2) PEOPLE OF THE PHILIPPINES, appellee, vs. CORA ABELLA OJEDA, appellant.

DECISION

CORONA, J.:

For review is the decision[1] dated June 21, 1991 of the Regional Trial Court of Manila, Branch 38, the
dispositive portion of which read:

WHEREFORE, the Court finds accused Cora Abella Ojeda guilty beyond reasonable doubt of the crime of
Estafa as defined and penalized under paragraph 2(d) of Article 315 of the Revised Penal Code, as
amended by Rep. Act 4885, in Criminal Case No. 88-66228 and hereby sentences her to suffer a penalty
of reclusion perpetua, with the accessories provided by law and with credit for preventive imprisonment
undergone, if any, in accordance with Article 29 of the Revised Penal Code as amended, and to pay
complainant Ruby Chua the amount of Two Hundred Twenty Eight Thousand Three Hundred Six
(P228,306.00) Pesos with interests thereon from the time of demand until fully paid.

Likewise, the Court also finds the said accused guilty for Violation of Batas Pambansa Blg. 22 in Criminal
Cases Nos. 88-66230, 88-66232, 88-66235 to 88-66240, 88-66242, 88-66243, 88- 66245 to 88-66248
(14) counts and hereby sentences her to suffer a penalty of one year of imprisonment for each count.
On the other hand, the other charges docketed as Criminal Cases Nos. 88- 66229, 88-66231, 88-66233,
88-66234, 88-66241 and 88-66244 are hereby dismissed for insufficiency of evidence.

Costs against accused in all instances.[2]

Appellant Cora Abella Ojeda was charged in 21 separate Informations for estafa in Criminal Case No.
88-66228 and for violation of Batas Pambansa (BP) 22 in Criminal Case Nos. 88-66229 to 88-66248.

The Information charging Ojeda with estafa read:

That on or about the first week of November, 1983, in the City of Manila, Philippines, the said accused
did then and there willfully, unlawfully and feloniously defraud RUBY CHUA in the following manner, to
wit: the said accused, well knowing that she did not have sufficient funds in the bank and without
informing the said Ruby Chua of such fact drew, made out and issued to the latter the following post-
dated Rizal Commercial Banking Corporation checks, to wit:

Check No. Date Amount

1. 033550 Nov. 5, 1983 P17,100.00

2. 041782 Nov. 5, 1983 5,392.34

3. 042935 Nov. 6, 1983 1,840.19

4. 041799 Nov. 9, 1983 11,953.38

5. 033530 Nov. 10, 1983 19,437.34

6. 041714 Nov. 10, 1983 26, 890.00

7. 042942 Nov. 10, 1983 1,941.59

8. 041783 Nov. 12, 1983 5,392.34

9. 041800 Nov. 14, 1983 11,953.39

10. 041788 Nov. 15, 1983 3,081.90

11. 033529 Nov. 15, 1983 19,437.34

 12. 041784 Nov. 18, 1983 5,392.34

13. 042901 Nov. 18, 1983 11,953.38

14. 042902 Nov. 23, 1983 11,953.38

15. 041785 Nov. 25, 1983 5,392.34

16. 042903 Nov. 29, 1983 11,953.38

17. 033532 Nov. 29, 1983 13,603.22

18. 041786 Nov. 30, 1983 5,392.34

19. 042905 Dec. 8, 1983 11,953.39

20. 043004 Dec. 10, 1983 2,386.25

21. 042907 Dec. 15, 1983 11,953.38

22. 042906 Dec. 18, 1983 11,953.39

P228,306.60

in payment of various fabrics and textile materials all in the total amount of P228,306.60 which the said
accused ordered or purchased from the said RUBY CHUA on the same day; that upon presentation of the
said checks to the bank for payment, the same were dishonored and payment thereof refused for the
reason Account Closed, and said accused, notwithstanding due notice to her by the said Ruby Chua of
such dishonor of the said checks, failed and refused and still fails and refuses to deposit the necessary
amount to cover the amount of the checks to the damage and prejudice of the said RUBY CHUA in the
aforesaid amount of P228,306.60, Philippine currency.

Contrary to law.

The Informations charging Ojeda for violation of BP 22 were similarly worded except for the amounts
of the checks, the check numbers and the dates of the checks:

That on or about the first week of November 1983, in the City of Manila, Philippines, the said accused
did then and there wilfully, unlawfully and feloniously make or draw and issue to RUBY CHUA to apply on
account or for value Rizal Commercial Banking Corp. Check No. 041784 dated November 18, 1983
payable to Ruby Chua in the amount of P5,392.34, said accused well knowing that at the time of issue
he/she/they did not have sufficient funds in or credit with the drawee bank or payment of such check in
full upon its presentment, which check, when presented for payment within ninety (90) days from the
date thereof was subsequently dishonored by the drawee bank for insufficiency of funds, and despite
receipt of notice of such dishonor, said accused failed to pay said complainant the amount of said check
or to make arrangement for full payment of the same within five (5) banking days after receiving said
notice.

Contrary to law.

The pertinent facts of the case follow.

Appellant Cora Abella Ojeda used to buy fabrics (telas) from complainant Ruby Chua. For the three
years approximately she transacted business with Chua, appellant used postdated checks to pay for the
fabrics she bought. On November 5, 1983, appellant purchased from Chua various fabrics and textile
materials worth P228,306 for which she issued 22 postdated checks bearing different dates and
amounts.

Chua later presented to the bank for payment check no. 033550 dated November 5, 1983 in the
amount of P17,100[3] but it was dishonored due to Account Closed. [4] On April 10, 1984, Chua deposited
the rest of the checks but all were dishonored for the same reason. [5] Demands were allegedly made on
the appellant to make good the dishonored checks, to no avail.

Estafa and BP 22 charges were thereafter filed against appellant. The criminal cases were
consolidated and appellant, on arraignment, pleaded not guilty to each of the charges.

On the whole, appellants defense was grounded on good faith or absence of deceit, lack of notice of
dishonor and full payment of the total amount of the checks.

With the exception of six checks[6] which did not bear her signature, appellant admitted that she
issued the postdated checks which were the subject of the criminal cases against her. She, however,
alleged that she told Chua not to deposit the postdated checks on maturity as they were not yet
sufficiently funded. Appellant also claimed that she made partial payments to Chua in the form of
finished garments worth P50,000. This was not rebutted by the prosecution.

The trial court convicted appellant of the crime of estafa as defined and penalized under paragraph
2(d) of Article 315 of the Revised Penal Code (RPC), and sentenced her to reclusion perpetua. The trial
court also convicted appellant of violation of BP 22 for issuing bouncing checks. However, the court a
quo held her guilty of only 14 counts out of the 22 bouncing checks issued. The court reasoned:

xxx This is due to the fact that of the 22 checks, two of them are not covered by the indictment. This
refers to Check No. 042935 dated November 6, 1983 in the amount of P1,840.19 (Exhibit D) and Check
No. 042942 dated November 10, 1983 in the amount of P1,941.59 (Exhibit F). And of the total number of
checks, six of them were not signed by the accused but by the latters husband (Exhibits C,H,J,M,R and
O). The accused should not be liable for the issuance of the 6 checks in the absence of any showing of
conspiracy.[7]

Appellant appealed to this Court, seeking acquittal. Her counsel, however, failed to file the
appellants brief within the prescribed period. Her appeal was thus dismissed in a resolution of this Court
dated October 14, 1992.[8]

In her motion for reconsideration, appellant asked this Court to reverse its order of dismissal in the
interest of substantial justice and equity. [9] We initially found no compelling reason to grant her motion
and resolved to deny with finality appellants MR in a resolution dated February 3, 1993. [10]Appellant
thereafter filed a Second and Urgent Motion for Reconsideration, attaching thereto an Affidavit of
Desistance of complainant Ruby Chua which stated in part:

xxx xxx xxx.

2. that the defendant Mrs. Cora Ojeda has already fully paid her monetary obligation to me in the
amount of P228,306.00 which is the subject of the aforementioned cases;

xxx xxx xxx.

5. That as the private complainant, I am now appealing to the sense of compassion and humanity of the
good justices of the Supreme Court to reconsider the appeal of Mrs. Cora Ojeda and I solemnly pray that
the criminal liability be extinguished with her civil liability. [11]

In a resolution dated March 17, 1993, [12] this Court denied the second MR for having been filed
without leave of court. In the same resolution, this Court ordered the entry of judgment in due course.

Appellant thereafter filed another motion dated April 21, 1993, praying that she be recommended to
then President Fidel V. Ramos for executive clemency. In support of such motion, she once more
attached the affidavit of desistance [13] of complainant Ruby Chua which categorically declared that the
defendant, Ms. Cora Ojeda, (had) already fully paid her monetary obligations to (Chua) in the amount
of P228,306 which (was) the subject of the aforementioned cases. [14]

In view of such special circumstances, this Court issued a resolution dated June 9, 1993 [15] recalling
its resolutions dated October 14, 1992, February 3, 1993 and March 17, 1993 for humanitarian reasons
and in the interest of justice, and in order that this Court may resolve appellants appeal on the merits.
[16]
 Hence, the instant appeal with the following assignments of error:

I.

THE LOWER COURT ERRED IN FINDING THAT DECEIT WAS EMPLOYED BY ACCUSED APPELLANT WHEN
SHE ISSUED THE CHECKS TO THE PRIVATE COMPLAINANT.

II.

THE LOWER COURT ERRED IN NOT FINDING THAT THE ISSUANCE BY THE ACCUSED-APPELLANT OF THE
CHECKS TO THE PRIVATE COMPLAINANT WAS MERELY A MODE OF PAYMENT WHICH ARRANGEMENT HAD
BEEN THEIR PRACTICE FOR THREE (3) YEARS.

III.

THE LOWER COURT ERRED IN NOT FINDING THAT GOOD FAITH IS A VALID DEFENSE AGAINST ESTAFA BY
POSTDATING A CHECK

IV.

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED OF FOURTEEN (14) COUNTS OF B.P. 22 WHEN
THERE WAS NO PROOF OF NOTICE OF DISHONOR TO THE ACCUSED.

V.

THE LOWER COURT ERRED IN NOT FINDING THAT SINCE 13 OF THE 14 CHECKS WERE DEPOSITED ONLY
AFTER THE LAPSE OF THE 90 DAY PERIOD, HENCE, THE PRIMA FACIE PRESUMPTION OF KNOWLEDGE
DOES NOT APPLY.[17]

Appellant firmly denies any criminal liability for estafa. She argues there was no deceit employed
when she issued the checks because she never assured Chua that the checks were funded. Chua
allegedly knew all along that the checks were merely intended to guarantee future payment by
appellant.

Appellant further claims good faith in all her transactions with Chua for three years. She explained
that her failure to fund the checks was brought about by the collapse of the countrys economy in the
wake of the Aquino assassination in 1983. The capital flight and financial chaos at that time caused her
own business to shut down when her customers also failed to pay her. Despite the closure of her
business, appellant maintains that she did her best to continue paying Chua what she owed and, when
she could no longer pay in cash, she instead paid in kind in the form of finished goods. But these were
not enough to cover her debts. Nevertheless, she spared no effort in complying with her financial
obligations to Chua until she was gradually able to pay all her debts, a fact fully admitted as true by
complainant in her affidavit.

From the foregoing, appellant contends that the element of deceit thru abuse of confidence or false
pretenses was not present. Thus, her guilt was not established with satisfactory proof. Appellant asserts
that good faith on her part was a valid defense to rebut the prima facie presumption of deceit when she
issued the checks that subsequently bounced.

Furthermore, out of the 14 checks cited in the decision of the trial court, only one check was
deposited within 90 days from due date. This was check no. 033550 dated November 5, 1983. The rest
of the checks were deposited only on April 10, 1984 or more than 90 days from the date of the last
check.[18]

Appellant also denies she received any notice of dishonor of the checks, contrary to the findings of
the trial court. She was not even aware that cases had already been filed against her for violation of BP
22. Since there was allegedly no proof of notice [19] of the dishonor of the checks, appellant claims that
she cannot be convicted of violation of BP 22.

On the other hand, the Solicitor General contends that appellant was criminally liable for issuing
worthless checks. Complainant Chua accepted the postdated checks as payment because of appellants
good credit standing. She was confident that appellants checks were good checks. Thus, no
assurances from appellant that the checks were sufficiently funded were needed for Chua to part with
her goods. And when the checks later bounced, appellant betrayed the confidence reposed in her by
Chua.

The Solicitor General also argues that there was a simultaneous exchange of textile materials and
checks between complainant and appellant. Complainant Chua would not have parted with her telas had
she known that appellants checks would not clear. Appellant obtained something in exchange for her
worthless checks. When she issued them, she knew she had no funds to back up those checks because
her account had already been closed. Yet, she did not inform Chua that the checks could not be cashed
upon maturity. She thus deceived Chua into parting with her goods and the deceit employed constituted
estafa.

We grant the appeal.

DECEIT AND DAMAGE AS

ELEMENTS OF ESTAFA

Under paragraph 2 (d) of Article 315 of the RPC, as amended by RA 4885, [20] the elements of estafa
are: (1) a check is postdated or issued in payment of an obligation contracted at the time it is issued; (2)
lack or insufficiency of funds to cover the check; (3) damage to the payee thereof. Deceit and damage
are essential elements of the offense and must be established by satisfactory proof to warrant
conviction.[21] Thus, the drawer of the dishonored check is given three days from receipt of the notice of
dishonor to cover the amount of the check. Otherwise a prima facie presumption of deceit arises.

The prosecution failed to prove deceit in this case. The prima facie presumption of deceit was
successfully rebutted by appellants evidence of good faith, a defense in estafa by postdating a check.
[22]
Good faith may be demonstrated, for instance, by a debtors offer to arrange a payment scheme with
his creditor. In this case, the debtor not only made arrangements for payment; as complainant herself
categorically stated, the debtor-appellant fully paid the entire amount of the dishonored checks.

It must be noted that our Revised Penal Code was enacted to penalize unlawful acts accompanied
by evil intent denominated as crimes mala in se. The principal consideration is the existence of
malicious intent. There is a concurrence of freedom, intelligence and intent which together make up the
criminal mind behind the criminal act. Thus, to constitute a crime, the act must, generally and in
most cases, be accompanied by a criminal intent. Actus non facit reum, nisi mens sit rea. No crime is
committed if the mind of the person performing the act complained of is innocent. As we held
in Tabuena vs. Sandiganbayan:[23]

The rule was reiterated in People v. Pacana, although this case involved falsification of public documents
and estafa:

Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi
mens sit rea. There can be no crime when the criminal mind is wanting.

American jurisprudence echoes the same principle. It adheres to the view that criminal intent in
embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered
into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is
no wrongful purpose.

The accused may thus prove that he acted in good faith and that he had no intention to convert the
money or goods for his personal benefit. [24] We are convinced that appellant was able to prove the
absence of criminal intent in her transactions with Chua. Had her intention been tainted with malice and
deceit, appellant would not have exerted extraordinary effort to pay the complainant, given her own
business and financial reverses.

LACK OF NOTICE OF DISHONOR

 We also note that the prosecution presented virtually no evidence to show that the indispensable
notice of dishonor was sent to and received by appellant. Excerpts from the following testimony of
complainant are significant:

ATTY. ANGELES:

Q Now, Mrs. Witness, when these checks from Exhibits A to V have bounced, what steps,
did you do?

A I consulted my lawyer and she wrote a Demand Letter.

COURT:

Q What is the name of that lawyer?

A Atty. Virginia Nabora.

ATTY. ANGELES:

Q Now, you mentioned a Demand Letter sent by Atty. Virginia Nabor, I am showing to you this
Demand Letter dated March 16, 1988, will you kindly examine the same if this is the same
Demand Letter you mentioned a while ago?

A Yes, sir.

Q Now, on this second page of this Demand Letter there is a signature above the printed
name Virginia Guevarra Nabor, do you know the signature, Mrs. Witness?

A Yes, that is the signature of my lawyer.

ATTY. ANGELES:

May we request that this Demand Letter dated March 16, 1988 consisting of two (2) pages,
Your Honor, be marked as Exhibit W and that the signature on the second page of this
letter of Virginia Guevarra Nabor be encircled and be marked as Exhibit W-1 and that the
attached Registry Receipt, Your Honor, be marked as Exhibit W-2.

COURT:

Mark them.

ATTY. ANGELES:

Q Now, Mrs. Witness, why do you know that this is the signature of Virginia Guevarra Nabor?

A After preparing that I saw her sign the letter.

Q Now, after sending this Demand Letter, do you know If the accused herein made payments
or replaced the checks that were issued to you?

COURT:

Q Of course, you assumed that the accused received that letter, that is his basis on the
premise that the accused received that letter?

ATTY. ANGELES:

A Yes, Your Honor.

COURT:
 Q What proof is there to show that accused received the letter because your question is
premises (sic) on the assumption that the accused received the letter?

ATTY. ANGELES:

Q Now, do you know Mrs. Witness if the accused received the letter?

A There is a registry receipt.

COURT:

Q Now, later on after sending that letter, did you have communication with the accused?

A I kept on calling her but I was not able to get in touch with her.

Q But do you know if that letter of your lawyer was received by the accused?

A I was not informed by my lawyer but I presumed that the same was already received by the
accused.

ATTY. ANGELES:

Q Now, aside from sending this Demand Letter, do you know what your lawyer did?

A We filed a case with the Fiscals.[25]

Aside from the above testimony, no other reference to the demand letter was made by the
prosecution. The prosecution claimed that the demand letter was sent by registered mail. To prove this,
it presented a copy of the demand letter as well as the registry return receipt bearing a signature which
was, however, not even authenticated or identified. A registry receipt alone is insufficient as proof of
mailing.[26] Receipts for registered letters and return receipts do not prove themselves; they must be
properly authenticated in order to serve as proof of receipt of the letters. [27]

It is clear from the foregoing that complainant merely presumed that appellant received the demand
letter prepared and sent by her lawyer. She was not certain if appellant indeed received the notice of
dishonor of the checks. All she knew was that a demand letter was sent by her lawyer to the appellant.
In fact, right after complainant made that presumption, her lawyer filed the criminal cases against
appellant at the Fiscals office [28] without any confirmation that the demand letter supposedly sent
through registered mail was actually received by appellant.

With the evident lack of notice of dishonor of the checks, appellant cannot be held guilty of violation
of BP 22. The lack of such notice violated appellants right to procedural due process. It is a general
rule that when service of notice is an issue, the person alleging that the notice was served must prove
the fact of service.[29] The burden of proving receipt of notice rests upon the party asserting it and the
quantum of proof required for conviction in this criminal case is proof beyond reasonable doubt.

When, during the trial, appellant denied having received the demand letter, it became incumbent
upon the prosecution to prove that the demand letter was indeed sent through registered mail and that
the same was received by appellant. But it did not. Obviously, it relied merely on the weakness of the
evidence of the defense.

This Court therefore cannot, with moral certainty, convict appellant of violation of BP 22. The
evident failure of the prosecution to establish that she was given the requisite notice of dishonor justifies
her acquittal.[30]

As held in Lao vs. Court of Appeals:[31]

It has been observed that the State, under this statute, actually offers the violator a compromise by
allowing him to perform some act which operates to preempt the criminal action, and if he opts to
perform it the action is abated. This was also compared to certain laws allowing illegal possessors of
firearms a certain period of time to surrender the illegally possessed firearms to the Government,
without incurring any criminal liability. In this light, the full payment of the amount appearing in the
check within five banking days from notice of dishonor is a complete defense. The absence of a notice
of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution.
Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually served on
petitioner. Petitioner has a right to demand and the basic postulates of fairness require -- that the
notice of dishonor be actually sent to and received by her to afford her the opportunity to avert
prosecution under B.P. 22.

Stated otherwise, responsibility under BP 22 was personal to appellant; hence, personal knowledge
of the notice of dishonor was necessary. Consequently, while there may have been constructive notice
to appellant regarding the insufficiency of her funds in the bank, it was not enough to satisfy the
requirements of procedural due process.

Finally, it is worth mentioning that notice of dishonor is required under both par. 2(d) Art. 315 of the
RPC and Sec. 2 of BP 22. While the RPC prescribes that the drawer of the check must deposit the
amount needed to cover his check within three days from receipt of notice of dishonor, BP 22, on the
other hand, requires the maker or drawer to pay the amount of the check within five days from receipt
of notice of dishonor. Under both laws, notice of dishonor is necessary for prosecution (for estafa and
violation of BP 22). Without proof of notice of dishonor, knowledge of insufficiency of funds cannot be
presumed and no crime (whether estafa or violation of BP 22) can be deemed to exist.

WHEREFORE, the decision of the trial court is hereby REVERSED and SET ASIDE. Appellant Cora Abella
Ojeda is ACQUITTED in Criminal Case No. 88-66228 for estafa and in Criminal Case Nos. 88-66230, 88-
66232, 88-66235 to 88-66240, 88-66242, 88-66243, 88-66245 to 88-66248 for violation of BP 22.
3. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANIEL QUIJADA Y
CIRCULADO, accused-appellant.
DECISION
DAVIDE, JR., J.:
Accused-appellant Daniel Quijada appeals from the decision of 30 September 1993 of Branch 1
of the Regional Trial Court (RTC) of Bohol convicting him of the two offenses separately charged in two
informations, viz., murder under Article 248 of the Revised Penal Code and illegal possession of firearm
in its aggravated form under P.D. No. 1866, and imposing upon him the penalty of reclusionperpetua for
the first crime and an indeterminate penalty ranging from seventeen years, four months, and one day,
as minimum, to twenty years and one day, as maximum, for the second crime. [1]
The appeal was originally assigned to the Third Division of the Court but was later referred to the
Court en banc in view of the problematical issue of whether to sustain the trial court's judgment in
conformity with the doctrine laid down in People vs. Tac-an,[2] People vs. Tiozon,[3] People vs.Caling,
[4]
People vs. Jumamoy,[5] People vs. Deunida,[6] People vs. Tiongco,[7] People vs. Fernandez,[8] and People
vs. Somooc,[9] or to modify the judgment and convict the appellant only of illegal possession of firearm in
its aggravated form pursuant to People vs. Barros,[10] which this Court (Second Division) decided on 27
June 1995.
The informations read as follows:
CRIMINAL CASE NO. 8178
That on or about the 30th day of December, 1992, in the municipality of Dauis, province of Bohol,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to
kill and without any justifiable motive, with treachery and abuse of superior strength, the accused being
then armed with a .38 cal. revolver, while the victim was unarmed, suddenly attacked the victim without
giving the latter the opportunity to defend himself, and with evident premeditation, the accused having
harbored a grudge against the victim a week prior to the incident of murder, did then and there willfully,
unlawfully and feloniously attack, assault and shoot Diosdado Iroy y Nesnea with the use of the said
firearm, hitting the latter on his head and causing serious injuries which resulted to his death; to the
damage and prejudice of the heirs of the deceased.
Acts committed contrary to the provision of Art. 248 of the Revised Penal Code, with aggravating
circumstance of nighttime being purposely sought for or taken advantage of by the accused to facilitate
the commission of the crime.[11]
CRIMINAL CASE NO. 8179
That on or about the 30th day of December, 1992, in the municipality of Dauis, province of Bohol,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and
there willfully, unlawfully and feloniously keep, carry and have in his possession, custody and control a
firearm (hand gun) with ammunition, without first obtaining the necessary permit or license to possess
the said firearm from competent authorities which firearm was carried by the said accused outside of his
residence and was used by him in committing the crime of Murder with Diosdado Iroy y Nesnea as the
victim; to the damage and prejudice of the Republic of the Philippines.
Acts committed contrary to the provisions of P.D. No. 1866.[12]
Having arisen from the same incident, the cases were consolidated, and joint hearings were
had. The witnesses presented by the prosecution were SPO4 Felipe Nigparanon (Acting Chief of Police of
Dauis, Bohol), SPO Gondalino Inte, Dr. Greg Julius Sodusta, Rosita Iroy, and Teodula Matalinis. The
defense presented as witnesses Alfred Aranzado, Edwin Nistal, Julius Bonao, Saturnino Maglupay, and
the appellant himself.
The evidence for the prosecution is summarized by the Office of the Solicitor General in the Brief for
the Appellee as follows:
On 25 December 1992, a benefit dance was held at the Basketball Court of Barangay Tinago, Dauis,
Bohol. On this occasion, a fist fight occurred between Diosdado Iroy and appellant Daniel Quijada as the
latter was constantly annoying and pestering the former's sister. Rosita Iroy (TSN, Crim. Cases 8178 &
8179, June 8, 1993, pp. 32-35; August 5, 1993, pp. 14-15).
In the evening of 30 December 1992, another benefit dance/disco was held in the same place. This
benefit dance was attended bv Rosita Iroy, Ariel Dano, Teodora Badayos, Ado Aranzado, Largo Iroy and
Diosdado Iroy.
While Rosita Iroy and others were enjoying themselves inside the dancing area, Diosdado Iroy,
Eugene Nesnea and Largo Iroy, who were then sitting at the plaza (the area where they positioned
themselves was duly lighted and was approximately four meters from the dancing hall), decided to just
watch the activities in the dance hall directly from the plaza.
After dancing, Rosita Iroy decided to leave and went outside the gate of the dance
area. Subsequently, or around 11:30 of the same night, while facing the direction of Diosdado Iroy,
Rosita lroy saw appellant surreptitiously approach her brother Diosdado Iroy from behind. Suddenly,
appellant fired his revolver at Diosdado Iroy, hitting the latter at the back portion of the head. This
caused Rosita Iroy to spontaneously shout that appellant shot her brother; while appellant, after
shooting Diosdado Iroy, ran towards the cornfield.
Diosdado Iroy was immediately rushed by Elmer Nigparanon and Largo Iroy to the hospital but the
injury sustained was fatal. In the meantime, Rosita Iroy went home and relayed to her parents the
unfortunate incident (TSN, Crim Case Nos. 8178 & 8179, June 8, 1993, pp. 9-22, inclusive of the
preceding paragraphs).
At around midnight, the incident was reported to then Acting Chief of Police Felipe Nigparanon by
Mrs. Alejandra Iroy and her daughter Teodula Matalinis. The police officer made entries in the police
blotter regarding the shooting and correspondingly, ordered his men to pick up the appellant. But they
were unable to locate appellant on that occasion (TSN, Crim. Case Nos. 8178 & 8179, June 9, 1993, pp.
2-6).
In the afternoon of 31 December 1992, appellant, together with his father Teogenes Quijada went to
the police station at Dauis, Bohol. There and then, appellant was pinpointed by Elenito Nistal and Rosita
Iroy as the person who shot Diosdado Iroy. These facts were entered in the police blotter as Entry No.
1151 (TSN, Crim. Case Nos. 8178 & 8179, ibid. p. 14, June 14, 1993, pp. 4-6).[13]
The slug was embedded at the midbrain. [14] Diosdado Iroy died of Cardiorespiratory arrest,
secondary to tonsillar herniation, secondary to massive intracranial hemorrhage, secondary to gunshot
wound, 1 cm. left occipital area, transacting cerebellum up to midbrain. [15]
The firearm used by the appellant in shooting Diosdado Iroy was not licensed. Per certifications
issued on 26 April 1993, the appellant was not a duly licensed firearm holder as verified from a
consolidated list of licensed firearm holders in the province [16] and was not authorized to carry a firearm
outside his residence.[17]
The appellant interposed the defense of alibi, which the trial court rejected because he was
positively identified by prosecution witness Rosita Iroy. It summarized his testimony in this wise:
Daniel Quijada y Circulado, the accused in the instant cases, declared that in the afternoon of
December 30, 1992 he was in their house At 6:00 o'clock in the afternoon he went to Tagbilaran City
together with Julius Bonao in a tricycle No. 250 to solicit passengers. They transported passengers until
10:30 o'clock in the evening. They then proceeded to the Tagbilaran wharf waiting for the passenger
boat Trans Asia Taiwan. Before the arrival of Trans Asia Taiwan they had a talk with Saturnino
Maglopay. They were able to pick up two passengers for Graham Avenue near La Roca Hotel. They then
returned to the Tagbilaran wharf for the arrival of MV Cebu City that docked at 12:10 past
midnight. They had a talk with Saturnino Maglopay who was waiting for his aunties scheduled to arrive
aboard MV Cebu City. They were not able to pick up passengers which, as a consequence, they went
home. They had on their way home passengers for the Agora Public Market. They arrived at the house
of Julian Bonao at Bil-isan, Panglao, Bohol at 3:00 o'clock in the morning of December 31, 1992 where he
passed the night. He went home to Mariveles, Dauis, Bohol at 9:00 o'clock in the morning. [18]
The trial court gave full faith and credit to the version of the prosecution and found the appellant
guilty beyond reasonable doubt of the crimes charged and sentenced him accordingly. It appreciated
the presence of the qualifying circumstance of treachery considering that the appellant shot the victim
at the back of the head while the latter was watching the dance. The dispositive portion of the decision
dated 30 September 1993 reads as follows:
PREMISES CONSIDERED, in Criminal Case No. 8178, the court finds the accused Daniel Quijada
guilty of the crime of murder punished under Article 248 of the Revised Penal Code and hereby
sentences him to suffer an imprisonment of Reclusion Perpetua, with the accessories of the law and to
pay the cost.
In Criminal Case No. 8179, the Court finds the accused Daniel Quijada guilty of the crime of
Qualified Illegal Possession of Firearm and Ammunition punished under Sec. 1 of R.A. No. 1866 as
amended, and hereby sentences him to suffer an indeterminate sentence from Seventeen (17) years
Four (4) months and One (1) day, as minimum, to Twenty (20) years and One (1) day, as maximum, with
the accessories of the law and to pay the cost.
The slug or bullet which was extracted from the brain at the back portion of the head of the victim
Diosdado Iroy is hereby ordered forfeited in favor of the government.
It appearing that the accused Daniel Quijada has undergone preventive imprisonment he is entitled
to the full time he has undergone preventive imprisonment to be deducted from the term of sentence if
he has executed a waiver otherwise he will only be entitled to 4/5 of the time he has undergone
preventive imprisonment to be deducted from his term of sentence if he has not executed a waiver. [19]
On 29 October 1993, after discovering that it had inadvertently omitted in the decision an award of
civil indemnity and other damages in Criminal Case No. 8178, the trial court issued an order directing
the appellant to pay the parents of the victim the amount of P50,000.00 as indemnity for the death of
their son and P10,000.00 for funeral expenses.[20] The order was to form an integral part of the decision.
The decision was promulgated on 29 October 1993.[21]
The appellant forthwith interposed the present appeal, and in his Brief, he contends that the trial
court erred
I
. . . IN CONVICTING ACCUSED-APPELLANT AND GIVING CREDENCE TO THE TESTIMONY OF PROSECUTION
WITNESSES ROSITA IROY AND FELIPE NIGPARANON.
II
. . . IN NOT CONSIDERING THE TESTIMONIES OF DEFENSE WITNESSES EDWIN NISTAL AND ALFRED
ARANZADO, AND IN DISREGARDING THE PICTORIAL EXHIBITS OF THE ACCUSED-APPELLANT
PARTICULARLY THE RELATIVE POSITIONS OF DIOSDADO IROY, ROSITA IROY, EDWIN NISTAL, AND ALFRED
ARANZADO.
III
. . . IN FAILING TO CONSIDER THAT PROSECUTION WITNESSES ROSITA IROY AND SP04 FELIPE
NIGPARANON HAD MOTIVES IN FALSELY TESTIFYING AGAINST ACCUSED-APPELLANT. [22]
The appellant then submits that the issue in this case boils down to the identity of the killer of
Diosdado Iroy. To support his stand that the killer was not identified, he attacks the credibility of
prosecution witnesses Rosita Iroy and SP04 Felipe Nigparanon. He claims that the former had a motive
"to put him in a bad light" and calls our attention to her direct testimony that her brother Diosdado, the
victim, boxed him on the night of 25 December 1992 because he allegedly "bothered her." He further
asserts that Rosita could not have seen the person who shot Diosdado considering their respective
positions, particularly Rosita who, according to defense witnesses Nistal and Aranzado, was still inside
the dancing area and ran towards the crime scene only after Diosdado was shot. And, the appellant
considers it as suppression of evidence when the prosecution did not present as witnesses Diosdado's
companions who were allegedly seated with Diosdado when he was shot.
As to SPO4 Nigparanon, the appellant intimates improper motives in that the said witness is a
neighbor of the Iroys, and when he testified, a case for arbitrary detention had already been filed
against him by the appellant. The appellant further claims of alleged omissions and unexplained entries
in the police blotter.
Finally, the appellant wants us to favorably consider his defense of alibi which, according to him,
gained strength because of the lack of evidence on the identity of the killer. Furthermore, he stresses
that his conduct in voluntarily going to the police station after having been informed that he, among
many others, was summoned by the police is hardly the actuation of the perpetrator of the killing of
Diosdado Iroy -- specially so if Rosita Iroy's claim is to be believed that moments after the shooting she
shouted that Daniel Quijada shot Diosdado Iroy.
In its Appellee's Brief, the People refutes every argument raised by the appellant and recommends
that we affirm in toto the challenged decision.
After a careful scrutiny of the records and evaluation of the evidence adduced by the parties, we
find this appeal to be absolutely without merit.
 The imputation of ill-motive on the part of Rosita Iroy and the basis therefor hardly persuade. The
appellant was the one who was boxed by and lost to Diosdado Iroy in their fight on the night of 25
December 1992. It is then logical and consistent with human experience that it would be the appellant
who would have forthwith entertained a grudge, if not hatred, against Diosdado. No convincing
evidence was shown that Rosita had any reason to falsely implicate the appellant in the death of her
brother Diosdado.
The claim that Rosita could not have seen who shot her brother Diosdado because, as testified to by
defense witnesses Nistal and Aranzado, she was inside the dancing hall and rushed to her brother only
after the latter was shot is equally baseless. The following testimony of Rosita shows beyond cavil that
she saw the assailant:
Q You said that you were initially dancing inside the dancing place and you went out, about what
time did you get out?
A 11:00 o'clock.
Q And you were standing about two (2) meters from Diosdado Iroy until 11:30 when the incident
happened?
A Yes, I was standing.
Q And where did you face, you were facing Diosdado Iroy or the dancing area?
A I was intending to go near my brother. I was approaching and getting near going to my brother
Diosdado Iroy and while in the process I saw Daniel Quijada shot my brother Diosdado Iroy. [23]
xxx xxx xxx
Q And in your estimate, how far was your brother Diosdado Iroy while he was sitting at the plaza
to the dancing place?
A More or less four (4) meters distance.
COURT:
From the dancing hall?
A Yes, your honor.
Q And in your observation, was the place where Diosdado Iroy was sitting lighted or illuminated?
A Yes, sir.
Q What kind of light illuminated the place?
A I do not know what kind of light but it was lighted.
Q Was it an electric light?
A It is electric light coming from a bulb.
Q Where is that electric bulb that illuminated the place located?
A It was placed at the gate of the dancing place and the light from the house.
Q You said gate of the dancing place, you mean the dancing place was enclosed at that time and
there was a gate, an opening?
A Yes, sir.
Q What material was used to enclose the dancing place?
A Bamboo.
Q And how far was the bulb which was placed near the entrance of the dancing place to the place
where Diosdado Iroy was sitting?
A Five (5) meters.
Q You mentioned also that there was a light coming from the house, now whose house was that?
A The house of spouses Fe and Berto, I do not know the family name.
Q Was the light coming from the house of spouses Fe and Berto an electric light?
A Yes sir.
Q And in your estimate, how far was the source of light of the house of Fe and Berto to the place
where Diosdado Iroy was sitting?
A About six (6) meters distance.[24]
xxx xxx xxx
Q What was the color of the electric bulb in the gate of the dancing place?
A The white bulb.[25]
 The trial court disbelieved the testimony of Nistal and Aranzado. It explicitly declared:
The factual findings of the Court in the instant case is anchored principally in ". . . observing the attitude
and deportment of witnesses while listening to them speak(People vs. Magaluna, 205, SCRA 266).
thereby indicating that on the basis of the witnesses' deportment and manner of testifying, the
declarations of Nistal and Aranzado failed to convince the trial court that they were telling the
truth. Settled is the rule that the factual findings of the trial court, especially on the credibility of
witnesses, are accorded great weight and respect. For, the trial court has the advantage of observing
the witnesses through the different indicators of truthfulness or falsehood, such as the angry flush of an
insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer
or the forthright tone of a ready reply; [26] or the furtive glance, the blush of conscious shame, the
hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the
candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien. [27] The
appellant has miserably failed to convince us that we must depart from this rule.
Neither are we persuaded by the claimed suppression of evidence occasioned by the non-
presentation as prosecution witnesses any of the companions of Diosdado who were seated with him
when he was shot. In the first place, the said companions could not have seen from their back the
person who suddenly shot Diosdado. In the second place, the testimony of the companions would, at
the most, only corroborate that of Rosita Iroy. Besides, there is no suggestion at all that the said
companions were not available to the appellant. It is settled that the presumption in Section 3 (e), Rule
131 of the Rules of Court that evidence willfully suppressed would be adverse if produced does not apply
when the testimony of the witness is merely corroborative or where the witness is available to the
accused.[28]
The alleged improper motive on the part of SP04 Nigparanon simply because he is a neighbor of the
Iroy; remains purely speculative, as no evidence was offered to establish that such a relationship
affected SP04 Nigparanon's objectivity. As a police officer, he enjoyed in his favor the presumption of
regularity in the performance of his official duty. [29] As to the alleged omissions and unexplained entries
in the police blotter, the same were sufficiently clarified by SP04 Nigparanon.
The defense of alibi interposed by the appellant deserves scant consideration. He was positively
identified by a credible witness. It is a fundamental judicial dictum that the defense of alibi cannot
prevail over the positive identification of the accused. [30] Besides, for that defense to prosper it is not
enough to prove that the accused was somewhere else when the crime was committed; he must also
demonstrate that it was physically impossible for him to have been at the scene of the crime at the time
of its commission.[31] As testified to by defense witness Julian Bonao, the Tagbilaran wharf, where the
appellant said he was, is only about eight to nine kilometers away from the crime scene and it would
take only about thirty minutes to traverse the distance with the use of a tricycle. [32] It was, therefore, not
physically impossible for the appellant to have been at the scene of the crime at the time of its
commission.
Finally, the appellant asserts that if he were the killer of Diosdado Iroy, he would not have
voluntarily proceeded to the police station. This argument is plain sophistry. The law does not find
unusual the voluntary surrender of offenders; it even considers such act as a mitigating circumstance.
[33]
Moreover, non-flight is not conclusive proof of innocence.[34]
The evidence for the prosecution further established with moral certainty that the appellant had no
license to possess or carry a firearm. The firearm then that he used in shooting Diosdado Iroy was
unlicensed. He, therefore, committed the crime of aggravated illegal possession of firearm under the
second paragraph of Section 1 of P.D. No. 1866, which reads:
SEC.
1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms, Ammunition or Instru
ments Used or Intended to be Used in theManufacture of Firearms or Ammunition -- The penalty
of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person
who shall unlawfully manufacture, deal in, acquire, dispose or possess any firearm, part of firearm,
ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any
firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall
be imposed.
In light of the doctrine enunciated in People vs. Tac-an,[35] and reiterated in People vs. Tiozon,
[36]
People vs. Caling,[37] People vs. Jumamoy,[38] People vs. Deunida,[39] People vs. Tiongco,[40] People vs. F
ernandez,[41] and People vs. Somooc,[42] that one who kills another with the use of an unlicensed firearm
commits two separate offenses of (1) either homicide or murder under the Revised Penal Code, and (2)
aggravated illegal possession of firearm under the second paragraph of Section 1 of P.D. No. 1866, we
sustain the decision of the trial court finding the appellant guilty of two separate offenses of murder in
Criminal Case No. 8178 and of aggravated illegal possession of firearm in Criminal Case No. 8179.
Although Tac-an and Tiozon relate more to the issue of whether there is a violation of the
constitutional proscription against double jeopardy if an accused is prosecuted for homicide or murder
and for aggravated illegal possession of firearm, they at the same time laid down the rule that these are
separate offenses, with the first punished under the Revised Penal Code and the second under a special
law; hence, the constitutional bar against double jeopardy will not apply. We observed in Tac-an:
It is elementary that the constitutional right against double jeopardy protects one against a second or
later prosecution for the same offense, and that when the subsequent information charges another and
different offense, although arising from the same act or set of acts, there is no prohibited double
jeopardy. In the case at bar, it appears to us quite clear that the offense charged in Criminal Case No.
4007 is that of unlawful possession of an unlicensed firearm penalized under a special statute, while the
offense charged in Criminal Case No. 4012 was that of murder punished under the Revised Penal
Code. It would appear self-evident that these two (2) offenses in themselves are quite different one
from the other, such that in principle, the subsequent filing of Criminal Case No. 4012 is not to be
regarded as having placed appellant in a prohibited second jeopardy.
And we stressed that the use of the unlicensed firearm cannot serve to increase the penalty for
homicide or murder; however, the killing of a person with the use of an unlicensed firearm, by express
provision of P.D. No. 1866, shall increase the penalty for illegal possession of firearm.
In Tiozon, we stated:
It may be loosely said that homicide or murder qualifies the offense penalized in said Section 1 because
it is a circumstance which increases the penalty. It does not, however, follow that the homicide or
murder is absorbed in the offense; otherwise, an anomalous absurdity results whereby a more serious
crime defined and penalized in the Revised Penal Code is absorbed by a statutory offense, which is just
a malum prohibitum. The rationale for the qualification, as implied from the exordium of the decree, is
to effectively deter violations of the laws on firearms and to stop the "upsurge of crimes vitally affecting
public order and safety due to the proliferation of illegally possessed and manufactured firearms, x x x."
In fine then, the killing of a person with the use of an unlicensed firearm may give rise to separate
prosecutions for (a) violation of Section 1 of P.D. No. 1866 and (b) violation of either Article 248 (Murder)
or Article 249 (Homicide) of the Revised Penal Code. The accused cannot plead one as a bar to the
other; or, stated otherwise, the rule against double jeopardy cannot be invoked because the first is
punished by a special law while the second, homicide or murder, is punished by the Revised Penal Code.
In People vs. Doriguez, [24 SCRA 163, 171], We held:
It is a cardinal rule that the protection against double jeopardy may be invoked only for the same
offense or identical offenses. A simple act may offend against two (or more) entirely distinct and
unrelated provisions of law, and if one provision requires proof of an additional fact or element which the
other does not, an acquittal or conviction or a dismissal of the information under one does not bar
prosecution under the other. Phrased elsewise, where two different laws (or articles of the same code)
defines two crimes, prior jeopardy as to one of them is not obstacle to a prosecution of the other,
although both offenses arise from the same fact, if each crime involves some important act which is not
an essential element of the other.
In People vs. Bacolod [89 Phil. 621], from the act of firing a shot from a sub-machine gun which caused
public panic among the people present and physical injuries to one, informations of physical injuries
through reckless imprudence and for serious public disturbance were filed. Accused pleaded guilty and
was convicted in the first and he sought to dismiss the second on the ground of double jeopardy. We
ruled:
The protection against double jeopardy is only for the same offense. A simple act may be an offense
against two different provisions of law and if one provision requires proof of an additional fact which the
other does not, an acquittal or conviction under one does not bar prosecution under the other.
Since the informations were for separate offense[s] -- the first against a person and the second against
public peace and order -- one cannot be pleaded as a bar to the other under the rule on double jeopardy.
In Caling, we explicitly opined that a person charged with aggravated illegal possession of firearm
under the second paragraph of Section 1 of P.D. No. 1866 can also be separately charged with and
convicted of homicide or murder under the Revised Penal Code and punished accordingly. Thus:
It seems that the Court a quo did indeed err in believing that there is such a thing as "the special
complex crime of Illegal Possession of Unlicensed Firearm Used in Homicide as provided for and defined
under the 2nd paragraph of Sec. 1 of P.D. 1866 as amended," and declaring Caling guilty thereof. The
legal provision invoked, "Sec. 1 of P.D. 1866, as amended," reads as follows:
"SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms [or]
Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition.
- The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon
any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of
firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of
any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be
imposed."
What is penalized in the first paragraph, insofar as material to the present case is the sole, simple act of
a person who shall, among others, "unlawfully possess any firearm x x x (or) ammunition x x x."
Obviously, possession of any firearm is unlawful if the necessary permit and/or license therefor is not
first obtained. To that act is attached the penalty of reclusion temporal, maximum,
to reclusion perpetua. Now, if "with the use of (such) an unlicensed firearm, a "homicide or murder is
committed," the crime is aggravated and is more heavily punished, with the capital punishment.
The gravamen of the offense in its simplest form is, basically, the fact of possession of a firearm without
license. The crime may be denominated simple illegalpossession, to distinguish it from its aggravated fo
rm. It is Aggravated if the unlicensed firearm is used in the commission of a homicide or murder under t
heRevised Penal Code. But the homicide or murder is not absorbed in the crime of possession of an unli
censed firearm; neither is the latter absorbed in the former. There are two distinct crimes that are here s
poken of. One is unlawful possession of a firearm, which may be either simple or aggravated, defined an
d punishedrespectively by the first and second paragraphs of Section 1 of PD 1866. The other is homici
de or murder, committed with the use of an unlicensed firearm. Themere possession of a firearm withou
t legal authority consummates the crime under P.D. 1866, and the liability for illegal possession is made
heavier by the firearm'suse in a killing. The killing, whether homicide or murder, is obviously distinct fro
m the act of possession, and is separately punished and defined under the RevisedPenal Code. (emphasi
s supplied)
In Jumamoy, we reiterated Caling and amplified the rationale on why an accused who kills another
with an unlicensed firearm can be prosecuted and punished for the two separate offenses of violation of
the second paragraph of Section 1 of P.D. No. 1866 and for homicide or murder under the Revised Penal
Code. Thus:
Coming to the charge of illegal possession of firearms, Section 1 of P.D. No. 1866
penalizes, inter alia, the unlawful possession of firearms or ammunition withreclusion temporal in its
maximum period to reclusion perpetua. However, under the second paragraph thereof, the penalty is
increased to death if homicide or murder is committed with the use of an unlicensed
firearm. It may thus be loosely said that homicide or murder qualifies the offense because both are circ
umstanceswhich increase the penalty. It does not, however, follow that the homicide or murder is absor
bed in the offense. If these were to be so, an anomalous absurditywould result whereby a more serious
crime defined and penalized under the Revised Penal Code will be absorbed by a statutory offense, one
which is merely malumprohibitum. Hence, the killing of a person with the use of an unlicensed firearm
may give rise to separate prosecutions for (a) the violation of Section 1 of P.D. No.1866 and (b) the violat
ion of either Article 248 (Murder) or Article 249 (Homicide) of the Revised Penal Code. The accused
cannot plead one to bar the other; stated otherwise, the rule against double jeopardy cannot be invoked
as the first is punished by a special law while the second - Murder or Homicide - is punished by the
Revised Penal Code. [citing People vs. Tiozon, 198 SCRA 368, 379 (1991); People vs. Doriguez, 24 SCRA
163 (1968)]. Considering, however, that the imposition of the death penalty is prohibited by the
Constitution, the proper imposable penalty would be the penalty next lower in degree,
or reclusion perpetua. (emphasis supplied)
In Deunida, in discussing the propriety of the Government's action in withdrawing an information for
murder and pursuing only the information for "Qualified Illegal Possession of Firearm," this Court
categorically declared:
At the outset, it must be stressed that, contrary to the prosecution's legal position in withdrawing the
information for murder, the offense defined in the second paragraph of Section 1 of P.D. No. 1866 does
not absorb the crime of homicide or murder under the Revised Penal Code and, therefore, does not bar
the simultaneous or subsequent prosecution of the latter crime. The 1982 decision
in Lazaro vs. People, involving the violation of P.D. No. 9, which the investigating prosecutor invokes to
justify the withdrawal, is no longer controlling in view of our decisions in People vs. Tac-
an, People vs. Tiozon, and People vs. Caling.
In Somooc, we once more ruled:
The offense charged by the Information is clear enough from the terms of that document, although both
the Information and the decision of the trial court used the term "Illegal Possession of Firearm with
Homicide," a phrase which has sometimes been supposed to connote a "complex crime as used in the
Revised Penal Code. Such nomenclature is, however, as we have ruled in People vs. Caling, a misnomer
since there is no complex crime of illegal possession of firearm with homicide. The gravamen of the
offense penalized in P.D. No. 1866 is the fact of possession of a firearm without a license or authority for
such possession. This offense is aggravated and the imposable penalty upgraded if the unlicensed
firearm is shown to have been used in the commission of homicide or murder, offenses penalized under
the Revised Penal Code. The killing of a human being, whether characterized as homicide or murder, is
patently distinct from the act of possession of an unlicensed firearm and is separately punished under
the provisions of the Revised Penal Code.
The foregoing doctrine suffered a setback when in our decision of 27 June 1995 in People vs. Barros,
[43]
we set aside that portion of the appealed decision convicting the appellant of the offense of murder
and affirmed that portion convicting him of illegal possession of firearm in its aggravated form. We
therein made the following statement:
[A]ppellant may not in the premises be convicted of two separate offenses [of illegal possession of
firearm in its aggravated form and of murder], but only that of illegal possession of firearm in its
aggravated form, in light of the legal principles and propositions set forth in the separate opinion of Mr.
Justice Florenz D. Regalado, to which the Members of the Division, the ponente included, subscribe.
The pertinent portions of the separate opinion of Mr. Justice Florenz D. Regalado referred to therein
read as follows:
This premise accordingly brings up the second query as to whether or not the crime should properly be
the aggravated illegal possession of an unlicensed firearm through the use of which a homicide or
murder is committed. It is submitted that an accused so situated should be liable only for the graver
offense of aggravated illegal possession of the firearm punished by death under the second paragraph
of Section 1, Presidential Decree No. 1866, and it is on this point that the writer dissents from the
holding which would impose a separate penalty for the homicide in addition to that for the illegal
possession of the firearm used to commit the former.
If the possession of the unlicensed firearm is the only offense imputable to the accused, the Court has
correctly held that to be the simple possession punished withreclusion temporal in its maximum period
to reclusion perpetua in the first paragraph of Section 1. Where, complementarily, the unlicensed
firearm is used to commit homicide or murder, then either of these felonies will convert the erstwhile
simple illegal possession into the graver offense of aggravated illegal possession. In other words, the
homicide or murder constitutes the essential element for integrating into existence the capital offense of
the aggravated form of illegal possession of a firearm. Legally, therefore, it would be illogical and
unjustifiable to use the very same offenses of homicide or murder as integral elements of and to create
the said capital offense, and then treat the former all over again as independent offenses to be
separately punished further, with penalties immediately following the death penalty to boot.
The situation contemplated in the second query is, from the punitive standpoint, virtually of the nature
of the so-called, special complex crimes," which should more appropriately be called composite crimes,
punished in Article 294, Article 297 and Article 335. They are neither of the same legal basis as nor
subject to the rules on complex crimes in Article 48, since they do not consist of a single act giving rise
to two or more grave or less grave felonies nor do they involve an offense being a necessary means to
commit another. However, just like the regular complex crimes and the present case of aggravated
illegal possession of firearms, only a single penalty is imposed for each of such composite crimes
although composed of two or more offenses.
On the other hand, even if two felonies would otherwise have been covered by the conceptual definition
of a complex crime under Article 48, but the Code imposes a single definite penalty therefor, it cannot
also be punished as a complex crime, much less as separate offense, but with only the single penalty
prescribed by law. Thus, even where a single act results in two less grave felonies of serious physical
injuries and serious slander by deed, the offense will not be punished as a delitocompuesto under Article
48 but as less serious physical injuries with ignominy under the second paragraph of Article 265. The
serious slander by deed is integrated into and produces a graver offense, and the former is no longer
separately punished.
What is, therefore, sought to be stressed by such alternative illustration, as well as the discussion on
complex and composite crimes, is that when an offense becomes a component of another, the resultant
crime being correspondingly punished as thus aggravated by the integration of the other, the former is
not to be further separately punished as the majority would want to do with the homicide involved in the
case at bar.
With the foregoing answers to the second question, the third inquiry is more of a question of
classification for purposes of the other provisions of the Code. The theory in Tac-an that the principal
offense is the aggravated form of illegal possession of firearm and the killing shall merely be included in
the particulars or, better still, as an element of the principal offense, may be conceded. After all, the
plurality of crimes here is actually source from the very provisions of Presidential Decree No. 1866 which
sought to "consolidate, codify and integrate" the various laws and presidential decrees to harmonize
their provision" which must be updated and revised in order to more effectively deter violators of said
laws.
This would be akin to the legislative intendment underlying the provisions of the Anti-Carnapping Act of
1972, wherein the principal crime to be charged is still carnapping, although the penalty therefore is
increased when the owner, driver or occupant of the carnapped vehicle is killed. The same situation,
with escalating punitive provisions when attended by a killing, are found in the Anti-Piracy and Anti-
Highway Robbery Law of 1974 and the Anti-Cattle Rustling Law of 1974, wherein the principal crimes still
are piracy, highway robbery and cattle rustling. Also, in the matter of destructive arson, the principal
offense when, inter alia, death results as a consequence of the commission of any of the acts punished
under said article of the Code.
In the present case, the academic value of specifying whether it is a case of illegal possession of firearm
resulting in homicide or murder, or, conversely, homicide or murder through the illegal possession and
use of an unlicensed firearm, would lie in the possible application of the provision on
recidivism. Essentially, it would be in the theoretical realm since, taken either way, the penalty for
aggravated illegal possession of a firearm is the single indivisible penalty of death, in which case the
provision on recidivism would not apply. If, however, the illegal possession is not established but either
homicide or murder is proved, then the matter of recidivism may have some significance in the sense
that, for purposes thereof, the accused was convicted of a crime against persons and he becomes a
recidivist upon conviction of another crime under the same title of the Code.
Lastly, on the matter of the offense or offenses to be considered and the penalty to be imposed when
the unlawful killing and the illegal possession are charged in separate informations, from what has been
said the appropriate course of action would be to consolidate the cases and render a joint decision
thereon, imposing a single penalty for aggravated illegal possession of firearm if such possession and
the unlawful taking of life shall have been proved, or for only the proven offense which may be either
simple illegal possession, homicide or murder per se. The same procedural rule and substantive
disposition should be adopted if one information for each offense was drawn up and these informations
were individually assigned to different courts or branches of the same court.
Indeed, the practice of charging the offense of illegal possession separately from the homicide or murder
could be susceptible of abuse since it entails undue concentration of prosecutorial powers and
discretion. Prefatorily, the fact that the killing was committed with a firearm will necessarily be known to
the police or prosecutorial agencies, the only probable problem being the determination and obtention
of evidence to show that the firearm is unlicensed.
Now, if a separate information for homicide or murder is filed without alleging therein that the same was
committed by means of an unlicensed firearm, the case would not fall under Presidential Decree No.
1866. Even if the use of a firearm is alleged therein, but without alleging the lack of a license therefor
as where that fact has not yet been verified, the mere use of a firearm by itself, even if proved in that
case, would not affect the accused either since it is not an aggravating or qualifying circumstance.
Conversely, if the information is only for illegal possession, with the prosecution intending to
file thereafter the charge for homicide or murder but the same is inexplicably delayed or is not
consolidated with the information for illegal possession, then any conviction that may result from the
former would only be for simple illegal possession. If, on the other hand, the separate and subsequent
prosecution for homicide or murder prospers, the objective of Presidential Decree No. 1866 cannot be
achieved since the penalty imposable in that second prosecution will only be for the unlawful killing and
further subject to such modifying circumstances as may be proved.
In any event, the foregoing contingencies would run counter to the proposition that the real offense
committed by the accused, and for which sole offense he should be punished, is the aggravated form of
illegal possession of a firearm. Further, it is the writer's position that the possible problems projected
herein may be minimized or obviated if both offenses involved are charged in only one information or
that the trial thereof, if separately charged, be invariably consolidated for joint decision. Conjointly, this
is the course necessarily indicated since only a single composite crime is actually involved and it is
palpable error to deal therewith and dispose thereof by segregated parts in piecemeal fashion.
If we follow Barros, the conviction of the appellant for murder in Criminal Case No. 8178 must have
to be set aside. He should only suffer the penalty for the aggravated illegal possession of firearm in
Criminal Case No. 8179.
The Court en banc finds in this appeal an opportunity to reexamine the existing conflicting doctrines
applicable to prosecutions for murder or homicide and for aggravated illegal possession of firearm
in instances where an unlicensed firearm is used in the killing of a person. After a lengthy deliberation
thereon, the Court en banc arrived at the conclusion that the rule laid down in Tac-an, reiterated
in Tiozon, Caling, Jumamoy, Deunida,Tiongco, Fernandez, and Somooc is the better rule, for it applies
the laws concerned according to their letter and spirit, thereby steering this Court away from a
dangerous course which could have irretrievably led it to an inexcusable breach of the doctrine of
separation of powers through Judicial legislation. That rule upholds and enhances the lawmaker's intent
or purpose in aggravating the crime of illegal possession of firearm when an unlicensed firearm is used
in the commission of murder or homicide. Contrary to the view of our esteemed brother, Mr. Justice
Florenz D. Regalado, in his Concurring and Dissenting Opinion in the case under consideration, Tac-
an did not enunciate an unfortunate doctrine or a "speciously camouflaged theory" which "constitutes
an affront on doctrinal concepts of penal law and assails even the ordinary notions of common sense."
If Tac-an did in fact enunciate such an "unfortunate doctrine," which this Court has reiterated in a
convincing number of cases and for a convincing number of years, so must the same verdict be made in
our decision in People vs. De Gracia,[44] which was promulgated on 6 July 1994. In the latter case, we
held that unlawful possession of an unlicensed firearm in furtherance of rebellion may give rise to
separate prosecutions for a violation of Section 1 of P.D. No. 1866 and also for a violation of Articles 134
and 135 of the Revised Penal Code on rebellion. A distinction between that situation and the case where
an unlicensed firearm is used in homicide or murder would have no basis at all. In De Gracia, this Court,
speaking through Mr. Justice Florenz D. Regalado, made the following authoritative pronouncements:
III. As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989 up to
and until December 9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not appellant's
possession of the firearms, explosives and ammunition seized and recovered from him was for the
purpose and in furtherance of rebellion.
The trial court found accused guilty of illegal possession of firearms in furtherance of rebellion pursuant
to paragraph 2 of Article 135 of the Revised Penal Code which states that "any person merely
participating or executing the command of others in a rebellion shall suffer the penalty
of prision mayor in its minimum period." The court below held that appellant De Gracia, who had been
servicing the personal needs of Col. Matillano (whose active armed opposition against the Government,
particularly at the Camelot Hotel, was well known), is guilty of the act of guarding the explosives
and "molotov bombs for and in behalf of the latter. We accept this finding of the lower court.
The above provision of the law was, however, erroneously and improperly used by the court below as a
basis in determining the degree of liability of appellant and the penalty to be imposed on
him. It must be made clear that appellant is charged with the qualified offense of illegal possession of fi
rearms in furtherance ofrebellion under Presidential Decree No. 1866 which, in law, is distinct from the c
rime of rebellion punished under Article 134 and 135 of the Revised Penal Code. There are two separate
statutes penalizing different offenses with discrete penalties. The Revised Penal Code treats rebellion as
a crime apart from murder, homicide,arson, or other offenses, such as illegal possession of firearms, tha
t might conceivably be committed in the course of a rebellion. Presidential Decree No. 1866defines and
punishes, as a specific offense, the crime of illegal possession of firearms committed in the course or as
part of a rebellion.
As a matter of fact, in one case involving the constitutionality of Section 1 of Presidential Decree No. 186
6, the Court has explained that said provision of the lawwill not be invalidated by the mere fact that the
same act is penalized under two different statutes with different penalties, even if considered highly adv
antageous tothe prosecution and onerous to the accused. It follows that, subject to the presence of req
uisite elements in each case, unlawful possession of an unlicensed firearm infurtherance of rebellion ma
y give rise to separate prosecutions for a violation of Section 1 of Presidential Decree No. 1866, and also
a violation of Articles 134 and135 of the Revised Penal Code on rebellion. Double jeopardy in this case c
annot be invoked because the first is an offense punished by a special law while thesecond is a felony p
unished by the Revised Penal Code with variant elements.
We cannot justify what we did in De Gracia with a claim that the virtue of fidelity to a controlling
doctrine, i.e., of Tac-an, had compelled us to do so. Indeed, if Tac-an enunciated an "unfortunate
doctrine" which is "an affront on doctrinal concepts of penal law and assails even the ordinary notions of
common sense," then De Gracia should have blazed the trail of a new enlightenment and forthwith set
aside the "unfortunate doctrine" without any delay to camouflage a judicial faux pas or a doctrinal
quirk. De Gracia provided an excellent vehicle for an honorable departure from Tac-an because no
attack on the latter was necessary as the former merely involved other crimes to which the doctrine
in Tac-an might only be applied by analogy. De Gracia did not even intimate the need to reexamine Tac-
an; on the contrary, it adapted the latter to another category of illegal possession of firearm qualified by
rebellion precisely because the same legal principle and legislative purpose were involved, and not
because De Gracia wanted to perpetuate an "unfortunate doctrine" or to embellish "the expanding
framework of our criminal law from barnacled ideas which have not grown apace with conceptual
changes over time," as the concurring and dissenting opinion charges.
The majority now reiterates the doctrine in Tac-an and the subsequent cases not because it has
become hostage to the "inertia of time [which] has always been the obstacle to the virtues of change,"
as the concurring and dissenting opinion finds it to be, but rather because it honestly believes that Tac-
an laid down the correct doctrine. If P.D. No. 1866 as applied in Tac-an is an "affront on doctrinal
concepts of penal laws and assails even the ordinary notions of common sense," the blame must not be
laid at the doorsteps of this Court, but on the lawmaker's. All that the Court did in Tac-an was to apply
the law, for there was nothing in that case that warranted an interpretation or the application of the
niceties of legal hermeneutics. It did not forget that its duty is merely to apply the law in such a way
that shall not usurp legislative powers by judicial legislation and that in the course of such application or
construction it should not make or supervise legislation, or under the guise of interpretation modify,
revise, amend, distort, remodel, or rewrite the law, or give the law a construction which is repugnant to
its terms.[45]
Murder and homicide are defined and penalized by the Revised Penal Code [46] as crimes against
persons. They are mala in se because malice or dolo is a necessary ingredient therefor. [47] On the other
hand, the offense of illegal possession of firearm is defined and punished by a special penal law, [48] P.D.
No. 1866. It is a malum prohibitum[49] which the lawmaker, then President Ferdinand E. Marcos, in the
exercise of his martial law powers, so condemned not only because of its nature but also because of the
larger policy consideration of containing or reducing, if not eliminating, the upsurge of crimes vitally
affecting public order and safety due to the proliferation of illegally possessed and manufactured
firearms, ammunition, and explosives. If intent to commit the crime were required, enforcement of the
decree and its policy or purpose would be difficult to achieve. Hence, there is conceded wisdom in
punishing illegal possession of firearm without taking into account the criminal intent of the
possessor. All that is needed is intent to perpetrate the act prohibited by law, coupled, of course,
by animus possidendi. However, it must be clearly understood that this animuspossidendi is without
regard to any other criminal or felonious intent which an accused may have harbored in possessing the
firearm.[50]
A long discourse then on the concepts of malum in se and malum prohibilum and their distinctions
is an exercise in futility.
We disagree for lack of basis the following statements of Mr. Justice Regalado in his Concurring and
Dissenting Opinion, to wit:
The second paragraph of the aforestated Section 1 expressly and unequivocally provides for such illegal
possession and resultant killing as a single integrated offense which is punished as such. The majority
not only created two offenses by dividing a single offense into two but, worse, it resorted to the
unprecedented and invalid act of treating the original offense as a single integrated crime and then
creating another offense by using a component crime which is also an element of the former.
It would already have been a clear case of judicial legislation if the illegal possession with murder
punished with a single penalty have been divided into two separate offenses of illegal possession and
murder with distinct penalties. It is consequently a compounded infringement of legislative powers for
this Court to now, as it has done, treat that single offense as specifically described by the law and
impose reclusion perpetua therefor (since the death penalty for that offense is still proscribed), but then
proceed further by plucking out therefrom the crime of murder in order to be able to impose the death
sentence. For indeed, on this score, it is beyond cavil that in the aggravated form of illegal possession,
the consequential murder (or homicide) is an integrated element or integral component since without
the accompanying death, the crime would merely be simple illegal possession of a firearm under the
first paragraph of Section 1.
The second paragraph of Section 1 of P.D. No. 1866 does not warrant and support a conclusion that
it intended to treat "illegal possession andresultant killing" (emphasis supplied) "as a single and
integrated offense" of illegal possession with homicide or murder. It does not use the
clause asa result or on the occasion of to evince an intention to create a single integrated crime. By its
unequivocal and explicit language, which we quote to be clearly understood:
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be
imposed. (emphasis supplied)
the crime of either homicide or murder is committed NOT AS A RESULT OR ON THE OCCASION of the
violation of Section 1, but WITH THE USE of an unlicensed firearm, whose possession is penalized
therein. There is a world of difference, which is too obvious, between (a) the commission of homicide or
murder as a result or on the occasion of the violation of Section 1, and (b) the commission of homicide
or murder with theuse of an unlicensed firearm. In the first, homicide or murder is not the original
purpose or primary objective of the offender, but a secondary event or circumstance either resulting
from or perpetrated on the occasion of the commission of that originally or primarily intended. In the
second, the killing, which requires a mens rea, is the primary purpose, and to carry that out effectively
the offender uses an unlicensed firearm.
As to the question then of Mr. Justice Regalado of whether this Court should also apply the rule
enunciated here to P.D. No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974), P.D. No. 533 (Anti-
Cattle Rustling Law of 1974), and P.D. No. 534 (Defining Illegal Fishing and Prescribing Stiffer Penalties
Therefor), the answer is resoundingly in the negative. In those cases, the lawmaker clearly intended a
single integrated offense or a special complex offense because the death therein occurs
as a result or on the occasion of the commission of the offenses therein penalized or was not the
primary purpose of the offender, unlike in the second paragraph of Section 1 of P.D. No. 1866. Thus, (a)
Section 3 of P.D. No. 532 provides:
SEC. 3. Penalties. -- Any person who commits piracy or highway robbery/brigandage as herein defined,
shall, upon conviction by competent court be punished by:
a. Piracy. - The penalty of reclusion temporal in its medium and maximum periods shall be imposed. If
physical injuries or other crimes are committed as a result or on the occasion thereof, the penalty
of reclusion perpetua shall be imposed. If
rape, murder or homicide is committed as a result or on the occasion of piracy, or when the offenders
abandoned the victims without means of saving themselves, or when the seizure is accomplished by
firing upon or boarding a vessel, the mandatory penalty of death shall be imposed.
b. Highway Robbery/Brigandage.-- The penalty of reclusion temporal in its minimum period shall be
imposed. If physical injuries or other crimes are committed during or on the occasion of the commission
of robbery or brigandage, the penalty of reclusion temporal in its medium and maximum periods shall
be imposed. Ifkidnapping for ransom or extortion, or murder or homicide, or
rape is committed as a result or on the occasion thereof, the penalty of death shall be
imposed. (emphasis supplied)
(b) Section 8 of P.D. No. 533 reads in part as follows:
SEC. 8. Penal provisions. -- Any person convicted of cattle rustling as herein defined shall, irrespective of
the value of the large cattle involved, be punished byprision mayor in its maximum period
to reclusion temporal in its medium period if the offense is committed without violence against or
intimidation of persons or force upon things. If the offense is committed with violence against or
intimidation of persons or force upon things, the penalty of reclusion temporal in its maximum period
to reclusion perpetua shall be imposed. If a person is seriously injured
or killed as a result or on the occasion of the commission of cattle rustling,the penalty of reclusion perpe
tua to death shall be imposed. (emphasis supplied)
and (c) Section 3 of P.D. No. 534 reads as follows:
SECTION. 3. Penalties.-- Violations of this Decree and the rules and regulations mentioned in paragraph
(f) of Section 1 hereof shall be punished as follows:
a. by imprisonment from 10 to 12 years, if explosives are
used: Provided, that if the explosion results (1) in physical injury to person, the penalty shall be
imprisonment from 12 to 20 years, or
(2) in the loss of human life, then the penalty shall be imprisonment from 20 years to life, or death;
b. by imprisonment from 8 to 10 years, if obnoxious or poisonous substances are
used: Provided, that if the use of such substances results (1) in physical injury to any person, the
penalty shall be imprisonment from 10 to 12 years, or
(2) in the loss of human life, then the penalty shall be imprisonment from 20 years to life, ordeath; x x x
(emphasis supplied)
The unequivocal intent of the second paragraph of Section 1 of P.D. No. 1866 is to respect and
preserve homicide or murder as a distinct offense penalized under the Revised Penal Code and to
increase the penalty for illegal possession of firearm where such a firearm is used in killing a person. Its
clear language yields no intention of the lawmaker to repeal or modify, pro tanto, Articles 248 and 249
of the Revised Penal Code, in such a way that if an unlicensed firearm is used in the commission of
homicide or murder, either of these crimes, as the case may be, would only serve to aggravate the
offense of illegal possession of firearm and would not anymore be separately punished. Indeed, the
words of the subject provision are palpably clear to exclude any suggestion that either of the crimes of
homicide and murder, as crimes mala in se under the Revised Penal Code, is obliterated as such and
reduced as a mere aggravating circumstance in illegal possession of firearm whenever the unlicensed
firearm is used in killing a person. The only purpose of the provision is to increase the penalty
prescribed in the first paragraph of Section 1 -- reclusion temporal in its maximum period to reclusion
perpetua -- to death, seemingly because of the accused's manifest arrogant defiance and contempt of
the law in using an unlicensed weapon to kill another, but never, at the same time, to absolve the
accused from any criminal liability for the death of the victim.
Neither is the second paragraph of Section 1 meant to punish homicide or murder with death if
either crime is committed with the use of an unlicensed firearm, i.e., to consider such use merely as
a qualifying circumstance and not as an offense. That could not have been the intention of the
lawmaker because the term "penalty" in the subject provision is obviously meant to be the penalty for
illegal possession of firearm and not the penalty for homicide or murder. We explicitly stated in Tac-an:
There is no law which renders the use of an unlicensed firearm as an aggravating circumstance in
homicide or murder. Under an information charging homicide or murder, the fact that the death weapon
was an unlicensed firearm cannot be used to increase the penalty for the second offense of homicide or
murder to death .... The essential point is that the unlicensed character or condition of the instrument
used in destroying human life or committing some other crime, is not included in the inventory of
aggravating circumstances set out in Article 14 of the Revised Penal Code.
A law may, of course, be enacted making the use of an unlicensed firearm as a qualifying
circumstance. This would not be without precedent. By analogy, we can cite Section 17 of B.P. Blg. 179,
which amended the Dangerous Drugs Act of 1972 (R.A. No. 6425). The said section provides that when
an offender commits a crime under a state of addiction, such a state shall be considered as a qualifying
aggravating circumstance in the definition of the crime and the application of the penalty under the
Revised Penal Code.
In short, there is nothing in P.D. No. 1866 that manifests, even vaguely, a legislative intent to
decriminalize homicide or murder if either crime is committed with the use of an unlicensed firearm, or
to convert the offense of illegal possession of firearm as a qualifying circumstance if the firearm so
illegally possessed is used in the commission of homicide or murder. To charge the lawmaker with that
intent is to impute an absurdity that would defeat the clear intent to preserve the law on homicide and
murder and impose a higher penalty for illegal possession of firearm if such firearm is used in the
commission of homicide or murder.
Evidently, the majority did not, as charged in the concurring and dissenting opinion, create two
offenses by dividing a single offense into two. Neither did it resort to the "unprecedented and invalid act
of treating the original offense as a single integrated crime and then creating another offense by using a
component crime which is also an element of the former." The majority has always maintained that
the killing of a person with the use of anillegally possessed firearm gives rise to two separate offenses of
(a) homicide or murder under the Revised Penal Code, and (b) illegal possession of firearm in its
aggravated form.
What then would be a clear case of judicial legislation is an interpretation of the second paragraph
of Section 1 of P.D. No. 1866 that would make it define and punish a single integrated offense and give
to the words WITH THE USE OF a similar meaning as the words AS A RESULT OR ON THE OCCASION OF, a
meaning which is neither born out by the letter of the law nor supported by its intent. Worth noting is
the rule in statutory construction that if a statute is clear, plain, and free from ambiguity, it must be
given its literal meaning and applied without attempted interpretation, [51] leaving the court no room for
any extended ratiocination or rationalization of the law.[52]
 Peregrinations into the field of penology such as on the concept of a single integrated crime or
composite crimes, or into the philosophical domain of integration of the essential elements of one crime
to that of another would then be unnecessary in light of the clear language and indubitable purpose and
intent of the second paragraph of Section 1 of P.D. No. 1866. The realm of penology, the determination
of what should be criminalized, the definition of crimes, and the prescription of penalties are the
exclusive prerogatives of the legislature. As its wisdom may dictate, the legislature may even create
from a single act or transaction various offenses for different purposes subject only to the limitations set
forth by the Constitution. This Court cannot dictate upon the legislature to respect the orthodox view
concerning a single integrated crime or composite crimes.
The only apparent obstacle to the imposition of cumulative penalties for various acts is the rule on
double jeopardy. This brings us to the proposition in the dissenting opinion of Mr. Justice Regalado that
the majority view offends the constitutional bar against double jeopardy under the "same-evidence" test
enunciated in People vs. Diaz.[53] He then concludes:
In the cases now before us, it is difficult to assume that the evidence for the murder in the first charge of
aggravated illegal possession of firearm with murder would be different from the evidence to be
adduced in the subsequent charge for murder alone. In the second charge, the illegal possession is not
in issue, except peripherally and inconsequentially since it is not an element or modifying circumstance
in the second charge, hence the evidence therefor is immaterial. But, in both prosecutions, the
evidence on murder is essential, in the first charge because without it the crime is only simple illegal
possession, and, in the second charge, because murder is the very subject of the prosecution. Assuming
that all the other requirements under Section 7, Rule 117 are present, can it be doubted that double
jeopardy is necessarily present and can be validly raised to bar the second prosecution for murder?
In fact, we can extrapolate the constitutional and reglementary objection to the cases of the other
composite crimes for which a single penalty is imposed, such as the complex, compound and so-called
special complex crimes. Verily, I cannot conceive of how a person convicted of estafa through
falsification under Article 48 can be validly prosecuted anew for the same offense or either estafa or
falsification; or how the accused convicted of robbery with homicide under Article 294 can be legally
charged again with either of the same component crimes of robbery or homicide; or how the convict
who was found guilty of rape with homicide under Article 335 can be duly haled before the court again
to face charges of either the same rape or homicide. Why, then, do we now sanction a second
prosecution for murder in the cases at bar since the very same offense was an indispensable component
for the other composite offense of illegal possession of firearm with murder? Why would the objection
of non bis in idim as a bar to a second jeopardy lie in the preceding examples and not apply to the cases
now before us?
We are unable to agree to the proposition. For one, the issue of double jeopardy is not raised in this
case. For another, the so-called "same-evidence" test is not a conclusive, much less exclusive, test in
double jeopardy cases of the first category under the Double Jeopardy Clause which is covered by
Section 21, Article III of the Constitution and which reads as follows:
No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a
law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution
for the same act.
Note that the first category speaks of the same offense. The second refers to the same act. This was
explicitly distinguished in Yap vs. Lutero,[54]from where People vs. Relova[55] quotes the following:
Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of clause 20,
Section 1, Article III of the Constitution, ordains that "no person shall be twice put in jeopardy of
punishment for the same offense." (italics in the original) The second sentence of said clause provides
that "if an act is punishable by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act." Thus, the first sentence prohibits double
jeopardy of punishment for the same offense whereas, the second contemplates double jeopardy of
punishment for the same act. Under the first sentence, one may be twice put in jeopardy of punishment
of the same act, provided that he is charged with different offenses, or the offense charged in one case
is not included in, or does not include, the crime charged in the other case. The second sentence
applies, even if the offenses charged are not the same, owing to the fact that one constitutes a violation
of an ordinance and the other a violation of a statute. If the two charges are based on one and the same
act, conviction or acquittal under either the law or the ordinance shall bar a prosecution under the
other. Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double
jeopardy of punishment for the same offense. So long as jeopardy has been attached under one of the
informations charging said offense, the defense may be availed of in the other case involving the same
offense, even if there has been neither conviction nor acquittal in either case.
Elsewise stated, where the offenses charged are penalized either by different sections of the same
statute or by different statutes, the important inquiry relates to the identity of offenses charged. The
constitutional protection against double jeopardy is available only where an identity is shown to exist
between the earlier and the subsequent offenses charged. [56] The question of identity or lack of identity
of offenses is addressed by examining the essential elements of each of the two offenses charged, as
such elements are set out in the respective legislative definitions of the offenses involved. [57]
 It may be noted that to determine the same offense under the Double Jeopardy Clause of the Fifth
Amendment of the Constitution of the United States of America which reads:
[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .
the rule applicable is the following: "where the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to determine whether there are two offenses or only
one, is whether each provision requires proof of an additional fact which the other does not." [58]
The Double Jeopardy Clause of the Constitution of the United States of America was brought to the
Philippines through the Philippine Bill of 1 July 1902, whose Section 5 provided, inter alia:
[N]o person for the same offense shall be twice put in jeopardy of punishment . . . .
This provision was carried over in identical words in Section 3 of the Jones Law of 29 August 1916.
[59]
Then under the 1935 Constitution, the Jones Law provision was recast with the addition of a provision
referring to the same act. Thus, paragraph 20, Section 1, Article III thereof provided as follows:
No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a
law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution
for the same act.
This was adopted verbatim in Section 22, Article IV of the 1973 Constitution and in Section 21, Article III
of the present Constitution.
This additional-element test in Lutero and Relova and in Blockburger, Gore, and Missouri would
safely bring the second paragraph of Section 1 of P.D. No. 1866 out of the proscribed double jeopardy
principle. For, undeniably, the elements of illegal possession of firearm in its aggravated form are
different from the elements of homicide or murder, let alone the fact that these crimes are defined and
penalized under different laws and the former ismalum prohibitum, while both the latter are mala in
se. Hence, the fear that the majority's construction of the subject provision would violate the
constitutional bar against double jeopardy is unfounded.
The penalty which the trial court imposed in Criminal Case No. 8179 for illegal possession of firearm
in its aggravated form must, however, be modified. The penalty prescribed by P.D. No. 1866
is death. Since Section 19(1), Article III of the Constitution prohibits the imposition of the death penalty,
the penalty next lower in degree, reclusion perpetual must be imposed.
WHEREFORE, the instant appeal is DISMISSED, and the challenged decision of 30 September 1993
of Branch 1 of the Regional Trial Court of Bohol finding accused-appellant DANIEL QUIJADA y CIRCULADO
guilty beyond reasonable doubt of the crime of murder in Criminal Case No. 8178 and of illegal
possession of firearm in its aggravated form in Criminal Case No. 8179 is AFFIRMED. The penalty
imposed in the first case, as amended by the Order of 29 October 1993, is sustained; however, the
penalty imposed in the second case is changed to Reclusion Perpetua from the indeterminate penalty
ranging from Seventeen (17) years, Four (4) months, and One (1) day, as minimum, to Twenty (20) years
and One (1) day, as maximum.
Costs de oficio.

5. THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EMELITO SITCHON y

TAYAG, accused-appellant.

DECISION

KAPUNAN, J.:

For beating to death the two-year old son of his common-law wife, accused-appellant Emelito
Sitchon y Tayag was convicted of murder and sentenced to death by the Regional Trial Court
of Manila. His case is now before this Court on automatic review.

Appellant was charged in an information stating:

That on or about June 12, 1996, in the City of Manila, Philippines, the said accused did then and there
willfully, unlawfully and feloniously, with intent to kill and with treachery and evident premeditation,
attack, assault and use personal violence upon one MARK ANTHONY FERNANDEZ y TABORA a minor, 2
years old, by then and there mauling and clubbing him on the different parts of his body with the use of
a steel hammer and a wooden stick, approximately 18 inches long, thereby inflicting upon the latter
mortal wounds which were the direct and immediate cause of his death thereafter.

CONTRARY TO LAW.[1]
 Appellant pleaded not guilty to the above charge. [2] However, before testifying in his own defense
on June 4, 1998, appellant admitted that he killed the victim and changed his plea to guilty. [3]

Five witnesses testified for the prosecution, namely, Lilia Garcia, a neighbor; the victim's eight-year
old brother Roberto; the investigating officer, PO3 Paul Dennis Javier; Dr. Manuel Lagonera, medico-legal
officer of the National Bureau of Investigation (NBI); and Felicisima Francisco, a forensic chemist of the
same agency.

Appellant lived in the second floor of a three-square meter house located at 2001 Batangas Street,
Tondo, Manila. His neighbor of two months, Lilia Garcia, resided in the first floor of the same house.

At about 10:00 in the morning of June 12, 1996, Lilia was in front of the house attending to her
children when she heard the sound of a boy crying. Curious, Lilia went up the stairway, her children in
tow. The open door of the upper floor allowed Lilia to witness appellant beating two-year old Mark
Anthony Fernandez. From a distance of less than three arms length, Lilia saw appellant hit various parts
of the boys body with a piece of wood, about 14 inches in length and 2 inches in
diameter. Appellant also banged the head of the boy against the wooden wall.

The beating went on for about one hour. Lilia then saw appellant carry the boy down the house to
bring him to the hospital. The two-year old was already black and no longer moving. [4]

Eight-year old Roberto Fernandez is the elder brother of the victim, also known as Macky. According
to Roberto, Macky had scattered his feces all over the house. Appellant, whom Roberto
called Kuya Chito, thus beat Macky with a belt, a hammer and a 2x2 piece of wood. Roberto could not
do anything to help his brother because he was afraid Kuya Chito might also beat him
up. When Kuya Chito brought Macky to the hospital, his little brother, who could barely talk, was not
crying anymore.[5]

Roberto identified the two pieces of wood[6] that appellant allegedly used in beating the victim. He
also identified the T-shirt[7] that Macky wore when he died.

A certain Alice Valerio from the Galang Medical Hospital informed PO3 Paul Dennis Javier that a boy
had been admitted there. When PO3 Javier went to the hospital, he found the boy already dead. He
observed that the child had wounds on the left middle finger, the right index finger and both feet. The
child also had lacerations in the upper lip and contusions all over his head and body.

PO3 Javier proceeded to appellants house at No. 2001, Batangas Ext., Tondo, Manila. Human feces
and fresh blood splattered on the floor. PO3 Javier recovered from the house the broken wooden sticks,
the steel hammer,[8] which were allegedly used to beat up the boy, as well as a bloodstained white T-
shirt.

PO3 Javier then went to the house of appellants sister in Del Fierro St., Tondo, who informed him of
matters relative to appellants identification. Thereafter, the police conducted a search operation
in Cavite where appellants mother lived but they did not find him there. Later that afternoon, PO3
Javier learned that appellant had surrendered to Station 3 of their district.

The following day, a staff member of the television program Magandang Gabi Bayan turned over to
PO3 Javier a brown belt which appellant allegedly also used in beating the victim. Roberto Fernandez,
the victims brother, had given the belt to the staff member.[9]

Dr. Manuel Lagonera, medico-legal officer of the NBI, conducted the postmortem examination of
the victims body on June 12, 1996 at 4:40 p.m. He found that the boy had suffered many injuries,
including three wounds at the head and the anterior chest, which could have been inflicted with the use
of blunt objects such as a piece of wood or a fist. The child could have been dead three to four hours, or
not more than eight hours, prior to the postmortem examination. Dr. Lagonera concluded that the
victim died of bilateral pneumonia secondary to multiple blunt traversal injuries or complication of the
lungs due to said injuries.[10] The autopsy report of Dr. Lagonera shows that Mark Anthony Fernandez
sustained the following injuries:

EXTERNAL FINDINGS:
 1. Multiple old scars, forehead.

2. Healing lacerated wound, left forehead.

3. Healed lacerated wound, above the left eyebrow, measuring 1.2x0.2 cm.

4. Healed linear abrasions, left cheek.

5. Lacerated wound, extending up to the mucous membrane of the upper lip, measuring 2 x0.3
cm.

6. Contussion (sic), left temporo-parietal region, measuring 6x5 cms.

7. Healing lacerated wound, left zygomatic region, measuring 0.5x0.3 cm.

8. Contussion (sic), left jaw, measuring 1.5x1 cm.

9. Contussion (sic), right anterior thorax, measuring 17x12 cms.

10. Contussion (sic), right anterior forearm.

11. Lacerated wound, tip of the forefinger, right.

12. Old scar, upper 3rd , right anterior thigh.

13. Contussion (sic), right lower leg, above and below the knee measuring 9x5 cms.

14. Contussion (sic), left lower leg, above and below the knee, measuring 13x6 cms.

15. Hematoma, big toe, under the nail bed, right.

16. Contusso-abrasion, dorsum of the left foot, measuring 6x2 cms.

17. Contussion (sic), left posterior thorax, measuring 17x6 cms.

18. Contussion (sic), right postero-lateral thorax, extending up to the right lumbar
region, measuring 13x6 cms.

19. Contussion (sic), right posterior forearm, measuring 24x8 cms.

20. Contussion (sic), left posterior forearm, measuring 22x7 cms.

21. Healing abrasion, right buttocks, measuring 2x0.5 cm.

22. Plucked finger nail, left middle finger, with hematoma of the nail bed.

23. Posterior hand, both swollen.

INTERNAL FINDINGS:

1. Presence of left sub-aponeurotic hematoma, temporo-parietal region and over the mid-
occipital region.

2. Hematoma over the sternum and pectoralis muscles.

3. Both lungs showed patcy and confluent consolidations.

4. Small amount of rice porridge was recovered from the stomach. [11]
 Felicisima M. Francisco, NBI forensic chemist, conducted an examination to determine the presence
and grouping of human blood found on the steel hammer, the wooden sticks, and the T-shirt that were
sent to his office by P/Sr. Inspector Pedro Ramos Angulo, Jr. of the Western Police District in Manila.
[12]
She prepared Report No. B-96-941 stating that Specimen No. 1 or the steel hammer, was positive for
human blood but insufficient for blood group. Specimen Nos. 2 (the broken wooden sticks) and 3 (the
white T-shirt) were also positive for human blood showing reactions of Group A. [13]

Only appellant, 40, a sidewalk vendor, testified for the defense. As stated earlier, appellant
admitted killing the two-year old victim, the son of his live-in partner. He and the boys mother had
lived together for two years before the incident, starting when the boy was about a year old. He claimed
he enjoyed a harmonious relationship with his partner and that he killed the boy only because he was
under the influence of shabu, marijuana and Valium 10 at that time. Appellant professed that he began
using drugs in 1974 and that he had also taken drugs two weeks before the incident.

On June 12, 1996, appellant came upon Macky playing with his feces, scattering them all over the
pillow, the bed sheets and the curtains. Appellant scolded the boy, Putang-ina ka Macky! Bakit mo
ikinalat ng ganyan ang tae mo? Halika, dadalhin kita sa baba para hugasan! Appellant got hold of
Macky but the boy struggled to free himself from appellants grasp. Appellant, still reeling from the
Valium 10 he had just taken, became so angry that he picked up a broom with a wooden handle, and hit
the boy. Appellant did not realize that he had hit Macky hard until he saw the boy sprawled on the floor,
breathing with difficulty. He dressed Macky and brought him to the Galang Medical Center at the corner
of Abad Santos Avenue and Tayabas Street, Manila. He prayed to God that nothing serious would
happen to the boy.

A lady doctor immediately attended to Macky. Appellant pleaded to the lady doctor to do all she can
to save the child; otherwise, he would be in serious trouble. After examining the child, the doctor told
appellant that she could not do anything more Macky was dead. The same day, appellant surrendered
to the police. He was brought to the Homicide Section at 3:00 p.m.

Explaining his change of plea, appellant clarified that the killing of the boy was "accidental." He
reiterated that he was under the influence of drugs, which he had taken one after the other. He was a
drug dependent and, in fact, had been confined at the Tagaytay Rehabilitation Center. He said he was
conscious when the incident happened but he simply did not realize that he had hit the child hard with
the brooms wooden handle. He denied having hit the boy with a hammer or having banged his head
against the wall. He hoped the trial court would be lenient with him because of his voluntary
surrender. He prayed that the court would not impose upon him the death penalty.[14]

Nevertheless, on July 3, 1998, the trial court promulgated its decision, the dispositive portion of
which reads:

WHEREFORE, this Court finds the accused, Emelito Sitchon y Tayag, guilty beyond reasonable doubt of
the crime of murder and is sentenced to suffer the death penalty and to pay the costs. The accused is
further ordered to pay the mother of the victim Christina Tabora, moral and nominal damages in the
respective sums of P100,000.00 and P50,000.00, plus death compensation in the sum of P50,000.00,
with interest thereon at the legal rate from this date until fully paid.

SO ORDERED.[15]

The Court entertains little doubt that appellant is guilty of the killing of Mark Anthony
Fernandez. Appellants guilt was adequately established by the testimonies of Lilia Garcia and Roberto
Fernandez, who both saw appellant beat Macky. These testimonies were further corroborated by those
of PO3 Paul Dennis Javier, Dr. Manuel Lagonera and Felicisima Francisco, as well as the various pieces of
object evidence. Indeed, appellant in open court admitted beating the poor child, which beating
resulted in the latters death.

That appellant purportedly did not intend to kill the toddler would not exculpate him from
liability. Article 4(1) of the Revised Penal Code provides that criminal liability shall be incurred by any
person committing a felony (delito) although the wrongful act done be different from that which he
intended. The rationale of the rule is found in the doctrine that el que es causa de la causa es
causa del mal causado (he who is the cause of the cause is the cause of the evil caused). [16]
 Thus, where the accused violently kicked the sleeping victim in vital parts of the latters body, the
accused is liable for the supervening death as a consequence of the injuries. [17] Assuming, therefore, that
appellant merely intended to inflict physical injuries upon the boy, he is nevertheless liable for the death
of the victim caused by such injuries.

The killing in this case was attended by treachery. There is treachery when the offender commits
any of the crimes against persons, employing means, methods or forms in the execution thereof which
tend directly and especially to insure its execution without risk to himself arising from the defense which
the offended party might make.[18] It is beyond dispute that the killing of minor children who, by reason
of their tender years, could not be expected to put up a defense, is treacherous. [19]

Evident premeditation is absent. For the court to appreciate evident premeditation, the prosecution
must prove: (a) the time the accused decided to commit the crime; (b) an overt act manifestly indicating
that he clung to his determination; and (c) sufficient lapse of time between the decision and the
execution to allow the accused to reflect upon the consequence of his act. [20] The prosecution failed to
establish any of these requisites.

The trial court incorrectly appreciated cruelty against the accused. The test in appreciating cruelty
as an aggravating circumstance is whether the accused deliberately and sadistically augmented the
wrong by causing another wrong not necessary for its commission, or inhumanly increased thevictims
suffering or outraged or scoffed at his person or corpse. [21] The nature of cruelty lies in the fact that the
culprit enjoys and delights in making his victim suffer slowly and gradually, causing him moral and
physical pain which is unnecessary for the consummation of the criminal act which he intended to
commit.[22] The sheer number of wounds, however, is not a test for determining whether cruelty
attended the commission of a crime.[23]

The prosecution did not show that appellant enjoyed inflicting injuries upon the victim. The
inordinate force employed by appellant appears to have been caused not by any sadistic bend but
rather by the drugs that diminished his capacity.

The trial court also considered intoxication as an aggravating circumstance. The Solicitor General
defends this ruling, contending that appellants habitual drug addiction is an alternative circumstance
analogous to habitual intoxication under Article 15 of the Revised Penal Code:

Intoxication of the offender shall be taken into consideration as a mitigating circumstance when the
offender has committed a felony in a state of intoxication, if the same is not habitual or subsequent to
the plan to commit said felony; but when the intoxication is habitual or intentional, it shall be considered
as an aggravating circumstance.

The Court does not agree. Article 13 of the Revised Penal Code provides a list of mitigating
circumstances, which work to reduce the accuseds penalty. Article 13(10) allows courts to consider
any other circumstance of a similar nature and analogous to those mentioned therein. Neither
Article 14 of the same Code on aggravating circumstances [24] nor Article 15 on alternative
circumstances,[25] however, contain a provision similar to Article 13(10). Accordingly, the Court cannot
consider appellants drug addiction as an aggravating circumstance. Criminal statutes are to be strictly
construed and no person should be brought within their terms who is not clearly within them. [26]

Appellant maintains that his plea of guilt mitigates his criminal liability. On this matter, this Court
said in People v. Ramos:[27]

To effectively alleviate the criminal liability of an accused, a plea of guilt must be made at the first
opportunity, indicating repentance on the part of the accused. In determining the timeliness of a plea of
guilty, nothing could be more explicit than the provisions of the Revised Penal Code requiring that the
offender voluntarily confess his guilt before the court prior to the presentation of the evidence for the
prosecution. It is well-settled that a plea of guilty made after arraignment and after trial had begun does
not entitle the accused to have such plea considered as a mitigating circumstance.

As appellant changed his plea only after the prosecution had rested its case and just when he was just
about to testify, said mitigating circumstance is unavailing.
 The trial court credited appellant with the mitigating circumstance of voluntary surrender. For
voluntary surrender to be appreciated, these elements must be established: (1) the offender has not
been actually arrested; (2) he surrendered himself to a person in authority or an agent of a person in
authority; and (3) his surrender was voluntary. [28] It is sufficient that the surrender be spontaneous and
made in a manner clearly indicating the intent of the accused to surrender unconditionally, either
because he acknowledges his guilt or he wishes to save the authorities the trouble and expense which
will necessarily be incurred in searching for and capturing him.[29]

Appellant has failed to adequately prove voluntary surrender. While he claimed that he
surrendered to the police on the same day that the victim was killed, he did not detail the
circumstances like the time and place of such surrender. Neither did appellant state to whom he
surrendered. He did not indicate if the person was a person in authority or an agent of the latter. PO3
Javiers testimony that he learned of appellants alleged surrender is hearsay and does not serve to
corroborate appellants claim.

The Court, however, discerns no intention on the part of appellant to commit so grave a wrong
against his victim. Appellants intention was merely to maltreat the victim, not to kill him. When
appellant realized the horrible consequences of his felonious act, he immediately brought the victim to
the hospital.[30] Sadly, his efforts were for naught.

In view of the attendance of the aggravating circumstance of treachery, the killing of the victim is
qualified to murder, punishable under Article 248 of the Revised Penal Code by reclusion perpetua to
death. The murder was attended by the mitigating circumstance of lack of intention to commit so
grave a wrong and there is no aggravating circumstance. Hence, the lesser penalty of reclusion
perpetua must be imposed upon appellant.[31]

Appellant is liable for civil indemnity of P50,000.00 without proof of damages.[32] Moral damages that
are recoverable for the mental anguish or emotional distress suffered by the heirs of the victim cannot
be awarded here as the prosecution did not present any evidence to justify its award. [33]

WHEREFORE, accused-appellant Emelito Sitchon y Tayag is found GUILTY beyond reasonable doubt
of Murder, as defined and punished by Article 248 of the Revised Penal Code, and is sentenced to suffer
the penalty of reclusion perpetua. He is ordered to pay the heirs of Mark Anthony Fernandez civil
indemnity in the amount of P50,000.00.

6. THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERMOGENES FLORA AND EDWIN
FLORA, accused-appellants.

DECISION

QUISUMBING, J.:

Accused-appellants seek the reversal of the decision [1] dated November 7, 1995, of the Regional Trial
Court, Branch 26, Santa Cruz, Laguna, in Criminal Case Nos. SC-4810, 4811 and 4812, finding them
guilty beyond reasonable doubt of the crimes of double murder and attempted murder, and sentencing
them to reclusion perpetua, payment of P50,000.00 for indemnity, P14,000.00 for burial expenses and
P619,800.00 for loss of earning capacity in Crim. Case SC-4810 for the death of Emerita Roma; reclusion
perpetua, payment of P50,000.00 as indemnity, P14,000.00 for burial expenses and P470,232.00 for loss
of earning capacity for the death of Ireneo Gallarte in Crim. Case SC-4811; and imprisonment from 2
years, 4 months and 1 day of prision correccional as minimum to 10 years of prision mayor and payment
of P15,000.00 to Flor Espinas for injuries sustained in Crim. Case SC-4812.

On February 26, 1993, Prosecution Attorney Joselito D.R. Obejas filed three separate informations
charging appellants as follows:

Criminal Case No. 4810

"That on or about January 10, 1993, at around 1:30 oclock in the morning thereof, in Sitio
Silab, Barangay Longos, municipality of Kalayaan, province of Laguna, and within the
 jurisdiction of this Honorable Court, accused Hermogenes Flora @ Bodoy, conspiring and
confederating with accused Edwin Flora @ Boboy, and mutually helping one another,
while conveniently armed then with a caliber .38 handgun, with intent to kill, by means of
treachery and with evident premeditation, did then and there wilfully, unlawfully and
feloniously attack, assault and shoot with the said firearm one EMERITA ROMA y DELOS
REYES, thereby inflicting upon the latter gunshot wounds on her chest which caused her
immediate death, to the damage and prejudice of her surviving heirs.

That in the commission of the crime, the aggravating circumstances of treachery and
evident premeditation are present."[2]

Criminal Case No. 4811

"That on or about January 10, 1993, at around 1:30 oclock in the morning thereof, in Sitio
Silab, Barangay Longos, municipality of Kalayaan, province of Laguna, and within the
jurisdiction of this Honorable Court, accused HERMOGENES FLORA @ Bodoy, conspiring
and confederating with accused Erwin [Edwin] Flora @ Boboy, and mutually helping one
another, while conveniently armed then with a caliber .38 handgun, with intent to kill, by
means of treachery and with evident premeditation, did then and there willfully,
unlawfully and feloniously attack, assault and shoot with the said firearm one IRENEO
GALLARTE y VALERA, thereby inflicting upon the latter gunshot wounds on his chest which
caused his immediate death, to the damage and prejudice of his surviving heirs.

That in the commission of the crime, the aggravating circumstances of treachery and
evident premeditation are present."[3]

Criminal Case No. 4812

"That on or about January 10, 1993, at around 1:30 oclock in the morning thereof, in Sitio
Silab, Barangay Longos, municipality of Kalayaan, province of Laguna, and within the
jurisdiction of this Honorable Court, accused Hermogenes Flora @ Bodoy, conspiring and
confederating with accused Erwin [Edwin] Flora @ Boboy, and mutually helping one
another, while conveniently armed then with a caliber .38 handgun, with intent to kill, by
means of treachery and with evident premeditation, did then and there willfully,
unlawfully and feloniously attack, assault and shoot with the said firearm one FLOR
ESPINAS y ROMA, hitting the latter on her shoulder, and inflicting upon her injuries which,
ordinarily, would have caused her death, thus, accused performed all the acts of
execution which could have produced the crime of Murder as a consequence but which,
nevertheless did not produce it by reason of a cause independent of their will, that is, by
the timely and able medical attendance given the said Flor Espinas y Roma, which
prevented her death, to her damage and prejudice."[4]

During arraignment, both appellants pleaded not guilty. Trial thereafter ensued. Resolving jointly
Criminal Cases Nos. SC-4810, SC-4811 and SC-4812, the trial court convicted both appellants for the
murder of Emerita Roma and Ireneo Gallarte, and the attempted murder of Flor Espinas. The dispositive
portion of the decision reads:

"WHEREFORE, in the light of the foregoing, this Court finds as follows:

In CRIMINAL CASE NO. SC-4810, for the death of Emerita Roma, the Court finds both
accused Hermogenes Flora and Edwin Flora guilty beyond reasonable doubt of the crime
of Murder qualified by treachery and sentences each of them to suffer the penalty
ofreclusion perpetua, with all the accessory penalties of the law, and to indemnify the
heirs of the victim the sums of (a) P50,000.00 as death indemnity; (b) P14,000.00 as
expenses for wake and burial; and (c) P619,800 for lost (sic) of earning capacity, without
any subsidiary imprisonment in case of insolvency and to pay the costs.

In CRIMINAL CASE NO. SC-4811, for the death of Ireneo Gallarte, the Court finds both
accused Hermogenes Flora and Edwin Flora guilty beyond reasonable doubt of the crime
of Murder, qualified by treachery and with the aggravating circumstance of evident
premeditation and sentences each of them to suffer the penalty of reclusion perpetua,
 with all the accessory penalties of the law, and to indemnify the heirs of the victim the
sums of (a) P50,000.00 as death indemnity; (b) P14,000.00 as expenses for wake and
burial; and (c) P470,232.00 for lost (sic) of earning capacity, without any subsidiary
imprisonment in case of insolvency and to pay the costs.

In CRIMINAL CASE NO. SC-4812, for the injuries sustained by Flor Espinas, the Court finds
both accused Hermogenes Flora and Edwin Flora guilty beyond reasonable doubt of the
crime of Attempted Murder and sentences each of them to suffer an indeterminate
penalty of imprisonment from two (2) years, four (4) months and one (1) day of prision
correccional, as minimum, to ten (10) years ofprision mayor, as maximum, and to pay
P15,000.00 to Flor Espinas as indemnity for her injuries and to pay the costs.

SO ORDERED."[5]

The facts of the case, borne out by the records, are as follows:

Days before the incident, appellant Hermogenes Flora alias "Bodoy," had a violent altercation with a
certain Oscar Villanueva. Oscars uncle, Ireneo Gallarte, pacified the two.

On the evening of January 9, 1993, a dance party was held to celebrate the birthday of Jeng-jeng
Malubago in Sitio Silab, Barangay Longos, Kalayaan, Laguna. Appellant Hermogenes Flora, allegedly a
suitor of Jeng-jeng Malubago, attended the party with his brother and co-appellant Edwin
Flora, alias "Boboy". Also in attendance were Rosalie Roma, then a high school student; her mother,
Emerita Roma, and her aunt, Flor Espinas. Ireneo Gallarte, a neighbor of the Romas, was there too.

The dancing went on past midnight but at about 1:30, violence erupted. On signal by Edwin Flora,
Hermogenes Flora fired his .38 caliber revolver twice. The first shot grazed the right shoulder of Flor
Espinas, then hit Emerita Roma, below her shoulder. The second shot hit Ireneo Gallarte who slumped
onto the floor. Rosalie, was shocked and could only utter, "si Bodoy, si Bodoy", referring to Hermogenes
Flora. Edwin Flora approached her and, poking a knife at her neck, threatened to kill her before he and
his brother, Hermogenes, fled the scene.

The victims of the gunfire were transported to the Rural Health Unit in Longos, Kalayaan, Laguna, where
Emerita and Ireneo died.[6]

Early that same morning of January 10, 1993, the police arrested Edwin Flora at his rented house in
Barangay Bagumbayan, Paete, Laguna. Hermogenes Flora, after learning of the arrest of his brother,
proceeded first to the house of his aunt, Erlinda Pangan, in Pangil, Laguna but later that day, he fled to
his hometown in Pipian, San Fernando, Camarines Sur.

The autopsy conducted by the medico-legal officer, Dr. Ricardo R. Yambot, Jr., revealed the following
fatal wounds sustained by the deceased:

EMERITA ROMA

"a) Gunshot of entrance at the posterior chest wall near the angle of the
axillary region measuring 1 cm. in diameter with clean cut inverted edges
involving deep muscles, and subcutaneous tissues and travel through both
lobes of the lungs, including the great blood vessels.

About 400 cc of clotted blood was extracted from the cadaver. The bullet
caliver 38 was extracted from the lungs.

The cause of her death was attributed to Hypovolemic shock secondary to

massive blood loss secondary to gunshot wound of the posterior chest
wall."[7]

IRENEO GALLARTE

"Gunshot wound of entrance at the left arm, measuring 1 cm. in diameter

with clean cut inverted edges involving the deep muscles, subcutaneous
 tissues traveling through the anterior chest wall hitting both lobes of the
lungs and each great blood vessels obtaining the bullet fragments.

About 500 cc. of clotted blood was obtained from the cadaver."

His cause of death was attributed to Hypovelemic shock secondary to

massive blood loss secondary to gunshot wound of the left arm."[8]

Flor Espinas submitted herself to a medical examination by Dr. Dennis Coronado. Her medical
certificate [9] disclosed that she sustained a gunshot wound, point of entry, 2 x 1 cm. right supra
scapular area mid scapular line (+) contusion collar; and another gunshot wound with point of exit 1 x 1
cm. right deltoid area.

Three criminal charges were filed against the Flora brothers, Hermogenes and Edwin, before Branch 26
of the Regional Trial Court of Sta. Cruz, Laguna. During the trial, the prosecution presented two
eyewitnesses, namely, (1) Rosalie Roma, daughter of one of the victims, Emerita Roma, and (2) Flor
Espinas, the injured victim. Rosalie narrated the treacherous and injurious attack by Hermogenes Flora
against the victims. Flor detailed how she was shot by him.

Felipe Roma, the husband of Emerita, testified that his wife was forty-nine (49) years old at the time of
her death and was a paper mache maker, earning an average of one thousand (P1,000.00) pesos a
week. He claimed that his family incurred fourteen thousand (P14,000.00) pesos as expenses for her
wake and burial.

Ireneo Gallartes widow, Matiniana, testified that her husband was fifty-two (52) years old, a carpenter
and a substitute farmer earning one hundred (P100.00) to two hundred (P200.00) pesos a day. Her
family spent fourteen thousand (P14,000.00) pesos for his wake and burial.

The defense presented appellants Hermogenes and Edwin Flora, and Imelda Madera, the common-law
wife of Edwin. Appellants interposed alibi as their defense, summarized as follows:

Version of Edwin Flora:

"Edwin Flora, 28 years old, testified that accused Hermogenes Flora is his brother. On
January 10, 1993, around 1:30 in the morning, he was at Barangay Bagumbayan, Paete,
Laguna in the house of Johnny Balticanto, sleeping with his wife. Policemen came at said
house looking for his brother Hermogenes. Replying to them that his brother was not
living there, policemen took him instead to the Municipal building of Paete and thereafter
transferred and detained him to (sic) the Municipal building of Kalayaan.

He recalled that on January 9, 1993, after coming from the cockpit at about 3:00 p.m. he
and his accused brother passed by the house of Julito Malubago. His brother Hermogenes
was courting the daughter of Julito Malubago. At about 6:00 p.m. he went home but his
brother stayed behind since there would be a dance party that night." [10]

Version of Hermogenes Flora:

"Hermogenes Flora, 21 years old, testified that he did not kill Ireneo Gallarte and Emerita
Roma and shot Flor Espina on January 10, 1993 at about 1:30 in the morning of Silab,
Longos Kalayaan Laguna.

On said date, he was very much aslept (sic) in the house of his sister Shirley at Sitio
Bagumbayan, Longos, Kalayaan. From the time he slept at about 8:00 in the evening to
the time he woke up at 6:00 in the morning, he had not gone out of her sisters house. He
knew the victims even before the incident and he had no severe relation with them.

xxx

He also testified that in the morning of January 10, 1993, Imelda Madera came to their
house and told him that his brother Edwin was picked-up by the policemen the night
before. Taken aback, his sister told him to stay in the house while she would go to the
 municipal hall to see their brother Edwin. Thereafter, his aunt and sister agreed that he
should go to Bicol to inform their parents of what happened to Edwin." [11]

Madera corroborated the testimony of her husband.[12]

As earlier stated, the trial court convicted accused-appellants of the crime of double murder and
attempted murder. Appellants now raise this sole assigned error:

"THE TRIAL COURT ERRED IN CONVICTING THE TWO ACCUSED-APPELLANTS DESPITE THE
FAILURE OF THE PROSECUTION TO MORALLY ASCERTAIN THEIR IDENTITIES AND GUILT FOR
THE CRIMES CHARGED."

At the outset, it may be noted that the trial court found both appellants have been positively identified.
However, they challenge the courts finding that they failed to prove their alibi because they did not
establish that it was physically impossible for them to be present at the crime scene. According to the
trial court, by Hermogenes own admission, the house of his sister Shirley, where appellants were
allegedly sleeping, was only one (1) kilometer away from Sitio Silab, where the offenses allegedly took
place. The sole issue here, in our view, concerns only the plausibility of the appellants alibi and the
credibility of the witnesses who identified them as the perpetrators of the crimes charged.

For the defense of alibi to prosper, it is imperative that the accused establish two elements: (1) he was
not at the locus delicti at the time the offense was committed, and (2) it was physically impossible for
him to be at the scene at the time of its commission. [13] The defense of alibi and the usual corroboration
thereof are disfavored in law since both could be very easily contrived. [14] In the present case,
appellants alibi is patently self-serving. Although Edwins testimony was corroborated by his common-
law wife, it is ineffectual against the positive testimonies of eyewitnesses and surviving victims who
contradicted his alibi. Moreover, an alibi becomes less plausible as a defense when it is invoked and
sought to be crafted mainly by the accused himself and his immediate relative or relatives.
[15]
Appellants defense of alibi should have been corroborated by a disinterested but credible witness.
[16]
Said uncorroborated alibi crumbles in the face of positive identification made by eyewitnesses. [17]

In their bid for acquittal, appellants contend that they were not categorically and clearly identified by
the witnesses of the prosecution. They claim that the testimonies of the said witnesses were not entitled
to credence. They assail the credibility of two eyewitnesses, namely Rosalie Roma and Flor Espinas,
because of the alleged inconsistencies in their testimonies. For instance, according to appellants, Rosalie
Roma testified she was in the dance hall when the gunshots were heard, and that she was dancing in
the middle of the dance hall when Hermogenes shot Emerita Roma, Ireneo Gallarte and Flor Espinas,

"Q....Where were you when Hermogenes Roma shot these Ireneo Gallarte, Emerita Roma
and Flor Espinas?

A....I was dancing, sir. (Emphasis ours.)

Q....And how far were you from Hermogenes Flora when he shot these persons while you
were dancing?

A....Two armslength from me only, sir."[18]

However, to a similar question, later in her testimony, she replied,

"Q....And where were these Emerita Roma, Your mother, Ireneo Gallarte and Flor Espinas
when Hermogenes Flora shot at them?

A....They were beside each other.

Q....And how far were you from these 3 persons?

A....Because they were standing beside the fence and I was only seated near them,
sir."[19] (Emphasis ours.)
On this issue, we do not find any inconsistency that impairs her credibility or renders her entire
testimony worthless. Nothing here erodes the effectiveness of the prosecution evidence. What counts is
the witnesses admitted proximity to the appellants. Was she close enough to see clearly what the
assailant was doing? If so, is there room for doubt concerning the accuracy of her identification of
appellant as one of the malefactors?

Appellants argue that since the attention of witness Flor Espinas was focused on the dance floor, it was
improbable for her to have seen the assailant commit the crimes. On cross-examination, said witness
testified that while it was true she was watching the people on the dance floor, nonetheless, she also
looked around (gumagala) and occasionally looked behind her and she saw both appellants who were
known to her.[20] Contrary to appellants contention that Flor did not have a sufficient view to identify the
assailants, the trial court concluded that Flor was in a position to say who were in the party and to
observe what was going on. On this point, we concur with the trial court.

Well-settled is the rule that findings of the trial court on the credibility of witnesses deserve respect, for
it had the opportunity to observe first-hand the deportment of witnesses during trial. [21] Furthermore,
minor inconsistencies do not affect the credibility of witnesses, as they may even tend to strengthen
rather than weaken their credibility. [22] Inconsistencies in the testimony of prosecution witnesses with
respect to minor details and collateral matters do not affect either the substance of their declaration,
their veracity, or the weight of their testimony. [23] Such minor flaws may even enhance the worth of a
testimony, for they guard against memorized falsities.

Appellants assert that Flor Espinas and Rosalie Roma were biased because they are relatives of the
victim Emerita Roma. However, unless there is a showing of improper motive on the part of the
witnesses for testifying against the accused, the fact that they are related to the victim does not render
their clear and positive testimony less worthy of credit. On the contrary, their natural interest in securing
the conviction of the guilty would deter them from implicating other persons other than the culprits, for
otherwise, the latter would thereby gain immunity. [24]

Here, appellants did not present any proof of improper motive on the part of the eyewitnesses in
pointing to the Flora brothers as the perpetrators of the crime. There is no history of animosity between
them. Emerita Roma and Flor Espinas were merely innocent bystanders when hit by gunfire. Where
eyewitnesses had no grudge against the accused, their testimony is credible. [25] In the absence of
ulterior motive, mere relationship of witnesses to the victim does not discredit their testimony. [26]

Coming now to the criminal responsibility of appellants. In the present case, when Hermogenes Flora
first fired his gun at Ireneo, but missed, and hit Emerita Roma and Flor Espinas instead, he became liable
for Emeritas death and Flors injuries. Hermogenes cannot escape culpability on the basis of aberratio
ictus principle. Criminal liability is incurred by any person committing a felony, although the wrongful act
be different from that which he intended.[27]

We find that the death of Emerita and of Ireneo were attended by treachery. In order for treachery to
exist, two conditions must concur namely: (1) the employment of means, methods or manner of
execution which would ensure the offenders safety from any defense or retaliatory act on the part of
the offended party; and (2) such means, method or manner of execution was deliberately or consciously
chosen by the offender.[28] When Hermogenes Flora suddenly shot Emerita and Ireneo, both were
helpless to defend themselves. Their deaths were murders, not simply homicides since the acts were
qualified by treachery. Thus, we are compelled to conclude that appellant Hermogenes Flora is guilty
beyond reasonable doubt of double murder for the deaths of Emerita Roma and Ireneo Gallarte, and
guilty of attempted murder of Flor Espinas.

Is the other appellant, Edwin Flora, equally guilty as his brother, Hermogenes? For the murder of Ireneo
Gallarte, was there conspiracy between appellants? For conspiracy to exist, it is not required that there
be an agreement for an appreciable period prior to the occurrence. It is sufficient that at the time of the
commission of the offense, the accused and co-accused had the same purpose and were united in
execution.[29] Even if an accused did not fire a single shot but his conduct indicated cooperation with his
co-accused, as when his armed presence unquestionably gave encouragement and a sense of security
to the latter, his liability is that of a co-conspirator. [30] To hold an accused guilty as a co-conspirator by
reason of conspiracy, it must be shown that he had performed an overt act in pursuance or furtherance
of the conspiracy.[31] Edwins participation as the co-conspirator of Hermogenes was correctly
appreciated by the trial court, viz.:
 "Edwin Flora demonstrated not mere passive presence at the scene of the crime. He
stayed beside his brother Hermogenes, right behind the victims while the dance party
drifted late into the night till the early hours of the morning the following day. All the
while, he and his brother gazed ominously at Ireneo Gallarte, like hawks waiting for their
prey. And then Edwins flick of that lighted cigarette to the ground signaled Hermogenes
to commence shooting at the hapless victims. If ever Edwin appeared acquiescent during
the carnage, it was because no similar weapon was available for him. And he fled from the
crime scene together with his brother but not after violently neutralizing any obstacle on
their way. While getting away, Edwin grabbed Rosalie Roma and poked a knife at her neck
when the latter hysterically shouted "si Bodoy, Si Bodoy," in allusion to Hermogenes Flora,
whom she saw as the gunwielder. All told, Edwin, by his conduct, demonstrated unity of
purpose and design with his brother Hermogenes in committing the crimes charged. He is
thus liable as co-conspirator."[32]

However, we cannot find Edwin Flora similarly responsible for the death of Emerita Roma and the injury
of Flor Espinas. The evidence only shows conspiracy to kill Ireneo Gallarte and no one else. For acts done
outside the contemplation of the conspirators only the actual perpetrators are liable. In People v. De la
Cerna, 21 SCRA 569, 570 (1967), we held:

"x x x And the rule has always been that co-conspirators are liable only for acts done
pursuant to the conspiracy. For other acts done outside the contemplation of the co-
conspirators or which are not the necessary and logical consequence of the intended
crime, only the actual perpetrators are liable. Here, only Serapio killed (sic) Casiano
Cabizares. The latter was not even going to the aid of his father Rafael but was fleeing
away when shot."

To conclude, appellant Edwin Flora is guilty beyond reasonable doubt only of the murder of Ireneo
Gallarte. He has no liability for the death of Emerita Roma nor for the injuries of Flor Espinas caused by
his co-accused Hermogenes Flora.

WHEREFORE, the decision of the trial court is hereby MODIFIED as follows:

(1)....Appellants Hermogenes Flora and Edwin Flora are found GUILTY beyond reasonable
doubt of the MURDER of Ireneo Gallarte and sentenced to each suffer the penalty
of reclusion perpetua and to pay jointly and severally the heirs of Ireneo Gallarte in the
sum of P50,000.00 as death indemnity; P14,000.00 compensatory damages for the wake
and burial; and P470,232.00 representing loss of income without any subsidiary
imprisonment in case of insolvency.

(2)....Hermogenes Flora is found GUILTY beyond reasonable doubt of the MURDER of

Emerita Roma and the ATTEMPTED MURDER of Flor Espinas. For the MURDER of EMERITA
ROMA, Hermogenes Flora is sentenced to suffer the penalty of reclusion perpetua, to
indemnify the heirs of Emerita Roma in the sum of P50,000.00 as death indemnity,
P14,000.00 as expenses for wake and burial, and P619,800.00 for loss of earning capacity,
without any subsidiary imprisonment in case of insolvency. For the ATTEMPTED MURDER
of Flor Espinas, Hermogenes Flora is sentenced to suffer the penalty of imprisonment from
two (2) years, four (4) months and one (1) day of prision correccional as minimum to ten
(10) years of prision mayor, as maximum, and to pay P15,000.00 to Flor Espinas as
indemnity for her injuries.

(3)....Appellant Edwin Flora is ACQUITTED of the murder of Emerita Roma and the
attempted murder of Flor Espinas.

Costs against appellants.

8. PEOPLE OF THE PHILIPPINES, petitioner-appellee

vs.
DANIEL PINTO, JR. and NARCISO BUENAFLOR, JR., defendants-appellants.
FERNAN, C.J.:p

As an aftermath of the mission of the Legazpi City Police Department to serve on Christmas day in 1970
a search warrant on Francisco Bello who was allegedly training a private army, patrolmen Daniel Pinto,
Jr. and Narciso Buenaflor, Jr. were found guilty beyond reasonable doubt by the then Circuit Criminal
Court in said city, of killing not only Bello but also 9-year-old Richard Tiongson and Rosalio Andes and
seriously wounding Maria Theresa Tiongson. The dispositive portion of the decision of June 13,
1974. 1 reads:

WHEREFORE, the Court finds the accused Narciso Buenaflor, Jr. and Daniel Pinto, Jr. GUILTY
beyond reasonable doubt of crime of:

(a) MURDER in CCC-X-288-Albay, and hereby sentences each of them to

suffer imprisonment for the rest of their lives (Reclusion Perpetua); to
indemnify the heir of Rosalie Andes in the amount of Twenty-five Thousand
(P25,000.00) Pesos, jointly and severally; and to pay the costs;

(b) MURDER in CCC-X-289-Albay, and hereby sentences each of them to

suffer imprisonment for the rest of their lives (Reclusion Perpetua); to
indemnify the heirs of Francisco Bello in the amount of Twenty-five
Thousand (P25,000.00) Pesos, jointly and severally; and to pay the costs;

(c) MURDER in CCC-X-298-Legazpi City, and hereby sentences each of them

to suffer imprisonment for the rest of their lives (Reclusion Perpetua); to
indemnify the heirs of Richard Tiongson in the amount of Twenty-five
Thousand (P25,000.00) Pesos, jointly and severally; and to pay the costs;

(d) FRUSTRATED MURDER in CCC-X-299 Legazpi City, and hereby sentences

each of them to imprisonment of from Six (6) Years and One (1) Day of
Prision Mayor as Minimum, to Twelve (12) Years and One (1) Day
of Reclusion Temporal as Maximum; to indemnify the victim, Maria Theresa
Tiongson, in the amount of Eight Thousand (P8,000.00) Pesos, jointly and
severally; and to pay the costs.

In addition to the foregoing the accused are sentenced to suffer perpetual disqualification
from public office.

According to the prosecution, on December 25, 1970, the Legazpi City Police secured from the City Court
of Legazpi a warrant for the search of the house and premises of Francisco Bello in Mariawa, Legazpi City
on the ground that the police had probable cause to believe that Bello illegally possessed a garand rifle,
a thompson submachinegun and two automatic pistols. 2 The police had earlier undertaken a
surveillance of Bello on the basis of information it had received that he was conducting an "obstacle
course" or training men for combat since October, 1970. 3

Upon receipt of the search warrant, the Chief of Police, Dr. Solomon Adornado, 4 called his officers to a
"confidential conference" at the residence of Mayor Gregorio Imperial. Present at the said conference
were the mayor, his secretary, and the officers of the patrol division, secret service and the
administration of the city police. The Chief of Police was assisted by Major Alfredo Molo, head of the
intelligence division of the city police, in briefing the group on how to serve the search warrant and to
arrest Bello as the latter had been identified as the one who shot Salustiano Botin the night before. At
the time of the briefing, no warrant of arrest had yet been issued against Bello. 5

The policemen were divided into three teams and around five members of the Philippine Constabulary
(PC) who were also present were assigned to the different teams. 6 Team 3 was placed under the charge
of Sgt. Salvador de la Paz with a policeman named Luna and appellants Buenaflor and Pinto as
members. Wilfredo Romero was the PC member assigned to the team. 7 Except for Romero and Pinto
who were each armed with a carbine, the policemen of Team 3 each carried a .38 caliber pistol. 8

Loaded in four vehicles, the three teams proceeded from the residence of the Mayor to barrio Homapon
arriving there at around seven o'clock in the evening. The four vehicles met at the junction of Homapon
and the road to Mariawa. They had decided to ride on the way to Mariawa when one of the jeeps bogged
down because of the muddy road. Hence, the three teams had to walk in single file on the right side of
the road with the teams had to walk in single file on the right side of the road with the teams
maintaining a distance o around ten meters between them. 9

Suddenly, Romero noticed the members of his team running. He ran with them and then he heard
someone shout, "Pondo!" (stop). The shout was followed by a shot and then a burst of gunfire. The team
had by then deployed to the right side of the road. When Romero checked the men by shouting the
agreed password of "bayawas" for which the person challenged answered "santol", 10 he found that
Buenaflor was 5 meters in front of him "at the bank of the road", Pinto was two meters to the right of
Buenaflor, Sgt. de la Paz was two meters to his (Romero's) right, Luna who was holding a walkie-talkie
was to his left and another policeman was in front of Luna. 11 When Romero heard the gunburst, he saw
"flashes of fire" "just in front" of him or from the place where Buenaflor was. 12

The area where the team deployed was lower in elevation than the road but Romero heard the rumbling
of a jeep going towards the direction of Homapon when he heard the burst of gunfire and saw the
flashes of fire from the direction of Buenaflor. 13

On the jeep which passed by the deployed policemen were Fr. Felix Cappellan, Mrs. Zenaida
Stilianopolous Tiongson, her six children and the driver. They had just come from a lechonada party in
the hacienda in Mariawa of Mrs. Purificacion Napal Anduiza, the mother of Francisco Bello. Fr. Capellan
had celebrated mass to commemorate the death anniversary of Mrs. Anduiza's father. When Fr. Capellan
decided to go back to his parish, the Anduiza's offered their jeep for his transportation. 14 Seated on the
front seat of the "McArthur type" jeep which had only a canvass top but no cover on the sides and
back, 15 were the driver, Mrs. Tiongson with a child on her lap and Fr. Capellan. 16 Richard Tiongson
was seated on the steel seat behind the driver while his sister Maria Theresa was beside him. 17 The
three other children were also seated at the back.

After crossing the creek on their way to Homapon and as the driver "changed to high gear with a
dual", 18 Mrs. Tiongson saw blinking lights some 300 yards ahead. 19 Fearing that there might be
"people with bad intentions" or hold-uppers, Fr. Capellan told the driver to go faster. 20Then Fr. Capellan
heard one shot and after a few seconds and around 50 meters ahead, there was rapid firing with some
of the bullets hitting the jeep. 21According to Mrs. Tiongson, the widow of Col. Angel Tiongson of the PC,
the rapid firing sounded "automatic". 22 The firing came from the left rear side of the jeep. 23

Before they were fired upon, Maria Theresa saw a man lying flat on his stomach while holding a gun on
the left side of the road just ahead of the jeep. 24 Through the light of the jeep, Maria Theresa noticed
that the man was wearing a jacket and a hat and he was on the shoulder of the road. 25 After passing
the man, the rapid firing ensued. Richard said "ugh" and fell on the floor of the jeep. Maria Theresa was
about to hold Richard when she felt herself hit at the buttocks. Then they all screamed. 26

The jeep continued its fast uphill climb until it reached a level area and almost fell into a ditch were it
not for a clump of banana plants. The jeep came to a full stop. Fr. Capellan saw three men with
flashlights but he could not distinguish their faces as it was dark and their flashlights were focused on
the ground. 27 Mrs. Tiongson saw a PC jeep and some cars and, believing that one of the cars was that
of the Mayor, she called Tia Citang, the mother of the mayor, at the same time identifying
herself. 28 She must have managed to take Richard from the jeep and was cuddling him on the ground
near the left rear end of the jeep when she requested Fr. Capellan to administer extreme unction on
Richard. As Fr. Capellan had no holy oil, he gave the boy absolution. 29

Even after Mrs. Tiongson had identified herself as the widow of Col. Tiongson to the men around, nobody
listened to her appeal for help. When she approached Chief of Police Adornado, she hit him and asked
him why they shot her and her companions. The Chief of Police replied that the shooting was no longer
his fault because Mrs. Tiongson and her companions did not stop when told to do so. She requested the
Chief of Police for a car in which to take Richard to the hospital or for a driver and even for a walkie-
talkie so she could talk to Mayor Imperial but the Chief of Police did not heed her pleas. 30 (TSN,
February 9, 1972, pp. 17-22).

A few minutes later, a jeep driven by Fernando Anduiza arrived. Mrs. Tiongson and her children boarded
the jeep. At the intersection of the road to Legazpi City proper and the road to Mariawa, the area was
brightly lighted and armed men ordered them to put their hands up. They were told to alight from the
jeep to be searched but Mrs. Tiongson begged the lieutenant manning the area to let them pass so they
could bring her two children to the hospital. 31

Richard and Maria Theresa were brought to the Sacred Heart Clinic in Legazpi City. Thirteen-year-old
Maria Theresa was treated for a gunshot wound at the "right upper quadrant of the right
buttocks." 32 Her pelvis and abdomen were x-rayed. One of the x-ray plates 33 revealed an oval spot
indicating a foreign body in Maria Theresa's pelvis. The attending physician decided not to extract the
foreign body as Maria Theresa was not a "very good surgical risk".34 The hospital charged P282.90 for
Theresa's hospitalization. 35 She was later brought by an army plane to the PC Station Hospital in Camp
Crame, Quezon City for further treatment and hospitalization 36 but the foreign body was never
removed from her pelvic area.

Richard sustained a gunshot wound at the back about the level of the 5th lumbar vertebrae. The bullet
travelled obliquely to the left kidney, the lesser sac, the liver and the right auricle.37 Richard was
operated at the hospital but he died at 8:45 the following morning due to massive hemorrhage caused
by the gunshot wound. 38 When he was autopsied, a lead slug was found embedded in his heart.39 His
mother paid P862.35 40 for his hospitalization and was charged P200 by the church. Mayor Imperial
paid P500 to Funeraria Oro for Richard's burial.41

Meanwhile, according to Chief of Police Adornado, after the shooting incident involving the Tiongsons,
the police pursued their mission to serve the search warrant on Bello. When they reached Bello's
residence in Mariawa, they were met by a "volley of fire." Suddenly, the house was lighted and a certain
Escober met him. Although Bello and his parents, Mr. and Mrs. Anduiza, were not around, the police
searched the area and found a Japanese Springfield rifle, ammunition of a garand rifle, ammunition of a
carbine, live ammunition for a .38 caliber pistol and 380 bullets for an automatic pistol. 42 Thereafter,
the Chief of Police declared the search terminated and the entire searching party left for
headquarters. 43 The following day, he issued Special Order No. 24 which states:

Dec
emb
er
26,
197
0

To All Concerned:

The following men mentioned below are hereby assigned at Homapon until their mission
is accomplished, effective as of today, December 26, 1970:

1 Sgt. Salvador de la Paz, In-charge

2. Pfc. Carlos Barbin, member

3. Pat. Eduardo Arcinue, member

4. Pat. Juan Luna, member

5. Pat. Daniel Pinto, member

6. Pat. Celedonio Abordo, member

7. Pat. Narciso Buenaflor, member

Report progress of mission any time of day through the radio system. For strict
compliance.

(Sgd
.)
 SOLOMON B.
ADORNADO
Chief of Police

Copy furnished: The Honorable City Mayor, The Patrol Command, LCPD, the OIC and file .
44

The mission was to keep peace and order in the specified place and to determine the whereabouts of
Bello.45 It was not necessary to specify the mission in the order itself because the Chief of Police "had a
close understanding with the squad that went to Homapon". 46 For a "convenient tactical deployment,"
Sgt. De la Paz further divided Team 3 into three groups with patrolmen Buenaflor and Pinto composing
Group II. 47

At noontime of December 26, 1970, Francisco Bello, more popularly known as Paquito, arrived at the
residence of Inocencia Malbas in sitio Ando, Talahib, Daraga, Albay. He was with Inocencia's brother,
Francisco Andes, Francisco's son Ananias, and Leoncio Mostoles. Rosalio, another son of Francisco, also
arrived with the group. 48Bello requested Inocencia and her husband that he and his group be allowed
to spend the night in Inocencia's house. 49

Inocencia woke up at around 5:00 o'clock in the morning of December 27, 1970. At the sala, on her way
from her room to the kitchen, she saw Bello sleeping alone. From the kitchen, Inocencia went to the
balcony through the sala. On her way back to the kitchen, she noticed that Bello, who was wearing a red
shirt and an underwear, had awakened. Bello opened the window, spat out and went to the balcony. He
reentered the sala and saying that it was cold, Bello put on his clothes and pants. He also wore his
jacket. He went back to the balcony and asked for water. Inocencia's husband gave Bello a glass of
water. After gurgling, Bello placed the glass on the window sill and ask Inocencia's husband for a cup of
coffee.50

Inocencia's husband was about to offer Bello a cup of coffee when she heard a successive burst of
gunfire. Bello, who was the balcony facing the copra kiln ("agonan") with his back towards the pili tree,
gradually fell to the floor with his hands above his head. Then there was another burst of gunfire. From
the kitchen, Inocencia rushed to the door from where she saw a man holding a long firearm, whom she
later identified as Pinto, near the pili tree which was around eight meters from where Bello was, and
another man, also holding a gun, crouching near the stairs. 51

Inocencia, with her two-year-old child in her arms, 52 was about to rush to Bello when her husband
pulled her. Just then a man, whom Inocencia identified as Buenaflor, came up the house, pointed a gun
at Inocencia and her husband and told them to lay flat on the floor. The man asked them where the gun
was. Inocencia told him that there was no gun in the house but then, when she looked around, she saw a
long firearm with its muzzle pointed upward leaning against the wall near the door around two meters
from where Bello laid flat on his back. Bello himself had a gun but it was in its holster tucked on his
waist. 53 It was Buenaflor who took both the long firearm and the gun in Bello's holster.54

When Francisco Andes went up the house, he told Inocencia that Rosalio was dead. 55 Inocencia went
near the pili tree where Rosalio's body was, knelt down and asked the man with a long firearm why he
killed Rosalio. The man answered that Rosalio fought back. However, Inocencia did not notice any
weapon near Rosalio's body. 56

Bello's hands and feet were tied together and a bamboo pole was inserted between them so that two
men, one of them being Francisco Andes, could carry the cadaver. 57 Bello died because of "shock
secondary to massive hemorrhage due to multiple gunshot wounds". 58 A former pilot and 28 years old
at the time of his death, Bello sustained a gunshot wound at the left temple, an inch above the highest
point of the pinna of the left ear. The bullet which entered his head through the squamous temporal
bone travelled towards the occipital region down to the floor of the left middle cranial fosa until it
reached the base of the tongue.

Bello had three gunshot wounds on his chest. One bullet entered the superior part of the right scapular
area about the level of the third thoracic vertebrae. The bullet travelled to the right inna in a slightly
upward direction making its exit at the lateral part of the right supraclavicular fossa above the clavicle.
The second gunshot wound was at the left side interscapular area. The bullet travelled upwards and to
the right fracturing the 7th rib, entered the lower lobe of the left lung, punctured the pulmonary conus,
went through the junction of the right auricular appendage and the right auricle, the anteromedial side
of the pericardium, grazed the medial surface of the middle lobe of the right lung and exited at the right
side of the chest. The third gunshot wound was below the right nipple. The bullet went to the chest
cavity, the lower lobe of the right lung, the dome of the diaphragm, the right lobe of the liver, the 8th
thoracic vertebrae and exited at the left of the midline at the inferior interscapular area. 59

While Bellos corpse was being autopsied, a slug fell from his jacket. A bullet jacket and lead fragments
were found at the base of his skull and a slug was extracted from the floor of his mouth. 60

Rosalio Andes, 23 years old, also died of shock due to multiple gunshot wounds. A bullet entered his
right temporal area, macerated the brain, fractured both parietal bones and exited at the left parietal
bone. Another bullet entered the left scapular area below the level of the 6th rib, travelled to the dome
of the left diaphragm, the left lobe of the liver, the pancreas, the small intestines, and the perineum
below the ramus of the right pubis. The slug was found at the gluteoperineal junction about 2 inches
below the tip of the coccys and 2 1/2 inches above the gluteal line. A third bullet entered the left knee
and exited at the medial side of the leg. 61

The slugs and parts of bullets which were extracted from the bodies of the victims were turned over to
the National Bureau of Investigation (NBI) on December 29, 1970 by Fiscal Aquilino Bonto for
safekeeping purposes. 62 The empty shells and slugs which both the PC and the Legazpi City police
found in Talahib were also turned over to the NBI 63 in the same manner that the four empty carbine
shells 64 found by the PC near the coconut tree a meter from the shoulder of the road to Mariawa were
also turned over to the NBI. 65 Also submitted to the NBI for ballistic examination were twelve Smith &
Wesson caliber .38 revolvers, two Smith & Wesson "paltik" caliber .22, four Tell caliber revolvers, one
Bosque automatic pistol caliber .380, four carbine Inland rifles caliber .30, three US Springfield rifles
caliber.30, one Thompson submachine gun caliber .45 and one Colt automatic pistol caliber.45. 66

Defendants Pinto and Buenaflor both denied having fired at the jeep bearing the Tiongson
family.67 Pinto, who admitted carrying a caliber .30 carbine during the incident, 68 testified that the
shooting occurred because the Tiongsons' jeep "was going towards" them. 69

According to Pinto, when they reached Mariawa, it was he who fired one shot in the air. 70 After the
search had been conducted in Bello's premises, Team 3 was instrued by a "superior officer" "to remain
and maintain peace and order in (the) vicinity including Mariawa". 71 While he and Buenaflor were
patrolling the area, at around midnight, they "chanced upon a house" wherein Bello and his group were
staying. They captured four of Bello's bodyguards and tied them to a pili tree with the torn shirt of one of
the captives.72

At daybreak, Pinto saw Bello smoking at the porch. Buenaflor, who was behind him, called Bello. Then a
single shot coming from the house rang out. It was answered by a burst of fire which Pinto "presumed"
came from Buenaflor. By reflex action, Pinto transferred from the pili tree to a nearby coconut tree. But
before he reached the coconut tree, he saw a man with a bolo in his hand running towards him. As the
man was menacingly near him, Pinto shot him. 73

After a lull in the firing, he went up the house to look for Bello's other companions. He saw the body of
Bello on the porch and "near" it was a garand which he took. He also got Bello's short firearm "from a
holster." He turned over both the garand and the short firearm to Buenaflor. One of the captured persons
kicked Bello's body saying that if not for Bello, his son would not have been killed. Thereafter, the two
dead persons were carried by the captured bodyguards to Mariawa. 74

In Mariawa, Pinto contacted (through the radio) police outpost No. 5 in Banquerohan and two jeeps
arrived. When they reached the junction in Homapon, Major Molo, who was with Fiscal Benito Se, told
Pinto to go back with him to Talahib. Although Pinto warned Major Molo that it would be dangerous to go
back because one of Bello's men had escaped, they nevertheless proceeded to Talahib. With three other
policemen, they arrived there between eight and nine in the morning where they were instructed to
"look for evidence specifically . . . for a thompson." He found in the porch two shells and the others
found a hat and a flashlight. Thereafter, they returned to Mariawa and later, to Legazpi City proper. 75

On cross-examination, Pinto stated that he did not know that they found Bello in an area which was
beyond the jurisdiction of Legazpi City. He admitted that while they were instructed patrol the area, they
were also told to effect the arrest of Bello even if no complaint had been lodged against
him. 76 According to Pinto, of the fifteen bullets in the magazine of his carbine, only two remained. He
fired "most" of the thirteen shots during the "Bello incident". 77

Pinto shot the man later identified as Rosalio Andes when he was at a distance of around three meters.
Rosalio was "face to face" with him when Pinto shot him. As Rosalio did not fall from the first shot, Pinto
continued shooting him.78 When he went up the porch he saw the garand "lying on the floor" but the
gun tucked on Bello's waist was still in its holster. 79

On the Tiongson incident, Pinto asserted that he did not fire his
carbine. 80 When he saw the headlight of the Tiongsons' jeep, he also saw a flashlight being waved. A
little later, he heard a shout ordering the jeep to stop. Then he heard one shot and immediately after,
the volley of fire as the jeep was going towards his direction. As it passed by him, he heard the jeep's
passengers shriek. 81

For his part, Buenaflor declared that during the mission to serve the search warrant on Bello, he carried
the ".38 caliber revolver Tel." (sic) which had been issued to him by the Legazpi City Police Department.
He did not fire his gun at the Tiongsons and, "as a matter of fact," he surrendered his firearm for ballistic
examination. 82 In the afternoon of December 26, however, Major Molo issued him a Thompson
submachinegun. 83

While patrolling Homapon, he and Pinto "chanced upon" some persons who told them that they could
guide them to where Bello was. At the place which they later found to be Talahib, they went near a pili
tree from where they saw a house "below." Then he saw a man who turned out to be Mostoles. Buenaflor
apprehended Mostoles because the latter was Bello's bodyguard and he had a .22 caliber firearm with
him. He came by another man with a bolo, named "Banteque" and apprehended him also. Then, from
behind the pili tree, Pinto appeared with yet another man. They waited for a while until another man,
who turned out to be Francisco Andes, came within four meters of him. Buenaflor pointed his
submachinegun at him so Andes approached him. Buenaflor confiscated Andes' .22 caliber firearm. 84

From the group, Buenaflor learned that Bello provided them with firearms and that Bello himself had a
pistol tucked in his holster as well as a garand. He and Pinto then tied the men to the pili tree. Later, he
saw a person in the balcony of the house below and Buenaflor shouted twice: "Paquito, mag-surrender
ka!" Then Buenaflor heard a "a shot coming from the direction of the balcony followed by successive
shots." He sought cover behind the pili tree and, while in a crouching position, fired his submachinegun
towards the balcony. Pinto was then behind him. As Pinto shifted his position while firing his carbine,
Buenaflor went down to the "elevated portion going down to the nipa shack" until he was near the
coconut tree. There he found a person lying with his face down. He later found out that the person was
the son of Francisco Andes. 85

After the firing had stopped, Pinto told him that Bello was dead. Pinto then went up the house. Buenaflor
went back to the pili tree, untied the four persons they had captured, and told them to do something so
they could carry the bodies of Bello and (Rosalio) Andes. 86

Like Pinto, on cross-examination, Buenaflor also asserted that he did not fire his gun at the jeep carrying
the Tiongsons. 87 While admitting that the person who led them to Bello had told them that the latter
was in Talahib, Buenaflor did not know that Talahib was a barrio of Daraga, Albay and not of Legazpi
City.88 He reiterated that he shouted at Bello urging him to surrender 89 but he was not able to fire a
warning shot or identify himself as a member of the police force "because after the second shot there
was already a burst of gunfire".90

Buenaflor affirmed that the first shot emanating from the balcony of the house in Talalib which was
around fifteen meters from the pili tree, came from a "high caliber firearm". 91 After they had found out
that Bello was dead, Pinto went up the house. Later, Pinto gave him Bello's 380 automatic pistol and
garand. 92 Although he looked at those firearms, he did not determine whether they had been
fired. 93 He noticed, however, that the magazine of the garand was "intact". 94 Aside from Bello's
firearms, Buenaflor and Pinto confiscated two .22 caliber revolvers and two bolos found on Bello's
bodyguards. 95

Buenaflor stated that his Thompson submachinegun had two clips with each clip containing 30 bullets.
When he gave back the firearm to Major Molo, only four bullets were left of the one clip he had
used. 96 He remembered having squeezed twice the trigger of his Thompson submachinegun or
automatic rifle in Talahib.97 His service revolver was still with him then. 98

As a result of this series of events, four separate informations were filed against Pinto and Buenaflor. The
information charging Pinto and Buenaflor for the murder of Andes which was filed on July 26, 1971
reads:

That on or about the 27th day of December, 1970, in sitio Ando, Barrio Talahib, Daraga,
Albay and within the jurisdiction of this Honorable Court the accused, conspiring and
confederating together and mutually helping one another, without any justifiable cause or
motive, with intent to kill, did, then and there, willfully, unlawfully and feloniously, with
treachery and evident premeditation, accused Pat. Narciso Buenaflor, Jr. and Pat. Daniel
Pinto, Jr., and by means of a Cal. 45 Thompson Sub-Machine Gun, SN-213436 and a US
Carbin Inland, Cal. 30, SN-5099407, owned respectively by said accused, shoot one
Rosalio Andes, inflicting upon him gunshot wounds as described in the attached Autopsy
Report marked as Annex "A" and being made an integral part of this Information, thereby
causing upon said Rosalio Andes serious and mortal wounds which led to his
instantaneous death.

Contrary to law.

The information charging Pinto and Buenaflor with having murdered Bello contains basically the same
allegations as the above and it was filed on the same date. On August 24, 1971 two other informations
were filed against Pinto and Buenaflor: one for the murder of Richard Tiongson and another for the
frustrated murder of Maria Theresa Tiongson. On arraignment, Pinto and Buenaflor both pleaded not
guilty to all the charges.

After trial, the trial court rendered the aforementioned judgment of conviction. For the killing of Bello
and Andes, the trial court appreciated evident premeditation as a qualifying circilmstance and treachery,
nighttime and use of public position as aggravating circumstances. For the incident involving the
Tiongson children, it considered the crimes as qualified by treachery and aggravated by the use of
public position.

Pinto and Buenaflor instituted the instant appeal praying for exoneration mainly on the basis of their
claim that the killings were perpetrated in the course of the performance of their official duties as peace
officers in obedience to the lawful order of their superiors.

In order that the justifying circumstance of fulfillment of a duty under Article 11 of the Revised Penal
Code may be successfully invoked, the defense has to prove that these two requisites are present: (a)
the offender acted in the performance of a duty and (b) the injury or offense committed be the
necessary consequence of the due performance or lawful exercise of such duty. In the absence of the
second requisite, the justification becomes an incomplete one thereby converting it into a mitigating
circumstance under Articles 13 and 69 of the same Code. 99

Admittedly, the appellants and the rest of the police force involved, originally set out to perform a legal
duty: the service of a search warrant on Bello. In the process, however, appellants abused their authority
resulting in unauthorized and unlawful moves and consequences. Armed with only a search warrant and
the oral order to apprehend Bello, they went beyond the ambit of their mission and deprived Bello and
two other persons of their lives.

While the defense presented proofs that Bello had a string of record in the police blotter for misdeeds
ranging from taking the harvest of their hacienda without the permission of his parents to assaulting his
stepfather, and that he was "dangerous while under the influence of liquor", 100 there was no proof that
he had been convicted of any offense or that he was a dangerous fugitive from justice which would
warrant a "shoot to-kill" order from police authorities. Proof of bad moral character of the victim only
establishes a probability that he committed a crime but it certainly cannot be the reason for annihilating
him nor may it prevail over facts proven showing that the same victim had been cold-bloodedly
killed. 101 As such, the suspicion that Bello was maintaining a private army was not a sufficient
justification for his being rubbed out without due process of law.
The police theory that Bello authored the shooting of one Salustiano Botin on Christmas eve is neither a
justification for his arrest without a warrant. It should be observed that while the police had obtained a
search warrant for illegal possession of firearms against Bello even on Christmas day which was
supposed to be a holiday, no such effort was made in securing warrant of arrest for Bello's alleged
frustrated killing of Botin. The improbability of the defense evidence through the testimony of Botin
himself that Bello had shot him in the evening of December 24, 1970 is bolstered by the same testimony
showing that while he was shot by Bello in the presence of the police force who were converging at the
junction of Homapon and Mariawa, the same law enforcers were unable to arrest Bello. Besides the fact
that no other eyewitness corroborated Botin's testimony even in the face of his own admission that Bello
had no reason to shoot him, no complaint was ever lodged against Bello for the alleged shooting. 102

On the other hand, the prosecution, through eyewitness Rogelio Escober, tried to establish that during
said shooting incident the police were looking for Bello at the store of a certain Serrano. 103 Unable to
find Bello, the police, specifically Pinto, mauled Escober while asking him to testify against Bello for
allegedly shooting Botin. 104 The police had focused their vehicles' headlights near the bodega of ex-
Mayor Los Baos in their effort to flush out Bello who, unknown to the police, had earlier left the vicinity.
It was when the police fired at the said bodega that Botin must have been accidentally shot. 105 This
story was uncorroborated but if true, would show the police's dangerous propensity for using otherwise
official operations in an unlawful manner.

A propensity for rash judgment was likewise amply shown at the incident involving the Tiongson
children. Since the jeep coming towards them was owned by the Anduizas, the appellants acted
obviously in the belief that Bello was its passenger and posthaste they fired upon it even without any
inquiry as to the identity of its passengers. 106 Granting that the police indeed fired a warning shot,
sound discretion and restraint dictated that, there being no responding shots from its passengers after
the alleged warning shot and considering the condition of the road which was not only muddy but uphill,
instead of directing aimless gunburst at the jeep, the most that they could have done was to render the
jeep immobile by shooting its tires. That way, they could have verified the identity of the passengers. As
it were, they riddled the jeep with bullets injuring in the process innocent passengers who were
completely unaware of what they were up against.

Appellants' stark denial of firing their guns upon the Tiongson family falls flat in the face of various
circumstantial evidence which point to their culpability. There is the unflinching testimony of Sgt.
Romero that he saw "flashes of fire" from the direction of Buenaflor as the jeep bearing the Tiongsons
passed by. Said testimony was corroborated by that of Rafael Jacob, the PC member of team 2, that
while no one in his team fired his gun, the "sporadic firing" came from team 3 after the first of fire which
occurred while the jeep was "abreast of team 2". 107 Even defense witness Mariano Rico, a policeman
who led team 1, was "sure" that he heard gunshots at the moment when "the jeep had just passed team
2". 108

Then there are the four empty .30 caliber carbine shells which were found near the coconut tree where,
according to Romero, Pinto was deployed. While he himself carried a carbine, Romero did not fire it and
his testimony was never contradicted. The four empty shells were compared with the test shells which
were fired from the US carbine, caliber .30 Inland Division, SN-5099407, which, according to the
aforequoted information charging appellant with having killed Andes, was used by Pinto, they were
found to have "significant similar individual characteristics". 109

While it is true that the ballistic report reveals that the lead bullet taken from the body of Richard was
fired from a Smith & Wesson type firearm 110 and Buenaflor was proven to be carrying a .38 caliber Tell
revolver, the findings of expert witnesses or, in this case, the ballistic report pointing to another kind of
caliber .38 weapon as the source of Richard's wound only serves as a guide for the courts after
considering all the facts of the case.111 The undisputed fact is that Buenaflor was specifically pointed
by Romero as the one who fired his firearm as the Anduiza jeep bearing the Tiongsons passed by.
Inasmuch as no evidence that Romero would prevaricate to pin responsibility on Buenaflor was ever
presented, there is, therefore, no reason to discredit his testimony. 112

In addition to all these, Buenaflor's motive for wanting to do away with Bello has been established. Such
motive provided a circumstantial evidence leading to the inference that indeed he fired his
gun. 113 According to the unrebutted testimony of Rogelio Escober, an overseer of the Napal hacienda
and constant companion of Bello, on November 1, 1970, Buenaflor and another policeman named
Santos Urbana, Jr. borrowed Bello's jeep on the pretext that they needed it to transfer Moscoso, the
suspect in the Perez killing, to the Albay Police Headquarters. When it was returned, the jeep had
bloodstains. Bello and Escober later learned from a PC officer that the jeep had been used in dumping in
Guinobatan the body of Moscoso. Confronted by the PC officer, Bello admitted that the jeep was
borrowed by Buenaflor and Urbina and agreed to execute a sworn statement on the matter.
Consequently, the PC authorities notified Mayor Imperial of the solution of the Moscoso killing.

Three days later, Escober and Bello met Urbina who warned Bello, "Kit, if you want to give your
statement, just say that I borrowed your jeep for thirty minutes. This is a brotherly advice because
something might happen to you." Bello retorted that he would do what was right and that was to tell the
truth. Urbina said that it was up to Bello but he repeated that he was giving Bello a brotherly warning
that something might happen to him 114 (TSN, August 23, 1973, pp. 4-20). These facts were of course
denied by Buenaflor. However, as between the positive declaration of a prosecution witness and the
negative denial of the accused, the former deserves more credence. 115

All these pieces of circumstantial evidence point to no other inference than that Pinto and Buenaflor
fired their guns in defiance of their superior officer's order only "to find the whereabouts" of
Bello 116 and to desist from using their weapons "without clearance from the Chief of Police". 117 Since
there is more than one circumstance and the facts from which the inferences are derived are proven, the
combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 118

The fact that the victims were different from the ones the appellants intended to injure cannot save
them from conviction. Aberratio ictus or mistake in the identity of the victim carries the same gravity as
when the accused zeroes in on his intended victim. The main reason behind this conclusion is the fact
that the accused had acted with such a disregard for the life of the victim(s) without checking
carefully the latter's identity as to place himself on the same legal plane as one who kills another
willfully, unlawfully and feloniously. 119 Neither may the fact that the accused made a mistake in killing
one man instead of another be considered a mitigating circumstance. 120

It is not even necessary to pinpoint who between Pinto and Buenaflor actually caused the death of
Richard or the wounding of Maria Theresa in the presence of proof beyond reasonable doubt that they
acted in conspiracy with each other. 121 Prior agreement between the appellants to lull their intended
victim is not essential to prove conspiracy as the same may be inferred from their own acts showing
joint purpose and design. 122 In this case, such unity of purpose and design is shown by the fact that
only the two of them fired their guns when the Anduiza jeep with the Tiongsons passed by. This they did
in defiance of the order of their superior not to shoot unless ordered to do so. Conspiracy having been
proved, the guilt or culpability is imposable on both appellants in equal degrees. 123

The same conspiracy was evident in the killing of Bello and Andes. The appellants' concerted action was
shown by the manner by which they killed the two. In this incident, however, they invoke self-defense as
a justifying circumstance. Evidence at hand, however, do not favor their claim.

Under Article 11 (1) of the Rules of Court, an accused must prove the presence of all the following
elements of said exempting circumstance: (a) unlawful aggression, (b) reasonable necessity of the
means employed to prevent or repel it, and (c) lack of sufficient provocation on the part of the person
defending himself. 124 The presence of unlawful aggression is a condition sine qua non. There can be
no self-defense, complete or incomplete, unless
the victim has committed an unlawful aggression on the person defending himself. 125

In this case, Buenaflor insists that he fired at Bello because, after calling out to him to surrender, his
shout was answered by a gunshot. Pinto corroborates his story but the principal prosecution eyewitness
in this incident, Inocencia Malbas, swears that she heard no such shout to surrender nor a gunshot from
Bello's direction before Bello was fired upon by the appellants. Physical evidence as well as the
testimonies of Buenaflor himself and Pinto show that Inocencia, and not the appellants, was telling the
truth.

Rafael Seora, the NBI agent who went to Talahib and the road to Mariawa to investigate as well as to
take pictures, found no bullet marks at the crime scene which would pertain to a .22 caliber "paltik"
firearm which Bello's men allegedly used. 126 As no other "paltik" firearms were recovered from the
crime scene other than the two which Buenaflor confiscated from Mostoles and Francisco Andes, the
possibility of said firearms or one of its kind having been used by Bello's men against the appellant
particularly the one who escaped is nil.
Buenaflor claimed that the shot after his call to Bello belonged to a high-powered gun 127 obviously
referring to the firearms recovered from Bello himself. According to Buenaflor however, when he found
the rifle, its magazine was "intact" and he did not manipulate the rifle to know how many of its bullets
had been used. 128 Moreover, if Bello indeed fired a gun, it must be the firearm in his holster and not
the garand which was found a couple of meters from where Bello had fallen. That Bello did not fire any
of his two firearms is buttressed by Pinto's own testimony that Bello was smoking with his back towards
them when he was shot at and that at that moment, he did not see Bello holding a gun. 129 We cannot
help, therefore, but conclude that the defense claim that Buenaflor's call to Bello was answered by a
gunshot is but a figment of their imagination designed for their own exoneration.

Appellants' claim of unlawful aggression on the part of Bello or his men would have been clarified had
any of Bello's men whom they had captured been presented in court. These men, Leoncio Mostoles,
Francisco Andes, Domingo Bantique and Ananias Andes had executed statements before the Legazpi
City police to the effect that they heard Buenaflor's call for Bello to surrender and that Bello fired his gun
at the appellants. However, all four of them later executed statements before the NBI retracting said
earlier statements in view of the fact that the police had threatened them to make the statements
favorable to the appellants. 130

As regards the unlawful aggression of Rosalio Andes against Pinto, we find that if we are to believe Pinto,
we have to stamp full credibility on his statement alone. Even Buenaflor admitted that he did not see
Rosalio Andes attack Pinto. 131 Inocencia swore that she did not see any weapon near the fallen
Rosalio. Indeed, if the aggression did occur, Pinto would not have lost time in presenting in court the
bolo which Andes threatened to use on him. But granting that Rosalio had a bolo, Pinto was not justified
in inflicting the wounds sustained by Rosalio because a mere threatening attitude of the victim will not
constitute unlawful aggression. 132 Moreover, Pinto's testimony that Rosalio menacingly approached
him with a bolo after Buenaflor had released a sunburst directed at the house where Bello was, is
contrary to human behavior if not totally ridiculous. On the contrary, by his own admission, Pinto
continued firing until he saw Rosalio fell.

An accused who admits inflicting fatal injury on his victim and invokes self-defense must rely on the
strength of his own evidence and not only on the weakness of that of the prosecution for, even if weak,
the prosecution evidence gains more credibility. 133 Unfortunately, in this case, inspire of the fact that
the prosecution had only one eyewitness to the killing of Bello and Andes, the appellants had not
presented sufficiently strong evidence to shore up their claim of self-defense.

We agree with the trial court that treachery attended the commission of all four crimes in this case. The
killing of Richard Tiongson, Francisco Bello and Rosalio Andes as well as the wounding of Maria Theresa
Tiongson were all so sudden that all of them were left defenseless. This is shown not only by the
testimonial evidence on the commission of the crimes but also by the nature and location of the wounds
of all the victims. 134 The presence of treachery qualifies the killings to murder and the wounding of
Maria Theresa to frustrated murder. Nighttime, however, may not be appreciated as there is no proof
that it was specifically sought in the commission of the crime and therefore we deem it absorbed by
treachery.

Evident premeditation has not been proven beyond reasonable doubt in this case but we find that the
appellants indeed took advantage of their public position in perpetrating the crime. Under Article 248 of
the Revised Penal Code, murder is punishable by reclusion temporal in its maximum period to death.
There being no mitigating circumstance to temper the penalty and there being only the aggravating
circumstance of taking advantage of their public office under Article 14 (1) of the said Code, the proper
penalty is death. 135 However, in view the constitutional abolition of the death penalty, the penalty
of reclusion perpetua shall be imposed on the appellants for each of the three murders they committed.

For the wounding of Maria Theresa, the penalty imposable, applying Article 50 of the Revised Penal
Code, is prision mayor maximum to reclusion temporal medium. There being no reason to further lower
the penalty by one degree pursuant to the provision of Article 250, and there being one aggravating
circumstance and no mitigating circumstance, the penalty should be within the range of prision
mayor maximum to reclusion temporal medium. Applying the Indeterminate Sentence Law, 136 the
proper penalty for the frustrated murder of Maria Theresa is six (6) years of prision
correccional maximum as minimum to ten (10) years and one (1) day of prision mayor maximum as
maximum. The indemnity of eight thousand pesos imposed by the lower court should be respected
considering that while there is evidence as to the actual amount she spent while confined at the Sacred
Heart Hospital in Legazpi City, there is no proof as to the expenses she incurred after she was
transferred to the Camp Crame Hospital in Quezon City.

As in all cases wherein peace officers are accused, this case creates a feeling of frustration in everyone.
The crimes committed here ought to have no place in this democratic and civilized society. True it is that
a police officer is sometimes left in a quandary when faced with a situation where a decisive but legal
action is needed. But, as this Court said in Calderon vs. People and Court of Appeals (96 Phil. 216, 225
[1954]), "(t)he judgment and discretion of public officers, in the performance of their duties, must be
exercised neither capriciously nor oppressively, but within reasonable limits. In the absence of a clear
and legal provision to the contrary, they must act in conformity with the dictates of a sound discretion,
and with the spirit and purpose of the law." Police officers must always bear in mind that although they
are dealing with criminal elements against whom society must be protected, these criminals are also
human beings with human rights. In the words of then Justice Moran in the Oanis case (Supra):

It is, however, suggested that a notorious criminal "must be taken by storm" without
regard to his right to life which he has by such notoriety already forfeited. We may
approve of this standard of official conduct where the criminal offers resistance or does
something which places his captors in danger of imminent attack. Otherwise, we cannot
see how, as in the present case, the mere fact of notoriety can make the life of a criminal
a mere trifle in the hands of officers of the law. Notoriety rightly supplies a basis for
redoubled official alertness an vigilance; it never can justify precipitate action at the cost
of human life. Where, as here, the precipitate action of the appellants has cost an
innocent life and there exist no circumstances whatsoever warrant action of such
character in the mind of a reasonably prudent man, condemnationnot condonation
should be the rule; otherwise we would offer a premium to crime in the shelter of official
actuation.

WHEREFORE, the decision of the lower court is hereby affirmed subject to the modifications that
appellants shall solidarily be liable for the amount of Fifty Thousand (P50,000) for each of the three
murders they committed and, for the frustrated murder of Maria Theresa Tiongson, each of them shall
suffer the indeterminate penalty of from six (6) years of prision correccional maximum as minimum to
ten (10) years and one (1) day of prision mayor maximum as maximum.

Inasmuch as appellant Daniel Pinto, Jr. had been a police officer for only five months 137 when the
crimes were committed, let a copy of this decision be furnished the Office of the President for whatever
action may be proper to temper his penalty. 138

11. HE PEOPLE OF THE PHILIPPINES, appellee, vs. ARMANDO CABALLERO, RICARDO

CABALLERO, MARCIANO CABALLERO, JR., and ROBITO CABALLERO, accused.

ARMANDO CABALLERO, RICARDO CABALLERO, and MARCIANO CABALLERO, JR., appellants.

DECISION

CALLEJO, SR., J.:

Before the Court on automatic review is the Decision [1] of the Regional Trial Court of San Carlos City,
Negros Occidental, Branch 57, convicting appellants Armando Caballero, Ricardo Caballero and Marciano
Caballero, Jr. of murder in Criminal Cases Nos. RTC-1217 and RTC-1218 and meting on each of them the
supreme penalty of death and ordering them to pay damages; and of frustrated murder in Criminal Case
No. RTC-1219 and imposing on them the penalty of reclusion perpetua.

The Antecedents

Teresito (Dodong) Mondragon and his family lived in a compound surrounded by a barbed-wire fence
at New Sumakwel, Broce Street, San Carlos City, Negros Occidental. Living in the same compound were
Ricardo Caballero and his family; and Myrna Bawin, the sister of Eugene Tayactac, and her family. Beside
the compound was the house of Leonilo Broce, a nephew of Wilma Broce.
 In the afternoon of August 3, 1994, Armando (Baby), Robito (Bebot) and Marciano, Jr. (Jun), all
surnamed Caballero, were having a drinking spree in the house of their brother Ricardo in the
Mondragon Compound. At about 7:00 p.m. of said date, Eugene Tayactac and Arnold Barcuma arrived in
the sari-sari store of Wilma Broce which was across the Mondragon Compound. Eugene had dinner in the
store while Arnold proceeded to the house of Susana Broce, Eugenes girlfriend, for a chat. Susanas
house was about 15 meters away from the store of Wilma. Momentarily, Armando arrived in the store
and asked Eugene in an angry tone: Gene mopalit ka? (Gene, will you buy?). Eugene replied: What
is this all about? We dont have any quarrel between us. Armando left the store but stood by the gate
of the barbed-wired fence of the Mondragon Compound. His brothers Ricardo, Robito and Marciano, Jr.
joined him. Ricardo and Robito were armed with knives. When Wilma told Eugene that she was closing
the store already, he stood up and left the store on his way to Susanas house. At that time, Myrna
Bawin, who was standing by the window of their house saw her brother Eugene going out of the store
and proceeding to the house of Susana. She called out to him and advised him to go home. Myrna then
left the window to pacify her crying baby.

As Eugene walked by the gate of the Mondragon Compound, Armando suddenly grabbed Eugene
towards the compound. Eugene resisted. Spontaneously, Ricardo, Marciano, Jr. and Robito joined
Armando and assaulted Eugene. Armando took the wooden pole supporting the clothesline and hit
Eugene with it. The latter tried to parry the blows of the Caballero brothers, to no avail. In the process,
Eugene was stabbed three times. As Eugene was being assaulted, Myrna returned to the window of her
house and saw the Caballero brothers assaulting Eugene. She shouted for help for her hapless
brother. Wilma, who witnessed the whole incident, was shocked to immobility at the sudden turn of
events.

From the nearby house of Susana, Arnold saw the commotion and rushed to the scene to pacify the
protagonists. Arnold told the Caballero brothers: Bay, what is the trouble between you and
Eugene? However, Ricardo accosted Arnold and stabbed the latter on the left side of his
body. Forthwith, Robito, Marciano, Jr. and Armando ganged up on Arnold. Two of them stabbed Arnold on
his forearm. Arnold fled for his life and hid under the house of a neighbor.

For his part, Leonilo rushed from his house to where the commotion was. He was, however, met by
Robito who stabbed him on the chest. Wounded, Leonilo retreated and pleaded to his uncle Lucio Broce
for help: Tio, help me because I am hit. The commotion stopped only upon the arrival of Teresito
Mondragon who was able to pacify the Caballero brothers. They all returned to the compound.

In the meantime, Lucio Broce, the uncle of Leonilo brought the injured Eugene, Leonilo and Arnold to
the Planters Hospital for medical treatment. Eugene and Leonilo eventually died from the stab wounds
they sustained.

Dr. Filped A. Maisog performed an autopsy on the cadaver of Eugene. He signed a postmortem
report containing the following findings:

POST-MORTEM EXAMINATION

Name: Eugenio Tayactac, 22 years old, male, single

Address: New Sumakwel, San Carlos City, Neg. Occ.

Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.

Place of Examination: San Carlos City Hospital

Date & Time of Incident: August 3, 1994 @ 8:30 P.M.

Date & Time Examined: August 3, 1994 @ 10:40 P.M.

Post-Mortem Findings:

= Stab wound (L) anterior chest 2 cm. 5 th ICS MCL directed postero laterally, lacerating (L)
auricle of the heart, and the (L) pulmonary artery and the left middle lobe of the lungs;
 = Stab wound (R) anterior chest 2 cm. long 5th ICS parasternal line directed posteriorly;

= Stab wound (R) posterior chest level 7th ICS 2 cm. long directed anteriorly.

CAUSE OF DEATH: Severe Hemorrhage secondary to Multiple Stab wounds with Massive
Hemothorax (L) and Hemopneumothorax (R).[2]

He testified that the stab wounds could have been caused by a sharp-edged single-bladed or
double-bladed instrument, or by three instruments.[3]

Dr. Jose Carlos L. Villarante performed an autopsy on the cadaver of Leonilo. He signed a
postmortem report containing the following findings:

POST-MORTEM EXAMINATION

Name: Leonilo Broce, 22 years old, male, married

Address: New Sumakwel, San Carlos City, Neg. Occ.

Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.

Place of Examination: San Carlos City Hospital

Date & Time of Incident: Aug. 3, 1994 @ 8:30 P.M.

Date & Time Examined: Aug. 3, 1994 @ 8:45 P.M.

Post-mortem findings:

= Stab wound, (R) post chest, about the level of the 6th and 7th RICS, post. axillary line.

CAUSE OF DEATH: Hypovolemic shock secondary to multiple organ injury.[4]

Dr. Edgardo B. Quisumbing attended to and operated on Arnold Barcuma. He signed a medical
certificate stating that Arnold sustained the following injuries:

= Lacerated wound 2 cm. (R) forearm middle 3rd

= Incised wound 2 inches (L) forearm middle 3rd

= Stabbed wound, 2 inches in length (L) chest, anterior axillary line at the level of the
7th intercostal space, penetrating thoracic cavity and abdominal cavity.

... [5]

On the witness stand, Dr. Quisumbing testified that the wounds sustained by Arnold could have
been caused by three different sharp-pointed instruments. [6] He further testified that Arnold would have
died because of the stab wound on his chest, were it not for the timely medical intervention.

On August 5, 1994, Armando, Ricardo, Marciano, Jr. and Robito, were charged with Murder for the
death of Leonilo Broce. The Information, docketed as Criminal Case No. RTC 1217 reads:

That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros
Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring together and helping one another, armed with pieces of wood and hunting knives, and with
intent to kill, with treachery and evident premeditation, did, then and there, wilfully, unlawfully and
feloniously, with the use of said weapons, attack, assault and use personal violence upon the person of
one LEONILO BROCE, by striking the latter with the use of pieces of wood and stabbing him, thereby
inflicting upon said Leonilo Broce physical injury described as follows:

= Stabbed wound (R) chest penetrating thoracic cavity.

and which injury caused massive hemorrhage which resulted to the death of Leonilo Broce.

That an aggravating circumstance of abuse of superior strength is attendant in the commission of the
offense.

CONTRARY TO LAW.[7]

They were also charged with the same crime for the death of Eugene Tayactac in an Information
docketed as Criminal Case No. RTC-1218, which reads:

That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros
Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring together and helping one another, armed with pieces of wood and hunting knives, and with
intent to kill, with treachery and evident premeditation, did, then and there, wilfully, unlawfully and
feloniously, with the use of said weapons, attack, assault and use personal violence upon the person of
one EUGENE TAYACTAC, by striking the latter with use of pieces of wood and stabbing him thereby
inflicting upon said Eugene Tayactac physical injuries which resulted to the death of the latter.

That an aggravating circumstances of abuse of superior strength is attendant in the commission of the
offense.

CONTRARY TO LAW.[8]

Another Information was filed against the Caballero brothers for frustrated murder for the injuries of
Arnold Barcuma. Docketed as Criminal Case No. RTC-1219, it reads:

That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros
Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring together and helping one another, armed with pieces of wood and hunting knives, with intent
to kill, with treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously
attack, assault and use personal violence upon the person of one ARNOLD BARCUMA, by striking him
with the use of pieces of wood and stabbing him, thereby inflicting upon the latter physical injuries
which would have resulted to the death of said Arnold Barcuma, thus performing all the acts of
execution, which would have produced the crime of Murder, as a consequence, but nevertheless did
not produce it, by reason of causes independent of the will of the accused that is, the timely medical
assistance rendered to said Arnold Barcuma.

That an aggravating circumstance of abuse of superior strength is attendant in the commission of the
offense.[9]

Ricardo, Armando and Marciano, Jr., assisted by counsel, were arraigned on September 15,
1994. They pleaded not guilty to all the charges. Robito Caballero remained at-large.

Ricardo, Armando and Marciano, Jr. invoked the defenses of denial and alibi. They adduced
evidence that Ricardo was employed as electrician in the Office of the City Engineer of San Carlos
City. Armando was a motor cab driver. Robito resided in H.C. Rigor Street, San Carlos City while
Marciano, Jr. was a resident of Don Juan Subdivision, San Carlos City and was employed with the
Victorias Milling Corporation.

On August 3, 1994, at 8:00 a.m., Robito left San Carlos City and went to Bacolod City. Armando
went to the house of his brother Ricardo to help in the construction of the latters house and to take care
of Ricardos fighting cocks while he was in his office. Ricardo arrived home at 8:00 p.m. and had dinner
with his family and Armando. Momentarily, their sister Mila and their younger brother Marciano, Jr.
arrived in the house of Ricardo. Marciano, Jr. allegedly was mauled by a group of men and sustained an
abrasion, a contusion and swelling of the left side of his face. Ricardo and Armando brought their
brother Marciano, Jr. to the hospital for treatment. On August 4, 1994, Marciano, Jr. was treated for:

= Linear abrasion (L) scapula region;

= Contusion (R) lower lip lateral side;

= Swelling left face.

No. of days of healing: 5-7 days barring complication.[10]

Ricardo, Armando and Marciano, Jr. denied killing Eugene and assaulting Arnold. They also denied
having any altercation with the victims. They also denied stabbing Leonilo. They had no idea why Wilma,
Arnold and Myrna would implicate them for the deaths of Leonilo and Eugene and for the injuries of
Arnold.

After due proceedings, the trial court rendered judgment on May 7, 2001 finding all the three
accused, now appellants guilty beyond reasonable doubt as principals of the crimes charged, the
decretal portion of which reads:

WHEREFORE, accused Armando Caballero, alias Baby, Ricardo Caballero, alias Ricky and Marciano
Caballero, Jr., alias Jun, having been found GUILTYbeyond reasonable doubt of the offenses charged
them as principals, are hereby sentenced to suffer:

1. In Criminal Case No. RTC-1217 for the murder of Leonilo Broce, there being no mitigating
circumstance present, with the attendant aggravating circumstances of treachery and abuse of superior
strength, the maximum penalty of death and to pay the heirs of Leonilo Broce the sum of P75,000.00 as
indemnity;

2. In Criminal Case No. RTC-1218, for the murder of Eugene or Eugenio Tayactac, there being no
mitigating circumstance present, with the attendant aggravating circumstances of treachery and abuse
of superior strength, the maximum penalty of death; and to pay the heirs of Eugene Tayactac the sum of
P75,000.00 as indemnity; and

3. In Criminal Case No. RTC-1219, for Frustrated Murder, for having seriously inflicted injuries upon the
person of Arnold Barcuma which nearly resulted to his death, there being no mitigating circumstance
present, an imprisonment of twelve (12) years, as minimum, to seventeen (17) years, four (4) months
and one (1) day, with no award as to damages, no evidence having been introduced to establish, the
same; and

4. To pay the costs in all three (3) cases.

SO ORDERED.[11]

In convicting the accused, the trial court found that all of them conspired to kill Eugene and Leonilo
and cause injuries to Arnold. While the trial court stated that it was only appellant Armando who
stabbed Eugene, and only the accused Robito who stabbed Leonilo, however, it concluded that all of
them were equally liable for the deaths of Leonilo and Eugene and for the injuries of Arnold.

In their Brief, the accused, now appellants assail the decision of the trial court contending that:

THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANTS IN CRIMINAL CASES NOS. 1217-
1219 DESPITE THE FACT THAT THEIR GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCES OF

TREACHERY AND ABUSE OF SUPERIOR STRENGTH ON THE ASSUMPTION THAT INDEED ACCUSED-
APPELLANTS KILLED THE VICTIMS.

III

THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON ACCUSED-APPELLANTS ON
THE ASSUMPTION THAT INDEED THEY KILLED THE VICTIMS.[12]

The Court will delve into and resolve the first two assignments of errors.
 The appellants aver that the prosecution failed to prove beyond reasonable doubt their respective
guilt for the deaths of Eugene and Leonilo and for the injuries sustained by Arnold. They assert that the
trial court committed reversible error in rejecting their defenses of denial and alibi. They claim that at
the time of the incident they were in the San Carlos Hospital for the treatment of the injuries of
appellant Marciano, Jr.

The appellants are partly correct.

The trial court correctly found that all the appellants conspired to kill Eugene and assault Arnold;
hence, they are criminally liable for the death of Eugene and for the injuries sustained by Arnold. Article
8 of the Revised Penal Code provides that there is conspiracy when two or more persons agree to
commit a felony and decide to commit it. Conspiracy is always predominantly mental in composition
because it consists primarily of a meeting of minds and intent. [13] Conspiracy must be proved with the
same quantum of evidence as the crime itself, that is, by proof beyond reasonable doubt. [14] However,
direct proof is not required. Conspiracy may be proved by circumstantial evidence. Conspiracy may be
proved through the collective acts of the accused, before, during and after the commission of a felony,
all the accused aiming at the same object, one performing one part and another performing another for
the attainment of the same objective, their acts though apparently independent were in fact concerted
and cooperative, indicating closeness of personal association, concerted action and concurrence of
sentiments.[15] The overt act or acts of the accused may consist of active participation in the actual
commission of the crime itself or may consist of moral assistance to his co-conspirators by moving them
to execute or implement the criminal plan. [16] Direct proof of a person in agreement to commit a crime is
not necessary. It is enough that at the time of the commission of a crime, all the malefactors had the
same purpose and were united in their execution. [17] Once established, all the conspirators are criminally
liable as co-principals regardless of the degree of participation of each of them for in contemplation of
the law, the act of one is the act of all.[18]

Criminal conspiracy must always be founded on facts, not on mere inferences, conjectures and
presumptions.[19] Mere knowledge, acquiescence to or approval of the act without cooperation or
agreement to cooperate, is not enough to constitute one party to a conspiracy absent the intentional
participation in the act with a view to the furtherance of the common objective and purpose.
[20]
Moreover, one is not criminally liable for his act done outside the contemplation of the
conspirators. Co-conspirators are criminally liable only for acts done pursuant to the conspiring on how
and what are the necessary and logic consequence of the intended crime. [21]

In this case, when appellant Armando asked Eugene at the store of Wilma whether the latter was
going to buy something from the store, Eugene was peeved and remonstrated that he and Armando had
no quarrel between them. Appellant Armando was likewise irked at the reaction of Eugene because
from the store, appellant Armando stationed himself by the gate of the Mondragon Compound near the
sari-sari store of Wilma. Appellants Ricardo, Marciano, Jr. and Robito joined their brother, appellant
Armando at the gate. Appellant Ricardo and accused Robito were armed with knives. When Eugene
passed by the gate to the compound, appellant Armando pulled Eugene to the gate but when the latter
resisted, all the appellants ganged up on Eugene. Appellant Armando took the wooden support of the
clothesline and hit Eugene with it. Eugene was stabbed three times on his chest even as he tried to
parry the thrusts. When Arnold rushed to the situs criminis to pacify the appellants and accused Robito,
appellant Ricardo stabbed him on the left side of his body. The other appellants and accused Robito
joined appellant Ricardo and ganged up on Arnold. They stabbed Arnold anew twice on his
forearm. Teresito Mondragon, the father-in-law of appellant Ricardo intervened and forthwith, all the
appellants, including accused Robito returned to the Mondragon Compound. Patently, all the appellants
by their simultaneous collective acts before and after the commission of the crimes were united in one
common objective, to kill Eugene, and cause injuries to Arnold for trying to intervene and prevent
bloodshed. Hence, all the appellants are criminally liable for the death of Eugene and for the injuries of
Arnold. It does not matter who among the appellants stabbed Eugene or inflicted injuries on
Arnold. The act of one is the act of the others.

However, for the death of Leonilo, the Court believes that the appellants are not criminally
liable. The prosecution failed to adduce evidence that the appellants and the accused Robito conspired
to kill Leonilo. The appellants did not actually see Leonilo rushing out from his house to the situs
criminis. They had no foreknowledge that the accused Robito would stab Leonilo. There was no
evidence presented by the prosecution to prove that all the appellants assisted the accused Robito in
killing Leonilo. It must be recalled that Leonilo rushed out of his house when he saw the commotion, with
the intention of aiding the victim or pacifying the protagonists. He was, however, stopped by accused
Robito who suddenly stabbed him on the chest. Leonilo retreated and asked for help. Wilma Broce
testified that only the accused Robito stabbed Leonilo:

Q After that, what happened next?

A Leonilo Broce came out of his house.

Q Where is the house of Leonilo Broce?

A Still located at Sumakwel.

Q In that case, the very house where Eugene Tayaktak leaned on when he was ganged up by
the four?

A Yes.

Q What happened after that?

A When he came out from the house and saw that it was Eugene Tayaktak, he proceeded to
approach them but he was not able to approach them because he was met by Robit
Bebot Caballero and stabbed by Robito Caballero.

Q Was LeoniloBroce (sic) hit when he was stabbed by Robito Caballero?

A Yes. He immediately ran back and said: Tio, help me because I am hit.

INTERPRETERS (observation)

Witness demonstrating by holding her left armpit.

Q Was Eugene Tayaktak able to escape from the attach (sic) of the Caballero brothers?

A Not (sic).

Q Now what happened to Eugene Tayaktak?

A He appeared very weak and he was staggering.

Q Do you know where Eugene Tayaktak now?

A Already dead.

Q What happened to Leonilo Broce, where is he now?

A The two of them were (sic) already dead.

Q Now, when did the trouble stop if it stopped?

A It stopped when Dodong Mondragon arrived.

Q What did the accused do after the trouble was stopped?

A They went inside the compound of his (sic) father.

Q What happened next?

A Nothing happened. Both of them were brought to the hospital.[22]

 In sum, the trial court committed reversible error in convicting the appellants of murder for the
death of Leonilo. As this Court held in People v. Flora:[23]

However, we cannot find Edwin Flora similarly responsible for the death of Emerita Roma and the injury
of Flor Espinas. The evidence only shows conspiracy to kill Ireneo Gallarte and no one else. For acts
done outside the contemplation of the conspirators only the actual perpetrators are liable. In People v.
De la Cerna, 21 SCRA 569, 570 (1967), we held:

... And the rule has always been that co-conspirators are liable only for acts done pursuant to the
conspiracy. For other acts done outside the contemplation of the co-conspirators or which are not the
necessary and logical consequence of the intended crime, only the actual perpetrators are liable. Here,
only Serapio killed (sic) Casiano Cabizares. The latter was not even going to the aid of his father Rafael
but was fleeing away when shot.

To conclude, appellant Edwin Flora is guilty beyond reasonable doubt only of the murder of Ireneo
Gallarte. He has no liability for the death of Emerita Roma nor the injuries of Flor Espinas caused by his
co-accused Hermogenes Flora.

Crimes Committed by Appellants

In Criminal Case No. RTC-1218, the appellants are guilty as co-principals by direct participation of
murder, qualified by treachery. In order that treachery may be considered as a qualifying circumstance,
the prosecution is burdened to prove that:

.... (1) the employment of means of execution that give the person attacked no opportunity to defend
himself or to retaliate; and (2) the means of execution was deliberately or consciously adopted. [24]

Even a frontal attack is treacherous if it is sudden and the victim is unarmed. The essence of
treachery is a swift and unexpected attack on the unarmed victim. [25]

In this case, Eugene was unarmed. He had no inkling that he would be waylaid as he sauntered on
his way to his girlfriend Susanas house. On the other hand, appellant Armando was armed with a
wooden pole while appellant Ricardo and accused Robito were armed with knives. The attack on the
hapless Eugene was swift and unannounced. Undeniably, the appellants killed Eugene with treachery.

In Criminal Case No. RTC-1219, the appellants are guilty of frustrated murder under Article 248 in
relation to Article 6, first paragraph of the Revised Penal Code which reads:

A felony is consummated when all the elements necessary for its execution and accomplishment are
present; and it is frustrated when the offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.

The essential elements of a frustrated felony are as follows:

Elements:

1. The offender performs all the acts of execution;

2. All the acts performed would produce the felony as a consequence;

3. But the felony is not produced;

4. By reason of causes independent of the will of the perpetrator.[26]

In the leading case of United States v. Eduave,[27] Justice Moreland, speaking for the Court,
distinguished an attempted from frustrated felony. He said that to be an attempted crime the purpose
of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop
prior to the moment when he has performed all the acts which should produce the crime as a
consequence, which act it is his intention to perform.
 The subjective phase in the commission of a crime is that portion of the acts constituting the crime
included between the act which begins the commission of the crime and the last act performed by the
offender which, with prior acts, should result in the consummated crime. Thereafter, the phase is
objective.

In case of an attempted crime, the offender never passes the subjective phase in the commission of
the crime. The offender does not arrive at the point of performing all of the acts of execution which
should produce the crime. He is stopped short of that point by some cause apart from his voluntary
desistance.

On the other hand, a crime is frustrated when the offender has performed all the acts of execution
which should result in the consummation of the crime. The offender has passed the subjective phase in
the commission of the crime. Subjectively, the crime is complete. Nothing interrupted the offender
while passing through the subjective phase. He did all that is necessary to consummate the
crime. However, the crime is not consummated by reason of the intervention of causes independent of
the will of the offender. In homicide cases, the offender is said to have performed all the acts of
execution if the wound inflicted on the victim is mortal and could cause the death of the victim barring
medical intervention or attendance.[28]

If one inflicts physical injuries on another but the latter survives, the crime committed is either
consummated physical injuries, if the offender had no intention to kill the victim or frustrated or
attempted homicide or frustrated murder or attempted murder if the offender intends to kill the
victim. Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons
used in the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d)
the manner the crime was committed; and (e) words uttered by the offender at the time the injuries are
inflicted by him on the victim.

In this case, appellant Armando was armed with a wooden pole. Appellant Ricardo and accused
Robito used knives. Dr. Quisumbing, who attended to and operated on Arnold, testified that the stab
wound sustained by Arnold on the left side of his body was mortal and could have caused his death were
it not for the timely and effective medical intervention:

Q And how about the size and the depth of the wounds and how big is each wound and how
deep.

A The first wound is 2 cm. and the 2 nd is about 2 inches and the 3 rd is 2 inches in the left,
penetrating the chest near the thorax along the lateral line.

Q So, aside from the 3rd wound there are wounds which are not really very serious?

A As I said before, the most serious is the 3rd wound.

Q So even without the other wounds the 3 rd wound - - it could be the cause of the death of
the victim?

A Yes, Sir.[29]

It cannot be denied that the appellants had the intention to kill Arnold. The appellants performed all
the acts of execution but the crime was not consummated because of the timely medical intervention.

Treachery attended the stabbing of Arnold because he was unarmed and the attack on him was
swift and sudden. He had no means and there was no time for him to defend himself. In sum, the
appellants are guilty of frustrated murder.

The appellants denial of the crimes charged in Criminal Case Nos. RTC-1218 and RTC-1219 cannot
prevail over Wilmas and Arnolds positive and straightforward testimonies that the appellants killed
Eugene and stabbed Arnold. Moreover, Wilma and Arnold had no motive to falsely implicate the
appellants for the said crimes; hence, their testimony must be accorded full probative weight. [30]

Equally barren of merit is appellants defense of alibi. Alibi as a defense is inherently weak for it is
easy to fabricate and difficult to disprove. To merit approbation, the appellants were burdened to prove
with clear and convincing evidence that at the time the crimes were committed, they were in a place
other than the situs of the crimes such that it was physically impossible for them to have committed
said crimes.[31] The appellants dismally failed in this respect. They testified that they were at the house
of appellant Ricardo, which was conveniently near the place where Eugene was killed and Arnold was
assaulted. Moreover, the records show that Marciano, Jr. was treated for his superficial injuries on
August 4, 1996, a day after the incident. This belies the claim of appellants Ricardo and Armando that
they were allegedly in the hospital at the time of the incident.

Penalties Imposable on Appellants

The trial court imposed the death penalty on appellants in Criminal Case No. RTC-1218 on its finding
that treachery and abuse of superior strength were attendant in the killing of Eugene. The Solicitor
General does not agree with the trial court and contends that abuse of superior strength was absorbed
by treachery; hence, should not be considered as a separate aggravating circumstance in the imposition
of the penalty on the appellants. The Court agrees with the Solicitor General. Abuse of superior
strength, concurring with treachery is absorbed by treachery.[32]

The penalty for murder under Article 248 of the Revised Penal Code, as amended by Republic Act
7659, is reclusion perpetua to death. Since aside from the qualified circumstance of treachery, no other
modifying circumstance was attendant in the commission of the crime, the proper penalty for the crime
is reclusion perpetua conformably with Article 63 of the Revised Penal Code.

In Criminal Case No. RTC-1219, for frustrated murder, the Solicitor General contends that the
indeterminate penalty of from 12 years of reclusion temporal as minimum, to 17 years, 4 months and 1
day of reclusion temporal as maximum, imposed on the appellants is not correct. The Court agrees with
the Solicitor General. The penalty for frustrated murder is one degree lower than reclusion perpetua to
death, which is reclusion temporal.[33] The latter penalty has a range of 12 years and 1 day to 20
years. The maximum of the indeterminate penalty should be taken from reclusion temporal, the penalty
for the crime taking into account any modifying circumstances in the commission of the crime. The
minimum of the indeterminate penalty shall be taken from the full range of prision mayor which is one
degree lower than reclusion temporal. Since there is no modifying circumstance in the commission of
frustrated murder, the appellants should be meted an indeterminate penalty of from nine (9) years and
four (4) months of prision mayor in its medium period as minimum to seventeen (17) years and four (4)
months of reclusion temporal in its medium period, as maximum.

Civil Liabilities of Appellants

The trial court ordered the appellants in Criminal Case No. RTC-1218 to pay in solidum the heirs of
the victim Eugene Tayactac, the amount ofP75,000 by way of indemnity. The trial court did not award
moral damages to said heirs. This is erroneous. Since the penalty imposed on the appellants
is reclusion perpetua, the civil indemnity should be only P50,000. The heirs of the victim should also be
awarded the amount of P50,000 as moral damages.[34]

In Criminal Case No. RTC-1219, the trial court did not award moral damages to the victim Arnold
Barcuma on its finding that the prosecution failed to adduce any evidence to prove said damages. The
Court disagrees with the trial court. The victim Arnold Barcuma himself testified on his injuries. [35] He is
entitled to moral damages in the amount of P25,000. [36] Having suffered injuries and undergone medical
treatment he is, as well entitled to actual damages, which in the absence of evidence would,
nevertheless, entitle him to an award of temperate or moderate damages, herein fixed atP10,000.

The Verdict of the Court

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of San Carlos City
(Negros Occidental), Branch 57, in Criminal Cases Nos. RTC-1217 up to RTC-1219 is AFFIRMED with the
following MODIFICATIONS:

1. In Criminal Case No. RTC-1217, the Court, finding the appellants not guilty of the crime
charged for failure of the prosecution to prove their guilt beyond reasonable doubt,
REVERSES the judgment of the trial court and ACQUITS them of the said charge.
 2. In Criminal Case No. RTC-1218, the appellants are found guilty beyond reasonable doubt of
murder under Article 248 of the Revised Penal Code, qualified by treachery, and are
sentenced to suffer the penalty of reclusion perpetua and ordered to pay in solidum the heirs
of the victim Eugene Tayactac, the amounts of P50,000 as civil indemnity and P50,000 as
moral damages.

3. In Criminal Case No. RTC-1219, the appellants are found guilty beyond reasonable doubt of
frustrated murder under Article 248 in relation to Article 6, first paragraph of the Revised
Penal Code and are hereby sentenced to suffer an indeterminate penalty of from nine (9)
years and four (4) months ofprision mayor in its medium period, as minimum, to seventeen
(17) years and four (4) months of reclusion temporal in its medium period, as maximum. The
appellants are hereby ordered to pay in solidum to the victim Arnold Barcuma the amount
of P25,000 as moral damages and P10,000 as temperate or moderate damages.

Costs de oficio.

12. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERNESTO ENRIQUEZ y ROSALES and
WILFREDO ROSALES y YUCOT, accused-appellants.

DECISION

VITUG, J.:

Ernesto Enriquez y Rosales and Wilfredo Rosales y Yucot were charged with having violated Section
4, Article II, of Republic Act ("R.A.") No. 6425 (Dangerous Drugs Act of 1972), as amended, in an
information that read:

That on or about June 5, 1990, in the City of Manila, Philippines, the said accused, conspiring and
confederating together and mutually helping each other, not being authorized by law to sell, deliver,
give away to another or distribute any prohibited drug, did then and there wilfully and unlawfully sell or
offer for sale six (6) kgrms of dried flowering tops of marijuana stuffed in a plastic sack, which is a
prohibited drug.

"Contrary to law.[1]

The antecedent facts leading to the filing of the information, according to the prosecution, are
hereunder narrated.

At around eleven oclock in the morning of 05 June 1990, Sgt. Pedro I. Cerrillo, Jr., the Officer-in-
Charge of the Intelligence and Drug Law Enforcement Unit of Police Station No. 2 (located in Tondo,
Manila) of the Western Police District, was in the vicinity of North Harbor routinely scouting for
information from his civilian informants. Near the gate fronting Pier 10, Danny, a porter and member
of the Anti-Drug Abuse Movement ("ADAM"), approached and informed Sgt. Cerrillo that a free-lance
porter at the North Harbor, a.k.a. Bulag, was looking for prospective buyers of marijuana. Sgt. Cerrillo
instructed Danny to say that he had come across a couple who would be interested in buying the
prohibited drug. Sgt. Cerrillo had then in mind a possible buy-bust operation.

The buy-bust plan was broached to Patrolwoman Shirley Maramot who was manning Police Station
No. 2. Fellow police officers were at the time on duty at the U.S. Embassy where a "rally" by certain
activists was in progress. Using his own owner-type jeep, Sgt. Cerrillo repaired to his house at 727
Moriones St., Tondo, Manila, to procure ten (10) pieces of one hundred peso bills [2] to be used in the
projected buy-bust operation.[3] He thereupon had, at a store near the police station, xerox copies made
of the bills that can readily show the serial numbers which he had also noted down in his personal
notebook.[4]

Back at the police station, Sgt. Cerrillo handed the buy-bust money to Pat. Maramot. Since there
were no other "operatives" at the station available for the operation, Sgt. Cerrillo sought the assistance
of ADAM members Joseph Mendoza, Amado Betita and Alex Trinidad. The team, including "Danny," were
briefed by Sgt. Cerrillo. The plan called for Pat. Maramot and Mendoza to pose as the couple interested
in buying marijuana and for Trinidad, Betita and Sgt. Cerrillo to act as the "back-up" men. Pat. Maramot
was to nod her head as soon as the sale was consummated.[5]

At about 11:35 a.m., the group, using two vehicles, proceeded to the vicinity of Pier 10 at the North
Harbor. At the corner of Moriones Street and Radial Road 10, Pat. Maramot and Mendoza sat on a bench
by a store to wait for the return of Danny, who had meanwhile left to fetch Bulag, while Sgt. Cerrillo,
Trinidad and Betita strategically positioned themselves at a billiard hall, mingling with spectators and
pretending to be bystanders. The billiard hall was only about ten meters away from Pat. Maramots
group, and it afforded a good view of the place.[6]

Moments later, Danny arrived with accused Wilfredo Rosales, a.k.a. Bulag. Rosales talked with the
poseur-buyers. After about five minutes, the poseur-buyers, Rosales and the informant entered an alley,
walking along shanties, until they reached a house numbered 1349.

A half-naked man in green shorts emerged from one of the doors of the house. The man, later
identified to be accused Ernesto Enriquez, a.k.a. Nene, asked Pat. Maramot in Visayan accent, Dala
mo ba ang pera? Pat. Maramot took out from her pocket the bundle of the marked money and showed
it to Enriquez. The latter allowed Maramots group to enter the house. [7] Minutes later, as so pre-
arranged, Sgt. Cerrillo followed and proceeded to house No. 1349. Finding the door closed, he went
around the house. Sgt. Cerrillo saw Pat. Maramot, Mendoza and the informant exit through the back
door. Rosales, carrying a plastic bag, was with them. Again, Sgt. Cerrillos group followed Pat. Maramot
and Rosales until the latter reached a nearby waiting shed for jeepney passengers. At this point, Pat.
Maramot announced that she was a policewoman. Sgt. Cerrillo held Rosales and took his bag. Sgt.
Cerrillo opened the sack, and inside it was another sack containing marijuana wrapped in plastic.

The group hurriedly returned to house No. 1349 only to find that Enriquez had by then left the
premises. The team boarded the police service jeep and moved on to Kagitingan Street at the
Lakandula detachment. Sgt. Cerrillo interviewed Rosales. Upon being informed that Enriquez would
usually visit the Pier 10 area, Sgt. Cerrillo proceeded to the place. After scouring the area, a security
guard supervisor at the pier, who accompanied the group, spotted Enriquez walking near the pier. Sgt.
Cerrillo picked up Enriquez and brought him to the Lakandula detachment for investigation. Later,
Minda, the wife of Enriquez, arrived. Someone, at the request of Enriquez, had fetched her to "bring the
money." Enriquez told her to return the amount to Sgt. Cerrillo. She took out from her wallet its contents
three of which were the 100-peso marked bills. [8] Minda became hysterical. She embraced Sgt. Cerrillo
and begged him to forgive her husband. Sgt. Cerrillo told her to instead see the station commander.[9]

Sgt. Cerrillo apprised Enriquez and Rosales of their constitutional rights. Sgt. Cerrillo advised
Enriquez, in front of the latters wife, that he should look for a lawyer so that his statement could be
taken. Sgt. Cerrillo prepared the request for the examination of the evidence taken from the accused
and the affidavit[10] of the latter's arrest.[11]

On the evening of 05 June 1990, Minda and other relatives of Enriquez approached Sgt. Cerrillo for
the possibility of "settling" the case. During the trial, another relative, a senior supervising agent of the
Napolcom, also approached and requested Sgt. Cerrillo to help out.[12]

Patrolwoman Shirley Maramot, 37 years old, assigned at Police Station No. 2, corroborated Sgt.
Cerrillo. She testified that she was requested by Sgt. Cerrillo to be the poseur-buyer in the buy-bust
operation conducted in the morning of 05 June 1990 along Alinian Street, Tondo, Manila. After Sgt.
Cerrillo had conducted a briefing and provided her with the buy-bust money, Pat. Maramot went with
Mendoza, who portrayed the role of her husband, and the informer to Radial 10 at Pier 14. When
Wilfredo Rosales turned up, he asked if she had cash with her. After being shown the money, Rosales
led her to a house numbered 1349. The poseur-buyers were made to wait momentarily while Rosales
talked to Ernesto Enriquez. Rosales later signaled Pat. Maramot, who was around four (4) meters away,
to again show her money. Forthwith, Pat. Maramot was led to the house of Enriquez. Once inside a
small room, Enriquez locked the door. Enriquez asked Pat. Maramot how much money she had. She
replied that she only had P1,000.00 since she was not sure that she could get as much as the one-half
sack of the contraband shown to her. Pat. Maramot was told she could get the lot for P4,500.00. She
said she was willing to get the lot if she could be trusted with the balance of the price. Enriquez
agreed. Pat. Maramot handed over the P1,000.00 to Enriquez. The latter was about to hand over the
marijuana when he decided to, instead, have Rosales personally deliver the marijuana.
 Pat. Maramot followed Rosales until Maramot finally introduced herself as a policewoman. Rosales
posthaste attempted to board a passing passenger jeep but Pat. Maramot and Sgt. Cerrillo, who had
rushed in, were able to timely get hold of Rosales.[13]

NBI Forensic Chemist George J. de Lara issued, on 06 June 1990, a certification to the effect that the
specimen submitted to him was positive for marijuana. [14] Sgt. Cerrillo prepared a case report[15] and the
respective booking sheet and arrest report.[16] The official report of the NBI forensic chemist, dated 07
June 1990, disclosed the following findings:

Weight of specimen = 6.00 kilograms (before examination)

5.999 kilograms (after examination)

Microscopic, chemical and chromatographic examinations made on the above-mentioned specimen

gave POSITIVE RESULTS for MARIHUANA.[17]

On the same day, Station Commander Benjamin de Jesus endorsed the case against Enriquez and
Rosales to the City Prosecutor for further proceedings. The inquest fiscal recommended [18] that the two
accused be charged with violation of Section 4, Article II, Republic Act No. 6425, as amended.

The defense gave a different version of the incident.

Accused Rosales testified that he had come from Bohol to Manila in April of 1990 and stayed with
accused Enriquez, his cousin, while working as an extra porter of William Lines. At around 11:30 in the
morning of 05 June 1990, he was on his way home from work when a male person whom he recognized
only by face sought his assistance in carrying a sack to a place where jeepney commuters would take
their ride. The sack was colored white and emitted the smell of dried fish. He was promised P20 in
exchange for his help. At a junction, a security guard whom he later identified to be Homer Ciesta,
blocked and pushed him inside a vehicle where he was promptly handcuffed. During the commotion,
the owner of the sack disappeared.[19] Rosales was brought to a house near the slum area in Parola
where P20,000 was quoted for his release by Sgt. Cerrillo. [20] When Rosales did not heed the demand, he
was brought first to the Lakandula detachment and then to Station No. 2 of the Western Police District.

On his part, Enriquez, a resident of 1349-C Alinian Street, Tondo, Manila, claimed that he was in the
business of purchase and sale of oil at the North Harbor, under the business name of Nie-Men R.
Enriquez Enterprises,[21] being the grantee of a permit to operate an oil sludge collection service. [22] He
was under contract by the Lorenzo Shipping Corporation from January 1983 to April 1984. He was also
the Vice-President of the Kapisanan ng Maralitang Naninirahan ng Tondo, Inc. a civic organization and
a recipient of a certification of merit from the National Steel Corporation. [23]

Recounting his whereabouts in the morning of 05 June 1990, Enriquez said he left his house at
around 11:45 a.m. for Pier 10 of the North Harbor, barely a thirty-minute walk away from his residence,
to meet his brother, Victor Enriquez, at the pier. He had with him P2,000 in P100 denominations stacked
in his wallet. Robinson Lumbis, a neighbor who was road testing his cab along North Harbor, saw and
greeted Enriquez.[24] Betty Quimbo, another neighbor, later saw Enriquez with his brother. [25] Appellant
took his lunch at home and thereafter hurriedly returned to the pier. He was not able to spend the night
in his house. The following day, 06 June 1990, at around two oclock in the afternoon, Enriquez went to
the maintenance section of the Lorenzo Shipping Lines to pay for the oil he had obtained from its
vessels. Homer Ciesta, the officer-in-charge of the security guards of the shipping line, invited Enriquez,
and the latter agreed, to join him (Ciesta) earn some "extra money." The two left for the squatters area
in Parola and, once there, Ciesta told Enriquez to approach a certain person, later identified to be Sgt.
Cerrillo, who instantly handcuffed him. Sgt. Cerrillo demanded P20,000 in exchange for his
freedom. When he refused to give in to the demand, Enriquez was brought to the Lakandula
detachment where the P2,000 he had in his wallet was taken and presented in evidence as the amount
used in the buy-bust operation. He was brought to Station No. 2 of the WPD for investigation. [26] Homer
Ciesta went to tell Arminda, the wife of Enriquez, to bring some money to the Lakandula police
detachment. Arriving at the detachment, someone approached Arminda and asked her whether she had
the money. She replied in the affirmative. The person then grabbed her wallet, took its contents and
later returned the empty wallet.[27]
 On 24 January 1991, the trial court, giving credence to the evidence submitted by the prosecution,
found both accused guilty beyond reasonable doubt of the crime charged and sentenced each of them
to life imprisonment and to pay a fine of P30,000.

In their appeal to this Court, Rosales and Enriquez have filed separate briefs.

Appellant Enriquez insists on his innocence and faults the trial court for giving too much credence to
the testimony of Sgt. Cerrillo and Pat. Maramot who, Enriquez asserts, have merely framed them up for
selfish motives. He theorizes that it would seem incredible for either Pat. Maramot or Sgt. Cerrillo to
have left and abandoned Station No. 2 considering that the Station Commander and his men have all
been posted in the then on-going rally at the U.S. Embassy. He downgrades the prosecutions
asseveration that Pat. Maramot, being unarmed, could not effect his immediate arrest, and that Sgt.
Cerrillo has so used his personal funds as marked money. Enriquez also questions the six-day delay in
the filing of the information.

The Court is scarcely impressed.

Simply said, appellant Enriquez would assail the credibility of the two prosecution witnesses. Almost
always, the evaluation made by the trial court on the credibility of witnesses is viewed with respect. The
trial judge, who has the distinct advantage of being able to observe closely the demeanor and
deportment of witnesses on the stand as well as the manner in which they testify, undoubtedly can
better determine than anyone else if such witnesses are telling or are not telling the truth. He is in an
ideal position to weigh conflicting testimonies and unless, as so repeatedly said, he has obviously
discarded or missed certain facts of substance and significance that, otherwise, would have altered his
judgment, an assessment on credibility made by him should indeed deserve approbation by an appellate
court.[28]

The Court, in the case at bench, has scrutinized the records, and it finds no justification for holding
differently from the findings made by the trial court.

In drug related cases, particularly in a buy-bust operation, the contention that the accused has
merely been framed up by law enforcement personnel for selfish motives is quite often raised by the
defense. For this claim to prosper, the evidence adduced must be clear and convincing [29] in order to
overcome the presumption that government officials have performed their duties in a regular and proper
manner.[30] Appellant, regrettably, has miserably failed to substantiate his allegations in this respect.

Enriquez questions the six-day delay in the filing of the information against him which he attributes
to an extortion attempt made on him. Like an alleged frame-up, a supposed extortion by police officers
has, too, been a standard defense in drug cases. Appellants failure to offer evidence, independently of
his bare claim of extortion, suggests that this defense could either be a fabrication or an afterthought. If,
truly, the arresting police officers have tried to extort money from him, it should have behooved
Enriquez to come forward with the proper charges against the erring police officers. [31] No criminal or
administrative charges appear to have been filed by him. It is equally strange that the supposed
extortions neither appeared in appellant's counter-affidavit [32] nor in his affidavit[33] both prepared by his
counsel of choice. In any event, the Court does not see any real undue delay on the part of the
police. The station commander filed the case with the prosecutor on 07 June 1990, the same day that
the NBI forensic chemists official report was released. The transmittal letter, [34] of the station
commander, bears the recommendation, likewise dated 07 June 1990, of the inquest fiscal finding a
violation of Section 4, Article II, of R.A. No. 6425.

Appellant Enriquez surmised that it was strange for Sgt. Cerrillo and Pat. Maramot to have left the
police station unmanned just to conduct a buy-bust operation. Sgt. Cerrillo explained that, being the
Intelligence Officer in Station No. 2, he would spend most of his duty hours in the field. [35] He chose Pat.
Maramot to be the poseur-buyer because she was not well known in the place of operation. While she
had a desk job she could also be assigned elsewhere when the situation would demand. Furthermore,
the buy-bust operation was conducted in an area not far from the police station (testified to be at an
approximate distance of between the Manila City Hall and the Luneta Park [36]).

On cross-examination, Pat. Maramot explained why she could not arrest Enriquez when he received
the money. She testified:
ATTY. ESMERO:

"During the time that you were in that room together with Enriquez and you said that
Enriquez took up a half sack of marijuana under the table, did it not occur to your mind to
arrest him immediately during that time and introduced yourself as a policewoman
together with your husband?

"WITNESS:

"If you will place yourself in my situation, I am so small to arrest a person and I am not
so big so I have to wait for my companions, sir.

"INTERPRETER:

"Witness pointed to the Accused.

"ATTY. ESMERO:

"How about your supposed husband?

"WITNESS:

"Besides we did not bring anything even a gun because they are outside, sir.

"ATTY. ESMERO:

"You could have immediately went (sic) out of the door and after that contacted
Cerrillo. You could have told him immediately because he was about seven (7) meters from
that room?

"WITNESS:

"The door was locked, sir.

"ATTY. ESMERO:

"You could have knocked at the door if you want to call him?

"WITNESS:

"It could not be heard because in that alley there were adjacent rooms, sir, `kuwarto-
kuwarto.'

"ATTY. ESMERO:

"Now, you said that you went out through the back door. Who was together with you
when you went out at the back door?

"WITNESS:

"Joseph, the one who pretended to be my husband, sir.

"ATTY. ESMERO:

"How about Rosales?

"WITNESS:

"He passed through the front door together with the informant, sir.
 "ATTY. ESMERO:

"And the front door was where Pat. Cerrillo was positioned?

"WITNESS:

"No, sir. Cerillo was positioned at the side. He could not meet them immediately because
when you go out at that door, it is already a street.[37]

The use of Sgt. Cerrillos own money in the buy-bust operation could be expected. Police Station
No. 2 was not logistically funded. [38] In the buy-bust operation, only three 100-peso bills of the marked
money were recovered which, unfortunately, were lost to thieves when Sgt. Cerrillo had momentarily
parked his jeep within the vicinity of the police station on 11 July 1990. [39] He reported this loss along
with the loss of an ammunition belt pack with six (6) live cal. .38 bullets and his Parker ballpen. [40] At any
rate, the non-presentation of the buy-bust money could not adversely affect the case against appellants.
[41]

Alibi is definitely a weak defense although it may occasionally prove to be a good plea. In order to
be effective, however, this defense requires proof that it would be physically impossible for the accused
to be at the locus criminis at the time of the commission of the crime. Where there is even the least
chance for the accused to be present at the crime scene, the alibi seldom will hold water. [42] Most
significantly, the defense of alibi crumbles in the face of a positive identification of the malefactor. [43]

In his case, appellant Rosales argues that to sustain a conviction for the crime of selling marijuana,
the sale must be clearly established which, he asserts, the prosecution has failed to do.

The Court cannot sustain the argument.

Under Section 4, Article II, of R.A. No. 6425, [44] as amended, the law penalizes not only the sale but
also the delivery of prohibited drugs.

Section 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The
penalty of life imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos
shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give
away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker
in any of such transactions. If the victim of the offense is a minor, or should a prohibited drug involved in
any offense under this Section be the proximate cause of the death of a victim thereof, the maximum
penalty herein provided shall be imposed. (Italics supplied.)

Selling is only one of the acts covered by the statutory provision. The law defines the word
deliver as a persons act of knowingly passing a dangerous drug to another personally or otherwise,
and by any manner with or without consideration. Delivery, although not incidental to a sale, is a
punishable act by itself; while sale may involve money or any other material
consideration,[45] delivery may be with or without consideration.

Appellant Rosales contends that while criminal intent need not generally be proved in crimes that
are mala prohibita, knowledge that the sack in his possession contained a prohibited drug must
nevertheless be established. Indeed, Section 2(f) of the Dangerous Drugs Law requires that a person
who delivers a prohibited drug must knowingly pass such contraband to another person. Thus, in one
case, the Court has said:

x x x. While it is true that the non-revelation of the identity of an informer is a standard practice in drug
cases, such is inapplicable in the case at bar as the circumstances are different. The would-be buyers
testimony was absolutely necessary because it could have helped the trial court in determining whether
or not the accused-appellant had knowledge that the bag contained marijuana, such knowledge being
an essential ingredient of the offense for which he was convicted. The testimony of the poseur-buyer
(not as an informer but as a `buyer) as to the alleged agreement to sell therefore became indispensable
to arrive at a just and proper disposition of this case.[46]

In this case, the trouble appears to be that appellant Rosales incorrectly assumes to be, or gives an
impression of being, unaware of the prohibited drug involved in the questioned transaction with
appellant Enriquez; in point of fact, however, it is sufficiently shown that Rosales has known all along
that the deal between Enriquez and the poseur-buyers had only to do with marijuana.

Appellant Rosales believes that his act of carrying the sack of marijuana is a mere attempt to deliver
the prohibited drug. In other words, the sack being still within his control, he could, he states, have
easily refused to deliver the item to the poseur-buyer. Here, he seeks to capitalize on his being
supposedly still in the subjective phase of the crime. Appellant Rosales thus submits that, if found
guilty, he should only be held accountable forattempted delivery of a prohibited drug.

Article 6 of the Revised Penal Code provides:

"ART. 6. Consummated, frustrated, and attempted felonies. - Consummated felonies, as well as those
which are frustrated and attempted, are punishable.

"A felony is consummated when all the elements necessary for its execution and accomplishment are
present; and it is frustrated when the offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.

"There is an attempt when the offender commences the commission of a felony directly by overt acts,
and does not perform all the acts of execution which should produce the felony by reason of some cause
or accident other than his own spontaneous desistance."

The subjective phase in the commission of a felony is that portion of its execution starting from the point
where the offender begins by overt acts to pursue the crime until he is prevented, against his will, by
some outside cause from performing all of the acts which would produce the offense. If the subjective
phase has not yet passed, then the crime is only attempted. If that phase has been done but the felony
is not produced, the crime is frustrated. [47] The crime is consummated if, following the subjective phase,
the last of the elements of the felony meets to concur. These rules are inapplicable to offenses
governed by special laws.[48]

Unfortunately for appellant, the crime with which he is being charged is penalized by a special
law. The incomplete delivery claimed by appellant Rosales, granting that it is true, is thus
inconsequential. The act of conveying prohibited drugs to an unknown destination has been held to be
punishable,[49] and it is immaterial whether or not the place of destination of the prohibited drug is
reached.[50]

In sum, the facts proven beyond reasonable doubt in this case were that: (a) Two police officers, one
of them a woman, conceived of and executed a buy-bust operation; (b) the operation led to the red-
handed apprehension of appellant Rosales just as he delivered the illegal drug; and (c) appellant
Enriquez who had peddled the same to the poseur-buyer was himself later arrested shortly
thereafter. The sale and delivery of marijuana constituted punishable acts under Section 4, Article II, of
R.A. No. 6425, as amended. Appellants Enriquez and Rosales should bear the consequences of their
trifling with the law. The two evidently confederated towards the common purpose of selling and
delivering marijuana. Conspiracy could be inferred from the acts of the accused, whose conduct before,
during and after the commission of the crime would show its existence. [51] It was appellant Rosales who
brought the poseur-buyer to appellant Enriquez for the purchase of marijuana. It was upon the
instruction of appellant Enriquez, apparently to retain control of the unpaid portion of the six-kilogram
contraband, that appellant Rosales was to carry the sack to the supposed residence of the poseur-
buyers. In conspiracy, the act of one conspirator could be held to be the act of the other. [52]

R.A. No. 7659, amending the Dangerous Drugs Law, now provides that if the quantity of drugs
involved in any of the punishable acts is more than any of the amounts specified in the law, the penalty
of reclusion perpetua to death[53] must be imposed. Considering that the marijuana involved here
weighed more than 750 grams, the maximum specified amount for marijuana, appellants, ordinarily, are
to be meted that penalty. An amendatory law, however, may only be applied retroactively if it proves to
be beneficial to the appellants. In this case, it would not be that favorable to them; hence, like in People
vs. Ballagan,[54] the Court could only impose the penalty of life imprisonment upon appellants. The
penalty of reclusion perpetua would mean that the accused would also have to suffer the accessories
carried by that penalty, as well as the higher fine, provided for by R.A. No. 7659.[55]Appellants must,
accordingly, still bear the penalty imposed on them by the trial court.
 WHEREFORE, the questioned Decision of 21 January 1991 of the Regional Trial Court of Manila,
finding appellants Ernesto Enriquez and Wilfredo Rosales guilty beyond reasonable doubt of the crime
punished by Section 4, Article II, of R.A. No. 6425, as amended, and imposing on them the penalty of life
imprisonment and the payment of the fine of P30,000 is AFFIRMED. Costs against appellants.

13. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GERARDO BACUNGAY Y CAINDOY,

ERIC RICAFRANCO Y MALABANA, CRIS IGLESIA Y OGNALA and RENATO MENDEZ Y DE
LEON, accused-appellants.

DECISION

PER CURIAM:

We view with grave concern the proliferation across the country of criminal syndicates and even
loose aggroupments fueling an alarming and unprecedented wave of kidnappings in recent years.
Preying mostly on affluent members of the Filipino-Chinese community, and even on foreign tourists,
they rake in millions of pesos in ransom, virtually transforming kidnapping into a lucrative industry in
this part of the world. Despite the determined and intensified efforts of various law enforcement
agencies to dismantle and neutralize these outlaws, their illegal activities continue unabated. By any
conceivable legal measure, kidnapping for ransom must be contained and its perpetrators dealt with
with the full force of the law, not only because by its nature it is despicable, but more importantly, for
reasons of maintaining public order, safety and security, so crucial to the social and economic progress
of the country. Yet, the enormous burden of repressing this plague is not exclusive to the police and
military arms of the State. It requires likewise a coordinated participation of the courts and an
uncompromising cooperation of the elements of civil society.

The Decision of the Regional Trial Court of Makati City in Crim. Cases Nos. 95-786, 95-787 and 95-
788 finding accused-appellants GERARDO BACUNGAY, ERIC RICAFRANCO, CRIS IGLESIA and RENATO
MENDEZ guilty of three (3) counts of kidnapping for ransom and imposing upon them the penalty of
death for each count[1] is before us on automatic review.

The inculpatory evidence against the four (4) accused-appellants shows that at around 8:00 oclock
in the evening of 12 March 1995 Ivonne Keh [2] was driving her car along Galaxy Street, Bel-Air
Subdivision, Makati City, with her mother Chinya Hwang who was seated beside her and uncle Alberto
Drit Chua who was at the back seat. All of a sudden a red car overtook them and blocked their path,
forcing Ivonne Keh to stop. Three (3) armed men two (2) of whom were later identified as accused-
appellants Gerardo Bacungay and Eric Ricafranco, while the third remained unknown -alighted from the
red car and started banging the windows of the car of Ivonne Keh, ordering her to unlock the doors.
Ivonne Keh who was now gripped with fear yielded. One of the men dragged her out of the car and
shoved her to the back seat. Eric Ricafranco and his unidentified companion then squeezed themselves
at the back seat together with the victims while Gerardo Bacungay took the drivers seat and drove the
car out of Bel-Air Subdivision, followed by the red car.

The victims were ordered to close their eyes as they were divested of their money, jewelry and
other personal belongings. But Ivonne Keh would occasionally peek to find out where they were being
taken and noticed that they were somewhere in Pasay City, later on, in Bicutan, Taguig. Before long, the
cars stopped at a vacant lot in an unknown location. This time all three (3) victims were blindfolded and
Alberto Drit Chua was taken out of the car and commanded to make a phone call to his family to
produce P5,000,000.00 for their release.[3] It was already daybreak when accused-appellants and the
victims left the place. Later, they momentarily stopped at an undetermined gasoline station where
Ivonne Keh was separated from her mother and uncle, and then proceeded on their way.

After a long drive, Ivonne Keh sensed that they entered an apartelle where she was reunited with
her mother and uncle in one of the rooms. [4] The victims later found out that they were somewhere in
Tagaytay. Thereafter, their abductors conferred and deliberated on who should go to Manila to get the
money and who should stay. Apparently, it was agreed upon that accused-appellant Eric Ricafranco
would stay and guard Ivonne Keh, while the rest of accused-appellants would go to Manila with Ivonne
Kehs mother and uncle to withdraw money from a bank.[5]
 As soon as the group left, Ivonne Keh pleaded to Eric Ricafranco to allow her to use the telephone.
Eric initially refused but, after repeated entreaties, finally acceded and accompanied Ivonne Keh to the
telephone outside the room.[6] The victim then immediately called a friend, conversed with her in
Chinese, and informed her of the situation and her whereabouts.

Meanwhile, the abduction was reported to the Philippine National Police. At about 7:00 oclock in the
morning of 13 March 1995 Police Inspector Rolando Bijasa of Camp Gen. Ricardo Papa, Bicutan, Taguig,
Metro Manila, received orders from then Police Chief Superintendent Jewel Canson to conduct a search
and rescue operation.

Two (2) teams were organized and deployed to Tagaytay City, the last known whereabout of victim
Ivonne Keh. The police operatives scoured the vicinity and eventually tracked down the victim inside the
apartelle. They stormed the room where the victim was detained and rescued her from one of her
abductors, Eric Ricafranco, who was then apprehended while watching television. When subjected to a
tactical interrogation, he disclosed to the police that his co-accused Gerardo Bacungay would be back at
the apartelle as soon as he secured the ransom.[7]

Consequently, the police rescue teams set up a dragnet for the returning kidnappers. At about 6:30
in the evening police spotters positioned outside the building radioed the rescue teams inside about
two (2) men on board a white car, later identified as accused-appellants Cris Iglesia and Renato Mendez,
entering the apartelle compound. The two (2) men went to the front desk of the hotel and, after
inquiring from the attendant, proceeded to the room of Ivonne Keh and Eric Ricafranco. The waiting
policemen immediately nabbed the two (2) as soon as they entered the room. Cris Iglesia and Renato
Mendez vehemently denied any knowledge of the kidnapping, claiming that they were simply hired by
Bacungay to pick-up an eloping couple in Tagaytay City who turned out to be kidnap victim Ivonne Keh
and Eric Ricafranco who was guarding her.

Gerardo Bacungay was apprehended when another police team headed by a certain Capt.
Agbayalde arrived at his place in Better Living, Paraaque, Metro Manila, and effected his arrest. [8] The
third member of the kidnap group eluded arrest and remained at large to date. No evidence exists on
record as to how the other victims, Chinya Hwang and Alberto Drit Chua, were rescued or whether
ransom had in fact been paid, since after the incident these two (2) victims hurriedly left the country
and decided to settle in Canada, and thus failed to testify during the trial.

Accused-appellants were charged with kidnapping for the purpose of extorting ransom under three
(3) separate Informations. They pleaded innocent to the charges. Gerardo Bacungay and Eric Ricafranco
proffered a general denial; while Cris Iglesia and Renato Mendez banked heavily on the lack of positive
identification by complaining witness Ivonne Keh. As earlier stated, the trial court convicted accused-
appellants as charged, and sentenced all of them to death. In rejecting their defenses, the trial court
held in the main -

The Court rejects the defense of accused Renato Mendez and Cris Iglesia as ridiculous and without
factual basis. In the first place, there was no couple that eloped. Ivonne Keh did not elope with Eric
Ricafranco. The latter was arrested in a room of an apartelle in Tagaytay City guarding Ivonne Keh.
Besides, common sense will tell us that relatives of an eloping couple will not hire any person to fetch
them specially when they were not known to the couple. On the other hand, the evidence clearly shows
that kidnap victims Ivonne Keh, Alberto Chua and Chinya Hwang pointed to the accused during the
police investigation and by Ivonne Keh during the hearing as one among those who kidnapped them. [9]

Accused Eric Ricafranco was also positively identified by kidnap victims Ivonne Keh during the trial and
by Alberto Chua and Chinya Hwang during the police identification line-up as among those who
kidnapped them x x x x Finally, accused Gerardo Bacungay was also positively identified by the victims
Ivonne Keh, Chinya Hwang and Alberto Chua during the police identification line-up at the police station
and by Ivonne Keh during the trial as one of those who kidnapped them x x x x From the recitation of
findings of facts of the Court, there is sufficient evidence on record to prove that the purpose of
kidnapping was for extorting ransom from the victims.[10]

In the present recourse, accused-appellants insist on the reversal of the judgment of conviction and
impute the following errors to the court below: (a) The trial court erred in convicting accused-appellants
Gerardo Bacungay and Eric Ricafranco on the basis of the doubtful identification by complainant Ivonne
Keh, who was blindfolded at the time of the purported kidnapping, and given the poor lighting condition
of the area where she was allegedly abducted; and, (b) The trial court erred in convicting Cris Iglesia and
Renato Mendez in the absence of a real and direct evidence linking them to the kidnapping.

After a careful review of the records and the arguments of the prosecution and defense, we are
satisfied with the finding of the court a quo that all four (4) accused-appellants are indeed guilty of the
crimes charged for which they must be punished accordingly.

We deal first with the merits of the appeal of Gerardo Bacungay and Eric Ricafranco.

Complaining witness Ivonne Keh positively identified accused-appellants Gerardo Bacungay and Eric
Ricafranco as two (2) of those who abducted them on 12 March 1995. In the police line-up conducted
during the criminal investigation of the case, and more significantly during the trial, she pointed to
accused-appellants Bacungay and Ricafranco as part of the group of men who kidnapped them, thus -

ATTY. FERNANDEZ: Now you stated that three (3) persons approached you from the car that blocked
yours, could you remember the faces of those three (3) persons who drove the car?

WITNESS: Yes, two of them are here, sir.

COURT: (To the witness) And?

WITNESS: The third one is not here.

COURT: You said that two (2) of them are here?

WITNESS: Yes and the other one is not here, your Honor.

COURT: Yes, is not here because he was able to escape. Can you point out who are those two, who
among the three (3) blocked your way?

WITNESS: Yes your Honor, there.

COURT: (To the accused) What is your name?

WITNESS: Eric Ricafranco, your Honor.

COURT: And the other one?

ATTY. FERNANDEZ: (Butted in to the witness) You said two, how about the other one? x x x x [11]

COURT: (To the witness) The whole duration, that is what you mean. The whole duration that you
were brought and held in that apartelle, can you identify the people who were there?

WITNESS: Yes, sir.

COURT: Who are they?

WITNESS: Him and him and the other one is not here, your Honor.

COURT: (To both accused) Your name?

ACCUSED: Eric Ricafranco, sir.

COURT: How about you?

ACCUSED: Gerardo Bacungay, sir x x x x[12]

In the face of the positive identification by the complaining witness, accused-appellants denial
vanishes into thin air. Indeed, denial, like alibi, is an insipid and weak defense, being easy to fabricate
and difficult to disprove. A positive identification of the accused, when categorical, consistent and
straightforward, and without any showing of ill motive on the part of the eyewitness testifying on the
matter, prevails over this defense. When there is no evidence to show any dubious reason or improper
motive why a prosecution witness would testify falsely against an accused or falsely implicate him in a
heinous crime, the testimony is worthy of full faith and credit. [13]

Accused-appellants made much of the following testimony on cross-examination of complaining

witness Ivonne Keh:

ATTY. ELEVASO: Ms. Witness will you tell this Honorable Court again at what time were you blocked by
the kidnappers?

WITNESS: At 8:00 oclock, sir.

Q: In the evening?

A: Yes, in the evening, sir x x x x

Q: And how would you say was the lighting at the place?

A: It was dark, sir.

Q: And these three (3) persons who came banging at the window of your car and then you said later
that one of them sat at the drivers seat and two (2) of them sat beside you and your uncle?

A: Two of them sat at the back with us, sir.

Q: Yes, one of them was beside your uncle and one was beside you, could you tell this Honorable
Court who was driving the car?

A: He, sir.

COURT: Witness pointing to accused Gerry Bacungay.

Q: And who was seated beside your uncle?

A: There, sir.

COURT: Witness pointing to accused Eric Ricafranco. [14]

Q: This skin mask, how was it placed over the head of the driver?

A: I was shocked, sir. I did not notice that anymore, I did not mind it, sir.

Q: So you did not notice what was he wearing?

A: No, sir.

Q: How about the other one seated beside you, what was he wearing at that time?

A: They were normal, what color, I do not remember.

Q: How about the other person?

A: I do not remember, sir. It was really dark inside the car.

Q: And when you arrived at the... You said you were taken to a village area and at that place, were
you able to see the person inside the car?

A: No, sir it was dark and I couldnt see their faces.

 Q: When you were at that dark area you said you were blindfolded?

A: Yes, correct x x x x

Q: You stated repeatedly that the place was dark and that you were blindfolded, could you tell this
court why were you able to identify the four (4) accused here?

A: Because my blindfold was really lose, I saw Eric.

Q: How about the others?

A: I also saw them when I went to the apartelle, Gerardo Bacungay.

COURT: Are you referring to him?

A: Yes, sir. I was still blindfolded at that time (underscoring supplied).[15]

Accused-appellants postulated that the darkness of the place where the victims were intercepted
and kidnapped, coupled by the fact that the victims were blindfolded, rendered their identification of
accused-appellants open to serious doubt.

We are not persuaded. It must be stressed that those conditions did not perdure throughout the
duration of the victims captivity as to effectively render impossible the positive identification of
accused-appellants. The records bear out that: (a) The victims were transported by accused-appellants
from one place to another, and in such instance the lighting condition on the road inevitably improved
as to permit the victims to see the faces of their kidnappers; (b) The victims, moreover, were not
blindfolded at the time they were spirited out of Bel-Air Village, Makati City, as they were merely
instructed to close their eyes. [16] In fact, Ivonne Keh was even able to determine, by occasionally opening
her eyes, the directions they were heading to - Pasay City and Bicutan. It was only when they finally
stopped at an undetermined vacant lot that accused-appellants placed the blindfolds on them; [17] and,
(c) Ivonne Keh was locked for several hours in one of the rooms of an apartelle in Tagaytay City with Eric
Ricafranco, during which time she undoubtedly had a clear picture of accused-appellants face.

Certainly, the identification of accused-appellants by Ivonne Keh, who had ample opportunity to see
and imprint their faces in her memory, more than satisfies the judicial mind and conscience. In People
v. Candelario[18] we ruled that it is the most natural reaction for victims of crimes to strive to remember
the faces of their assailants and the manner in which they committed the crime. Hence, there is no
reason for us to disbelieve her testimony or to suspect her motives.

As in all criminal prosecutions where conviction or acquittal depends almost entirely on the victims
positive identification of the culprits, the arguments presented by accused-appellants in their individual
appeal briefs go into the credibility of the complaining witness. [19] As we have held in a legion of cases,
the assessment by the trial court of the witness credibility is accorded the highest degree of respect
from the appellate courts which do not deal with live witnesses but rely solely on the cold pages of a
written record.[20] We do not have the least doubt that the court a quo in the instant case prudently
fulfilled its obligation as a factual assessor and legal adjudicator.

Article 267 of The Revised Penal Code, as amended by RA 7659, defines the crime of kidnapping
thus -

Art. 267. Kidnapping and serious illegal detention. - Any private individual who shall kidnap or detain
another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua
to death;

1. If the kidnapping or detention shall have lasted more than three days.

2. If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or
if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, except when the accused is any of the
parents, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of
extorting ransom from the victim or any other person, even if none of the circumstances
abovementioned were present in the commission of the offense.

When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture
or dehumanizing acts, the maximum penalty shall be imposed (Sec. 8, RA 7659).

The essence of the crime is the actual deprivation of the victims liberty coupled with an indubitable
proof of intent of the accused to effect the same. In the instant case, there is no mistaking the clear,
overwhelming evidence that accused-appellants Gerardo Bacungay and Eric Ricafranco abducted Ivonne
Keh and the other victims at gunpoint and deprived them of their freedom. They were blindfolded to
prevent them from knowing the place where they were transported and, in order to prevent Ivonne Keh
from escaping, she was assigned an armed guard inside the room of the apartelle where she was
detained. All these facts more than satisfy the elements necessary to constitute kidnapping.

We likewise find abundant evidence that the kidnapping was committed for the purpose of
extorting ransom from the victims, as to warrant the mandatory imposition of the death penalty.
Complaining witness Ivonne Keh testified -

WITNESS: I stayed in the car, he took my uncle in and I and my Mom were left in the car. They
ordered my uncle to call and send money.

ASST. PROSECUTOR DE JOYA: Why were they asking money?

WITNESS: They were asking for 5 Million, sir.

ASST. PROSECUTOR DE JOYA: For what?

WITNESS: That is for our release, sir x x x x[21]

ATTY. ELEVASO: When you said they were asking for ransom, how did you know that they were asking
for ransom?

WITNESS: They were asking only money to (sic) us, sir.

ATTY. ELEVASO: From whom?

WITNESS: From my mom, sir.[22]

Prosecution witness P/Supt. Arthur Castillo, one of the arresting officers, confirmed that accused-
appellants demanded ransom from the victims -

ATTY. FERNANDEZ: And you also asked Eric Ricafranco about his companion?

WITNESS: Well, he confirmed what Ivonne told us. That Gerry (Bacungay) brought them there and
the instruction was just to wait because they were coming back as soon as they got the ransom
money (underscoring supplied).[23]

It is immaterial that no direct evidence exists on record on the actual payment of the ransom
money. After all, actual payment of ransom is not necessary for the crime to be committed, it being
enough that there be at least an overt act of demanding ransom from the victim or any other person as
in this case.[24] Our pronouncement in People v. Salimbago[25] is relevant -

Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed. It
is enough if the crime was committed for the purpose of extorting ransom. Considering therefore that
the kidnapping was committed for such purpose, it is not necessary that one or any of the four
circumstances be present x x x x
 As regards the appeal of accused-appellants Cris Iglesia and Renato Mendez, the Solicitor General
suggests that they be acquitted on the ground that there is no clear-cut evidence on how they became
part of the criminal conspiracy. Evidently, the Solicitor General believed accused-appellants story that
they had no knowledge of the kidnapping of the victims, and they merely went to Tagaytay City on an
errand, for a fee, from Gerardo Bacungay purportedly to pick up a couple who eloped, and bring them
back to Bicutan -

In this case, appellants Cris Iglesia and Gerardo Bacungay, due to sheer promise of money in the
amount of P1,000.00 once they fetch two (2) lovers in Tagaytay City, proved themselves to be at the
wrong place and at the wrong time x x x x it would appear nonetheless that it is appellant Cris Iglesia
and Renato De Leons (sic) incidental acquaintance to appellant Gerardo Bacungay that plunged them
deeper into the assumed conspiracy. What initially appeared to them as an errand for a fee was
intertwined to a conspiracy which they immediately denied any knowledge of. An assumed intimacy, or
in this case, acquaintance, however, has no legal bearing to the charge of conspiracy as conspiracy
transcends companionship.

In this case, however, there is a gnawing dearth of evidence that should satisfactorily show that
appellants Cris Iglesia and Renato De Leon (Mendez?) agreed to the kidnapping scheme. Without
evidence as to how appellants Cris Iglesia and Renato Mendez participated in its perpetration,
conspiracy cannot be, appreciated against them. Evidence of intentional participation is indispensable,
as appellants mere presence at the scene of the crime cannot be considered as proof of conspiracy. [26]

We disagree with the conclusions of the Solicitor General. Indeed, it is difficult to accept accused-
appellants feeble and anemic excuse that they had nothing to do with the kidnapping of Ivonne Keh,
her mother Chinya Hwang and uncle Alberto Drit Chua. As observed by the trial court to which we agree,
common sense will tell us that relatives of an eloping couple will not hire any person to fetch them
especially when they were not known to the couple. [27] Moreover, it is inconceivable that members of a
kidnapping syndicate would entrust the performance of an essential and sensitive phase of their well-
planned criminal scheme to people not in cahoots with them, and who had no knowledge whatsoever of
the details of their nefarious plan. Obviously, Cris Iglesia and Renato Mendez mission in going to
Tagaytay City was not as innocent as they claimed it to be; instead, it was part and parcel of the
elaborate plot to kidnap the victims and extort ransom from them. In fact, they virtually admitted their
participation in the crime, i.e., to fetch Ivonne from her place of detention in Tagaytay City and transfer
her to another place in Bicutan, although they were dissociating themselves therefrom by proclaiming
lack of knowledge of the criminal design. It would therefore be putting too much strain on the
imagination that they were not privy to the plot of Gerardo Bacungay and Eric Ricafranco and that they
did not participate in carrying out the criminal conspiracy.

Undoubtedly, conspiracy exists among accused-appellants in perpetrating the kidnapping for

ransom. Their individual participation, viewed in its totality, points to a joint purpose and criminal
design. Thus, Gerardo Bacungay and Eric Ricafranco snatched the victims from Bel-Air Village, Makati,
Metro Manila, and transported and detained them in an apartelle in Tagaytay City; Eric Ricafranco
guarded Ivonne Keh to prevent her from escaping, while Gerardo Bacungay and his unidentified
companion were busy securing the ransom money in Manila; and, Cris Iglesia and Renato Mendez were
designated to pick up Ivonne Keh in Tagaytay City and transfer her to Bicutan to avoid early detection
until the payment of ransom money and her eventual release. These acts were complementary to one
another and geared toward the attainment of a common ultimate objective: to extort a ransom of P5
million in exchange for the victims freedom.

There is conspiracy when two (2) or more persons come to an agreement concerning the
commission of a felony and decide to commit it. Proof of agreement to commit a felony, in view of the
secrecy by which it is usually hatched, need not rest on direct evidence as the agreement itself may be
inferred from the conduct of the accused, disclosing a common understanding among them with respect
to the commission of the offense. Thus, if it is proved that two (2) or more persons aimed their acts
toward the accomplishment of the same unlawful object, each doing a part so that their acts, though
apparently independent, were in fact connected and cooperative, indicating closeness of personal
association and a concurrence of sentiment, then conspiracy may be inferred though no actual meeting
among them to concert means is proved. [28] Consequently, in the instant case, accused-appellants Cris
Iglesia and Renato Mendez are equally liable for the crime and they should not be allowed to escape the
full force of the rule that in a conspiracy the act of one is the act of all.
 Finally, in what perhaps is his final bid at exoneration, accused-appellant Renato Mendez
enumerated in his brief his alleged numerous religious activities and accomplishments, suggesting
thereby that he was not capable of committing the crime imputed to him. However, the fact that
accused-appellant is endowed with sterling qualities hardly justifies the conclusion that he is innocent of
the charges against him or that he is incapable of committing them. Manifestations of devotion or piety
supposedly equated with religious fervor are not always emblems of good conduct and do not guarantee
that an accused cannot commit a crime. An accused is not entitled to an acquittal simply because of his
previous, or even present, good moral character and exemplary conduct. The affirmance or reversal of
his conviction must be resolved on the basic issue of whether his guilt has been proved beyond any
peradventure of doubt.

WHEREFORE, the Decision of the court a quo finding accused-appellants GERARDO BACUNGAY Y
CAINDOY, ERIC RICAFRANCO Y MALABANA, CRIS IGLESIA Y OGNALA and RENATO MENDEZ Y DE LEON
guilty beyond reasonable doubt of kidnapping for ransom defined and penalized under Art. 267 of The
Revised Penal Code, as amended by RA 7659, and imposing upon each of them the supreme penalty of
death, is AFFIRMED.

Three (3) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it
prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is
constitutional and the death penalty can lawfully be imposed in the instant case.

Upon finality of this Decision and pursuant to Art. 83 of The Revised Penal Code as amended by Sec.
25 of RA 7659, let the records of this case be forthwith forwarded to Her Excellency, the President of the
Philippines, for the possible exercise of her pardoning power.

SO ORDERED.

14. RAUL ZAPATOS Y LEGASPI, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

SANDOVAL-GUTIERREZ, J.:

Since the olden times, no impulse has been proven so powerful than that of self-preservation. Thus,
the law, out of tenderness for humanity, permits the taking of life of another in defense of ones person
in times of necessity. In the words of the Romans of ancient history: Quod quisque ob tutelam corporis
sui fecerit, jure suo fecisse existimetur.[1]

Assailed in this petition for review on certiorari is the Decision[2] dated March 27, 2001 of the
Sandiganbayan in Criminal Cases Nos. 17015 and 17016 finding Raul Zapatos, petitioner herein, guilty
beyond reasonable doubt of the crimes of murder and frustrated murder and sentencing him as follows:

WHEREFORE, under Criminal Case No. 17015, the accused RAUL ZAPATOS, is hereby
found GUILTY beyond reasonable doubt of the crime of MURDER, defined and penalized under Article
248, Revised Penal Code and, considering the presence of one (1) mitigating circumstance with no
generic aggravating circumstance, he is hereby sentenced to suffer the penalty of imprisonment
of RECLUSION PERPETUA and to indemnify the heirs of the late Mayor Leonardo Cortez in the amount
of P50,000.00;

Under Criminal Case No. 17016, the same accused, RAUL ZAPATOS, is hereby found GUILTY beyond
reasonable doubt of the crime of FRUSTRATED MURDER, defined and penalized under Article 248 in
relation to Article 6 of the Revised Penal Code, and, considering the presence of one (1) ordinary
mitigating circumstance of voluntary surrender which is not offset by any generic aggravating
circumstance, applying the Indeterminate Sentence Law he is hereby sentenced to suffer the penalty of
from Six (6) Years and One (1) day of prision mayor, as minimum to Twelve (12) Years and One (1) day
to Fourteen (14) years and Eight (8) Months of reclusion temporal, as maximum, and to
indemnify SOCRATES PLATERO in the amount of P25,000.00 by way of civil indemnity.

The accused shall pay the costs.

SO ORDERED. (Emphases supplied)

In two separate Informations, Special Prosecution Officer Gualberto J. Dela Llana charged both
petitioner and Victoriano Vidal[3] with murder and frustrated murder, committed as follows:

Criminal Case No. 17015 (Murder)

That on or about January 14, 1990, at Bayugan, Agusan del Sur, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, both public officers, being then an employee and
Community Environment Natural Resources Officer, respectively of the Department of Environment and
Natural Resources, assigned at Bayugan, Agusan del Sur, and committing the crime herein charged in
relation to their office, with treachery and evident premeditationand with intent to kill and with
the use of firearm, did then and there willfully, unlawfully and feloniously attack and shoot Leonardo
Cortez, Municipal Mayor of Bayugan, Agusan del Sur, hitting him at the vital parts of his body and
inflicting upon said Leonardo Cortez mortal wounds which caused his instantaneous death, to the
damage and prejudice of the victims heirs.

CONTRARY TO LAW.[4]

Criminal Case No. 17016 (Frustrated Murder)

That on or about January 14, 1990, at Bayugan, Agusan del Sur, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, both public officers, being then an employee and
Community Environment Natural Resources Officer, respectively of the Department of Environment and
Natural Resources, assigned at Bayugan, Agusan del Sur and committing the crime herein charged in
relation to their office, with intent to kill and with the use of firearm, did then and there willfully,
unlawfully and feloniously attack and shoot one Socrates Platero, hitting him at his left leg and
inflicting upon said Socrates Platero mortal wound which could have caused his death had it not been for
the timely medical assistance given him to the damage and prejudice of said victim.

CONTRARY TO LAW.

On arraignment, petitioner pleaded not guilty.[5] Forthwith, trial ensued.[6]

The case for the prosecution is woven basically on the testimony of Socrates Platero as follows: On
January 14, 1990, at 8:00 oclock in the evening, witness Platero and Mayor Leonardo Cortez of
Bayugan, Agusan Del Sur were on their way home from Butuan City. [7] En route, the patrol car they were
riding ran out of gasoline, prompting them to stop at the Bureau of Internal Revenue (BIR) Monitoring
Station, Barangay Maygatasan, Bayugan. With no gasoline to spare, Station Guard Pfc. Michael Gatillo
accompanied them to the nearby Department of Environment and Natural Resources (DENR)
checkpoint.[8] There, they found Pacheco Tan. Pfc. Gatillo approached Tan and requested for extra
gasoline. Suddenly, Tan ran towards the guardhouse.[9] After a few seconds, Platero heard a gunshot
originating therefrom. The bullet hit Mayor Cortez, causing him to collapse to the ground. [10] Thereupon,
Platero saw petitioner Raul Zapatos, holding an armalite in a firing position. Platero immediately
retaliated and an exchange of gunfire ensued. During this time, Platero tried to pull Mayor Cortez away
from the crossfire. Plateros foot was hit.[11] He did not see who shot him. [12] He then took cover on the
other side of the highway.

Pfc. Gatillo testified that he was the policeman assigned at the BIR Monitoring Station on January
14,1990.[13] At about 8:00 oclock in the evening, he accompanied Platero and Mayor Cortez to the DENR
checkpoint to ask for some gasoline.[14] Upon seeing Tan, he asked him about petitioners
whereabouts. Tan replied that petitioner was sleeping inside the guardhouse.[15] Mayor
Cortez also inquired from Tan where petitioner was. Tan merely reiterated his answer.
[16]
Then Tan walked towards the guardhouse and in a matter of seconds, he (witness Gatillo) saw
petitioner firing his gun at Mayor Cortez. [17] Mayor Cortez fell to the ground with blood oozing from his
mouth.[18] Platero attempted to pull Mayor Cortez but another shot was fired and this time, the Mayor
was hit on the leg. While running across the highway to take cover, Platero was also hit on the leg.
[19]
When the shooting stopped, he (Gatillo) brought Platero and Mayor Cortez to Bayugan Community
Hospital.[20]
 Dr. Romeo Cedeo, Chief of the Bayugan Community Hospital, declared that when he attended to
Mayor Cortez on January 14, 1990, [21] the latter was already dead. He did not conduct an autopsy or
examine the wounds. He merely conducted a superficial examination which showed that four (4)
wounds had been inflicted upon Mayor Cortez one in the vicinity of the left nipple, one on the right
axillary region, one on the right knee, and another on the left iliac region. [22]

Building his case on the justifying circumstance of self-defense, petitioner presented a different
version. He testified that he was the Team Leader of the DENR Sentro Striking Force whose primary duty
is to seize illegally-cut forest products. [23] He held office at the DENR checkpoint, Barangay Maygatasan,
Bayugan, Agusan del Sur. On January 14, 1990, at about 7:00 oclock in the evening, he instructed
Pacheco Tan, his co-worker, to man the checkpoint as he was sleepy. He also directed Tan to wake
him up should there be any problem.[24] While sleeping, a burst of gunshots awakened him. He saw
that the guardhouse was being riddled with bullets, [25] piercing the walls and hitting some objects
inside. Immediately he dropped to the floor and took the armalite rifle from the locker located under his
bed.[26] Hiding behind a barricade, he fired at his attackers. Thereafter, fearing for his life, he broke the
flooring of the guardhouse and crawled through the hollow portion underneath to reach its back door.
[27]
He walked away until he reached Nilo Libres' house where he stayed overnight. [28] The next day, he
heard the news that Mayor Cortez was killed. [29] He immediately surrendered himself and his armalite
rifle to Sgt. Benjamin Amorio of the Philippine Army Brigade, Prosperidad, Agusan del Sur. [30]

Pacheco Tan corroborated petitioners testimony. On the same date and time, petitioner, who was
about to sleep, instructed Tan to take the first shift. While petitioner was sleeping, Pfc. Gatillo, Mayor
Cortez and Platero arrived.[31] Pfc. Gatillo approached Tan and inquired where petitioner
was. He replied that petitioner was sleeping inside the guardhouse.[32] Pfc. Gatillo returned to
the parked patrol car where Mayor Cortez and Platero were waiting. Tan noticed that there were
other policemen within the vicinity.[33] Then, Mayor Cortez and Platero, each carrying an M-16 rifle,
alighted from the vehicle and approached the guardhouse. Again, Mayor Cortez asked Tan where
petitioner was. Again Tan gave him the same answer.[34] Mayor Cortez reacted in disbelief, saying
ah. Suddenly, Tan heard a burst of gunshots directed at the guardhouse. He immediately ducked on
the ground and then ran towards the pasillo leading to the back of the guardhouse.[35] Seized by fear, he
was not able to wake petitioner.[36] He ran away and, upon reaching a banana plantation, stayed there
until morning.[37] The next day, he went to the Chief of Police of Sibagat, Agusan del Sur. [38] He was
brought to the Bayugan Police Station so that he could give a statement regarding the incident. But he
refused to sign the typewritten statement prepared by the Bayugan Police because it pinpoints to
petitioner as the killer of Mayor Cortez. He was against such statement because he did not see
petitioner shot Mayor Cortez.[39]

NBI Agent Virgilio Decasa testified that upon inspecting the DENR checkpoint at Maygatasan,
Bayugan, he observed that it was riddled with bullets. [40] The locations of the bullet holes showed that
those responsible surrounded the building. [41] From his investigation, it was Mayor Cortez, together with
Platero and Pfc. Gatillo, who approached the DENR checkpoint. They were followed by several
policemen who were instructed by Mayor Cortez to prepare for any eventuality.[42] He was not able to
collect the guns and have them tested by the NBIs ballistic technician because the policemen refused to
submit themselves to an investigation.[43] He recommended that the cases filed against petitioner be
reviewed and/or investigated to prevent injustice.[44]

Lazarito Estorque recounted that on January 14, 1990, at about 5:30 oclock in the afternoon, he and
Mayor Cortez were having a drinking session at the house of his compadre Bong Kadao. Mayor Cortez,
together with his three (3) policemen, left Kadaos house at 7:00 o clock in the evening. [45]

Consequently, two Informations for frustrated murder and murder, docketed as Criminal Cases Nos.
414 and 415, were filed with the Regional Trial Court (RTC), Branch VII, Bayugan Agusan del
Sur. Pursuant to this Courts Resolution dated August 2, 1990, the venue was transferred to theRTC,
Branch V, Butuan City where the cases were docketed as Criminal Cases Nos. 4194 and 4195. Before
petitioner could be arraigned, the private prosecutor filed with the RTC a motion to refer the cases to the
Sandiganbayan but it was denied in an Order dated March 11, 1991. [46]Petitioner was then arraigned
and pleaded not guilty to both charges.[47]

The private prosecutor filed with this Court a petition for certiorari questioning the order of the RTC,
but the same was dismissed. [48] This time, the public prosecutor filed with the RTC an Omnibus Motion to
Dismiss[49] on the ground of lack of jurisdiction. On August 9, 1991, the RTC issued an Omnibus
Order[50] granting the motion and dismissing Criminal Cases Nos. 4194 and 4195. This prompted Special
Prosecution Officer Dela Llana to file with the Sandiganbayan the two Informations quoted above.

In this petition, petitioner ascribes to the Sandiganbayan the following errors:

A. THE HONORABLE SANDIGANBAYAN GRAVELY ERRED IN NOT FINDING THAT

DOUBLE JEOPARDY HAS ALREADY ATTACHED AND THAT IT HAD NO JURISDICTION
OVER THE CASES;

B. THE HONORABLE SANDIGANBAYAN ERRED IN FINDING THAT PETITIONER IS GUILTY

OF THE CRIMES CHARGED DESPITE OVERWHELMING ABSENCE OF PHYSICAL
EVIDENCE TO ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT;

C. THE HONORABLE SANDIGANBAYAN GRAVELY ERRED IN NOT GIVING DUE CREDENCE

TO THE FINDINGS OF THE NATIONAL BUREAU OF INVESTIGATION AS WELL AS THE
TESTIMONY OF NBI INVESTIGATING AGENT VIRGILIO M. DECASA;

D. THE HONORABLE SANDIGANBAYAN ERRED IN GIVING FULL FAITH AND CREDENCE

TO THE CONTRADICTING TESTIMONIES OF PROSECUTION WITNESSES SOCRATES
PLATERO AND MICHAEL GATILLO;

E. THE HONORABLE SANDIGANBAYAN GRAVELY ERRED IN FINDING THAT THERE

EXISTS PROOF BEYOND REASONABLE DOUBT THAT PETITIONER IS GUILTY OF THE
CRIMES CHARGED;

F. GRANTING WITHOUT ADMITTING LIABILITY FOR THE CRIMES CHARGED, THE

HONORABLE SANDIGANBAYAN GRAVELY ERRED IN NOT FINDING THAT PETITIONER
ACTED IN SELF-DEFENSE; AND

G. GRANTING WITHOUT ADMITTING GUILT FOR THE CRIMES CHARGED, THE

HONORABLE SANDIGANBAYAN GRAVELY ERRED IN FINDING THE EXISTENCE OF
TREACHERY.

The People counters that since petitioner was on a 24-hour duty as Team Leader of the DENR Sentro
Striking Force when the crimes took place, it follows that his acts were committed in relation to his
office. Necessarily, the previous dismissal of his cases by the RTC could not result in double jeopardy.
[51]
The presentation of petitioners weapon or the autopsy report is immaterial considering that both Pfc.
Gatillo and Platero positively identified petitioner as the culprit. [52] Moreover, the inconsistencies in the
testimonies of the prosecution witnesses do not in any manner affect their credibility for they merely
involve immaterial matters.[53] Lastly, petitioners plea of self-defense cannot be sustained because of
the absence of all its requisites.[54]

The petition is impressed with merit.

First, we shall resolve the issues of jurisdiction and double jeopardy. Petitioner assails the
jurisdiction of the Sandiganbayan over his cases on the ground that the crimes imputed to him were not
committed in relation to his office.

Well-settled is the principle that the jurisdiction of a court to try a criminal case is determined by the
law in force at the time of the institution of the action. [55] Here, the applicable law is Presidential Decree
(P.D.) No. 1606,[56] as amended by P.D. No. 1861.[57] Section 4, paragraph (a) thereof provides:

SECTION 4. Jurisdiction. The Sandiganbayan shall exercise:

a) Exclusive original jurisdiction in all cases involving:

(1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code;

(2) Other offenses or felonies committed by public officers and employees in relation to their
office, including those employed in government-owned or controlled corporations, whether simple or
complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or
imprisonment for six (6) years, or a fine of P6,000.00 x x x. (Emphasis supplied)

In a catena of cases decided under the aegis of P.D. No. 1606, such as Aguinaldo vs. Domagas,
[58]
Sanchez vs. Demetriou,[59] Natividad vs. Felix,[60] and Republic vs. Asuncion,[61] we ruled that two
requirements must concur under Sec. 4 (a) (2) for an offense to fall under the Sandiganbayan's
jurisdiction, namely: (1) the offense committed by the public officer must be in relation to his office;
and (2) the penalty prescribed must be higher than prision correccional or imprisonment for six (6)
years, or a fine of P6,000.00. Obviously, the first requirement is the present cause of discord between
petitioner and the People.

An offense is deemed to be committed in relation to the accuseds office when such office is an
element of the crime charged or when the offense charged is intimately connected with the
discharge of the official function of the accused.[62] In Cunanan vs. Arceo,[63] we held:

In Sanchez vs. Demetriou [227 SCRA 627 (1993)], the Court elaborated on the scope and reach of the
term offense committed in relation to [an accused's] office by referring to the principle laid down
in Montilla vs. Hilario [90 Phil 49 (1951)], and to an exception to that principle which was recognized
in People vs. Montejo[108 Phil 613 (1960)]. The principle set out in Montilla vs. Hilario is that an
offense may be considered as committed in relation to the accused's office if the offense
cannot exist without the office such that the office [is] a constituent element of the crime
x x x. In People vs. Montejo, the Court, through Chief Justice Concepcion, said that
although public office is not an element of the crime of murder in [the] abstract, the facts
in a particular case may show that x x x the offense therein charged is intimately
connected with [the accused's] respective offices and was perpetrated while they were in
the performance, though improper or irregular, of their official functions. Indeed, [the
accused] had no personal motive to commit the crime and they would not have committed it
had they not held their aforesaid offices. . . .

The Informations filed with the Sandiganbayan allege that petitioner, then a public officer,
committed the crimes of murder and frustrated murder in relation to his office, i.e., as Community
Environment and Natural Resources Officer of the DENR. [64] It is apparent from this allegation that the
offenses charged are intimately connected with petitioners office and were perpetrated while he was in
the performance of his official functions. In its Resolution[65] dated August 25, 1992, the Sandiganbayan
held that petitioner was on duty during the incident; that the DENR Checkpoint was put up in order to
prevent incursions into the forest and wooded area; and that petitioner, as a guard, was precisely
furnished with a firearm in order to resist entry by force or intimidation. Indeed, if petitioner
was not on duty at the DENR checkpoint on January 14, 1990, he would not have had the bloody
encounter with Mayor Cortez and his men. [66] Thus, based on the allegations in the Informations, the
Sandiganbayan correctly assumed jurisdiction over the cases.

Significantly, while petitioner had already pleaded not guilty before the RTC, jeopardy did not
attach as it did not acquire jurisdiction. There can be no double jeopardy where the accused entered a
plea in court that had no jurisdiction.[67]

We now go to the substantial merits of the case.

After considering the records very closely, we are constrained to reject the evidence for the
prosecution. Jurisprudence is settled that whatever is repugnant to the standards of human knowledge,
observation and experience becomes incredible and lies outside judicial cognizance. Consistently, we
ruled that evidence, to be believed, must proceed not only from the mouth of a credible witness but
must be credible in itself as to hurdle the test of conformity with the knowledge and common experience
of mankind.[68] Here, the prosecution witnesses, Platero and Pfc. Gatillo, are not credible. Indeed, their
testimonies bear the earmarks of falsehood.

First, Plateros tale that Pacheco Tan, who was then on first shift at the DENR checkpoint that day,
suddenly ran towards the DENR Checkpoint when Pfc. Gatillo asked him for some gasoline simply does
not make sense. Why would a person run away with fear for such a simple request? Even former
Sandiganbayan Justice Regino Hermosisima, Jr.[69] was mystified by such a reaction, constraining him to
delve deeper into the matter, thus:
 Q And you want the Court to understand that immediately after Gatillo asked for
gasoline, Pacheco Tan ran towards inside the BFD monitoring center?

A Yes, he ran away, ran inside.

JUSTICE HERMOSISIMA:

Look, a person would not run away in fear without any reason why he did. Tell me
now why did Pacheco Tan run away?

A I do not know.

x x x x x
x xxx

Q Will you tell me whether Cael or you pointed your guns at Pacheco Tan?

A No.

Q You did not. You cannot tell me why Pacheco Tan ran inside, why was he scared?

A I do not know.[70]

Surely, we cannot accept a story that defies reason and leaves much to the imagination. Plateros
failure to lend a touch of realism to his tale leads us to the conclusion that he was either withholding an
incriminating information or was not telling the truth. As it turned out, Tan rushed towards the back of
the guardhouse because of the sudden burst of gunfire directed at that place. In short, he fled for his
life.

Second, it is highly doubtful that obtaining some gasoline was the real object of Mayor Cortez,
Platero and Pfc. Gatillo in going to the DENR checkpoint. Strangely, their conduct, upon arriving at
that place, showed their concern more on the whereabouts of petitioner than whether there
was gasoline to spare. Pfc. Gatillo, testifying for the prosecution, admitted during cross-examination
that he did not hear Mayor Cortez and Platero ask for gasoline. All that he heard was Mayor Cortez
inquiry regarding petitioners whereabouts, thus:

Q You said that Pacheco Tan went inside to get Raul Zapatos, is it not a fact that
when Mayor Cortez arrived at the DENR monitoring station, he asked Pacheco
Tan where Raul Zapatos was?

A Yes, sir.

Q And precisely Pacheco Tan told Mayor Cortez that Raul Zapatos is inside the
room sleeping?

A Yes sir.

x x x x x
x xxx

Q But you did not hear at any time the conversation between Pacheco Tan and the
late Mayor Cortez, with Mayor Cortez asking Pacheco Tan for gasoline, is that
right?

A No, more Sir.

Q And at any time before the shooting incident you did not hear Socrates Platero
asking Pacheco Tan for gasoline, is that right?

A No, sir.
 x x x x x
x xxx

Q As a matter of fact, the only thing you heard in reference to the accused Raul
Zapatos was that Mayor Cortez was looking for Zapatos because he wanted to
talk with Zapatos, is that right?

A Yes, sir.[71]

The above testimony strongly confirms Tans narration that Pfc. Gatillo and Mayor Cortez only asked
him where petitioner was.[72] Nothing was ever mentioned about the gasoline. Notably, Platero, in
his Affidavit executed the day after the incident, stated that he and the Mayor went to the DENR
checkpoint because Mayor Cortez wanted to see Raul Zapatos because he is the team leader of the
DENR Monitoring Station. Again, the gasoline was not alluded to.

Corollarily, this brings us into a quandary what could have been the reason why Mayor Cortez,
Platero and Pfc. Gatillo were looking for petitioner on the night of January 14, 1990? The records bear
out that the relationship between Mayor Cortez and petitioner was not friendly. There were several
occasions when their interests clashed Mayor Cortez, as the owner of a sawmill, and petitioner, as a
forest law enforcer. In his Sworn Statement[73] dated March 17, 1990, petitioner declared, among others,
that previously, he apprehended the Mayors men several times for illegally cutting and transporting
flitches belonging to the Mayor and his family, thus:

Q 20: After realizing that Mayor CORTEZ was the one who led the attack of the
DENR CENTRO Strike Force Headquarters, what could be the reason why the
Mayor and his men attacked your headquarters?

A 20: I believe that Mayor CORTEZ became angry with me because of the
previous apprehensions of illegally cut and transported flitches which belonged
to them, I mean, to that of Mayor CORTEZ family.

Q 21: Why, did the then Mayor also engaged (sic) in logging?

A 21: In one instance, we apprehended a truckload of illegally transported

flitches and the document presented showed that they were consigned to the
CORTEZ sawmill in Bayugan, Agusan del Sur.

Q 22: Are there instances also that the mayor intervened in any way in the
apprehensions of these illegally cut and transported logs?

A 22: Sometime in September, 1989, when we apprehended a truck load of

illegally cut and transported flitches, Mayor CORTEZ requested that the truck
carrying the flitches be turned over to his custody which truck was the regular
carrier of flitches consigned to their sawmill. The request was granted by CENRO
VIDAL and the proper documents for the turn over of custody were properly
made. After that, during the month of October, 1989, we again apprehended the
same truck previously turned over to the custody of Mayor again carrying
illegally cut and transported flitches which I believe angered the Mayor.

Also, three (3) days before the incident at the CENRO Strike Force Headquarters in
Maygatasan, I also had a confrontation with an Army soldier acting as Security of Mayor
CORTEZ, one named DANNY GESTA.

Q 23: Will you narrate what that confrontation was all about?

A 23: On January 11, 1990, while I was outside of the DENR CENRO Strike Force
Headquarters repairing my motorcycle, a truck loaded with illegally cut flitches just passed
our Headquarters without stopping at our headquarters for inspection so when the truck
came back, I stopped the same truck and called the driver and asked him who is the owner
of the flitches. The driver told me that the flitches belonged to DANNY GESTA and
when I asked him where he took the flitches, he told me that he took the flitches
 to the sawmill of the CORTEZ. When I asked him who escorted it, the driver told me
that it was one named NONO so I told the driver to tell NONO to come to our
Headquarters so we could talk. On the following day, when I went to a shop owned by
MAWE RABUYA for consultation of my motorcycle, DANNY GESTA was there. I requested
MAWE RABUYA to take a look of my motorcycle for any defect and it was at this instance
that DANNY GESTA approached me and told me and to quote: UNSA MANG KA NGA IMO
MANG KONG IPAREPORT-REPORT SA IMO. WALA MANG GANI MAKAPA-REPORT ANG
CORONEL SA AKO. I then told and explained to DANNY GESTA that it was not him whom I
wanted to talk and report to me but NONO. DANNY GESTA suddenly stood up and told me
and to quote: PUTANG INA KA! BUK-ON NAKO NANG ULO NIMO. To avoid further argument,
I told MAWE that I better go and I left.

Q 24: What did you do after that confrontation with DANNY GESTA?

A 24: Because of what DANNY GESTA told me, I stayed at the Headquarters at
Maygatasan, Bayugan until the incident on January 14, 1990 when our Headquarters was
attacked.

Even NBI Agents Atty. Decasa and Ali C. Vargas found that Mayor Cortez had an ulterior motive of
revenge against petitioner, thus:

x x x The investigating agents are inclined to believe that the late Mayor Cortez must have
some ulterior motive of revenge in going to the headquarters at that late hour of the night,
armed with high-powered guns, together with policemen and bodyguards, and under the
influence of liquor, especially so that it is of public knowledge that he had been harboring
hatred towards ZAPATOS who had exhibited antagonism to his illegal activities. [74]

Third, the account of Pfc. Gatillo and Platero that petitioner suddenly came out of the guardhouse
and shot Mayor Cortez a matter of seconds after Tan ran towards the place is incredible. [75] For one,
both the prosecution and the defense witnesses testified that petitioner was sleeping inside
the guardhouse. For another, Tan did not have the chance to wake petitioner prior to the
shoot-out. The prosecution witnesses admitted this fact.

Even before Tan could enter the guardhouse, he already heard the burst of gunfire coming from
outside of the checkpoint, prompting him to immediately run towards the backside of the
guardhouse. Now, to say that petitioner suddenly sprang from his slumber and shot Mayor
Cortez without any reason is certainly at odds with common experience.

Contrary to the findings of the Sandiganbayan, the totality of the contradictions, inconsistencies and
flaws in the declarations of Platero and Pfc. Gatillo does not simply refer to minor or inconsequential
details which may be justifiably overlooked, nor are they honest lapses which do not affect or impair the
intrinsic value of their testimony. They relate instead to points material and essential to establish
petitioners culpability. The obliquity that pervades the prosecutions account of the incident creates the
impression that it was rehearsed and concocted.

In contrast, the consistent testimonies of the defense witnesses, as well as the existing physical
evidence, lend strong support to petitioners plea of self-defense.

It is basic that for self-defense to prosper, the following requisites must concur: (1) there must be
unlawful aggression by the victim; (2) that the means employed to prevent or repel such aggression
were reasonable; and (3) that there was lack of sufficient provocation on the part of the person
defending himself.[76]

All the aforestated requisites are present in this case. That there was unlawful aggression is clearly
shown by the bullet-riddled guardhouse. It speaks eloquently than a hundred witnesses. [77] We are
convinced that Mayor Cortez, Platero and Pfc. Gatillo insisted to know petitioners whereabouts and that
upon learning that he was sleeping, executed the tyrannical attack. That they went to the DENR
checkpoint with ready police back-up for any eventuality was proven not only by Pacheco Tan, but also
by Lazarito Estorque and NBI Agent Decasa. Clearly, they proceeded to the checkpoint not on a mission
of peace.
 Taking into consideration the number of the aggressors, the nature and quality of their weapons,
and the manner of the assault and the fact that petitioner was alone, we believe that petitioners use of
an armalite rifle to defend himself is reasonable.

Finally, that there was lack of sufficient provocation on petitioners part is evidenced by the
testimonies of the defense witnesses that he was sleeping inside the guardhouse prior to the initial
shooting. Significantly, no evidence whatsoever was presented showing that he assaulted or provoked
his aggressors into attacking him.

Petitioners act of surrendering himself and his weapon to the authorities immediately the day after
the incident dissipates any conjecture that he had a criminal mind when he fired his gun upon the
victims. His courage to face his accuser, in spite of the opportunity to flee, indicates his innocence.

Thus, while it is true that the "factual findings of the trial court are entitled to great weight and are
even conclusive and binding to this Court, this principle does not apply here. The findings of facts of
the Sandiganbayan are not sufficiently established by evidence, leaving serious doubts in our minds
regarding the culpability of petitioner.

In sum, we find that the prosecution failed to prove by evidence beyond reasonable doubt the guilt
of herein petitioner for murder and frustrated murder. What is apparent is that Mayor Cortez and his
men were the aggressors. Petitioner, who was just awakened by the gunfire, was justified in firing back
at them. His act is in accordance with mans natural instinct to save his life from impending danger. We
cannot expect him to simply retreat or wait for the bullet to hit and kill him.

WHEREFORE, the Decision dated March 27, 2001 of the Sandiganbayan is REVERSED and
petitioner is ACQUITTED of the crimes of murder and frustrated murder.

The Director of Prisons is hereby directed to cause the release of petitioner unless the latter is being
lawfully held for another crime and to inform this Court accordingly within ten (10) days from notice.

SO ORDERED.

17. People vs. Genosa (no need to include, the digest would suffice the requirements)

19. OSE FRIAS, JR. and GERVACIO TACAS, petitioners-appellants,

vs.
PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN, respondents-appellees.

Marcelino P. Arias for petitioners-appellants.

The Solicitor General for respondents-appellees.

RELOVA, J.:

In this petition for review by certiorari, petition appellants seek reversal of the decision of the
Sandiganbayan, the dispositive part of which reads:

WHEREFORE, accused P/Cpl. GERVACIO TACAS and JOSE FRIAS, JR. are hereby found guilty
beyond reasonable doubt as principals of the crime of Murder, qualified by taking
advantage of superior strength, defined and penalized under Article 248 of the Revised
Penal Code. Taking into account the mitigating circumstance of voluntary surrender
without any aggravating circumstance to offset the same and applying the Indeterminate
Sentence Law, both accused are each sentenced to an indeterminate penalty ranging
from ELEVEN (11) YEARS and ONE (1) DAY of prision mayor, as minimum to EIGHTEEN (18)
YEARS and SIX (6) MONTHS of reclusion temporal as maximum; to pay to the heirs of the
deceased Bartolome Arellano, jointly and severally, P15,000.00 for the death of said
 victim; P5,311.45 as actual damages; P15,000.00 as moral damages; compensatory
damages of P40,000.00, by way of unrealized earnings; and to pay the costs.

Subject homemade "bulldog" gin marked Exhibit 1-a is hereby confiscated in favor of the
state; but let the armalite marked Exhibit 1-a which was issued as official service firearm
of P/Cpl. Gervacio Tacas be returned to Sta. Teresita, Cagayan police station for proper
disposition. (pp. 96-97, Rollo)

Appellant Gervacio Tacas is a member of the police force of Sta. Teresita, Cagayan; has been a
policeman for 24 years and was on duty on August 3, 1980. He admitted having shot Bartolome Arellano
on August 3, 1980. However, he claims that he did so in self-defense and/or in the fulfillment of duty or
lawful exercise of a right or office. As aptly stated by respondent court, "[t]o avoid criminal liability
therefor, he has to show to the satisfaction of the Court the attendance of justifying circumstance or
circumstances and must rely on the strength of his own evidence. He can not depend on the weakness
of the prosecution's evidence for even if weak, it could not be disbelieved after the accused himself
owned the killing." (p. 81, Rollo)

Respondent court based its finding of guilt of herein appellants on the testimony of Edita Arellano,
daughter of the deceased, and the testimonies of Francisco Arellano and Ricardo Bilag who both claimed
to have witnessed the killing. Their testimonies, as summarized by the trial court, are as follows:

Testimony of Edita Arellano

"Second witness for the People was Edita Arellano y Pajela, daughter of the deceased Bartolome
Arellano. She testified that her father was a farmer by occupation, planting rice to a 3 hectare land with
an average yield of 80 sacks per harvest every semester at P50.00 per sack. According to her, her late
father was an early riser. On August 3, 1980, he was up at 4:00 in the morning and after preparing food,
he went out to the field, as he usually did, to see his carabao. He was in short pants and sweater and
unarmed.

"Then, at around 5:30 that fateful morning, she heard a single gunfire followed by three 'bang, bang,
bang' and a series of gunshots thereafter, after which somebody who was running told her that her
father was dead. So, she rushed to the highway and found her dead father lying face down with hands
and feet stretched and right forearm supporting the forehead. Many people were around the cadaver
and even as she went nearer, she saw policemen taking photographs of the deceased. Then, Cpl.
Tabarrejo turned the cadaver face upward and placed over the abdomen a gun and knife afterwhich
pictures thereof were again taken; but she did not see where Cpl. Tabarrejo got the said gun and knife.

"Pointing to accused Gervacio Tacas in Court, this prosecution witness also testified that she did not
know what to do and was crying hysterically in front of Tabarrejo when the aforementioned acts were
being done with her dead father. She was the only one left at home because her mother went to Laoag
City. Ignorant, helpless, shocked, and speechless, she just. watched what the policemen were doing to
the mortal body of her late 56 year-old father." (pp. 38-39, Rollo)

Testimony of Francisco Arellano

"According to him, on the night of August 2, 1980, he was in the dance hall within the poblacion of Sta.
Teresita, Cagayan. He slept there and went home at about 5:00 the following morning, reaching
Simpatuyo by jeep an hour later. He met accused Gervacio Tacas on the bridge. Tacas, in under wears,
was holding an armalite and was with Jose Frias, Jr. who was armed with a carbine. Being still a second
cousin of Tacas, he was not afraid. He trailed Tacas just one and a half meter on the same side of the
barangay road while Frias walked eight meters from them on the other side of the road. From such
vantage position, he saw Frias aiming a carbine at Bartolome Arellano who was then facing Tacas and
eight meters from Frias. Bartolome Arellano was unarmed and was walking slowly in a stooping manner
at the place reflected in the sketch (Exhibit F). It was Tacas who first shot Arellano before Frias also fired
at the latter but he could not ten if Bartolome was hit then. Thereafter, Bartolome Arellano ran and Tacas
moved such that the latter was about to meet the former. However, when Bartolome Arellano noticed
the approaching Tacas, Arellano turned around and ran back to where he was formerly (the spot marked
B. Arellano in Exhibit F) even as Frias moved to the 'RIC' which is made of hollow blocks and Tacas
returned to the edge of the LB canteen. He was beside Tacas when Tacas and Frias fired. Both Tacas and
Frias fired twice but more reports came from Tacas who touched the automatic lever of his gun. After the
firing was over, Arellano whirled around and fell face down in the place where there is a palm tree,
witness recounted.

"Elaborating on how he managed to observe the happening in question, he explained that he was only a
meter away from Tacas and five to six meters from Frias when the assailants shot the victim. Being still a
second cousin to Tacas, he even commented to Tacas 'No more, Manong' but this was after the victim
fell and was dead already. Upon seeing his dead cousin, fear seized him because Tacas might also turn
against him. Before leaving the scene, however, he tried to go closer to the fallen victim but only to be
told by Tacas 'Get away from there; otherwise, I will pulverize your face.' Apprehensive of what could
happen to him in such a perilous situation, he left, witness narrated.

"This prosecution witness also identified Exhibits E and E-1 to be the pictures of the deceased Bartolome
Arellano, a first cousin of his. He admitted that he was never investigated by the police and did not
present himself to the PC authorities in Aparri or elsewhere for investigation in connection with the
incident under inquiry; and that it was only before Fiscal Ferrer the day before he testified in court that
he executed an affidavit for the first time in relation to this case. He never moved to another place since
the time of the shooting at bar took place but he was not able to present himself as a witness earlier for
the reason that some people in their locality made him understand that he is disqualified to be a witness
in the case involving a first cousin of his. He was still at the scene of the crime when police probers
arrived but because he was never asked, he did not volunteer any information. However, he told Edita,
daughter of the deceased, that he witnessed the shooting but she said 'Never mind, Tatang.' During the
burial, he also informed other relatives, like his Uncles Mando Arellano and Tolentino Arellano, of what he
saw in the same way that he told the bereaved widow of the victim. During the wake, there were also
police investigators but inasmuch as nobody inquired as to who shot the victim, he did not tell anything
to the investigators; besides, he was out for work, witness who insisted that he witnessed the shooting
complained of, pointed out.

"Finally, this witness divulged that the victim was not carrying anything at the time the two accused shot
him (victim).lwphl@it In fact, the victim was only wearing short pants and 'bad shirt,' he added." (pp.
40-43, Rollo)

Testimony of Ricardo Bilag

"Ricardo Bilag y Sotelo, security guard by occupation and who stayed in barangay Simpatuyo, Sta.
Teresita, Cagayan from July 23, 1980 to January 1981, was the fourth People's witness in this case.
Among other things, he declared that during the aforesaid period, he sojourned with his cousin, Ernesto
Lazo, whose house is located in the place indicated with initial 'EL' (Exhibit F-1) in Exhibit F. On August 3,
1980, he was, therefore, in the house of Ernesto Lazo. Waking up at 5:45 a.m. on Id date, he was by the
window facing the national road to San Vicente when he witnessed the unusual incident wherein
Bartolome Arellano was killed. Before Bartolome Arellano was fatally shot, the latter was walking on the
national road and was being followed by accused Gervacio Tacas who was with an armalite. Tacas was
wearing brief and sleeveless shirt. Standing by the road behind Tacas was accused Jose Frias, Jr. who was
with a carbine. At the far end of the barangay road walking to and fro around four meters from Tacas
was Francisco Arellano. Bartolome Arellano was without any weapon. He was wearing dark shoes and
brown long sleeves shirt.

"According to this witness, when Tacas was following Bartolome Arellano, the latter went to hide behind
the 'RIC' concrete marker even as Tacas was aiming the gun at him (Bartolome Arellano). After Tacas
fired twice, Bartolome Arellano ran towards a 'silag' tree about 12 meters from the 'RIC' concrete market
but he was again followed by Tacas who crossed the national road and went near the same 'silag' tree;
and when Bartolome Arellano tried to go to the national road and was passing by the store, the latter
was shot by Tacas, at which precise time, Frias was at the roadside, lying with stomach down and aiming
also his gun at Bartolome Arellano. Frias maintained such position while Bartolome Arellano was behind
the 'RIC' concrete marker and fired once at the latter. Then, when Bartolome Arellano went to the place
of the 'silag' tree, Frias remained thereat and when Bartolome Arellano was moving to the national road,
Frias stood in the middle of the road and fired again but he (witness) could not tell if the victim was hit.
After Bartolome Arellano was shot by Tacas, said victim slowly slumped to the ground and thereafter,
Frias went home. It was Tacas who first fired at the victim where the victim was passing near the store.
Frias fired later at the victim who was then slowly slumping to the ground. He subsequently saw Edita,
daughter of the deceased, crying by the side of her fallen father, so this witness recollected.
"He likewise divulged that he executed his affidavit (Exhibit G) on September 14, 1980 before Provincial
Fiscal Bello in Aparri, Cagayan. Afraid that the culprits might kin him, he motored 30 kilometers to Aparri
subscribe and swear to such sworn statement of his. He is not related in anyway to the. deceased. He
actually saw Francisco Arellano at the crime scene. He even told Sianing Arellano, a brother. of the
deceased, of that fact.

"On cross-examination, this prosecution witness testified further that his permanent place of abode is
Dapdap, Amulong, Cagayan, more or less 80 kilometers from Simpatuyo, Sta. Teresita. However, he used
to go to Sta. Teresita for vacation. He only does not know if the people of said place know him well. In
the last week of July 1980, he was staying in the house of his cousin, Ernesto Lazo, four houses from
Gervacio Tacas' house. Before July 23, 1980, he did not personally know Bartolome Arellano. Although he
knows Raymundo Arellano, supposed to be one of the richest resident in the place, he was not aware
that Raymundo is the father of Bartolome. Reminiscing how he happened to be a witness in the case,
this witness disclosed that upon the request of Sianing Arellano, Ernesto Lazo asked him if he was really
present during the happening of the incident in question and he answered his cousin affirmatively. He
admitted, however, that he was never investigated by the police. Not having been asked by the police
officers who were at the crime scene, he did not volunteer any information. Neither did he let Edita,
daughter of the deceased, know what he saw. He only decided to give his written statement on
September 14, 1980 in Aparri in which statement he was not able to mention the presence of Francisco
Arellano at the crime scene. Said affidavit of his was made by Atty. Jose Brillantes in Bugey, Cagayan in
the presence of another witness and a brother of the deceased. Prior thereto, he was also called once by
Mayor Bernoli Arquero of Sta. Teresita and requested by the Mayor to testify for the prosecution; but the
sole reason for him to testify in court is to help the court gather the truth regarding the shooting incident
under inquiry.

"This witness also narrated that it was only after the incident at bar that he learned that Jaime Yerre, Jr.
and Manuel Pajela were also shot on August 3, 1980 and he heard that it was Bartolome Arellano who
shot the two during a mahjong game; but he does not know if the buckshot used by Bartolome Arellano
in shooting said victims was recovered by the police authorities. According to him, Bartolome Arellano
was not carrying anything when he saw him after hearing the first burst of gunfire." (pp. 43-47, Rollo)
The trial court said:

Obviously, unlawful aggression is the main ingredient of self-defense. Without unlawful

aggression, there can be no self-defense, complete or incomplete. And it is unlawful
aggression which imperils one's life, limb or right either actually or imminently, that
makes the invocation of self-defense feasible. In short, before he was shot to death, did
the victim create or constitute any menace to the accused? Painstakingly evaluating the
gamut of evidence at hand, We can not divine how an unarmed person could have done
unlawful aggression against two heavily armed men. To be sure, the showing that
Bartolome Arellano was without any deadly weapon when he met his violent death is too
overwhelming to be overlooked. Waking up at 4:00 in the morning of August 3, 1980, as
was his daily routine, he cooked food for his family after which, with short pants and "bad
shirt" to cover his body, he went down for the nearby ricefield to attend to his working
animal. It does not appear that he had any gun or even a bolo. Indeed, from all
appearances, he did not go out to do violence against anybody. In fact, he was seen later
by the prosecution witnesses, notably Francisco Arellano, Jr. and Ricardo Bilag, going from
one place to another in a determined effort to save dear life from the advancing Gervacio
Tacas and Jose Frias, Jr. who were combat-ready and armed to the teeth. Said prosecution
witnesses succinctly testified that Bartolome Arellano was not holding anything at that
unlucky moment. If he had a bulldog gun and a bolo tucked to the waist, considering that
it was already 6:00 in the morning at the time, bright enough for everybody to observe
the happening under inquiry, it would be easy for the prosecution witnesses to detect any
weapon in the possession of the victim but the truth is he had none and could not have
been a real to the life and limb of Tacas and Frias who were respectively armed with an
armalite and a carbine. As a matter of fact, the victim was actually running away. Then,
too, if there was any cap for him to sender by the heavily armed Tacas who was assisted
by Frias, Bartolome Arellano would have meekly heeded the same, no doubt.

All things considered, We find the victim incapable of unlawful aggression. The situation
he was in belies self-defense.
 Absent unlawful aggression on the part of the victim it is needless for Us to discuss
lengthily the other requirements for valid self-defense. As aptly held in a recent decision
of Ours, when there is no unlawful aggression to speak of, there is nothing to defend
against or repel And the requisites that there be reasonable necessity in the means
employed to repel unlawful aggression and lack of sufficient provocation on the part of the
person defending himself have no room for application.

Neither is the justifying circumstance of fulfilment of duty under paragraph 5 of Article 11

of the Revised Penal Code availing, it appearing that the victim was truly unarmed and it
was not necessary to shoot him. Peace officers are never justified in using unnecessary
force, wanton violence or dangerous means. Not even a hardened criminal should be
handled in the manner complained of. (pp. 82-84, Rollo)

However, the Solicitor General, in his Comment, said that the findings of the trial court are not
supported by the evidence; that an objective analysis of the evidence in fact discloses overwhelming
proof that Bartolome Arellano was armed and shot certain persons, including appellant Tacas. He
recommends acquittal of petitioners-appellants.

Manuel Pajela and Jaime Yerre, Jr. testified that while they were playing mahjong at about 5:30 in the
morning of August 3, 1980, they were fired at with a shotgun by Bartolome Arellano. Prosecution witness
Ricardo Bilag confirms the version of the defense that Bartolome Arellano shot and wounded Pajela and
Yerre with a shotgun. Hereunder is Bilag's testimony on this point

ATTY. PAZ:

Q And you heard that first shot before you saw Jose Frias, is that right?

WITNESS:

A Yes, sir.

ATTY. PAZ:

Q Now, tell the truth Mr. witness. Did you come to know that on the morning
of August 3, 1980, BARTOLOME Arellano shot at the persons who were
playing mahjong at Simpatuyo and wounded two of them?

WITNESS:

A After the incident I came to know there were two persons hit.

ATTY. PAZ:

Q And these persons whom you came to know who were hurt were Jaime
Yerre, Jr. and Manuel Pajela?

WITNESS:

A Yes, sir.

ATTY. PAZ:

Q And you even heard after the incident that it was Bartolome Arellano who
shot Jaime Yerre and Manuel Pajela which cause their injury?

WITNESS:

A After that incident I also heard the same thing that he shot Jaime Yerre
and Manuel Pajela.

ATTY. PAZ:
 Q And you heard also that Bartolome Arellano shot them on August 3, 1980
with a buckshot?

PRESIDING JUSTICE PAMARAN:

You are assuming that he knows what a buckshot is.

ATTY. PAZ:

I will lay the basis.

JUSTICE ESCAREAL:

Q Do you know what a buckshot is known in Cagayan?

WITNESS:

A Yes, sir.

JUSTICE ESCAREAL:

Q What is it?

WITNESS:

A A gun with 13 cage bullets.

JUSTICE ESCAREAL:

Q Meaning a shotgun using 12 bullets that is usually used in some parts of

Cagayan even before Martial Law?

WITNESS:

A Yes, sir. (pp. 50-62, tsn., hearing November 19, 1981)

Further, he admitted that when he (Bilag) saw appellant Tacas that early morning, the latter was wearing
only a brief and sleeveless shirt. This supports the testimony of Tacas that he was sleeping when he was
suddenly awakened by the sound of gunfire followed by cries of Pajela's wife for help; that looking at the
window, he saw Pajela bleeding and about to be carried inside his house; and that he then grabbed his
service armalite and went down in his brief and undershirt. As observed by the Solicitor General, if Tacas
did plan the killing of Arellano, he would have put on a more respectable attire. The fact that he went
out in the street in his brief confirms the truth of his testimony that he merely responded to an urgent
call for help.

Dr. Ferdinand Cario of the Ponce Enrile Memorial Hospital testified that on August 3, 1980 he treated
Manuel Pajela and Jaime Yerre for gunshot wounds and were thereafter confined at the hospital.

With respect to the testimony of Francisco Arellano, the Solicitor General claims that the same is "so
unbelievable that no one hardly knows where to begin in pointing out the falsity of his declaration. Thus:

1. The improbability of F. Arellano's testimony is no more manifest than from his claim that
he was present when the crane was committed. Could it be believed that Tacas, a veteran
policeman for 24 years would be so rash as to ambush the deceased in the presence of
his first degree cousin? (pp. 22-24, tsn., October 28, 1981).

2. The testimony of F. Arellano that Bartolome Arellano was shot while unarmed and in
coldblood is rendered more improbable by the time and place of the incident. The road is
hardly the place to court murder, especially when it is 'already bright.' (pp. 20, 27, tsn.,
October 29, 1981).
3. F. Arellano testified that before the shooting, there were many people near the bridge
who witnessed the shooting. They were "Edring, Dianong, Mr. Consejal Pagarigan, Macario
Soliven, Ernesto Gallardo" and the father of the victim (pp. 32-34, tsn, October 29, 1981).
Why would Tacas kill B. Arellano under the circumstances depicted by the prosecution?
Common sense dictates against acceptance of a story that pictures a lawman killing an
old and defenseless man for no apparent reason and in the presence of so many
witnesses.

4. F. Arellano could not even be consistent. On direct examination, he declared that he

was beside Tacas when the latter shot and killed B. Arellano (p. 8, Decision).lwphl@it On
cross-examination,. he was no longer beside Tacas but five to six meters away (p. 9,
Decision).

5. F. Arellano declared that Tacas was wearing 'short pants (P. 11, Decision). What the
other eyewitness for the prosecution saw was something else. According to Bilag, Tacas
was wearing only a "brief" (p. 11, Decision). If indeed Tacas was wearing a brief, Bilag's
testimony complements the testimony of Tacas that he was sleeping when awakened by
the sound of gunfire and hurriedly went down ' to investigate. Either F. Arellano or Bilag is
lying. Both can not be right.

6. F. Arellano's testimony was that Tacas and Frias were walking when they met B.
Arellano (p. 8, Decision). What Bilag saw was B. Arellano being followed by Tacas (p. 11,
Decision).

7. F. Arellano declared that Tacas shot B. Arellano upon seeing him (p. 8, Decision
appended to Petition). Bilag's testimony is different. Although on direct examination, Bilag
declared that Tacas fired two shots when B. Arellano hid behind the 'RIC' concrete marker,
he clarified this on cross-examination, declaring that when Tacas fired his first shot, the
gun was aimed upwards (p. 64, tsn., November 19, 1981). Bilag further testified that when
B. Arellano reached the silag tree, Tacas fired another shot aimed "upwards" (p. 69, Id.)

xxx xxx xxx

8. F. Arellano was not listed as one of the prosecution witnesses. He simply appeared out
of the blue as a witness for the prosecution on October 28, 1981, one year, two months
after the incident and while the trial was in progress. In fact, his affidavit was executed
only the day before he testified, or on October 27, 1981.

His appearance only at the trial is unnatural because, according to him, he had told the
widow of the victim and his uncles, Raymundo and Tolentino Arellano at the wake that he
witnessed the incident (p. 33, tsn., October 28, 1981; pp. 12-15, tsn., October 29, 1981).
He also claims to have told Edita, the victim's daughter, after the burial (p. 32, tsn.,
October 28 , 1981). And yet he was not investigated. Nor did he present himself for
investigation to the police, PC or fiscal. Plainly, he was a conjured witness for the
prosecution.

xxx xxx xxx

9. There is paucity of material details in the testimony of F. Arellano. Thus, Bilag who was
farther away from Tacas heard more of Tacas' words and saw more of Tacas' movements
and actions than F. Arellano who claims to have been only a few meters distant from
Tacas.

10. F. Arellano testified that he saw Ricardo Bilag before and after the shooting near or at
the scene of the crime (pp. 30-34, tsn., October 29, 1981).

According to Bilag, he was not investigated by the police; because he "did not get near
the scene of the crime" (p. 38, tsn., November 19, 1981).

11. The testimony of F. Arellano starts only from. the time Tacas and Frias were about to
shoot B. Arellano. It does not therefore refute the testimony of the defense witnesses that
 before Arellano was killed, he shot Manuel Pajela and Jaime Yerre Jr. with a shotgun. (pp.
129-131, 134-135, Rollo)

On the other hand, appellant Gervacio Tacas testified that at about 5:00 in the morning of August 3,
1980, he was awakened from his sleep by the sound of gunfire, that hearing a woman shouting for help
east of his house, he opened the window and saw Pajela slumped on a table, blood oozing from his body,
that he grabbed his armalite rifle, went out and saw Bartolome Arellano with a gun proceeding towards
the RIC marker (p. 20-26, tsn., January 11, 1983." (pp. 126-127, Rollo)

Appellant Jose Frias testified that "at about 5:30 in the morning of August 3, 1980, he was awakened
when he heard a loud explosion coming from the eastern side of his house. that he looked out of the
window and saw Pajela lying on a table, bleeding, that he went down and saw Tacas, his father-in-law,
calling upon Bartolome Arellano to surrender; and that Bartolome Arellano was in the street proceeding
towards the RIC marker, and that Bartolome Arellano was armed with a "bulldog" shotgun (pp. 5-9, tsn.,
March 14, 1983)." (p. 127, Rollo)

The testimonies of petitioners-appellants were corroborated by Teodoro Paguirigan, a nephew of

Bartolome Arellano; Modesto Macarubbo, Station Commander of Sta. Teresita Police Station, and Cpl.
Silvino Tabarrejo.

Teodoro Paguirigan declared that when he heard gunfires at about 5:00 in the morning of August 3,
1980, he stood-up, looked out of the window and saw Bartolome Arellano leaving the house of Pajela
with a shotgun on his hand and a bolo on his waist. Later, Paguirigan saw Bartolome Arellano point his
gun and shot at Tacas.

Modesto Macarubbo testified that when he arrived at the scene of the incident, he recovered a shotgun
and a bolo from under the body of Bartolome Arellano. The gun had one (1) empty shell in its chamber,

Corporal Silvino Tabarrejo, who arrived at the place with Commander Macarubbo, said Bartolome
Arellano's right hand was holding a homemade shot gun while on his waist was tucked a knife.

The above testimonies find corroboration on the fact that pellets, gauge 12 (Exhibits 1b2 and 1b3 were
extracted by the police from one of the posts of Eny Peralta's store where appellant Tacas sought cover.
These pellets match the empty shell, which is also gauge 12, found in the shotgun's chamber (Exhibit 1b
As correctly observed by the Solicitor General, "these items, taken together with the testimonies of both
the defense and prosecution witnesses, indubitably prove that Bartolome Arellano was armed and he
shot at appellant Tacas." (p, 128, Rollo)

The law recognizes the non-existence of a crime when it expressly stated in the opening sentence of
Article 11 of the Revised Penal Code that the persons therein mentioned "do 4 not incur any criminal
liability." If there is a circumstance justifying the defendant's act, he is exempt from both criminal and
civil liability, except in paragraph 4 of this Article 11, where the civil liability is borne by the persons
benefited by the act.

The fifth justifying circumstance which exempts a person from criminal liability is found in this provision:
"Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office." The
requisites of the defense of fulfillment of duty are: (1) that the accused acted in the performance of a
duty or in the lawful exercise of a right or duty; (2) that the injury caused or the offense committed be
the necessary consequence of the due performance of duty or the lawful exercise of such right.

The Solicitor General expressed the view, with reason, that Tacas acted in the performance of his duty.
Again, We quote from the brief of the Solicitor General:

... The information clearly states so, thus: "That the crime was committed by the accused
Gervacio Tacas in relation to his office as a policeman" (p. 2, Decision). And so do the facts
he was awakened from his sleep by the sound of gunfire followed by cries of a neighbor
for help; he stood up, look out of the window, saw Pajela bleeding on top of a table about
to be carried to his house; he grabbed his armalite rifle, went out of the house, saw
Bartolome Arellano with a shotgun leaving Pajela's yard, went after him, fired warning
shots and asked him to surrender undisputed facts which clearly show that Tacas acted
in the performance of his duty.
 Anent the second requisite that the injury caused or the offense committed be the
necessary consequence of duty or the lawful exercise of right or office it is difficult not
to give Tacas the benefit of the doubt. It is shown by the evidence that B. Arellano was
armed with a shotgun. It is undisputed that Tacas fired a warning shot, asked B. Arellano
to surrender, and then fired another warning shot. So when B. Arellano refused to
surrender but tried to elude arrest and pointed his gun at Tacas, first at the RIC marker
and then at the silag tree, Tacas had very little choice but to use his weapon. In fact,
according to Paguirigan, B. Arellano and Tacas fired "simultaneously" (p. 24,
Decision).lwphl@it

While there are limits to the lawful exercise of a right or duty, at the same time, it should
not be required of a policeman to unnecessarily expose himself to peril. In this case, B.
Arellano was armed, refused to surrender, tried to elude arrest, pointed his shotgun at
Tacas and later shot at him. As it was the duty of Tacas to arrest B. Arellano and to prevent
him from escaping, sooner or later, it would come to the point where the lawman and the
suspect had to face each other. In that crucial moment when Tacas and B. Arellano, both
armed, faced each other, they had to make a split decision of putting their guns down or
firing. They both elected to fire and B. Arellano was killed while Tacas survived. Under
these circumstances, it can hardly be said that Tacas should not have fired at all. As his
life was in peril, his judgment can not be questioned. (pp. 148-149, Rollo)

With respect to the case of appellant Frias, the Solicitor General submits that "apart from the dubious
and false testimonies of F. Arellano and Bilag, the prosecution has not shown any positive and
convincing evidence of conspiracy." He divulged that

1. There is total absence of motive for Frias to shoot B. Arellano, a fact plainly overlooked
by the trial court. In the absence of motive, it is difficult to assume that Frias conspired
with Tacas in murdering B. Arellano.

2. There is total absence of evidence that Frias and Tacas planned to kill B. Arellano. In
fact, the circumstances surrounding the death of B. Arellano simply point only to one
question, that is, whether the killing was justified by the defense of fulfillment of duty.

3. Assuming arguendo that Frias also shot at B. Arellano, his participation in the incident
was purely accidental and unforeseen, geared most probably to the protection of Tacas,
his father-in-law, as the trial court itself assumed (p. 58. Decision). That negates
conspiracy.

4. The relationship of Frias and Tacas is no proof of conspiracy (People vs. Geronimo, 53
SCRA 246). (p. 156, Rollo)

It is settled rule that conspiracy can not be presumed, but must be proven as convincingly
as the crane itself. The crime of murder has not beer proven. There is therefore hardly any
reason to convict Frias as a co-conspirator of Tacas. (p. 157, Rollo)

ACCORDINGLY, as recommended by the Solicitor General on the ground that Gervacio Tacas acted in the
fulfillment of a duty and in the legitimate exercise of his authority, said appellant is hereby ACQUITTED
of the crime charged.

For insufficiency of evidence, appellant Jose Frias, Jr. is also ACQUITTED.

20. People vs. Catbagan (no need to include, the digest would suffice)

22. PEOPLE OF THE PHILIPPINES, appellee, vs. OLIVER AREVALO JR. y ABANILLA, and
HERMINIGILDO ORGANISTA yANDRES, appellants.
DECISION
PANGANIBAN, J.:
 Appellant is accused of multiple rape by two or more persons, for which Article 266-B of the
Revised Penal Code prescribes the penalty of reclusion perpetua to death. Since the Information did
not allege any aggravating circumstance, the proper penalty to be imposed is reclusion perpetua, not
death.
The Case
For automatic review before this Court is the October 26, 2001 Decision [1] of the Regional Trial Court
(RTC) of Makati City (Branch 62) in Criminal Case Nos. 01-419 to 01-464, finding Oliver Arevalo Jr. and
Herminigildo Organista guilty beyond reasonable doubt of 42 and 32 counts of rape, respectively. The
decretal portion of the Decision is worded as follows:
WHEREFORE, premises considered, the Court finds accused Oliver A. Arevalo in Criminal Cases Nos. 01-
419 to 01-423, 01-425 to 01-428, 01-430 to 01-441, 01-442 to 01-446, 01-448 to 01-451, 01-453 to 01-
464, and accused Herminigildo A. Organista in Criminal Cases Nos. 01-419 to 01-422, 01-442 to 01-445,
and 01-441 and 01-464 GUILTY beyond reasonable doubt of the crime of rape defined under Art. 266-A,
par. 1(a) in relation to Art. 266-B, par. 2 of the Revised Penal Code, as amended by Republic Act 8353,
and imposes upon them the maximum penalty of death in each case. Each of the two accused is hereby
ordered to pay complainants Regina G. Acu[]a and Ruth F. Acosta P75,000.00 each as civil indemnity.
Considering the outrage, humiliation, distress and trauma suffered by the two complainants from the
dastardly act of the two accused, the Court orders the accused Arevalo to pay Regina Acu[]a and Ruth
Acosta P200,000.00 each and accused Organista to pay the two complainants P50,000.00 each as moral
damages pursuant to Article 2219(3) in relation to Article 2217 of the Civil Code.
Accused Arevalo is further ordered to pay exemplary damages in the amount of P100,000.00 to each of
the two complainants to deter others with perverse tendencies or aberrant sexual behaviors from
committing the act.
For failure of the prosecution to establish the guilt beyond reasonable doubt of accused Oliver A.
Arevalo in Criminal Cases Nos. 01-424 and 01-447, and 01-429 and 01-452, and accused Herminigildo A.
Organista in Criminal Cases Nos. 01-423 to 01-440 and 01-446 to 01-463, they are hereby ACQUITTED in
said cases.[2]
A total of forty-six (46) separate Informations [3] were filed against appellants. For the rape of Regina
Acua, they were charged as follows:
Criminal Case No. 01-419
That on or about the 23rd day of January, 2001, in the City of Makati, Metro Manila, Philippines, a place
within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together with John Does and mutually helping and aiding with one another, by means of force and
intimidation, did then and there willfully, unlawfully [and] feloniously have carnal knowledge of the
complainant REGINA ACU[]A y GUTIERREZ, without her consent and against her will. [4]
The Informations[5] in Criminal Case Nos. 01-420 to 01-441 contain allegations identical to the above
Information, differing only with respect to the dates of the commission of the alleged rapes.
For the rape of Ruth Acosta, appellants were charged as follows:
Criminal Case No. 01-442
That on or about the 23rd day of January, 2001, in the City of Makati, Metro Manila, Philippines, a place
within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together with John Does and mutually helping and aiding with one another, by means of force and
intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of the
complainant RUTH ACOSTA y FILLAS, without her consent and against her will. [6]
Again, the Informations[7] in Criminal Case Nos. 01-443 to 01-464 contain allegations identical to the
above Information, differing only with respect to the dates of the commission of the alleged rapes.
Upon their arraignment on March 19, 2001,[8] appellants, with the assistance of their counsel,
[9]
pleaded not guilty to all charges. After trial in due course, the court a quo rendered the assailed
Decision.
The Facts
Version of the Prosecution
In its Brief, the Office of the Solicitor General (OSG) presents the prosecutions version of the facts in
the following manner:
Regina G. Acu[]a was a jobless 22-year old married woman residing in Payatas, Quezon City. On
January 23, 2001, between three oclock and four oclock in the afternoon, she was walking down
Manggahan St. in Fairview, Quezon City, looking for a job. As she went along, appellant Arevalo, a
stranger, approached and asked her what her problem was. She replied that she was looking for a
job. Appellant Arevalo told Regina that he could get her a job as saleslady. Regina said that if the place
of work was far, she was not interested. Appellant Arevalo told her not to worry, as the workplace was
not far, and that nothing wrong would happen to her. Regina did not believe him.
While they were talking, a car stopped in front of them. Suddenly, appellant Arevalo placed a white
handkerchief on Reginas face and boarded her on the vehicle. Regina could not remember what
happened next. She could not even recall whether she slept or lost consciousness. All she knew was
that when she woke up, she was already lying on a bed inside a room. It was nighttime.
In the room, Regina saw appellant Arevalo and a fat lady whom he identified as Rose, his atsay or
helper. Regina later learned that Roses real name was Ruth Acosta. Ruth looked like she was in a state
of shock, or, tulala.
Appellant Arevalo left momentarily. When he came back, he forcibly took off Reginas clothes. Regina
asked him what he was doing, and he replied that what he would do would only take a while. Appellant
Arevalo then undressed himself. When Regina saw this, she pleaded with him to take pity on her and to
release her, as her husband may have been worrying for her already. Appellant Arevalo repeated that it
would not take long. Regina shouted for help. But nobody heard her, as appellant Arevalo had closed
the door and windows. While she was shouting, appellant Arevalo raised her feet and forcibly inserted
his penis into her vagina.
As Regina lay on the bed, she kept on shouting and resisting appellant Arevalos sexual assault. At one
point, she was able to free herself from him and run. But he caught up with her, grabbed her hair,
banged her head against the wall and threw her back to the bed, where he continued to ravish
her. Rose, or Ruth Acosta, was looking on helplessly, crying while Regina was being violated.
From that night onward until February 14, 2001, Regina would be wearing nothing almost all the time,
for she would be ravished for what seemed like almost every day and every hour.
On January 24, 2001, an unidentified man raped Regina in the same room. Before raping her[,]
however, the man paid appellant Arevalo a sum of money. Regina could not see the mans face, as
appellant Arevalo had blindfolded her. But she heard the man tell appellant Arevalo, Pare, itong bayad.
The unidentified man made Regina take different sexual positions even as she resisted. At one time, he
inserted his penis into her anus; at another, he inserted his finger and later, his penis, into her vagina.
Thereafter, appellant Arevalo made her eat the mans penis. Regina struggled hard to free herself from
the mans clutches, but she was no match for him.
When the man had left, appellant Arevalo took off Reginas blindfold. Regina saw him counting the
money the man had paid him. Thereafter, appellant Arevalo ravished Regina himself. When he was
finished, appellant Arevalo again sold Regina to another unidentified man, who proceeded to have sex
with her. By this time, Regina was no longer shouting for help because no one could hear or help her
anyway.
On January 25, 2001, appellant Arevalo again blindfolded Regina and let other men ravish her for a fee
while he stood guard outside the door of his house. The first man who had sex with Regina inserted his
penis into her vagina while he was on top of her, covering her mouth with his hand because she was
noisy. Regina kept shouting for help, but nobody heard her. So she just cried and cried and threw
punches at the man, but he would not stop ravishing her. To keep her from resisting, the man pointed a
knife at her neck and threatened to kill her. When the man was through, another man followed. By
then, Regina was no longer putting up any resistance because she was afraid and at the same time,
already very weak. Around six (6) men raped her in succession that day, but she could only recognize
appellant Arevalo among them.
On January 26, 2001, appellant Arevalo forced the two (2) women to take drugs. Appellant Arevalo
made Regina sniff the smoke of a powdered substance or tawas wrapped in a foil. When she refused,
he threatened to slash her neck. He also made the girls take tablets which Regina later discovered to be
birth control pills.
Thereafter, appellant Arevalo inserted his penis into Reginas vagina. While he was raping her, he ran
the point of his knife up and down her body, from her breasts to her vagina. Regina was very afraid.
After appellant Arevalo had reached a climax, he blindfolded Ruth and made her have sex with many
other men.
On January 27, 2001, appellant Arevalo ravished Regina again in a similar manner as the previous
days. By then, Regina was very weak.
On many occasions during her first five (5) days in captivity, and even thereafter, Regina tried to
escape, but appellant Arevalo would always catch up with her and hurt her. He would tie up her hands
and hang her while having sex with her. Whenever he left the house, he would lock it from the outside
to prevent Regina and Ruth from leaving. Although appellant Arevalo would buy the girls food, Regina
oftentimes refused to eat, because she knew that the food was bought with the money appellant
Arevalo earned from peddling their bodies.
On January 28, 2001, appellant Arevalo brought Regina to another place. She did not know where the
place was because she was dizzy with the drugs he had made her use.
On January 29, 2001, appellant Arevalo drugged Regina again. Thereafter, he had sexual intercourse
with her. Regina begged him to let her go home because her husband was waiting for her, but her plea
fell on deaf ears. Many other men ravished Regina that day.
On January 30, 2001, appellant Arevalo forced Regina to make a choice between marijuana and
tawas. When Regina refused to choose, he threatened to slash her throat. Afraid, Regina finally chose
tawas. Appellant Arevalo told her to take it so that she would not feel the pain in her vagina, which
was already bleeding. Thereafter, appellant Arevalo raped her.
On January 31, 2001, appellant Arevalo had forcible sexual intercourse with Regina again. Thereafter,
not content with putting his fingers into her private part, appellant Arevalo inserted a lighted cigarette
inside. Although Regina was taking the drug appellant Arevalo forced her to use, she still felt the pain in
her vagina caused by the hot cigarette.
On February 1, 2001, after forcibly copulating with Regina yet another time, appellant Arevalo sold her
again to other men.
On the night of February 2, 2001, appellant Arevalo again moved Regina to another place which she
could not remember, because she was dizzy then. Although there were other passengers on the public
utility jeepney that they took on the way to the place, Regina could not ask for help, as appellant
Arevalo was poking a knife at her back inside her t-shirt the whole time and had earlier warned her that
he would kill her if she shouted. They arrived at a concrete house which had a vulcanizing shop at the
ground floor. When they were inside the building, appellant Arevalo blindfolded Regina and hanged her
by the hands. Regina heard womens voices, but she was not sure whether they were real or came from
the television set in the room. That night, Regina was again raped by unidentified persons. Appellant
Arevalo and Regina left the place at half past midnight.
From February 3 up to February 5, 2001, appellant Arevalo continued to subject [her] to his bestial
designs. Each time, he succeeded in inserting his penis into her vagina and in consummating the
intercourse. Regina no longer put up any resistance because her body had been rendered very weak
from her days of endless ravishment.
On February 6, 2001, Regina fell ill with fever, and Ruth took care of her. Reginas illness did not stop
appellant Arevalo from molesting her that day. Before she was raped, Regina begged appellant Arevalo
to allow her to call her parents and even offered him any sum of money as he desired, but he slapped
her, saying that he needed her body and not her money. He also told Ruth to slap her, and so Ruth
slapped her.
On February 7, 2001, Regina could only beg appellant Arevalo to take pity on her. She was chilling and
she tried to push him away, to no avail, for once again, appellant Arevalo successfully penetrated her
private organ.
On February 8, 2001, Regina discovered that she had a venereal disease, or tulo. But this did not
spare her from appellant Arevalos carnal greed. She stopped resisting him, for her body had long been
worn down by ceaseless abuse.
Reginas ordeal continued from February 9 up to February 14, 2001. Every single day, appellant
Arevalo would ravish her without letup.
On February 14, 2001, appellant Organista, a friend and neighbor of appellant Arevalo, also had a taste
of Reginas flesh. After appellant Arevalo stripped her naked, appellant Organista made his
move. Regina pushed him away as he approached her, but appellant Arevalo teased him, saying, kaya
mo yan pre. Appellant Organista proceeded to insert his penis into Reginas vagina while she lay down
on the floor, with appellant Arevalo looking on. After appellant Organista was finished, appellant Arevalo
took over in ravishing Regina and succeeded in penetrating her as well.
Ruth F. Acosta, a native of Bukidnon, left her family for Manila when she was about eighteen (18)
years old. Her highest educational attainment was the third grade of primary school. Unable to find any
relatives in Manila, she ended up loitering and sleeping on the streets of Luneta.
On January 23, 2001, about a year she had left the province, Ruth Acosta met appellant Oliver Arevalo
at the Luneta park. It was around six oclock in the evening. Appellant Arevalo told Ruth that he could
help her find a job and invited her to go with him. Ruth went with appellant Arevalo and they boarded a
jeepney. They arrived at (what turned out to be) appellant Arevalos house in Pembo, Makati, a few
hours later.
Upon entering the house, appellant Arevalo pushed Ruth Acosta to the bed and stripped off her
clothes. Thereafter, appellant Arevalo removed his own clothes and forcibly inserted his penis into her
vagina. Ruth could not recall what happened immediately thereafter, except that she felt pain in her
private part. She was also bleeding badly, for she had just lost her virginity to her assailant.
That same evening, after she was ravished by appellant Arevalo, Ruth was raped by appellant Arevalos
friend and neighbor, herein appellant Organista, in the same room.
The following day, January 24, 2001, appellant Arevalo raped Ruth Acosta again. He took off his
clothes, undressed Ruth, and inserted his penis into her vagina, causing her to feel pain. While she was
being raped, Ruth attempted to resist appellant Arevalo by pulling backwards her two hands with
clenched fists, but her resistance was futile.
On January 25, 2001, appellant Arevalo forcibly had sexual intercourse with Ruth again on his bed. He
inserted his organ into her private part, and once more, she felt pain. Many other men raped Ruth in the
same room that night after paying a fee to appellant Arevalo, but she could not identify said men
because she was blindfolded by him. She recognized appellant Organista, though, as one of those who
raped her while she was blindfolded because she was able to hold his beard while he was ravishing her
and she was already familiar with his face.
On January 26, 2001, appellants Organista and Arevalo took turns in raping Ruth. Appellant Organista
removed Ruths clothes, after which, appellant Arevalo had forcible sexual intercourse with her. Try as
she might to resist the two (2) men, she was easily overpowered by them. After appellant Arevalo was
through with Ruth, he left the room. Appellant Organista then proceeded to defile her, inserting his
penis into her vagina. As a result of her ravishment by the two (2) men, Ruth experienced pain
whenever she urinated.
The next day, January 27, 2001, appellant Arevalo blindfolded Ruth. Thereafter, she was raped
successively by several unidentified men.
On January 28, 2001, appellants Arevalo and Organista forced Ruth to take drugs. Next, appellant
Arevalo blindfolded Ruth. Thereafter, several unidentified men raped Ruth, one after the other, in
appellant Arevalos room. Before sexually abusing her, each of these men paid a fee to appellant
Arevalo. Ruth knew this, because she would hear the men say to him, Pare bayad or Pare ito na ang
pambayad.
On January 29, 2001, appellant Arevalo vented his carnal desire on Ruth again. After undressing Ruth,
he had forcible sexual intercourse with her on his bed.
On January 30, 2001, appellant Arevalo forced himself upon Ruth once more. While appellant Arevalo
was raping her, appellant Organista, who was visiting, merely looked on and did nothing to stop his
friend and neighbor. After appellant Arevalo had ejaculated, appellant Organista took over, ravishing
Ruth until he, too, succeeded in discharging his semen on her. While this was going on, appellant
Arevalo merely stood by, laughing.
On January 31, 2001, appellant Arevalo sexually abused Ruth yet another time, piercing her
womanhood and bringing himself to a climax. Other men followed in raping her that night in appellant
Arevalos room, but she could not see them because appellant Arevalo had covered her eyes.
The following day, February 1, 2001, five (5) men raped Ruth in succession in the same room after
paying a sum to appellant Arevalo. Once again, she could not see their faces because appellant Arevalo
had blindfolded her.
On February 2, 2001, appellants Arevalo and Organista took turns in raping Ruth in appellant Arevalos
room. Ruth knew that both men had reached a climax after forcibly copulating with her, for her vagina
was very wet with their semen.
On February 3, 2001, appellant Arevalo slapped Ruth, pulled her hair, inserted his penis into her vagina
and ravished her until he ejaculated. Appellant Organista followed, similarly unleashing his seminal fluid
on the hapless woman upon reaching a climax, while appellant Arevalo looked on and held her
down. Ruths ordeal did not end at this point, for she was subsequently raped by several other men
after paying appellant Arevalo one hundred pesos (P100.00) each.
On February 4, 2001, appellants Arevalo and Organista again raped Ruth in the same room. Appellant
Organista had forcible sexual intercourse with Ruth until he ejaculated; he also forced her to eat his
penis. Appellant Arevalo followed, inserting his penis into her private part, causing it to hurt. He also
ejaculated his semen on her.
In addition, appellant Arevalo, as with previous dates, sold Ruth to many other men that day. All of
them sexually abused her after each paying appellant Arevalo one hundred pesos (P100.00).
On February 5, 2001, appellant Arevalo once more peddled Ruth and Regina to unidentified persons
who each paid him one hundred pesos (P100.00). Appellant Arevalo also forcibly copulated with the two
(2) women that day. Additionally, appellant Organista ravished Ruth to the point of ejaculation while
appellant Arevalo watched. Ruth could only lie helpless while she was being raped by appellants, as
they were too strong for her.
On February 6, 2001, appellants Arevalo and Organista raped Ruth again. Appellant Organista ravished
Ruth first, undressing her, inserting his manhood into her as she lay on appellant Arevalos bed, and
helping himself to an orgasm while leaving Ruth in pain. Appellant Arevalo then took over, defiling her
as well. Thereafter, he blindfolded her and sold her for sex to other unidentified men.
On February 7 and 8, 2001, appellant Arevalo repeated his ravishment of the helpless woman until he
ejaculated on her.
Thereafter, appellant Arevalo blindfolded Ruth and sold her flesh to many other men. Again, Ruth knew
this, for she heard them say to him, Pare bayad and she also heard him talking to them.
On February 9, 2001, appellant Arevalo blindfolded the two (2) women and sold their sexual services to
several men. Appellant Arevalo warned Ruth that he had already killed a man before, and she believed
him; hence, she did not dare remove her blindfold because she was afraid of him.
On February 10, 2001, appellant Arevalo forcibly consummated his lust on Ruth once more. He also let
other men ravish her for a fee.
On February 11, 2001, several men paid appellant Arevalo to have sex with the two (2)
women. Appellant Arevalo himself did not spare Ruth, penetrating her maidenhood yet another time
until he was satisfied.
On February 12, 13, and 14, 2001, appellant Arevalo again peddled the women to other men for
sex. Appellants Arevalo and Organista were not to be outdone, for they, too, ravished Ruth on February
12 and 13, 2001.
On the night of February 14, 2001, after they had fulfilled their lustful designs on the two (2)
women and prostituted them to other men, appellants Arevalo and Organista had a drinking spree in the
formers room. Thereafter, they fell asleep. Regina Acu[]a got the key to the door from appellant
Arevalos pocket, dragged Ruth Acosta with her, and together they escaped. Regina and Ruth then
reported their horrifying ordeal to the Makati police. It was around 9:30 in the evening.
That same evening, a team of Makati policemen and barangay tanods went to appellant Arevalos
house accompanied by the Regina and Ruth. They knocked on the door. When appellant Arevalo
opened the door, he was immediately identified by the women as their ravisher. Appellant Arevalo tried
to escape, but he was quickly arrested by the police. Thereafter, the police and the two (2) women
proceeded to appellant Organistas residence which appellant Arevalo had readily pinpointed to
them. The police knocked on the door and appellant Organista opened it. Again, the two (2) women
quickly identified him as their other rapist. The moment he saw the policemen and the women,
appellant Organista also tried to escape, but the police immediately apprehended him.
The following day, the private complainants were physically examined by Dr. Miriam S. Guialani, the
deputy chief of the Womens Crisis and Child Protection Center of the Philippine National Police (PNP) in
Camp Crame, Quezon City.
Dr. Guialani found infected erosions or abrasions at the 8 and 9 oclock positions in the labial fold of
Reginas external genitalia, most likely caused by constant friction. She also noted hematoma, infection
and fresh lacerations in the hymen at the 2 and 4 oclock positions. In addition, the hymen was very
very red and swollen, indicating that it had been subjected to force and violence. There was also a foul-
smelling yellowish vaginal discharge strongly indicative of a sexually transmitted disease. On the whole,
Dr. Guialani noted that the genital findings show clear evidence of previous penetrating trauma.
On the other hand, Dr. Guialani found healed lacerations at the 4, 7 and 8 oclock positions in Ruths
hymen. She also noted edema and swelling at the hymenal rim and its mucosal tissues. Dr. Guialani
similarly reported that Ruths genital findings show clear evidence of previous trauma. [10] (Citations
omitted)
Version of the Defense
On the other hand, the defense presented the following version of the facts:
OLIVER AREVALO testified that since December 27, 2000, he was in Ormoc, Leyte with his wife and
two (2) children. On February 10, 2001, he went back to Manila to borrow money from his brother Tony
to put up a sari-sari store but he was asked by his brothers secretary to come back on February 13,
2001 so he went back to his brothers house but his brother referred him to their elder brother at Project
6, Quezon City. He was only given P500.00. At around 4:00 oclock p.m., he proceeded to Luneta where
policemen were arresting vagrants at that time. The two (2) women, Ruth and Apple, referring to
complainants Acosta and Acu[]a, were arrested. He helped them by giving them food and
clothing. They went with him to Makati and arrived at their house at around 11:30 p.m. The next day,
February 12, 2001, the two (2) women were hungry again and Acosta was asking for transportation
fare. He brought them to Organistas house and the latter gave P10.00 to Acosta. The two (2) women
left at around 1:30 in the afternoon. He had a drinking spree with Organista at his house. At around
1:00 in the morning, he saw policemen together with the two (2) women and one of the policemen
boxed him, so he pointed Organistas house to them.
HERMINIGILDO ORGANISTA could not remember where he was from January 23, to 26, 2001 because
he was treated with ECI for about five (5) times at the National Mental Health Hospital since 1983. He
claimed that said treatment has the tendency of weakening or affecting ones memory. He corroborated
the testimony of accused Arevalo that he only gave P10.00 for the food of Acosta.
AVELINA ORGANISTA testified that her son was treated at the National Mental Health in 1983. His
last examination was in 1997. After said examination, her son could no longer work because they have
to bind him because he was uncontrollable. He even threatened her that he would kill her when she
opposed what he was doing. On the dates of the alleged rapes, her son was at home with her.
DR. PIA ALMA DE JESUS of the National Center for Mental Health testified that she first saw accused
Organista for treatment on April 11, 2001. She learned from the hospital records that said accused had
been mentally ill since 1982 or 1983 and had 23 admissions at the mental hospital. During his last
admission, he was given oral medication to control his psychotic symptoms like illusions and
hallucination. Failure to regularly take said medication could cause a relapse that would render him
[unfit] for trial.
JESUS OCAMPO, driver and all around helper of accused Arevalos brother, Tony, testified that he
usually see Arevalo on Tuesdays as the latter used to ask money from Tony. [11] (Citations omitted)
Ruling of the Trial Court
The RTC found Arevalo and Organista guilty beyond reasonable doubt of 42 and 32 counts of rape,
respectively -- committed from January 23, 2001 to February 14, 2001.
The positive and straightforward testimonies of the victims, corroborated by medical reports,
sufficiently proved the guilt of appellants. Having closely observed the demeanor of the victims during
trial, the lower court found them credible. It found evidence that they had suffered extreme trauma,
pain, humiliation and distress. It held that there was no ill motivation on their part to impute such
serious offenses to appellants.
The RTC found many inconsistencies in the defenses of denial and alibi resorted to by Arevalo. First,
he could not state with certainty whether he and his family had left for Ormoc City or for Valencia, Leyte,
when the rapes were committed. He failed to present bus tickets to support his claim, notwithstanding
his manifestation during the trial that he would present them before the court. Second, the trial court
was puzzled by his testimony that, because his brother came home early from work on Tuesdays, on
those days he had to go to the latters house, which served as both office and residence. Third, on
cross-examination, the brothers helper contradicted Arevalo by testifying that the former had not seen
the latter in the house on February 10, 2001, the date on which one of the rapes had supposedly taken
place. Fourth, the residence of the brother of Arevalo turned out to be located in Project 2, Quezon City,
not in Project 3 as the latter repeatedly testified to.
The defense of insanity proffered by Organista likewise failed to convince the trial court. He
presented his mother who testified that he was not of sound mind, and that he had never left her side
ever since he was a young boy. He contradicted her, however, when he declared on the stand that he
was an electrician and a mason by vocation. According to him, during the period 1999 to March 2001
when he engaged in his vocation, he never received any complaints on his behavior from the people he
constantly worked or associated with.
Although Organista was indeed confined at the National Center for Mental Health, the period of his
confinement did not include the period of the commission of the rapes, as he was last discharged from
the Center in 1997. Moreover, he failed to prove his claimed insanity during or near the time of the
commission thereof.
On the contrary, when the arresting policemen, together with the victims, proceeded to his house,
Organista tried to escape. His reaction was indicative of guilt and awareness of the wrong he had
inflicted on the victims.
Hence, this automatic review before us.[12]
The Issues
Appellants raise the following errors for our consideration:
I
The lower court erred in not appreciating the exempting circumstance of insanity interposed by
Accused-appellant Herminigildo Organista despite strong and convincing evidence presented to prove
the same.
II
The lower court erred in finding that conspiracy existed between the Accused-appellants.
III
The lower court erred in imposing upon x x x Accused-appellant Herminigildo Organista the supreme
penalty of death notwithstanding the presence of a mitigating circumstance.
IV
The lower court erred in imposing the supreme penalty of death upon Accused-appellants on the
assumption that they are guilty of the crime charged.[13]
Simply put, appellants arguments hinge on the following: (1) the trial court failed to appreciate
Organistas defense of insanity; (2) no conspiracy existed between appellants; and (3) they should have
been found guilty of simple, not qualified, rape.
For clarity, we shall discuss in reverse order the issues raised by appellants.
The Courts Ruling
Appellants are guilty of simple, not qualified, rape; hence, the penalty for each count should be
reduced from death to reclusion perpetua.
First Issue:
Proper Crime and Penalty
Appellants maintain that the evidence of the prosecution is weak, and that their defense of alibi and
denial should have entitled them to an acquittal. Organista adds that, assuming they were guilty, he
should have been entitled to the mitigating circumstance of illness that diminishes an offenders
exercise of will power, pursuant to Article 13(9)[14] of the Revised Penal Code.
In addition, appellants contend that the Informations did not allege with specificity that two persons
had raped the victims. Therefore, they argue, the rapes should not have been qualified and they should
not have been sentenced to death, which is the higher penalty provided under Article 266-B of the
Revised Penal Code. Accordingly, the penalty for each conviction of rape should have been reclusion
perpetua.
The contentions of appellants are partly meritorious. While their respective defenses of denial, alibi
and insanity must fail, we find them guilty only of simple, not qualified, rape.
Alibi and Denial
The positive, consistent and straightforward testimonies of the victims sufficiently established
appellants culpability. Well-settled is the rule that denial and alibi, being weak defenses, cannot
overcome the positive testimonies of the offended parties.[15]
In order to merit credibility, denial must be buttressed by strong evidence of non-culpability,
[16]
which herein appellants failed to show. And in order for alibi to prosper, the accused must prove not
only that they were at some other place at the time of the commission of the crime, but also that it was
physically impossible for them to be at the locus delicti or its immediate vicinity.[17]
In the present case, appellants failed to demonstrate this fact. Without presenting any evidence to
support his bare assertion,[18] Arevalo merely testified that he was in Ormoc, Leyte, from December 27,
2000, to February 10, 2001. He said that the bus ticket evidencing his trip to Leyte on December 27,
2000, was with his wife, while the return ticket to Manila on February 10, 2001, was with his brother. To
corroborate his testimony, he manifested that he would present the tickets in court after retrieving
them,[19] but he failed to do so.
On the other hand, the mother of Organista averred that her son had stayed with her during the
entire period of the commission of the rapes. But since their house was near Arevalos, or the place
where the rapes were committed, then it would not have been unlikely for him to be in the vicinity at the
time of the rapes.
The victims testimonies, corroborated by the results of the medical examination, convincingly
proved that appellants were the perpetrators. It is a time-tested rule that the evaluation of the
credibility of witnesses and their testimonies is best undertaken by the trial court, because it had the
opportunity to observe them firsthand and to note their demeanor and conduct on the witness stand.
[20]
For this reason, its findings on such matters, absent any arbitrariness or oversight of facts or
circumstances of weight and substance, are final and conclusive upon this Court. [21] It is likewise well-
settled that when a woman declares that she has been raped, she says in effect all that is necessary to
show that rape has been committed; and when her testimony passes the test of credibility, the accused
can be convicted on the basis thereof.[22]
On the rapes committed against her on January 23 and 24, 2001, Acua testified as follows:
Q: You said you were raped on January 23, 2001 and it was Oliver Arevalo who raped you. Will
you kindly tell the Honorable Court how this was done?
A Opo.[26]
After a painstaking review of the records of the case, we find no cogent reason to disturb the trial
courts findings on the credibility of the witnesses. When in open court they positively identified
appellants as their rapists, the trial court rightly declared:
The Court has closely observed the demeanor of the two complainants and did not find any ill-motive
on their part to impute a serious offense against the two accused. Clearly evident were the trauma,
pain, humiliation and distress on the part of Acu[]a and the state of daze or shock Acosta was in. x x
x.[27]
Nevertheless, though appellants are guilty of raping the victims, modifications have to be made
regarding the counts of rape for which each of them should be held liable.
From January 23 to 26, 2001, [28] only Arevalo, not Organista, should be held liable for the rapes of
Acua. A careful review of the records [29]shows that she identified only Arevalo as her rapist on those
dates.
For the rapes committed against Acosta on January 23, 25 and 26, 2001, [30] her testimony confirmed
that both appellants had raped her separately. [31] It was not established, however, that Organista had
raped her on January 24, 2001;[32] therefore, only Arevalo should have been convicted for the rape on
that date.
Acua, on the other hand, clearly testified [33] that Organista had raped her only on February 14,
2001.[34] She further testified that after raping her, Organista had subsequently raped Acosta. [35] But
Acosta was silent on whether she was raped by Organista on that date. [36] Because she was the best
person to say whether he had raped her on that date, and she was silent on the matter, we resolve the
doubt in his favor and acquit him of the offense that he allegedly committed on that date.
 Regarding the other counts of rape, we find no reason to disturb the trial courts findings. For the
rape of Acua, Arevalo is found guilty of simple rape under Criminal Case Nos. 01-419 to 423, 01-425 to
01-428 and 01-430 to 01-441. He is likewise found guilty of the rape of Acosta in Criminal Case Nos. 01-
442 to 01-446, 01-448 to 01-451 and 01-0453 to 01-464.
On the other hand, for the rape of Acua, Organista is found guilty of simple rape under Criminal
Case Nos. 01-441. He is also found guilty of the rape of Acosta in Criminal Case Nos. 01-442, 01-444 to
01-445 and 01-464.
Criminal Liability
The trial court erred, however, in imposing the penalty of death upon appellants when it appreciated
the circumstance of rape by two or more persons twice -- once as a qualifying, then as an aggravating,
circumstance.
Article 266-B of the Revised Penal Code provides:
ART. 266-B. Penalties. Rape under paragraph 1 of the next preceding article shall be punished
by reclusion perpetua.
Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the
penalty shall be reclusion perpetua to death.
xxx xxx x x x.
From the above, whenever the crime committed is simple rape, the penalty to be imposed is the
single penalty of reclusion perpetua. On the other hand, whenever the rape is committed with the use
of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.
We must note, however, that the Revised Rules of Criminal Procedure, which took effect on
December 1, 2000, requires that the complaint or information should state the qualifying and the
aggravating circumstances with specificity. [37] In the present case, no aggravating circumstance was
alleged in the Informations. Hence, the lesser penalty should be applied, as the Court held in People v.
Sabredo:[38]
The imposable penalty for rape under Article 335 of the Revised Penal Code, as amended by R.A. No.
7659, is reclusion perpetua. But where the rape is committed with the use of deadly weapon or by two
or more persons, the imposable penalty ranges from reclusion perpetua to death. The use of the bladed
weapon already qualified the rape. Under Article 63 of the Revised Penal Code, the crucial factor in
determining whether appellant should be meted the death penalty is the presence of an aggravating
circumstance which attended the commission of the crime. A perusal of the records shows that none of
the aggravating circumstances enumerated in Article 14 of the Revised Penal Code was alleged and
proven by the prosecution. Where there is no aggravating circumstance proved in the commission of
the offense, the lesser penalty shall be applied. [39]
Second Issue:
Conspiracy
Appellants contend that conspiracy did not attend the rapes committed from January 23 to 26 and
on February 14, 2001.
This contention is partly meritorious.
Without specifying whether it was referring to Acua or Acosta, the trial court declared that
appellants were in conspiracy in the rapes committed from January 23 to 26 and on February 14,
2001. From the records, however, it seems that no such conspiracy took place when appellants
separately raped Acosta on those dates. To be appreciated, conspiracy must be shown to have been
committed as clearly and convincingly as the offense itself. [40]
The Rape of Regina Acua
As regards Acua, there was conspiracy only during the rape that occurred on February 14,
2001. We reiterate that, from the records,[41] her account of the rapes that happened from January 23 to
26, 2001 shows that only Arevalo, not Organista, raped her. Furthermore, no conspiracy attended the
rapes on those dates.
On February 14, 2001, both appellants raped her. [42] It was Arevalo who removed her clothes before
Organista raped her.[43] Moreover, when the latter advanced towards her and she pushed him away,
Arevalo -- who was standing inside the same room all the while -- kept egging him on by saying, Kaya
mo yan pre. The latter continued until he consummated his bestial attack upon the victim.
We have held that an overt act in furtherance of conspiracy may consist of lending moral assistance
to the co-conspirators even through ones mere presence at the scene of the crime. [44] In the present
case (Criminal Case No. 01-441), Arevalos presence and words encouraged Organista to pursue his
savage designs.
The Rape of Ruth Acosta
The records of the rape of Acosta from January 23 to 26 and on February 14, 2001, do not support
the finding of conspiracy.
 On January 23, 2001,[45] appellants separately raped her one after the other, but only Arevalo raped
her on January 24, 2001.[46] On January 25[47]and 26,[48] appellants again separately raped her one after
the other, but it was only Arevalo who raped her on February 14, 2001. [49]
Third Issue:
Insanity
Organista argues that the trial court erred in not exempting him from criminal liability, even though
he was insane or completely deprived of intelligence during the commission of the rapes. He avers that
his insanity may be deduced from the following:
First, he cannot remember the events that transpired from January 23 to February 14, 2001,
because the treatments he has been undergoing at the National Center for Mental Health since 1983
have weakened his memory.
Second, Dr. Pia Alma de Jesus of the National Center for Mental Health testified that he had
displayed psychotic symptoms like hallucinations and delusions. She opined that his failure to take his
medications regularly could have caused his relapse.
Third, the behavior and actuations he exhibited before and after the rapes were manifestations of
mental instability. As testified to by his mother, he was violent and destructive to the extent of
habitually setting their home furniture on fire. He even threatened to kill her when she confronted him
on his behavior.
Fourth, the New Bilibid Prison, where he is presently locked up, certified that he still suffers from
chronic schizophrenia.
We are not persuaded.
The law presumes everyone to be sane.[50] The accused who pleads the exempting circumstance of
insanity incurs the burden of proving it. [51] To be adjudged insane under Article 12 of the Revised Penal
Code, he or she must have been completely deprived of reason or discernment and freedom of the will
at the time the crime was committed. [52] For such deprivation to be ascertained, it is but proper to
receive evidence during a reasonable period before or after the commission of the crime, for the mind --
its thoughts, motives and emotions -- may be fathomed only by examining whether the external acts
conform with those of people of sound minds.[53]
In the present case, while Organista had indeed been confined at the National Center for Mental
Health for treatment, it does not necessarily follow that he still suffered from schizophrenia during the
period of the rapes. No convincing evidence was presented by the defense to show that he had not
been in his right mind, or that he had acted under the influence of a sudden attack of insanity, or that he
had generally been regarded as insane around the time of the commission of the acts attributed to
him. Well-settled is the rule that an inquiry into the mental state of the accused should relate to the
period immediately before or at the very moment the act under prosecution was committed. [54] Mere
prior confinement in a mental institution does not prove that the perpetrator was deprived of reason at
the time the crimes were committed.[55]
It must be noted that Organista had been discharged from the mental hospital well before the
period of the rapes. We have held that if the insanity is only occasional or intermittent, the presumption
of its continuance does not arise.[56] One who relies on insanity proved at another time must prove its
existence also at the time of the commission of the offense.[57]
To prove his claimed insanity, Organista presented, as an expert witness on his mental condition, Dr.
Pia Alma S. de Jesus of the National Center for Mental Health. It is important to note that she only began
treating him beginning April 2001, or two months after the rape incidents, [58] upon orders of the trial
court. Referring to hospital records, she narrated that he had been mentally ill since 1982 or 1983 and
had been admitted to the Center a total of 23 times. [59] Prior to the rapes, his last confinement had been
from October 27 to December 1, 1997, [60] again for schizophrenia. Likewise noteworthy is the fact that
this period covering his last admission and discharge prior to the rapes was outside that of the
commission thereof -- January 23 to February 14, 2001. Dr. De Jesus further testified that Organista had
already been considered treated on the date of his discharge in 1997. [61] Though she opined that a
patient who did not continue to take medications could suffer a relapse, she did not categorically state
whether Organista had suffered such a relapse before the commissions of the rape.
On the other hand, the prosecution has sufficiently established that Organista knew exactly what he
was doing. His going to the house of Arevalo and either directly or indispensably cooperating with him --
day after day to ravish the victims -- could not have been the act of one so insane as to be incapable of
entertaining a criminal intent. On February 14, 2001, specifically, Organista continued to ravish Acua
after being coaxed by Arevalo, Kaya mo yan pre.[62] That Organista persisted in the act all the way to
its consummation leaves no doubt that it was voluntary, conscious and deliberate. Moreover, his
attempt to flee when the police officers came to arrest him shows that he knew that what he had done
was condemnable.
Furthermore, Organistas claimed amnesia does not preclude culpability. This charade is evidently a
desperate ploy for exculpation. Failure to remember does not in itself prove the existence of such
mental condition at the time the crime was committed. [63]
 The testimony of Organista himself militates against his credibility and puts his purported amnesia
into serious question. During trial, he said that he could not remember where he had been from January
23 to 26, 2001. Surprisingly, he could remember perfectly well the number of times he had been
treated at the National Center for Mental Health since 1983, what procedure he had gone through each
time he was treated, the kind of medicine he had been given, the number of times Appellant Arevalo
had borrowed money from him without paying, the total amount of money he had lent the former, and
the resentment the latter had often felt whenever his friend would not repay him. Moreover, he could
narrate in complete detail his fabricated story of how he had allegedly met the victims on February 14,
2001, and lent them money only to be later arrested for rape. [64] The prosecution aptly point out that his
selective amnesia and mental dishonesty speak eloquently of his total lack of credibility on the witness
stand.
Finally, Organista is not entitled to the mitigating circumstance under Article 13(9) of the Revised
Penal Code, because it was not shown that his mental illness at the time immediately preceding or at
the very moment of the commission of the crime diminished his will power.
Civil Liability
The trial courts award of damages should be modified. Prevailing jurisprudence holds that for each
count of simple rape, the victim should be awarded P50,000 as civil indemnity and another P50,000 as
moral damages for the injury evidently suffered. [65] This Court has granted moral damages to victims of
rape without need of proof other than the fact of rape, which by itself shows the factual basis for the
award.[66] The award ofP100,000 to each of the victims by way of exemplary damages should be deleted,
because no aggravating circumstance was proven.
WHEREFORE, the October 26, 2001 Decision of the Regional Trial Court of Makati City (Branch 62),
finding appellants guilty of qualified rape, isMODIFIED.
The Court finds Oliver Arevalo y Abanilla Jr. GUILTY beyond reasonable doubt of SIMPLE RAPE. He is
sentenced to suffer the penalty ofreclusion perpetua for each count of rape in Criminal Case Nos. 01-419
to 01-423, 01-425 to 01-428, 01-430 to 01-446, 01-448 to 01-451 and 01-453 to 01-464. Furthermore,
he is hereby ordered to pay the following:
1. To Regina Acua, the amount of P50,000 as civil indemnity and P50,000 as moral damages for
each count of rape in Criminal Case Nos. 01-419 to 01-423, 01-425 to 01-428, and 01-430 to 01-
441
2. To Ruth Acosta, the amount of P50,000 as civil indemnity and P50,000 as moral damages for
each count of rape in Criminal Case Nos. 01-442 to 01-446, 01-448 to 01-451 and 01-453 to 01-
464
Herminigildo Organista y Andres is found GUILTY beyond reasonable doubt of SIMPLE RAPE and is
sentenced to suffer the penalty of reclusion perpetua for each count of rape in Criminal Case Nos. 01-
441 to 01-442 and 01-444 to 01-445. He is likewise ordered to pay the following:
1. To Regina Acua the amount of P50,000 as civil indemnity and P50,000 as moral damages for
each count of rape in Criminal Case No. 01-441
2. To Ruth Acosta, the amount of P50,000 as civil indemnity and P50,000 by way of moral damages
for each count of rape in Criminal Case Nos. 01-442, 01-444 and 01-445
With respect to Criminal Case No. 01-441, both appellants are found guilty of two (2) counts of rape,
for which the penalty of reclusion perpetuafor each count is meted out to them.
Finally, Herminigildo Organista y Andres is ACQUITTED in Criminal Case Nos. 01-419 to 01-422 and
01-443 and 01-464.

30. PEOPLE OF THE PHILIPPINES, appellee, vs. VINCENT HENRY CHUA, appellant.

DECISION

CALLEJO, SR., J.:

Alegria Marie Antonette L. Luciano filed a petition with the Regional Trial Court in Angeles City,
Pampanga for the confinement of her son, appellant Vincent Henry Chua, in a drug rehabilitation center
for drug dependents. On May 20, 1994, the trial court issued an Order granting the petition and
ordering the confinement of the dependent at
[1]
the Gabay Diwa Drug Rehabilitation Center in Angeles City. However, on June 18, 1994, the appellant
escaped from the center. The trial court, thereafter, issued an Order recommitting him to the center
on June 24, 1994,[2] but he again escaped.
 On August 24, 1994, Magalang, Pampanga celebrated its town fiesta and there was a carnival in
Barangay San Nicolas II, Magalang. A closed structure called Wall of Danger [3] was constructed inside
the carnival grounds where stunts were performed. [4] The operator of the carnival, Alfonso Verances, had
a tent inside the grounds where he and the following helpers slept: Francis Ryan Manabat, who was
about twelve years old, Rodelio Santos, Michael (Vandolph) Santiago, Romeo Ignacio (Verances) and Jun
Estanislao. Danilo Bondoc, who was then about eleven years old, would go to the carnival grounds and
would even run errands for the helpers.

At about 1:00 a.m. on August 28, 1994, Manabat was awakened when he heard a woman shouting,
Magnanakaw! Magnanakaw! Santiago, Ignacio and Estanislao were also roused from their sleep. They
asked who the robber was and the woman replied that the culprit was a boy. Santiago, Estanislao and
Ignacio found Bondoc hiding in the ticket booth. They tied his feet and hands with a rope and forced him
to confess, but Bondoc did not relent.

Momentarily, the appellant arrived and brought Bondoc to a covered structure where he was kept
hanging from the top of the ladder. He placed a live electric wire on Bondocs palms and forced the
latter to confess to stealing from the woman. The boy still refused to confess. The appellant untied
Bondoc and brought him to a booth where darts are thrown at balloons. He then ordered
Ignacio, Santiago and Estanislao to guard Bondoc. The appellant then got a shovel and dug a knee-deep
pit near the wall of their house which abutted the carnival grounds. Bondoc was able to flee, but
stepped on a G.I. sheet which created noise. The appellant ran after him and brought the boy back to
the covered structure. The appellant then repeatedly boxed the boy and hit the latter with a piece of
wood (dos por dos) on the neck and jaw. Bondoc fell, barely conscious.

Santos, who by then, had also been awakened by the commotion, saw the appellant hitting Bondoc
with the piece of wood. The appellant then brought the boy to the pit and buried him alive. The
appellant then ordered Manabat, Ignacio, Santiago, Estanislao and Santos to disperse, and warned them
not to divulge the incident to anyone; otherwise, they would be his next victim. The five helpers went
back to sleep.

In the meantime, on August 29, 1994, the RTC issued an Order for the recommitment of the
appellant to the rehabilitation center. [5] A warrant for his arrest for robbery was also issued by the RTC
in People vs. Henry Chua, Criminal Case No. 94-08-58.[6]

On September 1, 1994, Ignacio reported the death of Bondoc, at the hands of the appellant, to Jun
Sia, a radio commentator and a reporter of the Central Luzon Times, and the latters co-worker, Bernie
Chavit. He also reported the killing to the policemen of Police Station No. 1 in Angeles City. Sia, Chavit
and SPO2 Celso de Castro and some policemen of the Magalang police station rushed to the carnival
grounds and had the cadaver of Bondoc exhumed. Photographs of the exhumation and the cadaver
were taken.[7] The policemen then arrested the appellant and brought him to the police station where
Ignacio gave a sworn statement to SPO4 Leonardo C. de Leon identifying and pointing to the appellant
as the assailant.[8]

Dr. Suzette Yalung, the Municipal Health Officer, performed an autopsy of the cadaver of Bondoc and
signed her Report containing her findings,viz:

GENERAL APPEARANCE: Body in a state of decomposition.

HEENT: Caved-in fracture of (L) fronto-parietal area of the skull, caved-in fracture of left lower jaw (+) 6-
inch curvilinear abrasion, (longitudinal) on (L) anterior neck, (+) fracture of cervical vertebrae.

CHEST/ABDOMEN: (+) discoloration & bloaching (sic) all over, body in a state of decomposition.

EXTREMITIES: No fracture, all extremities in flexed position.

CAUSE OF DEATH: Cardio-respiratory arrest due to asphyxiation and severe hemorrhage [Fracture of
cervical vertebrae, (L) lower jaw & (L) fronto-parietal area of the skull.] [9]

On September 8, 1994, an Information was filed with the Regional Trial Court of Pampanga, Branch
57, charging Chua with murder. The accusatory portion of the Information reads:
That on or about the 28th day of August 1994, in Brgy. San Nicolas II, Municipality of Magalang, Province
of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
with intent to kill, qualified by treachery, abuse of superior strength and cruelty, did then and there,
willfully, unlawfully and feloniously assault, attack, box and hit with a piece of wood, a 12-year-old minor
Danilo Bondoc y Ponay, without justifiable reason therefor and as a result of the continuous assault on
the person of Danilo Bondoc y Ponay by the accused, said Danilo Bondoc y Ponay sustained fatal and
serious physical injuries all over his body and accused, thereafter, threw the body of said Danilo Bondoc
y Ponay into a hole dug by the accused and covered the same, resulting to the death of said Danilo
Bondoc y Ponay shortly thereafter, to the damage and prejudice of the heirs of Danilo Bondoc y Ponay.

Contrary to law.[10]

The appellant, assisted by counsel, was duly arraigned and entered a plea of not guilty.

The Case for the Appellant

The appellant admitted to being at the scene of the crime, but claimed that Bondocs assailants
were Ignacio, Santiago and Estanislao. He testified that at about past midnight of August 28, 1994, he
was in the office of the manager at the carnival grounds at Marves Subdivision, where he and his
parents and the Chief of Police of Magalang, resided. He was playing tongking with the helpers of the
carnival. He left for a while and when he returned, saw his cousin, Jomar Basa, and Romeo Ignacio,
inside the covered structure talking about Bondoc who was hanging at the top of the ladder. He wanted
the boy released, but Ignacio refused and assured him that nothing would happen to the boy. Ignacio
tied up Bondoc and brought him to the dart balloon booth. Ignacio also kicked Bondoc and
ordered Santiago and Estanislao to tie up Bondoc. Santiago and Estanislao did as they were told, and
forced him to lie down on his stomach. When he remonstrated to Ignacio, the latter went out to the
covered structure and took a .45 caliber gun. Ignacio warned him not to interfere with the carnival
helpers. He told Santiago to give biscuits to the boy, but Estanislao objected and even warned him that
he was a police officer.

The appellant then left, hearing Bondocs cries as he walked away. When he returned to the place,
he saw the boy being kicked on his feet and palms by Estanislao and Santiago. He asked that Bondoc
be released, but his request went unheeded. On orders of Ignacio, Estanislao got a shovel, and dug a
hole with Santiagos help, while Ignacio watched over Bondoc. Bondoc was able to run away, but
stepped on a G.I. sheet which created noise and alerted the three. Ignacio, Santiago and Estanislao ran
after the boy, collared him and brought him to the covered structure where he was electrocuted by
Ignacio with a wire that Santiago produced. The appellant protested to this, but Ignacio told him that
even if he protested, he would still be implicated anyway.

By this time, the commotion had attracted several bystanders, male and female. Ignacio covered
Bondocs mouth with a handkerchief which was supplied by Santiago. The boy was then brought to a
hole where Ignacio hit him with a piece of wood. Bondoc fell into the hole, whereupon Ignacio buried
him. On orders of Ignacio, Santiago and Estanislao placed garbage on top of the boys grave. Ignacio
warned the appellant that if he revealed the incident to others, he would be implicated. The appellant
then went home and slept. He was awakened by his uncle, Jerry Luciano, who told him that policemen
were looking for him. He was brought to the police station where he was detained and charged for the
death of Bondoc.

Jomar Basa corroborated, in part, the appellants testimony, but testified that the helpers in the
carnival grounds, aside from Ignacio, Santiago and Estanislao, as well as Darwin David and Oliver
Santos, witnessed the crime. He also saw Bondoc being tied and kicked. He asked Ignacio to turn over
custody of Bondoc to him, but Ignacio refused. He left the carnival grounds along with Santos and
David. When they returned, they saw Lovely Ignacio, Romeo Ignacios wife, and asked where the boys
body was, and the latter replied that Bondoc had gone home already.

The appellant presented Rodolfo La Madrid, Geoffrey Alegre, Oliver Santos, Macario Paulino, Jocelyn
Roberto and Rufino Ang, to corroborate his testimony and fortify his defense.

After trial, the court rendered judgment convicting the appellant of the crime charged. The court
declared that the appellant was a minor when the crime was committed; hence, was entitled to the
privileged mitigating circumstance of minority under Article 68 of the Revised Penal Code. The decretal
portion of the decision reads:

WHEREFORE, finding the accused Vincent Henry Chua guilty beyond reasonable doubt of the crime of
Murder, the Court hereby sentences him to suffer the penalty of 17 YEARS, 4 MONTHS and 1 DAY
OF RECLUSION TEMPORAL, as minimum, to RECLUSION PERPETUA, as maximum, with full credit of his
preventive imprisonment.

As to the civil liability, the accused will indemnify the family of the victim as follows:

a. Actual damages in the amount of FIFTY THOUSAND PESOS (P50,000.00);

b. Moral damages in the amount of FIFTY THOUSAND PESOS (P50,000.00);

c. Exemplary damages under Art. 2230 of the Civil Code of an appropriate amount of TWENTY
THOUSAND PESOS (P20,000.00); and

d. Attorneys fees in the amount of FIFTEEN THOUSAND PESOS (P15,000.00).[11]

On appeal, the Court of Appeals rendered judgment affirming the judgment of the trial court, but
applied Article 63 of the Revised Penal Code and increased the penalty to reclusion perpetua. The
appellate court considered the minority of the appellant merely as a generic mitigating circumstance,
and concluded that such minority could not be considered a generic and a privileged mitigating
circumstance at the same time. The appellate court certified the case to this Court for review,
conformably to Rule 124, Section 13 of the Revised Rules of Criminal Procedure.

The Present Appeal

The appellant did not file any supplemental brief with this Court; neither did the appellee.

In his brief with the Court of Appeals, the appellant averred as follows:

THE TRIAL COURT ERRED IN DISREGARDING THE FACT THAT THERE WAS A COVER-UP DONE BY THE
POLICE AUTHORITIES OF MAGALANG, PAMPANGA, AS TO THE REAL IDENTITIES OF THE CULPRITS.

II

THE TRIAL COURT ERRED IN NOT HOLDING THAT THE VERSION OF THE PROSECUTION AS TO THE
ALLEGED INCIDENT IS REPLETE WITH IMPROBABILITIES AND CONTRARY TO HUMAN EXPERIENCE.

III

THE TRIAL COURT ERRED IN NOT HOLDING THAT THE PROSECUTION EYEWITNESSES ARE ACTUATED
WITH BAD MOTIVE IN IMPLICATING THE ACCUSED-APPELLANT AS THE PERPETRATOR OF THE CRIME AND
IN NOT DISCREDITING THE EYEWITNESSES OF THE COMMISSION OF THE CRIME.

IV

THE TRIAL COURT ERRED IN DISREGARDING THE TESTIMONY OF DEFENSE WITNESS

RODOLFO LA MADRID.

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF MURDER.

VI

THE TRIAL COURT ERRED IN NOT CONSIDERING THE MITIGATING CIRCUMSTANCE OF VOLUNTARY
SURRENDER IN FAVOR OF THE ACCUSED-APPELLANT.
VII

THE COURT A QUO ERRED IN ORDERING THE ACCUSED-APPELLANT TO PAY P50,000.00 AS ACTUAL
DAMAGES, P50,000.00 AS MORAL DAMAGES, P20,000.00 AS EXEMPLARY DAMAGES AND P15,000.00 AS
ATTORNEYS FEES.[12]

The appellant asserts that the testimonies of Manabat and Sia are incredible. He contends that he
was only seventeen years old when the crime was committed and, as such, he could not have
committed the crime alone. He insists that there must have been others who assisted him in
electrocuting the victim and in digging a knee-deep hole in which the victim was buried. He laments
that the trial court even ignored the fact that Ignacio was convicted of carnapping. [13]

The appellant also avers that he could not have committed the crime in the presence of onlookers,
and in a place which was only a few meters away from the police station. The appellant claims that
police officers Remigio Layug and Leonardo C. de Leon covered-up the investigation because despite
reports that Ignacio, Santiago and Estanislao were involved in the crime, they were not investigated nor
included in the charge of murder against the appellant. The police officers were even administratively
sanctioned for their misconduct.

The appellant contends that the claims of Manabat and Santos, that they refrained from reporting
the crime because they were afraid of the appellant, are incredible. He avers that the prosecution
presented Manabat and Sia as surrebuttal witnesses when Ignacio and Estanislao failed to appear during
the preliminary investigation in the Municipal Trial Court and during the trial in the RTC. Manabats
testimony that he was from Barangay Camias, San Miguel, Bulacan, was belied by Barangay Captain
Macario Paulino and his certification that Manabat and his family were not residents of the said
barangay.

The Ruling of the Court

The contention of the appellant has no merit.

First. The trial court gave credence and full probative weight to the testimony of the prosecution
witnesses, Manabat and Santos, viz:

The revelation of Manabat and Santos were confirmed by Dr. Suzette Yalung, the one who made the
autopsy on the cadaver of victim Danilo Bondoc, who testified that the cause of death of the victim was
cardio-respiratory arrest and asphyxiation, severe hemorrhage, fracture of cervical vertebrae and left
lower jaw and fracture on the left parietal area of the skull, the very injuries testified to by Manabat and
Santos were the ones found by Dr. Yalung on the body of the victim confirming the authenticity of the
formers testimony.

The evidence also disclosed that victim Danilo Bondoc was tortured by the accused when he ran a 110-
voltage electric wire in the palm and feet of the victim and that the victim was also mauled causing
severe hemorrhage in his body.

Viewing the entire testimony of the witnesses for the prosecution, the Court finds the same to be
consistent and corroborated one another, leading this Court to believe the same.

The Court also noted that Francis Ryan Manabat and Rodelito Santos did not waver but stood pat during
their cross-examinations.

The Court did not find any motive for Manabat and Santos to pinpoint the accused as the culprit. There
is no animosity nor bad blood between Manabat and Santos, on one hand, and the accused, on the other
hand. In fact, Manabat and Santos are afraid of the accused because Vincent Henry Chua is a siga and
matapang as per testimony of Rodelito Santos considering the fact that the family of the accused is
the owner of the lot where the peryahan is located.[14]

The Court of Appeals affirmed the findings of the trial court. The well-settled rule is that the findings
of facts of the trial court, especially when affirmed by the Court of Appeals, are conclusive on this Court
unless the trial court ignored, overlooked or misconstrued facts and circumstances which if considered
warrants a revision or reversal of the outcome of the case. [15] We have reviewed the records and find no
justification to deviate from the trial courts findings.

Second. The appellant failed to prove with clear and convincing evidence the physical impossibility
of digging a knee-deep hole in the ground alone, with the use of a shovel. There is no evidence that the
soil where the appellant dug was hard or even strong. At such a youthful age of seventeen years, the
appellant had the physical strength and stamina to dig a knee-deep hole all by himself.

Third. It is futile for the appellant to argue that it was unnatural of him to have committed the crime
in full view of onlookers. Crimes are known to have been brazenly committed by perpetrators undeterred
by the presence of onlookers or even of peace officers, completely impervious of the inevitability of
criminal prosecution and conviction. In this case, the appellant was a drug dependent, an escapee from
the rehabilitation center and had an outstanding warrant for his arrest for robbery, and an Order for his
recommitment to a rehabilitation center.

The appellants bare denials cannot prevail over the positive, straightforward and unwavering
identification made by Santos and Manabat, that the appellant was the sole perpetrator of the crime.
Thus, we agree with the findings and disquisitions of the Court of Appeals, viz:

Accused-appellant further denies having inflicted any injuries on the victim. He claims it was impossible
for him to beat the boy to death and at the same time dig the small grave where the victims body was
buried.

The evidence on record does not refute in any manner the capability of the accused to commit such acts
of violence. On the contrary, appellants destructive behavior does not run counter to his psychological
profile brought about by his drug dependency at the time of the incident. The record shows that
accused-appellants own mother Ma. Antoinette L. Luciano had filed with the Regional Trial Court
in Angeles City, a petition for the voluntary commitment of the accused-appellant in a drug
rehabilitation center.

However, accused-appellant escaped from the Gabay Diwa Rehabilitation Center, thereby causing
Ronald P. Balatbat, a psychologist of the said center, to recommend to the Angeles City Regional Trial
Court the recommitment of accused-appellant. Acting on said recommendation, said court in its Order
dated June 24, 1994, ordered the recommitment of accused-appellant for continuous treatment. But,
again, accused escaped for the second time, thereby giving rise to another Recommitment Order
dated August 29, 1994.

Clearly, on the day of the fatal incident, accused-appellant was a second-time escapee from the drug
dependency rehabilitation program he was sentenced to undergo. This is indicative of accused-
appellants unwillingness to be rehabilitated from his dependency to drugs. Undoubtedly, accused-
appellants drug dependency was responsible for his violent behavior towards the victim.

Accused-appellants drug dependency and troublesome behavior was no surprise to the peryahan
workers. They were aware that the carnival grounds belonged to the family of accused-appellant who
resides some fifty (50) meters away from the peryahan. The proximity of the carnival grounds to the
house of accused-appellant made it easy for him to frequent the place during daytime and nighttime as
well. The peryahan workers observed accused-appellant as one that displayed a behavior
characterized by them as a bully or siga. Accused-appellants drug dependency, reputation and
influence deterred the peryahan workers, who were mere transients in Magalang, from intervening
while accused-appellant was committing the crime. This was further bolstered when accused-appellant,
who, after burying the victim, threatened the peryahan workers with harm if they would report what
had just transpired to the police authorities. This explains why prosecution witnesses Romeo Ignacio
and Jaime Estanislao were reluctant in divulging any information relative to the fatal incident while they
were still in Magalang, and why they waited until they were relocated to Angeles before going to the
police authorities to report the incident.
Prosecution witnesses Francisco Manabat and Rodelito Santos have positively identified accused-
appellant as the one who inflicted upon the young victim such bodily harm. Manabat vividly recounted
the entire incident from the time the victim was apprehended by the peryahan boys at the instance of
a woman vendor to the time the accused-appellant took custody of the victim and started beating him
which led to his untimely death. Santos who witnessed the accused-appellant struck and hit the victim
with a piece of wood on the neck and jaw, causing the victim to fall down, materially corroborated
this. The rule is the detailed testimony of a witness in a murder or homicide case acquires greater
weight and credibility if it corresponds with the autopsy report. [16]

Fourth. The appellant is not entitled to an acquittal simply because the police investigators did not
include Ignacio, Santiago and Estanislao in their investigation, nor charge them, in tandem with the
petitioner, for the death of Bondoc. The evidence on record shows that the involvement of
Ignacio, Santiago and Estanislao was confined only to the tying of Bondocs hands and feet, on suspicion
for robbery. When the appellant arrived at the scene, he took sole charge, tortured the victim and
buried him alive. The policemen found no basis for charging the other helpers for the death of the
victim. In fine, the appellant cannot invoke as basis for his acquittal the minor and inconsequential
involvement of the helpers. We affirm the findings and disquisitions of the Court of Appeals on this
matter, viz:

Anent the first assignment of error, appellant contends that the trial court erred when it totally
disregarded and ignored the March 15, 1995 Decision of the Regional Director of the Philippine National
Police Command III (PNP RECOM 3) in the administrative case filed by the appellants mother, Ma.
Antoinette Luciano, against P/Insp. Romeo Layug and SPO4 Leonardo de Leon of the Magalang Police
Station, wherein it found as haphazard and irregular the investigation conducted by the aforementioned
officers involving the death of Danilo Bondoc.

We do not subscribe to accused-appellants urgings. Precisely, in due course of this case, accused-
appellant had moved for a reinvestigation in order to determine who are the real culprits who killed the
12-yr.-old boy, which the trial court granted without objection from the prosecution. During the
reinvestigation, the statements of the accused-appellant, together with those of his witnesses, namely,
Joemar (sic) Basa and Oliver Santos, were all re-evaluated. Thereafter, 1stAssistant Provincial Prosecutor
Jesus Y. Manarang stood pat on his finding that a prima facie case for murder exists only with respect to
accused-appellant, and recommended that the Information dated September 2, 1994 filed against the
accused ought to be maintained.[17]

Fifth. The credibility of the testimonies of Manabat and Santos and the probative weight thereof
were not affected by their failure to report the terrifying crime they witnessed, nor by the prosecutions
failure to present Ignacio as witness. As the Court of Appeals declared:

The facts reveal that the peryahan workers were the only witnesses who positively identified the
accused-appellant as the one responsible for inflicting the fatal wounds on the victim. The notorious
behavior and influential family background of the accused-appellant were among the reasons, which
prevented these witnesses from reporting the incident to the police authorities in Magalang. Since they
were all transients, they opted to keep their silence until they were able to transfer toAngeles City where
the authorities there were informed of the incident. SPO2 Celso de Castro of the Angeles Police even
testified that when the case was to be turned over to the Magalang Police, Romeo Ignacio was afraid of
accompanying them to the Magalang police station. On the other hand, reporter Jun Sia of the Central
Luzon Times testified that when he asked Romeo Ignacio why he reported the incident to the Angeles
Police instead of the Magalang Police, the latter replied that accused-appellant was influential in
Magalang, Pampanga.

What is more apparent is the fact that Romeo Ignacio and Jaime Estanislao were so afraid to appear at
the preliminary investigation after having identified accused-appellant and given their respective
statements on September 1, 1994. Nevertheless, the prosecution was able to present other witnesses in
the persons of Francis Manabat and Rodelito Santos who initially refused to testify against the accused-
appellant because they too were afraid of him. Then again, the two finally changed their minds and
thereafter testified as a consequence of their desire to give justice to the victim.

A witness unwillingness to volunteer information regarding a particular crime due to fear of reprisal is
common enough that it has been judicially declared as not affecting a witness credibility. Neither
substantive nor procedural law requires any person witnessing a crime to immediately report the matter
to the proper authorities or to give his statement thereon. Furthermore, the delay in reporting what a
witness knows about a crime does not by itself render his testimony unworthy of belief if such delay has
been adequately explained. It has, likewise, been held that a witness failure to volunteer information to
law enforcement officers does not necessarily impair a witness credibility, and part of the reason for this
is the reticence and fear of some people of getting involved in a criminal case.

Accused-appellant asserts that the trial courts acquiescence of both the testimonies of Francis Manabat
and Rodelito Santos which it later found credible as against that of defense witness Rodolfo La Madrids
rejected testimony was unfair since both testimonies were belatedly given.

The threats to the lives of Francis Manabat and Rodelito Santos were apparent because their kubols
were constructed on the land owned by the family of the accused-appellant whose place of residence
was just a few meters away from the fence of the carnival grounds. On the other hand, Rodolfo La
Madrid was not actually threatened by anyone from testifying, not even Romeo Ignacio, who, less than a
week after the incident, left for Angeles City with his other fellow peryahan workers. By reason thereof,
this Court agrees with the lower court when it found no cogent reason to give credibility to the belated
testimony of Rodolfo La Madrid.

This Court finds no credence in accused-appellants argument that witnesses Francis Manabat and
Rodelito Santos, who are related in some manner with Jaime Estanislao and Romeo Ignacio, were
actuated by improper motive in testifying against appellant.

It would be very difficult to accept the averment of the defense that prosecution witnesses Francisco
Manabat and Rodelito Santos, who were only 14 and 19 years old, respectively, when they testified,
maliciously pointed to accused-appellant as the perpetrator of such a serious crime. Being of tender
age, these two could not have survived a gruelling direct and cross-examination without being detected
or exposed, had they decided to use their imagination in trying to render a detailed account of a
murder. Not only did their testimonies stand the ultimate test of cross-examination but were also in
consonance with the other evidence of the prosecution. It has been repeatedly held that when the issue
is one of credibility of witnesses, appellate courts will generally not disturb the findings of the trial
court. It is clear that the two had no other motive but to render justice to the victim and that of his
family.[18]

In sum, we find the decision of the Court of Appeals finding the appellant guilty beyond reasonable
doubt for the death of Danilo Bondoc to be in accord with the evidence on record and current
jurisprudence.

The trial court convicted the appellant of murder without stating the qualifying circumstance
attendant to the crime. The trial court also appreciated in favor of the appellant the mitigating
circumstance of voluntary surrender and considered such minority as a mere mitigating circumstance.
We shall then modify the decision of the trial court and the appellate court.

The crime was qualified by treachery. The victim, who was barely thirteen years old, was helpless
and unable to defend himself. His feet and hands were tied while the appellant mauled and kicked him,
and hit him with a piece of wood. [19] The appellant was so depraved that he even electrocuted the victim
by placing a live wire on the latters palms and burying him alive. This is borne by the autopsy report of
Dr. Suzette Yalung, which indicates that the victim died because of cardiac arrest due to
asphyxiation. By his detestable acts, the appellant intended to exacerbate the suffering of the
victim. Hence, cruelty was attendant to the commission of the crime. [20] However, cruelty is absorbed by
treachery.

The trial court and appellate court also erred in appreciating the mitigating circumstance of
voluntary surrender in favor of the appellant. He was arrested by the policemen not only for his
involvement in the killing of the victim but also because of the warrant for his arrest for robbery, and the
recommitment order issued by the RTC for escaping from the rehabilitation center.

The appellate court erred, likewise, in appreciating the minority of the appellant merely as a generic
mitigating circumstance. While under Article 13, paragraph 2 of the Revised Penal Code, minority is a
mitigating circumstance, this provision must be construed in relation to Article 68 [21] thereof, which
provides that minority is a privileged mitigating circumstance warranting the reduction of the imposable
penalty by one or two degrees, depending upon the age of the accused. The minority of the accused is
not merely a generic mitigating circumstance but is a privileged mitigating circumstance. Furthermore,
in determining the penalty to be meted on the accused, the trial court must first consider any modifying
circumstance attendant to the crime.

In this case, the appellant was seventeen years old when he committed the crime. Hence, the
imposable penalty must be reduced by one degree, conformably to Article 68 of the Revised Penal
Code. The imposable penalty for murder is reclusion perpetua to death under Article 248 of the Revised
Penal Code, as amended by Republic Act No. 7659. One degree lower than reclusion perpetua to death
is reclusion temporal, conformably to paragraph 2, Article 61, [22] in relation to Article 25 of the Revised
Penal Code.

To determine the minimum of the indeterminate penalty, reclusion temporal should be reduced by
one degree, prision mayor, which has a range of from six (6) years and one (1) day to twelve (12)
years. There being no modifying circumstances attendant to the crime, the maximum of the
indeterminate penalty should be imposed in its medium period. The minimum of the indeterminate
penalty should be taken from the full range ofprision mayor.

IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The Decision of the Court
of Appeals affirming the Decision of theRegional Trial Court of Angeles City, Pampanga, Branch 57,
convicting the appellant Vincent Henry Chua of murder under Article 248 of the Revised Penal Code, as
amended by Rep. Act No. 7659, is AFFIRMED with MODIFICATIONS. Taking into account the minority of
the appellant and the absence of any other modifying circumstance attendant to the crime, he is
sentenced to suffer an indeterminate penalty of from ten (10) years and one (1) day of prision mayor in
its maximum period, as minimum, to fifteen (15) years of reclusion temporal in its medium period, as
maximum. The appellant is ORDERED to pay the heirs of the victim, Danilo Bondoc, Fifty Thousand
Pesos (P50,000) as civil indemnity; Fifty Thousand Pesos (P50,000) as moral damages; and Twenty Five
Thousand Pesos (P25,000) as exemplary damages,[23] conformably to current jurisprudence. No costs.

35. PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FABIAN ULITA, ET AL., defendants.
SANTOS ULITA, SERAPIO ULITA, BERNARDINO ULITA, ALFREDO ULITA, and ISABELO
PACAMALAN,appellants.

Singson and Singson Law Office for appellants.

1st Asst. Solicitor General Guillermo E. Torres and Solicitor Antonio A. Torres for appellee.

BARRERA, J.:

Fabian Ulita, Santos Ulita, Alvaro Ulita, Jose Ulita, Serapio Ulita, Bernardino Ulita, Alfredo Ulita, Isabelo
Pacamalan, Eduardo Malana, Hipolito Asuncion, Joaquin Gammad, and Fausto Caballes, were charged in
the Court of First Instance of Cagayan, with the crime of murder for the killing of Guillermo Tagayuna.
Eduardo Malana, Hipolito Asuncion, Joaquin Gammad, and Fausto Caballes were later excluded from the
information, on the motion of the Fiscal, for lack of evidence. Fabian Ulita pleaded guilty upon
arraignment. After trial, the court found Santos Ulita, Serapio Ulita, Bernardino Ulita, Alfredo Ulita, and
Isabelo Pacamalan guilty of the crime charged, but finding one mitigating and no aggravating
circumstance, sentenced each of them in accordance with the Indeterminate Sentence Law, to suffer the
penalty of 10 years and 1 day of prision mayor, as minimum, to 17 years, 4 months and 1 day
of reclusion temporal, as maximum, and to pay 1/4 of the costs. Jose Ulita and Alvaro Ulita were
acquitted. Fabian Ulita, having pleaded guilty and voluntarily surrendered, was sentenced to suffer the
penalty of 4 years, 2 months and 1 day of prision correccional, as minimum, to 10 years and 1 day
of prision mayor, as maximum, and to pay 1/4 of the costs. Fabian did not appeal.

On their part, Santos Ulita, Serapio Ulita, Bernardino Ulita, Alfredo Ulita, and Isabelo Pacamalan
appealed to the Court of Appeals. However, said court, in its resolution of April 10, 1957, elevated the
case to this Court, in view of its finding that the murder committed by appellants was aggravated by
evident premeditation, without any mitigating circumstance to offset the same and, therefore, the
penalty imposable is at least life imprisonment which, under existing law, it is not authorized to impose.
Pending appeal with the Court, counsel for appellants submitted a motion for new trial based on newly-
discovered evidence consisting of the affidavits of the prosecution witnesses Macario Constantino and
Concepcion Ulita, retracting from the testimony they had given in the lower court, action on which was
deferred by resolution of this Court of January 19, 1959, until the case can be considered on the merits.
These affidavits, we now find, are without merit. In them, the affiants merely recites that their testimony
in open court was not true and that it was given only because they (the two recanting witnesses) were
included in two previous cases of malicious mischief and less serious physical injuries filed by the Ulitas
against the deceased Guillermo Tagayuna and more than 25 others. It appears, however, that these two
minor cases were filed, the first on August 18, 1952 and the other on September 2, 1952 or more than
five (5) months before the killing of Tagayuna, and in the first, the defendants were acquitted on October
17, 1952. Besides, not all the present accused were complainants in those two cases. The pretense,
therefore, that these two witnesses testified as they did during the trial of the case only because they
were "mad at the accused" is too flimsy to merit serious consideration. In the case of People vs. Farol, et
al., (G. R. No. L-9423 and L-9424 prom. May 30, 1958),we held that

. . . resort to the affidavits of recantation ... is becoming rather common. Appellate courts must
therefore be wary of accepting such affidavits at their face value, always bearing in mind that the
testimony which they purport to vary or contradict was taken in an open and free trial in the
court of justice and under conditions calculated to discourage and forestall falsehood, those
conditions being as pointed out in the case of U. S. vs. Dacir (26 Phil. 507) that such testimony is
given under the sanction of an oath and of the penalties prescribed for perjury; that the witness'
story is told in the presence of an impartial judge in the course of a solemn trial in an open court;
that the witness is subject to cross-examination, with all the facilities afforded thereby to test the
truth and accuracy of his statements and to develop his attitude of minds towards the parties,
and his disposition to assist the cause of truth rather than to further some personal end; that the
proceedings are had under the protection of the court and under such conditions as to remove,
so far as is humanly possible, all likelihood that undue or unfair influences will be exercised to
induce the witness to testify falsely; and finally that under the watchful eye of a trained judge his
manner, his general bearing and demeanor and even the intonation of his voice often
unconsciously disclose the degree of credit to which he is entitled as a witness.' Unless there be
special circumstances which, coupled with the retraction of the witness, really raise a doubt as to
the truth of the testimony given by him at the trial and accepted by the trial judge, and only if
such testimony is essential to the judgment of conviction so much so that its elimination would
lead the trial judge to a different conclusion, a new trial based on such retraction would not be
justified. Otherwise, there would never be an end to a criminal litigation and the administration of
justice would be at the mercy of criminals and the unscrupulous. . . . .

And in the case of People vs. Ubia et al., (97 Phil., 515), we stated that "it would be a dangerous rule
for courts to reject testimonies solemnly taken before courts of justice simply because the witnesses
who had given them later on change their mind for one reason or another, for such a rule would make
solemn trials a mockery and place the investigation of truth at the mercy of unscrupulous witnesses."
This Court has, likewise, invariably and consistently refused to entertain and grant motions for new trial
based on affidavits of retraction by witnesses, because of the inherent improbability of the alleged new
versions of the commission of the crime, as well as the easiness and facility with which such affidavits
are obtained (People vs. Monadi, et al., 97 Phil., 575; People vs. Aguipo, G. R. No. L-12123-24, prom. July
31, 1958), and the probability of their being repudiated later (People vs. Galamiton, G. R. No. L-6302,
prom. August 25, 1954). It is not also improbable that said schemes are conceived and carried out for a
consideration, usually monetary. (People vs. Francisco, 94 Phil., 975.) We find, therefore, no reason for
seriously considering, much less acceding, to the appellant's motion for new trial.

Coming now to the merits of the case, according to the evidence and as found by the trial court, at
about 9 o'clock in the morning of January 24, 1953, Guillermo Tagayuna and Macario Constantino went
to the fields at Pallagao, Gattaran, Cagayan. While Tagayuna, followed by Constantino at a distance of
seven (7) meters, was walking along a narrow trial where there were plenty of tall grasses
called tanglares, Santos Ulita, armed with a bolo, suddenly appeared from behind the grasses and
hacked Tagayuna's right arm. Then Fabian Ulita, Bernardo Ulita, and Alvaro Ulita who also were hiding
among the tall grasses rushed at him from behind, on the left side, and hacked his back with their bolos.
Alfredo Ulita then hacked his right leg, causing him to fall to the ground in kneeling position. While in
this position, Serapio Ulita, Jose Ulita, and Isabelo Pacamalan rushed at him. Jose then hacked his left
arm and his head, while Serapio and Isabelo hacked his right arm. The boloes used by the accused were
of the kind known ascalasiaos. Tagayuna shouted for help. Constantino did likewise, having been
stunned by the suddenness of the attack, but nobody came to help them. Constantino then ran away in
the direction of the road. Upon seeing him, Fabian and Alvaro, with boloes in their hands, chased him,
but upon reaching the curve of the road, they gave up. Constantino then turned around and at this
instant, he saw the accused hacking Tagayuna while they encircled him. The latter died as result of the
wounds inflicted on him by the accused. Thereafter, the accused fled.

After the killing, police corporal Isidro Ventura of Gattaran repaired to the scene of the crime. He saw the
dead body of Tagayuna in the rice field. He prepared a sketch (Exh. "N") of the scene, and found within a
radius of 5 meters around said body ("1" in Exh. "N") ten (10) fresh footprints.

A bolo (Exh. "I"), which was one of the 3 boloes entrusted by Santos Ulita and his brothers to Meliton
Daniel in San Vicente, Gattaran shortly after the incident, and surrendered by the latter to Chief of Police
Andres Bucaling, was discovered to have dried blood strains on its blade.

Appellants were apprehended under a warrant of arrest only a week later as they fled to, and hid in
different places after the commission of the crime.

A post-mortem examination of the cadaver of Tagayuna made by Dr. Antonio Nolasco showed that the
victim sustained 21 wounds in various parts of his body. (Exhs. "O", "P", and "P-1".) Of these wounds 14
were inflicted on the frontal side and 7 on the dorsal side. Wound No. 3 (Exh. "P") inflicted frontally on
the parietal region, Wound No. 15 (Exh. "P-1") inflicted dorsally on the neck, cutting the principal veins
and arteries, and Wound No. 16 (Exh. "P-1") also inflicted on the neck, were all necessarily mortal.
Wound No. 7 (Exh. "P"), completely severed the middle fingers of the victim, and Wound No. 8 (Exh. "P")
completely severed his left forearm. All these wounds appear to have been inflicted from different sides
and directions of the body of the victim and by more than one person. Dr. Nolasco attributed the death
of Tagayuna to severe hemorrhage.

Appellants Serapio, Santos, Alfredo, and Bernardino are brothers; while appellant Isabelo Pacamalan is
their brother-in-law. (The other accused who were acquitted, Jose and Alvaro are also their brothers,
while Fabian, who pleaded guilty, is the son of Jose.) There was a standing controversy between the Ulita
family and Tagayuna over the ownership of a parcel of rice land in Pallagao, Gattaran.

The version of the defense regarding the incident is as follows:

On January 24, 1953, at about 7 o'clock in the morning, Fabian Ulita went to harvest palay on the land
leased to him by one Servillano. He was followed later by 6 women, relatives of his. He was harvesting
on the northern part of the ricefield near a path, 30 meters away from the women when he saw
Tagayuna approaching. Upon seeing him, Fabian unsheathed his bolo and stuck the same to the ground.
Tagayuna went near him saying; "What, are you harvesting here also loco?" to which Fabian answered: "I
am harvesting my little ripe palay, Tata. I have to harvest a little because you have harvested to one I
planted on the controverted land." Tagayuna then retorted: "You did not plant anything there, loco" and
Fabian replied: "Why not? You had it harvested. "Infuriated by Fabian's reply, Tagayuna rushed at him
with a club he was holding at the time. Instantly, Fabian picked up his bolo and hit Tagayuna's right arm
below the right wrist, causing the latter to drop his club. Then he delivered blows which Tagayuna tried
to parry with his hands; then he hacked him several times on his left arm until it was severed and gave
him several times on his left arm until it was severed and gave him a "backhand stroke" which hit
Tagayuna on the head, neck, and back. Then he hit him twice on the knee, severing the same on the
second blow and causing the minor wounds described in Exhibit "O", all done in the heat of anger. When
Margarita Natividad (wife of Alfredo Ulita) and her companions saw Fabian hacking the deceased, they
ran away, and while running, they saw 4 PC soldiers on the road. When asked why she was running,
Margarita answered: "Fabian and Guillermo are fighting."

After hacking Tagayuna to death, Fabian saw Constantino and thereupon chased him. After chasing him,
Fabian walked through the rice fields. Thereafter, he saw 4 PC soldiers. He then surrendered to them
saying: "I am coming to surrender. I killed Imong," at the same time delivering his bolo (Exh. "G") to
Corporal Malana. While Fabian was being guarded by Caballes, Malana saw more than 30 followers of
Tagayuna, armed with boloes, walking toward them. He then collected 5 boloes from them. Not long
thereafter, Benita Mamuad, wife of Tagayuna, arrived and went directly to Fabian saying. "Vulva of your
mother Fabian, you killed my husband, I will kill you also." Then she picked up some hardened earth and
threw it at Fabian, angrily shouting: "Vulva of your mothers, the Ulitas. Even women, children and men, I
will send all of you to jail." She also uttered bad words to the PC soldiers.
Appellants defense is alibi, as follows:

Isabelo Pacamalan testified that when Fabian Ulita killed Tagayuna, he was at home lulling his baby to
sleep; that it was his wife who informed him about the killing; that in the afternoon of the same day,
Serapio Ulita dropped at his house and asked him to go with him to town (Gattaran), to advise Atty.
Mandac regarding the incident; and that the latter told him not to return to Pallagao for several days, to
give the followers of Tagayuna time to cool off.

Serapio Ulita, alleged that he was at home convalescing from an illness ("pasma"); that he learned about
the incident from his wife, who got the information from Margarita Natividad; and that as he was afraid
to remain in his house, he went to town (Gattaran) with his brother-in-law, Isabelo Pacamalan, and saw
Atty. Mandac, who advised them to stay away for a while, which they did, until their arrest a week later.

Santos Ulita declared that he was cooking when Margarita Natividad informed him about the incident
and warned him not to go down their house; that his wife, Juanita Baraquio, was then in bed, as she had
delivered 5 days prior to the incident; and that at 2 o'clock in the afternoon of the same day, his brother
Jose, Bernardino, and Alfredo fetched him, and they went to Tuguegarao for the purpose of informing
Atty. Singson that Fabian had killed Tagayuna, returning therefrom at lunch time the following Monday.

Bernardino Ulita averred that he was then at home cooking when Margarita Natividad informed him
about the killing; that his wife had just delivered and was then in bed at the time; and that in the
afternoon of the same day, he went with his brothers Jose, Santos, and Alfredo to Tuguegarao in order to
inform Atty. Singson about the incident.

Alfredo Ulita stated that he was plowing near his house when his wife, Margarita Natividad, informed him
about the incident; and that in the afternoon of the same day, he went with his brothers Jose, Santos,
and Bernardino to Tuguegarao to advise Atty. Singson about the killing.

Appellants have assigned 11 errors allegedly committed by the trial court, all of which we believe
converge on one main issue, namely, whether the evidence adduced by the prosecution warrants the
conviction of appellants of the crime charged. It is a question of credibility of the state witnesses. Where
the issues is one of the credibility of witnesses, the rule is that appellate courts will not generally disturb
the findings of the court a quo considering that it is in better position to decide the question, having
seen and heard the witnesses themselves and observed their deportment and manner of testifying
during the hearing, unless it is shown that it has overlooked certain facts of substance and value that, if
considered, might affect the result of the case. (People vs. Binsol, et al., 100 Phil., 713; 53 Off. Gaz.,
3045; People vs. Villaroya, et al., 101 Phil., 1061.)

After a careful appraisal of the evidence, we agree with the trial court that the guilt of the appellants has
been proved beyond reasonable doubt. We believe that Fabian Ulita pleaded guilty as the sole author of
the crime charged, in order to save his close relatives from imprisonment. His story cannot be believed
at all. As the trial court observed:

Fabian Ulita claims that Guillermo Tagayuna rushed at him when he was harvesting palay and
hacked him (Tagayuna) right then and there. But Tagayuna's cadaver was found where there was
no palay and his legs were stuck into the deep mud up to the thighs. This fact explodes the
theory of self-defense, complete or incomplete . . . .

We believe that the killing of Tagayuna actually took place as narrated by the prosecution witness
Macario Constantino who testified in direct, positive straightforward and credible manner. His testimony
has corroborated in many respects. Concepcion Ulita testified that on the morning in question, when he
was on his way to the rice fields, he saw the 8 accused, armed with boloes, fleeing from the scene of the
crime towards their houses, shouting: "We have killed him" (referring Tagayuna). Policeman Isidro
Ventura, who drew a sketch of the place where the dead body of Tagayuna was found, saw at least 10
fresh footprints near said body, which was stuck in a muddy spot, with tall grasses (tanglares) all
around. The number and location of the wounds (21 in all and in various parts of the victim's body) show
convincingly that Tagayuna's assailants were many and that the wounds could not have been inflicted
by only one person. The bolo (exh. "I") one of the 3 boloes which were entrusted by Santos Ulita and his
brothers (Serapio, Bernardino, and Alfredo) to Meliton Daniel at the latter's house in San Vicente,
Gattaran, was found by chief of police Andres Bucaling to have on its blade dried blood stains. It was not
Fabian alone but the entire Ulita family that had bad blood with the deceased due to the ownership of
certain rice lands. As a matter of fact, the Ulitas had vowed to kill Tagayuna. During the planting season,
prior to the incident, they were overhead by Constantino to have told the deceased: "We will bury you in
one of the rice paddies" (Itambac da ca ditoy). As to the immediate motive of the killing, it will be noted
that on January 23, 1953, or the day before the incident, there arose the question of whether the Ulitas
or the Tagayuna group should harvest the palay on the disputed land between Jose Ulita and Tagayuna,
and the PC soldiers had ordered the deposit of the harvest with the barrio lieutenant, until the
settlement of the dispute. The Ulitas must have deeply resented this, as they had been thereby deprived
of the fruits of their labor in planting the palay. They are, therefore, the ones to have reason to likely
start hostilities and not the deceased. The fact that the accused fled a few hours after the commission of
the offense, clearly indicates their guilty minds. (U. S. vs. Alegado, 25 Phil., 510; U. S. vs. Sarikala, 37
Phil., 486; U. S. vs. Virrey, 37 Phil., 618; Peoplevs. Manalo & Atienza, 46 Phil., 527; People vs. Wilson et
al., 52 Phil., 907; People vs. Gucor, 86 Phil., 157; 47 Off. Gaz. 1621.) We quote with approval the trial
court's finding on its point, to wit:

That the said accused fled a few hours after the commission of the crime, is an eloquent proof of
their guiltespecially when six of them went directly to their respective attorneys for advice, and
two of them went to the friendly P.C. soldiers for protection. What need was there for four of them
to go to Atty. Singson in Tuguegarao to advise him of the killing of Tagayuna by Fabian? What
need was there for two of them to go to Atty. Mandac to tell him same thing? To ask both
attorneys to defend Fabian only? If they were afraid of retaliation from the followers of Tagayuna,
like Alvaro Ulita, they would just have sought the protection of the P.C. soldiers in Pallagao, thus
avoiding expense and trouble.

Coming to their defense of alibi, it should be noted that the respective residences of the accused where
they claim they were at the time of the killing are in the immediate vicinity of the crime. Besides, it has
been stated that alibi is at best a week defense and cannot prevail over the testimony of truthful
witnesses. The reason is that alibi is easy of fabrication (People vs. Badilla, 48 Phil., 781) especially
between parents and children, between relatives, as in the present case, and friends, and even between
those not so related (People vs. De Asis, 61 Phil., 384; People vs. Japitana, 77 Phil., 175). Indeed, even in
those case where proof of the alibi is well-supported by the testimony of witnesses, the alibi would not
be credited when the identity of the accused as the persons who committed the crime is fully
established by clear, explicit, and positive testimony, (U.S. vs. Pascua, 1 Phil., 631; U.S. vs. Hudieres, 27
Phil., 45), as in this case.

There is no reason to believe that the accused had conspired to kill Tagayuna. The form and manner in
which the attack was accomplished (People vs. Tiam, et al., G. R. No. L-36, prom. August 29, 1946) and
the gravity and seriousness of the wounds inflicted on the deceased (People vs. Reyes, 47 Phil., 635),
showed unity of action and purpose. And it is understandable that a community of interest should exist
among the accused, as they were all closely related to each other by blood (People vs. Monadi, et
al., supra.) It is not, therefore, difficult to see that they had strong reasons to hate him and adopt
measures, even radical, to liquidate him.

There can also be no doubt that treachery was present in the commission of the crime, which qualifies
the killing of Tagayuna to murder. It was conclusively shown that the latter was suddenly intercepted
and assaulted by the accused who were then hiding in the surrounding tall grasses (tanglares), thereby
employing means, methods, or forms in the execution of the crime which tended directly and specially
to insure its execution without risk to themselves arising from the defense which the offended party
might make. (Art. 14-16, Revised Penal Code.) When an assault is made with a deadly weapon upon an
unarmed and unsuspecting victim who has given no immediate provocation for the attack, and under
conditions which make it impossible for him to evade the attack, flee, or make defense, the act is
properly qualified as treacherous; and the homicide resulting therefrom is murder. (People vs. Pengzon,
44 Phil., 224; People vs. Sombilon, 83 Phil., 630; 46 Off. Gaz. [Sup. 11] 83.) It is to be noted that there is
here present the circumstance of abuse of superior strength. However, under the circumstances of the
case, we deem it absorbed by the element of treachery.

The trial court found that the aggravating circumstance of evident premeditation was not attendant in
the commission of the crime, for the reason that the incident of January 23, 1953, one day before the
killing, was not an act manifestly indicating that the accused clung to their determination to kill the
deceased. According to the court, it was a mere altercation regarding which of the parties (the Ulitas and
Tagayuna) should get the palay harvested on the land in question. We disagree with the trial court in this
regard. According to its own findings, "the way the ambuscade was made, showed a well-predetermined
and premeditated plan." Tagayuna was hacked on the arms in order that he could not defend himself.
Then they cut his legs so that he could not escape. And when he was already disabled, they surrounded
him and hacked him to death. The intention of the accused to eliminate Tagayuna began during the last
planting season, before the incident, when the accused told him: "We will bury you in one of the rice
paddies." They decided to carry it out on January 23, 1953, when the question arose as to who should
get the harvest. The best solution to their problem was to eliminate Tagayuna. They therefore planned to
ambush him the following morning, knowing that he would return to the land in question. These
circumstances satisfy the requisite of evident premeditation, to wit, "a period sufficient in a judicial
sense to afford full opportunity for meditation and reflection and sufficient to allow the conscience of the
actor to overcome the resolution of his will if he desires to harken to its warnings." (U.S. vs. Gil, 13 Phil.,
530; People vs. Bangug, 52 Phil., 87.) The fitness of the place selected by the accused and the manner
in which they inflicted the wounds on the deceased, all are evidences of such premeditation as to satisfy
the requirement of the statute that it be evident. (U.S. vs. Ricafor, 1 Phil., 173.)

The trial court appreciated the mitigating circumstance of passion and obfuscation in favor of appellants,
because it believed that when the harvest of the land which had been cultivated by appellants was
ordered deposit with the barrio lieutenant by the PC soldiers, they were deprived of the fruits of their
labor and, were therefore, naturally infuriated and obfuscated. But, in order to consider this mitigating
circumstance, it is necessary that there be clear proof of the existence of an act both unlawful and
sufficient to produce such condition of the minds. (U.S. vs. Pilares, 18 Phil., 87; U.S. vs. Sarikala, 37 Phil.,
486; People vs. Alanguilang, 52 Phil., 663.) It will be noted that Jose Ulita, the eldest of the Ulita
brothers, has consented to the making of such a deposit on January 23, 1953. We believe that the order
for the deposit of the harvest cannot be considered unlawful or sufficient to cause obfuscation on
appellants. (See People vs. Noynay, et al., 58 Phil., 393.)

In view of the foregoing we find the appellants guilty of the crime of murder aggravated by evident
premeditation, without any mitigating circumstance. However, for lack of the required number of votes
for the imposition of the supreme penalty of death, the appellants are hereby sentenced to reclusion
perpetua, and the indemnify jointly and severally the heirs of the deceased Guillermo Tagayuna in the
sum of P6,000.00.

Thus modified, the decision appealed from is affirmed, with costs against the appellants. So ordered.

Paras, C. J.

36. PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FELIPE SION @ "JUNIOR," JOHNNY JUGUILON, EDONG SION, FELIX SION @ "ELLET," and
FEDERICO DISU @ MIGUEL," accused.

FELIPE SION @ "JUNIOR" and FEDERICO DISU @ "MIGUEL," accused-appellants.

DAVIDE, JR., J.:

In its decision 1 in Criminal Case No. D-10796 dated 20 January 1993, but promulgated on 8 February
1993, Branch 44 (Dagupan City) of the Regional Trial Court of the First Judicial Region decreed as follows:

WHEREFORE, the Court finds accused Felipe Sion alias "Junior" and Federico Disu alias Miguel
Disu guilty beyond reasonable doubt as principals of the crime of Murder pursuant to Article 248
of the Revised Penal Code, and in view of the attendance of the aggravating circumstance of
cruelty which is not offset by any mitigating circumstance, the two accused are hereby sentenced
to suffer the penalty of Reclusion Perpetua, and to indemnify jointly the heirs of the victim the
sum of P50,000.00 and to pay the costs of the proceedings.

Accused Felipe Sion alias "Junior" and Federico Disu alias Miguel Disu are ordered to pay jointly
the heirs of the victim the sum of P11,910.00 as actual damages.
 SO ORDERED.

Felipe Sion alias "Junior," whose full name is Felipe Rodriguez Sion, Jr. 2 (hereafter appellant Sion), and
Federico Disualias "Miguel" (hereafter appellant Disu), seasonably appealed therefrom to this Court 3 in
view of the penalty imposed. 4

The case against appellants commenced with the filing of a criminal complaint for Murder 5 on 19
November 1991 in Criminal Case No. 2141 (SP-91) before the Fourth Municipal Circuit Trial Court of San
Fabian-San Jacinto in the Province of Pangasinan. Charged with appellants therein were Johnny Juguilon,
Edong Sion, Felix Sion alias "Ellet," and "four (4) other John Does." After appropriate preliminary
examination, Judge Sergio Garcia of said court issued a warrant for the arrest of the accused with no bail
fixed for their temporary liberty. 6 However, the warrant was served only on appellant Disu, while the
rest then remained at large. Upon appellant Disu's motion for bail, to which Asst. Provincial Prosecutor
Restituto Dumlao, Jr., recommended that bail be fixed at P40,000.00 for said accused only, the court
fixed said accused's bail at such amount; and upon filing and approval of the bail bond, appellant Disu
was ordered released. 7 Subsequently, one Atty. Fernando Cabrera filed, for the rest of the accused, a
motion to reduce the bail from P40,000.00 to
8
P20,000.00. As Provincial Prosecutor Dumlao agreed to a reduction of P10,000.00, the court granted
the motion and fixed bail at P30,000.00. None of them, however, filed a bail bond.

For failure of the accused to submit the required counter-affidavits, the Municipal Circuit Trial Court,
finding probable cause against all the accused for the crime of murder on the basis of the evidence for
the prosecution, ordered the transmittal of the record of the case, including the bail bond of accused
Federico Disu, to the Office of the Provincial Prosecutor of Pangasinan for appropriate action. 9

On 21 January 1992, an Information 10 was filed with the Regional Trial Court (RTC), First Judicial Region,
in Dagupan City, Pangasinan, against appellants Sion and Disu and Johnny Juguilon, Edong Sion, Felix
Sion alias "Ellet," and four (4) unidentified persons (designated as John, Peter, Richard and Paul Doe),
accusing them of the crime of murder committed as follows:

That on or about October 16, 1991 in the evening at Brgy. Binday, municipality of San Fabian,
province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, armed with stones and a bladed weapon conspiring, confederating and mutually
helping one another with intent to kill with treachery and evident premeditation did, then and
there wilfully, unlawfully and feloniously hurl with stones, attack and stab Fernando Abaoag
inflicting upon him the following injuries:

stab wound 1 1/2 inches in width, 9 inches in depth between 10-

11 ICS, mid axillary area slanting upwards hitting the left lobe of the
lung

stab wound right lateral side of the neck 1 1/2, inch in depth

stab wound 1 1/2 inches in width, 1 1/2 in depth mid scapular

area, left

contusion superimposed abrasion left eyebrow

which caused his instant death, to the damage and prejudice of his heirs.

CONTRARY to Art. 248, Revised Penal Code.

The information was docketed as Criminal Case No. D-10796 and assigned to Branch 44 thereof.

On 2 June 1992, accused Sion was arrested. 11 Then on 10 June 1992, the RTC annulled and voided the
bail earlier granted to appellant Disu by the MCTC Judge Sergio Garcia for luck of proper hearing, denied
the motion for bail filed by appellant Sion, and ordered their detention in jail. 12

Since only appellants Sion and Disu were arrested, the case proceeded against them only. Upon
arraignment, both pleaded not guilty to the charge and waived pre-trial. 13
The prosecution's witnesses were Cesar and Felicitas Abaoag, the brother and the wife of the victim,
respectively; Dr. Leopoldo Manalo, San Fabian Municipal Health Officer; Rosendo Imuslan, barangay
captain of Barangay Binday; and SPO1 Ricardo Abrio. On the other hand, the defense presented as its
witness appellant Disu; appellant Sion; Corazon Sion, wife of appellant Sion; and Dr. Leopoldo Manalo.

The evidence for the prosecution as established by the testimonies of its witnesses is partly summarized
by the Office of the Solicitor General in the Brief for the Appellee, as follows:

On or about 7:00 o'clock in the evening of October 16, 1991, Cesar Abaoag was at the barangay
road in front of his house situated in Binday, San Fabian, Pangasinan. He was with his elder
brother Carlos Abaoag and Ricardo Manuel (p. 6, TSN, August 20, 1992) when all of a sudden,
Ronnie Manuel arrived coming from the west complaining that he was being chased by Felipe
Sion and Johnny Juguilon (p. 7, TSN, id.). On that same occasion, Fernando Abaoag also arrived at
the scene. He said to Ronnie, "why Ronnie, you are making trouble again." The latter answered, "I
am not making trouble uncle because while I was inside the house of Eling Alcantara, Felipe Sion
and Johnny Juguilon were trying to stab me. (p. 8, TSN, id.). Seconds later, Felipe Sion and Johnny
Juguilon appeared and started throwing stones. Fernando Abaoag told them to stop throwing
stones but before they desisted and left, one of them uttered "even you Andong, you are
interfering, you will also have your day, vulva of your mother, you Abaoag[s]" (pp. 9-10, id.)
Apparently, the utterance was directed against Fernando Abaoag whose nickname is Andong.

Subsequently thereafter, at about 9:00 o'clock on that same evening, Cesar Abaoag while inside
his house lying down on his bed heard the sound of stone throwing at the nearby house of his
brother Fernando. He went out to see who were throwing stones (14, TSN, id.). When already
near the house of Lolly Galdones, Cesar Abaoag saw his brother Fernando already outside his
house. He also saw Johnny Juguilon, one of the members of the group of stone throwers, hurl a
big stone against Fernando. Upon being hit on the left eyebrow, Fernando turned his back
towards Felix Sion, Edong Sion and Miguel Disu who were also throwing stones towards his
direction. On the other hand, appellant Felipe Sion, who was near the victim, with a very sharp
double bladed dagger, stabbed Fernando, first on the left side just below the armpit, then on the
left waistline and finally on the right side of the neck below the jaw (pp. 18-19, TSN, id.).

Cesar tried to extend help to his brother but Miguel Disu hurled a stone on him which landed on
his right side below the armpit. When he heard Felipe Sion shouting to his companions saying,
"we will also kill Cesar," Cesar desisted in helping brother (pp. 22-23, TSN, id.). Instead, he ran to
his brother's house and informed Felicitas, the wife, about the helpless condition of Fernando (pp.
22-23, TSN, id.). Upon being informed, Felicitas accompanied by Carlos Abaoag, went to the place
of the incident. The assailants were no longer there. She only saw her husband lying prostate on
the ground very weak in the state of dying. When she inquired what happened, Fernando
answered "naalaak" which in English means "I was hit" (pp. 4-5, TSN, July 27, 1992). Fernando
told his wife that his assailants were Felipe Sion, Miguel Disu, Edong Sion, Johnny Juguilon and
Felix Sion (p. 6, TSN, id.)

The victim was rushed to St. Blaise Hospital in San Fabian but he was pronounced dead on arrival
(pp. 24-25, TSN, August 20, 1992).

Dr. Leopoldo Manalo, a Municipal Health Officer of San Fabian, Pangasinan conducted post
mortemexamination (Exh. A) on the body of the victim. The result of his findings showed that
Fernando Abaoag sustained the following injuries, to wit:

1) stab wound 1 1/2 inches in width, 9 inches in depth between 10-11, ICS, mid axillary area
slanting upwards hitting the left lobe of the lung

2) stab wound right lateral side of the neck 1 1/2 inches in width, 1 1/2 inch in depth

3) stab wound 1 1/2 inches in width, 1 1/2 in depth mid scapular area, left

4) contusion superimposed abrasion left eyebrow. 14

Dr. Manalo further testified that the stab wounds were caused by a sharp-pointed instrument, possibly a
dagger, with the first wound hitting the lower lobe of the left lung causing severe bleeding and its
eventual collapse. He determined the cause of death to be hemorrhagic shock secondary to multiple
stab wounds. 15

Barangay Captain Imuslan testified that he and Kagawad Fernando Gatchalian, on the night of the
incident, found a small bolo and a bloodied double-bladed weapon (dagger) near the scene of the
crime. 16 Cesar Abaoag recognized this weapon as the one used by appellant Sion in stabbing the
victim. 17 On her part, Felicitas Abaoag declared that she spent more than P11,000.00 for the wake and
burial of her husband whose death saddened her, she being left alone to take care of their children. 18

In his defense, appellant Sion, brother and cousin of accused Edong 19 Sion and Felix Sion alias "Ellet,"
respectively, admitted that on the night in question, he participated in a stone-throwing incident and
"free-for-all rumble" between his group (the Sions and Johnny Juguilon) on one hand, and the Abaoags
and Manuels, on the other. However, he professed his innocence, claiming that it was his brother Edong
Sion and Johnny Juguilon who stabbed the victim. 20 His version of the incident was summarized by the
trial court, thus:

On October 16, 1991 at about 7:00 p.m., he, together with Johnny Juguilon went to the house of
Eling Alcantara as he wanted to talk with his son, his friend. Ronnie Manuel was already there
when they arrived. While at the place, Johnny Juguilon and Ronnie Manuel came out and started
fighting with each other. Ronnie and Manuel ran and proceeded to the place of his cousin. He was
pacifying Johnny Juguilon and Ronnie Manuel but Johnny Juguilon threw stones at Ronnie Manuel.
At this point, Fernando Abaoag intervened in the quarrel saying, "vulva of your mother Johnny,
you are too much, you will also have your day." Johnny Juguilon answered "vulva of your mother
Andoy, do not interfere because you are not our enemy." After the verbal exchange, he took
Johnny Juguilon to their (Sion's) house . . . . At about 9:00 p.m., that same evening, they stoned
their house, its sides and the stairs. He and Idong and Johnny Juguilon looked for Cesar Abaoag,
Ronnie Manuel, Ricky Manuel, Andong Abaoag and two (2) other companions. They were at the
place of Marta Soriano. After that, they still threw stones towards them. There was a free for all
rumble between Ronnie Manuel, Ricky Manuel, the Abaoags and Idong Sion, and Johnny Juguilon,
Ellet Sion and himself, in front of the house of Loly Galdones. He denied the testimony of Cesar
Abaoag that he stabbed Fernando Abaoag three times and before he was stabbed Johnny
Juguilon stoned him (Fernando Abaoag). It was Idong Sion and Johnny Juguilon who stabbed
Fernando Abaoag. After Fernando Abaoag was stabbed, they ran away. His group also ran away.
He went home and rushed towards Johnny Juguilon because he was stabbed. He brought Juguilon
to the St. Blaise Clinic and Hospital. He did not report the incident to Barangay Captain Rosendo
Imuslan. On October 17, 1:00 p.m., he presented himself to Kagawad Lagman who brought him
to the Police Station . . . . 21

In his defense, appellant Disu offered denial and alibi. He declared that he had no participation in the
killing of Fernando Abaoag, and during the whole night of 16 October 1991, while the quarrel, stoning
and stabbing incidents in question were taking place, he was resting and sleeping in the house of his
employer, Felicidad Gatchalian, after driving the latter's jeepney the entire day. However, before
proceeding home from work that afternoon, he went to the store of Oping Juguilon to buy cigarettes and
dropped by the house of appellant Sion where he stayed for about five minutes. He only learned about
the killing the following morning when he was told that he was one of the suspects. He was arrested
about a month after the incident. 22

On rebuttal, Cesar Abaoag refuted the testimony of appellant Sion. Cesar asserted that neither his
brothers, the Manuels nor himself threw stones at Sion's house; there was no free-for-all fight between
the Sions and the Abaoags; Johnny Juguilon and Edong Sion merely threw stones at, but did not stab,
Fernando Abaoag; and it was only appellant Sion who stabbed Fernando Abaoag. 23

After the conclusion of trial, the court granted appellants' motion to file a memorandum within fifteen
days. Despite the extension given, appellants' counsel did not file the memorandum. Thus, in its order of
11 December 1992, the trial court declared the case submitted for decision. 24

On 8 February 1993, the trial court promulgated its decision, 25 the dispositive portion quoted in the
introductory paragraph of this ponencia.

As to the culpability of appellants Sion and Disu, the trial court found:
 The defense of accused Federico Disu alias Miguel Disu and Felipe Rodriguez Sion, Jr. deserve
scant consideration. Cesar Abaoag narrated in detail how his brother Fernando Abaoag was
stoned by accused Johnny Juguilon, Federico Disu and Felix Sion and how accused Felipe Sion
stabbed Fernando Abaoag three times. Cesar Abaoag saw Johnny Juguilon throw stone hitting the
left eyebrow of Fernando Abaoag, and when his brother (Fernando Abaoag) turned left, accused
Federico Disu alias Miguel Disu, Idong Sion and Felix Sion simultaneously threw stones toward
him (Fernando Abaoag). Then, at a distance of two (2) meters, Cesar Abaoag saw accused Felipe
Sion stab Fernando Abaoag three times, hitting the left side below the armpit, then on the left
waistline and the right side of the neck below the jaw of the deceased with the use of a sharp
double bladed dagger.

Cesar Abaoag could not be mistaken in the identification because he was two meters away when
he saw the accused Felipe Sion stab his brother, and, moreover, there was a light illuminating the
place of the incident coming from the houses of Marta Soriano and Loly Caldones. Cesar Abaoag
identified the dagger (Exhibit D).

The narrations of Cesar Abaoag are bolstered by the testimony of Dr. Leopoldo Manalo, the
doctor who conducted the postmortem examination on the cadaver of Fernando Abaoag. Dr.
Manalo stated that "stab wound 1 1/2 inches in width, 9 inches in depth between 10-11 ICS, mid-
axillary area slanting upwards hitting the left lobe of the lung" is located below the left armpit.
The second stab wound, "stab wound right lateral side of the neck 1 1/2 inches in width, 1 1/2 in
depth," is located at the right side of the nec[k] at the back. The doctor stated that the wounds
were caused possibly by a dagger.

Finally, it is well to quote the statement uttered by Fernando Abaoag in the presence of Felicitas
Abaoag, to wit: "naalaak, which means, I was hit, take note of this because I cannot survive these
injuries of mine". Fernando Abaoag told Felicitas Abaoag, Felipe Sion, Miguel Disu, Idong Sion,
Johnny Juguilon and Felix Sion stabbed him. (2-12 tsn July 27, 1992). This is a dying declaration
because it was made under a consciousness of impending death (Section 37, Rule 130, Rules of
Court). 26

The trial court likewise found that conspiracy was duly established by the prosecution, thus:

As stated in the decision, accused Johnny Juguilon threw stone, hitting the left eyebrow of
Fernando Abaoag, and Edong Sion, Felix Sion and Federico (Miguel) Disu simultaneously threw
stones upon the deceased, while accused Felipe Sion alias "Junior" stabbed him (victim) three
times, resulting in the latter's death. 27

It then appreciated against appellants (a) the qualifying circumstance of treachery because the "attack
was so sudden that the victim had no time to defend himself" and (b) the generic aggravating
circumstance of cruelty because "there were three stab wounds" and the first wound which "caused
severe bleeding and collapse of the lung" and the death of Fernando Abaoag "was deliberately
augmented by inflicting the other wounds which are unnecessary for its commission." 28 It did not,
however, appreciate evident premeditation for lack of "substantial" evidence; 29 nor give the benefit of
voluntary surrender in favor of appellant Sion since his surrender was merely "forced by circumstances,"
as he "presented himself to Kagawad Lagman because he was suspected as one of the persons who
stabbed the victim." 30

Appellants, through counsel, seasonably filed their Notice of Appeal. 31

In their eight-page Appellant's Brief, filed by counsel de oficio Atty. Iris L. Bonifacio, 32 appellants plead
for their acquittal, contending that the trial court erred: (1) in convicting them of murder; (2) in taking
into account the aggravating circumstance of cruelty; (3) in ruling that conspiracy was established; (4)
in not appreciating the presence of voluntary surrender; and (5) in disregarding the defense of appellant
Sion that it was Edong Sion and Johnny Juguilon who were responsible for the death of Fernando Abaoag.

In support of their first assigned error, appellants attack the identification made of them by prosecution
witnesses. They claim that if witness Cesar Abaoag actually saw appellant Sion stab the victim, then
Cesar should have immediately informed Felicitas Abaoag, the victim's wife, of this fact. Cesar's failure
was then unusual and unnatural. Then, too, Felicitas Abaoag's testimony on her husband's alleged dying
declaration was "not specific" as far as the assailant's identities were concerned because the victim
merely said "naalaak" ("I was hit"), without identifying appellant Sion as the one who stabbed him; and,
her claim that her husband identified all the five (5) accused as the ones who "stabbed" him was "an
impossibility." Moreover, the prosecution witnesses were limited to relatives of the victims; "other vital
witnesses" such as Marta Soriano, Loly Galdones, or Eling Alcantara should have been presented to
corroborate the "biased" testimonies of Cesar and Felicitas Abaoag.

Appellants further contend that: (1) there was no treachery since the stabbing of the victim was not
"sudden"; (2) cruelty was not proven because "there is no clear testimony" that the first stab wound was
fatal and the second and third wounds were "unnecessary"; (3) conspiracy cannot be deduced from the
mere fact that all the accused threw stones at the victim before the stabbing; (4) appellant Sion
voluntarily surrendered even before the police started investigating the case when he was not yet a
suspect; and (5) appellant Sion could not have testified that it was Edong Sion and Johnny Juguilon who
stabbed the victim if such were not true, considering that the former is his brother and the latter his
barriomate; and (6) appellant Sion bore no grudge against the victim and did not escape.

On the other hand, the Office of the Solicitor General, in its Brief for the Appellee, supports the trial
court's findings and conclusions, except as to the appreciation of cruelty, which it concedes to be
erroneous.

Our careful review of the record of the evidence adduced by the parties convinces us that prosecution
witness Cesar Abaoag positively identified appellants as being present during the incident in question
and saw appellant Sion stab the victim thrice. As correctly found by the trial court:

Cesar Abaoag could not be mistaken in the identification because he was two meters away when
he saw the accused Felipe Sion stab his brother, and, moreover, there was a light illuminating the
place of the incident coming from the houses of Marta Soriano and Loly Caldones. Cesar Abaoag
identified the dagger (Exhibit D).

Cesar Abaoag also saw the rest of the accused, including appellant Disu, throwing stones at the victim.
He was definite, however, that it was only accused Johnny Juguilon who was able to hit the victim at the
left eyebrow. The three stab wounds inflicted by appellant Sion and the injury at the left eyebrow caused
by the stone thrown by Juguilon jibed with the post mortem findings of Dr. Manalo as he described the
injury on the left eyebrow as "contusion superimposed abrasion left eyebrow." 33 If Cesar had any ulterior
motive to testify against appellant Disu, he could have declared that it was Disu, and not Juguilon, who
hit the victim with a stone. Cesar then honestly narrated what he observed.

That Cesar did not at once inform Felicitas Abaoag that it was appellant Sion who stabbed her husband,
was not proof, as appellants suggest, that Cesar was absent from the crime when it was committed.
Cesar's presence was admitted by appellant Sion himself on direct examination, thus:

Q Did you see Cesar Abaoag on that occasion anywhere near Fernando Abaoag
when you said he was stabbed by Johnny Juguilon and Idong Sion?

A Yes, sir. 34

Furthermore, Cesar satisfactorily explained his failure to forthwith inform Felicitas of this fact. At that
time, Cesar himself was running away from the accused who had hit him with a stone. His pressing
concern then was to get someone to help his wounded brother; besides, he was scared of accused Felix
Sion, uncle of appellant Sion, who was a "notorious" character in their neighborhood. 35 It is settled that
delay in divulging the name of the perpetrator of a crime, if sufficiently explained, does not impair the
credibility of the witness nor destroy its probative value. 36 In any event, in his sworn statement 37 which
was submitted on 22 October 1991 before Judge Sergio Garcia, he narrated what he had witnessed and
mentioned appellants Sion and Disu as among the perpetrators of the crime.

The identifications of appellants and their co-accused were further bolstered by the declaration made by
the victim to his wife, Felicitas Abaoag. The trial court correctly characterized this as a "dying
declaration," 38 having been made under the consciousness of impending death. The victim was already
weak his wife saw him and he knew that he would not survive the injuries he sustained; he even died a
few minutes later while on the way to the hospital. 39 When Felicitas saw her husband, he told her what
had happened to him, who caused his injuries and that he did not expect to live, thus:
 Q What happened next after that when you met your husband?

A Immediately asked him what happened to him.

Q And what was the answer of Fernando Abaoag?

A He said, "naalaak," which means, I was hit.

COURT:

Q Did you ask him why he said "naalaak"?

A He said he was stabbed and he was injured.

Q What do you mean by word "naalaak"?

A I was hit.

COURT:

Proceed.

PROSECUTOR DUMLAO:

Q Do you know the reason why he was hit?

A What I understand is that in the course of his pacifying the trouble between his
nephew and the rest, he was stabbed, sir.

Q Aside from the statement of your husband Fernando Abaoag that he was hit,
what else did he say, if you know?

A He said, take note of this because I know I cannot survive with these injuries of
mine.

COURT:

Q What else did he tell you aside from that?

A He said, remember that in case I cannot survive with the injuries that I
sustained, the men who stabbed me are Felipe Sion, Miguel Disu, Idong Sion,
Johnny Juguilon and Felix Sion, sir. 40(emphasis supplied)

We find these statements given by the victim to his wife to have met the requisites of a dying
declaration under Section 37 of Rule 130 of the Rules of Court, viz: (a) death is imminent and the
declarant was conscious of that fact; (b) the preliminary facts which bring the declaration within its
scope must be made to appear; (c) the declaration relates to the facts or circumstances pertaining to
the fatal injury or death; and (d) the declarant would have been competent to testify had he
survived. 41 Dying declarations are admissible in evidence as an exception to the hearsay rule because
of necessity and trustworthiness. Necessity, because the declarant's death renders impossible his taking
the witness stand, and it often happens that there is no other equally satisfactory proof of the crime;
and trustworthiness, for it is "made in extremity, when the party is at the point of death and every hope
of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most
powerful consideration to speak the truth. 42 We find no ulterior motive on the part of Felicitas to
fabricate the declarations of her husband.

We likewise find to be without basis appellants' claim that all the prosecution witnesses were biased due
to their relation to the victim's family. Plainly, witnesses Imuslan (the barangay captain) and Dr. Manalo
were not related to the victim, while the relationship of witnesses Cesar Abaoag and Felicitas Abaoag to
the victim, as brother and wife, respectively, neither disqualified them as witnesses nor rendered their
testimony unworthy of belief. It is not to be lightly supposed that relatives of the deceased would
callously violate their conscience to avenge the death of a dear one by blaming it on persons whom they
believe to be innocent thereof. 43 A witness' relationship to a victim, far from rendering his testimony
biased, would even render the same more credible as it would be unnatural for a relative who is
interested in vindicating the crime to accuse somebody other than the real culprit. 44

Neither was the failure of the prosecution to present other witnesses, such as those mentioned by the
appellants, fatal to the cause of the People. It is well-settled that the decision as whom to present as
witnesses for the prosecution is addressed to the sound discretion of the prosecutor handling the case
and the non-presentation of certain witnesses by the prosecution is not a plausible defense. 45 The
prosecution is not obliged to present all possible witnesses, especially if their testimony will only serve
to corroborate that of another eyewitness' testimony, in which case the former may every well be
dispensed with considering that the testimony of a single witness, if credible and positive to prove the
guilt of the accused beyond reasonable doubt, would suffice. 46

The trial court correctly rejected appellant Sion's defense that it was not he who stabbed the victim, but
his brother Edong Sion and Johnny Juguilon, both of whom fled after the incident. Constituting a mere
denial of Cesar Abaoag's positive testimony that it was appellant Sion who stabbed the victim, such
must fail in light of the settled rule of evidence that positive testimony is stronger that negative
testimony. 47 Moreover, the claim was made rather late in the day, casting serious doubt as to its
veracity. From the time that appellant Sion presented himself to Kagawad Lagman and the police
authorities on 17 October 1991, and during his subsequent incarceration, he never told anyone nor
made any statement that he was not one who stabbed the victim; he did not even so inform his close
relatives, not even his wife who visited him in jail. 48 Also, during the preliminary investigation, when he
had the opportunity to submit counter-affidavits and other evidence to refute the charges, he did not
care to dispute the statements of Felicitas and Cesar Abaoag identifying him and detailing his
participation in the crime. 49 He raised this claim for the first time only during his testimony in court
almost one (1) year after the stabbing incident and his initial surrender, and notably, only after the hope
of apprehending Idong Sion and Johnny Juguilon, together with the other accused, already seemed
remote. Such failure to immediately disclose the information as soon as he was implicated in the crime
and his prolonged silence on a vital matter hardly inspire belief, being unnatural and inconsistent with
ordinary habits of men and common experience.

That appellant Sion did not flee, unlike his brother Edong and Johnny Juguilon, neither proved his
innocence. Non-flight unlike flight of an accused which validly serves as a badge of guilt is simply
inaction which may be due to several factors; hence, it should not be construed as an indication of
innocence. 50

Appellant Sion's claim of lack of ill-feeling or grudge against Fernando Abaoag was belied and
contradicted by his admission in court that just before the stabbing of the victim, he and his co-accused
hurled stones at and fought with the Abaoags, including Fernando, whom he blamed for allegedly
stoning his house. 51 It is also belied by his actuation and utterance made earlier in the evening of 16
October 1991 when Fernando Abaoag interfered in the quarrel between appellant Sion and Fernando's
nephew, Ronnie Manuel, which prompted appellant Sion and Johnny Juguilon to curse and warn
Fernando, thus: "even you Andong [Fernando Abaoag] you are interfering, you are siding with your
nephew Ronnie Manuel, you have also your day . . . . you Abaoags." 52 Appellant Sion also admitted that
he "had an ill-feeling towards" Ronnie Manuel, the victim's nephew, because "he was making trouble"
inside his jeepney "5 days before the incident." 53

In light of the positive identification of appellants, appellant Disu's alibi must fail.

It is settled that alibi is a weak defense for it is easy to concoct and fabricate; it cannot prevail over and
is worthless in the face of the positive identification by credible witnesses that an accused perpetrated
the crime. 54 We are unable to discern any plausible reason, and appellant Disu does not offer any, why
he should be falsely implicated by Cesar Abaoag and mentioned in the victim's dying declaration as one
of the victim' assailants, if appellant Disu was not actually present during the incident and had no
participation in the commission of the crime. As to his motive or lack thereof, appellant Disu claims that
he had no misunderstanding with Fernando Abaoag or his family. 55 However, Felipe Sion, Jr., disclosed
that appellant Disu was close to the Sion clan, which explains why appellant Disu sympathized with and
joined the Sions and Juguilon in assaulting the victim: Federico Disu was Sion Jr.'s jeepney conductor for
five (5) months, the latter teaching the former how to drive for three (3) months; and when Disu became
a driver himself, they had the same route and saw each other every day at the poblacion. 56 Disu even
admitted that on 16 October 1991, after 5:00 p.m., he "dropped by" the house of Felipe Sion, which he
often did before. 57

We now rule on the presence or absence of conspiracy. There is conspiracy when two or more persons
come to an agreement concerning the commission of a felony and decide to commit it. 58 Direct proof of
a previous agreement to commit a crime is not necessary; it may be deduced from the mode and
manner in which the offense was perpetrated, or inferred from acts of the accused themselves when
such point to a joint purpose design, concerted action and community of interest. 59 Once conspiracy is
established, the act of one is the act of all. 60

In this case, appellants and the other accused were already at the barangay road of Binday, near the
houses of Lolly Galdones and Marta Soriano, when Fernando Abaoag, who was looking for the persons
who just stoned his house several times, and Cesar Abaoag, arrived. Immediately, Johnny Juguilon threw
a stone at Fernando hitting him on the left eyebrow; then, Edong, and Felix Sion and appellant Disu,
"simultaneously" threw stones, also at Fernando. As Fernando turned away from his assailants, appellant
Sion "rushed" and stabbed the victim three (3) times, even as the latter raised his arms saying, "I will
not fight back." When Cesar Abaoag tried to help his brother Fernando, appellant Disu threw and hit
Cesar with a stone. Appellant Sion then commanded his companions to also kill Cesar, prompting the
latter to run away. Then the assailants fled, leaving behind a small bolo and a dagger. The confluence of
their acts indubitably manifested a community of interest and unity of purpose and design to take
Fernando Abaoag's life.

We also find to be unsupported by evidence appellant's claim, through the testimony of appellant Sion,
that the fatal stabbing of Fernando Abaoag was a result of a "free-for-all rumble," thereby possibly
tempering their liability to that of causing death in a tumultuous affray under Article 251 of the Revised
Penal Code, which carries a penalty lower than that for homicide. 61 In this case, it was ascertained
beyond doubt that appellant Sion inflicted the fatal stab wounds; hence, this claim must be rejected.

Having resolved appellants' liability for Fernando Abaoag's death, we now rule on the circumstances
attendant to the commission of the crime.

In convicting appellants of murder, the trial court considered the qualifying circumstance of treachery,
and disregarded the qualifying circumstance of evident premeditation, which was likewise alleged in the
information. We agree as to the latter as the prosecution failed to prove the essential elements of
evident premeditation, viz: (a) the time when appellants determined to commit the crime; (b) an act
manifestly indicating that they clung to their determination; and (c) a sufficient lapse of time between
such determination and execution to allow them to reflect upon the consequences of their act. 62

We disagree, however, with the trial court's finding as regards the qualifying circumstance of treachery.
Under the law, there is treachery when the offender commits any of the crimes against the person,
employing means, methods, or forms in the execution thereof which tend directly or specifically to
ensure its execution, without risk to himself arising from the defense which the offended party might
make. 63 We find no clear and convincing evidence of treachery. Cesar Abaoag's testimony as to how his
brother was attacked lacks sufficient detail showing conclusively that the mode and manner of the
assault rendered the victim entirely defenseless. He merely testified that when he and his brother
proceeded west of the barangay road of Binday, he saw Johnny Juguilon stone his brother and hit him on
the left eyebrow. Fernando Abaoag then turned to the left with his back towards Felix Sion, Edong Sion,
Miguel Disu and the four (4) other unidentified companions, who then "simultaneously" threw stones at
Fernando. "Seconds later," Cesar saw appellant Sion holding a very sharp double bladed dagger and
stab his brother three (3) times; Fernando Abaoag, when stabbed, "was just standing and said 'I will not
fight.'" 64 They were six (6) meters away from Johnny Juguilon when the latter first hurled a stone at
Fernando which signaled the other accused to the same. 65

Considering therefore the distance between the assailants and the victim when the attack commenced,
and the fact the three were two (2) waves of stoning which preceded the stabbing of the victim, these
should have sufficiently forewarned him of the greater danger which loomed and prompted him to
escape. Moreover, in light of the absence of clear details showing conclusively that the stabbing was
inflicted from behind or the victim was entirely helpless when stabbed, we are not prepared to conclude
that the attack was "so sudden and unexpected" as to render the victim entirely defenseless. Treachery
cannot qualify the killing to murder when the victim was forewarned of the attack by the assailant, or
when the attack was frontal, or the attack was not so sudden as to have caught the deceased
completely unaware. 66 Furthermore, the evidence does not disclose that the means of execution were
deliberately or consciously adopted by appellants.

Absent then of any qualifying circumstance, the crime committed was homicide as defined and
penalized under Article 249 of the Revised Penal Code.

The trial court likewise erred in appreciating against appellants the generic aggravating circumstance of
cruelty, 67based solely on the fact that the victim was stabbed thrice, with the first stab wound hitting
the lower left lung causing severe bleeding and its collapse. In fact, appellee concedes this error of the
trial court. Cruelty cannot be appreciated in absence of any showing that appellants, for their pleasure
and satisfaction, caused the victim to suffer slowly and painfully and inflicted on him unnecessary
physical and moral pain; and, the mere fact that wounds in excess of what was indispensably necessary
to cause death were found on the body of the victim does not necessarily imply that such wounds were
inflicted with cruelty and with the intention of deliberately intensifying the victim's suffering. 68 In the
instant case, the evidence only shows that the three (3) stab wounds were delivered in succession,
nothing more.

We agree with appellants that appellant Sion is entitled to the benefit of the mitigating circumstance of
voluntary surrender, which requires that "the offender voluntarily surrendered himself to a person in
authority." 69 Its requisites are: (a) the offender had not been actually arrested; (b) the offender
surrendered himself to a person in authority or to the latter's agent; and (c) the surrender was
voluntary. 70 For a surrender to be voluntary, it must be spontaneous and show the intent of the accused
to submit himself unconditionally to the authorities, either: (1) because he acknowledges his guilt; or (2)
because he wishes to save them the trouble and expense incidental to his search and capture. 71

As shown by the records, in the afternoon of 17 October 1991, appellant Sion "presented" himself to
Kagawad Modesto Lagman who, in turn, "escorted and surrendered" him to the police in the
poblacion. 72 His admission that he surrendered because he was already suspected as one of the
perpetrators of the crime does not make his surrender "forced by circumstances" as ruled by the trial
court. His arrest at that time was neither imminent nor inevitable. At the time of his surrender, no
warrant of arrest against him had yet been issued, the same having been issued only on 19 November
1991.73 In fact, he was released from custody after a few days, and was ordered committed to jail only
sometime in June 1992, after his motion for bail was denied by the trial court on 10 June 1992 and was
thus taken into custody. 74 This subsequent fact should not diminish nor erase the favorable effect of
Felipe Sion Jr.'s voluntary surrender on 17 October 1991. As has been held, whatever the accused's
reason for surrendering either the fear of reprisal from victim's relatives or, in this case, his
knowledge that he was already a suspect "does not gainsay the spontaneity of the surrender, nor
alter the fact that by giving himself up, he saved the State the time and trouble of searching for him
until arrested." 75

We disagree with Appellee's submission that there was no voluntary surrender because appellant Sion
surrender to a mere barangay "Kagawad" or Sangguniang Barangay member, and not to the police
authorities, implying that the former is not a person in authority. 76 This ignores Section 388 of the Local
Government Code of 1991 which expressly provides, in part, that "[f]or purposes of the Revised Penal
Code, the punong barangay, sangguniang barangay members, and members of the lupong
tagapamayapa in each barangay shall be deemed as persons in authority in their
jurisdictions . . . ." 77 This law expands the definition of a person in authority under the Revised Penal
Code, wherein among the barangay officials, only the barangay captain or chairman, now called Punong
Barangay, is expressly considered a person in authority, as provided in Article 152 thereof. Thus, in
addition to the Punong Barangay, the members of the Sangguniang Barangay, or Kagawads, and
members of the Lupong Tagapayapa are now considered not merely as agents of, but as persons, in
authority. 78

WHEREFORE, the challenged decision of Branch 44 (Dagupan City) of the Regional Trial Court of the First
Judicial Region in Criminal Case No. D-10796 is MODIFIED. As modified, appellants FELIFE
SION, alias "JUNIOR" or FELIFE RODRIGUEZ, JR., and FEDERICO DISU, alias "MIGUEL," are hereby
declared GUILTY beyond reasonable doubt, as principals, of the crime of HOMICIDE as defined and
penalized in Article 249 of the Revised Penal Code, with the former entitled to the mitigating
circumstance of voluntary surrender, and applying the Indeterminate Sentence Law, they are sentenced,
respectively, to suffer an indeterminate penalty ranging from eight (8) years of prison mayor minimum,
as minimum, to fourteen (14) years and eight (8) months of reclusion temporalas maximum, and an
indeterminate penalty ranging from ten (10) years and one (1) day of prision mayor maximum, as
minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal minimum as
maximum, with all the accessory penalties therefor, and subject to the provision of Article 29 of the
Revised Penal Code. Except as so modified, the rest of the challenged judgment stands.

Costs against accused-appellants.

39. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PO3 RENATO F. VILLAMOR and JESSIE
Joy MAGHILOM (At Large), accused.

PO3 RENATO F. VILLAMOR, accused-appellant.

[G.R. Nos. 141908-09. January 15, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PO3 RENATO F. VILLAMOR and JESSIE
Joy MAGHILOM (At Large), accused.

PO3 RENATO F. VILLAMOR, accused-appellant.

DECISION

YNARES-SANTIAGO, J.:

At around dusk of November 24, 1995, brothers Jerry Velez and Jelord Velez were on their way home
to Barangay Mitakas, Baliangao, MisamisOccidental, on board a motorcycle after having dinner at a
friends house at Barangay Landing, Baliangao, Misamis Occidental. Jerry was driving. As they neared
the junction of Barangays Lusot and Mitakas, they heard a speeding motorcycle fast approaching from
behind. The brothers ignored the other motorcycle, which caught up with them. As they were about to
cross the bridge leading to their home, gunshots rang out from behind them. They abruptly turned the
motorcycle around towards the direction of the gunfire. The light of their motorcycles headlamp fell on
their attackers aboard the second motorcycle. The assailants fired at them a second time and fled
towards the direction of Calamba, Misamis Occidental. Jerry sustained gunshot wounds on the abdomen
and left elbow, but survived. He got a good look at their assailants. Jelord, however, was not as
fortunate, as he died on the spot during the first gunburst.

For the deadly assault on the Velez brothers, PO3 Renato F. Villamor and Jessie Joy Maghilom were
indicted for Murder in Criminal Case No. 1312-36-14 in an Information which reads:

That on or about November 24, 1995, in Baliangao, Misamis Occidental, and within the jurisdiction of
this Honorable Court, accused PO3 Renato F. Villamor, public officer, being a member of the Philippine
National Police, conspiring and confederating with accused Jessie Joy Maghilom, likewise a public
officer, being a Barangay Councilman, with treachery and intent to kill, did then and there, wilfully,
unlawfully and feloniously shoot Jelord Velez, inflicting upon him mortal wounds that caused his death.

CONTRARY TO LAW.[1]

A charge of Frustrated Murder was likewise filed, docketed as Criminal Case No. 631-14-68-36-27,
under an Information which reads:

That on or about November 24, 1995, at about 6:30 in the evening in Baliangao, Misamis Occidental,
and within the jurisdiction of this Honorable Court, accused P03 Renato F. Villamor, public officer, being a
member of the Philippine National Police, conspiring and confederating with Jessie Joy Maghilom,
likewise a public officer, being a Barangay councilman, with treachery and intent to kill, did then and
there, wilfully, unlawfully, and feloniously shoot Jerry Velez who as a result thereof, suffered gunshot
wounds on the left upper quadrant abdomen and stomach which ordinarily would cause the death of
said Jerry Velez, thus performing all the acts of execution which should have produced the crime of
murder as a consequence but which, nevertheless, did not produce it by reason of causes independent
of their (accused) will, that is, by the timely and able medical attendance rendered to said Jerry Velez
which prevented his death.
CONTRARY TO LAW.[2]

By agreement of the parties, the two cases were tried jointly. [3] At the pre-trial conference, the
following facts were stipulated:

1. The identity of accused PO3 Renato F. Villamor to be the very same person who is one of the
accused in the two above-entitled criminal cases;

2. The defense admitted that in Criminal Case No. 1312-36-14, the victim
is Jelord Bongcaron Velez who was killed in the evening of November 24,
1995in Baliangao, Misamis Occidental;

3. The defense admitted in Criminal Case No. 631-14-68-36-27 that Jerry Velez was shot and
wounded in the evening of November 24, 1995 atBaliangao, Misamis Occidental;

4. In Criminal Case No. 1312-36-14, the defense admitted the authenticity and genuineness of
the Certificate of Death of Jelord Bongcaron Velez, issued by Public Health Officer Nelson
R. Abrinez;

5. In Criminal Case No. 631-14-68-36-27, the defense admitted the authenticity and
genuineness of the Medico Legal Certificate dated March 22, 1996, issued in favor of Jerry
Velez by Medical Officer III Olyzar H. Recamadas, as attested to by Chief of Clinics
designate Livera A. Amil, M.D.[4]

Upon arraignment, only accused PO3 Renato F. Villamor pleaded not guilty to the crimes charged.
[5]
His co-accused, Jessie Joy Maghilom, remained at large, hence, trial proceeded only with respect to
accused Villamor.

After trial, the Regional Trial Court of Calamba, Misamis Occidental, Branch 36, rendered judgment
as follows:

WHEREFORE, premises considered, finding accused PO3 Renato F. Villamor guilty beyond reasonable
doubt of having committed the crime of MURDER in Criminal Case No. 1312-36-14 as defined and
penalized in Art. 248 of the Revised Penal Code with the presence of one aggravating circumstance of
taking advantage of his public position as a policeman, accused PO3 Renato F. Villamor is hereby
sentenced to the penalty of DEATH. PO3 Renato F. Villamor is hereby further ordered to pay the legal
heirs of the late Jelord Velez the amount of FIFTY THOUSAND PESOS (P50,000.00) and another amount of
THIRTY-NINE THOUSAND SIX HUNDRED FIFTY-TWO AND FIFTY-TWO CENTAVOS (P39,652.52) representing
the expenses for the construction of the tomb, coffin and the expenses for the vigil and prayers of the
late Jelord Velez.

In the FRUSTRATED MURDER docketed as Criminal Case No. 631-14-68-36-27, accused

PO3 Renato F. Villamor is likewise found guilty beyond reasonable doubt of having committed the crime
of FRUSTRATED MURDER as defined in Art. 248 of the Revised Penal Code in relation to Art. 6 and Art. 50
of the same Revised Penal Code and there being an aggravating circumstance of taking advantage of his
public position as a policeman and applying the Indeterminate Sentence Law, accused
PO3 Renato F. Villamor is hereby sentenced to a penalty of imprisonment of NINE (9) years
of prision mayor as the minimum to EIGHTEEN (18) YEARS of reclusion temporal as the
maximum. PO3 Renato F. Villamor is further ordered to pay to Jerry Velez and his family the amount of
FORTY-SEVEN THOUSAND, NINE HUNDRED FIFTY-FIVE PESOS (P47,955.00) representing the medical
expenses to include already the medical operation and hospitalization incurred by Jerry Velez and his
family.

SO ORDERED.[6]

On automatic review before this Court, accused-appellant alleges

I. THAT THE HONORABLE LOWER COURT, THE HONORABLE REGIONAL TRIAL COURT, BRANCH
36, CALAMBA, MISAMIS OCCIDENTAL, GRAVELY ERRED IN ASSAILING THE DEFENSE OF ALIBI
SIMPLY BECAUSE THE DISTANCE OF THE CRIME SCENE TO THE PLACE WHERE ACCUSED PO3
 RENATO F. VILLAMOR WAS, AT THE TIME OF THE INCIDENT WAS (sic) VERY NEAR AND IT
WOULD BE POSSIBLE FOR HIM TO BE AT THE CRIME SCENE.

II. THAT THE HONORABLE LOWER COURT, THE HONORABLE REGIONAL TRIAL COURT, BRANCH
36, CALAMBA, MISAMIS OCCIDENTAL, GRAVELY ERRED IN GIVING CREDENCE TO THE
TESTIMONY OF JERRY VELEZ WHEN AS AN OFFENDED PARTY AND VICTIM NATURALLY WOULD
PROTECT HIS INTEREST WHEN IN TRUTH AND IN FACT HIS TESTIMONY WAS NEVER
CORROBORATED BY OTHER WITNESSES OF THE PROSECUTION.

III. THAT THE HONORABLE LOWER COURT, THE HONORABLE REGIONAL TRIAL COURT, BRANCH
36, MISAMIS OCCIDENTAL, GRAVELY ERRED IN NOT HOLDING THAT THERE WAS NO REASON
OR MOTIVE WHATSOEVER WHY SHOULD ACCUSED PO3 RENATO F. VILLAMOR
SHOULD (sic) WISH THE DEATH OF JELORD VELEZ AND JERRY VELEZ.[7]

The prosecution established that when the brothers turned around to face their assailants, Jerry
saw Villamor and Maghilom on board the motorcycle behind them. Maghilom was driving the motorcycle
while Villamor was holding a short gun pointed at them.

Jerry sensed that Jelords grip on his back slackened. Jelord fell off the motorcycle and died on the
spot. As Jerry neared the bridge, Villamoragain fired at Jerry, hitting him on the abdomen. The two
assailants drove away. When Jerry arrived at their house, he told his other brother, Jelvis, about the
incident. They rushed Jelord to the Calamba District Hospital, but he was transferred to
the Misamis Occidental Provincial Hospital,Oroquieta City. Meanwhile, Jerry was treated at
the Provincial Hospital and, later, at the Metro Cebu Hospital.

The autopsy conducted by Dr. Nelson Gabrinez, Public Health Officer of Baliangao, on the cadaver
of Jelord Velez showed several wounds on the chest, mid-clavicular area, abdomen and right
diaphragm. The cause of death was indicated as multiple gunshot wounds.

On the other hand, Dr. Olayzar Recamadas of the Provincial Hospital examined Jerry Velez and found
that he sustained a gunshot wound [on the] left quadrant abdomen penetrating abdominal cavity with
injury to stomach, mesentery transverse colon, hemoperitoneum.[8] Dr. Recamadastestified that without
prompt medical attendance, Jerry could have died of zero-zero (0-0) blood pressure. [9]

For his defense, accused-appellant Villamor claimed that he was not at the scene of the crime at the
time of its occurrence. He testified that onNovember 24, 1995, at around 5:00 p.m., he was
in Barangay Landing as security escort of Mayor Agapito Yap III, which was among his duties as a
member of the Philippine National Police assigned to the Office of the Mayor of Baliangao.[10] The Mayor
and his entourage, which included accused-appellant, left Baliangao for Barangay Landing at about 9:00
a.m.[11] They arrived there at 10:00 a.m. [12] In Barangay Landing, Mayor Yap visited theBarangay Captain
and had lunch.[13] From there, the Mayor and his entourage proceeded to the cockpit to attend a derby.
[14]
At around 5:00 p.m., accused-appellant went home to take his child, who was suffering from diarrhea,
to the clinic for treatment.[15] He arrived at the Yap Clinic but was advised to go to
the Calamba District Hospital.[16]

Accused-appellant then radioed for an ambulance to bring his ailing child to the hospital. Since
there was no ambulance available, he borrowed a vehicle from Mayor Yap. On board a jeep driven by
Alvin Itum, accused-appellant left Baliangao at 5:30 p.m. When they passed the bridge at the junction
of Barangays Lusot and Mitakas, they noticed no untoward incident. They arrived at
the Calamba District Hospital at 7:00 p.m.[17]

Accused-appellants child was confined at the said hospital for three days. [18] From the time he
brought his child for confinement on the date of the incident, accused-appellant never went back
to Baliangao. The only occasion he left the hospital premises on November 24, 1995 was when stepped
out to buy biscuits and orange drink at the store 80 to 100 meters away. [19]

Accused-appellant testified that he only came to know of the incident when he was informed of it
by Isyong Lomoljo.[20] He claimed having talked with Jerry Velez for several minutes at the hospital at
around 7:30 to 8:00 p.m.[21] Jerry told him he could not identify the assailants because it was dark.
[22]
Accused-appellant averred that he was implicated in the incident because of political
reasons. The Velezes and the Yaps were political rivals.[23]
 Accused-appellant argues that even granting that the place where the crime was committed was
near, it would still be impossible for him to go there and commit the crime because he was attending to
his sick son.

We disagree.

Accused-appellants profession of innocence cannot prevail vis--vis his positive identification as the
gunman by eyewitness-victim Jerry Velez, who testified thus:

Q You said you were shot. In fact, Jelord Velez was hit what did you do when you noticed your
brother was hit?

A I noticed that his grip on my shoulder was loosen[ed].

Q If you have noticed that his grip was loosen[ed], what did you do then?

A I let the motorcycle turn around.

Q What did you see when the motorcycle turned] around?

A I saw Joy Maghilom and P03 Renato Villamor.

Q What did you do when you see (sic) them?

A I was frightened. I was afraid.

Q Do you know who shot your brother when you said you were fired [upon]?

A Yes, I know him.

Q Whose (sic) that person?

A P03 Renato Villamor.

Q Is he in court this morning?

A Yes.

Q Please point again.

INTERPRETER:

Witness pointed to the person and when I asked him, he answered PO3 Renato Villamor.

Q You said that when you noticed that your brothers grip was loosen[ed] you turned around
the motorcycle and you saw Renato Villamor and JoyMaghilom, were they riding also a
motorcycle?

A Yes.

Q Why were you able to recognize them?

A Because they were lighted by the light of the motor.

Q Very clear?

A Yes, very clear.

Q How far where you able to turned (sic) around the motor and when you said they
were lighted by the motor?
 A Two (2) meters.[24]

Despite repeated attempts by the defense counsel to throw him off track during cross-examination,
Jerry remained resolute and unflinching in his account that he and his brother were fired upon by
accused.[25]

In stark contrast to the clear and categorical declarations of the victim, accused-appellant merely
raised alibi as his defense. However, such a defense is unavailing given the facts prevailing herein. The
Court has consistently looked upon the defense of alibi with suspicion and received it with caution not
only because it is inherently weak and unreliable but also because it can be easily fabricated. [26] Unless
supported by clear and convincing evidence, the same cannot overcome the positive declarations of the
victim who, in a simple and straightforward manner, convincingly identified the accused-appellant as
one of the perpetrators of the crime.

Contrary to accused-appellants contention, he failed to establish that it was physically impossible

for him to be at the scene of the crime at the time it was committed. Since the distance between his
alleged whereabouts and the place of the incident was, by his own admission very near, [27] it was not
impossible for accused-appellant to be at the scene of the crime at the time of its commission. [28] His
argument that he was attending to his son who was in the hospital is simply unavailing.

In the second assigned error, accused-appellant assails the trial courts reliance on the lone and
uncorroborated testimony of eyewitness-victim Jerry Velez.

We remain unconvinced.

It must be stressed in this regard that the testimony of a single witness is sufficient to establish the
guilt of the accused for evidence is weighed not counted. [29] Indeed, the testimony of a single witness, if
positive and credible, is sufficient to convict the appellant even in a murder charge. [30]

In view of the foregoing considerations, accused-appellants argument that he has no motive for
committing the crime must likewise fail. Suffice it to state that ill motive is never an essential element
of a crime. It becomes inconsequential where there are affirmative, nay, categorical declarations
towards the accused-appellants accountability for the felony. [31] Such is the case here.

All told, an overall scrutiny of the records of this case leads us to no other conclusion but that the
trial court did not err in finding accused-appellant and his co-accused guilty of murder. The core issue
raised by accused-appellant centers on the credibility of the witnesses. The doctrinal rule is that
findings of fact made by the trial court, which had the opportunity to directly observe the witnesses and
to determine the probative value of the other testimonies are entitled to great weight and respect
because the trial court is in a better position to assess the same, an opportunity not equally open to an
appellate court.[32]

Truth does not always stalk boldly forth naked, but modest withal, in a printed abstract in a court of last
resort. She oft hides in nooks and crannies visible only to the minds eye of the judge who tries the case
x x x x. The brazen face of the liar, the glibness of the schooled witness in reciting a lesson, or
the overeagerness of the swift witness, as well as honest face of the truthful one, are alone seen by him.
[33]

The Information indicting accused-appellant for Murder alleged that treachery aggravated by abuse
of public authority attended the killing of the victim.

We agree with the trial court that the killing of Jelord Velez was attended by treachery
or alevosia. There is treachery when the offender commits any of the crimes against persons,
employing means, methods or forms in the execution thereof which tend directly and specially to insure
its execution, without risk to himself arising from the defense which the offended party might make.
[34]
The qualifying circumstance of treachery attended the killing inasmuch as the two conditions for the
same are present, i.e., (1) that at the time of the attack, the victim was not in a position to defend
himself, and (2) that the offender consciously adopted the particular means, method or form of attack
employed by him.[35] The essence of treachery is the swift, sudden and unexpected attack by the
aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself, thereby
ensuring its commission without risk to the aggressor, and without the slightest provocation on the part
of the victim.[36]

The treacherous manner in which accused-appellant and Jessie Joy Maghilom perpetrated the
crime is shown not only by the sudden and unexpected attack upon the unsuspecting and apparently
unarmed victims but also by the deliberate manner in which the assault was perpetrated. In this case, a
totally unsuspecting Jelord Velez held onto his brother Jerry on board their motorcycle on their way home
blissfully unaware of the onrushing peril behind them. As in the recent case of People v. Padilla,
[37]
treachery is evident when the accused-appellant suddenly positioned himself at the back of the
unsuspecting victim, pointed his gun at him and, without any warning, promptly delivered the fatal
shots. In short, the victim was unaware of the attempt on his life and the danger that lurked behind
him. There was no way the victim could have defended himself, taken flight or avoided the assault. The
attendance of treachery qualifies the killing to Murder.

The Court, however, agrees with the Solicitor General that the trial court improperly applied the
aggravating circumstance of taking advantage of public position as provided for in Article 14, paragraph
1 of the Revised Penal Code. To appreciate this aggravating circumstance, the public officer must use
the influence, prestige or ascendancy which his office gives him as a means by which he realizes his
purpose. The essence of the matter is presented in the inquiry Did the accused abuse his office to
commit the crime?[38]

In this case, there was no showing that accused-appellant took advantage of his being a policeman
to shoot Jelord Velez or that he used his influence, prestige or ascendancy in killing the
victim. Accused-appellant could have shot Velez even without being a policeman. In other words, if the
accused could have perpetrated the crime even without occupying his position, there is no abuse of
public position.[39] Only recently, in People v. Herrera,[40] the Court emphatically said that the mere fact
that accused-appellant is a policeman and used his government issued .38 caliber revolver to kill is not
sufficient to establish that he misused his public position in the commission of the crime. [41]

There being no modifying circumstances to be appreciated, the proper imposable penalty for the
killing of Jelord Velez is reclusion perpetua,pursuant to Article 63, paragraph 2 in relation to Article 248
of the Revised Penal Code, as amended by R.A. No. 7659. [42]

So, too, must the penalty imposed by the trial court for Frustrated Murder be modified considering
that it necessarily arose from the same incident which caused the death of one of the victims. While we
agree with the lower court that the penalty for a frustrated felony is one degree lower than that of a
consummated crime, pursuant to Article 50 in relation to Article 6 of the Revised Penal Code, the proper
penalty in the absence of any modifying circumstances is likewise to be imposed in its medium period in
accordance with Article 64, paragraph 1 of the Code.

In this case, the proper imposable penalty for Frustrated Murder is Reclusion Temporal in its medium
period, which has a range of Fourteen (14) Years, Eight (8) Months and One (1) Day to Seventeen Years
and Four (4) Months. The penalty one degree lower than Reclusion Temporal is PrisionMayor, from which
the minimum term of the indeterminate penalty imposable on accused-appellant shall be taken.

In line with prevailing jurisprudence,[43] the Court affirms the award of P50,000.00 as civil indemnity
for the death of the victim, even in the absence of proof other than the death of the victim. [44] Moral
damages should likewise be awarded by the trial court to the victims heirs in the case for Murder,
pursuant to controlling jurisprudence on the matter. [45] Moral damages are pegged at P50,000.00,
[46]
taking into consideration the pain and anguish of the victims family brought about by his death.
[47]
The award for the funeral and burial expenses incurred by heirs of Jelord Velez as well as the medical
expenses for the treatment of Jerry Velez, being amply supported by documentary evidence are likewise
sustained.

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court
of Calamba, Misamis Occidental in Criminal Cases Nos. 1312-36-14 and 631-14-68-36-37, finding
accused-appellant guilty beyond reasonable doubt of Murder and Frustrated Murder, respectively, is
AFFIRMED with MODIFICATION. As modified, accused-appellant PO3 Renato F. Villamor is sentenced to
suffer the penalty of Reclusion Perpetua for Murder in Criminal Case No. 1312-36-14; and to suffer an
indeterminate penalty of Eight (8) Years and One (1) Day of Prision Mayor, as minimum, to Fourteen (14)
Years, Eight (8) Months and One (1) Day of Reclusion Temporal, as maximum, for Frustrated Murder in
Criminal Case No. 631-14-68-36.

Accused-appellant is ORDERED to pay the heirs of the victim Jelord Velez the sum of P50,000.00 by
way of moral damages, in addition to the civil indemnity of P50,000.00 and funeral expenses of
P39,652.52 awarded by the trial court. The award of medical expenses to Jerry Velez in the amount of
P47,955.00 is AFFIRMED.

41. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLITO INGGO y TAMBULA, accused-
appellant.

DECISION

QUISUMBING, J.:

For automatic review is the decision [1] of the Regional Trial Court of Dipolog City, Branch 8, dated
October 6, 1999, in Criminal Case No. 7593, convicting appellant Pablito T. Inggo of murder, sentencing
him to suffer the penalty of death, and ordering him to pay the heirs of the victim the sum of P500,000
by way of consequential damages, P100,000 as moral damages, and to pay the costs.

His conviction stemmed from the Information which accused him of murder, allegedly committed as
follows:

That, in the afternoon, on or about the 15th day of August, 1996, in the municipality of Katipunan,
Zamboanga del Norte, within the jurisdiction of this Honorable Court, the said accused armed with
hunting knife and with intent to kill by means of treachery and evident premeditation, did then and
there wilfully, unlawfully and feloniously attack, assault and stab one ROSEMARIE CONDE REINANTE,
thereby inflicting upon her several wounds on the vital parts of her body which caused her death shortly
thereafter; that as a result of the commission of the said crime the heirs of the herein victim suffered the
following damages, viz:

a) Indemnity for victims death P 50,000.00

b) Loss of earning capacity 50,000.00

_______________

P100,000.00

CONTRARY TO LAW (Viol. of Art. 248, Revised Penal Code), with the qualifying circumstances of
treachery and evident premeditation.[2]

Appellant pleaded not guilty when arraigned on January 17, 1997. Trial on the merits ensued
thereafter.

The version of the prosecution, as summed up from the records by the Office of the Solicitor
General, is as follows:

On August 15, 1996, about 8:00 oclock in the morning, Rosemarie Reinante [3] requested her parents-in-
laws house helper, Leonisa Insic,[4] to go to her house in Poblacion Katipunan, Zamboanga del Norte, to
do some household chores (p. 3, TSN, July 15, 1997). Leonisa Insic went to Rosemarie Reinantes house
as bidden (p. 8, TSN, July 8, 1997).

About 1:00 oclock in the afternoon of that day, Leonisa Insic returned to the house of Rolando Reinante,
Sr. where she was living. She proceeded to the kitchen to take her lunch (p. 10, TSN, July 15, 1997).
While she was eating, Leonisa Insic noticed somebody buy a bottle of beer from Rolando Reinante, Sr.s
store which was then being tended by Lando Tangga, another housekeeper of Rolando Reinante, Sr. The
store was attached to the house of Rolando Reinante, Sr. Later, Leonisa Insic identified that somebody
as the appellant (pp. 8-10, TSN, July 8, 1997; p. 15, TSN, July 15, 1997).
Appellant gave the amount of P50.00 as his payment for the beer. Since there was not enough cash to
change the fifty-peso bill, Lando Tangga asked Leonisa Insic to have the fifty-peso bill changed to smaller
denominations. Leonisa Insic consequently went to another store to have the bill changed to smaller
denominations (ibid.).

Leonisa Insic returned to the store moments later after having the fifty-peso bill changed to smaller
denominations. She gave the money to Lando Tangga but the latter refused to accept it. Instead, he
told Leonisa Insic to give the change to appellant. Leonisa Insic obliged. Leonisa Insic then approached
appellant and tried to give him his change. Appellant, however, refused to accept his change and
insisted that he should get back the full amount he gave. Exchange of words, thereafter, ensued
between Leonisa Insic and appellant (pp. 11-13, TSN, July 8, 1997).

While appellant and Leonisa Insic were having an exchange of words, Rosemarie Reinante
arrived. Consequently, Rosemarie Reinante asked for the money and volunteered to give it to
appellant. Appellant still refused to accept his change from Rosemarie Reinante which led to an
argument (pp. 13-15, ibid.).

While appellant and Rosemarie Reinante were thus arguing, appellant suddenly rushed to Rosemarie
Reinante. When he was already near her, he loosened his belt and removed it from his
waist. Rosemarie Reinante consequently ran. Appellant chased her and when he caught up with her,
appellant stabbed her. Immediately, Leonisa Insic came to Rosemarie Reinante's rescue. She tried to
separate Rosemarie Reinante and appellant by holding the latter's hands. Leonisa Insic was able to stop
appellant which gave Rosemarie Reinante an opportunity to run towards the road. However, appellant
was able to get away from Leonisa Insic and chased Rosemarie Reinante again. When appellant failed
to catch up with Rosemarie Reinante, he ran towards the direction going to the cemetery of Katipunan
(pp. 15-16,ibid.).

Leonisa Insic saw Rosemarie Reinante fall down when she reached the road. She then ran towards
Rosemarie Reinante's house to report the matter to Rolando Reinante, Jr. She did not find Rolando
Reinante, Jr. in their house. Instead, she found some of the house helpers (names not on record) of
Rosemarie Reinante. When they asked her what happened, she said that Rosemarie Reinante was
stabbed. Leonisa Insic did not anymore return to the place where Rosemarie Reinante fell down because
she was afraid (pp. 16-18, ibid.).

Later, policemen arrived. Together with Leonisa Insic, they brought Rosemarie Reinante to the Dipolog
City hospital. When they reached the hospital, Rosemarie Reinante was pronounced dead on arrival (pp.
18-19, ibid.).[5]

The defenses version based on the lone testimony of the accused is, as summarized by the trial
court, as follows:

That he was an ice cream vendor before he was arrested and detained in jail on August 15, 1996. xxx
That in the morning of August 15, 1996, from Katipunan, Z.N., where he resides, he went to Roxas, an
adjoining town of Katipunan to sell ice cream. He was just walking while pushing his ice cream box
along the way as he passed and sold ice cream to children and students in schools at Brgy. Tambo, Piao,
and Nabilid, before reaching the poblacion of Roxas about 12:00 oclock noon. He took his lunch [in]
the public market of Roxas, after which he drunk tuba and started back on his way to Katipunan at about
1:00 oclock as he continued selling his wares on the same route he took in going to Roxas. It was
already about 4:00 oclock in the afternoon when he arrived [in] Katipunan. However, he was not able to
reach his house because when he was at the crossing nearby the cemetery of Katipunan, he was
waylaid by three armed men whose names were unknown to him except that he could only recognize
their faces, and apprehended him. So he asked the persons who apprehended him what was his fault,
but was told in reply just [come] with us. Without showing any resistance, he was brought to the
police station of Katipunan. Then at the police station, the three persons who waylaid him took off his T-
shirt, pants, and shoes. They also took off his brief[s]. Thereafter, he was detained in jail. While in
detention, he was not informed of his right to counsel and neither was he accorded the assistance of a
lawyer. He was not also informed of his right to remain silent and that anything he would say or any
statement he made may be used against him.

That by about 6:00 oclock [of] that afternoon, he was brought by the policemen to the provincial
hospital in Dipolog City. The purpose of bringing him to the hospital was just to examine his breathing,
but the doctor who examined him observed that he was under the influence of liquor or ha[d] taken
intoxicating drinks he was brought back to the detention cell of Katipunan Police Station. He had
already put on or put back his [clothes], which were returned to him by the policemen. That while in the
detention cell, he was boxed and mauled by two police officers one of whom he recognized as a certain
Rodel Castillon while he did not know the name of the other. The mauling xxx made him unconscious as
he suffered injuries on the different parts of his body. That upon regaining consciousness, he noticed
that he already sustained a [stab] wound on his stomach above his navel. He could not remember nor
identify the person who stabbed him.

In the morning of August 16, 1996, he was again brought to the same hospital xxx for [the] treatment of
his [stab] wound. He was admitted [to] the hospital from August 16, 1996 to August 22, 1996 the
accused denied the ownership of the following exhibits for the prosecution, to wit:

Exh. "A" - a dirty white T-shirt with green combination allegedly wor[n] by the accused at
the time of the incident;

Exh. "B" - a leather belt with a secret pocket that serves as a scabbard sewn in the inside
face of the belt and the stainless knife that fits into the secret pocket, allegedly
own[ed] by the accused and allegedly used by him in stabbing the victim
Rosemarie Conde Reinante and in stabbing himself in an attempt to commit
suicide;

Exh. "C" - a yellow towel with blood stain allegedly carried by the accused at the time of the
incident;

Exh. "D" - a stainless hunting knife, measuring 4 1/2 inches by its blade, and 2 1/2 inches
by its handle, mentioned in Exh. "B".

The accused likewise denied knowing the victim Rosemarie Conde Reinante as well as her husband
Rolando Reinante, Jr. He further denied knowing the two witnesses for the prosecution Leonisa Insic and
Lando Tangga. That he did not see all the above-named persons on August 15, 1996, because on that
day, he was at the nearby town of Roxas selling ice cream.[6]

The trial court found the evidence for the prosecution credible and sufficient to convict appellant of
murder beyond reasonable doubt. The decretal portion of its decision reads:

WHEREFORE, and for all of the foregoing observations, and finding the guilt of the accused established
by proof beyond reasonable doubt, herein accused Pablito Inggo y Tambula, is hereby convicted of the
crime of Murder charged against him as principal by direct participation, and in the light of Article 248 of
the Revised Penal Code, as amended by Rep. Act 7659, sentence[d] to suffer the supreme penalty of
DEATH, to indemnify the heirs of the victim Rosemarie Conde Reinante, the sum of P500,000.00 by way
of consequential damages, P100,000.00 as moral damages, and to pay the costs.

SO ORDERED.[7]

Hence, this automatic review, with appellant assigning the following errors:

THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING AND AGGRAVATING CIRCUMSTANCES OF
TREACHERY, WITH INSULT OR IN DISREGARD OF THE RESPECT DUE THE OFFENDED PARTY ON ACCOUNT
OF HER RANK, AGE AND SEX, AND INTOXICATION, ALTHOUGH THE SAME WERE NOT ESTABLISHED
BEYOND REASONABLE DOUBT.

II

THE COURT A QUO GRAVELY ERRED IN SENTENCING THE ACCUSED-APPELLANT TO DEATH DESPITE THE
FACT THAT NO QUALIFYING AGGRAVATING CIRCUMSTANCE WAS ATTENDANT.

III
NOTWITHSTANDING ALL THESE, THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT
ALTHOUGH IT IS EVIDENT THAT HE WAS ONLY FRAMED-UP.[8]

Principally, the issues for our resolution are (a) whether appellants guilt was proved beyond
reasonable doubt, and (b) whether the penalty of death was properly imposed on him. To resolve these
issues, we must also inquire into credibility of the witnesses and their testimonies.

Appellant insists that he was merely framed-up by the police who could not find the real
perpetrator. He points to the stab wound he sustained while in detention as proof of the devious and
diabolical machinations by the police officers to implicate him in the said crime. [9] He contends that,
granting without admitting that he was the assailant, there could be no treachery since the victim
provoked appellant by arguing with him when she tried to force him to receive the P40.00
change. Appellant adds that since the assault was frontal, it could not be said to have been sudden and
unexpected.[10]

The appellee, as represented by the Office of the Solicitor General (OSG), counters that appellants
claim that he was merely framed up should be rejected as it is uncorroborated and unsubstantiated by
any evidence other than his self-serving claim. Contrary to appellants claim, two eyewitnesses
positively identified appellant as the perpetrator of the crime. [11] The OSG asserts that treachery
attended the commission of the crime as the attack was so sudden and so unexpected since the victim
did not know that appellant had a knife with him, securely sewn and hidden inside his belt. Even if there
was a prior argument between appellant and Rosemarie, she could not have anticipated that he would
stab her.[12]

Well-established is the principle that the findings of the trial court on the credibility of witnesses and
their testimonies are accorded great weight and respect, even finality, on appeal unless the trial court
has failed to appreciate certain facts and circumstances which, if taken into account, would materially
affect the result of the case. [13] We have thoroughly reviewed the records of this case and we see no
compelling reason to depart from this well-settled rule.

The positive identification of appellant by the two eyewitnesses, Leonisa Insic and Lando Tangga,
cannot be overcome by denial and allegation of a frame-up. Like alibi, which by its nature is
inherently weak, the allegation of frame-up is easy to concoct, hence it has been viewed by this Court
with disfavor.[14] Leonisa Insic categorically pointed to appellant in open court as the same man who
after drinking a bottle of beer bought from her masters store, refused to receive his change and instead
insisted on getting back his P50 bill. She also positively identified appellant as the same man who
stabbed her Manang Rosemarie Reinante to death.[15] Although a mere house helper[16] who had studied
up to Grade 2 only, and had stayed in the mountains until she was 18 years old, she testified in a candid
and straightforward manner worthy of belief. The affidavit she executed was fully explained to her in
the vernacular and she affirmed that she signed it because she understood it and knew it to be the
truth.[17]

Witness Lando Tangga corroborated Leonisas testimony. According to Tangga, he explained to

appellant that the bottle of beer was worthP10.00, so that his change was P40.00 but appellant refused
the change, claiming that it was insufficient. So Tangga then asked Leonisa Insic to be the one to
explain to appellant and return his change, but to no avail. After sometime, Tangga saw
his Manang Rosemarie arrive. Rosemarie got the money from Leonisa and tried to give it to
appellant. But appellant then rushed towards Rosemarie to stab her. Tangga testified that appellant
delivered the fatal blow on her stomach.[18]

No ill motive was imputed or shown against these two witnesses as to why they would falsely testify
against appellant. The mere fact that Rolando Reinante, Jr., Rosemaries husband, was with them when
they gave their statements at the police station did not taint their credibility. For the husband of the
deceased victim surely wanted to see that the real perpetrator be punished for her death. Contrary to
appellants contention, no grieving husband would coach his household helpers to impute a crime on
someone whom they knew to be innocent. That would be contrary to human nature and
experience. Absent any evidence showing a reason or motive for prosecution witnesses to perjure their
testimonies, the logical conclusion is that no improper motive exists, and that their testimonies are
worthy of full faith and credit.[19]
 Appellant claims to be merely passing through the area when the police apprehended
him. However, he could not present any witness who can support his allegation. To the contrary, a
witness for the prosecution, Edmundo Ballares, [20] testified that while he was in the cemetery, he saw
police officer Edgar Calisas pursuing a man from the highway running towards the cemetery. [21] When
the police caught up with the man, Ballares offered his assistance by holding the hands of the man, and
thereafter bringing him towards the road. [22] The candid and straightforward testimony of Ballares stems
from a forthright narration of what he actually witnessed. The grueling cross-examination by the defense
counsel could not shake the foundation of his account. Witness Ballares positively pointed to appellant
as the man chased by the police and subsequently caught in the premises of the cemetery.

Appellant denies the charge against him, but his denial and his claim of frame-up are
unsubstantiated by clear and convincing evidence. His denial is a negative and self-serving testimony
which deserves no weight in law. It should not be given greater evidentiary value than the testimony of
credible witnesses who testify on affirmative matters.[23]

Appellant claims maltreatment committed on him by the Katipunan police. These claims are,
however, also uncorroborated and unsubstantiated. He was unable to present any medical certificate
concerning any injury he might have sustained on account of mauling or maltreatment. He did not file
any criminal or administrative charge against the police officers to whom he attributed the
maltreatment. Noteworthy, the prosecution presented a medical certificate as evidence that the stab
wound of appellant was self-inflicted. [24] In the absence of any clear and convincing proof, to the
contrary, the presumption stands that there was regularity in the performance of official duties [25] by the
Katipunan police. Otherwise, it would become facile and convenient for any accused to shout
maltreatment and render inutile any arrest lawfully made, to the detriment of peace and order in the
community.

While we find that sufficient evidence was presented to sustain the conviction of the appellant for
stabbing to death Rosemarie Reinante, we are unable to agree that treachery was proved by the
prosecution. The qualifying circumstance of treachery cannot be presumed and must be proved as
sufficiently as the crime itself. Treachery or alevosia exists when the offender commits any of the crimes
against persons employing means, methods, or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from the defense which the offended
party might make.[26] To prove treachery, the prosecution must show (a) that at the time of the attack,
the victim was not in a position to defend himself and (b) that the accused consciously adopted the
particular means, method, or form of attack employed by him. [27] Here, the prosecution failed to show
adequately these requisite elements.

As testified to by the eyewitness, Leonisa Insic, appellant first chased Rosemarie before he was able
to inflict the fatal stab against her. A portion of her testimony runs as follows:

Q: Now, you said that the man rushed on your Manang Rosemarie, were they able to get near
each other?

A: Yes, sir.

Q: And what did you notice when they were already near to each other?

A: Then, I noticed that the man loosen his belt and he took off that belt from his waist.

Q: After that man loosen his belt, took off from his waist, what did that man do?

A: Then, that man chased Manang Rosemarie at a swing and then later on stabbed Manang
Rosemarie.[28]

It is apparent that Rosemarie tried to run away but appellant caught up with her. Based on
eyewitness testimony, we are not convinced that treachery attended the commission of the crime. The
stabbing was not instantaneous. It was preceded by heated arguments. The victim must have been
forewarned that appellant might try to harm her. Where an argument or a quarrel preceded a killing,
treachery is non-existent since the victim could be said to have been forewarned and could anticipate
aggression from assailant.[29]
 For treachery to be considered, not only must the victim be without means of defending herself, but
also the means, method, or form employed by the assailant must have been consciously adopted. The
interval of time between the act of loosening his belt, getting the knife, chasing the victim and
eventually stabbing her sufficiently shows that the use of the knife was not consciously thought of, but
rather it came together with appellants outburst, arising from the heated arguments he had with
Leonisa and then the victim. Thus, we cannot sustain the view that treachery attended the commission
of the crime to qualify it as murder. We hold that appellant is liable only for homicide.

Moreover, here the generic aggravating circumstance of disregard of sex could not be considered in
the perpetuation of the offense. Disregard of sex which, for obvious reasons refers to the female
gender, requires that the accused must have deliberately intended to insult or to show manifest
disrespect for the sex of the offended party. [30] Here, we find no showing that the attack showed a
manifest disrespect for the gender of the victim. Apparently, the victim arrived unexpectedly and took
the cudgels for Leonisa, re-directing appellants ire toward the victim herself.

Further, we find the alternative circumstance of intoxication inexistent. Intoxication to be

aggravating must have been the source of bravado that propelled the accused to commit the crime. As
we have previously held:

Our penal laws do not look kindly on habitual drunkards, or if the accused already resolved to commit
the crime, then got intoxicated so as to fortify that resolve with false courage dictated by liquor, his
liability should be aggravated. Although there is no hard and fast rule on the amount of liquor that the
accused imbibed on that occasion, but the test is that it must have sufficed to affect his mental
faculties, to the extent of blurring his reason and depriving him of self-control. [31]

Here, appellants degree of intoxication was not proved with certainty. He had allegedly been
drinking tuba earlier that day, and he did buy a bottle of beer at the store of the victims in-laws. But
these facts are not sufficient to establish that indeed appellant was intoxicated at the time he
committed the crime, much less that he sought intoxication to fortify his resolve in committing
it. Absent clear and convincing proof as to appellants state of intoxication, we are unable to agree that
the alternative circumstance of intoxication was present to aggravate the offense.

In any event, intoxication as well as disregard of sex were not alleged in the information, hence,
these may not be considered to aggravate the crime for the imposition of a higher penalty, whether by
degrees or periods. This is pursuant to the amendments made to the Revised Rules of Court,
particularly to Sec. 8 of Rule 110 of the Revised Rules of Criminal Procedure [32] (which took effect on
December 1, 2000). This section now mandates that the complaint or information should state not only
the qualifying but also the aggravating circumstances in order that they may be appreciated. Since this
procedural rule is favorable to the accused, it is proper to give it retroactive effect in this case.

The award of damages also needs modification. The award of consequential damages in the
amount of P500,000 is deleted for lack of factual basis. Instead, we award in favor of the victims heirs
the amount of P50,000 as indemnity ex delicto.[33] The award of moral damages is also reduced
from P100,000 to P50,000, consistent with our recent case law. [34] In addition, we award
another P25,000 as temperate damages[35] considering that it has been shown that the victims family
suffered some pecuniary loss but the amount thereof was not sufficiently established.

WHEREFORE, the decision of the Regional Trial Court of Dipolog City, Branch 8, convicting
appellant Pablito T. Inggo, of murder and sentencing him to death in Criminal Case No. 7593 is hereby
MODIFIED. Appellant is found GUILTY beyond reasonable doubt of HOMICIDE as defined by Article 249 of
the Revised Penal Code. For that offense, the penalty set therefor is reclusion temporal in its medium
period,[36] there being no aggravating or mitigating circumstance, in accordance with Article 64 (1) of the
Code. Applying the Indeterminate Sentence Law, appellant is hereby sentenced to suffer imprisonment
for an indeterminate period ranging from six (6) years and one (1) day of prision mayor in its minimum
period as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal in its
medium period as maximum. Appellant is also ORDERED to pay the heirs of the victim P50,000.00 as
civil indemnity, P50,000.00 as moral damages, and P25,000.00 as temperate damages. Costs de oficio.
43. PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BENJAMIN ONG y KHO and BIENVENIDO QUINTOS Y SUMALJAG, defendants-appellants.

Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Santiago M. Kapunan and
Solicitor Celso P. Ylagan for Plaintiff-appellee

Dominador Laberinto and Associates for appellant Benjamin Ong.

Jose R. Quintos and Luciano V. Bonicillo for appellant Bienvenido Quintos.

FERNANDEZ, J.:

This is an automatic appeal from a decision of the Circuit Criminal Court, Seventh Judicial District in
Criminal Case No. CCC-VII-922 Rizal, dated October 11, 1971, the dispositive part of which reads as
follows:

WHEREFORE, finding the accused Benjamin Ong y Kho and Bienvenido Quintos y
Sumaljag, GUILTY, beyond reasonable doubt of the crime of Kidnapping with Murder as
defined under Article 248 of the Revised Penal Code, in relation to Article 267 thereof, as
charged in the Information, the Court hereby sentences each one of them to suffer the
penalty of DEATH; to indemnify the heirs of the deceased Henry Chua, the amount of
P12,000.00; to pay moral damages in the amount of P50,000.00, and another P50,000.00
as exemplary damages jointly and severally; and to pay their proportionate share of the
costs. 1

The information filed by the Provincial Fiscal of Rizal, B. Jose Castillo against (1) Benjamin Ong y Kho, (2)
Bienvenido Quintos y Sumaljag (3) Fernando Tan, alias "Oscar Tan," and (4) Baldomero Ambrosio alias
"Val", the latter two being then at large, reads: .

That on or about April 23 to April 24, 1971, inclusive, in the municipality of Paraaque,
province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, being then private individuals, conspiring and confederating
together and mutually helping one another didthen and there wilfully, unlawfully and with
treachery and known premeditation and for the purpose of killing one Henry Chua and
thereafter extorting money from his family through the use of a ransom note, kidnap(ped)
and carry(ied) away said Henry Chua, initially by means of a friendly gesture and later
through the use of force, in an automobile, and later after having taken him to an
uninhabited place in Caloocan City, with the use of force detained him (Henry Chua) and
kill(ed) him in the following manner to wit: The accused after gagging and tying up Henry
Chua and repeatedly threatening him with death, assured him that if he would write and
sign a ransom note for the payment by his family of the sum of $50,000.00 (US), he would
not be killed and would be released upon receipt of the ransom money, but after said
Henry Chua agreed and did execute such a ransom note, he was again gagged and tied
up by the accused, and thereafter stabbed in the abdominal region several times with an
icepick, inflicting upon him (Henry Chua) mortal wounds on his vital organs, which directly
caused his death.

All contrary to law with the following generic aggravating circumstances:

(a) Evident premeditation;

(b) Grave abuse of confidence;

(c) Nighttime;

(d) Use of a motor vehicle;

(e) Use of superior strength; and

 (f) Cruelty. 2

Personal Circumstances of the Two

Appellants

At the time of the trial before the lower court in September of 1971, the accused Benjamin Ong was 31
years old, employed with the Acme Shoes, Rubber and Plastic Corporation, a firm owned by his brother-
in-law, Chua Pak, for the past 11 years, the last 6 of which was as an assistant manager. He was already
receiving a monthly salary of P1,800.00 excluding yearly bonuses of P30,000.00 and other
representation allowances or a total annual income of from P60,000.00 to P70,000.00. He had his
elementary schooling at the Assumption Academy in San Fernando, Pampanga; his first and second
years of high school at Chiang Kai-shek High School in Manila; and his third and fourth years at the
Mapua Institute of Technology. He was a third year Commerce student, majoring in accounting at the
University of the East, when he quit schooling in 1959. He married Athena Caw Siu Tee Ong on
November 25, 1962 at the St. Jude Catholic Church, by whom he already had four children: Connie Louis,
7 years old; Dennis, 5 years old; Edgar, 3 years old; and Fanny, 1 year old. 3

On the other hand, accused Bienvenido Quintos was 39 years old, single, an unlicensed surveyor and
computer for two years already at the Robes Francisco Realty Corporation with a relatively "small"
income. He was a third year engineering student when he stopped studying. In 1954 he was charged of
Resisting Arrest and Assault Upon an Agent in Authority but this case was settled amicably. 4

Brief Synopsis of the Testimony of

the Prosecutions Witnesses

The prosecution presented several witnesses to prove its charge of kidnapping with murder. First to
testify was Patrolman Marciano Roque of the Crimes against Property Division of the Detective Bureau of
the Caloocan City Police Department who declared that: He knew Benjamin Ong for about 6 years
already because he usually investigated theft and robbery cases at the Acme Firm and at times received
some money from Ong. In a series of 6 meetings with Benjamin Ong starting from the first week of April,
1971, Benjamin Ong confided to him his plan to get a man who cheated him in gambling by as much as
P150,000; that he would ask for money from the latter's parents; and that after which, he would kill the
victim. Benjamin Ong's determination was shown when his godson was even introduced to him as one
who would help him. Benjamin Ong brought him to Barrio Makatipo in Novaliches, Caloocan City and
described it as a suitable place where to bring the victim. Ong also told him that he had acquired a bag,
flashlight and a piece of cloth. He was prevailed upon by Benjamin Ong to participate in his plan
assuring that he could resign from the government service once the money is collected. Patrolman
Roque revealed this plan to his Division Chief, Capt. Dueas, the Officer-in-Charge, Lt. Manapat and the
Chief of Police, Celestino Rosea. However, the three did not believe that Benjamin Ong had the guts to
do it. After the incident, Patrolman Roque said that he and Police Chief Rosca met with Atty. Nestor
Gonzales of the National Bureau of Investigation to supply the early leads in this case although they did
not find a trace of the crime when they went to Barrio Makatipo. 5

Miss Ligaya Tamayo testified next. She declared that: She worked as an entertainer at the Wigwam
Nightclub in Paraaque, Rizal and knew Henry Chua very well. At around 1:30 o'clock in the early
morning of April 24, 1971, she and Miss Mickie Yaro had Henry Chua and Benjamin Ong for their guests.
The two talked in Chinese and had some drinks. Benjamin Ong showed her a check in favor of Henry
Chua which he claimed that the latter won in a gambling game. She, however, did not actually see him
give it. At around 1:30 that same morning, she accompanied the two to the door and saw them leave
the place and ride in a Mustang car. 6

Sy Yap, older brother of Henry Chua, was the third witness. He testified that: He was with Atty. Nestor
Gonzales and other agents of the NBI on September 2, 1971 in Barrio Makatipo after Benjamin Ong
pinpointed the place of burial, and there he saw the decomposing body of the victim under the ground,
immersed in water. He saw and identified the following personal effects found with the body: a white
gold watch which stopped at the hour of 6:22 and date of "24"; Driver's License No. 32219 with the
name of Sy Sing Biok alias Henry Chua; Diner's card Diner Group 0004149-1; pass issued by the
Bureau of Customs for Henry Chua dated January 19, 1971; receipt for payment of the license of the car;
residence certificate; lighter; wallet; currencies in different denominations; shirt jacket; pair of shoes;
socks; brief; undershirt; T-shirt; and trousers with a mark "Especially tailored for Henry Chua, 2-2-71, No.
95812." 7
Dr. Ricardo G. Ibarrola, Jr., Medico-Legal Officer of the NBI appeared as the fourth witness. He testified on
his post mortem examination made on September 2, 1971 at La Funeraria Paz, of the deceased Henry
Chua, 31 years old, single, and on his necropsy report, Exhibit "M". He said that the deceased sustained
two wounds on the liver and large intestine caused by a long pointed cylindrical instrument similar to an
icepick. He added that most likely, the assailant was in front of and on a higher level than the victim.
Although this did not appear in his report, he theorized that the two wounds were not the immediate
cause of death since there was only a slight degree of hemorrhage in the vicinity of the punctured
wounds. He said that the liver and large intestine had no sufficient time to bleed because something
else must have happened which was the asphyxiation or suffocation of the victim due to his burial. 8 He
stated, however, in his necropsy report, Exhibit "M", that the cause of death of the deceased was
"punctured wounds of the abdomen."

Miss Clarita Teh, travel agent of Skyways Travel Service located At Ongpin St., Sta. Cruz, Manila, declared
that: At about 4:00 p.m. of April 22, 1971, Benjamin Ong called her up by phone to ask for a reservation
ticket for Hongkong and Taipei. On the morning of April 23, 1971, Benjamin Ong went to her office but
forgot to bring along his papers including his Alien Certificate of Registration. In the afternoon of April
24, 1971, Benjamin Ong went back to the office, this time with the pertinent papers plus P4,000 cash.
She said that he changed his destination from that of Hongkong and Taipei to that of Canada. However,
he needed P7,000 for this purpose. On April 29, 1971, Mrs. Ong got back the P4,000 because the latter
said that her husband did not have enough money. 9

Patrolman Gener S. Estrella, municipal policeman of Baliuag, Bulacan, followed next on the witness
stand. He stated that on April 25, 1971, he was on his tour of duty from 4:00 o'clock to 8:00 o'clock a.m.
at the poblacion when he received information that an unidentified car was parked in a gasoline station.
He therefore sought the company of Patrolman Ceferino Castro and they went to Barrio Tibag where
they saw the locked Mustang car parked in a gasoline station with plate number 16-02B, L-P.C., series
'71. They reported the matter to their head, Lt. Herminio Angeles. 10

Severo "Boy" Roslin, mechanic, gave the next testimony. He knew Fernando Tan since 1965. On April 29,
1971, early morning, he saw Fernando Tan and another, introduced to him as Alfredo Hernandez, who
happened to be Benjamin Ong. Fernando Tan requested him to bring them to the airport and obtain
airplane seats for the Visayas. He accompanied them but they failed in this endeavor so that they
proceeded to the pier. Likewise, they were frustrated in getting a passage to the South. They ended up
taking a train ride to Lucena City. Roslin said that he went back to Manila that same day. On May 1,
1971, he and Fernando Tan went to the house of Bienvenido Quintos near Abad Santos St. in Manila.
They did not see him so that they had to come back at noon. They then took him with them and, after
passing by a laundry shop, they went to Singalong where they picked up Benjamin Ong at around 7:00
p.m. Roslin claimed that they were using his Chevy car. They went to Barrio Balugo, Oas, Albay and
stayed at his parent's house. He, Quintos, and Tan stayed there for one half month where they took
themselves into swimming at the river. They left Benjamin Ong there. 11

Enrique Lacanilao, an NBI agent, testified that: Exhibits "N" and "O" are the voluntary written statements
signed respectively by Benjamin Ong on September 1, 1971 and by Bienvenido Quintos on September 3,
1971. He said that Benjamin Ong pinpointed to them the place of burial at Barrio Makatipo, and Sy Yap
was with them during the examination. They found the mouth of the victim gagged and his hands tied. It
was in a state of decomposition. The victim's body was facing downward with the buttocks protruding
up. The hands were tied just above the chest while the feet were far apart. The buttocks were one foot
from the surface while the face was one and a half feet below facing down. There were no houses in the
area which he believed was the Araneta subdivision. He directed the reenactment of the crime. It
appeared in their reenactment that Fernando Tan and Bienvenido Quintos were the ones who grabbed
Henry Chua from his Mustang car when Benjamin Ong was urinating; that the victim's mouth was
gagged while his hands were tied at the back; that during the making of the ransom note. Tan was
holding the gun while Quintos was focusing the flashlight; that afterwards, Henry Chua's hands were tied
again, this time in front; that he was stabbed after he was made to lie down facing up; that Baldomero
Ambrosio and Bienvenido Quintos pulled the victim to the hole that Baldomero Ambrosio shovelled while
Bienvenido Quintos held the flashlight; that at the time the ransom note was being prepared Benjamin
Ong was near the car, about 50 meters from the hole, so that his person did not appear in the picture of
the reenactment of this portion. Benjamin Ong was taken by the NBI into custody from the 2nd PC Zone
on September 1, 1971 at around 6:30 in the evening whereupon at 10:00 p.m. of that same night, his
written testimony was taken down up to past 12:00 midnight. He had a small bandage around his wrists
because of an attempted suicide on his part. Bienvenido Quintos, on the other hand, he said, was
arrested on September 3, 1971 and his extrajudicial statement was taken on the same day at around
7:00 or 8:00 p.m. 12

Diego H. Gutierrez, also an NBI agent, testified last for the prosecution. He identified Exhibits "Q" and
"R" as the voluntary supplementary extrajudicial statements respectively of Bienvenido Quintos and
Benjamin Ong. Gutierrez' testimony focused on Bienvenido Quintos' admission that the hole was dug
and covered with fresh twigs after the group's second meeting at the Barrio Fiesta Restaurant. 13

Brief Synopsis of the Testimony of

the Witnesses for the Defense

The defense started the presentation of their evidence with the testimony of Dr. Mariano P. Lara, retired
Chief Medico-Legal Officer of the Manila Police Department. His testimony centered on the matter of
asphyxiation. He said that asphyxiation as the possible cause of death was nowhere reflected on the
necropsy report of Dr. Ibarrola of the NBI; and that the death of the victim could have been due to shock
as a result of the wounds inflicted on him. 14

Rene Aguas, BIR examiner and first cousin of Bienvenido Quintos, then testified. He said that he went to
the NBI on September 8, 1971 in order to follow up the clearance papers of his deceased father. By
coincidence, he discovered that Quintos was detained there, so, he tried to get in touch with him. He
gathered that Quintos was "okay" although later on the latter revealed that he was hurt also. 15

Artemio R. Quintos, an engineer and father of accused Bienvenido Quintos, followed next. He said that
he visited his son on September 3, 1971 along with Atty. Bonicilla at around 7:00 p.m. at the NBI. The
guard refused to tell him where his son was so that the following day, September 4, he went back to the
NBI in the morning as well as in the evening. Still he did not find his son. On September 5, he delivered
clothes for the use of his son to the jailer, Benjamin Laforteza and was issued a receipt therefor. On
September 6, he brought a letter addressed to the Director of the NBI requesting him that he be allowed
to see his son. It was only on September 7, at 4:00 p.m. he claimed, that he met his son. He said that
Bienvenido Quintos showed to him his stomach with some bluish discoloration at the navel. On that day,
he also received his son's dirty clothes and found bloodstains on it. 16

Bienvenido Quintos then took the witness stand. He revealed that he came to know Fernando Tan when
they were still in Dagupan City long time ago. He said that he was invited on April 23, 1971 by Fernando
Tan and that they met at around 7:00 p.m. of that day. They proceeded to the Barrio Fiesta Restaurant in
Caloocan City where he was introduced to Benjamin Ong and Baldomero Ambrosio for the first time. At
9:00 p.m., they went to Brown Derby Supper Club in Quezon City after which they proceeded to Amihan
Nightclub at around 10:30 p.m. at Roxas Boulevard. He, Fernando Tan, and Baldomero Ambrosio were
left in the car. Later, Benjamin Ong went out of the Amihan Nightclub and took Fernando Tan with him.
Fernando Tan returned and after a while he was invited to the nearby Wigwam Nightclub. They hurriedly
left the place and Fernando Tan took the front seat of the Biscayne car while he took the back seat and
followed a certain car. When that car stopped, he saw Benjamin Ong vomitting. Fernando Tan and
Baldomero Ambrosio went down and Fernando Tan pulled out his gun. The victim was dragged and
forced into the rear part of their car. The victim's hands and feet were tied by Baldomero Ambrosio while
the mouth was gagged by Fernando Tan with a flannel cloth. Bienvenido Quintos made clear in his
testimony that the victim was lying on his back inside the car so that his face was up and his hands were
on his breast. Fernando Tan then threatened him with his gun should he not cooperate with them. At
Barrio Makatipo, the victim laid down on the ground and Benjamin Ong got the shovel and flashlight and
gave them to Fernando Tan. The victim was made to walk a little distance and then lie down again face
up. Benjamin Ong gave to Fernando Tan an icepick who then gave it to Baldomero Ambrosio and in turn
gave it to him. He refused to stab the victim so that he returned it to Fernando Tan who made the actual
stabbing on the victim's chest twice. According to him, there was already a hole in that place. He also
claimed that Exhibit "O" was not a voluntary statement of his and that he was maltreated by more or
less 5 men. He said that he went to Oas, Albay on May 1, 1971 but that he was never contacted by the
group between April 24 and 30. At a certain point during the proceedings, the court suspended his
testimony for about 15 minutes after he complained of an aching head. 17

Benjamin Ong testified last for the defense. He related that Henry Chua was a friend and that they were
slightly related to each other. He felt that he was cheated because he was the only one who
continuously lost in their mahjong sessions. Henry Chua's group, including Ko King Pin, Go Bon Kin and
Marcelo Tanlimco went to his office and humiliated him there. On April 21, 1971, Henry Chua called him
up by phone and invited him to the Amihan Nightclub where he could settle the gambling debt. He
admitted responsibility for Henry Chua's death but emphasized that his purpose was merely to kill him.
He added that nothing was taken from the body of the victim. He asked the assistance of Fernando Tan
and Baldomero Ambrosio who merely drove the car. He denied the testimony of Patrolman Marciano
Roque regarding his revelation of his plan. He believed that Henry Chua knew that he had a grudge
against him during that fatal day. He waited for them to dig and cover the hole which took about one
hour and a half after the stabbing. He attempted suicide by slashing his wrist 7 or 8 times while he was
still in the custody of the P.C. at Camp Vicente Limin Laguna. He was also brought by the NBI to the
Salem Motel where he was investigated from 8:30 in the evening up to 5:30 in the morning of the next
day. Exhibit "N", his extrajudicial statement, was taken while he was groggy and very weak. He likewise
pinpointed the grave. At a certain juncture during Benjamin Ong's testimony, his counsel sought the
court's permission to exclude the public from the hearing because Ong's wife would testify on
something that would constitute a "great shame" to their family. Benjamin Ong, however, refused to go
ahead with said testimony. Benjamin Ong further claimed that he decided to kill Henry Chua on April 23,
1971. He was hurt by the threatening words on the part of the victim which humiliated him and, as
such, he was forced to resign from his job. He went to the Skyways Travel Service only after the incident.
He, however, changed his destination and wanted to go instead to Canada and Europe. The reason why
he was not able to pursue his departure was because Sy Yap called him up and asked him about his
brother's whereabouts so that he seriously felt that the authorities were already after him. He left Manila
on April 29, 1971 and went to Legaspi City with Fernando Tan but found no acquaintance there so that
they went back to Manila. It was Fernando Tan who contacted Boy Roslin and Bienvenido Quintos after
which they went to Oas, Albay and stayed there for about two to three days. He hid himself on top of the
mountain with an old man. Furthermore, he said that Henry Chua was aware that he resented him.
Benjamin Ong likewise denied having called Fernando Tan at anytime, to come in with him to the
nightclub. 18

Non-Conflicting Facts

Non-conflicting facts, as shown in the testimonies of the accused and witnesses in open court, and
reiterated in the respective briefs of the parties, are as follows: For more or less one year and a half prior
to the dreadful incident, the accused Benjamin Ong used to play mahjong with the deceased Henry
Chua and the latter's companions, Ko King Pin, Go Bon Kim (sic) and Marcelo Tanlimco. In those sessions
he lost substantially that at one time, it amounted to as much as P150,000.00. He suspected that he lost
in unfair games and was completely cheated by Henry Chua and the latter's companions, who made
things worse by pressing him to pay his gambling debt with a threat of bodily harm upon his person and
that of his family. The deceased and his companions embarrassed Benjamin Ong, incident after incident,
especially when they went time and again to Benjamin Ong's office at the Acme Shoes, Rubber and
Plastic Corporation to confront him. The extent of his embarrassment was made manifest by the fact
that he had to resign from his job.

On April 21, 1971, Henry Chua repeated his demands for early settlement of his gambling debt and, as
such, invited Benjamin Ong to see him on April 23, 1971 at the Amihan Nightclub and bring with him the
money owed (P50,000.00). That same day that Henry Chua phoned Benjamin Ong, the latter contacted
and sought the assistance of Fernando Tan, a technical supervisor also of the Acme Firm. Benjamin Ong
told Fernando Tan about his grudge and plans against Henry Chua in order to avenge the
embarrassment and humiliation he suffered before the eyes of his subordinates.

Fernando Tan, who incidentally, owed Benjamin Ong his job 19, was very accommodating and he shared
Ong's feelings against Henry Chua. And, according to Benjamin Ong, Tan said "Why not just kill
him." 20 Tan immediately contacted Baldomero Ambrosia, Benjamin Ong's godson in marriage and a
former Acme employee, and likewise called upon his boyhood friend Bienvenido Quintos at the latter's
office at the Robes Francisco Realty Corporation.

On April 23, 1971, the four met at the Barrio Fiesta Restaurant in Caloocan City and finalized their plan
to liquidate Henry Chua. The group, riding in Benjamin Ong's Biscayne car, then went to the Amihan
Nightclub and arrived there at past nine o'clock in the evening. The two, Benjamin Ong and Henry
Chuamet there and had a couple of drinks. Benjamin Ong asked for patience and leniency with regard to
his indebtedness and ample time for its settlement.

From the Amihan the two went to the nearby Wigwam Nightclub where they tabled two hostesses Ligaya
Tamayo and Mickie Yaro and had some more drinks. At around 1:30 a.m. of the following day, April 24,
1971, the duo left the place and rode in Henry's Mustang car. Fernando Tan, Bienvenido Quintos and
Baldomero Ambrosio riding in Ong's Biscayne car, followed the couple down Roxas Boulevard, then to
Quiapo and Quezon Boulevard Extension in Quezon City where, after passing the Sto. Domingo Church,
they made a turn towards a dirt road leading to Del Monte Avenue. When they reached a dark and
secluded place, Benjamin Ong urged Chua to stop the car in order to urinate, to which the latter obliged.
It was at this time that the Biscayne car arrived and stopped in front of the Mustang car whereupon
Fernando Tan and Baldomero Ambrosio alighted with a flashlight and pretended to be policemen.
Fernando Tan poked his gun at Henry Chua and pulled him down from his Mustang car with Baldomero
Ambrosio giving him help. They then guided and forced him inside the rear part of the Biscayne. He was
made to lie, face up. His hands were tied and his mouth gagged with a flannel cloth. Fernando Tan and
Bienvenido Quintos then rested their feet on him. Baldomero Ambrosio drove the Biscayne while
Benjamin Ong drove the Mustang and followed them from behind.

The group took Del Monte Avenue, Roosevelt Avenue, and then E. de los Santos Avenue, right to the
North Diversion Road, and right again to Novaliches until they reached a deserted place that looked like
an idle subdivision in Barrio Makatipo, Novaliches, Caloocan City. It was here that Henry Chua was
stabbed twice with an icepick, allegedly by Fernando Tan, and buried there with all his belongings with
him consisting of a Piaget watch, lighter, wallet containing P50 bills, driver's license, diner's card, etc.

After this, the group proceeded to Barrio Tibag, Baliuag, Bulacan with Benjamin Ong and Fernando Tan
on the Mustang. There they left it locked near a gasoline station. The foursome then regrouped in the
Biscayne and proceeded back to Caloocan City where they separated at about 7:00 o'clock in the
morning.

On August 29, 1971, somewhere in Barrio Balugo, Oas, Albay, Benjamin Ong was arrested by operatives
of the 2nd PC Zone and later turned over to the NBI. On the other hand, Bienvenido Quintos was
apprehended on September 2, 1971 in his residence at Tayabas St., in Sta. Cruz, Manila by members of
the MPD and later turned over to the NBI also.

Important Points of Conflict

The prosecution adds more to what the defense claims and conflicts appear in various instances. One
such instance was the testimony of the first prosecution witness, Patrolman Marciano Roque of Caloocan
City, to the effect that one month or so before the execution of the crime, Benjamin Ong solicited his
help in consummating his plan. Patrolman Roque testified that he tried his best to convince Benjamin
Ong to desist but to no avail. It was this witness who revealed Benjamin Ong's plan to ask for money
from the rich family of the deceased and, with said money, he, Roque, could already resign from his job
should he participate. 21

In his testimony before the lower court, Benjamin Ong vehemently denied having revealed such plan to
the witness.22 However, in his brief, accused Benjamin Ong claims that this testimony if ever there was
such, does not reveal his intention to kill Henry Chua that early. At most, he said, it was a mere "infantile
thought of wishing someone dead" and no more. 23

On this point, counsel for the accused Ong, argued as follows in their well-written brief:

Pat. Roque has not categorically asserted that he was a friend of Benjamin Ong. They
came to know each other when he, as a policeman, investigated theft and robbery cases
on the complaint of the Acme Shoe and Rubber Corporation where Benjamin Ong worked
as Assistant Manager. (pp. 5-7, t.s.n., Sept. 16, 1971) As so why Benjamin would reveal a
plan to kidnap another to a policeman, in the absence of a close and long association, is
just too incredible to merit belief. Pat. Roque said that Benjamin Ong "confided to me that
I am the only person whom he can trust so he further enumerated a detail that he
intended to get a money and ask for the money from the parents of the victim. (Id., p. 10)
As to why he merited the trust of Benjamin Ong, he did not say.

Pat. Marciano Roque said that he has no criminal record (Id., p. 42). He has not conveyed
to Benjamin Ong any information that he is a gun for hire (Id., p. 43), nor does he have
that reputation (Id., p. 43). If he were a criminal or he had a reputation as a professional
killer, it is perhaps possible for one in Benjamin Ong's position to have made the
proposition to him. Moreover, when he was cross-examined on the alleged intention to
collect ransom, he committed material contradictions such as to raise serious doubt on
the veracity of his testimony. He could not categorically assert whether the alleged
intention of Benjamin Ong was to kill the victim first and demand money from his parents
after, or detain him first, and after receiving ransom money, kill the victim.

ATTY. QUISUMBING:

Q Your testimony is as follows: that he told you that after demanding the
money to kill the man, you remember that?

A That was what he said.

Q In other words, this was not the way he told you, that he would grab the
man so that he could get the money by extortion or by ransom?

A He said that after having in his possession his intended victim he would
demand some money from his parents.

Q I will recall in your direct testimony ... you said that afterwards if he could
get the money he will kill the man, that was your first testimony, which is
correct?

A He lost one hundred fifty thousand.

Q And he needed money and so he would demand money from the father
or parents of the victim, is that not your testimony?

A Yes, sir.

Q And afterwards he wanted to kill the man?

A No, sir.

Q And so what is your testimony now?

A After he got the man he will demand money from the parents or ransom
money from the parents of the victim.

Q So it is the other way. He first would kill the man and afterwards get the
money.

ATTY. DE SANTOS

The question is misleading.

COURT:

Answer.

WITNESS:

A No, sir, he said that after receiving the money the man may be killed.

Q Is that your testimony? That he will kill the victim or the victim may be
killed?

A No, sir.

Q So which is which?
 A He will kill the victim.

Q After getting the money?

A Yes sir. (pp. 38-41, t.s.n., Sept. 16, 1971)

Another point of conflict is the claim of the prosecution that a ransom note was indeed written and
copied by Henry Chua from a prepared note before the latter was ice-picked and buried. It appears that
co-accused Bienvenido Quintos stated in his supplementary extrajudicial statement before the NBI that:

Yes sir. After we have brought victim some meters away from the road, FERNANDO TAN
ordered victim to lie face down on the ground at the same (time) he untied victim and
removed the gag while his gun was still pointed at the head of Victim. Thereafter he
ordered the victim to copy a prepared ransom note in a piece of yellow paper. I saw the
figure $50,000.00 because I was holding then the flashlight. It was only after the ransom
note was written and was submitted to BENJAMIN ONG that FERNANDO TAN returned to
us. 24

This is hearsay as against Benjamin Ong. And Ong vehemently denied the same in his testimony in open
court when he said upon questioning:

Q In this statement Exhibit "N", you admitted that Henry Chua was taken
from the Mustang car and transferred to the Viscain (sic) car and then
brought to that uninhabited place in Barrio Makatipo; what was your
purpose in having the late Henry Chua taken from his car and brought to
Makatipo?

A My purpose was just to kill him, and there is (sic) not going to be any
delay.

Q Was there any purpose of detaining him for sometime?

xxx xxx xxx

A No, there was no purpose to detain him any further. 25

Also, in his extrajudicial statement, he said:

Q When you hatched the plan to kill HENRY CHUA, did it ever occur to you
to demand or ask for any ransom money from the family of HENRY CHUA?

A Never, the question of ransom money never entered my mind? 26

Admittedly, no such genuine ransom note was received by the family of the deceased. Undoubtedly, its
presence in the crime could aggravate it, allowing the imposition of the capital punishment of death. 27

Also conflicting is the matter of Bienvenido Quintos' participation at the time Henry Chua was dragged
into the Biscayne car. The briefs of both parties tend to show that it was Fernando Tan and Baldomero
Ambrosio who pulled Henry Chua out of his Mustang car, forced him into the Biscayne car, tied and
gagged him. 28 However, Agent Lacanilao testified that in the reenactment of the crime it was shown
that Bienvenido Quintos and Fernando Tan were the ones who dragged Henry Chua out of his
car. 29 Added to this is the claim of Benjamin Ong that Baldomero Ambrosio merely drove the Biscayne
for the
group. 30

The prosecution likewise claims in its brief that as early as a week before the incident, the group already
chose a site and prepared a hole where to bury Henry Chua; 31 that this group was in constant search of
the victim along the nightclub row in Roxas Boulevard during the succeeding evenings but failed to see
him; 32 that a day before the unfortunate evening, Ong contacted Miss Clarita Teh of the Skyways Travel
Service at Ongpin St., Sta. Cruz, Manila, and asked for a booking for Hongkong and Taipei, and deposited
P4,000.00 therein. 33 Similarly, it is alleged that on April 29, 1971, a few days after the incident, Tan and
Ong contacted Severo "Boy" Roslin, a long-time friend of Tan, to help them obtain airplane seats for the
Visayas, but they failed; 34 that they also proceeded to the pier to seek passage to the South on a boat
but they were likewise frustrated; 35 that instead, they took a train ride to Lucena City where Roslin left
them and after which, they continued to Legaspi City; 36 that finding no acquaintance there, they went
back to Manila; 37 that on May 1, 1971, Tan again engaged Roslin's services and with the latter driving
his car, they picked up Quintos and Ong and went to Barrio Balugo, Oas, Albay and stayed there in the
house of Roslin's parents; 38 that Ong was left there while Roslin, Tan and Quintos went back to Manila. 39

A reenactment of the crime was had by Benjamin Ong, Bienvenido Quintos and some NBI and MPD
agents who played the role of their co-accused Fernando Tan and Baldomero Ambrosio. 40

The trial of this case in the lower court proceeded with commendable speed, although separate trials for
the two accused who had been arrested so far at that time were held upon the latter's request. Both
entered a plea of "not guilty" to the crime charged upon arraignment on September 4, 1971. However,
in the case of Benjamin Ong, he invoked the doctrine laid down in the case of People vs. Yturriaga 41 to
the extent that the prosecution should not nullify the mitigating circumstance of a plea of guilty, by
counteracting it with "unfounded allegations" of aggravating circumstances in the information. In other
words, he admitted his guilt in so far as the crime of simple murder was concerned. 42

Before this Court, the accused Benjamin Ong maintains that:

The Court a quo erred in finding the accused guilty of the crime of kidnapping with murder
because

(a) There was no evidence offered against the accused which would prove that the crime
of kidnapping was committed at all;

(b) Kidnapping cannot be complexed with murder;

(c) In those cases where the Supreme Court convicted the accused of Kidnapping with
Murder, there was shown an intention to deprive the victim of his liberty, and it was held
that the kidnapping was a necessary means to commit the crime of murder.

II

The court a quo erred in finding that the killing of the deceased was attended by the
generic aggravating circumstances of

(a) Abuse of superior strength;

(b) Nighttime;

(c) Uninhabited place;

(d) Abuse of confidence;

(e) Use of motor vehicle; and

(f) Cruelty.

and the qualifying circumstances of

(a) Alevosia

(b) Evident premeditation.

III
 Assuming that the killing of Henry Chua was attended by the aggravating circumstance of
alevosia, the aggravating circumstance of abuse of superior strength and nighttime, if
present, are absorbed by treachery.

IV

The court a quo erred in not appreciating (a) plea of guilty, and (b) circumstances of a
similar nature or analogous to Article 13, paragraphs 1 to 9 of the Revised Penal Code as
mitigating.

The court a quo erred in imposing the death penalty upon the accused.

VI

The court a quo erred in sentencing the accused to pay excessive damages. 43

For his part, the accused Bienvenido Quintos argues that:

1. The lower court erred in giving full weight and credit to the extrajudicial statement of
the defendant-appellant.

2. The lower court erred in not finding that there was no conspiracy between defendant-
appellant Bienvenido Quintos and the other accused.

3. The lower court erred in not acquitting defendant-appellant Bienvenido Quintos. 44

OUR RULING
The Evidence on the Alleged Writing of a
Ransom Note is Insufficient to Support
a Finding in Favor of the Prosecution:

First, Benjamin Ong vehemently denied asking for ransom.

In the extrajudicial statement of Benjamin Ong, he was asked this question: "Q. When you
hatched the plan to kill HENRY CHUA, did it ever occur to you to demand or ask for any
ransom money from the family of HENRY CHUA?" to which he answered: "Never, the
question of ransom money never entered my mind." (Question No. 5, Exh. N.)

Secondly, no ransom note was presented as evidence by the prosecution, nor did the latter show that a
demand for money was made upon the family of the victim. In the case of People vs. Manzanero, Jr. 45,
We held:

Furthermore, what could have been the motive for the kidnapping? According to the trial
court, the ransom money was needed by Manzanero to defray the huge expenses for the
day-to-day living of his lawful wife and seven children, and of his mistress and his five
children by her, and his repair shop that was earning only about P1,000 monthly could
hardly meet the salaries of his 16 workers and mechanics. But is it credible that
Manzanero, "being the intelligent and shrewd man that he appears to be," according to
the trial court, could even have entertained the illusion that the kidnapping that he was to
perpetrate so clumsily and amateurishly would he profitable to him, and he could escape
from criminal prosecution? And what is strange is, if the ransom note was indeed written
why was it never presented in evidence? The claim that it was lost is unbelievable. That
ransom note, if it ever existed, was the most important piece of evidence that could
support the prosecution's theory that the kidnapping was for ransom. Certainly, that piece
of evidence should be kept and preserved. No plausible explanation was given how that
ransom note got lost. Neither the father nor mother of Floresita was made to testify
regarding the alleged ransom note.
 Moreover, if ransom was the purpose of the kidnapping, why did Manzanero so easily, and
without apparent reason, give up his alleged criminal enterprise, when he could have
pursued it to a successful end? If there was really that ransom note, and that ransom note
was sent the most logical thing that Manzanero would have doing was to send
instructions to Floresita's family on how, when, and to whom the ransom money should be
delivered. There is no evidence that Manzanero ever made any follow up in order to get
the ransom.

Furthermore, barely two days after the alleged kidnapping for ransom, Manzanero, without
having obtained even part of the ransom money, released Floresita. Would a kidnapper,
as Manzanero was alleged to be, readily release the victim without realizing his purpose ?
(Emphasis Supplied)

Thirdly, the extrajudicial statement of accused Quintos wherein he stated that Fernando Tan ordered
Henry Chua to prepare a ransom note wherein he saw the figure $50,000.00, is tainted with serious
doubts due to the apparent maltreatment that Quintos received from the NBI and MPD men on
September 3, 1971. 46 The medical certificates and case record 47 issued by the Philippine General
Hospital support the findings and remark of the examining physician, Dr. Florencio Lucero, that in the
person of accused Quintos, "intramascular hematoma is evident." Besides, it is hearsay and therefore
incompetent evidence against Benjamin Ong. And in the reenactment, as testified to by NBI agent
Lacanilao, while the ransom note was being prepared, Benjamin Ong was about 50 meters away from
the place where the note was being prepared.

Fourthly, although both parties in their briefs agree that the victim's hands were tied after he was
shoved into the rear floor of the Biscayne car, neither makes a categorical claim that the hands were
tied at his back. In fact Acting Solicitor General Hector C. Fule submits in his brief that the victim was
made to lie down "face up". 48 This leads to the conclusion that the rope around the victim's hands was
never removed at any instance up to the time that he was buried and exhumed. This discounts the idea
that before the victim was made to copy a prepared ransom note, the hands at his back were tied, and
after the writing, his hands were again tied, this time in front. Bienvenido Quintos in open court
positively stated that the victim was made to lie on his back inside the car and his bands tied on his
breast. 49 The contrary evidence on this point are those of Agent Lacanilao on the reenactment of the
crime which was based on the extra-judicial statement of Bienvenido Quintos. 50 However, as shown
above, this statement is of dubious veracity.

Finally, that appellants never intended to make money out of the murder of Henry Chua, can be clearly
deduced from the fact that Chua was buried with everything in his person; and during the exhumation of
his body, his brother, Sy Yap Chua, identified the articles found in the body of the deceased, such as a
Piaget watch worth around P10,000.00 (Exh. B), a wallet together with money, with P50 bills and other
denominations.

In the light of the foregoing facts and circumstances, We cannot give any credence to the testimony of
Patrolman Roque that about the first week of April, 1971, Benjamin Ong confided to him his plan to get a
man who cheated him in gambling by as much as P150,000.00; that he would ask for money from the
latter's parents and after which he would kill the victim. And the facts brought out on cross examination
of this witness, which We have discussed earlier, show the incredibility of Ong confiding to Patrolman
Roque his criminal intention, particularly, his intention to ask money from the parents of the intended
victim. As a matter of fact, this witness, on cross examination, got lost, so to speak, on the point of
whether according to Ong, he would first kill the intended victim and demand money from his parents
afterwards, or detain him first and, after receiving a ransom money, kill the victim. Furthermore, from
the first week of April, 1971, when this intention was allegedly revealed by Ong to this witness, Ong
could have changed his mind with respect to the demand for money when the victim was actually taken
and killed in the early morning of April, 1971.

There was no Kidnapping to Make the Crime a

Complex one of kidnapping the Murder

The extrajudicial confession (Exhibit N) of accused Benjamin Ong was affirmed and confirmed by him in
open court, thus:
 Q I show you this document marked as Exhibit "N", statement of Benjamin
Ong, dated September 1, 1971, do you admit that this is your statement
given to the NBI?

A Yes, sir.

Q In this statement, Exhibit "N", you admitted that Henry Chua was taken
from the Mustang car and transferred to the Biscayne car and then brought
to the uninhabited place in Barrio Makatipo, what was your purpose in
having the late Henry Chua taken from his car and brought to Makatipo?

A My purpose was just to kill him, and there is not going to be any delay.

Q Was there any purpose of detaining him for sometime?

A No, there was no purpose to detain him any further.

And the evidence on record shows clearly that the deceased Henry Chua and Benjamin Ong left the
Wigwam Nightclub at Paraaque, at about 1:30 a.m. on April 24, 1971, in the car of Chua. Chua went
voluntarily with Ong, so much so that Chua himself drove his car. They were already in Del Monte
Avenue, near the place in Caloocan where Chua was killed and buried when they tied the hands of the
deceased; that there were still disagreement among the four accused on who would kill the deceased,
until finally it was the co-accused Fernando Tan who stabbed him with an icepick; and that the four
accused, including two others, parted from each other at 7:00 o'clock in the early morning of April 24,
1971 after they brought the car of Chua and left it in Bo. Tibag, Baliuag, Bulacan.

In view of the foregoing facts and circumstances, We hold that there was no kidnapping, but only
murder, because the detention of Chua was only incidental to the main objective of murdering him and
was not a necessary means for the commission of the murder. From the Commentaries on the Revised
Penal Code of Justice Aquino, an acknowledged authority in criminal law, We find the following:

If the detention of the victim is only incidental to the main objective of murdering him,
and is not a necessary means for the commission of the murder, the crime is only murder
and not the complex one of murder through kidnapping. In the Guerrero case, the accused
Huks brought to the mountain two persons, father and son. The father was killed. The son,
a 14-year old minor, was above to escape on the second night following his detention.
HELD: The accused were guilty of murder as to the father and kidnapping as to the son.

In a 1902 case, the victim was taken from his house and then brought to an uninhabited
place, where he was murdered. HELD: The crime was murder only. There was no illegal
detention "since it does not appear that it was the purpose of the accused to commit this
offense. The primary objective was to kill the victim.

Where after the robbery committed in a house, three of its inmates were taken to a place
near the river one kilometer from the house, where they were killed, the kidnapping was
deemed absorbed in the crime of robbery with homicide.

Where the appellants kidnapped the victim at his house at Avilos Street, Manila and
forded him to ride in a car, but while the car was at the intersection of Libertad Street,
Pasay City, the victim jumped from the car and was shot to death, the crime was held to
be murder only. (I Revised Penal Code by Justice Aquino).

And We quote from the brief of appellant Ong:

The crime committed was only murder.

As early as the case of US vs. Nicolas Ancheta, et al. (No. 422, March 14, 1902; 1 Phil.
165), it was held that where the accused kidnapped the victim, Ventura Quinto, took him
to a place called Radap and there by order of Nicolas Ancheta and Sebastian Dayag, the
victim was killed, the crime committed by them was murder. The acts committed by the
accused do not constitute the crime of illegal detention since the deceased was captured
in his house and taken by the accused to an uninhabited place selected by them for the
purpose of killing them there. (At p. 169). In the case of US vs. Teodoro de Leon (No. 522),
March 10, 1902; 1 Phil. 163), there was a demand for the payment of ransom.
Nevertheless, the accused was found guilty not of kidnapping with murder but of murder
only. In this case, the deceased, Don Julio Banson was forcibly removed from his house by
Fabian Tolome, by order of Teodoro de Leon. He was tortured and maltreated by the
defendant until they arrived at a place called Bulutong. "Not satisfied with torturing the
deceased by himself he (Teodoro de Leon) ordered Tolome to give him a blow upon the
chest with a bolo. Don Julio begging for mercy, the defendant sent one of his servants to
the wife of the deceased to ask for $1,000.00 for his ransom. After the servant had been
sent all were led to a place called Cosme and upon arriving there the defendant ordered
Fabian and Tomome to conduct Don Julio to a ditch. At the same time the witness and his
three companions were given their liberty by the defendant, who remained with his two
companions and with Don Julio. Don Julio was never afterwards seen alive and his
headless body was found two or three days later in this same place." The accused was
found guilty of the crime of murder. Similarly, in the case of US vs. Emiliano Cajayon, et al.
(No. 981, Oct. 8, 1903; 2 Phil. 570) twelve armed men kidnapped Tranquilino Torres and
took him with them to the barrio Maliig in the town of Lubang, Cavite province, where they
killed him and buried him in a hole dug for that purpose. It was held that the crime
committed was murder. The pertinent facts of the case are stated briefly as follows: About
20 armed men forced their way into the house of Felix Marin, made him and his son
prisoners, and carried them off with their arms tied behind their backs. From there they
proceeded to the house of the head man of the barrio which they set on fire, and after
capturing all the inmates, brought them to an estero called the "Pasig" where they set all
prisoners free, except Felix Marin and Isabel Beltran. These two they took away in a boat
and carried to a clump of manglares, at the edge of the estero, where Maris still bound,
was decapitated by one of the band with a single stroke of a bolo. Isabel Beltran was set
free. It will be noted that as to Isabel Beltran, the son of Felix Maris and the others, who
were made prisoners, there was deprivation of liberty. Nevertheless, the accused was
found guilty of murder, and not of kidnapping with murder. In the case of People vs.
Magno Quinto, et al. (L-1963, Dec. 22, 1948; 82 Phil. 467), it was established that Gregorio
Caling was picked up at his home in Floridablanca, Pampanga by a band of Hukbalahap on
the night of December 9, 1945 and taken to the bank of the Gumain River, Gregorio
Caling was investigated in connection with his arms, maltreated, and subsequently killed.
The judgment finding him guilty of murder was affirmed. In the case of People vs. Juan
Bulatao (L-2186, Jan. 29, 1949; 82 Phil. 743), one Jose Tan was forcibly taken by four
armed men, among them the accused. The following morning, the victim was found dead.
It was also held that the accused was guilty of murder. In the case of People vs. Eufracio
Lansang (L-1187, Jan. 25, 1949; 82 Phil. 662) the accused who participated in the
kidnapping of the victim who was thereafter killed was found guilty as an accomplice in
the crime of murder. The case of People vs. Alejandro Mendiola, et al. (L-1642, Jan. 29,
1949; 82 Phil. 740) is more significant. In this case the Supreme Court said:

"The circumstances of the case, as proved by the evidence, lead us to the

conclusion that each and everyone of appellant took part with Taciano V.
Rizal in a conspiracy to kidnap as they did Teofilo Ampil and they are all
equally responsible for his killing, which was perpetrated in accordance with
the plan of the kidnappers. Once the kidnapping has been decided, the
authors necessarily had to entertain the killing as one of the means of
accomplishing the purposes of kidnapping.

"The three appellants were correctly found by the trial court guilty as
authors of the crime of murder ..."

In the case of People vs. Francisco Moreno (L-2335, March 7, 1950; 85 Phil. 731), several
armed men went to the house of Manuel Artates in barrio Pogoncile Aguilar, Pangasinan,
and took him to the Marapudo Mountains in Mangatarem where, he together with one Jose
Jasmin, was beheaded. Thereafter, "the defendant Francisco cautioned all the men who
took part in or witnessed the execution as well as the kidnapping of the two men not to
reveal to anyone what they had seen that night under penalty of punishment." The
decision of the trial court finding the appellant guilty of murder was affirmed. In the case
of People vs. Alfredo Riparip, et al.(L-2408, May 31, 1950; 85 Phil. 526), one Enrique
Roldan was on December 27, 1944 kidnapped and on the following day killed by certain
guerilla units. The accused were found guilty of the crime of murder. In People vs.
Gaudencio Villapa, et al. (L-4259, April 30, 1952; 91 Phil. 189), the deceased Federico
Agonias was taken by the accused from the house of Guillermo Calixto in barrio San
Marcelino, Balugao, Pangasinan, and he was killed about 50 meters from the house. They
were found guilty of murder. In People vs. Emeterio Sarata, et al. (L-3544, April 18, 1952;
91 Phil. 111), it appeared that the four accused took the victim Sabiano Bucad from his
house, placed him in a banca and sailed towards the opposite shore of the Bato lake
where the victim was maltreated and killed by the accused. It was held that the crime
committed was murder. In the case of People vs. Eligio Camo and Buenaventura
Manzanido (L-4741, May 7, 1952; 91 Phil. 240), the accused took the deceased Patricio
Matundan from his house in the barrio of Conda to the barrio of Talaan, both of the
Municipality of Sariaya, Quezon. Upon reaching a place near the mangroves, the group
stopped, and accused Camo shot and killed the victim. The accused were charged with
the crime of murder with kidnapping. The Supreme Court held:

"The Solicitor-General next contends that the offense committed was the
complex crime of kidnapping with murder. Again, we are inclined to agree
with the trial court that the crime committed was simple murder. It is true
that Patricio was taken from his home but it was not for detaining him
illegally for any length of time or for the purpose of obtaining ransom for his
release. In quite a number of cases decided by this court where the victim
was taken directly from his house to the place where he was killed,
kidnapping was not considered to raise the offense to the category of a
complex." (At p. 246)

In People vs. Nestorio Remalante (L-3512, Sept. 26, 1952; 92 Phil. 48), the accused with
about 10 armed men met Mercedes Tobias, accompanied by Eusebio Gerilla and Lucia
Pilo, on the way to her home in the barrio of Guiarona, municipality of Dagami, Province of
Leyte. The accused took hold of Mercedes Tobias and dragged her, while at the same time
striking her with the butt of his rifle at different parts of her body. Eusebio Gerilla and
Lucia Pilo saw Mercedes being dragged towards the sitio of Sawahan. Hardly had they
walked one kilometer when they heard gun reports. The following day, Mercedes was
found dead in Sawahan with two gunshot wounds. Nestorio Remalante was charged and
found guilty by the trail court of the crime of kidnapping with murder. As to the charge of
kidnapping, the Supreme Court held:

"There is no sufficient evidence of intention of kidnap because from the

moment Mercedes Tobias was held and dragged to the time when the gun
reports were heard nothing was done or said by the appellant or his
confederates to show or indicates that the captors intended to deprive her
of her liberty for sometimes and for some purposes and thereafter set her
free or kill her. The interval was so short as to negative the idea implied in
kidnapping. Her short detention and ill-treatment are included or form part
of the perpetration of the crime." (at p. 51)

In the case of the People vs. Silvino Guerrero, et al., (L-9559, May 14, 1958; 103 Phil.
1136, Unrep), the appellants were found guilty for the murder of Candido Disengano and
the kidnapping of Paulo Disengano. As tot he killing of Candido Disengano, it was held:

"As the court a quo has correctly held, appellants cannot be convicted of
the complex crime of kidnapping with murder under Article 48 of the
Revised Penal Code, for the reason the kidnapping was not a necessary
means to commit the murder. Candido was detained and brought to the
mountains to be killed this we have held may not be considered
kidnapping with murder but mere murder. (People v. Camo, G.R. No. L-4741,
May 7, 1952; People vs. Remalante G.R. No. L-3512, 48 O.G. 3881-3883;
People v. Villapa, et al., G.R. No. L-4259, April 30, 1952) [13 Velayo's Digest
(new series) 337; please see also 103 Phil. 1136]"
In People vs. Santos Umali, et al., (L-8860-70, January 23, 1957; 100 Phil. 1095 Unrep.),
the accused were charge and convicted by the trial court of kidnapping with murder. The
evidence shows that the deceased was killed in front of this house. The crime committed
is only murder. (13 Velayo's Digest [New Series], p. 340).

In People vs. Cenon Serrano alias Peping, et al., (L-7973, April 27, 1959; 105 Phil. 531),
the accused were charged with illegal detention with murder. After a drinking spree, the
accused, Cenon Serrano, suggested to the deceased Pablo Navarro to leave Bacolor,
Pangpanga for San Fernando for a good time, to which suggestion the latter agreed. While
the victim together with the accused Cenon Serrano and others were on the way to San
Fernando, Cenon Serrano suggested that they proceed to Angeles for a good time to
which Pablo Navarro agreed. Upon reaching barrio San Isidro, Cenon Serrano ordered the
driver to proceed to barrio Dolores, Bacolor, Pampanga where the deceased was detained
and questioned at the stockade of the civilian guards. That same afternoon, Pablo Navarro
was taken out of the stockade and was brought to sitio Castilang Malati where the
deceased was shot and killed. The trial court found the defendants guilty of the crime of
murder. The decision was affirmed by the Supreme Court. In People vs. Rosario Lao, et al.
(L-10473, January 28, 1961; 1 SCRA 42), one Rosa Baltazar was taken by two of the
accused and killed beside a creek about 6 to 10 meters away from the hatchery of the Lao
poultry farm where she was staying. The trial court found them guilty of the crime of
kidnapping with murder. The Supreme Court held that "the crime committed is not
kidnapping with murder as stated in the title of the information but murder.".

In People vs. Felipe Sacayanan (L-15024-25, Dec. 31, 1960; 110 Phil. 588), a group of five
armed men forcibly took from their hour the victims Juan Galaraga and Victor Alamar to a
place about 40 meters away from the house where they were shot. Juan Galaraga died.
Victor Alamar was seriously wounded. The trial court convicted the accused of the
complex crime of kidnapping with murder. The Supreme Court held that this was error.
"Nothing was said or done by the accused on his confederates to show that they intended
to deprive their victims of their liberty for sometime and for some purpose. There was no
appreciable interval between their being taken and their being shot from which
kidnapping may be inferred." (See People v. Remalante, 92 Phil. 48; O.G. [9] 38881).

From the foregoing discussion, it seems clear that the weight of authority is in favor of the
proposition that where the victim was taken from one place to another, solely for the
purpose of killing him and not for detaining him for any length of time or for the purpose
of obtaining ransom for his release, the crime committed is murder, and not the complex
crime of kidnapping with murder. This ruling is entirely consistent with law. Art. 267 of the
Revised Penal Code penalizes a person "who shall kidnap or detain another," and the
penalty becomes capital "where the kidnapping or detention was committed for the
purpose of extorting ransom from the victim or any other person."

xxx xxx xxx

In the case at bar, the only evidence appreciable against the appellant Benjamin Ong
regarding the surrounding circumstances of Henry Chua's death are (1) the extrajudicial
statement of Benjamin Ong, (2) the testimony of Benjamin Ong during the trial, (3) the
testimony of agent Enrique Lacanilao about the reenactment of the crime. .

In the extrajudicial statement (Exhibit N) Benjamin Ong said that from the Wigwam
nightclub, Henry Chua and he rode on Henrys Mustang Car with the latter driving it.
Fernando Tan and his friend were in the Biscayne car of Benjamin Ong following the
Mustang (Answer to Question No. 40, p. 3, Exh,. N). At Araneta Avenue in Quezon City,
Benjamin Ong requested Henry Chua to stop the car to enable him to urinate. When
Henry Chua complied, Fernando Tan and his friend stopped in front of the Mustang car,
pretending to be policeman, and ordered Henry Chua to go with them to the police
precinct. (Id., p. 5) Fernando Tan drove the Biscayne car, while Benjamin Ong in henry
Chua's car followed. From Araneta Avenue, Fernando Tan drove to Novaliches where Henry
Chua was killed, (Id.) It will be noted that no appreciable time elapsed from arrival at
Novaliches up to the time Henry Chua was killed, to indicate a separate intention to
deprived the latter of his liberty. When Benjamin Ong testified on September 22, 1971, he
 affirmed his admission of responsibility for the death of Henry Chua (t.s.n.., Sept. 22,
1971, p. 26). He further testified as follows:

ATTY. QUISUMBING:

Q In this statement Exhibit "N", you admitted the Henry Chua was taken
from the mustang car and transferred to the Biscayne car and then brought
to that uninhabited place in having the late Henry Chua taken from his car
and brought to Makatipo?

A My purpose was just to kill him, and there is not going to be any delay.

Q Was there any purpose of detaining him for sometime?

xxx xxx xxx

A No, there was no purpose to detain him any further. (Id., pp. 27-28)

The narration of agent Enrique Lacanilao about the enactment of the crime showed that
there was no detention of the deceased Henry Chua for any length of time. He was killed
and promptly buried. (Please see pp. 43-47, t.s.n., Sept. 18, 1971). On the basis of the
foregoing evidence, the accused can hardly be held liable for kidnapping as well. It may
not be amiss to state that an accused is entitled to acquittal unless his guilt is shown by
proof beyond reasonable doubt. (Rule 133, Section 1, Revised Rules of Court). The
evidence at hand hardly satisfied the requirement of proof beyond reasonable doubts as
to the charge of kidnapping. The necessary result is that the accused can be held liable
only for the killing of Henry Chua. [Brief for the Appellant Benjamin Ong y Kho, pp. 43 to
56]

And the evidence on record clearly show that Henry Chua voluntarily went with Benjamin Ong when
they left the Wigwam Nightclub at Paraaque at about 1:30 a.m. on April 24, 1971, so much so that they
rode in the car of Chua and it was driven by Chua himself. The two drove straight down Roxas
Boulevard, then to Quiapo, and Quezon Boulevard Extension in Quezon City; and after passing Sto.
Domingo Church, they made a turn towards a dirt road leading to Del Monte Avenue. When they reached
a dark and secluded place, Benjamin Ong urged Chua to stop the car for the former to urinate to which
the latter obliged. The Biscayne car where Fernando Tan, Bienvenido Quintos and Baldomero Ambrosio
were riding, stopped. Fernando Tan poked his gun at Chua and pulled him from his Mustang car with
Ambrosio giving help. His hands were tied his mouth gagged with a flannel cloth, and he was placed in
the Biscayne car. Tan and Bienvenido Quintos then rested their feet on him. Then Ambrosio drove the
Biscayne while Ong drove the Mustang. They proceeded towards Barrio Makatipo, Novaliches, Caloocan
City, where Henry Chua was stabbed to death and buried.

In other words, the time interval When the deceased Henry Chua was actually deprived of his liberty was
short (from Del Monte Avenue to Barrio Makatipo, Novaliches, Caloocan); and the same was
only incidental to the main objective of murdering him.

The only authority cited by the prosecution on this point is that of the case of Parulan vs. Rodas (88 Phil.
615). But the ruling in the Parulan case cannot be applied to the case at bar, because in the Parulan
case, the Court found that the kidnapping was a necessary means for the purpose of extorting ransom
from the victim and killing him if the desired amount could not be given; and that the defendants had to
kidnap or carry the victim from Manila (where he was already deprived of his liberty, with Parulan poking
his gun on the victim), to a faraway and secluded place (a river in Bambang, Bulacan) in order to better
secure the consent of the victim through fear to pay the ransom, and kill him if he refuses to accede to
their demands, as in fact he was killed be Parulan because of his (victim's) refusal to the ransom.

We Hold that Both Appellants are Guilty

of Murder

The killing of the victim in this case was attended by several qualifying and aggravating circumstances.
The facts on record prove this, beyond reasonable doubt, even if we were to disregard the extrajudicial
confession of Benjamin Quintos which he denied and was allegedly extracted from him through force
and intimidation.

Treachery (alevosia) qualified the killing to murder. Undisputed facts show that Henry Chua's hands were
tied and his mouth was gagged with a flannel cloth before he was stabbed twice with an icepick and
buried in a shallow grave near a creek. These facts portray well that the tied hands of the victim
rendered him defenseless and helpless thereby allowing the accused to commit the crime without risk at
all to their person. 51

The accused Benjamin Ong and Bienvenido Quintos, however, were quick to insist that this circumstance
should not be taken against them because they did not do the actual stabbing (which was done by
Fernando Tan). Easily, the weakness of this claim can be discerned. Conspiracy, connivance and unity of
purpose and intention among the accused were present throughout in the execution of this crime. The
four participated in the planning and execution of the crime and were at the scene in all its stages, They
cannot escape the consequence of any of their acts even if they deviated in some detail from what they
originally thought of. Conspiracy implies concert of design and not participation in every detail of
execution. 52 Thus, treachery should be considered against all persons participating or cooperating in the
perpetration of the crime. 53

With regards to the aggravating circumstance of abuse of superior strength, the same should be
deemed absorbed in treachery. This position is itself supported by the Acting Solicitor General in his brief
and is sustained in a long line of decisions. 54

In the same vein, the accused would like the aggravating circumstance of nighttime (nocturnidad) to be
absorbed in treachery in that it forms part of the peculiar treacherous means and manner adopted to
insure the execution of the crime. The case of People vs. Berdida 55 provides the exception to this rule
and is applicable to the case at bar. It was there held that:

From the facts and evidence of record in this case, it is clear that appellants took
advantage of nighttime in committing the felonies charged. For it appears that to carry
out a sentence they had pronounced upon Antonio Maravilla and Federico Caalete for the
death of one Pabling, they had evidently chosen to execute their victims under the cover
of darkness, at the dead of night, when the neighborhood was asleep. Inasmuch as the
treachery consisted in the fact that the victims' hands were tied at the time they were
beaten, the circumstance of nighttime is not absorbed in treachery, but can be perceived
distinctly therefrom, since the treachery rests upon an independent factual basis. A
special case therefore is present to which the rule that nighttime is absorbed in treachery
does not apply. 56

This aggravating circumstance was correctly appreciated by the lower court regardless of whether or not
the same was purposely and deliberately sought by the accused for it is clear that the darkness of the
night facilitated the commission of the crime and was taken advantage of by them. 57

The purposive selection of an uninhabited place (despoblado) is likewise clear from the evidence. The
killing was done in Barrio Makatipo, Novaliches, Caloocan City, an isolated place that resembled that of
an abandoned subdivision. The place was ideal not merely for burying the victim but also forkilling him
for it was a place where the possibility of the victim receiving some help from third persons was
completely absent. The accused sought the solitude of the place in order to better attain their purpose
without interference, and to secure themselves against detection and punishment. 58 As aptly stated in
the "Sentence" of the lower court:

... The possibility of the victim calling for succor or assistance from any third person was
ruled out by the chosen site. Trees, lush vegetation and thick cogon grasses hide the
place where the crime was committed from the view of even a chance passerby. The
choice of an uninhabited place for the killing of Henry Chua, therefore, further aggravated
the offense committed by the accused. People vs. Curiano, L-15256-57, October 31, 1962;
U.S. vs. Vitug, 17 Phil. 1). 59

In the case of the aggravating circumstance of abuse of confidence (abuso de confianza), it appears that
the lower court wrongly appreciated this circumstance. In order for this circumstance to obtain, it is
necessary that there be a relation of trust and confidence between the accused and the one against
whom the crime was committed, and that the accused made use of such relation to commit the
crime. 60 It is essential too that the confidence be a means of facilitating the commission of the crime,
the culprit taking advantage of the offended party's belief that the former would not abuse said
confidence. 61

Nowhere in the records does it appear that Henry Chua reposed confidence upon the person of Benjamin
Ong. If any, Henry Chua was simply not afraid of Benjamin Ong, having told and bragged to the latter
about his violent exploits in the past and threatened him with bodily harm in case of failure to pay. 62 He
knew that he was far stronger than Benjamin Ong in terms of influence and money. He thought that
Benjamin Ong would fear him. The fact that Henry Chua invited Ong for nightclubbing that fatal evening
and accommodated him in his car on their way home from the nightclub does not mean that Henry Chua
had confidence in him. There was no special relation of confidence between them. He knew that
Benjamin owed him a substantial amount and that its settlement had long been overdue which fact
irritated him very much. Benjamin Ong and Henry Chua were together that night in the nightclub as well
as in the car not because of said confidence. It was simply because Benjamin Ong had some accounts to
settle with him. Thus, in the case of U.S. vs. Cruz, et al., 63 it was held that: .

... The fact of Cabaya having simulated friendship and desire for work, together with the
companions who went with him, and the fact that he received food and work immediately
upon being accepted by the Americans to work in the mines, is not, as stated in the
judgment, a degree of treachery, according to law, sufficient to constitute the aggravating
circumstance of abuse of confidence. It may however, be argued as unworthy conduct and
ingratitude, but not as abuse of confidence. It is necessary first to show what has been
the confidence granted or given in order to determine whether there was or was not an
abuse of it, and in the present case there is nothing to show what the confidence given or
conceded to Cabaya was, that could facilitate the commission of the crime.

Likewise, in the case of People vs. Brocal, 64

it was held that:

There is no abuse of confidence in attempted rape where on the day of the crime the
accused was in the company of the offended girl, not because of her confidence in him,
but because they were partners in a certain business.

More convincing this time is the aggravating circumstance of use of motor vehicle in the commission of
the crime. The Biscayne car of Benjamin Ong was used in trailing the victim's Mustang car from Wigwam
Nightclub up to the time that it was overtaken and blocked. It carried the victim on the way to the scene
of the killing, it contained at its baggage compartment the pick and shovel used in digging the grave; it
was the fast means of fleeing and absconding from the scene. Again, the motor vehicle facilitated the
stark happening. It has been held that the use of a motor vehicle is aggravating in murder where the
said vehicle was used in transporting the victim and the accused. 65

Cruelty (ensanamiento) as an aggravating circumstance, cannot be considered here. The brief of the
Acting Solicitor General agrees with that of the accused in denying the attendance of cruelty as an
aggravating circumstance. Indeed, as it appears from the record, the group intended merely to kill the
victim, bury him, and flee from the locale of the fearful crime. For cruelty to exist, it must be shown that
the accused enjoyed and delighted in making their victim suffer slowly and gradually, causing him
unnecessary physical or moral pain in the consummation of the criminal act. 66 Even granting that the
victim died because of asphyxiation when he was buried and not hemorrhage from stab wounds, as
testified to by Dr. Ibarrola 67, which however, has been contradicted by his own necropsy report which
shows that the cause of death was the "punctured wounds in the abdomen," and by Dr. Lara who
testified that the two wounds could have produced death due to shock, it appears that the victim's burial
was not meant to make him suffer any longer but simply to conceal his body and the crime itself.

Concededly, the qualifying circumstance of evident premeditation (premeditacion conocida) attended

the commission of the crime. What else can better portray this circumstance than the frequent
meetings 68 of the four accused at the Barrio Fiesta Restaurant in order to discuss, lay out the plan, and
secure the different paraphernalia consisting of the rope, icepick, flannel cloth, flashlight and shovel 69.
Added to this is the careful selection of an "ideal" site for the grissly happening 70. Similarly, the plan to
go to Taipei and Hongkong immediately after the incident pictures the presence of evident
premeditation 71. The accused meditated and tenaciously persisted in the accomplishment of the crime
and were not prompted merely by the impulse of the
moment. 72

The claim of the accused Benjamin Ong that the mitigating circumstance of plea of guilty should be
appraised in his favor, is hereby sustained. Indeed, the kidnapping portion of the crime cannot be
appreciated here beyond reasonable doubt as stated at the outset. Furthermore, it can be seen that the
prosecution alleged so many aggravating circumstances which should be absorbed in one or the other.
To plead guilty to this information naturally would be most unfair for the accused especially where the
penalty would be the capital punishment of death. The accused showed signs of remorsefulness upon
his arrest when he cooperated with the police authorities in the solution of the crime. As held in the case
of People vs. Yturriaga 73,

... It only remains to consider briefly whether the defendant's plea of guilty in the form it
was entered constitutes a voluntary confession of guilt before the court as defined in the
same subsection of Article 13. We think it does.

Although the confession was qualified and introduction of evidence became necessary,
the qualification did not deny the defendant's guilt and, what is more, was subsequently
fully justified. It was not the defendant's fault that aggravating circumstances were
erroneously alleged in the information and mitigating circumstances omitted therefrom. If
such qualification could deprive the accused of the benefit of plea of guilty, then the
prosecution could nullify this mitigating circumstance be counteracting it with unfounded
allegations of aggravating circumstances.

We hold that the accused Benjamin Ong is likewise entitled to the mitigating circumstance that is
analogous to passion and obfuscation (Art. 13, par. 10, Revised Penal Code), based on the following facts
stated in his brief:

a) Henry Chua and his companions went to the office of Benjamin Ong. In a loud voice, with angry
gestures, and in the presence of his subordinates and fellow employees, Henry Chua demanded
payment, and threatened bodily harm to him and his family.

b) Henry Chua went as far as to threaten the life of Benjamin Ong unless his obligation to Chua was
paid. "If you treasure your life, you better pay first."

c) Because of this incident, he, Benjamin Ong, "was humiliated."

d) His brother-in-law, Chua Pak told him that he was holding a very responsible position in the company
and so he should not be involved in any scandal.

e) He was "discredited and degraded in front of my brother-in-law." He was so embarrassed, he finally

tendered his resignation from the company.

f) Because of the threat of Henry Chua, the accused tried to get money from all sources but he was not
successful. The allotted time was so short. To relieve him of the pressure brought to bear upon him to
pay his gambling debt, he even thought of embezzling money belonging to the company in which he
worked.

g) Because of his inability to raise money to be paid to Henry Chua, he became "deeply depressed." He
felt: "I was being turned into a criminal.

h) He begged Henry Chua to give him more time to raise the money. "Nagmamakaawa na ako sa
kanya." This was the night before Henry Chua was killed. If Henry Chua had granted him time "the whole
plan to kill Henry Chua might not materialize." But Henry Chua, while not relenting, but perhaps in utter
contempt and disdain of Benjamin Ong instead decided to transfer from Amihan to Wigwam because he
wanted to be entertained by a hostess. Henry Chua, it will be noted, was well known to Wigwam
hostess, Ligaya Tamayo. Benjamin Ong was seen by her for the first time that evening.

i) So while Chua enjoyed himself, Benjamin Ong was worried, as he pleaded with Henry Chua in vain for
more time to pay the obligation.
 xxx xxx xxx

In People vs. Timoteo Olgado, et al (L-4406, March 31, 1952; 91 Phil. 908 Unrep.), the two accused were
provoked to commit two murders because of the indecent propositions made to the women by Jalumio
and his companions. For Mario Aninias, this is the mitigating circumstance of passion and obfuscation or
vindication of a grave offense to his wife. 74

In this regard, accused Benjamin Ong filed on October 10, 1973 before this Court a Petition for New Trial
and/or to Consider Case as Simple Murder. 75 In this petition, Benjamin Ong's wife, Athena Caw Siu Tee
Ong, alleged in an affidavit an incident when her husband refused to allow her to testify on during the
regular trial in the lower court. She said that Benjamin Ong suppressed it because it would be a source
of "great shame" to their family. Indeed, the records show how Benjamin Ong's counsel vainly convinced
him to tell it but he refused to do so. 76 Lately, Benjamin Ong has changed his mind and has consented
to his wife's divulging the story. Said story simply consists of Henry Chua's proposal of love and
attempted rape allegedly committed on the person of Athena on April 15, 1971 which Henry Chua asked
in lieu of the payment of the gambling debt. However, this matter is now academic because it would
only tend to bolster the mitigating circumstance that is analogous to passion and obfuscation, which we
have just considered in favor of the accused Benjamin Ong.

IN VIEW OF ALL THE FOREGOING, the two accused-appellants Benjamin Ong y Kho and Bienvenido
Quintos y Sumaljag, are hereby found guilty beyond reasonable doubt of the crime of murder with the
attendant qualifying circumstance of treachery, and the aggravating circumstances of evident
premeditation and use of motor vehicle. These two circumstances are offset by the mitigating
circumstances of plea of guilty and one similar or analogous to passion or obfuscation which are
appreciated in favor of accused-appellant Benjamin Ong who is hereby sentenced to reclusion perpetua.
Justices Teehankee and Makasiar, however, are of the opinion that the crime committed by the two
accused-appellants Benjamin Ong and Bienvenido Quintos is kidnapping with murder and that the
kidnapping was conceived for the purpose of extorting ransom, among other motives. The members of
the Court failed to arrive at a clear consensus on the existence of the aggravating circumstances of
"nighttime" and "uninhabited place" (which Justice Barredo, in his concurring and dissenting opinion,
concluded do not obtain in this case).

With respect to the accused-appellant Bienvenido Quintos, although no mitigating circumstance can be
appreciated in his favor, and he should therefore be sentenced to death, the Court hereby imposes upon
him the penalty ofreclusion perpetua and not death, because of Our conclusion that his co-accused-
appellant Benjamin Ong should be sentenced only to reclusion perpetua, and because Justice Barredo, in
his concurring and dissenting opinion, even concluded that Bienvenido Quintos is guilty only as an
accomplice; and hence, in any event, We would not have the necessary ten votes for the imposition of
the death penalty upon said accused-appellant. .

As We hereby sentence the two accused-appellants Benjamin Ong and Bienvenido Quintos to suffer the
penalty of reclusion perpetua, We affirm that part of the decision under review, which sentenced them
jointly and severally to indemnify the heirs of the deceased Henry Chua in the amount of P1,000.00; to
pay moral damages in the amount of P50,000.00, and another P50,000.00 as exemplary damages; and
to pay their proportionate share of the costs, as We find no reason to disturb the same.

45. PEOPLE OF THE PHILIPPINES, appellee, vs. NELSON CARIO, DOMINGO BANHAON, LUIS
CORCOLON, ROGELIO BOY CORCOLON, JOSELITO LITO CALONG-CALONG and BOY
PANSIT, accused,
DOMINGO BANHAON, LUIS CORCOLON, ROGELIO BOY CORCOLON, and JOSELITO LITO
CALONG-CALONG,appellants.
DECISION
CALLEJO, SR., J.:
Before the Court is the appeal of the Decision [1] of the Regional Trial Court of Pasig City, Branch 160,
in Criminal Case No. 107788-H, finding the appellants guilty beyond reasonable doubt of murder,
qualified by treachery, sentencing all of them to suffer the penalty of reclusion perpetua and ordering
them to indemnify, jointly and severally, the heirs of the deceased Ruben A. Velecina in the amount
of P50,000; and to pay the said heirsP20,000 as moral damages; and, P10,000 as exemplary damages.
 On March 3, 1994, accused Nelson Cario, Boy Pansit, appellants Domingo Banhaon, Luis
Corcolon, Rogelio Boy Corcolon and Lito Calong-Calong were charged with murder in the Regional Trial
Court of Calamba, Laguna, originally docketed as Criminal Case No. 3953-94-C. On March 2, 1998, the
Court resolved to transfer the case to the Regional Trial Court of Pasig City. The case was re-docketed
and raffled to Branch 160 thereof. The accusatory portion of the information reads as follows:
That on or about July 30, 1989 at Barangay Bayog, Los Baos, Laguna and within the jurisdiction of this
Honorable Court, the above-named accused conspiring and confederating together and mutually helping
each other and with treachery, abuse of superior strength and with the aid of armed men, did then and
there wilfully, unlawfully and feloniously with intent to kill, attack, assault and employ violence upon the
person of Ruben Velecina by then and there shooting him with powerful firearms thereby inflicting upon
him serious and mortal injuries in the different parts of his body which directly caused his death to the
damage and prejudice of his surviving heirs.[2]
Except for Nelson Cario and Boy Pansit who remained at large, the rest of the accused were
arrested. When arraigned, the accused, assisted by counsel, entered their respective plea of not guilty.
The Case for the Prosecution
Leopoldo Cario and his brother, Nelson Cario, Luis Corcolon, Rogelio (Boy) Corcolon, Lito Calong-
Calong, Domingo Banhaon, Boy Pansit and Norberto Ongjuatco were bodyguards of Mayor Antonio
Sanchez of Calauan, Laguna. Leopoldo was gunned down by an unknown assailant, and Mayor Sanchez
suspected that the following persons were involved in the killing: Ruben Velecina; his mother, Atanacia
Velecina; his brother who was a tricycle driver, Valentin Velecina; Bernardo Velecina; and Recto Aniceto,
all residents of Los Baos, Laguna.
Nelson Cario was reported to have killed Bernardo Velecina, while Recto Aniceto was reportedly
shot by the group of Lito Calong-Calong. Norberto Ongjuatco, one of the bodyguards of Mayor Sanchez,
secretly warned Valentin to be careful. When apprised of the impending peril to their lives, Valentin,
Ruben and their mother, Atanacia, were afraid that they would be killed next on orders of Mayor
Sanchez.
Isidro Velecina and Dory Perez were to be wed on July 30, 1989. A pre-nuptial party was set in the
evening of July 29, 1989, to be held in the yard of the Perez residence at Barangay Bayog, Los Baos,
Laguna. Roger Perez, Dorys father, invited his friends, and among them was Edwin Botero, a former
soldier in the Philippine Army and a security guard employed at the Philippine Long Distance
Company. Ruben Velecina, Isidros father, also invited guests of his own. Rubens brother, Valentin,
arrived at the house with his family at about 7:00p.m. His wife, Ofelia, his mother, Atanacia, and his son
Rowel were with him. Valentin, Edwin and other guests had a drinking spree in front of the house where
the other guests were dancing and singing. The house was made of bamboo and wood.
Between 12:30 and 1:00 a.m., July 30, 1989, Edwin noticed a white Ford Fiera with plate number
777 stop in front of the alley leading to Rogers house, about twenty (20) meters from where he and his
friends were drinking Tanduay. The Fiera was followed by a tricycle and a galvanized owner-type jeep
driven by Boy Pansit. Edwin saw that Mayor Sanchez was inside the Fiera, along with two others who
were seated at the backseat; beside Boy Pansit was Lito Corcolon. The latter alighted from the
jeepney, approached Edwin and asked him if Ruben and Roger, the fathers of the persons to be wed,
were inside the house. Edwin replied in the affirmative. [3] Thereafter, Lito Corcolon returned to the Ford
Fiera and whispered something to Mayor Sanchez. [4] The Ford Fiera then drove away.
Lito Corcolon, Rogelio Corcolon, Nelson Cario, Boy Pansit, Lito Calong-Calong and Domingo
Banhaon then alighted from the jeepney and entered the alley leading to the Perez residence. They
posted themselves near the kitchen. When Valentin Velecina saw Mayor Sanchez men arrive, he posted
himself in a dark place near the chicken coop, about seven (7) meters from the western side of the
house. Valentin could see the kitchen from where he was. He could also see the bodyguards of Mayor
Sanchez, all of whom were armed with short handguns.
Momentarily, Carlos Medel, Valentins cousin arrived near the chicken coop to urinate. When he saw
Carlos, Valentin pulled his leg and told him to go to the kitchen to tell his brother, Ruben, and his
mother, Atanacia, that the bodyguards of Mayor Sanchez were in the vicinity. Carlos obliged and
left. Meanwhile, Ruben went to the comfort room which was near the kitchen sink and was covered by
bamboo slits. As he emerged from the comfort room, Nelson Cario, Lito Calong-Calong, Rogelio and
Lito Corcolon aimed their guns at the kitchen and fired successively. Boy Pansit and Domingo
Banhaon pulled out their guns and acted as lookouts.
People hurriedly scampered away when they heard the gunfire. There were shouts of: May patay,
may patay! Momentarily, Nelson Cario told his companions: Tayo na, yari na iyan. The six
bodyguards of Mayor Sanchez then left the scene and boarded the jeepney. Edwin and Valentin heard
two more gunshots coming from the direction of the jeep, after which the vehicle sped away.
Meanwhile, Valentin remained behind the chicken coop until he felt that it was safe for him to come
out. Momentarily, he heard his brother, Ruben, cry out, Ate Uping, may tama ako.[5] Valentin rushed to
the kitchen and saw Ruben lying on the floor, mortally wounded.
Isidro Velecina and Roger Perez reported the incident to the police. Policemen, including Wilfredo
Palacpac and Oscar Ampao, rushed to the scene, [6] and saw the cadaver of Ruben lying on the ground,
face down. The policemen recovered five empty shells fired from a .45 caliber gun, as well as slugs
which were embedded on the cement walls of the house. In the course of the policemens on-the-spot
investigation, no one ventured to identify the perpetrators. The shooting incident was recorded in the
police blotter.
Dr. Ruben B. Escueta, the Rural Health Physician of Calauan, Laguna, conducted an autopsy on the
cadaver of Ruben Velecina and submitted a report of his findings, viz:
NECROPSY FINDING
General Survey
Well develop (sic), well nourish (sic), male, white complexion measuring 165 cms. and weighing about
130 lbs. Wearing checkered and white and black brief and bearing gun shot (sic) wounds on different
parts of the body.
REGIONAL EXAMINATION
Head No Injury
Face No Injury
Neck and Nape No Injury
Chest
1). Through and through gun shot (sic) wound on the left lateral side of the chest to the right lateral
side. The point of entrance is located between the 5th and 6th ribs. Its entrance measure 1 cm. in
length and 1 cm. in width. The point of exit is located between the 9th and 10th rib on the right lateral
side of the chest, measuring 2 cms. in length and 1.5 cms. in width.
Back
2) Through and through gun shot (sic) wound on the right side of the back. Through the left side. The
point of entrance located between 4th and 5th ribs medial portion measuring 1 cm. in width. The point
of exit is located at the lateral side of the chest between the 9th and 10th ribs measuring 2 cms. in
length and 1.5 cms. in width.
3) Through and through gun shot (sic) wound on the right flank wound between the 2nd and 3rd lumbar
vertebrae through posterior portion of the chest between the 9th and 10th ribs left side of the
chest. The point of entrance is located between the 2nd and 3rd lumbar vertebrae measuring 1 cm. in
length and 1 cm. in width. The point of exit is located between the 9th and 10th ribs, lateral side of the
chest. Measuring 2.5 cms. in length and 1.5 cms. in width.
4) Through and through gun shot (sic) wound on the left lumbar area. Located at the level of 6th
vertebrae, through left waist line (sic). The point of entrance is located at the level of 6 th lumbar
vertebrae. Measuring 1 cm. in length and 1 cm. in width. The point of exit is located at the left
waistline. Measuring 2.5 cms. in length and 1.5 cms. in width.
EXTREMITIES
Upper extremities
Right
5) Through and through gun shot (sic) wound on the right shoulder through the left lateral side of the
chest. The point of entrance is located on the tip of the right shoulder measuring 1 cm. in length and 1
cm. in width. The point of exit is located on the left lateral side of the chest between the 5th and 6th
ribs.
6) Left upper extremity
Gun shot (sic) wound on the medial portion of the left forearm. The point of entrance is located on the
lateral medial portion of left forearm measuring 1 cm. in length and 1 cm. in width. The bullet lodge
(sic) on the medial portion of the humerous (sic).
Lower Extremity
Right Lower Extremity No Injury
Left Lower extremity
Through and through gun shot (sic) wound on the medial portion of left thigh. The point of entrance is
lateral medial portion of left thigh measuring 1 cm. in length and 1 cm. in width. The point of exit is
located on the inner medial portion of the left thigh. Measuring 2.5 cms. in length and 1.5 cms. in width.
AUTOPSY FINDING
Head
Cranial vault No injury
Brain tissue pale in appearance with collapsed blood vessel
Chest
Bonythorax
Fracture on the medial portion of 10th rib left side of the chest.
-through and through gun shot (sic) on the left upper lobe of the
lungs
Right lungs congested
Heart laceration of the paracardiac soc (sic).
laceration of the posterior portion of the ventricle.
laceration of the coronary blood vessel.
Abdominal Cavity laceration of peretonial (sic) covering of the abdomen.
laceration of anterior lobe of the liver.
Laceration of the rectus muscle on the muscle on the right side of the abdomen
Extremities upper right extremity
laceration of the deltoid muscle blood vessel on the right shoulder
REMARKS:
About 2 liters of blood were obtain (sic) from the thoracic cavity.
CAUSE OF DEATH:
Massive Intra Thoracic Hemorrhage due to Gun Shot (sic) Wounds.[7]
In the meantime, Atanacia advised her son Valentin to hide, as he might be killed next. Valentin
heeded his mothers advice and hid in San PabloCity. He sought the help of the Ombudsman and the
Criminal Investigation Service (CIS) of the Philippine National Police, but was told to seek the help of the
New Peoples Army in Quezon. He reported the shooting to NBI Director Antonio Carpio, who referred
him to the police authorities in Batangas. When he went to the police authorities in Batangas and
revealed the identity of his brothers assassins, he was told: Bumangga ka pala sa pader, magpahinog
ka.
Nonetheless, on March 15, 1991, Valentin sought the help of the President of the Philippines and
gave a sworn statement to Norberto Galang at the Kalayaan Hall, Malacaang, Manila.[8] Edwin Botero
was, however, afraid to reveal the identities of the culprits to the police authorities and that he
witnessed the killing.
On August 13, 1993, Mayor Antonio Sanchez was arrested for rape with homicide. His bodyguards,
the Corcolon Brothers Luis and Rogelio, had earlier surrendered to the Criminal Investigation Service for
the same crime.[9] Barely three (3) days after Mayor Sanchez arrest, Edwin Botero gave his sworn
statement to the Anti-Organized Crime Division of the NBI. [10] He applied for and was granted protection
under the Witness Protection Program of the Department of Justice.
The Case for the Appellants
Appellant Rogelio Boy Corcolon denied the charge against him and offered alibi as his defense.
While admitting that he knew Mayor Antonio Sanchez, [11] he denied that he had ever been in the latters
employ. He claimed that he worked as a company guard of San Miguel Corporation. [12]He related that at
or about 1:00 a.m. of July 30, 1989, he was in his residence at Barangay Mabacan, Calauan, Laguna,
approximately thirty minutes away from Barangay Bayog. [13] He stated that he knew accused Cario as
Bodoy, but denied being with the latter on July 30, 1989. He, likewise, disclaimed knowing appellant
Calong-Calong and explained that he only met him in the courtroom. He denied knowing Edwin Botero,
saying that he met the latter only at the NBI. He also stated that he did not know much about Ruben
Velecina and Boy Pansit.
For his part, Luis Corcolon claimed that at the time the incident occurred, he was a resident of
Barangay Masaya. He denied knowing the victim, Ruben Velecina, but admitted that he used to see
Valentin Velecina in the cockpit. He had heard of the name Nelson Cario, but denied knowing the
appellant Domingo Banhaon. He only got to meet Boy Pansit and Lito Calong-Calong in court. [14] He,
likewise, denied that he was, at any time, in the employ of Mayor Sanchez, and claimed that he knew
the latter only because he was the Mayor of Calauan.[15]
Domingo Banhaon, on the other hand, claimed that in the afternoon of July 29, 1989, he was in their
residence at Barangay San Isidro, Calauan, Laguna, with the newly-eloped couple Alfredo and Lorenza
Alcantara.[16] As a friend and cousin of Alfredo, appellant Banhaon and his wife helped the Alcantara
couple in preparing for their marriage. Appellant Banhaon fetched Barangay Captain Alberto Oroga of
Barangay Lanot, and the latter accompanied them and the Alcantara couple to Alfredos parents, who
were residing in Barangay Talang Uno, Lumban, Laguna where Alfredos parents resided. They left
Calauan at 6:00 p.m. and reached Lumban at 8:00 p.m. [17] The Banhaons helped the Alcantara couple
explain their situation to Alfredos parents. The talk ended at around 10:00 p.m., prompting the
Banhaons to spend the night at the Alcantara residence. They left Lumban for Calauan at 5:00 a.m. of
July 30, 1989. Upon reaching their house, Domingo Banhaon learned of Ruben Velecinas death. He
then attended the victims wake, as the latter also happened to live in the same barangay. [18] He
admitted that he knew the Velecina family, having worked for them as helper.
Appellant Banhaon also claimed that Valentin Velecina, the victims brother, knew him to have
provided photography services to Mayor Sanchez. Valentin approached him, and asked him to testify
and implicate the Mayor in the killing of Ruben. Appellant Banhaon also claimed that Valentin threatened
to implicate him in the murder of Ruben if he refused. As he did not know anything about the
circumstances of Rubens death, appellant Banhaon refused to testify against Mayor Sanchez. Hence,
Valentin Velecina implicated him in the killing.
Appellant Banhaon presented Lorenza Alcantara as witness to corroborate his testimony. [19]
Appellant Joselito Calong-Calong, for his part, denied any participation in the killing. He claimed
that he was never employed by Mayor Sanchez, but that he worked as a truck helper at the Pepsi
Bottling Company from 1976 to 1991, and then transferred to the Cosmos Bottling Company in 1992
until he was arrested. He said that he came to know Rogelio and Luis Corcolon only during the
arraignment of the case.[20] He also claimed that on July 29, 1989, he arrived from work at 7:00 p.m. and
stayed at home with his wife and children. He went to church the next day. On his way home, as he
passed by the house of Dominador Banhaon, he learned of the death of Ruben Velecina, who lived only
about twelve (12) Meralco posts away from him. He countered that Valentin Velecina approached him
to testify in the killing of Ruben. When he refused, Valentin got mad and threatened him, Para kang
hindi kanayon, kapag akoy nainis sa yo, isasama kita.[21]
On September 30, 1996, the trial court promulgated its decision finding the appellants guilty beyond
reasonable doubt of murder. The dispositive portion of the decision reads:
WHEREFORE, foregoing considered, the Court finds accused LUIS CORCOLON, ROGELIO BOY
CORCOLON, LITO CALONG-CALONG, and DOMINGO BANHAON, GUILTY, beyond reasonable doubt of the
crime of Murder under Article 248 of the Revised Penal Code, qualified by treachery and there being no
mitigating or aggravating circumstances present in the commission of the crime, hereby sentences, said
accused to suffer a penalty of reclusion perpetua, and the accused jointly and severally to indemnify the
heirs of the deceased in the amount of P50,000.00, to pay moral damages of P20,000.00, exemplary
damages of P10,000.00 and to pay the costs.[22]
The trial court declared that the prosecution was able to prove and establish the crime charged and
that the appellants were guilty thereof. It found Edwin Botero and Valentin Velecinas positive
identification of the victims assailants credible and entitled to full probative weight, as against the
denial and alibi of the appellants. It held that the initial reluctance of the aforesaid witnesses to testify
against the appellants did not militate nor diminish their credibility, especially considering the perilous
situation they were in. Further, Valentin Velecina had no reason to implicate his barriomates, appellants
Banhaon and Calong-Calong.
The court found that the appellants conspired with one another in killing the victim, and that they
committed the crime with treachery and abuse of superior strength.
The Present Appeal
The appellants now come to this Court to appeal the trial courts decision.
The appellant Calong-Calong assails the decision of the trial court contending as follows:
THAT THE HONORABLE COURT A QUO COMMITTED SERIOUS ERRORS IN LAW AND/OR MISAPPREHENSION
OF FACTS WHEN IT FOUND THE ACCUSED-APPELLANT JOSELITO CALONG-CALONG GUILTY OF THE CRIME
OF MURDER DESPITE THE PRESENCE OF REASONABLE DOUBT AND/OR INSUFFICIENCY OF EVIDENCE AS
AGAINST HIM THE ALLEGED PRESENCE OF CONSPIRACY NOT HAVING BEEN DULY PROVEN BY THE
PROSECUTIONS EVIDENCE [23]
Appellant Calong-Calong asserts that the trial court committed serious errors in law when it found
him guilty beyond reasonable doubt of murder, considering that the evidence presented against him
was insufficient, especially as witnesses Edwin Botero and Valentin Velecina failed to identify him. He
stressed that witness Valentin Velecina was ill-motivated in implicating him in the murder charge. He
furthered that only one kind of weapon caused the wounds that led to the death of Ruben Velecina. [24]
The appellants, Corcolon Brothers, for their part, contend that:
THE REGIONAL TRIAL COURT IN PASIG CITY (BRANCH 160) HAS ERRED IN NOT ABSOLVING AND FREEING
ACCUSED-APPELLANTS LUIS CORCOLON AND ROGELIO CORCOLON OF THE SERIOUS CRIME OF MURDER
DUE TO THE PRESENCE OF REASONABLE DOUBT IN THEIR FAVOR.
They point out that the RTC erred in finding them guilty beyond reasonable doubt of the crime of
murder, when the prosecution was not able to prove that they were involved in the aforesaid crime.
The appellant Banhaon, on the other hand, argues that he should be acquitted of the crime charged:
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT DOMINGO BANHAON GUILTY OF
MURDER DESPITE THE INSUFFICIENCY OF THE PROSECUTION EVIDENCE THAT WOULD WARRANT A
CONVICTION BEYOND REASONABLE DOUBT.[25]
 Appellant Banhaon contends that the trial court erred in not considering his defense. He
emphasized that his innocence is buttressed by his voluntary surrender and the decision to remain in jail
despite an opportunity to escape during a jail break.[26]
On the other hand, the OSG avers that the prosecution established the crime with clear and
convincing evidence through the testimony of witnesses Edwin Botero and Valentin Velecina. The OSG
contends that, in light of the prosecution witnesses testimonies, the denial and alibi of the appellants
cannot prevail. The prosecution, likewise, proved that the appellants, in conspiring with one another and
with the use of treachery and abuse of superior strength, willfully and unlawfully, killed Ruben Velecina.
The Ruling of the Court
The threshold issue is whether or not the trial court erred in giving credence and probative weight to
the testimonies of the prosecution witnesses while disbelieving those of the appellants.
Well-settled is the rule that the findings of a trial court on the credibility of witnesses deserve great
weight, as the trial judge has a clear advantage over the appellate magistrate in appreciating
testimonial evidence. The trial judge is in the best position to assess the credibility of the witness as he
had the unique opportunity to observe the witness firsthand and note his demeanor, conduct and
attitude under grueling examination. Absent any showing that the trial courts calibration of credibility
was flawed, we are bound by its assessment. [27] Only the trial judge can observe the furtive glance,
blush of conscious shame, hesitation, flippant or sneering tone, calmness, sigh, or the scant or full
realization of an oath all of which are useful aid for an accurate determination of a witness honesty
and sincerity. The trial courts findings are accorded finality, unless there appears in the record some
fact or circumstance of weight which the lower court may have overlooked, misunderstood or
misappreciated, and which, if properly considered, would alter the result of the case. [28]
We have reviewed the records and we find no justification to deviate from the findings of the trial
court. The denial of the appellants of the crime charged cannot prevail over the positive declarations of
prosecution witnesses Edwin Botero and Valentin Velecina. The defense of alibi is inherently weak and
crumbles in the light of positive declarations of truthful witnesses, who testified on affirmative matters
that the appellants were at the scene of the incident and were among the victims assailants. [29] Positive
identification where categorical and consistent and without any showing of ill motive on the part of the
eyewitness testifying on the matter prevails over a denial which, if not substantiated by clear and
convincing evidence is negative and self-serving evidence undeserving of weight in law. [30]
In this case, Valentin Velecina testified that at a distance of seven (7) meters or so, and while he
was hiding in a nearby chicken coop, he saw the accused Nelson Cario, appellants Luis Corcolon,
Rogelio Corcolon and Lito Calong-Calong fire their guns towards the kitchen sink, as Ruben Velecina
emerged from the comfort room, while Domingo Banhaon and Boy Pansit acted as lookouts. When
Luis Corcolon and his cohorts stopped firing, he heard his brother say, Ate Uping, may tama
ako. Immediately after the assailants left, he entered the house and saw his brothers body slumped
on the ground, soaked in his own blood.[31] The testimony of Velecina is quoted, viz:
Q: While you were at the back of the house of Dory Perez, what transpired next?
A: At about 10:30 in the evening when I noticed that several persons arrived coming from
the back portion of the house and not infront of the house.
Q: You are referring to what date, Mr. Witness?
ATTY. PIO: Already answered your Honor.
COURT: Witness may answer.
A: July 29.
FISCAL:
Q: Now, you said that there were several persons who arrived, who were these persons?
A: The six (6) persons I have mentioned earlier. [32]

Q: Upon arrival at the said place, what did they do there?

A: When I saw them at that time they just stood near the house and positioned themselves.
Q: Mr. Witness, how far were you from these persons when you saw them?
A: More or less as far as that window
.
INTERPRETER: Measuring a distance of eight meters.
FISCAL:
Q: How long did they stay on the said place?
A: More or less as I could estimate about one half hour.
 Q: How about you, where were you at that time?
A: I was just standing at that time which was not well lighted.
Q: Why were you so certain that those persons whom you saw were the same persons?
A: Because on the place where they entered there was a flourescent light lighted.
INTERPRETER: Witness pointing to the long flourescent tube.
FISCAL:
Q: By the way Mr. Witness, you have earlier pointed to this Honorable Court the persons of
Rogelio Corcolon and Luis Corcolon, how about the other persons you saw at Dorys
residence, please look around?
A: They are not around.
Q: After thirty minutes (30) of staying there what happen (sic) next?
A: Before the lapse of thirty minutes somebody approach me.
Q: Who was that person who approached you?
A: Carlos Medel asked permission if he could urinate.
Q: When he approached you, what did he do?
A: I whisper[ed] to him to go inside and tell not to go out for the henchmen of Mayor
Sanchez was here.
Q: What was the reaction of Carlos Medel, whom you instructed to go inside?
A: He entered the house and told me that they would inform.
Q: So, you were left outside?
A: Yes, Sir.
Q: What did you do when you were left behind?
A: I cover[ed] myself by trying to get near them so that I could identify them.
Q: What did you do next to these fellows whom you earlier named?
A: After a while I saw them pulling out short firearms and I saw them aiming their guns on
the persons on the side and then bursts of gunshots near a wall, it was just a wall with
bamboo on top of it.
Q: Would you kindly specify those persons whom you said were carrying firearms?
A: The six of them but only four aimed their firearms.
Q: Do you know the caliber of firearms they were carrying at that time?
A: I could not remember if 45 or 38.
Q: You earlier stated PUMUTOK towards what direction were the firings directed?
A: Inside.
Q: Inside what?
A: Inside the house.
Q: What happened after that?
A: When they were firing their guns, the people scampered away.
Q: How about you, where were you at that time?
A: I stayed in my place and watch.
Q: How long did the firing last?
A: I could not remember for how long but only for a short while.
Q: After that firing, what transpired next?
A: I heard my brother Ruben shouting ATE UPING MAY TAMA AKO.
Q: Upon hearing this remark of your brother, what did you do?
A: I still stay there and I did not get away till those persons left.
Q: Towards what direction were those people who shoot your brother proceeded?
A: Towards the place where they entered.[33]

 FISCAL:
Q: Mr. Witness, when the person whom you earlier named aimed or fired their firearms
towards the direction of Dorys residence, where were you at that time?
A: I was at a dark place near the chicken coop.
Q: When did you come out of the place where you were hiding?
A: After the gunshot and Nelson Cario uttered TAYO NA YARI NA YAN.

Q: After the group left the place, what followed next?

A: After they have left in a few seconds, I heard two gunshots, they fired twice when they
were at the road when I heard before the time they sped away, that is the time I entered
inside.
Q: When you entered your brother?
A: Yes, Sir.
Q: Do you recall if your brother was armed at that time?
A: None, Sir.
Q: You earlier stated Mr. Witness that there were four among those persons whom you earlier
named who fired their guns?
A: Yes, Sir.
Q: Who are they?
A: Nelson Cario, Luis Corcolon, Lito Calong-Calong, Rogelio Corcolon and the other two have
guns but they seem to be look out.
Q: Who were those two that you are referring to Mr. Witness?
A: Domingo Banhaon and Boy Pansit.
Q: Mr. Witness, will you kindly tell again the Honorable Court those persons, the six persons
whom you earlier mentioned were here?
A: Only three.
Q: Who?
A: Luis Corcolon the one with fan.
INTERPRETER: Witness pointed to Luis Corcolon.
A: Rogelio Corcolon.
INTEPRETER: Witness pointed to Rogelio Corcolon, one of the accused in this case. [34]
Edwin Botero corroborated the testimony of Valentin Velecina. He testified that he saw Luis
Corcolon, Rogelio Corcolon, Boy Pansit and two others go inside the alley leading to the back of the
Perez residence. After thirty minutes, he heard shots coming from the direction of the said house. As
people scampered in panic, he saw the appellants Luis Corcolon, Rogelio Corcolon and Boy Pansit come
out of the alley with handguns on display. They fired shots in the air and then sped away in the jeep.
FISCAL:
Q: When this owner-type jeep passed by your place where you were drinking, what did Luis
Corcolon do if any, if you remember?
A: When the jeep pass by, Luis Corcolon alighted from the jeep and he asked something from
us. He asked us why we are drinking in that place and I told him I was invited by Mang
Roger.
Q: Are you referring to Mang Roger?
A: Roger Perez.
Q: Aside from asking you why you were drinking in that place, what did he asked you if any?
A: He asked me that question, he asked me if the father of the person to be wed was there.
Q: What was your answer?
A: I told him he was inside.
Q: Do you remember if he mention any name?
A: None Sir, he just asked me if the father of the person to be wed is there.
Q: What was your actual answer to the question?
 A: I told him Roger Perez and Ruben Velecina were there.
Q: Lets go back to the Ford Fiera, you said it pass by you, where does it go if any?
A: When the Ford Fiera pass by our place it stop in a distance and the owner-type jeep
proceeded and Luis Corcolon just walk by.
Q: What about the tricycle with the three persons riding on its where did they go?
A: It parked near the Ford Fiera.
Q: Now far more or less from you from the place where you were drinking did the Ford Fiera
parked?
A: About fifty (50) meters.
INTERPRETER: Witness pointing a distance up to the tree outside in the other side of the road.
FISCAL: Twenty meters?
ATTY. PIO: Thirty five meters.

FISCAL:
Q: Now, lets go back to Corcolon, would you remember what was he wearing at that time?

FISCAL: Luis Corcolon.

A: Black jacket.
Q: What about the other persons the passenger of the jeep or the Ford Fiera?
A: No, Sir. I could not remember.
Q: You said that Luis Corcolon just walk to the place where the Ford Fiera was parked what
happened after that?
A: The Ford Fiera moves forward and stop at the rear of the tricycle, he turned around and
whisper something to Mayor Sanchez.
Q: Now, you had been mentioning the accused Luis Corcolon and Rogelio Corcolon, could you
tell us why you know them personally?
A: I was formerly a soldier and we trained CAFGU and the other CAFGU has been taken by
Mayor Sanchez as body guard and I was assigned at Dayap in Calauan, Laguna.
Q: When was this tour of duty of yours in Calauan, Laguna?
A: 1990.
COURT: Were you one of the body guards of Mayor Sanchez which was assigned to him?
A: No, Your Honor.
FISCAL:
Q: Now, the question that was paused to you, why you personally know Luis Corcolon and
Rogelio Corcolon, now your answer was that you were assigned at Dayap and that Mayor
Sanchez got one half of the CAFGU, how did you come to meet them?
A: I have been going to the house of Mayor Sanchez I saw them there as trainees of CAFGU.
Q: What about the two accused Luis and Rogelio Corcolon, were they also trainee?
A: No, Sir.
Q: Would you know a person by the name of Lito Calong-Calong?
A: No, Sir.
Q: Lets go back to that point when you saw Luis Corcolon whispering to Mayor Sanchez what
happen after that?
A: After that, that they have whispered to each other the Ford Fiera left and they entered the
alley.
Q: You said PUMASOK SILA who was this?
A: All of them, Luis Corcolon, Boy Corcolon and Boy Pansit, I do not know the others.
Q: Now, more or less, how many persons entered that alley together with Boy Pansit and the
two Corcolon?
A: There were six (6) of them.
 Q: That alley was leading to what direction?
A: At the back of Mang Roger.
Q: After you saw them entered the alley, what did you and your group do if any?
A: We continue drinking.
Q: After a while, what happened if any?
A: More or less 30 minutes I heard gunshots.
Q: After you heard gunshots, what else happen if any?
A: During the gunshot people panic, we were separated, the people were going out.
Q: Now, you said you heard gunshots, during your lifetime with the Armed Forces, do you
have training of firing guns?
A: Yes, Sir.
Q: So, when you heard gunshots that evening, where do you think, from what direction were
those gunshots came from?
A: It came from the back of the house of Roger Perez where they entered through.
Q: Now, you said that you heard the shooting there were people scampering, what else did
you see aside from those people coming out, who else did you see if any?
A: I heard from the people running MAY PATAY, MAY PATAY.
Q: What about Luis Corcolon, Rogelio Corcolon and Boy Pansit and the other group, did you
see them again after the series of gunshots?
A: They all came out and boarded the Ford Fiera and owner-type jeep and the tricycle.
Q: You said that the group of Boy Pansit, Rogelio Corcolon went back to the tricycle and the
owner-type jeep, what were they carrying at that time?
ATTY. PIO:
Objection, Your Honor.
COURT:
Objection sustained.
FISCAL:
Q: What did you observe when they went back to the owner-type jeep and the tricycle?
A: After they boarded and they fired shots upward.
Q: How many gunshots while in the jeep?
A: Two shots while in the jeep.
Q: Would you know what kind of firearm was fired while they were in the jeep?
A: I do not know, it was just a short gun that I saw.
COURT:
Q: When you said you saw a short gun, where did you see this handgun and at what time?
A: More or less 1:00 oclock.
Q: Where were they when you see them with the handgun?
A: At the place of the incident at Mang Rogers place.
Q: After you heard two gunshots while this group of Boy Corcolon, what else happened?
A: They left afterwards and later a tricycle come and I went home. [35]
The failure of Edwin Botero and Valentin Velecina to report the crime immediately after the
commission thereof did not diminish their credibility. It should be remembered that different people react
differently to an unusual event.[36] There is no standard behavior when confronted with a strange,
startling or frightful occurrence. Fear has been known to render people immobile and helpless
particularly in life and death situations. Any person faced with such an overwhelming situation would
sufficiently be cowed by fear or at least compelled to act in a manner aimed at self-preservation.
[37]
Witnesses may keep silent for a time rather than risk their lives. As we ruled in People v. Rimorin:[38]
That Osoteos fear of Rillon constrained him for ten years from revealing the crime and identifying the
perpetrators to the authorities is understandable. The delay should not in any way taint his
credibility. It should in fact foster credence in his revelation, considering that after ten years he did not
have to come out to testify if there was no grain of truth in it.
 The initial reluctance of witnesses Edwin Botero and Valentin Velecina to testify against the accused
and the appellants had been satisfactorily explained. Valentin Velecina testified that he was not able to
report the incident for fear that he would be the next target of the assailants who were bodyguards of
Mayor Antonio Sanchez of Calauan, Laguna, especially considering that two of his relatives had been
killed and that he had received death threats.
Q: Mr. Witness, prior to the death of your brother Ruben Velecina, your nephew by the name
Bernardo Velecina was killed, and after that your cousin by the name of Recto Aniceta was
also killed and you suspected a certain Ruben Cario as the one who killed these two
persons, is that correct?
A: Yes, Sir.
Q: And you believe the reason why Nelson Cario killed Ruben Velecina was because of the
death of Leopoldo Cario, is that correct?
A: Yes, Sir.
Q: And your family was suspected behind the killing of Leopoldo Cario?
A: Yes, Sir.
Q: And this is the reason why up to now you are still in hiding for you believe that Nelson
Cario would like to kill you?
A: Yes, Sir.[39]
Edwin Botero testified that it was only on August 16, 1993 that he came out because he was afraid
that he would be killed by the accused and the appellants if he testified. Upon seeing
his kababayan, Atty. Sacaguing of the NBI, on television regarding the Aileen Sarmenta case, he decided
to testify on the victims behalf.
FISCAL:
Q: Now, Mr. Witness, it appears in your statement that the date when you executed this is
August 16, 1993 before the Office of Head Sergeant Artemio Sacaguing, please explain to
this Court why you only executed this affidavit on August 16, 1993 when the incident
happened on July 30, 1989?
A: The reason why I did not come out because I am afraid I could not present myself as
witness.
Q: What could be the reason why you eventually change (sic) your mind and executed this
affidavit?
A: I saw Atty. Sacaguing in the (sic) T.V. and my townmate with the NBI. I voluntarily went to
him to give justice to the Velecina case.
Q: What was the topic of the TV program that inspired you to come out?
A: About Mayor Sanchez and Kit Alquesa was inflicted (sic) with the Aileen Sarmenta case. [40]
By then, Mayor Sanchez and his bodyguards, the appellants Luis Corcolon and Rogelio Corcolon had
been placed in the custody of police authorities. Edwin Botero was so afraid for his life that he applied
for and was granted protection under the Witness Protection Program of the Department of Justice.
Neither did Valentin Velecinas relationship with Ruben Velecina render his testimony
biased. Relationship, by itself, does not give rise to any presumption of bias or ulterior motive, nor does
it impair the credibility of witnesses or tarnish their testimonies. The relationship of a witness to the
victim would even make his testimony more credible, it being unnatural for a relative who is interested
in vindicating the crime charged and prosecute another person other than the real culprit. [41] Relatives of
victims of crimes have a natural knack for remembering the faces of the assailants more than anybody
else, and would be concerned with obtaining justice for the victim by having the felon brought to justice
and meted the proper penalty. [42] In the absence of any improper motive on the part of the witness, his
relationship to the victim cannot impair the weight of his testimony. [43]
We agree with the ruling of the trial court that the appellants conspired to kill Ruben.
A conspiracy exists when two or more persons come to an agreement concerning the commission of
a felony and decide to commit it. [44] It need not be established by direct evidence. It may be inferred
from the acts of the accused before, during or after the commission of the crime which, when taken
together, would be enough to reveal a community of criminal design. [45] Proof of previous engagement
among the malefactors to commit the crime would be unnecessary to establish conspiracy when by their
overt acts it would be deduced that they conducted themselves in concert with one another. [46]
As gleaned from the records, the following chain of events show that there was community of
design among the appellants: (1) the appellants, although in separate vehicles, arrived at the scene of
the crime together at approximately 12:30 a.m. on July 30, 1989; (2) accused Nelson Cario and
appellants Corcolon Brothers and Lito Calong-Calong fired shots on the wall where Ruben Velecina was
taking refuge, while appellant Domingo Banhaon and Boy Pansit stood guard; (3) the group of Luis
Corcolon stopped firing on the wall only when accused Nelson Cario assured them that the victim was
dead, uttering Tayo na yari na yan; and, (4) the group left together after shooting the wall.
In People v. Delim,[47] we held that lookouts are criminally liable as principal, by direct participation.
The killing was qualified by treachery. There is treachery when the offender commits any of the
crimes against persons, employing means or methods in the execution thereof which tend directly and
specifically to insure its execution, without risk to the offender, arising from the defense which the
offended party might make.[48] The essence of treachery is that the attack is deliberate and without
warning, done in swift and unexpected manner of execution, affording the hapless and unsuspecting
victim no chance to resist or escape. [49] In the case at bar, the victim was inside the Perez residence and
was busy preparing for the wedding of his son, Isidro Velecina, to Dory Perez, the daughter of Roger
Perez. The victim was unarmed and was deprived of any means to defend himself, or to evade the
sudden and unexpected assault.
The autopsy conducted by Dr. Ruben Escueta shows that the victim sustained a total of seven (7)
gunshot wounds, with entrances at the back and the other wounds sustained while in a lying
position. Per the autopsy report, the cause of the victims death was massive hemorrhage in the
thoracic cavity due to accumulation of two liters of blood arising from lacerations sustained by the right
lung, heart, liver and abdominal muscles.
Abuse of superior strength was also attendant. To take advantage of superior strength is to
purposely use excessive force, out of proportion to the means of defense available to the person
attacked.[50] In the case at bar, there was clear and gross disparity of strength between the unarmed
victim and the six armed assailants - four of whom used four short firearms in shooting the wall where
the victim was taking refuge, while two others stood guard, also armed with short firearms. The victim,
who was inside the house preparing for his sons wedding, gave no provocation when he was
attacked. However, the aggravating circumstance of superior strength cannot be separately
appreciated because it is absorbed by treachery.[51]
It was further alleged that the offense was committed with the aid of armed men. The requisites of
this aggravating circumstance are: (1) that armed men or persons took part in the commission of the
crime, directly or indirectly, and (2) that the accused availed himself of their aid or relied upon them
when the crime was committed. [52] In this case, while the appellants were all armed, all of them acted in
conspiracy with one another. All of the appellants acted in concert to ensure the commission of the
crime. Hence, the aggravating circumstance cannot be appreciated. Even if it were so, the same could
not be appreciated separately as it is deemed to have been absorbed by treachery. [53]
Appellant Domingo Banhaon insists that his voluntary surrender and his refusal to escape during the
jail break gives proof to his innocence. In order for voluntary surrender to be appreciated, the following
requisites should be present: (1) the offender has not been actually arrested; (2) the offender
surrendered himself to a person in authority or the latters agent; and, (3) the surrender was
voluntary. Further, the surrender must be spontaneous in such a manner that it shows the interest of
the accused to surrender unconditionally to the authorities, either because he acknowledged his guilt or
because he wishes to save them the trouble and expenses necessarily incurred in search and capture. [54]
In the case at bar, appellant Banhaon remained at large even after Judge Francisco Ma. Guerrero
issued the warrant for his arrest on March 17, 1994. [55] Appellant Banhaon surrendered only on June 27,
1995, after an alias warrant of arrest had already been issued against him, and approximately six years
after the commission of the crime. Clearly, voluntary surrender cannot be appreciated in his favor as a
mitigating circumstance. Neither can it be used to show his innocence. Appellant Banhaons failure to
escape is not indicative of his innocence.
The records reveal that the crime was committed during nighttime. This circumstance is considered
aggravating only when it facilitated the commission of the crime, or was especially sought or taken
advantage of by the accused for the purpose of impunity. The essence of this aggravating circumstance
is the obscuridad afforded by, and not merely the chronological onset of, nighttime. Although the
offense was committed at night, nocturnity does not become a modifying factor when the place is
adequately lighted and, thus, could no longer insure the offenders immunity from identification or
capture.[56] In the case at bar, it was not shown that nighttime was especially sought for or used to
insure the offenders immunity from identification or capture.
We note that the Information alleges that the appellants used firearms to kill the victim. Under
Republic Act No. 8294, the use of unlicensed firearm is an aggravating circumstance if such firearm is
used to commit homicide or murder. However, such circumstance cannot be appreciated against the
appellants because of the following: (a) the law took effect after the commission of the crime and a
retroactive application thereof would be unfavorable to the appellants; and, (b) there is no allegation in
the Information, nor was it proved by the prosecution that the appellants had no license or permit to
possess the firearms. The lack of license or permit of the appellants to possess the firearms is a
negative averment which is an essential element of the aggravating circumstance and must be alleged
in the Information.
Under Article 248 of the Revised Penal Code, as amended by Rep. Act No. 7659, murder is
punishable by reclusion perpetua to death. However, when the crime was committed in 1989, murder
was punishable by reclusion temporal maximum to death. Where no mitigating or aggravating
circumstance attended the commission of the crime, the medium period of the imposable penalty, which
is reclusion perpetua, should be imposed by the trial court. In this case, no mitigating nor aggravating
circumstance attended the commission of the crime. Hence, the trial court correctly imposed the penalty
of reclusion perpetua on the appellants.
Conformably with recent jurisprudence, we sustain the amount of P50,000 for civil indemnity to the
heirs of the deceased without need of any further proof. [57] Exemplary damages of P25,000[58] must,
likewise, be awarded, in accordance with Article 2230 of the Civil Code because of the attendance of the
qualifying circumstance of treachery.[59] However, the award of moral damages should be deleted in the
absence of any sufficient evidence to support the same. [60] The heirs of the victim are, however, entitled
to temperate damages.[61]
WHEREFORE, the appealed decision of the Regional Trial Court of Pasig City, Branch 160, finding
the appellants Luis Corcolon, Rogelio Boy Corcolon, Lito Calong-Calong and Domingo Banhaon guilty
beyond reasonable doubt of murder is hereby AFFIRMED with MODIFICATIONS. Said appellants are
ORDERED to pay, jointly and severally, the heirs of the victim, Ruben Velecina, Fifty Thousand Pesos
(P50,000) as civil indemnity; Twenty-Five Thousand Pesos (P25,000) as exemplary damages; and Twenty-
Five Thousand Pesos (P25,000) as temperate damages. The award of moral damages is deleted.

47. PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LEONCIO JUSEP, defendant-appellant.

FERNAN, J.:

The records of this case were elevated to this Court from the Court of First Instance of Zamboanga del
Norte, Branch III * at Dipolog City for automatic review of the decision of December 23, 1976 which
found Leoncio Jusep guilty beyond reasonable doubt of murder and imposed on him the death penalty
and other accessory penalties under the law, and the payment of an indemnity of P12,000 to the heirs of
the victim, Jesus Gandola, plus the costs of the suit (Criminal Case No. 1118).

As gathered by the prosecution, the facts of the case are as follows:

Jesus Gandola was the administrator of the 28-hectare land located along the seashore of Malolong,
Zamboanga del Norte, belonging to his aunt, Maria Perdices. He lived in nearby Loquilos, Manukan, also
in Zamboanga del Norte. He was engaged in fishing ("sensoro") as was Leoncio Jusep, who used to stay
in Perdices' land before he was driven out of it for failure to pay rentals (TSN, November 14, 1974, pp.
25-26; August 23, 1974, pp. 4-5).

The stiff business competition between Gandola and Jusep developed into something akin to bad blood
between them. One time, Gandola tried to borrow fifteen empty fish boxes from Jusep but the latter
refused to lend him any. On another occasion, Jusep asked Gandola's father, Angel, to admonish Etot
(Gandola's nickname) not to spread the rumor that Jusep had stolen a cow (TSN, supra, p. 26). And,
there was a time when Gandola fired his rifle at Jusep whom he caught disturbing with a fish net the
school of fish which had been spotted by Gandola's fisherman (TSN, August 23, 1974, pp. 11-12).

Sometime in May, 1967, Pastor Cotillas, who took charge of Jusep's fishing business, went to Hilongos,
Leyte under the pretext of recruiting fishing laborers or "buseros." Actually, he was on an errand for
Jusep to look for a hit man to do away with Gandola. Pastor contacted his cousin, Alfredo Cotillas, and
brought him to Manukan where Alfredo met Jusep for the first time. The latter went with Pastor to
Manukan.

When Pastor introduced them to each other, Jusep asked Alfredo if he was the same person that Pastor
had told him about and Alfredo replied that he was indeed the one. Jusep then told Alfredo to shoot
Gandola in consideration of the amount of P2,000. He promised to give Alfredo said amount after he had
shot Gandola (TSN, August 15, 1974, pp. 14, 28 & 32).

Jusep and Alfredo frequently talked to one another because the former's house was very near that of
Pastor where Alfredo stayed. When Alfredo asked Jusep where he would meet Gandola, Jusep answered
that he should go to that part of Manukan where there was a big house and he would not miss Gandola
who was a big fellow (TSN,supra, p. 15). The first time Alfredo saw Gandola was when they were on the
seashore and Jusep pointed out Gandola who was then standing on a bamboo raft. The second time was
when Jusep made him ride a jeep which passed by Gandola's house (TSN, supra, pp. 57-58).

When Alfredo asked for a gun, Jusep told him to wait awhile because the .45 caliber gun had not yet
arrived (TSN,supra, p. 16). In the morning of August 1, 1967, while Alfredo was in the kitchen of Pastor's
house, Jusep arrived. He presented Alfredo with a .32 caliber revolver and told him to use it in shooting
Gandola. Jusep said, "You always tack that revolver on your waist because there will be a movie in the
afternoon and that fellow might come and you finish him ("butangi") there" (TSN, supra, p. 17). But, as
instructed by Jusep, Alfredo did not leave Pastor's house that afternoon. When Jusep came back, he
informed Alfredo that Gandola was not watching the movie. So, he told Alfredo, "You better go to his
house because he is not around" (TSN, supra, p. 18).

Jusep and Alfredo then hiked along the seashore to the house of Gandola. When they arrived there, they
stayed by the coconut tree near the house. They waited for people to come out of the house as it was
then time for cooking supper. When they noticed that the people in the house were about to take
supper, Jusep directed Alfredo to go under the house while he stayed a little distance therefrom
(TSN, supra, pp. 19-23).

The floor of Gandola's house was 2 1/2 to 3 feet from the ground. Alfredo went to that part of the ground
underneath the house just below where Gandola was seated eating his supper. He could easily see the
persons inside the house because the floor was made of bamboo slats placed one-fourth of an inch apart
(Exh. E; Record, p. 164; TSN, supra, p. 24).

Meanwhile, Gandola, his wife Arcelita, two of their three children, a baby-sitter and some "buseros" were
taking their supper. Gandola was seated at one end of a bench beside his daughter. Unexpectedly, they
heard an explosion. Gandola stood up, looked towards the national road and then towards the sea.
Suddenly, he held his side and said, "Gin, I was shot" (TSN, August 23, 1974, p. 7).

Alfredo shot Gandola by holding the gun perpendicularly and aiming at the left side of Gandola's
abdomen just below his ribs. Having hit his mark at the first shot, Alfredo aimed for another shot but due
to the smoke emitted by the gun after the blast, he got out from under Gandola's house, went to where
Jusep was, and together they proceeded to Jusep's house (TSN, August 15, 1974, pp. 24-25).

After learning that Gandola had been shot, one of the "buseros" tried to put out the light from the
Petromax lamp but Arcelita quickly pumped air into the lamp to brighten the house. Seeing her husband
wounded, she took a flashlight and went down the house hoping that she could still see the assailant.
When she saw nobody downstairs, she went up the house and saw her husband leaning on the bench.
Gandola told her to inform his father about the incident. Arcelita acquiesced and hurried towards Linay,
Manukan to her father-in-law's house. Along the way, she met someone to whom she entrusted the task
of informing Gandola's father about the shooting incident (TSN, August 23, 1974, pp. 7-8).

When Arcelita returned to their house, Gandola told her to inform his father that it was Leoncio Jusep
who had "looked for" his killer. As he spoke, Gandola acted as if nothing had happened to him. He then
asked Arcelita to hail a vehicle so that he could be brought to a hospital. He repeated his instruction to
Arcelita to tell his father that it was Leoncio Jusep who had looked for a person to kill him (TSN, supra, p.
8).

Arcelita waited for a vehicle to pass by but none came. Later, the person she had told to go to her
father-in-law arrived in a jeep. On the way to the hospital in Dipolog City, Gandola once more told
Arcelita that Leoncio Jusep was the one who had looked for his killer and that, should he be unlucky and
die, Arcelita should take over their fishing business.

When they arrived at the hospital at around 10:00 o'clock that evening, Gandola was x-rayed. While he
was being wheeled to the operating room, Gandola reiterated to Arcelita that it was Leoncio Jusep who
had looked for his killer. Arcelita stayed outside the operating room while her husband was being
operated on. At 4:00 o'clock the following morning, she was informed that Gandola was dead
(TSN, supra, p. 9).

Gandola, who was 36 years old at the time of his death, underwent an exploratory laparotomy with
gastrorraphy and splenectomy. The bullet which entered his left lower chest, lateral aspect, penetrated
his abdomen and thoracic cavities, perforated his stomach and lacerated his spleen thus causing
massive intra-abdominal hemorrhage (Exh. M; Record, p. 171). The immediate cause of his death was
severe anemia due to massive hemorrhage (Exh. K; Record, p. 169).

In the meantime, coming from Gandola's place, Alfredo and Jusep encountered two persons (TSN,
August 15, 1974, p. 25). One of them, Andres Gundes (Geondres), was defecating near his house about
a hundred meters from Gandola's house. He heard the explosion and, shortly thereafter, saw two men
walking towards him. Gundes aimed his flashlight at them and recognized them as Pidong Cotillas and
Leoncio Jusep (TSN, August 22, 1974, p. 4). Gundes had known Jusep for several years and therefore he
could not be mistaken in Identifying him (TSN,supra p. 5). The other person who saw Alfredo and Jusep
was Teofisto Villarin, who, after hearing the explosion, alighted from the coconut tree on which he had
perched extracting tuba. Upon reaching the ground, he switched on his flashlight and saw Alfredo and
Jusep (TSN, August 15, 1974, p. 70). Alfredo returned the gun to Jusep upon their arrival in Jusep's house
(TSN, supra, p. 31). Jusep then instructed Alfredo to spend the night in Pastor's house. Alfredo stayed
there until the 3rd of August, 1967 when Jusep handed Alfredo only around twenty pesos instead of the
promised P 2,000, and told him to return to Leyte (TSN, supra, pp. 26-27).

Alfredo demanded from Jusep that he be given the P2,000 but Jusep promised him that he would send
that amount to him through Pastor (TSN, supra, p. 32).

Agents of the National Bureau of Investigation (NBI) looked into the killing of Jesus Gandola. The first
suspect to be investigated was one Rivera who allegedly had a quarrel with Gandola. Then they picked
up Pastor Cotillas (TSN, August 22, 1974, pp. 29-30).

In his first sworn statement which he executed on August 10, 1967 in Villaramos, Manukan, Zamboanga
del Norte before NBI agents Arturo H. Nunag and Restituto M. Reluya, Pastor admitted having worked for
Jusep. He claimed that at around 7:30 in the evening of August 1, 1967, he was selling fish in the market
with his wife and the wife of Jusep. He stated that he knew Gandola because he used to stay in
Gandola's land for around ten years. He added that Gandola and Jusep had a misunderstanding because
the latter refused to lend fish boxes to the former but that they later made up and talked to each other
again. He admitted that in February, 1967, he built his house on Jusep's land without paying rentals
thereon, and that Jusep even lent him P200 for his house but Jusep never demanded that he pay back
said amount. However, he denied having received from Jusep P500 to pay whoever would agree to
liquidate Gandola (Exh. 0; Record, p. 264).

Five days later or on August 15, 1967, Pastor executed another sworn statement before the same NBI
agents but this time in Dipolog City. He admitted therein that he had offered P500 to one Tacluban to
liquidate Gandola; that he was acting on instructions of Jusep; that it was Jusep who approached him to
find a man who could kill Gandola; that he went to Ozamis City to look for a hired killer; that his cousin,
Alfredo Cotillas, whom he had recruited for Jusep's fishing business, told him when they arrived in
Manukan that Jusep had suggested to him (Alfredo) that he should kill Gandola; that he told Alfredo that
it was not a good proposition because even if he (Pastor) had looked for the hired killer, he did not want
any of his relatives to get involved in the killing; that at 6:00 o'clock in the morning of August 2, 1967,
Jusep told him that Gandola did not die instantaneously of the gunshot wound in conflicted on him by
Alfredo ("Matay, tor, wa man ma antimano"); that the gun used in killing Gandola was in the possession
of Jusep; and that on the day he executed the statement, he was leaving for Leyte to warn Alfredo to
keep his mouth shut because Jusep was afraid that Alfredo might reveal that Jusep had instigated the
killing of Gandola (Exh. P; Record, pp. 266-269).

The following day, August 16, 1967, Pastor executed his third sworn statement before NBI agents
Alberto de la Rosa and Arturo M. Nunag in Zamboanga City. The certified copy of said statement which
was presented in court was in the Cebuano dialect and, like Exhibit P it was the only available copy of
said statement. **

Pastor stated therein that he was in the market when Gandola was shot. He knew that Jusep owned the .
32 caliber revolver used in shooting Gandola because it was Jusep who masterminded or instigated
("nagsugo") the killing of Gandola. According to Pastor, Jusep gave him P600, of which P500 would be
paid to whoever would agree to kill Gandola and the balance of P100 would be spent in looking for the
killer. He reiterated that he had given Tacluban the P500 but Tacluban allegedly lost it in gambling. He
stated that sometime in January, 1967, when Jusep passed by Gandola's place to fish, Gandola chased
him with his pumpboat. Sometime in May (1967), Jusep instructed him to look for "buseros" in Leyte.
There, he met Alfredo (Didong or Pidong) and told him about Jusep's quest for a killer. Alfredo went with
him to Manukan and he introduced him to Jusep.

Pastor narrated that it was on July 15, 1967 when Alfredo, Jusep and himself, talked about the killing of
Gandola. Jusep told Alfredo that if the latter would agree to kill Gandola, he (Jusep) would take care of
everything. At around 11:00 o'clock in the morning of August 1, 1967, the three met once again in the
warehouse ("kamalig") of Jusep to map out the plan to liquidate Gandola. They agreed that it would be
best to pass through the seashore both in going to and in coming from Gandola's house and that they
would execute the plan at 7:30 o'clock p.m. to coincide with suppertime.

Pastor admitted that he was a friend and trusted business associate of Jusep whom he first met in 1958.
The last time he talked to Jusep about the case was the day before (August 15, 1967) at around 7:00
o'clock in the morning when Jusep instructed him to go to Leyte to warn Alfredo not to talk to the NBI
agents (Exh. Q; Record, pp. 270-273).

From Zamboanga City, Pastor accompanied NBI Agent Nunag to Hilongos, Leyte. Together with NBI
Agent Carlos Ortega and a policeman from Bato, Leyte, Nunag apprehended Alfredo. At first, Alfredo
denied having participated in the commission of the crime. But when the NBI agents arranged a
confrontation between him and Pastor, Alfredo admitted his involvement therein. After taking Alfredo's
sworn statement, *** the NBI agents took Pastor and Alfredo to Dipolog City via Cebu City (TSN, August
22, 1974, pp. 35-38). Thereafter, appellant was arrested at the residence of his lawyer (TSN, supra, p.
45).

Pastor Cotillas, Alfredo Cotillas and Leoncio Jusep were charged with murder for the death of Jesus
Gandola, The municipal judge of Manukan, who conducted a preliminary examination on the case,
issued a warrant for the arrest of the three suspects. The record of the case was then forwarded to the
Court of First Instance of Zamboanga del Norte and the provincial fiscal filed the corresponding
information before said court (Criminal Case No. 4826).

When he was arraigned on November 16, 1967 Leoncio Jusep pleaded not guilty (Record, p. 48). After
the case was set for trial, Second Assistant Provincial Fiscal Hermogenes S. Balisado filed a motion to
discharge Leoncio Jusep as an accused alleging that after "a judicious study, evaluation and analysis of
the evidence on record," he was convinced that the prosecution could not establish conspiracy between
Jusep and his co-accused, and therefore, it would be futile for the prosecution petition to proceed with
the trial of the case with respect to Jusep who would anyway be acquitted. He prayed that Jusep be
"provisionally discharged from the information. " The motion, dated November 28, 1967, was made with
the conformity and signature of Leoncio Jusep (Record, pp. 102-103).

The provisional dismissal of the case against Jusep was granted by the court for "lack of sufficient
evidence to connect him with the crime" (Criminal Case No. 4826 Decision, p. 2; Record, p. 107). Said
dismissal order was issued after the parties had agreed that the investigators would continue gathering
evidence on the case aimed at its refiling should the gathered evidence so warrant (Record, p. 82).

The trial of Alfredo and Pastor Cotillas proceeded. On August 20, 1969, the Court of First Instance of
Zamboanga del Norte, Branch II, promulgated a decision finding the Cotillas cousins guilty beyond
reasonable doubt of murder and imposed on them the indeterminate sentence of ten years and one day
of prision mayor to twenty years ofreclusion temporal and the payment jointly and severally of P12,000
indemnity to the heirs of Gandola (Criminal Case No. 4826 Decision, p. 10; Record, pp. 106-115). Alfredo
and Pastor Cotillas did not appeal from said decision.

Angel Gandola, the victim's father, who was apparently convinced that Jusep was as guilty as Alfredo
and Pastor, initiated the taking of sworn statements of more witnesses. The affidavits were forwarded to
the office of the provincial fiscal. Consequently, the case was reopened and Fiscal Balisado started the
reinvestigation on August 24, 1970 (Record, p. 82).

Due to the delay in the issuance of a resolution regarding the reinvestigation, Angel Gandola referred
the case to the Department of Justice (Record, p. 53-54). Thereafter, on April 12, 1973, Fiscal Balisado
issued a resolution stating that there was no prima facie evidence against Jusep to warrant his
prosecution for murder, and dismissed the case against him without prejudice to its reopening "should
new material evidence be discovered" (Record, pp. 80-97).
On May 7, 1973, the Chief State Prosecutor directed Fiscal Balisado to transmit to his office the record of
the case and his resolution thereon. Five months later, then Undersecretary of Justice Efren I. Plana,
through a letter dated October 4, 1973, found that there was a prima facie case against Jusep, set aside
Fiscal Balisado's April 12, 1973 resolution and directed the Acting Provincial Fiscal to file with a
competent court the corresponding information against Leoncio Jusep for murder (Record, pp. 27-28).

On November 29, 1973, Third Assistant Provincial Fiscal Rodolfo T. Mata filed before the trial court a
motion to admit an information charging Jusep as the mastermind of the murder of Gandola with a
prayer that Jusep be arrested and that no bail be granted for his provisional liberty (Record, p. 1).
Attached to the information was a certification issued by Fiscal Mata which states that:

I HEREBY CERTIFY that a proper preliminary investigation No. 1222 against respondent
LEONCIO JUSEP has been conducted by Second Assistant Provincial Fiscal Hermogenes S.
Balisado whose resolution to dismiss was appealed to the Secretary of Justice who
reversed said resolution of Preliminary Investigation No. 1222 and found out that there
exists a prima facie case or that respondent Leoncio Jusep is probably guilty of the offense
of Murder.

Dipolog City, November 29, 1973.

(Sgd.) RODOLFO T. MATA

Third Assistant Provincial Fiscal

SUBSCRIBED AND SWORN to before me this 29th day of November, 1973 at Dipolog City,
Philippines.

(Sgd.) RODABALLO Y. REALIZA

Acting Provincial Fiscal

On December 12, 1973, Jusep filed a motion to quash the information and to suspend the issuance of a
warrant of arrest on the grounds that Fiscal Mata had no authority to file the information because he did
not conduct the preliminary investigation pursuant to Republic Act No. 5180 and Presidential Decree No.
77; that the filing of the information was merely a revival of Criminal Case No. 4826, and that pursuant
to paragraph 6 of Department of Justice Circular No. 74 dated July 26, 1967, where several persons
commit a crime but are charged or investigated separately, the head of the office "shall see to it that
the charges are investigated by the same investigating fiscal" (Record, pp. 9-11). The prosecution
opposed said motion.

In its resolution of December 14, 1973, the lower court granted the motion to quash "without prejudice
to the right of the fiscal who originally conducted the preliminary investigation to sign and file the
corresponding information" or should Fiscal Mata sign and file the information and prosecute the case,
he should conduct a "subsequent preliminary investigation in conformance with law" (Record, pp. 14-
17).

Five days later, the lower court amended said order, reconsidering the quashal of the information, and
holding in abeyance the action on the motion to admit the information until the provincial fiscal shall
have signed and filed the corresponding information "as the authority that was delegated to him by the
Department of Justice to do cannot be redelegated" (Record, p. 18).

Hence, Fiscal Balisado took over the case (Record, p. 19). On December 27, 1973, the following
amended information was filed:

The undersigned Acting Provincial Fiscal, with leave of court and pursuant to its
amendatory order dated December 19, 1973, hereby amends the information on record
and accuses LEONCIO JUSEP as Principal by induction of the crime of MURDER, committed
as follows:

That in the evening on or about the 1st day of August, 1967, in the municipality of
Manukan, Zamboanga del Norte, within the jurisdiction of this Honorable Court, the said
 accused LEONCIO JUSEP being then the mastermind in the bizarre plot to liquidate one
JESUS GANDOLA alias Etot, conspiring, confederating and working together with PASTOR
COTILLAS (Principal) by indispensable cooperation and ALFREDO COTILLAS (Principal by
direct participation) who were already convicted by final judgment in a decision
promulgated by this Honorable Court on August 28, 1969 for the same crime of Murder in
Criminal final Case No. 4826, and are still presently serving their respective sentence, did
then and there induce, offer a price and reward to his co-accused Pastor Cotillas and
Alfredo Cotillas, the latter having acted as the triggerman, arming them with revolver Cal.
32, and all with intent to kill by means of treachery and evident premeditation and by
taking advantage of the darkness of the night to better accomplish their evil motives in
pursuance to their conspiracy, did then and there wilfully, unlawfully and feloniously
attack, assault and shoot said JESUS "Etot" GANDOLA while the latter was eating his
supper in his dwelling house thereby inflicting upon him gunshot wounds on his left lower
chest penetrating the abdominal and thoracic cavities, perforating the stomach, liver,
diaphragm and crushing his spleen which caused his death the following dawn despite the
medical attendance rendered to him; that as a result of the commission of the said crime,
the heirs of the victim suffered the following damages, viz:

1. Indemnity for the death of the

victim........................................... P12000

2. Loss of earning

capacity.............................5,000

3. Moral damages............................................10,000

4. Exemplary damages.....................................10,000

TOTAL......................................P37,000

CONTRARY TO LAW, with the qualifying circumstances of treachery and evident

premeditation, and the aggravating circumstance of nighttime, dwelling, and
consideration of price and reward.

Dipolog City (for Zamboanga,. del Norte), December 26, 1973.

(Sgd). RODABALLO Y. REALIZA

Acting Provincial Fiscal

The Acting Provincial Fiscal's motion to admit the amended information was opposed by the accused on
the ground that it did not contain a certification stating that a proper preliminary investigation had been
conducted before it was filed (Record, pp. 23-24). In view of that development, the Acting Provincial
Fiscal submitted to the Court Undersecretary of Justice Plana's letter of October 4, 1973 (Record, pp. 27-
28).

In its order of January 21, 1974, the lower court resolved that the said letter would "suffice as the
requisite certification that forms part of the said amended information," admitted the said information,
directed the issuance of a warrant for the arrest, of the accused and fixed the bail at P40,000 (Record, p.
38).

The prosecution moved for a reconsideration of that order insofar as it granted the P40,000 bail (Record,
pp. 45-49). On the other hand, the accused moved to quash the amended information on the grounds
that the officer who filed the information had no authority to do so; that the information did not conform
substantially to the prescribed form for lack of a certification that a preliminary examination or
investigation had been conducted; and that the accused was previously in jeopardy of being convicted
or acquitted of the offense charged because he had pleaded not guilty in Criminal Case No. 4826 when
he was discharged as an accused therefrom (Record, pp. 45-49).
The lower court resolved both motions in its order denying the motion to quash. In his arraignment,
Jusep pleaded not guilty of the crime charged (Record, p. 125).

The prosecution offered its version of the crime as narrated above. Thereafter, the defense presented
Pastor Cotillas as witness and he testified that sometime before August, 1967, he visited Barrio Baliw,
Hilongos, Leyte to look for "buseros" at the request of Leoncio Jusep. His cousin, Alfredo, went back with
him to Manukan with the seven "buseros" he had recruited for Jusep. On August 1, 1967, he and Alfredo
went to Loquilos to shoot Gandola. They had decided to kill Gandola because the latter chased him with
a gun and boxed Alfredo. Gandola was mad at him because he refused to buy fish from him.

During the commission of the crime, he hid among the coconut trees some twenty meters away and,
after Alfredo shot Gandola with his own gun, they went back to his (Pastor's) house. They did not meet
anyone along the way. A few days later, Alfredo returned to Leyte (TSN, July 18, 1975, pp. 31-34 & 37).

While he was a detention prisoner in the provincial jail of Zamboanga del Norte, Gandola's father and
wife "Estelito" visited him. Gandola's father told him that a case had already been filed against Jusep
and that should he agree to be a state witness in said case, Gandola's father would give him P5,000
(TSN, supra, p. 35).

Leoncio JusePinterposed alibi as his defense. He testified that on July 24, 1967, he left Manukan for
Dapitan City and from there, took a boat bound for Dumaguete City, arriving therein the following day.
He proceeded to the house of his younger brother, Tranquilino Jusep. Later, he went to Tanjay, Negros
Oriental to buy " sinamay " or " bulsahon " to be used as a fish net. In Tanjay, where there was a town
fiesta, he stayed with Jose Tabanda until the 27th of July. He gave P250 to Tabanda so that the latter
could buy the "bulsahon" before his return to Tanjay from Dumaguete City on the 29th of July. He had to
go back to Dumaguete City because he had a fever. He was treated by one Doctor Bueno who ordered
the laboratory examination of his urine, blood and stool. He obtained the result of the laboratory tests
the following morning and gave them to Doctor Bueno. For his cough and fever, Doctor Bueno gave him
injections twice a day. He reported to Doctor Bueno's clinic until August 2, 1967.

He left Dumaguete City around midnight of August 2, 1967 and arrived at Dapitan City in the early
morning of August 3. Then he boarded a jeep bound for Dipolog City and from there he proceeded to
Manukan, arriving there at around ten o'clock in the morning (TSN, January 29, 1976, pp. 51-56).

Jose Tabanda and Tranquilino Jusep corroborated Jusep's alibi. Ricardo Binondo testified that he heard
the news that Gandola was shot at around 7:00 o'clock in the evening of August 1 and that, while
waiting for the fishermen at the beach in Manukan, he saw prosecution witnesses Gundes and Villarin
alighting from a boat at around 8:00 o'clock that same evening (TSN, October 17, 1975, pp. 31-37).

The trial court did not give credence to the defense version. On December 23, 1976, it rendered the
aforementioned decision imposing the death penalty on Jusep. He filed a motion for its reconsideration
but the lower court denied it. Hence, the instant automatic review of the lower court's decision.

In his brief, appellant avers that the lower court erred in: (a) admitting the information against him
without the proper preliminary investigation; thus, infringing his right to due process of law; (b) giving
credence to the testimonies of Alfredo Cotillas, Arcelita Gandola, Angel Gandola and the other
prosecution witnesses; (c) finding that he conspired with Alfredo and Pastor Cotillas; thus, totally
ignoring the affidavit executed by Alfredo stating that he acted alone in shooting Gandola; (d)
considering the statement of Gandola that it was he who looked for Gandola's killer; (e) finding that he
was positively Identified by Villarin and Gundes; (f) discrediting his alibi and the oral and documentary
evidence in support thereof; (g) completely discrediting the testimonies of defense witnesses Pastor
Cotillas, Jose Tabanda, Ricardo Binondo and Tranquilino Jusep; and (h) finding him guilty as charged and
imposing on him the death penalty.

Appellant's allegation of deprivation of due process of law resulting from the filing of the information
without a proper preliminary investigation is baseless.

Contrary to his allegation, the record shows that Fiscal Balisado did in fact conduct a preliminary
investigation. Although on the basis of said preliminary investigation, he recommended the dismissal of
the charge against appellant, his dismissal resolution was reversed by the Department of Justice.
Strictly speaking, no appeal was interposed from said dismissal resolution as the case was referred to
the Department of Justice even before said resolution was issued. However, when the Secretary of
Justice later reversed the dismissal resolution, he exercised his power "to alter, modify or nullify or set
aside what a subordinate officer had done in the performance of his duties and substitute the judgment
of the former for that of the latter" (Vda. de Jacob vs. Puno, G.R. No. 61554-55, July 31, 1984, 131 SCRA
144, 148 quoting Noblejas vs. Salas, L-31788 & 31792, September 15, 1975, 67 SCRA 47). Another
preliminary investigation would have been superfluous because the Secretary of Justice based his order
to file the information on his review of the evidence presented during the preliminary investigation
conducted by Fiscal Balisado. Parenthetically, it should be noted that under the 1985 Rules on Criminal
Procedure, in cases where the Minister (now Secretary) of Justice reverses the resolution of the
provincial or city fiscal or chief state prosecutor, "he shall direct the fiscal concerned to file the
corresponding information without conducting another preliminary investigation or to dismiss or move
for dismissal of the complaint or information" (Section 4, Rule 112).

On the merits of the case, We are convinced that the prosecution has proven beyond reasonable doubt
that appellant is guilty of masterminding the murder of Jesus Gandola.

Ironically, the sworn statements of appellant's trusted friend Pastor Cotillas helped in sealing the case
against him. Pastor's declaration in court that he executed those statements because he was afraid that
the NBI agents would manhandle him is entirely untrue as he himself admitted that physical force was
never inflicted on him. It seems, however, that Pastor was more apprehensive of the consequences of
his revelations than anything else. He was heavily indebted to Jusep and therefore, to his mind, telling
the truth to the authorities would be an act of betrayal. In fact, he tried to correct the damage his sworn
statements had done to his avowed friend, Jusep, by presenting the story that he was Alfredo's co-
author of the crime and that it was he who accompanied Alfredo when the latter performed the
dastardly act, forgetting all the while that in two of his sworn statements, he had stated that he was in
the market selling fish when Gandola was murdered.

We hold that the testimony of Alfredo Cotillas alone is sufficient to prove appellant's direct involvement
in the crime. The testimonies of Arcelita and Angel Gandola merely fortify the fact that it was appellant's
Idea to liquidate Gandola, and the testimonies of the other witnesses, especially those regarding
appellant's presence at the scene of the crime, prove beyond reasonable doubt that appellant is as
guilty as the convicted Cotillas cousins for the murder of Gandola.

The credibility of triggerman Alfredo Cotillas as a witness has remained intact notwithstanding the
attempts of the defense to demolish it. Concededly, the testimony of a co-conspirator or a co-accused
should be treated with caution. However, the same may be admitted and considered should there be no
convincing proof that his credibility is impaired.

In this case, the defense failed to show any reason why Alfredo's testimony should not be given weight
and credence. What it considered as a taint to his credibility is the fact that it took him more than two
years to reveal the complicity of appellant in the murder. But the delay is not without an explanation.

During the trial of Criminal Case No. 4826, Alfredo and Pastor were both defended by a counsel provided
by appellant (TSN, August 15, 1974, pp. 37-38). It was but natural that said counsel would not present
them in court for there was the risk that during cross-examination, they might implicate their
benefactor, appellant herein. Moreover, until the information for murder was filed against Jusep, there
was no occasion for Alfredo to appear in court to tell the truth. Coupled with that is the fact that even
after his conviction, Alfredo was still entertaining the hope that Jusep would make good his promise to
give him P2,000. That hope disuaded him from implicating Jusep in his sworn statement before the NBI
agents (TSN, supra, pp. 49-50, 63).

In said sworn statement, Alfredo allegedly admitted that he was alone when he shot Gandola. Appellant
now contends that said sworn statement was "suppressed" by the prosecution. This contention is
unfounded. Said sworn statement was an exhibit in Criminal Case No. 4826 the record of which had
been lost (TSN, supra, pp. 5-6; Record, pp. 16 & 116). If the appellant was really convinced that it was
vital to his defense, then he should have exerted extra efforts in procuring it so that it could be
presented in court.

Appellant's professed non-involvement in the crime is belied by his frequent visits to the Cotillas cousins
while they were detained in the provincial jail. According to the warden, appellant was particularly
interested in the actual date of the Cotillas' transfer to the San Ramon Penal Colony as he wanted to
give them money or "pabalon" (TSN, November 14, 1974, p. 24). Hence, it is not far-fetched to assume
that he was behind Pastor's return to said colony four days after his release on parole on July 17, 1974.
Although Pastor claimed that he returned there to visit Alfredo and to give him P150, We are convinced
that the purpose of his trip was actually to make Alfredo sign an affidavit claiming sole authorship of the
murder and ownership of the fatal weapon (TSN, August 15, 1974, pp. 40-41; July 18, 1975, pp. 48-49;
September 4, 1975, pp. 3-4).

Appellant's alibi cannot save him either. Although he presented evidence that he was in Dumaguete City
late in July, 1967, the possibility that appellant could have returned to Manukan to oversee the execution
of his devious plan to kill Gandola, is not remote. As observed by the trial court, considering that the
distance between Manukan and Dipolog City is only 38 kilometers and that between the Zamboanga
peninsula and Dumaguete City it takes only three to four hours ride on a pumpboat, it is not impossible
for appellant to have left Manukan after the commission of the crime and to be in the same place in the
morning of August 2, 1967. Moreover, his defense of alibi totally crumbles in the face of his trusted
friend Pastor's sworn statement that at 6:00 o'clock in the morning of August 2, appellant himself
informed Pastor that Gandola was not killed instantaneously (Exh. P).

Alibi being the weakest of all defenses, it cannot prevail over direct positive evidence on the presence of
the appellant at the scene of the crime (People vs. Reyes, L-18892, May 30, 1966, 17 SCRA 309; People
vs. Venezuela, L-48057, August 19, 1982, 115 SCRA 865). Appellant's presence therein proves his
complicity and evinces culpable association with the triggerman (People vs. Rivera, L-14077, March 31,
1964, 10 SCRA 462). It is worth noting that Villarin and Gundes were not the only ones who saw
appellant near Gandola's house. Felipe Santander, in his sworn statement, stated that before 8:00
o'clock in the evening of August 1, 1967, he met Alfredo and the appellant along the seashore of
Manukan (Exh. A). His refusal on the witness stand to Identify the person he saw running on the
seashore with Pidong Cotillas is explained by his own admission that appellant was his friend (TSN,
August 22, 1974, pp. 19 & 21).

As it was the appellant who conceived the perpetration of the crime, met with the Cotillas cousins to
deliberate on its execution and was present at the time of its consummation, he is a principal by direct
inducement (U.S. vs. Bundal, 3 Phil. 89). His promise of P2,000 to Alfredo is equivalent to moral coercion
as it was the moving cause which impelled Alfredo to kill Gandola, (U.S. vs, Mijares, 3 Phil. 447).

Conspiracy has also been proven by the prosecution. Appellant and the Cotillas cousins came to an
agreement concerning the killing of Gandola and decided to go through with it. All three of them are
therefore liable as co-principals and the act of each conspirator is the act of all (Art, 8, par. 2, Revised
Penal Code; People vs. Timbang, 74 Phil. 295).

Treachery qualified the killing which was done in such a manner as to completely surprise the victim and
make him a defenseless target. Nocturnity is absorbed by treachery. Evident premeditation, which was
alleged as a qualifying circumstance in the information, should be considered only as a generic
aggravating circumstance as treachery is sufficient to qualify the killing as murder (People vs. Diaz, L-
24002, January 21, 1974, 55 SCRA 178). The crime was attended by evident premeditation because
after appellant and the Cotillas cousins had planned the manner by which they would kill Gandola, they
allowed a sufficient interval of time to elapse wherein they could have dispassionately considered the
consequences of their act.

Although Alfredo did not actually receive the P2,000 promised him by the appellant, the price, promise
or reward is a generic aggravating circumstance because it impelled Alfredo to shoot Gandola. Dwelling
should also be considered as a generic aggravating circumstance with regard to appellant even if it was
Alfredo who went under Gandola's house, because of the proven conspiracy in the commission of the
crime.

Under Article 248 of the Revised Penal Code, murder is punishable by reclusion temporal maximum to
death. There being three generic aggravating circumstances and no mitigating circumstances to offset
them, the lower court correctly imposed the death penalty (Article 64, (3) & (6), Revised Penal Code).
However, pursuant to Section 19, Article III of the 1987 Constitution, the death penalty imposed by the
lower court should be reduced to reclusion perpetua (People vs. Laguardia, G.R. No. 63243, February 27,
1987).
WHEREFORE, the decision of the lower court is hereby affirmed with the modification that appellant is
hereby meted the penalty of reclusion perpetua and ordered to pay the heirs of Jesus Gandola an
indemnity in the amount of thirty thousand pesos. Costs against the appellant.

49. PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROLANDO DE LA CRUZ y GOMEZ @ BLUT, accused-appellant.

The Solicitor General for plaintiff-appellee.

Francisco Sanchez III and Public Attorney's Office for accused-appellant.

DAVIDE, JR., J.:

Rolando de la Cruz y Gomez @ Blut was charged with the crime of Robbery with Homicide before the
Regional Trial Court (RTC) of Manila in an Information filed on 8 November 1988, the accusatory portion
of which reads:

xxx xxx xxx

That on or about October 1, 1988, in the City of Manila, Philippines, the said accused,
conspiring and confederating with others whose true names, identities and present
whereabouts are still unknown, and helping one another, by means of craft, that is, while
on board a passenger jeep and pretending to be passengers thereof, did then and there
wilfully, unlawfully and feloniously, with intent of gain and by means of force, violence and
intimidation, to wit: by then and there pointing their bladed weapons and firearm and
forcibly taking, robbing and carrying away the following from ABEL REQUEJO Y REFE:
Citizen wristwatch P800.00, one (1) wallet containing P220.00, one (1) Saudi Riyal, PRC
ID, driver's license and other important papers, all valued at P1,020.00 plus, belonging to
said ABEL REQUEJO Y REFE, against his will to the damage and prejudice of said owner in
the aforesaid amount of P1,020.00, Philippine currency; that by reason of and on the
occasion of the said robbery, the said accused, in pursuance of their conspiracy and with
treachery, did then and there wilfully, unlawfully and feloniously, with intent to kill, attack,
assault an (sic) use personal violence upon the person of VENANCIO ESTACIO Y PANELO by
stabbing him twice with a bladed weapon on the chest, thereby inflicting upon him stab
wounds which are necessarily fatal and mortal and which were the direct and immediate
cause of his death thereafter.

Contrary to law. 1

The case was docketed as Criminal Case No. 88-67914 and was raffled off to Branch 5 of the said court.

Upon his arraignment on 4 January 1989, 2 Rolando de la Cruz, hereinafter referred to as the Appellant,
entered a plea of not guilty.

Trial on the merits ensued thereafter. The prosecution presented as its witnesses P/Cpl. Salvador
Fradejas, Sotero Dionisio, Abel Requejo, Catalina Dionisio and Dr. Maximo Reyes. Appellant took the
witness stand in his defense and presented Rita dela Cruz, his mother, as his lone witness.

On 21 September 1990, the trial court promulgated its decision, 3 dated 17 September 1990, the
dispositive portion of which reads:

WHEREFORE, finding the accused ROLANDO DELA CRUZ y GOMEZ GUILTY beyond
reasonable doubt of the crime of Robbery with Homicide, sentences (sic) him to suffer the
penalty of LIFE IMPRISONMENT; to indemnify the heirs of deceased Venancio Estacio y
Panelo the sum of THIRTY THOUSAND PESOS (P30,000.00) and pay the costs.
 SO ORDERED. 4

The conviction is based on the evidence for the prosecution which is summarized by the trial court as
follows:

Sotero Dionisio is a Jeepney driver married to Catalina Asajar Dionisio. The jeepney that
he drives belongs to his father-in-law and plies the Punta-Quiapo route. On October 1,
1988, at about 6:30 to 7:00 in the evening, as was his habit, he was driving the said
jeepney accompanied by his wife, Catalina who was then seated beside him in the front
seat while picking-up passengers at P. Sanchez Street in front of the Lourdes Hospital
heading towards Sta. Mesa-Quiapo. According to Dionisio, there were about fifteen (15)
passengers beside (sic) his wife. The jeepney was travelling at its usual pace, when he
heard one (sic) of the passengers was pushed outside and fell overboard. That the thrown
(sic) passenger rolled on the road. Seeing the fall of the passenger, he tried to stop the
jeepney, but a male passenger seated at his back poked a gun at his head and shouted to
(sic) go faster or he will blow his head off. At the same time, the man hanging at the rear
running board pointed a knife at the passengers. According to him, there were other
members of the holdupper (sic) who were seated on the rear passenger seats who (sic)
armed with knives collected from the passengers their valuables. That Dionisio was
ordered to stop the jeepney in front of the NCBA where the five (5) who partook in the
hold-up where (sic) the same men who, together boarded his Jeepney near the foot of the
Lambingan Bridge, alighted. That he came to know, aside from the hold-up, committed in
his jeepney, a (sic) passenger while in the process of being divested of his valuable (sic)
was stabbed by the holduppers. With the wounded passenger, he immediately proceeded
to the hospital.

Abel Requejo, an engineer who was a passenger of the said jeepney during the hold-up
testified that he was seated at one of the back seats. That when the hold-up was
announced, he was told not to make a false move, while the holdupper's knives were
pointed at the passengers including himself, he was divested of his Seiko gold watch
worth Eight Hundred Pesos (P800.00), Two Hundred Pesos (P200.00) cash and other
valuables by a man pointing a knife at him. He identified the man as accused Rolando
dela Cruz. He claimed, the (sic) light inside the jeepney was bright at the time of the hold-
up. He also said that the other passengers of the jeepney were divested of their valuables,
and that, one of the passengers while being robbed by the holduppers, was stabbed and
fatally wounded. Likewise, Mrs. Catalina Asajar Dionisio, wife of driver Sotero Dionisio,
who at the time of the hold-up was seated at the front seat beside her driver-husband,
identified accused Rolando dela Cruz as one of the holduppers who divested the
passengers of the jeepney their (sic) valuables.

That later, after the holduppers had alighted from the jeepney, they proceeded to bring
the wounded passenger at (sic) the Unciano General Hospital. The patient Venancio
Panelo Estacio the jeepney passenger and one of those who were robbed of their
valuables, and the one stabbed was declared dead-on-arrival. The cadaver was later
brought to the International Funeral Homes at Sta. Mesa, Manila where, it was autopsied
the following day by Dr. Maximo Reyes. Dr. Reyes after conducting an autopsy of the
cadaver, issued a written autopsy report (Exhibit "E"), a sketch describing the two (2) stab
wounds on the chest (Exhibit "E-1" and "F-1") as the first wound on the chest, not fatal.
The second wound also on the chest Exhibit "E-2" and "F-2" according to him was a fatal
wound. That the wound was inflicted while the victim was stooping facing the assailant.
He also identified the Certificate of Identification of Victim Venancio Panelo Estacio, Exhibit
"D". 5

Upon the other hand, appellant's version is summarized by the trial court in this manner:

Accused Rolando dela Cruz claimed that he is a construction worker at the New Panaderos
Street, Sta. Ana, Manila. That he was employed by one Eddie San Jose. He likewise
claimed, that on October 1, 1988, he reported for work. That at about 5:00 in the
afternoon, he left work and proceeded straight for home. According to him, he arrived at
his house which he shared with his mother Rita, at 3290 V. Mapa Street, Sta. Cruz, Manila
about (sic) 6:30 in the evening. From that time, up to the following morning, he never left
 his house. He denied participation to (sic) the robbery homicide he is being charged of
(sic).

According to him, Pat. Intia was angry at him because Pat. Intia is the compadre of one
Erning Manalo the one who stabbed him and as a result thereof, a case was filed by him
against said Erning Manalo. That Pat. Intia attributed to him all the crimes and petty
crimes committed in their locality. Pat. Intia is a neighbor of his, his house only (sic) some
sixty (60) meters away from each other (sic). That he was able to talk to Engineer
Requejo, one of the complainant-witnesses against him, and he claimed to have been told
Requejo testified (sic) against him because he was a trouble-maker (sic) in their place. In
cross-examination however, he admitted not knowing any of the complainant-witnesses
mentioned. He likewise admitted that his house where he claimed he was at the time of
the incident was only sixty (60) meters away from the place of the incident, and that,
inspite of its proximity he claim (sic) not to know that robbery-hold-up (sic) did occur in
the place; that he came to know about it when he was arrested on November 22, 1988.
His mother Rita dela Cruz collaborated the testimony of his (sic) son accused Rolando dela
Cruz. She also claimed her (sic) son at the time he was arrested was pistol-whipped and
maltreated by Pat. Intia and his police companion. 6

We find the above summation of the evidence to be amply supported by the transcripts of the
stenographic notes of the testimonies of the witnesses presented by the parties.

The trial court gave full faith and credit to the version of the prosecution. It could not believe that Abel
Requejo, an educated man, and Mrs. Catalina Dionisio, the wife of the driver of the jeep which was held
up, whose testimonies were clear and convincing, would lie to the court. It likewise ruled that since a
conspiracy existed among the hold-uppers, each shall suffer the consequences of their criminal acts,
including the homicide committed during the hold-up. It rejected the appellant's version which it
described as a mere denial corroborated by the "loyalty vote" of his mother. 7

Unable to accept the verdict, the appellant filed his notice of appeal on 25 September 1990. 8 In its
Order of 26 September 1990, the trial court gave due course to the appeal, but erroneously directed the
elevation of the case records to the Court of Appeals. 9 The latter, however, transmitted the same to this
Court on 12 November 1991. 10 We accepted the appeal 11 on 20 November 1991.

In the Brief for the Accused-Appellant, 12 submitted by the Public Attorney's Office, only one (1) error is
assigned:

The trial court gravely erred in convicting Accused-Appellant Rolando dela Cruz despite
the weakness and lack of concreteness of the prosecution's evidence on the question of
whether or not the accused-appellant is the author of the crime charged.

Clearly, the issue raised is factual and involves the credibility of the witnesses, a matter addressed to
the trial court13 because it is in a better position to decide such questions, having heard the witnesses
and observed their deportment and manner of testifying during the trial. 14 Hence, its findings on the
credibility of witnesses are entitled to the highest degree of respect and will not be disturbed on appeal
in the absence of any clear showing that the trial court overlooked, misunderstood or misapplied some
facts or circumstances of weight and substance which would have affected the result of the case. 15 That
absence is all too evident in the instant case. The identity of the appellant and his participation in the
daring robbery were established beyond doubt principally by the testimonies of Abel Requejo and Mrs.
Catalina Dionisio. The appellant sought to discredit the evidence for the prosecution as regards his
identification on the basis of the alleged weakness of the testimony of the driver of the passenger
jeepney, Sotero Dionisio, who admitted that since he was driving the vehicle and managed only a quick
glance at the mirror, he could not state what role the appellant played. The appellant likewise
challenges the testimony of Abel Requejo which allegedly did not actually show that the latter positively
saw the face of the former. The very portions of the transcripts of the stenographic notes of the
testimonies of the said witnesses, reproduced by the appellant in his Brief to prove the foregoing
conclusions, establish a contrary conclusion. Although Sotero admitted that he was driving the jeepney
throughout the incident, it is clear from his testimony that although he was unable to state the specific
role played by the appellant during the hold-up, he (Sotero) was able to identify the latter as one of the
five (5) hold-uppers inside the jeepney. Thus, even from the portion quoted by the appellant, We have
the following question propounded to and answer given by Sotero:
 FISCAL BAUTISTA (to witness).

Q So, in other words, will you be able to tell the court, what role the
accused played actually in side the jeepney from the time the gun was
poked to your head up to the time that you stopped?

A I cannot really state what role he played, but I saw him there inside the
jeepney. 16(Emphasis supplied)

xxx xxx xxx

The defense was quite unfair to this Court in reproducing the above-quoted portion for only that
segment favorable to the appellant was cited. It is to be observed that on the very page containing the
above-quoted portion is to be found Sotero's categorical declaration that the appellant was indeed one
of the five (5) hold-uppers. Thus:

FISCAL BAUTISTA

Q What about the man holding a gun, was he in the group?

A Yes, sir.

Q Now, would you be able to identify any of those five men?

A Yes, sir.

Q Who among the five men can you identify?

A I can identify at least two if I can see them.

Q Now, will you look around inside the courtroom and tell the Honorable
Court if any of those five men is (sic) inside the court room today?

A Yes, sir.

Q Will you please look around and point to the man?

INTERPRETER:

Witness pointing to a person who answers in (sic) the name of Rolando dela
Cruz. 17(Emphasis supplied)

Aside from this, the following answers of witness Requejo on cross-examination also quoted in the
Brief are erroneously interpreted to mean that the said witness did not see the appellant's face:

FISCAL BAUTISTA (to witness):

Q So, you are saying that the accused poked a knife at you while you were
facing one another?

A Yes, sir.

xxx xxx xxx

Q So, while you were doing these, you are (sic) more concentrated in
looking at your watch and your wallet?

A Yes, sir.

Q So, you have no time in looking (sic) at that person poking the knife?
 A Yes, sir. 18

We are at a loss as to how these questions and answers could have been misunderstood and used to
support the appellant' s conclusion. It is clear that the said witness was "facing" the appellant during the
hold-up. The answer to the last question reproduced above confirms the fact that indeed, the witness
was facing the appellant and therefore, had an unobstructed view of his face.

The identification of the appellant as one of the hold-uppers was further bolstered by the testimony of
Catalina Dionisio who declared thus:

FISCAL BAUTISTA (to witness)

Q With respect to those five companions together with that man, could you
see whether anyone of them is now present in this court?

A Yes, sir.

Q Will you point to him if anyone of those persons who were divesting the
passengers is inside the court room now?

A Yes, sir.

Q Will you please point to him?

INTERPRETER:

Witness pointing to a person who answers in (sic) the name of Rolando dela
Cruz. 19

In the light of his being positively identified as one of the hold-uppers, the appellant's defense of alibi,
which the trial court erroneously characterized as denial, 20 must necessarily fail. Deeply rooted in our
criminal jurisprudence is the rule that alibi is the weakest of all defenses for it is easy to fabricate and
difficult to disprove; 21 it cannot prevail over the positive identification of the accused by the
witnesses. 22 Moreover, for that defense to prosper, it in not sufficient that the accused prove that he
was somewhere else when the crime was committed; he must also show that it was physically
impossible for him to have been at the scene of the crime at the time the crime was committed. 23 That
physical impossibility was not present in this case. Appellant admitted in open court that he was in his
house a mere sixty (60) meters from the scene of the incident at the time the crime was
committed. 24 Given such proximity, it was not only possible but also quite probable for him to have been
at the crime scene at the time of the crime's commission.

We also agree with the trial court that the crime committed by the appellant and his confederates,
whose identities remain unknown, is robbery with homicide (robo con homicidio) defined and penalized
under Article 294(l) of the Revised Penal Code which reads:

Art. 294. Robbery with violence against or intimidation of persons Penalties. Any
person guilty of robbery with the use of violence against or intimidation of any person
shall suffer:

1. The penalty of reclusion perpetua to death, when by reason or on occasion of the

robbery, the crime of homicide shall have been committed.

xxx xxx xxx

To sustain a conviction for robbery with homicide, it is necessary that the robbery itself be proven as
conclusively as any essential element of a crime. 25

There is not the slightest doubt in Our minds that the appellant and his unidentified cohorts employed
violence against and intimidation of persons to consummate their criminal intent to take away, for
personal gain, the personal property of the passengers of the jeepney. One of them used a bladed
weapon to stab to death one of the victims, Venancio Estacio. The others also used bladed weapons and
a firearm to intimidate and threaten the other passengers into turning over their personal property. One
of the victims, Abel Requejo, was divested of a Seiko gold watch worth P800.00, cash of P200.00 and
other valuables and important papers.

Conspiracy among the perpetrators was duly proven. Pretending to be passengers, they boarded the
jeepney at the same time near the foot of the Lambingan Bridge. When the hold-up was announced,
each moved with precision in pursuit of an assigned task obviously earlier agreed upon. One poked
his gun at the head of the driver while the rest pointed their knives at the passengers. At the same time,
they divested the said passengers of their valuables. They all alighted from the jeepney at the same
time with the loot. These acts, taken together, are sufficient to establish the existence of a common
design among the appellant and his companions to commit the offense charged. Otherwise stated, such
acts showed nothing less than a joint purpose, and design, and a concerted action and community of
interest; these establish beyond reasonable doubt the existence of conspiracy. 26 Direct proof is not
essential to prove conspiracy; 27 it may be shown by acts and circumstances from which may logically be
inferred the existence of a common design, 28 or may be deduced from the mode and manner in which
the offense was perpetrated. 29

That a homicide was committed on the occasion of the robbery is equally beyond dispute. Venancio
Estacio was stabbed twice in his chest at the time he was divested of his personal property. He was
pronounced dead on arrival upon reaching the hospital. For robbery with homicide to exist, it is enough
that a homicide would result by reason or on the occasion of the robbery. 30 The rule is likewise settled
that when homicide takes place as a consequence or on the occasion of a robbery, all those who took
part in the robbery are guilty as principals of the crime of robbery with homicide unless proof is
presented that the accused tried to prevent the killing. 31 There is no showing that the appellant tried to
prevent the stabbing of Venancio.

Appellant then is liable for the crime of robbery with homicide under Article 294(l) of the Revised Penal
Code. The crime was committed with the aggravating circumstances of band 32 and craft. 33 While the
first is not specifically alleged in the information, it was proven without objection on
the part of the defense. Hence, it can be properly appreciated against the appellant. 34

An offense shall be deemed to have been committed by a band whenever more than three (3) armed
malefactors shall have acted together in the commission thereof. 35 In the instant case, it was duly
proven that there were five (5) armed malefactors. It should be emphasized here that the circumstance
of band is inherent in brigandage and in robbery in band; if, however, the information does not charge
these offenses, as in this case, then such circumstance can only be appreciated as a generic
aggravating circumstance. 36

Craft is present because the appellant and his co-conspirators pretended to be bona fide passengers of
the jeepney so as not to arouse any suspicion as regards their criminal scheme to commit the robbery. 37

The penalty for robbery with homicide is composed of two (2) indivisible penalties, namely reclusion
perpetua to death. Taking into account the two (2) generic aggravating circumstances of band and craft,
and pursuant to the rule laid down in the second paragraph, Article 63 of the Revised Penal Code, the
greater penalty death should be imposed. In view, however, of Section 19(l), Article III of the 1987
Constitution which prohibits the imposition of the death penalty, and in view of the rule laid down
in People vs. Muoz, 38 the appropriate imposable penalty should bereclusion perpetua.

The trial court erroneously imposed the penalty of life imprisonment. This Court has ruled time and
again that the penalty of reclusion perpetua is not synonymous with life imprisonment for the reason
that the latter does not carry with it accessory penalties and does not have a definite duration.
Furthermore, it is not the penalty provided by law for the crime of robbery with homicide. 39 It is
extremely exasperating to find some judges still unable to heed Our pronouncement on this matter.

Finally, since every person criminally liable for a felony is also civilly liable, 40 the trial court should also
have made a disposition on the appellant's civil liability to Abel Requejo, the passenger who was
divested of his watch and cash.

IN VIEW OF ALL THE FOREGOING, the appealed decision of the Regional Trial Court in Criminal Case No.
88-67914 is hereby AFFIRMED subject to the following modifications: (a) the penalty should be reclusion
perpetua, instead of life imprisonment, (b) consistent with the current policy of this Court, the indemnity
should be increased from P30.000.00 to P50,000.00 and (c) the appellant is hereby ordered to return to
Abel Requejo the Seiko gold watch if that is no longer possible, the appellant should indemnify the
latter its value in the sum of P800.00 and pay the sum of P200.00 as reimbursement for the money
taken from the said victim.

Costs against the appellant.

51. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ABUNDIO ALBARIDO and BENEDICTO
IGDOY, accused-appellants.

DECISION

SANDOVAL-GUTIERREZ, J.:

Before us is the appeal from the decision[1] of the Regional Trial Court, Branch 12, Ormoc City, in
Criminal Case No. 3138-0, People of the Philippines vs. Abundio Albarido and Benedicto Igdoy finding
them guilty beyond reasonable doubt of multiple murder.

The information against the accused reads:

That on or about the 15 th day of June, 1987, in the Municipality of Kananga, Province of Leyte,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating with one another, with treachery and evident premeditation, with intent to kill, and of
nighttime and abuse of superior strength, did, then and there willfully, unlawfully and feloniously attack,
assault, stab, hack, shot and wound CELSO LARBO, DANILO PALACIO and LAURO PALACIO, with the use
of guns and bolos, which the accused had provided themselves for the purpose, thereby inflicting
various gunshot, stabbing and hacking wounds on the different parts of the victims bodies (please see
attached medical certificates), which caused their death.

CONTRARY TO LAW.

Only accused Abundio Albarido and Benedicto Igdoy, now appellants, were apprehended. When
arraigned, they entered a plea of not guilty.

The version of the prosecution, as narrated by the Solicitor General in the appellees brief, [2] is as
follows:

At about 7:00 p.m. on June 15, 1987, a group of men composed of Celso Larbo, Danilo Palacio, and
Lauro Palacio, together with Maximo Pea, Melchor Palacio and Jose Palacio, were walking single file on a
trail measuring about fifteen (15) inches wide in Sitio Bislog, Barangay Sto. Domingo, Kananga, Leyte
(tsn, pp. 7, 8, 10, 34, Pea, October 17, 1988; tsn, pp. 8, 9, Jose Palacio, June 13, 1989; tsn, pp. 7-9,
Melchor Palacio, June 15, 1989).

Without warning, all of them were waylaid by another group composed of Aquilino Canaway, Elias
Merced and appellants (tsn, pp. 9, 10, Pena, October 17, 1988). They were recognized by Maximo Pea
and Jose Palacio because Lauro Palacio was able to focus the flashlight he was then holding on the faces
of appellants (tsn, pp. 10, 30, Pea, October 17, 1988; tsn, p. 13, Jose Palacio, June 13, 1989; tsn, p. 11,
Melchor Palacio, June 15, 1989).

Guns were fired. Among those hit in the first volley were Celso Larbo (tsn, p. 35, Pea, October 17, 1988;
tsn, p.12, Jose Palacio, June 13, 1989; tsn, p. 9, Melchor Palacio, June 15, 1989). The other men
scampered for safety in the tall grasses nearby (tsn, p. 11, Pea, October 17, 1988; tsn, p. 10, Jose
Palacio, June 13, 1989). After the shooting, appellants approached Celso Larbo and mercilessly hacked
him with bolos many times (tsn, p. 11, Pea, October 17, 1988).

Danilo Palacio and Lauro Palacio were likewise attacked by appellants who mercilessly hacked and
stabbed them (tsn, p. 11, Pea, October 17, 1988; tsn, pp. 12, 13, 15, Jose Palacio, June 13,
1989). Appellants companions, Aquilino Canaway and Elias Merced, on the other hand, acted as guards
to head off any attempt by anyone minded to come to the aid of the victims (tsn, p. 12, Pea, October
17, 1988).

All the injured victims subsequently died (tsn, pp. 16, 17, Melchor Palacio, June 15, 1989; tsn, pp. 7, 25,
26, 30, Cam, June 3, 1988).

Dr. Roland Cam, resident physician of the Ormoc District Hospital, testified that he conducted a
post-mortem examination on the bodies of Celso Larbo, Danilo Palacio and Lauro Palacio. The
examination disclosed that Celso Larbo sustained gunshot and hacking wounds, probably caused by a
sharp instrument, causing his death. Danilo and Lauro Palacio suffered from multiple stab and hacking
wounds, possibly caused by a sharp instrument, which also caused their death. [3]

In his defense, Benedicto Igdoy claimed that at the time the incident took place, he was at
Hibucawon, Jaro, Leyte where he resides with his family. He insisted that he has never been to Barangay
Sto. Domingo, Kananga, Leyte, the place where the crime took place, and that he only goes to the
Municipality of Kananga twice a year to visit his parents-in-law in Lonoy. He does not know the victims,
or Maximo Pea and Jose Palacio who both testified against him. [4]

For his part, Abundio Albarido likewise denied the crime imputed against him. He testified that he
was at his house approximately three (3) kilometers away from the scene of the crime at the time it
happened. When presented with his affidavit where he stated that he was with Benedicto Igdoy on June
15, 1987, he refuted the same, saying he was only forced to sign it because Romy Tauy, a policeman,
threatened to kill him if he refuse to do so.[5]

After trial, the lower court rendered judgment finding Abundio Albarido and Benedicto Igdoy guilty
beyond reasonable doubt of three (3) counts of murder, thus:

WHEREFORE, decision is hereby rendered finding both accused ABUNDIO ALBARIDO and BENEDICTO
IGDOY guilty beyond reasonable doubt as principals of three counts of murder defined and penalized
under Art. 248 of the Revised Penal Code. Appreciating the aggravating circumstance of nighttime with
no mitigating circumstance to offset the same, the proper penalty imposable is three death penalties for
each accused. For reason, however, that the present constitution prohibits the imposition of the death
penalty, this Court, accordingly sentences both accused ABUNDIO ALBARIDO and BENEDICTO IGDOY to
suffer an imprisonment of RECLUSION PERPETUA for the death of Celso Larbo; another RECLUSION
PERPETUA for the death of Danilo Palacio; another RECLUSION PERPETUA for the death of Lauro
Palacio. Further, accused ABUNDIO ALBARIDO is ordered to indemnify the heirs of Celso Larbo the sum
of FIFTY THOUSAND PESOS (P 50,000.00); the heirs of Danilo and Lauro Palacio the sum of FIFTY
THOUSAND PESOS (P 50,000.00) for the death of Danilo Palacio and another sum of FIFTY THOUSAND
PESOS (P 50,000.00) for the death of Lauro Palacio. Also, BENEDICTO IGDOY is ordered to indemnify the
heirs of Celso Larbo the sum of FIFTY THOUSAND PESOS (P 50,000.00); the heirs of Danilo and Lauro
Palacio the sum of FIFTY THOUSAND PESOS (P 50,000.00) for the death of Danilo Palacio and another
sum of FIFTY THOUSAND PESOS (P 50,000.00) for the death of Lauro Palacio. And finally, both accused
are ordered to pay the costs.

SO ORDERED.[6]

In the instant appeal, Albarido and Igdoy ascribe to the trial court the following errors:

THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDIT TO THE TESTIMONIES OF TWO
ALLEGED EYEWITNESSES TO THE MULTIPLE MURDER DESPITE THE FACT THAT SAID
TESTIMONIES (A) ARE RIDDLED WITH INCONSISTENCIES, CONTRADICTIONS AND
IMPROBABILITIES AND (B) WERE NOT CORROBORATED BY ANOTHER ALLEGED EYEWITNESS.

II

THE TRIAL COURT ERRED IN ENGAGING IN CONJECTURE AND/OR SPECULATION REGARDING

THE TESTIMONY OF PROSECUTION WITNESS MELCHOR PALACIO.

III
 THE TRIAL COURT ERRED IN BASING ITS JUDGMENT OF CONVICTION ON THE TESTIMONIES
OF TWO WITNESSES WHICH ARE FLAWED WITH INCONSISTENCIES, CONTRADICTIONS AND
IMPROBABILITIES AND HENCE, DO NOT CONSTITUTE PROOF OF GUILT BEYOND REASONABLE
DOUBT.[7]

Appellants, in seeking the reversal of the challenged decision, rely principally on the inconsistencies
in the testimonies and affidavits of the prosecution witnesses.

The appeal has no merit.

Appellants contend that the testimonies of Maximo Pea and Jose Palacio on material details of the
incident conflict with their allegations in their affidavits executed before the trial. For instance, while
Pea stated in his affidavit that only Elias Merced was holding a revolver, however, during the hearing,
he testified that all the four (4) accused were armed, three with handguns and one with a long
gun. Pea likewise stated in his affidavit that after the first gunshot, victim Lauro Palacio focused his
flashlight on the four accused. But during the trial, Pea declared that Lauro Palacio had focused the
flashlight on the accused prior to the first gunshot.

For his part, Jose Palacio testified that appellant Abundio Albarido and Elias Merced were armed with
guns, while appellant Benedicto Igdoy and Aquilino Canaway were carrying bolos. However, in his sworn
statement, he stated that Merced was carrying a gun and the other three (3) accused had bolos. Also,
Palacios statement in his affidavit that it was Merced who fired at him and his companions is
inconsistent with his testimony that he did not know who fired the shots.

Appellants likewise argue that the testimonies of the three (3) prosecution witnesses are
inconsistent with each other. Peas account that all the four accused had guns is contradicted by Jose
Palacios testimony that only two accused were carrying guns, while the other two had bolos. Likewise,
Pea testified that appellant Albarido fired the first gunshot, but Palacio declared it was Merced who first
fired his gun. Lastly, Peas version that before the first gunshot, Lauro Palacios flashlight was already
focused on the four accused is contradicted by Palacios testimony that he did not see any person before
they heard any gunshot.

Concerning the discrepancies between the affidavits and testimonies of the prosecution witnesses,
suffice it to say that time and again, this Court has held that when there is an inconsistency between the
affidavit and the testimony of a witness in court, the testimony commands greater weight. [8] For,
oftentimes, affidavits taken ex parte, are considered inaccurate as they are prepared by other persons
who use their own language in writing the affiants statements. [9] Omissions and misunderstandings by
the writer are not infrequent, particularly under circumstances of haste or impatience. [10] Thus, more
often than not, affidavits do not reflect precisely what the declarant wants to impart. [11]

A careful scrutiny of the inconsistencies relied upon by the appellants shows that they refer only
to minor details in the commission of the crime and do not affect at all the credibility of the prosecution
witnesses. It is elementary in the rule of evidence that inconsistencies in the testimonies of prosecution
witnesses with respect to minor details and collateral matters do not affect the substance of their
declaration nor the veracity or weight of their testimony. [12] In fact, these minor inconsistencies enhance
the credibility of the witnesses, for they remove any suspicion that their testimonies were contrived or
rehearsed.[13] In People vs. Maglente,[14] this Court ruled that inconsistencies in details which are
irrelevant to the elements of the crime are not grounds for acquittal. Besides, both Pea and Palacio
were consistent in identifying herein appellants as the perpetrators of the crime and in narrating how
the victims died.

Indeed, the fact that the statements of the two prosecution witnesses differ on some minor details,
does not in any way affect their credibility. This is in accord with ordinary human experience that
persons who witness an event perceive the same from their respective points of reference. Therefore,
almost always, they have different accounts of how it happened. Certainly, we cannot expect the
testimony of witnesses to a crime to be consistent in all aspects because different persons have
different impressions and recollections of the same incident. [15] What is significant is that the trial court
had the opportunity to observe the demeanor of the prosecution witnesses and found them to be telling
the truth. It is axiomatic that findings of the trial court on the credibility of witnesses are entitled to
great respect and will not be disturbed on appeal, absent any showing of palpable mistake or grave
abuse of discretion which is not present in this case.[16]
 Appellants assailed the prosecution evidence, stating that Melchor Palacio, the father of the two (2)
victims, failed to corroborate the testimonies of Maximo Pena and Jose Palacio. Melchor categorically
declared on the witness stand that due to the darkness of the night and the suddenness of the attack,
he did not see the assailants.

Again, appellants contention must fail. There is no hard and fast rule requiring a number of
witnesses to a crime to positively identify the perpetrators thereof. In numerous instances, the
testimony of a single witness, if positive and credible, is sufficient to convict an accused. [17] Here, there
were two eyewitnesses who positively identified the appellants as the perpetrators of the
crime. Moreover, the fact that the crime took place in a dark place does not mean that the assailants
could not be identified. Both declared that they used a flashlight in lighting their path that fateful
night. Consequently, it cannot be said that the crime took place on an entirely dark night which made it
impossible for those witnesses to identify the assailants.

Lastly, appellants insist that the infirmities in the testimonies of Maximo Pena and Jose Palacio cast
grave and serious doubt on their trustworthiness. They further emphasize that no evidence was
presented by the prosecution to prove that they were ill motivated in committing the crime.

We are not persuaded. As mentioned earlier, the trial court did not err in giving full faith and credit
to the testimonies of Maximo Pena and Jose Palacio quoted below:

Testimony of Maximo Pea:

Q: Now, at about 7:00 oclock while on your way at So. Bislog, do you recall of any unusual incident
that took place?

A: We were waylaid.

Q: Now, what happened when you were waylaid?

A: We were shot.

Q: You mentioned of the pronoun we, whom are you referring to?

A: We- I, Melchor Palacio, Jose Palacio, Danilo Palacio, Celso Larbo and Lauro Palacio.

Q: Do you recall in what particular place in Sitio Bislog you were waylaid?

A: At the crossing.

Q: How far is that crossing to your sitio at Baganatad, Brgy. Sto. Domingo, Kananga, Leyte?

A: More than one-half kilometer.

Q: Did you recognize the persons who waylaid you, while you were on your way to So. Baganatad
of Sto. Domingo?

A: Yes, sir.

Q: Look around the courtroom if you could see these persons?

A: Those two, Abundio Albarido and Benedicto Igdoy (witness pointing to the two accused who
when asked gave their names as ABUNDIO ALBARIDO and BENEDICTO IGDOY, respectively).

Q: Aside from these accused whom you have pointed to as Benedicto Indoy and Abundio Albarido,
were there other persons whom you recognized in the company of these accused, Abundio
Albarido and Benedicto Igdoy?

A: Yes, sir, there were two others.

Q: What are their names?

A: Aquilino Canaway and Elias Merced.

Q: Why do you know these people, accused Abundio Albarido, Benedicto Indoy, Aquilino Canaway
and Elias Merced?

A: Because they were lighted by the flashlight.

Q: Who was holding the flashlight, while you were on your way to Sitio Baganatad from So. Bislog?

A: It was a child named Lauro.

Q: By the way, what was your position in going to Bislog, were you walking side by side or in a
single file?

A: We were walking one after the other.

Q: Could you recall who was ahead of the group?

A: Lauro, Danilo, Celso, Jose Palacio, Melchor Palacio and I was the last.

Q: Now, you said you heard a gun report. What happened after you heard a gun report?

A: When we heard the gunshot, we immediately covered ourselves at the grasses.

Q: What transpired after that

A: After the gunshot, Bonding and Benny approached Celso Larbo and hacked him many times.

Q: Now, after how many gun reports did you hear, that you saw the accused go to Celso Larbo and
hacked him many times?

A: Four gunshots.

Q: Now, what happened to Lauro Palacio and Danilo Palacio?

A: Danilo Palacio and Lauro Palacio were hacked. After that, they also stabbed Danilo and Lauro at
their chest..[18]

Testimony of Jose Palacio:

Q: While proceeding from Sitio Bislog to the house of Simeon Almendras on June 15, 1987 at about
7:00 oclock together with your companions, what transpired?

A: We were shot.

Q: How did you know you were shot?

A: Because we heard a gun report.

Q: Now, how many gin reports did you hear in the first instance?

A: Only one.

Q: What did you do when you head (sic) the first gun report?

A: I rolled at the cogon grasses.

Q: Why did you roll at the cogon grass after you heard the first gun report?

A: Because I was afraid that I might be hit by the gun report.

Q: After the first gun report did you hear any further gun report?

A: Yes, sir, I heard another three successive gun reports.

Q: At that instance you were hiding at the gocon (sic) grass?

A: Yes, sir.

Q: Now, while you were in the cogon grass what did you observe?

A: I saw that the four (4) persons were carrying boloes (sic) and guns. (Witness pointing to the two
accused.)

Q: Now, you were using the pronoun they who were these persons that were carrying guns and
boloes (sic)?

COURT

And all of the four were carrying guns?

A: No, your Honor only two of them were carrying guns.

COURT

Who?

A: Banding or Abundio Albarido and Elias Merced were carrying guns.

COURT

Proceed.

ATTY. SALAZAR

Q: How about the other two?

A: They were carrying boloes (sic).

Q: Now, these two accused present in the courtroom now were the two of the persons whom you
saw on June 15?

COURT

Already answered.

ATTY. SALAZAR

Q: What happened next after you saw these four accused armed with bolos and other with guns?

A: Celso Larbo was hit by the gun.

Q: What else did you observe?

A: Danilo Palacio and Lauro Palacio were hit by the boloes (sic).

Q: How are you related to Lauro Palacio and Danilo Palacio?

A: My brothers.
 Q: What were the accused actually doing on the person of your two younger brothers, Danilo
Palacio and Lauro Palacio?

A: They were hacked.

Q: Did you see who was hacking Danilo Palacio?

A: Yes, sir.

Q: Who?

A: He was hacked by Banding (Albarido) and Biri (Igdoy).

Q: How about Lauro Palacio?

A: Lauro Palacio was also hacked by Bonding and Biri.

Q: From where you were situated in that cogon grasses to the place where your two younger
brothers, Danilo Palacio and Lauro Palacio were hacked, how far was that?

A: About three arms length.

Q: What parts of the body were your brothers hit by the hacking blows delivered by the accused?

A: Lauro Palacio was hit on his right foot and at his right side.

Q: And how about Danilo Palacio?

A: He was hit on his back.

Q: Now, considering that it was nighttime, how were you able to witness and observe the incident?

A: Because Lauro Palacio was carrying a flashlight and he was able to light them with the flashlight
before he died.[19]

Motive becomes relevant only when there is doubt on the identity of the malefactors. [20] Hence,
failure of the prosecution to show appellants motive in committing the crime is immaterial. What is
important is that they have been positively identified as the assailants.

We are not moved by appellants uncorroborated defense of alibi. For the defense to prosper, the
requirements of time and place (or distance) must be strictly met; it is not enough to prove that the
accused was somewhere else when the crime was committed; he must also demonstrate by clear and
convincing evidence that it was physically impossible for him to have been at the scene of the crime
during its commission.[21] Appellant Igdoy himself testified that the distance between his residence at
Hibucawon, Jaro, Leyte and Kananga, Leyte, the scene of the crime, can be negotiated by public
transport within two and a half hours. [22] Appellant Albarido admitted that he was at his house during the
commission of the crime, which is only more than three (3) kilometers away from Sto. Domingo,
Kananga, Leyte where it happened.[23] These distances, as this Court has ruled in previous cases, [24] are
not enough to prove that appellant could not have been at the crime scene when it was
committed. Parenthetically, appellants alibis are worthless in the face of their positive identification by
the prosecution witnesses.[25]

We find that treachery and abuse of superior strength are present here. But abuse of superior
strength is absorbed by treachery. [26] These circumstances qualified the killing to murder. The essence
of treachery is that the attack comes without a warning and in a swift, deliberate and unexpected
manner, affording the hapless, unarmed and unsuspecting victim no chance to resist or escape. [27] Celso
Larbo, Danilo Palacio and Lauro Palacio were on their way home, unaware of the danger lurking in their
path, when they were suddenly attacked by the appellants with the use of their guns and bolos. Thus,
they had no opportunity to defend themselves. In fact, Maximo Pea testified that after Celso Larbo was
rendered defenseless by the first gun shot, [28] appellants started hacking him with their bolos. [29] They
also attacked Danilo and Lauro Palacio, then only 12 and 14 years old, who were unable to protect
themselves from the aggression of grown men. As to the presence of abuse of superior strength, the
same is proved by the fact that appellants and their two companions were armed, not only with guns,
but with bolos tucked at their waist.[30]

However, we disagree with the trial courts ruling that the crime was attended by the aggravating
circumstance of nighttime. There is no evidence to show that the appellants and their companions
purposely took advantage of the darkness of the night to insure the commission of the crime. It is basic
that for nighttime to be appreciated as an aggravating circumstance there must be a showing that the
accused purposely sought such time to facilitate the commission of the crime or to prevent its discovery.
[31]
Neither can we rule that there was evident premeditation on the part of herein appellants because
the prosecution failed to establish the same.

The imposable penalty is reclusion perpetua under Article 248 of the Revised Penal Code
considering that no ordinary aggravating circumstance attended the commission of the crime.

We sustain the trial courts award of P 50,000.00 as civil indemnity to the heirs of each of the three
(3) victims. In line with existing jurisprudence, [32] since the qualifying aggravating circumstance of
treachery was sufficiently proven, the award of exemplary damages of P 25,000.00 each to the same
heirs is likewise in order.

WHEREFORE, the appealed decision of the trial court is hereby AFFIRMED, with MODIFICATION that
each of the appellants is ordered to pay the heirs of each victim the sum of Twenty Five Thousand Pesos
(P 25,000.00) as exemplary damages.

54. PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO L. SANCHEZ, ARTEMIO AVERION, LANDRITO "DING" PERADILLAS and LUIS
CORCOLON,accused,
ANTONIO L. SANCHEZ and ARTEMIO AVERION, accused-appellants.
PARDO, J.:
What is before this Court is an appeal from the decision of Regional Trial Court, Branch 160, Pasig
City,1 finding accused Antonio L. Sanchez, Luis Corcolon y Fadialan, Landrito "Ding" Peradillas and
Artemio Averion guilty beyond reasonable doubt of murder committed Nelson Pealosa and Rickson
Pealosa, and sentencing each of the accused, as follows:
WHEREFORE, foregoing considered, the Court finds the accused Antonio Sanchez, Landrito "Ding"
Peradillas, Luis Corcolon, and Artemio Averion GUILTY beyond reasonable doubt of the crime of
MURDER punishable under ART. 48 of the Revised Penal Code and hereby sentences each of said
accused to suffer the penalty of reclusion perpetua and to pay jointly and severally, the heirs of
the victims each the sum of P100,000.00 for the death of Nelson Pealosa and Rickson Pealosa,
P50,000.00 as actual damages and moral damages of P50,000.00 and exemplary damages of
P30,000.00 and to pay the costs.1wphi1.nt
SO ORDERED.
City of Pasig.
December 27, 1996.
(s/t) MARIANO M. UMALI
Judge2
On March 1, 1994, Senior State Prosecutor Hernani T. Barrios filed with the Regional Trial Court,
Calamba, Laguna, an information for double murder against accused Antonio L. Sanchez, Luis Corcolon y
Fadialan, Landrito "Ding" Peradillas and Artemio Averion, the accusatory portion of which reads:
That on or about April 13, 1991, at about 7:45 p.m. more or less, in Barangay Curba, Municipality
of Calauan, Province of Laguna, and within the jurisdiction of the Honorable Court, the above-
named accused conspiring, confederating, and mutually aiding one another, with treachery and
evident premeditation, and with the use of a motor vehicle, at night time, all the accused then
being armed and committed in consideration of a price, reward or promise and of superior
strength, did then and there willfully, unlawfully, and feloniously shoot with the use of automatic
weapons inflicting multiple gunshot wounds upon Nelson Pealosa and Rickson Pealosa which
caused their instantaneous deaths to the damage and prejudice of their heirs and relatives.
CONTRARY TO LAW.3
On March 16, 1994, the case was raffled to Branch 34, Regional Trial Court, Calamba, Laguna. 4 On March
17, 1994, the court ordered the arrest of accused Antonio L. Sanchez, Luis Corcolon and Ding Peradillas.
On the same date, Artemio Averion voluntarily surrendered to the court, which ordered Averion's
transfer to the provincial jail, Sta. Cruz, Laguna.5
Thereafter, the trial court committed the accused to the custody of proper authorities. 6
Upon arraignment on April 10, 1995, all the accused pleaded not guilty. 7 The trial of the case thereby
ensued. On December 27, 1996, the trial court convicted all the accused of the complex crime of double
murder, as charged, the dispositive portion of which is set out in the opening paragraph of this opinion.
On February 27, 1997, all the accused, except Ding Peradillas, were present for the promulgation of the
decision. Peradillas was a member of the Philippine National Police and was under the custody of his
superiors. The trial court ordered his custodian to explain accused's non-appearance. On March 14,
1997, P/C Supt. Roberto L. Calinisan, Chief, PNP-PACC Task Force Habagat, denied any knowledge of the
murder case against Peradillas. Hence, Peradillas was not suspended from the service pending trial.
However, at the time that Peradillas was to be presented to the court for the promulgation of the
decision, he had disappeared and could not be located by his custodian. 8 The promulgation of the
decision as to him was in absentia. Peradillas and Corcolon did not appeal from the decision.
Accused Antonio L. Sanchez and Artemio Averion filed their respective appeals to this Court.
The facts are as follows:
On April 13, 1991, at around 10:00 in the morning, state witness Vivencio Malabanan, team leader of a
group of policemen, went to the Bishop Compound in Calauan, Laguna, as part of the security force of
mayor Antonio L. Sanchez. After a while, accused Ding Peradillas arrived and asked for mayor Sanchez.
Peradillas informed mayor Sanchez that there would be a birthday party that night at Dr. Virvilio
Velecina's house in Lanot, Calauan, Laguna, near the abode of Peradillas. Peradillas assured mayor
Sanchez of Nelson Pealosa's presence thereat. Dr. Velecina was a political opponent of mayor Sanchez
for the mayoralty seat of Calauan, Laguna, Mayor Sanchez then replied, "Bahala na kayo mga anak.
Ayusin lang ninyo ang trabaho," and left the premises. Peradillas immediately called Corcolon and
Averion and relayed the message "Ayos na ang paguusap at humanap na lang ng sasakyan." All the
accused, including Malabanan, understood it as an order to kill Nelson Pealosa, one of the political
leaders of Dr. Velecina.9
Afterwards, Peradillas, Corcolon and Averion made arrangements to acquire two-way radios and a
vehicle for the operation. At around 2:30 in the afternoon, Malabanan and the three accused went their
separate ways and agreed to meet at mayor Sanchez' house at 6:00 in the evening. Malabanan returned
to his detachment area at Dayap, proceeded to the municipal hall, then went home where Peradillas
fetched him at 6:00 p.m. They proceeded to mayor Sanchez' house where they met Averion and
Corcolon, with the car and two-way radios. 10
At around 7:00 in the evening, Malabanan and the three accused boarded the car and went to Marpori
Poultry Farm in Barangay Lanot, near Dr. Velecina's house. Peradillas alighted and walked towards his
own house, near Dr. Velecina's house, to check whether Nelson Pealosa was at the party.
Thereafter, using the two-way radio, Peradillas informed the occupants of the car that Nelson Pealosa's
jeep was leaving the Velecina compound. Accused Averion immediately drove the car to the front of
Peradilla's house and the latter hopped in the car's back seat. Corcolon sat in the front seat beside him;
witness Malabanan sat at the left side of the backseat and Peradillas stayed at the right side of the back
seat. The group pursued Pealosa's jeep. When the accused's car was passing Victoria Farms, located
about 100 meters from Pealosa compound, Corcolon ordered Averion to overtake Pealosa's jeep. As
the car overtook the jeep, Peradillas and Corcolon fired at Pealosa's jeep, using M-16 and baby armalite
rifles, executed in automatic firing mode. There were three bursts of gunfire. Based on the sketch
prepared by Malabanan, illustrating the relative position of their car and Nelson's jeep at the time of the
shooting, the assailants were at the left side of the jeep. 11
Rickson Pealosa, son of Nelson Pealosa, fell from the jeep. The jeep, however, continued running in a
zigzag position until it overturned in front of Irais Farm. After the shooting, the accused proceeded to the
house of mayor Sanchez in Bai, Laguna, and reported to mayor Sanchez that Pealosa was already
dead.12
Together with his superior SPO4 Lanorio and photographer Romeo Alcantara, policeman Daniel Escares
went to the crime scene. There, he saw the body of Nelson Pealosa slumped at the driver seat of the
owner-type jeep. They recovered the body of Rickson Pealosa slumped on a grassy place not far from
where they found Nelson Pealosa. After all the evidence and photographs were taken, they brought the
cadavers to Funeraria Seerez. Daniel Escares submitted his investigation report of the incident to the
Provincial Director, Laguna PNP Command.13
Dr. Ruben B. Escueta, Rural Health Physician, Rural Health Unit, Calauan, Laguna, conducted an autopsy
on the bodies of Nelson and Rickson Pealosa. Nelson Pealosa suffered massive intra-cranial
hemorrhage and died of cranial injury due to gunshot wounds. Rickson Pealosa died of massive intra
thoracic hemorrhage due to gunshot wounds. 14 Dr. Escueta, as a defense witness, testified that based on
the points of entrance and exit of the wounds sustained by the Pealosas, it was not possible for the
assailants to be at the left side of the victims. 15 It contradicted Malabanan's testimony that they were at
the left side of the victims when the shooting took place. He further stated that based on the wounds
inflicted on the victims, the assailants were either in a sitting or squatting position when they shot the
victims. Some of the wounds indicated an upward trajectory of the bullets.
On September 15, 1993, Janet P. Cortez, PNP ballistician, completed the ballistic tests conducted on the
twelve (12) empty shells found at the crime scene and the M-16 baby armalite surrendered by
Corcolon.16 She concluded that the 12 empty shells were fired using three (3) different firearms, one of
which was the M-16 baby armalite.17
On August 18, 1995, Adelina Pealosa, common law wife of Nelson Pealosa and mother of Rickson,
testified that the whole family was in mourning and could not eat after what happened. 18 She testified
that the family incurred P250,000.00 for funeral expenses, but failed to present the appropriate receipts.
She also stated that Nelson Pealosa was earning one (1) million pesos per annum from his businesses.
However, no income tax return or other proofs were shown to substantiate the statement. 19
The accused interposed the defense of alibi and denial.
Luis Corcolon stated that he spent the whole day of April 13, 1991, until 8:30 in the evening, supervising
the poultry farm of his employers, Edgardo Tanchico and Orlando Dizon. He denied that he was in the
company of Averion and Peradillas that day, and that he participated in the Pealosa killings. He denied
that he was ever assigned as a security guard of mayor Sanchez. He claimed that the murder charges
were concocted against them for his refusal to testify against mayor Sanchez in the Gomez-Sarmenta
case. He alleged that he was maltreated, tortured, electrocuted and forced to implicate mayor Sanchez
in the Gomez-Sarmenta rape-slayings. He denied that he owned the M-16 baby armalite used in killing
the Pealosas.20
Detention prisoner George Medialde corroborated Corcolon's statement that they were implicated in the
Pealosa killing for their refusal to testify against mayor Sanchez. He claimed that Malabanan confessed
to him that the latter had killed the Pealosas, but with the aid of CAFGU men and not herein accused.
He averred that Corcolon and Averion were wrongfully implicated in the murder charges in deference to
the wishes of the investigators. 21 Zoilo Ama, another detention prisoner, claimed that Malabanan
confessed that he killed the Pealosas, but did not mention the involvement of Corcolon, Averion and
mayor Sanchez.22
Accused Artemio Averion, a godson of mayor Sanchez, denied that he was involved in the Pealosa
slayings. On April 13, 1991, he claimed that he was in Lucena City, attending to his ailing father. He
stayed there until April 15, 1991. He maintained that he was wrongfully implicated in the Pealosa
killings for his refusal to testify against mayor Sanchez regarding the Gomez-Sarmenta rape-slayings.
Malabanan asked for his forgiveness for falsely incriminating them in the Pealosa case. 23
Jesus Versoza, PNP Officer, Camp Crame, denied the allegations of Medialdea and Averion that they were
tortured and forced to testify against mayor Sanchez. 24
Accused mayor Antonio L. Sanchez stated on April 12, 1991, he went to Anilao, Batangas, with his
family. Around 1:00 in the afternoon of April 13, 1991, his family went to Tagaytay City and stayed
overnight at Taal Vista Lodge. Around 10:00 in the morning of April 14, 1991, they went home to
Calauan, Laguna. After reaching his abode in Calauan around 12:00 noon, mayor Sanchez learned of the
ambush-slayings of the Pealosas. He immediately ordered an investigation of the case. He denied any
involvement in the killing of the victims.25
The trial court ruled that the prosecution's evidence clearly and convincingly established the
participation of the four (4) accused in killing the Pealosas. Malabanan gave a sincere, frank and
trustworthy account of the circumstances surrounding the killing. Furthermore, the trial court explained
the discrepancies between Malabanan's recollection of how the victims were shot and Dr. Escueta's
conclusion on what transpired based on the injuries sustained by the victims.
The trial court stated that the doctor's conclusion was based on the assumption that the victims were in
a sitting position inside the jeep. However, it was possible that after the first burst of gunfire, the victims
were hit and fell. During the second burst of gunfire, the victims were lying down or in a crouching
position. Thus, the entry-exit points of the bullets did not entirely correspond to Malabanan's account,
which was based on the assumption that the victims did not change their positions during the shooting
incident.
The trial court ruled that the accused conspired in committing the crime. Treachery was present, thereby
qualifying the crime to murder. It appreciated the aggravating circumstances of evident premeditation,
nighttime and use of motor vehicle.
The trial court considered the crime as a complex crime of double murder punishable under Article 48 of
the Revised Penal Code. However, at the time of the commission of the offense on April 13, 1991, there
was a constitutional proscription on the imposition of the death penalty. Thus, each of the accused was
sentenced toreclusion perpetua, and to pay damages to the heirs of the victims, as earlier quoted.
Accused mayor Antonio L. Sanchez and Artemio Averion jointly appealed from the decision to the
Supreme Court.
In their sole assignment of error, accused mayor Sanchez and Averion contended that the trial court
failed to recognize the material inconsistencies between Malabanan's testimony and the physical and
scientific evidence presented before it. They pointed out the following inconsistencies, to wit:
1. Malabanan testified that a) when they fired at the victims, they were about the same
elevation;26 b) they used two (2) guns in killing the victims; 27 c) they were at the left side of the
victims when the shooting incident occurred.28 However, Dr. Escueta's autopsy report revealed
that: 1) the assailants were at a lower elevation; 2) three (3) kinds of guns were used; and 3)
based on the injuries, assailants were on the right side of the victims.
2. Malabanan's affidavit "Exhibit V" made on August 16, 1993, and sworn to on August 17, 1993,
bears two (2) signatures of the affiant Malabanan and dated September 15, 1993. However,
during cross-examination, Malabanan stated that he executed and signed the affidavit on one
occasion only, August 15, 1993.
3. Aurelio Centeno testified in the case of Gomez-Sarmenta slayings that Malabanan only
responded to the report that Pealosa had been killed. He averred that contrary to Malabanan's
report, the latter was not at the crime scene.
The two accused further averred that the material inconsistencies between Malabanan's testimony and
the autopsy and laboratory findings and conclusions seriously affect his credibility. They stressed that
Malabanan has sufficient motive to implicate mayor Sanchez and Corcolon in the Pealosa killings due to
threats of mayor Sanchez. They alleged that although generally alibi is considered a weak defense,
there are times when it is worthy of credence, such as in this case.
The Solicitor General supports the trial court's ruling that the prosecution adequately established the
guilt of the accused beyond reasonable doubt. Malabanan positively identified the accused as the
perpetrators. He testified in a categorical, straightforward, spontaneous and frank manner. The defense
failed to satisfactorily show that Malabanan had an ill motive to testify falsely against the accused. The
alleged threat to Malabanan's life was not adequately established or sufficient for him to falsely
implicate the accused. As regards the supposed inconsistencies between Malabanan's account of the
events vis vis the autopsy and ballistic reports, the Solicitor General pointed out that both vehicles
were running at the time of the ambush. It was a matter of instinct for the victims to shift positions as
they were fired upon. Thus, contrary to Dr. Escueta's conclusion, it was not impossible that the victims
were hit from the right side of their bodies, even if assailants were physically situated at the victim's left
side. Hence, the apparent inconsistencies do not affect witness Malabanan's credibility.
After a careful scrutiny of the evidence on record, we agree with the trial court that the prosecution
adequately established accused's guilt beyond reasonable doubt.
Malabanan gave a detailed account of the planning, preparation and the shooting incident. He narrated
the participation of each of the accused, to wit: (1) the order given by mayor Sanchez to execute
Pealosa; (2) Averion's acquisition of a vehicle and two-way radios to be used for the operation and in
driving the car; (3) Peradillas' act of relaying the information that Nelson Pealosa's jeep was leaving the
Velecina compound; 4) the way they pursued the victims; and 5) Corcolon and Peradilla's act of firing
and killing the Pealosas.
The accused concentrated mainly on the seeming contradiction between the narration of Malabanan on
how the victims were shot, and the physician's report on the location of injuries sustained by them.
However, as the Solicitor General stated, both vehicles were running at the time of the shootout. It was
unlikely that the victims drove in a straight line parallel to that of the assailants. In fact, Malabanan
testified that while being fired at, Pealosa's jeepney was running in zigzag manner. 29 It was a natural
reaction for Pealosa to evade the assailants as much as possible and to try to dodge the bullets.
Furthermore, the assailants fired the guns in automatic firing mode. Thus, the bullets burst out in
different directions simultaneously. Hence, it was not impossible for the victims to be hit in different
parts of the body.
"This Court has held time and again that any minor lapses in the testimony of a witness tend to buttress,
rather than weaken, his or her credibility, since they show that he or she was neither coached nor were
his or her answers contrived. Witnesses are not expected to remember every single detail of an incident
with perfect or total recall."30
Furthermore, the fact that the trial court relied on the testimony of a single witness does not effect the
verdict of conviction. Criminals are convicted, not on the number of witnesses against them, but on the
credibility of the testimony of even one witness, who is able to convince the court of the guilt of the
accused beyond a shadow of doubt. 31 What witness can be more credible than someone who was in the
planning, preparation and execution of the crime.
The inconsistency between the affidavit and testimony of Malabanan is too minor to affect his credibility.
At any rate, we have held that affidavits are generally subordinate in importance to open court
declarations. Affidavits are not complete reproductions of what the declarant has in mind because they
are generally prepared by the administering officer and the affiant simply signs them after the same
have been read to him.32
Accused-appellants raised that Malabanan's delay in reporting the involvement of the accused in the
crime casts doubt on his credibility. However, jurisprudence teaches us that delay in revealing the
identity of the perpetrators of a crime does not necessarily impair the credibility of a witness, especially
where such witness gives a sufficient explanation for the delay. 33 It was natural for Malabanan to keep
silent during that time for, aside from being a co-conspirator, mayor Sanchez was a powerful opponent.
Consequently, we find that accused-appellant's defenses of alibi and denial are bereft of merit. The
defenses of alibi and denial are worthless in the face of positive testimony of a witness showing the
involvement of each of the accused.
However, we disagree with the trial court that the accused committed a single complex crime of double
murder. Article 48 of the Revised Penal Code provides that when a single act constitutes two or more
grave or less grave felonies, or when an offense is a necessary means of committing the other, the
penalty for the more serious crime in its maximum period shall be imposed.
The question is whether the act of shooting the victims using armalites in automatic firing mode
constitutes a single act and, thus, the felonies resulting therefrom are considered as complex crimes. We
rule in the negative.
In People v. Vargas, Jr., we ruled that "several shots from a Thompson sub-machine, in view of its special
mechanism causing several deaths, although caused by a single act of pressing the trigger, are
considered several acts. Although each burst of shots was caused by one single act of pressing the
trigger of the sub-machinegun, in view of its special mechanism the person firing it has only to keep
pressing the trigger of the sub-machinegun, with his finger and it would fire continually. Hence, it is not
the act of pressing the trigger which should be considered as producing the several felonies, but the
number of bullets which actually produced them." 34 In the instant case, Malabanan testified that he
heard three bursts of gunfire from the two armalites used by accused Corcolon and Peradillas. Thus, the
accused are criminally liable for as many offenses resulting from pressing the trigger of the armalites.
Therefore, accused are liable for two counts of murder committed against the victims, Nelson and
Rickson Pealosa, instead of the complex crime of double murder.
Evidently, treachery was present in the execution of the crimes. The attack against the victims, who
were unarmed, was sudden, catching them unaware and giving them no opportunity to defend
themselves.35 The presence of treachery qualifies the crimes to murder.
Conspiracy is likewise adequately established. Notwithstanding the fact that mayor Sanchez was not at
the crime scene, we are convinced that he was not only a co-conspirator, he was the mastermind of the
ambush slayings or the principal by inducement.36 Malabanan testified that Nelson Pealosa was killed
upon order of mayor Sanchez. After the commission of the crime, the assailants reported to mayor
Sanchez. In conspiracy, it is not necessary to show that all the conspirators actually hit and killed the
victim. What is important is that the participants performed specific acts with such closeness and
coordination as unmistakably to indicate a common purpose or design in bringing about the death of the
victim. Conspiracy renders appellants liable as co-principals regardless of the extent and character of
their participation because in contemplation of law, the act of one conspirator is the act of all. 37
The trial court properly appreciated the existence of evident premeditation. The prosecution clearly
showed the presence of the following requisites: a) the time when the accused determined to commit
the crime; b) an act manifestly indicating that the accused had clung to their determination; and c)
sufficient lapse of time between such determination and execution to allow them to reflect upon the
consequences of their acts.38 As clearly as 10:00 in the morning, the accused had conspired to kill
Nelson Pealosa. They even looked for two-way radios and a vehicle to be used for the operation.
Indeed, sufficient time had lapsed to allow the accused to reflect upon the consequences of their
actions.
Accused specifically used a motor vehicle to execute the crime. Thus, the aggravating circumstance of
use of a motor vehicle must be appreciated.
However, we cannot appreciate the generic aggravating circumstance of nighttime; while the crime was
committed at night, the prosecution failed to show that the malefactors specifically sought this
circumstance to facilitate the criminal design. 39 The fact that the crime happened at 7:00 in the evening
does not indicate that accused made use of the darkness to conceal the crime and their identities.
At the time of the commission of the crime on April 13, 1991, the penalty for murder under Article 248 of
the Revised Penal Code was reclusion temporal in its maximum period to death. Considering the
presence of aggravating circumstances, the accused should be sentenced to the death penalty for each
murder. However, in view of the constitutional proscription of the death penalty at that time, each of the
accused is sentenced to two (2) penalties ofreclusion perpetua.
Regarding the civil liability of the accused, the trial court ordered the accused to pay the heirs of Nelson
and Rickson Pealosa each, the sum of P100,000.00, P50,000.00 as actual damages, P50,000.00 as
moral damages, and P30,000.00 as exemplary damages, and to pay the costs.
The P50,000.00 award as actual damages should be deemed as indemnity for the untimely demise of
the victims. We have held that only expenses supported by receipts and which appear to have been
actually expended in connection with the death of the victims may be allowed. 40 No proof was presented
to sustain the award of actual damages.
Similarly, we can not award damages for loss of earning capacity. All that was presented in evidence was
the testimony of the common law wife, Adelina Pealosa, that Nelson earned P1,000,000.00 a year. We
have held that "for lost income due to death, there must be unbiased proof of the deceased's average
income. Self-serving, hence unreliable statement, is not enough." 41
Considering the attendance of aggravating circumstances, we sustain the award of exemplary damages
of P30,000.00, per victim, in accordance with Article 2230 of the Civil Code. 42
As regards moral damages, we affirm the P50,000.00 awarded to the heirs of Rickson Pealosa. 43 His
mother, Adelina Pealosa, testified to the suffering caused by his death. 44 We also sustain the award of
moral damages to the heirs of Nelson Pealosa. His common law wife testified to the mental anguish
suffered by the family due to Nelson's death.45 Under Article 2206 of the Civil Code, the spouse,
legitimate and illegitimate descendancts and ascendants of the deceased may demand moral damages
for mental anguish by reason of the death of the deceased. However, the common law wife is not
entitled to share in the award of moral damages.1wphi1.nt
WHEREFORE, the Court MODIFIES the decision of the Regional Trial Court, Branch 160, Pasig City, and
finds accused-appellants Antonio L. Sanchez and Artemio Averion guilty beyond reasonable doubt of two
(2) counts of murder, and sentences each of them to suffer two (2) penalties of reclusion perpetua, and
each to pay jointly and severally the respective heirs of victims Nelson and Rickson Pealosa, as follows:

1) Indemnity for death - P50,000.00

2) Moral damages - 50,000.00

3) Exemplary damages - 30,000.00

Total - P130,000.00
=========

With costs.