Republic of the Philippines

SUPREME COURT
Manila

(Sgd.)
WILFREDO C. OCHOTORENA
Acting Presiding Judge 1

EN BANC

In an information dated January 7, 1994, accused-appellant was charged

with the crime of parricide committed as follows:

G.R. No. 115686 December 2, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PEDRO MALABAGO y VILLAESPIN, accused-appellant.

PUNO, J.:p
This is an automatic review of the decision of the Regional Trial Court of
Dipolog City, Branch 10 which imposed the penalty of death on accusedappellant, Pedro Malabago y Villaespin, in Criminal Case No. 6598, viz:
WHEREFORE, the court finds accused Pedro Malabago guilty beyond
reasonable doubt of the crime of PARRICIDE as defined and penalized
under Article 246 of the Revised Penal Code. With reluctance and a
heavy heart therefore, inspired by the personal feeling and view of the
undersigned with respect to the wisdom of the penalty of death for any
crime, the court finds itself with no other alternative but to impose the
penalty provided for by the express mandate of the law which is now
restored under Republic Act No. 7659. The accused (Pedro Malabago y
Villaespin) is hereby sentenced to DEATH for the terrible crime he has
committed and, to indemnify the heirs of the victim in the sum of
P50,000.00 conformable to the recent jurisprudence on the matter
(People v. Sison, 189 SCRA 643).
Costs de oficio.
SO ORDERED.
DIPOLOG CITY, Philippines, this 10th day of May 1994.

CRIM2

That in the evening, on or about the 5th day of January 1994, at

Barangay Gulayon, Dipolog City, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, with intent to kill and
without any justifiable cause, did then and there wilfully, unlawfully and
feloniously hack and strike with a bolo one Letecia R. Malabago, his
lawfully wedded wife, hitting the latter on her face and neck, which
caused the victim' s instantaneous death, to the damage and prejudice of
the heirs of the victim, in the amount of P30,000.00 as death indemnity,
and also moral and exemplary damages in the amounts to be established
during the trial. 2
The following facts were established by the prosecution: On January 5,
1994, at about 7:00 in the evening, Guillerma Romano, appellant's
mother-in-law, was tending her sari-sari store in Barangay Gulayon,
Dipolog City. The store and its premises were lit by a kerosene lamp and
the fluorescent light from the adjoining house of Dodong Opulentisima.
Guillerma's daughter, Letecia Romano Malabago, arrived and sat on one
of the benches outside the store. She had just come from selling some
jackfruit. Allandel, Letecia's fourteen-year old son, appeared and sat on
the bench facing her. He listened to his mother and grandmother who
were conversing. A few minutes later, accused-appellant came and
interrupted his wife and mother-in-law's conversation. He and Letecia
began arguing. Guillerma turned away but heard the couple's altercation
over money and appellant's jealousy of someone. Suddenly, Guillerma
heard a loud sound and she thought that appellant slapped Letecia on the
face. Letecia cried out "Agay! "Looking out the store window, Guillerma
saw Letecia's face bloodied with a slash along her right ear. Appellant
was facing Letecia, and with a bolo in his hand, struck her again, this time
hitting the lower left side of her face, from the lips down to the neck.
Letecia fell to the ground. Guillerma rushed towards her daughter and
shouted for help. 3 She was lifeless.
Appellant fled to Dodong Opulentisima's house. Dodong Opulentisima
later called the police. They came, fetched appellant and brought him to

their station. 4 On investigation, the police found a bloodied bolo in the

pineapple plantation near appellant's house. 5

parricide considering that the prosecution failed to prove his guilt beyond
reasonable doubt as demonstrated by:

Letecia was found to have died of "cardio-respiratory arrest; shock

hemorrhage, massive; hack wounds, multiple." 6

(a) The prosecution's failure to prove the legitimate marital relation

between appellant and the victim;

Accused-appellant pled not guilty to the crime. He claimed that on

January 5, 1994, he was in the poblacion of Dipolog City. He alleged he
did not know who hacked his wife and had no means of finding the culprit
because he was placed in jail after her killing. 7 He claimed through his
son, Allandel, as defense witness, that Guillerma testified against him
because she was against their marriage. He was then jobless. 8 The
proceedings show that Guillerma, together with her husband, Catalino,
and appellant's and Letecia's three children, namely, Allandel, Aljun and
Alex later signed an affidavit of desistance and moved to dismiss the case
against him. 9

(b) The prosecution's failure to prove the fact and cause of death;

The trial court upheld the prosecution and on May 10, 1994 convicted
accused-appellant of parricide and sentenced him to death pursuant to
Republic Act No. 7659.
Before us appellant assigns the following errors:
I
The sentence of death imposed by the trial court on the appellant is an
unconstitutional penalty for being violative of fundamental human rights
and is, thus, null and void.
II
The judgment of conviction is null and void for having been rendered by a
trial court ousted of jurisdiction because of the grave violations of the
appellant's rights to due process committed by no less that the presiding
2
judge himself as shown by his conduct at trial.
III
Assuming without conceding that the trial court was not ousted of
jurisdiction, it nevertheless gravely erred in convicting the appellant of
CRIM2

(c) The prosecution's failure to establish the chain of custody over the
alleged instrument of death;
IV
Assuming without conceding that the trial court was not ousted of
jurisdiction, it nevertheless gravely erred in convicting the appellant when
it arbitrarily and selectively gave full weight and credence only to
Guillerma Romano's inculpatory but inconsistent and inadmissible
testimony and disregarded her exculpatory statements.
V
Assuming without conceding that the trial court was not ousted of
jurisdiction, it nevertheless gravely erred in peremptorily dismissing the
appellant's defense of alibi as inherently weak.
VI
Assuming without conceding that the finding of parricide is correct, the
trial court nevertheless gravely erred in appreciating the existence of
treachery as an aggravating and qualifying circumstance.
VII
Assuming without conceding that the finding of parricide is correct, the
trial court nevertheless gravely erred in refusing to consider the mitigating
circumstance of voluntary surrender in favor of the appellant, despite the
prosecution's failure to contradict and challenge the appellant's claim of
this mitigator.
VIII

Assuming without conceding that it was not ousted of jurisdiction, the trial
court nevertheless gravely erred in awarding civil indemnity arising from
the death of Letecia Malabago considering that the prosecution failed to
prove said death as a fact during trial. 10

Q Please tell us what that incident was about?

A At that moment, I heard a loud sound (paka).
Q Did you investigate what that loud sound [was] all about?

We affirm the trial court's findings with modification.

The crime of parricide defined in Article 246 of the Revised Penal Code
as amended by Republic Act 7659 11states:

A I did not mind because they are husband and wife.

Q What was that loud sound about?

Art. 246. Parricide. Any person who shall kill his father, mother, or
child, whether legitimate or illegitimate, or any of his ascendants, or
descendants, or his spouse, shall be guilty of parricide and shall be
punished by the penalty of reclusion perpetua to death.

A I thought it was a slap on the face but she was hit by a bolo.

Parricide is committed when: (1) a person is killed; (2) the deceased is

killed by the accused; (3) the deceased is the father, mother, or child,
whether legitimate or illegitimate, or a legitimate other ascendant or other
descendant, or the legitimate spouse of the accused. 12

A There was an altercation between husband and wife.

Q What was that incident about?

Q After the altercation between husband and wife, what happened?

A I saw the hacking two times and I saw blood.

The key element in parricide is the relationship of the offender with the
victim. 13 In the case of parricide of a spouse, the best proof of the
relationship between the accused and the deceased is the marriage
certificate. In the absence of a marriage certificate, however, oral
evidence of the fact of marriage may be considered by the trial court if
such proof is not objected to. 14
Guillerma Romano testified on direct examination that:

Q Who was hacked?

A My daughter Letecia was hacked by Pedro Malabago.
xxx xxx xxx 5

PROSECUTOR MAH:

Guillerma Romano's testimony on direct examination affirmed the

narration in her affidavit taken the day after the incident. The affidavit was
adopted by the prosecution as its Exhibit "A" and it reads in part:

Q On January 5, 1994 at about 7:00 in the evening, can you still recall
where you were at that particular time?

Q What is your purpose in coming to the Office of the Investigator of the

Dipolog City Police?

A I was in my store.

Q While you were in your store at that particular time and date, can you
still remember if there was an unusual incident [that] happened?
A Yes, sir.
CRIM2

A To file a complaint against Pedro Malabago y Villaespin, 42 years old

and a resident of Gulayon, Dipolog City.
Q What is your complaint against said person?
A He hacked to death my daughter who is his wife with the use of a bolo.

Q How many times did the suspect hack his wife, Letecia R. Malabago?
A Twice, hitting the victim on the right side of her face and on the neck
resulting in her instantaneous death.

Q But then you were legally married by civil ceremony officiated by Mayor
Barinaga?
A Yes, your honor.

xxx xxx xxx 16

xxx xxx xxx 18

Appellant did not object to Guillerma's testimony and sworn statement

that he and Letecia were husband and wife. 17 Appellant himself
corroborated Guillerma's testimony, to wit:

The testimony of the accused that he was married to the deceased is an

admission against his penal interest. It is a confirmation of the semper
praesumitur matrimonio and the presumption that a man and a woman
deporting themselves as husband and wife have entered into a lawful
contract
of
marriage. 19

COURT: (to the witness)

Q You are Pedro Malabago, the accused herein?
A Yes, sir.
Q What is your relation to the late Letecia Romano Malabago?
A She was my wife, your honor.
Q You mean to say you were legally married to Letecia Romano
Malabago?

Appellant alleges that the prosecution failed to establish the fact and
cause of Letecia's death because Dr. Dominador Celemin, the City Health
Officer who signed the death certificate, did not personally examine her
cadaver. 20 It is contended that the content of the death certificate issued
by Dr. Celemin is hearsay. 21
Letecia's death certificate is not the only proof of her death. Guillerma, in
her affidavit, stated that her daughter died as a result of the hack
wounds. 22 Called also as a hostile witness for the defense, she testified:
COURT

A Yes, sir.
Q Who solemnized the marriage?

Q At that time, you actually saw the accused hacked (sic) the bolo to (sic)
your daughter?

A Mayor Barinaga, your honor.

A Yes, your honor.

Q When?

Q In fact, you witnessed the blood oozing on the face of your daughter?

A In the year 1970, your honor.

Q Who were the witnesses, could you still remember?

A Yes, your honor.

Q In other words, you actually saw the accused herein hack the bolo to
your daughter, am I right?

A I can only remember Sergio Vidal, your honor.

A Yes, your honor.
CRIM2

Q And the cause of death of your daughter was the hacking of Pedro
Malabago?

A I do not know who hacked my wife.

xxx xxx xxx 24

A Yes, your honor.

Q I have observed a while ago while you were testifying, you were crying.
Why?
A Because of worries that Pedro had done to my daughter.
Q You mean to say, you cried because your daughter was killed by her
husband?
A Yes, your honor.
xxx xxx xxx 23
Appellant affirmed on cross examination that his wife died as a result of
the hacking, thus:
FISCAL MAH: (to the witness)
Q Mr. Witness, you know Letecia Malabago because she was your wife?
A Yes, sir.
Q Where is she now?
A She is already buried in the cemetery.
Q You mean to say she is already dead?
A Yes, sir.
Q What was the cause of her death?
A She was hacked, sir.
Q Hacked by whom?
CRIM2

Accused-appellant also claims that the trial court showed partiality to the
prosecution by unduly interfering in the presentation of evidence. By
asking questions, the judge allegedly elicited prejudicial admissions from
witnesses without affording appellant's counsel the right to examine them
on their answers to the court, in violation of appellant's constitutional right
to due process and right against self-incrimination. 25
The records disclose that the questions the trial judge propounded were
made mainly to clarify what the prosecution and defense witnesses had
testified on direct and cross examinations. The essential elements of the
crime of parricide like appellant's marriage to Letecia, the cause of
Letecia's death and appellant's participation therein were facts already
established by the prosecution in its evidence in chief. Using his
discretion, the trial judge questioned the witnesses to clear up obscurities
in their testimonies and sworn statements. 26 The wise use of such
discretion cannot be assailed as a specie of bias.
A judge is called upon to ascertain the truth of the controversy before him.
He may properly intervene in the presentation of evidence to expedite
and prevent unnecessary waste of time 27 and clarify obscure and
incomplete details after the witness had given direct testimony. 28 After all,
the judge is the arbiter and he ought to satisfy himself as to the respective
merits of the claims of both parties in accord with the stringent demands
of due process. 29 In the case at bar, the trial judge had strong reasons to
question the material witnesses who executed affidavits of desistance
contradicting their previous stance. If to the mind of the parties, the trial
judge was unduly interfering in their presentation of evidence, they were
free to manifest their objection. They were likewise free to ask redirect
questions from their witness after interrogation by the trial court. In the
instant case, however, they never manifested that the questions of the
trial judge had traversed the allowable parameters. Even assuming that
some of the questions were incriminating, we cannot hold that the
witnesses were compelled to incriminate themselves. The records show
they answered the questions of the court freely and voluntarily and
without any objection from their respective counsels.
The prosecution evidence is based solely on the testimony of Guillerma
Romano. Nonetheless, her testimony is clear, spontaneous and

straightforward. Her inconsistencies are minor and inconsequential and

they are not incongruous with her credibility. 30 Her testimony was not
eroded even when she was presented by the defense as a hostile
witness. She admittedly signed the affidavit of desistance for the sake of
her three grandchildren and this is understandable in light of the
circumstances of the case. Allandel and his brothers pled that she
withdraw the complaint because they did not want their father to be in
prison. 31 Deep in her heart, however, Guillerma wanted justice for her
daughter and thus, she testified for the prosecution. 32 The fact that she
objected to her daughter's marriage to appellant is too flimsy a reason to
impel her to testify against the father of her grandchildren.

COURT: (to the witness)

We agree with the trial court that appellant's defense of alibi is weak and
unconvincing. Appellant was positively identified as the one who hacked
his wife to death. Moreover, it was not physically impossible for him to be
at the scene of the crime on that fateful evening. The poblacion of Dipolog
City is merely four kilometers from Barangay Gulayon and this distance
may be traversed within a few minutes by motorized vehicle. 33

A I surrendered because I was accused of killing my wife.

Be that as it may, we find that the trial court erred in appreciating the
aggravating circumstance of treachery. For treachery to be present, two
conditions must concur: (a) the employment of means of execution which
would ensure the safety of the offender from defensive and retaliatory
acts of the victim, giving the victim no opportunity to defend himself; and
(b) the means, method and manner of execution were deliberately and
consciously adopted by the offender. 34 It is true that appellant hacked his
wife who was then unarmed and had no opportunity to defend herself.
However, the evidence does not show that appellant deliberately and
consciously employed this particular mode of attack to ensure the killing
of the victim. The unembroidered facts reveal that appellant hacked his
wife in the midst of a sudden, unscripted heated argument. This
precludes the idea that appellant priorly planned to kill his wife. Indeed,
appellant was not carrying his bolo at that time. The bolo was hanging in
its usual place on one of the posts of the sari-sari store. 35 Treachery, to
be appreciated, must spark an attack that is deliberate, sudden and
unexpected not where it is prefaced by an unforeseen heated
6 argument
with the victim standing face to face with her assailant. 36
The trial court also erred in disregarding the mitigating circumstance of
voluntary surrender. In answer to questions by the trial court, appellant
declared:
CRIM2

xxx xxx xxx

Q Do you have suspects as to the alleged killers of your wife?
A I have no suspect, your honor.
Q Because you denied killing your wife, you did not surrender to the
police authorities?

Q Immediately after the incident?

A Yes, sir.
Q Was it placed in the police blotter that you surrendered?
A Yes, sir.
Q Will you give the name of the person or police officer to whom you
surrendered?
A I forgot the name, your honor.
Q Are you telling the truth?
A Yes, sir.
xxx xxx xxx 37
Appellant testified that he voluntarily surrendered to the police when they
fetched him at Dodong Opulentisima's house. The prosecution did not
dispute appellant's claim of voluntary surrender. Guillerma herself testified
that without any resistance, appellant went with the police when they
fetched him at Dodong's house. 38 Indeed, appellant did not escape after
Dodong Opulentisima called the police. Instead, he voluntarily placed
himself at the disposal of the police authorities.

In the absence of an aggravating circumstance 39 and the presence of a

mitigating circumstance the penalty imposable to appellant is reclusion
perpetua. 40 Considering the death of the victim, a civil indemnity of
P50,000.00 must be awarded to her heirs.
In light of the above disquisitions, the Court need not resolve the alleged
unconstitutionality of R.A. No. 7659, as amended. Nonetheless, the Court
expresses its appreciation to the scholarly arguments of our amici curiae,
Senator Arturo M. Tolentino and Fr. Joaquin G. Bernas, S.J., on the
constitutional aspects of R.A. No. 7659, as amended. Death not being
the lis mota of the instant case, the Court has to await for a more
appropriate case to pass upon the constitutionality of R.A. No. 7659, as
amended.
IN VIEW WHEREOF, the decision appealed from is affirmed with the
modification that the penalty of death imposed by the Regional Trial Court
of Dipolog City, Branch 10 on accused-appellant Pedro Malabago y
Villaespin in Criminal Case No. 6598 is reduced to reclusion perpetua.
SO ORDERED.
Regalado, Davide, Jr., Romero, Bellosillo, Melo, Vitug, Kapunan,
Mendoza, Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ.,
concur.
Separate Opinions

assault. In People v. Cruz (213 SCRA 611), we held that there was
treachery if the commission of the crime was sudden and unexpected
even if the armed attack was made face to face. Thus, under the
circumstances, the victim was clearly not in any position to defend himself
to the unreasonable and unexpected attack of the accused-appellant.
There was also, in my view, no voluntary surrender on the part of
accused-appellant as to entitle him to the mitigating circumstance on this
score. He did not voluntarily surrender. He was fetched by the police
authorities in the house of Dodong Opulentisima. In People
v. Flores, 2 the Court stated:
Neither can we accept accused-appellant's plea of voluntary surrender.
He did not surrender to the police. In fact, the evidence adduced shows
that it was the police authorities who came to the factory looking for him.
It was there that accused-appellant was pointed to them. Seeing that the
police was already approaching him, accused-appellant did not offer any
resistance and peacefully went with them. With the police closing in,
accused-appellant actually had no choice but to go with them. To be sure,
no surrender was made by accused-appellant.
By this senseless and brutal killing of his wife, the mother of his three (3)
children, accused-appellant, in my opinion, has lots the right to live.
Society will be far better off without him around. While compassion is, in
itself, a virtue, it cannot and should not replace justice under the law, in
this particular case, justice to the victim and her three (3) orphaned
children.
PEOPLE vs PEDRO MALABAGO y VILLAESPIN

PADILLA, J., dissenting:

I vote to affirm the death penalty imposed by the trial court. There was, in
my view, treachery employed by the accused-appellant in killing his wife
because the latter, even in the course of her arguments with accused7
appellant (her husband), did not except the latter to suddenly
and
unexpectedly hack her. She had no opportunity to defend herself from so
sudden and precipitate an attack. In People v. Lualhati, 1 the Court stated
thus:
There was no sufficient provocation on the part of the victim which would
have placed him on guard and prepared him for accused-appellant's
CRIM2

December 2, 1996; Proof of spouse relationship in parricide: marriage

certificate or in its absence, oral testimony of the accused.

Facts:
a.

On January 5, 1994, at about 7:00 in the evening, Guillerma Romano

was tending her sarisari store in Barangay Gulayon, Dipolog City.

b.

c.

Guillerma's daughter, Letecia Romano Malabago, arrived and sat on

one of the benches outside the store and was also joined by
Allandel, Letecia's fourteenyear old son.
A few minutes later, accusedappellant came and interrupted his
wife and motherinlaw's conversation. He and Letecia began
arguing.

In the case of parricide of a spouse, the best proof of the relationship

between the accused and the deceased is the marriage certificate. In
the absence of it, oral evidence of the fact of marriage may be
considered by the court if such proof is not objected to. - The
testimony of the accused that he was married to the deceased is an
admission against his penal interest. It is a confirmation of
presumption that they are husband and wife.

The essential elements of the crime of parricide like appellant's

marriage to Letecia, the cause of Letecia's death and appellant's
participation therein were facts already established by the
prosecution to qualify the offense as parricide.

Appellant fled to Dodong Opulentisima's house. Dodong

Opulentisima later called the police. They came, fetched appellant
and brought him to their station.

No aggravating circumstance of treachery because the appellant

hacked his wife in the midst of a sudden, unscripted heated
argument and the appellant was not carrying his bolo at that time.

The trial court upheld the prosecution and on May 10, 1994
convicted accusedappellant of parricide and sentenced him to
death pursuant to Republic Act No. 7659.

Mitigating circumstance: Appellant testified that he voluntarily

surrendered to the police when they fetched him at Dodong
Opulentisima's house.

Guillerma turned away but heard the couple's altercation over money
and appellant's jealousy of someone.

e.

Guillerma heard Letecia cried out "Agay. She saw Letecia's face
bloodied with a slash along her right ear. Appellant was facing
Letecia, and with a bolo in his hand, struck her again, this time hitting
the lower left side of her face, from the lips down to the neck. Letecia
fell to the ground. Guillerma rushed towards her daughter and
shouted for help. She was lifeless.

g.

(3)the deceased is the father, mother, or child, whether legitimate or

illegitimate, or a legitimate other ascendant or other descendant,
or the legitimate spouse of the accused.

d.

f.

KEY ELEMENT - relationship:

ISSUE: WON the accused should be convicted of parricide?

RULING: YES!
Parricide is commited when:
8

(1)a person is killed;

(2)the deceased is killed by the accused;

CRIM2

The information (amended) in this case reads as follows:

xxx xxx xxx
The undersigned City Fiscal of the City of Tacloban accuses Francisco
Abarca of the crime of Murder with Double Frustrated Murder, committed
as follows:

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 74433 September 14, 1987
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FRANCISCO ABARCA, accused-appellant.

That on or about the 15th day of July, 1984, in the City of Tacloban,
Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, with deliberate intent to kill and with evident
premeditation, and with treachery, armed with an unlicensed firearm
(armalite), M-16 rifle, did then and there wilfully, unlawfully and feloniously
attack and shot several times KHINGSLEY PAUL KOH on the different
parts of his body, thereby inflicting upon said KHINGSLEY PAUL KOH
gunshot wounds which caused his instantaneous death and as a
consequence of which also caused gunshot wounds to LINA AMPARADO
and ARNOLD AMPARADO on the different parts of their bodies thereby
inflicting gunshot wounds which otherwise would have caused the death
of said Lina Amparado and Arnold Amparado, thus performing all the acts
of execution which should have produced the crimes of murders as a
consequence, but nevertheless did not produce it by reason of causes
independent of his will, that is by the timely and able medical assistance
rendered to Lina Amparado and Arnold Amparado which prevented their
death.
xxx xxx xxx

SARMIENTO, J.:
This is an appeal from the decision of the Regional Trial Court of Palo,
Leyte, sentencing the accused-appellant Francisco Abarca to death for
the complex crime of murder with double frustrated murder.
The case was elevated to this Court in view of the death sentence
9
imposed. With the approval of the new Constitution, abolishing
the
penalty of death and commuting all existing death sentences to life
imprisonment, we required the accused-appellant to inform us whether or
not he wished to pursue the case as an appealed case. In compliance
therewith, he filed a statement informing us that he wished to continue
with the case by way of an appeal.
CRIM2

On arraignment, the accused-appellant pleaded not guilty. The Solicitor

General states accurately the facts as follows:
Khingsley Paul Koh and the wife of accused Francisco Abarca, Jenny,
had illicit relationship. The illicit relationship apparently began while the
accused was in Manila reviewing for the 1983 Bar examinations. His wife
was left behind in their residence in Tacloban, Leyte (pp. 45-47, 65, tsn,
Sept. 24, 1984).
On July 15, 1984, the accused was in his residence in Tacloban, Leyte.
On the morning of that date he went to the bus station to go to Dolores,
Eastern Samar, to fetch his daughter. However, he was not able to catch
the first trip (in the morning). He went back to the station in the afternoon

to take the 2:00 o'clock trip but the bus had engine trouble and could not
leave (pp. 5-8, tsn, Nov. 28, 1985). The accused, then proceeded to the
residence of his father after which he went home. He arrived at his
residence at the V & G Subdivision in Tacloban City at around 6:00
o'clock in the afternoon (pp. 8-9, tsn, Id.).
Upon reaching home, the accused found his wife, Jenny, and Khingsley
Koh in the act of sexual intercourse. When the wife and Koh noticed the
accused, the wife pushed her paramour who got his revolver. The
accused who was then peeping above the built-in cabinet in their room
jumped and ran away (pp. 9-13, tsn, Id.).
The accused went to look for a firearm at Tacloban City. He went to the
house of a PC soldier, C2C Arturo Talbo, arriving there at around 6:30
p.m. He got Talbo's firearm, an M-16 rifle, and went back to his house at
V & G Subdivision. He was not able to find his wife and Koh there. He
proceeded to the "mahjong session" as it was the "hangout" of Kingsley
Koh. The accused found Koh playing mahjong. He fired at Kingsley Koh
three times with his rifle (pp. 13-19, tsn, Id.). Koh was hit. Arnold and Lina
Amparado who were occupying a room adjacent to the room where Koh
was playing mahjong were also hit by the shots fired by the accused (pp.
34-49, tsn, Sept. 24, 1984). Kingsley Koh died instantaneously of
cardiorespiratory arrest due to shock and hemorrhage as a result of
multiple gunshot wounds on the head, trunk and abdomen (pp. 28-29,
tsn, Sept. 24, 1984; see also exh. A): Arnold Amparado was hospitalized
and operated on in the kidney to remove a bullet (pp. 17-23, tsn, Oct. 17,
1984; see also exh. C). His wife, Lina Amparado, was also treated in the
hospital as she was hit by bullet fragments (p. 23, tsn, Id.). Arnold
Amparado who received a salary of nearly P1,000.00 a month was not
able to work for 1-1/2 months because of his wounds. He spent
P15,000.00 for medical expenses while his wife spent Pl,000.00 for the
same purpose (pp. 24-25, tsn, Id. ). 2
On March 17, 1986, the trial court rendered the appealed judgment, the
dispositive portion whereof reads as follows:
10

or aggravating circumstances when the law prescribes a single indivisible

penalty in relation to Art. 48, he is hereby sentenced to death, to
indemnify the heirs of Khingsley Paul Koh in the sum of P30,000,
complainant spouses Arnold and Lina Amparado in the sum of Twenty
Thousand Pesos (P20,000.00), without subsidiary imprisonment in case
of insolvency, and to pay the costs.
It appears from the evidence that the deceased Khingsley Paul Koh and
defendant's wife had illicit relationship while he was away in Manila; that
the accused had been deceived, betrayed, disgraced and ruined by his
wife's infidelity which disturbed his reasoning faculties and deprived him
of the capacity to reflect upon his acts. Considering all these
circumstances this court believes the accused Francisco Abarca is
deserving of executive clemency, not of full pardon but of a substantial if
not a radical reduction or commutation of his death sentence.
Let a copy of this decision be furnished her Excellency, the President of
the Philippines, thru the Ministry of Justice, Manila.
SO ORDERED. 3
xxx xxx xxx
The accused-appellant assigns the following errors committed by the
court a quo:
I.
IN CONVICTING THE ACCUSED FOR THE CRIME AS CHARGED
INSTEAD OF ENTERING A JUDGMENT OF CONVICTION UNDER
ARTICLE 247 OF THE REVISED PENAL CODE;
II.

xxx xxx xxx

IN FINDING THAT THE KILLING WAS AMENDED BY THE QUALIFYING

CIRCUMSTANCE OF TREACHERY. 4

WHEREFORE, finding the accused, Francisco Abarca guilty beyond

reasonable doubt of the complex crime of murder with double frustrated
murder as charged in the amended information, and pursuant to Art. 63 of
the Revised Penal Code which does not consider the effect of mitigating

The Solicitor General recommends that we apply Article 247 of the

Revised Penal Code defining death inflicted under exceptional
circumstances, complexed with double frustrated murder. Article 247
reads in full:

CRIM2

ART. 247. Death or physical injuries inflicted under exceptional

circumstances. Any legally married person who, having surprised his
spouse in the act of committing sexual intercourse with another person,
shall kill any of them or both of them in the act or immediately thereafter,
or shall inflict upon them any serious physical injury, shall suffer the
penalty of destierro.
If he shall inflict upon them physical injuries of any other kind, he shall be
exempt from punishment.
These rules shall be applicable, under the same circumstances, to
parents with respect to their daughters under eighteen years of age, and
their seducers, while the daughters are living with their parents.
Any person who shall promote or facilitate prostitution of his wife or
daughter, or shall otherwise have consented to the infidelity of the other
spouse shall not be entitled to the benefits of this article.
We agree with the Solicitor General that the aforequoted provision applies
in the instant case. There is no question that the accused surprised his
wife and her paramour, the victim in this case, in the act of illicit
copulation, as a result of which, he went out to kill the deceased in a fit of
passionate outburst. Article 247 prescribes the following elements: (1)
that a legally married person surprises his spouse in the act of committing
sexual intercourse with another person; and (2) that he kills any of them
or both of them in the act or immediately thereafter. These elements are
present in this case. The trial court, in convicting the accused-appellant of
murder, therefore erred.
Though quite a length of time, about one hour, had passed between the
time the accused-appellant discovered his wife having sexual intercourse
with the victim and the time the latter was actually shot, the shooting must
be understood to be the continuation of the pursuit of the victim by the
accused-appellant. The Revised Penal Code, in requiring that the
accused "shall kill any of them or both of them . . . immediately" after
11
surprising his spouse in the act of intercourse, does not say that he
should commit the killing instantly thereafter. It only requires that the
death caused be the proximate result of the outrage overwhelming the
accused after chancing upon his spouse in the basest act of infidelity. But
the killing should have been actually motivated by the same blind
impulse, and must not have been influenced by external factors. The
killing must be the direct by-product of the accused's rage.
CRIM2

It must be stressed furthermore that Article 247, supra, does not define an
offense. 5 In People v. Araque, 6 we said:
xxx xxx xxx
As may readily be seen from its provisions and its place in the Code, the
above-quoted article, far from defining a felony, merely provides or grants
a privilege or benefit amounting practically to an exemption from an
adequate punishment to a legally married person or parent who shall
surprise his spouse or daughter in the act of committing sexual
intercourse with another, and shall kill any or both of them in the act or
immediately thereafter, or shall inflict upon them any serious physical
injury. Thus, in case of death or serious physical injuries, considering the
enormous provocation and his righteous indignation, the accused who
would otherwise be criminally liable for the crime of homicide, parricide,
murder, or serious physical injury, as the case may be is punished only
with destierro. This penalty is mere banishment and, as held in a case, is
intended more for the protection of the accused than a punishment.
(People vs. Coricor, 79 Phil., 672.) And where physical injuries other than
serious are inflicted, the offender is exempted from punishment. In effect,
therefore, Article 247, or the exceptional circumstances mentioned
therein, amount to an exempting circumstance, for even where death or
serious physical injuries is inflicted, the penalty is so greatly lowered as to
result to no punishment at all. A different interpretation, i.e., that it defines
and penalizes a distinct crime, would make the exceptional circumstances
which practically exempt the accused from criminal liability integral
elements of the offense, and thereby compel the prosecuting officer to
plead, and, incidentally, admit them, in the information. Such an
interpretation would be illogical if not absurd, since a mitigating and much
less an exempting circumstance cannot be an integral element of the
crime charged. Only "acts or omissons . . . constituting the offense"
should be pleaded in a complaint or information, and a circumstance
which mitigates criminal liability or exempts the accused therefrom, not
being an essential element of the offense charged-but a matter of
defense that must be proved to the satisfaction of the court-need not be
pleaded. (Sec. 5, Rule 106, Rules of Court; U.S. vs. Campo, 23 Phil.,
368.)
That the article in question defines no crime is made more manifest when
we consider that its counterpart in the old Penal Code (Article 423) was
found under the General Provisions (Chapter VIII) of Title VIII covering
crimes against persons. There can, we think, hardly be any dispute that

as part of the general provisions, it could not have possibly provided for a
distinct and separate crime.
xxx xxx xxx
We, therefore, conclude that Article 247 of the Revised Penal Code does
not define and provide for a specific crime, but grants a privilege or
benefit to the accused for the killing of another or the infliction of serious
physical injuries under the circumstances therein mentioned. ... 7
xxx xxx xxx
Punishment, consequently, is not inflicted upon the accused. He is
banished, but that is intended for his protection. 8
It shall likewise be noted that inflicting death under exceptional
circumstances, not being a punishable act, cannot be qualified by either
aggravating or mitigating or other qualifying circumstances, We cannot
accordingly appreciate treachery in this case.
The next question refers to the liability of the accused-appellant for the
physical injuries suffered by Lina Amparado and Arnold Amparado who
were caught in the crossfire as the accused-appellant shot the victim. The
Solicitor General recommends a finding of double frustrated murder
against the accused-appellant, and being the more severe offense,
proposes the imposition of reclusion temporal in its maximum period
pursuant to Article 48 of the Revised Penal Code. This is where we
disagree. The accused-appellant did not have the intent to kill the
Amparado couple. Although as a rule, one committing an offense is liable
for all the consequences of his act, that rule presupposes that the act
done amounts to a felony. 9
But the case at bar requires distinctions. Here, the accused-appellant was
not committing murder when he discharged his rifle upon the deceased.
Inflicting death under exceptional circumstances is not murder.
12 We cannot
therefore hold the appellant liable for frustrated murder for the injuries
suffered by the Amparados.
This does not mean, however, that the accused-appellant is totally free
from any responsibility. Granting the fact that he was not performing an
illegal act when he fired shots at the victim, he cannot be said to be
CRIM2

entirely without fault. While it appears that before firing at the deceased,
he uttered warning words ("an waray labot kagawas,") that is not enough
a precaution to absolve him for the injuries sustained by the Amparados.
We nonetheless find negligence on his part. Accordingly, we hold him
liable under the first part, second paragraph, of Article 365, that is, less
serious physical injuries through simple imprudence or negligence. (The
records show that Arnold Amparado was incapacitated for one and onehalf months; there is no showing, with respect to Lina Amparado, as to
the extent of her injuries. We presume that she was placed in
confinement for only ten to fourteen days based on the medical certificate
estimating her recovery period.)
For the separate injuries suffered by the Amparado spouses, we therefore
impose upon the accused-appellant arresto mayor (in its medium and
maximum periods) in its maximum period, arresto to being the graver
penalty (than destierro).
WHEREFORE, the decision appealed from is hereby MODIFIED. The
accused-appellant is sentenced to four months and 21 days to six months
of arresto mayor. The period within which he has been in confinement
shall be credited in the service of these penalties. He is furthermore
ordered to indemnify Arnold and Lina Amparado in the sum of P16,000.00
as and for hospitalization expense and the sum of P1,500.00 as and for
Arnold Amparado's loss of earning capacity. No special pronouncement
as to costs.
IT IS SO ORDERED.
Yap (Chairman), Melencio-Herrera, Paras, and Padilla JJ., concur.

Article 247 prescribes the following elements: (1) that a legally married
person surprises his spouse in the act of committing sexual intercourse
with another person; and (2) that he kills any of them or both of them in
the act or immediately thereafter. These elements are present in this
case.
Even though one hour had already lapsed from the time Abarca caught
his wife with Koh and the time he killed Koh, the killing was still the direct
by-product of Abarcas rage. Therefore, Abarca is not liable for the death
of Koh.
People of the Philippines vs Francisco Abarca
153 SCRA 742 Criminal Law Crimes Against Persons Article 247
Death Inflicted Under Exceptional Circumstances
One day in 1984, Francisco Abarca, through a peephole, caught his wife
having sexual intercourse with one Khingsley Paul Koh inside the Abarca
residence. The two also caught Abarca looking at them and so Koh
grabbed his pistol and thereafter Abarca fled. One hour later, Abarca,
armed with an armalite, went to the gambling place where Koh usually
stays and then and there shot Koh multiple times. Koh died
instantaneously. However, two more persons were shot in the adjacent
room. These two other persons survived due to timely medical
intervention.
Eventually after trial, Abarca was convicted of the complex crime
of murder with frustrated double murder.

However, Abarca is still liable for the injuries he caused to the two other
persons he shot in the adjacent room but his liability shall not be for
frustrated murder. In the first place, Abarca has no intent to kill the other
two persons injured. He was not also committing a crime when he was
firing his gun at Koh it being under Art. 247. Abarca was however
negligent because he did not exercise all precaution to make sure no one
else will be hurt. As such, he shall be liable for less serious physical
injuries through simple negligence for the injuries suffered by the two
other persons who were in the adjacent room when the incident
happened.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO

ABARCA, accused-appellant,

ISSUE: Whether or not the judgment of conviction is correct.

G.R. No. 74433 September 14, 1987

HELD: No. Abarca is entitled to the provisions of Article 247 of the

Revised Penal Code which provides:

153 SCRA 735

Any legally married person who, having surprised his

spouse in the act of committing sexual intercourse13
with
another person, shall kill any of them or both of them in
the act or immediately thereafter, or shall inflict upon
them any serious physical injury, shall suffer the penalty
of destierro.

CRIM2

Legal Issue
Shall the accused suffer the penalty of arresto mayor subject by his
criminal liability?
Legal Facts

That on or about 15th day of July 1984 in the city of Tacloban Leyte
Philippines, the accused Francisco Abarca went to the bus station and
travel to Dolores Eastern Samar to fetch his daughter in the morning.
Unfortunately, the trip was delayed at 2 pm because of his failure to catch
the trip plus the engine trouble which causes him to proceed at his
fathers house, and then later went home. When he reaches home the
accused caught his wife in the act of sexual intercourse with Khingsley
Koh in the meantime his wife and Koh notice him, that makes her wife
push her paramour and got his revolver. Abarca peeping above the builtin cabinet in their room jumped and ran away to look for a firearm at the
PC soldiers house to where he got the M-16 rifle. The accused lost his
wife and Koh in vicinity at his house and immediately proceeded to a
mahjong house where he caught the victim aimed and shoot Koh with
several bullets on his different parts of his body causing Mr. Khingsley
Kohs instantaneous death. By that time, Arnold and Lina Amparado had
inflicted multiple wounds due to stray bullets causing Mr. Amparados one
and one-half month loss of working capacity including his serious
hospitalization and the latters wife who had slighter physical injuries from
the incident. The RTC hereby sentenced Abarca to death for Murder with
double Frustrated Murder and must indemnify the Amparado Spouses
and Heirs of Kho.
RULING: The Supreme Court modified the appealed decision of destierro
to arresto mayor from the lower court sentencing four months and 21
days to six months of arresto mayor indemnifying Amparado spouses for
expenses and damages.
The accused-appellant did not have the intent to kill the Amparado
couple. Although as a rule, one committing an offense is liable for all the
consequences of his act, the rule presupposes that the act done amounts
to a felony. The accused-appellant is totally free from any responsibility
performing an illegal act when he fired shots at the victim but he cannot
be entirely without fault. It appears that before firing at the deceased, he
uttered warning words which is not enough of a precaution to absolve him
for the injuries sustained by the Amparados. The acts of execution
which
14
should have produced the crimes of murders as a consequence,
nevertheless did not produce it by reason of causes independent of his
will; nonetheless, the Court finds negligence on his part. He is liable
under the first part, second paragraph, of Article 365 that is less serious
physical injuries through simple imprudence or negligence. For the
separate injuries suffered by the Amparado spouses impose upon the
CRIM2

accused-appellant arresto mayor in its medium and maximum period to

being the graver penalty.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 86941. March 3, 1993.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TEODORO
BASAY @ "DORO" and JAIME RAMIREZ @ "NEBOY", accused.
JAIME RAMIREZ @ "NEBOY", accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
SYLLABUS

15

CRIM2

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO REMAIN SILENT AND TO

COUNSEL AND TO BE INFORMED OF SUCH RIGHTS; WAIVER THEREOF; CUSTODIAL
INVESTIGATION; DEFINED; PROCEDURAL SAFEGUARDS TO BE EMPLOYED. ". . .
" . . . The landmark opinion of Miranda vs. Arizona, decided in 1966, as noted above, the
source of this constitutional provision, emphasized that statements made during the period
of custodial interrogation to be admissible require a clear intelligent waiver of constitutional
rights, the suspect being warned prior to questioning that he has a right to remain silent, that
any utterance may be used against him, and that he has the right to the presence of a
counsel, either retained or appointed. In the language of Chief Justice Warren: 'Our holding
will be spelled out with some specificity in the pages which follow, but briefly stated, it is this:
the prosecution may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination. By custodial
interrogation, we mean questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any significant
way. As for the procedural safeguards to be employed, unless other fully effective means
are devised to inform accused persons of their right of silence and to assure a continuous
opportunity to exercise it, the following measures are required. Prior to any questioning, the
person must be warned that he has a right to remain silent, that any statement he does not
make (sic) may be used as evidence against him, and that he has a right to the presence of
an attorney, either retained or appointed. The defendant may waive effectuation of those
rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he
indicates in any manner and at any stage of the process that he wishes to consult with an
attorney before speaking, there can be no questioning. Likewise, if the individual is alone
and indicates in any manner that he does not wish to be interrogated, the police may not
question him. The mere fact that he may have answered some questions or volunteered

some statements on his own does not deprive him of the right to refrain from answering any
further inquiries until he has consulted with an attorney and thereafter consents to be
questioned.'"
2. ID.; ID.; ID.; PROCEDURE TO BE FOLLOWED BY PEACE OFFICERS WHEN MAKING
ARREST AND WHEN CONDUCTING CUSTODIAL INVESTIGATION. In Morales vs.
Enrile, in the light of the said Section 20, prescribed the procedure to be followed by peace
officers when making an arrest and when conducting a custodial investigation. Thus: "7. At
the time a person is arrested, it shall be the duty of the arresting officer to inform him of the
reason for the arrest and he must be shown the warrant of arrest, if any. He shall be
informed of his constitutional rights to remain silent and to counsel, and that any statement
he might make could be used against him. The person arrested shall have the right to
communicate with his lawyer, a relative, or anyone he chooses by the most expedient
means by telephone if possible or by letter or messenger. It shall be the responsibility
of the arresting officer to see to it that this is accomplished. No custodial investigation shall
be conducted unless it be in the presence of counsel engaged by the reason arrested, by
any person on his behalf, or appointed by the court upon petition either of the detainee
himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall
not be valid unless made with the assistance of counsel. Any statement obtained in violation
of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part,
shall be inadmissible in evidence."
3. ID.; ID.; ID.; PHRASE "RIGHT TO BE INFORMED OF SUCH RIGHTS" EXPLAINED;
CASE AT BAR. In People vs. Nicandro, this Court declared that one's right to be informed
of the right to remain silent and to counsel contemplates "the transmission of meaningful
information rather than just the ceremonial and perfunctory recitation of an abstract
constitutional principle." Thus, is not enough for the interrogator to merely repeat to the
person under investigation the provisions of section 20, Article IV of the 1973 Constitution,
now Section 12, Article III of the 1987 Constitution; the former must also explain the effects
of such provision in practical terms e.g., what the person under interrogation may or may
not do - and in a language the subject fairly understands. The right "to be informed" carries
with it a correlative obligation on the part of the police investigator to explain, and
contemplates effective communication which results in the subject's understanding of what
is conveyed. Since it is comprehension that is sought to be attained, the degree of
explanation required will necessarily vary and depend on the education, intelligence and
other relevant personal circumstances of the person undergoing investigation. In further
ensuring the right to counsel, it is not enough that the subject is informed of such right; he
should also be asked if he wants to avail of the same and should be told that he could ask
for counsel if he so desired or that one could be provided him at his request. If he decides
not to retain counsel of his choice or avail of one to be provided for him and, therefore,
chooses to waive his right to counsel, such waiver, to be valid and effective, must still be
made with the assistance of counsel. That counsel must be a lawyer. . . . the kind of "advice"
proffered by the unidentified interrogator belongs to that stereotyped class a long
question by the investigator informing the appellant of his right followed by a monosyllabic
16
answer which this Court has condemned for being unsatisfactory. The investigator
gave
his advice perfunctorily or in a pro-forma manner, obviously to pay mere lip service to the
prescribed norms. As this Court observed in People vs. Newman, this stereotyped "advice":
" . . . has assumed the nature of a 'legal form' or model. Its tired, punctilious, fixed and
artificially stately style does not create an impression of voluntariness or even understanding
on the part of the accused. The showing of a spontaneous, free and unconstrained giving up
of a right is missing."

CRIM2

4. ID.; ID.; ID.; PRIMARY OF RIGHT TO COUNSEL STRESSED IN 1987 CONSTITUTION.

"SEC 12(1). Any person under investigation for the commission of an offense shall have
the right to be informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be waived except in writing and in the
presence of counsel. (3) Any confession or admission obtained in violation of this or Section
17 hereof shall be inadmissible in evidence against him." The adjectives competent and
independent, which qualify the kind of counsel an accused is entitled to during investigation,
were not found in the previous Constitution. Their incorporation in the 1987 Constitution was
thus meant to stress the primacy of this right to counsel.
5. REMEDIAL LAW; EVIDENCE; COMPETENCY OF WITNESSES; IN CASE AT BAR,
CONDITION OF WITNESS AT TIME SHE SUPPOSEDLY GAVE STATEMENT RENDERED
EFFECTIVE COMMUNICATION IMPOSSIBLE. We harbor very serious doubts about the
alleged statement given by Bombie Toting to Sgt. Tabanao and Jaime Saguban identifying
the appellant and Teodoro Basay as the perpetrators of the heinous crime. In the first place,
the trial court itself ruled that Bombie was not a competent witness. We agree with such a
conclusion, not necessarily because she was only six (6) years old, but because her
condition at the time she supposedly gave her statement made it impossible for her to have
communicated effectively. She suffered the following injuries: "Infected hack wound from the
right anterior lumbar area transecting mid abdomen, inguinal area left to the medial thigh left
through and through, with necrotic transected muscle." She was taken from the crime scene
only on 6 March 1986, or two (2) days after the commission of the crime, and died in the
hospital on 7 March 1986. The doctor who first attended to her when she arrived at the
Provincial Hospital, a certain Dr. Sy, was not presented as a witness. On the other hand, the
doctor who attended to her before she died, Dr. Edgar Cantalao, testified that when he last
saw Bombie alive, she could not talk.
6. ID.; ID.; CIRCUMSTANTIAL EVIDENCE; WHEN SUFFICIENT FOR CONVICTION; CASE
AT BAR. While it may be true that the appellant ran away when he first saw the armed
law officers, he did so merely out of fear of them. This act should not be considered as the
flight which is indicative of guilt. The appellant had not left his house or barangay since 4
March 1986, the day the crime was committed. If he were indeed one of the perpetrators
and had the intention to flee in order to avoid arrest, he should have vanished sooner and
should not have remained in his house. Besides, if indeed his running away could be
construed as flight, it could only be considered as circumstantial evidence. Such evidence
would still be insufficient for a conviction. Under Section 4, Rule 133 of the Rules of Court, in
order that circumstantial evidence may sustain a conviction, there must, inter alia, be more
than one (1) circumstance. No other circumstance was established in this case.

DECISION
DAVIDE, JR., J:
Teodoro Basay and Jaime Ramirez were charged with Multiple Murder
with Arson in a criminal complaint 1 filed on 24 March 1986 with the
Municipal Circuit Trial Court (MCTC) of Pamplona-Amlan-San Jose in the
Province of Negros Oriental for having allegedly killed the spouses
Zosimo and Beatrice Toting and their six-year old daughter, Bombie, and

for having burned the said spouses' house to conceal the crime; as a
consequence of such fire, the spouses' other daughter, Manolita, was
burned to death.
On 31 March 1986, the MCTC issued a warrant for the arrest of the
accused; no bail was recommended. 2 It appears, however, that the
accused had earlier been apprehended on 6 March 1986 by elements of
the Philippine Constabulary (PC) and Civilian Home Defense Forces
(CHDF) and were detained at the Pamplona municipal jail.
On 15 April 1986, the accused filed a Waiver of Preliminary Investigation
3 which prompted the MCTC, the following day, to order the clerk of court
to forward the records of the case to the Office of the Provincial Fiscal. 4
Meanwhile, on 14 August 1986, the Integrated National Police (INP)
Station Commander of Pamplona amended the complaint by including
therein the name of another victim, Manolo Toting, who suffered second
and third degree burns because of the burning of the house. 5
On 11 December 1986, the Second Assistant Provincial Fiscal of Negros
Oriental filed with the Regional Trial Court (RTC) of Negros Oriental an
Information for Multiple Murder and Frustrated Murder with Arson 6
against the accused. The accusatory portion of the Information reads:
xxx xxx xxx
"That on or about March 4, 1986, at sitio Tigbao, Barangay Banawe,
Pamplona, Negros Oriental, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and
confederating together and acting in common accord, with intent to kill,
evident premeditation and treachery, did then and there willfully,
unlawfully and feloniously assault, attack, stab and hack with the use of a
bolo and sickle, with which the accused were then respectively armed
and provided, one ZOSIMO TOTING, SR., thereby inflicting upon the
victim hack wound, neck posterior area 5" long, 3" depth, hack
17 wounds,
left upper back 3" long, 4" depth, stab wound, thru and thru, lower
abdomen, 4" width , exit lower back 1" width, 90% 2nd and 3rd degree
burns of the body, and which wounds caused the death of said Zosimo
Toting, Sr., immediately thereafter; one BEATRICE TOTING, thereby
inflicting upon the victim hacking (sic) wound, neck posterior area, 5"
long, 6" depth, incised wound, epigastric area 11" long, 4" depth,
CRIM2

exposing vital organs, lower abdomen, 11" long, 4" depth exposing
intestines, 90% 2nd and 3rd degree burns of the body, and which wounds
caused the death of said Beatrice Toting immediately thereafter; one
BOMBIE TOTING, thereby inflicting upon the victim infected hack wound
from the right anterior lumbar area transecting mid-abdomen, inguial area
left to the medial thigh left, through and through, with necrotic transected
muscle, and which wounds caused the death of said Bombie Toting
shortly thereafter; and in order to cover-up the heinous crime committed,
the above-named accused, conspiring and confederating together and
acting in common accord, did then and there willfully, unlawfully and
feloniously set to fire the house of the aforesaid victim (sic) spouses
Zosimo Toting, Sr. and Beatrice Toting, thereby razing it to the ground,
and as a consequence thereto MANOLITA TOTING suffered Third degree
burns, all burn (sic) body, head, extremities or 100% burns, and which
wounds caused the death of said Manolita Toting immediately thereafter
and also causing injuries to MANOLO TOTING, to wit: 20% 2nd and 3rd
degree burns on the upper extremity bilateral, posterior shoulder, left and
back, and which wounds would have caused the death of victim Manolo
Toting, thus performing all the overt acts of execution which would have
produced the crime of Murder as a consequence, but nevertheless did not
produce it by reason of causes independent of the will of the perpetrator,
that is, the timely medical assistance extended to said Manolo Toting
which prevented his death.
Contrary to Article 248 in relation to Articles 6, 48 and 50 of the Revised
Penal Code."
The case was docketed as Criminal Case No. 7411 and was raffled off to
Branch 40 of the said court.
After both accused entered a not guilty plea during their arraignment on
23 February 1987, 7 trial on the merits ensued. The prosecution
presented Dr. Edgardo Barredo, MCTC Judge Teopisto Calumpang,
Jaime Saguban, Sgt. Reynaldo Tabanao, Dr. Edgar Gantalao and Dr.
Lucio Togonon as its witnesses for the evidence in chief, and Judge
Calumpang and Elpedio Catacutan in rebuttal; for its surrebuttal, Pfc.
Urbano Cavallida was presented. On the other hand, the accused
testified for the defense together with witnesses Joven Lopez and
Maxima Basay. Accused Ramirez took the witness stand again in
surrebuttal.

On 15 December 1988, the trial court promulgated its Decision, dated 14

December 1988, acquitting accused Teodoro Basay but convicting
accused Jaime Ramirez. 8 Its dispositive portion reads:

(2) Beatrice Toting, hack wound, neck posterior are . . . incised wound,
epigastric area . . . exposing vital organs, lower abdomen . . . exist (sic)
lower back, 90% second and third degree burns of the body;

WHEREFORE, the prosecution having failed to prove the guilt of the

accused beyond reasonable doubt for the crime of Multiple Murder,
Frustrated Murder With Arson against the accused Teodoro Basay, this
Court hereby finds said accused Teodoro Basay NOT GUILTY and orders
his immediate release from detention.

(3) Bombie Toting, inflicted hack wound from the anterior lumbar area
transecting mid-abdomen, inguial area left to the medial thigh left, through
and through, with necrotic transected muscle;

The prosecution has proven the guilt of the accused beyond reasonable
doubt for the crime of Multiple Murder, Frustrated Murder With Arson
against accused Jaime Ramirez (sic), this Court finds him GUILTY to (sic)
said crime and hereby sentences him to suffer the penalty of life
imprisonment and to indemnify the heirs of the victims in the sum of Thirty
Thousand (P30,000.00) Pesos as his civil indemnity.
SO ORDERED." 9
The evidence for the prosecution upon which the decision is based is
summarized in detail in the trial court's decision and is further condensed
in the Appellee's Brief 10 as follows:
"On March 6, 1986, Zosimo Toting Jr. reported to the Nabalabag
Philippine Constabulary Patrol at Pamplona, Negros Oriental, that his
parents had been killed and their house at Tigbaw, [Pamplona] Negros
Oriental, burned. This prompted PC Sgt. Reynaldo Tabanao, Sgt.
Nestorio Rubia, Jaime Saguban and three members of the Civilian Home
Defense Force to go to Tigbaw, [Pamplona] Negros Oriental, to
investigate the incident (TSN, January 20, 1988, p. 5).
Upon arriving at Tigbaw, they found a burned house and several dead
bodies. The trial court identified the four (4) fatalities and their injuries as
follows:
18

(1) Zosimo Toting, Sr., with hack wound neck, posterior area, . . . hack
wound, left upper back . . . stab wound, through and through, lower
abdomen, . . . 90% second and third degree burns of the body;

CRIM2

(4) Manolita Toting, third degree burns, all burned body, head, extrimities
(sic) or 100% burns;
Manolo Toting did not die but suffered 20% second and third degree
burns on the upper extremity bilateral, posterior shoulder, left and back
(Records, p. 213).
Zosimo Toting, Sr, Beatrice Toting, Manolita Toting and Manolo Toting
were found near the vicinity of the burned house. About forty (40) meters
away, the investigating officers found six year old Bombie Toting suffering
from serious hack wounds (TSN, January 20, 1988, p. 18). The young girl
said that she had been in this condition for one and a half days already.
Bombie Toting related to Sgt. Tabanao that on March 4, 1986 at 7:00
o'clock in the evening, appellant and Teodoro Basay killed her parents
and burned their house (TSN, January 20, 1988, p. 18, Records, p. 9).
On the same day the investigating officers went to the appellant's house.
They saw appellant fixing the roof of his house and when appellant saw
them, he went down and tried to ran (sic) away (TSN, January, 20, 1988,
p. 22). Appellant was turned over to the Pamplona Police Station (TSN,
January 20, 1988, p. 25).
Bombie Toting was brought to the hospital but due to the gravity of her
injuries she died on March 7, 1986 at 1:40 P.M. (Records, p. 12, Exhibit I).
Appellant was brought into the chamber of Judge Teopisto Calumpang,
the municipal circuit trial judge of Pamplona, Amlan, and San Jose, on
March 14, 1986. He was accompanied by Mr. Elpedio Catacutan who
acted as appellant's counsel (TSN, June 6, 1988, p. 6). They brought with
them an affidavit previously typed by a police investigating officer. The
Judge then made the court interpreter translate the allegations of the
sworn statement into the local dialect for appellant (TSN, June 6, 1988).

Thereafter, in the presence of the Judge, appellant and Mr. Catacutan

signed the affidavit. (TSN, January 20, 1988, p. 14). Appellant and
counsel also signed the vernacular translation of Exhibit F (Records, p .
12)."
Upon the other hand, the evidence for accused Jaime Ramirez is
substantially summarized in the Appellant's Brief 11 in this wise:
"Evidence for the Defense:
xxx xxx xxx
Accused Jaime Ramirez testified that he was cooking food for the pig
when the armed uniformed men arrested him on March 5, 1986 and was
brought (sic) to the Nabalabag PC Detachment where he was maltreated.
Later, he was brought to Municipal (sic) Jail where he stayed for one
month and 23 days.
Queried on the 'Joint Waiver', this witness said he did not read it because
he did not know how to read. When it was read to him, he did not
understand it because it was read in English. Elpedio Catacutan was not
his lawyer and he did not know him (TSN, March 5, pp. 3, 5-6, 9-10).
On cross-examination, this witness said he reached Grade II and knows
how to write his name. He was alone at the time he was arrested. He was
arrested ahead of Teodoro Basay and those who arrested him where (sic)
not the same persons who arrested Teodoro Basay.
He first saw Elpedio Catacutan in the Pamplona Municipal Hall when
Elpedio was going upstairs. When he signed Exhibit "F", Catacutan was
in front of him. They did not converse with each others (sic). He did not
engage Catacutan to assist him, nor solicit his services. He does know
(sic) any one who solicited Catacutan's services for him. He did not ask
the Judge (Calumpang) that a lawyer be designated to help him in
connection with the affidavit. The Pamplona Judge did not19
offer to give
him a lawyer to assist him in the execution of the affidavit (TSN, October
4, 1988, p.4)." 12
Jaime Ramirez is a farmer and at the time he testified on 8 March 1988,
was nineteen (19) years old and single. 13 The prosecution did not rebut
CRIM2

his claim that he had only finished Grade II and that he does not know
how to read. He, however, understands the Cebuano dialect. 14
The Exhibit "F" referred to above is the Sworn Statement, 15 in English,
of accused Jaime Ramirez taken in the Pamplona police station on 7
March 1986 and subscribed and sworn to only on 14 March 1986 before
Judge Teopisto L. Calumpang of the MCTC of Pamplona-Amlan-San
Jose. The trial court described this document as the Extra-Judicial
Confession 16 of Ramirez.
The Joint Waiver (Exhibit "G") mentioned the testimony of Jaime Ramirez
is in the Cebuano dialect and was signed by accused Basay and Ramirez
on 7 March 1986. Both accused state therein that for their safety and
security, they voluntarily decided to be detained and that they killed the
spouses Zosimo Toting and Betty Toting and thereafter burned the
spouses' house; this fire resulted in the death of one and the
hospitalization of two Toting children. 17
The trial court disregarded this Joint Waiver insofar as it tended to
incriminate the accused "because when they signed said Joint Waiver,
they were not represented by counsel;" thus, the same was prepared in
violation of "Section 12, Article 3 of the Bill of Rights of the 1987
Constitution." 18 There being no other evidence against Basay, the trial
court acquitted him. However, it admitted in evidence the so-called extrajudicial confession of Jaime Ramirez, considered as part of the res gestae
the alleged statement given by Bombie Toting to PC Sgt. Reynaldo
Tabanao and Jaime Saguban identifying Ramirez and Basay as the
perpetrators of the crime and considered as flight which is indicative of
guilt Ramirez's running away when he saw the law enforcers on 6
March 1986. It further ruled that the latter signed the extra-judicial
confession voluntarily and in the presence of Elpedio Catacutan, the
COMELEC registrar of Pamplona "a barister (sic) who appeared as
counsel for accused Jaime Ramirez;" hence it is admissible against the
latter. 19
On the other hand, the trial court did not admit the statement of Bombie
Toting as a dying declaration but merely as part of the res gestae
because the prosecution failed to prove two (2) of the requisites for the
admissibility of a dying declaration, viz., that the statement was given
under consciousness of an impending death and that Bombie Toting is a
competent witness. 20

Accused Jaime Ramirez neither filed a notice of appeal nor orally

manifested his intention to appeal. However, on 31 January 1983, the trial
court handed down an order directing the clerk of court to transmit to this
Court the entire records of the case because in view of the penalty
imposed life imprisonment "such Decision is subject for automatic
review by the Supreme Court." 21 This of course is erroneous as,
pursuant to Section 10, Rule 122 of the Rules of Court, the automatic
review of a criminal case is applicable only where the penalty of death
has been imposed which, nevertheless, is now banned under Section
19(1), Article III of the 1987 Constitution.
In the interest of justice, however, We accepted the appeal in the
Resolution of 8 May 1989. 22
In his Appellant's Brief, 23 Jaime Ramirez, hereinafter referred to as the
Appellant, imputes upon the trial court the commission of this lone error:
"THE TRIAL COURT ERRED IN FINDING THE APPELLANT GUILTY AS
CHARGED ON THE BASIS OF EXHIBIT "F" (AFFIDAVIT) WHICH WAS
EXECUTED IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS AND
ON THE BASIS OF HEARSAY EVIDENCE AND ON THE
PRESUMPTION OF GUILT."

signing such confession, he was accompanied by a certain Mr.

Catacutan, a non-lawyer, inside the chambers of Judge Calumpang
"an environment . . . other than vindictive and oppressive which the courts
desired to guard against in Miranda vs. Arizona, 384 US 436." 28 As to
Bombie's statement, it is claimed that the same should be considered as
a dying declaration.
We find merit in the appeal.
1. Jaime Ramirez's sworn statement or extra-judicial confession was
prepared on 7 March 1986 at about 11:00 o'clock in the morning in the
Pamplona police station. Pertinent portions thereof read as follows:
"PRELIMINARY MR. JAIME RAMIREZ, you are now under
investigation in connection with the death of the couple and the burning of
their house, ZOSIMO TOTING and BEATRICE TOTING alias BETTY
TOTING on March 4, 1986 at about 7:00 o'clock in the evening at sitio
Togbao, Barangay Banawe, Pamplona, Negros Oriental. You are also
informed that under our new constitution you have the right to remain
silent and not to answer questions which will incriminate you and to have
a counsel of your own choice to assist you in this investigation, do (sic)
you aware of this?

Appellant contends that his so-called extra-judicial confession, Exhibit "F",

was executed in blatant disregard of his constitutional right to counsel and
to remain silent during custodial investigation. It is therefore inadmissible
in evidence. 24 Without the said confession, the only piece of evidence
which seems to point to his guilt is the alleged statement of Bombie
Toting. Appellant asserts, however, that the said statement was "very
doubtful and . . . no reasonable mind would conclude that she was
candidly truthful;" hence, her statement, besides being hearsay as it
came from a person who was not presented in court to testify, should not
have been taken at "face value against any of the accused, much less
against the appellant." 25 Besides, the appellant asserts that the same
statement was not used against his co-accused Basay who was, unlike
him, acquitted by the trial court. As to his having run away20
upon seeing
the armed law enforcers, appellant claims that he did so out of fear as the
latter were armed. 26

ANSWER Yes.

On the other hand, it is maintained by the People, in the Appellee's Brief

27 submitted by the Office of the Solicitor General, that the appellant
executed the extra-judicial confession voluntarily and without duress; in

1. Question If so, please state your name, age and other personal
circumstances?

CRIM2

Q You are also informed that whatever statement you may offer in this
investigation it (sic) might be used as evidence in your favor or against
you in the future, do (sic) you aware of this this (sic)?
A Yes.
Q After you have informed (sic) of your rights are you willing to
proceed with this investigation of yours even if you have no counsel of
your own choice that will assist you in this investigation?
A Yes. I don't need any counsel in this investigation because I will just
tell the truth.

Answer Jaime Ramirez y Tano, 19 years old, single, Filipino, farmer

and a resident of sitio Palale, Barangay San Isidro, Pamplona, Negros
Oriental.

(Sgd.) TEOPISTO L. CALUMPANG

xxx xxx xxx

Mun Trial Circuit Judge" 29

11. Q What more can you say?

We do not hesitate to rule that this purported extra-judicial confession

belonging to appellant Jaime Ramirez and obtained during custodial
interrogation was taken in blatant disregard of his right to counsel, to
remain silent and to be informed of such rights, guaranteed by Section
20, Article IV of the 1973 Constitution the governing law at that time.
Said section reads:

A No more. I proved that my statement is correct I signed this 7 March

1986 (sic), at Pamplona, Negros Oriental.
(Sgd.) JAIME T. RAMIREZ

"SECTION 20. No person shall be compelled to be a witness against

himself. Any person under investigation for the commission of an offense
shall have the right to remain silent and to counsel, and to be informed of
such right. No force, violence, threat, intimidation, or any other means
which vitiates the free will shall be used against him. Any confession
obtained in violation of this section shall be inadmissible in evidence."

(TYP) JAIME T. RAMIREZ

Affiant
NOTE: ASSISTED BY:
(Sgd.) ELPEDIO B. CATACUTAN

The source of this provision is Miranda vs. Arizona, 30 in connection

therewith, this Court stated in People vs. Caguioa 31 that:

(TYP) ELPEDIO B. CATACUTAN

Counsel of the accused
SUBSCRIBED AND SWORN to before me this 14th day of March 1986,
at Pamplona, Negros Oriental, Philippines.
(Sgd.) TEOPISTO L. CALUMPANG
(TYP) TEOPISTO L. GALUMPANG
Mun Trial Circuit Judge

21

CERTIFICATION
I HEREBY CERTIFY that I have personally examined the affiant and that I
am satisfied that he voluntarily executed and understood his affidavit.
CRIM2

(TYP) TEOPISTO L. CALUMPANG

" . . . The landmark opinion of Miranda vs. Arizona, decided in 1966, as

noted above, the source of this constitutional provision, emphasized that
statements made during the period of custodial interrogation to be
admissible require a clear intelligent waiver of constitutional rights, the
suspect being warned prior to questioning that he has a right to remain
silent, that any utterance may be used against him, and that he has the
right to the presence of a counsel, either retained or appointed. In the
language of Chief Justice Warren: 'Our holding will be spelled out with
some specificity in the pages which follow, but briefly stated, it is this: the
prosecution may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination. By custodial interrogation, we mean
questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any
significant way. As for the procedural safeguards to be employed, unless
other fully effective means are devised to inform accused persons of their
right of silence and to assure a continuous opportunity to exercise it, the

following measures are required. Prior to any questioning, the person

must be warned that he has a right to remain silent, that any statement he
does not make (sic) may be used as evidence against him, and that he
has a right to the presence of an attorney, either retained or appointed.
The defendant may waive effectuation of those rights, provided the waiver
is made voluntarily, knowingly and intelligently. If, however, he indicates in
any manner and at any stage of the process that he wishes to consult
with an attorney before speaking, there can be no questioning. Likewise,
if the individual is alone and indicates in any manner that he does not
wish to be interrogated, the police may not question him. The mere fact
that he may have answered some questions or volunteered some
statements on his own does not deprive him of the right to refrain from
answering any further inquiries until he has consulted with an attorney
and thereafter consents to be questioned.'" (citations omitted).
Then, in Morales vs. Enrile, 32 in the light of the said Section 20,
prescribed the procedure to be followed by peace officers when making
an arrest and when conducting a custodial investigation. Thus:
"7. At the time a person is arrested, it shall be the duty of the arresting
officer to inform him of the reason for the arrest and he must be shown
the warrant of arrest, if any. He shall be informed of his constitutional
rights to remain silent and to counsel, and that any statement he might
make could be used against him. The person arrested shall have the right
to communicate with his lawyer, a relative, or anyone he chooses by the
most expedient means by telephone if possible or by letter or
messenger. It shall be the responsibility of the arresting officer to see to it
that this is accomplished. No custodial investigation shall be conducted
unless it be in the presence of counsel engaged by the reason arrested,
by any person on his behalf, or appointed by the court upon petition either
of the detainee himself or by anyone on his behalf. The right to counsel
may be waived but the waiver shall not be valid unless made with the
assistance of counsel. Any statement obtained in violation of the
procedure herein laid down, whether exculpatory or inculpatory, in whole
or in part, shall be inadmissible in evidence."
22

This was reiterated in People vs. Galit. 33

In People vs. Nicandro, 34 this Court declared that one's right to be
informed of the right to remain silent and to counsel contemplates "the
transmission of meaningful information rather than just the ceremonial
and perfunctory recitation of an abstract constitutional principle." Thus, is
CRIM2

not enough for the interrogator to merely repeat to the person under
investigation the provisions of section 20, Article IV of the 1973
Constitution, now Section 12, Article III of the 1987 Constitution; the
former must also explain the effects of such provision in practical terms
e.g., what the person under interrogation may or may not do - and in a
language the subject fairly understands. The right "to be informed" carries
with it a correlative obligation on the part of the police investigator to
explain, and contemplates effective communication which results in the
subject's understanding of what is conveyed. Since it is comprehension
that is sought to be attained, the degree of explanation required will
necessarily vary and depend on the education, intelligence and other
relevant personal circumstances of the person undergoing investigation.
In further ensuring the right to counsel, it is not enough that the subject is
informed of such right; he should also be asked if he wants to avail of the
same and should be told that he could ask for counsel if he so desired or
that one could be provided him at his request. 35 If he decides not to
retain counsel of his choice or avail of one to be provided for him and,
therefore, chooses to waive his right to counsel, such waiver, to be valid
and effective, must still be made with the assistance of counsel. 36 That
counsel must be a lawyer. 37
The foregoing pronouncements are now synthesized in paragraphs 1 and
3, Section 12, Article III of the 1987 Constitution, to wit:
"SECTION 12(1). Any person under investigation for the commission of
an offense shall have the right to be informed of his right to remain silent
and to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in
the presence of counsel.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this or Section 17
hereof shall be inadmissible in evidence against him."
The adjectives competent and independent, which qualify the kind of
counsel an accused is entitled to during investigation, were not found in
the previous Constitution. Their incorporation in the 1987 Constitution
was thus meant to stress the primacy of this right to counsel.

A close scrutiny of the questioned extra-judicial confession in the case at

bar reveals all possible violations of the appellant's right to remain silent,
to counsel and to be informed of such rights, and of the safeguards
prescribed by this Court for the holding of custodial interrogations.
(a) The interrogation was the conducted and the confession was written in
English a language the appellant, a farmer in a remote barangay of
Pamplona, cannot speak and does not understand; he only finished
Grade II. There is no evidence to show that the interrogator, who was not
even presented as a witness and remains unidentified, translated the
questions and the answers into a dialect known and fairly understood by
the appellant.
(b) Appellant was not told that he could retain a counsel of choice and
that if he cannot afford to do so, he could be provided with one.
(c) He did not sign any waiver of his right to remain silent and to counsel.
(d) He was not assisted by any counsel during the investigation. Instead,
a certain Elpedio Catacutan, who claimed to have appeared for him as a
"friend-counsel," 38 was present only at the time that appellant was
brought to the office of Judge Catacutan for the preparation of the jurat. It
was precisely for this reason that the following notations were inserted
above the jurat of the so-called extra-judicial confession:
"NOTE: ASSISTED BY:
(Sgd.) ELPEDIO B. CATACUTAN
(TYP) ELPEDIO B. CATACUTAN"
In reality, Catacutan signed not as counsel, but only as a witness. Thus:
"Q Do you recall having signed as a witness of an affidavit of one Jaime
(sic) T. Ramirez which affidavit is now marked as Exhibit "F"?23
A Yes.
Q Can you tell the court where did you sign that Exhibit "F"?
CRIM2

A I signed this affidavit in the office of the Municipal Judge of Pamplona."

39
Moreover, it is to be observed that the appellant does not even know the
said Elpedio Catacutan. 40
(e) Assuming arguendo that Elpedio Catacutan may have been
summoned to act as appellant's counsel, he was, nevertheless, not
present during the custodial interrogation which, by the way, was
conducted exactly a week before he appeared or more correctly, was
made to appear before Judge Calumpang. His presence before the
latter did not change the situation. As this Court stated in People vs.
Burgos, 41 the securing of counsel to help the accused when the latter
subscribed under oath to his statement at the Fiscal's Office was too late
and had no palliative effect; it did not cure the absence of counsel at the
time of the custodial investigation when the extra-judicial statement was
being taken.
(f) Furthermore, Elpedio Calumpang is not a lawyer; according to the trial
court, he is "a barister (sic)." In fact, he candidly admitted that he is not a
lawyer but that he obtained a law degree from the Siliman University in
1959. Unfortunately, however, he failed in three Bar Examinations. 42
(g) There is no showing that the so-called extra-judicial confession, which
is in English, was correctly explained and translated to the appellant by
Judge Calumpang. Although the latter claimed in his testimony on direct
examination that he translated the same in the local dialect to the
appellant before the latter affixed his signature thereto, 43 Elpedio
Catacutan categorically declared that it was the interpreter, one Pedro
Rodriguez, who translated it to the appellant. Thus:
"Q Who is the interpreter who made the translation?
A Pedro Rodriguez.
Q Were you there when the translation was made?
A Sure.
Q So it was not the Judge who made the translation, is that what you
mean?

A The translation was course (sic) through the interpreter." 44

(h) Finally, the kind of "advice" proffered by the unidentified interrogator
belongs to that stereotyped class a long question by the investigator
informing the appellant of his right followed by a monosyllabic answer
which this Court has condemned for being unsatisfactory. 45 The
investigator gave his advice perfunctorily or in a pro-forma manner,
obviously to pay mere lip service to the prescribed norms. As this Court
observed in People vs. Newman, 46 this stereotyped "advice":
" . . . has assumed the nature of a 'legal form' or model. Its tired,
punctilious, fixed and artificially stately style does not create an
impression of voluntariness or even understanding on the part of the
accused. The showing of a spontaneous, free and unconstrained giving
up of a right is missing."
Consequently, Exhibit "F", which is indisputably an uncounselled
confession or admission, is inadmissible in evidence. The trial court,
therefore, committed a fatal error in admitting it.
2. We harbor very serious doubts about the alleged statement given by
Bombie Toting to Sgt. Tabanao and Jaime Saguban identifying the
appellant and Teodoro Basay as the perpetrators of the heinous crime. In
the first place, the trial court itself ruled that Bombie was not a competent
witness. We agree with such a conclusion, not necessarily because she
was only six (6) years old, but because her condition at the time she
supposedly gave her statement made it impossible for her to have
communicated effectively. She suffered the following injuries:
"Infected hack wound from the right anterior lumbar area transecting mid
abdomen, inguinal area left to the medial thigh left through and through,
with necrotic transected muscle." 47
She was taken from the crime scene only on 6 March 1986, or two (2)
days after the commission of the crime, and died in the 24
hospital on 7
March 1986. The doctor who first attended to her when she arrived at the
Provincial Hospital, a certain Dr. Sy, was not presented as a witness. On
the other hand, the doctor who attended to her before she died, Dr. Edgar
Cantalao, testified that when he last saw Bombie alive, she could not talk.
48 It was this inability to talk which led the trial court to express its doubts
on the veracity of the latter's supposed statement:
CRIM2

" . . . Although persons of tender age are prone to tell the truth, however,
the Court must be cautious in appreciating said testimony where the
person had a serious wound and had not eaten for one day and one
night. There is no evidence to show that Bombie Toting told the doctor as
to who were the perpetrators of the crime; neither did she tell her own
brother, Zosimo Toting, Jr. that it was the accused, Teodoro Basay and
Jaime Ramirez who killed her parents and her brother and sisters and
burned their house. . . . The Court cannot understand why P.C. Sgt.
Tabano did not ask Bombie Toting questions concerning the commission
of the crime by the accused. Neither did the P.C. or (sic) the police take
any statement from her on her way to the hospital or at the hospital.
Surprisingly, Bombie Toting did not even tell her own brother, Zosimo
Toting, Jr. that it was the accused who committed the crime. Had the
statement of Bombie Toting been made to the doctor or to the barangay
captain or to any reputable member of the community where the incident
happened, the Court will have to put weight and consider her statement
as a dying declaration. Our experience has shown that persons in
authority are prone to fabricate or misrepresent the facts to serve their
own purpose. Innocent people had been charged in Court simply by the
false statements of peace officers. The Court therefore has to be cautious
when these peace officers testify in Court." 49
In the second place, as a result of the foregoing observations, the trial
court completely disregarded Bombie Toting's so-called statement as
against Teodoro Basay. We therefore see neither rhyme nor reason for
the trial court's admission of the same as against the appellant.
3. While it may be true that the appellant ran away when he first saw the
armed law officers, he did so merely out of fear of them. This act should
not be considered as the flight which is indicative of guilt. The appellant
had not left his house or barangay since 4 March 1986, the day the crime
was committed. If he were indeed one of the perpetrators and had the
intention to flee in order to avoid arrest, he should have vanished sooner
and should not have remained in his house. Besides, if indeed his running
away could be construed as flight, it could only be considered as
circumstantial evidence. Such evidence would still be insufficient for a
conviction. Under Section 4, Rule 133 of the Rules of Court, in order that
circumstantial evidence may sustain a conviction, there must, inter alia,
be more than one (1) circumstance. No other circumstance was
established in this case.

Hence, the appellant's guilt was not established with moral certainty. He
should be acquitted.

Feliciano, Bidin, Romero and Melo, JJ ., concur.

Gutierrez, Jr., J ., is on terminal leave.

We cannot, however, close this case without making some observations

about the legal conclusions of the trial court anent the crimes committed
and the penalty imposed. The facts indisputably establish that Zosimo
Toting, Sr., Beatrice Toting and Bombie Toting were stabbed and hacked
before their house was burned. Zosimo and Beatrice died immediately
while Bombie lived for a few days. As a matter of fact, the thesis of the
prosecution is that the house was burned to conceal the stabbing and
hacking. As a result of this fire, Manolita Toting and Manolo Toting
suffered burns which caused the death of the former; the latter, however,
survived due to timely medical attention. Four (4) crimes were therefore
committed, viz.: three (3) separate murders under Article 248 of the
Revised Penal Code 50 for the deaths of Zosimo, Beatrice and Bombie,
and arson as punished under Section 5 of P.D. No. 1613 51 for the death
of Manolita and the injuries sustained by Manolo as a consequence of the
burning of the house. The aforementioned Section 5 reads:

SECOND DIVISION
[G.R. Nos. 112620-21. May 14, 1997]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOLI
PAGAL y LAMQUI and ADOLFO LAMQUI y
NATIVIDAD, accused-appellants.
DECISION
ROMERO, J.:

"SECTION 5. Where Death Results from Arson. If by reason of or on

the occasion of the arson death results, the penalty of Reclusion
Perpetua to death shall be imposed."
Also, the information that was filed is clearly duplicitous and thus
vulnerable to a motion to quash under Section 3(e), Rule 117 of the Rules
of Court. No such motion having been filed, appellant is deemed to have
waived the defect.
Finally, We have time and again said that life imprisonment is not a
penalty provided for in the Revised Penal Code and is not the same as
reclusion perpetua. 52 Unfortunately, the trial court still disregarded this
pronouncement. It is hoped that it will not happen again.
WHEREFORE, the challenged Decision in Criminal Case No. 7411 of
Branch 40 of the Regional Trial Court of Negros Oriental is REVERSED
25
and appellant JAIME RAMIREZ alias "NEBOY" is hereby ACQUITTED
with costs de oficio. His immediate release from detention is hereby
ordered.
SO ORDERED.
CRIM2

Before this Court comes a case replete with all the elements of a
blockbuster action movie: Violence, motives and alibis. The law in
dispensing justice is, however, constrained to detach itself from
sensationalism and, instead, look at the facts dispassionately as
presented and proven in a court of law.
This is an appeal from the decision dated September 23, 1993, of
the Regional Trial Court (RTC) of Tayug, Pangasinan, Branch 51,
convicting accused Noli Pagal and Adolfo "Boy" Lamqui of the crimes of
murder and attempted murder and sentencing them to reclusion
perpetua and imprisonment of two years, ten months and twenty days
of prision correcional, as minimum, to eight years and twenty days
of prision mayor, as maximum, respectively.
The two cases were initially filed before the RTC of Lingayen as
Criminal Case No. L-4253, for murder, and Criminal Case No. L-4252 for
frustrated murder. Upon motion of the prosecution, the cases were later
transferred to the Tayug RTC and respectively re-docketed as Criminal
Case Nos. T-1086 and 1061.
The relevant facts gathered from the records follow:

Paquito Medrano and Jose Rebujio were partners in the business of

buying and selling cattle. On March 23, 1990, between the hours of nine
and ten in the morning, they decided to go to Cabuaan, Natividad,
Pangasinan to look at a cow that was up for sale. Medrano drove a
motorcycle with Rebujio riding tandem. They, however, never reached
their destination as they were ambushed along the way. Somewhere
between Barangay San Miguel and Sitio Tulin of said town, they noticed
two bamboo poles obstructing the road some three (3) meters ahead of
them. As they were slowing down, they both noticed, crouched in the
canal on the left side of the road, two men who stood up silently, one after
the other, and without a word started firing at them with an armalite rifle
and a short firearm. They later identified the malefactors as Noli Pagal
and Adolfo "Boy" Lamqui. Despite the injuries sustained from the firing,
Medrano was able to drive faster and proceed to the hospital while his
companion hung on.
As evidenced by two medical certificates both dated March 27, 1990,
and reiterated on the witness stand by the attending physician, Dr. Cesar
Bulosan, Medrano and Rebujio were confined and treated at the Eastern
Pangasinan District Hospital. Dr. Bulosan treated Medrano for gunshot
wounds on the left upper abdomen, right upper abdomen, left chest below
the nipple and on the right arm near the wrist and Rebujio for a throughand-through gunshot wound at the left thigh, and gunshot wounds at the
right buttock below the waistline, right forearm and back of the upper right
forearm. After considering the nature and the appearance of the wounds
at the time of the examination, he opined that an automatic rifle could
have been used and such must have been fired at close range because
of the presence of multiple powder burns.[1]
Rebujio was subsequently transferred to the Armed Forces of the
Philippines Medical Center (AFPMC) where he died on March 25, 1990.
The cause of his death was cardiorespiratory arrest due to massive
internal hemorrhage resulting from the through-and-through gunshot
wound at the left thigh, as stated in the medico-legal report [2] issued by Dr.
Perfecto Tebangin, the Municipal Health Officer of Natividad, Pangasinan.
26

Upon learning of the incident at around 10:30 in the morning of the

fateful day, prosecution witness Patrolman Orlando Arciaga immediately
proceeded to the Eastern Pangasinan District Hospital and was able to
interview the victims who divulged the identities of their assailants,
namely, Noli Pagal and Boy Lamqui.[3] Said investigation was taken down
CRIM2

in writing and was presented in evidence as the ante-mortem statement

of Rebujio.
Medrano took the stand and positively identified the assailants,
corroborating the statement of the late Rebujio. [4] He knew the assailants
well because Pagal is his nephew, and he, Rebujio and the Pagals have
been partners in the business of buying and selling cattle since their
childhood.[5] Their cordial relationship deteriorated after a slaying incident
in 1988 involving the members of the Medrano and Pagal families.
[6]
Although, the matter was amicably settled within the same year, the
relationship between the Medrano and Pagal family has since been
strained.
Accused-appellants interposed the defense of denial and alibi. They
declared that from eight to eleven in the morning of March 23, 1990, they
were in Barangay Calapugan, helping in the construction of a certain
Hermenegildo Pate's house. They stressed that they never left said site
until they were called by Pagal's brother at eleven o'clock a.m. because
members of the Philippine Constabulary were looking for them. [7] To
corroborate their story, they presented Jun de Guzman, one of the
workers in the construction site, and Pagal's father Arturo.
After trial, Judge Ulysses R. Butuyan rendered a decision dated
September 23, 1993, finding accused-appellants guilty of murder and
attempted murder. The dispositive portion thereof states, thus:
"WHEREFORE, in Criminal Case No. T-1061, the Court finds the accused
NOLI PAGAL y Lamqui and the accused ADOLFO LAMQUI y Natividad
alias "Boy" guilty beyond reasonable doubt of the crime of Attempted
Murder, defined and penalized under Article 248 of the Revised Penal
Code in relation to the third paragraph of Article 6 of the same Code, as
co-principals, and hereby sentences them to each suffer the penalty of
imprisonment of Two (2) years, Ten (10) months and Twenty (20) days of
prision correccional as minimum to Eight (8) years and Twenty (20) days
of prision mayor as maximum, together with the accessory penalties
provided by law, and to solidarily indemnify the private complainant
Paquito Medrano or his heirs, in a proper case, for actual damages in the
amount of P8,000.00 plus moral damages which the Court hereby fixes
at P100,000.00 and to pay the costs.
In Criminal Case No. T-1086, the Court finds the aforenamed accused
guilty beyond reasonable doubt of the crime of Murder, defined and

penalized under Article 248 of the Revised Penal Code, as co-principals,

and hereby sentences them to each suffer the penalty of reclusion
perpetua, together with the accessory penalties provided by law, and to
solidarily indemnify the heirs of the late Jose Rebujio for actual damages
of P61,200.00 plus moral damages which the Court hereby fixes
at P300,000.00 and to pay the costs.

the gunmen were at the right side of the victims is belied by the gunshot
wounds located in front of the bodies of the victims, indicating a face-toface encounter.[14] Medrano, however, testified that accused-appellants
were already firing at him and Rebujio from a distance of three meters
while on board the moving motorcycle. [15] That they were moving targets
would explain the different locations of the wounds in their bodies.

SO ORDERED."[8]

They further question the failure of the prosecution to present the

result of the ballistic examination of Pagal's firearm, an omission which
they perceive to be tantamount to suppression of adverse evidence.

Aggrieved, accused-appellants come to this Court seeking the

reversal of their conviction on the ground that the trial court erred in
finding both of them guilty of murder and attempted murder.
We find the appeal bereft of merit.
Accused-appellants argue that at a distance beyond eighteen inches
from the barrel of a firearm, it would be impossible for powder burns to be
present in the bodies of the victims.
Dr. Bulosan, however, testified that a high caliber firearm like an
armalite can leave powder burns on the target although situated eighteen
inches away.[9] It is specious reasoning for accused-appellants to
conclude that it is impossible for powder burns to be present in the bodies
of victims shot from a distance beyond eighteen inches considering the
undisputed fact that it was an armalite rifle which was used in the
commission of the crimes.
Next, they contend that the results of the paraffin test show that they
are innocent of the crimes for which they were charged. This Court
agrees with the court a quo in not giving much weight to the National
Bureau of Investigation (NBI) Chemistry Report finding Lamqui negative
for powder burns and Pagal positive for powder burns only on his palm.
[10]
Well-settled is the rule that a negative finding on paraffin test is not a
conclusive proof that one has not fired a gun, [11] because it is possible for
a person to fire a gun and yet bear no traces of nitrates or gunpowder,
as
27
when the hands are bathed in perspiration or washed afterwards. [12] The
trial court also correctly rejected the results of said exam for having been
taken eighteen days after the commission of the crime. [13]
Accused-appellants likewise fault the lower court for lending
credence to the testimony of Medrano. They aver that his testimony that
CRIM2

We disagree.
To begin with, the adverse presumption arising from suppression of
evidence is not applicable when the evidence is merely corroborative or
cumulative and/or likewise available to the defense, as in the case at bar.
[16]
Furthermore, there is no suppression of evidence to speak of insofar
as the ballistic examination of Pagal's firearm is concerned. The
prosecution has established, and Pagal has admitted, that he is a
member of the CAFGU and was issued an armalite rifle with serial
number 629161. Exhibit "E" for the prosecution is the original of the
memorandum receipt dated March 21, 1989, showing the issuance to Noli
Pagal of one U.S. rifle 7.62 MN M14 with serial number 629161. Exhibit
"F" is NBI Forensic Chemistry Report No. C-90-388 in regard to a
specimen known as one M14 armalite rifle with serial number 629161
submitted on April 10, 1990, and indicating the following findings:
"Chemical and microscopic examinations conducted on the abovementioned firearm showed the presence of soot, black particles and
nitrates. Test firing showed that the firearm could have been fired more
than two (2) weeks prior to the date of examination on April 11, 1990." [17]
Lastly, accused-appellants assail the admission by the court of
Rebujio's statement as his dying declaration when such was not given
under the consciousness of an impending death.
This argument is off-tangent and without basis.
The record does not show that the trial court considered the
statement of Rebujio as a dying declaration. In fact, it was expressly
disqualified as such and was instead admitted as part of the res gestae,
as sanctioned by Section 36 (now Section 42), Rule 130 of the Rules of

Court.[18] This Court has held that although an ante-mortem statement

may not be considered as a dying declaration because it was not given
under the consciousness of an impending death, it is admissible as part
of the res gestae if such declaration was made at the time of, or
immediately after, the commission of the crime, or at a time when the
exciting influence of the startling occurrence still continued in the
declarant's mind, as in the case at bar.[19]
Having ruled on accused-appellants' assignment of errors, we now
resolve the main issue of whether they were convicted by the trial court
based on the evidence presented at the trial.
The Court finds that, not only was the evidence of the defense weak,
but that of the prosecution was sufficient to support the charges against
accused-appellants.
The defense of alibi and denial is unavailing in view of the positive
identification of accused-appellants and there being no physical
impossibility for them to commit the crimes charged. [20] It is well-settled
that alibi is a defense which is inherently weak and difficult to begin with,
and it cannot stand against the positive identification of accusedappellants as the perpetrators of the crimes by victims Medrano and
Rebujio through the latter's ante-mortem statement.[21] Moreover, there is
no dispute that it was not physically impossible for accused-appellants to
be present at the time and place of the incident. Defense witness Jun de
Guzman testified on the proximity of Barangay Calapugan, where
accused-appellants supposedly were, to Barangay San Miguel, where the
ambush took place. According to him, at the time of the incident, the
distance between the two barangays is less than a kilometer and it takes
less than five minutes to walk from one barangay to the other. He also
stated that a road connects these adjoining barangays. [22] Pagal's father
Arturo, for his part, said that the distance is more or less three kilometers
which could be traversed in fifteen minutes. The discrepancy does little to
alter the finding of the court a quo that the two barangays are so close to
each other as not to preclude the possibility of the accused being present
28 of alibi to
at the place where the ambush was committed. For the defense
prosper, the accused must prove not only that he was at some other
place at the time the crime was committed but that it was likewise
physically impossible for him to be at the locus criminis at the time of the
alleged crime.[23]

CRIM2

The evidence for the prosecution, on the other hand, is solid and
convincing. Medrano was not only an eyewitness to the incident but was
a victim himself. He has categorically identified accused-appellants as
those who staged the ambush because he saw their faces clearly when
he slowed down to avoid a road obstruction which, in all probability, was
deliberately placed by the latter who were crouching in the canal on the
left side of the road before splattering their victims with a volley of gunfire.
[24]
At a distance of approximately three meters only, it is not impossible
for a man of clear eyesight to positively identify persons at such range
especially in broad daylight, persons who are not casual acquaintances
but kinfolk and former business partners of the victims.
The testimony of Medrano is supported by the physical evidence and
the separate testimonies of Dr. Bulosan, Rebujio's widow, and Pat.
Arciaga. The ante-mortem statement, admitted in evidence as part of
the res gestae, further revealed that the late Rebujio named one of the
assailants as "Boy" Lamqui, which was never disputed by the defense
throughout the entire proceeding, hence, proving familiarity between
accused-appellants and their victims.
The Court agrees with the trial court that for the death of Rebujio,
accused-appellants are guilty of murder. The allegations of treachery,
evident premeditation, and craft charged in the information were duly
proved by the prosecution and never refuted by the defense. The court
a quo also correctly convicted them for attempted murder of Paquito
Medrano, instead of frustrated murder as charged in the information,
because the injuries sustained by Medrano were merely superficial and
not capable of causing his death even without timely medical intervention.
No mortal wound having been inflicted upon the victim, the offenders
failed to perform all the acts of execution which would have produced the
felony. They are, therefore, guilty only of attempted murder.[25]
WHEREFORE, the decision appealed from is hereby AFFIRMED,
with the modification as to the award of moral damages which is hereby
reduced to P10,000.00 in Criminal Case No. T-1061 and to P50,000.00 in
Criminal Case No. T-1086.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 112092

March 1, 2001

PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
ROBERT NUEZ y LAGASCA, accused-appellant.
QUISUMBING, J.:
On appeal is the decision1 dated May 26, 1993, of the Regional Trial
Court of Urdaneta, Pangasinan, Branch 48, convicting appellant of the
crime of qualified illegal possession of firearms, sentencing him to life
imprisonment, and ordering him to pay the costs.
The facts are as follows:

29

CRIM2

On March 6, 1992, at around 2:00 to 3:00 P.M., in Palina Sur, Urdaneta,

Pangasinan, four (4) persons, namely Teofilo Pacquing, Calixto
Pacorza,2 Marlito Parias and Roy Tolentino were riding a tricycle driven
by Jerry Almendrez.3 When they passed by the gate of appellant's family
compound, appellant fired at them from a distance of about twenty (20)
meters, hitting Pacquing on the right toe, Almendrez on the left breast,
and Pacorza resulting to his death. The records do not indicate the
injuries sustained by Pacorza, but merely state that he died as a result of
the shooting incident.4

The victims were brought to the Urdaneta Sacred Heart Hospital for
treatment. Teofilo Pacquing5 reported the incident to the police. SPO1
Ernesto C. Gancea, a member of the Investigation and Intelligence
Operations of the Philippine National Police (PNP) investigated the
incident. Teofilo Pacquing informed him that it was appellant who fired at
them. Thereafter, SPO1 Gancea, accompanied by PO3 Asterio
Dismaya, and SPO1 Henry R. Kang proceeded to the scene of the
incident. When they arrived at appellant's house, SPO1 Gancea talked
to appellant who readily admitted that he was the one who shot Pacorza.
SPO1 Kang recovered a caliber .22, long rifle, "Squibman," model 116
MK with serial no. A-320554 with telescope from appellant. When asked
for the permit for the firearm, appellant could not produce any. Appellant
was thereafter brought to the Urdaneta Police Station for investigation. He
refused to give any statement to the police. The incident was entered in
the police blotter by desk officer Romulo Dutong.6
For the shooting of Almendrez and Pacquing and the death of Pacorza,
appellant was charged under four (4) separate Informations for (1)
homicide, (2) frustrated homicide, (3) frustrated homicide and (4) illegal
possession of firearms docketed as Criminal Case No. U-6449. The
cases were raffled to the different branches. Only the Illegal Possession
of Firearms case is before us.
The Information for Illegal Possession of Firearms reads: 7
That on or about the 6th day of March, 1992, at barangay Palina Sur,
municipality of Urdaneta, province of Pangasinan, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, did
then and there wilfully, unlawfully and feloniously have in his possession,
control and custody one (1) Caliber .22 Rifle 116MK, bearing Serial No.
A320554, with trademark "Kassnar Squibman" and with magazine and
nine (9) live ammunition, without first securing the necessary permit or
license from lawful authorities, which said firearm was used by the
accused in the commission of the crime of homicide and double frustrated
homicide against the persons of Calixto Pacursa (sic), Jerry Armendez
30
(sic) and Teofilo Pacquing.
CONTRARY to Presidential Decree No. 1866.
Urdaneta, Pangasinan, June 16, 1992.
CRIM2

On September 10, 1992, upon arraignment, appellant, duly assisted by

counsel de parte, pleaded not guilty.8 Pre-trial conference was waived.
Trial then commenced.
The prosecution presented the four (4) members of the PNP, Urdaneta,
Pangasinan, who were involved in the investigation, and one of the
victims, Teofilo Pacquing.
SPO1 Ernesto C. Gancea testified that he conducted the investigation
and that appellant admitted to him that he shot the victim, Pacorza. 9 PO2
Asterio Dismaya, corroborated the testimony of SPO1 Gancea. 10 SPO1
Henry R. Kang, testified that he was the one who recovered the firearm
from appellant.11 SPO1 Nestor G. Manongsong, responding to a
subpoena duces tecum, testified that he could not bring the police blotter,
but presented the complaint/assignment sheet, 12 and the spot
report13 pertaining to the incident.14 Teofilo Pacquing testified on the
circumstances surrounding the attack, and identified appellant as the
assailant.15
On the other hand, the defense presented five (5) witnesses, namely: (1)
appellant, (2) Salvador Paz, a carpenter working in the house of Alvaro
Nuez; (3) Eugene Nuez, a neighbor of the aunt of appellant who
allegedly witnessed the shooting incident; (4) Cesar Nuez Celeste, a
cousin of appellant and the owner of the subject firearm and (5) SPO4
Benito Opguar, of the Provincial Headquarters, PNP Command,
Lingayen, Pangasinan, who testified that Cesar Celeste had a temporary
license to possess the subject firearm, but at the time of the shooting
incident, the temporary license had already lapsed. 16
The defense claims that the shooting incident did not happen on the road,
but inside the living room of the house of appellant's aunt, Magdalena
Celeste. Appellant claims that he shot at the victims in self-defense. He
narrates his version of the incident as follows: 17
That on March 6, 1992, the accused-appellant was busy sticking tobacco
leaves when six (6) armed men namely: Calixto Pacursa, Gerry
Almendrez, Teofilo Tolentino, Teofilo Pacquing, Nick Gascon and Carlito
Parnas, arrived in their compound and went inside their compound and
stoned the houses of his grandmother, Maxima Nuez, his uncle Mariano
Nuez and his aunt Magdalena Celeste. When the six (6) men noticed
him, they shouted at him so the accused-appellant ran towards the north
and since they ran after him, the accused-appellant hid behind the santol

tree, then the six men left the place boarding on the same tricycle and
proceeded towards the west. In the afternoon between 3:00 and 4:00
o'clock of the same date, while he is unloading tobacco leaves, Gerry
Almendrez and his companions came back and they shouted at him and
he heard one gunshot so he ran inside the compound where his
grandfather's house were being constructed and that was then the time
that Cesar Celeste and Juanito Nuez went to town to report the said
incident.
Calixto Pacursa armed with a .38 caliber met the accused-appellant so he
ran towards the house of his aunt Magdalena Celeste and hide (sic)
inside the bathroom since Calixto Pacursa continued chasing him. When
Calixto Pacursa was about to go the second floor, he saw the .22 caliber
that was placed on top of the bed of Cesar Celeste and he got the said
firearm and when he went out he was still holding the .38 caliber and at
the same time holding the .22 caliber firearm. When the accusedappellant saw Calixto Pacurza tucked his .38 caliber firearm in his waist
and loaded the .22 caliber rifle that was the time accused-appellant went
out from the bathroom and grappled with Calixto Pacurza and the
accused-appellant was able to retrieve the subject firearm from Calixto
Pacurza. The accused-appellant move two steps backward but Calixto
Pacurza drew his .38 caliber firearm from his waist and that was the time
that accused-appellant fired the .22 caliber rifle at Calixto Pacurza. The
accused-appellant and Gerry Almendrez had a misunderstanding
because the former noticed that some parts of the motorcycle driven by
the latter had been replaced.
The testimony of herein accused-appellant were corroborated by
Salvador Paz, a laborer in the on-going construction of the house of
Alvaro Nuez, and Eugene Nuez, who at that time were inside the
kitchen of Magdalena Celeste, the former was pouring hot water in a
thermos while the latter went inside the kitchen to light his cigarette.
Cesar Celeste declared that he is the owner of the subject firearm and he
brought outside the said firearm when Teofilo Pacquing and his
31
companions arrived and stoned the houses in their compound.
And
before he and Juanito Nuez went to town to report to the police
authorities, he left the licensed firearm on top of his bed. He applied a
license to possess the firearm through First Continental Co., Inc., and had
paid the firearm bond.

CRIM2

After presentation of prosecution evidence in the illegal possession case,

appellant filed a motion for consolidation of the four cases. Upon the
opposition of the public prosecutor, the trial court denied the
motion.18 Subsequently, on May 26, 1993, the trial court rendered a
decision19 convicting appellant, the dispositive portion of which provides:
WHEREFORE, this court finds the accused guilty of Illegal possession of
firearm resulting to the death of the victim and pursuant to P.D. 1866 in
relation to the 1987 Constitution the court sentences the said accused
Robert Nuez to suffer the penalty of life imprisonment and with costs.
SO ORDERED.20
Appellant now assigns the following errors:21
I. THE LOWER COURT GRAVELY ERRED IN FINDING HEREIN
ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
THE CRIME OF ILLEGAL POSSESSION OF FIREARM DESPITE THE
FACT THAT THE SAME WAS NOT RECOVERED FROM HIS
POSSESSION AS TESTIFIED TO ON REBUTTAL BY PROSECUTION
WITNESS PO3 HENRY KANG.
II. THE LOWER COURT GRAVELY ERRED IN GIVING GREAT WEIGHT
TO THE INCONSISTENT AND UNCORROBORATED TESTIMONIES OF
THE PROSECUTION WITNESSES AND IN NOT GIVING CREDENCE
TO THE CORROBORATED AND CREDIBLE TESTIMONIES OF THE
DEFENSE WITNESSES.
III. THE LOWER COURT GRAVELY ERRED IN SHIFTING THE
BURDEN OF PROOF TO THE ACCUSED APPELLANT.
IV. THE LOWER COURT GRAVELY ERRED IN ADMITTING IN
EVIDENCE THE ALLEGED EXTRAJUDICIAL CONFESSION OF THE
ACCUSED-APPELLANT WITHOUT THE ASSISTANCE OF A COUNSEL
AND IN ADMITTING THE FIREARM IN ISSUE WHICH WAS
SEARCHED AND SEIZED WITHOUT A VALID WARRANT.
In support of his first and second assignment of errors, appellant points
out major inconsistencies in the testimonies of the prosecution witnesses.
SPO1 Gancea testified that appellant was inside his house when the
police arrived at the crime scene and the rifle was located "beside"

appellant, and it was SPO1 Kang who got the rifle from appellant. SPO3
Dismaya, however, testified that appellant was actually in the yard when
they arrived and that appellant was the one who got the rifle from the
house and handed it to SPO2 Kang. SPO2 Kang testified during direct
examination that it was appellant who gave him the gun, but during
rebuttal, he said that it was one of appellant's cousins who handed to him
the gun.
In support of his third assignment of error, appellant claims that it was
error for the trial court to shift the burden of proof to the defense when he
invoked self-defense.
In support of his fourth assignment of error, appellant contends that his
alleged "extrajudicial confession" to SPO1 Gancea is inadmissible since
he was not assisted by counsel at the time it was made. Further, the rifle
was seized without a search warrant and therefore, inadmissible in
evidence.
The Office of the Solicitor General, on the other hand, points out that it is
of no moment who among the responding policemen received the fatal
weapon. What is important is that he admitted possession of the firearm
at the time the victim was shot. His conviction was based not on his
alleged "extrajudicial confession," but on his admissions in open court.
The rifle was not seized from appellant, but was surrendered by him to
the policemen.
Simply put, the issues pertain to (1) the assessment of credibility of
witnesses, and (2) the sufficiency of the evidence to convict appellant of
the crime charged.
It is well-settled that, generally, appellate courts will not interfere with the
judgment of trial courts in passing upon the credibility of the witnesses
unless there appears in the record some facts or circumstances of weight
and significance which the trial court has overlooked or the significance of
which it has misapprehended or misinterpreted. 22 After a careful
32
examination of the records of the case, we are inclined to give credence
to the version of the prosecution. The alleged inconsistencies as to who
recovered the firearm from appellant, in our view, do not pertain to a
material matter. What is important is that one of the police officers
recovered the firearm from appellant, who does not deny his possession
of said firearm. Further, the presumption of regularity in the performance
of official functions, insofar as the policemen are concerned, has not been
CRIM2

overturned. Credence should be given to the narration of an incident by

prosecution witnesses who are police officers and presumed to have
performed their duties in a regular manner, in the absence of evidence to
the contrary.23
Anent the second issue, we have held that in crimes involving illegal
possession of firearm, the prosecution has the burden of proving the
elements thereof, viz: (a) the existence of the subject firearm and (b) the
fact that the accused who owned or possessed it does not have the
license or permit to possess the same.24 The prosecution was able to
prove both elements. First, prosecution witness Pacquing categorically
stated that he saw appellant fire at them with a long gun from a distance
of 20 meters.25 Appellant would make us believe that his possession of
the firearm was "transient" possession. He claims that he merely acquired
it during the scuffle with the victim. Having given credence to the version
presented by the prosecution, this argument deserves scant
consideration. Second, the defense presented SPO4 Opguar, who
testified that a temporary license of the rifle was issued in the name of
Cesar Celeste, the owner thereof, but said license already lapsed.
Clearly, appellant had no license to possess the rifle.
Appellant was convicted of "illegal possession of firearms resulting to the
death of the victim." At the time of the commission of the crime, the
existing jurisprudence was People v. Quijada.26 This Court held then that
the use of an unlicensed firearm in a killing results in two separate crimes
one for the aggravated form of illegal possession of firearm and two,
for homicide or murder. In the meantime, however, Congress passed
Republic Act No. 8294,27 which lowered the penalties for illegal
possession of firearms. Further, Section 1, third par. of R.A. No. 8294
provides
If homicide or murder is committed with the use of an unlicensed firearm,
such use of an unlicensed firearm shall be considered as an aggravating
circumstance.
Thus in People v. Molina, 292 SCRA 742 (1998), this Court held that the
use of an unlicensed weapon in the commission of homicide or murder
should now be considered simply as an aggravating circumstance and no
longer a separate offense. The Molina ruling,28 however, is not applicable
to the present case. In Molina, separate Informations for murder,
frustrated murder and illegal possessions were filed, but the cases were
eventually consolidated and jointly tried and decided. In the present case,

there were four cases filed against appellant which were all separately
tried.29 Hence, the evidence as to the homicide and frustrated homicide
cases were neither adopted nor presented before the trial court trying the
illegal possession case. For this reason, there is a dearth of evidence on
record to support the finding of homicide and/or frustrated homicide.
Accordingly, appellant should only be convicted of simple illegal
possession of firearms. The lowered penalties as provided in R.A. No.
8294, being favorable to the accused, should be applied
retroactively.30 Under R.A. No. 8294, the penalty for simple illegal
possession of a low-powered firearm is prision correccional in its
maximum period, which is four (4) years, two (2) months and one (1) day
to six (6) years, and a fine of not less than P15,000.00. It will not be amiss
to point out that R.A. No. 8294 contains the proviso: "Provided, That no
other crime was committed." However, as explained earlier, the facts
obtaining in this case do not indubitably prove the frustrated murder
cases or the murder case in relation to the illegal possession case.
Hence, we find it proper to convict appellant only of the crime of simple
illegal possession of firearms. Applying the Indeterminate Sentence Law,
appellant should be sentenced to two (2) years, four (4) months, and one
(1) day of prision correccional medium as minimum, to five (5) years, four
(4) months, and twenty (20) days of prision correccional maximum as
maximum, and ordered to pay a fine of P15,000.00. 31
WHEREFORE, the decision of the Regional Trial Court of Urdaneta,
Pangasinan, Branch 48, in Criminal Case No. U-6449, is hereby
AFFIRMED WITH MODIFICATIONS. Appellant is hereby convicted of the
crime of illegal possession of firearms and sentenced to two (2) years,
four (4) months, and one (1) day of prision correccional medium as
minimum, to five (5) years, four (4) months, and twenty (20) days
of prision correccional maximum as maximum, and ordered to pay a fine
of P15,000.00 and the costs.
SO ORDERED.
Bellosillo, Mendoza, Buena and De Leon, Jr., JJ ., concur. 33

PEOPLE v. ROBERT NUEZ y LAGASCA

G.R. No. 112092. March 1, 2001
Accused was found guilty of Illegal possession of firearm resulting to the
death of the victim and pursuant to P.D. 1866 in relation to the 1987
Constitution the court sentences the said accused to suffer the penalty of
life imprisonment and with costs.
HELD:
Appellant was convicted of illegal possession of firearms resulting to the
death of the victim. At the time of the commission of the crime, the
existing jurisprudence was People v. Quijada. The SC held then that the
use of an unlicensed firearm in a killing results in two separate crimes
one for the aggravated form of illegal possession of firearm and two, for
homicide or murder. In the meantime, however, Congress passed
Republic Act No. 8294, 27 which lowered the penalties for illegal
possession of firearms. Further, Section 1, third par. of R.A. No. 8294
provides If homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm shall be considered
as an aggravating circumstance.
In the present case, there were four cases filed against appellant which
were all separately tried. Hence, the evidence as to the homicide and
frustrated homicide cases were neither adopted nor presented before the
trial court trying the illegal possession case. For this reason, there is a

CRIM2

dearth of evidence on record to support the finding of homicide and/or

frustrated homicide.
The Court held that accordingly, appellant should only be convicted of
simple illegal possession of firearms. The lowered penalties as provided

34

CRIM2

in R.A. No. 8294, being favorable to the accused, should be applied

retroactively.