[G.R. No. L-32390. December 28, 1973.

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CLEMENTE AQUINO, Defendant-

Appellant.

Solicitor General Antonio P. Barredo, Assistant Solicitor General Crispin V . Bautista and
Solicitor Enrique M. Reyes for Plaintiff-Appellee.

Feliberto V . Castillo, for Defendant-Appellant.

DECISION

MAKALINTAL, C.J.:

In Criminal Case No. 6404-M of the Court of First Instance of Bulacan, Clemente Aquino was
charged with and found guilty of murder for the death of Pedro Cruz in the afternoon of April 29,
1967 at barrio Sibul, San Miguel, Bulacan. He was sentenced to reclusion perpetua, to pay an
indemnity of P12,000.00 and P10,000.00 for actual expenses and moral damages suffered by the
heirs of the victim. The case was thereafter elevated to this Court on appeal.

There is no dispute as to the fact of the killing Aquino did it with a revolver, caliber .22, which he
fired four times in succession. His plea is self-defense.

Cruz was an employee of the Farmont Mines and Aquino was working as truck driver for a certain
Leoncio de Guzman, owner of a white clay mine adjacent to the Farmont property. It seems that
there was some king of rivalry between the two mining establishments, which somehow involved
their respective personnel.

The case for the prosecution consists of the testimony of three principal witnesses, all employees of
the Farmont Mines namely, Priscila Corpuz, Jorge Cruz and Dominador Cruz. In the morning of April
29, 1967 they rode together with Pedro Cruz in the latter’s jeep to go to the Farmont Mines site at
Akle, San Ildefonso, Bulacan. On their way they passed Bo. Pinaod, where they saw a truck parked
by the roadside and a jeep just behind. Clemente Aquino was at the driver’s seat of the truck and
Leoncio de Guzman was inside the jeep. Priscila Corpuz said she afterwards noticed the two vehicles
following her group at a distance of about 100 meters. A half hour after she and her companions
reached the mine site Clemente Aquino arrived in his truck and "passed thru the fence" of the
Farmont Mines. Pedro Cruz was then inside the Farmont property, repairing his own jeep, and after
Aquino rammed the truck through the fence, Cruz went directly to his jeep and drove it to intercept
the other vehicle. When Cruz caught-up he alighted from the jeep and without any previous
exchange of words between them Aquino immediately shot him.

Jorge Cruz related substantially the same story as that given by Priscila Corpuz, except that while
the latter said she joined her companions before reaching Bo. Pinaod, where she got off the jeep for
a while to buy some foodstuffs, Jorge Cruz said that it was in the said barrio that they picked up
Priscila, he himself having joined Pedro Cruz in the latter’s jeep much earlier in the day.

The third witness for the prosecution was Dominador Cruz, who was also in the group which rode in
the jeep of the deceased Pedro Cruz in going to the mine site. The version of all three is that after
alighting from his jeep, which he used to intercept Clemente Aquino’s truck, catching up with the
latter on the dry bed of the river near the Farmont property, Pedro Cruz walked to where the truck
had stopped. He was standing some two or three meters from the truck, to the left of the driver’s
seat, when Clemente Aquino shot him four times, killing him on the spot.

Aquino’s version as to the circumstances which led to the shooting contradicts that of the
prosecution. He did not drive thru or ram the fence of the Farmont Mines. He was a truck driver for
Leoncio de Guzman, his shift of duty being in the afternoon, while another driver, Melencio
Guevarra, drove the truck in the morning. At 11:30 on April 29, 1967, he took over as driver at the
clay stockpile in Bo. Akle and left for the mine site, together with Guevarra and Teofilo de Guzman.
On the way he gave a lift to several persons, including an army soldier by the name of Conrado
Ferma, the latter’s wife and two children. To go to the mine site he did not have to pass thru the
Farmont property because some distance from it a passageway to the dry river bed had been
constructed by Leoncio de Guzman’s laborers. While he was nogotiating that passageway, however,
he accidentally rammed three or four bamboo posts which were stuck into the ground. He
proceeded on the dry river bed, stopped to unload the soldier and his family near their hut, and
then continued on his way. He had covered a short distance when he saw a jeep speeding in his
direction, with Pedro Cruz at the wheel and a companion, called "Moro," beside him. Cruz blocked
his way with the jeep, got off and walked towards the left side of the truck. About two meters away
Cruz stopped and asked him, "Why do you insist passing here when I am stopping you?" Aquino
answered, "Why should you stop me here when I am already on the river?" Cruz did not answer,
but gave a meaningful dance at "Moro," who was still inside the jeep, and touched something
bulging at his waist. When he pulled the thing out, Aquino saw it was a "balisong" knife. Cruz
stepped on the left running board of the truck, and hauled himself up with his left hand holding on
to the windshield frame. Aquino moved towards the right side of the driver’s seat but was not able
to go to the extreme end because his thigh got wedged under the gear shift. Cruz thrust forward
with his knife at him, but he leaned far to the right and at the same time parried the knife hand.
Cruz switched his knife to a stabbing position and at that moment Aquino, who was already leaning
almost prone on the driver’s seat, got his gun from the tool box and fired at his antagonist. The first
shot hit Cruz on the right side of the throat, the second on the right arm. Aquino fired four times in
all and then jumped out of the truck on the right side, leaving Cruz slumped over the driver’s seat.
Aquino sought cover near the right front tire of the truck. "Moro," gun in hand, got off the jeep but
ran away when he saw Aquino’s gun trained on him. When Aquino again looked in the direction of
his antagonist, he saw the latter already lying beneath the truck. There was a small army
contingent nearby and he went to one of the huts of the soldiers and surrendered his gun to one of
them.

The appellant’s version was corroborated by Teofilo de Guzman, former employee of Leoncio de
Guzman. He was one of those who rode with Aquino from Leoncio de Guzman’s stockpile of white
clay in Bo. Akle. Besides himself there were other persons who were given a lift in the same truck,
including an army soldier with his wife and two children. They drove on a public road, and upon
reaching a spot where there was a signboard marked "Farmont Property," Aquino made a detour
toward Akle river. In negotiating the bend down to the river bed, the truck accidentally rammed and
destroyed four bamboo posts. They stopped briefly to allow the soldier and his family to get off.
Suddenly a jeep, which was running very fast, overtook them and stopped in front of the truck.
Pedro Cruz, who was at the wheel, got down, leaving his companion named "Moro" inside. Cruz
walked toward the truck and there was an exchange of words between him and Aquino. He pulled
out a bladed weapon, stepped on the running board of the truck and lunged at his opponent, who
evaded the attack by leaning down to his right. Both Aquino and Teofilo de Guzman testified that
the blood from the bullet wounds Pedro Cruz received spilled on the driver’s seat of the truck. De
Guzman also testified that during the shooting the other passengers who were still inside the truck
jumped out and that he saw Cruz slide down slowly from the running board, with his two legs finally
going directly under the truck.

In view of the conflicting versions of the witnesses for the prosecution on one hand and the
witnesses for the defense on the other, a number of physical and objective circumstances assume
decisive importance.

First is the testimony of patrolman Ernesto Salazar of the San Miguel police. He was listed in the
information as one of the witnesses of the prosecution but was not called to testify although he was
present in court all the time that the State was adducing its evidence. Presented instead by the
defense, he said that in the afternoon of April 29, 1967, a policeman from San Ildefonso reported
the death of Pedro Cruz to the Chief of Police of San Miguel. The Chief then ordered him and
patrolman Sta. Maria to proceed to the scene of the incident. He could not recall how many persons
were there when they arrived, but did remember a certain Victor Intacto and several army soldiers,
headed by Sgt. Oscariz, standing near the dead body. It was then about 8 o’clock in the evening. He
saw Pedro Cruz lying on his back by the left side of the truck, and had photographs of the body
taken from different angles; he found blood stains on the driver’s seat and had them also
photographed; and then afterwards he found a dagger on the floor of the truck near the driver’s
seat, the scabbard of which he had previously seen tucked at Pedro Cruz’ right hip. In the course of
his testimony Salazar identified the eight photographs which had been taken, his on-the-spot report
and the sketched of the scene which he prepared, the dagger and the scabbard. In particular the
photographs of the body show that where he lay Pedro Cruz’ two legs were directly under the truck.
Another significant piece of evidence is the biology report and testimony of Mercedes Bautista, Chief
of Forensic Chemistry of the National Bureau of Investigation, to the effect that she analyzed the
blood stains on the driver’s seat of the truck in question upon request by the Chief of Police of San
Miguel and found them to be of human blood.

Similarly significant is the necropsy report of Dr. Aristeo Tantoco, Municipal Health Officer of Angat,
Bulacan, which shows the locations of the wounds and trajectories of the bullets in the body of the
deceased, as follows: jgc:chan roble s.com.p h

"1. Located at occipital region of the head, left measuring 0.3 cm. with a length of 1.1 cm.

2. Entrance — located at the base of the neck anterior right, 2 inches from the anterior median line
54 inches from toe right heel.

Size — 0.4 by 0.3 cm.

Description — Ovaloid with inverted edges with an abrasion collar measuring 0.1 cm. at its upper
part.

Direction — Downward posteriorly and to the right.

Involvement — Skin, soft tissues, and muscles of the neck upper lung, right, muscle of the lumbar
region, right, a lead bullet was recovered just beneath the skin on the lumbar region.

3. Entrance — located at the upper chest left, 3.5 inches from the anterior median line, 48 inches
from the left heel.

Size — 0.4 by 0.3 cm.

Description - ovaloid with inverted edges, with an abrasion collar measuring 0.1 cm. at its upper
part.

Direction — downward posteriorly and to the left.

Involvement — Skin soft tissues, muscles of the chest, grazing the third rib piercing the thoracic
wall, the lungs left posterior wall of the chest. Slug was recovered just beneath the skin of the
posterior chest.

4. Entrance - located at the palmar region of the left forearm anteriorly.

Size — 0.4 by 0.3 cm.

Description — Ovaloid with inverted edges with an abrasion collar measuring 0.1 cm. at its lower
part.

Direction — Upward and posteriorly.

Involvement — skin, soft tissue and muscle of the forearm.

Exit — located at the proximal 3rd of the forearm medially, measuring 0.5 by 0.5 cm. with inverted
edges."cralaw vi rtua1aw l ib rary

The physical, objective facts enumerated above are not only consistent with but indeed confirm
strongly the plea of self-defense raised by the appellant. The direction of three of the four bullets
which hit the deceased shows that he must have been in a forward stooping position at the time,
with his left forearm raised somewhat in front of him, as would be the case if he was holding the
windshield frame with his left hand. Thus the slug which entered the base of the neck, in front and
to the right, plowed downward through the upper lung and the muscle of the lumbar region, where
it was recovered just beneath the skin. The slug which entered the body at the left upper chest also
followed a downward direction and was recovered beneath the skin at the back. And the slug which
hit the left forearm near the palm of the hand took both an upward and posteriorly direction and
exited "at the proximal 3rd of the forearm medially." The bullets could not have had these
trajectories if the deceased had been standing upright two or three meters to the left of the truck,
as the witnesses for the prosecution testified.

The evidence of the dagger or knife, which was retrieved by patrolman Salazar from the floor of the
truck below the driver’s seat, and the evidence of the blood stains on the seat itself, not only find no
explanation in but directly contradict the version of the prosecution. It should be noted that
although the chemical examination of the stains was done eleven days after the incident, they were
photographed shortly after it happened and the driver’s seat itself was placed in the custody of the
chief of Police of San Miguel.

The trial court took a cavalier attitude toward these evidences, hinting that they might have been
planted But the one who found the knife and had photographs of the blood stains taken was the
police officer assigned to conduct an official investigation. And he did 90 in the presence of several
persons. The appellant himself surrendered to an army soldier and was taken away immediately
after the shooting; and the premises where it happened, including the truck and the body of the
deceased, were under guard by army soldiers before patrolman Salazar arrived to conduct the
investigation. The very position of the body as testified to by the same patrolman and confirmed by
the photographs shows that after being shot Cruz must have slid down the running board of the
truck where he was said to be standing, thus accounting for the fact that he was found lying on his
back with his two legs under the truck. Such a position could hardly have been possible if he had
been shot while standing two or three meters away from the vehicle.

The three elements of self-defense are here present. There was unlawful aggression on the part of
the deceased when he attacked the appellant with a deadly weapon, especially in the rather
cramped quarters of the driver’s compartment of the truck, where the space was too limited for
effective maneuvering. The means employed to repel that aggression was reasonable. As repeatedly
held by this Court," (I)n emergencies of this kind, human nature does not act upon process of
formal reason but in obedience to the instinct of self-preservation; and when it is apparent that a
person has reasonably acted upon his instinct, it is the duty of the courts to sanction the act and
hold the act irresponsible in law for the consequences." 1 And upon a review of the evidence we find
that the appellant did not give any sufficient provocation for the attack against him.

In ruling that there was such provocation the court a quo relied on the testimony of Priscila Corpuz
to the effect that the appellant rammed the closed gate of the Farmont compound. However, this
testimony is of doubtful credibility: Corpuz gave conflicting versions on this point which she failed to
explain satisfactorily. In her affidavit (Exhibit 4) which she executed before a certain Atty. Ernesto
Catimbang, she stated: jgc:chanroble s.com.p h

"6. That we saw the actual shooting incident, when without any warning the accused driver of the
cargo truck upon arriving at the gate ordered Mr. Pedro Cruz to move his jeep away from the road
in order to pass by and the deceased Pedro Cruz answered that the truck can pass because he is
parked by the side of the road but instead of passing by the cargo truck driver suddenly and without
warning pulled a gun hidden in the compartment, of the truck and shot at Pedro Cruz, who because
he was hit had to climb the truck but was repulsed by the succeeding shot fired at him and fell to
the ground dead." cralaw virtua 1aw lib rary

In the preliminary investigation conducted by the Acting Provincial Fiscal of Bulacan, Priscila Corpuz
gave another version. On direct examination, she testified as follows: jgc:chan rob les.com. ph

"Q. What happened when the truck arrived at the site?

A. He went to the post.

Q. What post are you referring to?

A. Post behind our laborers in the mine site.

Q. Now, what happened after that?

A. Then he maneuvered and went down the river where Mr. Pedro Cruz was standing.
Q. What happened when the truck went down the river where Mr. Pedro Cruz, was standing.

A. He fired without notice.

Q. To whom did he fire?

A. Pedro Cruz.

Q. What happened with Pedro Cruz when he was fired at?

A. He fell down and he was dead.

Q. How many times did you hear the shot rang out?

A. There were plenty, sir. It continued the shots." (Exhibits 24-C and 24-D, pp. 21-23 of Exhibit 24)

"Atty. Hill:
c han rob1es v irt ual 1aw l ibra ry

Q. You were referring to a post, is that part of the gate which was smashed by the truck of the
respondent?

"Atty. Castillo: cha nrob 1es vi rtua l 1aw lib rary

Objection. Leading question.

"Atty. Hill:
c han rob1es v irt ual 1aw l ibra ry

Q. What was that post which was smashed by the truck?

A. It was behind the Farmont Mines’ laborers, sir.

Q. What was that post?

A. To serve as fence, sir.

Q. Was that fence destroyed?

A. Yes, sir." cralaw virt ua1aw lib ra ry

(Exhibit 24, pp. 27-28)

In her two versions quoted above Priscila Corpuz did not say that the appellant forced his way
through the closed gate of the Farmont Mines or that he went inside its premises in going down the
river bed.

On the other hand, the appellant clearly testified, with the aid of sketch (Exhibit 1) and with
corroboration from Teofilo de Guzman, that before reaching the gate of the Farmont Mines he made
a detour to the river bed by using the passageway which had been constructed by the men of
Leoncio de Guzman and that while negotiating the descent he accidentally bumbed three or four
bamboo posts stuck into the ground. The existence of the passageway, which according to the
defense was constructed purposely to avoid passing through the contested road, was not
controverted by the prosecution.

In view of the foregoing considerations We find the plea of complete self-defense sufficiently
established. The judgment of the Court a quo is reversed and the appellant is acquitted, with costs
de oficio.

Castro, Teehankee, Makasiar, Esguerra and Muñoz Palma, JJ., concur.

G.R. No. L-26750 August 18, 1972

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JOSEEN COMIENDA Y NAVARRO, defendant-appellant.

Office of the Solicitor General for plaintiff-appellee.

Aladin B. Bermudez for defendant-appellant.

MAKASIAR, J.:p

The accused Jose Encomienda y Navarro appealed on September 22, 1966 from the decision dated September 12, 1966 of the
Court of First Instance of Nueva Ecija [Branch IV Guimba] (p. 97, Vol. I, rec.) sentencing him for murder aggravated by recidivism
but mitigated by voluntary surrender, to life imprisonment or reclusion perpetua, to indemnify the heirs of the deceased Severino
Cabaral in the sum of P6,000.00, to suffer the accessories provided for by law, and to pay the costs (pp. 84-96, Vol. 1, rec.).

The record of the case was received on October 25, 1966 by the Clerk of Court of the
Supreme Court (p. 1, Vol. 11, rec.) from the Clerk of Court of the Court of Appeals, who
received the same on October 20, 1966, without the transcript of stenographic notes, which
transcript was submitted to the Supreme Court on November 11, 1966 (p. 1, t.s.n., Vol. III),
from the deputy clerk of the trial court (p. 2, Vol. II, rec.).

After the briefs of appellant and appellee were filed respectively on January 18, 1967 (pp 26-
48, Vol. II, rec.) and July 2, 1967 (p. 67, Vol. II, rec.), the case was submitted for decision on
August 14, 1967 (p. 73, Vol. ll rec.).

On January 14, 1970, one AFP T/Sgt Venancio B. Bañaga, through counsel, filed a petition
for an order directing the clerk of court of Branch IV of the Court of First Instance of Nueva
Ecija to deliver to him the .32 caliber revolver with serial No. 154646, Exhibit "E", alleging
that after the appealed decision was rendered by the trial court, the ownership of said
revolver was transferred to him by reason of which he was issued by the Philippine
Constabulary Special Permit No. 369246 authorizing him to possess the said revolver while
he is in the active service (AFP), attaching the said special permit as Annex "A" to his
petition (pp. 74-75, 76, Vol. II, rec.), and that his motion to withdraw the said revolver was
denied by the trial court due to the pendency of this case before the Supreme Court (Annex
"A", p. 78, Vol. II, rec.). Said petition was deemed submitted for resolution on March 18, 1970
after the Solicitor General failed to comment thereon within the period allowed him (pp. 79,
80, 82, Vol. II, rec.).

Arraigned on the following information for murder:

That on or about the 30th day of May, 1965, in the munipality of Cuyapo,
province of Nueva Ecija, Republic of Philippines, and within the jurisdiction of
this Honorable Court the above-named accused conspiring together and
mutually aiding one another, armed with a bolo and blunt instrument, with
intent to kill and with treachery and evident premeditation, did then and there
willfully, unlawfully and feloniously attack and hacked one Severino Cabaral,
inflicting upon him multiple wounds which caused his instantaneous death.
 That the accused Jose Encomienda y Navarro is a recidivist having been
convicted of the crime of Murder on April 30, 1958, in Criminal Case No.
4382 by the Court of First Instance of Nueva Ecija. (p. 47, Vol. I, rec.).

accused appellant who waived the presence of his counsel at said arraignment (p. 53, Vol. I,
rec.), pleaded not guilty on June 2, 1966 (p. 54, Vol. I, rec.).

The evidence for the prosecution consists of the testimonies of Cuyapo health officer Pio
Alberto, policeman Esmenino Delo and police inspector Casimiro Aguinaldo.

Patrolman Esmenino Delo declared that about 4 o'clock in the afternoon of May 30, 1965, he
was with policeman Federico Olog at police outpost No. 2 in Cuyapo, Nueva Ecija, when one
Franklin Ancheta reported that Severino Cabaral was wounded in the yard of the accused
Jose Encomienda. He proceeded to the defendant's yard where he saw Severino mortally
wounded in a kneeling position about two or three meters in front of the stairs of the house of
the accused and could not raise his head. Severino was unconscious but still breathing (pp.
13-14, t.s.n.), On his query, the wounded Severino told him in the presence of policemen
Eufemio Delo and Mateo Castillo, that the accused Jose Encomienda stabbed him (pp. 9-10,
t.s.n.), which statement he wrote down in Ilocano on a piece of ruled paper (Exhibit "C", p. 4,
Vol. II, rec.), on which the deceased affixed his right thumbmark and duly signed by
patrolmen Mateo Castillo and Eufemio Delo as witnesses (p. 11, t.s.n.). Said alleged ante
mortem statement of the victim, Exhibit "C", was translated into English by police inspector
Casimiro Aguinaldo (Exh "C-1", pp. 14 & 19, t.s.n.).

Exhibit "C-1" shows that the same was taken down at 4:45 P.M. of May 30, 1965 and
contains the following conversation between partrolman Esmenino Delo and the victim:

Q — Who boloed you?

A — Jose Encomienda.

Q — Is this true?

A — Yes.

Q — You thumbmark.

A — Yes. (p. 5, Vol. I, rec.).

Assisted by policemen Mateo Castillo, Eufemio Delo and Federico Olog, patrolman
Esmenino Delo brought the victim to the private clinic of Dr. Potenciano Garcia, after which
he looked for the accused in the premises of the scene of the incident. Failing to locate the
accused thereat, patrolman Esmenino Delo, together with lieutenant Gamboa, proceeded to
the municipal building to report the incident after which they conducted an investigation in the
premises of the incident, where they found blood stains in the yard and in front of the
stairway of the house of the accused (pp. 11-12, t.s.n.). About 5:30 in the afternoon of that
same day, May 30, 1965, they returned to the municipal building where they saw police
inspector Casimiro Aguinaldo interrogating the accused. According to police inspector
Aguinaldo (p 13, t.s.n.), the accused went to the municipal building alone at about 4:55 p.m.
of May 30, 1965, surrendering a bolo and a .32 caliber revolver (Exhs. "D" & "E") together wit
two live bullets (Exhs. "E-I" & "E-2") and four empty shells contained in an envelope. The
bolo (Exh. "D") is about 13 inches long with a wooden handle about 18 centimeters long. He
placed the bolo and the revolver in seperate wrappers (Exhs. "D-1" & "E-3", pp. 15-17, 19
t.s.n.). After entrusting the accused to the guard, he and policeman Esmenino Delo went to
the scene of the incident, saw blood stains on the stairs of the house of the accused and a
box of water mixed with blood. Thereafter, they repaired to the clinic of Dr. Garcia where they
saw the victim about 6:30 that evening and stayed there for about five minutes, after which
they returned to the municipal building (pp. 16-17, t.s.n.). When he asked the accused
whether he was willing to give any statement, the accused replied in the negative and
stressed that he would wait for his lawyer (pp. 17, 19, t.s.n.). He translated into English the
alleged dying declaration, Exhibit "C", of the victim (Exh. "C-1", p. 15, Vol. I, rec.; p. 19,
t.s.n.). When he asked the accused why he boloed the victim, the accused replied that he
would not talk and he would await for his lawyer. He did not examine the hands of the
accused for powder burns as he did not know the procedure therefor. Neither did he request
the Philippine Constabulary to conduct such examination of the victim for powder burns. He
did not know who fired the revolver. The victim bore no gunshot wounds. The accused did
not tell him that the victim fired at him. But, the victim's son told him that the revolver was
licensed in the name of the victim (pp 19-20, t.s.n.).

Dr. Pio Alberto, the Cuyapo health officer, recounted that about 6: 00 P.M. of May 30, 1965,
he examined the victim in the clinic of Dr. Potenciano Garcia, executed the medical
certificate Exhibit "A" (p. 2, Vol. I, rec.), and issued the death certificate showing that the
victim was born in 1898 and was 67 years old when he died on May 30, 1965 (Exh. "B", p. 3,
Vol. I, rec.).

The medical certificate, which states that the victim died about 10 o'clock in the evening of
May 30, 1965 from shock and hemorrhage, describes the injuries sustained by the victim
Severino Cabaral, thus:

1. — A clean cut horizontal wound about 1 inch above both eyebrows

extending from the outer tip of the left to the outer tip of the right eyebrow;
cutting the frontal bone and exposing the brain tissue. Fragments of the
frontal bone were extracted during the operation.

2. — A clean cut almost horizontal wound about 2 inches long from inwards
downwards and outwards at the latero-posterior aspect of the left wrist
exposing the ligaments which were found to be intact.

3. — An oblique clean cut wound about 1 ½, inch long on the postero-medial

aspect of right forearm about 3 inches above the wrist joint from outwards
downwards and inwards.

4. — Swelling and ecchymosis about 2-½ inches by 3-½ inches on lower

angle of right scapula.

5. — Swelling and ecchymosis about 2-½ inches by 3-½ inches just above
the brim of the right hip bone at the back. (Exh. "A", p. 2, Vol. I, rec.).

Dr. Alberto opined that wound no. 1 on the forehead was mortal and was caused by a sharp
instrument like a bolo, with the assailant on the side of and higher than the victim or the
victim was stooping at the time said wound was inflicted (pp. 3, 4, 7, t.s.n.); that wound no. 2,
about 2 inches long on the left wrist of the victim, was also caused by a sharp instrument like
a bolo, was not fatal and could have been inflicted when the victim raised his hands in self
defense with the right hand a little higher than the left, adding that the victim could still move
his hands (pp. 3, & 8, t.s.n.); that wound no. 3 on the right forearm and about 3 or 4 inches
above the wrist could have been inflicted with a sharp instrument like a bolo when the victim
raised his hands in self-defense (pp. 3, 4, & 8, t.s.n.); that wound no. 4, the swelling and
ecchymosis about 2 ½ inches by 3 ½ inches on the lower angle of the right scapula and
about 8 inches below the right armpit, could have been caused by a rod or a bat or a fall or a
bolo's handle, but not by the narrow back of a bolo (p. 5, t.s.n.); that wound no. 5 the swelling
and ecchymosis about 2 ½ inches by 3 ½ inches on the right pelvic bone just above the
waistline could have been caused by a rod with the assailant on the side of the victim (pp. 5-
6, t.s.n.); that the victim was in a state of shock at the time he examined him; that he left the
victim at about 8:30 that evening of May 30, 1965 sleeping in Dr. Garcia's clinic; and that the
next day, he saw the victim already dead due to shock and hemorrhage (pp. 6-7, t.s.n.).

Appellant narrated that since 1947 he was a tenant of hacienda Doña Nena in Cuyapo,
Nueva Ecija; that the victim Severino Cabaral was the hacienda overseer (pp. 22, 27, t.s.n.);
that the land he was working was recorded in the name of his late father, who died in 1963
(p. 28, t.s.n.); that about one week before May 30, 1965, the victim went to his house and
invited him to go to his (victim's) house telling him that he could no longer work on the land
for the land is not in his name; that he did not go with the victim to the latter's house then;
that he was not mad when the victim told him for the first time that he can no longer work on
the land; that the second time the victim went to his house was on a Friday or Saturday, but
only his little child was home then as he was out and his wife was in the market; that the third
time the victim went to his house was about 4:30 in the afternoon of May 30, 1965 telling him
that he was sent by the hacienda owner to tell him that he cannot work in the hacienda and
that he will be removed as tenant; that he was then cutting wood beside the stairway with a
bolo (Exh. "D"), while the victim was standing also beside the stairs; that when he asked why
he was being removed as tenant when it was his means of livelihood, the victim replied that
he had no right to work on the land because it was not in his name, to which he countered
that the victim had no right to remove him for he (the victim) was only a messenger and also
a tenant like him in the hacienda, which alone has the right to remove him (pp. 23, 30, t.s.n.);
that the victim became angry and with his right hand drew his revolver tucked in his left side
when they were about one meter apart (p. 23, t.s.n.); that with his left hand he immediately
grabbed the victim's right hand holding the revolver, forcing the victim to lean on the
stairway, pinned the victim's right hand also on the stairs; that during their struggle, the
revolver fired four times continuously that with the bolo in his right hand he struck the victim's
right forearm; that when the victim wanted to get the gun with his left hand, he boloed the
victim's left arm about one inch from the left wrist; that he shook the victim's right arm
downward causing the gun to fall to the ground; that when the victim tried to pick up the gun,
he stepped backward and hacked the victim's forehead causing the victim to fall backward
on the stairway, as he (appellant) retrieved the gun to prevent the victim from picking it up
again and then stepped about two meters backward for the victim might grab him (pp. 24, 25,
31, 32, 34, t.s.n.); that thereafter the victim slowly got up and washed his forehead with the
water from the box nearby while sitting in front of said box, after which he went to the
municipal building with the bolo and the gun which he surrendered to police inspector
Casimiro Aguinaldo; that the ecchymosis on the lower and right scapula of the victim might
be due to his having violently pushed the victim against the bamboo stairway with two
wooden lower steps (pp. 26, 27, t.s.n.); that he was alone in the house that afternoon of May
30, 1965 when the incident happened as his wife was then out selling meat and his children
were with his father-in-law (p. 20, t.s.n.); that the victim was taller and slightly bigger than he
is; that the victim's son, Guillermo, is taller than his deceased father (p. 32, t.s.n.); and that
he is right-handed (p. 33, t.s.n.).
By actual measurement, Guillermo Cabaral is 5'6" tall; while the accused has a height of 5'3"
(p. 33, t.s.n.).

The prosecution did not offer any rebuttal evidence and relied mainly on the alleged ante
mortem statement Exhibits "C" & "C-1" of the deceased and on the medical testimony of Dr.
Pio Alberto, the town health officer. There is therefore no testimonial evidence for the state
as to how and why the incident occurred for no eyewitness was presented.

It is most unfortunate that the police authorities did no cause the immediate examination of
the trigger of the revolver for finger prints and of the stairs, the hands and clothing of both the
accused and the victim for powder burns, to determine whose fingers were actually on trigger
of the revolver.

If the four slugs had been recovered, the same would have been helpful in ascertaining the
trajectory and direction of the bullets and whether they could have been fired from the stairs
or not.

The unrebutted fact that the incident happened inside the yard and just beside the stairway
of the house of the accused and that the victim was armed with a revolver licensed in his
name, confirms appellant's story that the deceased, as the hacienda overseer, went to the
residence who the accused, informed the latter that the hacienda owner had removed him as
tenant, and directed him to vacate the land tilled by him as it was not recorded in his name.
When the accused questioned the victim's authority to remove him, the victim became
furious and drew his gun.

While it is true that the victim was taller and slightly bigger than the accused, the latter could
match the strength of the right hand of the victim with his left hand since he was then a 37-
year old farmer and the victim was 67 year of age or 30 years his senior. In his excitement
and apprehension of the peril to his life, appellant was not expected nor had the time, to
determine whether he could save himself by just kicking the gun away from the victim or
stepping on it or pushing the victim away from the latter when the victim tried to pick up the
gun after he was already wounded on both forearms; or whether the victim, if able to pick up
the gun, could have fired the remaining two bullets at appellant who was just about a meter
away.

The alleged dying declaration of the deceased which consists only of three brief, mostly
monosyllabic, answers to equally brief questions of partrolman Esmenino Delo, to wit:

Q — Who boloed you?

A — Jose Encomienda.

Q — Is this true?

A — Yes.

Q — You thumbmark.

A — Yes. (Exhs. "C" & "C-1", pp. 4-5, Vol. 1, rec.).

uncorroborated as it is bereft of essential details as to the motive and circumstances
surrounding the incident, does not generate the moral certainty as to the culpability of
appellant. The evidence of the prosecution lacks the requisite sufficiency to persuade the
human mind to agree with the conclusion of the trial court, whose decision cannot as a
consequence be sustained.

It is also doubtful whether the victim could hear or understand the three questions
propounded to him or could clearly mumble his three answers thereto or could nod his head;
because policeman Esmenino Delo himself admitted that the victim was unconcious
although still breathing, and could not raise his head when they found him in the yard of the
defendant (pp. 13-14, t.s.n., Vol. III).

On the other hand, the plausibility and credibility of the unrebutted narration of the appellant
as to the motive and circumstances surrounding and leading to the incident, is enhanced by
its detail and by the fact that appellant immediately surrendered that same afternoon to the
police authorities with his bolo and the revolver of the deceased,1 despite the fact that he was
already laboring under a handicap by virtue of his previous conviction as an accomplice to
the crime of murder, which ordinarily would impair his trustworthiness.

Under the circumstances, the version of the appellant appears to meet the required clear and
convincing evidence to establish self-defense,2 or weakens all the more and therefore
neutralizes the effect of the proof of the prosecution. The story of the appellant is partly
corroborated by Aurelio Encomienda, his second cousin (p. 41, t.s.n., Vol. II) and nearest
neighbor just about four meters away (p. 37, t.s.n. Vol. III), who testified to his having heard
several shots while he was lying down that afternoon and thereafter his having seen through
a hole in his kitchen the victim sitting under the shed of the stairs of appellant house, who
was also sitting in front of the victim and holding a bolo and a revolver, which Aurelio
Encomienda related the next morning to the barrio captain, who called for him. (pp. 37-40,
t.s.n., Vol. III).

Three essential elements must concur for legitimate self-defense to exist, namely; (1)
unlawful aggression on part of the victim; (2) reasonable necessity of the means, employed
to prevent or repel the attack; and (3) lack ofsufficient provocation on the part of the person
defending himself.3

Illegal aggression is equivalent to assault or at least threatened assault of immediate and

imminent kind.4 Here when the deceased drew his gun with his right hand, appellant grabbed
with his free left hand the victim's right hand holding the revolver, forced the victim to lean on
the stairs and pinned the victim's right hand also on the stair. During the struggle, the
revolver fired four times continously and he hacked the victim's right forearm. When the
victim tried to get the gun with his left hand, appellant boloed the victim's left arm and then
shook the victim right arm downward causing the gun to fall to the ground and the victim tried
to pick up the gun, appellant stepped backward and hacked the victim's forehead, after
which he himself picked up the gun so as to prevent the victim, from retrieving the same.

If the deceased had no intention to use his gun on the appellant, he would not have drawn it
or resisted appellant's attempt to prevent him from using it. There was therefore real danger
to the life or personal safety of the appellant.5

The instant case is quite analogous to the case of People vs. Pangan, et al wherein the
accused, also an agricultural share tenant, killed with a penknife the superintendent of the
hacienda. When the accused therein denied the charge of the superintendent that he was
letting his carabaos run loose to destroy the tender sugar cane shoots, the deceased while
berating him, struck him twice with a whip hitting him (the accused) on the left temporal and
occipital regions causing his ear to bleed, against which the accused offered no resistance
but only tried to evade the blows. After they were separated by a third party, the accused sat
down on an acacia trunk, but the deceased approached him again and insultingly asked him
whether he wanted to fight, to which accused replied he would not fight. Thereafter, the
accused retired to his home. Between four and five o'clock in the afternoon of the same day,
accused went to the house of the deceased to ask him to return his two cows that had been
caught but the deceased kicked him and struck him with a cane, causing a welt on this left
shoulder. As the accused stepped back to avoid the second blow aimed at him, the
deceased placed his right hand upon the handle of the revolver he carried by his waist.
When the accused saw this intention of the deceased, he drew his knife and opened it with
his teeth. The deceased then drew his revolver; but before he could fire it, the accused
wrestled with him and caught the hand holding the gun. During the ensuing struggle, both fell
to the ground, the deceased upon his back, while the accused upon him, with one hand
griping the deceased's hand holding the revolver and with the other stabbing the deceased
on the abdomen and other parts of the body including the right arm compelling the deceased
to drop the revolver. Then the accused took hold of the revolver and threw it to one side.
Thereafter, he ran to the municipal building and surrendered to the
authorities.7 The defense of the accused in said case was sustained by the Court.

In U.S. vs. Domens,8 the theory of self-defense was likewise upheld. There the deceased
and the accused quarreled about a carabao which had gotten into the corn patch of the
deceased, who, by reason thereof, struck the accused four orfive times with a piece of wood
about one yard long and about the size of one's wrist. The accused did not retreat but struck
back wounding the deceased on the forehead.

In U.S. vs. Mojica,9 the deceased, a constabulary soldier resisted arrest, struck the arresting
policeman with a fist, drew a mess kit knife and brandished it at the accused, another
policeman, who retreated a step or two, drew his revolver and fired, killing the soldier. WE
ruled that the policeman acted in self-defense.

That there is reasonable necessity of the means employed by herein appellant to prevent or
repel the unlawful aggression cannot seriously be disputed. "Reasonable necessity of the
means employed does not imply material commensurability between the means of attack
and defense. When the law requires is rational equivalence, in the consideration of which will
enter as principal factors the emergency, the imminent danger to which the person attacked
is exposed and the instinct, more than the reason, that moves or impels the defense, and the
proportionateness thereof does not depend upon the harm done, but rests upon the
imminent danger of such injury ... ." 10 As WE stated in the case of People vs. Lara, in
emergencies of this kind, human nature does not act upon processes of formal reason but in
obedience to the instinct of self-preservation; and when it is apparent that a person has
reasonably acted upon this instinct, it is the duty of the courts to sanction the act and hold
the act irresponsible in law for the consequences."

In the case at bar, appellant did not immediately hack the deceased to completely disable
him, much less to kill him. When the deceased drew his gun with his right hand, the appellant
merely grabbed the right hand of the deceased holding the gun, pinning said right hand on
the stairs without striking the deceased with the bolo in his right hand. After the gun fired four
times continuously as they struggled, it was only then that appellant struck the right forearm
of the victim with his bolo. Appellant could have continued hacking the deceased right then
and there. But he did not. He boloed the victim's left forearm because the victim tried to get
the gun from his right hand. And then he just shook the right arm of the victim downward,
forcing the latter to release the gun which fell to the ground. It was only when the deceased
tried to pick up the gun that the appellant boloed him on the forehead. As heretofore stated,
appellant had no time to coolly deliberate on whether he could save himself by just kicking
the gun away or by just pushing or boxing the victim or stepping on the hands of the
deceased to prevent him from getting the gun and firing the same at him. The immediate
danger to his life precluded such serene rationalization on his part.

It should be stressed that the victim did not sustain any gunshot wounds. After taking
possession of the victim's revolver, appellant did-not use it against the victim to finish him off,
nor did he continue hacking the deceased with his bolo. He was free to do either as the
victim was completely rendered hors de combat. Instead the appellant allowed the disabled
and defenseless victim to wash his wounds with water in appellant's own wooden box.

In U . S. vs. Molina, 11 the accused was unarmed while the deceased attacked him with a
bolo. After overpowering the deceased and wresting the bolo from him, the accused struck
the deceased several times with the bolo thereby killing him almost instantaneously as the
deceased tried to seize a hatchet. Under the circumstances, WE held that the accused
employed reasonable means to repel the assault against his life.

In People vs. Rabandaban, 12 one night appellant found his wife lying in bed with another
man, who escaped through the window. He scolded his wife and ordered her to leave the
house. Calling him names, the wife gathered her clothes and picked up a bolo in the kitchen.
When the accused husband followed her there, she attacked him with the bolo, wounding
him twice on the abdomen. Wresting the bolo from his wife, appellant stabbed her with it in
the breast, causing her death that same night. WE ruled that the appellant acted in self-
defense and that there was reasonable necessity of the means employed by him to repel the
attack. WE overruled the opinion of the trial court wherein it stated that appellant could have
saved himself by throwing away the bolo after wresting it from his wife and that there was no
need for him to stab her once she was disarmed; because she struggled to regain
possession of the bolo, justifying appellant's belief that his wife wanted to finish him off.
Considering that he must have been losing strength due to loss of blood, with his wife armed
to fight to the finish, it would have been sheer folly or stupidity on his part to throw away the
bolo so that his wife may again use it against him.

In People vs. Sumikat, 13 a bolo was considered a reasonable means of repelling an attack by
a bully of known violent disposition, who was larger and stronger than the accused and who
was trying to wrest the bolo from him.

In People vs. Lara, supra, the use of a pistol in shooting to death the deceased who was
much stronger than the appellant and who in the darkness and from behind suddenly threw
his arms around appellant and attempted to wrest the pistol from him, was considered
reasonably necessary; because by reason of the darkness as well as the superior strength of
the deceased, there was probability that the deceased would seize control of the pistol and
use it against appellant.

There certainly was lack of sufficient provocation on the part of appellant. On the contrary, he
was the one provoked by the deceased. He was in his own yard cutting wood when the
deceased arrived ordering him to vacate the land he was then tilling, which was his
livelihood. Ejecting him from the land he was farming and which his father farmed before
him, was, to this simple farmer, like depriving him of his life. Yet, with all that provocation,
appellant merely told the deceased that the latter had no right to eject him from the land
because he was also a tenant like him in the hacienda. Certainly, this retort was no
justification for the victim to draw his gun.

In view of the uncontradicted testimony of the appellant that the victim drew his revolver to
assault the appellant, which is not a lawful purpose, the victim lost thereby the privilege to
possess the same.

WHEREFORE, the appealed judgment is hereby reversed, the accused-appellant is hereby

acquitted, and his immediate release from confinement is hereby ordered.

The .32 caliber revolver with serial No. 15446 (Exh. "E") is hereby ordered forfeited to the
government and the Clerk of Court is hereby directed to deliver the same for record
purposes to the official headquarters of the Philippine Constabulary at Camp Crame, Quezon
City. The bolo (Exhibit "D") is ordered returned to appellant.

With costs de officio.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Antonio
and Esguerra JJ., concur.

C.A. No. 384 February 21, 1946

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.

Jose Ma. Recto for appellant.

Assistant Solicitor General Enriquez and Solicitor Palma for appellee..

DE JOYA, J.:

Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First Instance of
Tayabas, for the crime of murder, of which Nicolas Jaurigue was acquitted, but defendant
Avelina Jaurigue was found guilty of homicide and sentenced to an indeterminate penalty
ranging from seven years, four months and one day of prision mayor to thirteen years, nine
months and eleven days of reclusion temporal, with the accessory penalties provided by law,
to indemnify the heirs of the deceased, Amando Capina, in the sum of P2,000, and to pay
one-half of the costs. She was also credited with one-half of the period of preventive
imprisonment suffered by her.

From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court of
Appeals for Southern Luzon, and in her brief filed therein on June 10, 1944, claimed —

(1) That the lower court erred in not holding that said appellant had acted in the
legitimate defense of her honor and that she should be completely absolved of all
criminal responsibility;

(2) That the lower court erred in not finding in her favor the additional mitigating
circumstances that (a) she did not have the intention to commit so grave a wrong as
 that actually committed, and that (b) she voluntarily surrendered to the agents of the
authorities; and

(3) That the trial court erred in holding that the commission of the alleged offense
was attended by the aggravating circumstance of having been committed in a sacred
place.

The evidence adduced by the parties, at the trial in the court below, has sufficiently
established the following facts:

That both the defendant and appellant Avelina Jaurigue and the deceased Amado Capina
lived in the barrio of Sta. Isabel, City of San Pablo, Province of Laguna; that for sometime
prior to the stabbing of the deceased by defendant and appellant, in the evening of
September 20, 1942, the former had been courting the latter in vain, and that on one
occasion, about one month before that fatal night, Amado Capina snatched a handkerchief
belonging to her, bearing her nickname "Aveling," while it was being washed by her cousin,
Josefa Tapay.

On September 13, 1942, while Avelina was feeding a dog under her house, Amado
approached her and spoke to her of his love, which she flatly refused, and he thereupon
suddenly embraced and kissed her and touched her breasts, on account of which Avelina,
resolute and quick-tempered girl, slapped Amado, gave him fist blows and kicked him. She
kept the matter to herself, until the following morning when she informed her mother about it.
Since then, she armed herself with a long fan knife, whenever she went out, evidently for
self-protection.

On September 15, 1942, about midnight, Amado climbed up the house of defendant and
appellant, and surreptitiously entered the room where she was sleeping. He felt her
forehead, evidently with the intention of abusing her. She immediately screamed for help,
which awakened her parents and brought them to her side. Amado came out from where he
had hidden under a bed in Avelina's room and kissed the hand of Nicolas Jaurigue, her
father, asking for forgiveness; and when Avelina's mother made an attempt to beat Amado,
her husband prevented her from doing so, stating that Amado probably did not realize what
he was doing. Nicolas Jaurigue sent for the barrio lieutenant, Casimiro Lozada, and for
Amado's parents, the following morning. Amado's parents came to the house of Nicolas
Jaurigue and apologized for the misconduct of their son; and as Nicolas Jaurigue was then
angry, he told them to end the conversation, as he might not be able to control himself.

In the morning of September 20, 1942, Avelina received information that Amado had been
falsely boasting in the neighborhood of having taken liberties with her person and that she
had even asked him to elope with her and that if he should not marry her, she would take
poison; and that Avelina again received information of Amado's bragging at about 5 o'clock
in the afternoon of that same day.

At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas Jaurigue
went to the chapel of the Seventh Day Adventists of which he was the treasurer, in their
barrio, just across the provincial road from his house, to attend religious services, and sat on
the front bench facing the altar with the other officials of the organization and the barrio
lieutenant, Casimiro Lozada. Inside the chapel it was quite bright as there were electric
lights.
Defendant and appellant Avelina Jaurigue entered the chapel shortly after the arrival of her
father, also for the purpose of attending religious services, and sat on the bench next to the
last one nearest the door. Amado Capina was seated on the other side of the chapel. Upon
observing the presence of Avelina Jaurigue, Amado Capina went to the bench on which
Avelina was sitting and sat by her right side, and, without saying a word, Amado, with the
greatest of impudence, placed his hand on the upper part of her right thigh. On observing
this highly improper and offensive conduct of Amado Capina, Avelina Jaurigue, conscious of
her personal dignity and honor, pulled out with her right hand the fan knife marked Exhibit B,
which she had in a pocket of her dress, with the intention of punishing Amado's offending
hand. Amado seized Avelina's right hand, but she quickly grabbed the knife with her left
hand and stabbed Amado once at the base of the left side of the neck, inflicting upon him a
wound about 4 1/2 inches deep, which was necessarily mortal. Nicolas Jaurigue, who was
seated on one of the front benches, saw Amado bleeding and staggering towards the altar,
and upon seeing his daughter still holding the bloody knife, he approached her and asked:
"Why did you do that," and answering him Avelina said: "Father, I could not endure
anymore." Amado Capina died from the wound a few minutes later. Barrio lieutenant
Casimiro Lozada, who was also in the same chapel, approached Avelina and asked her why
she did that, and Avelina surrendered herself, saying: "Kayo na po ang bahala sa aquin,"
meaning: "I hope you will take care of me," or more correctly, "I place myself at your
disposal." Fearing that Amado's relatives might retaliate, barrio lieutenant Lozada advised
Nicolas Jaurigue and herein defendant and appellant to go home immediately, to close their
doors and windows and not to admit anybody into the house, unless accompanied by him.
That father and daughter went home and locked themselves up, following instructions of the
barrio lieutenant, and waited for the arrival of the municipal authorities; and when three
policemen arrived in their house, at about 10 o'clock that night, and questioned them about
the incident, defendant and appellant immediately surrendered the knife marked as Exhibit
B, and informed said policemen briefly of what had actually happened in the chapel and of
the previous acts and conduct of the deceased, as already stated above, and went with said
policemen to the police headquarters, where her written statements were taken, and which
were presented as a part of the evidence for the prosecution.

The high conception of womanhood that our people possess, however humble they may be,
is universal. It has been entertained and has existed in all civilized communities.

A beautiful woman is said to be a jewel; a good woman, a treasure; and that a virtuous
woman represents the only true nobility. And they are the future wives and mothers of the
land. Such are the reasons why, in the defense of their honor, when brutally attacked,
women are permitted to make use of all reasonable means available within their reach,
under the circumstances. Criminologists and courts of justice have entertained and upheld
this view.

On the other hand, it is the duty of every man to protect and show loyalty to womanhood, as
in the days of chivalry. There is a country where women freely go out unescorted and, like
the beautiful roses in their public gardens, they always receive the protection of all. That
country is Switzerland.

In the language of Viada, aside from the right to life on which rests the legitimate defense of
our own person, we have the right to property acquired by us, and the right to honor which is
not the least prized of our patrimony (1 Viada, Codigo Penal, 5th ed., pp. 172, 173).

The attempt to rape a woman constitutes an unlawful aggression sufficient to put her in a
state of legitimate defense, inasmuch as a woman's honor cannot but be esteemed as a right
as precious, if not more, than her very existence; and it is evident that a woman who, thus
imperiled, wounds, nay kills the offender, should be afforded exemption from criminal liability,
since such killing cannot be considered a crime from the moment it became the only means
left for her to protect her honor from so great an outrage (1 Viada, Codigo Penal, 5th ed., p.
301; People vs. Luague and Alcansare, 62 Phil., 504). .

As long as there is actual danger of being raped, a woman is justified in killing her aggressor,
in the defense of her honor. Thus, where the deceased grabbed the defendant in a dark
night at about 9 o'clock, in an isolated barrio trail, holding her firmly from behind, without
warning and without revealing his identity, and, in the struggle that followed, touched her
private parts, and that she was unable to free herself by means of her strength alone, she
was considered justified in making use of a pocket knife in repelling what she believed to be
an attack upon her honor, and which ended in his death, since she had no other means of
defending herself, and consequently exempt from all criminal liability (People vs. De la Cruz,
16 Phil., 344).

And a woman, in defense of her honor, was perfectly justified in inflicting wounds on her
assailant with a bolo which she happened to be carrying at the time, even though her cry for
assistance might have been heard by people nearby, when the deceased tried to assault her
in a dark and isolated place, while she was going from her house to a certain tienda, for the
purpose of making purchases (United States vs. Santa Ana and Ramos, 22 Phil., 249).

In the case, however, in which a sleeping woman was awakened at night by someone
touching her arm, and, believing that some person was attempting to abuse her, she asked
who the intruder was and receiving no reply, attacked and killed the said person with a
pocket knife, it was held that, notwithstanding the woman's belief in the supposed attempt, it
was not sufficient provocation or aggression to justify her completely in using deadly
weapon. Although she actually believed it to be the beginning of an attempt against her, she
was not completely warranted in making such a deadly assault, as the injured person, who
turned out to be her own brother-in-law returning home with his wife, did not do any other act
which could be considered as an attempt against her honor (United States vs. Apego, 23
Phil., 391)..

In the instant case, if defendant and appellant had killed Amado Capina, when the latter
climbed up her house late at night on September 15, 1942, and surreptitiously entered her
bedroom, undoubtedly for the purpose of raping her, as indicated by his previous acts and
conduct, instead of merely shouting for help, she could have been perfectly justified in killing
him, as shown by the authorities cited above..

According to the facts established by the evidence and found by the learned trial court in this
case, when the deceased sat by the side of defendant and appellant on the same bench,
near the door of the barrio chapel and placed his hand on the upper portion of her right thigh,
without her consent, the said chapel was lighted with electric lights, and there were already
several people, about ten of them, inside the chapel, including her own father and the barrio
lieutenant and other dignitaries of the organization; and under the circumstances, there was
and there could be no possibility of her being raped. And when she gave Amado Capina a
thrust at the base of the left side of his neck, inflicting upon him a mortal wound 4 1/2 inches
deep, causing his death a few moments later, the means employed by her in the defense of
her honor was evidently excessive; and under the facts and circumstances of the case, she
cannot be legally declared completely exempt from criminal liability..
But the fact that defendant and appellant immediately and voluntarily and unconditionally
surrendered to the barrio lieutenant in said chapel, admitting having stabbed the deceased,
immediately after the incident, and agreed to go to her house shortly thereafter and to remain
there subject to the order of the said barrio lieutenant, an agent of the authorities (United
States vs. Fortaleza, 12 Phil., 472); and the further fact that she had acted in the immediate
vindication of a grave offense committed against her a few moments before, and upon such
provocation as to produce passion and obfuscation, or temporary loss of reason and self-
control, should be considered as mitigating circumstances in her favor (People vs. Parana,
64 Phil., 331; People vs. Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil., 86).

Defendant and appellant further claims that she had not intended to kill the deceased but
merely wanted to punish his offending hand with her knife, as shown by the fact that she
inflicted upon him only one single wound. And this is another mitigating circumstance which
should be considered in her favor (United States vs. Brobst, 14 Phil., 310; United States vs.
Diaz, 15 Phil., 123).

The claim of the prosecution, sustained by the learned trial court, that the offense was
committed by the defendant and appellant, with the aggravating circumstance that the killing
was done in a place dedicated to religious worship, cannot be legally sustained; as there is
no evidence to show that the defendant and appellant had murder in her heart when she
entered the chapel that fatal night. Avelina is not a criminal by nature. She happened to kill
under the greatest provocation. She is a God-fearing young woman, typical of our country
girls, who still possess the consolation of religious hope in a world where so many others
have hopelessly lost the faith of their elders and now drifting away they know not where.

The questions raised in the second and third assignments of error appear, therefore, to be
well taken; and so is the first assignment of error to a certain degree.

In the mind of the court, there is not the least doubt that, in stabbing to death the deceased
Amado Capina, in the manner and form and under the circumstances above indicated, the
defendant and appellant committed the crime of homicide, with no aggravating circumstance
whatsoever, but with at least three mitigating circumstances of a qualified character to be
considered in her favor; and, in accordance with the provisions of article 69 of the Revised
Penal Code, she is entitled to a reduction by one or two degrees in the penalty to be
imposed upon her. And considering the circumstances of the instant case, the defendant and
appellant should be accorded the most liberal consideration possible under the law (United
States vs. Apego, 23 Phil., 391; United States vs. Rivera, 41 Phil., 472; People vs. Mercado,
43 Phil., 950)..

The law prescribes the penalty of reclusion temporal for the crime of homicide; and if it
should be reduced by two degrees, the penalty to be imposed in the instant case is that
of prision correccional; and pursuant to the provisions of section 1 of Act No. 4103 of the
Philippine Legislature, known as the Indeterminate Sentence Law, herein defendant and
appellant should be sentenced to an indeterminate penalty ranging from arresto mayor in its
medium degree, to prision correccional in its medium degree. Consequently, with the
modification of judgment appealed from, defendant and appellant Avelina Jaurigue is hereby
sentenced to an indeterminate penalty ranging from two months and one day of arresto
mayor, as minimum, to two years, four months, and one day of prision correccional, as
maximum, with the accessory penalties prescribed by law, to indemnify the heirs of the
deceased Amado Capina, in the sum of P2,000, and to suffer the corresponding subsidiary
imprisonment, not to exceed 1/3 of the principal penalty, in case of insolvency, and to pay
the costs. Defendant and appellant should also be given the benefit of 1/2 of her preventive
imprisonment, and the knife marked Exhibit B ordered confiscated. So ordered..

Ozaeta, Perfecto, and Bengzon, JJ., concur.

FIRST DIVISION

G. R. No. 120646 - February 14, 2000

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. APOLINAR DANDO, Accused-

Appellant.

KAPUNAN, J.:

This is an appeal from a decision of the Regional Trial Court, Branch 33, Siniloan, Laguna
finding PO3 Apolinar E. Dando ("accused-appellant") guilty beyond reasonable doubt of
murder.

The Information filed against accused-appellant reads:

That on or about 6:19 o'clock in the evening of November 20, 1991 at Barangay M. Pandeño,
Municipality of Siniloan, Province of Laguna and within the jurisdiction of this Honorable Court,
the above-named accused while conveniently armed with a deadly weapon (cal. 45) with
intent to kill, with treachery and evident premeditation, did then and there willfully, unlawfully
and feloniously attack, assault and shoot several times one CESAR CASTRO y VALMONTE with
the said weapon, thereby inflicting upon him gunshot wounds on the vital parts of his body
which directly caused his death, to the damage and prejudice of the surviving heirs of the
victim.

That the qualifying and aggravating circumstances of treachery, evident premeditation and
abuse of superior strength attended the commission of the crime.

CONTRARY TO LAW.1

On the same date, accused-appellant filed a motion for inhibition and for a change of venue of
the case because several staff members of Branch 33, RTC of Laguna were related to the
victim. On February 12, 1992, Judge Venancio M. Tarriela, the Presiding Judge of said branch,
granted the motion.2 On May 14, 1992, this Court approved the change of venue and
designated Judge Jose C. Mendoza of Branch 26, RTC of Sta. Cruz, Laguna, to try and decide
the case.3

Accused-appellant filed a petition for bail4 which was denied after hearing on the ground that
the evidence against accused-appellant is strong.5 Accused-appellant then went to the Court
of Appeals via petition for certiorari questioning the denial of his petition for bail.

Subsequently, on account of another motion for inhibition,6 filed by accused-appellant alleging

that a prosecution witness in the hearing for the petition for bail was related to a staff member
of Branch 26, the case was re-raffled and transferred to Branch 28, RTC of Sta. Cruz, Laguna,
presided by Judge Fernando Paclibon, Jr.

On June 18, 1993, the Court of Appeals rendered its decision dismissing accused-appellant's
petition questioning the denial of his motion for bail, for lack of merit.7
During trial and after the prosecution witness had already rested its case, the Presiding Judge
of Branch 28, RTC of Sta. Cruz, Laguna, likewise, inhibited himself from further hearing the
case when accused-appellant questioned his impartiality because of his refusal to grant
accused-appellant's motion to recall prosecution witness Susana Masacupan to the witness
stand as a hostile witness.8 The case was transferred back to Branch 26, RTC of Laguna, then
presided by Judge Pablo Francisco.

On May 2, 1995, the trial court rendered its decision the dispositive portion of which reads:

WHEREFORE, this Court finds the accused Apolinar Dando guilty beyond reasonable doubt of
the crime of murder as charged in the information, qualified by treachery and committed with
the aggravating circumstances of use of craft or disguise and evident premeditation and
hereby sentences him to suffer the penalty of reclusion perpetua and to pay the heirs of Cesar
Castro as follows:

a.) the sum of P50,000.00 as death indemnity;

b.) the sum of P1,628,000.00 for loss of earning capacity; and

c.) the sum of P35,974.00 as reimbursement for expenses incurred in the wake and burial of
the victim; and to pay the costs.

SO ORDERED.9

The prosecution's account of the case as narrated in the brief of the Solicitor General is as
follows:

Prosecution witness Aldwin Gemanel testified that on November 20, 1991, he went to the
house located at Pandiño Street, Siniloan, Laguna of his uncle, Angelito Millares, Jr. (Junior
Millares) to look for his (Gemanel's) father. Junior Millares' house was about 100 to 150
meters away from that of the victim, Cesar Castro. Upon arrival at his uncle's place, a party
was on-going as it was the birthday of the former (p. 3, tsn, June 17, 1992). At the said party,
gunshots were fired by appellant and Junior Millares to celebrate the occasion (p. 4, tsn,
October 20, 1992 and pp. 14-15, tsn, August 26, 1993). After a few hours at the birthday
party, Gemanel decided to go to his grandmother's house, a mere three (3) houses away from
his uncle's house (p. 5, tsn, June 17, 1992). On the way to his grandmother's house, he saw
appellant Apolinar Dando, sat on the side-car of a tricycle parked along Pandiño Street in front
of Junior Millares' house and placed a white handkerchief over his face (p. 5-6, tsn, Ibid).
Though puzzled by the action of appellant, Gemanel proceeded to his grandmother's house
and stayed there for almost an hour (pp. 20-21, tsn, September 22, 1993). When Gemanel
went out of the house, he saw appellant get off the tricycle with the handkerchief covering his
face and walk towards the direction of the town plaza (pp. 30-31, tsn, Ibid.). At that time,
Gemanel followed appellant and then he (Gemanel) entered a bakery to buy bread (pp. 28-29,
tsn, Ibid). While inside the bakery, Gemanel heard a shot, so he ran outside to look where the
shot came from (p. 36, tsn, Ibid). Thereupon, he saw appellant with the same white
handkerchief covering his face, firing three (3) more shots at Cesar Castro, who was standing
on the street in front of his (Castro's) house. After the fourth shot appellant ran towards the
"paraanan" or alley, to the direction of the town plaza (pp. 37-43, tsn, Ibid).

Gemanel rushed home and told his mother what he had just witnessed (p. 53, tsn, September
22, 1993). His mother then went to the crime scene while he was left to tend their store (p.
54, tsn, Ibid.) When his mother came back after about ten (10) minutes, he confided to her
that he saw appellant shoot Cesar Castro (p. 54, tsn, Ibid). His mother then advised him not
to tell anyone. Then he went to the crime scene for a closer look of the victim (p. 55,
tsn, Ibid).
The following day on November 21, 1991, Gemanel was fetched by police officers from his
school and was brought to the municipal building for questioning. The day after, on November
22, 1991, he executed a statement (Exhibit "A"; pp. 8-9, tsn, July 14, 1992).

Gemanel further testified that he was present when a slug was recovered from the front yard
of his uncle's (Millares') house (p. 11, tsn, July 14, 1992). He personally saw the slug which
was subsequently handed to Celso Castro, son of Cesar Castro. He learned that the slug found
was one of those fired from the service pistol of appellant when the latter fired his gun during
the birthday party of his uncle (pp. 11-12, tsn, Ibid).

Susan Masakupan, 29 years of age, married and a resident of Pandiño Street, Siniloan,
Laguna, corroborated the testimony of Gemanel. She testified that on or about 6:00 o'clock in
the evening of November 20, 1991, while she was getting dry clothes hanging at their
clothesline located at their front yard, a man wearing a white polo shirt with designs and a pair
of khaki pants and had a handkerchief covering his face passed by. Surprised with the man's
covered face, her gaze followed the man until the latter stopped by victim Cesar Castro.
Thereupon the man shot Cezar Castro and when the latter fell down, the man continued on
shooting at Cesar Castro two (2) or more shots. After the additional shots, the man ran
towards an alley (pp. 2-5, tsn, July 21, 1992).

SPO4 Efren Palma, Deputy Station Commander of the PNP, Siniloan, Laguna, testified that
three (3) slugs and three (3) empty shells were recovered from the crime scene on the night
of November 20, 1991 (p. 6, tsn, October 5, 1992).

Josue Flores, property custodian of the PNP, Siniloan, Laguna, testified that he issued to
appellant, who is a member of PNP, Siniloan, Laguna, (one 1) service firearm, which was a
caliber .45 pistol, Remington, with serial number 1945012 (pp. 3, 5 and 7, tsn, August 11,
1992).

Florentino Rañada, a member of the Central Intelligence Service of Siniloan, Laguna, testified
that he received from the Siniloan, Laguna police station the following specimens:

- one (1) slug .45 caliber ammunition;

- three (3) pieces slug for .45 caliber ammunition;

- three (3) pieces empty shells for a .45 caliber ammunition;

- one (1) piece caliber Remington pistol with serial number 1945012.

and issued a receipt for them (Exhibits "E" and "E-1"; pp. 17-20, tsn, August 11, 1992).

Rañada further testified that one (1) slug of a .45 caliber pistol recovered from the body of the
victim, which was turned over to him by Arvee Castro, brother of the victim (pp. 27-28,
tsn, Ibid) has [sic] sent together with the above specimens to the PNP crime laboratory for
ballistic examination (p. 30, tsn, Ibid).

Susan R. Jalla, PNP officer and criminologist, testified that she conducted a ballistic
examination on the specimens submitted (Exhibits "H", "I", "J" and "K"; pp. 11-13, tsn Ibid).

She issued a certification (Exhibit "N") stating: ". . . microscopic examination, MS-1, MRS-1,
MRS-15 revealed the same individual characteristics as the test bullets and test cartridges,
respectively fired from the above-mentioned firearm" (p. 17, tsn, Ibid).
Dr. Priscilla Realeza, Rural Health Physician of Pakil, Laguna, testified that she conducted
apostmortem examination on the cadaver of Cesar Castro. She issued an Autopsy Report
(Exhibits "R" and "R-1") finding that the victim sustained eleven (11) gunshot wounds (pp. 6-
7, tsn Ibid) and that one (1) bullet slug was extracted from his body (p. 12, tsn, Ibid).10

Accused-appellant, on the other hand, gave the following version of the incident: On
November 20, 1991, he was a member of the Philippine National Police (PNP) with the rank of
PO3 and detailed as security to the mayor of Siniloan, Laguna. At around one o'clock in the
afternoon of that day, he arrived at the house of Junior Millares who was then celebrating his
birthday. He participated in a drinking spree up to three o'clock in the afternoon. On that
occasion, there was no firing of a gun. He did not bring his gun to the birthday party because
he was not in a habit of bringing his gun when he attended such occasions.11 When he left the
party, he went straight home and slept. He woke up at around midnight because of an upset
stomach and vomitted. He went back to sleep and woke up the second time in the morning of
November 21, 1991, changed his clothes, ate his breakfast and went to work at around eight
o'clock in the morning.12 It was only on November 22, 1991 that he learned from his wife that
the Chief of Police and the Mayor were looking for him and that he was a suspect in the killing
of Castro. After eating his supper, he went to the municipal building where the Chief of Police
informed him that he was a suspect in the killing of Castro and was placed under technical
arrest. He surrendered his firearm for ballistic examination to show that he had nothing to do
with the killing. Thereafter, he did not know what happened to firearm.13

The testimony of accused-appellant as to his whereabouts during the time the crime was
committed was supported by his wife Herninia Dando who testified before the trial court that
on November 20, 1991 she went home at 4 o'clock in the afternoon to cook their supper. Less
than an hour later, her husband arrived, went to the sala and slept until the next morning.
They had breakfast together and after that, they went to their respective places of work. 14

Accused-appellant assign the following errors committed by the trial court, to wit:

THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDIT TO THE TESTIMONY OF
PROSECUTION WITNESS ALDWIN OF GEMANEL THAT ACCUSED APPELLANT APOLINAR DANDO
WAS THE ASSAILANT WHO SHOT THE VICTIM CESAR CASTRO.

II

THE TRIAL COURT ERRED IN FINDING THAT THE EMPTY SHELLS AND SLUGS SUBMITTED FOR
BALLISTIC EXAMINATION WERE THOSE RECOVERED FROM THE SCENE OF THE CRIME AND
ONE SLUG FROM THE BODY OF THE VICTIM AND CAME FROM THE SERVICE FIREARM OF THE
ACCUSED APPELLANT.

III

THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE PHYSICAL EVIDENCE CONSISTING
OF EMPTY SHELLS AND SLUGS PRESENTED BY THE PROSECUTION AS TAINTED OR
POLLUTED, AND HIGHLY UNRELIABLE.

IV

THE TRIAL COURT ERRED IN CONCLUDING THAT THE TESTIMONY OF ALDWIN GEMANEL AND
THE BALLISTIC EXAMINATION OF THE SERVICE FIREARM OF ACCUSED APPELLANT
CONSTITUTED PROOF BEYOND REASONABLE DOUBT OF THE GUILT OF THE ACCUSED FOR
THE CRIME OF MURDER.
 V

THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND

REASONABLE DOUBT OF THE CRIME OF MURDER AND IN SENTENCING HIM TO SUFFER THE
PENALTY OF RECLUSION PERPETUA AND TO PAY THE HEIRS THE SUM OF P1,620,000.00 FOR
LOSS OF EARNING CAPACITY OF THE VICTIM, AND OTHER DAMAGES.15

The first and third issues shall be dealt with together as they are interrelated.

Accused-appellant assails the testimony of Aldwin Gemanel alleging that it was marred by
inconsistencies and was incredible, therefore, unworthy of belief. Among these inconsistencies,
according to accused-appellant, are:

1. Gemanel testified that there was a birthday party attended by accused-appellant in the
house of his (Gemanel's) uncle, Junior Millares, and there he saw accused-appellant pull out
his gun and fire a shot downward on the floor. However, Millares himself testified that
accused-appellant merely gave to him the gun and it was he (Millares) who fired two shots.
Then he handed the gun to another guest, Agustin Salinas, who likewise fired said gun twice
and then it was returned to accused-appellant.16

2. Gemanel testified that moments before the shooting of Castro, he saw accused-appellant in
front of the house of Millares putting a handkerchief to cover his face and then going inside
the tricycle to rest. However, during the summary examination by the Municipal Judge who
conducted the preliminary investigation, he testified that he saw accused-appellant on board
the tricycle sleeping.17

3. Gemanel testified that he was barely one house away from the place of the shooting when
he heard a shot. When he looked at the place where the shot came from, he saw a man
already sprawled on the ground and the man, whose face was covered by a handkerchief, fired
two (2) more shots at the victim and left passing through a pathway. In other words, there
were three (3) shots fired. Later, he changed his testimony stating that there were four (4)
shots fired.18

4. Gemanel testified that after the shooting, he approached the victim then he went to his
mother telling her that Castro was shot without naming the assailant. He later testified that
after the shooting, he went home to his mother and revealed to her the identity of the
assailant as Apolinar Dando. Then he went back to the scene of the crime and saw that
policemen were already investigating the incident. When asked by the police investigator, he
told him right then and there that it was accused-appellant who shot the victim.19

The foregoing inconsistencies are but minor details and they do not discredit the positive
identification of accused-appellant as the perpetrator of the crime. The testimony of Gemanel
on the events that transpired on November 20, 1991 was clear, straightforward and
consistent. Thus:

DIRECT-EXAMINATION BY FISCAL:

Q: - On November 20, 1991, where were you?

WITNESS

A: - I was on Pandeño Street Siniloan, Laguna, sir.

Q: - In what particular place in Brgy. Pandeño?

A: - About the middle of that area, sir.

Q: - You were at the middle part of that area. Will you kindly tell to this Honorable Court your
point of reference as to the place where you were at the time?

A: - What I am saying is that I am at the middle of Pandeño Street, sir.

FISCAL

Q: - And when you said you were at the middle portion of Pandeño Street, will you tell this
Honorable Court the nearest house where you were at the time?

WITNESS

A: - Cesar Castro's house, sir.

Q: - And what are you doing then?

A: - None, sir, I was then going to my grandmother's house.

Q: - And were you able to proceed to the house of your grandmother?

A: - Yes, sir.

Q: - But prior to proceeding to the house of your "lola" did you go to any other place?

A: - Yes, sir.

Q: - Where?

A: - To my uncle Junior's house, sir, where there was a drinking spree.

Q: - Do you know why them was a drinking spree at the time?

A: - Yes, sir, it was my uncle Junior's birthday.

Q: - What was your purpose in going to the place of your uncle's birthday?

A: - I was going to look for my father, sir.

Q: - Did you. . .while you were there, by the way, where is the house of your uncle located?

A: - On Pandeño Street, sir.

Q: - How far from your house, how many houses apart?

A: - About 15 houses, sir.

Q: - What is the full name of your uncle Junior?

A: - Junior Millares, sir.

Q: - While you were there at the birthday celebration of your uncle Junior, what did you notice
thereat?

WITNESS

A: - There was a firing of gun, sir.

Q: - Do you know the person who fired his gun at the time?

A: - Yes, sir, Polly Dando.

Q: - Do you know Polly Dando personally?

A: - Yes, sir.

Q: - Do you know the real name of Polly Dando?

A: - Yes, sir, Apolinario Dando.

Q: - Where did you see Apolinario Dando fired his gun?

A: - Under the table pointing downwards, sir.

Q: - Do you know the caliber used by Dando?

ATTY. RAGAZA

Incompetent, your Honor.

COURT

Objection noted, if he knows.

WITNESS

A: - Yes, sir.

FISCAL

Q: - Will you tell this Honorable Court the caliber?

A: - A .45 caliber, "yung lapad", sir.

Q: - Have you already seen a gun of that caliber?

A: - Yes, sir.

Q: - Where?

A: - On TV and on posters, sir.

xxx-xxx-xxx
Q: - After that, where did you go?

A: - I went to my grandmother, sir.

Q: - Where is the house of your grandmother located?

A: - Also an Pandeño Street, sir.

Q: - How far from the house of your uncle Junior?

A: - Three houses away, sir.

Q: - What did you do in the house of your lola?

A: - I entered the house, sir.

Q: - After that, what else happened?

A: - I went out, sir.

Q: - Where did you go?

A: - On the street, sir.

Q: - Were you alone at the time?

A: - Yes, sir.

Q: - While you were on the street, did you notice of any unusual incident?

A: - Yes, sir.

Q: - What was that incident?

A: - I saw Polly boarded a tricycle, sir.

Q: - When you said Polly Dando boarded a tricycle, you mean to say Dando went somewhere
else?

WITNESS

A: - No, he merely sat on board a tricycle which was parked there, sir.

Q: - This tricycle has a driver?

A: - None, sir.

Q: - What else did you notice?

A: - I saw Polly Dando placed a handkerchief over his face, sir.

xxx-xxx-xxx
FISCAL

Q: - Do you know the color of the handkerchief?

A: - Yes, sir, white with small drawings.

Q: - Will you tell this Honorable Court the attire used by the accused Apolinario Dando?

A: - He was wearing a white polo shirt, sir, and a khaki pants.

Q: - After you saw Apolinar Dando sat on a tricycle and put a handkerchief on his face, what
else happened?

WITNESS

A: - He merely rested for a short while, sir.

Q: - After that, what happened?

A: - I left, sir.

Q: - You mean to say after you saw Apolinar sat on a tricycle and put a handkerchief on his
face and rested for a while, you went to your lola's house?

A: - Yes, sir.

Q: - After that, where did you proceed?

A: - I merely stayed on the street, sir.

Q: - And again, while there on the street, did you again notice any unusual incident?

A: - Yes, sir.

Q: - What was that incident?

A: - Polly Dando got off the tricycle, sir.

Q: - Where did he go?

A: - Towards the plaza, sir.

Q: - And what did you do?

A: - I followed Polly, sir.

Q: - Up to what point did you follow him?

A: - About 2 houses, sir.

Q: - While following Dando, what happened next?

A - I entered a bakery, sir.

Q: - What was your purpose in going to that bakery?

A: - I was going to buy bread, sir.

Q: - Were you able to buy bread?

A: - No, sir.

FISCAL

Q: - Where did you proceed after that?

A: - I heard a shot, sir.

Q: - What did you do. . . .

ATTY. RAGAZA

I moved to strike out the answer for not being responsive.

COURT

Sustained

FISCAL

Q: - While you were at the bakery, what else happened?

WITNESS

A: - I heard a shot, sir.

Q: - What shot did you hear?

A: - A gunshot, sir.

Q: - When you heard that gunshot, what did you do?

A: - I went beside the street, sir.

Q: - What did you find out?

A: - I saw Cesar Castro already sprawled on the ground, sir.

Q: - Was Cesar Castro alone at the time?

A: - Yes, sir.

Q: - And do you know what was the cause of Cesar's falling to the ground?
ATTY. RAGAZA

Incompetent, your Honor, he already saw Cesar already sprawled on the ground.

COURT

May answer. We will see the answer.

WITNESS

A: - No, sir.

FISCAL

Q: - At that precise moment when you heard the gunshot and you go (sic) to the street to find
our where the shot came from, where was Apolinar Dando at the time?

ATTY. RAGAZA

There is no testimony that Apolinar Dando was present at the time.

COURT

There was no testimony that Apolinar Dando was them. The fiscal was asking where was
Apolinar at the time. He was not asking why he was there. He did not assume.

WITNESS

A: - I saw him walked a few steps and then fired his gun at Cesar, on his side, sir.

xxx-xxx-xxx

Q: - After you saw Apolinar for the second time at the sprawled body of Cesar, what else
happened?

A: - He ran and went towards an alley, "paraanan", sir.20

On cross-examination, Gemanel gave substantially the same testimony:

Q: - In answer to the question of the Court in the last hearing, you said you saw Dando going
to the plaza and you followed him far a distance of about 2 houses, during the time you were
following, did you meet any person?

A: - None, sir.

Q: - And during all the time that you were following Dando, was he wearing a handkerchief
over his face?

A: - Yes, sir.

Q: - But you did not have much interest, that is why you stop following him and stopped at a
bakery?
A: - Yes, sir.

ATTY. RAGAZA

Q: - And then you heard a shot?

WITNESS

A: - Yes, sir.

Q: - Exactly, where were you when you heard the first shot?

A: - In the bakery about to buy bread, sir.

Q: - Where were you facing?

A: - Towards the bakery, sir.

Q: - Was there anybody attending to you in the bakery?

A: - Yes, sir.

Q: - Now, you were merely waiting for bread that you would buy in that bakery?

A: - Yes, sir, when suddenly I heard a shot.

Q: - How many shots did you hear while you were in the bakery?

A: - First, I heard one shot so I went out of the bakery and I saw Ka Cesar being shot, sir.

Q: - How many shots in all did you hear?

A: - Three, sir.

Q: - What was the interval between the first and the second shot?

A: - First, I was inside the bakery when I heard a shot so I immediately went out and saw
Dando firing two shots on Ka Cesar who was already lying on the ground, sir.21

xxx-xxx-xxx

ATTY. BALCE:

Q: - You heard a shot and you went out and stopped at this point marked by an "x"?

A: - Yes, sir.

Q: - And it was only a gunshot that you heard?

A: - On that moment, one.

Q: - Just after the shot, did you not hear any person crying out in panic.
A: - Nobody, sir.

COURT:

Q: - After that first shot, did you hear any other shot?

A: - I heard, Your Honor.

COURT:

Q: - How many shots did you hear after hearing the first shot?

A: - Three to four shots, Your Honor.

ATTY. BALCE:

I move that the last answer be placed in tagalog.

A: - "Mga tatlo o apat"

Q: - What did you say?

A: - "Tatlo po o apat".

ATTY. BALCE:

But your first answer that I heard was "tatlo bale apat."

A: - Yes sir.

COURT:

Q: - Did you know where the shots came from?

A: - Yes, Your Honor.

Q: - Where?

A: - From the house of Ka Cesar.

COURT:

Q: - After hearing those shots, what did you observe, if any?

A: - The person with his handkerchief covering his face, was running and entered an alley,
"paraanan".22

Well-settled is the rule that "inconsistencies on minor and trivial matters only serve to
strengthen rather than weaken the credibility of witnesses for they erase the suspicion of
rehearsed testimony."23 Moreover, the alleged inconsistencies refer only to inconsequential
details and not to the crux of the case that Gemanel saw accused-appellant gun down Castro.
Gemanel never wavered on this point even for a single moment. The consistency on the part
of Gemanel in identifying accused-appellant as the perpetrator of the crime makes him a
credible witness. His testimony cannot be discredited by a mere alibi and denial on the part of
accused-appellant.

Alibi is one of the weakest defenses in criminal cases and it should be rejected when the
identity of the accused is sufficient and positively established by the prosecution.24Moreover,
in order to overcome the evidence of the prosecution, the accused must establish not only that
he was somewhere else when the crime was committed but also that it was physically
impossible for him to have been at the scene of the crime at the time it was committed. 25 In
the present case, accused-appellant failed to show that it was physically impossible for him to
be at the scene of the crime when it was committed. He even admitted that his house was
only about one-and-a-half kilometers away from the house of Millares,26which was very near
the place where Castro was shot to death. Undoubtedly, the distance did not render it
impossible for accused-appellant to be at the scene of the crime at the time it was committed.
Accused-appellant's defense of alibi must necessarily fail.

As to the alleged inconsistency between the testimonies of Gemanel and that of Millares, we
find the testimony of Gemanel to be more credible since the inconsistency lies in the affidavit
and testimony of Millares himself. In his affidavit, Millares averted that he fired the gun first
and then accused-appellant fired the gun twice.27 In his testimony in court, however, he
(Millares) claimed that after firing the gun, he gave the gun to Agustin Salinas. 28 Confronted
with the inconsistent statements of Millares and the straightforward and categorical testimony
of Gemanel, which was corroborated by that of Susana Masacupan, this Court believes and
gives credence to the latter.

When he testified in court, Gemanel was then only thirteen (13) years old and a second year
high school student at Siniloan Public Highhool. Indeed "the testimony of a child of sound mind
is likely to be more correct and truthful than that of older persons, so that once established
that he has fully understood the character and nature of an oath, his testimony should be
given full credence.29

In the second and third issues raised in his brief, accused-appellant opines that there is no
proof showing that the empty shells and slugs recovered at the scene of the crime were the
same empty shells and slugs submitted for ballistic examination. According to accused-
appellant, the relatives of the victim tampered with these pieces of evidence making the same
tainted or polluted, therefore, unreliable.

Other than these bare allegations, however, accused-appellant failed to prove by convincing
evidence any irregularity in the handling by the police officers of these particular pieces of
evidence. The ballistic examination report is thus clothed with the presumption of regularity.
At any rate, the presentation of weapons (or the slugs and bullets, as in this case) used and
ballistic examination are not prerequisites for conviction.30 The corpus delicti and the positive
identification of accused-appellant as the perpetrator of the crime are more than enough to
sustain his conviction.

Anent the fifth issue, accused-appellant contends that the trial court erred in convicting him
for murder and awarding in favor of the victim's heirs the sum of P1,620,000.00 for his loss of
earning capacity and other damages.

Art. 248 of the Revised Penal Code reads:

Art. 248. Murder. Any person who, not falling within the provisions of Article 246 shall kill
another, shall be guilty of murder and shall be punished by reclusion temporal in its maximum
period to death31 if committed with any of the following circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed men, or
employing means to weaken the defense or of means or persons to insure or afford impunity.

xxx-xxx-xxx

5. With evident premeditation.

xxx-xxx-xxx

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.32 In this case, accused-appellant, whose face was covered by a
handkerchief; approached the victim, who was merely standing by the gate in front of his
house, and shot him. The victim was undoubtedly caught unaware and had no chance of
putting up any defense. Clearly, treachery attended the commission of the crime since the
attack, although frontally, was no less sudden and unexpected, giving the victim no
opportunity to repel it or offer any defense of his person.33

The trial court further established that there was evident premeditation and that accused-
appellant used "craft, fraud or disguise" in committing his dastardly act:

. . . When DANDO (accused-appellant) boarded the tricycle parked in front of the residence of
Angelito Millares, Jr., he did so not to rest or sleep there. He was there, with a handkerchief
over his face, lying in wait for Cesar Castro to come out and stand by the gate of his house as
he customarily did while taking a rest. And DANDO stayed inside the tricycle for a couple of
hours, like an eagle waiting for its prey. From the parked tricycle, DANDO could clearly see the
gate of Cesar Castro's house, 100 to 150 meters away. DANDO'S stay inside the tricycle lasted
for about two (2) hours, a sufficient time for him to reflect on the consequences of his plan to
kill Cesar Castro. And when Cesar Castro did finally come out, and stood there unarmed by the
gate of his house, DANDO swiftly swooped down on his prey and triggered the burst from his
service firearm which snuffed the life of his victim.34

Given the foregoing attendant aggravating circumstances, the trial court properly sentenced
accused-appellant to suffer the penalty of reclusion perpetua. However, the amount it awarded
in favor of the heirs of the victim should be modified in accordance with prevailing
jurisprudence.

The trial court correctly awarded the amount of P50,000 as indemnity for the death for Cesar
Castro. Said amount is awarded without need of further proof other than the death of the
victim.35 In addition, the heirs are also entitled to receive a compensation for the loss of
earning capacity of the victim. The formula for computing the same as established in decided
cases36 is as follows:

Net Earning Capacity = Life Expectancy x Gross Annual Income - Necessary Living Expenses

The life expectancy is equivalent to two thirds (2/3) multiplied by the difference of 80 and the
age of the deceased.37 Since Castro was 47 years old at the time of his death, his life
expectancy was 22 more years.38 Celso Castro testified that his father earned P3,000.00
monthly or P36,000.00 annually from the sash factory. In addition, the victim's annual income
from farming, as found by the trial court, was P53,000.00. The gross annual income of the
deceased was P89,000.00. Allowing for necessary living expenses of fifty percent (50%) of his
gross earnings, his total net earning capacity amounts to P979,000.00.39

As to the expenses actually incurred by the family of the victim for the wake and burial, Celso
Castro was able to prove during trial that they incurred the sum of P39,974.00. The amount of
P35,974.00 awarded by the trial court as reimbursement of funeral expenses is, accordingly,
increased to P39,974.00.

WHEREFORE, premises considered, the decision of the trial court is hereby AFFIRMED with
MODIFICATION that accused-appellant shall pay the heirs of the victim the following amounts:

1. death indemnity in the amount of P50,000.00;

2. compensation for loss of earning capacity in the amount of P979,000.00; and

3. reimbursement of funeral expenses in the amount of P39,974.00.

SO ORDERED.

G.R. No. L-33304 December 13, 1930

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
CONSTANTE SOTELO, ET AL., defendants.
CONSTANTE SOTELO, appellant.

Alberto Reyes for appellant.

Attorney-General Jaranilla for appellee.

VILLAMOR, J.:

The Sotelo brothers, namely, Constante, Dominador, and Vicente, were prosecuted in the
Court of First Instance of Ilocos Sur for the crime of homicide under the following information:

That on or about the night of December 24, 1929, in the municipality of Narvacan,
Province of Ilocos Sur, Philippine Islands, the said accused Constante, Dominador,
and Vicente Sotelo, armed with a penknife, a stick, and an iron bar, respectively,
acting together and helping one another, did willfully, maliciously, unlawfully, and
feloniously with treachery and evident premeditation attack, beat up, and commit
assault upon the person of Ignacio Cambaliza, inflicting a mortal wound upon him on
the level of the left nipple, which penetrated the left lung and the left ventricle of the
heart, another on the outward surface of the right arm, a bruise on the nose and
another on the upper lip: as a result of which said Ignacio Cambaliza died after a few
minutes.

Contrary to law; with the aggravating circumstance of abuse of superior strength.

After the trial, the court below found the defendant Constante Sotelo guilty of the crime of
homicide, and the defendants Vicente and Dominador Sotelo of slight physical injuries,
sentencing the former to suffer twelve years and one day of reclusion temporal, to indemnify
the heirs of the deceased in the sum P1,000, with the accessories of law, and to pay one-
third of the costs; and ordering the release of Vicente and Dominador Sotelo in view of the
fact that they had already been imprisoned since December 24, 1929, with two-thirds of the
costs de oficio.

The defendant Constante Sotelo appealed from this judgment, and his counsel has made the
following assignments of error:

I. The trial court erred in accepting the whole theory of the prosecution:

Despite the obvious incongruity between the information and the evidence adduced
at the trial;
lawphi 1>net

Despite the proof that the iron bar, Exhibit B of the prosecution and Exhibit 1 of the
defense, belong to the principal witness, Baltazar Capistrano, and not to any of the
defendants;

Despite the fact that it has been proved that the incident took place in the yard of the
defendants' house and not on the public road;

Despite the fact that Baltazar Capistrano deliberately concealed the place where the
deceased expired, fearing his participation in the tragedy should come to light; and

Despite the fact that the chief of police acted with evident partiality towards
Cambaliza and Capistrano, in intervening immediately after the incident had
occurred, hiding the whip or riding crop, which the other local authorities found
hanging from the right arm of the deceased, and for the other reasons.

II. The trial court erred in finding the following facts: that Dominador Sotelo hit the
deceased across the mouth with the crop Exhibit B, Vicente Sotelo stabbed him on
the right shoulder with the penknife Exhibit D, and Constante Sotelo stabbed him
under the nipple.

III. The trial court erred in refusing to consider the plea of self-defense alleged and
proved by the defendant-appellant, Constante Sotelo, notwithstanding the fact that
said defense is strongly corroborated by Exhibits O, 5, and 4, which form a part of
the res gestae.

IV. The lower court erred in refusing to consider the motion of February 1, 1930,
declaring afterwards that, as the defendant has shown graphically, the latter could
not have touched the victim's left breast in stabbing him, or the wound would not
have been in the direction described in Dr. Nolasco's certificate; in spite of the fact
that it had made contrary declarations during the trial, which estop it from making the
subsequent holdings.

V. The trial judge erred in convicting the defendant appellant, Constante Sotelo.

The record shows that at about 8 o'clock in the evening of the 24th of December, 1929,
Ignacio Cambaliza started for the barrio of Ravadabia, in the municipality of Narvacan, Ilocos
Sur, accompanied by Baltazar Capistrano. They took the provincial road leading to said
barrio and as they approached the Sotelo house, they bid the time of day, asking whether
they might pass by, according to the custom of the place. They were barely 20 meters away
from the house, when the defendant Constante Sotelo, who had just finished his supper,
descended from the house towards the road, and, from the entrance of his yard, turned his
flashlight on the passers-by to see who they were. When Ignacio Cambaliza saw this, he
walked back to where Constante Sotelo stood and inquired why he turned his flashlight on
them, and what it was he wanted, winding up with a vulgar remark. When Constante's
brothers, who were then in the yard on the side of the road, saw Cambaliza's attitude, they
approached their brother to separate or defend him, whereupon Cambaliza's commenced
beating them with his iron crop, once striking Constante's arm. The brothers, in turn, fell
upon Cambaliza, Dominador striking him across the face with the stick he carried, and
Vicente wounding him in the right shoulder with a penknife. At this juncture, Capistrano
attempted to intervene, but he was warned by Vicente and probably by Dominador also, for
which reason he withdrew from the scene, and the fight then continued between Cambaliza
and Constante. In the course of this fight, Constante thrust a penknife into Cambaliza at
about the level of the left nipple, producing a wound which penetrated the left lung into the
left ventricle of the heart, resulting in his death a few minute later.

Witness Baltazar Capistrano, who was with the deceased, says that after Ignacio Cambaliza
had fallen lifeless, he went over to the municipal building to ask for help, and at once the
chief of police, the justice of the peace, and the municipal president repaired to the place
where the incident had occurred, placing the brothers under arrest that same night:
Constante with a penknife, Vicente with another penknife, and Dominador with a cane.

Doctor Antonio Nolasco examined Ignacio Cambaliza's body, and found a knife wound at
about the level of the left nipple, 2 1/2 centimeters long, and 2 1/2 inches deep; a knife
wound on the outward surface of the right arm, 4 centimeters deep; and bruises at the base
of the nose and on the upper lip, produced by a blunt instrument. According to the doctor the
breast wound which pierced the left lung and the left ventricle of the heart was the cause of
Ignacio Cambaliza's death.

The appellant admits he inflicted the injury which resulted in Ignacio Cambaliza's death, but
maintains he did so in self-defense. In support of this allegation it is insisted that the fight
took place in the yard of the defendants' house; that Vicente and Dominador went to help
their brother Constante when they saw Cambaliza attack him, but ran behind some sugar
cane near by in order to conceal themselves when pursued by Cambaliza; that the latter
fought hand to hand with Constante, choked him and threw himself upon him, and at that
instant Constante thrust a penknife into his ribs below the left nipple; that Capistrano
answered Cambaliza's call, saying that Constante had stabbed him, and, with the assistance
of Capistrano, Cambaliza succeeded in leaving the Sotelo yard and after a few steps fell
lifeless on the roadside, where his body was later found.

After examining the evidence of record, we believe the defense is, in a measure, supported
by the testimony of Baltazar Capistrano given before the justice of the peace of Narvacan. In
considering this proof it is well to remember that the justice of the peace of Narvacan testified
in the case that Baltazar Capistrano made two statements before him — in the investigation
prior to the arrest of the defendants, which is Exhibit 9, and in the course of the preliminary
investigation, embodied in Exhibit 10. Counsel for the defense attempted to examine
Capistrano on these two statements, but the fiscal objected, and the court sustained the
objection on the ground that the best evidence would be Capistrano's own statements taken
down in writing. Counsel then required the fiscal to present said documents, and the latter
delivered to him the aforementioned Exhibits 9 and 10, which were offered in evidence by
the defense. The fiscal reiterated his objection to that evidence on the ground that the
documents were not identified; but the record shows that they had been delivered by the
fiscal himself to counsel for the defense, and he is therefore precluded from setting up the
lack of identification, whereupon the court doubtless ruled them in, and the fiscal failed to
take exception therefrom.

The record further shows that counsel for the appellant sought to have the witness
Capistrano explain the contradiction between his statement in Exhibit 10 and his testimony at
the hearing, but the fiscal objected and the court sustained the objection. Capistrano has
thus failed to explain the contradiction noted between Exhibit 10 and his testimony before the
trial court.

We believe the trial judge erred in sustaining the fiscal's objection to having witness
Capistrano explain the contradiction between his statement in Exhibit 10, and his testimony
before the trial court at the hearing. But be that as it may, we are of opinion that said
documents Exhibits 9 and 10 have been duly introduced into the case as evidence for the
defense and must therefore be taken into consideration in rendering judgment.

In said Exhibit 10, witness Capistrano, among other things, affirms the following:

As we passed by Constante was flashlighting us and he was standing by the door of

their yard. I did not see any body by him. We were then about 20 meters away from
him when he rushed to us.

Ignacio was the first one who uttered bad words against Constante. Ignacio had a
whip wrapped with lead.

Other than this time I declared before the justice of the peace.

As Dominador came he struck Ignacio, but Ignacio defended. Vicente struck and
Constante rushed in and then they wrestled against each other and I tried to
separate them.

I was only 5 meters away from them when they first wrestled. It was dark at that time
but I saw what happened by the aid of my flashlight.

I am very sure that Exhibit A was the bar which Vicente was holding and Exhibit B
was the knife that Constante used in stabbing Ignacio.

While they were wrestling Constante was under Ignacio during which time, I saw
Constante bring out his knife.

The same witness testified before the trial court as follows:

Q. Do you know whether anything extraordinary took place along the road? — A. Yes
sir; for when we came near the house of Francisco Sotelo, we saw Constante,
Dominador, and Vicente Sotelo in the yard of the house. I and my companion said
"we are passing, sir," but they did not answer, and they focused their flashlight on us.
And when we came to within ten meters, they still kept the flashlight focused on us,
and then my companion said: "Why do you turn your flashlight on us? Have we not
greeted you in passing?"
 Q. What did the Sotelo brothers, Constante, Dominador, and Vicente do when they
heard Ignacio Cambaliza say this? — A. After Ignacio Cambaliza had said that, they
switched off the light, and we continued on.

Q. What else? — A. After we had proceeded about 20 meters, someone came up

behind us with a flashlight saying: "Wait! your mother's . . .! you cannot say bad
words when you pass here."

Q. What else? — A. When they had said this, Ignacio Cambaliza stopped and said: "I
have used no bad word."

Ignacio Cambaliza interrupted Constante Sotelo saying "I did not say that." And Dominador,
in turn, said, "You didn't say anything, your mother's . . .!"

Q. And what did Dominador Sotelo do then? — A. Immediately after saying, "you
didn't say anything, your mothers . . .! he struck him across the face with a stick.

xxx xxx xxx

Q. And what else happened? — A. After that blow delivered by Dominador Sotelo, he
was stunned. While he was so stunned, Vicente Sotelo stabbed him with a penknife
on the right shoulder; and Ignacio Cambaliza, still stunned, turning about; and
Constante Sotelo stabbed him in the region of the heart with a penknife.

Comparing the two statements quoted above, it will be seen that the witness Capistrano
affirmed in Exhibit 10 that he saw Constante standing at the entrance of his yard, alone; that
the deceased was the first to make vulgar remarks to Constante; and that during the fight
Constante was under Cambaliza when he drew his penknife to stab him. On the other hand,
testifying before the trial court, the said witness Capistrano stated that he and the deceased
saw the three brothers, Constante, Dominador, and Vicente Sotelo in the yard of the house;
that one of these brothers was the first to make insulting remarks to Cambaliza, and that
while the two brothers were attacking Cambaliza, Constante stabbed him in the chest with a
penknife.

We believe Capistrano's testimony appearing in Exhibit 10 as to Constante's position when

he wounded Cambaliza, must be accepted, not only because it was given two days after the
incident, but because it has been corroborated by the witnesses for the defense. (U.
S. vs. Capisonda, 1 Phil., 575; and U. S. vs. Rafael, 23 Phil., 184.)

As to who started the aggression, there is an obvious contradiction between the testimony of
Capistrano and that of the witnesses for the defense. But in the light of sound judgment, we
are inclined to believe that the deceased started the aggression, provoked by the offensive
language used by Constante and his brothers, imputing to him the utterance of vulgar
language against them. In such a situation the deceased naturally used his whip against
those who were in front of him, striking Constante's arm. We therefore believe this is a case
of incomplete self-defense, wherein the appellant was unlawfully attacked by the deceased
and compelled to employ reasonable means to defend himself, but he is responsible for
provoking the attack. (U. S. vs. Ancheta, 1 Phil., 30; U. S. vs. McCray, 2 Phil., 545.)
According to article 86 of the Penal Code the penalty next below that provided in article 404
of said Code must be imposed upon the appellant, that is, prision mayor in its minimum
degree, or six years and one day, with the accessories of law, and to indemnify the family of
the deceased in the amount of P500. And with this modification the judgment appealed from
is affirmed in all other respects, with costs against the appellant. So ordered.

Johnson, Street, Malcolm, Ostrand, Johns and Villa-Real, JJ., concur

G.R. No. L-6025 May 30, 1964

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
AMADO V. HERNANDEZ, ET AL., accused,
AMADO V. HERNANDEZ, ET AL., defendants-appellants.

-----------------------------

G.R. No. L-6026 May 30, 1964

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BAYANI ESPIRITU, ET AL., accused,
BAYANI ESPIRITU and TEOPISTA VALERIO, defendants-appellants.

LABRADOR, J.:

This is the appeal prosecuted by the defendants from the judgment rendered by the Court of
First Instance of Manila, Hon. Agustin P. Montesa, presiding, in its Criminal Case No.
15841, People vs. Amado V. Hernandez, et al., and Criminal Case No. 15479, People vs.
Bayani Espiritu, et al. In Criminal Case No. 15841 (G.R. No. L-6026) the charge is for
Rebellion with Multiple Murder, Arsons and Robberies; the appellants are Amado V.
Hernandez, Juan J. Cruz, Genaro de la Cruz, Amado Racanday, Fermin Rodillas and Julian
Lumanog; Aquilino Bunsol, Adriano Samson and Andres Baisa, Jr. were among those
sentenced in the judgment appealed from, but they have withdrawn their appeal. In Criminal
Case No. 15479 (G.R. No. L-6026) the charge is for rebellion with murders, arsons and
kidnappings; the accused are Bayani Espiritu Teopista Valerio and Andres Balsa, Jr.; they all
appealed but Andres Balsa, Jr. withdrew his appeal.

The information filed against defendants Hernandez and others in Criminal Case No. 15481
alleged:

I. That on or about March 15, 1945, and for some time before the said date and
continuously thereafter, until the present time, in the City of Manila, Philippines, and
the place which they had chosen as the nerve center of all their rebellious activities in
the different parts of the Philippines, the said accused, conspiring, confederating and
cooperating with each other, as well as with the thirty-one (31) defendants charged in
Criminal Cases Nos. 19071, 14082, 14270, 14315 and 14344 of the Court of First
Instance of Manila (decided May 11, 1951) and also with others whose whereabouts
and identities are still unknown, the said accused and their other co-conspirators,
being then high ranking officers and/or members of, or otherwise affiliated with the
Communist Party of the Philippines (P.K.P.), which is now actively engaged in an
armed rebellion against the Government of the Philippines thru act theretofore
committed and planned to be further committed in Manila and other places in the
Philippines, and of which party the "Hukbong Mapagpalaya Ng Bayan"(H.M.B.)
otherwise or formerly known as the "Hukbalahaps" (Huks), unlawfully and did then
 and there willfully, unlawfully and feloniously help, support, promote, maintain, cause,
direct and/or command the "Hukbong Mapagpalaya Ng Bayan" (H.M.B.) or the
"Hukbalahaps" (Huks) to rise publicly and take arms against the Republic of the
Philippines, or otherwise participate in such armed public uprising, for the purpose of
removing the territory of the Philippines from the allegiance to the government and
laws thereof as in fact the said "Hukbong Mapagpalaya Ng Bayan" or "Hukbalahaps"
have risen publicly and taken arms to attain the said purpose by then and there
making armed raids, sorties and ambushes, attacks against police, constabulary and
army detachments as well as innocent civilians, and as a necessary means to
commit the crime of rebellion, in connection therewith and in furtherance thereof,
have then and there committed acts of murder, pillage, looting, plunder, arson, and
planned destruction of private and public property to create and spread chaos,
disorder, terror, and fear so as to facilitate the accomplishment of the aforesaid
purpose, as. follows, to wit: (Enumeration of thirteen attacks on government forces or
civilians by Huks on May 6, 1946, August 6, 1946, April 10, 1947, May 9, 1947,
August 19, 1947, June, 1946, April 28, 1949, August 25, 1950, August 26, 1950,
August 25, 1950, September 12, 1950, March 28, 1950 and March 29, 1950.)

II. That during the period of time and under the same circumstances herein-above
indicated the said accused in the above-entitled case, conspiring among themselves
and with several others as aforesaid, willfully, unlawfully and feloniously organized,
established, led and/or maintained the Congress of Labor Organizations (CLO),
formerly known as the Committee on Labor Organizations (CLO), with central offices
in Manila and chapters and affiliated or associated labor unions and other "mass
organizations" in different places in the Philippines, as an active agency, organ, and
instrumentality of the Communist Party of the Philippines (P.K.P.) and as such
agency, organ, and instrumentality, to fully cooperate in, and synchronize its
activities — as the CLO thus organized, established, led and/or maintained by the
herein accused and their co-conspirators, has in fact fully cooperated in and
synchronized its activities with the activities of the "Hukbong Mapagpalaya Ng
Bayan" (H.M.B.) and other organs, agencies, and instrumentalities of the Communist
Party of the Philippines (P.K.P.), to thereby assure, facilitate, and effect the complete
and permanent success of the above-mentioned armed rebellion against the
Government of the Philippines.

The information filed against the defendants in Criminal Case No. 15479, Bayani Espiritu
Andres Baisa, Jr. and Teopista Valerio, alleges:

That on or about the 6th day of May, 1946, and for sometime prior and subsequent
thereto and continuously up to the present time, in the City of Manila, the seat of the
government of the Republic of the Philippines, which the herein accused have
intended to overthrow, and the place chosen for that purpose as the nerve center of
all their rebellious atrocities in the different parts of the country, the said accused
being then high ranking officials and/or members of the Communist Party of the
Philippines (P.K.P.) and/or of the "Hukbong Mapagpalaya Ng Bayan" (H.M.B.)
otherwise or formerly known as the "Hukbalahaps" (HUKS), the latter being the
armed forces of said Communist Party of the Philippines; having come to an
agreement with the 29 of the 31 accused in Criminal Cases Nos. 14071, 14082,
14270, 14315, 14344 of the Court of First Instance of Manila and decided to commit
the crime of rebellion, and therefore, conspiring and confederating with all of the 29
accused in said criminal cases, acting in accordance with their conspiracy and in
furtherance thereof, together with many others whose whereabouts and identities are
still unknown up to the filing of this information, and helping one another, did then
 and there willfully, unlawfully and feloniously promote maintain, cause, direct and/or
command the "Hukbong Mapagpalaya Ng Bayan", (HMB) or the Hukbalahaps
(HUKS) to rise publicly and take Arms against the Government or otherwise
participate therein for the purpose of overthrowing the same, as in fact, the said
"Hukbong Mapagpalaya Ng Bayan" or Hukbalahap (HUKS) have risen publicly and
taken arms against the Government, by then and there making armed raids, sorties
and ambushes, attacks against police, constabulary and army detachment, and as a
necessary means to commit the crime of rebellion, in connection therewith and in
furtherance thereof, by then and there committing wanton acts of murder, spoilage,
looting, arson, kidnappings, planned destruction of private and public buildings, to
create and spread terrorism in order to facilitate the accomplishment of the aforesaid
purpose, as follows to wit: (Enumeration of thirteen attacks on Government forces or
civilians by Huks on May 6, 1946. August 6, 1946, April 10, 1947, May 9, 1947,
August 19, 1947, June 1946, April 28, 1949, August 25, 1950, August 26, 1950,
August 25, 1950, September 12, 1950, March 28, 1950 and March 29, 1950).

A joint trial of both cases was held, after which the court rendered the decision subject of the
present appeals.

APPEAL OF AMADO V. HERNANDEZ

After trial the Court of First Instance found, as against appellant Amado V. Hernandez, the
following: (1) that he is a member of the Communist Party of the Philippines and as such had
aliases, namely, Victor or Soliman; (2) that he was furnished copies of "Titis", a Communist
publication, as well as other publications of the Party; (3) that he held the position of
President of the Congress of Labor Organizations; (4) that he had close connections with the
Secretariat of the Communist Party and held continuous communications with its leaders and
its members; (5) that he furnished a mimeographing machine used by the Communist Party,
as well as clothes and supplies for the military operations of the Huks; (6) that he had
contacted well-known Communists coming to the Philippines and had gone abroad to the
WFTU conference Brussels, Belgium as a delegate of the CLO, etc. Evidence was also
received by the court that Hernandez made various speeches encouraging the people to join
in the Huk movement in the provinces.

The court also found that there was a close tie-up between the Communist Party and the
Congress of Labor Organizations, of which Hernandez was the President, and that this
Congress was organized by Hernandez in conjunction with other Huks, namely: Alfredo
Saulo, Mariano Balgos, Guillermo Capadocia, etc.

We will now consider the nature and character of both the testimonial as well as the
documentary evidence, independently of each other, to find out if the said evidence supports
the findings of the court.

Testimonial Evidence

Amado V. Hernandez took the oath as member of the Communist Party in the month of
October, 1947, at the offices of the Congress of Labor Organizations at 2070 Azcarraga in
the presence of Guillermo Capadocia, Ramon Espiritu, Pedro Castro, Andres Balsa, etc. As
a Communist he was given the pseudonyms of Victor and Soliman, and received copies of
the Communist paper "Titis". He made various speeches on the following dates and
occasions:
 (1) On August 29, 1948 before the Democratic Peace Rally of the CLO at Plaza
Miranda, in which he announced that the people will soon meet their dear comrade in
the person of Comrade Luis Taruc.

(2) On September 4, 1948 he conferred with Hindu Khomal Goufar at the Escolta, at
which occasion Balgos told Goufar that the PKM, CLO and the Huks are in one effort
that the PKM are the peasants in the field and the Huks are the armed forces of the
Communist Party; and the CLO falls under the TUD of the Communist Party. 1äw phï1.ñët

(3) On October 2, 1948 he went abroad to attend the Second Annual Convention of
the World Federation of Trade Unions and after arrival from abroad a dinner was
given to him by the people of Gagalangin, at which Hernandez delivered a speech
and he said that he preferred to go with the Huks because he felt safer with them
than with the authorities of the Government.

(4) In April, 1949, he made a speech before a group of tenants in Malabon attacking
the frauds in the 1947 elections, graft and corruption in the elections and that if
improvement cannot be made by the ballots, they could be made by bullets; and
enjoined the people to go to the hills and join Luis Taruc the head of the dissidents in
the Philippines.

(5) On October 2, 1949 he delivered a speech on the occasion of the

commemoration of the World Peace at the CLO headquarters at 330 P. Campa. He
attacked the city mayor and incited the people to go to Balintawak and see Bonifacio
there and thereafter join four comrades under the leadership of Luis Taruc.

(6) On October 16, 1949 he delivered a speech before a convention of the

unemployed at 330 P. Campa. He asked the unemployed to approve a resolution
urging the Government to give them jobs. In conclusion he said that if the
Government fails to give them jobs the only way out was to join the revolutionary
forces fighting in the hills. He further said that Mao Tse Tung, leader of the People's
Army in China, drove Chiang Kai Shek from his country, and that Luis Taruc was
also being chased by Government forces run by puppets like Quirino, etc.

(7) On January 13, 1950 there was another meeting at 330 P. Campa. In his talk
Hernandez expressed regret that two foremost leaders of the CLO, Balgos and
Capadocia, had gone to the field to join the liberation army of the HMB, justifying
their going out and becoming heroes by fighting in the fields against Government
forces until the ultimate goal is achieved.

The above evidence was testified to by Florentino Diolata who was the official photographer
of the CLO since August, 1948.

On the tie-up between the Communist Party and the CLO Guillermo Calayag, a Communist
and a Huk from 1942 to 1950, explained:

(1) The ultimate goal of the Communist Party is to overthrow the president
government by force of aims and violence; thru armed revolution and replace it with
the so-called dictatorship of the proletariat the Communist Party carries its program
of armed overthrow of the present government by organizing the HMB and other
forms of organization's such as the CLO, PKM, union organizations, and the
professional and intellectual group; the CLO was organized by the Trade Union
Division TUD of the Communist Party.

(2) A good majority of the members of the Executive Committee and the Central
Committee of the CLO were also top ranking officials of the Communist Party;
activities undertaken by the TUD - the vital undertaking of the TUD is to see that the
directives coming from the organizational bureau of the Communist Party can be
discussed within the CLO especially the Executive Committee. And it is a fact that
since a good majority of the members of the Executive Committee are party
members, there is no time, there is no single time that those directives and decisions
of the organizational department, thru the TUD are being objected to by the
Executive Committee of the CLO. These directives refer to how the CLO will conduct
its functions. The executive committee is under the chairmanship of accused Amado
V. Hernandez.

(3) The CLO played its role in the overall Communist program of armed overthrow of
the present government and its replacement by the dictatorship of the proletariat by
means of propaganda - by propagating the principles of Communism, by giving
monetary aid, clothing, medicine and other forms of material help to the HMB. This
role is manifested in the very constitution of the CLO itself which expounded the
theory of classless society and the eradication of social classes (par. 5, Sec. 1, Art.
2, page 18 of the CLO Constitution contained in the Fourth Annual Convention
Souvenir Program of the CLO Exh. "V-1579"). Thru propaganda, the CLO promoted
the aims of Communist Party and disseminated Communist ideas by:

(a) The conspicuous display of the portrait or, pictures of Crisanto

Evangelista (Exh. V-1662), founder of Communism in the Philippines, in the
session hall of the CLO headquarters at 2070 Azcarraga and then at 330 P.
Campa;

(b) The distribution of foreign communist reading materials such as the World
Federation of Trade Union Magazine, International Union of Students
magazine, Voice magazine of the marine cooks of the CLO, World
Committee of the Defenders of the Peace magazine, Free Bulgaria
magazine, Soviet Russia Today magazine and World Federation of
Democratic Youth magazine (Exhs. V-911, V-907, V-910, V-899, V-912, V-
853, W-996 and V-967);

(c) The publication and distribution of some local subversive publications

such as the "Titis", "Bisig", Kidlat", which are Communist Party organs; "The
Philippine Labor Demands Justice" and "Hands Off Korea" authored by
accused Amado V. Hernandez;

(d) Principles of Communism were also propagated thru lectures, meetings,

and by means of organization of committees in the educational department
as well as researches in the Worker's Institute of the CLO.

(4) The CLO also helped carry out the program of the Communist Party thru
infiltration of party members and selected leaders of the HMB within the trade unions
under the control of the CLO. The Communist Party thru the CLO assigned
Communist Party leaders and organizers to different factories in order to organize
unions. After the organization of the union, it will affiliate itself with the CLO thru the
 Communist leaders and the CLO in turn, will register said union with the Department
of Labor; and the orientation and indoctrination of the workers is continued in the line
of class struggle. After this orientation and infiltration of the Communist Party
members and selected leaders of the HMB with the trade unions under the control of
the CLO is already achieved and the group made strong enough to carry out its aims,
they will begin the sporadic strikes and the liquidation of anti-labor elements and anti-
Communist elements and will create a so-called revolutionary crisis. That
revolutionary crisis will be done for the party to give directives to the HMB who are
fighting in the countrysides and made them come to the city gates. The entry of the
HMB is being paved by the simultaneous and sporadic strikes, by ultimate general
strikes thru the management of the CLO.

Important Documents Submitted at Trial

1. Documents which proved that Amado V. Hernandez used the aliases "Victor", or
was referred to as "Victor" or "Soliman".

(a) Letter dated April 23, 1950 (signed) by Victor addressed to Julie telling
the latter of his sympathies for other communists, describing his experiences
with Communists abroad, telling Julie to dispose of materials that may be
sent by Victor. (Exh. D-2001-2004)

(b) "Paano Maisasagawa, etc." — mentions different groups of labor unions

of which Victor heads one group, consisting of the MRRCO, PTLD, PGWU,
EMWU and IRWU (Exh. C-2001-2008) Cadres assigned to different
industries. (Exh. V-40-41)

(c) Handwritten certificate of Honofre Mangila states that he knew Amado

Hernandez as Victor from co-party members Hugo and Ely. (Exh. LL)

(d) Letter of Elias to Ka Eto requesting the latter to deliver attached letter to
Victor. (Exh. 1103)

(e) Saulo's letter about his escape, asks Victor why his press statement was
not published in the newspapers. (Exh. C-362) Letter was however published
by Hernandez in the Daily Mirror.

(f) Letter of Taruc to Maclang directing the latter to give copy of Huk Story to
Victor. (Exh. D-463-64)

(g) Notes of Salome Cruz, Huk courier, stating that she went to Soliman at
Pampanga St. to bring to the latter communications from the Communist
Party. (Exh. D-1203) That Soliman was given copies of "Titis". (Exh. D-1209)

(h) SEC directions to Politburo members, Soliman not to be involved with

Nacionalista Rebels. (Exh. F-92-93. SEC)

(i) Letter of SEC to Politburo reporting that Saulo be sent out and Soliman
has "tendencies of careerism and tendency to want to deal with leaders of
the party"; that he should be asked to choose to go underground or fight
legally. (Exh. F-562)
 (j) Explanation given by Hernandez why he did not join Saulo in going
underground. (Exh. V-87) (1) His election as councilor until December, 1951.
(Exhs. V-42, W-9) (2) His election as President of CLO until August of
following year. (Exhs. V-42, W-9)

2. Letters and Messages of Hernandez.

(a) To Lyden Henry and Harry Reich, tells Huks still fighting. (Exh. V-80)

(b) To SOBSI Jakarta — that Filipinos are joining other communist countries
of the East. (Exh. V-82)

(c) Press release on Saulo's disappearance published by Amado Hernandez.

(Exh. W-116-120)

(d) To Hugh and Eddie, July 8, 1949 — Extends greetings to National Union
of Marine Cooks and Stewards, states that labor has one common struggle
— "the liberation of all the peoples from the chains of tyranny, fascism and
imperialism". (Exh. V-259)

(e) To Kas. Pablo and Estrada - talks of the fight - fight of labor. (Exh. V-85-
89)

(f) Appeal to the Women and Asia. (Exh. V-5-10)

(g) Letter to Julie (Exh. V-2001-2004)

(h) Letter to Chan Lieu - states that leaders during the war are being
persecuted, like Taruc. Tells of reward of P100,000.00 on Taruc's head.
(Exh. X-85-88)

(i) Letter to John Gates of the Daily Worker — condemns Wall Street
maneuvers; corruption and graft in Quirino administration, etc. (Exh. V-83)

(j) Cablegram: CLO join ILWU commends Harry Bridges, US Communist.

(Exh. V-79)

(k) Communication of Hernandez to CLO at MRRCO — Praises Balgos and

Capadocia for joining the Huks. (Exhs. V-12-22, V-289)

(l) "Philippine labor Demands Justice" — Attacks czars of Wall Street and
U.S. Army and Government. (Exh. V-94) .

(m) Letter to Taruc — June 28, 1948.-States solidarity among the CLO Huks
and PKM. Attacks North Atlantic Pact. Praises Mao Tse Tung (contained in
Exh. V-94)

(n) "Philippines Is Not A Paradise" — States of a delegation to Roxas

attacking unemployment. (Exh. V-90-93)

(o) Article "Progressive Philippines" — (Exh. V-287)

 (p) Article "Hands Off Korea" — (Exhs. V-488-494, 495-501, 509-515, W-25-
26)

(q) "Limang Buwang Balak Sa Pagpapalakas Ng Organisasyon". (Exh. X-35-

38)

(r) Press statement of Hernandez — opposes acceptance of decorations

from Greece by Romulo. (Exh. V-72)

3. Other Activities of Hernandez.

(a) Hernandez received clothes from Pres. Lines thru P. Campa, which
clothes he sent to the field. Letters show of sending of supplies to Huks.
(Exh. S-383)

(b) Hernandez was asked to furnish portable typewriter, which he did furnish
to Huks. (Exh. C-364)

(c) Hernandez brought Taruc's letter about facts and incidents about Huks to
Bulosan for inclusion in Bulosan's book. (Exh. FF-1)

(d) Had conference with Kumar Goshal a Hindu, about the Huks and their
armed forces. (Photographs, Exhs. X-6 RR-54-55A)

(e) Supervised taking of pictures of sons of Capadocia and Joven.

(Photographs, Exhs. T-1, RR-136-138A)

(f) Had knowledge of the going underground of Capadocia and Balgos and
issued press release about their going underground. (Exh. F-91)

(g) Victor mentioned to continue as contact for Chino. (Exh. C-362)

(h) Taruc's letter to Maclang shows that Soliman had sent 7 lessons to Taruc.
(Exh. D-451-451-A)

(i) Associated with fellow ranking Communist leaders.

The Court upon consideration of the evidence submitted, found (1) that the Communist Party
was fully organized as a party and in order to carry out its aims and policies a established a
National Congress, a Central Committee (CC), Politburo PB, Secretariat (SEC), Organization
Bureau (OB), and National Courier or Communication Division (NCD), each body performing
functions indicated in their respective names; (2) that in a meeting held on August 11, 1950
the SEC discussed the creation of a Military Committee of the Party and a new GHQ, under
which on September 29, 1950 the SEC organized a special warfare division, with a
technological division; (3) that on May 5, 1950 a body known as the National Intelligence
Division was created, to gather essential military intelligence and, in general, all information
useful for the conduct of the armed struggle (4) that a National Finance Committee was also
organized as a part of the Politburo and answerable to it; (5) that the country was divided into
10 Recos, the 10th Reco comprising the Manila and suburbs command; (6) that since
November, 1949 the CPP had declared the existence of a revolutionary situation and since
then the Party had gone underground and the CPP is leading the armed struggle for national
liberation, and called on the people to organize guerrillas and coordinate with the HMB on
the decisive struggle and final overthrow of the imperialist government; (7) that in
accordance with such plan the CPP prepared plans for expansion and development not only
of the Party but also of the HMB; the expansion of the cadres from 3,600 in July 1950 to
56,000 in September 1951, the HMB from 10,800 in July 1950 to 172,000 in September
1951, et seq.

Around the month of January, 1950 it was decided by the CPP to intensify HMB military
operations for political purposes. The Politburo sanctioned the attacks made by the Huks on
the anniversary of the HMB on March 25, 1950. The HMB attacks that were reported to the
PB were those made in May, 1946; June, 1946; April 10, 1947; May 9, 1947; August 19,
1947; August 25, 1950; August 26, 1950; October 15 and 17, 1950; May 6, 1946; August 6,
1946; April 10, 1947; May 9, 1947; August 19, 1947; April 29, 1949; August 25, 1950; August
26, 1950; September 12, 1950; March 26, 1950; March 29, 1950.

The theory of the prosecution, as stated in the lower court's decision, is as follows:

The evidence does not show that the defendants in these cases now before this
Court had taken a direct part in those raids and in the commission of the crimes that
had been committed. It is not, however, the theory of the prosecution that they in fact
had direct participation in the commission of the same but rather that the defendants
in these cases have cooperated, conspired and confederated with the Communist
Party in the prosecution and successful accomplishment of the aims and purposes of
the said Party thru the organization called the CLO (Congress of Labor
Organizations).

The Court found that the CLO is independent and separate from the CPP, organized under
the same pattern as the CPP, having its own National Congress, a Central Committee (which
acts in the absence of and in representation of the National Congress), an Executive
Committee (which acts when the National Congress and the Executive Committee are not in
session), and seven permanent Committees, namely, of Organization, Unemployment and
Public Relations, Different Strikes and Pickets, Finance, Auditing, Legislation and Political
Action. Members of the Communist Party dominate the committees of the CLO. The
supposed tie-up between CPP and the CLO of which Hernandez was the President, is
described by the court below in finding, thus:

Just how the CLO coordinates its functions with the Communist Party organ under which it
operates was explained by witness Guillermo S. Calayag, one-time ranking member of the
Communist Party and the CLO who typewrites the "Patnubay sa Education" from a
handwritten draft of Capadocia, which is one of the texts used in the Worker's institute of the
CLO. According to him, the CLO plays its role by means of propaganda, giving monetary aid,
clothing, medicine and other material forms of help to the HMB, which constitutes the armed
forces of the Communist Party. Propaganda is done by lectures, meetings, and the
organization of committees of the educational department as well as researches at the CLO
Worker's Institute.

Another way of helping the Communist Party of the Philippines is by allowing the
Communist Party leaders to act as organizers in the different factories in forming a
union. These Party Members help workers in the factories to agitate for the
eradication of social classes and ultimately effect the total emancipation of the
working classes thru the establishment of the so-called dictatorship of the proletariat.
It is the duty of these Communist Party members to indoctrinate uninitiated workers
 in the union to become proselytes of the Communist Party ideology. After the right
number is secured and a union is formed under a communist leader, this union is
affiliated with the CLO and this in turn registers the same with the Department of
Labor. The orientation and indoctrination of the masses is continued with the help of
the CLO. The primary objective of the CLO is to create what is called a revolutionary
crisis. It seeks to attain this objective by first making demands from the employers for
concessions which become more and more unreasonable until the employers would
find it difficult to grant the same. Then a strike is declared. But the strikes are only
preparation for the ultimate attainment of the Communist goal of armed overthrow of
the government. After the workers in the factories have already struck in general at
the behest of the Communist Party thru the CLO a critical point is reached when a
signal is given for the armed forces of the Communist Party, the HMB, to intervene
and carry the revolution now being conducted outside to within the city.

On the basis of the above findings, the court below found Hernandez guilty as principal of the
crime charged against him and sentenced him to suffer the penalty of reclusion
perpetua with the accessories provided by law, and to pay the proportionate amount of the
costs.

Our study of the testimonial and documentary evidence, especially those cited by the Court
in its decision and by the Solicitor General in his brief, discloses that defendant-appellant
Amado V. Hernandez, as a Communist, was an active advocate of the principles of
Communism, frequently exhorting his hearers to follow the footsteps of Taruc and join the
uprising of the laboring classes against capitalism and more specifically against America and
the Quirino administration, which he dubbed as a regime of puppets of American
imperialism. But beyond the open advocacy of Communistic Theory there appears no
evidence that he actually participated in the actual conspiracy to overthrow by force the
constituted authority.

Hernandez is the founder and head of the CLO. As such, what was his relation to the
rebellion? If, as testified to by Guillermo S. Calayag, the CLO plays merely the role of
propagation by lectures, meetings and organization of committees of education by
Communists; if, as stated, the CLO merely allowed Communist Party leaders to act as
organizers in the different factories, to indoctrinate the CLO members into the Communist
Party and proselytize them to the Communist ideology; if, as also indicated by Calayag, the
CLO purports to attain the ultimate overthrow of the Government first by making demands
from employers for concessions until the employers find it difficult to grant the same, at which
time a strike is declared; if it is only after the various strikes have been carried out and a
crisis is thereby developed among the laboring class, that the Communist forces would
intervene and carry the revolution — it is apparent that the CLO was merely a stepping stone
in the preparation of the laborers for the Communist' ultimate revolution. In other words, the
CLO had no function but that of indoctrination and preparation of the members for the
uprising that would come. It was only a preparatory organization prior to revolution, not the
revolution itself. The leader of the CLO therefore, namely Hernandez, cannot be considered
as a leader in actual rebellion or of the actual uprising subject of the accusation. Hernandez,
as President of the CLO therefore, by his presidency and leadership of the CLO cannot be
considered as having actually risen up in arms in rebellion against the Government of the
Philippines, or taken part in the conspiracy to commit the rebellion as charged against him in
the present case; he was merely a propagandist and indoctrinator of Communism, he was
not a Communist conspiring to commit the actual rebellion by the mere fact of his presidency
of the CLO.
The court below declares that since November 1949 the Communist Party of the Philippines
had declared the existence of the revolutionary situation and since then the Party had gone
underground, with the CPP leading the struggle for national integration and that in the month
of January 1950, it was decided by the said Party to intensify the HMB military operations for
political purposes. The court implicates the appellant Hernandez as a co-conspirator in this
resolution or acts of the Communist Party by his mere membership thereto. We find this
conclusion unwarranted. The seditious speeches of Hernandez took place before November,
1949 when the CPP went underground. The court below has not been able to point out, nor
have We been able to find among all acts attributed to Hernandez, any single fact or act of
his from which it may be inferred that he took part in the deliberations declaring the existence
of a revolutionary situation, or that he had gone underground. As a matter of fact the
prosecution's evidence is to the effect that Hernandez refused to go underground preferring
to engage in what they consider the legal battle for the cause.

We have also looked into the different documents which have been presented at the time of
the trial and which were confiscated from the office of the Politburo of the Communist Party.
The speeches of Hernandez were delivered before the declaration by the Communist Party
of a state of revolutionary situation in 1949. Neither was it shown that Hernandez was a
member of the Executive Committee, or of the SEC, or of the Politburo of the Communist
Party; so NO presumption can arise that he had taken part in the accord or conspiracy
declaring a revolution. In short, there has been no evidence, direct or indirect, to relate or
connect the appellant Hernandez with the uprising or the resolution to continue or maintain
said uprising, his participation in the deliberations leading to the uprising being inferred only
from the fact that he was a communist.

The practice among the top Communists, as declared by the trial court appears to have been
for important members, if they intend actually to join the rebellion, to go underground, which
meant leaving the city, disappearing from sight and/or secretly joining the forces in the field.

The document, Exhibit F-562, which is quoted in the decision, contains the directive of the
SEC of September 1, 1950, to Saulo and Hernandez, which reads:

11. In view of the new developments in the city, send out Elias who prefers to work
outside. Present problem of fighting legally to Com. Soliman. If Soliman is prepared
for martyrdom, retain him to fight legally. If not, send him out with Elias. Same goes
with Com. Mino and other relatively exposed mass leaders.

And the lower court itself found that whereas Saulo went underground and joined the
underground forces outside the City, Hernandez remained in the City, engaged in the work of
propaganda, making speeches and causing the publication of such matters as the
Communist Party leaders directed him to publish.

That Hernandez refused to go underground is a fact which is further corroborated by the

following reasons (excuses) given by him for not going underground, namely (1) that his term
of councilor of the City of Manila was to extend to December, 1951; and (2) that he was
elected President of the CLO for a term which was to end the year 1951.

As a matter of fact the SEC gave instructions to Hernandez not to be involved with
Nacionalista Rebels, and reported to the Politburo that Hernandez "has tendencies of
careerism, and tending to want to deal with leaders of the Nacionalista Party instead of
following CPP organizational procedures."
The court below further found that Hernandez had been furnishing supplies for the Huks in
the field. But the very document dated December 3, 1949, Exhibit D-420422, cited in the
decision (printed, p. 49), is to the effect that clothes and shoes that Hernandez was
supposed to have sent have not been received. It is true that some clothes had been sent
thru him to the field, but these clothes had come from a crew member of a ship of the
American President Lines. He also, upon request, sent a portable typewriter to the SEC or
Politburo. Furthermore, a certain Niagara Duplicating machine received by Hernandez from
one Rolland Scott Bullard a crew member of the SS President Cleveland, appease later to
have been forwarded by him to the officers of the SEC or the Politburo.

Lastly, it further appears that Taruc and other CPP leaders used to send notes to appellant
Hernandez, who in turn issued press releases for which he found space in the local papers.
His acts in this respect belong to the category of propaganda, to which he appears to have
limited his actions as a Communist.

The acts of the appellant as thus explained and analyzed fall under the category of acts of
propaganda, but do not prove that he actually and in fact conspired with the leaders of the
Communist Party in the uprising or in the actual rebellion, for which acts he is charged in the
information. And his refusal to go underground because of his political commitments
occasioned by his term of election as president of the CLO and the impressions caused by
his acts on the Communist leaders, to the effect that he was in direct communication or
understanding with the Nacionalista Party to which he was affiliated, creates in Us the
reasonable doubt that it was not his Communistic leanings but his political ambitions, that
motivated his speeches sympathizing with the Huks. For which reason We hold that the
evidence submitted fails to prove beyond reasonable doubt that he has conspired in the
instigation of the rebellion for which he is held to account in this criminal case.

The question that next comes up for resolution is: Does his or anyone's membership in the
Communist Party per se render Hernandez or any Communist guilty of conspiracy to commit
rebellion under the provisions of Article 136 of the Revised Penal Code? The pertinent
provision reads:

ART. 136. Conspiracy and proposal to commit rebellion or insurrection. — The

conspiracy and proposal to commit rebellion or insurrection shall be punished,
respectively, by prision correccional in its maximum period and a fine which shall not
exceed 5,000 pesos, and by prision correccional in its medium period and a fine not
exceeding 2,000 pesos.

The advocacy of Communism or Communistic theory and principle is not to be considered as

a criminal act of conspiracy unless transformed or converted into an advocacy of action. In
the very nature of things, mere advocacy of a theory or principle is insufficient unless the
communist advocates action, immediate and positive, the actual agreement to start an
uprising or rebellion or an agreement forged to use force and violence in an uprising of the
working class to overthrow constituted authority and seize the reins of Government itself.
Unless action is actually advocated or intended or contemplated, the Communist is a mere
theorist, merely holding belief in the supremacy of the proletariat a Communist does not yet
advocate the seizing of the reins of Government by it. As a theorist the Communist is not yet
actually considered as engaging in the criminal field subject to punishment. Only when the
Communist advocates action and actual uprising, war or otherwise, does he become guilty of
conspiracy to commit rebellion. Borrowing the language of the Supreme Court of the United
States:
 In our jurisprudence guilt is personal, and when the imposition of punishment on a
status or on conduct can only be justified by reference to the relationship of that
status or conduct to other concededly criminal activity (here advocacy of violent
overthrow), that relationship must be sufficiently substantial to satisfy the concept of
personal guilt in order to withstand attack under the Due Process Clause of the Fifth
Amendment. Membership, without more, in an organization engaged in illegal
advocacy, it is now said, has not heretofore been recognized by this Court to be such
a relationship. ... .

What must be met, then, is the argument that membership, even when accompanied
by the elements of knowledge and specific intent, affords an insufficient quantum of
participation in the organization's alleged criminal activity, that is, an insufficiently
significant form of aid and encouragement to permit the imposition of criminal
sanctions on that basis. It must indeed be recognized that a person who merely
becomes a member of an illegal organization, by that "act" alone need be doing
nothing more than signifying his assent to its purposes and activities on one hand,
and providing, on the other, only the sort of moral encouragement which comes from
the knowledge that others believe in what the organization is doing. It may indeed be
argued that such assent and encouragement do fall short of the concrete, practical
impetus given to a criminal enterprise which is lent for instance by a commitment on
the part of the conspirator to act in furtherance of that enterprise. A member, as
distinguished from a conspirator, may indicate his approval of a criminal enterprise
by the very fact of his membership without thereby necessarily committing himself to
further it by any act or course of conduct whatever. (Scales v. United States, 367
U.S. 203, 6 L. ed. 782)

The most important activity of appellant Hernandez appears to be the propagation of

improvement of conditions of labor through his organization, the CLO. While the CLO of
which he is the founder and active president, has communistic tendencies, its activity refers
to the strengthening of the unity and cooperation between labor elements and preparing
them for struggle; they are not yet indoctrinated in the need of an actual war with or against
Capitalism. The appellant was a politician and a labor leader and it is not unreasonable to
suspect that his labor activities especially in connection with the CLO and other trade unions,
were impelled and fostered by the desire to secure the labor vote to support his political
ambitions. It is doubtful whether his desire to foster the labor union of which he was the head
was impelled by an actual desire to advance the cause of Communism, not merely to
advance his political aspirations.

Insofar as the appellant's alleged activities as a Communist are concerned, We have not
found, nor has any particular act on his part been pointed to Us, which would indicate that he
had advocated action or the use of force in securing the ends of Communism. True it is, he
had friends among the leaders of the Communist Party, and especially the heads of the
rebellion, but this notwithstanding, evidence is wanting to show that he ever attended their
meetings, or collaborated and conspired with said leaders in planning and encouraging the
acts of rebellion, or advancing the cause thereof. Insofar as the furnishing of the mimeograph
machine and clothes is concerned, it appears that he acted merely as an intermediary, who
passed said machine and clothes on to others. It does not appear that he himself furnished
funds or material help of his own to the members of the rebellion or to the forces of the
rebellion in the field.

But the very act or conduct of his in refusing to go underground, in spite of the apparent
desire of the chief of the rebellion, is clear proof of his non-participation in the conspiracy to
engage in or to foster the rebellion or the uprising.
We next consider the question as to whether the fact that Hernandez delivered speeches of
propaganda in favor of Communism and in favor of rebellion can be considered as a criminal
act of conspiracy to commit rebellion as defined in the law. In this respect, the mere fact of
his giving and rendering speeches favoring Communism would not make him guilty of
conspiracy, because there was no evidence that the hearers of his speeches of propaganda
then and there agreed to rise up in arms for the purpose of obtaining the overthrow of the
democratic government as envisaged by the principles of Communism. To this effect is the
following comment of Viada:

CUESTION 10. El que hace propaganda entre sus convecinos, induciendoles a que
el dia que se anunciara la subasta de consumes se echaran a la calle para
conseguir aunque fuera preciso acudir a la fuerza el reparto entre los vecinos ricos
solamente, sera responsable de un delito de conspiracion para la sedicion? — El
Tribunal Supreme ha resuelto la negative al casar cierta sentencia de la Audiencia
de Valencia, que entendio lo contrario: "Considerando que, con areglo a lo que
dispone el art. 4. del Codigo Penal, hay conspiracion cuando dos o mas personas se
conciertan para la execution de un delito y resuelven cmeterlo; y no constando que
existiera ese concierto en cuanto a los hechos que se refieren en la tercera pregunta
del veredicto, pues en ella solo se habla de los actos de induccion que el procesado
realizo, sin expresar el efecto que la mismo produjo en el animo de las personas a
quienes se dirigian, ni si estas aceptaron o no lo que se las propuso, resulta
evidence que faltan los clementos integrantes de la conspiracion, etc." (Se. de 5 de
Julio de 1907, Gaceta de 7 de Enero de 1909.) (Viada, Tomo I, Codigo Penal, p.
152)

In view of all the above circumstances We find that there is no concrete evidence proving
beyond reasonable doubt that the appellant (Hernandez) actually participated in the rebellion
or in any act of conspiracy to commit or foster the cause of the rebellion. We are constrained,
in view of these circumstances, to absolve, as We hereby absolve, the appellant Amado V.
Hernandez from the crime charged, with a proportionate share of the costs de oficio.

APPEAL OF OTHER DEFENDANTS-APPELLANTS

All the other defendants were found guilty as accomplices in the crime of rebellion as
charged in the information and were each sentenced to suffer the penalty of 10 years and 1
day of prision mayor, with the accessories provided by law, and to pay their proportionate
share of the costs.

Legal Considerations. — Before proceeding to consider the appeals of the other defendants,
it is believed useful if not necessary to lay dawn the circumstances or facts that may be
determinative of their criminal responsibility or the existence or nature thereof. To begin with,
as We have exhaustively discussed in relation to the appeal of Hernandez, we do not believe
that mere membership in the Communist Party or in the CLO renders the member liable,
either of rebellion or of conspiracy to commit rebellion, because mere membership and
nothing more merely implies advocacy of abstract theory or principle without any action
being induced thereby; and that such advocacy becomes criminal only if it is coupled with
action or advocacy of action, namely, actual rebellion or conspiracy to commit rebellion, or
acts conducive thereto or evincing the same.

On the other hand, membership in the HMB (Hukbalahap) implies participation in an actual
uprising or rebellion to secure, as the Huks pretend, the liberation of the peasants and
laboring class from thraldom. By membership in the HMB, one already advocates uprising
and the use of force, and by such membership he agrees or conspires that force be used to
secure the ends of the party. Such membership, therefore, even if there is nothing more,
renders the member guilty of conspiracy to commit rebellion punishable by law.

And when a Huk member, not content with his membership, does anything to promote the
ends of the rebellion like soliciting contributions, or acting as courier, he thereby becomes
guilty of conspiracy, unless he takes to the field and joins in the rebellion or uprising, in which
latter case he commits rebellion.

In U.S. v. Vergara, infra, the defendants organized a secret society commonly known as the
"Katipunan", the purpose of which was to overthrow the government by force. Each of the
defendants on various times solicited funds from the people of Mexico, Pampanga. The
Court held that the defendants were guilty of conspiracy and proposal to commit rebellion or
insurrection and not of rebellion or insurrection itself. Thus, the Court ruled that:

From the evidence adduced in this case we are of the opinion that the said
defendants are guilty, not of inciting, setting or foot, or assisting or engaging in
rebellion, but rather of the crime of conspiring to overthrow, put down, and destroy by
force the Government of the United States in the Philippine Islands, and therefore we
find that said defendants, and each of them, did, together with others, in the months
of February and March, 1903, in the Province of Pampanga, Philippine Islands,
conspire to overthrow, put down, and to destroy by force the Government of the
United States in the Philippine Islands. (U.S. v. Vergara, et al., 3 Phil. 432, 434.)

JUAN J. CRUZ

The court found him to be a Communist with various aliases, a member of the Central
Committee of the CLO member of the Central Committee of the CPP and as such committed
to the establishment of the dictatorship of the proletariat To the same effect is the testimony
of Guillermo Calayag.

There is no evidence to connect him with the rebellion or to the conspiracy to commit
rebellion. He should therefore be absolved of the charges contained in the information.

AMADO RACANDAY

The trial court found him guilty as a Communist, a Secretary and Executive Committee
member of the CLO a communications center of the Communist Party, having been found in
possession of letters from Federico Maclang to Salome Cruz, and solicitor of contributions
for the Huks.

Racanday admits being a member of the Executive Committee of the CLO Editor of the
Kidlat of the Government Workers Union, receiving copies of the Titis. Calayag testified that
he was a member of the Central Committee of the Communist Party entrusted with the duty
of receiving directives of the Regional Committee of the Communist Party.

The letters found in his possession are dated February 14, 1950, before the Communist
Party went underground. We have been unable to find the evidence upon which the court
bases its conclusion that he received contributions for the Huks. With these circumstances in
mind, We are not convinced beyond reasonable doubt that as a Communist he took part in
the conspiracy among the officials of the Communist Party to take part and support the
rebellion of the Huks.
We are, therefore, constrained to absolve him of the charges filed against him.

GENARO DE LA CRUZ

The court found him to be a Communist since 1945, an officer of an organized Communist
branch in Pasay City, a member of the Central Committee and Treasurer of the CLO. He
admitted his membership and his position as member of the executive committee and
treasurer of the CLO these facts being corroborated by the witness Guillermo Calayag.

His membership in the Communist Party dates as far back as the year 1945. As a
communist, Genaro de la Cruz received quotas and monetary contributions coming from the
areas under his jurisdiction, and one time he made a receipt from a member from Caloocan
at the CLO headquarters at Azcarraga signing the receipt as "Gonzalo" which is one of his
aliases. He also distributed copies of the "Titis" magazine. `

While his membership in the Communist Party plus his having received contributions for the
party indicate that he is an active member, it was not shown that the contributions that he
received from Communist Party members were received around the year 1950 when the
Central Committee of the Communist Party had already agreed to conspire and go
underground and support the Huk rebellion. Under these circumstances We cannot find him
guilty of conspiracy to commit rebellion because of the lack of evidence to prove his guilt
beyond reasonable doubt.

JULIAN LUMANOG

The court found him to be an organizer of HMB among the mill workers, solicited
contributions for the HMB and Central Committee member of the CLO as per Testimony of
Guillermo Calayag.

He admitted that he joined the Communist Party because he was made to believe that the
Party is for the welfare of the laborers. He also admitted being a member of the Central
Committee of the CLO Calayag testified that Lumanog organized the HMB units of the
Communist Party in the Lumber Unions and attended a Communist meeting held by
Maclang.

Domingo Clarin testified that he (Julian Lumanog) used to give the money collected by him to
one Nicasio Pamintuan, one of the members of the HMB Special Unit Trigger Squad) in
Manila for the use of the said unit.

Considering that the HMB was engaged in a rebellion to overthrow the government, it is
evident that by giving his contributions he actually participated in the conspiracy to overthrow
the government and should, therefore, be held liable for such conspiracy, and should be
sentenced accordingly.

FERMIN RODILLAS

The trial court found that Fermin Rodillas was a member of the CPP and the CLO that his
activities consisted in soliciting contributions, in cash and in kind, from city residents for the
use of the HMB, turning over said collections to the Party; that he has given asylum to a
wanted Hukbalahap at his house at Juan Luna St., Gagalangin, which house was used as
Military post. The above findings of the court are fully supported by the testimony of Domingo
Clarin.

Considering that while he has not actually taken part in the rebellion, he has shown
sympathy with the cause by soliciting contributions for it and had given shelter to the Huks.
We feel that the court was fully justified in finding him guilty, but We hold that he should be
declared liable merely as a co-conspirator in the crime of conspiracy to commit rebellion, and
should be sentenced accordingly.

BAYANI ESPIRITU

This appellant was found by the court to be a Communist, he having admitted membership in
the Communist Party since 1945; that his duties as a Communist was to help in the office of
the National Finance Committee, assorting papers and written documents; that sometimes
he accompanied the purchaser of medicines, shoes, papers, foodstuffs and clothing to be
given to the Huks; that he is a member of the Communication Division of the CPP in Manila,
in charge of distribution of letters or communications; that he admits having written to
Salome Cruz, courier of the Communist Party, when he asked for his necessities, such as
money and shoes, etc.

The facts found by the court are sufficiently supported by the communications and evidence
submitted by the prosecution. The exhibits show that he was in constant communication with
the communists; serving them as courier. His oath as a member of the Communist Party was
submitted in court and in it he admits obedience to all orders of the Party and to propagate
the stability of the PKP.

Considering that the PKP was engaged in an actual uprising against the constituted
Government and that Bayani Espiritu was in constant communication with the Communist
Party and served it as courier, We believe that the court was fully justified in finding him
guilty. However, We believe that not having actually taken up arms in the uprising he may
only be declared guilty of conspiracy to commit rebellion.

TEOPISTA VALERIO

The court below found that this appellant joined the Communists in 1938 in San Luis,
Pampanga, under Casto Alejandrino, who later became her common-law husband; that her
aliases are "Estrella" and "Star"; that she was found in possession of various documents
written to top Communists like Alejandrino, Lava and Romy, as well as a letter from Taruc
congratulating her for the delivers, of a son.

Jose Taguiang testified that she was a member of the Provincial Committee of the CPP in
Nueva Ecija, later Chairman of the Finance Department, and then promoted to Finance
Officer of the Central Luzon Committee. Alicia Vergara, a Huk courier, testified that she
delivered letter from the mountains to Teopista Valerie, who was in turn also a courier.

Without considering the close relationship that she had with top Communist Casto
Alejandrino, We are satisfied that she herself was, aside from being a Huk courier, also a
Huk, a member of the HMB from 1942 to 1951. As she was a Communist and at the same
time a member of the HMB, and considering that the HMB was engaged in an uprising to
uproot the legitimate government, there cannot be any question that she was in conspiracy
with the other members of her Party against the constituted government. We hold, therefore,
that the evidence proves beyond reasonable doubt that she is guilty of conspiracy to commit
rebellion.

DEFENDANTS NOT INCLUDED IN DECISION

In Crim. Case No. 15841 (G.R. No. L-6025) the charge against Guillermo Capadocia,
Mariano P. Balgos, Alfredo B. Saulo and Jacobo Espino was dismissed because they have
not been apprehended at the time of the trial.

PEOPLE VS. EVANGELISTA, 57 PHIL. 354 AND

REPUBLIC ACT NO. 1700, DISTINGUISHED

In the case at bar the prosecution is for actual rebellion which consists in rising publicly and
taking aims against the Government for the purpose of removing from the allegiance to said
Government or its laws, the territory of the Philippines, or any part thereof, etc., a crime
defined in Article 134 of the Revised Penal Code; whereas Evangelista was charged and
convicted for inciting to rebellion under Art. 138, Revised Penal Code (formerly Sec. 2, Act
No. 292). As the specific charge against appellants is that of rising up in arms in actual
rebellion against the Government, they cannot be held guilty of inciting the people to arms
under Article 138, which is a different offense.

On the other hand, Rep. Act 1700, known as the Anti-subversion Act, which penalizes
membership in any organization or association committed to subvert the Government,
cannot be applied to the appellants because said Act was approved on June 20, 1957 and
was not in force at the time of the commission of the acts charged against appellants
(committed 1945-1950) ; the Anti-Subversion Act punishes participation or membership in an
organization committed to overthrow the duly constituted Government, a crime district from
that of actual rebellion with which appellants are charged.

CONCLUSION

WHEREFORE, in Criminal Case No. 15841 (G.R. No. L-6025) defendants-appellants Amado
V. Hernandez, Juan J. Cruz, Amado Racanday and Genaro de la Cruz are absolved from the
charges contained in the information, with their proportionate share of the costs de oficio.
The defendants-appellants Julian Lumanog and Fermin Rodillas in Criminal Case No. 15841
(G.R. No. L-6025) and the defendants-appellants Bayani Espiritu and Teopista Valerio in
Criminal Case No. 15479 (G.R. No. L-6026) are hereby found guilty of the crime of
conspiracy to commit rebellion, as defined and punished in Article 136 of the Revised Penal
Code, and each and everyone of them is hereby sentenced to suffer imprisonment for five
years, four months and twenty-one days of prision correccional, and to pay a fine of
P5,000.00, with subsidiary imprisonment in case of insolvency and to pay their proportional
share of the costs. So ordered.

[G.R. No. L-4445. February 28, 1955.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MANUEL BERONILLA, FILIPINO

VELASCO, POLICARPO PACULDO, and JACINTO ADRIATICO, Defendants-Appellants.

Agripino A. Brillantes, Valera, Eufemio and Bernardez for Appellants.

Prospero C. Sanidad and Claro M. Recto for defendant, Filipino Velasco.

 Solicitor General Juan R. Liwag and Solicitors Jaime R. de los Angeles and Martiniano P.
Vivo for Appellee.

SYLLABUS

1. CRIMINAL LAW; CRIMES COMMITTED UPON ORDERS OF SUPERIOR OFFICERS; LACK OF

CRIMINAL INTENT. — Where the accused acted upon orders of superior officers that they, as
military subordinates, could not question, and obeyed in good faith, without being aware of their
illegality, without any fault or negligence on their part, the act is not accompanied by criminal
intent. The maxim is, actus non facit reum, nisi mens sit rea — a crime is not committed if the mind
of the person performing the act complained of be innocent. (U. S. v. Catolico, 18 Phil., 507; People
v. Pacana, 47 Phil., 48; Sent. of the Tribunal Supremo of Spain, 3 July 1886; 7 January 1901; 24
March 1900; 21 Feb. 1921; 25 March 1929).

2. ID.; GUERILLA AMNESTY PROCLAMATION; DOUBTS AS TO WHETHER CASE FALLS WITHIN

PROCLAMATION SHALL BE RESOLVED IN FAVOR OF ACCUSED. — Where the evidence on record
regarding the date of liberation of the area is contradictory, the accused should not be denied their
claim to the benefits of the Guerrilla Amnesty Proclamation No. 8 (42 Off. Gaz., 2072) on the
ground that the slaying of the deceased took place after actual liberation of the area from enemy
control and occupation, because "any reasonable doubt as to whether a given case falls within the
amnesty proclamation shall be resolved in favor of the accused." (People v. Gajo, 46 Off. Gaz., (No.
12) p. 6093.)

3. ID.; ID.; ID. — The concurrence of personal hatred and collaboration with the enemy as motives
for the liquidation of persons accused of and convicted of treason, espionage, or aiding and abetting
of the enemy does not operate to exclude the case from the benefits of the Guerrilla Amnesty
Proclamation.

DECISION

REYES, J.B.L., J.:

This is an appeal by accused Manuel Beronilla, Policarpo Paculdo, Filipino Velasco, and Jacinto
Adriatico from the judgment of the Court of First Instance of Abra (Criminal Case No. 70) convicting
them of murder for the execution of Arsenio Borjal in the evening of April 18, 1945, in the town of
La Paz, Province of Abra.

Arsenio Borjal was the elected mayor of La Paz, Abra, at the outbreak of war, and continued to
serve as Mayor during the Japanese occupation, until March 10, 1943, when he moved to Bangued
because of an attempt upon his life by unknown persons. On December 18, 1944, appellant Manuel
Beronilla was appointed Military Mayor of La Paz by Lt. Col. R. H. Arnold, regimental commander of
the 15th Infantry, Philippine Army, operating as a guerrilla unit in the province of Abra.
Simultaneously with his appointment as Military Mayor, Beronilla received copy of a memorandum
issued By Lt. Col. Arnold to all Military Mayors in Northern Luzon, authorizing them "to appoint a
jury of 12 bolomen to try persons accused of treason, espionage, or the aiding and abetting (of) the
enemy" (Exhibit 9). He also received from the Headquarters of the 15th Infantry a list of all puppet
government officials of the province of Abra (which included Arsenio Borjal, puppet mayor of La
Paz), with a memorandum instructing all Military Mayors to investigate said persons and gather
against them complaints from people of the municipality for collaboration with the enemy (Exhibit
12-a).

Sometime in March, 1945, while the operations for the liberation of the province of Abra were in
progress, Arsenio Borjal returned to La Paz with his family in order to escape the bombing of
Bangued. Beronilla, pursuant to his instructions, placed Borjal under custody and asked the
residents of La Paz to file complaints against him. In no time, charges of espionage, aiding the
enemy, and abuse of authority were filed against Borjal; a 12-man jury was appointed by Beronilla,
composed of Jesus Labuguen as chairman, and Benjamin Adriatico, Andres Afos, Juanito Casal,
Santiago Casal, Benjamin Abella, Servillano Afos, Mariano Ajel, Felimon Labuguen, Felix Murphy,
Pedro Turqueza, and Delfin Labuguen as members; while Felix Alverne and Juan Balmaceda were
named prosecutors, Policarpo Paculdo as clerk of the jury, and Lino Inovermo as counsel for the
accused. Later, Atty. Jovito Barreras voluntarily appeared and served as counsel for Borjal. Sgt.
Esteban Cabanos observed the proceedings for several days upon instructions of Headquarters, 15th
Infantry. The trial lasted 19 days up to April 10, 1945; the jury found Borjal guilty on all counts and
imposed upon him the death penalty (Exhibits M to M-2). Pursuant to instructions from his
superiors. Mayor Beronilla forwarded the records of the case to the Headquarters of the 15th
Infantry for review. Said records were returned by Lt. Col. Arnold to Beronilla on April 18, 1945 with
the following instructions:jg c:chan roble s.com.p h

"HEADQUARTERS 3RD MILITARY DISTRICT

15TH INFANTRY, USAFIP

In the Field

16 April 1945

Msg. No. 337

Subject: Arsenio Borjal, Charges Against

To: Military Mayor of La Paz, Abra.

1. Returned herewith are the papers on the case of Arsenio Borjal.

2. This is a matter best handled by your government and whatever disposition you make of the case
is hereby approved.

(Sgd. R. H. ARNOLD

Lieut. -Colonel, 15th Inf., PA

Commanding

Received April 18, 1945, 10:35 a.m

(Sgd.) MANUEL BERONILLA

Military Mayor, La Paz, Abra.

(Exhibits 8, 8-a)

and on the night of the same day, April 18, 1945, Beronilla ordered the execution of Borjal. Jacinto
Adriatico acted as executioner and Antonio Palope as grave digger. Father Luding of the Roman
Catholic Church was asked to administer the last confession to the prisoner, while Father Filipino
Velasco of the Aglipayan Church performed the last rites over Borjal’s remains. Immediately after
the execution, Beronilla reported the matter to Col. Arnold who, in reply to Beronilla’s report, sent
him the following message: jgc:c han robles. com.ph

"HEADQUARTERS 3RD MILITARY DISTRICT

15 INFANTRY, USAFIP

NL In the Field

22 April 1945

Msg. No. 398

Subject: Report and information Re Borjal case

To: Military Mayor Beronilla.

1. Received your letter dated 18 April 1945, subject, above.

2. My request that you withhold action in this case was only dictated because of a query from
Higher Headquarters regarding same. Actually, I believe there was no doubt as to the treasonable
acts of the accused Arsenio Borjal and I know that your trial was absolutely impartial and fair.
Consequently, I can only compliment you for your impartial but independent way of handling the
whole case.

Best regards,

(Sgd.) R. H. ARNOLD

Lieut. -Colonel, 15th Infantry, PA

Commanding

Received April 26, 1945 7:00 a.m.

(Sgd.) MANUEL BERONILLA

Military Mayor, La Paz, Abra"

(Exhibit 21, 21-a)

Two years thereafter, Manuel Beronilla as military mayor, Policarpo Paculdo as Clerk of the jury,
Felix Alverne and Juan Balmaceda as prosecutors, Jesus Labuguen, Delfin Labuguen, Filemon
Labuguen, Servillano Afos, Andres Afos, Benjamin Adriatico, Juanito Casel, Santiago Casel, Mariano
Ajel, Felix Murphy, Benjamin Abella, and Pedro Turqueza as members of the jury, Jacinto Adriatico
as executioner, Severo Afos as grave digger, and Father Filipino Velasco as an alleged conspirator,
were indicted in the Court of First Instance of Abra for murder, for allegedly conspiring and
confederating in the execution of Arsenio Borjal. Soon thereafter, the late President Manuel A.
Roxas issued Executive Proclamation No. 8, granting amnesty to all persons who committed acts
penalized under the Revised Penal Code in furtherance of the resistance to the enemy against
persons aiding in the war efforts of the enemy. Defendant Jesus Labuguen, then a master sergeant
in the Philippine Army, applied for and was granted amnesty by the Amnesty Commission, Armed
Forces of the Philippines (Records, pp. 618-20). The rest of the defendants filed their application for
amnesty with the Second Guerrilla Amnesty Commission, who denied their application on the
ground that the crime had been inspired by purely personal motives, and remanded the case to the
Court of First Instance of Abra for trial on the merits.

Upon motion of defense counsel, the case against defendant Jesus Labuguen, who had been
granted amnesty by the Amnesty Commission of the Armed Forces of the Philippines, was ordered
provisionally dismissed: defendant Juan Balmaceda was discharged from the information so that he
might be utilized as state witness, altho actually he was not called to testify; while the case against
defendants Antonio Palope (the grave digger) and Demetrio Afos (a boloman) was dismissed for
lack of sufficient evidence.

Trial proceeded against the rest of the defendants; and on July 10, 1950, the Court below rendered
judgment, acquitting the members of the jury and the grave digger Antonio Palope on the ground
that they did not participate in the killing of Arsenio Borjal; acquitting defendants Jesus Labuguen,
Felix Alverne, Severo Afos, and Lauro Parado upon insufficiency of evidence to establish their
participation in the crime; but convicting defendants Manuel Beronilla, Policarpo Paculdo, Filipino
Velasco, and Jacinto Adriatico as conspirator and co-principals of the crime of murder, and
sentencing them to suffer imprisonment of from 17 years, 4 months and 1 day of reclusion temporal
to reclusion perpetua, to indemnify the heirs of Arsenio Borjal jointly and severally in the amount of
P4,000 with subsidiary imprisonment in case of insolvency, and each to pay one fourth of the costs.
In convicting said defendants, the Court a quo found that while the crime committed by them fell
within the provisions of the Amnesty Proclamation, they were not entitled to the benefits thereof
because the crime was committed after the expiration of the time limit fixed by the amnesty
proclamation;: i.e., that the deceased Arsenio Borjal was executed after the liberation of La Paz,
Abra.

In view of the sentence meted by the Court below, the accused Beronilla, Paculdo, Velasco and
Adriatico appealed to this Court.

The records are ample to sustain the claim of the defense that the arrest, prosecution and trial of
the late Arsenio Borjal were done pursuant to express orders of the 15th Infantry Headquarters.
(Exhibits 9 and 12-a), instructing all military mayors under its jurisdiction to gather evidence
against puppet officials and to appoint juries of at least 12 bolomen to try the accused and find
them guilty by two thirds vote. It is to be noted that Arsenio Borjal was specifically named in the list
of civilian officials to be prosecuted (Exhibit 12-b).

In truth, the prosecution does not seriously dispute that the trial and sentencing of Borjal was done
in accordance with instructions of superior military authorities, altho it points to irregularities that
were due more to ignorance of legal processes than personal animosity against Borjal. The state,
however, predicates its case principally on the existence of the radiogram Exhibit H from Colonel
Volckmann, overall area commander, to Lt. Col. Arnold, specifically calling attention to the illegality
of Borjal’s conviction and sentence, and which the prosecution claims was known to the accused
Beronilla. Said message is as follows: jgc:cha nro bles.c om.ph

"Message: chanrob1e s virtual 1aw l ibra ry

VOLCKMAN TO ARNOLD CLN UNDERSTAND THAT MUNICIPALITIES OF ABRA HAVE ORGANIZED

JURY SYSTEM PD BELIEVE THAT THIS BODY IS ILLEGAL AND CANNOT TRY PERSONS FOR
ESPIONAGE OR COLLABORATION NOR METE OUT PUNISHMENTS THEREOF PD SPECIFIC INSTANCE
IS BROUGHT TO YOUR ATTENTION FOR PROPER AND IMMEDIATE ACTION ON ONE ARSENIO
BORJAL OF LA PAZ WHO HAS BEEN TRIED CMA CONVICTED AND SENTENCED TO BE HANGED PD
REPORT ACTION TAKEN BY YOU ON THIS MATTER PD MSG BEGINS CLN"

(EXH. H)

The crucial question thus becomes whether or not this message, originally sent to Arnold’s quarters
in San Esteban, Ilocos Sur, was relayed by the latter to appellant Beronilla in La Paz, Abra, on the
morning of April 18, 1945, together with the package of records of Borjal’s trial that was admittedly
returned to and received by Beronilla on that date, after review thereof by Arnold (Exhibits 8-8-a).
Obviously, if the Volckmann message was known to Beronilla, his ordering the execution of Borjal
on the night of April 18, 1945 can not be justified.

We have carefully examined the evidence on this important issue, and find no satisfactory proof that
Beronilla did actually receive the radiogram Exhibit H or any copy thereof. The accused roundly
denied it. The messenger, or "runner", Pedro Molina could not state what papers were enclosed in
the package he delivered to Beronilla on the morning in question, nor could Francisco Bayquen (or
Bayken), who claimed to have been present at the delivery of the message, state the contents
thereof.

The only witness who asserted that Beronilla received and read the Volckmann message, Exhibit H,
was Rafael Balmaceda, a relative of Borjal, who claimed to have been, as Beronilla’s bodyguard,
present at the receipt of the message and to have read it over Beronilla’s shoulder. This testimony,
however, can not be accorded credence, for the reason that in the affidavit executed by this witness
before Fiscal Antonio of Abra (Exhibit 4), Balmaceda failed to make any mention of the reading, or
even the receipt, of the message. In the affidavit, he stated: jgc:chan rob les.com. ph

"Q. In your capacity as policeman, do you know of any unusual occurrence that transpired in La Paz,
Abra?. — A. Yes, sir.

Q. Will you state what is that event? — A. On April 17, 1945, I was assigned as guard at the
Presidencia where Mayor Arsenio Borjal is confined. On the 18th of April, 1945, six bolomen came to
me while I was on duty as guard, that Mayor Borjal should be tied, on orders of Mayor Manuel
Beronilla. Mayor Borjal wanted to know the reason why he would be tied, as he has not yet learned
of the decision of the jury against him. Mayor Borjal wrote a note to Mayor Beronilla, asking the
reason for his being ordered to be tied. I personally delivered the note of Borjal to Mayor Beronilla.
Mayor Beronilla did not answer the note, but instead told me that I should tie Mayor Borjal, as
tomorrow he would die, as he cannot escape. I returned to the Presidencia, and Mayor Borjal was
tied, as that was the order of Mayor Beronilla.."

The plain import of the affidavit is that the witness Rafael Balmaceda was not with Beronilla when
the message arrived, otherwise Beronilla would have given him his orders direct, as he (Balmaceda)
testified later at the trial. Moreover, it is difficult to believe that having learned of the contents of
the Volckmann message, Balmaceda should not have relayed it to Borjal, or to some member of the
latter’s family, considering that they were relatives. In addition, Balmaceda was contradicted by
Bayken, another prosecution witness, as to the hatching of the alleged conspiracy to kill Borjal.
Balmaceda claimed that the accused-appellants decided to kill Borjal in the early evening of April
18, while Bayken testified that the agreement was made about ten o’clock in the morning, shortly
after the accused had denied Borjal’s petition to be allowed to hear mass.

Upon the other hand, Beronilla’s conduct belies his receipt of the Volckmann message. Had he
executed Borjal in violation of superior orders, he would not have dared to report it to Arnold’s
headquarters on the very same day, April 18th, 1945, as he did (Exhibit 20), half an hour after the
execution. And what is even more important, if Borjal was executed contrary to instructions, how
could Lt. Colonel Arnold on April 22, 1945, write in reply (Exhibits 21, 21-a) "I can only compliment
you for your impartial but independent way of handling the whole case" instead of berating Beronilla
and ordering his court martial for disobedience?

Our conclusion is that Lt. Col. Arnold, for some reason that can not now be ascertained, failed to
transmit the Volckmann message to Beronilla. And this being so, the charge of criminal conspiracy
to do away with Borjal must be rejected, because the accused had no need to conspire against a
man who was, to their knowledge, duly sentenced to death.

The state claims that the appellants held grudges against the late Borjal. Even so, it has been
already decided that the concurrence of personal hatred and collaboration with the enemy as
motives for a liquidation does not operate to exclude the case from the benefits of the Amnesty
claimed by appellants, since then "it may not be held that the manslaughter stemmed from purely
personal motives" (People v. Barrioquinto,* G. R. Nos. L-2011 and 2267, June 30, 1951). Actually,
the conduct of the appellants does not dispose that these appellants were impelled by malice (dolo).
The arrest and trial of Borjal were made upon express orders of the higher command; the
appellants allowed Borjal to be defended by counsel, one of them (attorney Jovito Barreras) chosen
by Borjal’s sister; the trial lasted nineteen (19) days; it was suspended when doubts arose about its
legality, and it was not resumed until headquarters (then in Langangilang, Abra) authorized its
resumption and sent an observer (Esteban Cabanos, of the S-5) to the proceedings, and whose
suggestions on procedure were followed; and when the verdict of guilty was rendered and death
sentence imposed, the records were sent to Arnold’s headquarters for review, and Borjal was not
punished until the records were returned eight days later with the statement of Arnold that
"whatever disposition you make of the case is hereby approved" (Exhibit 8), which on its face was
an assent to the verdict and the sentence. The lower Court, after finding that the late Arsenio Borjal
had really committed treasonable acts, (causing soldiers and civilians to be tortured, and hidden
American officers to be captured by the Japanese) expressly declared that "the Court is convinced
that it was not for political or personal reason that the accused decided to kill Arsenio Borjal"
(Decision, p. 9; Record, p. 727).It appearing that the charge is the heinous crime of murder, and
that the accused-appellants acted upon orders, of a superior officers that they, as military
subordinates, could not question, and obeyed in good faith, without being aware of their illegality,
without any fault or negligence on their part, we can not say that criminal intent has been
established (U. S. v. Catolico, 18 Phil., 507; Peo. v. Pacana, 47 Phil., 48; Sent. of the Tribunal
Supremo of Spain, 3 July 1886; 7 January 1901; 24 March 1900; 21 Feb. 1921; 25 March 1929).
Actus non facit reum nisi mens sit rea.

"To constitute a crime, the act must, except in certain crimes made such by statute, be
accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences,
as, in law, is equivalent to criminal intent. The maxim is, actus non facit reum, nisi mens rea-a is
not committed if the mind of the person performing the act complained of be innocent." (U. S. v.
Catolico, 18 Phil., 507).

But even assuming that the accused-appellants did commit the crime with which they are charged,
the Court below should not have denied their claim to the benefits of the Guerrilla Amnesty
Proclamation No. 8 (42 Off. Gaz., 2072) of the ground that the slaying of Arsenio Borjal took place
after actual liberation of the area from enemy control and occupation. The evidence on record
regarding the date of liberation of La Paz, Abra, is contradictory. The Military Amnesty Commission
that decided the case of one of the original accused, Jesus Labuguen, held that La Paz, Abra, was
liberated on July 1, 1945, according to its records; and this finding was accepted by Judge Letargo
when he dismissed the case against said accused on March 15, 1949. On the other hand, Judges
Bocar and Hilario, who subsequently took cognizance of the case, relied on Department Order No.
25, of the Department of the Interior, dated August 12, 1948, setting the liberation of the Province
of Abra on April 4, 1945, fifteen days before Borjal was slain. The two dates are not strictly
contradictory; but even if they are, we believe these appellants should be given the benefit of the
Presidential directive to the Amnesty Commissions (Adm. Order No. 11, of October 2, 1946) that
"any reasonable doubt as to whether a given case falls within the (amnesty) proclamation shall be
resolved in favor of the accused" (42 Off. Gaz., 2360), as was done in People v. Gajo, 84 Phil., 107,
46 Off. Gaz., (No. 12) p. 6093.

For the reasons stated, the judgment appealed from is reversed and the appellants are acquitted,
with costs de oficio.

Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo and
Concepcion, JJ., concur.

G.R. No. 137347 March 4, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
PO3 FERDINAND FALLORINA Y FERNANDO, appellant.

DECISION

CALLEJO, SR., J.:

For automatic review is the Decision1 of the Regional Trial Court of Quezon City, Branch 95,
convicting appellant PO3 Ferdinand Fallorina y Fernando of murder for the killing of eleven-
year-old Vincent Jorojoro, Jr. while the latter was flying his kite on top of a roof. The court a
quo sentenced the appellant to suffer the death penalty.

The accusatory portion of the Information charging the appellant with murder reads:

That on or about the 26th day of September 1998, in Quezon City, Philippines, the
said accused, with intent to kill, by means of treachery and taking advantage of
superior strength, did then and there, wilfully, unlawfully and feloniously attack,
assault and employ personal violence upon the person of VINCENT JOROJORO,
JR. y MORADAS, a minor, eleven (11) years of age, by then and there, shooting him
with a gun, hitting him on the head, thereby inflicting upon him serious and mortal
wound which was the direct and immediate cause of his death, to the damage and
prejudice of the heirs of the said offended party.
 CONTRARY TO LAW.2

Upon arraignment on October 20, 1998, the appellant, with the assistance of counsel,
pleaded not guilty. Thereafter, trial ensued.

Case for the Prosecution3

Eleven-year-old Vincent Jorojoro, Jr. was the third child of Vicente and Felicisima Jorojoro.
The family lived at Sitio Militar, Barangay Bahay Toro, Project 8, Quezon City. Vincent,
nicknamed "Hataw," was a grade three pupil whose education was sponsored by the
Spouses Petinato, an American couple, through an educational foundation.4

The appellant was an officer of the Philippine National Police detailed in the Traffic
Management Group (TMG) based in Camp Crame, Quezon City, but was on detached
service with the Motorcycle Unit of the Metropolitan Manila Development Authority (MMDA).

At about 2:30 p.m. of September 26, 1998, Vincent asked permission from his mother
Felicisima if he could play outside. She agreed.5 Together with his playmate Whilcon
"Buddha" Rodriguez, Vincent played with his kite on top of the roof of an
abandoned carinderia beside the road in Sitio Militar, Barangay Bahay Toro. Beside
this carinderiawas a basketball court, where fourteen-year-old Ricardo Salvo and his three
friends, nicknamed L.A., Nono and Puti, were playing backan, a game of basketball.

Ricardo heard the familiar sound of a motorcycle coming from the main road across the
basketball court. He was nonplussed when he looked at the person driving the motorcycle
and recognized the appellant. Ricardo knew that the appellant abhorred children playing on
the roof of the carinderia and berated them for it. His friend Ong-ong had previously been
scolded by the appellant for playing on the roof.

Ricardo called on Vincent and Whilcon to come down from the roof. When the appellant saw
Vincent and Whilcon, the former stopped his motorcycle and shouted at them, "Putang inang
mga batang ito, hindi kayo magsibaba d'yan!" After hearing the shouts of the appellant,
Whilcon immediately jumped down from the roof.6 Vincent, meanwhile, was lying on his
stomach on the roof flying his kite. When he heard the appellant's shouts, Vincent stood up
and looked at the latter. Vincent turned his back, ready to get down from the roof. Suddenly,
the appellant pointed his .45 caliber pistol7 towards the direction of Vincent and fired a shot.
Vincent was hit on the left parietal area. He fell from the roof, lying prostrate near the canal
beside the abandoned carinderia and the basketball court.8

Whilcon rushed to help Vincent up but was shocked when he saw blood on the latter's head.
Whilcon retreated and left his friend.9 The appellant approached Vincent and carried the
latter's hapless body in a waiting tricycle and brought him to the Quezon City General
Hospital. Vincent was pronounced dead on arrival.

Meantime, word reached Vincent's parents that their son was shot and brought to the
hospital. They rushed to the hospital, only to see their son's already lifeless body. The
appellant was nowhere to be found.

Dr. Ravell Ronald R. Baluyot of the Medico-Legal Division of the National Bureau of
Investigation (NBI) conducted an autopsy where he made the following findings:
 Cyanosis, lips and nailbeds.

Abrasion, 7.0 x 2.0 cms., right arm, middle third, postero-lateral aspect.

Contused-abrasion, 14.5 x 2.5 cms., postero-lateral chest wall, right side.

Gunshot Wound, Entrance, 3.0 x 0.8 cms., roughly ovaloid, with irregular edges,
abrasion collar widest postero-inferiorly, located at the head, left parietal area, 9.0
cms. above and 8.0 cms. behind the left external auditory meatus, directed forward
upward and from left to right, involving the scalp, fracturing the left parietal bone
(punched-in), lacerating the left and right cerebral hemispheres of the brain,
fracturing the right parietal bone (punched-out), lacerating the scalp, making an Exit
wound, 3.3 x 1.0 cms., stellate with everted and irregular edges, 12.0 cms. above
and 2.0 cms. in front of the right external auditory meatus.

Intracranial hemorrhage, subdural and subarachnoid, extensive, bilateral.

Scalp hematoma, fronto-parietal areas, bilateral.

Visceral organs, congested.

Stomach, one-fourth (1/4) filled with partially digested food particles.

CAUSE OF DEATH: GUNSHOT WOUND, HEAD.10

Dr. Baluyot testified that the victim died from a single gunshot wound in the head. The bullet
entered the left upper back portion of the head (above the level of the left ear)11 and exited to
the right side.12 Dr. Baluyot signed Vincent's certificate of death.13

At about 3:00 p.m., SPO2 Felix Pajarillo and Police Inspector Abelardo P. Aquino proceeded
to the scene of the shooting but failed to find the victim and the appellant. They proceeded to
the Quezon City General Hospital where they heard that the victim had died. They returned
to the crime scene and recovered an empty shell from a .45 caliber gun.14

On September 28, 1998, Major Isidro Suyo, the Chief of the MMDA Motorcycle Unit to which
the appellant was assigned on detached service, reported to the Sangandaan Police Station
that the appellant had not reported for duty.15 At 2:10 p.m. of September 29, 1998, Police
Senior Superintendent Alfonso Nalangan, the Regional Director of the PNP-TMG, NCR,
surrendered the appellant to the Sangandaan Police Station together with his .45 caliber
pistol bearing Serial No. AOC-38701.16

Meantime, upon the urging of Vicente Jorojoro, Ricardo was brought to the Department of
Justice where he was enrolled under its Witness Protection Program. He gave his sworn
statement to NBI Special Agent Roberto Divinagracia on September 29, 1998.17 On the same
date, P/Insp. Abelardo Aquino wrote the Chief of the PNP Crime Laboratory Examination
Unit requesting for the ballistic examination of the .45 caliber pistol with Serial No. AOC-
38701 and the empty shell of a .45 caliber gun found at the scene of the shooting.18 Before
noon on September 30, 1998, Divinagracia arrived at the station and turned over two
witnesses, Raymond Castro and Ricardo Salvo. He also turned over the witnesses' sworn
statements.19 On October 2, 1998, on orders of the police station commander,20 Pajarillo took
pictures of the crime scene, including the carinderia and the roof with a bullet hole as part of
the office filing.21 He did not inform the prosecution that he took such pictures, nor did he
furnish it with copies thereof. However, the appellant's counsel learned of the existence of
the said pictures.

On October 5, 1998, P/Insp. Mario Prado signed Firearms Identification Report No. FAIB-
124-98 stating that:

FINDINGS:

Microscopic examination and comparison of the specimen marked "FAP"

revealed the same individual characteristics with cartridge cases fired from
the above-mentioned firearm.

CONCLUSION:

The specimen marked "FAP" was fired from the above-mentioned caliber .45
Thompson Auto Ordnance pistol with serial number AOC-38701.22

Vincent's family suffered mental anguish as a result of his death. As evidenced by receipts,
they spent P49,174 for the funeral.23

Case for the Appellant

The appellant denied shooting Vincent. He testified that at about 1:30 p.m. of September 26,
1998, Macario Ortiz, a resident of Sitio San Jose, Quezon City, asked for police assistance;
Macario's brother-in-law was drunk and armed with a knife, and was creating trouble in their
house. The appellant's house was located along a narrow alley (eskinita) perpendicular to
the main road. It was 200 meters away from Macario's house.24 Responding to the call, the
appellant took his .45 service revolver, cocked it, put the safety lock in place and tucked the
gun at his right waistline. He brought out his motorcycle from the garage and slowly
negotiated the bumpy alley leading to the main road. Macario, who was waiting for him at the
main road, called his attention to his revolver which was about to fall off from his waist. The
appellant got distracted and brought his motorcycle to the right side of the road, near the
abandoned carinderia where he stopped. As he stepped his right foot on the ground to keep
himself from falling, the appellant lost his balance and slipped to the right. At this point, the
revolver fell to the ground near his foot and suddenly went off. Bystanders shouted, "Ano
yon, ano yon, mukhang may tinamaan." He picked up his gun and examined it. He put the
safety latch back on and tucked it at his right waistline. He then told Macario to wait for a
while to check if somebody was really hit. He went near the abandoned carinderia and saw
Vincent sprawled to the ground. He picked up the bloodied child, boarded him on a tricycle
on queue and instructed its driver, Boy Candaje, to bring the boy to the hospital.25 On board
the tricycle were Jeffrey Dalansay and Milbert Doring.

The appellant rode his motorcycle and proceeded to his mother's house in Caloocan City but
did not inform her of the incident. He then called his superior officer, Major Isidro Suyo, at the
Base 103, located at Roces Avenue, Quezon City. The appellant informed Major Suyo that
he met an accident; that his gun fell and fired; and, that the bullet accidentally hit a child. He
also told his superior that he might not be able to report for work that day and the following
day. He assured his superior that he would surrender later. He then went to Valenzuela City
to the house of his friend PO3 Angelito Lam, who was a motorcycle unit cop. The appellant
stayed there for three days. He also visited friends during that time.
On September 29, 1998, he went to the office of Major Suyo and surrendered his .45 caliber
pistol. Major Suyo accompanied and turned over the appellant to the commanding officer at
Camp Crame, Quezon City. The appellant was subjected to a neuro and drug test. He stated
that the results of the drug test were negative. The appellant was then referred to the
Sangandaan Police Station for investigation.26 The pictures27 of the crime scene were given to
him by Barangay Tanod Johnny Yaket, shown in one of the pictures pointing to a bullet hole.
The appellant's testimony was corroborated in pari materia by Macario Ortiz.

Leonel Angelo Balaoro, Vincent's thirteen-year-old playmate, testified that at 1:30 p.m. of
September 26, 1998, he was playing basketball at Barangay Bahay Toro, at the basketball
court along the road beside the chapel. With him were Ricardo, Puti and Nono. Vincent was
on the rooftop of the carinderia with Whilcon. While Puti was shooting the ball, an explosion
ensued. He and Ricardo ran beside the chapel near the basketball court. He looked back
towards the basketball court and saw the appellant, about 15 meters away from the canal,
holding the prostrate and bloodied Vincent. He did not see the appellant shoot Vincent. He
did not report what he saw to the police authorities. He was ordered by his father to testify for
the appellant. He also testified that his mother was related to Daniel, the appellant's brother.

On January 19, 1999, the trial court rendered judgment convicting the appellant of murder,
qualified by treachery and aggravated by abuse of public position. The trial court did not
appreciate in favor of the appellant the mitigating circumstance of voluntary surrender. The
decretal portion of the decision reads:

WHEREFORE, judgment is hereby rendered finding the accused PO3 Ferdinand

Fallorina y Fernando GUILTY beyond reasonable doubt of the crime of Murder
defined in and penalized by Article 248 of the Revised Penal Code, as amended by
Republic Act No. 7659, and in view of the presence of the aggravating circumstance
of taking advantage by the accused of his public position (par. 1, Art. 14, Revised
Penal Code), is hereby sentenced to suffer the penalty of DEATH.

The accused is hereby ordered to indemnify the heirs of the late Vincent Jorojoro, Jr.
the amounts of P49,174.00, as actual damages; P50,000.00, as moral damages;
P25,000.00, as exemplary damages; and, P50,000.00, as death indemnity.

The accused is to pay the costs.

The .45 caliber pistol, service firearm (Exh. "R") of the accused, shall remain under
the custody of the Court and shall be disposed of in accordance with the existing
rules and regulations upon the finality of this decision.28

The appellant assigned the following errors for resolution:

1. THE COURT A QUO SERIOUSLY ERRED IN NOT GIVING DUE CREDENCE TO

RELEVANT PHYSICAL EVIDENCE, WHICH IF CONSIDERED COULD HAVE
ALTERED THE CONCLUSIONS ARRIVED AT BY THE COURT AND THE
OUTCOME OF THE CASE.

2. THE COURT A QUO SERIOUSLY ERRED BY OVERSTEPPING THE LINE OF

JUDGING AND ADVOCACY, AND GOING INTO THE REALM OF SPECULATION,
PATENTLY DEMONSTRATING BIAS AND PARTIALITY.
 3. THE COURT A QUO ERRED IN GIVING UNDUE CREDENCE TO THE
TESTIMONY OF RICARDO SALVO, ALLEGED PROSECUTION EYEWITNESS,
WHOSE TESTIMONY IS WANTING IN PROBABILITY, AS IT IS CONTRARY TO
THE COMMON EXPERIENCE OF MANKIND.

4. THE COURT A QUO GRAVELY ERRED IN INEQUITABLY APPRECIATING

EXCULPATORY AND INCULPATORY FACTS AND CIRCUMSTANCES WHICH
SHOULD HAVE BEEN CONSIDERED IN FAVOR OF THE ACCUSED.

5. THE COURT A QUO ERRED IN FAILING TO APPRECIATE THE MITIGATING

CIRCUMSTANCE OF VOLUNTARY SURRENDER IN FAVOR OF THE ACCUSED.

6. THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE

AGGRAVATING CIRCUMSTANCE OF TAKING ADVANTAGE OF HIS POSITION
BY ACCUSED.29

The appellant asserts that the trial court failed to appreciate in his favor the physical
evidence, viz., the hole found on the rooftop of the carinderia where Vincent was when he
was shot. The appellant contends that the picture30taken on October 2, 1998 by no less than
SPO2 Felix Pajarillo, one of the principal witnesses of the prosecution, and the
pictures31 showing Barangay Tanod Yaket pointing to a hole on the roof buttress the defense
of the appellant that the shooting was accidental. The appellant maintains that his service
revolver fell to the ground, hit a hard object, and as the barrel of the gun was pointed to an
oblique direction, it fired, hitting the victim who was on the rooftop. The bullet hit the back
portion of the victim's head, before exiting and hitting the rooftop. The appellant posits that
the pictures belie Ricardo's testimony that he deliberately shot the victim, and, instead,
complements Dr. Baluyot's testimony that the gunshot wound came from somewhere behind
the victim, somewhere lower than the point of entrance. The appellant invokes P/Insp. Mario
Prado's testimony that if a gun hits the ground in an oblique position, the gun will fire and the
bullet will exit in the same position as the gun, that is, also in an oblique position.

The Office of the Solicitor General, for its part, asserts that the contention of the appellant is
based on speculations and surmises, the factual basis for his conclusion not having been
proven by competent and credible evidence. There is no evidence on record that the hole
shown in the pictures32 was caused by a bullet from a .45 caliber pistol. The appellant did not
present Barangay Tanod Johnny Yaket, who was shown in the pictures, to testify on the
matter. The appellant failed to prove that any slug was found on the rooftop or under the roof
which came from the appellant's .45 caliber pistol. According to the Solicitor General, the
pictures relied upon by the appellant cannot overcome the positive and straightforward
testimony of the young eyewitness Ricardo Salvo.

We agree with the Office of the Solicitor General. Whether or not the appellant is exempt
from criminal liability is a factual issue. The appellant was burdened to prove, with clear and
convincing evidence, his affirmative defense that the victim's death was caused by his gun
accidentally going off, the bullet hitting the victim without his fault or intention of causing it;
hence, is exempt from criminal liability under Article 12, paragraph 4 of the Revised Penal
Code which reads –

The following are exempt from criminal liability:

…
 4. Any person who, while performing a lawful act with due care, causes an injury by
mere accident without fault or intention of causing it.

The basis for the exemption is the complete absence of intent and negligence on the part of
the accused. For the accused to be guilty of a felony, it must be committed either with
criminal intent or with fault or negligence.33

The elements of this exempting circumstance are (1) a person is performing a lawful act; (2)
with due care; (3) he causes an injury to another by mere accident; and (4) without any fault
or intention of causing it.34 An accident is an occurrence that "happens outside the sway of
our will, and although it comes about through some act of our will, lies beyond the bounds of
humanly foreseeable consequences." If the consequences are plainly foreseeable, it will be
a case of negligence.

In Jarco Marketing Corporation v. Court of Appeals,35 this Court held that an accident is a
fortuitive circumstance, event or happening; an event happening without any human agency,
or if happening wholly or partly through human agency, an event which under the
circumstance is unusual or unexpected by the person to whom it happens. Negligence, on
the other hand, is the failure to observe, for the protection of the interest of another person,
that degree of care, precaution and vigilance which the circumstances justly demand without
which such other person suffers injury. Accident and negligence are intrinsically
contradictory; one cannot exist with the other.36 In criminal negligence, the injury caused to
another should be unintentional, it being simply the incident of another act performed without
malice.37 The appellant must rely on the strength of his evidence and not on the weakness of
that of the prosecution because by admitting having caused the death of the victim, he can
no longer be acquitted.

In this case, the appellant failed to prove, with clear and convincing evidence, his defense.

First. The appellant appended to his counter-affidavit in the Office of the Quezon City
Prosecutor the pictures showing the hole on the roof of the carinderia38 to prove that he shot
the victim accidentally. However, when the investigating prosecutor propounded clarificatory
questions on the appellant relating to the pictures, the latter refused to answer. This can be
gleaned from the resolution of the investigating prosecutor, thus:

Classificatory questions were propounded on the respondent but were refused to be

answered. This certainly led the undersigned to cast doubt on respondent's
allegations. The defenses set forth by the respondent are evidentiary in character
and best appreciated in a full-blown trial; and that the same is not sufficient to
overcome probable cause.39

Second. The appellant did not see what part of the gun hit the victim.40 There is no evidence
showing that the gun hit a hard object when it fell to the ground, what part of the gun hit the
ground and the position of the gun when it fell from the appellant's waist.

Third. In answer to the clarificatory questions of the court, the appellant testified that the
chamber of his pistol was loaded with bullets and was cocked when he placed it on his right
waistline.41 He also testified that the gun's safety lock was on. He was asked if the gun would
fire if the hammer is moved backward with the safety lock in place, and the appellant
admitted that even if he pulled hard on the trigger, the gun would not fire:

Q Is this your service firearm?

A Yes, Your Honor.

Q So the chamber might have been loaded when you went out of the house?

A Yes, Your Honor.

Q What about the hammer, how was the hammer at that time when you tucked
the gun in your waistline?

A The hammer was cocked like this.

COURT:

Can you not stipulate that the hammer is moved backwards near the safety grip.

ATTY. AND PROS. SINTAY:

Admitted, Your Honor.

ATTY. PEREZ:

Yes, Your Honor.

COURT: (to the witness)

Q You are a policeman, if there is a bullet inside the barrel of the gun and then
the hammer is moved backwards and therefore it is open, that means that if you pull
the trigger, the bullet will fire because the hammer will move forward and then hit the
base of the bullet?

A Yes, Your Honor.

Q Therefore, the gun was cocked when you came out?

A Yes, Your Honor.

Q You did not place the safety lock before you went out of your house?

A I safety (sic) it, sir.

Q So when you boarded the motorcycle, the gun was on a safety lock?

A Yes, Your Honor.

Q Will you please place the safety lock of that gun, point it upwards.

(witness did as instructed)

It is now on a safety locked (sic)?

A Yes, Your Honor.

Q Pull the trigger if the hammer will move forward?

(witness did as instructed)

A It will not, Your Honor.

COURT: (to the parties)

Q Can you not admit that at this position, the accused pulled the trigger, the
hammer did not move forward?

PROS. SINTAY AND ATTY. PRINCIPE:

Admitted, Your Honor.

COURT: (to the witness)

Q And therefore at this position, even if I pull the trigger many times, a bullet will
not come out from the muzzle of the gun because the hammer is on a safety locked
(sic)?

A Yes, Your Honor.

Q Even if I pushed it very hard, it will not fire the gun?

A Yes, Your Honor.

Q Alright, I will ask you again a question. If the hammer of the gun is like this and
therefore it is open but it is on a safety lock, there is space between the safety grip
which is found below the hammer, there is a space, is it not?

A Yes, Your Honor.

Q That even if I pushed the safety grip forward, like this.

The Court gave the gun to the accused for him to demonstrate.

(to the witness)

You push it forward in order to push the hammer. Hard if you want but do not remove
the safety lock.

(witness did as instructed)

The witness tried to push the safety grip and it does not touch the hammer even if
the hammer is cocked.42
Fourth. The trial court was witness as the appellant's counsel himself proved that the
defense proffered by the appellant was incredible. This can be gleaned from the decision of
the trial court:

3. More importantly, and which the Court considers it as providential, when the
counsel of the accused was holding the gun in a cocked position and the safety lock
put in place, the gun accidentally dropped on the cemented floor of the courtroom
and the gun did not fire and neither was the safety lock moved to its unlock position
to cause the hammer of the gun to move forward. The safety lock of the gun
remained in the same position as it was when it dropped on the floor.43

Fifth. After the shooting, the appellant refused to surrender himself and his service firearm.
He hid from the investigating police officers and concealed himself in the house of his friend
SPO3 Angelito Lam in Valenzuela City, and transferred from one house to another for three
days to prevent his arrest:

Q So did you surrender that afternoon of September 26, 1998?

A No, Your Honor.

Q I thought you were surrendering to Major Suyo?

A I was but I was not able to surrender to Major Suyo, Your Honor.

Q Why, you were already able to talk to Major Suyo?

A Because at that time I was already confused and did not know what to do, Your
Honor.

ATTY. PRINCIPE: (to the witness)

Q What is your relation with PO3 Angelito Lam of Valenzuela?

A Just my co-motorcycle unit cop in the TMG, sir.

Q Did I hear you right that you slept at the residence of PO3 Lam for three days?

A Yes, sir.

Q Why instead of going home to your residence at Bahay Toro?

A Because I am worried, sir.

COURT: (to the witness)

Q So what did you do for three days in the house of PO3 Lam?

A During daytime, I go to my friends, other friends and in the evening, I go back

to the house of PO3 Lam, Your Honor.
 Q So if you were able to visit your friends on September 27 or 28, 1998 and then
returned to the house of PO3 Lam in the evening, why did you not go to Major Suyo
or to your 103 Base?

A Your Honor, during those days I am really calling Major Suyo.

Q Why did you not go to your office at Camp Crame, Quezon City?

A At that time, I did not have money, Your Honor.

Q What is the connection of you having money to that of informing your officer
that you will surrender?

A What I know, Your Honor, is that if I do that I will already be detained and that I
will have no money to spend.

ATTY. PRINCIPE: (to the witness)

Q Mr. Witness, from the time of the incident up to Sept. 29, 1998, you did not
even visit your family in Barangay Bahay Toro?

A No, sir.

COURT: (to the witness)

Q Did you send somebody to visit your family?

A No, Your Honor.

ATTY. PRINCIPE: (to the witness)

Q Did you cause to blotter the shooting incident of Vincent?

A I was not able to do that, sir.

Q You did not even talk to the Bgy. Officials in Bgy. Bahay Toro?

A No sir, because I already brought the child to the hospital.44

The conduct of the appellant after the shooting belies his claim that the death of the victim
was accidental and that he was not negligent.

We agree with the encompassing disquisitions of the trial court in its decision on this matter:

The coup de grace against the claim of the accused, a policeman, that the victim was
accidentally shot was his failure to surrender himself and his gun immediately after
the incident. As a police officer, it is hard to believe that he would choose to flee and
keep himself out of sight for about three (3) days if he indeed was not at fault. It is
beyond human comprehension that a policeman, who professes innocence would
come out into the open only three (3) days from the incident and claim that the victim
 was accidentally shot. Human behavior dictates, especially when the accused is a
policeman, that when one is innocent of some acts or when one is in the
performance of a lawful act but causes injury to another without fault or negligence,
he would, at the first moment, surrender to the authorities and give an account of the
accident. His failure to do so would invite suspicion and whatever account or
statement he would give later on becomes doubtful.

For the accused, therefore, to claim that Vincent was accidentally shot is odious, if
not, an insult to human intelligence; it is incredible and unbelievable, and more of a
fantasy than a reality. It was a deliberate and intentional act, contrary to accused's
claim, that it happened outside the sway of his will.45

It is a well-entrenched rule that findings of facts of the trial court, its calibration of the
testimonies of the witnesses, its assessment of the credibility of the said witnesses and the
probative weight of their testimonies are accorded high respect, if not conclusive effect by
the appellate court, as the trial judge was in a better position to observe the demeanor and
conduct of the witnesses as they testified.46 We have carefully reviewed the records of the
case and found no reason to deviate from the findings of the trial court.

The testimony of prosecution witness Ricardo Salvo deserves credence. He testified in a

positive and straightforward manner, which testimony had the earmarks of truth and
sincerity. Even as he was subjected to a grueling cross-examination by the appellant's
counsel, he never wavered in his testimony. He positively identified the appellant as the
assailant and narrated in detail how the latter deliberately aimed his gun and shot the victim.
The relevant portions of his testimony are quoted:

Q: While playing basketball with Nono, LA and Puti, do you remember of any
unusual incident which took place?

A: Yes, sir.

Q: What was that unusual incident?

A: When Vincent was shot, sir.

Q: Who shot Vincent?

A: Ferdinand Fallorina, sir.

Q: And in what place that Vincent was shot by Fallorina?

A: He was at the roof of the karinderia, sir.

Q: Was there any companion of Vincent?

A: Yes, sir.

Q: What was the position of Vincent at that time that you saw him and Fallorina
shot him?
A: "Nakatalikod po siya."

Q: You included in this Exhibit O your drawing the figure of a certain Jeffrey and
you and his tricycle? Why did you include this drawing?

A: Because it was in the tricycle where Vincent was boarded to and brought to
the hospital.

(Witness referring to Exhibit O-11)

Q: And who was the driver of that tricycle?

A: It was Jeffrey who drove the tricycle, sir.

Q: You also drew here a motorcycle already marked as Exhibit O-7. Why did you
include the motorcycle?

A: Because Fallorina was riding on that motorcycle at that time.

COURT: (to the witness)

Q: So when Ferdinand Fallorina shot the boy, the motorcycle was moving?

A: It was stationary, your Honor.

Q: Did you see where he came from, I am referring to Fallorina before you saw
him shot the boy?

A: He came from their house, Your Honor.

Q: What was his attire, I am referring to Ferdinand Fallorina?

A: He was wearing white shirt and blue pants, Your Honor.

ATTY. PRINCIPE: (to the witness)

Q: At that time that Fallorina shot the victim, was Buddha still there?

A: He ran, sir. He jumped in this place, sir.

(Witness is pointing to a place near the canal already marked as Exhibit O-14).

Q: Now from the witness stand that you are now seated. Can you tell the Court
how far where (sic) you from Fallorina at that time of the shooting?
COURT:

Can the prosecution and the accused stipulate that the distance pointed to by the
witness is more or less 7 meters.

ATTY. PRINCIPE: (to the witness)

Q: How about the distance of Fallorina from Vincent, can you tell that?

COURT: (to the witness)

Can you point a distance between Fallorina and the boy at that time the body (sic)
was shot?

COURT:

10 meters more or less?

Q: How long have you known Ferdinand Fallorina before the incident?

A: More or less two years, sir.

Q: Why do you know him?

A: I usually see him in that place at Sitio Militar, especially on Sundays, sir.

Q: How many shots did you hear?

A: Only one, sir.

Q: Do you recognize the gun used by Fallorina?

A: Yes, sir.

Q: What was that gun?

A: .45 cal., sir.

Q: Are you familiar with .45 cal.?

A: No, sir.

Q: Why do you know that it was .45 cal.?

 A: Because that kind of gun, I usually see that in the movies, sir.

Q: Ricardo, you said that you have known Fallorina for two (2) years and you saw
him shot Vincent on September 26, 1998 at around 2:30 in the afternoon. Please
look around the courtroom now and point at the person of PO3 Ferdinand Fallorina?

CT. INTERPRETER:

Witness is pointing to a male person the one seated at the back of the lady and
wearing a yellow shirt and maong pants and when asked of his name, he stated his
name as Ferdinand Fallorina.

ATTY. PRINCIPE: (to the witness)

Q: Can you tell to the Court whether you heard utterances at that time that he
shot the victim?

A: Yes, sir.

Q: What was that?

A: "Putang inang mga batang ito, hindi kayo magsisibaba diyan!"

Q: After Fallorina shot Vincent Jorojoro, you saw Vincent Jorojoro falling from the
roof, what about Fallorina, what did he do?

A: He was still on board his motorcycle and then he went at the back of the
karinderia where Vincent fell, Your Honor.

Q: And after he went at the back of the karinderia and looked at Vincent Jorojoro,
what did he do?

A: He carried Vincent, Your Honor.

Q: And after carrying Vincent, what did he do?

A: He boarded Vincent in the tricycle.

Q: What about the gun, what did he do with the gun?

A: I do not know anymore.47

The appellant even uttered invectives at the victim and Whilcon before he shot the victim. In
fine, his act was deliberate and intentional.
It bears stressing that of the eyewitnesses listed in the Information as witnesses for the
prosecution, only Ricardo Salvo remained steadfast after he was brought under the Witness
Protection Program of the Department of Justice. He explained that the reason why he
testified for the prosecution, despite the fact that the appellant was a policeman, was
because he pitied the victim's mother who was always crying,48 unable to obtain justice for her
son. We find no ill motive why Ricardo would falsely testify against the appellant. It was only
his purest intention of ferreting out the truth in this incident and that justice be done to the
victim.49 Hence, the testimony of Ricardo is entitled to full faith and credence.

The Crime Committed by the Appellant

We agree with the trial court that the appellant committed murder under Article 248 of the
Revised Penal Code qualified by treachery. As the trial court correctly pointed out, Vincent
was shot intentionally while his back was turned against the appellant. The little boy was
merely flying his kite and was ready to get down from the roof when the appellant fired a shot
directed at him. The essence of treachery is the sudden and unexpected attack on an
unsuspecting victim without the slightest provocation on his part.50 Nonetheless, Vincent was
an eleven-year-old boy. He could not possibly put up a defense against the appellant, a
police officer who was armed with a gun. It is not so much as to put emphasis on the age of
the victim, rather it is more of a description of the young victim's state of helplessness.51 Minor
children, who by reason of their tender years, cannot be expected to put up a defense. When
an adult person illegally attacks a child, treachery exists.52

The abuse of superior strength as alleged in the Information is already absorbed by

treachery and need not be considered as a separate aggravating circumstance.53

We, however, note that the trial court appreciated the aggravating circumstance of abuse of
public position in this case. We reverse the trial court on this score.

There is no dispute that the appellant is a policeman and that he used his service firearm,
the .45 caliber pistol, in shooting the victim. However, there is no evidence on record that the
appellant took advantage of his position as a policeman when he shot the victim.54 The
shooting occurred only when the appellant saw the victim on the rooftop playing with his kite.
The trial court erred in appreciating abuse of public position against the appellant.

The trial court did not, however, err in ruling that the appellant is not entitled to the mitigating
circumstance of voluntary surrender. Surrender is said to be voluntary when it is done by the
accused spontaneously and made in such a manner that it shows the intent of the accused
to surrender unconditionally to the authorities, either because he acknowledges his guilt or
he wishes to save them the trouble and expense necessarily incurred in his search and
capture.55

In this case, the appellant deliberately evaded arrest, hid in the house of PO3 Lam in
Valenzuela City, and even moved from one house to another for three days. The appellant
was a policeman who swore to obey the law. He made it difficult for his brother-officers to
arrest him and terminate their investigation. It was only after the lapse of three days that the
appellant gave himself up and surrendered his service firearm.

Under Article 248 of the Revised Penal Code, the penalty for murder is reclusion perpetua to
death. Since there is no modifying circumstance in the commission of the crime, the
appellant should be sentenced to suffer the penalty of reclusion perpetua, conformably to
Article 63 of the Revised Penal Code.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Quezon
City, Branch 95, is AFFIRMED WITH MODIFICATION. The appellant PO3 Ferdinand
Fallorina y Fernando is found guilty beyond reasonable doubt of the crime of murder under
Article 248 of the Revised Penal Code and, there being no modifying circumstances in the
commission of the crime, is hereby sentenced to suffer the penalty of reclusion perpetua. He
is also ordered to pay the heirs of the victim Vincent Jorojoro, Jr. the amount of P49,174 as
actual damages; P50,000 as moral damages; P50,000 as civil indemnity; and P25,000 as
exemplary damages.

SO ORDERED.

G.R. No. L-37908 October 23, 1981

THE PEOPLE OF THE PHILIPPINES, plaintiff-appelle,

vs.
BENJAMIN ONG y KHO, and BIENVENIDO QUINTOS y SUMALJAG previously
convicted as affirmed in G.R. No. L-34497, accused, BLDOMERO AMBORSIO, alias
"VAL", Defendant-appellant.

On the night of April 23, 1971, victim Henry Chua was last seen alive in the company of his
friend Benjamin Ong. As Chua failed to return to his home,his family, alarmed by his
mysterious desappearance, sought the help of the National Bureau of Investigation, the
Manila Police Department, and the Philippine Constabulary to locate him. Knowing that
Bajamin Ong was the last person with Chua before the disappearance of the latter, the NBI
tried to contact Ong. Ong also disappeared, so the various police agnecies began a manhunt
for the apprehension of Ong.

Banjamin Ong was apprehended on August 29, 1971, in Stio patanda, Barrio Balugo, Oas,
albay, Brouth to Ligao, Albay, Ong denied any knowledge of the desappearance of Chua.
When Ong was transferred to CampVicente Lim in Laguna, he attempted to commit suicide.
On September 1, 1971, when Ong was turned over to the NBI for investigation, he
unhesitatingly confessed his responsiblity for the killing of Henry Chua. Ong implicated
Bienvienido Quintos as one of his companions in the cirme. When quintos was arrested he
also admitted his participation in the crime, and pointed to Fernando Tan and Baldomero
Ambrosio as their companions in the perpetration of the crime, stating the details of its
execution.

Based on the confessions of Ong and Quintos, the NBI and the Manila Police Department
were able to recover the body of Henry Chua in a state of advanced decomposition. The
Identity of the body of Chua was confirmed by Siy Giap Chua, brother of Henry. 1 both
Benjamin Ong and Bienvenido Quintos were tried (CCC-VII-922-Rizal, for "kidnapping with
Murder") and convicted by the Circuit Criminal Court of Pasig, Rizal, Seventh, Judicial
District, (Judge Onofre A.Villaluz) in the "Sentence", dated October 11, 1971. 2 As both Ong
and Quintos were sentenced to death, the criminal case was elevated on automatic review to
this Court (G.R. No. L-34497). This Court in its decision dated January 30, 1975, 3 found the
two accused Benjamin Ong y Kho and Bienvenido Quintos y Sumaljag guilty beyond
reasonable doubt of the crime of murder, with the qualifying circumstance of treachery, and
the aggravating circumstances of evident premeditation and use of motor vehicle offset by
the mitigating circumstances of plea of guilty and one analoguous to passion or obfuscation,
thereby imposing the penalty of reclusion perpetua on both of them. 4 Said decision became
final and executory on February 19, 1975. 5

At the time Benjamin Ong and Bienvenido Quintos were tried and convicted by the trial court,
accused Baldomero Ambrosio and Fernando Tan, Alias Oscar Tan, were still at large. 6

After the arrest of accused Baldomero Ambrosio sometime in August of 1972, 7 an

information was filed by the Provincial Fiscal of Rizal against him, to wit:

The undersigned Provincial Fiscal accuses Benjamin Ong y Kho, Bienvenido

Quintos y Sumaljag, Fernando Tan alias "Oscar Tan", and Baldomero
Ambrosio alias "Val" of the crime of Kidnapping with Murder, committed as
follows:

That on or about April 23 to April 24, 1971, inclusive, in the municipality of

Parañaque, province of Rizal, Philippines, and within the jurisdiction of this
Honorable court, the above named accused, being then private individuals,
conspiring and confederating totether and mutually helping one another, did
then 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, kidnapped
and carried away said Henry Chua, initially by means of friendly gestures 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 killed 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 note, he was again
gagged and tied up by the accused, and thereafter stabbed in the abdominal
region, several times with an ice-pick, 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 premeditations;

(b) Grave abuse of confidence;

(c) Nighttime;

(d) Use of an motor vehicle ;

(e) Use of uperior strenght;

(f) Cruelty. 8

The accused Baldomero Ambrosio pleaded not guilty upon arraignment on August 26, 1972,
was tried, and the trial court rendered its decision dated October 17, 1973, with dispositive
portion, to wit:
 WHEREFORE, finding the accused Baldomero Ambrosio, Guilty, beyond
reasonable doubt of the crime of Kidanapping with Murder as defined under
Article 248 of the Revised Penal Code, in relation to Article 267 thereto, as
charged in the Information, the Court hereby sentences him to suffer the
penalty of Death; to indemnify the heirs of the offended party the amount of
P12,000.00; to pay moral damges in the amount of P10,000.00 and another
P10,000.00 as exemplary damges jointly and severally with Benjamin Ong
and Bienvienido Quintos; and to pay his proportionable share of the costs.

So Ordered. 9

The evidence for the prosecution, essentially the same as presented and reviewed by
automatic appeal, by this Court in G.R. No. L,34497, established its version as follows:

Dr. Ricardo Ibarrola, Medico-Legal Officer of the National Bureau of Investigation stated that
he conducted the autopsy of the deceased Henry Chua, and prepared the necropsy report
Exh. "M". The body of the deceased at the time of the autopsy was already in a far advanced
state of decomposition. The brains, lungs. and other soft tissues of the body were already
tot:ally decomposed while some of the internal organs, like the heart and the liver were
already autolized. Dr. Ibarrola located two stab wounds on the liver, caused by a sharp
pointed piercing implement, most probably an ice-pick. He attributed death to these stab
wounds, although he gave the considered opinion that death could have been hastened by
asphyxiation as the probability existed that Henry Chua was by alive. 10

The body of Henry Chua was Identified by his brother, Siy Giap who was present when the
body was exhumed from a shallow grave in Barrio Makatipo Caloocan City. His Identification
of the body was based on the clothes and shoes worn by the deceased, as well as the
personal effects found on it, including an expensive Piaget white gold watch, a lighter, a
wallet with driver's license, Diner's card and other personal papers. 11

Agents Enrique Lacanilao and Diego Gutierrez of the National Bureau of Investigation
investigated the accused Benjamin Ong and Bienvenido Quintos. The original and
supplementary extrajudicial confessions of Ong and Quintos 12 which led to the successful
discovery of the place where Henry Chua was buried and the subsequent exhumation of the
body 13 were Identified by these agents. These witnesses also revealed the recovery of the
rope with which Chua's hands were tied and the flannel cloth with which he was gagged
when he was killed. 14 Both agents testified on the re-enactment of the crime." 15 In the course
of investigation of accused Benjamin Ong and Bienvenido Quintos, the accused Baldomero
Ambrosio was implicated. When accused Ambrosio was arrested in August of 1972, he was
brought to the NBI office by the Chief of Police of Batan, Aklan. Ambrosio voluntarily gave
the extrajudicial statement Exhibit "S". 16

Ceferino Castro of the Baliwag Police Department narrated the discovery of Henry Chua's
Mustang car with Plate No. 1602 which was abandoned near a gasoline station at barrio
They, Baliwag, Bulacan. The pictures of the car were identified. 17

Patrolman Marciano Roque of the Caloocan City Police Department, narrated the alleged
plan to kin Chua as initiated by Benjamin Ong. Roque knew Ong for more than five years as
the Assistant Manager of the Acme Shoes Rubber and Plastic Corporation, a company
situated in Caloocan City, owned by Ong's brother-in-law Chua Pak. During the first week of
April, 1971, Roque went to the Acme office to get a pair of rubber sandals. Benjamin Ong
invited Roque for a ride in Ong's car, where Ong revealed his plan to kidnap a person who
allegedly cheated Ong in gambling games. Roque tried to discourage Ong from carrying out
his plan. The latter insisted and asked Roque to assist him during the several meetings that
followed between Ong and Roque. Roque claimed he was taken by Ong to Barrio Matipo,
Caloocan City, and shown the place where Ong planned to bury the person he planned to
kidnap and kill. In one of the meetings between Roque and Ong, the former saw a man
seated at the rear of Ong's car and the latter referred to that man as his godson who will help
him in the execution of the crime. That man turned out to be the accused Baldomero
Ambrosia Ong tried to persuade Roque to join the plan as the father of the intended victim
happens to be a very rich man and the ransom money they expected to get would enable
Roque to leave the police force and retire. Roque tried to avoid Ong and urged the latter to
forget the matter. 18

Bienvenido Quintos who was previously accused and convicted of the crimes," of
murder, 19 implicated Balintawak. Ambrosio when the former testified in his defense during
that trial of CCC-VII-922-Rizal against Ong and Quintos. 20Quintos stated that he could
recognize his co-accused, then at large, Fernando Tan and Baldomero Ambrosia On April
23, 1971, Quintos and Tan met Ong and Ambrosio at the Barrio Fiesta restaurant in
Caloocan City. At about 9:00 p.m. they went to the Brown Derby restaurant at Quezon
Boulevard Extension, riding in the Chevrolet car of Ong. They , proceeded afterwards to
Roxas Boulevard where Ong ordered his driver Ambrosio to stop at the Amihan Night Club.
While Ambrosio and Quintos stayed in the car, Ong and Tan went inside the night club. Tan
returned to the car and invited Quintos to go to the nearby Wigwam Night Club. After a while,
Tan and Quintos returned. Tan sat beside the driver Ambrosio while Quintos sat at the rear
seat. They followed another car — a Mustang — from Dewey Boulevard to Cruelty Hall, then
to Quiapo, Espana and Quezon Boulevard Extension, Quezon City. They passed Sto.
Domingo Church, made a U-turn, and turned right to Talayan Village. Quintos saw the car
they were following stop in a dark place, and Ambrosio alighted from their Chevrolet car. Tan
pulled a gun as he went to the other parked car — the Mustang. Quintos followed the two
and he saw Tan approach and point a gun at a man while Ambrosio pulled that man out of
the Mustang. That man was the victim, Henry Chua. Tan and Ambrosio forced Chua to the
rear seat of the Chevrolet car, then compelled him to lie down on the floor. Ambrosio took a
rope and tied the feet and hands of the victim, while Tan took a flannel cloth and gagged that
man. They took the route going to San Francisco del Monte Avenue. In the meantime, Ong
rode in the Mustang car and followed them. They, all went to Novaliches road. At a narrow
street along the way both cars stopped. Tan and Ambrosio took the victim from the car as
Ong arrived. That man was made to walk and then made to lie down face up. Ong gave Tan
an ice-pick and ordered "patayin na iyan " (kill him already), who in turn gave the ice-pick to
Ambrosia For his part, Ambrosio gave the ice-pick to Quintos. However, Quintos returned it
to Tan, who said "Hindi ka pa pala puwede " (You are not capable yet). Whereupon, Tan told
Ambrosio to focus a flashlight on the center of the front side of the body of Henry Chua. Tan
stabbed Chua twice on the chest. While Tan lighted their way, Ambrosio carried the upper
portion of the body, while Quintos carrying the lower portion. When Quintos got tired, Tan
gave him the flashlight while Tan and Ambrosio carried the body to a hole. The hole was
covered by Ambrosio Ong then stepped repeatedly over the covered hole to compress the
earth. They, returned to the car. Ong drove the Mustang car together with Tan. Quintos and
Ambrosio rode in the Chevrolet car, driven by the latter. They, followed the Mustang to the
highway. Later, it was parked and abandoned near a gasoline station. Then Ong and Tan
joined Quintos and Ambrosio in the Chevrolet and they proceeded to Manila. 21

The version of the defense is as follows:

Accused Baldomero Ambrosio stated that in 1971, he was a family driver of Roger Chen,
and before that employment, he worked for seven years at the Acme Shoes Rubber
Corporation. Accused Benjamin Ong was the manager of the Acme Shoes Rubber
Corporation while the accused Tan was a supervisor in the same company. Ambrosio
alleged that Tan was a man of bad reputation, involved in a killing incident and kidnapping of
a woman. 22

In the evening of April 23, 1971, Ong, with Tan and Quintos, picked up Ambrosio from his
place so that the latter could drive for Ong. They, went to a restaurant at Balintawak known
as Barrio Fiesta. They then went to the Amihan Night Club at the Dewey Boulevard. Ong,
Quintos and Tan alighted from the car while Ambrosia remained in the car and he slept.
(Barrio trio woke up Ambrosio at about 1:00 a.m. Tan and Quintos rode with Ambrosio where
Ong was riding. They went towards Espana. At the Araneta Avenue, the car where Ong was
riding stopped. Tan ordered Ambrosio to stop in front of the car. Tan and Quintos went to the
other car. Tan introduced himself as a policeman, then he opened the door of the car and
pulled the driver out. 23

'The narration of Ambrosio as to how the crimes," happened substantially coincided in details
to the manner it was described by Quintos. 24 Ambrosia however, claimed that he did not
participate voluntarily in the crime, but rather he was ordered by Tan as to all the acts he did
during the execution of the offense.

Accused Ambrosio admitted that at about 4:00 p.m. of April 24, 1971, he and his wife went to
Arayat, Pampanga. They, stayed two days in Arayat, then he proceeded to his brother's
place in Balintawak. He then went to Aklan up to the time he. 25 He denied that Ong pointed
was arrested in August of 1972. to him as a godson in the presence of Patrolman
Roque. 26 Ambrosio likewise denied that even before April 23, 1971, he was already with
Ong, Quintos and Tan and that Ambrosio already dug that hole in Novaliches where the
body of Chua was placed. 27

He also claimed that the extrajudicial statement Exhibit S " was signed by him because he
was maltreated. 28

The principal thrust of the defense's argument that the trial court never acquired jurisdiction
over the subject matter of this case (complex crimes," of kidnapping with murder) because its
jurisdiction as a Circuit Criminal Court is limited to ... (a) crimes committed by public
officers, crimes against persons and crimes against property as defined and penalized under
the Revised Penal Code, whether simple or complex with other crimes," and kidnapping is
not one of the crimes that may be tried and decided by that court, becomes of no moment
when this Court in G.R. No. 34497 ruled that Ong and Quintos were guilty of murder and not
kidnapping with murder. 29 The co-accused of Ambrosio were, therefore, tried and convicted
of the crimes," of murder, a crimes," against persons, certainly within the jurisdiction of the
circuit criminal court that rendered judgment in this case.

The only issue in this case, therefore, is whether or not the accused Ambrosio voluntarily
participated in the commission of the crime. That the crimes," of murder was committed has
already been established by the prosecution beyond reasonable doubt when this Court
convicted Ong and Quintos in G.R. No. L-34497. This Court already ruled that "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
crimes," and were at the scene in all its stages. They cannot escape the consequences 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 the execution.
Thus, treachery should be considered against all persons participating or cooperating in the
perpetration of the crime." 30

The defense of the accused Ambrosio that he was an unwilling participant in the killing of
Henry Chua because of threats made by Fernando Tan, to Our mind, cannot be given
credence. Quintos, as shown in his testimony, (Exh. "1") by narrated how Ambrosio
participated in the crime, manifesting voluntariness in his acts throughout the execution of
the same. Ambrosio was the one who pulled Chua from the Mustang car. Ambrosio provided
the rope and tied the hands and feet of Chua. He was the one who drove the car with the
victim inside to that place in Novaliches where they by Chua after killing him. He focused the
flashlight on the chest of the victim when Tan stabbed him. He helped carry the victim to the
hole where he was buried, and Ambrosio covered the hole with earth using a spade. Exhibit
"I" for the defense is certainly binding on it.

Ambrosio admitted that he went to different places and to Aklan after the crimes," was
committed, and he was arrested only in August of 1972, nearly two years after the crimes,"
was committed. He never revealed to the authorities the crimes," that he alleged to be an
unwilling participant of in that long span of time. He also admitted that there were at least two
times when he could have escaped from the group of Ong when the crimes," was being
executed and yet Ambrosio never did so. During the execution of the felon', Ambrosio never
by act or deed protested to the group regarding its cruel commission. We also cannot fully
understand why Ambrosio had to join the group of Tan, if according to Ambrosia himself, Tan
was a man of bad reputation. 31 Tan has never been apprehended. The defense of Ambrosio
that he was threatened by Tan to participate in the crimes," stands uncorroborated, as
contradicted by the testimony of Quintos.The inevitable conclusion is that Ambrosio
voluntarily participated in the commission of the crime.

The trial court did not err in discrediting Ambrosio's claim that he was maltreated by the
agents of the law to extract his extra-judicial statement. (Exhs. "S"). He never did protest the
alleged maltreatment before the Regional Director Nestor Gonzales before whom he signed
the statement. Although he had all the chances to do so, he never filed charges against the
persons who allegedly maltreated him. 32 The confession of the accused Exhibits "S" is,
therefore, admissible against him.

As to the aggravating and mitigating circumstances present in the commission of the crime,
this Court already ruled in G.R. No. L-34497, that treachery (alevosia) qualified the killing of
Chua to murder. Chua's hands were tied and his mouth was gagged when he was stabbed
twice with an ice-pick. Chua was defenseless and helpless enabling the accused to commit
the crimes," without risk to them. The aggravating circumstance of abuse of superior strength
is absorbed in treachery. The aggravating circumstance of nighttime (nocturnidad) cannot be
absorbed in treachery because in this crimes," treachery arose from the defenseless position
of Chua when he was killed, while nighttime was purposely sought by the accused to
facilitate immunity in the commission of the crime. The aggravating circumstance of
uninhabited place (despoblado) is also present, due to the deliberate selection of an isolated
place (Barrio Makatipo Novaliches, Caloocan City) for killing and burying the victim. Abuse of
confidence cannot be considered as an aggravating circumstance present in the crime,
because it does not appear that the victim Chua ever reposed confidence on Ong. Chua
knew that he was far stronger in money and influence than Ong. The fact that Henry Chua
invited Ong night clubbing on that fatal evening and accommodated the latter in his car did
not show that Chua had confidence in Ong.
The aggravating circumstance of use of motor vehicle in the commission of the crimes," can
be considered present because the Biscayne car of Ong was used to trail the victim's car
and to facilitate the commission of the crimes," and the escape of the accused.

Cruelty (ensañamiento) cannot be considered because there is no evidence that the victim
Chua was by while still alive to make him suffer.

Evident premeditation attended the commission of the crimes, because the accused
meditated, planned, and tenaciously persisted in the accomplishment of the crime.

Accused Ong was given the mitigating circumstances of plea of guilty and one analogous to
passion and obfuscation" 33 because Chua previously threatened Ong for non-payment of
debt arising from gambling, causing Ong humiliation and shame. 34

Taking into consideration the above aggravating and mitigating circumstances, Ong was
sentenced to reclusion perpetua. 35 Accused Quintos, although no mitigating circumstance
could be appreciated in his favor, was also sentenced to reclusion perpetua. Ong and
Quintos were also sentenced "jointly and severally to indemnify the heirs of the deceased
Henry Chua in the amount of P12,000.00; to pay moral damages in the asphyxiation of
P50,000.00; and another P50,000.00 as exemplary damages; and to pay their proportionate
share of the costs. 36

The present case (G.R. No. L-37908) already pending review iii this Court when G.R. No. L-
34497 was decided on January 30, 1975, should have been decided together with the latter
case, as they arose from the same crime, involving the same accused.

It is Our considered view that the accused Baidomero Ambrosio stands in this case on a
similarly situated position as convicted accused Bienvenido Quintos in G.R. No. L-34497,
and should, therefore be sentenced to reclusion perpetua, and not death.

WHEREFORE, the decision of the trial court dated October 17, 1973, is hereby, MODIFIED,
finding the accused Baidomero Ambrosio guilty beyond reasonable doubt of the crime of
Murder and sentencing him to reclusion perpetual to indemnify jointly and severally with his
co-accused, the heirs of the deceased Henry Chua in the asphyxiation of P12,000.00; to pay
moral damages in the asphyxiation of P50,000.00; and another P50,000.00 as exemplary
damages; and to pay his proportionate share of the costs.

SOORDERED.

Fernando, C.J, Teehankee, Barredo, Makasiar, Fernandez, Guerrero, Abad Santos, De

Castro and Melencio-Herrera, JJ., concur.

Separate Opinions

AQUINO, J., concurring:

The role played by Baldomero Ambrosio, the godson of Benjamin Ong, in the murder of
Henry Chua, is described in this Court's decision in People vs. Ong, L-34497, 62 SCRA 174,
2 10, as follows:

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 down
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.

There can be no doubt as to Ambrosio's complicity in the murder of Chua.

G.R. No. 213216 April 20, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
RICKY ARGUTA alias "JOEL" and WILSON CAHIPE alias "SIWIT," Accused-Appellants.

DECISION

PERLAS-BERNABE, J.:

Before the Court is an ordinary appeal1 filed by accused-appellants Ricky Arguta alias "Joel"
(Arguta) and Wilson Cahipe alias "Siwit" (Cahipe; collectively, accused-appellants) assailing
the Decision2 dated April 24, 2014 of the Court of Appeals (CA) in CA-G.R. CEB-CR HC No.
01462, which affirmed with modification the Decision3 dated July 25, 2008 of the Regional
Trial Court of Tacloban City, Branch 6 (RTC) in Crim. Case Nos. 97-02-76 and 97-02-77
finding accused-appellants guilty beyond reasonable doubt of one (1) count of Rape, defined
and penalized under the Revised Penal Code (RPC), as amended.

The Facts

On January 30, 1997 two (2) criminal informations were filed before the RTC charging
Cahipe with two (2) counts of Rape, and Arguta of one (1) count of the same crime, viz.:

Crim. Case No. 97..:02-76

That on or about the 5th day of December 1996 in the Municipality of Tanauan, Province of
Leyte, Philippines and within the Jurisdiction of this Honorable Court, the above-named
[accused-appellants], conspiring, confederating and mutually helping each other, motivated
by lewd design. with the use of a bladed weapon, by means of force and intimidation, did
then and there willfully, unlawfully and feloniously, have carnal knowledge of [AAA],4 without
her consent and against her will.
Contrary to Law.

Tacloban City, January 30, 1997.

Crim. Case No. 97-02-77

That on or about the 5th day of December 1996, in the Municipality of Tanauan, Province of
Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused [Cahipc], motivated by lewd design, by means of force and intimidation, did then
and there willfully, unlawfully and feloniously, have carnal knowledge of [AAA], without her
consent and against her will.

Contrary to Law.

Tacloban City, January 30, 1997.5

According to the prosecution, at around 8 o'clock6 in the evening of December 5, 1996, AAA
was instructed by her father to fetch her sister in school. However, AAA failed to find her
sister and decided to go back home. On her way home, accused-appellants intercepted
AAA, threatened her with a bladed weapon, dragged her to a cottage at a nearby beach
resort, and bound her hands and feet. Thereafter, they removed her clothes and placed her
on the floor. Arguta then mounted AAA and inserted his penis into her vagina. After Arguta
satisfied his lust, Cahipe took over and raped her. Thereafter, accused-appellants left AAA at
the cottage. An hour later, Cahipe returned and dragged AAA to a store owned by a certain
Lino Ostero7 (Ostero). There Cahipe undressed her again, mounted her, and inserted his
penis into her vagina. Afterwards, AAA was returned to the cottage. The next day, AAA's
father found her crying at the cottage.8

Further, the prosecution offered the findings of the physical examination by a certain Dr.
Eilleen Colaba on AAA, stating, inter alia, that: (a) AAA's genitalia was grossly normal, which
means no abnormality; (b) AAA has complete healed hymenal lacerations at the 5 o'clock
and 7 o'clock positions and a partially healed hymenal laceration at the 12 o'clock position;
and (c) AAA's genitalia is negative for the presence of spermatozoa.9

In their defense, accused-appellants both denied the accusations leveled against them, and
offered their respective alibis. Cahipe claimed that on the date and time of the alleged
incident he was minding Ostero's store. On the other hand, Arguta averred that he was at
Ostero' s house watching television during the time that the incident supposedly occurred.
They both asserted that they did not know why AAA would accuse them of raping her.10

The RTC Ruling

In a Decision11 dated July 25, 2008, the RTC found accused-appellants guilty beyond
reasonable doubt of the crime of Simple Rape in Crim. Case No. 97-02-76 and, accordingly,
sentenced them to suffer the penalty of reclusion perpetua and ordered them to pay AAA,
jointly and severally, the amounts of ₱50,000.00 as civil indemnity and ₱50,000.00 as moral
damages. Further, the RTC found Cahipe not guilty of the crime of Rape in Crim. Case No.
97-02-77 and, accordingly, acquitted him due to insufficiency of evidence.12

In finding the guilt of accused-appellants, the RTC held that AAA's testimony, as well as the
medico-legal report, established that on December 5, 1996, accused-appellants intercepted
AAA, threatened her with a bladed weapon, dragged her to a nearby cottage, undressed her,
bound her, and took turns raping her. The RTC did not lend credence to accused-appellants'
defense of denial and alibi, in light of the positive assertions made by AAA, and considering
that it was not physically impossible for them to have been at the place of the crime on the
date of the incident.13

However, as regards the second count of Rape against Cahipe, the RTC opined that it would
be unusual for AAA, who had just been raped and left alone in the cottage, to not attempt to
escape or shout for help when she was being transported to Ostero' s store and back to the
cottage, observing that AAA had to pass Ostero's house before reaching the latter's store.
According to the R TC, these pose serious doubts as to the existence of the second rape
charge, thus, necessitating its dismissal.14

Dissatisfied, accused-appellants appealed their conviction to the CA.

The CA Ruling

In a Decision15 dated April 24, 2014, the CA affirmed accused-appellants' conviction with
modification ordering the accused-appellants to jointly and severally pay AAA the amount of
₱30,000.00 as exemplary damages, in addition to the other amounts already awarded, and
imposed interest at the rate of six percent (6%) per annum on all the monetary awards from
the date of finality of its Decision until fully paid.16

Agreeing with the R TC' s findings, the CA ruled that AAA' s categorical and straightforward
testimony prevailed over accused-appellants' denial and alibi. It observed that accused-
appellants were in the vicinity of the locus criminis at the time of the incident, and that the
two could easily reach the cottage where the rape occurred.17 Thus, it concluded that
accused-appellants' actions fell squarely within the definition of Rape under Article 266-A of
the RPC, noting that accused-appellants had carnal knowledge of AAA, and such was
attained through force, threat, or intimidation.18

Aggrieved, accused-appellants filed the instant appeal.

The Issue Before the Court

The issue for the Court's resolution is whether accused-appellants' conviction for Rape
should be upheld.

The Court's Ruling

The appeal is bereft of merit.

At the outset, it must be stressed that in criminal cases, an appeal throws the entire case
wide open for review and the reviewing tribunal can correct errors, though unassigned in the
appealed judgment, or even reverse the trial court's decision based on grounds other than
those that the parties raised as errors.19 The appeal confers upon the appellate court full
jurisdiction over the case and renders such court competent to examine records, revise the
judgment appealed from, increase the penalty, and cite the proper provision of the penal
law.20 Proceeding from the foregoing, the Court deems it appropriate to modify accused-
appellants' conviction from Simple Rape to Qualified Rape, as will be explained hereunder.
In this case, the Court notes that the rape occurred during the effectivity of the old rape
provision of the RPC, i.e., Article 335,21 and, thus, the latter provision is controlling in this
case, to wit:

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 or is demented.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be reclusion perpetua to death.

x x x x (Emphasis and underscoring supplied)

Under this provision, the elements of Rape are: (a) the offender had carnal knowledge of the
victim; and (b) said carnal knowledge was accomplished through the use of force or
intimidation; or the victim was deprived of reason or otherwise unconscious; or when the
victim was under twelve (12) years of age or demented.22 The provision also states that if the
act is committed either with the use of a deadly weapon or by two (2) or more persons, the
crime will be Qualified Rape, necessitating the imposition of a higher penalty.23 In People v.
Lamberte,24 the Court clarified the legal effect of the presence of both circumstances, as
follows:

The presence of either circumstance - "use of a deadly weapon" or "by two or more persons"
- qualifies the crime. If one is present, the remaining circumstance, if also attendant, is not a
1âwphi1

generic aggravating circumstance. That was our ruling in People vs. Garcia, [192 Phil. 311,
342] (1981) reading:

In the prosecution of the cases at bar, two circumstances are present, namely. 1. use of a
deadly weapon and 2. that two persons committed the rapes. The first was alleged in the
information while the second was proved during trial. In both cases, the Court appreciated
the first as a qualifying circumstance and the second as a generic aggravating circumstance,
in accordance with settled jurisprudence according to the trial court.

We do not agree. Under the law above quoted, either circumstance is qualifying. When the
two circumstances are present, there is no legal basis to consider the remaining
circumstance as a generic aggravating circumstance for either is not considered as such
under Article 14 of the Revised Penal Code enumerating what are aggravating
circumstances. Hence, the correct penalty is the lesser penalty, which is reclusion perpetua,
there being no aggravating or mitigating circumstance, pursuant to Article 63, paragraph 2,
No. 2, Revised Penal Code.25(Emphases and underscoring supplied)

In this case, records reveal that accused-appellants threatened AAA with a bladed
instrument and tied her up before having carnal knowledge of her without her consent.
Jurisprudence holds that force or intimidation, as an element of Rape, need not be
irresistible; as long as the assailant's objective is accomplished, any question of whether the
force employed was irresistible or not becomes irrelevant. Intimidation must be viewed from
the lens of the victim's perception and judgment and it is enough that the victim fears that
something will happen to her should she resist her assailant's advances.26 In this regard,
case law provides that the act of holding a bladed instrument, by itself, is strongly suggestive
of force or, at least, intimidation, and threatening the victim with the same is sufficient to
bring her into submission.27

In view of the foregoing, the Court finds no reason to deviate from the findings of fact made
by the courts a quo that accused-appellants are guilty as charged, i.e., of raping AAA with
the use of a deadly weapon, as the same are supported by the records. It must be noted that
the assessment and findings of the trial court are generally accorded great weight, and are
conclusive and binding to the Court if not tainted with arbitrariness or oversight of some fact
or circumstance of weight and influence,28 as in this case. Nevertheless, considering that the
crime was committed by two (2) persons, the accused-appellants herein, with the use of a
bladed weapon, it is only appropriate to increase their conviction from Simple Rape to
Qualified Rape. Anent the proper penalty to be imposed, Section 3 of Republic Act No.
934629 provides that "[p]ersons convicted of offenses punished with reclusion perpetua, or
whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be
eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law,
as amended." Pursuant thereto, accused-appellants should be sentenced with the penalty of
reclusion perpetua, without eligibility for parole.30

Finally, to conform with prevailing jurisprudence, the Court increases the award of damages
in favor of AAA to the amounts of ₱75,000.00 as civil indemnity, ₱75,000.00 as moral
damages, and ₱30,000.00 as exemplary damages, with six percent (6%) legal interest per
annum on all the monetary awards from the date of finality of judgment until fully paid.31

WHEREFORE, the appeal is DENIED. The Decision dated April 24, 2014 of the Court of
Appeals in CA-G.R. CEB-CR HC No. 01462 is hereby AFFIRMED, finding accused-
appellants Ricky Arguta alias "Joel" and Wilson Cahipe alias "Siwit" (accused-appellants)
GUILTY beyond reasonable doubt of the crime of Qualified Rape as defined and penalized
under Article 335 of the Revised Penal Code with MODIFICATION sentencing accused-
appellants to suffer the penalty of reclusion perpetua, without eligibility for parole, and
ordering them to jointly and severally pay AAA the amounts of ₱75,000.00 as civil indemnity,
₱75,000.00 as moral damages, and ₱30,000.00 as exemplary damages, with legal interest
at the rate of six percent (6%) per annum on all the monetary awards from the date of finality
of this Decision until fully paid.

SO ORDERED.