Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-26298 January 20, 1927

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
JULIAN ERINIA Y VINOLLA, defendant-appellant.

Hermogenes Caluag for appellant.

Attorney-General Jaranilla for appellee.

OSTRAND, J.:

This is an appeal from a judgment of the Court of First Instance of Manila finding the
defendant guilty of the crime of consummated rape and sentencing him to suffer
seventeen years, four months and one day of reclusion temporal, with the accessory
penalties provided by law and to pay the costs.

The victim of the crime was a child of 3 years and 11 months old and the evidence is
conclusive that the defendant endeavored to have carnal intercourse with her, but there
may be some doubt whether he succeeded in penetrating the vagina before being
disturbed by the timely intervention of the mother and the sister of the child. The
physician who examined the genital organ of the child a few hours after the commission
of the crime found a slight inflammation of the exterior parts of the organ, indicating that
an effort had been made to enter the vagina, but in testifying before the court he
expressed doubts as to whether the entry had been effected. The mother of the child
testified that she found its genital organ covered with a sticky substance, but that cannot
be considered conclusive evidence of penetration.

It has been suggested that the child was of such tender age that penetration was
impossible; that the crime of rape consequently was impossible of consummation; and
that, therefore, the offense committed should be treated only as abusos deshonestos. We
do not think so. It is probably true that a complete penetration was impossible, but such
penetration is not essential to the commission of the crime; it is sufficient if there is a
penetration of the labia. In the case of Kenny vs. State ([Tex. Crim. App.], 79 S. W., 817;
65 L. R. A., 316) where the offended party was a child of the age of 3 years and 8 months
the testimony of several physicians was to the effect that her labia of the privates of a
child of that age can be entered by a man's male organ to the hymen and the defendant
was found guilty of the consummated crime rape.

There being no conclusive evidence of penetration of the genital organ of the offended
party, the defendant is entitled to the benefit of the doubt and can only be found guilty of
frustrated rape, but in view of the fact that he was living in the house of the parents of the
child as their guest, the aggravating circumstance of abuse of confidence existed and the
penalty must therefore be imposed in its maximum degree.

The judgment appealed from is modified and the defendant-appellant is hereby found
guilty of the crime of frustrated rape and is sentenced to suffer twelve years of prision
mayor, with the accessory penalties prescribed by law, and with the costs in both
instances. So ordered.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 88724 April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CEILITO ORITA alias "Lito," defendant-appellant.

The Office of the Solicitor General for plaintiff-appellee.

C. Manalo for defendant-appellant.

MEDIALDEA, J.:

The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal
Case No. 83-031-B before the Regional Trial Court, Branch II, Borongan, Eastern Samar.
The information filed in the said case reads as follows (p. 47, Rollo):

The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by
the offended party, accuses CEILITO ORITA alias LITO of the crime of Rape committed
as follows:

That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at
Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction
of this Honorable Court, above named accused with lewd designs and by the use of a
Batangas knife he conveniently provided himself for the purpose and with threats and
intimidation, did, then and there wilfully, unlawfully and feloniously lay with and
succeeded in having sexual intercourse with Cristina S. Abayan against her will and
without her consent.
CONTRARY TO LAW.

Upon being arraigned, the accused entered the plea of not guilty to the offense charged.
After the witnesses for the People testified and the exhibits were formally offered and
admitted, the prosecution rested its case. Thereafter, the defense opted not to present any
exculpatory evidence and instead filed a Motion to Dismiss. On August 5, 1985, the trial
court rendered its decision, the dispositive portion of which reads (pp. 59-60, Rollo):

WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA
@ LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with
the aggravating circumstances of dwelling and nightime (sic) with no mitigating
circumstance to offset the same, and considering the provisions of the Indeterminate
Sentence Law, imposes on accused an imprisonment of TEN (10) YEARS and ONE (1)
DAY, PRISION MAYOR, as minimum to TWELVE (12) YEARS PRISION MAYOR,
maximum; to indemnify CRISTINA S. ABAYAN, the amount of Four Thousand
(P4,000.00) Pesos, without subsidiary imprisonment in case of insolvency, and to pay
costs.

SO ORDERED.

Not satisfied with the decision, the accused appealed to the Court of Appeals. On
December 29, 1988, the Court of Appeals rendered its decision, the dispositive portion of
which reads (p. 102, Rollo):

WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found
guilty of the crime of rape, and consequently, sentenced to suffer imprisonment
of reclusion perpetua and to indemnify the victim in the amount of P30,000.00.

SO ORDERED.

On January 11, 1989, the Court of Appeals issued a resolution setting aside its December
29, 1988 decision and forwarded the case to this Court, considering the provision of
Section 9, paragraph 3 of Batas Pambansa Blg. 129 in conjunction with Section 17,
paragraph 3, subparagraph 1 of the Judiciary Act of 1948.

The antecedent facts as summarized in the People's brief are as follows (pp. 71-
75, Rollo):

Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's
College at Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC)
soldier.

In the early morning of March 20, 1983, complainant arrived at her boarding house. Her
classmates had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly
after her classmates had left, she knocked at the door of her boarding house (p. 5, ibid).
All of a sudden, somebody held her and poked a knife to her neck. She then recognized
appellant who was a frequent visitor of another boarder (pp. 8-9,ibid).

She pleaded with him to release her, but he ordered her to go upstairs with him. Since the
door which led to the first floor was locked from the inside, appellant forced complainant
to use the back door leading to the second floor (p. 77, ibid). With his left arm wrapped
around her neck and his right hand poking a "balisong" to her neck, appellant dragged
complainant up the stairs (p. 14, ibid). When they reached the second floor, he
commanded her to look for a room. With the Batangas knife still poked to her neck, they
entered complainant's room.

Upon entering the room, appellant pushed complainant who hit her head on the wall.
With one hand holding the knife, appellant undressed himself. He then ordered
complainant to take off her clothes. Scared, she took off her T-shirt. Then he pulled off
her bra, pants and panty (p. 20, ibid).

He ordered her to lie down on the floor and then mounted her. He made her hold his penis
and insert it in her vagina. She followed his order as he continued to poke the knife to her.
At said position, however, appellant could not fully penetrate her. Only a portion of his
penis entered her as she kept on moving (p. 23, ibid).

Appellant then lay down on his back and commanded her to mount him. In this position,
only a small part again of his penis was inserted into her vagina. At this stage, appellant
had both his hands flat on the floor. Complainant thought of escaping (p. 20, ibid).

She dashed out to the next room and locked herself in. Appellant pursued her and climbed
the partition. When she saw him inside the room, she ran to another room. Appellant
again chased her. She fled to another room and jumped out through a window (p.
27, ibid).

Still naked, she darted to the municipal building, which was about eighteen meters in
front of the boarding house, and knocked on the door. When there was no answer, she ran
around the building and knocked on the back door. When the policemen who were inside
the building opened the door, they found complainant naked sitting on the stairs crying.
Pat. Donceras, the first policeman to see her, took off his jacket and wrapped it around
her. When they discovered what happened, Pat. Donceras and two other policemen
rushed to the boarding house. They heard a sound at the second floor and saw somebody
running away. Due to darkness, they failed to apprehend appellant.

Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital
where she was physically examined.

Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a
Medical Certificate (Exhibit "A") which states:
Physical Examination Patient is fairly built, came in with loose clothing with no
under-clothes; appears in state of shock, per unambulatory.

PE Findings Pertinent Findings only.

Neck- Circumscribed hematoma at Ant. neck.

Breast Well developed, conical in shape with prominent nipples; linear abrasions
below (L) breast.

Back Multiple pinpoint marks.

Extremities Abrasions at (R) and (L) knees.

Vulva No visible abrasions or marks at the perineal area or over the

vulva, errythematous (sic)areas noted surrounding vaginal orifice, tender, hymen intact;
no laceration fresh and old noted; examining finger can barely enter and with difficulty;
vaginal canal tight; no discharges noted.

As aforementioned, the trial court convicted the accused of frustrated rape.

In this appeal, the accused assigns the following errors:

1) The trial court erred in disregarding the substantial inconsistencies in the testimonies
of the witnesses; and

2) The trial court erred in declaring that the crime of frustrated rape was committed by the
accused.

The accused assails the testimonies of the victim and Pat. Donceras because they "show
remarkable and vital inconsistencies and its incredibility amounting to fabrication and
therefore casted doubt to its candor, truth and validity." (p. 33, Rollo)

A close scrutiny of the alleged inconsistencies revealed that they refer to trivial
inconsistencies which are not sufficient to blur or cast doubt on the witnesses'
straightforward attestations. Far from being badges of fabrication, the inconsistencies in
their testimonies may in fact be justifiably considered as manifestations of truthfulness on
material points. These little deviations also confirm that the witnesses had not been
rehearsed. The most candid witnesses may make mistakes sometimes but such honest
lapses do not necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-
37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of the
prosecution witnesses, discrepancies on minor details must be viewed as adding credence
and veracity to such spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al.,
G.R. No. L-41358, March 16, 1988, 158 SCRA 695). As a matter of fact, complete
uniformity in details would be a strong indication of untruthfulness and lack of
spontaneity (People v. Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609).
However, one of the alleged inconsistencies deserves a little discussion which is, the
testimony of the victim that the accused asked her to hold and guide his penis in order to
have carnal knowledge of her. According to the accused, this is strange because "this is
the only case where an aggressor's advances is being helped-out by the victim in order
that there will be a consumation of the act." (p. 34, Rollo). The allegation would have
been meritorious had the testimony of the victim ended there. The victim testified further
that the accused was holding a Batangas knife during the aggression. This is a material
part of the victim's testimony which the accused conveniently deleted.

We find no cogent reason to depart from the well-settled rule that the findings of fact of
the trial court on the credibility of witnesses should be accorded the highest respect
because it has the advantage of observing the demeanor of witnesses and can discern if a
witness is telling the truth (People v. Samson, G.R. No. 55520, August 25, 1989). We
quote with favor the trial court's finding regarding the testimony of the victim (p
56, Rollo):

As correctly pointed out in the memorandum for the People, there is not much to be
desired as to the sincerity of the offended party in her testimony before the court. Her
answer to every question profounded (sic), under all circumstances, are plain and
straightforward. To the Court she was a picture of supplication hungry and thirsty for the
immediate vindication of the affront to her honor. It is inculcated into the mind of the
Court that the accused had wronged her; had traversed illegally her honor.

When a woman testifies that she has been raped, she says in effect all that is necessary to
show that rape was committed provided her testimony is clear and free from contradiction
and her sincerity and candor, free from suspicion (People v Alfonso, G.R. No. 72573,
August 31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88, February 28,
1985, 135 SCRA 280; People v. Soterol G.R. No. 53498, December 16, 1985, 140 SCRA
400). The victim in this case did not only state that she was raped but she testified
convincingly on how the rape was committed. The victim's testimony from the time she
knocked on the door of the municipal building up to the time she was brought to the
hospital was corroborated by Pat. Donceras. Interpreting the findings as indicated in the
medical certificate, Dr. Reinerio Zamora (who was presented in view of the unavailability
of Dr. Abude) declared that the abrasions in the left and right knees, linear abrasions
below the left breast, multiple pinpoint marks, circumscribed hematoma at the anterior
neck, erythematous area surrounding the vaginal orifice and tender vulva, are conclusive
proof of struggle against force and violence exerted on the victim (pp. 52-53, Rollo). The
trial court even inspected the boarding house and was fully satisfied that the narration of
the scene of the incident and the conditions therein is true (p. 54, Rollo):

. . . The staircase leading to the first floor is in such a condition safe enough to carry the
weight of both accused and offended party without the slightest difficulty, even in the
manner as narrated. The partitions of every room were of strong materials, securedly
nailed, and would not give way even by hastily scaling the same.
A little insight into human nature is of utmost value in judging rape complaints (People v.
Torio, et al., G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court
added (p. 55, Rollo):

. . . And the jump executed by the offended party from that balcony (opening) to the
ground which was correctly estimated to be less than eight (8) meters, will perhaps
occasion no injury to a frightened individual being pursued. Common experience will tell
us that in occasion of conflagration especially occuring (sic) in high buildings, many have
been saved by jumping from some considerable heights without being injured. How much
more for a frightened barrio girl, like the offended party to whom honor appears to be
more valuable than her life or limbs? Besides, the exposure of her private parts when she
sought assistance from authorities, as corroborated, is enough indication that something
not ordinary happened to her unless she is mentally deranged. Sadly, nothing was
adduced to show that she was out of her mind.

In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA
312), We ruled that:

What particularly imprints the badge of truth on her story is her having been rendered
entirely naked by appellant and that even in her nudity, she had to run away from the
latter and managed to gain sanctuary in a house owned by spouses hardly known to her.
All these acts she would not have done nor would these facts have occurred unless she
was sexually assaulted in the manner she narrated.

The accused questions also the failure of the prosecution to present other witnesses to
corroborate the allegations in the complaint and the non-presentation of the medico-legal
officer who actually examined the victim. Suffice it to say that it is up to the prosecution
to determine who should be presented as witnesses on the basis of its own assessment of
their necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989;
People v. Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of the
medico-legal officer who actually examined the victim, the trial court stated that it was by
agreement of the parties that another physician testified inasmuch as the medico-legal
officer was no longer available. The accused did not bother to contradict this statement.

Summing up, the arguments raised by the accused as regards the first assignment of error
fall flat on its face. Some were not even substantiated and do not, therefore, merit
consideration. We are convinced that the accused is guilty of rape. However, We believe
the subject matter that really calls for discussion, is whether or not the accused's
conviction for frustrated rape is proper. The trial court was of the belief that there is no
conclusive evidence of penetration of the genital organ of the victim and thus convicted
the accused of frustrated rape only.

The accused contends that there is no crime of frustrated rape. The Solicitor General
shares the same view.
Article 335 of the Revised Penal Code defines and enumerates the elements of the crime
of rape:

Art. 335. When and how rape is committed. Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious and

3. When the woman is under twelve years of age, even though neither of the
circumstances mentioned in the two next preceding paragraphs shall be present.

xxx xxx xxx

Carnal knowledge is defined as the act of a man in having sexual bodily connections with
a woman (Black's Law Dictionary. Fifth Edition, p. 193).

On the other hand, Article 6 of the same 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.

Correlating these two provisions, there is no debate that the attempted and consummated
stages apply to the crime of rape.1wphi1 Our concern now is whether or not the
frustrated stage applies to the crime of rape.

The requisites of a frustrated felony are: (1) that the offender has performed all the acts of
execution which would produce the felony and (2) that the felony is not produced due to
causes independent of the perpetrator's will. In the leading case of United States
v. Eduave, 36 Phil. 209, 212, Justice Moreland set a distinction between attempted and
frustrated felonies which is readily understood even by law students:

. . . A crime cannot be held to be attempted unless the offender, after beginning the
commission of the crime by overt acts, is prevented, against his will, by some outside
cause from performing all of the acts which should produce the crime. In other words, 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 of the acts which should produce the crime as a consequence, which acts it
is his intention to perform. If he has performed all of the acts which should result in the
consummation of the crime and voluntarily desists from proceeding further, it can not be
an attempt. The essential element which distinguishes attempted from frustrated felony is
that, in the latter, there is no intervention of a foreign or extraneous cause or agency
between the beginning of the commission of the crime and the moment when all of the
acts have been performed which should result in the consummated crime; while in the
former there is such intervention and the offender does not arrive at the point of
performing all of the acts which should produce the crime. He is stopped short of that
point by some cause apart from his voluntary desistance.

Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his
victim he actually attains his purpose and, from that moment also all the essential
elements of the offense have been accomplished.Nothing more is left to be done by the
offender, because he has performed the last act necessary to produce the crime. Thus, the
felony is consummated. In a long line of cases (People v. Oscar, 48 Phil. 527; People v.
Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA
666; People v. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have set
the uniform rule that for the consummation of rape, perfect penetration is not essential.
Any penetration of the female organ by the male organ is sufficient. Entry of the labia or
lips of the female organ, without rupture of the hymen or laceration of the vagina is
sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration
of the female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694;
United States v. Garcia: 9 Phil. 434) because not all acts of execution was performed. The
offender merely commenced the commission of a felony directly by overt acts. Taking into
account the nature, elements and manner of execution of the crime of rape and
jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can
ever be committed.

Of course, We are aware of our earlier pronouncement in the case of People v. Eria 50
Phil. 998 [1927] where We found the offender guilty of frustrated rape there being no
conclusive evidence of penetration of the genital organ of the offended party. However, it
appears that this is a "stray" decision inasmuch as it has not been reiterated in Our
subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal Code,
as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No.
4111 (dated March 29, 1965) which provides, in its penultimate paragraph, for the
penalty of death when the rape is attempted orfrustrated and a homicide is committed by
reason or on the occasion thereof. We are of the opinion that this particular provision on
frustrated rape is a dead provision. The Eria case, supra, might have prompted the law-
making body to include the crime of frustrated rape in the amendments introduced by
said laws.

In concluding that there is no conclusive evidence of penetration of the genital organ of

the victim, the trial court relied on the testimony of Dr. Zamora when he "categorically
declared that the findings in the vulva does not give a concrete disclosure of penetration.
As a matter of fact, he tossed back to the offended party the answer as to whether or not
there actually was penetration." (p. 53, Rollo) Furthermore, the trial court stated (p.
57, Rollo):

. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as

interpreted by Dr. Reinerio Zamora and the equivocal declaration of the latter of
uncertainty whether there was penetration or not. It is true, and the Court is not oblivious,
that conviction for rape could proceed from the uncorroborated testimony of the offended
party and that a medical certificate is not necessary (People v. Royeras People v. Orteza, 6
SCRA 109, 113). But the citations the people relied upon cannot be applicable to the
instant case. The testimony of the offended party is at variance with the medical
certificate. As such, a very disturbing doubt has surfaced in the mind of the court. It
should be stressed that in cases of rape where there is a positive testimony and a medical
certificate, both should in all respect, compliment each other, for otherwise to rely on the
testimony alone in utter disregard of the manifest variance in the medical certificate,
would be productive of mischievous results.

The alleged variance between the testimony of the victim and the medical certificate does
not exist. On the contrary, it is stated in the medical certificate that the vulva was
erythematous (which means marked by abnormal redness of the skin due to capillary
congestion, as in inflammation) and tender. It bears emphasis that Dr. Zamoradid not rule
out penetration of the genital organ of the victim. He merely testified that there was
uncertainty whether or not there was penetration. Anent this testimony, the victim
positively testified that there was penetration, even if only partially (pp. 302, 304, t.s.n.,
May 23, 1984):

Q Was the penis inserted on your vagina?

A It entered but only a portion of it.

xxx xxx xxx

Q What do you mean when you said comply, or what act do you referred (sic) to, when
you said comply?

A I inserted his penis into my vagina.

Q And was it inserted?

A Yes only a little.

The fact is that in a prosecution for rape, the accused may be convicted even on the sole
basis of the victim's testimony if credible (People v. Tabago, G.R. No. 69778, November
8, 1988, 167 SCRA 65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138
SCRA 569; People v. Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA
349). Moreover, Dr. Zamora's testimony is merely corroborative and is not an
indispensable element in the prosecution of this case (People v. Alfonso, supra).

Although the second assignment of error is meritorious, it will not tilt the scale in favor of
the accused because after a thorough review of the records, We find the evidence
sufficient to prove his guilt beyond reasonable doubt of the crime of consummated rape.

Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of
rape is committed with the use of a deadly weapon, the penalty shall be reclusion
perpetua to death. The trial court appreciated the aggravating circumstances of dwelling
and nighttime. Thus, the proper imposable penalty is death. In view, however, of Article
111, Section 19(1) of the 1987 Constitution and Our ruling in People v. Millora, et al.,
G.R. Nos. L-38968-70, February 9, 1989, that the cited Constitutional provision did not
declare the abolition of the death penalty but merely prohibits the imposition of the death
penalty, the Court has since February 2, 1987 not imposed the death penalty whenever it
was called for under the Revised Penal Code but instead reduced the same to reclusion
perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion
perpetua, being a single indivisible penalty under Article 335, paragraph 3, is imposed
regardless of any mitigating or aggravating circumstances (in relation to Article 63,
paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713, March 15,
1982, 112 SCRA 615; People v. Manzano, G.R. No. L38449, November 25, 1982, 118
SCRA 705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702).

ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The
accused Ceilito Orita is hereby found guilty beyond reasonable doubt of the crime of rape
and sentenced to reclusion perpetua as well as to indemnify the victim in the amount of
P30,000.00.

SO ORDERED.

THIRD DIVISION

[G.R. No. 114265. July 8, 1997]

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

MAGALLANES, accused-appellant.

DECISION
FRANCISCO, J.:
 On September 29, 1991, at around three oclock in the afternoon, the appellant,
GREGORIO MAGALLANES, who was a mananari or gaffer of fighting cocks, trekked
the road to the cockpit of Poblacion Sagbayan, Bohol. The appellant was in the company
of several other cockfighting afficionados, among whom were Romualdo Cempron and
Danilo Salpucial. While on their way, they passed by Virgilio Tapales who was drinking
in the store of Umping Amores which was located on the elevated side of the
road. Tapales hailed Cempron and invited him for a drink but the latter courteously
refused as he was going to the cockpit. Tapales approached Cempron and conversed with
him briefly. For some unknown reason, Tapales then directed his attention to the
appellant who was walking a few steps behind Cempron. Tapales held the appellant by
his shirt, slapped him and strangled his neck. But seeing a knife tucked in Tapales waist,
the appellant pulled out the knife and slashed at Tapales to loosen his grip. The appellant
succeeded in wounding the face and neck of Tapales who let go of the appellant and fled
for his life. Insatiated, the appellant pursued Tapales and when the latter fell, the appellant
stabbed him several more times before uttering the following words: you are already dead
in that case.[1] With that, the appellant stood up and rode on the motorcycle being driven
by Danilo Salpucial. Later, the appellant surrendered to the police authorities of the town
of Inabanga, Bohol.
For the death of Tapales, the appellant and Salpucial were charged as principal and
accessory, respectively, of the crime of murder allegedly committed as follows:

That on or about the 29th day of September, 1991, in the municipality of Sagbayan,
province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the
first above-named accused as Principal, with intent to kill and without justifiable cause,
with treachery and abuse of superior strength, did then and there willfully, unlawfully and
feloniously attack, assault and stab with the use of a sharp-pointed, sharp-edges (sic)
weapon (knife) one Virgilio Tapales y Melendres hitting and injuring the vital parts of the
body of the victim which resulted in the victims instantaneous death; that the second
above-named accused, as Accessory, having knowledge of the commission of the crime
of Murder, but without having participated therein either as Principal or as an
Accomplice, did then and there willfully, unlawfully, feloniously and knowing (sic) take
part in said crime after the commission thereof, to wit: by allowing accused Gregorio
Magallanes to, and taking him on a, (sic) backride on the motorcycle which accused
Danilo Salpucial was driving and operating, in order to flee from the scene of the crime; x
x x[2]

During arraignment, the appellant expressed his willingness to enter a plea of guilty
to the lesser offense of homicide with the mitigating circumstances of plea of guilty and
voluntary surrender; Salpucial, on the other hand, pleaded not guilty to the charges
against him. The prosecution refused to lower the charge from murder to homicide,
hence, trial ensued after which, a decision was rendered finding the appellant guilty of the
crime of murder and acquitting Salpucial on the ground that the prosecution had failed to
prove his guilt beyond reasonable doubt. The dispositive portion of said decision is
quoted hereunder:
PREMISES CONSIDERED, the Court finds the accused Gregorio Magallanes GUILTY
of the crime of Murder punished under Article 243 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.

The accused Gregorio Magallanes is further ordered to indemnify the surviving spouse
Nathaline Tapales in the amount of P50,000.00 representing indemnity, P50,000.00
representing moral and exemplary damages, P31,300.00-- burial and incidental expenses
relative to the death of Virgilio Tapales and P3,000.00 representing attorneys fees, in all
instances, without subsidiary imprisonment in case of insolvency.

x x x x x x x x x.

Relative to the accused Danilo Salpucial judgment is hereby rendered ACQUITTING the
aforementioned Danilo Salpucial of the crime as charged, with cost de officio.

x x x x x x x x x.[3]
Before us now is the appeal interposed by Gregorio Magallanes where he invokes the
justifying circumstance of self-defense in his favor, and contends, in the alternative, that
he should be convicted of the crime of homicide only and not murder.
Anent the claim of self-defense, we reiterate herein the time honored doctrine that
although it is a cardinal principle in criminal law that the prosecution has the burden of
proving the guilt of the accused, the rule is reversed where the accused admits
committing the crime but only in defense of oneself. In the latter case, the burden is
shifted to the accused who must prove clearly and convincingly the following elements of
self-defense: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of
the means employed to prevent or repel it; and (3) lack of sufficient provocation on the
part of the person defending himself.[4]
The appellant asseverates that he was justified in stabbing Tapales as he was merely
defending himself from the formers unlawful and unprovoked aggression. But the
prosecution witnesses are one in testifying that it was the appellant who mercilessly
pursued the already wounded Tapales, and when the latter fell to the ground, inflicted
several more stab wounds on his person including a fatal blow to his neck.
Engineer Sabino Tubal testified as follows:
Q. When you saw the two, Gregorio Magallanes and Virgilio Tapales, what did
you notice?
A. I saw Virgilio Tapales already bleeding and Gregorio Magallanes bringing a
knife.
xxx xxx xxx
COURT:
Did you actually see the stabbing incident?
A. Yes, your Honor.
COURT:
Who stabbed the victim?
A. It was Gregorio Magallanes who stabbed the victim.
Q. When you say victim, you are referring to Virgilio Tapales?
A. Yes, sir.
Q. Now you said that it was Gregorio Magallanes who stabbed the victim, why
did not the victim run?
A. He ran but he was chased by Gregorio Magallanes.
Q. When Virgilio Tapales fell what happened next?
A. This Gregorio Magallanes was on top of the victim and then Gregorio
Magallanes stabbed the throat of the victim.
Q. How far were you from the place where Virgilio Tapales fell and according to
you Magallanes rode on top of the victim and stabbed his neck?
A. Almost two meters distance.
Q. Did you hear any word from Gregorio Magallanes at that time?
A. When Gregorio Magallanes already stood up that was the time he said saying
(sic), You are already dead in that case.[5]
The foregoing was corroborated by another witness, Esterlita Amodia-Tubal:
Q. Please tell the court briefly the first thing that you saw?
A. At that time I and my helper were doing some gardening work infront (sic) of
our house and all of a sudden my helper called me this way: Nang Neng,
what is that? And I turned my back and saw Virgilio Tapales who was
chased by Gregorio Magallanes.
Q. How far were you from or rather to Magallanes when the latter chased
Virgilio Tapales?
A. More or less eight meters.
Q. Was Virgilio Tapales over run (sic) by Magallanes in the chase?
A. I saw that Gregorio Magallanes stabbed Virgilio Tapales.
Q. How many times did you see Magallanes stabbed (sic) Virgilio Tapales?
A. One time.
Q. And what happen (sic) to Virgilio Tapales?
A. Virgilio Tapales was at that time still running being chased by
Magallanes. There is a fence and at the end of that fence there was a guava
 tree. It so happen that this Virgilio Tapales run towards that tree and this
Gregorio Magallanes stabbed and slashed the neck of Virgilio Tapales at the
upper portion of the heart just above the left side of the face and at that time
I had my children with me so I run to our store to put my children in safe
condition. When I went back to the store I saw my husband coming from
our ricemill and because I was afraid that my husband would be stabbed
because I really saw Gregorio Magallanes slashed (sic) the neck of Virgilio
Tapales I shouted to my husband that he might be stabbed.
COURT:
Which happened first the stabbing or the slashing?
A. The stabbing your Honor followed by slashing on the left face and neck.[6]
Clearly, whatever act of aggression that was initiated by Tapales against the appellant
had already ceased as demonstrated by the fact that Tapales was running away from the
appellant. The tables were turned when the appellant chased Tapales with the obvious
intent of stabbing him. At this juncture, the appellant had assumed the role of aggressor,
thus, his claim of self-defense cannot obviously prosper. In People vs. Tampon[7] we ruled
that:

Even granting arguendo that the initial act of aggression came from Entellano (the victim)
as claimed by the appellant, we still cannot sustain his plea of self-defense. As testified
by the appellant, he grappled with Entellano for the knife and was able to take possession
of the same. At this point, it was no longer necessary for appellant to stab Entellano in
order to protect himself. His subsequent act of stabbing the now unarmed Entellano belies
his claim that he acted in self-preservation and indicates nothing more than a perverse
desire to kill. Thus, this Court held in the case of People v. So, that [a]fter appellant
successfully wrested the knife from Tuquero, the unlawful aggression has ceased, the one
making the defense has no more right to kill or even wound the former aggressor.[8]

Another factor which militates against the appellants claim of self-defense is the
nature and number of wounds suffered by Tapales. Dr. Pancracio Garay, the Rural Health
Physician who examined Tapales dead body, testified that the same sustained seven (7)
stab wounds in all caused by a sharp bladed weapon. [9] And it is an oft-repeated rule that
the presence of a large number of wounds on the part of the victim negates self-defense
and instead, indicates a determined effort to kill the victim. [10] The appellant, however,
seeks exception to this rule by pointing out the superficial nature of majority of the
wounds inflicted on Tapales, and the fact that of the seven (7) wounds, only one (1) was
fatal enough to cause his death. We disagree.
According to the testimony of Dr. Garay, Tapales suffered the following injuries:
Q. Will you please read into the records the injuries that you found?
A. First we have incised wound 10 to 14 cms. 10 x 4 cms. located at the base of
the skull extending from the posterior portion of the right ear down to the
nape.
Q. Will you please point to the court using yourself as the person examined that
location of the wound.
A. Here.
INTERPRETER:
Witness pointing to the base of the skull up to the nape of the neck. Witness
showing it to the court.
Q. What is the second injury you found in the person of Virgilio Tapales?
A. Second is incised wound about 20 cms. by 7 cms. extending from the
occipietal (sic) area of the head passing the left ear cutting it into halves.
COURT:
In laymans language how do you call that?
A. Ear.
x x x x x x x x x.
Q. What other injuries did you find?
A. 7 cm by 3 cm by 6 cm stabbed (sic) wound at the anterior area of the neck at
the superior border of the manobrium.
xxxxxxxxx
Q. What was the fourth injury you found?
A. Stabbed (sic) wound 5 x 1 x 5 cm. penetrating the torasic (sic) area hitting the
spinal column.
Q. Where is that?
A. It is found at the back.
xxxxxxxxx
Q. What was the next wound?
A. Next is incised wound measuring 14 x 2 cms. about 1 to 2 cms. just above the
left scapula.
xxxxxxxxx
Q. Can you tell the court, considering the location of the wound where the
person who wounded Tapales must have been position (sic) in relation to
Tapales?
A. Must have been at the back also.
xxxxxxxxx
Q. Anymore injury?
 A. There is another incised wound about 6 cms. in length at the left palmar area.
INTERPRETER:
Witness is pointing to the lower portion of his left palm.
xxxxxxxxx
Q. Any other wound?
A. Another is 2 cms. length incised wound at the right palm.
xxxxxxxxx
Q. In other words deceased Virgilio Tapales sustained six wounds?
A. Seven wounds.[11]
Of the seven (7) wounds, five (5) were located in the neck area suggesting that the
appellant struck at Tapales with resolve to cause serious if not mortal damage to Tapales
person.There certainly was no necessity to inflict such wounds upon Tapales especially in
view of the fact that the latter was not even armed. The appellants theory of self-defense
is therefore overthrown by the hard reality that the alleged aggressor-the deceased in this
case- sustained seven (7) stab wounds in the hands of the appellant while failing to inflict
upon the appellant even a minor injury as token of his alleged belligerence and
aggression.[12]
As an alternative defense, the appellant asseverates that the killing of Tapales was
not attended by treachery which would qualify it to murder, hence, he should have been
convicted of the crime of homicide only. The appellant bewails the finding of treachery
by the RTC despite the fact that the initial unlawful aggression was started by the
deceased victim, Virgilio Tapales, at the middle of the road in broad daylight. [13] On the
other hand, the prosecution insists that the killing was treacherous because it was
perpetrated while the defenseless Tapales was running away from the appellant, thereby
giving the latter opportunity to stab Tapales at the back without warning. [14] On this issue
we find for the appellant.
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 and
specially to insure its execution, without risk to himself arising from the defense which
the offended party might make.[15] Thus, for treachery or alevosia to be appreciated as a
qualifying circumstance, the prosecution must establish the concurrence of two (2)
conditions: (a) that at the time of the attack, the victim was not in a position to defend
himself; and (b) that the offender consciously adopted the particular means, method or
form of attack employed by him.[16] The latter condition is immediately negated by the
fact that the meeting between the appellant and Tapales was by chance. We have held
that:

x x x where the meeting between the accused and the victim was casual and the attack
was done impulsively, there is no treachery even if the attack was sudden and unexpected
and while the victim was running away with his back towards the accused. As has been
aptly observed the accused could not have made preparations for the attack, x x x; and the
means, method and form thereof could not therefore have been thought of by the accused,
because the attack was impulsively done.[17]

Treachery cannot also be presumed from the mere suddenness of the attack or from
the fact that the victim was stabbed with his back towards the appellant. In point is
the following pronouncement we made in People v. Escoto:

We can not presume that treachery was present merely from the fact that the attack was
sudden. The suddenness of an attack, does not of itself, suffice to support a finding
of alevosia, even if the purpose was to kill, so long as the decision was made all of a
sudden and the victims helpless position was accidental. In fact from the reaction of
Robert in running away from the Escoto brothers the moment he saw them, we can
reasonably conclude that he was not completely unaware that herein appellant and Willie
posed a danger to him and this necessarily put him on guard, with the opportunity to
prevent or repel a possible assault.[18]

This is particularly true in the instant case where Tapales initiated the unlawful
aggression against the appellant and should therefore have been forewarned of the
possibility of retaliation from him.
Furthermore, although Tapales sustained seven (7) stab wounds, some of them
located at his back, we can not infer from this physical evidence alone that treachery was
initially present in the case at bar.[19] And it is a fundamental rule of long standing that for
treachery to be appreciated, that circumstance must be present at the inception of the
attack, and if absent and the attack is continuous, treachery if present at a subsequent
stage is not to be considered.[20]
Absent the qualifying circumstance of treachery, we therefore find the appellant
guilty only of the crime of homicide. Moreover, a careful scrutiny of the records of this
case reveals that the trial court had erroneously failed to appreciate in mitigation of the
appellants penalty the circumstances of voluntary surrender and plea of guilty.
Felix Estillore, a member of the Philippine National Police (PNP), and a witness for
the prosecution had in fact testified that the appellant surrendered to the Police of
Inabanga, Bohol after the stabbing incident.[21] The fact that the appellant chose to
surrender to the police authorities of Inabanga and not Sagbayan where the crime
happened is not to be taken against him. He fled Sagbayan not to hide from the police
authorities but to evade retaliation from the relatives of the deceased. Besides, the law
does not require that the perpetrator of an offense to be entitled to the mitigating
circumstance of voluntary surrender, must give himself up to the authorities in the
municipality where the offense was committed. All that the law requires is for the
offender to surrender to the authorities to save the government the trouble and the
expense of looking for him in order to arrest him.[22]
Finally, on record is the appellants willingness to enter a plea of guilty but to the
lesser crime of homicide. It only remains to consider briefly whether the appellants plea
of guilty in the form it was entered constitutes a voluntary confession of guilt before the
court as defined in paragraph 7 of Article 13 of the Revised Penal Code. [23] In People v.
Yturriaga[24] where the accused who was charged with murder entered a qualified plea of
guilty by claiming that the alleged qualifying circumstance of evident premeditation did
not exist, we said that:

Although the confession was qualified and introduction of evidence became necessary,
the qualification did not deny the defendants guilt and, what is more, was subsequently
fully justified. It was not the defendants 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 by counteracting it with unfounded
allegations of aggravating circumstances.[25]

WHEREFORE, the judgment appealed from is hereby MODIFIED by convicting

the appellant Gregorio Magallanes of the crime of homicide only with the mitigating
circumstances of voluntary surrender and plea of guilty in his favor, and imposing upon
him an indeterminate sentence of four (4) years, two (2) months and one (1) day
of prision correccional as minimum to ten (10) years of prision mayor as maximum. In
all other respects, the judgment of the court a quo is AFFIRMED.
SO ORDERED.

THIRD DIVISION

[G.R. No. 100197. April 4, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDWIN NARDO and

WILLY YLARDE, accused-appellants.

DECISION
PANGANIBAN, J.:

In pleading for acquittal, appellants attack the sufficiency of the evidence of the
prosecution and the credibility of its witnesses, and offer the defense of alibi and
denial. The Court rejects these contentions and applies the familiar rule according great
respect to findings of fact by the trial court. However, it finds the accused guilty of four
separate crimes of murder and two attempted murders, instead of the complex crime of
murder with double frustrated murder.
Accused-appellants Edwin Nardo and Willy Ylarde appeal their conviction [1] by the
Regional Trial Court of Tayug, Pangasinan, Branch 51,[2] in a Decision[3] promulgated on
May 8, 1991.
 Since Ylarde was still at large, only Accused Nardo was initially charged in an
Information[4] dated November 9, 1987, filed by Assistant Provincial Fiscal Isidro C. Sta.
Maria. Nardo pleaded not guilty thereto during his arraignment on June 7, 1988. Accused
Ylarde was later charged with the same crime by way of an Amended Information, [5] filed
by the same prosecutor, which reads as follows:

The undersigned hereby accuses EDWIN NARDO and WILLY YLARDE of the crime of
MULTIPLE MURDER WITH DOUBLE FRUSTRATED MURDER, committed as
follows:

That on or about the 21st day of July, 1985, in the evening, at Barangay Poblacion East,
municipality of Umingan, province of Pangasinan, New Republic of the Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, with intent to
kill and with the qualifying circumstance of treachery armed with M16 Armalite Rifles,
conspiring, confederating and helping one another, did then and there wilfully, unlawfully
and feloniously shoot and fire at in a sudden and unexpected manner, CLARO SUITOS,
MICAELA SUITOS, CLARENCE SUITOS, ANICIA SALES, MACARIO DELA PEA
and LUZVIMINDA PUDOL, causing the death of CLARENCE SUITOS, ANICIA
SALES, MACARIO DELA PEA and LUZVIMINDA PUDOL and wounding CLARO
SUITOS on the left shoulder and MICAELA SUITOS on the left hip, to the damage and
prejudice of the heirs of CLARENCE SUITOS, ANICIA SALES, MACARIO DELA
PEA, LUZVIMINDA PUDOL, CLARO SUITOS and MICAELA SUITOS.

CONTRARY to Article 248 of the Revised Penal Code.

To said charge, Accused Ylarde pleaded not guilty on April 18, 1990. After due trial,
the court a quo rendered its Decision convicting both accused as charged. The following
is the decretal portion of said Decision:

WHEREFORE, premises considered, the Court finds the accused Edwin Nardo and Willy
Ylarde GUILTY beyond reasonable doubt of the crime of Multiple Murder with Double
Frustrated Murder, defined and penalized under Article 248 in relation to Article 48 of the
Revised Penal Code and there being no aggravating nor mitigating circumstance to off-set
each other, hereby sentences both accused to suffer the penalty of RECLUSION
PERPETUA and to pay jointly and severally the following:

1. Heirs of Clarence Suitos, P50,000.00 as indemnity plus P3,500.00 for the

coffin and P10,000.00 for the expenses incurred during the wake;
2. Heirs of Macario dela Pea, P50,000.00 as indemnity and P20,000.00 for the
funeral expenses and the wake;
3. Heirs of Anicia Sales, P50,000.00 as indemnity plus P20,000.00 for the
funeral expenses and the wake;
4. Heirs of Luzviminda Pudol, P50,000.00 as indemnity and P15,000.00 for
the funeral expenses and the wake;
 5. Micaela Suitos, P21,000.00 for the medical expenses incurred for her
treatment and her husbands (Claro) injuries at the Sacred Heart Hospital in
Urdaneta, Pangasinan, plus P10,000.00 as moral damages; and
6. Costs of this suit.[6]
Thus, this appeal.

The Facts

The antecedents of the case, as related by the trial court and adopted by the Solicitor
General in his Brief,[7] are as follows:

EVIDENCE OF THE STATE:

From the collective testimonies of Dra. Thelma Busto, MHO of Umingan, Pangasinan,
Micaela Suitos, wife of Claro (Vic) Suitos one of the injured parties and Rogelio
Fernandez, the incident happened as follows:

In the morning of July 21, 1985, the accused Edwin Nardo and Willy Ylarde went to the
eatery of spouses Claro (Vic) and Micaela Suitos located at the public market of
Umingan, Pangasinan. They brought with them a buri bag which turned out to contain
marijuana leaves. They were offering to sell the same to Claro Suitos who told them that
it is prohibited, so they left.

At around 6:30 in the evening of the same day, Edwin Nardo and Willy Ylarde went back
to the eatery of the spouses and then and there fired indiscriminately at the place with a
baby armalite used by Edwin Nardo and a short firearm used by Willy Ylarde. The firing
resulted to (sic) the death of Clarence Suitos, Anicia Sales, Macario dela Pea and
Luzviminda Pudol and in the wounding of Claro (Vic) Suitos, Micaela Suitos and the
slightly (sic) wounding of Marivic Suitos.

The spouses Claro and Micaela Suitos were brought to the Sacred Heart Hospital in
Urdaneta, Pangasinan where they were treated spending P15,000.00 leaving a balance
of P6,000.00 unpaid. Their wounded daughter Marivic was merely extended first aid
because her injury was merely slight (daplis). Their other daughter Clarence who died in
the incident caused them to spend P3,500.00 for her coffin andP10,000.00 for the nine-
day wake.

Upon the agreement of the prosecutor and the defense counsel, the expenses for the
funeral and wake of the deceased Macario dela Pea and Anicia Sales were pegged
at P20,000.00 each while for the deceased Luzviminda Pudol, it was pegged
at P15,000.00.

The dead namely, Luzviminda Pudol, Macario dela Pea, Clarence Suitos and Anicia Sales
were autopsied by Dra. Thelma Busto (Exhs. A to D).
Pending trial, Claro (Vic) Suitos died in an ambush on October 23, 1989.

EVIDENCE OF THE DEFENSE:

The accused put up the defense of alibi.

They claim that in the morning of July 21, 1985, they went to the eatery of the spouses
Claro and Micaela Suitos to sell ten (10) cartoons (sic) of blue seal Marlboro cigarettes
and five (5) packages of matches contained in a bag owned by Boy Lopez. Failing to sell
the items, as instructed of them by the owner Boy Lopez, they proceeded to Quezon City
at around 11:00 a.m. to return the said items to Boy Lopez at 89 West Point St., Cubao,
Quezon City. They arrived at 4:00 p.m.. They slept at said place with the caretaker Juan
Andres, Jr. and the maid of Boy Lopez named Rosie Espiritu. They left for Umingan,
Pangasinan the following day, July 22, 1985.

Their stay at Quezon City was corroborated by witness Juan Andres, Jr., the caretaker of
Boy Lopez.

Witness for the defense Nicanor Aquinde, a police investigator of the PC/INP of
Umingan, Pangasinan testified that immediately after the incident, he investigated the
spouses Claro and Micaela Suitos at the Sacred Heart Hospital in Urdaneta,
Pangasinan. In that investigation, both mentioned names other than the herein accused as
suspects. Said investigation however which was reduced to writing was unfinished and
unsigned because the spouses requested him that they will better give their statements as
soon as they get fully well as they are still in a state of shock. And upon their request
which said investigator granted, the unfinished and unsigned statements were burned by
him.

Reynaldo Andres, on the other hand, testified as follows:

On the day of the incident, he was a tricycle driver then residing at Brgy. Sinabaan,
Umingan, Pangasinan. At around 8:00 p.m. on July 21, 1985, he parked his tricycle in the
western gate of the compound of public market of Umingan, Pangasinan while waiting
for passengers. While thereat, he heard gunshots so he took cover. After the firing, four
(4) men approached him and told him to carry them somewhere near the boundary of
Umingan and Lupao. Because he was threatened with a long firearm, he ferried them to
the destination he was told which was near the boundary of Lupao and Umingan where
there were no houses. He did not recognize any of them because it was night-time.[8]

Disposing of the accuseds defense of alibi, the trial court gave credence to the
categorical and positive testimony given by Eyewitnesses Micaela Suitos and Rogelio
Fernandez identifying the accused as the perpetrators of the mass murder. Said
eyewitnesses were without motive or ill will to perjure their testimonies and to implicate
appellants in the crime.Although Micaela Suitos failed to name the accused during the
police investigation conducted immediately after the incident, the trial judge attributed
this failure to the tension of the moment, shock, excitement and haste, which fact was
sustained by (Pat. Nicanor) Aquinde when he agreed to the burning of the alleged
unfinished and unsigned statements of Claro and Micaela Suitos.
In addition, the court a quo noted two other factors negating the accuseds claim of
innocence: one, the flight of both accused from where the incident happened, which was
also their hometown (Umingan, Pangasinan), to elude arrest[9]; and two, the relationship
of the defense witnesses, Brothers Reynaldo and Juan Andres Jr., to Accused Willy
Ylarde.[10]
Finally, the lower court found both accused to have conspired in the murder of the
victims, as proven by the simultaneous discharge of their firearms.

Issue

In their appeal, accused-appellants assign this single error to the trial courts
Decision:

The trial court erred in not acquitting the two herein accused upon the ground that
although their defense, in the nature of alibi, is inherently a weak defense, it should be
considered sufficient as in this case, to tilt the scale of justice in favor of the accused
because the evidence of the prosecution is itself weak and unconvincing and therefore, by
and large, insufficient to prove the guilt of the accused beyond reasonable doubt.[11]

Restated in clearer and more concise form, the issue centers on the credibility of
witnesses and sufficiency of prosecution evidence to prove the guilt of the accused
beyond reasonable doubt.
Accused-appellants assail the testimony of Witness Micaela Suitos pinpointing them
as the perpetrators of the carnage in spite of the fact that she had earlier named other
persons as the assailants. According to appellants, what lends more doubt to her charge is
the fact that she claimed to have known both accused prior to the incident and also to
have seen them in the morning of that ill-fated day, yet failed to mention their names to
the police investigator. If indeed they were the culprits, she could not have forgotten to
name them during the investigation conducted immediately after the incident. Appellants
likewise cast doubt upon the testimony of Rogelio Fernandez, citing his failure to give a
statement to the authorities prior to his testimony in court more than five years later. They
stressed that one of the fatalities was one of his landlords.
The Solicitor General sustains the findings of the trial judge who concluded that,
after observing the demeanor of the witnesses, the evidence for the prosecution was
sufficient to prove that the accused were guilty beyond reasonable doubt of the crime
charged. He prays for the affirmation in toto of the appealed Decision.

The Courts Ruling

 We affirm the findings of the trial court as regards the guilt of the
appellants. However, the crime committed was not multiple murder with double
frustrated murder, but four (4) separate crimes of murder committed against each of the
four victims -- Clarence Suitos, Macario dela Pea, Anicia Sales and Luzviminda Pudol --
and two (2) separate crimes of attempted (instead of frustrated) murder committed against
Spouses Claro and Micaela Suitos.
The Court reiterates the oft-stated general rule in assessing the credibility of
witnesses and their testimonies that:

x x x when the question is raised as to whether to believe the version of the prosecution
or that of the defense, the trial courts choice is generally viewed as correct and entitled to
the highest respect because it is more competent to conclude so, having had the
opportunity to observe the witnesses demeanor and deportment on the witness stand, and
the manner in which they gave their testimonies, and therefore could better discern if
such witnesses were telling the truth; the trial court is thus in the better position to weigh
conflicting testimonies. Therefore, unless the trial judge plainly overlooked certain facts
of substance and value which, if considered, might affect the result of the case, his
assessment on credibility must be respected.[12]

After a scrupulous review of the records of the case, we find that the court a quo did
not overlook any fact of substance and value which would alter the conviction of the
appellants. No palpable error was committed by the said trial court in assessing the
credibility of both prosecution and defense witnesses, and in weighing the value of their
testimonies. It correctly concluded that the defense of alibi is unavailing because the
accused were positively identified by witnesses without motive to charge falsely the
accused especially with a grave offense that could bring death by execution on the
culprit(s).[13] Besides, Micaela Suitos was a victim herself and a close relative of other
victims, whose testimony should normally be accepted since such witness usually
strive(s) to remember the face(s) of the assailant(s).[14] Furthermore, relationship with a
victim would deter a witness from indiscriminately implicating anybody to the crime. His
natural and usual interest would be to identify the malefactor and secure his conviction to
obtain true justice for the death of a relative. This is (e)specially so when the witnesses
were present at the scene of the crime. [15] In this case, Micaela Suitos witnessed the
event. She unwaveringly and steadfastly testified as follows:
Q On July 21, 1985, on or about 6:30 oclock in the evening, do you recall where
you were?
A I was inside our eatery inside the market.
Q Were you alone?
A We were then six.
Q Who were your companions?
A My husband, Vic Suitos, Clarance[16] Suitos, Minda Pudol, Alicia[17]Sales and
Macario dela Pea.
Q What is the name of your husband?
A Claro Suitos.
COURT:
Q Where is that eatery located?
A Inside the market of Umingan, Pangasinan.
PROS. PEREGRINO:
Q Do you have any relationship with Vic Suitos?
A My husband.
Q Do we get it from you that the nickname of Vic is Claro?
A Yes, sir.
Q How are you related to Clarence Suitos?
A She is my daughter.
xxxxxxxxx
Q While you and your companions whose names you just mentioned in the
Honorable Court are with you in your carenderia on that date and time, do
you recall of any unusual incident that happened?
A I saw the shooting and their death.
Q Who did the shooting?
A Edwin Nardo and Ylarde.
Q Do you know the person by the name of Willy Ylarde?
A He used to be my customer.
Q Yes, but you mentioned previously a certain person who did the shooting as
Ylarde, I am asking you if you know one by the name of Willy Ylarde?
A I know him, sir. He is there. Witness pointing to the accused Willy Ylarde.
Q Will you also point to the person of Edwin Nardo?
A Witness pointing to the person of Edwin Nardo.
Q Who were those shot by the shooting made by the two accused?
A Clarence Suitos, Minda Pudol, Macario dela Pea, Vic Suitos and I. Anicia
Sales including my daughter were also wounded in their arm.
Q What is the name of your daughter?
A Marivic Suitos.
Q Where were Edwin Nardo and Willy Ylarde at the time when they made the
shooting of those persons mentioned including yourself?
A They were fronting my restaurant. I thought they are going to eat but its (sic)
not.
Q What happened with Clarence Suitos?
A She died.
Q How about Alicia Sales?
A She also died.
Q How about Macario dela Pea?
A He also died.
Q Minda Pudol?
A She also died.
Q How about your husband Vic Suitos?
A We brought him with (sic) the police car to the nearest hospital.
Q How about you?
A I was also brought to the Doctors Hospital.
Q Where?
A Urdaneta, Pangasinan.
Q Do we get it from you that both you and your husband went to the hospital?
A Yes, sir.
Q By the way can you tell the Honorable Court what kind of gun was used by
Edwin Nardo and Willy Ylarde in shooting you and your companions inside
your carenderia on July 21, 1985?
A What I know its a baby armalite because its inside the jacket.[18]
The above account of Micaela Suitos was corroborated in substance by the other
eyewitness, Rogelio Fernandez. He also positively identified both accused
as the gunwielders who had indiscriminately fired at the Suitos canteen. The
relevant portions of his testimony are as follows:
Q On July 21, 1985 at around 6:00 oclock in the afternoon or in the evening,
where were you?
A We were in town.
Q You said we who was your companion at that time?
A Dela Pea.
Q What particular place in the Poblacion were you at around 6:00 P.M. on July
21, 1985?
A We were at the side of the market.
xxxxxxxxx
Q When you reached the market place what did you do?
A We parked our motorcycle.
Q Where did you park the motorcycle?
A South of the market.
Q And after parking the motorcycle where did you go with dela Pea?
A Dela Pea went to take coffee.
Q While dela Pea was taking coffee what were you doing?
A I was tying the items we have bought.
Q While tying the items that you bought (or) that you purchased(,) what things
have you observed, if any?
A I have seen two men approaching.
Q You said two men were approaching(,) from what place have they come from?
A They came from the western gate of the market.
Q What else did you observe after seeing these two persons in the western gate
of the market?
A When I saw these two persons(,) I notice that one of them is wearing a long
sleeves jacket as they enter the western gate.
Q Where did they proceed after the two persons enter the western gate?
A They went infront of the canteen.
Q While they were infront of the canteen(,) what were the things that you
observed?
A They brought out their guns.
xxxxxxxxx
Q You said that they brought out their firearms(,) what firearms did you see?
A One long firearm and one short.
Q After they brought out their respective firearms(,) what happened next?
A When they brought out their firearms(,) they fired.
Q To whom did they fire?
 A In the canteen.
Q After they fired at the carinderia(,) what did you observe?
A I saw Macario dela Pea fell (sic) down.
Q Is this Macario dela Pea the victim in this case?
A Yes, sir.
xxxxxxxxx
COURT:
Q Who was the person who was holding a long firearm, will you go down and
identify him?
A Witness tapped the shoulder of the person who identify (sic) himself as Edwin
Nardo.
FISCAL CORPUZ:
Q As to the person who was holding a short firearm(,) will you tap the shoulder?
A Witness tapped the shoulder of the person who identified himself to be
Willie[19] Ylarde.[20]
The fact that Rogelio Fernandez did not give any statement to the police right after
the incident does not cast veritable doubt on his credibility as averred by accused-
appellants. We have held that the lapse of a considerable length of time before a witness
comes forward to reveal the identities of the assailants does not taint the credibility of the
witness and his testimony.[21] The initial reluctance of witnesses to volunteer information
about a criminal case and their unwillingness to be involved in criminal investigations
due to fear of reprisal are common occurrences and have been judicially declared to have
no significant effect on their credibility. There is no law which requires that the testimony
of a prospective witness should be reduced into writing in order that his declaration in
court at a later date may be believed.[22]
The defense was utterly unable to weaken the reliability of the prosecution witnesses
testimonies. Appellants capitalize on the supposed discrepancy between Micaelas
statement allegedly given to Patrolman Aquinde and her verbal testimony in court, and
allege that persons other than the accused executed the assault. In view of her unwavering
testimony in open court, despite the grilling cross- examination by the defense, and the
failure of the defense to establish any proof that she was motivated by ill will or any other
dubious reason, we sustain the discretion of the trial court to give her testimony full faith
and credit. We have previously stated that (s)worn statements taken ex-parte are generally
considered to be inferior to testimony given in open court.[23]
Indeed, Micaela Suitos must have been in a state of shock at the time of the
investigation. One of her daughters was killed in the carnage, another was wounded,
while she and her husband were seriously injured necessitating their confinement in a
hospital. Such condition of Micaela was confirmed by Defense Witness Aquinde himself:
 Q Where did you conduct the first investigation of Claro Suitos and Micaela
Suitos?
A At the Sacred Heart Hospital, Urdaneta, Pangasinan.
Q How did you find their conditions(?) (W)ere they coherent in answering the
questions?
A I think they were still under shock during that time.
Q Did they understand your questions when you profounded (sic) to them?
A I do not know if they understand fully.[24]
Furthermore, Aquinde even agreed to burn the alleged unfinished and unsigned
statements of the Suitos spouses. This all the more confirms the fact that the spouses
might not have been in their complete senses when investigated by Aquinde. Human
memory may be temporarily paralyzed by an appalling tragedy, especially if it involves
the witness family. Eventually, however, as the witness recovers from the trauma,
memory regains its clarity.[25] This explains the experience of Micaela Suitos.
Having cast away any doubt on the credibility of the prosecution witnesses, we
further sustain the trial courts finding that there was conspiracy between the appellants in
the perpetration of their evil acts. Well-entrenched is the rule that conspiracy need not be
proved by direct evidence of prior agreement on the commission of the crime as the same
can be inferred from the conduct of the accused before, during and after the commission
of the crime, showing that they acted in unison with each other, evincing a common
purpose or design.[26]In the case at bench, as emphatically attested to by Witness Rogelio
Fernandez, both accused arrived together at the Umingan market through its western gate
and proceeded to the front of the Suitos canteen. Then both drew out their respective
firearms and simultaneously fired indiscriminately at the people in the canteen, killing
four persons and wounding two others.These concerted acts of appellants reveal a
consciously adopted plan and clearly demonstrate their joint design to
exterminate. Conspiracy having been established, the act of one is the act of all.[27]
The sudden and unexpected attack upon the victims, without any provocation on
their part, qualifies the crime with treachery. [28] Having been totally unaware of the
impending aggression, there was absolutely no opportunity for the victims to seek cover,
[29]
resist[30] or retaliate.[31]
However, no proof was adduced as regards the extent and gravity of the injuries
sustained by Spouses Micaela and Claro (Vic) Suitos. It was not proven that they would
have died from their injuries had medical attention not been given shortly after the
shooting. Hence, with respect to them, appellants may be held liable only for attempted
murder.[32]

Crimes Committed Not Complex

 The trial court ruled that the crime committed was the complex crime of multiple
murder with double frustrated murder, defined and penalized under Article 248 in relation
to Article 48 of the Revised Penal Code. [33] Under Article 48, a complex crime exists
when a single act constitutes two or more grave or less grave felonies, or when an offense
is a necessary means for committing the other. We have held that where the killing was
not shown to have been committed by a single discharge of firearms, the crime cannot be
complex.[34]
In the autopsy reports of Dr. Thelma Busto, which were admitted in court by the
defense counsel,[35] it appears that each of the fatalities sustained a gunshot wound. In the
case of Luzviminda Pudol, she sustained a fatal (g)unshot wound (on the) left side of the
face causing deformity of oral cavity;[36] as for Macario dela Pea, also a fatal gunshot
wound on the abdomen, mid area (epigastric region), 2 inches (in) length as the point of
exit & pt. of entrance at left lateral side of lumbar region [37] for Clarence Suitos, likewise
a fatal (g)unshot wound on the oral cavity as pt. of entrance & pt. of exit at nape of neck;
[38]
while for Anicia Sales, also a fatal (g)unshot wound on the rt. lateral side, auxiliary
region.[39] In addition, Witness Micaela Suitos further attested that she and her husband
Claro (Vic) were also injured by the shooting [40] for which they were brought to a hospital
in Urdaneta for treatment.
From the foregoing evidence, it is quite improbable that only a single act produced
four fatalities and two injured persons, which would justify the single conviction meted
out by the trial court to each accused.
Moreover, Witness Rogelio Fernandez categorically stated that both accused fired
their respective firearms. He testified thus:
Q While they were infront of the canteen(,) what were the things that you
observed?
A They brought out their guns.
xxxxxxxxx
Q You said that they brought out their firearms(,) what firearms did you see?
A One long firearm and one short.
Q After they brought out their respective firearms(,) what happened next?
A When they brought out their firearms(,) they fired.
Q To whom did they fire?
A In the canteen.
His testimony was not rebutted by the defense. The ineludible conclusion is that the
killing of the four victims and wounding of two others resulted from several discharges of
firearms.When various victims expire from separate shots, such acts constitute separate
and distinct crimes.[41] Thus, appellants should be held liable for the separate crimes of
four murders and two attempted murders.
 We are cognizant of the rule that an accused, as established by evidence, may be
convicted only of the crime charged in the information, which in this case was for a
single crime of multiple murder with double frustrated murder, or of an offense which
necessarily includes that which was charged or included therein. [42] We note, however,
that the information charging the appellants further states that the accused, with intent to
kill and with the qualifying circumstance of treachery armed with M16 Armalite Rifles, x
x x (did) shoot and fire at in a sudden and unexpected manner, Claro Suitos, Micaela
Suitos, Clarence Suitos, Anicia Sales, Macario Dela Pea and Luzviminda Pudol x x x. In
effect, it imputed to the accused the commission of several felonies. Yet, appellants did
not move to quash the information on the ground of multiplicity of charges. Neither did
they object thereto at any other time. Consequently, such defect is deemed waived, and
the Court may validly render judgment against them for as many crimes as were alleged
and proven.[43]

Proper Penalties Imposable

With the absence of any generic aggravating or mitigating circumstances, the penalty
imposable for consummated murder is reclusion perpetua and, for attempted
murder, prision mayor in its minimum period. Since four separate crimes of murder were
committed, appellants are hereby sentenced to suffer four terms of reclusion perpetua. In
addition, they shall suffer two indeterminate penalties of six months and one day
of prision correccional minimum to eight (8) years of prision mayor minimum for the
two attempted murders.
WHEREFORE, premises considered, the appeal is hereby DENIED. The
challenged Decision is MODIFIED as follows: accused-appellants are hereby
found GUILTY beyond reasonable doubt of the separate crimes of four (4) murders and
two (2) attempted murders, and accordingly, upon each of them are imposed the
following penalties: (a) four penalties ofreclusion perpetua for the four murders, and (b)
two indeterminate sentences of six months and one day of prision correccional minimum
to eight (8) years of prision mayor minimum for the two attempted murders, which shall
be served successively and in accordance with law. The assailed Decision, insofar as it
orders the accused to indemnify jointly and severally the heirs of the deceased victims
and Micaela Suitos in amounts therein stated, is hereby AFFIRMED.
SO ORDERED.

EN BANC

[G.R. No. 124736. September 29, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO GALLO y
IGLOSO, accused-appellant.

RE S O LUTI ON
PER CURIAM:

The penalty imposed upon accused-appellant Romeo Gallo y Igloso by the Regional
Trial Court, Branch 68, of Binangonan, Rizal, after finding him guilty beyond reasonable
doubt of the crime of qualified rape, was affirmed by this Court in its decision
promulgated on 22 January 1998.
On 24 August 1999, accused-appellant filed a Motion to Re-open Case (with Leave
of Court) seeking a modification of the death sentence to reclusion perpetua. Accused-
appellant proffers that the reduction sought by him would be in line with the new Court
rulings which annunciate that the seven attendant circumstances introduced in Section 11
of Republic Act No. 7659 partake of the nature of qualifying circumstances that must be
pleaded in the indictment in order to warrant the imposition of the penalty.
The Court in the case of People vs. Garcia,[1] speaking through then, Justice Florenz
D. Regalado, ratiocinated that the additional attendant circumstances introduced by R.A.
7659 should be considered as special qualifying circumstances distinctly applicable to the
crime of rape and, if not pleaded as such, could only be appreciated as generic
aggravating circumstances.[2]
The Information filed against accused-appellant reads:

That on or sometime in the period of May, 1994 in the Municipality of Cardona, Province
of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above named
accused, with lewd designs and by means of force or intimidation, did then and there
willfully, unlawfully and feloniously have sexual intercourse with a 13 year old girl,
Marites Gallo y Segovia.[3]

The above indictment has not specifically alleged that accused-appellant is the
victims father; accordingly, accused-appellants relationship to the victim, although
proven during the trial, cannot be considered to be a qualifying circumstance.[4]
The next crucial point is whether the Court must now apply retroactively the Garcia
doctrine to the conviction of accused-appellant.
The Court has had the opportunity to declare in a long line of cases that the tribunal
retains control over a case until the full satisfaction of the final judgment conformably
with established legal processes.It has the authority to suspend the execution of a final
judgment or to cause a modification thereof as and when it becomes imperative in the
higher interest of justice or when supervening events warrant it.[5]
The doctrine declared in People vs. Garcia, and its reiteration in People vs. Ramos,
[6]
People vs. Ilao,[7] and People vs. Medina,[8] came only after almost a year from the
promulgation of the instant case.
 The Office of the Solicitor General, when requested to comment on the aforesaid
th
24 August 1999 motion of accused-appellant, had this to state:

Judicial decisions applying or interpreting the law or the Constitution shall form part of
the legal system of the land (Article 8, Civil Code of the Philippines). Medina, which has
the force and effect of law, forms part of our penal statutes and assumes retroactive effect,
being as it is, favorable to an accused who is not a habitual criminal, and notwithstanding
that final sentence has already been pronounced against him (Article 22, Revised Penal
Code).

Indeed, by operation of law, appellant is rightfully entitled to the beneficial application

of Medina. Accordingly, the Office of the Solicitor General hereby joins appellants prayer
for reduction of his sentence from death to reclusion perpetua.

The Court agrees with the Office of the Solicitor General in its above observations
and sees merit in its stand to join accused-appellant in praying for a modification of the
sentence from death to reclusion perpetua.
WHEREFORE, the motion to re-open the case is GRANTED and the decision
sought to be reconsidered is MODIFIED by imposing on accused-appellant the penalty
of reclusion perpetua in lieu of the death penalty and ordering him to indemnify the
victim the amount of P50,000.00.
Considering that the records of all cases where the death penalty is imposed are
forwarded to the Office of the President in accordance with Section 25 of R.A. 7659, the
Court directs the Clerk of Court to furnish the Office of the President with a copy of this
resolution for appropriate guidance.
SO ORDERED.