barros, 10 which this
Court (Second Division) decided on 27 June 1995.

The informations read as follows:

CRIMINAL CASE NO. 8178
That on or about the 30th day of December, 1992, in the municipality of Dauis, province of Bohol, Philippines, and
within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to kill and without any
justifiable motive, with treachery and abuse of superior strength, the accused being then armed with a .38 cal.
revolver, while the victim was unarmed, suddenly attacked the victim without giving the latter the opportunity to
defend himself, and with evident premeditation, the accused having harbored a grudge against the victim a week
prior to the incident of murder, did then and there willfully, unlawfully and feloniously attack, assault and shoot
Diosdado Iroy y Nesnea with the use of the said firearm, hitting the latter on his head and causing serious injuries
which resulted to his death; to the damage and prejudice of the heirs of the deceased.
Acts committed contrary to the provision of Art. 248 of the Revised Penal Code, with aggravating circumstance of
nighttime being purposely sought for or taken advantage of by the accused to facilitate the commission of the
crime. 11
CRIMINAL CASE NO. 8179
That on or about the 30th day of December, 1992, in the municipality of Dauis, province of Bohol, Philippines, and
within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully
and feloniously keep, carry and have in his possession, custody and control a firearm (hand gun) with ammunition,
without first obtaining the necessary permit or license to possess the said firearm from competent authorities
which firearm was carried by the said accused outside of his residence and was used by him in committing the
crime of Murder with Diosdado Iroy y Nesnea as the victim; to the damage and prejudice of the Republic of the
Philippines.
Acts committed contrary to the provisions of PD No. 1866. 12
Having arisen from the same incident, the cases were consolidated, and joint hearings were had. The witnesses
presented by the prosecution were SPO4 Felipe Nigparanon (Acting Chief of Police of Dauis, Bohol), SPO Gondalino
Inte, Dr. Gregg Julius Sodusta, Rosita Iroy, and Teodula Matalinis. The defense presented as witnesses Alfred
Aranzado, Edwin Nistal, Julius Bonao, Saturnino Maglupay, and the appellant himself.
The evidence for the prosecution is summarized by the Office of the Solicitor General in the Brief for the Appellee
as follows:
On 25 December 1992, a benefit dance was held at the Basketball Court of Barangay Tinago, Dauis, Bohol. On this
occasion, a fist fight occurred between Diosdado Iroy and appellant Daniel Quijada as the latter was constantly
annoying and pestering the former's sister Rosita Iroy (TSN, Crim. Cases 8178 & 1879, June 8, 1993, pp. 32-35;
August 5, 1993, pp. 14-15).
In the evening of 30 December 1992, another benefit dance/disco was held in the same place. This benefit dance
was attended by Rosita Iroy, Ariel Dano, Teodora Badayos, Ado Aranzado, Largo Iroy and Diosdado Iroy.
While Rosita Iroy and others were enjoying themselves inside the dancing area, Diosdado Iroy, Eugene Nesnea
and Largo Iroy, who were then sitting at the plaza (the area where they positioned themselves was duly lighted
and was approximately four mete's from the dancing hall), decided to just watch the activities in the dance hall
directly from the plaza.
After dancing, Rosita Iroy decided to leave and went outside the gate of the dance area. Subsequently, or around
11:30 of the same night, while facing the direction of Diosdado Iroy, Rosita Iroy saw appellant surreptitiously
approach her brother Diosdado Iroy from behind. Suddenly, appellant fired his revolver at Diosdado Iroy, hitting
the latter at the back portion of the head. This caused Rosita Iroy to spontaneously shout that appellant shot her
brother; while appellant, after shooting Diosdado Iroy, ran towards the cornfield.
Diosdado Iroy was immediately rushed by Elmer Nigparanon and Largo Iroy to the hospital but the injury
sustained was fatal. In the meantime, Rosita Iroy went home and relayed to her parents the unfortunate incident
(TSN, Crim. Case Nos. 8178 & 8179, June 8, 1993, pp. 9-22, inclusive of the preceding paragraphs).
At around midnight, the incident was reported to then Acting chief of Police Felipe Nigparanon by Mrs. Alejandra
Iroy and her daughter Teodula Matalinis. The police officer made entries in the police blotter regarding the

shooting and correspondingly, ordered his men to pick up the appellant. But they were unable to locate appellant
on that occasion (TSN, Crim Case Nos. 8178 & 8179, June 9, 1993, pp. 2-6).
In the afternoon of 31 December 1992, appellant, together with his father Teogenes Quijada went to the police
station at Dauis, Bohol. There and then, appellant was pinpointed by Elenito Nistal and Rosita Iroy as the person
who shot Diosdado Iroy. These facts were entered in the police blotter as Entry No. 1151 (TSN, Crim Case Nos.
8178 & 8179, ibid. p. 14, June 14, 1993, pp. 4-6). 13
The slug was embedded at the midbrain. 14 Diosdado Iroy died of
Cardiorespiratory arrest, secondary to tonsillar herniation, secondary to massive intracranial hemorrhage,
secondary to gunshot wound, 1 cm. left occipital areas, transecting cerebellum up to midbrain. 15
The firearm used by the appellant in shooting Diosdado Iroy was not licensed. Per certifications issued on 26 April
1993, the appellant was not a duly licensed firearm holder as verified from a consolidated list of licensed firearm
holders in the province 16 and was not authorized to carry a firearm outside his residence. 17
The appellant interposed the defense of alibi, which the trial court rejected because he was positively identified
by prosecution witness Rosita Iroy. It summarized his testimony in this wise:
Daniel Quijada y Circulado, the accused in the instant cases, declared that in the afternoon of December 30, 1992
he was in their house. At 6:00 o'clock in the afternoon he went to Tagbilaran City together with Julius Bonao in a
tricycle No. 250 to solicit passengers. They transported passengers until 10:30 o'clock in the evening. They then
proceeded to the Tagbilaran wharf waiting for the passenger boat Trans Asia Taiwan. Before the arrival of Trans
Asia Taiwan they had a talk with Saturnino Maglopay. They were able to pick up two passengers for Graham
Avenue near La Roca Hotel. They then returned to the Tagbilaran wharf for the arrival of MV Cebu City that docked
at 12:10 past midnight. They had a talk with Saturnino Maglopay who was waiting for his auntie scheduled to
arrive abroad MV Cebu City. They were not able to pick up passengers which, as a consequence, they went home.
They had on their way home passengers for the Agors Public Market. They arrived at the house of Julian Bonao at
Bil-isan, Pangalao, Bohol at 3:00 o'clock in the morning of December 31, 1992 where he passed the night. He
went home to Mariveles, Dauis, Bohol at 9:00 o'clock in the morning. 18
The trial court gave full faith and credit to the version of the prosecution and found the appellant guilty beyond
reasonable doubt of the crimes charged and sentenced him accordingly. It appreciated the presence of the
qualifying circumstance of treachery considering that the appellant shot the victim at the back of the head while
the latter was watching the dance. The dispositive portion of the decision dated 30 September 1993 reads as
follows:
PREMISES CONSIDERED, in Criminal Case No. 8178, the court finds the accused Daniel Quijada guilty of the crime
of murder punished under Article 248 of the Revised Penal Code and hereby sentences him to suffer an
imprisonment of Reclusion Perpetua, with the accessories of the law and to pay the cost.
In Criminal Case No. 8179, the Court finds the accused Daniel Quijada guilty of the crime of Qualified Illegal
Possession of Firearm and Ammunition punished under Sec. 1 of RA No. 1866 as amended, and hereby sentences
him to suffer an indeterminate sentence from Seventeen (17) years Four (4) months and One (1) day, as
minimum, to Twenty (20) years and One (1) day, as maximum, with the accessories of the law and to pay the
cost.
The slug or bullet which was extracted from the brain of the back portion of the head of the victim Diosdado Iroy
is hereby ordered forfeited in favor of the government.
It appearing that the accused Daniel Quijada has undergone preventive imprisonment he is entitled to the full
time he has undergone preventive imprisonment to be deducted from the term of sentence if he has executed a
waiver otherwise he will only be entitled to 4/5 of the time he has undergone preventive imprisonment to be
deducted from his term of sentence if he has not executed a waiver. 19
On 29 October 1993, after discovering that it had inadvertently omitted in the decision an award of civil indemnity
and other damages in Criminal Case No. 8178, the trial court issued an order directing the appellant to pay the
parents of the victim the amount of P50,000.00 as indemnity for the death of their son and P10,000.00 for funeral
expenses. 20 The order was to form an integral part of the decision.
The decision was promulgated on 29 October 1993. 21
The appellant forthwith interposed the present appeal, and in his Brief, he contends that the trial court erred

I
. . . IN CONVICTING ACCUSED-APPELLANT AND GIVING CREDENCE TO THE TESTIMONY OF PROSECUTION
WITNESSES ROSITA IROY AND FELIPE NIGPARANON.
II
. . . IN NOT CONSIDERING THE TESTIMONIES OF DEFENSE WITNESSES EDWIN NISTAL AND ALFRED ARANSADO,
AND IN DISREGARDING THE PICTORIAL EXHIBITS OF THE ACCUSED-APPELLANT PARTICULARLY THE RELATIVE
POSITIONS OF DIOSDADO IROY, ROSITA IROY, EDWIN NISTAL, AND ALFRED ARANZADO.
III
. . . IN FAILING TO CONSIDER THAT PROSECUTION WITNESSES ROSITA IROY AND SPO4 FELIPE NIGPARANON HAD
MOTIVES IN FALSELY TESTIFYING AGAINST ACCUSED-APPELLANT. 22
The appellant then submits that the issue in this case boils down to the identity of the killer of Diosdado Iroy. To
support his stand that the killer was not identified, he attacks the credibility of prosecution witnesses Rosita Iroy
and SPO4 Felipe Nigparanon. He claims that the former had a motive "to put him in a bad light" and calls our
attention to her direct testimony that her brother Diosdado, the victim, boxed him on the night of 25 December
1992 because he allegedly "bothered her." He further asserts that Rosita could not have seen the person who shot
Diosdado considering their respective positions, particularly Rosita who, according to defense witnesses Nistal and
Aranzado, was still inside the dancing area and ran towards the crime scene only after Diosdado was shot. And,
the appellant considers it as suppression of evidence when the prosecution did not present as witnesses
Diosdado's companions who were allegedly seated with Diosdado when he was shot.
As to SPO4 Nigparanon, the appellant intimates improper motives in that the said witnesses is a neighbor of the
Iroys, and when he testified, a case for arbitrary detention had already been filed against him by the appellant.
The appellant further claims of alleged omissions and unexplained entries in the police blotter.
Finally, the appellant wants us to favorably consider his defense of alibi which, according to him, gained strength
because of the lack of evidence on the identity of the killer. Furthermore, he stresses that his conduct in
voluntarily going to the police station after having been informed that he, among many others, was summoned by
the police is hardly the actuation of the perpetrator of the killing of Diosdado Iroy specially so if Rosita Iroy's
claim is to be believed that moments after the shooting she shouted that Daniel Quijada shot Diosdado Iroy.
In its Appellee's Brief, the People refutes every argument raised by the appellant and recommends that we affirm
in toto the challenged decision.
After a careful scrutiny of the records and evaluation of the evidence adduced by the parties, we find this appeal
to be absolutely without merit.
The imputation of ill-motive on the part of Rosita Iroy and the basis therefor hardly persuade. The appellant was
the one who was boxed by and lost to Diosdado Iroy in their fight on the night of 25 December 1992. It is then
logical and consistent with human experience that it would be the appellant who would have forthwith
entertained a grudge, if not hatred, against Diosdado. No convicting evidence was shown that Rosita had any
reason to falsely implicate the appellant in the death of her brother Diosdado.
The claim that Rosita could not have seen who shot her brother Diosdado because, as testified to by defense
witnesses Nistal and Aranzado, she was inside the dancing hall and rushed to her brother only after the latter was
shot is equally baseless. The following testimony of Rosita shows beyond cavil that she saw the assailant:
Q
You said that you were initially dancing inside the dancing place and you went out, about what time did
you get out?
A

11:00 o'clock.

And you were standing about two (2) meters from Diosdado Iroy until 11:30 when the incident happened?

Yes I was standing.

And where did you face, you were facing Diosdado Iroy or the dancing area?

A
I was intending to go near my brother. I was approaching and getting near going to my brother Diosdado
Iroy and while in the process I saw Daniel Quijada shot my brother Diosdado Iroy. 23
xxx

xxx

xxx

Q
And in your estimate, how far was your brother Diosdado Iroy while he was sitting at the plaza to the
dancing place?
A

More or less four (4) meters distance.

COURT:
From the dancing hall?
A

Yes, your honor.

And in your observation, was the place where Diosdado Iroy was sitting lighted or illuminated?

Yes, sir.

What kind of light illuminated the place?

I do not know what kind of light but it was lighted.

Was it an electric light?

It is electric light coming from a bulb.

Where is that electric bulb that illuminated the place located?

It was placed at the gate of the dancing place and the light from the house.

Q
You said gate of the dancing place, you mean the dancing place was enclosed at that time and there was a
gate, an opening?
A

Yes, sir.

What material was used to enclose the dancing place?

Bamboo.

Q
And how far was the bulb which was placed near the entrance of the dancing place to the place where
Diosdado Iroy was sitting?
A

Five (5) meters.

You mentioned also that there was a light coming from the house, now whose house was that?

The house of spouses Fe and Berto, I do not know the family name.

Was the light coming from the house of spouses Fe and Berto an electric light?

Yes, sir.

Q
And in your estimate, how far was the source of light of the house of Fe and Berto to the place where
Diosdado Iroy was sitting?
A

About six (6) meters distance. 24

xxx

xxx

What was the color of the electric bulb in the gate of the dancing place?

The white bulb. 25

xxx

The trial court disbelieved the testimony of Nistal and Aranzado. It explicitly declared:
The factual findings of the Court in the instant case is anchored principally in ". . . observing the attitude and
deportment of witnesses while listening to them speak" (People vs. Magaluna, 205, SCRA 266).
thereby indicating that on the basis of the witnesses' deportment and manner of testifying, the declarations of
Nistal and Aranzado failed to convince the trial court that they were telling the truth. Settled is the rule that the
factual findings of the trial court, especially on the credibility of witnesses, are accorded great weight and respect.
For, the trial court has the advantage of observing the witnesses through the different indicators of truthfulness or
falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the
tremulous mutter of a reluctant answer or the forthright tone of a ready reply; 26 or the furtive glance, the blush
of conscious shame, the hesitation, the sincere of the flippant or sneering tone, the heat, the calmness, the yarn,
the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien. 27
The appellant has miserably failed to convince us that we must depart from this rule.
Neither are we persuaded by the claimed suppression of evidence occasioned by the non-presentation as
prosecution witnesses any of the companions of Diosdado who were seated with him when he was shot. In the
first place, the said companions could not have seen from their back the person who suddenly shot Diosdado. In
the second place, the testimony of the companions would, at the most, only corroborate that of Rosita Iroy.
Besides, there is no suggestion at all that the said companions were not available to the appellant. It is settled
that the presumption in Section 3 (e), Rule 131 of the Rules of Court that evidence willfully suppressed would be
adverse if produced does not apply when the testimony of the witness is merely corroborative or where the
witness is available to the accused. 28
The alleged improper motive on the part of SPO4 Nigparanon simply because he is a neighbor of the Iroy's
remains purely speculative, as no evidence was offered to establish that such a relationship affected SPO4
Nigparanon's objectivity. As a police officer, he enjoyed in his favor the presumption of regularity in the
performance of his official duty. 29 As to the alleged omissions and unexplained entries in the police blotter, the
same were sufficiently clarified by SPO4 Nigparanon.
The defense of alibi interposed by the appellant deserves scant consideration. He was positively identified by a
credible witness. It is a fundamental judicial dictum that the defense of alibi cannot prevail over the positive
identification of the accused. 30 Besides, for that defense to prosper it is not enough to prove that the accused
was somewhere else when the crime was committed; he must also demonstrate that it was physically impossible
for him to have been at the scene of the crime at the time of its commission. 31 As testified to by defense witness
Julian Bonao, the Tagbilaran wharf, where the appellant said he was, is only about eight to nine kilometers away
from the crime scene and it would take only about thirty minutes to traverse the distance with the use of a
tricycle. 32 It was, therefore, not physically impossible for the appellant to have been at the scene of the crime at
the time of its commission.
Finally, the appellant asserts that if he were the killer of Diosdado Iroy, he would not have voluntarily proceeded
to the police station. This argument is plain sophistry. The law does not find unusual the voluntary surrender of
offenders; it even considers such act as a mitigating circumstance. 33 Moreover, non-flight is not conclusive proof
of innocence. 34
The evidence for the prosecution further established with moral certainty that the appellant had no license to
possess or carry a firearm. The firearm then that he used in shooting Diosdado Iroy was unlicensed. He, therefore,
committed the crime of aggravated illegal possession of firearm under the second paragraph of Section 1 of P.D.
No. 1866, which reads:
Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms, Ammunition or Instruments
Used or Intended to be Used in the Manufacture of Firearms or Ammunition The penalty of reclusion temporal in
its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture,
deal in, acquire, dispose or possess any firearm, part of firearm, ammunition or machinery, tool or instrument
used or intended to be used in the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed.
In light of the doctrine enunciated in People vs. Tac-an, 35 and reiterated in People vs. Tiozon, 36 People vs.
Caling, 37 People vs. Jumamoy, 38 People vs. Deunida, 39 People vs. Tiongco, 40 People vs. Fernandez, 41 and
People vs. Somooc, 42 that one who kills another with the use of an unlicensed firearm commits two separate
offenses of (1) either homicide or murder under the Revised Penal Code, and (2) aggravated illegal possession of
firearm under the second paragraph of Section 1 of P.D. No. 1866, we sustain the decision of the trial court finding

the appellant guilty of two separate offenses of murder in Criminal Case No. 8178 and of aggravated illegal
possession of firearm in Criminal Case No. 8179.
Although Tac-an and Tiozon relate more to the issue of whether there is a violation of the constitutional
proscription against double jeopardy if an accused is prosecuted for homicide or murder and for aggravated illegal
possession of firearm, they at the same time laid down the rule that these are separate offenses, with the first
punished under the Revised Penal Code and the second under a special law; hence, the constitutional bar against
double jeopardy will not apply. We observed in Tac-an:
It is elementary that the constitutional right against double jeopardy protects one against a second or later
prosecution for the same offense, and that when the subsequent information charges another and different
offense, although arising from the same act or set of acts, there is no prohibited double jeopardy. In the case at
bar, it appears to us quite clear that the offense charged in Criminal Case No. 4007 is that of unlawful possession
of an unlicensed firearm penalized under a special statute, while the offense charged in Criminal Case No. 4012
was that of murder punished under the Revised Penal Code. It would appear self-evident that these two (2)
offenses in themselves are quite different one from the other, such that in principle, the subsequent filing of
Criminal Case No. 4012 is not to be regarded as having placed appellant in a prohibited second jeopardy.
And we stressed that the use of the unlicensed firearm cannot serve to increase the penalty for homicide or
murder; however, the killing of a person with the use of an unlicensed firearm, by express provision of P.D. No.
1866, shall increase the penalty for illegal possession of firearm.
In Tiozon, we stated:
It may be loosely said that homicide or murder qualifies the offense penalized in said Section 1 because it is a
circumstance which increases the penalty. It does not, however, follow that the homicide or murder is absorbed in
the offense; otherwise, an anomalous absurdity results whereby a more serious crime defined and penalized in
the Revised Penal Code is absorbed by a statutory offense, which is just a malum prohibitum. The rationale for the
qualification, as implied from the exordium of the decree, is to effectively deter violations of the laws on firearms
and to stop the "upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally
possessed and manufactured firearms, . . . " In fine then, the killing of a person with the use of an unlicensed
firearm may give rise to separate prosecutions for (a) violation of Section 1 of P.D. No. 1866 and (b) violation of
either Article 248 (Murder) or Article 249 (Homicide) of the Revised Penal Code. The accused cannot plead one as
a bar to the other; or, stated otherwise, the rule against double jeopardy cannot be invoked because the first is
punished by a special law while the second, homicide or murder, is punished by the Revised Penal Code.
In People vs. Doriguez [24 SCRA 163, 171], We held:
It is a cardinal rule that the protection against double jeopardy may be invoked only for the same offense or
identical offenses. A simple act may offend against two (or more entirely distinct and unrelated provisions of law,
and if one provision requires proof of an additional act or element which the other does not, an acquittal or
conviction or a dismissal of the information under one does not bar prosecution under the other. Phrased elsewise,
where two different laws (or articles of the same code) defines two crimes, prior jeopardy as to one of them is not
obstacle to a prosecution of the other, although both offenses arise from the same fact, if each crime involves
some important act which is not an essential element of the other.
In People vs. Bacolod, [89 Phil. 621], from the act of firing a shot from a sub-machine gun which caused public
panic among the people present and physical injuries to one, informations of physical injuries through reckless
imprudence and for serious public disturbance were filed. Accused pleaded guilty and was convicted in the first
and he sought to dismiss the second on the ground of double jeopardy. We ruled:
The protection against double jeopardy is only for the same offense. A simple act may be an offense against two
different provisions of law and if one provision requires proof of an additional fact which the other does not, an
acquittal or conviction under one does not bar prosecution under the other.
Since the informations were for separate offense[s] the first against a person and the second against public
peace and order one cannot be pleaded as a bar to the other under the rule or double jeopardy.
In Caling, we explicitly opined that a person charged with aggravated illegal possession of firearm under the
second paragraph of Section 1 of P.D. No. 1866 can also be separately charged with and convicted of homicide or
murder under the Revised Penal Code and punished accordingly. Thus:
It seems that the Court a quo did indeed err in believing that there is such a thing as "the special complex crime
of Illegal Possession of Unlicensed Firearm Used in Homicide as provided for and defined under the 2nd paragraph

of Sec. 1 of P.D. 1866 as amended," and declaring Caling guilty thereof. The legal provision invoked, "Sec. 1 of P.D.
1866, as amended," reads as follows:
Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms [or] Ammunition or
Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of
reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition or
machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed.
What is penalized in the first paragraph, insofar as material to the present case is the sole, simple act of a person
who shall, among others, "unlawfully possess any firearm . . (or) ammunition . . ." Obviously, possession of any
firearm is unlawful if the necessary permit and/or license therefor is not first obtained. To that act is attached the
penalty of reclusion temporal, maximum, to reclusion perpetua. Now, if "with the use of (such) an unlicensed
firearm, a "homicide or murder is committed," the crime is aggravated and is more heavily punished, with the
capital punishment.
The gravamen of the offense in its simplest form is, basically, the fact of possession of a firearm without license.
The crime may be denominated simple illegal possession, to distinguish it from its aggravated form. It is
aggravated if the unlicensed firearm is used in the commission of a homicide or murder under the Revised Penal
Code. But the homicide or murder is not absorbed in the crime of possession of an unlicensed firearm; neither is
the latter absorbed in the former. There are two distinct crimes that are here spoken of . One is unlawful
possession of a firearm, which may be either simple or aggravated, defined and punished respectively by the first
and second paragraphs of Section 1 of PD 1866. The other is homicide or murder, committed with the use of an
unlicensed firearm. The mere possession of a firearm without legal authority consummates the crime under P.D.
1866, and the liability for illegal possession is made heavier by the firearm's use in a killing. The killing, whether
homicide or murder, is obviously distinct from the act of possession, and is separately punished and defined under
the Revised Penal Code. (emphasis supplied)
In Jumamoy, we reiterated Caling and amplified the rationale on why an accused who kills another with an
unlicensed firearm can be prosecuted and punished for the two separate offenses of violation of the second
paragraph of Section 1 of P.D. No. 1866 and for homicide or murder under the Revised Penal Code. Thus:
Coming to the charge of illegal possession of firearms, Section 1 of P.D. No. 1866 penalizes, inter alia, the unlawful
possession of firearms or ammunition with reclusion temporal in its maximum period to reclusion perpetua.
However, under the second paragraph thereof, the penalty is increased to death if homicide or murder is
committed with the use of an unlicensed firearm. It may thus be loosely said that homicide or murder qualifies the
offense because both are circumstances which increase the penalty. It does not, however, follow that the homicide
or murder is absorbed in the offense. If these were to be so, an anomalous absurdity would result whereby a more
serious crime defined and penalized under the Revised Penal Code will be absorbed by a statutory offense, one
which is merely malum prohibitum. Hence, the killing of a person with the use of an unlicensed firearm may give
rise to separate prosecutions for (a) the violation of Section 1 of P.D. No. 1866 and (b) the violation of either
Article 248 (Murder) or Article 249 (Homicide) of the Revised Penal Code. The accused cannot plead one to bar the
other; stated otherwise, the rule against double jeopardy cannot be invoked as the first is punished by a special
law while the second Murder or Homicide is punished by the Revised Penal Code. [citing People vs. Tiozon,
198 SCRA 368, 379 (1991); People vs. Doriguez, 24 SCRA 163 (1968)]. Considering, however, that the imposition
of the death penalty is prohibited by the Constitution, the proper imposable penalty would be the penalty next
lower in degree, or reclusion perpetua. (emphasis supplied)
In Deunida, in discussing the propriety of the Government's action in withdrawing an information for murder and
pursuing only the information for "Qualified Illegal Possession of Firearm," this Court categorically declared:
At the outset, it must be stressed that, contrary to the prosecution's legal position in withdrawing the information
for murder, the offense defined in the second paragraph of Section 1 of P.D. No. 1866 does not absorb the crime
of homicide or murder under the Revised Penal Code and, therefore, does not bar the simultaneous or subsequent
prosecution of the latter crime. The 1982 decision in Lazaro vs. People, involving the violation of P.D. No. 9, which
the investigating prosecutor invokes to justify the withdrawal, is no longer controlling in view of our decisions in
People vs. Tac-an, People vs. Tiozon, and People vs. Caling.
In Somooc, we once more ruled:
The offense charged by the Information is clear enough from the terms of that document, although both the
Information and the decision of the trial court used the term "Illegal Possession of Firearm with Homicide," a

phrase which has sometimes been supposed to connote a "complex crime" as used in the Revised Penal Code.
Such nomenclature is, however, as we have ruled in People vs. Caling, a misnomer since there is no complex
crime of illegal possession of firearm with homicide. The gravamen of the offense penalized in P.D. No. 1866 is the
fact of possession of a firearm without a license or authority for such possession. This offense is aggravated and
the imposable penalty upgraded if the unlicensed firearm is shown to have been used in the commission of
homicide or murder, offenses penalized under the Revised Penal Code. The killing of a human being, whether
characterized as homicide or murder, is patently distinct from the act of possession of an unlicensed firearm and
is separately punished under the provision of the Revised Penal Code.
The foregoing doctrine suffered a setback when in our decision of 27 June 1995 in People vs. Barros, 43 we set
aside that portion of the appealed decision convicting the appellant of the offense of murder and affirmed that
portion convicting him of illegal possession of firearm in its aggravated form. We therein made the following
statement:
[A]ppellant may not in the premises be convicted of two separate offenses [of illegal possession of firearm in its
aggravated form and of murder], but only that of illegal possession of firearm in its aggravated form, in light of
the legal principles and propositions set forth in the separate opinion of Mr. Justice Florenz D. Regalado, to which
the Members of the Division, the ponente included, subscribe.
The pertinent portions of the separate opinion of Mr. Justice Florenz D. Regalado referred to therein read as
follows:
This premise accordingly brings up the second query as to whether or not the crime should properly be the
aggravated illegal possession of an unlicensed firearm through the use of which a homicide or murder is
committed. It is submitted that an accused so situated should be liable only for the graver offense of aggravated
illegal possession of the firearm punished by death under the second paragraph of Section 1, Presidential Decree
No. 1866, and it is on this point that the writer dissents from the holding which would impose a separate penalty
for the homicide in addition to that for the illegal possession of the firearm used to commit the former.
If the possession of the unlicensed firearm is the only offense imputable to the accused, the Court has correctly
held that to be the simple possession punished with reclusion temporal in its maximum period to reclusion
perpetua in the first paragraph of Section 1. Where, complementarily, the unlicensed firearm is used to commit
homicide or murder, then either of these felonies will convert the erstwhile simple illegal possession into the
graver offense of aggravated illegal possession. In other words, the homicide or murder constitutes the essential
element for integrating into existence the capital offense of the aggravated form of illegal possession of a firearm.
Legally, therefore, it would be illogical and unjustifiable to use the very same offenses of homicide or murder as
integral elements of and to create the said capital offense, and then treat the former all over again as
independent offenses to be separately punished further, with penalties immediately following the death penalty to
boot.
The situation contemplated in the second query is, from the punitive standpoint, virtually of the nature of the socalled, "special complex crimes," which should more appropriately be called composite crimes, punished in Article
294, Article 297 and Article 335. They are neither of the same legal basis as nor subject to the rules on complex
crimes in Article 48, since they do not consist of a single act giving rise to two or more grave or less grave felonies
nor do they involve an offense being a necessary means to commit another. However, just like the regular
complex crimes and the present case of aggravated illegal possession of firearms, only a single penalty is
imposed for each of such composite crimes although composed of two or more offenses.
On the other hand, even if two felonies would otherwise have been covered by the conceptual definition of a
complex crime under Article 48, but the Code imposes a single definite penalty therefor it cannot also be
punished as a complex crime, much less as separate offense, but with only the single penalty prescribed by law.
Thus, even where a single act results in two less grave felonies of serious physical injuries and serious slander by
deed, the offense will not be punished as a delito compuesto under Article 48 but as less serious physical injuries
with ignominy under the second paragraph of Article 265. The serious slander by deed is integrated into and
produces a graver offense, and the former is no longer separately punished.
What is, therefore, sought to be stressed by such alternative illustration, as well as the discussion on complex and
composite crimes, is that when an offense becomes a component of another, the resultant crime being
correspondingly punished as thus aggravated by the integration of the other, the former is not to be further
separately punished as the majority would want to do with the homicide involved in the case at bar.
With the foregoing answers to the second question, the third inquiry is more of a question of classification for
purposes of the other provisions of the Code. The theory in Tac-an that the principal offense is the aggravated
form of illegal possession of firearm and the killing shall merely be included in the particulars or, better still, as an

element of the principal offense, may be conceded. After all, the plurality of crimes here is actually source from
the very provisions of Presidential Decree No. 1866 which sought to "consolidate, codify and integrate" the
"various laws and presidential decrees to harmonize their provision" which "must be updated and revised in order
to more effectively deter violators" of said laws.
This would be akin to the legislative intendment underlaying the provisions of the Anti-Carnapping Act of 1972,
wherein the principal crime to be charged is still carnapping, although the penalty therefore is increased when the
owner, driver or occupant of the carnapped vehicle is killed. The same situation, with escalating punitive
provisions when attended by a killing, are found in the Anti-Piracy and Anti-Highway Robbery Law of 1974 and the
Anti-Cattle Rustling Law of 1974, wherein the principal crimes still are piracy, highway robbery and cattle rustling.
Also, in the matter of destructive arson, the principal offense when, inter alia, death results as a consequences of
the commission of any of the acts punished under said article of the Code.
In the present case, the academic value of specifying whether it is a case of illegal possession of firearm resulting
in homicide or murder, or, conversely, homicide or murder through the illegal possession and use of an unlicensed
firearm, would lie in the possible application of the provision on recidivism. Essentially, it would be in the
theoretical realm since, taken either way, the penalty for aggravated illegal possession of a firearm is the single
indivisible penalty of death, in which case the provision on recidivism would not apply. If, however, the illegal
possession is not established but either homicide or murder is proved, then the matter of recidivism may have
some significance in the sense that, for purposes thereof, the accused was convicted of a crime against persons
and he becomes a recidivist upon conviction of another crime under the same title of the Code.
Lastly, on the matter of the offense or offenses to be considered and the penalty to be imposed when the unlawful
killing and the illegal possession are charged in separate informations, from what has been said the appropriate
course of action would be to consolidate the cases and render a joint decision thereon, imposing a single penalty
for aggravated illegal possession of firearm if such possession and the unlawful taking of life shall have been
proved, or for only the proven offense which may be either simple illegal possession, homicide or murder per se.
The same procedural rule and substantive disposition should be adopted if one information for each offense was
drawn up and these informations were individually assigned to different courts or branches of the same court.
Indeed, the practice of charging the offense of illegal possession separately from the homicide or murder could be
susceptible of abuse since it entails undue concentration of prosecutorial powers and discretion. Prefatorily, the
fact that the killing was committed with a firearm will necessarily be known to the police or prosecutorial
agencies, the only probable problem being the determination and obtention of evidence to show that the firearm
is unlicensed.
Now, if a separate information for homicide or murder is filed without alleging therein that the same was
committed by means of an unlicensed firearm, the case would not fall under Presidential Decree No. 1866. Even if
the use of a firearm is alleged therein, but without alleging the lack of a license therefor as where that fact has
not yet been verified, the mere use of a firearm by itself, even if proved in that case, would not affect the accused
either since it is not an aggravating or qualifying circumstance.
Conversely, if the information is only for illegal possession, with the prosecution intending to file thereafter the
charge for homicide or murder but the same is inexplicably delayed or is not consolidated with the information for
illegal possession, then any conviction that may result from the former would only be for simple illegal possession.
If, on the other hand, the separate and subsequent prosecution for homicide or murder prospers, the objective of
Presidential Decree No. 1866 cannot be achieved since the penalty imposable in that second prosecution will only
be for the unlawful killing and further subject to such modifying circumstances as may be proved.
In any event, the foregoing contingencies would run counter to the proposition that the real offense committed by
the accused, and for which sole offense he should be punished, is the aggravated form of illegal possession of a
firearm. Further, it is the writer's position that the possible problems projected herein may be minimized or
obviated if both offenses involved are charged in only one information or that the trial thereof, if separately
charged, be invariably consolidated for joint decision. Conjointly, this is the course necessarily indicated since
only a single composite crime is actually involved and it is palpable error to deal therewith and dispose thereof by
segregated parts in piecemeal fashion.
If we follow Barros, the conviction of the appellant for murder in Criminal Case No. 8178 must have to be set
aside. He should only suffer the penalty for the aggravated illegal possession of firearm in Criminal Case No. 8179.
The Court en banc finds in this appeal an opportunity to reexamine the existing conflicting doctrines applicable to
prosecutions for murder or homicide and for aggravated illegal possession of firearm in instance where an
unlicensed firearm is used in the killing of a person. After a lengthy deliberation thereon, the Court en banc
arrived at the conclusion that the rule laid down in Tac-an, reiterated in Tiozon, Caling, Jumamoy, Deunida,

Tiongco, Fernandez, and Somooc is the better rule, for it applies the laws concerned according to their letter and
spirit, thereby steering this Court away from a dangerous course which could have irretrievably led it to an
inexcusable breach of the doctrine of separation of powers through judicial legislation. That rule upholds and
enhances the lawmaker's intent or purpose in aggravating the crime of illegal possession of firearm when an
unlicensed firearm is used in the commission of murder or homicide. Contrary to the view of our esteemed
brother, Mr. Justice Florenz D. Regalado, in his Concurring and Dissenting Opinion in the case under consideration,
Tac-an did not enunciated an "unfortunate doctrine" or a "speciously camouflaged theory" which "constitutes an
affront on doctrinal concepts of penal law and assails even the ordinary notions of common sense."
If Tac-an did in fact enunciated such an "unfortunate doctrine," which this Court has reiterated in a convincing
number of cases and for a convincing number of years, so must the same verdict be made in our decision in
People vs. De Gracia, 44 which was promulgated on 6 July 1994. In the latter case, we held that unlawful
possession of an unlicensed firearm in furtherance of rebellion may give rise to separate prosecution for a
violation of Section 1 of P.D. No. 1866 and also for a violation of Articles 134 and 135 of the Revised Penal Code on
rebellion. A distinction between that situation and the case where an unlicensed firearm is used in homicide or
murder would have no basis at all. In De Gracia, this Court, speaking through Mr. Justice Florenz D. Regalado,
made the following authoritative pronouncements:
III.
As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989 up to and
until December 9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not appellant's possession of
the firearms, explosives and ammunition seized and recovered from him was for the purpose and in furtherance of
rebellion.
The trial court found accused guilty of illegal possession of firearms in furtherance of rebellion pursuant to
paragraph 2 of Article 135 of the Revised Penal Code which states that "any person merely participating or
executing the command of others in a rebellion shall suffer the penalty of prision mayor in its minimum period."
The court below held that appellant De Gracia, who had been servicing the personal needs of Col. Matillano
(whose active armed opposition against the Government, particularly at the Camelot Hotel, was well known), is
guilty of the act of guarding the explosives and "molotov" bombs for and in behalf of the latter. We accept this
finding of the lower court.
The above provision of the law was, however, erroneously and improperly used by the court below as a basis in
determining the degree of liability of appellant and the penalty to be imposed on him. It must be made clear that
appellant is charged with the qualified offense of illegal possession of firearms in furtherance of rebellion under
Presidential Decree No. 1866 which, in law, is distinct from the crime of rebellion punished under Article 134 and
135 of the Revised Penal Code. There are two separate statutes penalizing different offenses with discrete
penalties. The Revised Penal Code treats rebellion as a crime apart from murder, homicide, arson, or other
offenses, such as illegal possession of firearms, that might conceivably be committed in the course of a rebellion.
Presidential Decree No. 1866 defines and punishes, as a specific offense, the crime of illegal possession of
firearms committed in the course or as part of a rebellion.
Missing p. 26
conceptual changes over time," as the concurring and dissenting opinion charges.
The majority now reiterates the doctrine in Tac-an and the subsequent cases not because it has become hostage
to the "inertia of time [which] has always been the obstacle to the virtues of change," as the concurring and
dissenting opinion finds it to be, but rather because it honestly believes that Tac-an laid down the correct doctrine.
If P.D. No. 1866 as applied in Tac-an is an "affront on doctrinal concepts of penal laws and assails even the
ordinary notions of common sense," the blame must not be laid at the doorsteps of this Court, but on the
lawmaker's. All that the Court did in Tac-an was to apply the law, for there was nothing in that case that warranted
an interpretation or the application of the niceties of legal hermeneutics. It did not forget that its duty is a merely
to apply the law in such a way that shall not usurp legislative powers by judicial legislation and that in the course
of such application or construction it should not make or supervise legislation, or under the guise of interpretation
modify, revise, amend, distort, remodel, or rewrite the law, or give the law a construction which is repugnant to its
terms. 45
Murder and homicide are defined and penalized by the Revised Penal Code 46 as crimes against persons. They
are mala in se because malice or dolo is a necessary ingredient therefor. 47 On the other hand, the offense of
illegal possession of firearm is defined and punished by a special penal law, 48 P.D. No. 1866. It is a malum
prohibitum 49 which the lawmaker, then President Ferdinand E. Marcos, in the exercise of his martial law powers,
so condemned not only because of its nature but also because of the larger policy consideration of containing or
reducing, if not eliminating, the upsurge of crimes vitally affecting public order and safety due to the proliferation
of illegally possessed and manufactured firearms, ammunition, and explosives. If intent to commit the crime were

required, enforcement of the decree and its policy or purpose would be difficult to achieve. Hence, there is
conceded wisdom in punishing illegal possession of firearm without taking into account the criminal intent of the
possessor. All that is needed is intent to perpetrate the act prohibited by law, coupled, of course, by animus
possidendi. However, it must be clearly understood that this animus possidendi is without regard to any other
criminal
or felonious intent which an accused may have harbored in possessing the firearm. 50
A long discourse then on the concepts of malum in se and malum prohibitum and their distinctions is an exercise
in futility.
We disagree for lack of basis the following statements of Mr. Justice Regalado in his Concurring and Dissenting
Opinion, to wit:
The second paragraph of the aforestated Section 1 expressly and unequivocally provides for such illegal
possession and resultant killing as a single integrated offense which is punished as such. The majority not only
created two offenses by dividing a single offense into two but, worse, it resorted to the unprecedented and invalid
act of treating the original offense as a single integrated crime and then creating another offense by using a
component crime which is also an element of the former.
It would already have been a clear case of judicial legislation if the illegal possession with murder punished with a
single penalty have been divided into two separate offenses of illegal possession and murder with distinct
penalties. It is consequently a compounded infringement of legislative powers for this Court to now, as it has
done, treat that single offense as specifically described by the law and impose reclusion perpetua therefor (since
the death penalty for that offense is still proscribed), but then proceed further by plucking out therefrom the crime
of murder in order to be able to impose the death sentence. For indeed, on this score, it is beyond cavil that in the
aggravated form of illegal possession, the consequential murder (or homicide) is an integrated element or integral
component since without the accompanying death, the crime would merely be simple illegal possession of a
firearm under the first paragraph of Section 1.
The second paragraph of Section 1 of P.D. No. 1866 does not warrant and support a conclusion that it intended to
treat "illegal possession and resultant killing" (emphasis supplied) "as a single and integrated offense" of illegal
possession with homicide or murder. It does not use the clause as a result or on the occasion of to evince an
intention to create a single integrated crime. By its unequivocal and explicit language, which we quote to be
clearly understood:
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed.
(emphasis supplied)
the crime of either homicide or murder is committed NOT AS A RESULT OR ON THE OCCASION of the violation of
Section 1, but WITH THE USE of an unlicensed firearm, whose possession is penalized therein. There is a world of
difference, which is too obvious, between (a) the commission of homicide or murder as a result or on the occasion
of the violation of Section 1, and (b) the commission of homicide or murder with the use of an unlicensed firearm.
In the first, homicide or murder is not the original purpose or primary objective of the offender, but a secondary
event or circumstance either resulting from or perpetrated on the occasion of the commission of that originally or
primarily intended. In the second, the killing, which requires a mens rea is the primary purpose, and to carry that
out effectively the offender uses an unlicensed firearm.
As to the question then of Mr. Justice Regalado of whether this Court should also apply the rule enunciated here to
P.D. No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974), P.D. No. 533 (Anti-Cattle Rustling Law of 1974),
and P.D. No. 534 (Defining Illegal Fishing and Prescribing Stiffer Penalties Therefor), the answer is resoundingly in
the negative. In those cases, the lawmaker clearly intended a single integrated offense or a special complex
offense because the death therein occurs as a result or on the occasion of the commission of the offenses therein
penalized or was not the primary purpose of the offender, unlike in the second paragraph of Section 1 of P.D. No.
1866. Thus, (a) Section 3 of P.D. No. 532 provides:
Sec. 3. Penalties. Any person who commits piracy or highway robbery/brigandage as herein defined, shall, upon
conviction by competent court be punished by:
a.
Piracy. The penalty of reclusion temporal in its medium and maximum periods shall be imposed. If
physical injuries or other crimes are committed as a result or on the occasion thereof, the penalty of reclusion
perpetua shall be imposed. If rape, murder or homicide is committed as a result or on the occasion of piracy, or
when the offenders abandoned the victims without means of saving themselves, or when the seizure is
accomplished by firing upon or boarding a vessel, the mandatory penalty of death shall be imposed.

b.
Highway Robbery/Brigandage. The penalty of reclusion temporal in its minimum period shall be
imposed. If physical injuries or other crimes are committed during or on the occasion of the commission of
robbery or brigandage, the penalty of reclusion temporal in its medium and maximum periods shall be imposed. If
kidnapping for ransom or extortion, or murder or homicide, or rape is committed as a result or on the occasion
thereof, the penalty of death shall be imposed. (emphasis supplied)
(b)

Section 8 of P.D. No. 533 reads in part as follows:

Sec. 8. Penal provisions. Any person convicted of cattle rustling as herein defined shall, irrespective of the value
of the large cattle involved, be punished by prision mayor in its maximum period to reclusion temporal in its
medium period if the offense is committed without violence against or intimidation of persons or force upon
things. If the offense is committed with violence against or intimidation of persons or force upon things, the
penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed. If a person is
seriously injured or killed as a result or on the occasion of the commission of cattle rustling, the penalty of
reclusion perpetua to death shall be imposed. (emphasis supplied)
and (c) Section 3 of P.D. No. 534 reads as follows:
Sec. 3. Penalties. Violations of this Decree and the rules and regulations mentioned in paragraph (f) of Section 1
hereof shall be punished as follows:
a.
by imprisonment from 10 to 12 years, if explosives are used: Provided, that if the explosion results (1) in
physical injury to person, the penalty shall be imprisonment from 12 to 20 years, or (2) in the loss of human life,
then the penalty shall be imprisonment from 20 years to life, or death;
b.
by imprisonment from 8 to 10 years, if obnoxious or poisonous substances are used: Provided, that if the
use of such substances results (1) in physical injury to any person, the penalty shall be imprisonment from 10 to
12 years, or (2) in the loss of human life, then the penalty shall be imprisonment from 20 years to life, or death; . .
. (emphasis supplied)
The unequivocal intent of the second paragraph of Section 1 of P.D. No. 1866 is to respect and preserve homicide
or murder as a distinct offense penalized under the Revised Penal Code and to increase the penalty for illegal
possession of firearm where such a firearm is used in killing a person. Its clear language yields no intention of the
lawmaker to repeal or modify, pro tanto, Articles 248 and 249 of the Revised Penal Code, in such a way that if an
unlicensed firearm is used in the commission of homicide or murder, either of these crimes, as the case may be,
would only serve to aggravate the offense of illegal possession of firearm and would not anymore be separately
punished. Indeed, the words of the subject provision are palpably clear to exclude any suggestion that either of
the crimes of homicide and murder, as crimes mala in se under the Revised Penal Code, is obliterated as such and
reduced as a mere aggravating circumstance in illegal possession of firearm whenever the unlicensed firearm is
used in killing a person. The only purpose of the provision is to increase the penalty prescribed in the first
paragraph of Section 1 reclusion temporal in its maximum period to reclusion perpetua to death, seemingly
because of the accused's manifest arrogant defiance and contempt of the law in using an unlicensed weapon to
kill another, but never, at the same time, to absolve the accused from any criminal liability for the death of the
victim.
Neither is the second paragraph of Section 1 meant to punish homicide or murder with death if either crime is
committed with the use of an unlicensed firearm, i.e., to consider such use merely as a qualifying circumstance
and not as an offense. That could not have been the intention of the lawmaker because the term "penalty" in the
subject provision is obviously meant to be the penalty for illegal possession of firearm and not the penalty for
homicide or murder. We explicitly stated in Tac-an:
There is no law which renders the use of an unlicensed firearm as an aggravating circumstance in homicide or
murder. Under an information charging homicide or murder, the fact that the death weapon was an unlicensed
firearm cannot be used to increase the penalty for the second offense of homicide or murder to death. . . . The
essential point is that the unlicensed character or condition of the instrument used in destroying human life or
committing some other crime, is not included in the inventory of aggravating circumstances set out in Article 14
of the Revised Penal Code.
A law may, of course, be enacted making the use of an unlicensed firearm as a qualifying circumstance. This
would not be without precedent. By analogy, we can cite Section 17 of B.P. Blg. 179, which amended the
Dangerous Drugs Act of 1972 (R.A. No. 6425). The said section provides that when an offender commits a crime
under a state of addiction, such a state shall be considered as a qualifying aggravating circumstance in the
definition of the crime and the application of the penalty under the Revised Penal Code.

In short, there is nothing in P.D. No. 1866 that manifests, even vaguely, a legislative intent to decriminalize
homicide or murder if either crime is committed with the use of an unlicensed firearm, or to convert the offense of
illegal possession of firearm as a qualifying circumstance if the firearm so illegally possessed is used in the
commission of homicide or murder. To charge the lawmaker with that intent is to impute an absurdity that would
defeat the clear intent to preserve the law on homicide and murder and impose a higher penalty for illegal
possession of firearm if such firearm is used in the commission of homicide or murder.
Evidently, the majority did not, as charged in the concurring and dissenting opinion, create two offenses by
dividing a single offense into two. Neither did it resort to the "unprecedented and invalid act of treating the
original offense as a single integrated crime and then creating another offense by using a component crime which
is also an element of the former." The majority has always maintained that the killing of a person with the use of
an illegally possessed firearm gives rise to two separate offenses of (a) homicide or murder under the Revised
Penal Code, and (b) illegal possession of firearm in its aggravated form.
What then would be a clear case of judicial legislation is an interpretation of the second paragraph of Section 1 of
P.D. No. 1866 that would make it define and punish a single integrated offense and give to the words WITH THE
USE OF a similar meaning as the words AS A RESULT OR ON THE OCCASION OF, a meaning which is neither born
out by the letter of the law nor supported by its intent. Worth noting is the rule in statutory construction that if a
statute is clear, plain, and free from ambiguity, it must be given its literal meaning and applied without attempted
interpretation, 51 leaving the court no room for any extended ratiocination or rationalization of the law. 52
Peregrinations into the field of penology such as on the concept of a single integrated crime or composite crimes,
or into the philosophical domain of integration of the essential elements of one crime to that of another would
then be unnecessary in light of the clear language and indubitable purpose and intent of the second paragraph of
Section 1 of P.D. No. 1866. The realm of penology, the determination of what should be criminalized, the definition
of crimes, and the prescription of penalties are the exclusive prerogatives of the legislature. As its wisdom may
dictate, the legislature may even create from a single act or transaction various offenses for different purposes
subject only to the limitations set forth by the Constitution. This Court cannot dictate upon the legislature to
respect the orthodox view concerning a single integrated crime or composite crimes.
The only apparent obstacle to the imposition of cumulative penalties for various acts is the rule on double
jeopardy. This brings us to the proposition in the dissenting opinion of Mr. Justice Regalado that the majority view
offends the constitutional bar against double jeopardy under the "same-evidence" test enunciated in People vs.
Diaz. 53 He then concludes:
In the cases now before us, it is difficult to assume that the evidence for the murder in the first charge of
aggravated illegal possession of firearm with murder would be different from the evidence to be adduced in the
subsequent charge for murder alone. In the second charge, the illegal possession is not in issue, except
peripherally and inconsequentially since it is not an element or modifying circumstance in the second charge,
hence the evidence therefor is immaterial. But, in both prosecutions, the evidence on murder is essential, in the
first charge because without it the crime is only simple illegal possession, and, in the second charge, because
murder is the very subject of the prosecution. Assuming that all the other requirements under Section 7, Rule 117
are present, can it be doubted that double jeopardy is necessarily present and can be validly raised to bar the
second prosecution for murder?
In fact, we can extrapolate the constitutional and reglementary objection to the cases of the other composite
crimes for which a single penalty is imposed, such as the complex, compound and so-called special complex
crimes. Verily, I cannot conceive of how a person convicted of estafa through falsification under Article 48 can be
validly prosecuted anew for the same offense or either estafa or falsification; or how the accused convicted of
robbery with homicide under Article 294 can be legally charged again with either of the same component crimes
of robbery or homicide; or how the convict who was found guilty of rape with homicide under Article 335 can be
duly haled before the court again to face charges of either the same rape or homicide. Why, then, do we now
sanction a second prosecution for murder in the cases at bar since the very same offense was an indispensable
component for the other composite offense of illegal possession of firearm with murder? Why would the objection
of non bis in idim as a bar to a second jeopardy lie in the preceding examples and not apply to the cases now
before us?
We are unable to agree to the proposition. For one, the issue of double jeopardy is not raised in this case. For
another, the so-called "same-evidence" test is not a conclusive, much less exclusive, test in double jeopardy
cases of the first category under the Double Jeopardy Clause which is covered by Section 21, Article III of the
Constitution and which reads as follows:
No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an
ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

Note that the first category speaks of the same offense. The second refers to the same act. This was explicitly
distinguished in Yap vs. Lutero, 54 from where People vs. Relova 55 quotes the following:
Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of clause 20, section 1,
Article III of the Constitution, ordains that "no person shall be twice put in jeopardy of punishment for the same
offense." (emphasis in the original) The second sentence of said clause provides that "if an act is punishable by a
law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the
same act." Thus, the first sentence prohibits double jeopardy of punishment for the same offense whereas, the
second contemplates double jeopardy of punishment for the same act. Under the first sentence, one may be twice
put in jeopardy of punishment of the same act, provided that he is charged with different offenses, or the offense
charged in one case is not included in, or does not include, the crime charged in the other case. The second
sentence applies, even if the offenses charged are not the same, owing to the fact that one constitutes a violation
of an ordinance and the other a violation of a statute. If the two charges are based on one and the same act,
conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. Incidentally,
such conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment for the
same offense. So long as jeopardy has been attached under one of the informations charging said offense, the
defense may be availed of in the other case involving the same offense, even if there has been neither conviction
nor acquittal in either case.
Elsewise stated, where the offenses charged are penalized either by different sections of the same statute or by
different statutes, the important inquiry relates to the identity of offenses charged. The constitutional protection
against double jeopardy is available only where an identity as shown to exist between the earlier and the
subsequent offenses charged. 56 The question of identity or lack of identity of offenses is addressed by examining
the essential elements of each of the two offenses charged, as such elements are set out in the respective
legislative definitions of the offenses involved. 57
If may be noted that to determine the "same offense" under the Double Jeopardy Clause of the Fifth Amendment
of the Constitution of the United States of America which reads:
[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. . .
the rule applicable is the following: "where the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether
each provision requires proof of an additional fact which the other does not." 58
The Double Jeopardy Clause of the Constitution of the United States of America was brought to the Philippines
through the Philippine Bill of 1 July 1902, whose Section 5 provided, inter alia:
[N]o person for the same offense shall be twice put in jeopardy of punishment . . . .
This provision was carried over in identical words in Section 3 of the Jones Law of 29 August 1916. 59 Then under
the 1935 Constitution, the Jones Law provision was recast with the addition of a provision referring to the same
act. Thus, paragraph 20, Section 1, Article III thereof provided as follows:
No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an
ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.
This was adopted verbatim in Section 22, Article IV of the 1973 Constitution and in Section 21, Article III of the
present Constitution.
This additional-element test in Lutero and Relova and in Blockburger, Gore, and Missouri would safely bring the
second paragraph of Section 1 of P.D. No. 1866 out of the proscribed double jeopardy principle. For undeniably,
the elements of illegal possession of firearm in its aggravated form are different from the elements of homicide or
murder, let alone the fact that these crimes are defined and penalized under different laws and the former is
malum prohibitum, while both the latter are mala in se. Hence, the fear that the majority's construction of the
subject provision would violate the constitutional bar against double jeopardy is unfounded.
The penalty which the trial court imposed in Criminal Case No. 8179 for illegal possession of firearm in its
aggravated form must, however, be modified. The penalty prescribed by P.D. No. 1866 is death. Since Section
19(1), Article III of the Constitution prohibits the imposition of the death penalty, the penalty next lower in degree,
reclusion perpetua, must be imposed.

WHEREFORE, the instant appeal is DISMISSED, and the challenged decision of 30 September 1993 of Branch 1 of
the Regional Trial Court of Bohol finding accused-appellant DANIEL QUIJADA y CIRCULADO guilty beyond
reasonable doubt of the crime of murder in Criminal Case No. 8178 and of illegal possession of firearm in its
aggravated form in Criminal Case No. 8179 is AFFIRMED. The penalty imposed in the first case, as amended by
the Order of 29 October 1993, is sustained; however, the penalty imposed in the second case is changed to
Reclusion Perpetua from the indeterminate penalty ranging from Seventeen (17) years, Four (4) months, and One
(1) day, as minimum, to Twenty (20) years and One (1) day, as maximum.
Costs de oficio.
SO ORDERED
G.R. No. 39519

November 21, 1991

PEOPLE OF THE PHILIPPINES, petitioner-appellee

vs.
DANIEL PINTO, JR. and NARCISO BUENAFLOR, JR., defendants-appellants.
The Solicitor General for petitioner-appellee.
K.V. Faylona & Associates for defendants-appellants.

FERNAN, C.J.:p
As an aftermath of the mission of the Legazpi City Police Department to serve on Christmas day in 1970 a search
warrant on Francisco Bello who was allegedly training a private army, patrolmen Daniel Pinto, Jr. and Narciso
Buenaflor, Jr. were found guilty beyond reasonable doubt by the then Circuit Criminal Court in said city, of killing
not only Bello but also 9-year-old Richard Tiongson and Rosalio Andes and seriously wounding Maria Theresa
Tiongson. The dispositive portion of the decision of June 13, 1974. 1 reads:
WHEREFORE, the Court finds the accused Narciso Buenaflor, Jr. and Daniel Pinto, Jr. GUILTY beyond reasonable
doubt of crime of:
(a)
MURDER in CCC-X-288-Albay, and hereby sentences each of them to suffer imprisonment for the rest of
their lives (Reclusion Perpetua); to indemnify the heir of Rosalie Andes in the amount of Twenty-five Thousand
(P25,000.00) Pesos, jointly and severally; and to pay the costs;
(b)
MURDER in CCC-X-289-Albay, and hereby sentences each of them to suffer imprisonment for the rest of
their lives (Reclusion Perpetua); to indemnify the heirs of Francisco Bello in the amount of Twenty-five Thousand
(P25,000.00) Pesos, jointly and severally; and to pay the costs;
(c)
MURDER in CCC-X-298-Legazpi City, and hereby sentences each of them to suffer imprisonment for the
rest of their lives (Reclusion Perpetua); to indemnify the heirs of Richard Tiongson in the amount of Twenty-five
Thousand (P25,000.00) Pesos, jointly and severally; and to pay the costs;
(d)
FRUSTRATED MURDER in CCC-X-299 Legazpi City, and hereby sentences each of them to imprisonment of
from Six (6) Years and One (1) Day of Prision Mayor as Minimum, to Twelve (12) Years and One (1) Day of
Reclusion Temporal as Maximum; to indemnify the victim, Maria Theresa Tiongson, in the amount of Eight
Thousand (P8,000.00) Pesos, jointly and severally; and to pay the costs.
In addition to the foregoing the accused are sentenced to suffer perpetual disqualification from public office.
According to the prosecution, on December 25, 1970, the Legazpi City Police secured from the City Court of
Legazpi a warrant for the search of the house and premises of Francisco Bello in Mariawa, Legazpi City on the
ground that the police had probable cause to believe that Bello illegally possessed a garand rifle, a thompson
submachinegun and two automatic pistols. 2 The police had earlier undertaken a surveillance of Bello on the basis
of information it had received that he was conducting an "obstacle course" or training men for combat since
October, 1970. 3

Upon receipt of the search warrant, the Chief of Police, Dr. Solomon Adornado, 4 called his officers to a
"confidential conference" at the residence of Mayor Gregorio Imperial. Present at the said conference were the
mayor, his secretary, and the officers of the patrol division, secret service and the administration of the city
police. The Chief of Police was assisted by Major Alfredo Molo, head of the intelligence division of the city police, in
briefing the group on how to serve the search warrant and to arrest Bello as the latter had been identified as the
one who shot Salustiano Botin the night before. At the time of the briefing, no warrant of arrest had yet been
issued against Bello. 5
The policemen were divided into three teams and around five members of the Philippine Constabulary (PC) who
were also present were assigned to the different teams. 6 Team 3 was placed under the charge of Sgt. Salvador de
la Paz with a policeman named Luna and appellants Buenaflor and Pinto as members. Wilfredo Romero was the PC
member assigned to the team. 7 Except for Romero and Pinto who were each armed with a carbine, the
policemen of Team 3 each carried a .38 caliber pistol. 8
Loaded in four vehicles, the three teams proceeded from the residence of the Mayor to barrio Homapon arriving
there at around seven o'clock in the evening. The four vehicles met at the junction of Homapon and the road to
Mariawa. They had decided to ride on the way to Mariawa when one of the jeeps bogged down because of the
muddy road. Hence, the three teams had to walk in single file on the right side of the road with the teams had to
walk in single file on the right side of the road with the teams maintaining a distance o around ten meters
between them. 9
Suddenly, Romero noticed the members of his team running. He ran with them and then he heard someone shout,
"Pondo!" (stop). The shout was followed by a shot and then a burst of gunfire. The team had by then deployed to
the right side of the road. When Romero checked the men by shouting the agreed password of "bayawas" for
which the person challenged answered "santol", 10 he found that Buenaflor was 5 meters in front of him "at the
bank of the road", Pinto was two meters to the right of Buenaflor, Sgt. de la Paz was two meters to his (Romero's)
right, Luna who was holding a walkie-talkie was to his left and another policeman was in front of Luna. 11 When
Romero heard the gunburst, he saw "flashes of fire" "just in front" of him or from the place where Buenaflor was.
12
The area where the team deployed was lower in elevation than the road but Romero heard the rumbling of a jeep
going towards the direction of Homapon when he heard the burst of gunfire and saw the flashes of fire from the
direction of Buenaflor. 13
On the jeep which passed by the deployed policemen were Fr. Felix Cappellan, Mrs. Zenaida Stilianopolous
Tiongson, her six children and the driver. They had just come from a lechonada party in the hacienda in Mariawa
of Mrs. Purificacion Napal Anduiza, the mother of Francisco Bello. Fr. Capellan had celebrated mass to
commemorate the death anniversary of Mrs. Anduiza's father. When Fr. Capellan decided to go back to his parish,
the Anduiza's offered their jeep for his transportation. 14 Seated on the front seat of the "McArthur type" jeep
which had only a canvass top but no cover on the sides and back, 15 were the driver, Mrs. Tiongson with a child
on her lap and Fr. Capellan. 16 Richard Tiongson was seated on the steel seat behind the driver while his sister
Maria Theresa was beside him. 17 The three other children were also seated at the back.
After crossing the creek on their way to Homapon and as the driver "changed to high gear with a dual", 18 Mrs.
Tiongson saw blinking lights some 300 yards ahead. 19 Fearing that there might be "people with bad intentions"
or hold-uppers, Fr. Capellan told the driver to go faster. 20 Then Fr. Capellan heard one shot and after a few
seconds and around 50 meters ahead, there was rapid firing with some of the bullets hitting the jeep. 21
According to Mrs. Tiongson, the widow of Col. Angel Tiongson of the PC, the rapid firing sounded "automatic". 22
The firing came from the left rear side of the jeep. 23
Before they were fired upon, Maria Theresa saw a man lying flat on his stomach while holding a gun on the left
side of the road just ahead of the jeep. 24 Through the light of the jeep, Maria Theresa noticed that the man was
wearing a jacket and a hat and he was on the shoulder of the road. 25 After passing the man, the rapid firing
ensued. Richard said "ugh" and fell on the floor of the jeep. Maria Theresa was about to hold Richard when she
felt herself hit at the buttocks. Then they all screamed. 26
The jeep continued its fast uphill climb until it reached a level area and almost fell into a ditch were it not for a
clump of banana plants. The jeep came to a full stop. Fr. Capellan saw three men with flashlights but he could not
distinguish their faces as it was dark and their flashlights were focused on the ground. 27 Mrs. Tiongson saw a PC
jeep and some cars and, believing that one of the cars was that of the Mayor, she called Tia Citang, the mother of
the mayor, at the same time identifying herself. 28 She must have managed to take Richard from the jeep and
was cuddling him on the ground near the left rear end of the jeep when she requested Fr. Capellan to administer
extreme unction on Richard. As Fr. Capellan had no holy oil, he gave the boy absolution. 29

Even after Mrs. Tiongson had identified herself as the widow of Col. Tiongson to the men around, nobody listened
to her appeal for help. When she approached Chief of Police Adornado, she hit him and asked him why they shot
her and her companions. The Chief of Police replied that the shooting was no longer his fault because Mrs.
Tiongson and her companions did not stop when told to do so. She requested the Chief of Police for a car in which
to take Richard to the hospital or for a driver and even for a walkie-talkie so she could talk to Mayor Imperial but
the Chief of Police did not heed her pleas. 30 (TSN, February 9, 1972, pp. 17-22).
A few minutes later, a jeep driven by Fernando Anduiza arrived. Mrs. Tiongson and her children boarded the jeep.
At the intersection of the road to Legazpi City proper and the road to Mariawa, the area was brightly lighted and
armed men ordered them to put their hands up. They were told to alight from the jeep to be searched but Mrs.
Tiongson begged the lieutenant manning the area to let them pass so they could bring her two children to the
hospital. 31
Richard and Maria Theresa were brought to the Sacred Heart Clinic in Legazpi City. Thirteen-year-old Maria
Theresa was treated for a gunshot wound at the "right upper quadrant of the right buttocks." 32 Her pelvis and
abdomen were x-rayed. One of the x-ray plates 33 revealed an oval spot indicating a foreign body in Maria
Theresa's pelvis. The attending physician decided not to extract the foreign body as Maria Theresa was not a
"very good surgical risk".34 The hospital charged P282.90 for Theresa's hospitalization. 35 She was later brought
by an army plane to the PC Station Hospital in Camp Crame, Quezon City for further treatment and hospitalization
36 but the foreign body was never removed from her pelvic area.
Richard sustained a gunshot wound at the back about the level of the 5th lumbar vertebrae. The bullet travelled
obliquely to the left kidney, the lesser sac, the liver and the right auricle.37 Richard was operated at the hospital
but he died at 8:45 the following morning due to massive hemorrhage caused by the gunshot wound. 38 When he
was autopsied, a lead slug was found embedded in his heart.39 His mother paid P862.35 40 for his hospitalization
and was charged P200 by the church. Mayor Imperial paid P500 to Funeraria Oro for Richard's burial.41
Meanwhile, according to Chief of Police Adornado, after the shooting incident involving the Tiongsons, the police
pursued their mission to serve the search warrant on Bello. When they reached Bello's residence in Mariawa, they
were met by a "volley of fire." Suddenly, the house was lighted and a certain Escober met him. Although Bello and
his parents, Mr. and Mrs. Anduiza, were not around, the police searched the area and found a Japanese Springfield
rifle, ammunition of a garand rifle, ammunition of a carbine, live ammunition for a .38 caliber pistol and 380
bullets for an automatic pistol. 42 Thereafter, the Chief of Police declared the search terminated and the entire
searching party left for headquarters. 43 The following day, he issued Special Order No. 24 which states:
December 26, 1970
To All Concerned:
The following men mentioned below are hereby assigned at Homapon until their mission is accomplished,
effective as of today, December 26, 1970:
1

Sgt. Salvador de la Paz, In-charge

2.

Pfc. Carlos Barbin, member

3.

Pat. Eduardo Arcinue, member

4.

Pat. Juan Luna, member

5.

Pat. Daniel Pinto, member

6.

Pat. Celedonio Abordo, member

7.

Pat. Narciso Buenaflor, member

Report progress of mission any time of day through the radio system. For strict compliance.
(Sgd.)
SOLOMON B. ADORNADO
Chief of Police
Copy furnished: The Honorable City Mayor, The Patrol Command, LCPD, the OIC and file .44

The mission was to keep peace and order in the specified place and to determine the whereabouts of Bello.45 It
was not necessary to specify the mission in the order itself because the Chief of Police "had a close understanding
with the squad that went to Homapon". 46 For a "convenient tactical deployment," Sgt. De la Paz further divided
Team 3 into three groups with patrolmen Buenaflor and Pinto composing Group II. 47
At noontime of December 26, 1970, Francisco Bello, more popularly known as Paquito, arrived at the residence of
Inocencia Malbas in sitio Ando, Talahib, Daraga, Albay. He was with Inocencia's brother, Francisco Andes,
Francisco's son Ananias, and Leoncio Mostoles. Rosalio, another son of Francisco, also arrived with the group. 48
Bello requested Inocencia and her husband that he and his group be allowed to spend the night in Inocencia's
house. 49
Inocencia woke up at around 5:00 o'clock in the morning of December 27, 1970. At the sala, on her way from her
room to the kitchen, she saw Bello sleeping alone. From the kitchen, Inocencia went to the balcony through the
sala. On her way back to the kitchen, she noticed that Bello, who was wearing a red shirt and an underwear, had
awakened. Bello opened the window, spat out and went to the balcony. He reentered the sala and saying that it
was cold, Bello put on his clothes and pants. He also wore his jacket. He went back to the balcony and asked for
water. Inocencia's husband gave Bello a glass of water. After gurgling, Bello placed the glass on the window sill
and ask Inocencia's husband for a cup of coffee.50
Inocencia's husband was about to offer Bello a cup of coffee when she heard a successive burst of gunfire. Bello,
who was the balcony facing the copra kiln ("agonan") with his back towards the pili tree, gradually fell to the floor
with his hands above his head. Then there was another burst of gunfire. From the kitchen, Inocencia rushed to the
door from where she saw a man holding a long firearm, whom she later identified as Pinto, near the pili tree which
was around eight meters from where Bello was, and another man, also holding a gun, crouching near the stairs.
51
Inocencia, with her two-year-old child in her arms, 52 was about to rush to Bello when her husband pulled her. Just
then a man, whom Inocencia identified as Buenaflor, came up the house, pointed a gun at Inocencia and her
husband and told them to lay flat on the floor. The man asked them where the gun was. Inocencia told him that
there was no gun in the house but then, when she looked around, she saw a long firearm with its muzzle pointed
upward leaning against the wall near the door around two meters from where Bello laid flat on his back. Bello
himself had a gun but it was in its holster tucked on his waist. 53 It was Buenaflor who took both the long firearm
and the gun in Bello's holster.54
When Francisco Andes went up the house, he told Inocencia that Rosalio was dead. 55 Inocencia went near the pili
tree where Rosalio's body was, knelt down and asked the man with a long firearm why he killed Rosalio. The man
answered that Rosalio fought back. However, Inocencia did not notice any weapon near Rosalio's body. 56
Bello's hands and feet were tied together and a bamboo pole was inserted between them so that two men, one of
them being Francisco Andes, could carry the cadaver. 57 Bello died because of "shock secondary to massive
hemorrhage due to multiple gunshot wounds". 58 A former pilot and 28 years old at the time of his death, Bello
sustained a gunshot wound at the left temple, an inch above the highest point of the pinna of the left ear. The
bullet which entered his head through the squamous temporal bone travelled towards the occipital region down to
the floor of the left middle cranial fosa until it reached the base of the tongue.
Bello had three gunshot wounds on his chest. One bullet entered the superior part of the right scapular area about
the level of the third thoracic vertebrae. The bullet travelled to the right inna in a slightly upward direction making
its exit at the lateral part of the right supraclavicular fossa above the clavicle. The second gunshot wound was at
the left side interscapular area. The bullet travelled upwards and to the right fracturing the 7th rib, entered the
lower lobe of the left lung, punctured the pulmonary conus, went through the junction of the right auricular
appendage and the right auricle, the anteromedial side of the pericardium, grazed the medial surface of the
middle lobe of the right lung and exited at the right side of the chest. The third gunshot wound was below the
right nipple. The bullet went to the chest cavity, the lower lobe of the right lung, the dome of the diaphragm, the
right lobe of the liver, the 8th thoracic vertebrae and exited at the left of the midline at the inferior interscapular
area. 59
While Bellos corpse was being autopsied, a slug fell from his jacket. A bullet jacket and lead fragments were found
at the base of his skull and a slug was extracted from the floor of his mouth. 60
Rosalio Andes, 23 years old, also died of shock due to multiple gunshot wounds. A bullet entered his right
temporal area, macerated the brain, fractured both parietal bones and exited at the left parietal bone. Another
bullet entered the left scapular area below the level of the 6th rib, travelled to the dome of the left diaphragm, the
left lobe of the liver, the pancreas, the small intestines, and the perineum below the ramus of the right pubis. The

slug was found at the gluteoperineal junction about 2 inches below the tip of the coccys and 2 1/2 inches above
the gluteal line. A third bullet entered the left knee and exited at the medial side of the leg. 61
The slugs and parts of bullets which were extracted from the bodies of the victims were turned over to the
National Bureau of Investigation (NBI) on December 29, 1970 by Fiscal Aquilino Bonto for safekeeping purposes.
62 The empty shells and slugs which both the PC and the Legazpi City police found in Talahib were also turned
over to the NBI 63 in the same manner that the four empty carbine shells 64 found by the PC near the coconut
tree a meter from the shoulder of the road to Mariawa were also turned over to the NBI. 65 Also submitted to the
NBI for ballistic examination were twelve Smith & Wesson caliber .38 revolvers, two Smith & Wesson "paltik"
caliber .22, four Tell caliber revolvers, one Bosque automatic pistol caliber .380, four carbine Inland rifles caliber .
30, three US Springfield rifles caliber.30, one Thompson submachine gun caliber .45 and one Colt automatic pistol
caliber.45. 66
Defendants Pinto and Buenaflor both denied having fired at the jeep bearing the Tiongson family.67 Pinto, who
admitted carrying a caliber .30 carbine during the incident, 68 testified that the shooting occurred because the
Tiongsons' jeep "was going towards" them. 69
According to Pinto, when they reached Mariawa, it was he who fired one shot in the air. 70 After the search had
been conducted in Bello's premises, Team 3 was instrued by a "superior officer" "to remain and maintain peace
and order in (the) vicinity including Mariawa". 71 While he and Buenaflor were patrolling the area, at around
midnight, they "chanced upon a house" wherein Bello and his group were staying. They captured four of Bello's
bodyguards and tied them to a pili tree with the torn shirt of one of the captives.72
At daybreak, Pinto saw Bello smoking at the porch. Buenaflor, who was behind him, called Bello. Then a single
shot coming from the house rang out. It was answered by a burst of fire which Pinto "presumed" came from
Buenaflor. By reflex action, Pinto transferred from the pili tree to a nearby coconut tree. But before he reached the
coconut tree, he saw a man with a bolo in his hand running towards him. As the man was menacingly near him,
Pinto shot him. 73
After a lull in the firing, he went up the house to look for Bello's other companions. He saw the body of Bello on
the porch and "near" it was a garand which he took. He also got Bello's short firearm "from a holster." He turned
over both the garand and the short firearm to Buenaflor. One of the captured persons kicked Bello's body saying
that if not for Bello, his son would not have been killed. Thereafter, the two dead persons were carried by the
captured bodyguards to Mariawa. 74
In Mariawa, Pinto contacted (through the radio) police outpost No. 5 in Banquerohan and two jeeps arrived. When
they reached the junction in Homapon, Major Molo, who was with Fiscal Benito Se, told Pinto to go back with him
to Talahib. Although Pinto warned Major Molo that it would be dangerous to go back because one of Bello's men
had escaped, they nevertheless proceeded to Talahib. With three other policemen, they arrived there between
eight and nine in the morning where they were instructed to "look for evidence specifically . . . for a thompson."
He found in the porch two shells and the others found a hat and a flashlight. Thereafter, they returned to Mariawa
and later, to Legazpi City proper. 75
On cross-examination, Pinto stated that he did not know that they found Bello in an area which was beyond the
jurisdiction of Legazpi City. He admitted that while they were instructed patrol the area, they were also told to
effect the arrest of Bello even if no complaint had been lodged against him. 76 According to Pinto, of the fifteen
bullets in the magazine of his carbine, only two remained. He fired "most" of the thirteen shots during the "Bello
incident". 77
Pinto shot the man later identified as Rosalio Andes when he was at a distance of around three meters. Rosalio
was "face to face" with him when Pinto shot him. As Rosalio did not fall from the first shot, Pinto continued
shooting him. 78 When he went up the porch he saw the garand "lying on the floor" but the gun tucked on Bello's
waist was still in its holster. 79
On the Tiongson incident, Pinto asserted that he did not fire his
carbine. 80 When he saw the headlight of the Tiongsons' jeep, he also saw a flashlight being waved. A little later,
he heard a shout ordering the jeep to stop. Then he heard one shot and immediately after, the volley of fire as the
jeep was going towards his direction. As it passed by him, he heard the jeep's passengers shriek. 81
For his part, Buenaflor declared that during the mission to serve the search warrant on Bello, he carried the ".38
caliber revolver Tel." (sic) which had been issued to him by the Legazpi City Police Department. He did not fire his
gun at the Tiongsons and, "as a matter of fact," he surrendered his firearm for ballistic examination. 82 In the
afternoon of December 26, however, Major Molo issued him a Thompson submachinegun. 83

While patrolling Homapon, he and Pinto "chanced upon" some persons who told them that they could guide them
to where Bello was. At the place which they later found to be Talahib, they went near a pili tree from where they
saw a house "below." Then he saw a man who turned out to be Mostoles. Buenaflor apprehended Mostoles
because the latter was Bello's bodyguard and he had a .22 caliber firearm with him. He came by another man with
a bolo, named "Banteque" and apprehended him also. Then, from behind the pili tree, Pinto appeared with yet
another man. They waited for a while until another man, who turned out to be Francisco Andes, came within four
meters of him. Buenaflor pointed his submachinegun at him so Andes approached him. Buenaflor confiscated
Andes' .22 caliber firearm. 84
From the group, Buenaflor learned that Bello provided them with firearms and that Bello himself had a pistol
tucked in his holster as well as a garand. He and Pinto then tied the men to the pili tree. Later, he saw a person in
the balcony of the house below and Buenaflor shouted twice: "Paquito, mag-surrender ka!" Then Buenaflor heard
a "a shot coming from the direction of the balcony followed by successive shots." He sought cover behind the pili
tree and, while in a crouching position, fired his submachinegun towards the balcony. Pinto was then behind him.
As Pinto shifted his position while firing his carbine, Buenaflor went down to the "elevated portion going down to
the nipa shack" until he was near the coconut tree. There he found a person lying with his face down. He later
found out that the person was the son of Francisco Andes. 85
After the firing had stopped, Pinto told him that Bello was dead. Pinto then went up the house. Buenaflor went
back to the pili tree, untied the four persons they had captured, and told them to do something so they could
carry the bodies of Bello and (Rosalio) Andes. 86
Like Pinto, on cross-examination, Buenaflor also asserted that he did not fire his gun at the jeep carrying the
Tiongsons. 87 While admitting that the person who led them to Bello had told them that the latter was in Talahib,
Buenaflor did not know that Talahib was a barrio of Daraga, Albay and not of Legazpi City.88 He reiterated that he
shouted at Bello urging him to surrender 89 but he was not able to fire a warning shot or identify himself as a
member of the police force "because after the second shot there was already a burst of gunfire".90
Buenaflor affirmed that the first shot emanating from the balcony of the house in Talalib which was around fifteen
meters from the pili tree, came from a "high caliber firearm". 91 After they had found out that Bello was dead,
Pinto went up the house. Later, Pinto gave him Bello's 380 automatic pistol and garand. 92 Although he looked at
those firearms, he did not determine whether they had been fired. 93 He noticed, however, that the magazine of
the garand was "intact". 94 Aside from Bello's firearms, Buenaflor and Pinto confiscated two .22 caliber revolvers
and two bolos found on Bello's bodyguards. 95
Buenaflor stated that his Thompson submachinegun had two clips with each clip containing 30 bullets. When he
gave back the firearm to Major Molo, only four bullets were left of the one clip he had used. 96 He remembered
having squeezed twice the trigger of his Thompson submachinegun or automatic rifle in Talahib.97 His service
revolver was still with him then. 98
As a result of this series of events, four separate informations were filed against Pinto and Buenaflor. The
information charging Pinto and Buenaflor for the murder of Andes which was filed on July 26, 1971 reads:
That on or about the 27th day of December, 1970, in sitio Ando, Barrio Talahib, Daraga, Albay and within the
jurisdiction of this Honorable Court the accused, conspiring and confederating together and mutually helping one
another, without any justifiable cause or motive, with intent to kill, did, then and there, willfully, unlawfully and
feloniously, with treachery and evident premeditation, accused Pat. Narciso Buenaflor, Jr. and Pat. Daniel Pinto, Jr.,
and by means of a Cal. 45 Thompson Sub-Machine Gun, SN-213436 and a US Carbin Inland, Cal. 30, SN-5099407,
owned respectively by said accused, shoot one Rosalio Andes, inflicting upon him gunshot wounds as described in
the attached Autopsy Report marked as Annex "A" and being made an integral part of this Information, thereby
causing upon said Rosalio Andes serious and mortal wounds which led to his instantaneous death.
Contrary to law.
The information charging Pinto and Buenaflor with having murdered Bello contains basically the same allegations
as the above and it was filed on the same date. On August 24, 1971 two other informations were filed against
Pinto and Buenaflor: one for the murder of Richard Tiongson and another for the frustrated murder of Maria
Theresa Tiongson. On arraignment, Pinto and Buenaflor both pleaded not guilty to all the charges.
After trial, the trial court rendered the aforementioned judgment of conviction. For the killing of Bello and Andes,
the trial court appreciated evident premeditation as a qualifying circilmstance and treachery, nighttime and use of
public position as aggravating circumstances. For the incident involving the Tiongson children, it considered the
crimes as qualified by treachery and aggravated by the use of public position.

Pinto and Buenaflor instituted the instant appeal praying for exoneration mainly on the basis of their claim that
the killings were perpetrated in the course of the performance of their official duties as peace officers in
obedience to the lawful order of their superiors.
In order that the justifying circumstance of fulfillment of a duty under Article 11 of the Revised Penal Code may be
successfully invoked, the defense has to prove that these two requisites are present: (a) the offender acted in the
performance of a duty and (b) the injury or offense committed be the necessary consequence of the due
performance or lawful exercise of such duty. In the absence of the second requisite, the justification becomes an
incomplete one thereby converting it into a mitigating circumstance under Articles 13 and 69 of the same Code.
99
Admittedly, the appellants and the rest of the police force involved, originally set out to perform a legal duty: the
service of a search warrant on Bello. In the process, however, appellants abused their authority resulting in
unauthorized and unlawful moves and consequences. Armed with only a search warrant and the oral order to
apprehend Bello, they went beyond the ambit of their mission and deprived Bello and two other persons of their
lives.
While the defense presented proofs that Bello had a string of record in the police blotter for misdeeds ranging
from taking the harvest of their hacienda without the permission of his parents to assaulting his stepfather, and
that he was "dangerous while under the influence of liquor", 100 there was no proof that he had been convicted of
any offense or that he was a dangerous fugitive from justice which would warrant a "shoot to-kill" order from
police authorities. Proof of bad moral character of the victim only establishes a probability that he committed a
crime but it certainly cannot be the reason for annihilating him nor may it prevail over facts proven showing that
the same victim had been cold-bloodedly killed. 101 As such, the suspicion that Bello was maintaining a private
army was not a sufficient justification for his being rubbed out without due process of law.
The police theory that Bello authored the shooting of one Salustiano Botin on Christmas eve is neither a
justification for his arrest without a warrant. It should be observed that while the police had obtained a search
warrant for illegal possession of firearms against Bello even on Christmas day which was supposed to be a
holiday, no such effort was made in securing warrant of arrest for Bello's alleged frustrated killing of Botin. The
improbability of the defense evidence through the testimony of Botin himself that Bello had shot him in the
evening of December 24, 1970 is bolstered by the same testimony showing that while he was shot by Bello in the
presence of the police force who were converging at the junction of Homapon and Mariawa, the same law
enforcers were unable to arrest Bello. Besides the fact that no other eyewitness corroborated Botin's testimony
even in the face of his own admission that Bello had no reason to shoot him, no complaint was ever lodged
against Bello for the alleged shooting. 102
On the other hand, the prosecution, through eyewitness Rogelio Escober, tried to establish that during said
shooting incident the police were looking for Bello at the store of a certain Serrano. 103 Unable to find Bello, the
police, specifically Pinto, mauled Escober while asking him to testify against Bello for allegedly shooting Botin. 104
The police had focused their vehicles' headlights near the bodega of ex-Mayor Los Baos in their effort to flush out
Bello who, unknown to the police, had earlier left the vicinity. It was when the police fired at the said bodega that
Botin must have been accidentally shot. 105 This story was uncorroborated but if true, would show the police's
dangerous propensity for using otherwise official operations in an unlawful manner.
A propensity for rash judgment was likewise amply shown at the incident involving the Tiongson children. Since
the jeep coming towards them was owned by the Anduizas, the appellants acted obviously in the belief that Bello
was its passenger and posthaste they fired upon it even without any inquiry as to the identity of its passengers.
106 Granting that the police indeed fired a warning shot, sound discretion and restraint dictated that, there being
no responding shots from its passengers after the alleged warning shot and considering the condition of the road
which was not only muddy but uphill, instead of directing aimless gunburst at the jeep, the most that they could
have done was to render the jeep immobile by shooting its tires. That way, they could have verified the identity of
the passengers. As it were, they riddled the jeep with bullets injuring in the process innocent passengers who
were completely unaware of what they were up against.
Appellants' stark denial of firing their guns upon the Tiongson family falls flat in the face of various circumstantial
evidence which point to their culpability. There is the unflinching testimony of Sgt. Romero that he saw "flashes of
fire" from the direction of Buenaflor as the jeep bearing the Tiongsons passed by. Said testimony was corroborated
by that of Rafael Jacob, the PC member of team 2, that while no one in his team fired his gun, the "sporadic firing"
came from team 3 after the first of fire which occurred while the jeep was "abreast of team 2". 107 Even defense
witness Mariano Rico, a policeman who led team 1, was "sure" that he heard gunshots at the moment when "the
jeep had just passed team 2". 108

Then there are the four empty .30 caliber carbine shells which were found near the coconut tree where, according
to Romero, Pinto was deployed. While he himself carried a carbine, Romero did not fire it and his testimony was
never contradicted. The four empty shells were compared with the test shells which were fired from the US
carbine, caliber .30 Inland Division, SN-5099407, which, according to the aforequoted information charging
appellant with having killed Andes, was used by Pinto, they were found to have "significant similar individual
characteristics". 109
While it is true that the ballistic report reveals that the lead bullet taken from the body of Richard was fired from a
Smith & Wesson type firearm 110 and Buenaflor was proven to be carrying a .38 caliber Tell revolver, the findings
of expert witnesses or, in this case, the ballistic report pointing to another kind of caliber .38 weapon as the
source of Richard's wound only serves as a guide for the courts after considering all the facts of the case.111 The
undisputed fact is that Buenaflor was specifically pointed by Romero as the one who fired his firearm as the
Anduiza jeep bearing the Tiongsons passed by. Inasmuch as no evidence that Romero would prevaricate to pin
responsibility on Buenaflor was ever presented, there is, therefore, no reason to discredit his testimony. 112
In addition to all these, Buenaflor's motive for wanting to do away with Bello has been established. Such motive
provided a circumstantial evidence leading to the inference that indeed he fired his gun. 113 According to the
unrebutted testimony of Rogelio Escober, an overseer of the Napal hacienda and constant companion of Bello, on
November 1, 1970, Buenaflor and another policeman named Santos Urbana, Jr. borrowed Bello's jeep on the
pretext that they needed it to transfer Moscoso, the suspect in the Perez killing, to the Albay Police Headquarters.
When it was returned, the jeep had bloodstains. Bello and Escober later learned from a PC officer that the jeep
had been used in dumping in Guinobatan the body of Moscoso. Confronted by the PC officer, Bello admitted that
the jeep was borrowed by Buenaflor and Urbina and agreed to execute a sworn statement on the matter.
Consequently, the PC authorities notified Mayor Imperial of the solution of the Moscoso killing.
Three days later, Escober and Bello met Urbina who warned Bello, "Kit, if you want to give your statement, just
say that I borrowed your jeep for thirty minutes. This is a brotherly advice because something might happen to
you." Bello retorted that he would do what was right and that was to tell the truth. Urbina said that it was up to
Bello but he repeated that he was giving Bello a brotherly warning that something might happen to him 114 (TSN,
August 23, 1973, pp. 4-20). These facts were of course denied by Buenaflor. However, as between the positive
declaration of a prosecution witness and the negative denial of the accused, the former deserves more credence.
115
All these pieces of circumstantial evidence point to no other inference than that Pinto and Buenaflor fired their
guns in defiance of their superior officer's order only "to find the whereabouts" of Bello 116 and to desist from
using their weapons "without clearance from the Chief of Police". 117 Since there is more than one circumstance
and the facts from which the inferences are derived are proven, the combination of all the circumstances is such
as to produce a conviction beyond reasonable doubt. 118
The fact that the victims were different from the ones the appellants intended to injure cannot save them from
conviction. Aberratio ictus or mistake in the identity of the victim carries the same gravity as when the accused
zeroes in on his intended victim. The main reason behind this conclusion is the fact that the accused had acted
with such a disregard for the life of the victim(s) without checking carefully the latter's identity as to place
himself on the same legal plane as one who kills another willfully, unlawfully and feloniously. 119 Neither may the
fact that the accused made a mistake in killing one man instead of another be considered a mitigating
circumstance. 120
It is not even necessary to pinpoint who between Pinto and Buenaflor actually caused the death of Richard or the
wounding of Maria Theresa in the presence of proof beyond reasonable doubt that they acted in conspiracy with
each other. 121 Prior agreement between the appellants to lull their intended victim is not essential to prove
conspiracy as the same may be inferred from their own acts showing joint purpose and design. 122 In this case,
such unity of purpose and design is shown by the fact that only the two of them fired their guns when the Anduiza
jeep with the Tiongsons passed by. This they did in defiance of the order of their superior not to shoot unless
ordered to do so. Conspiracy having been proved, the guilt or culpability is imposable on both appellants in equal
degrees. 123
The same conspiracy was evident in the killing of Bello and Andes. The appellants' concerted action was shown by
the manner by which they killed the two. In this incident, however, they invoke self-defense as a justifying
circumstance. Evidence at hand, however, do not favor their claim.
Under Article 11 (1) of the Rules of Court, an accused must prove the presence of all the following elements of
said exempting circumstance: (a) unlawful aggression, (b) reasonable necessity of the means employed to
prevent or repel it, and (c) lack of sufficient provocation on the part of the person defending himself. 124 The

presence of unlawful aggression is a condition sine qua non. There can be no self-defense, complete or
incomplete, unless
the victim has committed an unlawful aggression on the person defending himself. 125
In this case, Buenaflor insists that he fired at Bello because, after calling out to him to surrender, his shout was
answered by a gunshot. Pinto corroborates his story but the principal prosecution eyewitness in this incident,
Inocencia Malbas, swears that she heard no such shout to surrender nor a gunshot from Bello's direction before
Bello was fired upon by the appellants. Physical evidence as well as the testimonies of Buenaflor himself and Pinto
show that Inocencia, and not the appellants, was telling the truth.
Rafael Seora, the NBI agent who went to Talahib and the road to Mariawa to investigate as well as to take
pictures, found no bullet marks at the crime scene which would pertain to a .22 caliber "paltik" firearm which
Bello's men allegedly used. 126 As no other "paltik" firearms were recovered from the crime scene other than the
two which Buenaflor confiscated from Mostoles and Francisco Andes, the possibility of said firearms or one of its
kind having been used by Bello's men against the appellant particularly the one who escaped is nil.
Buenaflor claimed that the shot after his call to Bello belonged to a high-powered gun 127 obviously referring to
the firearms recovered from Bello himself. According to Buenaflor however, when he found the rifle, its magazine
was "intact" and he did not manipulate the rifle to know how many of its bullets had been used. 128 Moreover, if
Bello indeed fired a gun, it must be the firearm in his holster and not the garand which was found a couple of
meters from where Bello had fallen. That Bello did not fire any of his two firearms is buttressed by Pinto's own
testimony that Bello was smoking with his back towards them when he was shot at and that at that moment, he
did not see Bello holding a gun. 129 We cannot help, therefore, but conclude that the defense claim that
Buenaflor's call to Bello was answered by a gunshot is but a figment of their imagination designed for their own
exoneration.
Appellants' claim of unlawful aggression on the part of Bello or his men would have been clarified had any of
Bello's men whom they had captured been presented in court. These men, Leoncio Mostoles, Francisco Andes,
Domingo Bantique and Ananias Andes had executed statements before the Legazpi City police to the effect that
they heard Buenaflor's call for Bello to surrender and that Bello fired his gun at the appellants. However, all four of
them later executed statements before the NBI retracting said earlier statements in view of the fact that the
police had threatened them to make the statements favorable to the appellants. 130
As regards the unlawful aggression of Rosalio Andes against Pinto, we find that if we are to believe Pinto, we have
to stamp full credibility on his statement alone. Even Buenaflor admitted that he did not see Rosalio Andes attack
Pinto. 131 Inocencia swore that she did not see any weapon near the fallen Rosalio. Indeed, if the aggression did
occur, Pinto would not have lost time in presenting in court the bolo which Andes threatened to use on him. But
granting that Rosalio had a bolo, Pinto was not justified in inflicting the wounds sustained by Rosalio because a
mere threatening attitude of the victim will not constitute unlawful aggression. 132 Moreover, Pinto's testimony
that Rosalio menacingly approached him with a bolo after Buenaflor had released a sunburst directed at the
house where Bello was, is contrary to human behavior if not totally ridiculous. On the contrary, by his own
admission, Pinto continued firing until he saw Rosalio fell.
An accused who admits inflicting fatal injury on his victim and invokes self-defense must rely on the strength of
his own evidence and not only on the weakness of that of the prosecution for, even if weak, the prosecution
evidence gains more credibility. 133 Unfortunately, in this case, inspire of the fact that the prosecution had only
one eyewitness to the killing of Bello and Andes, the appellants had not presented sufficiently strong evidence to
shore up their claim of self-defense.
We agree with the trial court that treachery attended the commission of all four crimes in this case. The killing of
Richard Tiongson, Francisco Bello and Rosalio Andes as well as the wounding of Maria Theresa Tiongson were all
so sudden that all of them were left defenseless. This is shown not only by the testimonial evidence on the
commission of the crimes but also by the nature and location of the wounds of all the victims. 134 The presence
of treachery qualifies the killings to murder and the wounding of Maria Theresa to frustrated murder. Nighttime,
however, may not be appreciated as there is no proof that it was specifically sought in the commission of the
crime and therefore we deem it absorbed by treachery.
Evident premeditation has not been proven beyond reasonable doubt in this case but we find that the appellants
indeed took advantage of their public position in perpetrating the crime. Under Article 248 of the Revised Penal
Code, murder is punishable by reclusion temporal in its maximum period to death. There being no mitigating
circumstance to temper the penalty and there being only the aggravating circumstance of taking advantage of
their public office under Article 14 (1) of the said Code, the proper penalty is death. 135 However, in view the
constitutional abolition of the death penalty, the penalty of reclusion perpetua shall be imposed on the appellants
for each of the three murders they committed.

For the wounding of Maria Theresa, the penalty imposable, applying Article 50 of the Revised Penal Code, is
prision mayor maximum to reclusion temporal medium. There being no reason to further lower the penalty by one
degree pursuant to the provision of Article 250, and there being one aggravating circumstance and no mitigating
circumstance, the penalty should be within the range of prision mayor maximum to reclusion temporal medium.
Applying the Indeterminate Sentence Law, 136 the proper penalty for the frustrated murder of Maria Theresa is
six (6) years of prision correccional maximum as minimum to ten (10) years and one (1) day of prision mayor
maximum as maximum. The indemnity of eight thousand pesos imposed by the lower court should be respected
considering that while there is evidence as to the actual amount she spent while confined at the Sacred Heart
Hospital in Legazpi City, there is no proof as to the expenses she incurred after she was transferred to the Camp
Crame Hospital in Quezon City.
As in all cases wherein peace officers are accused, this case creates a feeling of frustration in everyone. The
crimes committed here ought to have no place in this democratic and civilized society. True it is that a police
officer is sometimes left in a quandary when faced with a situation where a decisive but legal action is needed.
But, as this Court said in Calderon vs. People and Court of Appeals (96 Phil. 216, 225 [1954]), "(t)he judgment and
discretion of public officers, in the performance of their duties, must be exercised neither capriciously nor
oppressively, but within reasonable limits. In the absence of a clear and legal provision to the contrary, they must
act in conformity with the dictates of a sound discretion, and with the spirit and purpose of the law." Police officers
must always bear in mind that although they are dealing with criminal elements against whom society must be
protected, these criminals are also human beings with human rights. In the words of then Justice Moran in the
Oanis case (Supra):
It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life
which he has by such notoriety already forfeited. We may approve of this standard of official conduct where the
criminal offers resistance or does something which places his captors in danger of imminent attack. Otherwise, we
cannot see how, as in the present case, the mere fact of notoriety can make the life of a criminal a mere trifle in
the hands of officers of the law. Notoriety rightly supplies a basis for redoubled official alertness an vigilance; it
never can justify precipitate action at the cost of human life. Where, as here, the precipitate action of the
appellants has cost an innocent life and there exist no circumstances whatsoever warrant action of such character
in the mind of a reasonably prudent man, condemnationnot condonation should be the rule; otherwise we
would offer a premium to crime in the shelter of official actuation.
WHEREFORE, the decision of the lower court is hereby affirmed subject to the modifications that appellants shall
solidarily be liable for the amount of Fifty Thousand (P50,000) for each of the three murders they committed and,
for the frustrated murder of Maria Theresa Tiongson, each of them shall suffer the indeterminate penalty of from
six (6) years of prision correccional maximum as minimum to ten (10) years and one (1) day of prision mayor
maximum as maximum.
Inasmuch as appellant Daniel Pinto, Jr. had been a police officer for only five months 137 when the crimes were
committed, let a copy of this decision be furnished the Office of the President for whatever action may be proper
to temper his penalty. 138
SO ORDERED
G.R. No. L-47722

July 27, 1943

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.
Antonio Z. Oanis in his own behalf.
Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibaez and Assistant Attorney Torres for appellee.
MORAN, J.:
Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto Galanta, chief
of police of Cabanatuan and corporal of the Philippine Constabulary, respectively, were, after due trial, found
guilty by the lower court of homicide through reckless imprudence and were sentenced each to an indeterminate
penalty of from one year and six months to two years and two months of prison correccional and to indemnify
jointly and severally the heirs of the deceased in the amount of P1,000. Defendants appealed separately from this
judgment.

In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial Inspector at
Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor: "Information received
escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get him dead or alive." Captain Monsod
accordingly called for his first sergeant and asked that he be given four men. Defendant corporal Alberto Galanta,
and privates Nicomedes Oralo, Venancio Serna and D. Fernandez, upon order of their sergeant, reported at the
office of the Provincial Inspector where they were shown a copy of the above-quoted telegram and a newspaper
clipping containing a picture of Balagtas. They were instructed to arrest Balagtas and, if overpowered, to follow
the instruction contained in the telegram. The same instruction was given to the chief of police Oanis who was
likewise called by the Provincial Inspector. When the chief of police was asked whether he knew one Irene, a
bailarina, he answered that he knew one of loose morals of the same name. Upon request of the Provincial
Inspector, the chief of police tried to locate some of his men to guide the constabulary soldiers in ascertaining
Balagtas' whereabouts, and failing to see anyone of them he volunteered to go with the party. The Provincial
Inspector divided the party into two groups with defendants Oanis and Galanta, and private Fernandez taking the
route to Rizal street leading to the house where Irene was supposedly living. When this group arrived at Irene's
house, Oanis approached one Brigida Mallare, who was then stripping banana stalks, and asked her where Irene's
room was. Brigida indicated the place and upon further inquiry also said that Irene was sleeping with her
paramour. Brigida trembling, immediately returned to her own room which was very near that occupied by Irene
and her paramour. Defendants Oanis and Galanta then went to the room of Irene, and an seeing a man sleeping
with his back towards the door where they were, simultaneously or successively fired at him with their .32 and .45
caliber revolvers. Awakened by the gunshots, Irene saw her paramour already wounded, and looking at the door
where the shots came, she saw the defendants still firing at him. Shocked by the entire scene. Irene fainted; it
turned out later that the person shot and killed was not the notorious criminal Anselmo Balagtas but a peaceful
and innocent citizen named Serapio Tecson, Irene's paramour. The Provincial Inspector, informed of the killing,
repaired to the scene and when he asked as to who killed the deceased. Galanta, referring to himself and to
Oanis, answered: "We two, sir." The corpse was thereafter brought to the provincial hospital and upon autopsy by
Dr. Ricardo de Castro, multiple gunshot wounds inflicted by a .32 and a .45 caliber revolvers were found on
Tecson's body which caused his death.
These are the facts as found by the trial court and fully supported by the evidence, particularly by the testimony
of Irene Requinea. Appellants gave, however, a different version of the tragedy. According to Appellant Galanta,
when he and chief of police Oanis arrived at the house, the latter asked Brigida where Irene's room was. Brigida
indicated the place, and upon further inquiry as to the whereabouts of Anselmo Balagtas, she said that he too was
sleeping in the same room. Oanis went to the room thus indicated and upon opening the curtain covering the
door, he said: "If you are Balagtas, stand up." Tecson, the supposed Balagtas, and Irene woke up and as the
former was about to sit up in bed. Oanis fired at him. Wounded, Tecson leaned towards the door, and Oanis
receded and shouted: "That is Balagtas." Galanta then fired at Tecson.
On the other hand, Oanis testified that after he had opened the curtain covering the door and after having said, "if
you are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas, while the latter was still lying
on bed, and continued firing until he had exhausted his bullets: that it was only thereafter that he, Oanis, entered
the door and upon seeing the supposed Balagtas, who was then apparently watching and picking up something
from the floor, he fired at him.
The trial court refused to believe the appellants. Their testimonies are certainly incredible not only because they
are vitiated by a natural urge to exculpate themselves of the crime, but also because they are materially
contradictory. Oasis averred that be fired at Tecson when the latter was apparently watching somebody in an
attitudes of picking up something from the floor; on the other hand, Galanta testified that Oasis shot Tecson while
the latter was about to sit up in bed immediately after he was awakened by a noise. Galanta testified that he fired
at Tecson, the supposed Balagtas, when the latter was rushing at him. But Oanis assured that when Galanta shot
Tecson, the latter was still lying on bed. It is apparent from these contradictions that when each of the appellants
tries to exculpate himself of the crime charged, he is at once belied by the other; but their mutual incriminating
averments dovetail with and corroborate substantially, the testimony of Irene Requinea. It should be recalled that,
according to Requinea, Tecson was still sleeping in bed when he was shot to death by appellants. And this, to a
certain extent, is confirmed by both appellants themselves in their mutual recriminations. According, to Galanta,
Oanis shot Tecson when the latter was still in bed about to sit up just after he was awakened by a noise. And
Oanis assured that when Galanta shot Tecson, the latter was still lying in bed. Thus corroborated, and considering
that the trial court had the opportunity to observe her demeanor on the stand, we believe and so hold that no
error was committed in accepting her testimony and in rejecting the exculpatory pretensions of the two
appellants. Furthermore, a careful examination of Irene's testimony will show not only that her version of the
tragedy is not concocted but that it contains all indicia of veracity. In her cross-examination, even misleading
questions had been put which were unsuccessful, the witness having stuck to the truth in every detail of the
occurrence. Under these circumstances, we do not feel ourselves justified in disturbing the findings of fact made
by the trial court.

The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back towards the door,
Oanis and Galanta, on sight, fired at him simultaneously or successively, believing him to be Anselmo Balagtas
but without having made previously any reasonable inquiry as to his identity. And the question is whether or not
they may, upon such fact, be held responsible for the death thus caused to Tecson. It is contended that, as
appellants acted in innocent mistake of fact in the honest performance of their official duties, both of them
believing that Tecson was Balagtas, they incur no criminal liability. Sustaining this theory in part, the lower court
held and so declared them guilty of the crime of homicide through reckless imprudence. We are of the opinion,
however, that, under the circumstances of the case, the crime committed by appellants is murder through
specially mitigated by circumstances to be mentioned below.
In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the case of U.S. v.
Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only when the mistake is
committed without fault or carelessness. In the Ah Chong case, defendant therein after having gone to bed was
awakened by someone trying to open the door. He called out twice, "who is there," but received no answer.
Fearing that the intruder was a robber, he leaped from his bed and called out again., "If you enter the room I will
kill you." But at that precise moment, he was struck by a chair which had been placed against the door and
believing that he was then being attacked, he seized a kitchen knife and struck and fatally wounded the intruder
who turned out to be his room-mate. A common illustration of innocent mistake of fact is the case of a man who
was marked as a footpad at night and in a lonely road held up a friend in a spirit of mischief, and with leveled,
pistol demanded his money or life. He was killed by his friend under the mistaken belief that the attack was real,
that the pistol leveled at his head was loaded and that his life and property were in imminent danger at the hands
of the aggressor. In these instances, there is an innocent mistake of fact committed without any fault or
carelessness because the accused, having no time or opportunity to make a further inquiry, and being pressed by
circumstances to act immediately, had no alternative but to take the facts as they then appeared to him, and
such facts justified his act of killing. In the instant case, appellants, unlike the accused in the instances cited,
found no circumstances whatsoever which would press them to immediate action. The person in the room being
then asleep, appellants had ample time and opportunity to ascertain his identity without hazard to themselves,
and could even effect a bloodless arrest if any reasonable effort to that end had been made, as the victim was
unarmed, according to Irene Requinea. This, indeed, is the only legitimate course of action for appellants to follow
even if the victim was really Balagtas, as they were instructed not to kill Balagtas at sight but to arrest him, and to
get him dead or alive only if resistance or aggression is offered by him.
Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure
and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect
himself from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never justified in using unnecessary force or
in treating him with wanton violence, or in resorting to dangerous means when the arrest could be effected
otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in the new Rules of Court thus: "No unnecessary or
unreasonable force shall be used in making an arrest, and the person arrested shall not be subject to any greater
restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot claim
exemption from criminal liability if he uses unnecessary force or violence in making an arrest (5 C.J., p. 753; U.S.
vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a notorious criminal, a life-termer, a fugitive
from justice and a menace to the peace of the community, but these facts alone constitute no justification for
killing him when in effecting his arrest, he offers no resistance or in fact no resistance can be offered, as when he
is asleep. This, in effect, is the principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234,
242).
It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life
which he has by such notoriety already forfeited. We may approve of this standard of official conduct where the
criminal offers resistance or does something which places his captors in danger of imminent attack. Otherwise we
cannot see how, as in the present case, the mere fact of notoriety can make the life of a criminal a mere trifle in
the hands of the officers of the law. Notoriety rightly supplies a basis for redoubled official alertness and vigilance;
it never can justify precipitate action at the cost of human life. Where, as here, the precipitate action of the
appellants has cost an innocent life and there exist no circumstances whatsoever to warrant action of such
character in the mind of a reasonably prudent man, condemnation not condonation should be the rule;
otherwise we should offer a premium to crime in the shelter of official actuation.
The crime committed by appellants is not merely criminal negligence, the killing being intentional and not
accidental. In criminal negligence, the injury caused to another should be unintentional, it being simply the
incident of another act performed without malice. (People vs. Sara, 55 Phil., 939). In the words of Viada, "para que
se celifique un hecho de imprudencia es preciso que no haya mediado en el malicia ni intencion alguna de daar;
existiendo esa intencion, debera calificarse el hecho del delito que ha producido, por mas que no haya sido la
intencion del agente el causar un mal de tanta gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal
Comentado, 5.a ed. pag. 7). And, as once held by this Court, a deliberate intent to do an unlawful act is
essentially inconsistent with the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor,

56 Phil., 16), and where such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot
be considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability.
As the deceased was killed while asleep, the crime committed is murder with the qualifying circumstance of
alevosia. There is, however, a mitigating circumstance of weight consisting in the incomplete justifying
circumstance defined in article 11, No. 5, of the Revised Penal Code. According to such legal provision, a person
incurs no criminal liability when he acts in the fulfillment of a duty or in the lawful exercise of a right or office.
There are two requisites in order that the circumstance may be taken as a justifying one: (a) that the offender
acted in the performance of a duty or in the lawful exercise of a right; and (b) that the injury or offense committed
be the necessary consequence of the due performance of such duty or the lawful exercise of such right or office.
In the instance case, only the first requisite is present appellants have acted in the performance of a duty. The
second requisite is wanting for the crime by them committed is not the necessary consequence of a due
performance of their duty. Their duty was to arrest Balagtas or to get him dead or alive if resistance is offered by
him and they are overpowered. But through impatience or over-anxiety or in their desire to take no chances, they
have exceeded in the fulfillment of such duty by killing the person whom they believed to be Balagtas without any
resistance from him and without making any previous inquiry as to his identity. According to article 69 of the
Revised Penal Code, the penalty lower by one or two degrees than that prescribed by law shall, in such case, be
imposed.
For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with the
mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate penalty of from five (5)
years of prision correctional to fifteen (15) years of reclusion temporal, with the accessories of the law, and to pay
the heirs of the deceased Serapio Tecson jointly and severally an indemnity of P2,000, with costs.
Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur
G.R. No. 103119

October 21, 1992

SULPICIO INTOD, petitioner,

vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

CAMPOS, JR., J.:

Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of Appeals 1 affirming in toto the
judgment of the Regional Trial Court, Branch XIV, Oroquieta City, finding him guilty of the crime of attempted
murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino Daligdig went to
Salvador Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental and asked him to go with them to the
house of Bernardina Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio and Daligdig had a meeting
with Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan to be killed because of a land dispute
between them and that Mandaya should accompany the four (4) men, otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio and Daligdig, all
armed with firearms, arrived at Palangpangan's house in Katugasan, Lopez Jaena, Misamis Occidental. At the
instance of his companions, Mandaya pointed the location of Palangpangan's bedroom. Thereafter, Petitioner,
Pangasian, Tubio and Daligdig fired at said room. It turned out, however, that Palangpangan was in another City
and her home was then occupied by her son-in-law and his family. No one was in the room when the accused fired
the shots. No one was hit by the gun fire.
Petitioner and his companions were positively identified by witnesses. One witness testified that before the five
men left the premises, they shouted: "We will kill you (the witness) and especially Bernardina Palangpangan and
we will come back if (sic) you were not injured". 2
After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as affirmed by the Court
of Appeals, holding that Petitioner was guilty of attempted murder. Petitioner seeks from this Court a modification
of the judgment by holding him liable only for an impossible crime, citing Article 4(2) of the Revised Penal Code
which provides:

Art. 4(2).

CRIMINAL RESPONSIBILITY. Criminal Responsibility shall be incurred:

xxx

xxx

xxx

2.
By any person performing an act which would be an offense against persons or property, were it not for the
inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means.
Petitioner contends that, Palangpangan's absence from her room on the night he and his companions riddled it
with bullets made the crime inherently impossible.
On the other hand, Respondent People of the Philippines argues that the crime was not impossible. Instead, the
facts were sufficient to constitute an attempt and to convict Intod for attempted murder. Respondent alleged that
there was intent. Further, in its Comment to the Petition, respondent pointed out that:
. . . The crime of murder was not consummated, not because of the inherent impossibility of its accomplishment
(Art. 4(2), Revised Penal Code), but due to a cause or accident other than petitioner's and his accused's own
spontaneous desistance (Art. 3., Ibid.) Palangpangan did not sleep at her house at that time. Had it not been for
this fact, the crime is possible, not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in the Old Penal
Code where:
. . . it was necessary that the execution of the act has been commenced, that the person conceiving the idea
should have set about doing the deed, employing appropriate means in order that his intent might become a
reality, and finally, that the result or end contemplated shall have been physically possible. So long as these
conditions were not present, the law and the courts did not hold him criminally liable. 5
This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired by the Positivist
School, recognizes in the offender his formidability, 7 and now penalizes an act which were it not aimed at
something quite impossible or carried out with means which prove inadequate, would constitute a felony against
person or against property. 8 The rationale of Article 4(2) is to punish such criminal tendencies. 9
Under this article, the act performed by the offender cannot produce an offense against person or property
because: (1) the commission of the offense is inherently impossible of accomplishment: or (2) the means
employed is either (a) inadequate or (b) ineffectual. 10
That the offense cannot be produced because the commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the offender
must be by its nature one impossible of accomplishment. 11 There must be either impossibility of accomplishing
the intended act 12 in order to qualify the act an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime. 13 Thus:
Legal impossibility would apply to those circumstances where (1) the motive, desire and expectation is to perform
an act in violation of the law; (2) there is intention to perform the physical act; (3) there is a performance of the
intended physical act; and (4) the consequence resulting from the intended act does not amount to a crime. 14
The impossibility of killing a person already dead 15 falls in this category.
On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond
his control prevent the consummation of the intended crime. 16 One example is the man who puts his hand in the
coat pocket of another with the intention to steal the latter's wallet and finds the pocket empty. 17
The case at bar belongs to this category. Petitioner shoots the place where he thought his victim would be,
although in reality, the victim was not present in said place and thus, the petitioner failed to accomplish his end.
One American case had facts almost exactly the same as this one. In People vs. Lee Kong, 18 the accused, with
intent to kill, aimed and fired at the spot where he thought the police officer would be. It turned out, however, that
the latter was in a different place. The accused failed to hit him and to achieve his intent. The Court convicted the
accused of an attempt to kill. It held that:
The fact that the officer was not at the spot where the attacking party imagined where he was, and where the
bullet pierced the roof, renders it no less an attempt to kill. It is well settled principle of criminal law in this country
that where the criminal result of an attempt is not accomplished simply because of an obstruction in the way of

the thing to be operated upon, and these facts are unknown to the aggressor at the time, the criminal attempt is
committed.
In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the victim because the
latter did not pass by the place where he was lying-in wait, the court held him liable for attempted murder. The
court explained that:
It was no fault of Strokes that the crime was not committed. . . . It only became impossible by reason of the
extraneous circumstance that Lane did not go that way; and further, that he was arrested and prevented from
committing the murder. This rule of the law has application only where it is inherently impossible to commit the
crime. It has no application to a case where it becomes impossible for the crime to be committed, either by
outside interference or because of miscalculation as to a supposed opportunity to commit the crime which fails to
materialize; in short it has no application to the case when the impossibility grows out of extraneous acts not
within the control of the party.
In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there was nothing
to rob. In disposing of the case, the court quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves punishment by reason of his criminal intent, no one can
seriously doubt that the protection of the public requires the punishment to be administered, equally whether in
the unseen depths of the pocket, etc., what was supposed to exist was really present or not. The community
suffers from the mere alarm of crime. Again: Where the thing intended (attempted) as a crime and what is done is
a sort to create alarm, in other words, excite apprehension that the evil; intention will be carried out, the incipient
act which the law of attempt takes cognizance of is in reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking that the latter
was inside. However, at that moment, the victim was in another part of the house. The court convicted the
accused of attempted murder.
The aforecited cases are the same cases which have been relied upon by Respondent to make this Court sustain
the judgment of attempted murder against Petitioner. However, we cannot rely upon these decisions to resolve
the issue at hand. There is a difference between the Philippine and the American laws regarding the concept and
appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes and made the
punishable. Whereas, in the United States, the Code of Crimes and Criminal Procedure is silent regarding this
matter. What it provided for were attempts of the crimes enumerated in the said Code. Furthermore, in said
jurisdiction, the impossibility of committing the offense is merely a defense to an attempt charge. In this regard,
commentators and the cases generally divide the impossibility defense into two categories: legal versus factual
impossibility. 22 In U.S. vs. Wilson 23 the Court held that:
. . . factual impossibility of the commission of the crime is not a defense. If the crime could have been committed
had the circumstances been as the defendant believed them to be, it is no defense that in reality the crime was
impossible of commission.
Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability for an attempt.
In U.S. vs. Berrigan, 24 the accused was indicated for attempting to smuggle letters into and out of prison. The
law governing the matter made the act criminal if done without knowledge and consent of the warden. In this
case, the offender intended to send a letter without the latter's knowledge and consent and the act was
performed. However, unknown to him, the transmittal was achieved with the warden's knowledge and consent.
The lower court held the accused liable for attempt but the appellate court reversed. It held unacceptable the
contention of the state that "elimination of impossibility as a defense to a charge of criminal attempt, as
suggested by the Model Penal Code and the proposed federal legislation, is consistent with the overwhelming
modern view". In disposing of this contention, the Court held that the federal statutes did not contain such
provision, and thus, following the principle of legality, no person could be criminally liable for an act which was not
made criminal by law. Further, it said:
Congress has not yet enacted a law that provides that intent plus act plus conduct constitutes the offense of
attempt irrespective of legal impossibility until such time as such legislative changes in the law take place, this
court will not fashion a new non-statutory law of criminal attempt.
To restate, in the United States, where the offense sought to be committed is factually impossible or
accomplishment, the offender cannot escape criminal liability. He can be convicted of an attempt to commit the
substantive crime where the elements of attempt are satisfied. It appears, therefore, that the act is penalized, not

as an impossible crime, but as an attempt to commit a crime. On the other hand, where the offense is legally
impossible of accomplishment, the actor cannot be held liable for any crime neither for an attempt not for an
impossible crime. The only reason for this is that in American law, there is no such thing as an impossible crime.
Instead, it only recognizes impossibility as a defense to a crime charge that is, attempt.
This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The impossibility of
accomplishing the criminal intent is not merely a defense, but an act penalized by itself. Furthermore, the phrase
"inherent impossibility" that is found in Article 4(2) of the Revised Penal Code makes no distinction between
factual or physical impossibility and legal impossibility. Ubi lex non distinguit nec nos distinguere debemos.
The factual situation in the case at bar present a physical impossibility which rendered the intended crime
impossible of accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code, such is sufficient to
make the act an impossible crime.
To uphold the contention of respondent that the offense was Attempted Murder because the absence of
Palangpangan was a supervening cause independent of the actor's will, will render useless the provision in Article
4, which makes a person criminally liable for an act "which would be an offense against persons or property, were
it not for the inherent impossibility of its accomplishment . . ." In that case all circumstances which prevented the
consummation of the offense will be treated as an accident independent of the actor's will which is an element of
attempted and frustrated felonies.
WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of respondent Court of
Appeals holding Petitioner guilty of Attempted Murder is hereby MODIFIED. We hereby hold Petitioner guilty of an
impossible crime as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code,
respectively. Having in mind the social danger and degree of criminality shown by Petitioner, this Court sentences
him to suffer the penalty of six (6) months of arresto mayor, together with the accessory penalties provided by
the law, and to pay the costs.
SO ORDERED
G.R. No. 188551 : February 27, 2013
EDMUNDO ESCAMILLA y JUGO, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
SERENO, J.:
This is a Petition for Review on Certiorari 1 dated 20 August 2009. It seeks a review of the 10 June 2009
Resolution2 of the Court of Appeals (CA) in CA-G.R. CR. No. 30456, which denied the Motion for Reconsideration3
of the 10 November 2008 CA Decision4 affirming the conviction of Edmundo Escamilla (petitioner) for frustrated
homicide.
BACKGROUND
The facts of this case, culled from the records, are as follows:cralawlibrary
Petitioner has a house with a sari-sari store along Arellano Street, Manila.5 The victim, Virgilio Mendol (Mendol), is
a tricycle driver whose route traverses the road where petitioner's store is located.6?r?l1
Around 2:00 a.m. of 01 August 1999, a brawl ensued at the comer of Estrada and Arellano Streets, Manila.7
Mendol was about to ride his tricycle at this intersection while facing Arellano Street.8 Petitioner, who was
standing in front of his store, 30 meters away from Mendol,9 shot the latter four times, hitting him once in the
upper right portion of his chest.10 The victim was brought to Ospital ng Makati for treatment11 and survived
because of timely medical attention.12?r?l1
The Assistant City Prosecutor of Manila filed an Information13 dated 01 December 1999 charging petitioner with
frustrated homicide. The Information reads:cralawlibrary
That on or about August 1, 1999, in the City of Manila, Philippines, the said accused, with intent to kill, did then
and there wilfully, unlawfully and feloniously attack, assault and use personal violence upon the person of one
Virgilio Mendol, by then and there shooting the latter with a .9mm Tekarev pistol with Serial No. 40283 hitting him
on the upper right portion of his chest, thereby inflicting upon him gunshot wound which is necessarily fatal and
mortal, thus performing all the acts of execution which should have produced the crime of Homicide as a

consequence, but nevertheless did not produce it by reason of causes, independent of his will, that is, by the
timely and able medical assistance rendered to said Virgilio Mendol which prevented his death.
CONTRARY TO LAW.
Upon arraignment, petitioner pleaded not guilty.14 During trial, the prosecution presented the testimonies of
Mendol, Joseph Velasco (Velasco) and Iluminado Garcelazo (Garcelazo), who all positively identified him as the
shooter of Mendol.15 The doctor who attended to the victim also testified.16 The documentary evidence
presented included a sketch of the crime scene, the Medical Certificate issued by the physician, and receipts of
the medical expenses of Mendol when the latter was treated for the gunshot wound.17 In the course of the
presentation of the prosecution witnesses, the defense requested an ocular inspection of the crime scene, a
request that was granted by the court.18 On the other hand, the defense witnesses are petitioner himself, his
wife, Velasco and Barangay Tanod George Asumbrado (Asumbrado).19 The defense offered the results of the
paraffin test of petitioner and the transcript of stenographic notes taken during the courts ocular inspection of the
crime scene.20?r?l1
The Regional Trial Court (RTC) held that the positive testimonies of eyewitnesses deserve far more weight and
credence than the defense of alibi.21 Thus, it found petitioner guilty of frustrated homicide.22 The dispositive
portion reads:cralawlibrary
WHEREFORE, the Court finds the accused Edmund Escamilla Y Jugo GUILTY beyond reasonable doubt of the crime
of Frustrated Homicide under Articles 249 and 50 [sic] of the Revised Penal Code, and hereby sentences the
accused to suffer an indeterminate sentence of six (6) months and one (1) day of prision correccional as
minimum, to eight (8) years and one (1) day of prision mayor as maximum. Accused is hereby ordered to
indemnify complainant Virgilio Mendol the sum of ?34,305.16 for actual damages, ?30,000.00 for moral damages.
SO ORDERED.23?r?l1 ???r?bl? ??r??l l?? l?br?r
Petitioner filed a Notice of Appeal dated 14 July 2006.24 In the brief that the CA required him to file,25 he
questioned the credibility of the prosecution witnesses over that of the defense.26 On the other hand, the
Appellees Brief27 posited that the prosecution witnesses were credible, because there were no serious
discrepancies in their testimonies.28 Petitioner, in his Reply brief,29 said that the prosecution witnesses did not
actually see him fire the gun.30 Furthermore, his paraffin test yielded a negative result.31?r?l1
The CA, ruling against petitioner, held that the issue of the credibility of witnesses is within the domain of the trial
court, which is in a better position to observe their demeanor.32 Thus, the CA upheld the RTCs appreciation of the
credibility of the prosecution witnesses in the present case.33 Also, the CA ruled that the victims positive and
unequivocal identification of petitioner totally destroyed his defense of alibi. Hence, it found no reason to
disbelieve Mendols testimony.34 In addition, it said that a paraffin test is not a conclusive proof that a person has
not fired a gun and is inconsequential when there is a positive identification of petitioner.35?r?l1
A Motion for Reconsideration36 dated 08 December 2008 was filed by petitioner, who asserted that the defense
was able to discredit the testimony of the victim.37?r?l1
In its 10 June 2009 Resolution,38 the CA denied petitioners Motion for Reconsideration for being without merit,
because the matters discussed therein had already been resolved in its 10 November 2008 Decision.39?r?l1
Hence, this Petition40 assailing the application to this case of the rule that the positive identification of the
accused has more weight than the defense of alibi.41 This Court resolved to require the prosecution to comment
on the Petition.42 In his Comment43 dated 15 December 2009, the victim said that his positive identification of
petitioner was a direct evidence that the latter was the author of the crime.44 Furthermore, what petitioner raised
was allegedly a question of fact, which is proscribed by a Rule 45 petition.45 Thus, the victim alleged, there being
no new or substantial matter or question of law raised, the Petition should be denied.46?r?l1
We then obliged petitioner to file a reply.47 In his Reply dated 01 March 2010,48 he assigned as an error the
application by the CA of the rule that the positive identification of the accused has more weight than the defense
of alibi.49 He posits that the lower court manifestly overlooked relevant facts not disputed by the parties, but if
properly considered would justify a different conclusion.50 This Court, he said, should then admit an exception to
the general rule that the findings of fact of the CA are binding upon the Supreme Court.51?r?l1
ISSUES
The questions before us are as follows:cralawlibrary

I. Whether the prosecution established petitioners guilt beyond reasonable doubt.52?r?l1

II. Whether a defense of alibi, when corroborated by a disinterested party, overcomes the positive identification by
three witnesses.53?r?l1
COURTS RULING
We deny the Petition.
I. The prosecution proved petitioners guilt beyond reasonable doubt.
A. Petitioner was positively identified by three witnesses.
Petitioner argues that there was reasonable doubt as to the identity of the shooter.54 He is wrong. As correctly
held by the RTC and affirmed by the CA, the identity of the assailant was proved with moral certainty by the
prosecution, which presented three witnesses the victim Mendol, Velasco, and Garcelazo who all positively
identified him as the shooter.55 We have held that a categorical and consistently positive identification of the
accused, without any showing of ill motive on the part of the eyewitnesses, prevails over denial.56 All the three
witnesses were unswerving in their testimonies pointing to him as the shooter. None of them had any ulterior
motive to testify against him.
Mendol said that he was about to ride his tricycle at the corner of Arellano and Estrada Streets, when petitioner,
who was in front of the formers store, shot him.57 The first shot hit its target, but petitioner continued to fire at
the victim three more times, and the latter then started to run away.58?r?l1
Velasco, who was also at the corner of Estrada and Arellano Streets, heard the first shot, looked around, then saw
petitioner firing at Mendol three more times.59?r?l1
Lastly, Garcelazo testified that while he was buying bread from a bakery at that same street corner, he heard
three shots before he turned his head and saw petitioner pointing a gun at the direction of the victim, who was
bloodied in the right chest.60 Garcelazo was just an arms length away from him.61?r?l1
The three witnesses had a front view of the face of petitioner, because they were all facing Arellano Street from its
intersection with Estrada Street, which was the locus criminis.62 Although the crime happened in the wee hours of
the morning, there was a street lamp five meters from where petitioner was standing when he shot the victim,
thus allowing a clear view of the assailants face.63 They all knew petitioner, because they either bought from or
passed by his store.64?r?l1
B. The intent to kill was shown by the continuous firing at the victim even after he was hit.
Petitioner claims that the prosecution was unable to prove his intent to kill.65 He is mistaken. The intent to kill, as
an essential element of homicide at whatever stage, may be before or simultaneous with the infliction of
injuries.66 The evidence to prove intent to kill may consist of, inter alia, the means used; the nature, location and
number of wounds sustained by the victim; and the conduct of the malefactors before, at the time of, or
immediately after the killing of the victim.67?r?l1
Petitioners intent to kill was simultaneous with the infliction of injuries. Using a gun,68 he shot the victim in the
chest. 69 Despite a bloodied right upper torso, the latter still managed to run towards his house to ask for help.
70 Nonetheless, petitioner continued to shoot at him three more times,71 albeit unsuccessfully.72 While running,
the victim saw his nephew in front of the house and asked for help.73 The victim was immediately brought to the
hospital on board an owner-type jeep.74 The attending physician, finding that the bullet had no point of exit, did
not attempt to extract it; its extraction would just have caused further damage.75 The doctor further said that the
victim would have died if the latter were not brought immediately to the hospital.76 All these facts belie the
absence of petitioners intent to kill the victim.
II. Denial and alibi were not proven.
In order for alibi to prosper, petitioner must establish by clear and convincing evidence that, first, he was in
another place at the time of the offense; and, second, it was physically impossible for him to be at the scene of
the crime. 77 The appreciation of the defense of alibi is pegged against this standard and nothing else. Petitioner,
as found by both the RTC and CA, failed to prove the presence of these two requisite conditions. Hence, he was
wrong in asserting that alibi, when corroborated by other witnesses, succeeds as a defense over positive
identification.78?r?l1

A. Petitioner was unable to establish that he was at home at the time of the offense.
The alibi of petitioner was that he was at home asleep with his wife when Mendol was shot.79 To support his
claim, petitioner presented the testimonies of his wife and Asumbrado.80?r?l1
1. The wife of petitioner did not know if he was at home when the shooting happened.
The wife of petitioner testified that both of them went to sleep at 9:00 p.m. and were awakened at 3:00 a.m. by
the banging on their door.81 However, she also said that she did not know if petitioner stayed inside their house,
or if he went somewhere else during the entire time she was asleep.82 Her testimony does not show that he was
indeed at home when the crime happened. At the most, it only establishes that he was at home before and after
the shooting. Her lack of knowledge regarding his whereabouts between 1:00 a.m. and 3:00 a.m. belies the
credibility of his alibi. Even so, the testimonies of relatives deserve scant consideration, especially when there is
positive identification83 by three witnesses.
2. Asumbrano did not see the entire face of the shooter.
Petitioner is questioning why neither the RTC nor the CA took into account the testimony of Asumbrado, the
Barangay Tanod on duty that night.84 Both courts were correct in not giving weight to his testimony.
Asumbrado said that he was there when the victim was shot, not by appellant, but by a big man who was in his
twenties.85 This assertion was based only on a back view of the man who fired the gun 12 meters away from
Asumbrado.86 The latter never saw the shooters entire face.87 Neither did the witness see the victim when the
latter was hit.88 Asumbrado also affirmed that he was hiding when the riot took place. 89 These declarations
question his competence to unequivocally state that indeed it was not petitioner who fired at Mendol.
B. Petitioner's home was just in front of the street where the shooting occurred.
Physical impossibility refers to the distance between the place where the accused was when the crime transpired
and the place where it was committed, as well as the facility of access between the two places. 90 Petitioner
failed to prove the physical impossibility of his being at the scene of the crime at the time in question.
Both the prosecution and the defense witnesses referred to the front of appellant's house or store whenever they
testified on the location of the shooter. Petitioner was in front of his house when he shot the victim, according to
Velasco's testimony.91 Meanwhile the statement of Asumbrado that the gate of the store of the petitioner was
closed when the shooting happened92 can only mean that the latter's house and store were both located in front
of the scene of the crime.
Petitioner proffers the alibi that he was at home, instead of showing the impossibility of his authorship of the
crime. His alibi actually bolsters the prosecution's claim that he was the shooter, because it placed him just a few
steps away from the scene of the crime. The charge is further bolstered by the testimony of his wife, who could
not say with certainty that he was at home at 2:00a.m.- the approximate time when the victim was shot.
Based on the foregoing, it cannot be said that the lower courts overlooked any fact that could have justified a
different conclusion. Hence, the CA was correct in affirming the R TC 's Decision that petitioner, beyond
reasonable doubt, was the assailant.
WHEREFORE, in view of the foregoing, the Petition is DENIED. The 10 June 2009 Resolution93 and 10 November
2008 Decision94 of the Court of Appeals in CA-G.R. CR. No. 30456 are hereby AFFIRMED in toto.
SO ORDERED
G.R. No. L-21860

February 28, 1974

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
VIOLETO VILLACORTE, alias BONGING, et al., defendants. CRISANTO INOFERIO Y ALINDAO alias SANTE, and
MARCIANO YUSAY alias MANCING (appeal withdrawn res. of 7/10/67), defendants-appellants.
Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Bernardo P. Pardo and Solicitor
Jesus V. Diaz, for plaintiff-appellee.
Peralta Law Offices for defendants-appellants.

FERNANDEZ, J.:p
The charge in this case was for robbery with homicide and the penalty imposed upon the appellant Crisanto
Inoferio and his co-accused Violeto Villacorte and Marciano Yusay was reclusion perpetua and the payment of
indemnity to the heirs of the deceased Benito Ching in the sum of P6,000.00. This case is now before this Court
only on the appeal of Inoferio, because although the lower court convicted him and his co-accused Villacorte and
Yusay (Alfredo Handig, a fourth accused was acquitted), Villacorte did not appeal, while the appeal of Yusay was
withdrawn upon his motion which was granted by this Court on July 10, 1967.
In the evening of August 27, 1959, Benito Ching, a Chinese merchant, left his sari-sari store in the public market
of Caloocan 1 to go home, bringing with him the proceeds of his sales of the day which were placed in a paper
bag. He was accompanied by his two employees, Pedro Libantino and Modesto Galvez, who acted as his
bodyguards. On the way towards his home located at 133 F. Roxas, Grace Park, Caloocan, Benito Ching and his
two companions were accosted by four persons near the corner of an alley at F. Roxas street. At that time,
Libantino was some three or four meters in front of Ching, while Galvez was walking directly behind the Chinese
merchant.
One of the holduppers pointed a .45 cal. pistol at Ching. Another placed his left arm around the neck of Galvez,
while the third held both his arms. The first who pointed a pistol at Ching snatched from him the paper bag
containing the money. The fourth got that paper bag from the snatcher.
Ching shouted for help, crying aloud "Pedie, Pedie"; his companion Libantino turned around to respond to his
employer's call; but upon seeing the bag snatcher pointing a pistol at Ching, Libantino fled. When Ching shouted:
"Pedie, Pedie," the pistol-holder fired at him. Galvez, Ching's other companion, was able to free himself from two
of the holduppers holding him, and he too ran away. Ching fell down sprawled on the street and the four
holduppers ran away. Benito Ching, notwithstanding his wound, was able to walk, staggering towards his home.
His common-law wife immediately called for a taxicab, brought Ching to the North General Hospital in Manila
where he died the following day.
Later that evening when Galvez was interrogated by police officers of Caloocan who were investigating the
incident, the interrogation proved fruitless for Galvez was able to furnish the investigators any information on the
identities of the holduppers. But when investigated by the CIS, Philippine Constabulary, at Camp Crame on
September 11, 1959, Galvez declared that Ching was accosted by three persons, one of them pointing his pistol at
the right ribs of his employer. He identified the gunman as Violeto Villacorte alias Bonging and even described the
shirt and pants the gunman was then wearing. He could not identify the two other companions of Villacorte.
Libantino, when examined by the investigators of the Caloocan police department on the same night of August
27, 1959, declared that the holdup and shooting incident took place in a dark "kalyehon" and that he could not
identify the gunman nor the latter's companions. But, in his written statement taken by the CIS at Camp Crame,
Quezon City on September 11, 1959, he declared positively that he saw Violeto Villacorte alias Bonging as the
person who grabbed the paper bag containing money from Ching and fired a pistol at Ching. He further said that
aside from Villacorte he saw three other persons, two of them were holding the hands of his companion, Galvez.
He admitted however, that he could not recognize the two persons who were holding Galvez.
Villacorte who, in the meantime, had been positively identified by Galvez and Libantino as the bag snatcher and
as the gunman who shot down Ching, when interrogated by the investigators of the Criminal Investigation Service
at Camp Crame on September 12, 1959 admitted that he was the one who snatched the paper bag from Benito
Ching and shot him. He identified his companions as "Roque", "Sante" and "Fred".
In the information for robbery with homicide filed in the Court of First Instance of Rizal on September 12, 1959,
Violeto Villacorte was so named therein; "Roque" and "Fred" were already identified as Roque Guerrero and
Alfredo Handig, respectively while "Sante" was not yet identified and was named "John Doe alias Sante". On
September 24 of the same year, the information was amended by changing the name of the accused John Doe
alias Sante to Crisanto Inoferio y Alindao; and another person, Marciano Yusay, was included among the accused.
Before the trial, upon motion, the trial court discharged Roque Guerrero to be used as a State witness.
As already above stated, the trial court, in its decision of May 15, 1963, acquitted Handig, convicted Villacorte
who did not appeal, and Yusay who appealed but who withdrew his appeal, and Inoferio who pursued his appeal.
Upon a careful review of the evidence, We hold that the accused-appellant Crisanto Inoferio should be acquitted
upon the ground that although his defense, in the nature of an alibi, is inherently a weak defense, it should be
considered sufficient as in this case, to tilt the scale of justice in favor of the accused because the evidence for

the prosecution is itself weak and unconvincing and, therefore, by and large, insufficient to prove the guilt of the
accused beyond reasonable doubt.
Only Modesto Galvez and the State witness, Roque Guerrero, identified the appellant Inoferio as one of the
holduppers. So, let us now review and analyze their testimonies, especially insofar as they refer to Inoferio, on the
one hand, and the evidence of Inoferio, on the other.
At the time he testified in Court, Modesto Galvez was 21 years old, married and unemployed. In synthesis, he
declared that: In August, 1957, he was working as a helper in the store of Benito Ching inside the market in Grace
Park. Between 7 and 8 o'clock in the evening of August 27 that year, he and another store helper, Pedro Libantino
accompanied Ching in going home. While they were at F. Roxas Street, they were waylaid by four men. 2
He was able to recognize two of them, namely Villacorte and the herein appellant Crisanto Inoferio who were
pointed to by him in open court. Villacorte snatched the bag from Benito Ching and fired at him once. The bag
contained money. Two persons held him. Inoferio was one of them. He did not know the other one. Inoferio held
him, Inoferio was behind and to the right of Galvez, placing his left hand over the nape of the latter. He was able
to recognize Inoferio because he looked at his left, removed his hand around the front part of his neck, and he saw
tattoo on his forearm. It was the figure of a woman with a bird. The place where they were waylaid was bright. 3
On cross examination, Galvez admitted that he saw accused-appellant Inoferio for the first time only on that night
of August 27, 1959. The place was lighted from two electric posts; one in the alley and the other east of the alley,
corner of the alley and F. Roxas street. He was scared at the time he was held up. When he was held by two
persons, one at his back (by appellant Inoferio) and another at his front, he was scared. He did not move nor run
away until they released him. Inoferio was holding him with his left arm, held him tight around the neck; it was
difficult to unloose his hold; the left forearm was so close to his neck that he could hardly breathe; and
immediately after being released, he ran away. 4
On further cross examination, the witness testified: The morning following August 27, 1959, he went to the police
station in Caloocan. Three officers interrogated him. He was still scared and was not able to tell them anything. 5
On September 11, 1957, he was brought by some PC officers to the CIS office, Camp Crame. He was interrogated
by agents Rodolfo Estevez and Florencio Suela. They asked him to relate the details of the incident as best as he
could. His statement was taken down in writing. He signed that statement under oath before Assistant Fiscal
Castillo. The last question asked of him was: "Do you have anything more to say?" And his answer was: "No
more". In that investigation, he said that he saw only three holduppers. In that sworn statement, although he did
not mention the name of Inoferio, he stated that he saw a tattoo on the arm of the person who held his neck that
night. His sworn statement consisting of two pages has been marked as Exh. "1-Inoferio".
Reading the sworn statement of Modesto Galvez (Exh. "1-Inoferio"), it appears that it was taken on September 11,
1959 but subscribed and sworn to before Assistant Fiscal Jose Castillo on September 12, 1959. It is a fact that in
this statement, he mentioned that they were held up only by three persons. But, contrary to his statement in
Court, he did not mention in this sworn statement (Exh. "1-Inoferio") that the one who held him by the neck had a
tattoo on his arm.
Let us now go to the testimony of Roque Guerrero. On direct examination, he declared: He knows the accused
Violeto Villacorte. He had known him for a long time already. He knows the accused Alfredo Handig. He also knows
the accused Crisanto Inoferio alias "Sante". He came to know him because they used to play cara y cruz in 1959.
As far as he knows, Crisanto Inoferio is a Visayan. He also knows the accused Marciano Yusay.
In July, 1959, while he was driving a tricycle, Violeto Villacorte called him and asked if he wanted to make some
money by waylaying somebody. He did not agree and he continued driving the tricycle. After two weeks, they saw
each other again when he was driving a tricycle. Villacorte again asked him if he wanted to make some money. He
did not agree. Then, in the afternoon of August 29, 1959, Villacorte met him again. His companions then were
Alfredo Handig, Marciano Yusay and "Sante". Villacorte asked him if he was not really going with them. His answer
was how could he go when "Sante" did not want to tell him the person to be waylaid. Handig told him to go.
"Sante" also told him that he go with them. Yusay even pulled out his .45 caliber gun and threatened him, telling
him: "Don't be afraid, this is what we are going to use." Guerrero told them that he could not go with them
because "he is my kuya," referring to Benito Ching. When Villacorte told him that they were going to rob Ching, he
left them but Alfredo Handig and "Sante" followed him. They told him that they would kill him if he would
approach anybody. He continued driving his tricycle but they followed him. They left already however at about 7
o'clock that evening. 6

On cross examination, Guerrero declared: At the time he met "Sante", he was dressed in long sleeve he was
always wearing long sleeve shirt in the same manner that he was dressed while Inoferio was in Court at the time
this witness was cross examined. 7
On the night of August 8, 1959, he was arrested in connection with an attempt to rob the store of Benito Ching.
He was prosecuted for vagrancy and he pleaded guilty. He was sentenced to ten days imprisonment.
Subsequently, he was charged with attempted robbery. When investigated by the CIS agents, he did not reveal to
them anything. He gave a written statement at Camp Crame on September 21, 1959. In that statement, he told
"the entire truth of what you (Guerrero) knew about the entire case." 8 In this statement, Guerrero mentioned
only "Sante" as among those who talked to him, but did not mention his name Crisanto Inoferio.
The appellant Crisanto Inoferio, testifying in his defense, stated that he was 39 years old, single, house painter,
and a resident of 1691 Alvarez St., Sta. Cruz, Manila. 9 He came to know the accused Violeto Villacorte for the first
time only in Camp Crame on September 12, 1959. He came to know the accused Alfredo Handig for the first time
also on September 12, 1959 but in the Caloocan Police Department. He came to know the accused who became a
State witness, Roque Guerrero, for the first time sometime before August, 1959 at Caloocan. He used to ride in his
tricycle and they often played cara y cruz together. 10
He had been to the CIS office at Camp Crame two times. The first was on September 12, 1959. In the morning of
that date, he was invited by the policemen of Caloocan to go to their headquarters. He was made to wait there
because some CIS agents would come. They came at about 1 to 2 o'clock in the afternoon. The Caloocan police
officers and the CIS agents talked to each other. After a while, the CIS said that they would bring him to their
headquarters. The Caloocan police officers answered that they themselves would take him to Camp Crame which
they did. They were Pat. Cadoy, Cpl. Mauricio and another police lieutenant whom he did not know. He was
brought to the CIS headquarters at Camp Crame at about 3 o'clock already that afternoon. 11
When he, Inoferio, was brought upstairs, the accused Villacorte was going down. He did not mind him because he
did not know him then. Upon reaching the office of Capt. Calderon, he was made to sit down. Later on, Villacorte
and his companion came in. His companion asked Villacorte if he knew him (Inoferio) and Villacorte answered in
the negative. He was also asked if he knew Villacorte and his answer was in the negative. Then the accused
Handig was brought and in the confrontation, both of them stated that they did not know each other. 12
Then he was brought to another room by the CIS agent who said: "You are lucky you don't know those people.
"After that, he told them that he was not "Sante" because his nickname was "Santing." 13
Towards the afternoon, he was given food to eat. While he was eating, the Caloocan policemen told him not to
finish eating anymore as they were going home. And they left Camp Crame at about past 6 o'clock in the
afternoon of September 12, 1959. When they reached Grace Park, Caloocan, the Policemen told him to go home
because he had no case. 14
The second time he was at Camp Crame was on September 21, 1959. At about 2 o'clock in the afternoon, some
CIS agents went to his house and upon their invitation, he went with them to Camp Crame. They arrived there at
about 5 o'clock in the afternoon. While they were walking at the corridor, they saw Capt. Calderon talking with
Roque Guerrero. The CIS agent asked him if he knew Guerrero and he said yes. Guerrero was asked if he knew him
and he answered in the affirmative. Then he was brought to a cell at the groundfloor. At about 6 o'clock in the
afternoon, CIS agent Morales came and brought him upstairs. He was asked if he was drinking wine and when he
answered in the affirmative, wine was brought. Morales opened the bottle and he was asked to drink. While he
was drinking, Morales told him: "I want to help you but you also help me." His answer was: "What help can I do?"
And the reply was: "I'll make you a witness for the government." He asked Morales what he would testify and the
answer was: "At the trial, point to Violeto Villacorte, Alfredo Handig and Roque Guerrero as the persons who
robbed the Chinese and that they were inviting you to join them." His answer was: "That is bad Mr. Morales. I do
not know anything about the case you are talking about. I even do not know Alfredo Handig and Violeto
Villacorte." Morales stood up, took him downstairs and told him to think about the matter. He was again brought
to his cell. 15
The following morning, after Inoferio had just taken his breakfast, Morales came and told him: "What about the
matter we talked about last night, have you come to think about it?" He said: "I am sorry, I cannot do what you
are asking me." Then Morales replied: "You might regret, I can also secure another witness," and he left. At about
11 o'clock that morning, Morales returned with somebody named Galvez whom he did not know. Morales then told
him to take off his clothes. After he had taken off his shirt, Morales saw the tattoo on his arms (anterior portion of
his left forearm). Morales then told him to show his arm with the tattoo to Galvez. After a few minutes, Morales
and Galvez left. At about 5 o'clock in the afternoon, Morales came, brought him out of his cell and conducted him
upstairs. While they were inside a room, Morales asked him questions which he, the latter, typed. Whenever he
would not be able to answer Morales, Morales would slap him. Morales even tied his belt around his neck and

whenever he could not answer the questions, Morales would just pull the belt. After the questioning by Morales in
that afternoon of September 22, 1959, he was made to sign his statement. At that time, Capt. Calderon was
passing by the corridor. Then he was placed in his cell. 16
The next day, he was brought out his cell, was brought to the stockade and then afterwards, to the provincial jail
in Pasig. 17
Inoferio categorically denied the testimony of Roque Guerrero that he was with Handig, Yusay, and Villacorte on
August 27, 1959, and that before that date, he and his companions were inviting him (Guerrero) to join them to
holdup somebody. And the reason why Roque Guerrero testified against him was that Guerrero thought that he
was arrested because Inoferio pointed to him when they met at Camp Crame. But Inoferio said that he pointed to
Guerrero only when he was asked by the CIS where Guerrero was. 18
Inoferio denied the testimony of Galvez that he (Inoferio) was one of those that embraced him (Galvez) during the
holdup. 19 He categorically stated that he had not known Galvez nor have met him prior to August 27, 1959. He
came to know Villacorte for the first time on September 12, 1959 when they met at the stairway of a building
Camp Crame where he was interrogated. It was while he was coming up said stairway when he met Violeto
Villacorte for the first time. Villacorte was then coming down the stairs. He admitted that before August, 1959, he
already knew Roque Guerrero. 20
Violeto Villacorte, the person identified as the bag snatcher and the one who shot Benito Ching, declared: He
came to know Crisanto Inoferio for the first time when he met at Camp Crame on September 12, 1959. Before
August 27, 1959, he had not yet met Inoferio. 21
Another co-accused, Alfredo Handig, testified that he came to know Crisanto Inoferio for the first time on
September 12, 1959 in the municipal building of Caloocan. He categorically declared that prior to this date, he did
not know said Crisanto Inoferio. 22
By way of background to our findings of facts which justify the acquittal of appellant Inoferio, we now recapitulate
the evidence against the accused Violeto Villacorte, Marciano Yusay, and Alfredo Handig.
Violeto Villacorte was positively identified by prosecution witnesses Libantino and Galvez. And in an extrajudicial
statement secured from him by CIS investigators and which he signed and swore to before the Assistant Fiscal of
Rizal in Pasig, Villacorte admitted his role as mastermind of the plan to waylay Benito Ching and his having
grabbed the paper bag containing the proceeds of the sales of the sari-sari store of the Chinaman. He likewise
admitted responsibility for firing the pistol that snuffed the life of Benito Ching.
Marciano Yusay was equally identified positively by Pedro Libantino and Modesto Galvez as one of those present
when Villacorte was planning the holdup and at the time of the holdup. And in the ante mortem statement of
Benito Ching made to his wife Candida Pasion, he said that Marciano Yusay was one of those who held him up.
Alfredo Handig, on the other hand, although mentioned by accused Villacorte as one of his companions in the
planning and in the execution of the robbery, prosecution witnesses Libantino and Galvez never identified him
positively because of which he was acquitted by the trial court.
With respect to the herein appellant Crisanto Inoferio, the evidence of the prosecution to the effect that he was
one of the holduppers is weak and unconvincing.
In the investigations conducted by the Caloocan Police Department, both Modesto Galvez and Pedro Libantino
never mentioned appellant Inoferio as one of those who either planned or executed the robbery and killing
although the name of Villacorte was mentioned by Libantino. In the examination conducted by the CIS
investigators at Camp Crame, again Inoferio's name was never mentioned by both prosecution witnesses
although Villacorte's and Yusay's names were now mentioned and linked to the crime.
When the accused Villacorte was subjected to a thorough investigation by the CIS agents, he admitted his part in
the planning and in the commission of the crime and named Marciano Yusay, Alfredo Handig and a certain
"Sante". Again, Inoferio at this stage of the investigation had as yet to be linked to this person called "Sante" and
to the crime.
In court, Libantino never identified Inoferio. More than that, he contradicted Galvez, for while the latter testified
that the man who had his arm around his neck was Inoferio, Libantino who was the one face to face with the man
who had his arm around Galvez, said that it was the accused Marciano Yusay. 23 And Libantino declared that the
place where the holdup and the shooting incident took place was in a dark "kalyehon," that was why he could not
identify the gunman nor the latter's companions. This contradicts the testimony of Galvez that the place where

the holdup and the shooting took place, was lighted from electric posts. Libantino said that these two electric
posts were quite far from the scene of the crime; they were 10 meters away.
And as we consider the testimony of Modesto Galvez, even by itself, we conclude that he was not able to see the
face of the man who held him around his neck and therefore could not possibly identify him. He was scared at the
time. The one holding him by the neck was at his back. And immediately after he was released, he ran away.
Let us now go to the telltale tattoo, the figure of a woman with a bird, on the left forearm of Inoferio. Yes, Inoferio
has that tattoo. And according to Galvez, the one who held him around his neck was Inoferio because he saw the
tattoo of Inoferio when he looked at his left and tried to remove the arm of the man holding him by his neck. But
any other person could have that kind of a tattoo, the figure of a woman with a bird. But it may be asked: How did
Galvez come to know that Inoferio had that tattoo? The answer is furnished by the testimony of Inoferio. We have
taken pains to give the synthesis of his entire testimony, and we are satisfied that he told the truth, particularly
on the point that when he was brought to Camp Crame for the second time on September 21, 1959, he was told
to remove his clothes and show his arm with the tattoo to Galvez.
On top of all of these, there is the testimony in open court by Galvez that as early as September 11, 1959, when
he was investigated at the CIS office in Camp Crame, he already stated and specifically in his sworn statement
given on that date but subscribed and sworn to before Assistant Fiscal Castillo the following day, that the one who
held him by the neck had a tattoo on his arm. We have gone over this written sworn statement and we do not see
any mention therein by Galvez of a tattoo on the arm of person that held him.
And how could Galvez have seen the tattoo on the arm of the man who held him by the neck when according to
Guerrero, "Sante" was dressed in long sleeve in the afternoon of the holdup (the prosecution would want to prove
that "Sante" is the accused Crisanto Inoferio).
Therefore, the authorities cited by the prosecution that written statements of witnesses to police authorities are
usually sketchy and incomplete; that as a matter of fact, it is natural for even material matters to be left out when
a person gives a sworn statement during a criminal investigation, do not here apply. The fact is that Galvez told a
lie when he said that in his written statement he declared that the man who held him had a tattoo.
How about the testimony of Roque Guerrero, the second and the only other witness linking the appellant Inoferio
to the robbery holdup in question? He was not there at the scene of the crime. All that he said was that he was
asked three times before the robbery holdup took place to go with the holduppers. But Villacorte, Yusay and
Handig denied this testimony of Guerrero. And of course, Inoferio also denied it.
But what is most significant is the fact that all along, he was referring to "Sante" as the one who was with the
group when he was asked to join them in the robbery holdup. As early as in his written statement given at Camp
Crame on September 21, 1959, he referred to one of the holduppers as "Sante"; he never mentioned therein the
name of Crisanto Inoferio; and yet it is a fact, admitted by both Guerrero and Inoferio, that they had known each
other long before the robbery holdup took place on August 27, 1959. Therefore, if Inoferio was the "Sante" with
the group of the holduppers, Guerrero should have referred to him as Inoferio in his written statement of
September 21, 1959.
And Crisanto Inoferio is not "Sante". He is the best witness to testify on his nickname and he said that his
nickname is "Santing".
Furthermore, this witness Guerrero has very poor credentials as far as his credibility is concerned. He was, at the
time he testified, 18 years old, single and unemployed. And on cross examination, he admitted that on August
1959, he was arrested in an attempt to rob the store of Benito Ching; he was prosecuted for vagrancy; pleaded
guilty and sentenced to ten days imprisonment. Subsequently, he was charged with attempted robbery.
And assuming that appellant Inoferio was the "Sante" who took part in the planning of the robbery holdup in
question, which is not the fact in this case, that in itself would not make him incur any criminal liability if later on
there is not that sufficient evidence to prove that he actually took part in the robbery holdup. For after taking part
in the planning, he could have desisted from taking part in the actual commission of the crime by listening to the
call of his conscience. This exempts him from criminal liability whatsoever.
Against the weak and unconvincing evidence of the prosecution regarding appellant Inoferio are his testimony
and those of the witnesses who corroborated him.
At the time he testified, Inoferio was 39 years old, single, and a house painter. The flow of events as related by
him in his testimony, a synopsis of which we have already given earlier, is so natural and convincing as to set at
ease the mind and the conscience of the Court that he was telling the truth. He denied any participation in the

robbery holdup in question. Moreover, that he did not know co-accused Villacorte and Handig at the time the
crime was committed on August 27, 1959. He came to know them only when these two were already arrested, a
fact corroborated by Villacorte and Handig. Even at the confrontation before police officers and CIS agents,
Inoferio, on one hand, and his two co-accused, on the other, already denied having known each other earlier.
The motive of Guerrero in testifying against Inoferio was explained by the latter, and that is, that Guerrero
thought, when Inoferio pointed to him at Camp Crame that Inoferio was implicating Guerrero in the robbery
holdup. And Galvez, who never implicated Inoferio when investigated by the Caloocan police officers in the
evening of August 27, 1959 and when investigated by the CIS Camp Crame on September 11, 1959, must have
based his testimony in court, where he identified Inoferio, on the erroneous information supplied to him that
"Sante" (one of the holduppers) was Inoferio.
This is good a time as any to emphasize the fact that courts should not at once look with disfavor at the defense
of alibi. Although inherently weak and easily fabricated, the evidence presented by an accused in support of that
defense must be scrutinized with the same care that evidence supporting other defenses deserves. When an
accused puts up the defense of alibi, the court should not at once have a mental prejudice against him. For, taken
in the light of all the evidence on record, it may be sufficient to acquit him, as in the case of appellant Inoferio.
WHEREFORE, the decision appealed from convicting the accused-appellant Crisanto Inoferio is hereby reversed
and he is hereby acquitted with costs de oficio. It appearing that he is at present detained at the New Bilibid
Prisons at Muntinlupa, his immediate release is hereby ordered. So ordered
G.R. No. L-19069

October 29, 1968

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
AMADEO PERALTA, ET AL., defendants,
ANDRES FACTORA, LEONARDO DOSAL, ANGEL PARUMOG, AMADEO PERALTA, FLORENCIO LUNA and GERVASIO
LARITA, defendants-review.
Assistant Solicitors General Vicente A. Torres and Antonio Ibarra for plaintiff-appellee.
J. R. Nuguid for defendants-review.
PER CURIAM:
In the decision in criminal case 7705 of the Court of First Instance of Rizal,subject of the present automatic review,
Amadeo Peralta, Andres Factora, Leonardo Dosal, Angel Parumog, Gervasio Larita and Florencio Luna (six among
the twenty-two defendants1 charged therein with multiple murder) were pronounced guilty, and all sentenced to
death, to indemnify jointly and severally the heirs of each of the victims, namely, Jose Carriego, Eugenio Barbosa
and Santos Cruz, in the sum of P6,000, and each to pay his corresponding share of the costs.
The information recites:
That on or about the 16th day of February, 1958, in the municipality of Muntinglupa, province of Rizal, Philippines,
and within the jurisdiction of this Honorable Court, the abovenamed accused, who are convicts confined in the
New Bilibid Prisons by virtue of final judgments, conspiring, confederating and mutually helping and aiding one
another, with evident premeditation and treachery, all armed with deadly weapons, did, then and there, willfully,
unlawfully and feloniously kill Jose Carriego, Eugenio Barbosa and Santos Cruz, also convicts confined in the same
institution, by hitting, stabbing and striking them with ice picks, clubs and other improvised weapons, pointed
and/or sharpened, thereby inflicting upon the victims multiple serious injuries which directly caused their deaths.
That the aggravating circumstance of quasi-recidivism is present in the commission of the crime in that the crime
was committed after the accused have been convicted by final judgments and while they are serving the said
judgments in the New Bilibid Prisons.
Contrary to law with the following aggravating circumstances:
1.

That the crime was committed with insult to public authorities;

2.

That the crime was committed by a band;

3.

That the crime was committed by armed men or persons who insure or afford impunity;

4.

That use of superior strength or means was employed to weaken the defense;

5.

That as a means to the commission of the crime doors and windows have been broken;

6.

That means was employed which add ignominy to the natural effects of the act;

7.

That the crime was committed where public authorities were engaged in the discharge of their duties.

Upon motion of the provincial fiscal before trial, the lower court dismissed the charge against one of the accused2
for lack of evidence. After the prosecution had rested its case, the charges against six of the accused3 were
dismissed for failure of the prosecution to establish a prima facie case against them. One of the defendants died4
during the pendency of the case. After trial, the court a quo acquitted eight5 of the remaining defendants.
As early as in 1956, a great number of inmates confined in the national penitentiary at Muntinglupa arrayed
themselves into two warring gangs, the "Sigue-Sigue" and the "OXO", the former composed predominantly of
Tagalog inmates, the latter comprised mainly of prisoners from the Visayas and Mindanao. Since then the prison
compound has been rocked time and time again by bloody riots resulting in the death of many of their members
and suspected sympathizers. In an effort to avert violent clashes between the contending groups, prison officials
segrerated known members of the "Sigue-Sigue" from those of the "OXO". Building 1 housed "Sigue-Sigue"
members, while a majority of the prisoners confined in Bldg. 4 belonged to the "OXO". Even in Bldg. 4, which is
composed of four brigades, namely, 4-A and 4-B (upper floor) and 4-C and 4-D (first floor), inmates from Visayas
and Mindanao, from whom the "OXO" drew most of its members, were confined in 4-A.
It was at about 7:00 a.m. on February 16, 1958, while the inmates of the penitentiary were preparing to attend
Sunday mass, that a fight between two rival members of the "Sigue-Sigue" and "OXO" gangs occurred in the plaza
where the prisoners were assembled, causing a big commotion. The fight was, however, quelled, and those
involved were led away for investigation, while the rest of the prisoners were ordered to return to their respective
quarters. Hardly had conditions returned to normal when a riot broke out in Bldg. 1, a known lair of the "SigueSigue". The inmates thereof tried to invade Bldg. 4, where many members and sympathizers of the "OXO" gang
were confined. The timely arrival of the guards forced the invading inmates to retreat and return to Bldg. 1.
Moments later, another riot erupted in Bldg. 4, as the inmates of brigade 4-A destroyed the lock of their door and
then rampaged from one brigade to another. The invading prisoners from 4-A, mostly "OXO" members and
sympathizers, clubbed and stabbed to death Jose Carriego, an inmate of 4-B. Afterwards, they forcibly opened the
door of 4-C and killed two more inmates, namely, Eugenio Barbosa and Santos Cruz.
The three victims sustained injuries which swiftly resulted in their death before they could be brought to the
hospital.
Jose Carriego: (a) lacerated wound on the lower lip, 5 cm. in length and 3 cm.in depth; (b) contusion and
hematoma of the back of the neck, about 2 inches in diameter; and (c) five punctured wounds in the chest,
penetrating the lungs. Cause of death: internal hemorrhage from multiple fatal wounds in the chest.
Eugenio Barbosa: (a) lacerated wound in the occipital region, 3 inches in length and 1 cm. in depth; (b) two
penetrating wounds in the abdomen, puncturing the intestines; (c) lacerated wounds on the right oxilla, 3 cm. in
length and 2 cm. in depth; and (d) several bruises at the right and left lower extremities. Cause of death: shock,
secondary to internal hermorrhage in the abdomen.
Santos Cruz: (a) lacerated wound on the head, 2 inches in length; (b) fractured skull; (c) wound on the upper lip
cutting the lip in two; (d) seven punctured wounds in the chest, two of which were penetrating; (e) hematoma on
the right hand; and (f) three punctured wounds on the left hand. Cause of death: fractured skull.
Romeo Pineda, an inmate and first quarter-in-charge of brigade 4-B, testified that while he was taking his
breakfast with Jose Carriego, who was at the time the representative of the prisoners confined in 4-B to the inmate
carcel, he "suddenly heard commotion" near the door of their brigade; that his fellow prisoners started shouting
"pinapasok na tayo," as the invading inmates from brigade 4-A stampeded into 4-B; that he and Carriego took
hold of their clubs and stood at the end of the passageway; that he saw Carriego surrender his club to Andres
Factora, an "OXO" member from 4-A; that as Carriego started to walk away, Factora clubbed Carriego on the nape
causing the latter to fall; that Factora turned up the face of his fallen victim and struck him again in the face; that
while Carriego was in this prostrate position, Amadeo Peralta and Leonardo Dosal, companions of Factora,
repeatedly stabbed him.
The testimony of Pineda was corroborated in all its material points by Juanito Marayoc and Avelino Sauza, both
inmates of 4-B. These two prosecution witnesses identified Factora, Peralta and Dosal as the assailants of
Carriego.

From 4-B, the invading inmates of 4-A went down and forcibly entered 4-C. According to Oscar Fontillas, an inmate
of 4-C, he saw the prisoners from 4-A rushing toward their brigade; that among the invading inmates who forced
open the door of 4-C, with help from the inside provided by Visayan prisoners confined in 4-C, were Factora, Dosal,
Angel Parumog, Gervacio Larita, Ernesto Fernandez and Jose Tariman; that he saw Factora, Larita and Fernandez
kill Barbosa, while the rest of their companies instructed the Visayans to leave their cell and ordered the "Manila
boys" (Tagalogs) to remain. Antonio Pabarlan, another inmate of 4-C, declared that he saw Peralta stab Barbosa,
as Dosal, Larita, Florencio Luna, Parumog and Factora clubbed the hapless victim. Another inmate of 4-C, Jose
Halili, not only corroborated the testimony of Fontillas and Pabarlan but as well added grim details. He declared
that while Barbosa was trying to hide under a cot, he was beaten and stabbed to death by Dosal, Parumog,
Factora and Fernandez, with Luna, Larita, Pedro Cogol and Eilel Tugaya standing guard, armed with clubs and
sharp instruments, in readiness to repel any intervention from the Tagalog inmates. Carlos Espino, also confined in
4-C, declared that he saw Parumog, Peralta Factora and Larita assault and kill Barbosa.
The same witnesses for the prosecution testifies that after killing Barbosa, the invading "OXO" members and
sympathizers proceeded to hunt for Santos Cruz, another Tagalog like Carriego and Barbosa. Halili testified, that
he saw Peralta, Larita, Cogol and Tugaya take Santos Cruz to 4-A from 4-C; that Santos Cruz knelt down and
pleaded for his life, saying, "Maawa kayo sa akin. Marami akong anak;" that Luna and Peralta were unmoved as
they stabbed Santos Cruz to death. Pabarlan declared that after the death of Barbosa, Santos Cruz was brought to
4-A by the invading inmates but Cruz was able to slip back to his cell only to be recaptured by Factora, Dosal and
Luna and brought to near the fire escape where he was clubbed and stabbed to death by Parumog, Dosal, Factora
and Peralta. Fontillas and Espino corroborated the declarations of Halili and Pabarlan with respect to the killing of
Santos Cruz, and both mentioned Larita as one of the assailants of Cruz.
The trial judge summarized the evidence for the prosecution, thus:
"... it clearly appears that the three killings in question were an offshoot of the rivalry between the two
organizations. All those who were killed, namely, Barbosa, Carriego and Santos Cruz, were Tagalogs and well
known as members if not sympathizers of the Sigue Sigue, while the accused so charged with their killing were
mostly members if not sympathizers of the Oxo organization. These three killings were sparked by the commotion
that happened in the plaza between 8:00 and 9:00 in the morning, while the prisoners were preparing to go the
mass ... It was evident that the clash that occurred in the plaza produced a chain reaction among the members
and followers of the two organizations. The inmates of Building No. 1, known lair of the Sigue Sigues bolted the
door of their cells and tried to invade Building No. 4 where a big number of the Oxo members and their
sympathizers were confined, but, however, were forced to retreat by the timely arrival of the guards who sent
them back to their building. When the members of the Oxo in Building No. 4 learned about this, they went on a
rampage looking for members of the Sigue Sigue or their sympathizers who were confined with them in the same
building. As the evidence of the prosecution shows, the accused who were confined in Brigade 4-A of Building No.
4 led the attack. They destroyed the lock of their dormitories and with the help of their companions succeeded in
bolting the door of the different brigades, and once they succeeded in bolting the doors of the different brigades,
they went inside and tried to segregate the Tagalogs from their group; that as soon as they discovered their
enemies they clubbed and stabbed them to death ...
Admitting that he was one among several who killed Jose Carriego, Peralta nevertheless claims self-defense. He
testified that on the morning of the riot he was attacked by Carriego and Juan Estrella near the door of 4-A while
he was returning to his brigade from the chapel with some companions; that Carriego clubbed him on the head;
that he was able to parry the second blow of Carriego and then succeeded in squeezing Carriego's head with his
hands; that forthwith he whipped out an improvised ice pick and stabbed Carriego several times; that when he
(Peralta) was already dizzy due to the head wound he sustained from the clubbing, Carriego managed to slip
away; that he then became unconscious, and when he regained consciousness he found himself on a tarima with
his head bandaged.
Peralta's declarations do not inspire belief. The impressive array of prosecution witnesses who saw him actively
participate in the killing of the three victims pointed to him as the aggressor, not the aggrieved. Pineda, Marayoc
and Sauza positively identified him as one of the assailants of Carriego. Contrary to the pretensions of Peralta,
Carriego an alleged "Sigue-Sigue" member, would not have attacked him, knowing fully well that Building No. 4
was an "OXO" lair where the "Sigue-Sigue" members were outnumbered. Anent the killing of Barbosa and Santos
Cruz, Peralta failed to offer any explicit defense to rebut the inculpatory declarations of prosecution witnesses
Pabarlan and Espino who saw him participate in the killing of Barbosa and those of Halili, Fontillas and Espino who
identified him as one of the murderers of Santos Cruz.
For his part, Leonardo Dosal stated that he killed Santos Cruz, but also claims self-defense in exculpation. He
declared that Santos Cruz, Jose Carriego, Juanita Espino, Carlos Espino and Oscar Fontillas invaded 4-A where he
was confined; that a free-for-all forthwith ensued; that he then heard Santos Cruz call Carlos Espino, and advise
the latter to go away as "I will be the one to kill that person (Dosal);" that with a sharp instrument, Cruz hit him on

the head and then on the nose; that as Cruz was about to hit him again, he got hold of his ice pick and stabbed
Cruz repeatedly until the latter fell.
Dosal's avowal is clearly belied by the positive testimonies of Pabarlan, Halili and Espino who saw him participate
in the killing of Santos Cruz. If it is true that Dosal killed Santos Cruz in self-defense when the latter together with
his companions supposedly invaded Dosal's brigade (4-A), why is it that the body of Santos Cruz was found at the
fire escape near the pasillo between 4-C and 4-D of the first floor of Bldg. 1 instead of in 4-A which is located in
the upper floor? Moreover, Dosal failed to explain why he was seen in 4-C, which he does not deny, since he was
an inmate of 4-A where he was allegedly attacked. With respect to the murder of Carriego and Barbosa with which
Dosal was also charged, he did not offer any evidence in his behalf. Hence, the testimonies of Pineda, Marayoc
and Sauza identifying him as one of the killers of Carriego and those of Pabarlan, Halili and Espino implicating him
in the death of Santos Cruz, stand unrebutted.
Andres Factora declared that he clubbed Carriego and Santos Cruz under compulsion of his co-accused who
threatened to kill him if he disobeyed their order; that he did not hit Barbosa anymore because the latter was
already dead; that it was his co-accused who actually killed the three victims. Again, the declarations of the
prosecution witnesses, which were accorded full credence by the trial court, expose the guilt of Factora beyond
reasonable doubt. In fact, according to Pineda, whose testimony was corroborated by Marayoc, it was Factora who
started the mass assault by clubbing Carriego treacherously. Fontillas, Halili, Pabarlan and Espino pointed to
Factora as one of the killers of Barbosa, while at least three prosecution witnesses, namely, Pabarlan, Fontillas and
Espino, saw Factora participate in the slaying of Santos Cruz. The active participation of Factora in the killing,
which is clear index of voluntariness, thus negates his claim of compulsion and fear allegedly engendered by his
co-accused.
Angel Parumog, Gervasio Larita and Florencio Luna take refuge in the exculpatory device of alibi. Parumog
testified that he did not participate in the killing of the three inmates because he stayed during that entire hapless
day in the office of the trustees for investigation after the fight in the plaza; that he was implicated in the killing
by the prosecution witnesses because of his refusal to accede to their request to testify against his co-accused;
that he is not a Visayan but a Tagalog from Nueva Ecija. Larita claims that he did not know about the killing until
he was informed that three inmates had died; that on the day in question he was brought to the police trustee
brigade for investigation after the incident in the plaza; that he was escorted back to his brigade only in the
afternoon. Luna likewise disclaims any knowledge of the killing and asserts that for the entire duration of the riot
he remained in his cell (brigade 4-A).
The alibis of Parumog, Larita and Luna merit no credence when set against the positive testimonies of prosecution
witness identifying them as participants in the killing of Barbosa and Santos Cruz. Pabarlan, Espino and Fontillas
declared that Larita was one of the killers of Barbosa; Espino and Fontillas declared that they saw Larita kill Santos
Cruz; Pabarlan, Halili and Espino testified that they saw Parumog participate in the murder of Barbosa; Espino,
Fontillas and Pabarlan stated that Parumog took part in the killing of Santos Cruz. Pabarlan and Halili declared that
Luna participated in the fatal assault on Barbosa and Santos Cruz.
The alibis of the accused are thus sufficiently overcome by strong evidence to the contrary. The defense of alibi is
generally weak since it is easy to concoct. For this reason, courts view it with no small amount of caution, and
accept it only when proved by positive, clear and satisfactory evidence.6 In the case at bar, if Parumog and Larita
were really confined in the police trustee brigade for investigation on the day of the incident, there should have
been a record of the alleged investigation. But none was presented. The testimony of Luna that throughout the
riot he stayed in his cell is quite unnatural. He claims that he did not even help his cellmates barricade their
brigade with tarimas in order to delay if not prevent the entry of the invading inmates. According to him, he "just
waited in one corner."
The rule is settled that the defense of alibi is worthless in the face of positive identification by prosecution
witnesses pointing to the accused as particeps criminis.7 Moreover, the defense of alibi is an issue of fact the
resolution of which depends almost entirely on the credibility of witnesses who seek to establish it. In this respect
the relative weight which the trial judge accords to the testimony of the witnesses must, unless patently
inconsistent without evidence on record, be accepted.8 In the case at bar, the trial court, in dismissing the alibis
of Parumog, Larita and Luna, said that "their mere denial cannot prevail over the positive testimony of the
witnesses who saw them participate directly in the execution of the conspiracyto kill Barbosa, Carriego and Santos
Cruz."
The killing of Carriego constitutes the offense of murder because of the presence of treachery as a qualifying
circumstance: Carriego was clubbed by Factora from behind, and as he lay prostrate and defenseless, Peralta and
Dosal stabbed him repeatedly on the chest. The blow on the nape and the penetrating chest wounds were all
fatal, according to Dr. Bartolome Miraflor. Abuse of superior strength qualified the killing of Barbosa and Santos
Cruz to the category of murder. The victims, who were attacked individually were completely overwhelmed by

their assailants' superiority in number and weapons and had absolutely no chance at all to repel or elude the
attack. All the attackers were armed with clubs or sharp instruments while the victims were unarmed, as so found
by the trial court. In fact, Halili testified that Barbosa was clubbed and stabbed to death while he was trying to
hide under a cot, and Santos Cruz was killed while he was on his knees pleading for his life.
The essential issue that next confronts us is whether conspiracy attended the commission of the murders. The
resolution of this issue is of marked importance because upon it depends the quantity and quality of the penalties
that must be imposed upon each of the appellants.
For this purpose, it is not amiss to briefly restate the doctrine on conspiracy, with particular emphasis on the
facets relating to its nature, the quantum of proof required, the scope and extent of the criminal liability of the
conspirators, and the penalties imposable by mandate of applicable law.
Doctrine. A conspiracy exists when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it.9 Generally, conspiracy is not a crime except when the law specifically provides a
penalty therefor as in treason,10 rebellion11 and sedition.12 The crime of conspiracy known to the common law is
not an indictable offense in the Philippines.13 An agreement to commit a crime is a reprehensible act from the
view-point of morality, but as long as the conspirators do not perform overt acts in furtherance of their malevolent
design, the sovereignty of the State is not outraged and the tranquility of the public remains undisturbed.
However, when in resolute execution of a common scheme, a felony is committed by two or more malefactors,
the existence of a conspiracy assumes pivotal importance in the determination of the liability of the perpetrators.
In stressing the significance of conspiracy in criminal law, this Court in U.S. vs. Infante and Barreto14 opined that
While it is true that the penalties cannot be imposed for the mere act of conspiring to commit a crime unless the
statute specifically prescribes a penalty therefor, nevertheless the existence of a conspiracy to commit a crime is
in many cases a fact of vital importance, when considered together with the other evidence of record, in
establishing the existence, of the consummated crime and its commission by the conspirators.
Once an express or implied conspiracy is proved, all of the conspirators are liable as co-principals regardless of
the extent and character of their respective active participation in the commission of the crime or crimes
perpetrated in furtherance of the conspiracy because in contemplation of law the act of one is the act of all.15
The foregoing rule is anchored on the sound principle that "when two or more persons unite to accomplish a
criminal object, whether through the physical volition of one, or all, proceeding severally or collectively, each
individual whose evil will actively contributes to the wrong-doing is in law responsible for the whole, the same as
though performed by himself alone."16 Although it is axiomatic that no one is liable for acts other than his own,
"when two or more persons agree or conspire to commit a crime, each is responsible for all the acts of the others,
done in furtherance of the agreement or conspiracy."17 The imposition of collective liability upon the conspirators
is clearly explained in one case18 where this Court held that
... it is impossible to graduate the separate liability of each (conspirator) without taking into consideration the
close and inseparable relation of each of them with the criminal act, for the commission of which they all acted by
common agreement ... The crime must therefore in view of the solidarity of the act and intent which existed
between the ... accused, be regarded as the act of the band or party created by them, and they are all equally
responsible ...
Verily, the moment it is established that the malefactors conspired and confederated in the commission of the
felony proved, collective liability of the accused conspirators attaches by reason of the conspiracy, and the court
shall not speculate nor even investigate as to the actual degree of participation of each of the perpetrators
present at the scene of the crime. Of course, as to any conspirator who was remote from the situs of aggression,
he could be drawn within the enveloping ambit of the conspiracy if it be proved that through his moral
ascendancy over the rest of the conspirators the latter were moved or impelled to carry out the conspiracy.
In fine, the convergence of the wills of the conspirators in the scheming and execution of the crime amply justifies
the imputation to all of them the act of any one of them. It is in this light that conspiracy is generally viewed not
as a separate indictable offense, but a rule for collectivizing criminal liability.
The ensnaring nature of conspiracy is projected in bold relief in the cases of malversation and rape committed in
furtherance of a common design.
The crime of malversation is generally committed by an accountable public officer who misappropriates public
funds or public property under his trust.19 However, in the classic case of People vs. Ponte20 this Court
unequivocally held that a janitor and five municipal policemen, all of whom were not accountable public officers,
who conspired and aided a municipal treasurer in the malversation of public funds under the latter's custody,
were principally liable with the said municipal treasurer for the crime of malversation. By reason of conspiracy, the

felonious act of the accountable public officer was imputable to his co-conspirators, although the latter were not
similarly situated with the former in relation to the object of the crime committed. Furthermore, in the words of
Groizard, "the private party does not act independently from the public officer; rather, he knows that the funds of
which he wishes to get possession are in the latter's charge, and instead of trying to abstract them by
circumventing the other's vigilance he resorts to corruption, and in the officer's unfaithfulness seeks and finds the
most reprehensible means of accomplishing a deed which by having a public officer as its moral instrument
assumes the character of a social crime."21 In an earlier case22 a non-accountable officer of the Philippine
Constabulary who conspired with his superior, a military supply officer, in the malversation of public funds was
adjudged guilty as co-principal in the crime of malversation, although it was not alleged, and in fact it clearly
appeared, that the funds misappropriated were not in his custody but were under the trust of his superior, an
accountable public officer.
In rape, a conspirator is guilty not only of the sexual assault he personally commits but also of the separate and
distinct crimes of rape perpetrated by his co-conspirators. He may have had carnal knowledge of the offended
woman only once but his liability includes that pertaining to all the rapes committed in furtherance of the
conspiracy. Thus, in People vs. Villa,23 this Court held that
... from the acts performed by the defendants front the time they arrived at Consolacion's house to the
consummation of the offense of rape on her person by each and everyone of them, it clearly appears that they
conspired together to rape their victim, and therefore each one is responsible not only for the rape committed
personally by him, but also that committed by the others, because each sexual intercourse had, through force, by
each one of the defendants with the offended was consummated separately and independently from that had by
the others, for which each and every one is also responsible because of the conspiracy.
The rule enunciated in People vs. Villa was reiterated in People vs. Quitain24 where the appellant Teofilo Anchita
was convicted of forcible abduction with double rape for having conspired and cooperated in the sexual assault of
the aggrieved woman, although he himself did not actually rape the victim. This Court observed:
We have no doubt all in all that Teofilo Anchita took part in the sexual assault ... the accused inserted his fingers in
the woman's organ, and widened it. Whether he acted out of lewdness or to help his brother-in-law consummate
the act, is immaterial; it was both maybe. Yet, surely, by his conduct, this prisoner conspired and cooperated, and
is guilty.
With respect to robbery in band, the law presumes the attendance of conspiracy so much so that "any member of
a band who is present at the commission of a robbery by the band, shall be punished as principal of any of the
assaults committed by the band, unless it be shown that he attempted to prevent the same."25 In this instance,
conspiracy need not be proved, as long as the existence of a band is clearly established. Nevertheless, the liability
of a member of the band for the assaults committed by his group is likewise anchored on the rule that the act of
one is the act of all.
Proof of conspiracy. While conspiracy to commit a crime must be established by positive evidence,26 direct proof
is not essential to show conspiracy.27 Since by it nature, conspiracy is planned in utmost secrecy, it can seldom
be proved by direct evidence.28 Consequently, competent and convincing circumstantial evidence will suffice to
establish conspiracy. According to People vs. Cabrera,29 conspiracies are generally proved by a number of
indefinite acts, conditions, and circumstances which vary according to the purposes to be accomplished. If it be
proved that the defendants pursued by their acts the same object, one performing one part and another another
part of the same, so as to complete it, with a view to the attainment of the same object, one will be justified in the
conclusion that they were engaged in a conspiracy to effect the object." Or as elucidated in People vs. Carbonel30
the presence of the concurrence of minds which is involved in conspiracy may be inferred from "proofs of facts
and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole.
If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful
object, each doing a part so that their acts, though apparently independent, were in fact connected and
cooperative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be
inferred though no actual meeting among to concert means is proved ..." In two recent cases,31 this Court ruled
that where the acts of the accused, collectively and individually, clearly demonstrate the existence of a common
design toward the accomplishment of the same unlawful purpose, conspiracy is evident.
Conspiracy presupposes the existence of a preconceived plan or agreement; however, to establish conspiracy, "it
is not essential that there be proof as to previous agreement to commit a crime, it being sufficient that the
malefactors committed shall have acted in concert pursuant to the same objective."32 Hence, conspiracy is
proved if there is convincing evidence to sustain a finding that the malefactors committed an offense in
furtherance of a common objective pursued in concert.

Liability of conspirators. A time-honored rule in the corpus of our jurisprudence is that once conspiracy is proved,
all of the conspirators who acted in furtherance of the common design are liable as co-principals.33 This rule of
collective criminal liability emanates from the ensnaring nature of conspiracy. The concerted action of the
conspirators in consummating their common purpose is a patent display of their evil partnership, and for the
consequences of such criminal enterprise they must be held solidarity liable.
However, in order to hold an accused guilty as co-principal by reason of conspiracy, it must be established that he
performed an overt act in furtherance of the conspiracy, either by actively participating in the actual commission
of the crime, or by lending moral assistance to his co-conspirators by being present at the scene of the crime, or
by exerting moral ascendancy over the rest of the conspirators as to move them to executing the conspiracy. The
difference between an accused who is a principal under any of the three categories enumerated in Art. 17 of the
Revised Penal Code and a co-conspirator who is also a principal is that while the former's criminal liability is
limited to his own acts, as a general rule, the latter's responsibility includes the acts of his fellow conspirators.
In People vs. Izon, et al.,34 this Court acquitted appellant Francisco Robles, Jr., who was convicted by the trial
court of robbery with homicide as a conspirator, on the ground that although he may have been present when the
conspiracy to rob was proposed and made, "Robles uttered not a word either of approval or disapproval. There are
authorities to the effect that mere presence at the discussion of a conspiracy, even approval of it, without any
active participation in the same, is not enough for purposes of conviction." In a more recent case,35this Court, in
exonerating one of the appellants, said:
There is ample and positive evidence on record that appellant Jose Guico was absent not only from the second
meeting but likewise from the robbery itself. To be sure, not even the decision under appeal determined
otherwise. Consequently, even if Guico's participation in the first meeting sufficiently involved him with the
conspiracy (as he was the one who explained the location of the house to be robbed in relation to the surrounding
streets and the points thereof through which entrance and exit should be effected), such participation and
involvement, however, would be inadequate to render him criminally liable as a conspirator. Conspiracy alone,
without the execution of its purpose, is not a crime punishable by law, except in special instances (Article 8,
Revised Penal Code) which, however, do not include robbery.
Imposition of multiple penalties where conspirators commit more than one offense. Since in conspiracy, the act of
one is the act of all, then, perforce, each of the conspirators is liable for all of the crimes committed in furtherance
of the conspiracy. Consequently, if the conspirators commit three separate and distinct crimes of murder in
effecting their common design and purpose, each of them is guilty of three murders and shall suffer the
corresponding penalty for each offense. Thus in People vs. Masin,36 this Court held:
... it being alleged in the information that three crimes were committed not simultaneously indeed but
successively, inasmuch as there was, at least, solution of continuity between each other, the accused (seven in
all) should be held responsible for said crimes. This court holds that the crimes are murder ... In view of all these
circumstances and of the frequently reiterated doctrine that once conspiracy is proven each and every one of the
conspirators must answer for the acts of the others, provided said acts are the result of the common plan or
purpose ... it would seem evident that the penalty that should be imposed upon each of the appellants for each of
their crimes should be the same, and this is the death penalty ... (emphasis supplied).
In the aforesaid case, however, the projected imposition of three death penalties upon each of the conspirators for
the three murders committed was not carried out due to the lack of the then requisite unanimity in the imposition
of the capital penalty.
In another case,37 this Court, after finding that conspiracy attended the commission of eleven murders, said
through Mr. Justice Tuason:
Some members of this Court opine that the proper penalty is death, under the circumstances of the case, but they
fall short of the required number for the imposition of this punishment. The sentence consequently is reclusion
perpetua; but each appellant is guilty of as many crimes of murder as there were deaths (eleven) and should be
sentenced to life imprisonment for each crime, although this may be a useless formality for in no case can
imprisonment exceed forty years. (Emphasis supplied.)
In People vs. Masani,38 the decision of the trial court imposing only one life imprisonment for each of the accused
was modified by this Court on appeal on the ground that "inasmuch as their (the conspirators') combined attack
resulted in the killing of three persons, they should be sentenced to suffer said penalty (reclusion perpetua) for
each of the three victims (crimes)." (Emphasis supplied.)
It is significant to note that in the abovementioned cases, this Court consistently stressed that once conspiracy is
ascertained, the culpability of the conspirators is not only solidary (all co-principals) but also multiple in relation to

the number of felonies committed in furtherance of the conspiracy. It can also be said that had there been a
unanimous Court in the Masin and Macaso cases, multiple death penalties would have been imposed upon all the
conspirators.
Legality and practicality of imposing multiple death penalties upon conspirators. An accused who was charged
with three distinct crimes of murder in a single information was sentenced to two death penalties for two
murders,39 and another accused to thirteen (13) separate death penalties for the 13 killings he perpetrated.40
Therefore there appears to be no legal reason why conspirators may not be sentenced to multiple death penalties
corresponding to the nature and number of crimes they commit in furtherance of a conspiracy. Since it is the
settled rule that once conspiracy is established, the act of one conspirator is attributable to all, then each
conspirator must be held liable for each of the felonious acts committed as a result of the conspiracy, regardless
of the nature and severity of the appropriate penalties prescribed by law.
The rule on the imposition of multiple penalties where the accused is found guilty of two or more separate and
distinct crimes charged in one information, the accused not having interposed any objection to the multiplicity of
the charges, was enunciated in the leading case of U.S. vs. Balaba,41 thus: Upon conviction of two or more
offenses charged in the complaint or information, the prescribed penalties for each and all of such offenses may
be imposed, to be executed in conformity with the provisions of article 87 of the Penal Code [now article 70 of the
Revised Penal Code]. In other words, all the penalties corresponding to the several violations of law should be
imposed. Conviction for multiple felonies demands the imposition of multiple penalties.
The two conceptual exceptions to the foregoing rule, are the complex crime under article 48 of the Revised Penal
Code and the special complex crime (like robbery with homicide). Anent an ordinary complex crime falling under
article 48, regardless of the multiplicity of offenses committed, there is only one imposable penalty the penalty
for the most serious offense applied in its maximum period. Similarly, in special complex crimes, there is but a
single penalty prescribed by law notwithstanding the number of separate felonies committed. For instance, in the
special complex crime of robbery with hommicide the imposible penalty is reclusion perpetua to death42
irrespective of the number of homicides perpetrated by reason or on occasion of the robbery.
In Balaba, the information charged the accused with triple murder. The accused went to trial without objection to
the said information which charged him with more than one offense. The trial court found the accused guilty of
two murders and one homicide but it imposed only one death penalty. In its review en consulta, this Court
modified the judgment by imposing separate penalties for each of the three offenses committed. The Court, thru
Mr. Justice Carson (with Mr. Justice Malcolm dissenting with respect to the imposition of two death penalties), held:
The trial judge was erroneously of the opinion that the prescribed penalties for the offenses of which the accused
was convicted should be imposed in accord with the provisions of article 89 of the Penal Code. That article is only
applicable to cases wherein a single act constitutes two or more crimes, or when one offense is a necessary
means for committing the other. (U.S. vs. Ferrer, 1 Phil. Rep., 56)
It becomes our duty, therefore, to determine what penalty or penalties should have been imposed upon the
accused upon conviction of the accused of three separate felonies charged in the information.
There can be no reasonable doubt as to the guilt of the convict of two separate crimes of asesinato (murder)
marked with the generic aggravating circumstances mentioned in the decision of the trial judge ... It follows that
the death penalty must and should be imposed for each of these offenses ...
Unless the accused should be acquitted hereafter on appeal of one or both the asesinatos with which he is
charged in the information, it would seem to be a useless formality to impose separate penalties for each of the
offenses of which he was convicted, in view of the nature of the principal penalty; but having in mind the
possibility that the Chief Executive may deem it proper to grant a pardon for one or more of the offenses without
taking action on the others; and having in mind also the express provisions of the above cited article 87 of the
Penal Code, we deem it proper to modify the judgment entered in the court below by substituting for the penalty
imposed by the trial judge under the provisions of article 89 of the Code, the death penalty prescribed by law for
each of the two separate asesinatos of which he stands convicted, and the penalty of 14 years, 8 months and 1
day of reclusion temporal (for the separate crime of homicide) ... these separate penalties to be executed in
accord with the provisions of article 87 of the Penal Code. (Emphasis supplied.)
The doctrine in Balaba was reiterated in U.S. vs. Jamad43 where a unanimous Court, speaking again thru Mr.
Justice Carson (with Mr. Justice Malcolm concurring in the result in view of the Balaba ruling), opined:
For all the offenses of which the accused were convicted in the court below, the trial judge imposed the death
penalty, that is to say the penalty prescribed for the most serious crime committed, in its maximum degree, and
for this purpose made use of the provisions of article 89 of the Penal Code [now article 48 of the Revised Penal

Code]. But as indicated in the case of the United States vs. Balaba, recently decided wherein the controlling facts
were substantially similar to those in the case at bar, "all of the penalties corresponding to the several violations
of law" should have been imposed under the express provisions of article 87 [now engrafted in article 70 of the
Revised Penal Code] and under the ruling in that case, the trial court erred in applying the provision of article 89
of the code.
We conclude that the judgment entered in the court below should be reversed, ... and that the following separate
penalties should be imposed upon him [the accused Jamad], to be executed in accordance with article 87 of the
Penal Code: (1) The penalty of death for the parricide of his wife Aring; (2) the penalty of life imprisonment for the
murder of Labonete; (3) the penalty of life imprisonment for the murder of Torres; (4) the penalty of 12 years and
one day of cadena temporal for the frustrated murder of Taclind ...
The doctrine in Balaba was reechoed in People vs. Guzman,44 which applied the pertinent provisions of the
Revised Penal Code, where this Court, after finding the accused liable as co-principals because they acted in
conspiracy, proceeded to stress that where an "information charges the defendants with the commission of
several crimes of murder and frustrated murder, as they failed to object to the multiplicity of the charges made in
the information, they can be found guilty thereof and sentenced accordingly for as many crimes the information
charges them, provided that they are duly established and proved by the evidence on record." (Emphasis
supplied.)
The legal and statutory justification advanced by the majority in Balaba for imposing all the penalties (two deaths
and one life imprisonment) corresponding to the offense charged and proved was article 87 of the old Penal Code
which provided:
When a person is found guilty of two or more felonies or misdemeanors, all the penalties corresponding to the
several violations of law shall be imposed, the same to be simultaneously served, if possible, according to the
nature and effects of such penalties.
in relation to article 88 of the old Code which read:
When all or any of the penalties corresponding to the several violations of the law can not be simultaneously
executed, the following rules shall be observed with regard thereto:
1.
In the imposition of the penalties, the order of their respective severity shall be followed so that they may
be executed successively or as nearly as may be possible, should a pardon have been granted as to the penalty
or penalties first imposed, or should they have been served out.
The essence and language, with some alterations in form and in the words used by reason of style, of the abovecited provisions have been preserved in article 70 of the Revised Penal Code which is the product of the merger of
articles 87 and 88 of the old Penal Code. Article 70 provides:
When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the
penalties will so permit; otherwise, the following rules shall be observed:
In the imposition of the penalties, the order of their respective severity shall be followed so that they may be
executed successively or as nearly as may be possible, should a pardon have been granted as to the penalty or
penalties first imposed, or should they have been served out.
Although article 70 does not specifically command, as the former article 87 clearly did, that "all the penalties
corresponding to the several violations of law shall be imposed," it is unmistakable, however, that article 70
presupposes that courts have the power to impose multiple penalties, which multiple penal sanctions should be
served either simultaneously or successively. This presumption of the existence of judicial power to impose all the
penalties corresponding to the number and nature of the offenses charged and proved is manifest in the opening
sentence of article 70: "When the culprit has to serve two or more penalties, he shall serve them simultaneously if
the nature of the penalties will so permit ..." (Emphasis supplied.) Obviously, the two or more penalties which the
culprit has to serve are those legally imposed by the proper court. Another reference to the said judicial
prerogative is found in the second paragraph of article 70 which provides that "in the imposition of the penalties,
the order of their respective severity shall be followed ..." Even without the authority provided by article 70,
courts can still impose as many penalties as there are separate and distinct offenses committed, since for every
individual crime committed, a corresponding penalty is prescribed by law. Each single crime is an outrage against
the State for which the latter, thru the courts ofjustice, has the power to impose the appropriate penal sanctions.
With respect to the imposition of multiple death penalties, there is no statutory prohibition or jurisprudential
injunction against it. On the contrary, article 70 of the Revised Penal Code presumes that courts have the power

to mete out multiple penalties without distinction as to the nature and severity of the penalties. Moreover, our
jurisprudence supports the imposition of multiple death penalties as initially advocated in Balaba and
thunderously reechoed in Salazar where the accused was sentenced on appeal to thirteen (13) death penalties.
Significantly, the Court in Balaba imposed upon the single accused mixed multiple penalties of two deaths and
one life imprisonment.
The imposition of multiple death penalties is decried by some as a useless formality, an exercise in futility. It is
contended, undeniably enough, that a death convict like all mortals, has only one life to forfeit. And because of
this physiological and biological attribute of man, it is reasoned that the imposition of multiple death penalties is
impractical and futile because after the service of one capital penalty, the execution of the rest of the death
penalties will naturally be rendered impossible. The foregoing opposition to the multiple imposition of death
penalties suffers from four basic flaws: (1) it fails to consider the legality of imposing multiple capital penalties; (2)
it fails to distinguish between imposition of penalty and service of sentence; (3) it ignores the fact that multiple
death sentences could be served simultaneously; and (4) it overlooks the practical merits of imposing multiple
death penalties.
The imposition of a penalty and the service of sentence are two distinct, though related, concepts. The imposition
of the proper penalty or penalties is determined by the nature, gravity and number of offenses charged and,
proved, whereas service of sentence is determined by the severity and character of the penalty or penalties
imposed. In the imposition of the proper penalty or penalties, the court does not concern itself with the possibility
or practicality of the service of the sentence, since actual service is a contingency subject to varied factors like
successful escape of the convict, grant of executive clemency or natural death of the prisoner. All that go into the
imposition of the proper penalty or penalties, to reiterate, are the nature, gravity and number of the offenses
charged and proved and the corresponding penalties prescribed by law.
Multiple death penalties are not impossible to serve because they will have to be executed simultaneously. A
cursory reading of article 70 will show that there are only two modes of serving two or more (multiple) penalties:
simultaneously or successively. The first rule is that two or more penalties shall be served simultaneously if the
nature of the penalties will so permit. In the case of multiple capital penalties, the nature of said penal sanctions
does not only permit but actually necessitates simultaneous service.
The imposition of multiple death penalties, far from being a useless formality, has practical importance. The
sentencing of an accused to several capital penalties is an indelible badge of his extreme criminal perversity,
which may not be accurately projected by the imposition of only one death sentence irrespective of the number of
capital felonies for which he is liable. Showing thus the reprehensible character of the convict in its real
dimensions, the possibility of a grant of executive clemency is justifiably reduced in no small measure. Hence, the
imposition of multiple death penalties could effectively serve as a deterrent to an improvident grant of pardon or
commutation. Faced with the utter delinquency of such a convict, the proper penitentiary authorities would
exercise judicious restraint in recommending clemency or leniency in his behalf.
Granting, however, that the Chief Executive, in the exercise of his constitutional power to pardon (one of the
presidential prerogatives which is almost absolute) deems it proper to commute the multiple death penalties to
multiple life imprisonments, then the practical effect is that the convict has to serve the maximum of forty (40)
years of multiple life sentences. If only one death penalty is imposed, and then is commuted to life imprisonment,
the convict will have to serve a maximum of only thirty years corresponding to a single life sentence.
Reverting now to the case at bar, it is our considered view that the trial court correctly ruled that conspiracy
attended the commission of the murders. We quote with approval the following incisive observations of the court
a quo in this respect:
Although, there is no direct evidence of conspiracy, the Court can safely say that there are several circumstances
to show that the crime committed by the accused was planned. The following circumstances show beyond any
doubt the acts of conspiracy: First, all those who were killed, Barbosa, Santos Cruz and Carriego, were Tagalogs.
Although there were many Tagalogs like them confined in Building 4, these three were singled out and killed
thereby showing that their killing has been planned. Second, the accused were all armed with improvised
weapons showing that they really prepared for the occasion. Third, the accused accomplished the killing with
team work precision going from one brigade to another and attacking the same men whom they have previously
marked for liquidation and lastly, almost the same people took part in the killing of Carriego, Barbosa and Santos
Cruz.
It is also important to note that all the accused were inmates of brigade 4-A; that all were from either the Visayas
or Mindanao except Peralta who is from Masbate and Parumog who hails from Nueva Ecija; that all were either
"OXO" members or sympathizers; and that all the victims were members of the "Sigue-Sigue" gang.

The evidence on record proves beyond peradventure that the accused acted in concert from the moment they
bolted their common brigade, up until the time they killed their last victim, Santos Cruz. While it is true that
Parumog, Larita and Luna did not participate in the actual killing of Carriego, nonetheless, as co-conspirators they
are equally guilty and collectively liable for in conspiracy the act of one is the act of all. It is not indispensable that
a co-conspirator should take a direct part in every act and should know the part which the others have to perform.
Conspiracy is the common design to commit a felony; it is not participation in all the details of the execution of
the crime. All those who in one way or another help and cooperate in the consummation of a felony previously
planned are co-principals.45 Hence, all of the six accused are guilty of the slaughter of Carriego, Barbosa and
Santos Cruz each is guilty of three separate and distinct crimes of murder.
We cannot agree, however, with the trial court that evident premeditation was also present. The facts on record
and the established jurisprudence on the matter do not support the conclusion of the court a quo that evident
premeditation "is always present and inherent in every conspiracy." Evident premeditation is not inherent in
conspiracy as the absence of the former does not necessarily negate the existence of the latter.46 Unlike in
evident premeditation where a sufficient period of time must elapse to afford full opportunity for meditation and
reflection for the perpetrator to deliberate on the consequences of his intended deed, conspiracy arises at the
very instant the plotters agree, expressly or impliedly, to commit the felony and forthwith decide to commit it.47
This view finds added support in People vs. Custodia,48 wherein this Court stated:
Under normal conditions, where the act of conspiracy is directly established, with proof of the attendant
deliberation and selection of the method, time and means of executing the crime, the existence of evident
premeditation can be taken for granted. In the case before us, however, no such evidence exists; the conspiracy
is merely inferred from the acts of the accused in the perpetration of the crime. There is no proof how and when
the plan to kill Melanio Balancio was hatched, or what time elapsed before it was carried out; we are, therefore,
unable to determine if the appellants enjoyed "sufficient time between its inception and its fulfillment
dispassionately to consider and accept the consequences." (cf. People vs. Bangug, 52 Phil. 91.) In other words,
there is no showing of the opportunity of reflection and the persistence in the criminal intent that characterize the
aggravating circumstance of evident premeditation (People vs. Mendoza, 91 Phil. 58; People vs. Iturriaga, 47 Off.
Gaz., [Supp to No. 12] 166; People vs. Lesada 70 Phil., 525.)
Not a single extenuating circumstance could be appreciated in favor of any of the six accused, as they did neither
allege nor prove any.
In view of the attendance of the special aggravating circumstance of quasi-recidivism, as all of the six accused at
the time of the commission of the offenses were serving sentences49 in the New Bilibid Prison at Muntinlupa by
virtue of convictions by final judgments the penalty for each offense must be imposed in its maximum period,
which is the mandate of the first paragraph of article 160 of the Revised Penal Code. Viada observes, in
apposition, that the severe penalty imposed on a quasi-recidivist is justified because of his perversity and
incorrigibility.50
ACCORDINGLY, the judgment a quo is hereby modified as follows: Amadeo Peralta, Andres Factora, Leonardo
Dosal, Angel Parumog, Gervasio Larita and Florencio Luna are each pronounced guilty of three separate and
distinct crimes of murder, and are each sentenced to three death penalties; all of them shall, jointly and severally,
indemnify the heirs of each of the three deceased victims in the sum of P12,000;51 each will pay one-sixth of the
costs
G.R. No. 128966

August 18, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EDWIN DE VERA y GARCIA, RODERICK GARCIA y GALAMGAM, KENNETH FLORENDO and ELMER CASTRO, accused,
EDWIN DE VERA y GARCIA, appellant.
PANGANIBAN, J.:
When is a lookout deemed an accomplice and when a conspirator? What is the distinction between the two?
Statement of the Case
These are the main questions passed upon by the Court in resolving the present appeal, which assails the March
12, 1997 Decision1 of the Regional Trial Court of Quezon City (Branch 57) in Criminal Case No. Q-92-31323,
finding Appellant Edwin De Vera and Accused Roderick Garcia guilty beyond reasonable doubt of murder and
sentencing them to reclusion perpetua.

In an Information dated June 11, 1992, Assistant City Prosecutor Tirso M. Gavero charged with murder Appellant
Edwin De Vera, together with Roderick Garcia and two other persons who were subsequently identified during the
trial as Kenneth Florendo and Elmer Castro. The crime was allegedly committed as follows:
That on or about the 8th day of June, 1992, in Quezon City, Philippines, the said accused, conspiring [and]
confederating [with] and helping . . . two (2) other persons, did then and there wilfully, unlawfully and feloniously
with intent to kill, with evident premeditation, treachery and use of superior strength, attack, assault and employ
personal violence upon the person of one FREDERICK CAPULONG y DIZON, by then and there shooting him with
the use of a .22 cal. with trade mark "Paspar Armas" bearing SN-29069 with five (5) pieces of caliber 22 ammo
inside, hitting him between his eyes and striking him with the use of a baseball bat in the mouth, thereby inflicting
upon him serious and mortal wounds which were the direct and immediate cause of his untimely death, to the
damage and prejudice of the heirs of the said Frederick Capulong y Dizon.2
On July 9, 1992, Assistant City Prosecutor Enrico P. Bringas filed a Motion to Amend the Information to include the
use of a .32 caliber firearm in the killing of Frederick Capulong. The trial court granted the Motion, and the
Amended Information now reads as follows:
That on or about the 8th day of June, 1992, in Quezon City, Philippines, the said accused, conspiring [and]
confederating [with] and helping . . . two (2) other persons, did then and there wilfully, unlawfully and feloniously
with intent to kill, with evident premeditation, treachery and use of superior strength, attack, assault and employ
personal violence upon the person of one FREDERICK CAPULONG y DIZON, by then and there shooting him with
the use of a .22 cal. with trade mark "Paspar Armas" bearing SN-29069 with five (5) pieces of caliber 22 ammo
inside and a .32 cal. firearm of still undetermined make, hitting him between his eyes and striking him with the
use of a baseball bat in the mouth, thereby inflicting upon him serious and mortal wounds which were the direct
and immediate cause of his untimely death, to the damage and prejudice of the heirs of the said Frederick
Capulong y Dizon.3
On their arraignment, Appellant Edwin De Vera4 and Roderick Garcia5 pleaded not guilty. The other two accused
were at large. Trial in due course proceeded only against De Vera and Garcia. Thereafter, the trial court rendered
the assailed Decision, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered finding the accused EDWIN DE VERA y GARCIA and RODERICK GARCIA
y GALAMGAM guilty beyond reasonable doubt of the crime of MURDER and they are hereby accordingly sentenced
to suffer reclusion perpetua, including all its accessory penalties; to indemnify the heirs of Frederick Capulong y
Dizon, as follows:
a)

P50,000.00, as death indemnity;

b)

P211,670.00, as compensatory damages;

c)

P600,000.00, as indemnification for loss of earning capacity;

d)

P500,000.00, as moral damages;

e)

Interest at the legal rate on a) and b), hereof from the filing of the information until full payment; and,

f)

Costs of suit.16

Only Edwin De Vera filed a Notice of Appeal.7

The Facts
Version of the Prosecution
In its Brief,8 the Office of the Solicitor General presented the following narration of facts:9
As earlier stated, the prosecution presented an eyewitness in the person of Bernardino Cacao, a resident of
Denver Loop Street, Filinvest II, Quezon City before he moved to No. 58 Elisa Street, Caloocan City. He was
residing at Filinvest II, together with his wife and children, at the time of the incident on June 28, 1992 in the
house owned by David Lim. He was then employed at a Kodak branch in Caloocan City, while his wife served as
secretary of the homeowners association.1wphi1.nt
About 1:30 in the afternoon of June 8, 1992, while bringing out the garbage, the witness saw a car passing by,
driven by victim Frederick Capulong together with four (4) other passengers. He knew the victim by name who

was a resident of the subdivision. He recognized and identified two of the passengers as Kenneth Florendo and
Roderick Garcia, both familiar in the subdivision.
Cacao did not at first notice anything unusual inside the car while it passed by him, but then he heard
unintelligible voices coming from the car as it was cruising around Denver Loop Street, a circular road whose
entrance and exit were through the same point (ibid, p. 12). His curiosity taking [the] better part of him, Cacao
walked to the opposite side of the road from where he saw the car already parked. Moments later, he saw the
victim dragged out of the car by Florendo and brought to a grassy place. Florendo was holding a gun (ibid, p. 13).
Upon reaching the grassy spot, Florendo aimed and fired the gun at the victim, hitting him between the eyes,
After the shooting, Florendo and his companions fled in different directions.
When he submitted a sworn statement to the investigating prosecutor, Cacao attached a sketch of the crime
scene prepared by police officers, indicating therein his relative position at the time of the incident. While
testifying in court, Cacao identified Garcia and pointed to appellant as among the companions of Florendo.
Ten minutes later, or about 2:40 in the afternoon, the desk officer of the Investigation Division, Station 5, Central
Police District, Quezon City received a report about the shooting incident from a security guard of the subdivision.
The officer immediately dispatched a team to Filinvest II, composed of PO2 Armando Garcia, PO3 Armando Junio,
and PO3 Jovencio Villacorte, to investigate and gather evidence (TSN, p. 5, September 13, 1993). A security guard
guided the team to the corner of Denver and Doa Justina Streets, site of the shooting, where they discovered
blood stains and damaged grass (ibid, p. 6). The guard informed them that the victim was rushed to the East
Avenue Medical Center by other security guards. The policemen then found a color red sports car with plate no.
NBZ 869, with engine still running and its doors opened. They recovered inside the car several class cards and a
license belonging to one Ric Capulong, who was later identified as Frederick Capulong.
The policemen went around the subdivision to look for possible suspects. They came upon a person wearing
muddled maong pants and white t-shirt "standing and walking around" near the clubhouse of the subdivision.
When asked his name, the person identified himself as Edwin de Vera, herein appellant. Explaining the mud stains
on his pants, appellant declared that he was a victim of a hold-up. Suspicious [of] his conduct, the policemen
brought appellant to Station 5 and turned him over to the desk officer for investigation.
Another prosecution witness, SPO3 Mario Guspid, a police investigator since 1989, was assigned to investigate the
shooting of Frederick Capulong. He was assisted by SPO4 Pablito Selvido, SPO2 Armando Rivera, SPO3 Jovencio
Villacorte, SPO3 Rolando Gacute, SPO3 Danilo Castro and other police officers.
Upon receiving his assignment, SPO3 Guspid immediately went to the East Avenue Medical Center where he saw
the victim lying inside the intensive care unit receiving medical treatment. The victim was unconscious. After
conferring with the victim's parents and relatives, SPO3 Guspid returned to Station 5. On his arrival, the desk
officer referred appellant to him for questioning. He was told that appellant was picked up near the crime scene
acting suspiciously. When appellant was asked about his participation in the shooting, he was reluctant at first to
talk, but later relented after SPO3 Guspid told him that his conscience would bother him less if he would tell the
truth.
Without any hesitation, appellant admitted being [with the] group which perpetrated the crime, and implicated
Roderick Garcia. He was then persuaded to accompany a group of policemen to the residence of Garcia, which
turned out to be at Doa Justina Street, Filinvest II Subdivision. Finding Garcia at home, SPO3 Guspid informed him
that he was implicated by appellant [in] the crime. He was then invited to the station to shed light [on] the
incident. Garcia consented.
At Station 5, SPO3 Guspid interviewed appellant and Garcia. In the course of the interview, Garcia revealed the
place where he hid a .22 caliber gun, black t-shirt and black cap. According to Garcia, Florendo asked them to
wear black t-shirts. With the revelation, SPO3 Guspid, SPO2 Rivera, SPO3 Gacute and SPO3 Castro, together with
the suspects, went back to the subdivision and proceeded to a grassy portion near the boundary of Filinvest II and
San Mateo, Rizal. The place was near a creek and about 50 meters away from the residence of Garcia (TSN, pp. 914, September 30, 1993). Truly, the policemen recovered a .22 caliber revolver, black t-shirt and black cap (TSN,
pp. 12-13, August 24, 1993).While there, SPO3 Guspid and SPO2 Rivera prepared a sketch of the crime scene to
reflect the explanations and answers given by appellant and Garcia in response to their questions. As identifying
marks, SPO3 Gacute placed his initials "OG" (acronym for his first name and family name) between the handle
and cylinder of the gun, and on the neck of the t-shirt, as well as in the inner lining of the black cap.
From the crime site, the policemen and the suspects returned to Station 5 where SPO3 Guspid asked them if they
were willing to give their written statements, to which they assented. Consequently, they were brought to the
Integrated Bar of the Philippines, Quezon City Chapter, at Malakas Street, Diliman, Quezon City. They were then

introduced to Atty. Confesor Sansano, the [c]hairman of the Free Legal Aid of the IBP. Also, present at that time
were appellant's relatives, including his mother and sisters, and other lawyers of the IBP.
SPO3 Guspid inquired from them if they would agree to be assisted by Atty. Sansano, "a competent lawyer." They
replied in the affirmative. Thereafter, the two conferred with Atty. Sansano.
Atty. Sansano, a rebuttal witness of the prosecution, testified that upon arrival of the suspects [i]n his office, he
requested the policemen, as a matter of policy, to step outside the building in order to assure that no pressure
would be exerted on the suspects even by their mere presence (TSN, p. 6, November 6, 1996). After they left,
Atty. Sansano interviewed the suspects for about twenty minutes, informing them of their rights under the
constitution and inquiring from them if they indeed wanted to give voluntary statements. To the query, the
suspects answered positively. They also affirmed their earlier declaration that they were willing to be assisted by
the IBP (ibid, pp. 8-9). He further advised them of their right during the investigation to answer or not to answer
the questions which they thought would incriminate them, but they retorted that they fully understood their right.
Satisfied that they were not coerced or threatened to give their statements, Atty. Sansano requested the suspects
to show their upper bodies to enable him to determine any telltale signs of torture or bodily harm. Finding no such
signs, he then summoned the policemen to re-enter the building. The investigators readied two typewriters and
each suspect was assigned to an investigator. He served as the lawyer of the suspects, cautioning them against
answering questions that they did not understand, and to seek . . . a clarification, if needed.
According to Atty. Sansano, the interrogation took place in his office, a single separate room from where his five
staff members were visible. He sat between the two tables used by the investigators for typing the questions and
answers, involving himself from beginning to end of the investigation until the signing of the statements. He never
left the office to attend to anything else, consistent with [the] standing policy of the IBP to properly safeguard the
rights of suspects during investigation.
He recalled that the investigators first typed the headings of the statements, then informed the suspects before
starting the investigation about their rights under the constitution, specifically, the right of the suspects to have a
lawyer of their own choice; if not, the police would provide them with one who would assist them; that they could
answer or refuse to answer the questions. The investigators also asked him if he was willing to serve as counsel of
the suspects. They also asked the suspects if they were willing to accept him as their counsel. They agreed
expressly by saying: "Oho."
SPO3 Guspid investigated Garcia while SPO4 Selvido investigated appellant. They conducted the question and
answer investigation in Pilipino. The statement of appellant was marked as Exhibit O and that of Garcia was
marked as Exhibit N. The statements were signed by the suspects and Atty. Sansano.
For his part, SPO4 Selvido declared that SPO3 Guspid requested his help in taking the statements of the suspects
(TSN, p. 4, June 29, 1993). He took the statement of appellant in the presence of Atty. Sansano. Before
proceeding, he reminded appellant of the constitutional warnings, consisting of four (4) questions under the
heading "Paunawa," to which the latter gave positive answers. The statement was signed by appellant and Atty.
Sansano. After taking down the statement, he turned over appellant to SPO3 Guspid.
Following the investigation, the policemen brought the suspects to the Philippine National Police Crime Laboratory
for paraffin testing. The result: "both hands of Edwin de Vera y Garcia @ Boy/Bong gave positive results [in] the
test for gunpowder nitrates while both hands of Roderick Garcia y Galamgam @ Deo gave negative result [in] the
test for gunpowder nitrates."
After coming from the crime laboratory, SPO3 Guspid contacted the mother of the victim to get her own
statement. Next, he obtained a death certificate and prepared a referral to the Quezon City Prosecution Office
which was signed by Senior Inspector Ernesto Collado, Chief of the Station Investigation Division. During the
inquest, the prosecutor asked the suspects some clarificatory questions.
Surveillance and follow-up operations were conducted against Florendo and his other companion, Elmer Castro.
However, the two were never arrested and brought to trial.
Version of the Defense
Appellant claims that he had no part in the killing, and that it was Kenneth Florendo who had shot the victim. He
avers that he merely accompanied to Filinvest the other accused and Florendo, who was his friend, upon the
latter's request. A few hours after the shooting incident, appellant was picked up by the police, who subsequently
tortured and coerced him into signing his Statement regarding the incident. The trial court summarized
appellant's evidence in this wise:10

Edwin de Vera admitted that, as of June 8, 1992, he and Kenneth Florendo were already close friends for about a
year, sometimes sleeping in the latter's house at No. 106 Kamias Road, Quezon City. His own residence at the
time was at No. 7 Bignay Street, Project 2, Quezon City. That was also the address of Elmer Castro, his and
Kenneth's friend.
Edwin had slept in Kenneth's house on Kamias Road from June 6 to June 8, 1992 and went home at 7:00 am of
June 8th Later at around 10:30 am, Kenneth passed by Edwin's house to invite him back to [the former's] house
that morning and to bring Elmer along. Kenneth mentioned that he, his girlfriend, and Deo, who were then with
him, would be going somewhere first. Deo, or Roderick Garcia, was another friend of Kenneth's.
Edwin and Elmer later went to and arrived at Kenneth's house at 11:00 am. Kenneth, his girlfriend, and Deo were
already taking lunch, and invited the two to lunch. After lunch, Kenneth asked Edwin to go with him to Filinvest
without telling why. It was Deo who mentioned to Edwin that Kenneth was going to see a friend. Edwin was not
aware if Kenneth had also asked the others to go with him to Filinvest, but the four of them Kenneth, Edwin,
Elmer, and Deo later proceeded to Filinvest [i]n Kenneth's car. Edwin sat at the back seat. The time was past
12:00 noon.
Kenneth drove his car. Upon reaching Filinvest, Kenneth stopped at a house and the four of them alighted in front
of the house. Edwin did not know whose house it was. Kenneth and Elmer told Edwin and Deo to wait near the car
because they were going to see a friend. At that point in time, Edwin knew the person[,] whom Kenneth and Elmer
went to see[,] by name, never having met him personally before then. From his conversation with Deo, Edwin
found out that the house was where Deo stayed.
Then, Edwin heard the voices of Kenneth and his friend and they appeared to be arguing (". . . . parang nagtatalo
sila") The voices came from some twenty-two (22) meters away. Not before long, Edwin also heard a gunshot
which came from where Kenneth and Elmer had gone to. He was shocked because he was not used to hearing
gunfire. Frightened, he panicked and ran away from the place. His singular thought while running was to get out
of Filinvest. Deo also ran away.
Edwin denied that either he or Deo carried any firearm on that occasion.
Edwin was arrested by the police at past 2:00 p.m. when he was already outside of Filinvest subdivision in front of
Batasan. He was brought to Station 5 where four (4) persons in civilian attire tortured him by forcing him to lie
down on a bench, tying his feet together and binding his hands from his back with handcuffs, and then covering
his face with a piece of dirty cloth into which water was poured little by little into his face and mouth, while one of
them sat on his thighs. This maltreatment lasted for about 20 or 25 minutes, because they wanted him to admit
"something" and to name "my companions" but he refused to admit or to name anyone. They next took him
outside to a mango tree where they repeated his ordeal for 30 minutes. At one point during the torture, a
policeman untied his feet and hands and poked a gun to his temple, telling him to run as it was his chance to
escape, but he did not escape because he could see that they were merely frightening him.
None of the policemen told him that he could . . . get a lawyer[;] instead, one of them, whose name he [did] not
know, told him that "I should listen only to them and not to anyone else." He claimed that he saw one [of] his
tormentors in court, and he identified him as police officer Rivera. Guspid did not participate in his torture,
because he merely took down his statement. His tormentors were not drunk or under the influence of drugs, but
Guspid seemed to be under the influence of drugs when he took his statement because of his troubled
appearance.
Edwin was not advised to inform or call any of his relatives. Before his torture, his request to contact his relatives
or lawyer was turned down. His intimidation continued (". . . . puro pananakot and ginawa nila sa akin"). After his
torture at the mango tree, he was returned inside and thrown into a cell, where he remained until the following
day (June 9th). During the night, an inmate named Cesar boxed him once in the upper body upon instruction of a
policeman. He was not given any dinner.
At around noontime of the next day (June 9th), Edwin was taken out of the cell and brought to the IBP office by
police officers Guspid and Selvido. Also with them were Deo Garcia and two other police officers. At the IBP office,
the officers talked with one of the lawyers there, whom Edwin came to know to be Atty. Sansano only after the
lawyer was introduced ("present") to him and Deo. That was the first he met and saw Atty. Sansano.
Atty. Sansano informed both Edwin and Deo that they had the choice whether to talk or not. Edwin could not make
any comment because "wala po ako sa sarili ko". Then, Atty. Sansano warned Edwin substantially that: "Alam n'yo
ba na ang salaysay na ito ay maaring hindi ninyo sumpaan," referring to the statement taken from Edwin by
officers Guspid at around past 8 p.m. until 9 p.m. on the day before (June 8, 1992) at the police station. He was

not assisted by counsel, and had no relatives present. Guspid appeared to be "like drunk or tipsy," when he took
down Edwin's statement that night."
At the IBP office, Edwin's and Deo's statement were taken separately by Guspid and Selvido, respectively. At the
time, Edwin and Deo were about six (6) meters from each other, but he could hear what was being asked of Deo.
Guspid asked the questions and typed both the questions and his answers, which were given in Tagalog. All the
while, Atty. Sansano was inside his office, which was about seven (7) meters away from where he and Guspid were
situated. The office of Atty. Sansano was separated by a divider, so that he could not see what Atty. Sansano was
doing at the time. After the questioning, he signed a paper which he was not able to read. He did not see Atty.
Sansano sign the paper.
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On July 14, 1992, Edwin executed a so-called salaysay ng pagbabawi ng sinumpaang salaysay, which he swore to
before Prosecutor Tobia of Quezon City, for the purpose of recanting his statements given at the precinct in the
evening of June 8, 1992 and at the IBP office on June 9, 1992 on the ground that they were given under coercion,
intimidation, and in violation of his constitutional rights.
Ruling of the Trial Court
Based on the testimony of Eyewitness Bernardino Cacao, the trial court ruled that it was indeed Kenneth Florendo
who had actually shot the victim, Roderick Capulong. It convicted appellant as a principal, however, because "the
scientific and forensic findings on the criminal incident directly and substantially confirmed the existence of
conspiracy among the four [accused], namely, Kenneth Florendo, Elmer Castro, Edwin de Vera, and Roderick
Garcia.11
The Issues
Appellant submits for the consideration of this Court the following alleged errors:
I
THE TRIAL JUDGE ERRED IN NOT FINDING THAT PROSECUTION EYE-WITNESS BERNARDO CACAO HAD TESTIFIED
TO NO CRIMINAL ACT OF APPELLANT;
II
THE TRIAL JUDGE ERRED IN FINDING AND CONCLUDING THAT THERE WAS A CONSPIRACY TO KILL THE VICTIM AND
THAT APPELLANT WAS A CO-CONSPIRATOR;
III
THE TRIAL JUDGE ERRED IN ADMITTING EXHIBIT "O", ALLEGED STATEMENT OF APPELLANT; AND IN NOT
DECLARING THE SAME AS AN INADMISSIBLE EVIDENCE CONSIDERING THE BARBARIC MANNER UNDER WHICH IT
WAS EXTRACTED/OBTAINED FROM THE APPELLANT WHICH VIOLATED THE LATTER'S CONSTITUTIONAL RIGHTS;
IV
THE TRIAL COURT ERRED IN NOT FINDING AND DECLARING THAT THE PROSECUTION HAS NOT PROVED THE
APPELLANT'S GUILT BEYOND REASONABLE DOUBT AND IN NOT ACQUITTING THE APPELLANT.12
In the main, the Court will resolve three questions: (1) the sufficiency of the prosecution evidence, (2) the
admissibility of appellant's extrajudicial statement, and (3) the nature of his liability.
The Court's Ruling
The appeal is partly meritorious. Appellant should be convicted only as an accomplice, not as a principal.
First and Third Issues:
Sufficiency of Prosecution Evidence and Appellant's Liability
Because the first and the third questions mentioned above are interrelated, they shall be discussed jointly.

Eyewitness Account
In ruling that there was conspiracy between Florendo, Castro, Garcia and Appellant De Vera, the trial court relied
mainly on the testimony of Eyewitness Cacao. Specifically, it based its conclusions on the following facts:
appellant was seen with the other accused inside the victim's car; the victim was clearly struck with a blunt object
while inside the car, and it was unlikely for Florendo to have done it all by himself; moreover, it was impossible for
De Vera and Garcia to have been unaware of Florendo's dark design on Roderick.
We disagree. It is axiomatic that the prosecution must establish conspiracy beyond reasonable doubt.13 In the
present case, the bare testimony of Cacao fails to do so.
Cacao testified that he saw Appellant De Vera in the car, where an altercation later occurred. Thereafter, he saw
Florendo drag out of the vehicle an apparently disabled Capulong and shoot the victim in the head moments later.
Cacao's testimony contains nothing that could inculpate appellant. Aside from the fact that he was inside the car,
no other act was imputed to him. Mere presence does not amount to conspiracy.14 Indeed, the trial court based
its finding of conspiracy on mere presumptions, and not on solid facts indubitably indicating a common design to
commit murder. Such suppositions do not constitute proof beyond reasonable doubt. As the Court has repeatedly
stated, criminal conspiracy must be founded on facts, not on mere surmises or conjectures. Clearly, Cacao's
testimony does not establish appellant's culpability.
Appellant's Extrajudicial
Statement
Aside from the testimony of Cacao, the prosecution also presented Appellant De Vera's extrajudicial statement,
which established three points.
First, appellant knew of Kenneth Florendo's malevolent intention.
T:
Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag kang maging
kasapakat nito?
S:
Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan na lamang at
napilitan akong sumama.15
Second, appellant's companions were armed that day, a fact which revealed the unmistakable plan of the group.
T:

Ikaw ba ay mayroong dalang armas noong hapon na iyo[n]?

S:
Wala po akong dalang armas. Pero itong si Kenneth ay mayroong dalang dalawang baril[,] sina Deo at
Elmer ay wala. Pero noong naroroon na kami sa lugar ay ibinigay ni Kenneth ang isang baril niya kay Deo at itong
si Elmer ay mayroong nang dalang baseball bat.
Third, he cooperated with the other accused in the commission of the crime by placing himself at a certain
distance from Kenneth and the victim in order to act as a lookout. This is clear from the following portion of his
statement:
S:
Kabarkada ko po si Kenneth at dalawang araw po akong nakitulog sa kanila at noong araw ng June 08,
1992 ay sinabihan ako ni Kenneth Gumabao na huwag raw akong uuwi, dahil [mayroon] daw po kaming lakad.
Pagkaraan ng ilang oras ay dumating naman itong si Roderick Garcia @ Deo at may sinabi sa kanya itong si
Kenneth at sinabi naman ito sa akin ni Deo na kaysa raw maunahan siya ni Frederick Sumulong [sic] ay uunahan
na raw po niya ito. Umalis po itong si Kenneth na kasama ang kanyang nobya at itong si Deo, para ihatid ang
kanyang [sic] sa hospital at bago sila umalis ay sinabihan ako ni Kenneth na sunduin ko raw itong si Elmer Castro
at magbhihai [magbihis] na rin daw ako at pagdating nila ay . . . lalakad na raw po kami. Mga ilang oras pa ay
sinundo ko na itong si Elmer Castro at pagdating namin sa bahay nila Kenneth ay naroroon na itong si Kenneth at
Deo. Matapos magpalit ng damit itong si Kenneth ay sumakay na kami sa kanilang kotse at nagtuloy sa kanilang
katabing bahay at doon ay kumain kami. Pagkatapos noon ay umalis na kami at nagtuloy sa F[i]l-Invest.
P[a]gdating namin sa isang lugar doon sa medyo malayo-layo sa bahay nila Deo ay bumaba na itong si Deo at
Elmer at sila ay nagpunta doon sa lugar ng pinagbarilan para kunin ang bayad sa utang ni Fred[er]ick Capulong sa
tiyuhin ni Deo P[a]gkaraan ng ilang minuto ay sumunod po kami ni Kenn[e]th sa lugar at ako ay naiwan nang
medyo malayo-layo sa lugar upang tingnan kung mayroong darating na tao. Samantalang si Kenneth ay lumapit
kina Deo at Frederick at kasunod noon ay nagkaroon ng sagutan itong si Kenneth at Frederick at nakita kong
inaawat ni Deo itong si Kenneth. Hindi nakapagpigil itong si Kenneth at nasipa niya s[i] Frederick at kasunod noon

ay binunot niya ang kanyang baril na kalibre .38 at pinaputukan niya ng isang beses itong si Frederick na noong
tamaan ay natumba sa lupa. Lumapit si Elmer kina Kenneth habang binabatak ni Kenneth itong si Frederick at
kasunod po noon ay lumapit sa akin si Deo at sinabihan ako na tumakbo na kami. Tumakbo na po kami, pero ako
po ay nahuli ng mga security guard ng Subdivision at itong si Deo ay nahuli naman sa kanilang bahay. Itong sina
Kenneth at Elmer ay hindi pa nahuhuli.16
Appellant an Accomplice,
Not a Conspirator
In other words, appellant's presence was not innocuous. Knowing that Florendo intended to kill the victim and that
the three co-accused were carrying weapons, he had acted as a lookout to watch for passersby. He was not an
innocent spectator; he was at the locus criminis in order to aid and abet the commission of the crime. These facts,
however, did not make him a conspirator; at most, he was only an accomplice.
The Revised penal Code provides that a conspiracy exists when "two or more persons come to an agreement
concerning the commission of a felony and decide to commit it."17 To prove conspiracy, the prosecution must
establish the following three requisites: "(1) that two or more persons came to an agreement, (2) that the
agreement concerned the commission of a crime, and (3) that the execution of the felony [was] decided upon."18
Except in the case of the mastermind of a crime, it must also be shown that the accused performed an overt act
in furtherance of the conspiracy.19 The Court has held that in most instances, direct proof of a previous
agreement need not be established, for conspiracy may be deduced from the acts of the accused pointing to a
joint purpose, concerted action and community of interest.20
On the other hand, the Revised Penal Code defines accomplices as "those persons who, not being included in
Article 17,21 cooperate in the execution of the offense by previous or simultaneous acts."22 The Court has held
that an accomplice is "one who knows the criminal design of the principal and cooperates knowingly or
intentionally therewith by an act which, even if not rendered, the crime would be committed just the same."23 To
hold a person liable as an accomplice, two elements must be present: (1) the "community" of criminal design;
that is, knowing the criminal design of the principal by direct participation, he concurs with the latter in his
purpose;" and (2) the performance of previous or simultaneous acts that are not indispensable to the commission
of the crime.24
The distinction between the two concepts needs to be underscored, in view of its effect on appellant's penalty.
Once conspiracy is proven, the liability is collective and not individual. The act of one of them is deemed the act
of all.25 In the case of an accomplice, the liability is one degree lower than that of a principal.
Conspirators and accomplices have one thing in common: they know and agree with the criminal design.
Conspirators, however, know the criminal intention because they themselves have decided upon such course of
action. Accomplices come to know about it after the principals have reached the decision, and only then do they
agree to cooperate in its execution. Conspirators decide that a crime should be committed; accomplices merely
concur in it. Accomplices do not decide whether the crime should be committed; they merely assent to the plan
and cooperate in its accomplishment. Conspirators are the authors of a crime; accomplices are merely their
instruments who perform acts not essential to the perpetration of the offense.
Thus, in People v. Castro,26 the Court convicted Rufino Cinco, together with two others, as a principal, although
he had acted merely as a lookout. The Court held that "their concerted action in going armed and together to
their victim's house, and there, while one stayed as a lookout, the other two entered and shot the mayor and his
wife, leaving again together afterwards, admits no other rational explanation but conspiracy." It may be noted
further that Cinco executed a Sworn Statement that the three of them, together with some others, had planned to
kill the victim on the promise of a P5,000 reward.
In People v. Tawat et al.,27 the lookout, Nestor Rojo, was convicted as a principal for conspiring with two others.
The Court ruled that the conspiracy was shown by their conduct before, during and after the commission of the
crime. The Court also noted that, upon their arrest, they disclosed that they had intended to rob the victim's store
and that they did so in accordance with their plan. In that case, it was clear that all three of them, including the
lookout, were the authors of the crime.
In People v. Loreno,28 the Supreme Court convicted all the accused as principals because they had acted in band.
In acting as a lookout, Jimmy Marantal was armed at the time like the other conspirators, and he gave his
companions effective means and encouragement to commit the crime of robbery and rape.
Upon the other hand in People v. Corbes,29 the Court noted that Manuel Vergel knew of the criminal design to
commit a robbery, and that he cooperated with the robbers by driving the vehicle to and from the crime scene. In

convicting him as an accomplice and not as a conspirator, the Court observed that he was merely approached by
one of the robbers who was tasked to look for a getaway vehicle. He was not with the robbers when they resolved
to commit a robbery. When his services were requested the decision to commit the crime had already been made.
In People v. Tatlonghari,30 the Court was asked to resolve the responsibility of some appellants who "knowingly
aid[ed] the actual killers by casting stones at the victim, and distracting his attention." The Court ruled that they
were accomplices and not co-conspirators, "[i]n the absence of clear proof that the killing was in fact envisaged
by them."
In People v. Suarez et al.,31 Wilfredo Lara merely introduced the gang of Reyes to Suarez who intended to
perpetrate the crime with the help of the said group. In ruling that he was merely an accomplice, the Court noted
that there was no evidence showing that he "took part in the planning or execution of the crime, or any proof
indicating that he profited from the fruits of the crime, or of acts indicative of confederacy on his part."
In People v. Balili,32 the Court convicted appellant as an accomplice, holding that "in going with them, knowing
their criminal intention, and in staying outside of the house with them while the others went inside the store to
rob and kill, [he] effectively supplied the criminals with material and moral aid, making him guilty as an
accompliance." The Court noted that there was no evidence that he "had conspired with the malefactors, nor that
he actually participated in the commission of the crime."
In People v. Doble,33 the Court held that Cresencio Doble did not become a conspirator when he looked for a
banca that was eventually used by the robbers. Ruled the Court: "Neither would it appear that Joe Intsik wanted to
draft Crescencio into his band of malefactors that would commit the robbery more than Just asking his help to look
for a banca. Joe Intsik had enough men, all with arms and weapons to perpetrate the crime, the commission of
which needed planning and men to execute the plan with full mutual confidence of each other, which [was] not
shown with respect to appellants by the way they were asked to look and provide for a banca just a few hours
before the actual robbery."
In the present case, Appellant De Vera knew that Kenneth Florendo had intended to kill Capulong at the time, and
he cooperated with the latter. But he himself did not participate in the decision to kill Capulong; that decision was
made by Florendo and the others. He joined them that afternoon after the decision to kill had already been agreed
upon; he was there because "nagkahiyaan na." This is clear from his statement, which we quote again for the
sake of clarity:
T:
Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag kang maging
kasapakat nito?
S:
Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan na lamang at
napilitan akong sumama.34
Significantly, the plan to kill could have been accomplished without him. It should be noted further that he alone
was unarmed that afternoon. Florendo and Garcia had guns, and Castro had a baseball bat.
In any event, the prosecution evidence has not established that appellant was part of the conspiracy to kill the
victim. His participation, as culled from his own Statement, was made. after the decision to kill was already a fait
accompli. Thus, in several cases, the Court has held:
[L]ack of complete evidence of conspiracy, that creates the doubt whether they had acted as principals or
accomplices in the perpetration of the offense, impels this Court to resolve in their favor the question, by holding .
. . that they were guilty of the "milder form of responsibility," i.e., guilty as mere accomplices.35
Second Issue:
Admissibility of Extrajudicial Statement
Extrajudicial confessions must conform to constitutional requirements. Section 12, Article III of the Constitution,
provides:
(1)
Any person under investigation for the commission of an offense shall have the right to be informed of his
right to remain silent and to have competent and independent counsel preferably of his own choice. If the person
cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in
writing and in the presence of counsel.
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xxx

xxx

(3)
Any confession or admission obtained in violation of this or section 17 hereof shall be inadmissible in
evidence against him.
If the confession meets these requirements, "it is subsequently tested for voluntariness, i.e., if it was given freely
without coercion, intimidation, inducement, or false promises; and credibility, i.e., if it was consistent with the
normal experience of mankind."36
Appellant claims that his extrajudicial statement was inadmissible, because it was not made in the presence of
counsel. Although Atty. Confesor Sansano of the Quezon City IBP Legal Aid Committee purportedly assisted him
and his co-accused in the execution of their extrajudicial Statements, appellant asserts that the lawyer was in his
office, not with them, at the time. Appellant adds that he was tortured.
Appellant's claims must be rejected. Atty. Sansano testified that he did not leave them at any time.
Q:

You were involved in the interrogation from the very start?

A:

Yes, from the beginning to the end of the interview until the boys signed their statements.

Q:

Did you recall having at any time left your office to attend to some official matters?

A:

I never left the office to attend to anything.

Q:
Is that the usual manner by which you assist persons referred to you by the police insofar as custodial
investigation is concerned?
A:
It is our policy that when we assist [in] that capacity, we [want] to see to it that the rights of the accused
or suspects are properly [protected] during the course of the entire interrogation.37
In fact, Atty. Sansano even checked to see if there were torture marks on Appellant De Vera, and Garcia and
interviewed the two to make sure that they understood what they were doing.
Q:

What was your purpose in asking the police officers to leave the room?

A:
My purpose in asking the police officers to step out of the building was to assure myself that no pressure
could be exerted on the two boys by the presence of the police officers during my personal interview. Before we
allow any police officers to take the statements of people brought before us[,] we see to it [that] we interview the
persons personally out of hearing and sight of any police officer.
Q:
After the police officers left the room, completely left the room[,] you were able to interview the two
accused namely Mr. de Vera and Mr. Garcia?
A:

Yes, I spent about 15 to 20 minutes interviewing the boys.

Q:

What was the nature of your initial interview with these two accused?

A:
I asked the boys Roderick and Edwin if it [was] true that they [were] going to give their own statements to
the police?
Q:

And what did they say?

A:

They said yes, sir.

Q:

What was your reaction to that?

A:

Routinely[,] I informed them about their rights under the constitution.

xxx
Q:

xxx

xxx

Having obtained their answers, what next transpired?

A:
After telling them the statements they may give to the police could be used against them for a [sic] in any
court of the Phil., I was satisfied that nobody coerced them, that they were never threatened by anybody much
less by the police officers to give these statements. Casually I asked the two boys to raise their upper clothes.

xxx
Q:

xxx

xxx

What was your purpose in requiring these persons to show you or remove their upper clothing?

A:
I wanted to assure myself that there were no telltale signs of torture or bodily harm committed on the[m]
prior to their [being brought] to the office. In spite of their [personal] assurances . . . , verbal assurance that they
were never hurt.38
The right to counsel is enshrined in the Constitution in order to address, among others, the use of duress and
undue influence in the execution of extrajudicial confessions.39 In the present case, the Court is satisfied that
Atty. Sansano sufficiently fulfilled the objective of this constitutional mandate. Moreover, appellant's allegations of
torture must be disregarded for being unsubstantiated. To hold otherwise is to statements at the mere facilitate
the retraction of solemnly made statements of the mere allegation of torture, without any proof whatsoever.
When an extrajudicial statement satisfies the requirements of the Constitution, it constitutes evidence of a high
order, because of the strong presumption that no person of normal mind would deliberately and knowingly
confess to a crime unless prompted by truth and conscience.40 The defense has the burden of proving that it was
extracted by means of force, duress or promise of reward.41 Appellant failed to overcome the overwhelming
prosecution evidence to the contrary.
Sec. 3, Rule 133 of the Rules of Court, provides that "[a]n extrajudicial confession made by an accused shall not
be sufficient ground for conviction, unless corroborated by evidence of corpus delicti." In the present case, the
prosecution presented other evidence to prove the two elements of corpus delicti: (a) a certain result has been
proven for example, a man has died; and (b) some person is criminally responsible.42 It is indubitable that a
crime has been committed, and that the other pieces of prosecution evidence clearly show that appellant had
conspired with the other accused to commit the crime. He himself does not deny that he was at the crime scene.
In fact, he was seen by the prosecution eyewitness in the company of the gunman. Furthermore, Atty. Sansano
and the police officers testified to the voluntariness of his confession. It must be stressed that the aforementioned
rule merely requires that there should be some other evidence "tending to show the commission of the crime
apart from the confession."43
Criminal and Civil Liability
In ruling that the crime committed was murder, the trial court found that the killing was attended by treachery,
evident premeditation and abuse of superior strength. One of these was enough to qualify the crime as murder;
the two others constituted generic aggravating circumstances. The lower court explained that the evidence
established evident premeditation, for Florendo's group acted with deliberate forethought and tenacious
persistence in the accomplishment of the criminal design. Treachery was also proven, because the attack was
planned and performed in such a way as to guarantee the execution of the criminal design without risk to the
group. There was also abuse of superior strength, because the attackers took advantage of their superiority in
numbers and weapons.
We disagree with the court a quo in appreciating two generic aggravating circumstances, because treachery
absorbs abuse of superior strength.44 Hence, there is only one generic aggravating circumstance, not two.
Notwithstanding the presence of a generic aggravating circumstance, we cannot impose the death penalty,
because the crime was committed before the effectivity of the Death Penalty Law.
In the present case, the penalty of appellant as an accomplice is one degree lower than that of a principal, which
in murder cases is reclusion temporal in its maximum period to death. He is also entitled to the benefits of the
Indeterminate Sentence Law.
We sustain the trial court's grant of P50,000 as indemnity ex delicto, which may be awarded without need of proof
other than the commission of the crime. The award of P211,670 as compensatory damages was duly supported
by evidence. Based on the evidence presented, moral damages is also warranted, but only in the amount of
P50,000, not P500,000 as fixed by the trial court. Furthermore, we affirm the payment of interest.45 However, the
grant of P600,000 for loss of earning capacity lacks factual basis. Such indemnification partakes of the nature of
actual damages, which must be duly proven.46 In this case, the trial court merely presumed the amount of
Capulong's earnings. Since the prosecution did not present evidence of the current income of the deceased, the
indemnity for lost earnings must be rejected.
WHEREFORE, the appeal is hereby partially GRANTED. Appellant De Vera is CONVICTED as an accomplice, not as a
principal, in the crime of murder. He is sentenced to an indeterminate prison term of 8 years and 1 day of prision

mayor as minimum, to 14 years 8 months and 1 day of reclusion temporal as maximum. We AFFIRM the awards
of: (a) P50,000 indemnity ex delicto, (b) P211,670 as compensatory damages and (c) interest of six percent per
annum on these two amounts. The award of moral damages is however REDUCED to P50,000 and the award for
the loss of earning capacity is DELETED. No pronouncement as to costs.
SO ORDERED
G.R. No. 202867, July 15, 2013
PEOPLE OF THE PHILIPPINES, Appellee, v. REGIE LABIAGA, Appellant.
DECISION
CARPIO, J.:

The Case
Before the Court is an appeal assailing the Decision1 dated 18 October 2011 of the Court of Appeals-Cebu (CACebu) in CA-G.R. CEB CR-HC No. 01000. The CA-Cebu affirmed with modification the Joint Decision2 dated 10
March 2008 of the Regional Trial Court of Barotac Viejo, Iloilo, Branch 66 (RTC), in Criminal Case No. 2001-1555
convicting Regie Labiaga alias Banok (appellant) of murder and Criminal Case No. 2002-1777 convicting
appellant of frustrated murder.
The Facts
In Criminal Case No. 2001-1555, appellant, together with a certain Alias Balatong Barcenas and Cristy Demapanag
(Demapanag), was charged with Murder with the Use of Unlicensed Firearm under an Information3 which
reads:cralavvonlinelawlibrary
That on or about December 23, 2000 in the Municipality of Ajuy, Province of Iloilo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping one
another, armed with unlicensed firearm, with deliberate intent and decided purpose to kill, by means of treachery
and with evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and shoot
JUDY CONDE alias JOJO with said unlicensed firearm, hitting her and inflicting gunshot wounds on the different
parts of her breast which caused her death thereafter.
CONTRARY TO LAW.
The same individuals were charged with Frustrated Murder with the Use of Unlicensed Firearm in Criminal Case
No. 2002-1777, under an Information4 which states:cralavvonlinelawlibrary
That on or about December 23, 2000 in the Municipality of Ajuy, Province of Iloilo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping one
another, armed with unlicensed firearm, with deliberate intent and decided purpose to kill, by means of treachery
and with evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and shoot
Gregorio Conde with said unlicensed firearm, hitting him on the posterior aspect, middle third right forearm 1 cm.
in diameter; thereby performing all the acts of execution which would produce the crime of Murder as a
consequence, but nevertheless did not produce it by reason of causes independent of the will of the accused; that
is by the timely and able medical assistance rendered to said Gregorio Conde which prevented his death.
CONTRARY TO LAW.
Alias Balatong Barcenas remained at large. Both appellant and Demapanag pled not guilty in both cases and joint
trial ensued thereafter. The prosecution presented four witnesses: Gregorio Conde, the victim in Criminal Case No.
2002-1777; Glenelyn Conde, his daughter; and Dr. Jeremiah Obaana and Dr. Edwin Jose Figura, the physicians at
the Sara District Hospital where the victims were admitted. The defense, on the other hand, presented appellant,
Demapanag, and the latters brother, Frederick.
Version of the prosecution

The prosecutions version of the facts is as follows: At around 7:00 p.m. on 23 December 2000, Gregorio Conde,
and his two daughters, Judy and Glenelyn Conde, were in their home at Barangay Malayu-an, Ajuy, Iloilo.
Thereafter, Gregorio stepped outside. Glenelyn was in their store, which was part of their house.
Shortly thereafter, appellant, who was approximately five meters away from Gregorio, shot the latter. Gregorio
called Judy for help. When Judy and Glenelyn rushed to Gregorios aid, appellant shot Judy in the abdomen. The
two other accused were standing behind the appellant. Appellant said, [s]he is already dead, and the three fled
the crime scene.
Gregorio and Judy were rushed to the Sara District Hospital. Judy was pronounced dead on arrival while Gregorio
made a full recovery after treatment of his gunshot wound.
Dr. Jeremiah Obaana conducted the autopsy of Judy. His report stated that her death was caused by
cardiopulmonary arrest secondary to Cardiac Tamponade due to gunshot wound.5
Dr. Jose Edwin Figura, on the other hand, examined Gregorio after the incident. He found that Gregorio sustained a
gunshot wound measuring one centimeter in diameter in his right forearm and abrasion wounds hematoma
formation in his right shoulder.6
Version of the defense
Appellant admitted that he was present during the shooting incident on 23 December 2000. He claimed, however,
that he acted in self- defense. Gregorio, armed with a shotgun, challenged him to a fight. He attempted to shoot
appellant, but the shotgun jammed. Appellant tried to wrest the shotgun from Gregorio, and during the struggle,
the shotgun fired. He claimed that he did not know if anyone was hit by that gunshot.
Demapanag claimed that at the time of the shooting, he was in D&D Ricemill, which is approximately 14
kilometers away from the crime scene. This was corroborated by Frederick, Demapanags brother.
The Ruling of the RTC
In its Joint Decision, the RTC acquitted Demapanag due to insufficiency of evidence. Appellant, however, was
convicted of murder and frustrated murder. The dispositive portion of the Joint Decision
reads:cralavvonlinelawlibrary
WHEREFORE, in light of the foregoing, the court hereby finds the accused Regie Labiaga @ Banok GUILTY
beyond reasonable doubt of the Crime of Murder in Crim. Case No. 2001-1555 and hereby sentences the said
accused to reclusion perpetua together with accessory penalty provided by law, to pay the heirs of Judy Conde
P50,000.00 as civil indemnity, without subsidiary imprisonment in case of insolvency and to pay the costs.
In Crim. Case No. 2002-1777, the court finds accused Regie Labiaga @ Banok GUILTY beyond reasonable doubt
of the crime of Frustrated Murder and hereby sentences the said accused to a prison term ranging from six (6)
years and one (1) day of prision mayor as minimum to ten (10) years and one (1) day of reclusion temporal as
maximum, together with [the] necessary penalty provided by law and without subsidiary imprisonment in case of
insolvency and to pay the costs.
Accused[s] entire period of detention shall be deducted from the penalty herein imposed when the accused
serves his sentence.
For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crime[s] charged in both cases. The
Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby directed to release accused Cristy
Demapanag from custody unless he is being held for some other valid or lawful cause.
SO ORDERED.7nadcralavvonlinelawlibrary
The Ruling of the CA-Cebu
Appellant impugned the RTCs Joint Decision, claiming that [the RTC] gravely erred in convicting the [appellant]
of the crime charged despite failure of the prosecution to prove his guilt beyond reasonable doubt.8 The CACebu, however, upheld the conviction for murder and frustrated murder.
The CA-Cebu also modified the Joint Decision by imposing the payment of moral and exemplary damages in both
criminal cases. The CA-Cebu made a distinction between the civil indemnity awarded by the RTC in Criminal Case
No. 2001-1555 and the moral damages. The CA-Cebu pointed out that:cralavvonlinelawlibrary

The trial court granted the amount of P50,000.00 as civil indemnity in Criminal Case No. 2001-1555. It did not
award moral damages. Nonetheless, the trial court should have awarded both, considering that they are two
different kinds of damages. For death indemnity, the amount of P50,000.00 is fixed pursuant to the current
judicial policy on the matter, without need of any evidence or proof of damages. Likewise, the mental anguish of
the surviving family should be assuaged by the award of appropriate and reasonable moral
damages.9nadcralavvonlinelawlibrary
The dispositive portion of the Decision of the CA-Cebu reads:cralavvonlinelawlibrary
WHEREFORE, premises considered, the appeal is DENIED. The Joint Decision dated March 10, 2008 of the Regional
Trial Court, Branch 66, in Barotac Viejo, Iloilo is AFFIRMED with MODIFICATIONS. The dispositive portion of the said
Joint Decision should now read as follows:cralavvonlinelawlibrary
WHEREFORE, in light of the foregoing, the court hereby finds the accused Regie Labiaga @ Banok GUILTY
beyond reasonable doubt of the crime of Murder in Crim. Case No. 2001-1555 and hereby sentences the said
accused to reclusion perpetua together with the accessory penalty provided by law, to pay the heirs of Judy
Conde P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary damages,
without subsidiary imprisonment in case of insolvency and to pay the costs.
In Crim. Case No. 2002-1777 the court finds accused Regie Labiaga @ Banok GUILTY beyond reasonable doubt
of the crime of Frustrated Murder and hereby sentences the said accused to suffer the indeterminate penalty of
eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years and eight (8) months of
reclusion temporal, as maximum, together with the accessory penalty provided by law, to pay Gregorio Conde
P25,000.00 as moral damages and P25,000.00 as exemplary damages, without subsidiary imprisonment in case
of insolvency and to pay the costs
Accused(s) entire period of detention shall be deducted from the penalty herein imposed when the accused
serves his sentence.
For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crime(s) charged in both cases. The
Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby directed to release accused Cristy
Demapanag from custody unless he is being held for some other valid or lawful cause.
SO ORDERED.
SO ORDERED.10nadcralavvonlinelawlibrary
Hence, this appeal.
The Ruling of the Court
Our review of the records of Criminal Case No. 2002-1777 convinces us that appellant is guilty of attempted
murder and not frustrated murder. We uphold appellants conviction in Criminal Case No. 2001-1555 for murder,
but modify the civil indemnity awarded in Criminal Case No. 2001-1555, as well as the award of moral and
exemplary damages in both cases.
Justifying circumstance of self-defense
Appellants feeble attempt to invoke self-defense in both cases was correctly rejected by the RTC and the CACebu. This Court, in People v. Damitan,11 explained that:cralavvonlinelawlibrary
When the accused admits killing a person but pleads self-defense, the burden of evidence shifts to him to prove
by clear and convincing evidence the elements of his defense. However, appellants version of the incident was
uncorroborated. His bare and self-serving assertions cannot prevail over the positive identification of the two (2)
principal witnesses of the prosecution.12
Appellants failure to present any other eyewitness to corroborate his testimony and his unconvincing
demonstration of the struggle between him and Gregorio before the RTC lead us to reject his claim of selfdefense. Also, as correctly pointed out by the CA-Cebu, appellants theory of self- defense is belied by the fact
that:cralavvonlinelawlibrary
x x x [T]he appellant did not even bother to report to the police Gregorios alleged unlawful aggression and that it
was Gregorio who owned the gun, as appellant claimed. And, when appellant was arrested the following morning,
he did not also inform the police that what happened to Gregorio was merely accidental.13

Appellants claim that he did not know whether Gregorio was hit when the shotgun accidentally fired is also
implausible.
In contrast, we find that the Condes account of the incident is persuasive. Both the CA-Cebu and the RTC found
that the testimonies of the Condes were credible and presented in a clear and convincing manner. This Court has
consistently put much weight on the trial courts assessment of the credibility of witnesses, especially when
affirmed by the appellate court.14 In People v. Mangune,15 we stated that:cralavvonlinelawlibrary
It is well settled that the evaluation of the credibility of witnesses and their testimonies is a matter best
undertaken by the trial court because of its unique opportunity to observe the witnesses first hand and to note
their demeanor, conduct, and attitude under grilling examination. These are important in determining the
truthfulness of witnesses and in unearthing the truth, especially in the face of conflicting testimonies. For, indeed,
the emphasis, gesture, and inflection of the voice are potent aids in ascertaining the witness credibility, and the
trial court has the opportunity [to] take advantage of these aids.16
Since the conclusions made by the RTC regarding the credibility of the witnesses were not tainted with
arbitrariness or oversight or misapprehension of relevant facts, the same must be sustained by this Court.
Attempted and Frustrated Murder
Treachery was correctly appreciated by the RTC and CA-Cebu. A treacherous attack is one in which the victim was
not afforded any opportunity to defend himself or resist the attack.17 The existence of treachery is not solely
determined by the type of weapon used. If it appears that the weapon was deliberately chosen to insure the
execution of the crime, and to render the victim defenseless, then treachery may be properly appreciated against
the accused.18
In the instant case, the Condes were unarmed when they were shot by appellant. The use of a 12-gauge shotgun
against two unarmed victims is undoubtedly treacherous, as it denies the victims the chance to fend off the
offender.
We note, however, that appellant should be convicted of attempted murder, and not frustrated murder in Criminal
Case No. 2002-1777.
Article 6 of the Revised Penal Code defines the stages in the commission of felonies:cralavvonlinelawlibrary
Art. 6. Consummated, frustrated, and attempted felonies. Consummated felonies as well as those which are
frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and accomplishment are present; and
it is frustrated when the offender performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator.
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.
In Serrano v. People,19 we
manner:cralavvonlinelawlibrary

distinguished

frustrated

felony

from

an

attempted

felony

in

this

1.) In [a] frustrated felony, the offender has performed all the acts of execution which should produce the felony
as a consequence; whereas in [an] attempted felony, the offender merely commences the commission of a felony
directly by overt acts and does not perform all the acts of execution.
2.) In [a] frustrated felony, the reason for the non-accomplishment of the crime is some cause independent of the
will of the perpetrator; on the other hand, in [an] attempted felony, the reason for the non-fulfillment of the crime
is a cause or accident other than the offenders own spontaneous desistance.20
In frustrated murder, there must be evidence showing that the wound would have been fatal were it not for timely
medical intervention.21 If the evidence fails to convince the court that the wound sustained would have caused
the victims death without timely medical attention, the accused should be convicted of attempted murder and
not frustrated murder.

In the instant case, it does not appear that the wound sustained by Gregorio Conde was mortal. This was admitted
by Dr. Edwin Figura, who examined Gregorio after the shooting incident:cralavvonlinelawlibrary
Prosecutor Con-El:cralavvonlinelawlibrary
Q: When you examined the person of Gregorio Conde, can you tell the court what was the situation of the patient
when you examined him?
A: He has a gunshot wound, but the patient was actually ambulatory and not in distress.
xxxx
Court (to the witness)
Q: The nature of these injuries, not serious?
A: Yes, Your Honor, not serious. He has also abrasion wounds hematoma formation at the anterior aspect right
shoulder.22
Since Gregorios gunshot wound was not mortal, we hold that appellant should be convicted of attempted murder
and not frustrated murder. Under Article 51 of the Revised Penal Code, the corresponding penalty for attempted
murder shall be two degrees lower than that prescribed for consummated murder under Article 248, that is,
prision correccional in its maximum period to prision mayor in its medium period. Section 1 of the Indeterminate
Sentence Law provides:cralavvonlinelawlibrary
x x x the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that
which, in view of the attending circumstances, could be properly imposed under the rules of the [Revised Penal]
Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code
for the offense.
Thus, appellant should serve an indeterminate sentence ranging from two (2) years, four (4) months and one (1)
day of prision correccional in its medium period to eight (8) years and one (1) day of prision mayor in its medium
period.
Award of damages
In light of recent jurisprudence, we deem it proper to increase the amount of damages imposed by the lower court
in both cases. In Criminal Case No. 2001-1555, this Court hereby awards P75,000.00 as civil indemnity23 and
P30,000.00 as exemplary damages.24 The award of P50,000.00 as moral damages in the foregoing case is
sustained. Appellant is also liable to pay P40,000.00 as moral damages and P30,000.00 as exemplary damages, in
relation to Criminal Case No. 2002-1777.
WHEREFORE, we AFFIRM the 18 October 2011 Decision of the Court of Appeals-Cebu in CA-G.R. CEB CR-HC No.
01000 with MODIFICATIONS. In Criminal Case No. 2002-1777, we find that appellant Regie Labiaga is GUILTY of
Attempted Murder and shall suffer an indeterminate sentence ranging from two (2) years, four (4) months and
one (1) day of prision correccional as minimum, to eight (8) years and one (1) day of prision mayor as maximum,
and pay P40,000.00 as moral damages and P30,000.00 as exemplary damages. In Criminal Case No. 2001-1555,
appellant shall pay P75,000.00 as civil indemnity, P50,000.00 as moral damages, and P30,000.00 as exemplary
damages.
SO ORDERED
G.R. No. 129433

March 30, 2000

PEOPLE OF THE PHILIPPINES, plaintiff,

vs.
PRIMO CAMPUHAN Y BELLO accused.
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita 1 finally did away with frustrated rape 2 and allowed only attempted
rape and consummated rape to remain in our statute books. The instant case lurks at the threshold of another
emasculation of the stages of execution of rape by considering almost every attempt at sexual violation of a
woman as consummated rape, that is, if the contrary view were to be adopted. The danger there is that that

concept may send the wrong signal to every roaming lothario, whenever the opportunity bares itself, to better
intrude with climactic gusto, sans any restraint, since after all any attempted fornication would be considered
consummated rape and punished as such. A mere strafing of the citadel of passion would then be considered a
deadly fait accompli, which is absurd.
In Orita we held that rape was consummated from the moment the offender had carnal knowledge of the victim
since by it he attained his objective. All the elements of the offense were already present and nothing more was
left for the offender to do, having performed all the acts necessary to produce the crime and accomplish it. We
ruled then that perfect penetration was not essential; any penetration of the female organ by the male organ,
however slight, was sufficient. The Court further held that entry of the labia or lips of the female organ, even
without rupture of the hymen or laceration of the vagina, was sufficient to warrant conviction for consummated
rape. We distinguished consummated rape from attempted rape where there was no penetration of the female
organ because not all acts of execution were performed as the offender merely commenced the commission of a
felony directly by overt acts. 3 The inference that may be derived therefrom is that complete or full penetration of
the vagina is not required for rape to be consummated. Any penetration, in whatever degree, is enough to raise
the crime to its consummated stage.
But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or lips of the
female organ, even if there be no rupture of the hymen or laceration of the vagina, to warrant a conviction for
consummated rape. While the entry of the penis into the lips of the female organ was considered synonymous
with mere touching of the external genitalia, e.g., labia majora, labia minora, etc.,4 the crucial doctrinal bottom
line is that touching must be inextricably viewed in light of, in relation to, or as an essential part of, the process of
penile penetration, and not just mere touching in the ordinary sense. In other words, the touching must be tacked
to the penetration itself. The importance of the requirement of penetration, however slight, cannot be gainsaid
because where entry into the labia or the lips of the female genitalia has not been established, the crime
committed amounts merely to attempted rape.
Verily, this should be the indicium of the Court in determining whether rape has been committed either in its
attempted or in its consummated stage; otherwise, no substantial distinction would exist between the two,
despite the fact that penalty-wise, this distinction, threadbare as it may seem, irrevocably spells the difference
between life and death for the accused a reclusive life that is not even perpetua but only temporal on one
hand, and the ultimate extermination of life on the other. And, arguing on another level, if the case at bar cannot
be deemed attempted but consummated rape, what then would constitute attempted rape? Must our field of
choice be thus limited only to consummated rape and acts of lasciviousness since attempted rape would no
longer be possible in light of the view of those who disagree with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the court a quo to
the extreme penalty of death, 5 hence this case before us on automatic review under Art. 335 of the Revised
Penal Code as amended by RA 7659. 6
As may be culled from the evidence on record, on 25 April 1996, at around 4 o'clock in the afternoon, Ma. Corazon
P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went down from the second floor of their house to
prepare Milo chocolate drinks for her two (2) children. At the ground floor she met Primo Campuhan who was then
busy filling small plastic bags with water to be frozen into ice in the freezer located at the second floor. Primo was
a helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing the drinks, she heard one of her
daughters cry, "Ayo'ko, ayo'ko!" 7 prompting Corazon to rush upstairs. Thereupon, she saw Primo Campuhan
inside her children's room kneeling before Crysthel whose pajamas or "jogging pants" and panty were already
removed, while his short pants were down to his knees.
According to Corazon, Primo was forcing his penis into Crysthel's vagina. Horrified, she cursed the accused, "P - t ng ina mo, anak ko iyan!" and boxed him several times. He evaded her blows and pulled up his pants. He pushed
Corazon aside when she tried to block his path. Corazon then ran out and shouted for help thus prompting her
brother, a cousin and an uncle who were living within their compound, to chase the accused. 8 Seconds later,
Primo was apprehended by those who answered Corazon's call for help. They held the accused at the back of their
compound until they were advised by their neighbors to call the barangay officials instead of detaining him for his
misdeed. Physical examination of the victim yielded negative results. No evident sign of extra-genital physical
injury was noted by the medico-legal officer on Crysthel's body as her hymen was intact and its orifice was only
0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and assailed the
charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against him for his refusal to run an
errand for her. 9 He asserted that in truth Crysthel was in a playing mood and wanted to ride on his back when
she suddenly pulled him down causing both of them to fall down on the floor. It was in this fallen position that
Corazon chanced upon them and became hysterical. Corazon slapped him and accused him of raping her child.

He got mad but restrained himself from hitting back when he realized she was a woman. Corazon called for help
from her brothers to stop him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente punched him and
threatened to kill him. Upon hearing the threat, Primo immediately ran towards the house of Conrado Plata but
Vicente followed him there. Primo pleaded for a chance to explain as he reasoned out that the accusation was not
true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead pipe, Primo raised his hands
and turned his back to avoid the blow. At this moment, the relatives and neighbors of Vicente prevailed upon him
to take Primo to the barangay hall instead, and not to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of statutory
rape, sentenced him to the extreme penalty of death, and ordered him to pay his victim P50,000.00 for moral
damages, P25,000.00 for exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that her
narration should not be given any weight or credence since it was punctured with implausible statements and
improbabilities so inconsistent with human nature and experience. He claims that it was truly inconceivable for
him to commit the rape considering that Crysthel's younger sister was also in the room playing while Corazon was
just downstairs preparing Milo drinks for her daughters. Their presence alone as possible eyewitnesses and the
fact that the episode happened within the family compound where a call for assistance could easily be heard and
responded to, would have been enough to deter him from committing the crime. Besides, the door of the room
was wide open for anybody to see what could be taking place inside. Primo insists that it was almost
inconceivable that Corazon could give such a vivid description of the alleged sexual contact when from where she
stood she could not have possibly seen the alleged touching of the sexual organs of the accused and his victim.
He asserts that the absence of any external signs of physical injuries or of penetration of Crysthel's private parts
more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw Primo with
his short pants down to his knees kneeling before Crysthel whose pajamas and panty were supposedly "already
removed" and that Primo was "forcing his penis into Crysthel's vagina." The gravamen of the offense of statutory
rape is carnal knowledge of a woman below twelve (12), as provided in Art. 335, par. (3), of the Revised Penal
Code. Crysthel was only four (4) years old when sexually molested, thus raising the penalty, from reclusion
perpetua to death, to the single indivisible penalty of death under RA 7659, Sec. 11, the offended party being
below seven (7) years old. We have said often enough that in concluding that carnal knowledge took place, full
penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the
mere touching of the external genitalia by the penis capable of consummating the sexual act is sufficient to
constitute carnal knowledge. 10 But the act of touching should be understood here as inherently part of the entry
of the penis into the labias of the female organ and not mere touching alone of the mons pubis or the pudendum.
In People v. De la Pea 11 we clarified that the decisions finding a case for rape even if the attacker's penis merely
touched the external portions of the female genitalia were made in the context of the presence or existence of an
erect penis capable of full penetration. Where the accused failed to achieve an erection, had a limp or flaccid
penis, or an oversized penis which could not fit into the victim's vagina, the Court nonetheless held that rape was
consummated on the basis of the victim's testimony that the accused repeatedly tried, but in vain, to insert his
penis into her vagina and in all likelihood reached the labia of her pudendum as the victim felt his organ on the
lips of her vulva, 12 or that the penis of the accused touched the middle part of her vagina. 13 Thus, touching
when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight
brush or a scrape of the penis on the external layer of the victim's vagina, or the mons pubis, as in this case.
There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female
organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape.
14 As the labias, which are required to be "touched" by the penis, are by their natural situs or location beneath
the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration
beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum
constitutes consummated rape.
The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area,
e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the
rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is
the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner
surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner
surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath the labia
majora is the labia minora. 15 Jurisprudence dictates that the labia majora must be entered for rape to be
consummated, 16 and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the
surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute

consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either
labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape,
if not acts of lasciviousness.
Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female organ,"
17 but has also progressed into being described as "the introduction of the male organ into the labia of the
pudendum," 18 or "the bombardment of the drawbridge." 19 But, to our mild, the case at bar merely constitutes a
"shelling of the castle of orgasmic potency," or as earlier stated, a "strafing of the citadel of passion.
A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of proving that
Primo's penis was able to penetrate Crysthel's vagina however slight. Even if we grant arguendo that Corazon
witnessed Primo in the act of sexually molesting her daughter, we seriously doubt the veracity of her claim that
she saw the inter-genital contact between Primo and Crysthel. When asked what she saw upon entering her
children's room Corazon plunged into saying that she saw Primo poking his penis on the vagina of Crysthel
without explaining her relative position to them as to enable her to see clearly and sufficiently, in automotive
lingo, the contact point. It should be recalled that when Corazon chanced upon Primo and Crysthel, the former
was allegedly in a kneeling position, which Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest of the accused is pinning down the victim, while his
right hand is holding his penis and his left hand is spreading the legs of the victim).
It can reasonably be drawn from the foregoing narration that Primo's kneeling position rendered an unbridled
observation impossible. Not even a vantage point from the side of the accused and the victim would have
provided Corazon an unobstructed view of Primo's penis supposedly reaching Crysthel's external genitalia, i.e.,
labia majora, labia minora, hymen, clitoris, etc., since the legs and arms of Primo would have hidden his
movements from Corazon's sight, not to discount the fact that Primo's right hand was allegedly holding his penis
thereby blocking it from Corazon's view. It is the burden of the prosecution to establish how Corazon could have
seen the sexual contact and to shove her account into the permissive sphere of credibility. It is not enough that
she claims that she saw what was done to her daughter. It is required that her claim be properly demonstrated to
inspire belief. The prosecution failed in this respect, thus we cannot conclude without any taint of serious doubt
that inter-genital contact was at all achieved. To hold otherwise would be to resolve the doubt in favor of the
prosecution but to run roughshod over the constitutional right of the accused to be presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her timely
appearance, thus giving her the opportunity to fully witness his beastly act.
We are not persuaded. It is inconsistent with man's instinct of self-preservation to remain where he is and persist
in satisfying his lust even when he knows fully well that his dastardly acts have already been discovered or
witnessed by no less than the mother of his victim. For, the normal behavior or reaction of Primo upon learning of
Corazon's presence would have been to pull his pants up to avoid being caught literally with his pants down. The
interval, although relatively short, provided more than enough opportunity for Primo not only to desist from but
even to conceal his evil design.
What appears to be the basis of the conviction of the accused was Crysthel's answer to the question of the court

Q: Did the penis of Primo touch your organ?

A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily said, "No." Thus
Q: But did his penis penetrate your organ?
A: No, sir. 20
This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in this
case was consummated. It has foreclosed the possibility of Primo's penis penetrating her vagina, however slight.
Crysthel made a categorical statement denying penetration, 27 obviously induced by a question propounded to
her who could not have been aware of the finer distinctions between touching and penetration. Consequently, it is
improper and unfair to attach to this reply of a four (4)-year old child, whose vocabulary is yet as underdeveloped
as her sex and whose language is bereft of worldly sophistication, an adult interpretation that because the penis

of the accused touched her organ there was sexual entry. Nor can it be deduced that in trying to penetrate the
victim's organ the penis of the accused touched the middle portion of her vagina and entered the labia of her
pudendum as the prosecution failed to establish sufficiently that Primo made efforts to penetrate Crysthel. 22
Corazon did not say, nay, not even hint that Primo's penis was erect or that he responded with an erection. 23 On
the contrary, Corazon even narrated that Primo had to hold his penis with his right hand, thus showing that he
had yet to attain an erection to be able to penetrate his victim.
Antithetically, the possibility of Primo's penis having breached Crysthel's vagina is belied by the child's own
assertion that she resisted Primo's advances by putting her legs close together; 24 consequently, she did not feel
any intense pain but just felt "not happy" about what Primo did to her. 25 Thus, she only shouted "Ayo'ko, ayo'ko!"
not "Aray ko, aray ko!" In cases where penetration was not fully established, the Court had anchored its
conclusion that rape nevertheless was consummated on the victim's testimony that she felt pain, or the medicolegal finding of discoloration in the inner lips of the vagina, or the labia minora was already gaping with redness,
or the hymenal tags were no longer visible. 26 None was shown in this case. Although a child's testimony must be
received with due consideration on account of her tender age, the Court endeavors at the same time to harness
only what in her story appears to be true, acutely aware of the equally guaranteed rights of the accused. Thus, we
have to conclude that even on the basis of the testimony of Crysthel alone the accused cannot be held liable for
consummated rape; worse, be sentenced to death.1wphi1
Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no external signs of
physical injuries on complaining witness' body to conclude from a medical perspective that penetration had taken
place. As Dr. Aurea P. Villena explained, although the absence of complete penetration of the hymen does not
negate the possibility of contact, she clarified that there was no medical basis to hold that there was sexual
contact between the accused and the victim. 27
In cases of rape where there is a positive testimony and a medical certificate, both should in all respects
complement each other; otherwise, to rely on the testimonial evidence alone, in utter disregard of the manifest
variance in the medical certificate, would be productive of unwarranted or even mischievous results. It is
necessary to carefully ascertain whether the penis of the accused in reality entered the labial threshold of the
female organ to accurately conclude that rape was consummated. Failing in this, the thin line that separates
attempted rape from consummated rape will significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender commences
the commission of rape directly by overt acts, and does not perform all the acts of execution which should
produce the crime of rape by reason of some cause or accident other than his own spontaneous desistance. All
the elements of attempted rape and only of attempted rape are present in the instant case, hence, the
accused should be punished only for it.
The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense
charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower is reclusion temporal,
the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate
Sentence Law, and in the absence of any mitigating or aggravating circumstance, the maximum of the penalty to
be imposed upon the accused shall be taken from the medium period of reclusion temporal, the range of which is
fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and four (4) months, while the
minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is from
six (6) years and one (1) day to twelve (12) years, in any of its periods.
WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty of
statutory rape and sentencing him to death and to pay damages is MODIFIED. He is instead found guilty of
ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight (8) years four (4) months and ten (10)
days of prision mayor medium as minimum, to fourteen (14) years ten (10) months and twenty (20) days of
reclusion temporal medium as maximum. Costs de oficio.
SO ORDERED.