G.R. No.

45037 November 21, 1991

PEOPLE OF THE PHILIPPINES and GEORGE LITTON, SR., petitioners
vs.
HONORABLE FLORELIANA CASTRO-BARTOLOME, in her capacity as Judge of the Court of
First Instance of Rizal, Branch XV, LEONOR SOCHAYSENG and ROGELIO PAZ, respondents.

FERNAN, C.J:p
Time has left its mark on this case. Except for the alleged adulteress, the other dramatis
personae have long since died. But the legal question presented for resolution must still be
addressed. Should the prosecution in a criminal complaint for adultery be allowed to introduce
additional evidence even after it has rested its case and both defendants have submitted their
respective demurrers to evidence or motions to dismiss. Respondent Judge Castro-Bartolome ruled
in the negative and the State and both the aggrieved husband have gone up to this Court on a
petition for certiorari, prohibition and mandamus with preliminary injunction seeking the invalidation
of the assailed Orders of August 11, 1976 and October 12, 1976 denying their motion to reopen the
trial.
The antecedent facts are undisputed.
In a complaint dated January 23, 1973 filed before the then Court of First Instance of Rizal, Branch
XV (Makati), presided by respondent Judge Castro-Bartolome, petitioner George Litton Sr. charged
Leonor Sochayseng and Rogelio Paz with adultery. 1
After the prosecution rested its case, respondents Sochaysen and Paz filed their respective
demurrer to evidence (motions to dismiss) substantially raising similar grounds for the dismissal of
the adultery charge:
1. That the prosecution failed to prove beyond reasonable doubt the existence of
marriage between Litton, Sr. and Sochayseng during the alleged period of
commission of adultery;
2. That assuming arguendo that said marriage did in fact exist and that both
respondents committed acts of adultery during coverture, petitioner Litton, Sr. has
condoned and pardoned the adulterous acts of his wife and Paz. 2
On June 23, 1976, or nine (9) months after the prosecution rested its case and before respondent
Judge could resolve the motions to dismiss submitted by Sochayseng and Paz, the private
prosecutor (Atty. Estanislao Fernandez) filed a motion to reopen the case for the purpose of
presenting the following additional evidence:

1. A certified xerox copy of the Marriage Contract between George Litton, Sr.,
complainant herein, and his accused-wife, Leonor Trinidad Sochayseng, dated
August 28, 1959 at Bian, Laguna, . . .;
2. A certified and duly authenticated xerox copy of the Marriage Certificate attesting
to the marriage of George Litton, Sr., complainant herein, and the accused Leonor
Sochayseng, celebrated on October 20, 1962 before the Justice of the Peace of Las
Vegas, Nevada (USA) . . .;
3. A xerox copy of the affidavit of the accused Leonor S. Litton in the support case
filed by her against George Litton, Sr., Civil Case No. 16795 of the Court of First
Instance of Rizal, dated October 11, 1972 wherein said Leonor S. Litton stated,
under oath, among others that she and the defendant (George Litton, Sr.) were
married on October 20, 1962 as per marriage certificate . . . 3
Atty. Fernandez, who replaced Atty. Dakila Castro as private prosecutor, justified the move, thus:
These documents were not presented by the private prosecutor Dakila F. Castro at
the close of the evidence of the prosecution in his belief that he had sufficiently
proven the marriage between complaining witness George Litton, Sr. and the
accused Leonor Trinidad Sochayseng, with the testimony, among others, of said
George Litton, Sr., about said marriages. Granting that said opinion of Atty. Castro is
erroneous, in the highest interest of justice, we are presenting this motion to enable
us to present the above-mentioned documents to conclusively prove the fact of
marriage between the complaining witness, George Litton, Sr. and the accused
Leonor Sochayseng. 4
In the Order dated August 11, 1976, respondent Judge Castro-Bartolome denied the motion to
reopen trial, stating that:
The Rules of Court do not provide for any reopening of criminal case, but provide in
Rule 121 for new trial, wherein at any time before judgment, "the court may on
motion of the defendant, or on its own motion with the consent of the defendant,
grant a new trial." Section 2 thereof provides the grounds therefor:
(a) That the errors of law or irregularities have been committed during the trial
prejudicial to the substantial rights of the defendant;
(b) That new and material evidence has been discovered which defendant could not
with reasonable diligence have discovered and produced at the trial, and which if
introduced and admitted, would probably change the judgment. . . .
Nowhere is it provided that it may be granted upon motion of prosecution. Whatever
caption the prosecution may give to the action it seeks to be granted, whether
reopening or new trial, there is no specific provision of the Rules to back it, and is
probably why the decisions cited by the prosecution are rife that the court motu

propio may, for its own clarification, allow the introduction of evidence prove
jurisdiction, which would not be prejudicial to the substantial rights of the accused.

An urgent motion for reconsideration by petitioner was similarly rejected in the Order of October 12,
1976. Hence, the present recourse assailing respondent Judge for gravely abusing her discretion in
refusing to reopen trial. On November 23, 1976, this Court issued a temporary restraining order
dated November 22, 1976 barring respondent Judge from resolving the motions to dismiss filed by
the two accused in the Litton case.
Preliminarily, it must be stressed that there is no specific provision in the Rules of Court governing
motions to reopen a case for the reception of evidence after a case has been submitted for decision
but before judgment. Judicial action is controlled by no other rule than that of the paramount
interests of justice and rests entirely on the sound discretion of the trial court. Its grant or denial by
said court in the exercise of that discretion will not be reversed on appeal unless a clear abuse
thereof is shown. 6
Additional jurisprudence is to the effect that:
. . . It is within the discretion of the court whether or not to admit further evidence
after the party offering the evidence has rested, and this discretion will not be
reviewed except where it has clearly been abused. (64 C.J. 160). More, it is within
the sound discretion of the court whether or not it will allow the case to be reopened
for the further introduction of evidence after a motion or request for a non-suit, or a
demurrer to the evidence; and the case may be reopened after the court has
announced its intention as to its on the request, motion or demurrer, or has granted it
or has denied same, or after the motion had been granted, if the order had not been
written, or entered upon the minutes or signed. (64 C.J., 164).
In this jurisdiction this rule has been followed. After the parties have produced their
respective direct proofs, they are allowed to offer rebutting evidence only, but, it has
been held, the court, for good reasons, in the furtherance of justice, may permit them
to offer evidence upon their original case, and its ruling will not be disturbed in the
appellate court where no abuse of discretion appears. (Siuliong & Co. vs. Ylagan, 43
Phil. 393; U.S. vs. Alviar, 36 Phil. 804). So, generally, additional evidence is allowed
when it is newly discovered, or where it has been omitted through inadvertence or
mistake, or where the purpose of the evidence is to correct evidence previously
offered. (I Moran's Comments on the Rules of Court, 2d ed., 545; 64 C.J., 160-163,
cited in Alegre vs. Reyes, Ibid, pp. 232-233; Agulto vs. Court of Appeals, G.R. No.
52728, January 17, 1990, 181 SCRA 80).
Under the factual milieu of the case at bar, we find that respondent Judge correctly rejected
petitioner's motion to reopen the trial. Even the so-called paramount interests of justice cannot free
petitioner from his self-imposed predicament. His counsel took a big gamble in not presenting the
certificates attesting to the fact of marriage between petitioner and Leonor Sochayseng on the
erroneous belief that said marriage had been amply established by the testimony of the aggrieved
husband. Petitioner's counsel realized his folly when private respondents understandably moved for

the quashal of the complaint on the material ground that coverture was not prove beyond reasonable
doubt.
As wisely observed by respondent Judge in her August 11, 1976 denial order:
. . . If the prosecution can be allowed to rectify a mistake pointed out in a demurrer to
the evidence, what will be the court's reason to deny him a second or a third or a
fourth reopening ad nauseam to rectify succeeding mistakes should the first
reopening not serve the purpose? It is obvious that a reopening of the case to allow
the introduction of additional evidence would be prejudicial to the substantial rights of
the accused. 7
Moreover, records show that petitioner had already consumed a great deal of the court's time, or
about three (3) years and five (5) months, and presented eight (8) witnesses, and that it was only
after nine (9) months from the date private respondent filed their separate demurrer to evidence that
Litton's private prosecutor underwent a change of heart, or to be more accurate, a change of
strategy in order to salvage what appeared to be a weak case for George Litton, Sr.
The question may be asked: what would prevent the prosecution from switching lawyers everytime it
wants to upgrade its evidence in the guise of additional documents or new witnesses to be
introduced. And in the meantime, the fundamental right of the accused to a speedy trial is gravely
imperilled. It is rather unfortunate that for more than ten (10) years, this case has remained
unresolved because of a procedural impasse, which has placed the rights of the affected parties in a
state of suspended animation. It is imperative that proceedings in the main be resumed in the lower
court with the least delay.
All considered, we hold that there was no abuse of discretion on the part of respondent Judge to
warrant the corrective writ of certiorari.
WHEREFORE, the questioned orders of August 11, 1976 and October 12, 1976 denying the motion
to reopen trial in Criminal Case No. 7394 are hereby AFFIRMED. Respondent trial court is directed
to give priority to the final resolution of this case. This decision is immediately executory. No costs.
SO ORDERED.

G.R. No. L-63677 August 12, 1983

LEO M. FLORES, MODESTO L. LICAROS and MARIO LOPEZ VITO, petitioners,
vs.
THE SANDIGANBAYAN (First Division), THE PEOPLE OF THE PHILIPPINES AND ABELARDO
B. LICAROS,respondents.
Amadeo D. Seno Angel C. Cruz and Franklin Farolan for petitioners.

The Solicitor General for respondents.

RELOVA, J.:
Petition for certiorari and prohibition seeking (1) to nullify the order, dated February 11, 1983, of
respondent Sandiganbayan (First Division) in Criminal Case No. 6672, entitled People vs. Modesto
Licaros y Lacson, et al.,ordering the discharge upon motion of the Tanodbayan, of private
respondent Abelardo B. Licaros from the information for robbery to be utilized as a government
witness and the order, dated March 21, 1983, denying the motion for reconsideration; and (2) to
enjoin respondents from presenting him as state witness.
On June 5, 1982, the Legaspi City Branch of the Central Bank of the Philippines was robbed and
divested of cash amounting to P19,731,320.00.
On June 9, 1982, a sizable portion of the money was recovered at the Home Savings Bank & Trust
Company Building in Intramuros, Manila after a raid by the police authorities.
On July 6, 1982, the Tanodbayan filed an information with the Sandiganbayan charging Modesto
Licaros, Leo Flores, Ramon Dolor, Glicerio Balansin Rolando Quejada Pio Edgardo Flores, Mario
Lopez Vito and Rogelio dela Cruz, as principals, and herein private respondent Abelardo B. Licaros,
as accessory with the crime of robbery committed on or about June 5 and 6, 1982 at the Legaspi
City Branch of the Central Bank of the Philippines in which P19,731,320.00 was taken therefrom.
The National Bureau of Investigation which investigated the case recommended that Abelardo B.
Licaros be charged as principal but the Tanodbayan included him only as an accessory after the fact.
On November 26, 1982, the Tanodbayan filed an amended information naming the same persons as
principals, except Rogelio dela Cruz who is now charged as an accessory, together with private
respondent Abelardo B. Licaros.
On November 29, 1982, the accused were arraigned, including private respondent Abelardo B.
Licaros, who interposed the plea of not guilty.
On January 7, 1983, the Tanodbayan filed with the Sandiganbayan a "Motion for Discharge" of
accused Abelardo B. Licaros to be utilized as state witness, alleging that all the requisites prescribed
in Section 9, Rule 119 of the Rules of Court have been fully complied with.
The motion for discharge was opposed by herein petitioner Leo Flores, on the ground that the bare
assertions of the prosecution (1) that there is absolute necessity for the testimony of Abelardo B.
Licaros; (2) that there is no other direct evidence available for the proper prosecution of the offense
charged except his testimony; and (3) that his testimony can be substantially corroborated in its
material points, are all self-serving' allegations which are not substantiated. Further, petitioner Flores
claims that from the records of the preliminary investigation of the robbery case conducted by the
Tanodbayan Abelardo B. Licaros appears to be the most guilty and is, in fact, the mastermind in the
commission of the offense charged.

On February 11, 1983, the Sandiganbayan issued a resolution granting the motion and ordering the
discharge from the information of private respondent Abelardo B. Licaros. Petitioner Flores filed a
motion for reconsideration but the same was denied in the court's resolution dated March 21,1983.
Hence, this petition.
Section 9, Rule 119 of the Revised Rules of Court, provides:
SEC. 9. Discharge of one of several defendants to be witness for the prosecution
When two or more persons are charged with the commission of a certain offense, the
competent court, at any time before they have entered upon their defense, may
direct one or more of them to be discharged with the latter's consent that he or they
may be witnesses for the government when in the judgment of the court:
a) There is absolute necessity for the testimony of the defendant whose discharge is
requested;
b) There is no other direct evidence available for the proper prosecution of the
offense committed, except the testimony of said defendant;
c) The testimony of said defendant can be substantially corroborated in its material
points;
d) Said defendant does not appear to be the most guilty;
e) Said defendant has not at any time been convicted of any offense involving moral
turpitude.
It is apparent from this rule that the discharge of an accused from the information so that he may be
utilized as a state witness is the exclusive responsibility of the trial court provided that it sees to it
that the requisites prescribed by the rules exist, particularly the requisite that there is absolute
necessity for the testimony of the defendant whose discharge is requested. Under this requisite, the
fiscal must show that there is absolute necessity for the testimony of the defendant whose discharge
he seeks, in order to be a witness for the prosecution. This requirement is aimed to curtail
miscarriage of justice, before too common, through the abuse of the power to ask for the discharge
of one or more defendants. Absolute necessity of the testimony of the defendant, whose discharge is
requested must now be shown if the discharge is to be allowed, and the power to determine the
necessity is lodged upon the court. (People vs. Ibanez, 92 Phil. 933). The expedient should be
availed of, only when there is absolute necessity for the testimony of the accused whose discharge
is requested, as when he alone has knowledge of the crime, and not when his testimony would
simply corroborate or otherwise strengthen the evidence in the hands of the prosecution (People vs.
Borja, 106 Phil. 1111).
Petitioners claim that the contents of the affidavit dated June 14, 1982, of private respondent
Abelardo B. Licaros, which in all probability would be the nature of his testimony as a state witness,
is not absolutely necessary if the purpose is to pinpoint the role of petitioner Modesto Licaros

considering the other evidence submitted by the National Bureau of Investigation to the Tanodbayan,
like the affidavits executed by the three (3) Security Guards of the Home Savings Bank, namely:
Romeo Pomada, Edgardo Aranillo and Elias Gellecanao mentioning petitioner Modesto Licaros.
Thus, petitioners contend that there can be no basis for the prosecution "to honestly assert that there
is absolute necessity for the testimony of Abelardo B. Licaros for the purpose of establishing the
participation of Modesto Licaros in delivering the money to the Home Savings Bank. At most, the
intended testimony of Abelardo B. Licaros is only corroborative of the statements of the other
witnesses submitted by the NBI to the Tanodbayan." (p. 17, Memorandum for Petitioners)
At any rate, the discharge of an accused may be ordered "at any time before they (defendants) have
entered upon their defense," that is, at any stage of the proceedings, from the thing of the
information to the time the defense starts to offer any evidence. In the case at bar, considering the
opposition of herein petitioners to the motion for the discharge of Abelardo B. Licaros, particularly the
contention that he (herein private respondent) is the most guilty and that his testimony is not
absolutely necessary, the trial court should have held in abeyance or deferred its resolution on the
motion until after the prosecution has presented all its other evidence. Thereafter, it can fully
determine whether the requisites prescribed in Section 9, Rule 119 of the new Rules of Court, are
fully complied with. Besides, there lies the danger where one or more of the defendants are
discharged before the commencement of the hearing, he/they may disappear in which case the
purpose of his/their exclusion will come to naught. It is necessary that certain safeguards be taken,
otherwise an injustice may be committed.
WHEREFORE, the resolution of respondent Sandiganbayan, dated February 11, 1983, ordering the
discharge from the information of accused Abelardo B. Licaros in Criminal Case No. 6672, as well as
its resolution, dated March 21, 1983, denying petitioners' motion for reconsideration, are hereby SET
ASIDE.
SO ORDERED.
G.R. No. L-54258 November 27, 1987
DOMINGO CAN, petitioner,
vs.
THE HONORABLE JUDGE NICOLAS GALING, in his capacity as Presiding Judge of Branch
III, Court of First Instance of Sorsogon, 10th Judicial District, respondent.

PADILLA, J.:
Petition for certiorari and mandamus to reverse and set aside the Orders of the respondent Judge,
dated 12 May 1980 and 10 June 1980, discharging Emilio Daria, one of the accused in Criminal
Case No. 500 for Robbery, entitled "People of the Philippines v. Domingo Can, Emilio Daria, Sgt.
Jesus Abion and Francisco Lizard" in order to be a witness for the State.

On 16 July 1980, the Court issued a temporary restraining order enjoining respondent Judge from
hearing or receiving the testimony of the discharged accused Emilio Daria in said Criminal Case No.
500, until further orders from the Court.
On 6 February 1981, the Court resolved to give due course to the petition and declare the case
submitted for decision, after considering the allegations, issues and arguments contained in the
Petition for certiorari and mandamus, the Comments thereon and the Reply to said comments.
The antecedent facts are:
On 31 May 1978, an information for Robbery was filed with the Court of First Instance of Sorsogon
against the aforenamed accused. The case was assigned to Branch III, presided over by respondent
Judge.
Upon arraignment, all the accused pleaded not guilty.
On 29 November 1979, the prosecuting fiscal moved to discharge the accused Emilio Daria from the
information, to be used as a state witness, on the following grounds:
1. That there are several defendants in the above-entitled case;
2. That the prosecution has no other direct evidence available for the proper
prosecution of the offense committed except the testimony of accused Emilio Daria;
3. That there is absolute necessity for the testimony of the accused Emilio Daria,
whose discharge is hereby requested in this motion;
4. That the testimony of said defendant can be substantially corroborated in its
material points;
5. That defendant Emilio Daria does not appear to be the most guilty considering the
accused Domingo Can is the master-mind of the robbery and the two other accused
Francisco Lizardo and Jesus Abion are non-commissioned officers of the Philippine
Constabulary while accused Emilio Daria appears to be the only unlettered [sic] but
was merely asked by the accused Domingo Can and Sgt. Jesus Abion to take part in
the commission of the offense and the accused Emilio Daria agreed having no Idea
that robbery was to be perpetrated by the other accused.
6. That defendant Emilio Daria has not at any time been convicted of any offense
involving moral turpitude;
7. That said defendant consents to be a witness for the government.

The fiscal's motion was opposed by petitioner and the other accused Francisco Lizardo. On 12 May
1980, as aforestated, the respondent Judge issued the Order discharging Daria from the information

so that he may be utilized as a state witness. Motion for reconsideration of the order of discharge
was denied in the other Order dated 10 June 1980.
Hence, this petition.
The sole issue for resolution in this case is the propriety of the discharge from the information in
Criminal Case No. 500 of the accused, Emilio Daria, in order to be utilized as a state witness,
Section 9, Rule 119 of the Rules of Court in force when this petition was brought to this Court,
provides:
Sec. 9. Discharge of one of several defendants to be witness for the prosecution
When two or more persons are charged with the commission of a certain offense,
the competent court, at any time before they have entered upon their defense, may
direct one or more of them to be discharged with the latter's consent that he or they
may be witnesses for the government when in the judgment of the court:
(a) There is absolute necessity for the testimony of the defendant whose discharge is
requested;
(b) There is no other direct evidence available for the proper prosecution of the
offense committed, except the testimony of said defendant;
(c) The testimony of said defendant can be substantially corroborated in its material
points;
(d) Said defendant does not appear to be the most guilty;
(e) Said defendant has not at any time been convicted of any offense involving moral
turpitude. 2
Petitioner alleges that the above criteria have not been followed in the discharge of Daria from the
information.
We agree.
There was no absolute necessity for the testimony of the accused Daria to qualify him as a state
witness. The prosecution itself admitted that one of the government witnesses, named Michael Yu,
testified that he saw and recognized the accused, Domingo Can, as one of those who committed the
robbery. 3 Such testimony is direct evidence of Can's participation and clearly negates the absolute need
for Daria's testimony in Identifying Can as one of the perpetrators of the offense. If at all, Daria's
testimony would be merely corroborative and not essential.
Neither is there a finding of non-availability of direct evidence other than the accused Daria's
testimony. On the contrary, it is plainly admitted by the prosecution in its "Rejoinder to Opposition"
dated 14 December 1979 that:

The assertion of the accused that without Daria's confession the indictment of the
other accused stands on no evidentiary foothold is misleading. The Identities of the
three other accused were already knows to the authorities even before they learned
that the accused Emilio Daria took part in robbery. As a matter of fact it was the
accused Sgt. Jesus Abion who informed the PC that the accused Emilio Daria was
with him and the other accused when they committed the robbery. The prosecution
witness Michael Yu testified that he recognized the accused Domingo Can and
because of such a revelation the PC investigators were able to solve the case and
the accused Jesus Abion and Francisco Lizardo admitted their participation in the
crime. 4
The records of this case also disclose convictions of the accused Daria for various crimes, as
follows: attempted murder (Criminal Case No. 3533); 5 carrying of deadly weapon (Criminal Case No.
2657); 6 slander by deed (Criminal Case No. 2175) 7 slight physical injuries (Criminal Case No.
2400) 8 and carrying of deadly weapon (Criminal Case No. 3233). 9 His untrustworthiness as a witness on
the ground of moral turpitude is apparent.
Moral turpitude has been defined as "everything which is done contrary to justice, modesty, or good
morals; 10 an act of baseness, vileness or depravity in the private and social duties which a man owes his fellowmen, or to society in
general, contrary to the accepted and customary rule of right and duty between man and man, or conduct contrary to justice, honesty,
modesty or good morals. 11

In In re Gutierrez, 12 the crime of murder was considered a crime involving moral turpitude. Certainly, attempted murder, for which the
accused Daria was found guilty, belongs to the same classification. The premeditated attempt to take a human life is decidedly a base, vile,
and depraved act contrary to moral standards of right and wrong. Coupled with the other crimes for which the accused Daria had been
previously convicted, the latter's disqualification to be discharged from the information to become a state witness should have been obvious.

WHEREFORE, the petition is GRANTED. The Orders of respondent Judge, dated 12 May 1980 and
10 June 1980, are hereby REVERSED and SET ASIDE. The discharge of accused Emilio Daria from
the information in Criminal Case No. 500 is annulled and his reinstatement as one of the accused in
the same information is hereby ordered. Without pronouncement as to costs in this instance.
SO ORDERED.
G.R. No. L-67302 June 18, 1987
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO TORREFRANCA, alias "Tony", SOFRONIO GILBOLINGO, alias "Ponyong", ISAIAS
DARO, alias "Ely", TIRSO MELECIO, alias "Tirso", and OLIPIO ARELLANO, alias
"Apyot", defendants-appellants.
Felicitas Aquino for defendants-appellants.

PARAS, J.:

Accused Antonio Torrefranca alias "Tony", Sofronio Gilbolingo alias "Ponyong", Isaias Daro alias
"Ely", Tirso Melencio alias "Tirso", Olipio Arellano alias "Apyot" and Benedicto Botohoy were charged
with the crime of Robbery in Band with Double Homicide before the Regional Trial Court of the City
of Tagbilaran, Bohol, Seventh Judicial Region, Branch I.
On the same day that the information was filed, the fiscal filed a motion requesting the discharge of
accused Botohoy. After the prosecution had presented its evidence and rested its evidence (accused
Botohoy was among the prosecution witnesses who testified) the trial court granted the said motion
for discharge and ordered Botohoy's release from detention.
Trial proceeded against the other accused, and in a decision

* dated January 25, 1984, the trial court rendered

judgment, the dispositive portion of which, reads:

WHEREFORE, finding the herein accused Antonio Torrefranca alias Tony, Sofronio
Gilbolingo alias Ponyong, Isaias Daro alias Ely, Tirso Melencio alias Tirso and Olipio
Arellano alias Apyot guilty beyond reasonable doubt of the special crime of Robbery
with Homicide, all said accused are hereby sentenced to suffer the penalty of death
to pay severally and jointly the following damages, to wit:
1) Twelve Thousand Pesos (P12,000.00) by reason of the death of
Vivencio Diaganon to be paid to his legal heirs;
2) Twelve Thousand Pesos (P12,000.00) by reason of the death of
Flaviana Diaganon to be paid to her legal heirs;
3) Five Thousand Pesos (P5,000) as moral damages to be paid to
the legal heirs of Vivencio Diaganon;
4) Five Thousand Pesos (P5,000) as moral damages to be paid to
the legal heirs of Flaviana Diaganon;
5) To pay their proportionate share of the costs.
SO ORDERED. (p. 37, Rollo)
The facts of the case, as found by the trial court, are summarized as follows:
In the early evening of March 25, 198 1, Botohoy went to the store of Gilbolingo at the junction of
Barangay Libertad Norte, Sagbayan, Bohol to take a ride for Batuan, Bohol, to see his wife who was
harvesting palay thereat. Inside the store, he saw the appellants Torrefranca, Daro, Melecio, Arellano
and Gilbolingo. Gilbolingo approached Botohoy and took his sickle and bolo (p. 26, TSN) then
placed them on the shelves of the store. Botohoy observed that the appellants were drinking "tuba"
and were discussing something which he could not hear, as he was far from the group. Thereafter,
Gilbolingo and Torrefranca forced him to go with the group to the house of the Diaganon couple.

On their way to the Diaganons' house, Botohoy noticed that Gilbolingo brought a bolo and his
(Botohoy's) sickle, Daro carried a small bolo, Melecio had a piece of wood, Arellano carried a small
bolo, while Torrefranca had a revolver. At about 7:00 o'clock in the evening, the group reached the
house of the Diaganon couple, which is a kilometer away. Gilbolingo called for Flaviana Diaganon,
who, upon seeing Gilbolingo, readily invited him in. Whereupon, the group rushed up the stairs.
While doing so, Torrefranca covered his head and face with a black cloth. (pp. 39-42, TSN)
Once inside, Gilbolingo held Flaviana by the hair and hacked her neck with the sickle (Exh. A).
Flaviana fell down on the floor, spattering blood all over Gilbolingo's blue t-shirt. Then, Gilbolingo
hacked her forearms and took the bundles of money on her waist, which were rolled inside a
stocking (pp. 42-51, 53, TSN).
Meanwhile, Torrefranca, who was holding a gun, positioned himself at the sala while Daro and
Melecio entered the bedroom of Vivencio Diaganon. Botohoy heard Vivencio's voice, pleading to
Daro to stop assaulting him. Then, Daro came out of the room, carrying under his armpit a blanket
and trousers, and holding a bolo covered with blood (pp. 57-58, TSN) Melecio also came out from
the room of Vivencio, carrying a piece of wood covered with blood. Torrefranca then ordered Daro
and Melecio to hurry up and look for money. Whereupon, Daro opened the drawer of a sewing
machine and brought out a bundle of money, two centimeters thick. Torrefranca went to a big
bamboo basket and dug into the palay inside. He got a bundle of money and placed it in his pocket
(pp. 63-69, TSN Arellano searched another room in the house but was not able to get anything. (pp.
69-70, TSN).
Thereafter, Torrefranca announced to his companions: "Let us go down now." Before leaving the
house, Torrefranca increased the volume of the radio, which was then set on a small table.
Torrefranca removed his mask, as he went down the house, and took custody of all the money taken
from the victims. When the group returned to Gilbolingo's house, Torrefranca explained that they
could not yet divide the loot because they may tend to spend it and may direct suspicion on them
(pp. 70-78, TSN). Then, he warned Botohoy not to report the matter to the police, otherwise, he
would kill Botohoy and his family.
The following morning, Alfonso Diaganon, a son of Vivencio Diaganon by a previous marriage, went
to the house of the victims, upon being informed by one of the victims' farm hands that something
tragic had happened to the two old persons. He saw Flaviana Diaganon lying on the floor leading to
the kitchen with a large wound on her neck, and Vivencio Diaganon lying prostrate on his bed in the
bedroom, with wounds on the forehead, left cheek and on the sides of his body. He also discovered
an amount of Twenty One Thousand Pesos (P21,000.00) concealed among the palay. Then, he
reported the matter to the police.
On the same day, Dr. Estanislao Camacho, Municipal Health Officer of Sagbayan, Bohol autopsied
the bodies of the victims and reduced his findings into writing, to wit: that the cause of death of
Vivencio Diaganon was massive hemorrhage of the head and the right chest, probably caused by a
sharp pointed instrument (pp. 73-74, TSN) and that the cause of death of Flaviana Diaganon was
massive hemorrhage, coming from the neck caused by a sharp instrument, possibly a sharp bladed
scythe (pp. 80-81, TSN).

On April 15, 1981, when Botohoy was apprehended by the police, Botohoy executed an extrajudicial
confession revealing the details of the commission of the outrageous offense and Identifying the
appellants as the perpetrators thereof. Thus, on April 16, 1981, Sgt. Amedio G. Cagata applied for
and obtained a search warrant from the Hon. Andrew S. Namocatcat, Judge of the then Court of
First Instance of Bohol, to authorize the search of the residences of the appellants. From the house
of Daro, they recovered one small bolo, stained with blood (Exh. "B"), two bales of cloth (Exhs. "D"
and "D-1") and one t-shirt (Exh. "L"); from Gilbolingo's house, they recovered a blue t-shirt, stained
with blood (Exh. "C"); and from Melecio's house, they found a white t-shirt (Exh. "M ").
On April 20, 1981, Gilbolingo executed a document entitled Waiver of Rights, in which he expressed
his desire to waive his rights to remain silent and to the presence of counsel during interrogation.
Thereafter, he executed an extrajudicial confession admitting his participation in the commission of
the crime and naming all the other accused, except Arellano (his brother-in-law) as his coconspirators. Subsequently, Gilbolingo subscribed and swore to his Waiver of Rights and
Extrajudicial confession before the then Assistant Provincial Fiscal Daniel B. Bernaldez of Bohol.
During the trial, the appellants testified on their whereabouts at the time of the incident, their
defenses amounting to a general denial and alibi. Gilbolingo subsequently repudiated the
voluntariness of his extrajudicial confession, claiming that he was merely forced to sign prepared
documents (p. 117, Rollo). The defense also presented witness Epifanio Abano, who assumed full
responsibility for the crime, allegedly with a certain Marlito Paca (whose family name he does not
know), a certain Cris (whose family name he does not also know), Cito Petalcorin, Junior Tutor,
Junior Petalcorin and Narding Abari (p. 24, Rollo).
After trial, the trial court convicted the appellants of the complex crime of Robbery with Homicide,
and sentenced them as aforesaid.
In this appeal, the appellants assail the credibility of the testimony of their co-accused Botohoy. They
also contend that the discharge of Botohoy to become a state witness was in violation of Rule 119,
Section 9, for he appears to be the most guilty (Botohoy had been working in the plantation of the
deceased spouses and had known the extent of their earnings) and has been a fugitive from justice
for attempted rape, a crime involving moral turpitude.
We have carefully examined the records of the case and We find no plausible reason to alter the trial
court's appreciation of the credibility of Botohoy's testimony.
In the discharge of a co-accused, the trial court may reasonably be expected to err Where such error
is committed, however, the error of the court in discharging such accused cannot affect the legal
consequences of his discharge (US vs. Mendiola, 82 Phil. 740). Neither can such error affect the
testimony and the quality of his testimony. Even if the discharged witness should lack some of the
qualifications enumerated by Section 9, Rule 119 of the Rules of Court, his testimony will not, for that
reason alone, be discarded or disregarded (US vs. Abanzado, 37 Phil. 658; People vs. Jamero, 24
SCRA 206).

Thus, the trial court correctly gave credence to Botohoy's testimony in court, which confirmed the
material allegations of his extrajudicial confession, pointing to the appellants as the perpetrators of
the crime.
Indeed, appellants' mere denial and stories of alibi cannot prevail over the positive testimony of
Botohoy, that the appellants killed the Diaganon spouses and ransacked the latter's house. Post
mortem findings of Dr. Estanislao Camacho corroborate Botohoy's testimony on the injuries
sustained by the victims. The results of the searches conducted in the respective residences of the
appellants, likewise, substantiate Botohoy's description of the t-shirts worn by the appellants at the
time of the incident, the weapons used by them, and the articles which formed part of the loot (TSN,
pp. 478-490).
Appellants argue that Botohoy's testimony is biased and unreliable, because he harbored ill-feelings
against them, to wit: Sofronio Gilbolingo mauled Botohoy in 1979 and they have become enemies
since then; Isaias Daro testified against Botohoy in a case for Malicious Mischief filed against the
latter; Olipio Arellano's wife also testified against Botohoy in said Malicious Mischief case; Tirso
Melencio reprimanded Botohoy's son for stealing his (Melecio's) corn; and Antonio Torrefranca was
responsible for the arrest of Botohoy, as suspect in the instant case. (p. 114, Rollo).
We find these supposed insidious motivations, however, too frivolous and shallow, as to induce
Botohoy to testify falsely against the appellants, at the risk of confessing participation in the
commission of such grave offenses, as in the instant cases. As held in People vs. Tatlonghari, 27
SCRA 726:
The reasons for the alleged individual grudges of the witnesses against appellant
being so flimsy and uncertain, it is incredible that they could constitute as sufficient
motive for an average individual to conjure up so serious a charge as murder and
thereby send an otherwise innocent man to a long stretch of prison terms. . . .
We find the testimony of witness Epifanio Abano, assuming full responsibility for the commission of
the crime, unworthy of credit and belief. A careful analysis of the evidence adduced in this case
shows that his statements are substantially inconsistent on material points, rendering him a totally
unreliable witness.
Thus, on cross examination, he testified that on the date of the incident, he and his companions
waited for nighttime at the public market in Barangay San Vicente Sagbayan, Bohol; and that the
bodies of the victims were lying side by side on the floor of the room of their house (TSN, p. 1292),
At the trial, however, it was established that on March 25, 1981, there was no public market in
Barangay San Vicente, Sagbayan, Bohol. It was also clearly proven that the victims' bodies were
lying in different places (where the victims were respectively killed). Witness Mauricio Petalcorin (one
of his alleged co-conspirators), denied any participation in the robbery and advanced the reason why
Abano testified in favor of the appellants, to wit:
Q Can you give any reason why Epifanio Abano will testify here and
point you as the person who killed the old woman in that robbery

case committed in San Vicente, Sagbayan, Bohol, on March 25,

1981?
A I know the reason.
Q Please tell the Honorable Court?
A That fellow ...
INTERPRETER:
Witness pointing to a person who answered to the name Epifanio
Abano
Con't of the Answer:
is always asking money and that Gilbolingo is used to give money. ...
Q How long have you known Sofronio Gilbolingo?
A May 19, 1983 since the time that I was placed in jail because we
were together in one cell. ... (pp. 1364-1365, TSN)
The foregoing infirmities in witness Abano's testimony lead us to no other conclusion than that his
narrations were last minute concoctions to exculpate the appellants from their criminal
responsibilities.
Finally, appellant Gilbolingo's claim that his extrajudicial confession was secured thru force or
intimidation, deserves scant consideration. While he claimed that Sgt. Cagata maltreated and
coerced him into signing prepared documents, he did not complain of the alleged maltreatment when
he was brought before Provincial Fiscal Bernaldez before whom he swore to the truth of the same.
Neither did he file a complaint thereafter against Sgt. Cagata. The trial court also found that his
confession is replete with details, that could have been furnished only by the appellant himself
(People vs. Nillos, 127 SCRA 207). Additionally, it is alleged that since he made the extrajudicial
confession in the absence of his attorney, the confession has no evidentiary value, even if his right to
have his counsel present at the time of the interrogation or confession had been WAIVED by him,
the waiver being VOID. Assuming this to be so, still the evidence presented in this
case excluding said confession, will suffice to convict all the appellants.
Well settled is the rule that conclusions of the trial judge, regarding the credibility of witnesses,
command great respect and consideration, specially when, as in this case, they are supported by the
evidence of record.
WHEREFORE, the appealed decision is hereby AFFIRMED, subject to the following modifications:
(1) the death penalty is reduced to reclusion perpetua ** in view of the provisions of the 1987 Constitution and (2) the
indemnity to the victims' heirs is increased from P12,000.00 to P30,000.00 for each victim.

SO ORDERED.
. R. No. 94555 August 17, 1992
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EDUARDO LABALAN OCIMAR and ALEXANDER CORTEZ MENDOZA, accused-appellants.
The Solicitor General for plaintiff-appellee.
Virgilio Y. Morales for accused-appellant.
Alfredo Au. Alto for appellant Ocimar.

BELLOSILLO, J.:
EDUARDO LABALAN OCIMAR and ALEXANDER CORTEZ MENDOZA, together with ALFONSO
RAMOS BERMUDEZ, ALBERTO VENZIO CRUZ, VENZIO CRUZ alias "BOY PANA" and JOHN
DOE alias "BUNSO" were charged in the court a quo for violation of P.D. 532, otherwise known as
the "Anti-Piracy and Highway Robbery Law of 1974," in an Information alleging that
. . . on or about the 19th of October, 1986, in . . . Balagtas . . . Bulacan . . . the said
accused Eduardo Labalan Ocimar, Alfonso Ramos Bermudez, Alberto Venzio Cruz
and Alexander Cortez Mendoza, together with Venzio Cruz alias "Boy Pana" and one
John Doe alias "Bunso" . . . conspiring and confederating together . . . did then and
there wilfully, unlawfully and feloniously, with intent of gain and by means of force,
violence and intimidation . . . take, rob and carry away with them cash money,
jewelries and other valuables amounting to P36,100.00 more or less, belonging to
the passengers and driver of the Baliuag Transit, Alejandro de Jesus, while he was
driving the said bus along the North Expressway . . . and that on the occasion
thereof, the said accused, in furtherance of their conspiracy, did then and there
wilfully, unlawfully and feloniously attack, assault and shoot . . . Capt. Cirilo Caeba,
an Army Officer . . . thereby inflicting upon him serious physical injuries which directly
caused his death. 1
On June 22, 1987, accused Eduardo Ocimar and Alexander Mendoza were arraigned. With the
assistance of counsel de oficio, they pleaded "Not Guilty". 2 The other accused were not arraigned
because they could not be accounted for.
On July 7, 1987, Alfonso Bermudez was finally brought before the court. He was accordingly
arraigned and with the assistance likewise of counsel de oficio, he entered a plea of "Guilty". 3
The other two accused, Alberto Venzio Cruz and Venzio Cruz alias "Boy Pana", were never
arraigned as the former was never arrested, while the latter jumped bail before arraignment.

On October 28, 1987, after the prosecution had already presented four witnesses, the prosecuting
Fiscal moved for the discharge of accused Bermudez to be utilized as state witness. Although he
had already entered a plea of guilt earlier, no judgment was as yet rendered against him.
On November 9, 1987, the trial court granted the motion of the prosecution for the discharge of
Bermudez. On March 21, 1988, after he testified for the prosecution, Bermudez was released. 5
On April 3, 1990, the trial court rendered judgment finding accused Eduardo Labalan Ocimar and
Alexander Cortez Mendoza guilty beyond reasonable doubt as co-principals in the violation of P.D.
532 and accordingly sentenced each of them to reclusion perpetua, and directing them jointly and
severally to indemnify the heirs of the late Capt. Cirilo Caeba, Jr., the amount of P30,000.00 for his
death, P45,000.00 for funeral expenses, P25,000.00 for moral damages, and P720,000.00
representing loss of expected support of the victim's heirs, plus the costs. 6
Accused Ocimar and Mendoza are now before Us on appeal.
Ocimar imputes ERROR to the court a quo in (a) discharging accused Bermudez, who had earlier
pleaded guilty to the charge, to be utilized as a state witness; (b) giving credence to the testimony of
Bermudez; and, (c) not holding that the prosecution failed to prove his (Ocimar) guilt beyond
reasonable doubt.
On his part, accused Mendoza maintains that the lower court ERRED in (a) relying on the lone
testimony of accused Bermudez; and, (b) convicting him (Mendoza) notwithstanding the failure of
the prosecution to prove his guilt.
Considering the peculiar circumstances attendant to the commission of the offense and in order to
meet squarely the issues raised by accused Ocimar and Mendoza, We prefer to quote hereunder
the findings of fact of the trial court, which makes a detailed account of the participation of each
accused in the perpetration of the highway robbery. We are not usually prone to lift extensively word
for word from narration of facts in decisions of lower courts elevated to Us, but in the instant case
We resolve to, in view of the accurate and systematic reporting done by the trial court. Its factual
findings are well backed up by the evidence on record, hence, We need not improve on them.
Besides, it is an entrenched rule that the matter of assigning value to declarations at the witness
stand is best and most competently performed by the trial judge who, unlike appellate magistrates,
can weigh such testimony in the light of the declarant's demeanor, conduct and attitude at the trial,
and is thereby placed in a more competent position to discriminate between the true and the
false. 7 Thus, as vividly reported by the court a quo
At around 3:00 o'clock in the afternoon of October 19, 1986, Bermudez was fetched
from his house in Amparo Capri, Novaliches, Quezon City by Eduardo Ocimar,
Alexander Mendoza and others he knew only by their first names (Boy Pana, Bunso,
Danny and Boylot) who invited him to a supposed drinking session at a place
somewhere in Sta. Maria, Bulacan. It turned out that the said place served as a hideout for the group. The contemplated drinking session in that hide-out did not take
place. Instead, the members of the group were given instructions by one "Boy Pana"

on their seating arrangements inside the bus they intended to hold-up shortly
thereafter.
Not long afterwards, the group (this time in the company of additional persons named
Fred Paraiso, Bebot, Beboy Baya, Fermin, Noel, Boboy and Agoy) boarded at the
Malinta, Valenzuela (Metro Manila) toll gate of the North Expressway a yellowpainted Novaliches-Blumentritt passenger jeepney and proceeded to the Baliuag
Transit bus terminal at Cubao, Quezon City.
Herein accused and their companions boarded an airconditioned Baliuag Transit
passenger bus bound for Cabanatuan City, and seated themselves in different places
inside the vehicle according to their pre-arranged plan. Bermudez seated himself
somewhere at the middle portion of the bus, Ocimar and Bunso at the far end, and
Mendoza at the front behind the bus driver's seat. Each of them possessed a
concealed firearm or bladed weapon.
Not long after the bus had passed beyond the Malinta toll gate of the North
Expressway, Mendoza rose from his seat, poked a .38 cal. pistol at the bus driver,
and announced the hold-up. Forthwith, the other members of the group, with their
respective weapons exposed to view, went about divesting the passengers of their
wallets and handbags, items of jewelry and other personal effects of value. While the
robbery was in progress, Bermudez heard gunshot reports from the rear end of the
bus. He turned his head towards that direction and saw Ocimar holding a .22 cal.
magnum revolver pointed at the neck of a passenger seated at the back row of the
bus (later identified as Capt. Cirilo Caeba, Jr.) who was then about to drop to the
floor, head first. At the same spot, Bunso was also seen standing close by with a gun
on hand.
Upon reaching that portion of the Expressway with a concrete overpass somewhere
in Burol, Balagtas (Bulacan), Mendoza ordered the bus driver to stop the vehicle and,
after the driver was ordered to proceed on his way, the robbers alighted and boarded
the same yellow-colored passenger jeepney which was already waiting at the place
to serve as a get-away transport. Aboard the passenger jeepney, the group fled to
Bunso's house at Catmon, Sta. Maria where Bermudez was given P1,000.00 cash by
Boy Pana. After they divided the loot among themselves, the robbers parted ways.
After the robbers alighted at Burol, the bus driver with his passengers proceeded to
Tabang, Guiguinto (Bulacan) where the incident was reported to the police station
thereat. Said report was duly entered in the police blotter (Exhibit A).
Eventually, Bermudez was arrested by the police authorities at Novaliches on
November 4, 1986 and brought to the Northern Police District station at Sikatuna
Village, Quezon City where he executed a written statement (Exhibit E; also marked
Exhibit H) wherein he confessed his and his co-accused's participation in the
highway robbery.

Upon written request to this effect (Exhibit I), Dr. Dario L. Gajardo of the PC Crime
Laboratory at Camp Crame, Quezon City performed on October 20, 1986 at the
PCCL morgue a post-mortemexamination of the cadaver of Capt. Cirilo Caeba, Jr.,
after it was first identified by one Capt. Isabelo Almonte. The corresponding medicolegal report prepared by Dr. Gajardo (Exhibit J) indicates that the aforenamed
deceased sustained, among other injuries, four (4) gunshot wounds, to wit, at the
right temporal region, right clavicular region, left mammary region and right iliac
region (See also sketches marked as Exhibits K and K-1). As indicated in the same
medico-legal report, the cause of death of Capt. Caeba was "cardiorespiratory
arrest due to shook and hemorrhage secondary to multiple gunshot wounds of the
head and trunk." (Exhibit J-2). Accordingly, Dr. Gajardo issued the corresponding
Certificate of Death (Exhibit L).
Norma Diaz-Caeba testified that she and the late Capt. Cirilo Caeba, Jr. were
married on December 31, 1980 at the Nuestra Seora dela Guadalupe Parish in
President Quirino, Sultan Kudarat before Parish Priest Rev. Fr. Domingo Tagura as
evidenced by the corresponding Marriage Contract (Exhibit G). The couple have a
daughter named Belinda, five to six years of age at this time.
For the wake and funeral of her late husband, Mrs. Caeba incurred expenses
amounting to P45,000.00.
At the time of his death, Capt. Caeba, Jr. (then 35 years old) was stationed at the
Philippine Army Finance Center in Fort Bonifacio receiving a monthly salary of
"almost P3,000.00". When shot inside the Baliuag Transit bus on that fateful day, the
late military officer was on his way to Fort Magsaysay in Palayan City (Nueva Ecija)
on official business.
The testimony of State witness Bermudez was corroborated on material points by
bus driver Alejandro de Jesus and Philippine Army Major Fernando Zabat, one of the
four (4) military officers aboard the same bus at the time the highway robbery
complained of was perpetrated, even as the latter witnesses could not identify any of
the hold-uppers. 8
Both Ocimar and Mendoza deny having any knowledge or participation in the commission of the
crime imputed to them. They claim that they were physically present in different places far from the
scene of the crime. Alibi, in other words.
For his part, appellant Ocimar, a car painter residing at Sauyo, Novaliches, Quezon City, testified
that on October 19, 1986, after attending a morning mass with his wife and a child at the town proper
of Novaliches, Quezon City, they returned home and spent the whole day together.
On the other hand, accused Mendoza swore that from 8:00 A.M. to 9:00 P.M. of October 19, 1986,
he reported for work, as a helper electrician repairing television sets and electrical appliances at the
shop of a certain Danilo Malaca located at Banlat, Commonwealth Avenue, Quezon City. He renders
service thereat from Monday to Saturday. His alibi was corroborated by his employer who confirmed

that Mendoza indeed performed a rush job on a television set on that date although only up to 3:00
o'clock in the afternoon. 9
On the propriety of the discharge of Bermudez to be utilized as state witness, Sec. 9, Rule 119 of the
1985 Rules on Criminal Procedure provides:
Sec. 9. Discharge at accused to be state witness. When two or more persons are
jointly charged with the commission of any offense, upon motion of the prosecution
before resting its case, the court may direct one or more of the accused to be
discharged with their consent so that they may be witnesses for the state when after
requiring the prosecution to present evidence and the sworn statement of each
proposed state witness at a hearing in support of the discharge, the court is satisfied
that: (a) There is absolute necessity for the testimony of the accused whose
discharge is requested: (b) There is no other direct evidence available for the proper
prosecution of the offense committed, except the testimony of said accused; (c) The
testimony of said accused can be substantially corroborated in its material points; (d)
Said accused does not appear to be the most guilty;
(e) Said accused has not at any time been convicted of any offense involving moral
turpitude.
As may be gleaned from the aforequoted Sec. 9 of Rule 119, the trial court must be satisfied that the
conditions prescribed by the rule exist. The court therefore, upon prior determination by the public
prosecutor, retains the prerogative of deciding when a co-accused may be discharged to become a
state witness. With Sec. 9 providing the guidelines, the discharge of an accused depends on sound
judicial discretion. Once that discretion is exercised under those guidelines and a co-accused is
discharged to become a state witness, and subsequently testifies in accordance with his undertaking
with the government, any legal deficiency or defect that might have attended his discharge from the
information will no longer affect the admissibility and credibility of his testimony, provided such
testimony is otherwise admissible an credible. 10
Ocimar contends that in the case at bar Bermudez does not satisfy the conditions for the discharge
of a co-accused to become a state witness. He argues that no accused in a conspiracy can lawfully
be discharged and utilized as a state witness, for not one of them could satisfy the requisite of
appearing not to be the most guilty. Appellant assets that since accused Bermudez was part of the
conspiracy, he is equally guilty as the others.
We do not agree. First, there is absolute necessity for the testimony of Bermudez. For, despite the
presentation of four (4) other witnesses, none of them could positively identify the accused except
Bermudez who was one of those who pulled the highway heist which resulted not only in the loss of
cash, jewelry and other valuables, but even the life of Capt. Caeba, Jr. It was in fact the testimony
of Bermudez that clinched the case for the prosecution. Second, without his testimony, no other
direct evidence was available for the prosecution to prove the elements of the crime. Third, his
testimony could be, as indeed it was, substantially corroborated in its material points as indicated by
the trial court in its well-reasoned decision. Fourth, he does not appear to be the most guilty. As the
evidence reveals, he was only invited to a drinking party without having any prior knowledge of the
plot to stage a highway robbery. But even assuming that he later became part of the conspiracy, he

does not appear to be the most guilty. What the law prohibits is that the most guilty will be set free
while his co-accused who are less guilty will be sent to jail. And by "most guilty" we mean the highest
degree of culpability in terms of participation in the commission of the offense, and not necessarily
the severity of the penalty imposed. While all the accused may be given the same penalty by reason
of conspiracy, yet one may be considered least guilty if We take into account his degree of
participation in the perpetration of the offense. Fifth, there is no evidence that he has at any time
been convicted of any offense involving moral turpitude.
Besides, the matter of discharging a co-accused to become state witness is left largely to the
discretion of the trial fiscal, subject only to the approval of the court. The reason is obvious. The
fiscal should know better than the court, and the defense for that matter, as to who of the accused
would best qualify to be discharged to become state witness. The public prosecutor is supposed to
know the evidence in his possession ahead of all the rest. He knows whom he needs to establish his
case.
The rationale for the rule is well explained thus:
In the discharge of a co-defendant, the court may reasonably be expected to err.
Where such error is committed, it cannot, as a general rule, be cured any more than
any other error can be cured which results from an acquittal of a guilty defendant in a
criminal action. A trial judge cannot be expected or required to inform himself with
absolute certainty at the very outset of the trial as to everything which may be
developed in the course of the trial in regard to the guilty participation of the accused
in the commission of the crime charged in the complaint. If that were practicable or
possible, there would be little need for the formality of a trial. In coming to his
conclusions as to the "necessity for the testimony of the accused whose discharge is
requested," as to "availability or non- availability of other direct or corroborative
evidence," as to which (who) of the accused is the "most guilty" one, and the like, the
judge must rely in a large part upon the suggestions and the information furnished by
the prosecuting
officer . . . . 11
Thus, We agree with the observations of the Solicitor General that the rule on the discharge of an
accused to be utilized as state witness clearly looks at his actual and individual participation in the
commission of the crime, which may or may not have been perpetrated in conspiracy with the other
accused. Since Bermudez was not individually responsible for the killing committed on the occasion
of the robbery except by reason of conspiracy, it cannot be said then that Bermudez appears to be
the most guilty. Hence, his discharge to be a witness for the government is clearly warranted. 12
The credibility of Bermudez as a witness is placed on the crucible by appellants. They point to the
inconsistency in his testimony on whether or not he knew appellants before the commission of the
crime and assert that that necessarily discredits the rest of his testimony under the maxim falsus in
uno, falsus in omnibus. But We are reminded, time and again, that this is not mandatory. It does not
apply where there is sufficient corroboration on many grounds of the testimony; where the mistakes
are not on the very material points; where the errors do not arise from an apparent desire to pervert
the truth but from innocent mistakes and the desire of the witness to exculpate himself though not

completely. 13 Indeed, We have long jettisoned its absolute application for the better rule that the trial
court is the best judge of the witness' credibility or lack of it. The reason is that the trial court is in a better
position to decide the question of credibility, having seen and heard the witnesses themselves and
observed their behavior and manner of testifying. The impressions of the trial court on the matter are
binding upon appellate courts, the Supreme Court not excepted, unless there appears a grave abuse of
discretion or obvious misapprehension of facts. These exceptions to the rule do not obtain in the instant
case. We are thus in complete agreement with the trial court when it ruled
The Court finds no reason at all to disbelieve the testimony of State witness
Bermudez.
For one thing, it was Bermudez alone among the available accused who pleaded
guilty at the very outset, thereby signifying that he had actually participated in the
highway robbery herein complained of. In turn, such participation inexorably
connotes, among other things, adequate knowledge on his part of the circumstances
leading to and surrounding the commission of the crime, including the identities of
the other perpetrators involved therein.
The Court, too, has keenly observed that despite its minor imperfections which
may be ascribed to his low educational attainment the testimony of Bermudez was
rendered in a manner more candid and unrehearsed than the testimonies of
Mendoza and Ocimar.
Furthermore, Mendoza and Ocimar themselves could not provide any improper or
evil motive on the part of Bermudez to have testified falsely as the defense would
wish it to appear.
Tersely said, the identities of Mendoza and Ocimar as active participants in the
accomplishment of the hold-up herein referred to have been positively established.
It must be noted that Bermudez' account of the holdup incident is corroborated on material points by
the other prosecution witnesses, like the bus driver and some passengers, like Major Fernando
Zabat, an officemate of Capt. Caeba, thus enhancing further the credibility of Bermudez.
Ocimar argues that he cannot be made liable for the crime charged as he did not shoot the victim
and the prosecution failed to identify the person who fired the fatal shot.
We need only quote again for emphasis a portion of the factual findings of the court a quo in this
regard:
Not long after the bus had passed beyond the Malinta Toll Gate of the North
Expressway, Mendoza rose from his seat, poked a .38 cal. pistol at the bus driver,
and announced the hold-up. Forthwith, the other members of the group, with their
respective weapons exposed to view, went about divesting the passengers of their
wallets and handbags, items of jewelry and other personal effects of value. While the
robbery was in progress, Bermudez heard gunshot reports from the rear end of the

bus. He turned his head towards that direction and saw Ocimar holding a .22 cal.
magnum revolver pointed at the neck of a passenger seated at the back row of the
bus (later identified as Capt. Cirilo Caeba, Jr.) who was then about to drop to the
floor, head first. 14
Needless to stress, these circumstances are clear enough to show that appellant Ocimar acted in
concert with his cohorts in the implementation of a common design to rob the Baliuag Transit bus. As
oft-repeated, conspiracy need not be proved by direct evidence. Neither is it essential that there be
shown a previous agreement to commit robbery as the crime of robbery with homicide can be
inferred from the acts of the accused. 15
Certainly, Ocimar's protestation that he cannot be held liable as there was no categorical
identification of the assailant is simply unavailing. For, where conspiracy has been established,
evidence as to who among the accused rendered the fatal blow is not necessary. 16 After all, in
conspiracy, the rule is that the guilt of one is the guilt of all. 17
As to appellants' defense of alibi, suffice it to state that the places (Sauyo, Novaliches, and Banlat,
Commonwealth Avenue, both in Quezon City) where they claim to be at the time the crime was
committed, are places which are not so far away from the Baliuag bus station in Cubao, Quezon
City. Indeed, for alibi to prosper, it is not enough to prove that the accused was somewhere else
when the crime was committed, but he must, likewise, demonstrate that he could not have been
physically present at the place of the crime or its immediate vicinity at the time of its commission. 18
Now on the civil aspect of the case. We find the awards made by the trial court to be supported by
the evidence on record. At any rate, they are not disputed. However, as regards the indemnity to the
heirs of Capt. Cirilo Caeba, Jr., which the court a quo fixed at P30,000.00, the same should be
increased to P50,000.00, in accordance with prevailing jurisprudence. 19
PREMISES CONSIDERED, the judgment of the court a quo convicting the accused-appellants
EDUARDO LABALAN OCIMAR and ALEXANDER CORTEZ MENDOZA for violation of P.D. 532
("Anti-Piracy and Highway Robbery Law of 1974") and imposing upon each of them a prison term
of reclusion perpetua, together with the award for funeral expenses, moral damages, and loss of
expected support of the heirs of the late Capt. Cirilo Caeba, Jr., in the amounts of P45,000.00,
P25,000.00 and P720,000.00, respectively, are AFFIRMED. The indemnity to his heirs for his death
is increased from P30,000.00 to P50,000.00. Costs against accused-appellants.
SO ORDERED.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANITO BEBERINO alias NIT (appeal withdrawn), GERARDO CASA;A alias BANDONG
(appeal withdrawn), LEODEGARIO ESTRADA (appeal withdrawn), and IGNACIO
CALVArio, defendants, IGNACIO CALVARIO,defendant-appellant.
Rodrigo Matutina for appellant.

Office of the Solicitor General for appellee.

CONCEPCION JR., J.:

t.hqw

Appeal of the accused Ignacio Calvario from the judgment of the Court of First Instance of Surigao
del Norte finding him guilty as an accomplice in the crime of simple robbery and sentence him to
suffer an indeterminate penalty ranging from four (4) years and two (2) months of prision
correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum, with the
accessory penalties provided by law; and to indemnify, jointly and severally, together with his coaccused Anito Beberino, Gerardo Casa;a and Leodegario Estrada, the heirs of Gregoria Nu;ez in
the amount of P 605.00; and to pay proportionate costs.
It is undisputed that in the evening of February 3, 1960, the house of Gregoria Nu;ez situated in
sitio Balibayon, barrio Lakandula, Placer, Suripo del Norte, was broken into and robbed by several
persons of cash and other articles of value amounting to P 605.00, on the occasion of which
Gregoria Nu;ez was strangled to death.
Gregoria Nu;ez a septuagenarian with ample means, lived alone in her house built on her coconut
plantation close to the seashore. Her grandchildren took turns in keeping her company at night. On
the night o February 3, 1960, Victor Ugay and Julian Dublois both 16 years of age, spread a mat in
the sala while their grandmother slept on a wooden bed inside a small room. Before retiring, the
boys placed a wooden bar across the door, on the inside and locked the windows with pieces of wire
and tuned in the radio They went to sleep at about 10:00 o'clock. 1
Towards midnight, the boys were awakened by three men 2 two of whom were armed with revolvers,
who ordered them to lie down on their stomach, after which they were bound hand and foot and their
mouths stuffed with cloth. 3 After the boys were tied, the three men entered the room occupied by
Gregoria Nu;ez and soon thereafter, the boys heard Choking sounds ( "tika-tika" ) and kicking inside the
room. They also heard the clinking of bottles and the snorting of pigs, under the house, as if there were
people there. After a while, the men came out the room and left, passing through the window facing the
sea. Not long thereafter, they heard the sounds of a departing motor launch, so that they tried to unloosen
the ropes that bound them.
At about 5:00 o'clock in the moming Librada Dobdoban de Ugay was awakened by her son, Victor
Ugay shouting for help. She ran to the house of Gregoria Nu;ez about 20 brazas away. The door
was still barred from the inside, so that she passed through an open window. Inside, she saw her
son, Victor, and her nephew, Julian Dublois bound hand and foot. She called her mother-in-law and,
receiving no answer, she entered her room. There, she saw her mother-in- law, Gregoria
Nu;ez lying down apparently lifeless.So she went back to the sala and untied Victor Ugay and
Julian Dublois. After a cursory check of the house, she found that the money from the sale of copra
amounting to P 147.50, as well as the radio-phono, records, Coleman lamp and flashlight, all
belonging to Gregoria Nu;ez were missing. 5 The matter was reported to the police, and an autopsy of
the cadaver of Gregoria Nu;ez showed that she died of strangulation by hand. 6

Dissatisfied with the apparent inability of the local police force to solve the crime expeditiously, the
relatives of the victim sought the assistance of the Philippine Constabulary. 7 On March 1, 1960, Cpl.
Michael Desoloc was dispatched to Placer to conduct an investigation. In barrio Lakandula, he received
information that one Ignacio Calvario had knowledge of the crime and was willing to testify if the
authorities would utilize him as a witness in the case 8 Ignacio Calvario was, accordingly, taken into
custody, and after
questioning, he executed an affidavit wherein he described the means by which the crime was
committed and the role he played in the commission thereof. He also named (Bandong) Gerardo
Casa;a, (Nit) Anito Beberino, (Mandot) Rumaldo Guibao, Floro Abas, Gario Estrada, Rose Bebang,
Penoy, Busio and (Pelesio Simplicio) Guibao as his confederates. 9
Following further investigations, a complaint for robbery in band with murder was filed by Cpl.
Desoloc before the Justice of the Peace Court of Placer, Surigao against the afore-named persons.
Ignacio Calvario was listed in the complaint as one of the witnesses for the prosecution. 10 Finding
a prima facie case against the accused, the Justice of the Peace issued a warrant of their arrest, 11 and,
upon termination of the preliminary investigation, remanded the case to the Court of First Instance of
Surigao for trial on the merits. 12 A re-investigation of the case was conducted by the Fiscal after which he
filed an information before the Court of First Instance of Surigao charging the accused, including Ignacio
Calvario who had by then demonstrated hostility to the prosecution and indicated that he would no longer
testify for the government, with the crime of robbery with homicide. 13
In due time following the conclusion of the trial, judgment was rendered finding the accused Anito
Beberino, Gerardo Casa;a and Leodegario Estrada guilty of the crime of robbery with homicide,
and sentenced to suffer the penalty of reclusion perpetua and to indemnify, jointly and severally, the
heirs of Gregoria Nu;ez in the amount of P 3,000.00. The accused Ignacio Calvario was found
guilty as an accomplice in the crime of simple robbery since he did not actually participate in the
killing of Gregoria Nu;ez and no conspiracy was proved among the accused, and sentenced to
suffer the penalty hereinbefore stated. 14 For insufficiency of evidence, the accused Simplicio Guibao,
Rumaldo Guibao, Floro Abas, and Rudy Casa;a were acquitted; while the case was dismissed as
against Rose Bebang and Penoy, nicknamed Busio. 15
From this judgment, Gerardo Casa;a, Anito Beberino, Leodegario Estrada, and Ignacio Calvario
appealed. However, the appeals of Gerardo Casa;a Leodegario Estrada, and Anito Beberino were
subsequently withdrawn, 16 so that the appeal of Ignacio Calvario alone is left for consideration.
In seeking a reversal of the judgment appealed from, the appellant Ignacio Calvario claims that the
evidence of the prosecution is insufficient to sustain a conviction because the extra-judicial
confession upon which said judgment is based was obtained from him by means of threats, and,
therefore, inadmissible in evidence.
The appellant testified that he was threatened by Cpl. Michael Desoloc who said that if he would not
affix his thumbmark on the document, he (Calvario) would be brought to the barracks and sent to
Bilibid to be burned. 17
Cpl. Desoloc however, denied having threatened or coerced the appellant into executing the said
extra-judicial confession and claimed that Ignacio Calvario furnished the statements contained

therein freely and voluntarily. His claim is corroborated by the Justice of the Peace of Placer,
Surigao, before whom Ignacio Calvario swore to the veracity of its contents, who testified that he
read the extra- judicial confession to the accused and asked the latter if he understood what had
been read to him; and that when the accused answered in the affirmative, he requested the accused
to affix his thumbmark on the document, which he did.
The appellant's claim that he had been threatened into executing the extra-judicial confession in
question appears to be more of an afterthought than a valid claim. The circumstances surrounding
its execution positively show that the document was executed freely and voluntarily and the reason
that prompted the accused to do so was that he had been promised immunity from prosecution as
he would be utilized as a government witness. Thus, Cpl. Michael Desoloc testified that he went to
sitio Balibayon on March 1, 1960 to investigate the robbery and killing of Gregoria Nu;ez After
questioning Librada Ugay, Victor Ugay, and Julian Dublois, he proceeded to barrio Lakandula where
he was informed by one Eliot Dublois, who obtained his information from Eugenio Cinco, that Ignacio
Calvario was one of the robbers. He went to Cinco who told him that Ignacio Calvario was indeed
willing to testify if utilized as a government witness. On that very same day, Ignacio Calvario was
arrested. Apparently, an agreement had been reached for Ignacio Calvario was brought to sitio
Balibayon where they re-enacted the commission of the crime. The next day, March 2, 1960,
Calvario was brought to the poblacion of Placer where he pointed to Cpl. Desoloc the perpetrators of
the crime. On March 6, 1960, Ignacio Calvario executed the extra-judicial confession after which he
was released from custody.18 On March 8, 1960, Cpl. Michael Desoloc filed a complaint before the
Justice of the Peace Court of Placer, Surigao, charging Gerardo Casa;a and others with the crime of
robbery in band with murder. Ignacio Calvario, true to the promise, was merely listed as one of the
witnesses for the prosecution. 19 After the preliminary investigation, the case was remanded to the Court
of First Instance of Surigao for trial. However, a re- investigation was conducted, during which time
Ignacio Calvario turned hostile, so that he was included in the information as one of the accused. 20
As will be seen, the appellant was to be used as a government witness which was not done because
he later denied the facts that he had revealed in his confession. This Court has earlier held that
where one of several co-defendants tums state's evidence on a promise of immunity by the
prosecuting attorney, but later retracts and fails to keep his part of the agreement, his confession
made under such a promise may then be used against him.21 In view thereof, the extra-judicial
confession of the appellant is admissible as evidence against hin
Finally, counsel for the appellant claims that the trial court erred in convicting Calvario as an
accomplice in the crime of robbery although he had no knowledge of the criminal intent of his
coaccused.
The contention is without merit. In his extra-judicial confession, the appellant stated that he was in
Placer, Surigao on February 3, 1960 and that at abut 7:00 o'clock in the evening of the said day, he
was told by Gerardo Casa;a to get aboard the latter's boat lancha as they were sailing for barrio
Cawilan Already on board were Anito Beberino, Rumaldo Guibao, and Rudy Casa;a, the son of
Gerardo Casa;a. Thirty minutes after lifting anchor, they reached the island of Maytubig where they
met the group composed of Floro Abas, Gario Estrada, Rose Bebang, Penoy, Busio, and Simplicio
Guibao. He then heard the two groups discussing whose boat they would use in going to sitio
Balibayon to rob Gregoria Nu;ez After some time, they agreed to ride on the boat of Simplicio
Guibao, so that Rudy Casa;a took the boat of his father to sitio Sanisani A while later, they landed

on the seashore near the house of Gregoria Nu;ez They disembarked and Simplicio Guibao sailed
for Nonoc promising to come back for them later. Upon reaching the house of Gregoria Nunez, he
and Gerardo Casa;a, Anito Beberino, and Gario Estrada went upstairs, while their other
companions remained below. Gerardo Casa;a then removed the latch securing the window with a
screw driver, after which Gerardo Casa;a and Anito Beberino, both of whom were armed with
revolvers, and Gario Estrada entered the house through the open window. The appellant stayed
behind, on the porch. Once inside. Gerardo Casa;a kicked the two persons then sleeping in the
sala of the house who were subsequently gagged and hogtied by Anito Beberino and Gario Estrada.
Then, Gerardo Casa;a entered the room of Gregoria Nunez and strangled her to death. After killing
Gregoria Nu;ez, Gerardo Casa;a removed the victims ring from her finger while Anito Beberino
and Gario Estrada ransacked the room. Thereafter, they opened five bottles of wine which the mixed
with beer, and gave a glass of the concoction to Calvario. On coming out of the room, Gerardo
Casa;a opened the "comoda" and removed the radio therefrom and passed it on the Calvario who
put it atop a bench on the veranda, Gario Estrada likewise gave Calvario a petromax lamp which he
also placed on the bench. Then. the three left the house passing through the open window and
rejoined their companions below. Afterwards, all of them boarded the boat of Simplicio Guibao who
had returned for them and sailed towards Sanisani. He and Floro Abas, Rose Bebang, Penoy, and
Busio disembarked at Sanisani while Gerardo Casa;a, Rumaldo Guibao, and Gario Estrada
boarded the boat of Rudy Casa;a and returned to Placer.
The appellant's statement is corroborated by Severo Enriquez who declared that he saw the
appellant Ignacio Calvario, Leodegario Estrada, Gerardo Casa;a. Anito Beberino, Flor Abas and
several others disembark from a launch at about 10:00 in the evening of February 3, 1960 and of
Gregoria Nu;ez with the appelant Ignacio Calvario in the lead.
The evidence thus presented proves conspiracy and that appellant not only knew of the plan to rob
Gregoria Nu;ez, but also participated in its commission by previous and simultaneous acts which
lent to the accomplishment of the criminal intent. Although the appellant may not have foreseen the
killing of the victim and did not take part in its execution, he is nevertheless guilty of the crime of
robbery with homicide. The rule is that when homicide takes place as a consequence of or on the
Occasion of a robbery, all those who took part in the robbery shall be guilty as principals of the crime
of robbery with homicide, unless there is proof that they have tried to prevent the killing. 23 Here, there
is nothing in the record which would tend to show that the appellant ever attempted to prevent the
homicide.
The appellant is therefore, guilty of the crime of robbery with homicide, covered by Article 294, No. 1,
of the Revised Penal Cede, which is punished with reclusion perpetua to death. The commission of
the offense was attended by the aggravating circumstances of noctumity, abuse of superior strength
and disregard to the age of the offended party, the victim being 70 years of age. The case thus calls
for the application of the maximum penalty provided by law, namely death. But for lack of the
necessary number of votes, appleant is hereby sentenced to reclusion perpetua.
As principal in the the commission thereof, the appelant should also be ordered to indemnify the
heirs of the victim jointly and severally, with Gerardo Casa;a, Anito Beberino , and Leodegario
Estrada, the amount of P 12,000.00 for the death of Gregoria Nu;ez aside from the amount of P
605.00, the value of the articles stolen.Consdering, however, that Gerardo Casa;a, Anito Beberino,

and Leodegario Estrada had previously withdrawn their appeal so that the judgement of the trial
court is already final as to them, their joint and solidary liability with the appelant for the death of
gregoria Nu;ez shall not exceed P 3,000.00.
Modified in the manner above indicated, the judgment appealed from should be, as it is hereby,
affirmed with costs against appelant.
SO ORDERED.
G.R. No. 114343 December 28, 1995
ANGELO CAL, petitioner,
vs.
COURT OF APPEALS, HON. FE ALBANO MADRID, et al. and PEOPLE OF THE
PHILIPPINES, respondents.
R E SO L U T I O N

PANGANIBAN, J.:
This is a petition for review on certiorari of the Decision of the respondent Court of Appeals 1 dated
November 11, 1993, denying petitioner's petition for certiorari, prohibition and mandamus, with prayer for
restraining order, to challenge the orders of the Regional Trial Court (Branch 21) of Santiago, Isabela, in
Criminal Case No. 0822, entitled "People vs. Angelo Cal".
The facts of the case are as follows: After an information for illegal recruitment was filed with the
aforementioned trial court on September 5, 1990, petitioner posted bail for his provisional liberty. On
June 8, 1992, a decision was rendered in the aforesaid criminal case wherein the petitioner herein
was found guilty of violation of Article 36(a) of the Labor Code as amended [illegal recruitment], and
sentenced to, among other things, suffer imprisonment of four years and pay a fine of P20,000. The
decision was promulgated on July 15, 1992, in the presence of the petitioner, after which he was
committed to jail by virtue of an order of commitment issued the same day. The following day, July
16, petitioner, assisted by his counsel, filed with the court a quo an application for probation, an
affidavit of recognizance, and an application for release on recognizance. Also on the same day, the
trial court issued an order directing the petitioner to report to the Provincial Probation and Parole
Officer, and for the latter to conduct an investigation of the applicant and submit his report and
recommendation within sixty days.
Almost two weeks later, on July 29, 1993, petitioner filed with the trial court a "Motion to Withdraw
Application for Probation and Notice of Appeal", alleging that he "hastily filed his application 'because
of the threats employed upon him by the authorities' and that 'he was not able to intelligently consult
with his lawyer and reflect on the legal consequences and effects of his application for probation
under the law' so that he may not be considered to have waived his right to appeal the decision"
(decision, p. 1; rollo, p. 52). On account of the serious nature of said allegations, the lower court

conducted a full-blown hearing to verify the petitioner's allegations. However, the court denied
petitioner's motion to withdraw application, etc. on November 20, 1992, when it was determined that
the accusations were baseless, and that petitioner's counsel did in fact properly advise him as to the
effects and consequences of appeal and of probation, and that, notwithstanding such advice, in the
words of the trial court
. . . (t)he accused chose the easy way out which was to apply for probation in order
that he will not be detained because he could not post his bailbond. But later he went
to talk to his employer Dindo Vales in Manila. He was induced to appeal.
Understandably so because in the decision it was also found out that the recruitment
activities of Dindo Vales and his placement agency did not have any license to
recruit.
It is unfortunate that the accused in attempting to withdraw his application for
probation, would impute negligence, misconduct, fraud and worst threats upon his
lawyer and a personnel of the Court whose only fault was to help him and
accommodate his lawyer's request. The accused would feign ignorance and stupidity
in not knowing what he was doing when in fact his mind was working in a diabolical
way by imputing fraud and wrongdoing in others. What simply happened here was
that the accused decided to apply for probation because it was an easy way to avoid
being detained in jail, to avoid the trouble of putting up a bailbond; to avoid further
expenses of counsel and to end the case once and for all without suffering
incarceration. But after his employer induced him to appeal, helped him to post his
bail bond and perhaps even provided him with another counsel, the accused
changed his mind. He was fully aware and he knew what he was doing. He was
properly advised by his lawyer who told him that if he will file his application for
probation, he would lost his right to appeal although of course he was given contrary
advice by his employer in Manila. It would be a dangerous precedent to allow the
accused to make a mockery of the Probation Law. The case of Yusi
vs.Morales 2 cannot apply to him.
WHEREFORE, in the light of the foregoing considerations, the appeal is DENIED.
The convict Angelo Cal is directed to make manifest his desire to pursue his
application for probation by reporting to the Probation and Parole Officer, Cauayan,
Isabela, within 72 hours from receipt of this order, otherwise he will be ordered to
serve his sentence.
SO ORDERED.
On December 14, 1992, petitioner filed a "Notice of Appeal from the Order dated November 20,
1992", which was denied by the court a quo on January 4, 1993, on the ground that petitioner had
availed of the benefits of the Probation Law and therefore cannot avail of the remedy of appeal.
Petitioner's motion for reconsideration of the last-mentioned order was likewise denied through an
order dated June 1, 1993.

Then petitioner filed on July 9, 1993 a petition for certiorari, prohibition and mandamus, with prayer
for restraining order, with the respondent Court of Appeals, which denied due course to and
dismissed the same in its Decision of November 11, 1993. A motion for reconsideration thereof was
also denied, for having been filed out of time by 23 days. Hence this petition before us.
Petitioner alleges that respondent Court "gravely erred and abused its discretion" (a) in affirming the
trial court's order of July 15, 1992 for petitioner's immediate confinement to jail after promulgation of
judgment but before same became final and executory, i.e., prior to the lapse of the period for filing
appeal, notwithstanding that petitioner had posted bail, and (b) in affirming the trial court's order of
November 20, 1992 which denied petitioner's motion to withdraw his application for probation and
which did not give due course to his notice of appeal (petition, pp. 7, 11).
After deliberating on the petition, the public respondent's comment thereon filed by the Solicitor
General, and petitioner's reply to comment, this Court is convinced that the petition is unmeritorious.
With respect to the first issue, there is no dispute that, as a rule, and unless the trial court directs
otherwise, the bail bond posted by an accused remains in force at all stages of the case until its final
determination. Now, in this case, since the trial court, immediately after the promulgation of judgment
(and without waiting for the finality thereof), issued a commitment order despite petitioner's being out
on bail, petitioner should have challenged the legality of such commitment order. However, instead
of doing so, petitioner, after having been properly advised by counsel on the effects and
consequences of probation, voluntarily and with the assistance of counsel filed an application
for probation, along with an affidavit of recognizance and an application for release on recognizance
of his counsel. Petitioner's actuations thus foreclosed his right to appeal.
Section 4 of P.D. No. 968, pertaining to the grant of probation, was amended by P.D. 1990 in order to
make appeal and probation mutually exclusive remedies. 3 Thus, Sec. 4 provides specifically that
"(T)he filing of the application (for probation) shall be deemed a waiver of the right to appeal".
The purpose of the amendment [of Sec. 4 of P.D. 968 by P.D. 1990] was, precisely, to
prohibit an application for probation if the accused has perfected an appeal from the
judgment of conviction [and vice versa].
xxx xxx xxx
P.D. No. 1990 [which took effect on January 15, 1986] was issued when it was
observed that even if a person's conviction was finally affirmed after he had
exhausted the appeal process (usually up to this Court), he nevertheless could still
apply for probation and thus in effect undo such affirmance. To prevent loss of time,
money, and effort on the part of the State in this wasteful exercise, the law was
amended to make appeal and probation mutually exclusive remedies. (Bernardo vs.
Balagot, supra.)
And that is only right since the legal positions behind appeal and probation, respectively, are
diametrically opposed. This is because an accused applying for probation is deemed to have
accepted the judgment in fact, ". . . the application for probation is an admission of guilt on the part of

an accused for the crime which led to the judgment of conviction and . . . the application for
probation is considered a waiver upon his part to file an appeal, . . . 4
Thus, in this case, the petitioner's application for probation had the effect of a final determination of
his case, and the cancellation of his bail bond. Therefore, the respondent Court of Appeals could not
have done otherwise than to affirm the trial court's order of July 15, 1992 for petitioner's immediate
confinement after promulgation of judgment, in view of the subsequent application for probation
which rendered the said judgment final and immediately executory.
As for the second issue, although petitioner insists on faulting the courts a quo for denying his
motion to withdraw his application for probation and rejecting his notice of appeal, his position is
nonetheless untenable. The respondent Court of Appeals correctly held that the trial court's order of
November 20, 1992, denying the petitioner's motion to withdraw his application for probation and
rejecting his notice of appeal, partook of the nature of an order granting probation, which is not
appealable.
Inasmuch as "(P)robation is a mere privilege and its grant rests upon the discretion of the court . . .
(and) the grant of probation is . . . not automatic or ministerial" 5, and considering further that "(a)n
order granting or denying probation shall not be appealable" 6, therefore, the appellate Court correctly
affirmed the trial court's order of November 20, 1992, and denied the petition for certiorari, prohibition
and mandamus, etc.
WHEREFORE, upon the foregoing considerations, this Court Resolves to DENY the instant petition,
petitioner having failed to show any reversible error committed by the respondent appellate Court.
No costs.
Romero, Melo and Vitug, JJ., concur.
G.R. No. 110886 December 20, 1994
ROSALIO L. FLORENDO, petitioner,
vs.
COURT OF APPEALS and HON. JOSEFINA CEBALLOS, Presiding Judge, Regional Trial
Court, Branch 66, Capas, Tarlac, and CENTRAL BANK OF THE PHILIPPINES, respondents.
Isabelo C. Salavida for petitioner.

QUIASON, J.:
This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court of the decision
of the Court of Appeals in CA-G.R. SP
No. 29248, which upheld the validity of the orders issued by the Regional Trial Court, Branch 66,
Capas, Tarlac, in Criminal Cases Nos. 362 to 365 and 368.

We deny the petition.

I
In a decision dated March 26, 1992, petitioner, together with his
co-accused, was found guilty of the crime of falsification of commercial documents by respondent
Judge Josephine D. Ceballos of the Regional Trial Court, Branch 66, Capas, Tarlac in Criminal
Cases Nos. 362 to 365 and 368. Thereafter, promulgation of judgment was set on June 15, 1992.
On the latter date, all the accused, except petitioner, were present. However, petitioner's counsel
was present at the promulgation and he moved for the resetting of the promulgation to June 23,
1992. Respondent Judge denied the motion, finding no valid ground therefor. The promulgation
proceeded. Petitioner's counsel was furnished a copy of the Decision on June 15, 1992 as
evidenced by his signature acknowledging receipt at the back of the last page of the original copy
thereof.
On June 16, 1992, respondent Judge issued an order, modifying her earlier decision dated March
26, 1992 with the deletion of the name of accused Alejandro Dizon from the decision considering
that he was never arraigned.
On June 17, 1992, respondent Judge issued warrants of arrest against all the accused, including
petitioner, for their failure to renew their bail bonds.
A notice of appeal filed by petitioner on July 6, 1992 was denied by respondent Judge, in an order
dated July 11, 1992, for having been filed out of time.
On August 4, 1992, petitioner filed a Motion to Set Promulgation of Judgment but the same was
denied by respondent Judge in an order dated August 14, 1992. Likewise, a motion for the
reconsideration of said order was denied on September 29, 1992.
On October 24, 1992, petitioner elevated the matter before the Court of Appeals in a petition
for certiorari andmandamus to question the orders of respondent Judge. On June 30, 1993, the
appellate court dismissed the petition for lack of merit.
Petitioner elevated the matter before this Court and raised the following issues:
1. WHETHER OR NOT PROMULGATION OF A DECISION CONVICTING THE
ACCUSED ON FOUR COUNTS, EACH A LESS GRAVE FELONY, MAY BE
MADE IN ABSENTIA;
2. WHETHER OR NOT THE AMENDED DECISION SHOULD BE PROMULGATED
ANEW;
3. WHETHER OR NOT PETITIONER'S APPEAL SHOULD BE GIVEN DUE
COURSE (Rollo, p.3)
II

The petition is devoid of merit.

The resolution of the instant petition hinges on the proper interpretation of Section 6, Rule 120 of the
1985 Rules on Criminal Procedure, which provides:
Promulgation of Judgment. The judgment is promulgated by reading the same in
the presence of the accused and any judge of the court in which it was rendered.
However, if the conviction is for a light offense, the judgment may be pronounced in
the presence of his counsel or representative. When the judge is absent or outside of
the province or city, the judgment may be promulgated by the clerk of court.
If the accused is confined or detained in another province or city, the judgment may
be promulgated by the executive judge of the Regional Trial Court having jurisdiction
over the place of confinement or detention upon request of the court that rendered
judgment. The court promulgating the judgment shall have authority to accept the
notice of appeal and to approve the bail pending appeal.
The proper clerk of court shall give notice to the accused personally or through his
bondsman or warden and counsel, requiring him to be present at the promulgation of
the decision. In case the accused fails to appear thereat the promulgation shall
consist in the recording of the judgment in the criminal docket and a copy thereof
shall be served upon the accused or counsel. If the judgment is for conviction, and
the accused's failure to appear was without justifiable cause, the court shall further
order the arrest of the accused, who may appeal within fifteen (15) days from notice
of the decision to him or his counsel (Emphasis supplied).
Under the first paragraph of Section 6 of the Rule, the presence in person of the accused at the
promulgation of judgment is mandatory in all cases except where the conviction is for a light offense,
in which case the accused may appear through counsel or representative.
Under the third paragraph of Section 6 of the Rule, all the accused, regardless of the gravity of the
offense charged against them, must be given notice of the promulgation of judgment and the
requirement of their presence. They must appear in person or in case of those facing a conviction for
a light offense, through counsel or representative. If the accused fails to appear at the arraignment,
the second and third sentences of paragraph three become operative.
The last paragraph of Section 6 of Rule 120 is a new provision introduced by the 1985 Rules on
Criminal Procedure, which provides for the promulgation of judgment in absentia (Gupit Jr., Rules of
Criminal Procedure 362-363 [1986]). The amendment was intended to obviate the situation in the
past where the judicial process could be subverted by the accused jumping bail to frustrate the
promulgation of judgment. In explaining the amendment, Justice Florenz D. Regalado commented:
. . . Without this amendatory provision, the ends of public justice would be set at
naught and, where the civil liability ex delicto was instituted with the criminal action,
the offended party could not enforce either the primary liability of the accused or any
subsidiary civil liability, where proper and involved in the case, as no judgment could

be promulgated. Since both the 1973 and 1987 Constitutions only require prior
arraignment as an indispensable requisite and the trial may thereafter proceed in the
absence of the accused, the judgment in the case being merely the procedural
culmination of the trial, the promulgation thereof can justifiably be made in
absentia in the manner set out in this section (II Regalado, Remedial Law
Compendium 369 [6th ed., 1989]).
The first paragraph of the Rule deals with the personal presence of the accused at the promulgation
of judgment and its exception, i.e., in the case of a light offense where his personal presence is
dispensed with. The third paragraph of the same Rule deals with the presence of all the accused at
the promulgation regardless of the penalty imposed on them. There is no exception under this
paragraph. All the accused must be present in person or through counsel or a representative.
In the case at bench, a copy of the judgment was served to the counsel of petitioner on June 15,
1992; therefore, he had only up to June 30, 1992 within which to appeal. The notice of appeal filed
on July 6, 1992 was clearly out of time.
It is presumed that official duties are regularly performed and that proceedings are made of record.
This serves as a substantial compliance with the procedural requirement of the recording of the
judgment in the criminal docket of the court. At any rate, petitioner does not question the noncompliance of the requirement of the recording of the judgment in the criminal docket.
Anent the issue on the re-promulgation of the amended decision, the Solicitor General, in his
comment, correctly observed:
. . . Petitioner cannot harp on the argument that since the Decision dated March 26,
1992 was amended by an Order dated June 16, 1992 issued by respondent Judge,
then the Decision must be re-promulgated.
The June 16, 1992 Order amending the March 26, 1992 Decision only refers to
accused Alejandro Dizon whose name should not have been included in the Decision
considering that he was never arraigned. The June 16, 1992 Order does not affect
petitioner nor his other co-accused whose conviction had already been validly
promulgated on June 15, 1992 (Rollo, p. 34).
WHEREFORE, the petition is DENIED with costs against petitioner.
SO ORDERED.
G.R. No. L-36957 September 28, 1984
ANICETO IBABAO, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and THE HONORABLE COURT OF APPEALS, respondents.
Wenceslao E. Ibabao for petitioner.

The Solicitor General for respondents.

MELENCIO-HERRERA, J.:
A Petition for Review on certiorari of the Decision of the then Court of Appeals, in CA-G.R. No.
12784-CR, increasing the penalty imposed on petitioner in People of the Philippines vs. Aniceto
Ibabao, for Homicide thru Reckless Imprudence, for his failure to lend aid to the victim.
Before the City Court of Davao, in Criminal Case No. 3091C, petitioner was charged with Homicide
thru Reckless Imprudence. The Information did not allege that the accused had failed to lend on the
spot to the injured person such help as was in his hands to give.
Among the witnesses presented by the prosecution was Jose Patalinghog, Jr., a bystander, who
testified that on April 30, 1967, at about 11:00 p.m., while he was at Bankerohan terminal, he clearly
saw an owner-type jeep bump a person; that the said jeep did not stop; that upon request of a
security guard, he gave chase, wrote down the plate No. 57675, overtook it, and recognized the
driver as the petitioner, and thereafter reported the incident to the Matina Police Sub-Station.
For his part, petitioner presented two witnesses in support of his defense of alibi.
After trial, the City Court rendered a verdict of conviction thus:
In the case at bar, there appears no cogent or sufficient reason for the accused not to
lend aid on the spot to the fatally injured victim of the accident. As such, applying the
foregoing provisions the next penalty next higher in degree is prision correccional in
its medium and maximum period shall be followed. Furthermore, the heirs of the
deceased are lawfully entitled to indemnity and moral damages.
IN VIEW WHEREOF, the herein accused is hereby pronounced guilty beyond
rational doubt of the offense charged. And applying the Indeterminate Sentence Law,
said accused is hereby sentenced to undergo a prison term of from one year eight
months and twenty days of prision correccional as minimum to four years, two
months and one day of prision correccional as maximum, and to pay the costs, with
accessories prescribed by law.
Said accused is further sentenced to indemnify the heirs of the deceased in the sum
of Six Thousand Pesos (P6,000.00), plus moral damages in the sum of Two
Thousand Pesos (P2,000.00), with subsidiary imprisonment in case of insolvency in
accordance with Article 39 of the Revised Penal Code. 1
Upon appeal, the then Court of Appeals modified the aforecited Decision by increasing the penalty
as follows:

However, we notice that the decision a quo only awards the amount of P6,000.00 as
indemnity. Following the doctrine laid down in the cases of People vs. Pantoja, L19793, October 11, 1968 andPeople vs. Ompad, et al. L-23513, January 31, 1969,
the same should be increased to P12,000. 00.
The imposable penalty is prision correccional in its medium and maximum periods
(Article 365, Revised Penal Code). Considering that appellant failed to stop and give
aid to the victim, the penalty should be one degree higher which is prision mayor in
its minimum and medium periods (R.A. 1790). Applying the Indeterminate Sentence
Law, the penalty should be from three (3) years, six (6) months and twenty one (21)
days of prision correccional as minimum, to seven (7) years, four (4) months and one
(1) day of prision mayor. The P2,000.00 moral damages is hereby eliminated
considering that the same is already included in the P12,000.00 indemnity. No
subsidiary imprisonment in case of insolvency. (Republic Act No. 5465).
WHEREFORE, modified as indicated above, the appealed decision is hereby
affirmed at appellant's Costs. 2
Before us now, petitioner has interposed this appeal by certiorari praying for the modification of the
penalty. Subsequently, he filed a Motion for New Trial based on alleged newly discovered evidence,
particularly, the recantation by prosecution eyewitness Jose Patalinghog.
The legal issues raised are: 1) whether or not the failure of petitioner to lend aid to his victim justifies
the imposition of the penalty next higher in degree to that provided for in paragraph 2 of Article 365,
as amended, of the Revised Penal Code even though such circumstance was not alleged in the
Information; and 2) whether or not Patalinghog's affidavit of recantation is "newly discovered
evidence" warranting new trial. The pertinent provision of Article 365 of the Revised Penal Code, as
amended, reads:
Art. 365. Imprudence and negligence. Any person who, by reckless imprudence,
shall commit any act which, had it been intentional, would constitute a grave felony,
shall suffer the penalty of arresto mayor in its maximum period to prision
correccional in its medium period; if it would have constituted a less grave felony, the
penalty of arresto mayor in its minimum and medium periods shall be imposed; if it
would have constituted a light felony, the penalty of arresto menor in its maximum
period shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an act which
would otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in
its medium and maximum periods; if it would have constituted a less serious felony,
the penalty of arresto mayor in its minimum period shall be imposed.
xxx xxx xxx
In the imposition of these penalties, the courts shall exercise their sound discretion,
without regard to the rules prescribed in article sixty-four.

The provisions contained in this article shall not be applicable:

1. When the penalty provided for the offense is equal to or lower than those provided
in the first two paragraphs of this article, in which case the courts shall impose the
penalty next lower in degree than that which should be imposed, in the period which
they may deem proper to apply.
2. When, by imprudence or negligence and with violation of the Automobile Law, the
death of a person shall be caused, in which case the defendant shall be punished
by prision correccional in its medium and maximum periods.
xxx xxx xxx
The penalty next higher in degree to those provided for in this article shall be
imposed upon the offender who fails to lend on the spot to the injured parties such
help as may be in his hands to give. (As amended by Rep. Act No. 1790).
Petitioner submits that the last paragraph of the aforequoted Article 365 is not applicable to offenses
under paragraph "2" of the same Article because of the opening statement that "the provisions
contained in this article shall not be applicable implying that paragraph "2" is in a class by itself and
is not affected by the rest of the provisions of the same Article
The argument is flawed. The proviso that "the provisions contained in this article shall not be
applicable" clearly refers to the preceding paragraphs. Paragraphs "1" and "2" are exceptions to the
application of the said preceding paragraphs under the circumstances mentioned. The last
paragraph on failure to lend aid on the spot necessarily applies to all situations envisioned in the
said Article whenever there is an injured party.
We find merit in petitioner's contention, however, that the increased penalty is inapplicable to him
because the failure to give aid to the injured on the spot has not been alleged in the Information. So
far as we have been able to ascertain, this question has not been definitely passed upon by this
Court. But, we agree with the then Court of Appeals when it ruled in People vs. Beduya 3 that "the
failure to render assistance, constitutes a qualifying circumstances because the presence thereof raises
the penalty by one degree (like treachery which qualifies homicide to murder). The same must be alleged
in the information to apprise the defendant of this charge unlike an ordinary aggravating circumstance
which even if not alleged in the information, can be taken into account if proved at the trial without
objection.
We are neither inclined to consider such failure to lend assistance as a generic aggravating
circumstance that would justify the imposition of the penalty in its maximum period, since it is not an
aggravating circumstance listed in Article 14 of the Revised Penal Code.
Coming now to the Affidavit of recantation of Jose Patalinghog, Jr., suffice it to state that at this stage
of the proceeding, the same cannot be considered as newly discovered evidence to warrant new
trial. In the first place, the Affidavit was thought of only after this petition was initially denied for lack
of merit. Secondly, as has been the consistent ruling of this Court recantations should be taken with

great caution. The reason is that if new trial should be granted at such instance where an interested
party succeeds in inducing some of the witnesses to vary their testimony outside of court after trial,
there would be no end to every litigation. 4 As held in People vs. Saliling,et al., 5
Affidavits of retraction executed by witnesses who had previously testified in court will not be
countenanced for the purpose of securing a new trial. It would be a dangerous rule for courts to
reject testimonies solemnly taken before courts of justice simply because the witnesses who had
given them later on change their mind for one reason or another, for such a rule would make solemn
trials a mockery and place the investigation of truth at the mercy of unscrupulous witnesses.
Affidavits of retraction can be easily secured from poor and ignorant witnesses usually for a
monetary consideration. Recanted testimony is exceedingly unreliable. There is always the
probability that it may later be repudiated. So courts are wary or reluctant to allow a new trial based
on retracted testimony.
WHEREFORE, the penalty imposed by respondent Appellate Court is hereby modified and
petitioner-accused is hereby sentenced, without regard to the rules prescribed in Article 64 of the
Revised Penal Code as mandated by Article 365 of the same Code, to suffer an indeterminate
sentence of two (2) years and four (4) months of prision correccional as minimum, to four (4) years,
two (2) months and one (1) day, also of prision correccional as maximum; to indemnify the offended
party in the sum of P30,000.00, and to pay the costs.
SO ORDERED.
G.R. No. 82483 September 26, 1990
JAIME BERNARDO AND CYNTHIA BERNARDO, petitioners,
vs.
COURT OF APPEALS, NINTH DIVISION, AND VICTORIAS MILLING COMPANY, respondents.
Vicente F. Delfin for petitioners.
Hilado, Hagad & Hilado for private respondent.

PARAS, J.:
This is a petition for review on certiorari seeking to set aside the March 9, 1988 decision

** of the Court of
Appeals, Special Ninth Division in CA-G.R. No. 13760 entitled "Victorias Milling Co., Inc., petitioners, vs. Hon. Marianito D. Militar and Jaime
Bernardo and Cynthia Bernardo, respondents", modifying the September 28, 1987 decision *** of the Regional Trial Court of Negros
Occidental, 6th Judicial Regional, Branch 51, Bacolod City *** in Criminal Cases Nos. 1938-1964, "People of the Philippines v. Cynthia A.
Bernardo and Jaime Bernardo" acquitting the accused of the crime of estafa and ordering Victorias Milling Company to refund the sum of
P100,000.00 to the accused.

The undisputed facts of the case as drawn by respondent court from the evidence on record are
quoted hereunder:

(1) Upon complaint of herein petitioner Victorias Milling Co., Inc., the private
respondents, Jaime and Cynthia Bernardo were accused in twenty-seven (27)
criminal cases for estafa, all dated 24 June 1982, before the Regional Trial Court of
Bacolod City, Branch 51. The information charged that the Bernardo spouses, taking
advantage of the confidential position of Mrs. Bernardo in the company as Executive
Secretary of its Treasurer, defrauded petitioner of various sums of money in the
aggregate amount of P900,000.00 more or less. The fraudulent acts alleged were
either in the form of double payments (in which the petitioner issued checks to G.T.
Trading-owned by Jaime Bernardo-for deliveries which were already actually paid
for) or the collection of payment for materials under spurious circumstances (such as
those payments made for purchase orders issued to other suppliers).
(2) Significantly, before the subject criminal cases were filed, private respondent
Jaime Bernardo filed Civil Case No. 15308 entitled "Jaime Bernardo, Plaintiff, v.
Victorias Milling Co., Inc. et al., Defendants" in Branch 44 of the Bacolod City RTC
for the payment of sums of money due him from transactions with petitioner. In that
collection case, Bernardo sought to recover, among others, the amount of
P100,000.00 he deposited with the petitioner as a demonstration of willingness to
repay whatever double payments may have been made by it to his firm G.T. Trading.
In as much as the said amount formed part of the collectibles of his firm from the
petitioner, which collectibles incidentally did not entirely belong to him (as a result of
his purchasing on credit from other suppliers the materials and supplies he delivered
to the petitioner), it was necessary for him to file the civil suit. The suit still pends.
(3) After trial of the criminal cases, public respondent Judge Marianito D. Militar
rendered his aforesaid decision acquitting the spouses Jaime and Cynthia Bernardo
of the criminal charges filed against them and ordering herein petitioner to refund to
them the aforementioned P100,000.00. The dispositive portion of which reads:
WHEREFORE, prosecution having failed to prove the guilt of the
accused beyond reasonable doubt, accused CYNTHIA A.
BERNARDO and JAIME Q. BERNARDO are hereby ACQUITTED of
all the charges in the above entitled cases.
The Victorias Milling Company (VMC) is hereby ordered to refund the
amount of Pl00,000.00 to accused Jaime Q. Bernardo which was
unduly withheld by said company as reflected in Check Voucher No.
80107 dated March 27, 1980 marked as Exhibit "1" 1962 with the
expressed conformity of the accused and considered as deposit.
The bail bond posted by the accused for their provisional liberty is
hereby ordered cancelled, with costs de oficio.
SO ORDERED.

(4) On 15 October 1987, the petitioner, through its counsel, filed a notice of appeal
without furnishing a copy thereof to the provincial fiscal. Pending action by the trial
court on the notice of appeal, the private respondents moved for the execution of the
judgment. This motion was opposed by the petitioner.
(5) During the hearing of this motion of 1 December 1987, the provincial fiscal
manifested in open court that he did not contemplate appealing the decision, nor had
he filed any notice of appeal.
(6) Thereafter, the lower court issued an Order dated 25 January 1988, dismissing
the petitioner's appeal as well as mandating the execution of the judgment.
Notwithstanding the filing of a motion for reconsideration, another order dated 27
January 1988, was issued, directing the Bank of the Philippine Islands, Bacolod Main
Branch, to deliver to the private respondents through the public respondent
Provincial Sheriff the amount of Pl00,000.00. (Decision of the Court of Appeals,
Annex "F", Rollo, pp. 110-112).
Victorias Milling Company then filed a special civil action for certiorari with the Court of Appeals
which modified the ruling of the lower court, the dispositive portion of which is as follows:
WHEREFORE, judgment is hereby rendered declaring that portion of the questioned
Decision which orders petitioner (Victorias Milling Company) to refund Pl00,000.00 to
private respondent as well as its corollary orders as null and void and accordingly
commanding the respondents not to enforce the same. Costs against respondents.
SO ORDERED. (p. 129, Rollo)
The Bernardo spouses' subsequent motion for reconsideration was denied, hence, this petition.
In its resolution dated December 5, 1988, the Court gave due course to the petition and required the
parties to submit simultaneous memoranda (Rollo, p. 154). Petitioners filed their memoranda on
January 14, 1989 (Ibid., p. 212) while respondents submitted theirs on January 31, 1989 (Ibid., p.
228).
Herein petitioners assign the following error:
RESPONDENT COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION
TANTAMOUNT TO LACK OF JURISDICTION WHEN IT ALLOWED VICTORIAS MILLING
CORPORATION TO APPEAL:
a) THE DECISION OF ACQUITTAL AND MORE SPECIFICALLY THE ORDER TO REFUND IN
VIEW OF ITS COUNTERCLAIM IN A SEPARATE CIVIL ACTION NOW PENDING BEFORE THE
OTHER BRANCH OF THE REGIONAL TRIAL COURT OF NEGROS OCCIDENTAL;
b) WITHOUT THE AUTHORITY OF THE FISCAL AND THE SOLICITOR GENERAL;

c) IN THE CRIMINAL CASES WHICH HAVE ALL BE COME FINAL AND EXECUTORY, AND
d) WHERE NEITHER APPEAL NOR CERTIPRARI IS A REMEDY AFTER ACQUITTAL.
The petition is devoid of merit.
There is no dispute that a judgment of acquittal is immediately final and executory and that neither
an appeal norcertiorari is an available remedy (City Fiscal of Cebu v. Hon. Woodrow Kintanar, G.R.
No. L-31842, April 30, 1970, 32 SCRA 601). Respondents do not contest this doctrine as they are
not assailing the judgment of acquittal in the instant case.
However, as to an appeal by the complainant on the civil aspect of the case this Court has recently
ruled that, subject to the rules on double jeopardy, if a criminal case is dismissed by the trial court or
if there is an acquittal, an appeal therefrom on the criminal aspect may be undertaken only by the
State through the Solicitor General. Only the Solicitor General may represent the People of the
Philippines on appeal. The private offended party or complainant may not take such appeal. (People
of the Philippines vs. Hon. Santiago, G.R. No. 80778, June 20, 1989) However, the said offended
party or complainant may appeal the civil aspect despite the acquittal of the accused (citing Padilla v.
Court of Appeals, 129 SCRA 558 [1984]; People v. Jalandoni, 131 SCRA 454 [1984]; and Rule 122,
Section 11 (b), Revised Rules of Criminal Procedure). (Emphasis supplied).
In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of Court wherein it is
alleged that the trial court committed a grave abuse of discretion amounting to lack of jurisdiction or
on other jurisdictional grounds, the rules state that the petition may be filed by the person aggrieved.
In such case, the aggrieved parties are the State and the private offended party or complainant. The
complainant has an interest in the civil aspect of the case, so he may file such special civil action
questioning the decision or action of the respondent court on jurisdictional grounds. In so doing,
complainant should not bring the action in the name of the People of the Philippines. The action may
be prosecuted in the name of said complainant (Section 1, Rule 65, Rules of Court; Sections 1 and
2, Rule 3, supra; People of the Philippines v. Hon. Pedro T. Santiago, G.R. No. 80778, June 20,
1989). (Emphasis supplied).
Based on the foregoing, the Court has clearly settled the matter by ruling that despite a judgment of
acquittal, the offended party, private respondent in the case at bar, may appeal, only insofar as the
civil aspect of the case is concerned. Such an appeal dispenses with the authority and
representation of both the fiscal and the Solicitor General, considering that the subject matter of the
action involves solely the interests of the offended party and hence, no longer concerns the State.
It will be noted however that the portion of the decision appealed from still pends in another court
and should therefore be properly litigated therein.
PREMISES CONSIDERED, the petition is hereby DISMISSED and the decision of the respondent
Court of Appeals is hereby AFFIRMED.
SO ORDERED.

G.R. No. 68319 March 31, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JESUS DELA CRUZ, DEMEROLD AYADO and ABECIDUEO AJEDO, JR., accused-appellants.

DAVIDE, JR., J.:

In an information filed with the then Court of First Instance (now Regional Trial Court) of
Cabarroguis, Quirino, on 28 October 1982, accused-appellants Jesus dela Cruz, Demerold Ayado
and Abecidueo Ajedo, Jr. were charged with the crime of Murder as defined and penalized under
Article 248 of the Revised Penal Code, committed as follows:
That on or about the 21st day of July, 1982, in the municipality of Diffun, Province of
Quirino, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused Jesus dela Cruz, Demerold Ayado and Abecidueo Ajedo, did then
and there, wilfully, unlawfully and feloniously by conspiring together and mutually
helping one another and by means of treachery and evident premeditation and with
the use of bladed instruments and stones attack, assault, strike and stab one Felipe
Natura by inflicting upon the latter multiple wounds resulting to (sic) the death of said
Felipe Natura therefore.
That the commission of the offense was aggravated by the following circumstances:
1. That accused took advantage of their superiority in numbers (sic);
2. That the crime was committed with insult to or disregard to (sic) the respect due to
offended party by reason of his age;
3. That the crime was committed in the (sic) nighttime to facilitate its commission.
CONTRARY TO LAW. 1
The case was docketed as Criminal Case No. 380.
Upon arraignment, each of the accused entered a plea of not guilty. 2
At the trial of the case on its merits, the prosecution presented eight (8) witnesses, including
eyewitness Antonia Natura, wife of the victim, Felipe Natura. The other prosecution witnesses were
Dr. Luis Bergado, Elpidio Baao, Rolando Natura, Perla Minia, Judge Jose Guirnela, Archibal Afan
and Pat. Bienvenido Gumpal. 3 On the other hand, the defense presented the following witnesses:
Rodolfo Mabanta, Jessie Tubay, Abecidueo Ajedo, Sr. and accused Jesus dela Cruz. 4

On 28 May 1984, the trial court promulgated its decision 5 convicting the accused-appellants of the
crime charged. The dispositive portion thereof reads as follows:
IN VIEW OF ALL THE FOREGOING CONSIDERATION (sic), there is no doubt in the
mind of the Court that the crime of murder has been committed and that the accused
Jesus dela Cruz, Demerold Ayado and ABECIDUEO Ajedo, Jr. are guilty beyond
reasonable doubt.
WHEREFORE, this Court hereby sentences Jesus dela Cruz, Demerold Ayado and
Abecidueo Ajedo, Jr. to suffer the penalty of reclusion perpetua and to indemnify the
heirs of the victim in the amount of Thirty Thousand Pesos (P30,000.00) jointly and
severally following the precedent set forth in People vs. Dela Fuente, (G.R. Nos.
6351-52) and reiterated in the case of People vs. Romeo Villanueva, et. al., (G.R.
No.
L-32274), without subsidiary imprisonment in case of insolvency. The detention of the
accused shall be fully credited in their favor.
In rendering its verdict and imposing upon the accused-appellants the penalty of reclusion perpetua,
the trial court made the following pronouncement:
The evidence would show that aggravating circumstances were attendant in the
commission of the offense. Evidence was taken (sic) of superior strength and the
accused employed means to weaken or deprive the victim from a (sic) possible
defense. Jesus Dela Cruz with pretense to be friendly, greeted the victim,
approached and accosted him, suddenly grabbed from his waist the scythe while the
accused Demerold Ayado tapped the victim's shoulder. The accused Jesus Dela
Cruz, Demerold Ayado and Abecidueo Ajedo, Jr., acting in concept, mauled and
stabbed the victim mercilessly. The victim is an old man although with his helpless
wife, is no match to three armed, young men who conspired to maul and stab him to
death.
The crime was committed at night time to facilitate its commission. The victim with
his wife was (sic) on their way home about 10:00 o'clock in the evening of July 21,
1982. They were surprisingly accosted along the stony road by the accused. It was
dead dark that night although the victim's wife was holding a lamp. With the lamp
(sic), the wife was holding, would place the victim to (sic) a more vulnerable assault
or attack as it has happened.
It was clearly established from the evidence that the accused Jesus Dela Cruz, his
co-accused Demerold Ayado and Abecidueo Ajedo, Jr. would point to an evil
purpose and design (sic) that of mercilessly stabbing and mauling the victim to death.
There is no mitigating circumstance to offset the two aggravating circumstances of
taking advantage of superior strength (sic) and night time to facilitate its commission.

Accused-appellant filed a notice of appeal on 4 June 1984. 6 However, on 5 June 1984, they filed a
petition for a new trial alleging therein excusable neglect on their part in looking for the other eyewitness,
Dionisio B. Millo, whose "new address is newly discovered," and that the testimony of said witness is so
vital and important that it could alter the judgment of conviction. 7 On 8 June 1984, they filed a motion to
withdraw their appeal as the same was incompatible with their petition for new trial. They also prayed that
their petition for new trial be given due course. 8
On 6 July 1984, the trial court denied 9 the petition for new trial since the statement or affidavit of
Dionisio B. Millo could not be considered newly discovered evidence as it "existed during all the time
when the case was heard;" besides, even if it were to be admitted, it would not alter the judgment of
conviction.
Hence, on 20 July 1984, accused-appellants re-filed their notice of appeal.
The antecedent facts, as succinctly stated in the Appellee's Brief,

10

are as follows:

In the evening of July 21, 1982, Antonio (sic) Natura and her husband, Felipe Natura,
went to the house of Councilman Francisco Ponseja located at Barangay
Magsaysay, Diffun, Quirino. They were accompanied by Perla Minia (pp. 5-6, tsn,
Dec. 13, 1982).
They arrived at Councilman Ponseja's house, but he was not around so they
conversed with Councilman Ponseja's wife who was there (p. 6, tsn, Ibid).
Afterwards, Antonia Natura, her husband Felipe Natura and Perla Minia left
Ponseja's house and returned to their house (p. 7, tsn, Ibid.).
On their way home, they met the three accused, Jesus dela Cruz, Demerold Ayado
and Abecidueo Ajedo, who were standing by the road (p. 7, tsn, Ibid.). Antonia
Natura recognized them as she was carrying an oil lamp.
Upon meeting them, accused Jesus dela Cruz said, "Good evening (Tatang) father,"
Felipe Natura answered, "Good evening my son (Barok)" (p. 7, tsn, Ibid.).
Then, Jesus de la Cruz said to Felipe Natura, "you, after the election, as if you hate
me already." Felipe Natura answered, "No my son, you forget that already." At this
juncture, accused Demerold Ayado tapped the shoulder of Felipe Natura, while
Jesus de la Cruz at that same moment shouted, "Vulva of your mother" and suddenly
boxed Felipe Natura. Demerold Ayado, jointed by Abecidueo Ajedo, likewise, boxed
Felipe Natura. While the three accused were boxing and mauling Felipe, Antonia
Natura pleaded for the three accused to stop but the three accused did not listen to
her (pp. 8-9, tsn, Ibid.).
When Antonia's pleas remained unheeded, she shouted for help, but nobody came
to their succor. At that juncture, accused Demerold Ayado took hold of the front dress
of Antonia and shouted at her saying "Vulva of your mother, we are going to kill you
now. You ask help from your sons-in-law" (pp. 11, tsn, Ibid.).

Antonia struggled to free herself and when her front dress was released from the
hands of Demerold Ayado, she ran back to the house of Ponseja for help (p. 11,
tsn, Ibid.).
When no one was around the house to help her, Antonia returned to the place where
her husband Felipe Natura was being mauled and maltreated. Demerold Ayado,
upon seeing Antonia ran after her, and so the latter ran away again (p. 12, tsn, Ibid.).
After the lapse of several minutes, when Antonia noticed that everything was quiet,
she returned to the place where her husband was, but the three accused were no
longer there. She embraced her husband and noticed blood on his face and body.
She ran again to look for help. This time she went to the house of her godson, Elpidio
Baao, who was at home. She informed him that her husband was mauled by the
three accused. When Elpidio Baao and Antonia Natura returned to the scene of the
crime, her husband was no longer there (pp. 13-14, tsn, Ibid.).
She began to shout. Meanwhile, her godson looked around, and noticed that there
was light in the house of Councilman Ponseja and he learned that Felipe Natura was
brought there (p. 15, tsn, Ibid.).
Elpidio and Antonia went to the house of Ponseja and there she saw her husband
prostrate with blood all over his face and body (p. 15, tsn, Ibid.).
When Elpidio noticed that Felipe Natura was still breathing, he hired a vehicle and
brought Felipe to the Quirino Provincial Hospital (p. 15, tsn, Ibid.).
The next morning, Felipe Natura died (p. 18, tsn, Ibid.).
Accused-appellants Demerold Ayado and Abecidueo Ajedo, Jr. put up the defense of alibi, while
accused-appellant Jesus dela Cruz interposed the justifying circumstance of self-defense. 11
In this appeal, accused-appellants assign the following errors:

12

I
THE TRIAL COURT ERRED IN DENYING THE MOTION FOR NEW TRIAL
BECAUSE THE HEREIN ACCUSED-APPELLANTS WERE PREJUDICED AND
PREVENTED FROM FAIRLY PRESENTING THEIR DEFENSE DUE TO THE
SERIOUS ERROR ON THE PART OF THEIR ATTORNEY WHO FAILED TO EXERT
SUFFICIENT EFFORTS TO BRING THE VITAL WITNESS TO TESTIFY IN COURT.
II
THE TRIAL COURT ERRED IN CONVICTING ALL THE HEREIN ACCUSEDAPPELLANTS FOR (sic) MURDER AND IMPOSING A SENTENCE OF LIFE
IMPRISONMENT ON THE STRENGTH OF THE TESTIMONY OF A LONE "WOMAN

WITNESS," THE WIFE OF THE DECEASED, AND THAT NOBODY

CORROBORATED HER TESTIMONY OR VERSION OF THE CASE.
III
THE TRIAL COURT ERRED IN ITS FINDINGS AND CONCLUSION THAT A
CONSPIRACY EXISTED AMONG THE APPELLANTS IN THE COMMISSION OF
MURDER BECAUSE THE PREVAILING DOCTRINE IN OUR JURISDICTION IS
THAT CONSPIRACY MUST BE SHOWN TO EXIST AS CLEARLY AND
CONVINCINGLY AS THE COMMISSION OF THE OFFENSE ITSELF.
IV
THE TRIAL COURT ERRED IN INCLUDING THE HEREIN APPELLANTS;
DEMEROLD AYADO AND ABECEDUEO AJEDO IN THE CONVICTION OF THE
CRIME OF MURDER NOTWITHSTANDING AN INSUFFICIENCY OF EVIDENCE
ADDUCED AND PRESENTED AGAINST THEM AS IN FACT THE PROSECUTION
FAILED TO PROVE THEIR GUILT BEYOND REASONABLE DOUBT.
1. The first assigned error is without merit. Accused-appellants candidly admit in their Brief that the
main objective of their petition for new trial is "to present either Dionisio Millo or Teofilo Cielo to
testify and corroborate the version of Jesus dela Cruz." The latter is a witness for the defense. 13 In
their petition for new trial, however, accused-appellants mention only the name of Dionisio Millo. Millo
appears to have been investigated by police corporal Bienvenido Gumpal on 26 July 1982. He signed a
sworn statement on said date before the Municipal Judge of Diffun, Quirino, 14 which the prosecution
marked and offered in evidence as Exhibit "I," 15 They invoke excusable negligence for their failure to
present Millo as a witness allegedly because he could not
be reached by the subpoena issued on March 1984 as he had changed his address. 16 The records
disclose, however, that at the hearing on 11 April 1984 for the continuation of the presentation of evidence
for the defense, counsel for the accused-appellants, upon resting his case, expressly waived the
presentation of Millo and any other witness. Thus:
ATTY. RUBEN Z. FLORES
I am intending to present one witness for the defense, your Honor, but I think that he
is not yet in Court so we are constrained to rest this case, your Honor. With the
presentation of the witnesses for the accused, witness No. 1 Rodolfo Mabanta,
No. 2 Jessie Tubay, No. 3 Abecidueo Ajedo, Sr. and the accused Jesus dela
Cruz without any documentary evidence, your Honor, we are resting our case for the
defense. 17
The trial court correctly denied the petition for new trial. Under Section 2, Rule 121 of the Rules of
Court, a new trial may be granted based on any of the following grounds:
a) That errors of law or irregularities have been committed during the trial prejudicial
to the substantial rights of the defendant; and

b) That new and material evidence has been discovered which the defendant could
not with reasonable diligence have discovered and produced at the trial, and which if
introduce and admitted, would probably change the judgment.
The second ground, which is invoked by the accused-appellants, has the following requisites: (a) the
evidence was discovered after the trial; (b) such evidence could not have been discovered and
produced at the trial even with the exercise of reasonable diligence; and (c) that it is material, not
merely cumulative, corroborative or impeaching, and is of such weight that, if admitted, will probably
change the judgment. 18
None of these requisites is present in the instant case. Accused-appellants knew all the while that
Millo had executed a sworn statement, Exhibit "I", which was duly attached to the records. This is the
best evidence of the nature of his testimony. Accordingly, if they honestly believed that his testimony
was vital for the defense, they should have presented him. The records do not at all show that
diligent efforts were exerted by the accused-appellants to bring the witness before the court. As an
after-thought, they now ascribe to their previous counsel acts of impropriety and negligence in not
presenting Millo. A painstaking review of the records fails to disclose any basis for such an unfair
accusation. More importantly, accused-appellants themselves openly admit that the testimony of
Millo would only be corroborative of the testimony or version of Jesus dela Cruz. Such a statement is
fatal to their cause because it amounts to an admission that the third requisite for a new trial is
absent. Being merely corroborative, the testimony of Millo can be dispensed with.
There is moreover, another insurmountable obstacle which prevented favorable action on the
petition for new trial. As stated earlier, accused-appellants filed their Notice of Appeal on 4 June
1984, a copy of which was received by the Office of the Provincial Fiscal on that same day. 19 The
following day, the accused-appellants filed their petition for new trial. In criminal cases, an appeal is
deemed perfected upon the filing of the notice of appeal. Upon the perfection of the appeal, the trial court
loses its power to modify of set aside the decision, or order a new trial. 20 All it can do is to issue orders for
the protection and preservation of the rights of the parties which do not involve any matter litigated in the
appeal. 21 This does not mean, however, that an accused is thereafter forever barred from filing a petition
for new trial. In an appropriate case, he may file it with the appellate court. 22
While it is true that accused-appellants filed on 8 June 1984 a motion to withdraw their appeal to
save their petition for review, the records do not show that the trial court favorably acted on it.
Besides, a notice of appeal, once filed, cannot be validly withdrawn to give way to a motion for
reconsideration or a petition for new trial since, as above stated, the filing of the notice perfected the
appeal and the court thereby lost its jurisdiction over the case; hence, it can no longer act on either
the motion or the petition. The only valid withdrawal of an appeal would be one where an accused
decides to serve the sentence. 23
2. Being interrelated, as they hinge on the issue of credibility of witnesses, the second and fourth
assigned errors shall be discussed jointly. Under these assigned errors, accused-appellants claim
that the testimony of Antonia Natura, the lone eyewitness, should not have been believed because of
the bias and prejudice that would result from her being the victim's wife; moreover, the judge who
penned the decision only heard the witnesses for the defense, while two (2) other judges heard the
evidence for the prosecution. Hence, the former could not have observed the demeanor of the
prosecution's lone eyewitness. It is further claimed that accused-appellants Demerold Ayado and

Abecidueo Ajedo, Jr. were not positively identified; thus, their defense of alibi should have been
given credence by the trial court.
There is no merit to these claims.
Antonia Natura's relation to the victim does not necessarily disqualify her on the grounds of bias and
undue interest. 24 There is absolutely nothing in our laws to disqualify a person from testifying in a
criminal case in which the said person's relative was involved, if the former was really at the scene of the
crime and was a witness to the execution of the criminal act. 25
Additionally, the testimony of a lone eyewitness, if positive, reasonable and credible, is sufficient to
support a conviction especially if the testimony bears the earmarks of truth and sincerity and had
been delivered spontaneously, naturally and in a straightforward manner. 26 Corroborative evidence is
necessary only when there are reasons to warrant the suspicion that the witness falsified the truth or that
his observation had been inaccurate. 27 In the case at bar, the trial court found the testimony of Antonia
Natura convincing and trustworthy enough to warrant a conviction. We find no reason to disturb such
finding as there is no showing that exceptions to the rule on conclusiveness of findings of facts of trial
courts exists.
The fact that the judge who penned the decision did not hear the case
in its entirety he only had the chance to hear and observe the defense witnesses is not a
compelling reason to jettison his findings and conclusion considering that the full record was
available to him for his perusal. 28 In the case of People vs. Abaya, 29 We said:
. . . And the mere fact that Judge Alfredo C. Flores did not preside at the trial of this
case in its entirety, having taken over only when the last defense witness was to be
presented, did not detract from the validity, much less the correctness, of his
decision. The full record was available to him. It is evident from the knowledgeable
and analytical decision he has written that he thoroughly examined the testimonial
and documentary evidence before him and carefully assessed the credibility of the
witnesses with the seasoned perceptiveness he has developed as a trial judge.
An examination of the trial judge's decision reveals that he meticulously and carefully examined each
and every testimony of all the witnesses. This is readily apparent from his sixty-seven (67) page
decision where the testimonies of all the witnesses were summarized and evaluated.
The defense of alibi of accused-appellants Abecidueo Ajedo, Jr. and Demerold Ayado was
dismissed by the trial court in this wise: 30
The accused Demerold Ayado and Abecidueo Ajedo, Jr. would want the Court to
believe that at the time of the commission of the offense charged in the evening of
July 21, 1982 (sic), were at Campamento, Diffun, Quirino, about five (5) kilometers
away from Magsaysay, Diffun, Quirino. It was established, however, that the distance
could be negotiated by hiking in just an hour. The defense, to bolster the theory,
presented Rodolfo Mabanta, stating that Demerold Ayado and Abecidueo Ajedo, Jr.
did not leave the house (house of Abecidueo Ajedo, Jr.) in Campamento, Diffun,
Quirino, on the evening of July 21, 1982, because of an existing barangay curfew

ordinance that nobody could go out at night. However, according to the same
witness, this presumption was just his opinion and belief. Defense presented another
witness in the person of Abecidueo Ajedo, Sr., father of the accused Abecidueo
Ajedo, Jr., and incumbent Barangay Captain of Campamento, Diffun, Quirino, who
testified of (sic) the existence of a Barangay curfew ordinance-resolution No. 4-81
marked as Exhibit "1" for the defense, that the accused Demerold Ayado and
Abecidueo Ajedo, Jr. slept and stayed in his house for three (3) days and
remembers (sic) that in the evening of July 21, 1982, he was in his house together
with the accused Demerold Ayado and Abecidueo Ajedo, Jr. Witness further
remembers of (sic) two violators of said curfew ordinance-Resolution No. 4-81 who
were accordingly punished. He further stated that Demerold Ayado and his son,
Abecidueo Ajedo, Jr. never went out of the house at night during their stay for three
days in his house because they were tired. In the evening of July 21, 1982, he
presumed that Demerold Ayado and Abecidueo Ajedo, Jr. to have (sic) slept in their
room in his house because he himself that time was asleep.
The Court took note of the fact that the witness Abecidueo Ajedo, Sr. is the father of
the accused Abecidueo Ajedo, Jr. and the distance between Campamento, Diffun,
Quirino and Magsaysay, Diffun, Quirino, is just 5 kilometers which could be
negotiated by hiking for just an hour. This puts to nought (sic) the defense of alibi.
It is a well-entrenched doctrine that alibi is an inherently weak defense especially when the accused
is positively identified. 31 Furthermore, for the defense of alibi to prosper, it is not enough that the
accused-appellants are able to show that they were somewhere else when the crime was committed; they
must likewise demonstrate that it was physically impossible for them to have been at the scene of the
crime. 32 In the instant case, Ajedo and Ayado were positively identified by a witness; furthermore, the trial
court concluded that the place where they supposedly were at the time of the incident is only five (5)
kilometers away from the scene of the crime, a distance which they could easily negotiate in one (1) hour
by hiking. It was not, therefore, impossible for the two to be at the scene of the crime.
This Court cannot likewise accept the plea of self-defense of accused-appellant Jesus dela Cruz. In
a long line of cases, it has been held that where the accused admits to the killing of the victim but
invokes self-defense, it is incumbent upon him to prove by clear and convincing evidence that he
indeed acted in defense of himself. 33 As the burden of proof is shifted to him, he must rely on the
strength of his own evidence and not on the weakness of that of the prosecution. 34
The version of Jesus dela Cruz on what transpired that fateful night is summarized by the trial court
as follows: 35
With respect to the accused Jesus Dela Cruz, he invoked self-defense. This is his
version. In the evening of July 21, 1982, coming from the house of one Anikki,
followed (sic) the victim Felipe Natura and his wife, Antonia Natura. Greeting (sic) the
victim "good evening" only to be answered angrily "you are the man whom I have
been waiting for a long time". Immediately, the victim grabbed his waist, boxed his
forehead and fell down. He (accused) stood up and tried to run away but the victim
holding a scythe, chased him, hitting him on his left arm. Accused and the victim
grappled for the possession of the scythe and in the course of the grappling, the

victim was stabbed. He did not know, however, how he stabbed the victim. The victim
could no longer stand up because of what he did to him. During the grappling
between him and victim Felipe Natura, Antonia Natura, wife of the victim, held his
shirt and boxed him. That Felipe Natura wanted to kill him because he turned down
the request of the victim to kill his political adversary, Rubenciano Ayado (accused's
stepfather), before the barangay election held on May 17, 1982.
For the plea of self-defense to prosper, it is necessary that the following circumstances must concur:
(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. 36
In the instant case, the unlawful aggression came not from the victim but from the accusedappellants. The version of Dela Cruz is simply incredible. If We were to subscribe to it, then the
victim would have sustained only one (1) injury the stab wound. The autopsy report 37 belies this.
As indicated therein, the victim suffered the following injuries:
Head
A. External = Generalized Contusion of the Head
= Hematoma around both eyes
= Conjunctival Hemorrhage both eyes
= Lacerated wound of both upper &
lower lips from the root of the teeth to the outside
= Upper Rt. Incissor teeth missing
Upper Rt. Lateral Incisor missing
Upper Left cannine (sic) teeth missing
= Stab wound Rt. cheeck (sic) 4 inches
long
= Stab wound Left anterior digastric triangle 1 cm. long x 2 inches
deep.
1 1. Skull opened
= No signs of crack or fracture
= Hematoma parieto-accipital region (R&L)
2. Subdural hemorrhages
xxx xxx xxx
Abdomen
A. External = Stab wound about 1 inch long at the Rt. Hypochondrium
B. Internal
1. Penetrating the lower edge of the right lobe of liver 2 cm. thru & thru & also the left
lobe of the liver.

2. Perforating the hepatic flexure of the colon 2 cm. long

xxx xxx xxx
According to Dr. Luis Bergado, the stab wound could have been caused by a knife or sharp-pointed
instruments, while the other injuries could have been caused by severe blows from blunt instruments
such as a piece of wood, bare fists, or a stone. 38
On the other hand, Dela Cruz claimed that since he merely sustained a wound on his left thumb, he
did not bother to seek medical treatment. 39 This claim of injury, however, does not inspire belief. As
correctly held by the trial court:
He merely reported the alleged wound to a Policeman of Diffun, Quirino. He could
not remember the Policeman to whom he reported. There was no medical certificate
to prove the wound allegedly sustained by him. During the trial when he testified, he
tried to show to the Court a very insignificant scar on the left hand between the
thumb and the forefinger. The alleged scar, the Court observed, is very insignificant
and almost unnoticeable. It is not improbable that the scar might be the scar of a selfinflicted wound. Again, the Court hardly believe (sic) this version.
3. The trial court was correct in holding that there existed a conspiracy among the accusedappellants.
Conspiracy need not be established by direct evidence but may be inferred and proven from the acts
of the accused themselves when said
acts point to a joint purpose and design, concerted action and community of interest. 40 Otherwise
stated, it may be deduced from the mode and manner in which the offense was perpetrated. 41
The following established facts, as correctly summarized by the People in its Brief, establish beyond
reasonable doubt the presence of conspiracy:
1. The crime was committed at night time to facilitate its commission. The victim and
his wife were on their way home at 10:00 o'clock in the evening when they were
accosted by the three accused who were together (p. 7, tsn, Dec. 13, 1982).
2. Jesus dela Cruz, pretended to be friendly with Felipe Natura by greeting him. He
then drew out his scythe (kumpay) from his waist with which he hacked the victim
while the other accused Demerold Ayado tapped the victim's shoulder (pp. 8-9,
tsn, Ibid.).
3. Then the three accused, acting in concert, mauled and stabbed the victim
mercilessly (pp. 8-9, tsn,Ibid.).
4. While the victim was being mauled, his wife began to plead for mercy, but instead,
one of the accused, Demerold Ayado, took hold of her dress and told her that he is
going to kill her, and because of this she ran away (p. 11, tsn, Ibid.).

5. While she was running, she was chased by Demerold Ayado, but she was able to
evade him (p. 11, tsn, Ibid.).
6. Accused Demerold Ayado returned to the place where the victim was and joined
his co-accused in beating the victim.
7. The three accused then left together leaving behind them the dying victim (p. 12,
tsn. Ibid.).
Thus, the convergence of wills of the accused-appellants in carrying out a common unlawful purpose
amply justified the imputation to all of them the act of any one of them. 42
The information alleges evident premeditation and treachery as the qualifying circumstances and
superiority, nighttime and disregard of age as generic aggravating circumstances.
The evidence for the prosecution is insufficient to establish the elements of evident premeditation, to
wit: (a) the time when the accused determined to commit the crime, (b) an act manifestly indicating
that the accused had clung to his felonious determination, and (c) a lapse of time between the
determination and execution sufficient to allow the accused to reflect upon the consequences of his
act. 43
Treachery, however, was duly established.
Treachery is present when a crime against a person is committed employing means, methods or
forms in the execution thereof which tend directly and specially to insure its execution, without risk to
himself arising from the defense which the offended party might make. 44 For treachery to be present,
two (2) conditions must concur: (a) the employment of means of execution that gives the person attacked
no opportunity to defend himself or to retaliate, and (b) that said means of execution was deliberately or
consciously adopted. 45 As adverted to above, accused-appellant Dela Cruz initially pretended to be
friendly with the victim; he then suddenly grabbed the scythe from the victim's waist while accusedappellant Ayado tapped the victim on his shoulder. Thereupon, they mauled and stabbed the victim. The
friendly gesture was a clever ploy to gain the trust of the victim, remove from his mind any suspicion as to
the motive of the accused-appellants or make him feel secure in the thought that nothing untoward would
happen to him, and place him in utter helplessness and complete inability to prepare for any defense or
offer any resistance, thus insuring themselves against the possible risk of harm arising from any defense
which the victim may put up.
While indeed there was abuse of superior strength, this aggravating circumstance, should, however,
be deemed absorbed in treachery. 46 The same goes for the circumstance of nighttime. 47
The aggravating circumstance of disregard of age may not likewise be taken into account. Although
at the time of his death, the victim was 50 years old 48 and the accused-appellants Dela Cruz, Ayado
and Ajedo were 29, 18 and 18 years of age, respectively, 49 there is no sufficient evidence to prove that
they deliberately intended to offend or insult the age of the victim. For this aggravating circumstance to be
appreciated, it is necessary that there be such a deliberate intent. 50

It follows, therefore, that no generic aggravating circumstances may be appreciated against the
accused-appellants. Upon the other hand, they failed to prove any mitigating circumstance.
The crime of murder is punished by reclusion temporal maximum to death. 51 There being no
mitigating or aggravating circumstances obtaining in this case, and following the doctrine enunciated
in People vs. Muoz, 52 the medium of the penalty, which is reclusion perpetua, should be imposed upon
the accused appellants. 53 The trial court is correct in this regard. Per recent rulings of this Court, the
indemnity should, however, be increased to P50,000.00. 54
WHEREFORE, the decision appealed from is hereby AFFIRMED, subject to the modification as to
the indemnity which is hereby increased from P30,000.00 to P50,000.00.
Costs against the accused-appellants.
SO ORDERED.