G.R. No. 208170 August 20, 2014 associate Kelly Wei in Hong Kong.
associate Kelly Wei in Hong Kong. He noted that while he was on the phone conversing with his associate,
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
PETRUS YAU a.k.a. "John" and "Ricky" and SUSANA YAU y SUMOGBA a.k.a.
"Susan", Accused-Appellants.
DECISION
MENDOZA, J.:
This is an appeal from the September 7, 2012 Decision1 of the Court of Appeals (CA), in CA-G.R. CR-I-IC
No. 03446, which affirmed the December 14, 2007 Decision2 of the Regional Trial Court, Branch 214,
Mandaluyong City (RTC). in Criminal Case No. MC-04-7923. The RTC found accused-appellant Petrus
Yau (Petrus) guilty beyond reasonable doubt as principal of the crime of kidnapping for ransom and
serious illegal detention, as defined and penalized in Article 267 of the Revised Penal Code (RPC), as
amended by Republic Act No. 7659, (R.A. No. 7659), and convicted accused-appellant Susana Yau y
Sumogba (Susana)as an accomplice to the commission of the same crime.
The Facts
Petrus and Susana were charged with the crime of Kidnapping For Ransom in the Information,3 dated
February 13, 2004, the accusatory portion of which reads:
That on or about January 20, 2004, at around 2:00 P.M. in the vicinity of Shoemart Mega Mall,
Mandaluyong City, the abovenamed accused, conspiring, confederating and mutually helping one another,
with the use of a sleeping substance, did then and there, willfully, unlawfully and feloniously kidnap and
take away ALASTAIR JOSEPH ONGLINGSWAM inthe following manner, to wit: while said ALASTAIR
JOSEPH ONGLINGSWAM was on board a white Toyota taxi cab with plate number PVD-115 being
driven by the above-named accused Petrus Yau a.k.a. "John" and "Ricky" and the taxi cab was travelling
along Epifanio Delos Santos (EDSA) Avenue, he suddenly fell unconscious and upon regaining
consciousness he was already handcuffed and in chains inside a house located at B23, L2, Ponsettia St.,
Camilla Sorrento Homes, Panapaan IV, Bacoor, Cavite, where he was kept for twenty two (22) days, which
house is owned by accused Susana Yau y Sumogba and while therein he was maltreated; that ransom in the
amount of SIX HUNDRED THOUSAND DOLLARS (US$600,000.00) and TWENTY THOUSAND
PESOS (Php20,000.00) for each day of detention was demanded in exchangefor his safe release until he
was finally rescued on February 11,2004, by PACER operatives of the Philippine National Police.
CONTRARY TO LAW.
Version of the Prosecution
In the Appellee’s Brief,4 the Office of the Solicitor General (OSG) presented the following narration of the
kidnapping:
On January 20, 2004, at around 1:30 in the afternoon, private complainant Alastair Onglingswam, who is a
practicing lawyer and businessman from the United States, went out of Makati Shangrila Hotel, where he
was billeted, and hailed a white Toyota taxi cab with plate number PVD-115 to take him from the said
hotel to Virra Mall Shopping Center in San Juan, Metro Manila. While the said taxicab was plying along
EDSA, and within the vicinity of SM Megamall, private complainant received a phone call from his
appellant Petrus Yau, whom he noted to have short black hair, a moustache and gold framed eyeglasses,
would from time to time turn to him and talk as if he was also being spoken to. Thereafter, he felt groggy
and decided to hang-up his phone. He no longer knew what transpired except that when he woke up lying
down, his head was already covered with a plastic bag and he was handcuffed and chained.
When private complainant complained that the handcuffs were too tight, a man who was wearing a red
mask and introduced himself as "John" approached him and removed the plastic bag from his head and
loosened his handcuff. John informed him that he was being kidnapped for ransom and that he will be
allowed to make phone calls to his family and friends. Hours later, John returned with telephony
equipment, tape recorder, phone and a special antennae cap for the cellphone. With these equipment,
private complainant was allowed to call his girlfriend and father and asked them for the PIN of his ATM
cards and for money, however, with instructions not to inform them that he was kidnapped. A day after, he
was told by his captor to call his girlfriend and father to tell them thathe was still alive as well as to reveal
to them that he was kidnapped for ransom and his kidnappers were demanding Six Hundred Thousand
Dollars (US$600,000.00) as ransom and Twenty Thousand Pesos (Php20,000.00) a day as room and board
fee.
The private complainant’s family, girlfriend (Iris Chau) and friends received a text message purportedly
from the former informing them that he was kidnapped and ransom for his liberty was demanded.
On January 21, 2004, the family of the victim informed the United States Embassy in Manila about the
situation and a meeting with the representatives of the Philippine National Police was arranged.
Subsequently, Chau received an email from the purported kidnapper demanding US$2,000.00. Chau then
wired US$1,000.00, upon instructions, to Ong Kwai Ping thru Metro Bank and Trust Company. Likewise,
private complainant’s brother Aaron Onglingswam made eight (8) deposits to Ong Kwai Ping’s account in
Metro Bank, amounting to Two Hundred Thousand Pesos (Php200,000.00), to ensure his brother’s safety
and eventual release.
During private complainant’s twenty-two (22) days of captivity, while he was allowed to communicate
with his family almost daily to prove that he was still alive and was served with meals almost five times a
day either by John or the other accused Susan Yau, he was also maltreated i.e. beaten with sticks, made to
lay-down biting a piece of wood which was made as target for a rifle.
On February 10, 2004, the PACER received information that a taxi with plate number PVD 115 plying
along Bacoor was victimizing passengers. Upon instructions of P/Supt. Isagani Nerez, members of the
Police Anti-Crimeand Emergency Response Task Force (PACER) were ordered to proceed to Bacoor,
Cavite to look for Toyota Corolla White Taxicab with Plate No. PVD 115. On February 11, 2004, at around
4:00 o’clock in the morning, the PACER group proceeded to Bacoor and positioned themselves along
Aguinaldo Highway under the overpass fronting SM Bacoor. Not having caught sight of the taxi, after
three hours, the group moved to a different location along the Aguinaldo Highway where they were able to
chance upon the said vehicle. Thus, they followed it, then flagged it down and approached the driver. The
driver was asked to scroll down his window and was told that the vehicle was being used to victimize
foreign nationals. Appellant did not offer to make any comment. Hence, this prompted the officers to ask
for his name and since he answered that he was Petrus Yau, a British national, they asked him for his
driver’s license and car registration but appellant was not able to produce any. Since he could not produce
any driver’s license and car registration, they were supposed to bring him to the police station for
investigation, however, when shown a picture of private complainant and asked if he knew him, he
answered that the man is being kept in his house. He was immediately informed that he was being placed
under arrest for kidnapping private complainant Alastair Onglingswam after being informed of his
constitutional rights. Thereafter, appellant’s cellphones, a QTEK Palmtop and Sony Erickson were
1
confiscated. Upon instructions of P/Supt. Nerez, [appellant] was brought to the parking lot of SM City Sometime on June 2003, he and his wife Susana had a heated argument over his womanizing. Hence, she
Bacoor for a possible rescue operations of the victim. decided to live separately from him (though she was pregnant at that time) and moved to another house
(Block 5, Lot 4, Tulip Street, Andrea Village, Bacoor, Cavite). Sometimes, she would visit him.
Appellant led the team to his house and after opening the gate of his residence, hewas led back to the
police car. The rest of the members of PACER proceeded inside the house and found a man sitting on the Petrus claimed that his house does not have a basement, contrary to the victim’s testimony that he was
floor chained and handcuffed. The man later identified himself as Alastair Onglingswam. placed in the basement. He was not in his house when the police officers allegedly rescued the kidnapped
victim. He left his house in good condition in the morning before his arrest. The white Toyota Corolla taxi
he was driving had markings of faded grey, not black, as claimed by Alastair.
During the trial of the case, private complainant positively identified Petrus Yau as his captor and the taxi
driver. Test conducted by the United States Federal Bureau of Investigation reveals that the DNA found in
the mask used by private complainant’s captor matched that of appellant Petrus Yau.5 During the inquest proceedings, Petrus Yau was not assisted by a counsel and was not informedof his
constitutional rights.
Version of the Defense
Susana Sumogba Yau denied the accusation that she was in the company of the kidnapper every time the
latter served Alastair’s food (lunch and dinner). She is legally married to Petrus Yau. They have two (2)
Petrus and Susana denied the accusation, and stated the following in their Brief6 to substantiate their claim
children named Charlie and Vivian. On February 11, 2004, she lived at Block 5, Lot 4, Tulips Street,
of innocence:
Andrea Village, Bacoor, Cavite, while Petrus Yau lived at Block 23, Lot 2, Ponsettia Street, Sorrento Town
Homes, Bacoor, Cavite, with his girlfriend. Susana and Petrus were separated since June 2003.
Accused Petrus Yau denied having committed the crime. He averred that the supposed kidnap victim
coordinated with the police to set up the subject case against him and his family. He is a British national.
On February 11, 2004, she called him to pick up the amount of Php7,000.00 (earnings of her sari-sari
He had been in the Philippines for many times since he was 14 years old. He came to the country in July
store) and to deposit it in her account at Asia Trust Bank. She would request Petrus to do such errand for
2001 for a vacation and had not left since then. On September 2001, he got married to Susana Yau. Prior
her as she does not trust her househelp. Petrus came to her at around 7:00 o’clock in the morning. At
thereto, he was in Singapore running some businesses. On January 20, 2004, at around 2:00 o’clock in the
around 11:00 o’clock a.m. of the same day, four(4) to five (5) policemen arrived at her residence and told
afternoon (the date and time the victim was kidnapped), Petrus Yau was at home sleeping.
her to come with them to the hospital where Petrus was brought because he met a vehicular accident along
Aguinaldo Highway.
On February 11, 2004 (the date the victim was allegedly rescued) at around 8:30 – 9:00 o’clock in the
morning, he went to his wife Susana in her shop and got money to be deposited to the Asia Trust Bank. He
Susana, together with her children and helpers, went with them, and rode in their van. They, however, were
parked his car outside the bank. After he alighted from his car, three (3) men bigger than him held his
not brought to the hospital but to an office. Thereat, Susana saw her husband (almost dead) inside a small
hands: one (1) of them held his neck. They pushed him inside their van. They tied his hands with packing
room with a one-way mirror. She was not able to talk to him. She, together with her children and helpers,
tape, covered his eyes with the same tape, and his head with a plastic bag. They kicked and beat him until
were detained for three (3) days inside a small room. After three (3) days, her children and helpers were
he became unconscious.
released and they went home. At that time, she was not provided with the assistance of a counsel.

When he regained consciousness, he was inside an airconditioned room. His hands were handcuffed and he
Susana stated that her husband’s name is Petrus Yau. He is not known either as John or Ong Kwai Ping. He
felt very cold because his body was wet. His head was still being covered. He shouted asking where he
is engaged in the business of buying cars for resale. They owned three (3) houses and lots, all registered in
was. People came in and he heard them talking in Tagalog. They kicked him for about twenty (20)
her name. At the time she was taken into custody by the police, she had withher Five Thousand Pesos cash,
seconds. Later, he was made to sit, as he was lying on the floor. He said that he could not see anything,
Allied Bank passbook and ATM Cards (Allied Bank and Asia Trust Bank), VISA card, passport, wedding
thus, someone removed the cover of his head. They accused him of being a kidnapper, to which he replied
ring, necklace and cellphone, which were taken away by persons whom she does not know.7
that he was not. He pleaded to them to allow him to make a call to the British Embassy, his friends and his
wife, but to no avail.
The Ruling of the RTC
When he was taken into custody, he had his wedding ring, watch and a waist bag containing his British
passport, alien certificate, driver’s license, Asia Trust bankbook in the name of Susana Yau, ATM Cards (in In its judgment, dated December 14,2007, the RTC convicted Petrus Yau, as principal, of the crime of
his name) of Metrobank, PCI Equitable Bank and Banco de Oro, VISA Card, and some cash given to him kidnapping for ransom and serious illegal detention, and Susana Yau,as an accomplice to the commission
by his wife . He lost those personal properties. thereof. The RTC found the testimonies of the prosecution witnesses credible and sufficient, with their
versions of the incident dovetailing with each other even on minor details. It observed that Petrus failed to
rebut his positive identification by the victim, Alastair and his brother Aaron John Onglingswam (Aaron
After four (4) to five (5) hours, he was transferred to another room without a window. The following day,
John), with whom he talked for several times over the phone. It stated that the circumstantial evidence
he was brought to and detained at the PACER Custodial Center.
proffered by the prosecution had adequately reinforced its theory that Petrus was the perpetrator of the
heinous act.
Petrus Yau can speak English but he is better in the Chinese language, both Mandarin and Cantonese. He
bought the taxi he was driving in August 2003 for Eighty Five Thousand Pesos (Php85,000.00) for
With respect to Susana, the RTC wrote that she was positively identified by Alastair as the Filipino woman
personal use and/or for resale. It had a defective engine (usually overheats), without an aircon and cannot
who fed him or accompanied Petrus in bringing him food during his 22 days of captivity and, for said
travel for long journey. He does not drive a taxi to earn a living. He had police friends who told him that he
reason, should be held liable as an accomplice.
cannot drive a taxi as an occupation since his driver’s license is non-professional.

2
The RTC rejected the twin defenses of alibi and frame-up submitted by Petrus and Susana because the
same were unsubstantiated by clear and convincing evidence. The dispositive portion of the said decision
states:
WHEREFORE, this court renders judgment finding the accused Petrus Yau GUILTY BEYOND
REASONABLE DOUBT as principal of the crime of kidnapping for ransom and serious illegal detention
and pursuant to Republic Act No. 9346, he is hereby sentenced to suffer the prison term of RECLUSION
PERPETUA. The court also finds the accused Susana Yau GUILTY BEYOND REASONABLE DOUBT
as accomplice to the commission of the crime of kidnapping for ransom and serious illegal detention and
applying to her the benefit of the Indeterminate Sentence Law wherein her minimum penalty shall be taken
from the penalty next lower in degree of the imposable penalty of RECLUSION TEMPORAL which is
prision mayor, she is hereby therefore sentenced to suffer the prison term of EIGHT (8) YEARS and ONE
(1) DAY of PRISION MAYOR MINIMUM AS MINIMUM to TWELVE (12) YEARS and TEN (10)
MONTHS of RECLUSION TEMPORAL MINIMUM AS MAXIMUM.Accused are credited in full of the
preventive imprisonment they have already served in confinement.
Further, both accused are sentenced to pay, jointly and severally, the victim ALASTAIR JOSEPH
ONGLINGSWAM actual damages of Two Hundred Seventy Three Thousand and One Hundred Thirty
Two Pesos (273, 132.00) plus interest from the filing of the information until full payment, moral damages
of One Million Pesos (1,000,000.00), and exemplary damages of Two Hundred Thousand Pesos
(200,000.00).
SO ORDERED.8
Unfazed, Petrus and Susana appealed the RTC judgment of conviction before the CA.
The Ruling of the CA
The CA affirmed the conviction of Petrus and Susana.9 The appellate court likewise lent credence to the
testimonies of the prosecution witnesses, who were able to establish with certitude the commission of the
crime and the identities of the culprits thereof.
Hence, this appeal.
ASSIGNED ERRORS:
I affect the disposition of the case.16
THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT THE ACCUSED-APPELLANT
WAS ILLEGALLY ARRESTED AND AS SUCH, THE PIECES OF OBJECT EVIDENCE ALLEGEDLY
SEIZED ARE INADMISSIBLE.
II
THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THERE WAS POSITIVE
IDENTIFICATION OF THE ACCUSEDAPPELLANT AS THE ALLEGED KIDNAPPER.
III
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME CHARGED.10
Susana insisted that the trial court erred: 1] in not giving credence to her claim that she was living
separately with her husband, Petrus Yau; 2] in not considering that she was not mentioned in the sworn
statement executed by Alastair, dated February 12, 2004, even when said victim was asked if there was
another person assisting Petrus in the perpetration of the crime; 3] in not considering the Resolution of the
Department of Justice, dated February 13, 2004, finding probable cause against her because she is the
registered owner of the house where Alastair was held captive and not because she served food on the
victim; and 4] in convicting her as an accomplice.11
On September 11, 2013, the Court issued a resolution12 notifying the parties that they could file their
respective supplemental briefs if they so desire. The People of the Philippines, represented by the OSG,
opted not to file any supplemental brief, maintaining its positions and arguments in its brief earlier filed in
CA-G.R. CR-H.C. No. 03446.13Petrus filed his Supplemental Brief14 on December 27, 2013 in
amplification of his arguments raised in his brief filed before the CA.
The Court’s Ruling
The appeal is bereft of merit.
Encapsulated, the issues herein focus on: (a) the credibility of the prosecution witnesses; (b) the
sufficiency of the prosecution evidence to prove the commission of kidnapping for ransom and the identity
of the culprits thereof; and (c) the degree of responsibility of each accusedappellant for the crime of
kidnapping for ransom.
Worth reiterating on the issue of the credibility of the witnesses is the ruling of the Court in People v.
Maxion15 that:
The issue raised by accused-appellant involves the credibility of witness, which is best addressed by the
trial court, it being in a better position to decide such question, having heard the witness and observed his
demeanor, conduct, and attitude under grueling examination. These are the most significant factors in
evaluating the sincerity of witnesses and in unearthing the truth, especially in the face of conflicting
testimonies.Through its observations during the entire proceedings, the trial court can be expected to
determine, with reasonable discretion, whose testimony to accept and which witness to believe. Verily,
findings of the trial court on such matters will not be disturbed on appeal unless some facts or
circumstances of weight have been overlooked, misapprehended or misinterpreted so as to materially
It has been an established rule in appellate review that the trial court’s factual findings, such as its
assessment of the credibility of the witnesses, the probative weight of their testimonies, and the
conclusions drawn from the factual findings, are accorded great respect and have even conclusive effect.
Such factual findings and conclusions assume even greater weight when they are affirmed by the CA 17
In the case at bench, the RTC gavemore weight and credence to the testimonies of the prosecution
witnesses compared to those of the accusedappellants. After a judicious review of the evidence on record,
the Court finds no cogent reason to deviate from the factual findings of the RTC and the CA, and their
respective assessment and calibration of the credibility of the prosecution witnesses.
In every criminal case, the task ofthe prosecution is always two-fold, that is, (1) to prove beyond
reasonable doubt the commission of the crime charged; and (2) to establish with the same quantumof proof
the identity of the person or persons responsible therefor, because, evenif the commission of the crime is a
3
given, there can be no conviction without the identity of the malefactor being likewise clearly
ascertained.18 Here, the prosecution was able to satisfactorily discharge this burden.
Victim Alastair positively identified Petrus as the driver of the white Toyota Corolla taxicab with Plate No.
PVD 115 which he boarded before he lost consciousness on the afternoon ofJanuary 20, 2004. He claimed
that while he was conversing with his business associate Kelly Wei over his phone inside the taxicab,
Petrus would turn his face towards him, from time to time, and would talk as if he was being spoken to.
Alastair claimed that he had a good look and an ample opportunity toremember the facial features of the
driver as to be able to recognize and identify him in court. It is the most natural reaction for victims of
crimes to strive to remember the faces of their accosters and the manner in which the craven acts are
committed.19
Alastair also recognized the voice behind the red mask used by his kidnapper as belonging to Petrus. It was
established that from the first to the twentieth day of Alastair’s captivity,his kidnapper would meet him five
times a day and would talk to him for an hour, thus, enabling him to remember the culprit’s voice which
had a unique tone and noticeable Chinese accent. Alastair declared with certainty that it was the voice of
Petrus. Witness Aaron John insisted that the person who introduced himself as Ong Kwai Ping and with
whom he had talked over the phone for three weeks, demanding necessity money and ransom for the
release of his brother Alastair, was Petrus because of the distinct tone of his voice with Chinese accent.
There was no showing that Alastair and Aaron John had any ill motive to falsely testify against Petrus. As a
rule, absent any evidence showing any reason or motive for prosecution witnesses to perjure, the logical
conclusion is that no suchimproper motive exists, and their testimonies are, thus, worthy of full faith and
credit.20
Further, the prosecution presented credible and sufficient pieces of circumstantial evidence that led tothe
inescapable and reasonable conclusion that Petrus committed the crime charged. The settled rule is that a
judgment of conviction based on circumstantial evidence can be upheld only if the following requisites
concur: (1) there is more than one circumstance; (2) the facts from which the inferencesare derived are
proven; and (3) the combination of all the circumstances is such as to produce conviction beyond
reasonable doubt.21 The corollary rule is that the circumstances proven must constitute an unbroken chain
which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as
the guilty person.22
The combination of the following established facts and circumstances affirm the findings of guilt by the
RTC and the CA:
1] The victim was rescued by the police inside the house owned by Petrus and Susana, located
at Block 23, Lot 2, Ponsettia St., Camella Sorrento Homes, Bacoor, Cavite;
2] The Toyota Corolla white taxicab bearing Plate No. PVD 115, which the victim recalled
boarding in going to Virra Mall Greenhills Shopping Center on the afternoon of January 20,
2004 and where he lost consciousness, was found in the possession of the accused-appellant
Petrus on February 11, 2004;
3] The driver’s license of Petrus and an ATM card in the name of Ong Kwai Ping were
recovered inside the Toyota Corolla taxicab of Petrus Yau;
4] In the house where the victim was rescued, the following evidence were found: one (1) chain
with padlock; handcuffs; short broken chain; checkered pajama; black blazer; one (1) Onesimus
black coat; two (2) video camera cartridges, one showing the victim in lying down position and
family footages, and the other one labeled "sex scandal"; eight (8) pieces of cellphones;
notebook; two (2) Talk n Tex SIM cards; Globe SIM card; two (2) Transfer Certificates of Title
for two pieces of land in Bacoor, Cavite, under the name of Susana Sumogba; original copy of
the OfficialReceipts and Certificate of Registration of a Suzuki 1993 motorcycle bearing Plate
No. 2M9748; business license and mayor’s permit issued to Susana Yau; marriage contract of
Petrus Yau and Susana Yau; birth certificate of Susana Sumogba; birth certificates of their
children; ACR of Petrus Yau; Meralco bills; Asia Trust deposit slips; five ATM deposit slips;
and PLDT bills;
5] Two (2) cellphones, a QTEK Palmtop and a Sony Erickson were found in the possession of
Petrus. Incidentally, it was reported that the owner ofthe QTEK Palmtop cellphone was a
certain Jasper Beltran, also a kidnapped victim whose whereabouts had not been known yet;
and
6] The DNA examination on the red mask worn by the kidnapper that was recovered inside the
house and on the buccal swab taken from Petrus showed that both DNA profiles matched.23
The Court agrees with the findings of the RTC and the CA that the foregoing pieces of circumstantial
evidence, when analyzed and taken together, definitely lead to no other conclusion than that Petrus was the
author of the kidnapping for ransom. When viewed as a whole, the prosecution evidence effectively
established his guilt beyond reasonable doubt.
The elements of Kidnapping For Ransom under Article 267 of the RPC, as amended by R.A. No. 7659, are
asfollows: (a) intent on the part of the accused to deprive the victim of his liberty; (b) actual deprivation of
the victim of his liberty; and (c) motive of the accused, which is extorting ransom for the release of the
victim.24
All of the foregoing elements were duly established by the testimonial and documentary evidences for the
prosecution in the case at bench. First, Petrus is a private individual. Second, Petrus kidnapped Alastair by
using sleeping substance which rendered the latter unconscious while inside a taxicab driven by the said
accused-appellant. Third, Petrus took and detained Alastair inside the house owned by him and Susana Yau
in Bacoor, Cavite, where said victim was handcuffed and chained, and hence, deprived of his liberty.
Fourth, Alastair was taken against his will. And fifth, Petrus made demands for the delivery of a ransomin
the amount of US$600,000.00 for the release of the victim.
Anent the criminal liability of eachaccused-appellant, there is no doubt that Petrus is liable as principal of
the crime of kidnapping for ransom. Susana, on the other hand, is liable only as an accomplice to the crime
as correctly found by the lower courts. It must be emphasized that there was no evidence indubitably
proving that Susanaparticipated in the decision to commit the criminal act. The only evidence the
prosecution had against her was the testimony of Alastair to the effect that he remembered her as the
woman who gave food to him or who accompanied his kidnapper whenever he would bring food to him
every breakfast, lunch and dinner. Jurisprudence25 is instructive of the elements required, in accordance
with Article 18 of the RPC, in order that a person may be considered an accomplice, namely, (1) that there
bea community of design; that is, knowing the criminal design of the principal by direct participation, he
concurs with the latter in his purpose; (2) that he cooperates in the execution by previous or simultaneous
act, with the intention of supplying material or moral aid in the execution of the crime in an efficacious
way; and (3) that there be a relation between the acts done by the principal and those attributed to the
person charged as accomplice.
In the case at bench, Susana knew of the criminal design of her husband, Petrus, but she kept quiet and
never reported the incident to the police authorities. Instead, she stayed with Petrus inside the house and
gave food to the victim or accompanied her husband when he brought food to the victim. Susana not only
countenancedPetrus’ illegal act, but also supplied him with material and moral aid. It has been held that
being present and giving moral support when a crime is being committed make a person responsible as an
accomplice in the crime committed.26 As keenly observed by the RTC, the act of giving food by Susana to
the victim was not essential and indispensable for the perpetration ofthe crime of kidnapping for ransom
but merely an expression of sympathy orfeeling of support to her husband.27 Moreover, this Court is guided
4
by the ruling in People v. De Vera,28 where it was stressed that in case of doubt, the participation of the The Court also sustains the RTC in awarding actual damages in the amount of 273,132.00 plus interest
offender will be considered as that of an accomplice rather thanthat of a principal. committed from the filing of the information until fully paid. As regards the moral damages against the
accused-appellants, the Court findsthe award of ₱1,000,000.00 to be exorbitant. Hence, the same is being
reduced to ₱200,000.00, as the reasonable compensation for the ignominy and sufferings that Alastair and
Alastair’s positive identification of Susana is not in any bit prejudiced by his failure to mention her name
his family endured because of the accused-appellants’ inhumane acts of detaining him in handcuffs and
in his sworn statement, dated February 12, 2004. It is well-settled that affidavits, being ex parte, are almost
chains, and mentally torturing him and his family to raise the ransom money. The fact that they suffered
always incomplete and often inaccurate, butdo not really detract from the credibility of
the trauma from mental, physical and psychologicalordeal which constitutes the basis for moral damages
witnesses.29 Oftentimes, the allegationscontained in affidavits involved mere passive mention of details
under Article 2219 of the Civil Code is too obvious to still require its recital at the trial through the
anchored entirely on the investigator’s questions. The discrepancies between a sworn statement and a
superfluity of a testimonial charade. The Court also finds the award of exemplary damages to be in order in
testimony in court do not outrightly justify the acquittal ofan accused, as testimonial evidence carries
view of the presence of the qualifying circumstance of demand for ransom, and to serve as an example and
moreweight than an affidavit.30 Testimonies given during the trial are more exact and elaborate. Besides,
deterrence for the public good. The Court, however, reduces the amount from ₱200,000.00 to ₱100,000.00
sworn statements are often executed when an affiant’s mental faculties are not in such a state as to afford
in line with prevailing jurisprudence.38
the affiant a fair opportunity of narrating in full the incident which transpired.31

The RTC, however, erred in ruling that Susana was solidarily liable with Petrus for the payment of
Given the overwhelming picture of their complicity in the crime, this Court cannot accept the defenses of
damages. This is an erroneous apportionment of the damages awarded because it does not take into
alibi and frame-up interposed by the accused-appellants. Alibi is the weakest of all defenses, for it is easy
account the difference in the nature and degree of participation between the principal, Petrus, and the
to contrive and difficult to prove. Alibi must be proven by the accused with clear and convincing evidence;
accomplice, Susana. The ruling of this Court in People v. Montesclaros39 is instructive on the
otherwise it cannot prevail over the positive testimonies of credible witnesses who testify on affirmative
apportionment of civil liabilities among all the accusedappellants. The entire amount of the civil liabilities
matters.32 The defense of frame-up, like alibi, has been invariably viewed by this Court with disfavor, for it
should be apportioned among all those who cooperated in the commission of the crime according to the
can easily be concocted but is difficult to prove.1âwphi1 In order to prosper, the defense of frame-up must
degrees of their liability, respective responsibilities and actual participation. Accordingly, Petrus should
be proven by the accused with clear and convincing evidence.33 Apart from their bare allegations, no
shoulder a greater share in the total amount of damages than Susana who was adjudged only as an
competent and independent evidence was adduced by the accused-appellants to substantiate their twin
accomplice.
defenses of alibi and frame-up and, thus, remain selfserving and do not merit any evidentiary value. More
importantly, nowhere in the records does it show of any dubious reasons or improper motive that could
have impelled the prosecution witnesses, particularly victim Alastair Onglingswam, to falsely testify and In fine, the accused-appellants are ordered to pay the victim, Alastair Onglingswam actual damages in the
fabricate documentary or object evidence just to implicate accused-appellants in such a heinous crime as amount of ₱273, 132.00; moral damages in the amount of ₱200,000.00; and exemplary damages in the
kidnapping for ransom. Their only motive was to see to it that the kidnapper be brought to justice and amount of ₱100,000.00, or a total amount of ₱573, 132.00. Taking into consideration the degree of their
sentencedwith the appropriate penalty. participation, the principal, Petrus, should be liable for two-thirds (2/3) of the total amount of the damages
(₱573, 132.00 x 213) or ₱382,088.00; and the accomplice, Susana, should be ordered to pay the remaining
one-third (1/3) or ₱191,044.00. Specifically, Petrus shall be liable for actual damages in the amount of P
As a last-ditch effort to exculpate themselves from any criminal culpability, the accused-appellants
182,088.00; moral damages in the amount of ₱133,333.33; and exemplary damages in the amount or
questioned the legality of their warrantless arrests. This too must fail.
₱66,666.6 7; and Susana for the amount of ₱91,044.00 as actual damages; ₱66,666.67 as moral damages;
and ₱33,333.33 as exemplary damages.
Any objection to the procedure followed in the matter of the acquisition by a court of jurisdiction over the
person of the accused must be opportunely raised before he enters his plea; otherwise, the objection is
WHEREFORE, the September 7, 2012 Decisi0n of the Court of Appeals in CA-G.R. CR-H.C. No. 03446
deemed waived.34 The accused-appellants never objected to or questioned the legality of their warrantless
is AFFIRMED with MODIFICATION in that accused-appellants Petrus Yau and Susana Yau y Sumogba
arrests or the acquisition of jurisdiction by the RTC over their persons before theyentered their respective
are ordered to pay the victim Alastair Joseph Onglingswam moral damages in the amount of ₱200,000.00
pleas to the kidnapping for ransom charge. Considering this lapse and coupled with their full and active
and exemplary damages in the amount of Pl 00,000.00. The award of actual damages in the amount or
participation in the trial of the case, accused-appellants were deemed to have waived any objection to their
₱273, 132.00 is maintained. The civil liabilities of the accused-appellants shall be apportioned as follows:
warrantless arrests. The accused-appellants voluntarily submitted to the jurisdiction of the RTC thereby
curing whatever defects that might have attended their arrest. It bears stressing that the legality of the arrest
affects only the jurisdiction of the court over their persons.35Their warrantless arrests cannot, by 1] Petrus Yau is directed to pay actual damages in the amount of ₱182,088.00; moral damages
themselves, be the bases of their acquittal. in the amount of P 133,333.33; and exemplary damages in the amount of ₱66,666.67; and

Even assuming arguendo that the accused-appellants made a timely objection to their warrantless arrests, 2] Susana Yau y Sumogba is directed to pay actual damages in the amount of ₱91,044.00, moral
jurisprudence is replete with rulings that support the view that their conviction was proper despite being damages in the amount of ₱66,666.67 and exemplary damages in the amount of ₱33,333.33.
illegally arrested without a warrant. In People v. Manlulu,36 the Court ruled that the illegality of the
warrantless arrest cannot deprive the State of its right to prosecute the guilty when all other facts on record
SO ORDERED.
point to their culpability. Indeed, the illegal arrest of an accused is not a sufficient cause for setting aside a
valid judgment rendered upon a sufficient complaint after a trial free from error.37

With respect to the penalty, the Court finds that the RTC was correct in imposing the penalty of reclusion
perpetuawithout eligibility of parole against Petrus as principal in the charge of kidnapping for ransom in
view of R.A. No. 9346, prohibiting the death penalty. Also, the Court finds that the penalty of eight (8)
years and one (1) day of prision mayor, as minimum, to twelve (12) years and ten (10) months of reclusion
temporal, as maximum, meted out against Susana, an accomplice, to be proper.

5
 incident allegedly occurred. 8 There they saw the lifeless body of Lloyd Peñacerrada, clad only in an
underwear, sprawled face down inside the bedroom. 9 The group stayed for about an hour during which
time Patrolman Centeno inspected the scene and started to make a rough sketch thereof and the immediate
surroundings. 10 The next day, February 22, 1981, at around 7:00 o'clock in the morning, Patrolman
Centeno, accompanied by a photographer, went back to the scene of the killing to conduct further
G.R. No. 80762 March 19, 1990 investigations. Fausta Gonzales, on the other hand, was brought back that same day by Barangay Captain
Paja to the police substation in Ajuy. When Patrolman Centeno and his companion arrived at Sitio
Nabitasan, two members of the 321st P.C. Company stationed in Sara, Iloilo, who had likewise been
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, informed of the incident, were already there conducting their own investigation. Patrolman Centeno
vs. continued with his sketch; photographs of the scene were likewise taken. The body of the victim was then
FAUSTA GONZALES, AUGUSTO GONZALES, CUSTODIO GONZALES, SR., CUSTODIO brought to the Municipal Hall of Ajuy for autopsy.
GONZALES, JR., NERIO GONZALES and ROGELIO LANIDA, accused, CUSTODIO
GONZALES, SR., accused-appellant.
The autopsy of Lloyd Peñacerrada's cadaver was performed at about 11:20 a.m. on February 22, 1981;
after completed, a report was made with the following findings:

PHYSICAL FINDINGS
SARMIENTO, J.:

1. Deceased is about 5 ft. and 4 inches in height, body moderately built and on
In a decision 1 dated October 31, 1984, the Regional Trial Court of Iloilo, Branch XXXVIII (38), in cadaveric rigidity.
Criminal Case No. 13661, entitled "People of the Philippines vs. Fausta Gonzales, Augusto Gonzales,
Custodia Gonzales, Custodio Gonzales, Jr., Nerio Gonzales and Rogelio Lanida," found all the accused,
except Rogelio Lanida who eluded arrest and up to now has remain at large and not yet arrained, guilty EXTERNAL FINDINGS
beyond reasonable doubt of the crime of murder as defined under Article 248 of the Revised Penal Code.
They were sentenced "to suffer the penalty of imprisonment of twelve (12) years and one (1) day to 1. Puncture wound, 1 cm. in width, 9 cm. in length, located at the lower 3rd anterior
seventeen (17) years and four (4) months of reclusion temporal, to indemnify the heirs of the deceased aspect of the arm, right, directed upward to the right axillary pit.
victim in the amount of P40,000.00, plus moral damages in the sum of P14,000.00 and to pay the
costs." 2 The victim was Lloyd Peñacerrada, 44, landowner, and a resident of Barangay Aspera, Sara,
Iloilo. 2. Stab wound, thru and thru, located at the proximal 3rd, forearm right, posterior
aspect with an entrance of 5 cm. in width and 9 cm. in length with an exit at the
middle 3rd, posterior aspect of the forearm, right, with 1 cm. wound exit.
Through their counsel, all the accused, except of course Rogelio Lanida, filed a notice of appeal from the
trial court's decision. During the pendency of their appeal and before judgment thereon could be rendered
by the Court of Appeals, however, all the accused-appellants, except Custodio Gonzales, Sr., withdrew 3. Stab wound, thru and thru, located at the middle 3rd, posterior aspect of the
their appeal and chose instead to pursue their respective applications for parole before the then Ministry, forearm right, 1 cm. in width.
now Department, of Justice, Parole Division. 3
4. Incised wound, 4 cm. long, depth visualizing the right lateral border of the
On October 27, 1987, the Court of Appeals rendered a decision 4 on the appeal of Custodio Gonzales, Sr. It sternum, 6th and 7th ribs, right located 1.5 inches below the right nipple.
modified the appealed decision in that the lone appellant was sentenced to reclusion perpetua and to
indemnify the heirs of Lloyd Peñacerrada in the amount of P30,000.00. In all other respect, the decision of
5. Stab wound, 2 cm. in width, 10.5 cm. in depth, directed inward to the thoracic
the trial court was affirmed. Further, on the basis of our ruling in People vs. Ramos, 5 the appellate court
cavity right, located at the left midclavicular line at the level of the 5th rib left.
certified this case to us for review.6

6. Stab wound, 2 cm. in width, 9.5 cm. in depth directed toward the right thoracic
The antecedent facts are as follows:
cavity, located at the mid left scapular line at the level of the 8th intercostal space.

At around 9:00 o'clock in the evening of February 21, 1981, Bartolome Paja, the barangay captain of
7. Puncture wound, 1 cm. in width, located at the base of the left armpit directed
Barangay Tipacla, Ajuy, Iloilo, was awakened from his sleep by the spouses Augusto and Fausta Gonzales.
toward the left thoracic cavity.
Augusto informed Paja that his wife had just killed their landlord, Lloyd Peñacerrada, and thus would like
to surrender to the authorities. Seeing Augusto still holding the knife allegedly used in the killing and
Fausta with her dress smeared with blood, Paja immediately ordered a nephew of his to take the spouses to 8. Puncture wound, 1 cm. in width, 11 cm. in length, directed toward the left deltoid
the police authorities at the Municipal Hall in Poblacion, Ajuy. As instructed, Paja's nephew brought the muscle, located at the upper 3rd axilla left.
Gonzales spouses, who "backrode" on his motorcycle, to the municipal building. 7 Upon reaching the Ajuy
Police sub-station, the couple informed the police on duty of the incident. That same night, Patrolman
9. Puncture wound, 3 cm in width, 11.5 cm in length, located at the anterior aspect,
Salvador Centeno of the Ajuy Police Force and the Gonzales spouses went back to Barangay Tipacla.
proximal 3rd arm left, directed downward.
Reaching Barangay Tipacla the group went to Paja's residence where Fausta was made to stay, while Paja,
Patrolman Centeno, and Augusto proceeded to the latter's residence at Sitio Nabitasan where the killing

6
 10. Stab wound, thru and thru, 2.5 cm. in width, and 5 cm. in length, medial aspect,
palm right.
11. Stabwound, 4 cm.in width, iliac area, right, directed inward with portion of large
intestine and mysentery coming out.
12. Stab wound, 4 cm. in width, located at the posterior portion of the shoulder,
right, directed downward to the aspex of the light thoracic cavity.
13. Incised wound, 1 cm. in width, 10 cm. in length, located at the medial portion of
the medial border of the right scapula.
14. Incised wound, 1 cm. in width, 4.5 cm. in length, located at the posterior aspect
of the right elbow.
15. Incised wound, 1 cm. in width, 2 cm. in length, located at the posterior portion,
middle 3rd, forearm, right.
16. Lacerated wound at the anterior tantanelle with fissural fracture of the skull.
INTERNAL FINDINGS:
1. Stab wound No. 5, injuring the left ventricle of the heart.
2. Stab wound No. 6, severely injuring the right lower lobe of
the lungs.
3. Stab wound No. 7, injuring the right middle lobe of the
lungs.
4. Stab wound No. 11, injuring the descending colon of the
large intestine, thru and thru.
5. Stab wound No. 12, severely injuring the apex of the right
lungs (sic).
CAUSE OF DEATH:
MASSIVE HEMMORRHAGE DUE
TO MULTIPLE LACERATED,
STABBED (sic), INCISED AND
PUNCTURED WOUNDS.
The autopsy report thus showed that Dr. Rojas "found sixteen (16) wounds, five (5) of which are fatal
because they penetrated the internal organs, heart, lungs and intestines of the deceased." 12
On February 23, two days after the incident, Augusto Gonzales appeared before the police sub-station in
the poblacion of Ajuy and voluntarily surrendered to Police Corporal Ben Sazon for detention and
protective custody for "having been involved" in the killing of Lloyd Peñacerrada. He requested that he be
taken to the P.C. headquarters in Sara, Iloilo where his wife, Fausta, was already detained having been
indorsed thereat by the Ajuy police force. 13
Based on the foregoing and on the investigations conducted by the Ajuy police force and the 321st P.C.
Company, an information for murder dated August 26, 1981, was filed by the Provincial Fiscal of Iloilo
against the spouses Augusto and Fausta Gonzales. The information read as follows:
The undersigned Provincial Fiscal accuses FAUSTA GONZALES and AUGUSTO
GONZALES of the crime of MURDER committed as follows:
That on or about the 21st day of February, 1981, in the Municipality of Ajuy,
Province of Iloilo, Philippines, and within the jurisdiction of this Court, the above-
named accused with four other companions whose identities are still unknown and
are still at large, armed with sharp-pointed and deadly weapons, conspiring,
confederating and helping each other, with treachery and evident premeditation,
with deliberate intent and decided purpose to kill, and taking advantage of their
superior strength and number, did then and there wilfully, unlawfully and
feloniously attack, assault, stab, hack, hit and wound Lloyd D. Peñacerrada, with the
weapons with which said accused were provided at the time, thereby inflicting upon
said Lloyd D. Peñacerrada multiple wounds on different parts of his body as shown
by autopsy report attached to the record of this case which multifarious wounds
caused the immediate death of said Lloyd D. Peñacerrada.
CONTRARY TO LAW.
Iloilo City, August 26, 1981. 14
When arraigned on September 16, 1981, Augusto and Fausta both entered a plea of not guilty. Before trial,
however, Jose Huntoria 15 who claimed to have witnessed the killing of Lloyd Peñacerrada, presented
himself to Nanie Peñacerrada, the victim's widow, on October 6, 1981, and volunteered to testify for the
prosecution. A reinvestigation of the case was therefore conducted by the Provincial Fiscal of Iloilo on the
basis of which an Amended Information, 16 dated March 3, 1982, naming as additional accused Custodio
Gonzales, Sr. (the herein appellant), Custodio Gonzales, Jr., Nerio Gonzales, and Rogelio Lanida, was
filed. Again, all the accused except as earlier explained, Lanida, pleaded not guilty to the crime.
At the trial, the prosecution presented Dr. Jesus Rojas, the Rural Health physician of Ajuy who conducted
the autopsy on the body of the victim; Bartolome Paja, the barangay captain of Barangay Tipacla;
Patrolman Salvador Centeno and Corporal Ben Sazon of the Ajuy Police Force; Sgt. (ret) Nicolas
Belicanao and Sgt. Reynaldo Palomo of the 321st P.C. Company based in Sara, Iloilo; Jose Huntoria; and
Nanie Peñacerrada, the widow.
Dr. Jesus Rojas testified that he performed the autopsy on the body of the deceased Lloyd Penacerrada at
around 11:20 a.m. on February 22, 1981 after it was taken to the municipal hall of Ajuy. 17 His findings
revealed that the victim suffered from 16 wounds comprising of four (4) punctured wounds, seven (7) stab
wounds, four (4) incised wounds, and one (1) lacerated wound. In his testimony, Dr. Rojas, while
admitting the possibility that only one weapon might have caused all the wounds (except the lacerated
wound) inflicted on the victim, nevertheless opined that due to the number and different characteristics of
the wounds, the probability that at least two instruments were used is high. 18 The police authorities and the
P.C. operatives for their part testified on the aspect of the investigation they respectively conducted in
relation to the incident. Nanie Peñacerrada testified mainly on the expenses she incurred by reason of the
death of her husband while Barangay Captain Bartolome Paja related the events surrounding the surrender
of the spouses Augusto and Fausta Gonzales to him, the location of the houses of the accused, as well as on
other matters.
7
By and large, the prosecution's case rested on Huntoria's alleged eyewitness account of the incident.
According to Huntoria, who gave his age as 30 when he testified on July 27, 1982, 19 at 5:00 o'clock in the
afternoon on February 21, 1981, he left his work at Barangay Central, in Ajuy, Iloilo where he was
employed as a tractor driver by one Mr. Piccio, and walked home; 20 he took a short-cut route. 21 While
passing at the vicinity of the Gonzales spouses' house at around 8:00 o'clock in the evening, he heard cries
for help. 22 Curiosity prompted him to approach the place where the shouts were emanating. When he was
some 15 to 20 meters away, he hid himself behind a clump of banana
trees. 23 From where he stood, he allegedly saw all the accused ganging upon and takings turns in stabbing
and hacking the victim Lloyd Peñacerrada, near a "linasan" or threshing platform. He said he clearly
recognized all the accused as the place was then awash in moonlight. 24 Huntoria further recounted that
after the accused were through in stabbing and hacking the victim, they then lifted his body and carried it
into the house of the Gonzales spouses which was situated some 20 to 25 meters away from the
"linasan". 25 Huntoria then proceeded on his way home. Upon reaching his house, he related what he saw
to his mother and to his wife 26 before he went to sleep. 27Huntoria explained that he did not immediately
report to the police authorities what he witnessed for fear of his life. 28 In October 1981 however, eight
months after the extraordinary incident he allegedly witnessed, bothered by his conscience plus the fact
that his father was formerly a tenant of the victim which, to his mind, made him likewise a tenant of the
latter, he thought of helping the victim's widow, Nanie Peñacerrada. Hence, out of his volition, he travelled
from his place at Sitio Nabitasan, in Barangay Tipacla Municipality of Ajuy, to Sara, Iloilo where Mrs.
Peñacerrada lived, and related to her what he saw on February 21, 1981. 29
Except Fausta who admitted killing Lloyd Peñacerrada in defense of her honor as the deceased attempted
to rape her, all the accused denied participation in the crime. The herein accused-appellant, Custodio
Gonzales, Sr., claimed that he was asleep 30 in his house which was located some one kilometer away from
the scene of the crime 31 when the incident happened. He asserted that he only came to know of it after his
grandchildren by Augusto and Fausta Gonzales went to his house that night of February 21, 1981 to inform
him. 32
The trial court disregarded the version of the defense; it believed the testimony of Huntoria.
On appeal to the Court of Appeals, Custodia Gonzales, Sr., the lone appellant, contended that the trial court
erred in convicting him on the basis of the testimony of Jose Huntoria, the lone alleged eyewitness, and in
not appreciating his defense of alibi.
The Court of Appeals found no merit in both assigned errors. In upholding Huntoria's testimony, the
appellate court held that:
. . . Huntoria positively identified all the accused, including the herein accused-
appellant, as the assailants of Peñacerrada. (TSN, p. 43, July 27, 1982) The claim
that Huntoria would have difficulty recognizing the assailant at a distance of 15 to
20 meters is without merit, considering that Huntoria knew all the accused. (Id., pp.
37-39) If Huntoria could not say who was hacking and who was stabbing the
deceased, it was only because the assailant were moving around the victim.
As for the delay in reporting the incident to the authorities, we think that Huntoria's
explanation is satisfactory. He said he feared for his life. (Id., pp. 50-51, 65) As
stated in People vs. Realon, 99 SCRA 442, 450 (1980): "The natural reticence of
most people to get involved in a criminal case is of judicial notice. As held
in People v. Delfin, '. . . the initial reluctance of witnesses in this country to
volunteer information about a criminal case and their unwillingness to be involved
in or dragged into criminal investigations is common, and has been judicially
declared not to affect credibility.'"
It is noteworthy that the accused-appellant self admitted that he had known Huntoria
for about 10 years and that he and Huntoria were in good terms and had no
misunderstanding whatsoever. (TSN, p. 33, July 18, 1984) He said that he could not
think of any reason why Huntoria should implicate him. (Id., p. 34) Thus, Huntoria's
credibility. is beyond question. 33
The Court of Appeals likewise rejected the appellant's defense of alibi. 34 The appellate court, however,
found the sentence imposed by the trial court on the accused-appellant erroneous. Said the appellate court:
Finally, we find that the trial court erroneously sentenced the accused-appellant to
12 years and 1 day to 17 years and 4 months of reclusion temporal. The penalty for
murder under Article 248 is reclusion temporal in its maximum period to death. As
there was no mitigating or aggravating circumstance, the imposible penalty should
be reclusion perpetua. Consequently, the appeal should have been brought to the
Supreme Court. With regard to the indemnity for death, the award of P40,000.00
should be reduced to P30,000.00, in accordance with the rulings of the Supreme
Court. (E.g., People v. De la Fuente, 126 SCRA 518 (1983); People v. Atanacio, 128
SCRA 31 (1984); People v. Rado, 128 SCRA 43 (1984); People v. Bautista, G.R.
No. 68731, Feb. 27, 1987).35
The case, as mentioned earlier, is now before us upon certification by the Court of Appeals, the penalty
imposed being reclusion perpetua.
After a careful review of the evidence adduced by the prosecution, we find the same insufficient to convict
the appellant of the crime charged.
To begin with, the investigation conducted by the police authorities leave much to be desired. Patrolman
Centeno of the Ajuy police force in his sworn statements 36 even gave the date of the commission of the
crime as "March 21, 1981." Moreover, the sketch 37 he made of the scene is of little help. While indicated
thereon are the alleged various blood stains and their locations relative to the scene of the crime, there was
however no indication as to their quantity. This is rather unfortunate for the prosecution because,
considering that there are two versions proferred on where the killing was carried out, the extent of blood
stains found would have provided a more definite clue as to which version is more credible. If, as the
version of the defense puts it, the killing transpired inside the bedroom of the Gonzales spouses, there
would have been more blood stains inside the couple's bedroom or even on the ground directly under it.
And this circumstance would provide an additional mooring to the claim of attempted rape asseverated by
Fausta. On the other hand, if the prosecution's version that the killing was committed in the field near the
linasan is the truth, then blood stains in that place would have been more than in any other place.
The same sloppiness characterizes the investigation conducted by the other authorities. Police Corporal
Ben Sazon who claimed that accused Augusto Gonzales surrendered to him on February 23, 1981 failed to
state clearly the reason for the "surrender." It would even appear that Augusto "surrendered" just so he
could be safe from possible revenge by the victim's kins. Corporal Sazon likewise admitted that Augusto
never mentioned to him the participation of other persons in the killing of the victim. Finally, without any
evidence on that point, P.C. investigators of the 321st P.C. Company who likewise conducted an
investigation of the killing mentioned in their criminal complaint 38 four other unnamed persons, aside
from the spouses Augusto and Fausta Gonzales, to have conspired in killing Lloyd Peñacerrada.
Now on the medical evidence. Dr. Rojas opined that it is possible that the sixteen wounds described in the
autopsy report were caused by two or more bladed instruments. Nonetheless, he admitted the possibility
that one bladed instrument might have caused all. Thus, insofar as Dr. Rojas' testimony and the autopsy
report are concerned, Fausta Gonzales' admission that she alone was responsible for the killing appears not
at all too impossible. And then there is the positive testimony of Dr. Rojas that there were only five
8
wounds that could be fatal out of the sixteen described in the autopsy report. We shall discuss more the Q You cannot positively identify before this Court who really
significance of these wounds later. hacked Lloyd Peñacerrada?

It is thus clear from the foregoing that if the conviction of the appellant by the lower courts is to be A Yes sir, I cannot positively tell who did the hacking.
sustained, it can only be on the basis of the testimony of Huntoria, the self-proclaimed eyewitness. Hence,
a meticulous scrutiny of Huntoria's testimony is compelling.
Q And likewise you cannot positively tell this Honorable
Court who did the stabbing?
To recollect, Huntoria testified that he clearly saw all the accused, including the appellant, take turns in
hacking and stabbing Lloyd Peñacerrada, at about 8:00 o'clock in the evening, on February 21, 1981, in the
A Yes sir, and because of the rapid movements.
field near a "linasan" while he (Huntoria) stood concealed behind a clump of banana trees some 15 to 20
meters away from where the crime was being committed. According to him, he recognized the six accused
as the malefactors because the scene was then illuminated by the moon. He further stated that the stabbing Q I noticed in your direct testimony that you could not even
and hacking took about an hour. But on cross-examination, Huntoria admitted that he could not determine identify the weapons used because according to you it was
who among the six accused did the stabbing and/or hacking and what particular weapon was used by each just flashing?
of them.
A Yes, sir.39
ATTY. GATON (defense counsel on cross-examination):
(Emphasis supplied)
Q And you said that the moon was bright, is it correct?
From his very testimony, Huntoria failed to impute a definite and specific act committed, or contributed,
A Yes, Sir. by the appellant in the killing of Lloyd Peñacerrada.

Q And you would like us to understand that you saw the
hacking and the stabbing, at that distance by the herein
accused as identified by you?
A Yes, sir, because the moon was brightly shining.
It also bears stressing that there is nothing in the findings of the trial court and of the Court of Appeals
which would categorize the criminal liability of the appellant as a principal by direct participation under
Article 17, paragraph 1 of the Revised Penal Code. Likewise, there is nothing in the evidence for the
prosecution that inculpates him by inducement, under paragraph 2 of the same Article 17, or by
indispensable cooperation under paragraph 3 thereof. What then was the direct part in the killing did the
appellant perform to support the ultimate punishment imposed by the Court of Appeals on him?

Q If you saw the stabbing and the hacking, will you please
Article 4 of the Revised Penal Code provides how criminal liability is incurred.
tell this Honorable Court who was hacking the victim?

Art. 4. Criminal liability — Criminal liability shall be incurred:

A Because they were surrounding Peñacerrada and were in
constant movement, I could not determine who did the
hacking. 1. By any person committing a felony (delito) although the wrongful act done be
different from that which he intended.
ATTY. GATON:
2. By any person performing an act which would be an offense against persons or
property, were it not for the inherent impossibility of its accomplishment or on
The interpretation is not clear.
account of the employment of inadequate or ineffectual means.

COURT:
(Emphasis supplied.)

They were doing it rapidly.

Thus, one of the means by which criminal liability is incurred is through the commission of a felony.
Article 3 of the Revised Penal Code, on the other hand, provides how felonies are committed.
A The moving around or the hacking or the "labu" or "bunu"
is rapid. I only saw the rapid movement of their arms, Your
Art. 3. Definition — Acts and omissions punishable by law are felonies (delitos).
Honor, and I cannot determine who was hacking and who
was stabbing. But I saw the hacking and the stabbing blow.
Felonies are committed not only by means of deceit (dolo) but also by means of
fault (culpa).
ATTY. GATON:

9
 There is deceit when the act is performed with deliberate intent; and there is fault xxx xxx xxx
when the wrongful act results from imprudence, negligence, lack of foresight, or
lack of skill.
Q Now, Mr. Huntoria, why did it take you so long from the
time you saw the stabbing and hacking of Lloyd Peñacerrada
(Emphasis supplied.) when you told Mrs. Peñacerrada about what happened to her
husband?
Thus, the elements of felonies in general are: (1) there must be an act or omission; (2) the act or omission
must be punishable under the Revised Penal Code; and (3) the act is performed or the omission incurred by A At first I was then afraid to tell anybody else but because I
means of deceit or fault. was haunted by my conscience and secondly the victim was
also my landlord I revealed what I saw to the wife of the
victim.46
Here, while the prosecution accuses, and the two lower courts both found, that the appellant has committed
a felony in the killing of Lloyd Peñacerrada, forsooth there is paucity of proof as to what act was
performed by the appellant. It has been said that "act," as used in Article 3 of the Revised Penal Code, must xxx xxx xxx
be understood as "any bodily movement tending to produce some effect in the external world." 40 In this
instance, there must therefore be shown an "act" committed by the appellant which would have inflicted
(Emphasis ours.)
any harm to the body of the victim that produced his death.

At this juncture, it may be relevant to remind that under our socioeconomic set-up, a tenant owes the very
Yet, even Huntoria, as earlier emphasized, admitted quite candidly that he did not see who "stabbed" or
source of his livelihood, if not existence itself, from his landlord who provides him with the land to till. In
who "hacked" the victim. Thus this principal witness did not say, because he could not whether the
this milieu, tenants like Huntoria are naturally beholden to their landlords and seek ways and means to
appellant "hacked or "stabbed" victim. In fact, Huntoria does not know what specific act was performed by
ingratiate themselves with the latter. In this instance, volunteering his services as a purported eyewitness
the appellant. This lack of specificity then makes the case fall short of the test laid down by Article 3 of the
and providing that material testimony which would lead to the conviction of the entire family of Augusto
Revised Penal Code previously discussed. Furthermore, the fact that the victim sustained only five fatal
Gonzales whose wife, Fausta, has confessed to the killing of Lloyd Peñacerrada, would, in a perverted
wounds out of the total of sixteen inflicted, as adverted to above, while there are six accused charged as
sense, be a way by which Huntoria sought to ingratiate himself with the surviving family of his deceased
principals, it follows to reason that one of the six accused could not have caused or dealt a fatal wound.
landlord. This is especially so because the need to get into the good graces of his landlord's family
And this one could as well be the appellant, granted ex gratia argumenti that he took part in the hacking
assumed a greater urgency considering that he ceased to be employed as early as May
and stabbing alleged by Huntoria. And why not him? Is he not after all the oldest (already sexagenarian at
1981. 47 Volunteering his services would alleviate the financial distress he was in. And Huntoria proved
that time) and practically the father of the five accused? And pursuing this argument to the limits of its
quite sagacious in his choice of action for shortly after he volunteered and presented himself to the victim's
logic, it is possible, nay even probable, that only four, or three, or two of the accused could have inflicted
widow, he was taken under the protective wings of the victim's uncle, one Dr. Biclar, who gave him
all the five fatal wounds to the exclusion of two, three, or four of them. And stretching the logic further, it
employment and provided lodging for his family. 48 Given all the foregoing circumstances, we can not help
is possible, nay probable, that all the fatal wounds, including even all the non-fatal wounds, could have
but dismiss Huntoria as an unreliable witness, to say the least.
been dealt by Fausta in rage against the assault on her womanhood and honor. But more importantly, there
being not an iota of evidence that the appellant caused any of the said five fatal wounds, coupled with the
prosecution's failure to prove the presence of conspiracy beyond reasonable doubt, the appellant's At any rate, there is another reason why we find the alleged participation of the appellant in the killing of
conviction can not be sustained. Lloyd Peñacerrada doubtful — it is contrary to our customs and traditions. Under the Filipino family
tradition and culture, aging parents are sheltered and insulated by their adult children from any possible
physical and emotional harm. It is therefore improbable for the other accused who are much younger and
Additionally, Huntoria's credibility as a witness is likewise tarnished by the fact that he only came out to
at the prime of their manhood, to summon the aid or allow the participation of their 65-year old 49 father,
testify in October 1981, or eight long months since he allegedly saw the killing on February 21, 1981.
the appellant, in the killing of their lone adversary, granting that the victim was indeed an adversary. And
While ordinarily the failure of a witness to report at once to the police authorities the crime he
considering that the appellant's residence was about one kilometer from the scene of the crime, 50 we
had witnessed should not be taken against him and should not affect his credibility,41 here, the
seriously doubt that the appellant went there just for the purpose of aiding his three robust male sons
unreasonable delay in Huntoria's coming out engenders doubt on his veracity. 42 If the silence of coming
(Custodia Jr., Nerio, and Augusta), not to mention the brother and sister, Rogelio and Fausta, in the killing
out an alleged eyewitness for several weeks renders his credibility doubtful, 43 the more it should be for
of Lloyd Peñacerrada, even if the latter were a perceived enemy.
one who was mute for eight months. Further, Huntoria's long delay in reveiling what he allegedly
witnessed, has not been satisfactorily explained. His lame excuse that he feared his life would be
endangered is too pat to be believed. There is no showing that he was threatened by the accused or by Finally, while indeed alibi is a weak defense, 51 under appropriate circumstances, like in the instant case in
anybody. And if it were true that he feared a possible retaliation from the accused, 44 why did he finally which the participation of the appellant is not beyond cavil it may be considered as exculpatory. Courts
volunteer to testify considering that except for the spouses Augusto and Fausta Gonzales who were already should not at once look with disfavor at the defense of alibi for if taken in the light of the other evidence on
under police custody, the rest of the accused were then still free and around; they were not yet named in the record, it may be sufficient to acquit the accused. 52
original information, 45 thus the supposed danger on Huntoria's life would still be clear and present when
he testified.
In fine, the guilt of the appellant has not been proven beyond reasonable doubt.

Moreover, Huntoria is not exactly a disinterested witness as portrayed by the prosecution. He admitted that
WHEREFORE, the Decision of the Court of Appeals is REVERSED and SET ASIDE and the appellant is
he was a tenant of the deceased. In fact, he stated that one of the principal reasons why he testified was
hereby ACQUITTED. Costs de oficio.
because the victim was also his landlord.

10
SO ORDERED.
offense charged.4
For the material antecedents of this case, we quote with approval the following counter-statement of facts
in the People's brief5 which adopted the established findings of the court a quo, documenting the same with
page references to the transcripts of the proceedings, and which we note are without any substantial
divergence in the version proffered by the defense.
G.R. No. 97471 February 17, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ISABELO PUNO y GUEVARRA, alias "Beloy," and ENRIQUE AMURAO y PUNO, alias
"Enry," accused-appellants.
REGALADO, J.:
The primal issue for resolution in this case is whether accused-appellants committed the felony of
kidnapping for ransom under Article 267 of the Revised Penal Code, as charged in the information; or a
violation of Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974), as
contended by the Solicitor General and found by the trial court; or the offense of simple robbery punished
by Paragraph 5, Article 294 of the Revised Penal Code, as claimed by the defense.
In an information dated and filed on May 31, 1989 in the Regional Trial Court of Quezon City, Branch
103, as Criminal Case No. Q-57404 thereof, appellants were charged with kidnapping for ransom allegedly
committed in the following manner:
That on or about the 13th day of January, 1988 in Quezon City, Philippines and
within the jurisdiction of this Honorable Court, the said accused, being then private
individuals, conspiring together, confederating with and mutually helping each
other, did, then and there, wilfully, unlawfully and feloniously kidnap and carry
away one MARIA DEL SOCORRO SARMIENTO y MUTUC * for the purpose of
extorting ransom, to the damage and prejudice of the said offended party in such
amount as may be awarded to her under the provisions of the Civil Code.1
On a plea of not guilty when arraigned,2 appellants went to trial which ultimately resulted in a judgment
promulgated on September 26, 1990 finding them guilty of robbery with extortion committed on a
highway, punishable under Presidential Decree No. 532, with this disposition in the fallo thereof:
ACCORDINGLY, judgment is hereby rendered finding the accused ISABELO
PUNO and ENRIQUE AMURAO GUILTY as principals of robbery with extortion
committed on a highway and, in accordance with P.D. 532, they are both sentenced
to a jail term of reclusion perpetua.
The two accused are likewise ordered to pay jointly and severally the offended
private victim Ma. Socorro M. Sarmiento the sum of P7,000.00 as actual damages
and P3,000.00 as temperate damages.3
Before us now in this appeal, appellants contend that the court a quo erred (1) in convicting them under
Presidential Decree No. 532 since they were not expressly charged with a crime therein; (2) in applying
Sections 4 and 5, Rule 120 of the Rules of Court since the charge under said presidential decree is not the
offense proved and cannot rightly be used as the offense proved which is necessarily included in the
This is a prosecution for kidnapping for ransom allegedly done on January 13, 1988
by the two accused (tsn, Jan. 8, 1990, p. 7).
Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in Araneta Avenue, Quezon
City called Nika Cakes and Pastries. She has a driver of her own just as her husband
does (Ibid., pp. 4-6).
At around 5:00 in the afternoon of January 13, 1988, the accused Isabelo Puno, who
is the personal driver of Mrs. Sarmiento's husband (who was then away in Davao
purportedly on account of local election there) arrived at the bakeshop. He told Mrs.
Socorro that her own driver Fred had to go to Pampanga on an emergency
(something bad befell a child), so Isabelo will temporary (sic) take his place (Id., pp.
8-9).
Mrs. Socorro's time to go home to Valle Verde in Pasig came and so she got into the
Mercedes Benz of her husband with Isabelo on (sic) the wheel. After the car turned
right in (sic) a corner of Araneta Avenue, it stopped. A young man, accused Enrique
Amurao, boarded the car beside the driver (Id., pp. 9-10).
Once inside, Enrique clambered on top of the back side of the front seat and went
onto where Ma. Socorro was seated at the rear. He poke (sic) a gun at her (Id., p.
10).
Isabelo, who earlier told her that Enrique is his nephew announced, "ma'm, you
know, I want to get money from you." She said she has money inside her bag and
they may get it just so they will let her go. The bag contained P7,000.00 and was
taken (Id., pp. 11-14).
Further on, the two told her they wanted P100,000.00 more. Ma. Socorro agreed to
give them that but would they drop her at her gas station in Kamagong St., Makati
where the money is? The car went about the Sta. Mesa area. Meanwhile, Ma.
Socorro clutched her Rosary and prayed. Enrique's gun was menacingly storing (sic)
at her soft bread (sic) brown, perfumed neck. He said he is an NPA and threatened
her (Id., p.15).
The car sped off north towards the North superhighway. There Isabelo, Beloy as he
is called, asked Ma. Socorro to issue a check for P100,000.00. Ma. Socorro
complied. She drafted 3 checks in denominations of two for P30 thousand and one
for P40 thousand. Enrique ordered her to swallow a pill but she refused (Id., pp. 17-
23).
Beloy turned the car around towards Metro Manila. Later, he changed his mind and
turned the car again towards Pampanga. Ma. Socorro, according to her, jumped out
of the car then, crossed to the other side of the superhighway and, after some
11
 vehicles ignored her, she was finally able to flag down a fish vendors van. Her dress
had blood because, according to Ma. Socorro, she fell down on the ground and was
injured when she jumped out of the car. Her dress was torn too (Id., pp. 23-26).
On reaching Balintawak, Ma. Socorro reported the matter to CAPCOM (Id., p. 27).
Both accused were, day after, arrested. Enrique was arrested trying to encash Ma.
Socorro's P40,000.00 check at PCI Bank, Makati. (tsn, Oct. 18, 1989, pp. 10-13)6
As observed by the court below, the defense does not dispute said narrative of complainant, except that,
according to appellant Puno, he stopped the car at North Diversion and freely allowed complainant to step
out of the car. He even slowed the car down as he drove away, until he saw that his employer had gotten a
ride, and he claimed that she fell down when she stubbed her toe while running across the highway. 7
Appellants further testified that they brought the Mercedez Benz car to Dolores, San Fernando, Pampanga
and parked it near a barangay or police outpost. They thereafter ate at a restaurant and divided their
loot.8 Much later, when he took the stand at the trial of this case, appellant Puno tried to mitigate his
liability by explaining that he was in dire need of money for the medication of his ulcers.9
On these relatively simple facts, and as noted at the start of this opinion, three theories have been advanced
as to what crime was committed by appellants. The trial court cohered with the submission of the defense
that the crime could not be kidnapping for ransom as charged in the information. We likewise agree.
Prefatorily, it is worth recalling an accepted tenet in criminal law that in the determination of the crime for
which the accused should be held liable in those instances where his acts partake of the nature of variant
offenses, and the same holds true with regard to the modifying or qualifying circumstances thereof, his
motive and specific intent in perpetrating the acts complained of are invaluable aids in arriving at a correct
appreciation and accurate conclusion thereon.
Thus, to illustrate, the motive of the accused has been held to be relevant or essential to determine the
specific nature of the crime as, for instance, whether a murder was committed in the furtherance of
rebellion in which case the latter absorbs the former, or whether the accused had his own personal motives
for committing the murder independent of his membership in the rebellious movement in which case
rebellion and murder would constitute separate offenses. 10 Also, where injuries were inflicted on a person
in authority who was not then in the actual performance of his official duties, the motive of the offender
assumes importance because if the attack was by reason of the previous performance of official duties by
the person in authority, the crime would be direct assault; otherwise, it would only be physical injuries. 11
In the case at bar, there is no showing whatsoever that appellants had any motive, nurtured prior to or at the
time they committed the wrongful acts against complainant, other than the extortion of money from her
under the compulsion of threats or intimidation. This much is admitted by both appellants, without any
other esoteric qualification or dubious justification. Appellant Puno, as already stated, candidly laid the
blame for his predicament on his need for funds for, in his own testimony, "(w)hile we were along the way
Mam (sic) Corina was telling me "Beloy, I know your family very well and I know that your (sic) not (a)
bad person, why are you doing this?" I told her "Mam, (sic), because I need money and I had an ulcer and
that I have been getting an (sic) advances from our office but they refused to give me any bale (sic). . . ." 12
With respect to the specific intent of appellants vis-a-vis the charge that they had kidnapped the victim, we
can rely on the proverbial rule of ancient respectability that for this crime to exist, there must be
indubitable proof that
the actual intent of the malefactors was to deprive the offended party of her liberty, 13 and not where such
restraint of her freedom of action was merely an incident in the commission of another offense primarily
intended by the offenders. Hence, as early as United States vs. Ancheta, 14 and consistently reiterated
thereafter, 15 it has been held that the detention and/or forcible taking away of the victims by the accused,
even for an appreciable period of time but for the primary and ultimate purpose of killing them, holds the
offenders liable for taking their lives or such other offenses they committed in relation thereto, but the
incidental deprivation of the victims' liberty does not constitute kidnapping or serious illegal detention.
That appellants in this case had no intention whatsoever to kidnap or deprive the complainant of her
personal liberty is clearly demonstrated in the veritably confessional testimony of appellant Puno:
Q At what point did Mrs. Sarmiento handed (sic) the bag
containing the P7,000.00 to your nephew?
A Santo Domingo Exit.
Q And how about the checks, where were you already when
the checks was (sic) being handed to you?
A Also at the Sto. Domingo exit when she signed the checks.
Q If your intention was just to robbed (sic) her, why is it that
you still did not allow her to stay at Sto. Domingo, after all
you already received the money and the checks?
A Because we had an agreement with her that when she
signed the checks we will take her to her house at Villa (sic)
Verde.
Q And why did you not bring her back to her house at Valle
Verde when she is (sic) already given you the checks?
A Because while we were on the way back I (sic) came to my
mind that if we reach Balintawak or some other place along
the way we might be apprehended by the police. So when we
reached Santa Rita exit I told her "Mam (sic) we will already
stop and allow you to get out of the car." 16
Neither can we consider the amounts given to appellants as equivalent to or in the nature of ransom,
considering the immediacy of their obtention thereof from the complainant personally. Ransom, in
municipal criminal law, is the money, price or consideration paid or demanded for redemption of a
captured person or persons, a payment that releases from captivity. 17 It can hardly be assumed that when
complainant readily gave the cash and checks demanded from her at gun point, what she gave under the
circumstances of this case can be equated with or was in the concept of ransom in the law of kidnapping.
These were merely amounts involuntarily surrendered by the victim upon the occasion of a robbery or of
which she was summarily divested by appellants. Accordingly, while we hold that the crime committed is
robbery as defined in Article 293 of the Code, we, however, reject the theory of the trial court that the same
constitutes the highway robbery contemplated in and punished by Presidential Decree No. 532.
The lower court, in support of its theory, offers this ratiocination:
The court agrees that the crime is robbery. But it is also clear from the allegation in
the information that the victim was carried away and extorted for more money. The
accused admitted that the robbery was carried on from Araneta Avenue up to the
12
 North Superhighway. They likewise admitted that along the way they intimidated
Ma. Socorro to produce more money that she had with her at the time for which
reason Ma. Socorro, not having more cash, drew out three checks. . . .
In view of the foregoing the court is of the opinion that the crimes committed is that
punishable under P.D. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974)
under which where robbery on the highway is accompanied by extortion the penalty
is reclusion perpetua.18
The Solicitor General concurs, with the observation that pursuant to the repealing clause in Section 5 of
said decree, "P.D. No- 532 is a modification of the provisions of the Revised Penal Code, particularly
Article 267 which
are inconsistent with it." 19 Such opinion and complementary submission consequently necessitate an
evaluation of the correct interplay between and the legal effects of Presidential Decree No. 532 on the
pertinent Provisions of the Revised Penal Code, on which matter we are not aware that any definitive
pronouncement has as yet been made.
Contrary to the postulation of the Solicitor General, Presidential Decree No. 532 is not a modification of
Article 267 of the Revised Penal Code on kidnapping and serious illegal detention, but of Articles 306 and
307 on brigandage. This is evident from the fact that the relevant portion thereof which treats of "highway
robbery" invariably uses this term in the alternative and synonymously with brigandage, that is, as
"highway robbery/brigandage." This is but in line with our previous ruling, and which still holds sway in
criminal law, that highway robbers (ladrones) and brigands are synonymous. 20
Harking back to the origin of our law on brigandage (bandolerismo) in order to put our discussion thereon
in the proper context and perspective, we find that a band of brigands, also known as highwaymen or
freebooters, is more than a gang of ordinary robbers. Jurisprudence on the matter reveals that during the
early part of the American occupation of our country, roving bands were organized for robbery and pillage
and since the then existing law against robbery was inadequate to cope with such moving bands of
outlaws, the Brigandage Law was passed. 21
The following salient distinctions between brigandage and robbery are succinctly explained in a treatise on
the subject and are of continuing validity:
The main object of the Brigandage Law is to prevent the formation of bands of
robbers. The heart of the offense consists in the formation of a band by more than
three armed persons for the purpose indicated in art. 306. Such formation is
sufficient to constitute a violation of art. 306. It would not be necessary to show, in a
prosecution under it, that a member or members of the band actually committed
robbery or kidnapping or any other purpose attainable by violent means. The crime
is proven when the organization and purpose of the band are shown to be such as are
contemplated by art 306. On the other hand, if robbery is committed by a band,
whose members were not primarily organized for the purpose of committing robbery
or kidnapping, etc., the crime would not be brigandage, but only robbery. Simply
because robbery was committed by a band of more than three armed persons, it
would not follow that it was committed by a band of brigands. In the Spanish text of
art. 306, it is required that the band "sala a los campos para dedicarse a
robar." 22 (Emphasis supplied).
In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only a
particular robbery, the crime is only robbery, or robbery in band if there are at least four armed
participants. 23 The martial law legislator, in creating and promulgating Presidential Decree No. 532 for the
objectives announced therein, could not have been unaware of that distinction and is presumed to have
adopted the same, there being no indication to the contrary. This conclusion is buttressed by the rule on
contemporaneous construction, since it is one drawn from the time when and the circumstances under
which the decree to be construed originated. Contemporaneous exposition or construction is the best and
strongest in the law. 24
Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of robbery
perpetrated by outlaws indiscriminately against any person or persons on Philippine highways as defined
therein, and not acts of robbery committed against only a predetermined or particular victim, is evident
from the preambular clauses thereof, to wit:
WHEREAS, reports from law-enforcement agencies reveal that lawless elements are
still committing acts of depredation upon the persons and properties of innocent and
defenseless inhabitants who travel from one place to another, thereby disturbing the
peace, order and tranquility of the nation and stunting the economic and social
progress of the people:
WHEREAS, such acts of depredations constitute . . . highway robbery/brigandage
which are among the highest forms of lawlessness condemned by the penal statutes
of all countries;
WHEREAS, it is imperative that said lawless elements be discouraged from
perpetrating such acts of depredaions by imposing heavy penalty on the offenders,
with the end in view of eliminating all obstacles to the economic, social,
educational and community progress of the people. (Emphasis supplied).
Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by the
accused as their specific victim could be considered as committed on the "innocent and defenseless
inhabitants who travel from one place to another," and which single act of depredation would be capable of
"stunting the economic and social progress of the people" as to be considered "among the highest forms of
lawlessness condemned by the penal statutes of all countries," and would accordingly constitute an
obstacle "to the economic, social, educational and community progress of the people, " such that said
isolated act would constitute the highway robbery or brigandage contemplated and punished in said decree.
This would be an exaggeration bordering on the ridiculous.
True, Presidential Decree No. 532 did introduce amendments to Articles 306 and 307 of the Revised Penal
Code by increasing the penalties, albeit limiting its applicability to the offenses stated therein when
committed on the highways and without prejudice to the liability for such acts if committed. Furthermore,
the decree does not require that there be at least four armed persons forming a band of robbers; and the
presumption in the Code that said accused are brigands if they use unlicensed firearms no longer obtains
under the decree. But, and this we broadly underline, the essence of brigandage under the Code as a crime
of depredation wherein the unlawful acts are directed not only against specific, intended or preconceived
victims, but against any and all prospective victims anywhere on the highway and whosoever they may
potentially be, is the same as the concept of brigandage which is maintained in Presidential Decree No.
532, in the same manner as it was under its aforementioned precursor in the Code and, for that matter,
under the old Brigandage Law. 25
Erroneous advertence is nevertheless made by the court below to the fact that the crime of robbery
committed by appellants should be covered by the said amendatory decree just because it was committed
on a highway. Aside from what has already been stressed regarding the absence of the requisite elements
which thereby necessarily puts the offense charged outside the purview and intendment of that presidential
issuance, it would be absurd to adopt a literal interpretation that any unlawful taking of property
committed on our highways would be covered thereby. It is an elementary rule of statutory construction
that the spirit or intent of the law should not be subordinated to the letter thereof. Trite as it may appear, we
have perforce to stress the elementary caveat that he who considers merely the letter of an instrument goes
13
but skin deep into its meaning, 26 and the fundamental rule that criminal justice inclines in favor of the correccional, as minimum, to ten (10) years of prision mayor, as maximum, and jointly and severally pay
milder form of liability in case of doubt. the offended party, Maria del Socorro M. Sarmiento, the amounts of P7,000.00 as actual damages and
P20,000.00 as moral damages, with costs.
If the mere fact that the offense charged was committed on a highway would be the determinant for the
application of Presidential Decree No. 532, it would not be farfetched to expect mischievous, if not absurd, SO ORDERED.
effects on the corpus of our substantive criminal law. While we eschew resort to a reductio ad
absurdum line of reasoning, we apprehend that the aforestated theory adopted by the trial court falls far
short of the desideratum in the interpretation of laws, that is, to avoid absurdities and conflicts. For, if a
motor vehicle, either stationary or moving on a highway, is forcibly taken at gun point by the accused who
happened to take a fancy thereto, would the location of the vehicle at the time of the unlawful taking
necessarily put the offense within the ambit of Presidential Decree No. 532, thus rendering nugatory the
categorical provisions of the Anti-Carnapping Act of 1972? 27 And, if the scenario is one where the subject
matter of the unlawful asportation is large cattle which are incidentally being herded along and traversing
the same highway and are impulsively set upon by the accused, should we apply Presidential Decree No.
532 and completely disregard the explicit prescriptions in the Anti-Cattle Rustling Law of 1974? 28

We do not entertain any doubt, therefore, that the coincidental fact that the robbery in the present case was
committed inside a car which, in the natural course of things, was casually operating on a highway, is not
within the situation envisaged by Section 2(e) of the decree in its definition of terms. Besides, that
particular provision precisely defines "highway robbery/brigandage" and, as we have amply demonstrated,
the single act of robbery conceived and committed by appellants in this case does not constitute highway
robbery or brigandage.

Accordingly, we hold that the offense committed by appellants is simple robbery defined in Article 293
and punished under Paragraph 5 of Article 294 of the Revised Penal Code with prision correccional in its
maximum period to prision mayor in its medium period. Appellants have indisputably acted in conspiracy
as shown by their concerted acts evidentiary of a unity of thought and community of purpose. In the
determination of their respective liabilities, the aggravating circumstances of craft 29 shall be appreciated
against both appellants and that of abuse of confidence shall be further applied against appellant Puno,
with no mitigating circumstance in favor of either of them. At any rate, the intimidation having been made
with the use of a firearm, the penalty shall be imposed in the maximum period as decreed by Article 295 of
the Code.

We further hold that there is no procedural obstacle to the conviction of appellants of the crime of simple
robbery upon an information charging them with kidnapping for ransom, since the former offense which
has been proved is necessarily included in the latter offense with which they are charged. 30 For the former
offense, it is sufficient that the elements of unlawful taking, with intent to gain, of personal property
through intimidation of the owner or possessor thereof shall be, as it has been, proved in the case at bar.
Intent to gain (animus lucrandi) is presumed to be alleged in an information where it is charged that there
was unlawful taking (apoderamiento) and appropriation by the offender of the things subject of the
robbery. 31

These foregoing elements are necessarily included in the information filed against appellants which, as
formulated, allege that they wilfully, unlawfully and feloniously kidnapped and extorted ransom from the
complainant. Such allegations, if not expressly but at the very least by necessary implication, clearly
convey that the taking of complainant's money and checks (inaccurately termed as ransom) was unlawful,
with intent to gain, and through intimidation. It cannot be logically argued that such a charge of kidnapping
for ransom does not include but could negate the presence of any of the elements of robbery through
intimidation of persons. 32

WHEREFORE, the assailed judgment of the trial court is hereby SET ASIDE and another one is rendered
CONVICTING accused-appellants Isabelo Puno y Guevarra and Enrique Amurao y Puno of robbery as
Punished in Paragraph 5 of Article 294, in relation to Article 295, of the Revised Penal Code and
IMPOSING on each of them an indeterminate sentence of four (4) years and two (2) months of prision

14
 and that she probably did contract the second marriage under a bona fide belief that the first marriage had
been dissolved by the death of Gonzalez.

We have recently held, in the United States vs. Marcosa Peñalosa and Enrique Rodriguez, decided January
27, 1902, that there can be no conviction under article 475 of the Penal Code, where by reason of a mistake
of fact the intention to commit the crime does not exist, and we think the same principle must apply to this
case. The defendant was therefore properly acquitted of the crime charged in the complaint.

We are, however, of the opinion that the defendant is chargeable with criminal negligence in contracting
the second marriage, and should have been convicted under article 568 of the Penal Code. (See G.O., No.
58, sec. 29.) It does not appear that she made any attempt to ascertain for herself whether the information
received by her mother-in-law as to the death of Gonzalez was to be relied upon. She never even saw or
G.R. No. 504 September 16, 1902 communicated directly in any way with the persons who gave her mother-in-law this information.
Moreover, viewing the testimony in the light most favorable to her, she waited less than two years after
THE UNITED STATES, complainant-appellant, hearing the death of her husband before contracting the second marriage. The diligence with which the law
vs. requires the individual at all times to govern his conduct varies with the nature of the situation in which he
TOMASA DE LOS REYES, defendant-appellee. is to perform. In a matter so important to the good order of society as that in question, where the
consequences of a mistake are necessarily so serious, nothing less than the highest degree of diligence will
satisfy the standard prescribed by the law. We can not say that the defendant has acted with that diligence
Office of the Solicitor-General Araneta, for appellant. in the present case.
Manuel Torres, for private prosecutor.
Alfredo Chicote, for appellee.
Applying the provisions of article 568 of the Penal Code, the act of contracting a second or subsequent
marriage, the prior marriage not having been lawfully dissolved, being one which, if done with malice,
LADD, J.: would constitute a grave crime, the offense committed by the defendant is punishable by arresto mayor in
its maximum degree to prision correccional in its minimum degree. There being no aggravating
This is an appeal from the Court of First Instance of Manila, taken by the complaining witness, Julian circumstance, and as we think the extenuating circumstance of article 11 of the Penal Code may properly
Gonzalez, from a judgment of acquittal, upon a complaint for bigamy under article 471 of the Penal Code. be considered in this case, this penalty should be applied in its minimum degree.

The defendant was married to the complaining witness in Manila, May 27, 1897. After living together in We therefore sentence the defendant to four months and one day of arresto mayor and costs. The judgment
Manila for a time they separated, the defendant remaining in the house where they had been previously of the court below will be modified in accordance with this opinion. So ordered.
living until some time subsequent to July 12, 1900. On that day she was married in Manila by a Protestant
clergyman to Ramon Martinez. Her defense is that she honestly believed her first husband was dead when
she married Martinez.

It appears that the mother and some other relatives of Gonzalez lived, after the separation, in the same
house with the defendant. Gonzalez testifies that the separation took place in March, 1900, and that he also
lived for some months in the lower story of the same house, the defendant living in the upper story. He
further testifies that after he left this house and went to live elsewhere he visited his relatives there nearly
every day down to a few days before the trial, which took place in September, 1901. He says that he often
saw his wife at these times, supplying her with means for her support through his relatives, but that he
never spoke with her. A short time after her second marriage the defendant moved away from the house
and has since lived elsewhere.

The defendant testifies that she and Gonzalez had been living together a year and two months when the
separation took place. That would fix the date of the separation in July, 1898. She testifies that some time
during the year following the separation she was told by the mother of Gonzalez that she had been
informed that her son was dead, that thereupon prayers were said for his soul for nine nights, and that she
put on mourning and wore it a year. She says that she contracted the second marriage with the consent of
the mother of Gonzalez, and believing that the information which she had received from her as to the death
of Gonzalez was true. The mother of Gonzalez died before the trial.

There was some further evidence from other witnesses on both sides, but it was of such a character as to
throw but little light upon the facts of the case. On the whole, we have reached the conclusion, though not
without some hesitation, that the story told by the defendant is in the main more likely to be true than false,
15

G.R. No. L-5272 March 19, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
AH CHONG, defendant-appellant.
Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
The evidence as to many of the essential and vital facts in this case is limited to the testimony of the
accused himself, because from the very nature of these facts and from the circumstances surrounding the
incident upon which these proceedings rest, no other evidence as to these facts was available either to the
prosecution or to the defense. We think, however, that, giving the accused the benefit of the doubt as to the
weight of the evidence touching those details of the incident as to which there can be said to be any doubt,
the following statement of the material facts disclose by the record may be taken to be substantially
correct:
The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley, Rizal
Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy or muchacho.
"Officers' quarters No. 27" as a detached house situates some 40 meters from the nearest building, and in
August, 19087, was occupied solely as an officers' mess or club. No one slept in the house except the two
servants, who jointly occupied a small room toward the rear of the building, the door of which opened
upon a narrow porch running along the side of the building, by which communication was had with the
other part of the house. This porch was covered by a heavy growth of vines for its entire length and height.
The door of the room was not furnished with a permanent bolt or lock, and occupants, as a measure of
security, had attached a small hook or catch on the inside of the door, and were in the habit of reinforcing
this somewhat insecure means of fastening the door by placing against it a chair. In the room there was but
one small window, which, like the door, opened on the porch. Aside from the door and window, there were
no other openings of any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night, was
suddenly awakened by some trying to force open the door of the room. He sat up in bed and called out
twice, "Who is there?" He heard no answer and was convinced by the noise at the door that it was being
pushed open by someone bent upon forcing his way into the room. Due to the heavy growth of vines along
the front of the porch, the room was very dark, and the defendant, fearing that the intruder was a robber or
a thief, leaped to his feet and called out. "If you enter the room, I will kill you." At that moment he was
struck just above the knee by the edge of the chair which had been placed against the door. In the darkness
and confusion the defendant thought that the blow had been inflicted by the person who had forced the
door open, whom he supposed to be a burglar, though in the light of after events, it is probable that the
chair was merely thrown back into the room by the sudden opening of the door against which it rested.
Seizing a common kitchen knife which he kept under his pillow, the defendant struck out wildly at the
intruder who, it afterwards turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell
down on the steps in a desperately wounded condition, followed by the defendant, who immediately
recognized him in the moonlight. Seeing that Pascual was wounded, he called to his employers who slept
in the next house, No. 28, and ran back to his room to secure bandages to bind up Pascual's wounds.
There had been several robberies in Fort McKinley not long prior to the date of the incident just described,
one of which took place in a house in which the defendant was employed as cook; and as defendant
alleges, it was because of these repeated robberies he kept a knife under his pillow for his personal
protection.
The deceased and the accused, who roomed together and who appear to have on friendly and amicable
terms prior to the fatal incident, had an understanding that when either returned at night, he should knock
at the door and acquiant his companion with his identity. Pascual had left the house early in the evening
and gone for a walk with his friends, Celestino Quiambao and Mariano Ibañez, servants employed at
officers' quarters No. 28, the nearest house to the mess hall. The three returned from their walk at about 10
o'clock, and Celestino and Mariano stopped at their room at No. 28, Pascual going on to his room at No.
27. A few moments after the party separated, Celestino and Mariano heard cries for assistance and upon
returning to No. 27 found Pascual sitting on the back steps fatally wounded in the stomach, whereupon one
of them ran back to No. 28 and called Liuetenants Jacobs and Healy, who immediately went to the aid of
the wounded man.
The defendant then and there admitted that he had stabbed his roommate, but said that he did it under the
impression that Pascual was "a ladron" because he forced open the door of their sleeping room, despite
defendant's warnings.
No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it be
that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to frightened
him by forcing his way into the room, refusing to give his name or say who he was, in order to make Ah
Chong believe that he was being attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where he
died from the effects of the wound on the following day.
The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of
simple homicide, with extenuating circumstances, and sentenced to six years and one day presidio mayor,
the minimum penalty prescribed by law.
At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto, but
insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his lawful
right of self-defense.
Article 8 of the Penal Code provides that —
The following are not delinquent and are therefore exempt from criminal liability:
xxx xxx xxx
4 He who acts in defense of his person or rights, provided there are the following attendant
circumstances:
16
 (1) Illegal aggression.
(2) Reasonable necessity of the means employed to prevent or repel it.
(3) Lack of sufficient provocation on the part of the person defending himself.
Under these provisions we think that there can be no doubt that defendant would be entitle to complete
exception from criminal liability for the death of the victim of his fatal blow, if the intruder who forced
open the door of his room had been in fact a dangerous thief or "ladron," as the defendant believed him to
be. No one, under such circumstances, would doubt the right of the defendant to resist and repel such an
intrusion, and the thief having forced open the door notwithstanding defendant's thrice-repeated warning to
desist, and his threat that he would kill the intruder if he persisted in his attempt, it will not be questioned
that in the darkness of the night, in a small room, with no means of escape, with the thief advancing upon
him despite his warnings defendant would have been wholly justified in using any available weapon to
defend himself from such an assault, and in striking promptly, without waiting for the thief to discover his
whereabouts and deliver the first blow.
But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the defendant
nor his property nor any of the property under his charge was in real danger at the time when he struck the
fatal blow. That there was no such "unlawful aggression" on the part of a thief or "ladron" as defendant
believed he was repelling and resisting, and that there was no real "necessity" for the use of the knife to
defend his person or his property or the property under his charge.
The question then squarely presents it self, whether in this jurisdiction one can be held criminally
responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt from
criminal liability if the facts were as he supposed them to be, but which would constitute the crime of
homicide or assassination if the actor had known the true state of the facts at the time when he committed
the act. To this question we think there can be but one answer, and we hold that under such circumstances
there is no criminal liability, provided always that the alleged ignorance or mistake or fact was not due to
negligence or bad faith.
In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative
a particular intent which under the law is a necessary ingredient of the offense charged (e.g., in
larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the presumption of intent," and
works an acquittal; except in those cases where the circumstances demand a conviction under the penal
provisions touching criminal negligence; and in cases where, under the provisions of article 1 of the Penal
Code one voluntarily committing a crime or misdeamor incurs criminal liability for any wrongful act
committed by him, even though it be different from that which he intended to commit. (Wharton's
Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex.
Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala.,
213; Commonwealth vs. Rogers, 7 Met., 500.)
The general proposition thus stated hardly admits of discussion, and the only question worthy of
consideration is whether malice or criminal intent is an essential element or ingredient of the crimes of
homicide and assassination as defined and penalized in the Penal Code. It has been said that since the
definitions there given of these as well as most other crimes and offense therein defined, do not
specifically and expressly declare that the acts constituting the crime or offense must be committed with
malice or with criminal intent in order that the actor may be held criminally liable, the commission of the
acts set out in the various definitions subjects the actor to the penalties described therein, unless it appears
that he is exempted from liability under one or other of the express provisions of article 8 of the code,
which treats of exemption. But while it is true that contrary to the general rule of legislative enactment in
the United States, the definitions of crimes and offenses as set out in the Penal Code rarely contain
provisions expressly declaring that malice or criminal intent is an essential ingredient of the crime,
nevertheless, the general provisions of article 1 of the code clearly indicate that malice, or criminal intent
in some form, is an essential requisite of all crimes and offense therein defined, in the absence of express
provisions modifying the general rule, such as are those touching liability resulting from acts negligently
or imprudently committed, and acts done by one voluntarily committing a crime or misdemeanor, where
the act committed is different from that which he intended to commit. And it is to be observed that even
these exceptions are more apparent than real, for "There is little distinction, except in degree, between a
will to do a wrongful thing and indifference whether it is done or not. Therefore carelessness is criminal,
and within limits supplies the place of the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1,
s. 313); and, again, "There is so little difference between a disposition to do a great harm and a disposition
to do harm that one of them may very well be looked upon as the measure of the other. Since, therefore,
the guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and
since this disposition is greater or less in proportion to the harm which is done by the crime, the
consequence is that the guilt of the crime follows the same proportion; it is greater or less according as the
crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise
stated, the thing done, having proceeded from a corrupt mid, is to be viewed the same whether the
corruption was of one particular form or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions punished by law.
Acts and omissions punished by law are always presumed to be voluntarily unless the contrary
shall appear.
An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even
though the wrongful act committed be different from that which he had intended to commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this
article, say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that without
intention (intention to do wrong or criminal intention) there can be no crime; and that the word "voluntary"
implies and includes the words "con malicia," which were expressly set out in the definition of the word
"crime" in the code of 1822, but omitted from the code of 1870, because, as Pacheco insists, their use in
the former code was redundant, being implied and included in the word "voluntary." (Pacheco, Codigo
Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the crime can only be said to exempt from
criminal responsibility when the act which was actually intended to be done was in itself a lawful one, and
in the absence of negligence or imprudence, nevertheless admits and recognizes in his discussion of the
provisions of this article of the code that in general without intention there can be no crime. (Viada, vol. 1,
p. 16.) And, as we have shown above, the exceptions insisted upon by Viada are more apparent than real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which declared that where there is no
intention there is no crime . . . in order to affirm, without fear of mistake, that under our code
there can be no crime if there is no act, an act which must fall within the sphere of ethics if
there is no moral injury. (Vol. 2, the Criminal Law, folio 169.)
And to the same effect are various decisions of the supreme court of Spain, as, for example in its sentence
of May 31, 1882, in which it made use of the following language:
17
 It is necessary that this act, in order to constitute a crime, involve all the malice which is
supposed from the operation of the will and an intent to cause the injury which may be the
object of the crime.
And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be the
civil effects of the inscription of his three sons, made by the appellant in the civil registry and in the
parochial church, there can be no crime because of the lack of the necessary element or criminal intention,
which characterizes every action or ommission punished by law; nor is he guilty of criminal negligence."
And to the same effect in its sentence of December 30, 1896, it made use of the following language:
. . . Considering that the moral element of the crime, that is, intent or malice or their absence in
the commission of an act defined and punished by law as criminal, is not a necessary question
of fact submitted to the exclusive judgment and decision of the trial court.
That the author of the Penal Code deemed criminal intent or malice to be an essential element of the
various crimes and misdemeanors therein defined becomes clear also from an examination of the
provisions of article 568, which are as follows:
He who shall execute through reckless negligence an act that, if done with malice, would
constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum
degree, to prision correccional in its minimum degrees if it shall constitute a less grave crime.
He who in violation of the regulations shall commit a crime through simple imprudence or
negligence shall incur the penalty of arresto mayor in its medium and maximum degrees.
In the application of these penalties the courts shall proceed according to their discretion,
without being subject to the rules prescribed in article 81.
The provisions of this article shall not be applicable if the penalty prescribed for the crime is
equal to or less than those contained in the first paragraph thereof, in which case the courts shall
apply the next one thereto in the degree which they may consider proper.
The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent," and
the direct inference from its provisions is that the commission of the acts contemplated therein, in the
absence of malice (criminal intent), negligence, and imprudence, does not impose any criminal liability on
the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the
word "willful" as used in English and American statute to designate a form of criminal intent. It has been
said that while the word "willful" sometimes means little more than intentionally or designedly, yet it is
more frequently understood to extent a little further and approximate the idea of the milder kind of legal
malice; that is, it signifies an evil intent without justifiable excuse. In one case it was said to mean, as
employed in a statute in contemplation, "wantonly" or "causelessly;" in another, "without reasonable
grounds to believe the thing lawful." And Shaw, C. J., once said that ordinarily in a statute it means "not
merely `voluntarily' but with a bad purpose; in other words, corruptly." In English and the American
statutes defining crimes "malice," "malicious," "maliciously," and "malice aforethought" are words
indicating intent, more purely technical than "willful" or willfully," but "the difference between them is not
great;" the word "malice" not often being understood to require general malevolence toward a particular
individual, and signifying rather the intent from our legal justification. (Bishop's New Criminal Law, vol.
1, secs. 428 and 429, and cases cited.)
But even in the absence of express words in a statute, setting out a condition in the definition of a crime
that it be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of the
various modes generally construed to imply a criminal intent, we think that reasoning from general
principles it will always be found that with the rare exceptions hereinafter mentioned, to constitute a crime
evil intent must combine with an act. Mr. Bishop, who supports his position with numerous citations from
the decided cases, thus forcely present this doctrine:
In no one thing does criminal jurisprudence differ more from civil than in the rule as to the
intent. In controversies between private parties the quo animo with which a thing was done is
sometimes important, not always; but crime proceeds only from a criminal mind. So that —
There can be no crime, large or small, without an evil mind. In other words, punishment is the
sentence of wickedness, without which it can not be. And neither in philosophical speculation
nor in religious or mortal sentiment would any people in any age allow that a man should be
deemed guilty unless his mind was so. It is therefore a principle of our legal system, as
probably it is of every other, that the essence of an offense is the wrongful intent, without which
it can not exists. We find this doctrine confirmed by —
Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this
subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens sit
rea, "the act itself does not make man guilty unless his intention were so;" Actus me incito
factus non est meus actus, "an act done by me against my will is not my act;" and others of the
like sort. In this, as just said, criminal jurisprudence differs from civil. So also —
Moral science and moral sentiment teach the same thing. "By reference to the intention, we
inculpate or exculpate others or ourselves without any respect to the happiness or misery
actually produced. Let the result of an action be what it may, we hold a man guilty simply on
the ground of intention; or, on the dame ground, we hold him innocent." The calm judgment of
mankind keeps this doctrine among its jewels. In times of excitement, when vengeance takes
the place of justice, every guard around the innocent is cast down. But with the return of reason
comes the public voice that where the mind is pure, he who differs in act from his neighbors
does not offend. And —
In the spontaneous judgment which springs from the nature given by God to man, no one
deems another to deserve punishment for what he did from an upright mind, destitute of every
form of evil. And whenever a person is made to suffer a punishment which the community
deems not his due, so far from its placing an evil mark upon him, it elevates him to the seat of
the martyr. Even infancy itself spontaneously pleads the want of bad intent in justification of
what has the appearance of wrong, with the utmost confidence that the plea, if its truth is
credited, will be accepted as good. Now these facts are only the voice of nature uttering one of
her immutable truths. It is, then, the doctrine of the law, superior to all other doctrines, because
first in nature from which the law itself proceeds, that no man is to be punished as a criminal
unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of
abstract justice result from the adoption of the arbitrary rule that Ignorantia juris non excusat ("Ignorance
of the law excuses no man"), without which justice could not be administered in our tribunals; and
compelled also by the same doctrine of necessity, the courts have recognized the power of the legislature to
forbid, in a limited class of cases, the doing of certain acts, and to make their commission criminal without
regard to the intent of the doer. Without discussing these exceptional cases at length, it is sufficient here to
say that the courts have always held that unless the intention of the lawmaker to make the commission of
certain acts criminal without regard to the intent of the doer is clear and beyond question the statute will
not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of the
law excuses no man has been said not to be a real departure from the law's fundamental principle that
18
crime exists only where the mind is at fault, because "the evil purpose need not be to break the law, and if
suffices if it is simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec.
300, and cases cited.)
In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:
But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring mistake
in fact to be dealt with otherwise that in strict accord with the principles of abstract justice. On the
contrary, the maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all cases
of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)
Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the
act committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from
criminal liability provided always there is no fault or negligence on his part; and as laid down by Baron
Parke, "The guilt of the accused must depend on the circumstances as they appear to him."
(Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P.,
32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207,
209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to whether he honestly, in good faith,
and without fault or negligence fell into the mistake is to be determined by the circumstances as they
appeared to him at the time when the mistake was made, and the effect which the surrounding
circumstances might reasonably be expected to have on his mind, in forming the intent, criminal or other
To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are
wise, upon which he acted.
here set out in full because the facts are somewhat analogous to those in the case at bar.
If, in language not uncommon in the cases, one has reasonable cause to believe the existence of
facts which will justify a killing — or, in terms more nicely in accord with the principles on
which the rule is founded, if without fault or carelessness he does believe them — he is legally
guiltless of the homicide; though he mistook the facts, and so the life of an innocent person is
unfortunately extinguished. In other words, and with reference to the right of self-defense and
the not quite harmonious authorities, it is the doctrine of reason and sufficiently sustained in
adjudication, that notwithstanding some decisions apparently adverse, whenever a man
undertakes self-defense, he is justified in acting on the facts as they appear to him. If, without
fault or carelessness, he is misled concerning them, and defends himself correctly according to
what he thus supposes the facts to be the law will not punish him though they are in truth
otherwise, and he was really no occassion for the extreme measures. (Bishop's New Criminal
Law, sec. 305, and large array of cases there cited.)
The common illustration in the American and English textbooks of the application of this rule is the case
where a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his friends in a
spirit of mischief, and with leveled pistol demands his money or his life, but is killed by his friend under
the mistaken belief that the attack is a real one, that the pistol leveled at his head is loaded, and that his life
and property are in imminent danger at the hands of the aggressor. No one will doubt that if the facts were
such as the slayer believed them to be he would be innocent of the commission of any crime and wholly
exempt from criminal liability, although if he knew the real state of the facts when he took the life of his
friend he would undoubtedly be guilty of the crime of homicide or assassination. Under such
circumstances, proof of his innocent mistake of the facts overcomes the presumption of malice or criminal
intent, and (since malice or criminal intent is a necessary ingredient of the "act punished by law" in cases
of homicide or assassination) overcomes at the same time the presumption established in article 1 of the
code, that the "act punished by law" was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the person slain had a felonious
design against him, and under that supposition killed him, although it should afterwards appear
that there was no such design, it will not be murder, but it will be either manslaughter or
excusable homicide, according to the degree of caution used and the probable grounds of such
belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of
the case, p.7.)
A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an
outstretched arms and a pistol in his hand, and using violent menaces against his life as he
advances. Having approached near enough in the same attitude, A, who has a club in his hand,
strikes B over the head before or at the instant the pistol is discharged; and of the wound B dies.
It turns out the pistol was loaded with powder only, and that the real design of B was only
to terrify A. Will any reasonable man say that A is more criminal that he would have been if
there had been a bullet in the pistol? Those who hold such doctrine must require that a man so
attacked must, before he strikes the assailant, stop and ascertain how the pistol is loaded — a
doctrine which would entirely take away the essential right of self-defense. And when it is
considered that the jury who try the cause, and not the party killing, are to judge of the
reasonable grounds of his apprehension, no danger can be supposed to flow from this principle.
(Lloyd's Rep., p. 160.)
QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in
company only of his wife, without other light than reflected from the fire, and that the man with
his back to the door was attending to the fire, there suddenly entered a person whom he did not
see or know, who struck him one or two blows, producing a contusion on the shoulder, because
of which he turned, seized the person and took from his the stick with which he had
undoubtedly been struck, and gave the unknown person a blow, knocking him to the floor, and
afterwards striking him another blow on the head, leaving the unknown lying on the floor, and
left the house. It turned out the unknown person was his father-in-law, to whom he rendered
assistance as soon as he learned his identity, and who died in about six days in consequence of
cerebral congestion resulting from the blow. The accused, who confessed the facts, had always
sustained pleasant relations with his father-in-law, whom he visited during his sickness,
demonstrating great grief over the occurrence. Shall he be considered free from criminal
responsibility, as having acted in self-defense, with all the circumstances related in paragraph 4,
article 8, of the Penal Code? The criminal branch of the Audiencia of Valladolid found that he
was an illegal aggressor, without sufficient provocation, and that there did not exists rational
necessity for the employment of the force used, and in accordance with articles 419 and 87 of
the Penal Code condemned him to twenty months of imprisonment, with accessory penalty and
costs. Upon appeal by the accused, he was acquitted by the supreme court, under the following
sentence: "Considering, from the facts found by the sentence to have been proven, that the
accused was surprised from behind, at night, in his house beside his wife who was nursing her
child, was attacked, struck, and beaten, without being able to distinguish with which they might
have executed their criminal intent, because of the there was no other than fire light in the
room, and considering that in such a situation and when the acts executed demonstrated that
they might endanger his existence, and possibly that of his wife and child, more especially
because his assailant was unknown, he should have defended himself, and in doing so with the
same stick with which he was attacked, he did not exceed the limits of self-defense, nor did he
use means which were not rationally necessary, particularly because the instrument with which
he killed was the one which he took from his assailant, and was capable of producing death,
and in the darkness of the house and the consteration which naturally resulted from such strong
aggression, it was not given him to known or distinguish whether there was one or more
assailants, nor the arms which they might bear, not that which they might accomplish, and
considering that the lower court did not find from the accepted facts that there existed rational
necessity for the means employed, and that it did not apply paragraph 4 of article 8 of the Penal
19
 Code, it erred, etc." (Sentence of supreme court of Spain, February 28, 1876.) (Viada, Vol. I, p.
266.) .

QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part
of the city, upon arriving at a point where there was no light, heard the voice of a man, at a
distance of some 8 paces, saying: "Face down, hand over you money!" because of which, and
almost at the same money, he fired two shots from his pistol, distinguishing immediately the
voice of one of his friends (who had before simulated a different voice) saying, "Oh! they have
killed me," and hastening to his assistance, finding the body lying upon the ground, he cried,
"Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been the victim of
a joke, and not receiving a reply, and observing that his friend was a corpse, he retired from the
place. Shall he be declared exempt in toto from responsibility as the author of this homicide, as
having acted in just self-defense under the circumstances defined in paragraph 4, article 8,
Penal Code? The criminal branch of the Audiencia of Malaga did not so find, but only found in
favor of the accused two of the requisites of said article, but not that of the reasonableness of
the means employed to repel the attack, and, therefore, condemned the accused to eight years
and one day of prison mayor, etc. The supreme court acquitted the accused on his appeal from
this sentence, holding that the accused was acting under a justifiable and excusable mistake of
fact as to the identity of the person calling to him, and that under the circumstances, the
darkness and remoteness, etc., the means employed were rational and the shooting justifiable.
(Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large
stone thrown against his window — at this, he puts his head out of the window and inquires
what is wanted, and is answered "the delivery of all of his money, otherwise his house would be
burned" — because of which, and observing in an alley adjacent to the mill four individuals,
one of whom addressed him with blasphemy, he fired his pistol at one the men, who, on the
next morning was found dead on the same spot. Shall this man be declared exempt from
criminal responsibility as having acted in just self-defense with all of the requisites of law? The
criminal branch of the requisites of law? The criminal branch of the Audiencia of Zaragoza
finds that there existed in favor of the accused a majority of the requisites to exempt him from
criminal responsibility, but not that of reasonable necessity for the means, employed, and
condemned the accused to twelve months of prision correctional for the homicide committed.
Upon appeal, the supreme court acquitted the condemned, finding that the accused, in firing at
the malefactors, who attack his mill at night in a remote spot by threatening robbery and
incendiarism, was acting in just self-defense of his person, property, and family. (Sentence of
May 23, 1877). (I Viada, p. 128.)

A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman
struck the fatal blow alleged in the information in the firm belief that the intruder who forced open the
door of his sleeping room was a thief, from whose assault he was in imminent peril, both of his life and of
his property and of the property committed to his charge; that in view of all the circumstances, as they
must have presented themselves to the defendant at the time, he acted in good faith, without malice, or
criminal intent, in the belief that he was doing no more than exercising his legitimate right of self-defense;
that had the facts been as he believed them to be he would have been wholly exempt from criminal liability
on account of his act; and that he can not be said to have been guilty of negligence or recklessness or even
carelessness in falling into his mistake as to the facts, or in the means adopted by him to defend himself
from the imminent danger which he believe threatened his person and his property and the property under
his charge.

The judgment of conviction and the sentence imposed by the trial court should be reversed, and the
defendant acquitted of the crime with which he is charged and his bail bond exonerated, with the costs of
both instance de oficio. So ordered.

20

G.R. No. 130487 June 19, 2000
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROBERTO ESTRADA, accused-appellant.
PUNO, J.:
This is an automatic review of the death penalty imposed on accused-appellant by the Regional Trial
Court, Branch 44, Dagupan City in Criminal Case No. 94-00860-D. 1 We nullify the proceedings in the
court a quo and remand the case for proper disposition.
In an Information dated December 29, 1994, accused-appellant Roberto Estrada y Lopez was charged with
the crime of murder for the killing of one Rogelio P. Mararac, a security guard. The Information reads:
That on or about the 27th day of December 1994 in the City of Dagupan, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, ROBERTO ESTRADA Y
LOPEZ, being then armed with a butcher's knife, with intent to kill one ROGELIO P.
MARARAC with treachery and committed in a holy place of worship, did then and there,
wilfully, unlawfully and criminally, attack, assault and use personal violence upon the latter by
stabbing him, hitting him on vital parts of his body with the said weapon, thereby causing his
death shortly thereafter due to "Cardiorespiratory Arrest, Massive Intrathoracic Hemorrhage,
Stab Wound" as per Autopsy Report and Certificate of Death both issued by Dr. Tomas G.
Cornel, Assistant City Health Officer, this City, to the damage and prejudice of the legal heirs of
said deceased ROGELIO P. MARARAC in the amount of not less than FIFTY THOUSAND
PESOS (P50,000.00), Philippine currency, and other consequential damages.
Contrary to Article 248 of the Revised Penal Code.
Dagupan City, Philippines December 29, 1994. 2
At the arraignment on January 6, 1995, accused-appellant's counsel, the Public Attorney's Office, filed an
"Urgent Motion to Suspend Arraignment and to Commit Accused to Psychiatric Ward at Baguio General
Hospital." It was alleged that accused-appellant could not properly and intelligently enter a plea because he
was suffering from a mental defect; that before the commission of the crime, he was confined at the
psychiatric ward of the Baguio General Hospital in Baguio City. He prayed for the suspension of his
arraignment and the issuance of an order confining him at the said hospital. 3
The motion was opposed by the City Prosecutor. The trial court, motu proprio, propounded several
questions on accused-appellant. Finding that the questions were understood and answered by him
"intelligently," the court denied the motion that same day. 4
The arraignment proceeded and a plea of not guilty was entered by the court on accused-appellant's
behalf. 5
The prosecution presented four (4) witnesses, namely: (1) Dr. Tomas Cornel, the Assistant Health Officer
of Dagupan City who issued the death certificate and conducted the autopsy on the victim; (2) Crisanto
Santillan, an eyewitness to the incident; (3) SPO1 Conrado Francisco, one of the policemen who
apprehended accused-appellant; and (4) Rosalinda Sobremonte, the victim's sister. The prosecution
established the following facts:
In the morning of December 27, 1994, at the St. John's Cathedral, Dagupan City, the sacrament of
confirmation was being performed by the Roman Catholic Bishop of Dagupan City on the children of
Dagupan. The cathedral was filled with more than a thousand people. At 11:00 A.M., nearing the close of
the rites, the Bishop went down the altar to give his final blessing to the children in the front rows. While
the Bishop was giving his blessing, a man from the crowd went up and walked towards the center of the
altar. He stopped beside the Bishop's chair, turned around and, in full view of the Catholic faithful, sat on
the Bishop's chair. The man was accused-appellant. Crisanto Santillan, who was assisting the Bishop at the
rites, saw accused-appellant. Santillan approached accused-appellant and requested him to vacate the
Bishop's chair. Gripping the chair's armrest, accused-appellant replied in Pangasinese: "No matter what
will happen, I will not move out!" Hearing this, Santillan moved away. 6
Some of the churchgoers summoned Rogelio Mararac, the security guard at the cathedral. Mararac went
near accused-appellant and told him to vacate the Bishop's chair. Accused-appellant stared intensely at the
guard. Mararac grabbed his nightstick and used it to tap accused-appellant's hand on the armrest. Appellant
did not budge. Again, Mararac tapped the latter's hand. Still no reaction. Mararac was about to strike again
when suddenly accused-appellant drew a knife from his back, lunged at Mararac and stabbed him, hitting
him below his left throat. Mararac fell. Accused-appellant went over the victim and tried to stab him again
but Mararac parried his thrust. Accused-appellant looked up and around him. He got up, went to the
microphone and shouted: "Anggapuy nayan dia!" (No one can beat me here!). He returned to the Bishop's
chair and sat on it again. Mararac, wounded and bleeding, slowly dragged himself down the altar. 7
Meanwhile, SPO1 Conrado Francisco, who was directing traffic outside, received a report of a commotion
inside the cathedral. Rushing to the cathedral, SPO1 Francisco saw a man, accused-appellant, with red
stains on his shirt and a knife in one hand sitting on a chair at the center of the altar. He ran to accused-
appellant and advised him to drop the knife. Accused-appellant obeyed. He dropped the knife and raised
his hands. Thereupon, Chief Inspector Wendy Rosario, Deputy Police Chief, Dagupan City, who was
attending the confirmation rites at the Cathedral, went near accused-appellant to pick up the knife.
Suddenly, accused-appellant embraced Chief Inspector Rosario and the two wrestled with each other. Chief
Inspector Rosario was able to subdue accused-appellant. The police came and when they frisked appellant,
they found a leather scabbard tucked around his waist. 8 He was brought to the police station and placed in
jail.
In the meantime, Mararac, the security guard, was brought to the hospital where he expired a few minutes
upon arrival. He died of cardio-respiratory arrest, massive, intra-thoracic hemorrhage, stab wound." 9 He
was found to have sustained two (2) stab wounds: one just below the left throat and the other on the left
arm. The autopsy reported the following findings:
EXTERNAL FINDINGS
21
 1. Stab wound, along the parasternal line, level of the 2nd intercostal space, left, 1
1/2" x 1 1/2" penetrating. The edge of one side of the wound is sharp and pointed.
2. Stab wound, antero-lateral aspect, distal 3rd, arm, left, 1/2" x 1/4" x 1/2". The
edge of one side of the wound is sharp and pointed.
INTERNAL FINDINGS
Massive intrathoracic, left, hemorrhage with perforation of the upper and lower lobe of the left
lung. The left pulmonary blood vessel was severely cut. 10
After the prosecution rested its case, accused-appellant, with leave of court, filed a "Demurrer to
Evidence." He claimed that the prosecution failed to prove the crime of murder because there was no
evidence of the qualifying circumstance of treachery; that there was unlawful aggression by the victim
when he tapped accused-appellant's hand with his nightstick; and that accused-appellant did not have
sufficient ability to calculate his defensive acts because he was of unsound mind. 11
The "Demurrer to Evidence" was opposed by the public prosecutor. He alleged that the accused "pretended
to be weak, tame and of unsound mind;" that after he made the first stab, he "furiously continued stabbing
and slashing the victim to finish him off undeterred by the fact that he was in a holy place where a
religious ceremony was being conducted;" and the plea of unsound mind had already been ruled upon by
the trial court in its order of January 6, 1995. 12
On February 21, 1995, a letter was sent by Inspector Wilfredo F. Valdez, Jail Warden of Dagupan City to
the trial court. Inspector Valdez requested the court to allow accused-appellant, who was confined at the
city jail, to be treated at the Baguio General Hospital to determine whether he should remain in jail or be
transferred to some other institution. The other prisoners were allegedly not comfortable with appellant
because he had been exhibiting unusual behavior. He tried to climb up the jail roof so he could escape and
see his family. 13
As ordered by the trial court, the public prosecutor filed a Comment to the jail warden's letter. He reiterated
that the mental condition of accused-appellant to stand trial had already been determined; unless a
competent government agency certifies otherwise, the trial should proceed; and the city jail warden was
not the proper person to determine whether accused-appellant was mentally ill or not. 14
15
In an order dated August 21, 1995, the trial court denied the "Demurrer to Evidence". Accused-appellant
moved for reconsideration.
While the motion for reconsideration was pending, on February 26, 1996, counsel for accused-appellant
filed a "Motion to Confine Accused for Physical, Mental and Psychiatric Examination." Appellant's
counsel informed the court that accused-appellant had been exhibiting abnormal behavior for the past
weeks; he would shout at the top of his voice and cause panic among the jail inmates and personnel; that
appellant had not been eating and sleeping; that his co-inmates had been complaining of not getting
enough sleep for fear of being attacked by him while asleep; that once, while they were sleeping, appellant
took out all his personal effects and waste matter and burned them inside the cell which again caused panic
among the inmates. Appellant's counsel prayed that his client be confined at the National Center for Mental
Health in Manila or at the Baguio General Hospital. 16 Attached to the motion were two (2) letters. One,
dated February 19, 1996, was from Inspector Pedrito Llopis, Jail Warden, Dagupan City, addressed to the
trial court judge informing him of appellant's irrational behavior and seeking the issuance of a court order
for the immediate psychiatric and mental examination of accused-appellant. 17 The second letter, dated
February 21, 1996, was addressed to Inspector Llopis from the Bukang Liwayway Association, an
association of inmates in the Dagupan City Jail. The letter, signed by the president, secretary and adviser of
said association, informed the jail warden of appellant's unusual behavior and requested that immediate
action be taken against him to avoid future violent incidents in the jail. 18
On September 18, 1996, the trial court denied reconsideration of the order denying the "Demurrer to
Evidence." The court ordered accused-appellant to present his evidence on October 15, 1996. 19
Accused-appellant did not take the witness stand. Instead, his counsel presented the testimony of Dr. Maria
Soledad Gawidan, 20 a resident physician in the Department of Psychiatry at the Baguio General Hospital,
and accused-appellant's medical and clinical records at the said hospital. 21 Dr. Gawidan testified that
appellant had been confined at the BGH from February 18, 1993 to February 22, 1993 and that he suffered
from "Schizophrenic Psychosis, Paranoid Type—schizophrenia, paranoid, chronic, paranoid type;" 22 and
after four (4) days of confinement, he was discharged in improved physical and mental condition. 23 The
medical and clinical records consisted of the following: (1) letter of Dr. Alfredo Sy, Municipal Health
Officer, Calasiao, Pangasinan to Dr. Jesus del Prado, Director, BGH referring accused-appellant for
admission and treatment after "a relapse of his violent behavior;" 24 (2) the clinical cover sheet of appellant
at the BGH; 25 (3) the consent slip of appellant's wife voluntarily entrusting appellant to the BGH; 26 (4) the
Patient's Record; 27 (5) the Consent for Discharge signed by appellant's wife; 28 (6) the Summary and
Discharges of appellant; 29 (7) appellant's clinical case history; 30 (8) the admitting notes; 31 (9) Physician's
Order Form; 32 (10) the Treatment Form/medication sheet; 33 and (11) Nurses' Notes. 34
The trial court rendered a decision on June 23, 1997. It upheld the prosecution evidence and found
accused-appellant guilty of the crime charged and thereby sentenced him to death, viz:
WHEREFORE, the court finds accused Roberto Estrada y Lopez guilty beyond reasonable
doubt of the crime of Murder and in view of the presence of the aggravating circumstance of
cruelty which is not offset by any mitigating circumstance, the accused is sentenced to suffer
the Death Penalty and to indemnify the heirs of the deceased in the amount of
P50,000.00.1âwphi1.nêt
The accused is ordered to pay the sum of P18,870.00 representing actual expenses and
P100,000.00 as moral damages.
SO ORDERED. 25
In this appeal, accused-appellant assigns the following errors:
I
THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF THE
CRIME CHARGED, DESPITE CLEAR AND CONVINCING EVIDENCE ON RECORD,
SUPPORTING HIS PLEA OF INSANITY.
II
THE LOWER COURT LIKEWISE ERRED IN HOLDING THAT THE STABBING TO
DEATH OF ROGELIO MARARAC WAS ATTENDED WITH TREACHERY AND
AGGRAVATED BY CRUELTY, GRANTING ARGUENDO THAT ACCUSED-
APPELLANT'S PLEA OF INSANITY CANNOT BE CONSIDERED AN EXEMPTING
CIRCUMSTANCE. 36
22
The basic principle in our criminal law is that a person is criminally liable for a felony committed by
him. 37 Under the classical theory on which our penal code is mainly based, the basis of criminal liability is
human free Will. 38 Man is essentially a moral creature with an absolutely free will to choose between good
and evil. 39 When he commits a felonious or criminal act (delito doloso), the act is presumed to have been
done voluntarily, 40 i.e., with freedom, intelligence and intent. 41 Man, therefore, should be adjudged or held
accountable for wrongful acts so long as free will appears unimpaired. 42
In the absence of evidence to the contrary, the law presumes that every person is of sound mind 43 and that
all acts are voluntary. 44 The moral and legal presumption under our law is that freedom and intelligence
constitute the normal condition of a person. 45 This presumption, however, may be overthrown by other
factors; and one of these is insanity which exempts the actor from criminal liability. 46
The Revised Penal Code in Article 12 (1) provides:
Art. 12. Circumstances which exempt from criminal liability. — The following are exempt from
criminal liability:
1. An imbecile or an insane person, unless the latter has acted during a lucid interval.
When the imbecile or an insane person has committed an act which the law defines
as a felony (delito), the court shall order his confinement in one of the hospitals or
asylums established for persons thus afflicted, which he shall not be permitted to
leave without first obtaining the permission of the same court.
An insane person is exempt from criminal liability unless he has acted during a lucid interval. If
the court therefore finds the accused insane when the alleged crime was committed, he shall be
acquitted but the court shall order his confinement in a hospital or asylum for treatment until he
may be released without danger. An acquittal of the accused does not result in his outright
release, but rather in a verdict which is followed by commitment of the accused to a mental
institution. 47
In the eyes of the law, insanity exists when there is a complete deprivation of intelligence in committing
the act. Mere abnormality of the mental faculties will not exclude imputability. 48 The accused must be "so
insane as to be incapable of entertaining a criminal intent." 49 He must be deprived of reason and act
without the least discernment because there is a complete absence of the power to discern or a total
deprivation of freedom of the will. 50
Since the presumption is always in favor of sanity, he who invokes insanity as an exempting circumstance
must prove it by clear and positive evidence. 51 And the evidence on this point must refer to the time
preceding the act under prosecution or to the very moment of its execution. 52
To ascertain a person's mental condition at the time of the act, it is permissible to receive evidence of the
condition of his mind within a reasonable period both before and after that time. 53 Direct testimony is not
required. 54 Neither are specific acts of derangement essential to establish insanity as a
defense. 55 Circumstantial evidence, if clear and convincing, suffices; for the unfathomable mind can only
be known by overt acts. A person's thoughts, motives, and emotions may be evaluated only by outward acts
to determine whether these conform to the practice of people of sound mind. 56
In the case at bar, there is no direct proof that accused-appellant was afflicted with insanity at the time he
killed Mararac. The absence of direct proof, nevertheless, does not entirely discount the probability that
appellant was not of sound mind at that time. From the affidavit of Crisanto Santillan 57 attached to the
Information, there are certain circumstances that should have placed the trial court on notice that appellant
may not have been in full possession of his mental faculties when he attacked Mararac. It was highly
unusual for a sane person to go up to the altar and sit in the Bishop's chair while the Bishop was
administering the Holy Sacrament of Confirmation to children in a jampacked cathedral. It goes against
normal and ordinary behavior for appellant, without sufficient provocation from the security guard, to stab
the latter at the altar, during sacramental rites and in front of all the Catholic faithful to witness. Appellant
did not flee, or at least attempt to flee after the stabbing. He nonchalantly approached the microphone and,
over the public address system, uttered words to the faithful which the rational person would have been
made. He then returned to the Bishop's chair and sat there as if nothing happened.
Accused-appellant's history of mental illness was brought to the court's attention on the day of
arraignment. Counsel for accused-appellant moved for suspension of the arraignment on the ground that
his client could not properly and intelligently enter a plea due to his mental condition. The Motion for
Suspension is authorized under Section 12, Rule 116 of the 1985 Rules on Criminal Procedure which
provides:
Sec. 12. Suspension of arraignment. — The arraignment shall be suspended, if at the time
thereof:
(a) The accused appears to be suffering from an unsound mental condition which effectively
renders him unable to fully understand the charge against him and to plead intelligently thereto.
In such case, the court shall order his mental examination and, if necessary, his confinement for
such purpose.
(b) x x x xxx xxx
The arraignment of an accused shall be suspended if at the time thereof he appears to be suffering from an
unsound mental condition of such nature as to render him unable to fully understand the charge against
him and to plead intelligently thereto. Under these circumstances, the court must suspend the proceedings
and order the mental examination of the accused, and if confinement be necessary for examination, order
such confinement and examination. If the accused is not in full possession of his mental faculties at the
time he is informed at the arraignment of the nature and cause of the accusation against him, the process is
itself a felo de se, for he can neither comprehend the full import of the charge nor can he give an intelligent
plea thereto. 58
The question of suspending the arraignment lies within the discretion of the trial court. 59 And the test to
determine whether the proceedings will be suspended depends on the question of whether the accused,
even with the assistance of counsel, would have a fair trial. This rule was laid down as early as 1917, thus:
In passing on the question of the propriety of suspending the proceedings against an accused
person on the ground of present insanity, the judges should bear in mind that not every
aberration of the mind or exhibition of mental deficiency is sufficient to justify such
suspension. The test is to be found in the question whether the accused would have a fair trial,
with the assistance which the law secures or gives; and it is obvious that under a system of
procedure like ours where every accused person has legal counsel, it is not necessary to be so
particular as it used to be in England where the accused had no advocate but himself. 60
In the American jurisdiction, the issue of the accused's "present insanity" or insanity at the time of the
court proceedings is separate and distinct from his criminal responsibility at the time of commission of the
act. The defense of insanity in a criminal trial concerns the defendant's mental condition at the time of the
crime's commission. "Present insanity" is commonly referred to as "competency to stand trial" 61 and
relates to the appropriateness of conducting the criminal proceeding in light of the defendant's present
inability to participate meaningfully and effectively. 62 In competency cases, the accused may have been
sane or insane during the commission of the offense which relates to a determination of his guilt. However,
23
if he is found incompetent to stand trial, the trial is simply postponed until such time as he may be found
competent. Incompetency to stand trial is not a defense; it merely postpones the trial. 63
In determining a defendant's competency to stand trial, the test is whether he has the capacity to
comprehend his position, understand the nature and object of the proceedings against him, to conduct his
defense in a rational manner, and to cooperate, communicate with, and assist his counsel to the end that
any available defense may be interposed. 64 This test is prescribed by state law but it exists generally as a
statutory recognition of the rule at common law. 65 Thus:
[I]f is not enough for the . . . judge to find that the defendant [is] oriented to time and place, and
[has] some recollection of events, but that the test must be whether he has sufficient present
ability to consult with his lawyer with a reasonable degree of rational understanding—and
whether he has a rational as well as factual understanding of the proceedings against him. 66
There are two distinct matters to be determined under this test: (1) whether the defendant is sufficiently
coherent to provide his counsel with information necessary or relevant to constructing a defense; and (2)
whether he is able to comprehend the significance of the trial and his relation to it. 67 The first requisite is
the relation between the defendant and his counsel such that the defendant must be able to confer
coherently with his counsel. The second is the relation of the defendant vis-a-vis the court proceedings, i.e.,
that he must have a rational as well as a factual understanding of the proceedings. 68
The rule barring trial or sentence of an insane person is for the protection of the accused, rather than of the
public. 69It has been held that it is inhuman to require an accused disabled by act of God to make a just
defense for his life or liberty. 70 To put a legally incompetent person on trial or to convict and sentence him
is a violation of the constitutional rights to a fair trial 71 and due process of law; 72 and this has several
reasons underlying it. 73 For one, the accuracy of the proceedings may not be assured, as an incompetent
defendant who cannot comprehend the proceedings may not appreciate what information is relevant to the
proof of his innocence. Moreover, he is not in a position to exercise many of the rights afforded a
defendant in a criminal case, e.g., the right to effectively consult with counsel, the right to testify in his
own behalf, and the right to confront opposing witnesses, which rights are safeguards for the accuracy of
the trial result. Second, the fairness of the proceedings may be questioned, as there are certain basic
decisions in the course of a criminal proceeding which a defendant is expected to make for himself, and
one of these is his plea. Third, the dignity of the proceedings may be disrupted, for an incompetent
defendant is likely to conduct himself in the courtroom in a manner which may destroy the decorum of the
court. Even if the defendant remains passive, his lack of comprehension fundamentally impairs the
functioning of the trial process. A criminal proceeding is essentially an adversarial proceeding. If the
defendant is not a conscious and intelligent participant, the adjudication loses its character as a reasoned
interaction between an individual and his community and becomes an invective against an insensible
object. Fourth, it is important that the defendant knows why he is being punished, a comprehension which
is greatly dependent upon his understanding of what occurs at trial. An incompetent defendant may not
realize the moral reprehensibility of his conduct. The societal goal of institutionalized retribution may be
frustrated when the force of the state is brought to bear against one who cannot comprehend its
significance. 74
The determination of whether a sanity investigation or hearing should be ordered rests generally in the
discretion of the trial court. 75 Mere allegation of insanity is insufficient. There must be evidence or
circumstances that raise a "reasonable doubt" 76 or a "bona fide doubt" 77 as to defendant's competence to
stand trial. Among the factors a judge may consider is evidence of the defendant's irrational behavior,
history of mental illness or behavioral abnormalities, previous confinement for mental disturbance,
demeanor of the defendant, and psychiatric or even lay testimony bearing on the issue of competency in a
particular case. 78
In the case at bar, when accused-appellant moved for suspension of the arraignment on the ground of
accused's mental condition, the trial court denied the motion after finding that the questions propounded on
appellant were intelligently answered by him. The court declared:
xxx xxx xxx
It should be noted that when this case was called, the Presiding Judge asked questions on the
accused, and he (accused) answered intelligently. As a matter of fact, when asked where he was
born, he answered, in Tayug.
The accused could answer intelligently. He could understand the questions asked of him.
WHEREFORE, for lack of merit, the Urgent Motion to Suspend Arraignment and to Commit
Accused to Psychiatric Ward at Baguio General Hospital, is hereby DENIED.
SO ORDERED. 79
The fact that accused-appellant was able to answer the questions asked by the trial court is not conclusive
evidence that he was competent enough to stand trial and assist in his defense. Section 12, Rule 116 speaks
of an unsound mental condition that "effectively renders [the accused] unable to fully understand the
charge against him and to plead intelligently thereto." It is not clear whether accused-appellant was of such
sound mind as to fully understand the charge against him. It is also not certain whether his plea was made
intelligently. The plea of "not guilty" was not made by accused-appellant but by the trial court "because of
his refusal to plead." 80
The trial court took it solely upon itself to determine the sanity of accused-appellant. The trial judge is not
a psychiatrist or psychologist or some other expert equipped with the specialized knowledge of
determining the state of a person's mental health. To determine the accused-appellants competency to stand
trial, the court, in the instant case, should have at least ordered the examination of accused-appellant,
especially in the light of the latter's history of mental illness.
If the medical history was not enough to create a reasonable doubt in the judge's mind of accused-
appellants competency to stand trial, subsequent events should have done so. One month after the
prosecution rested its case, the Jail Warden of Dagupan City wrote the trial judge informing him of
accused-appellant's unusual behavior and requesting that he be examined at the hospital to determine
whether he should remain in jail or be placed in some other institution. The trial judge ignored this letter.
One year later, accused-appellant's counsel filed a "Motion to Confine Accused for Physical, Mental and
Psychiatric Examination." Attached to this motion was a second letter by the new Jail Warden of Dagupan
City accompanied by a letter-complaint of the members of the Bukang Liwayway Association of the city
jail. Despite the two (2) attached letters, 81 the judge ignored the "Motion to Confine Accused for Physical,
Mental and Psychiatric Examination." The records are barren of any order disposing of the said motion.
The trial court instead ordered accused-appellant to present his evidence. 82
Dr. Gawidan, testified that the illness of accused-appellant, i.e., schizophrenia, paranoid type, is a "lifetime
illness" and that this requires maintenance medication to avoid relapses. 83 After accused-appellant was
discharged on February 22, 1993, he never returned to the hospital, not even for a check-up. 84
Accused-appellant did not take the witness stand. His counsel manifested that accused-appellant was
waiving the right to testify in his own behalf because he was "suffering from mental illness." 85 This
manifestation was made in open court more than two (2) years after the crime, and still, the claim of
mental illness was ignored by the trial court. And despite all the overwhelming indications of accused-
appellant's state of mind, the judge persisted in his personal assessment and never even considered
24
subjecting accused-appellant to a medical examination. To top it all, the judge found appellant guilty and
sentenced him to death!

Sec. 12, Rule 116 of the 1985 Rules on Criminal Procedure speaks of a "mental examination." 86 The
human mind is an entity, and understanding it is not purely an intellectual process but depends to a large
degree upon emotional and psychological appreciation. 87 Thus, an intelligent determination of an accused's
capacity for rational understanding ought to rest on a deeper and more comprehensive diagnosis of his
mental condition than laymen can make through observation of his overt behavior. Once a medical or
psychiatric diagnosis is made, then can the legal question of incompetency be determined by the trial court.
By this time, the accused's abilities may be measured against the specific demands a trial will make upon
him. 88

If the mental examination on accused-appellant had been promptly and properly made, it may have served
a dual purpose 89 by determining both his competency to stand trial and his sanity at the time of the offense.
In some Philippine cases, the medical and clinical findings of insanity made immediately after the
commission of the crime served as one of the bases for the acquittal of the accused. 90 The crime in the
instant case was committed way back in December 1994, almost six (6) years ago. At this late hour, a
medical finding alone may make it impossible for us to evaluate appellant's mental condition at the time of
the crime's commission for him to avail of the exempting circumstance of insanity. 91 Nonetheless, under
the present circumstances, accused-appellant's competence to stand trial must be properly ascertained to
enable him to participate, in his trial meaningfully.

By depriving appellant of a mental examination, the trial court effectively deprived appellant of a fair
trial.1awphil The trial court's negligence was a violation of the basic requirements of due process; and for
this reason, the proceedings before the said court must be nullified. In People v. Serafica, 92 we ordered that
the joint decision of the trial court be vacated and the cases remanded to the court a quo for proper
proceeding. The accused, who was charged with two (2) counts of murder and one (1) count of frustrated
murder, entered a plea of "guilty" to all three charges and was sentenced to death. We found that the
accused's plea was not an unconditional admission of guilt because he was "not in full possession of his
mental faculties when he killed the victim;" and thereby ordered that he be subjected to the necessary
medical examination to determine his degree of insanity at the time of commission of the crime. 93

IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 44, Dagupan City in Criminal
Case No. 94-00860-D convicting accused-appellant Roberto Estrada and sentencing him to death is
vacated and the case is remanded to the court a quo for the conduct of a proper mental examination on
accused-appellant, a determination of his competency to stand trial, and for further
proceedings.1âwphi1.nêt

SO ORDERED.

25
 served five and a half year of her life sentence (February 2, 1991 to August 5, 1996). She argues
that the penalty of the life imprisonment imposed by the trial court is "excessive considering
that the marijuana allegedly taken from her was only 5.5 grams or less than 750 grams". The
Solicitor General, in his Comment filed with this Court on August 30, 1996, interposed "no
objection to a favorable application of Section 20, Article IV of R.A. No. 6425, as amended by
R.A. No. 7659."

The Court's Ruling

The petition is meritorious.

R.A. 7659, which took effect on December 13, 1993, partly modified the penalties prescribed
by R.A. 6425; that is inter alia, where the quantity of prohibited drugs involved is less than 750
grams, the penalty is reduced to a range of prision correccional to reclusion perpetua. (Ordonez
vs. Vinarao, G.R. No. 121424, March 28, 1996). In People vs. Simon (234 SCRA 555, July 29,
1994) and People vs. De Lara (236 SCRA 291, September 5, 1994), this Court ruled that where
the marijuana is less than 250 grams, the penalty to be imposed shall be prision correccional.
Moreover applying the Indeterminate Sentence Law, the penalty imposable is further reduced to
any period within arresto mayor, as minimum term, to the medium period ofprision
correccional as the maximum term, there being no aggravating or mitigating circumstances
(Garcia, et al. vs. Court of Appeals, et al, G.R. No. 110983, March 8, 1996).
G.R. No. 125672 September 27, 1996
All told, the petitioner should now be deemed to have served the maximum period imposable
JESUSA CRUZ, petitioner, for the crime for which she was convicted, i.e., selling 5.5. grams of dried marijuana leaves.
vs. Although her penalty of life imprisonment had already become final, the beneficial effects of
CORRECTIONAL INSTITUTION FOR WOMEN IN MANDALUYONG, respondent. the amendment provided under R.A. 7659 should be extended to petitioner.

RESOLUTION WHEREFORE, the petition is GRANTED. The petitioner is hereby ORDERED RELEASED
IMMEDIATELY, unless she is being detained on some other legal charges. No costs.

SO ORDERED.
PANGANIBAN, J.:

After having served five and a half years of her life sentence, may petitioner — who was
convicted of selling 5.5. grams of prohibited drugs, namely, dried marijuana leaves — be now
entitled to the beneficent penalty provisions R.A. 7659 and be now released from
imprisonment?

The Facts

Petitioner Jesusa Cruz, a.k.a. Jesusa Mediavilla, is at present confined at the Correctional
Institution for Women in Mandaluyong City serving the penalty of life imprisonment imposed
upon her as consequence of her conviction on March 31, 1992 for violation of Section 4, Article
II of R.A. 6425 otherwise known as the Dangerous Drugs Act of 1972. Her appeal from the
judgment of conviction rendered by the Regional Trial court of Iloilo City, Branch 33, was
dismissed by this Court on March 1, 1993 in G.R. No. 106389, People vs. Jesus Cruz. Hence,
her life sentence has become final and executory.

On August 6, 1996, the present petitioner for habeas corpus was filed by Atty. Mylene T.
Creencia (of the law firm of Fortun and Narvasa) who was appointed by this court on
September 13, 1995 as counsel de oficio to assist the accused in the preparation of the said
pleading. Petitioner alleges that, as of the date of filing of her herein petitioner, she has already
26

G.R. Nos. 115008-09 July 24, 1996
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DANIEL QUIJADA Y CIRCULADO, accused-appellant.
DAVIDE, JR., J.:p
Accused-appellant Daniel Quijada appeals from the decision of 30 September 1993 of Branch 1 of the
Regional Trial Court (RTC) of Bohol convicting him of the two offenses separately charged in two
informations, viz., murder under Article 248 of the Revised Penal Code and illegal possession of firearm in
its aggravated from under P.D. No. 1866, and imposing upon him the penalty of reclusion perpetua for the
first crime and an indeterminate penalty ranging from seventeen years, four months, and one day, as
minimum, to twenty years and one day, as maximum, for the second crime.1
The appeal was originally assigned to the Third Division of the Court but was later referred to the Court en
banc in view of the problematical issue of whether to sustain the trial court's judgment in conformity with
the doctrine laid down in People vs. Tac-an,2 People vs. Tiozon,3 People vs. Caling,4 People
vs. Jumamoy,5 People vs. Deunida,6People vs. Tiongco,7 People vs. Fernandez,8 and People vs. Somooc9 or
to modify the judgment and convict the appellant only of illegal possession of firearm in its aggravated
form pursuant to People vs. Barros, 10 which this Court (Second Division) decided on 27 June 1995.
The informations read as follows:
CRIMINAL CASE NO. 8178
That on or about the 30th day of December, 1992, in the municipality of Dauis,
province of Bohol, Philippines, and within the jurisdiction of this Honorable Court,
the abovenamed accused, with intent to kill and without any justifiable motive, with
treachery and abuse of superior strength, the accused being then armed with a .38
cal. revolver, while the victim was unarmed, suddenly attacked the victim without
giving the latter the opportunity to defend himself, and with evident premeditation,
the accused having harbored a grudge against the victim a week prior to the incident
of murder, did then and there willfully, unlawfully and feloniously attack, assault
and shoot Diosdado Iroy y Nesnea with the use of the said firearm, hitting the latter
on his head and causing serious injuries which resulted to his death; to the damage
and prejudice of the heirs of the deceased.
Acts committed contrary to the provision of Art. 248 of the Revised Penal Code,
with aggravating circumstance of nighttime being purposely sought for or taken
advantage of by the accused to facilitate the commission of the crime. 11
CRIMINAL CASE NO. 8179
That on or about the 30th day of December, 1992, in the municipality of Dauis,
province of Bohol, Philippines, and within the jurisdiction of this Honorable Court,
the abovenamed accused, did then and there willfully, unlawfully and feloniously
keep, carry and have in his possession, custody and control a firearm (hand gun)
with ammunition, without first obtaining the necessary permit or license to possess
the said firearm from competent authorities which firearm was carried by the said
accused outside of his residence and was used by him in committing the crime of
Murder with Diosdado Iroy y Nesnea as the victim; to the damage and prejudice of
the Republic of the Philippines.
Acts committed contrary to the provisions of PD No. 1866. 12
Having arisen from the same incident, the cases were consolidated, and joint hearings were had. The
witnesses presented by the prosecution were SPO4 Felipe Nigparanon (Acting Chief of Police of Dauis,
Bohol), SPO Gondalino Inte, Dr. Gregg Julius Sodusta, Rosita Iroy, and Teodula Matalinis. The defense
presented as witnesses Alfred Aranzado, Edwin Nistal, Julius Bonao, Saturnino Maglupay, and the
appellant himself.
The evidence for the prosecution is summarized by the Office of the Solicitor General in the Brief for the
Appellee as follows:
On 25 December 1992, a benefit dance was held at the Basketball Court of
Barangay Tinago, Dauis, Bohol. On this occasion, a fist fight occurred between
Diosdado Iroy and appellant Daniel Quijada as the latter was constantly annoying
and pestering the former's sister Rosita Iroy (TSN, Crim. Cases 8178 & 1879, June
8, 1993, pp. 32-35; August 5, 1993, pp. 14-15).
In the evening of 30 December 1992, another benefit dance/disco was held in the
same place. This benefit dance was attended by Rosita Iroy, Ariel Dano, Teodora
Badayos, Ado Aranzado, Largo Iroy and Diosdado Iroy.
While Rosita Iroy and others were enjoying themselves inside the dancing area,
Diosdado Iroy, Eugene Nesnea and Largo Iroy, who were then sitting at the plaza
(the area where they positioned themselves was duly lighted and was approximately
four mete's from the dancing hall), decided to just watch the activities in the dance
hall directly from the plaza.
After dancing, Rosita Iroy decided to leave and went outside the gate of the dance
area. Subsequently, or around 11:30 of the same night, while facing the direction of
27
 Diosdado Iroy, Rosita Iroy saw appellant surreptitiously approach her brother
Diosdado Iroy from behind. Suddenly, appellant fired his revolver at Diosdado Iroy,
hitting the latter at the back portion of the head. This caused Rosita Iroy to
spontaneously shout that appellant shot her brother; while appellant, after shooting
Diosdado Iroy, ran towards the cornfield.
Diosdado Iroy was immediately rushed by Elmer Nigparanon and Largo Iroy to the
hospital but the injury sustained was fatal. In the meantime, Rosita Iroy went home
and relayed to her parents the unfortunate incident (TSN, Crim. Case Nos. 8178 &
8179, June 8, 1993, pp. 9-22, inclusive of the preceding paragraphs).
At around midnight, the incident was reported to then Acting chief of Police Felipe
Nigparanon by Mrs. Alejandra Iroy and her daughter Teodula Matalinis. The police
officer made entries in the police blotter regarding the shooting and correspondingly,
ordered his men to pick up the appellant. But they were unable to locate appellant on
that occasion (TSN, Crim Case Nos. 8178 & 8179, June 9, 1993, pp. 2-6).
In the afternoon of 31 December 1992, appellant, together with his father Teogenes
Quijada went to the police station at Dauis, Bohol. There and then, appellant was
pinpointed by Elenito Nistal and Rosita Iroy as the person who shot Diosdado Iroy.
These facts were entered in the police blotter as Entry No. 1151 (TSN, Crim Case
Nos. 8178 & 8179, ibid. p. 14, June 14, 1993, pp. 4-6).13
The slug was embedded at the midbrain. 14 Diosdado Iroy died of
Cardiorespiratory arrest, secondary to tonsillar herniation, secondary to massive
intracranial hemorrhage, secondary to gunshot wound, 1 cm. left occipital areas,
transecting cerebellum up to midbrain. 15
The firearm used by the appellant in shooting Diosdado Iroy was not licensed. Per certifications issued on
26 April 1993, the appellant was not a duly licensed firearm holder as verified from a consolidated list of
licensed firearm holders in the province 16 and was not authorized to carry a firearm outside his
residence. 17
The appellant interposed the defense of alibi, which the trial court rejected because he was positively
identified by prosecution witness Rosita Iroy. It summarized his testimony in this wise:
Daniel Quijada y Circulado, the accused in the instant cases, declared that in the
afternoon of December 30, 1992 he was in their house. At 6:00 o'clock in the
afternoon he went to Tagbilaran City together with Julius Bonao in a tricycle No.
250 to solicit passengers. They transported passengers until 10:30 o'clock in the
evening. They then proceeded to the Tagbilaran wharf waiting for the passenger boat
Trans Asia Taiwan. Before the arrival of Trans Asia Taiwan they had a talk with
Saturnino Maglopay. They were able to pick up two passengers for Graham Avenue
near La Roca Hotel. They then returned to the Tagbilaran wharf for the arrival of
MV Cebu City that docked at 12:10 past midnight. They had a talk with Saturnino
Maglopay who was waiting for his auntie scheduled to arrive abroad MV Cebu City.
They were not able to pick up passengers which, as a consequence, they went home.
They had on their way home passengers for the Agors Public Market. They arrived
at the house of Julian Bonao at Bil-isan, Pangalao, Bohol at 3:00 o'clock in the
morning of December 31, 1992 where he passed the night. He went home to
Mariveles, Dauis, Bohol at 9:00 o'clock in the morning.18
The trial court gave full faith and credit to the version of the prosecution and found the appellant guilty
beyond reasonable doubt of the crimes charged and sentenced him accordingly. It appreciated the presence
of the qualifying circumstance of treachery considering that the appellant shot the victim at the back of the
head while the latter was watching the dance. The dispositive portion of the decision dated 30 September
1993 reads as follows:
PREMISES CONSIDERED, in Criminal Case No. 8178, the court finds the accused
Daniel Quijada guilty of the crime of murder punished under Article 248 of the
Revised Penal Code and hereby sentences him to suffer an imprisonment
of Reclusion Perpetua, with the accessories of the law and to pay the cost.
In Criminal Case No. 8179, the Court finds the accused Daniel Quijada guilty of the
crime of Qualified Illegal Possession of Firearm and Ammunition punished under
Sec. 1 of RA No. 1866 as amended, and hereby sentences him to suffer an
indeterminate sentence from Seventeen (17) years Four (4) months and One (1) day,
as minimum, to Twenty (20) years and One (1) day, as maximum, with the
accessories of the law and to pay the cost.
The slug or bullet which was extracted from the brain of the back portion of the
head of the victim Diosdado Iroy is hereby ordered forfeited in favor of the
government.
It appearing that the accused Daniel Quijada has undergone preventive
imprisonment he is entitled to the full time he has undergone preventive
imprisonment to be deducted from the term of sentence if he has executed a waiver
otherwise he will only be entitled to 4/5 of the time he has undergone preventive
imprisonment to be deducted from his term of sentence if he has not executed a
waiver. 19
On 29 October 1993, after discovering that it had inadvertently omitted in the decision an award of civil
indemnity and other damages in Criminal Case No. 8178, the trial court issued an order directing the
appellant to pay the parents of the victim the amount of P50,000.00 as indemnity for the death of their son
and P10,000.00 for funeral expenses. 20 The order was to form an integral part of the decision.
The decision was promulgated on 29 October 1993.21
The appellant forthwith interposed the present appeal, and in his Brief, he contends that the trial court
erred
I
. . . IN CONVICTING ACCUSED-APPELLANT AND GIVING CREDENCE TO
THE TESTIMONY OF PROSECUTION WITNESSES ROSITA IROY AND
FELIPE NIGPARANON.
II
. . . IN NOT CONSIDERING THE TESTIMONIES OF DEFENSE WITNESSES
EDWIN NISTAL AND ALFRED ARANSADO, AND IN DISREGARDING THE
PICTORIAL EXHIBITS OF THE ACCUSED-APPELLANT PARTICULARLY
THE RELATIVE POSITIONS OF DIOSDADO IROY, ROSITA IROY, EDWIN
NISTAL, AND ALFRED ARANZADO.
28
 III A Yes I was standing.

. . . IN FAILING TO CONSIDER THAT PROSECUTION WITNESSES ROSITA Q And where did you face, you were facing Diosdado Iroy or
IROY AND SPO4 FELIPE NIGPARANON HAD MOTIVES IN FALSELY the dancing area?
TESTIFYING AGAINST ACCUSED-APPELLANT. 22
A I was intending to go near my brother. I was approaching
The appellant then submits that the issue in this case boils down to the identity of the killer of Diosdado and getting near going to my brother Diosdado Iroy and while
Iroy. To support his stand that the killer was not identified, he attacks the credibility of prosecution in the process I saw Daniel Quijada shot my brother Diosdado
witnesses Rosita Iroy and SPO4 Felipe Nigparanon. He claims that the former had a motive "to put him in Iroy. 23
a bad light" and calls our attention to her direct testimony that her brother Diosdado, the victim, boxed him
on the night of 25 December 1992 because he allegedly "bothered her." He further asserts that Rosita could
xxx xxx xxx
not have seen the person who shot Diosdado considering their respective positions, particularly Rosita
who, according to defense witnesses Nistal and Aranzado, was still inside the dancing area and ran towards
the crime scene only after Diosdado was shot. And, the appellant considers it as suppression of evidence Q And in your estimate, how far was your brother Diosdado
when the prosecution did not present as witnesses Diosdado's companions who were allegedly seated with Iroy while he was sitting at the plaza to the dancing place?
Diosdado when he was shot.
A More or less four (4) meters distance.
As to SPO4 Nigparanon, the appellant intimates improper motives in that the said witnesses is a neighbor
of the Iroys, and when he testified, a case for arbitrary detention had already been filed against him by the
COURT:
appellant. The appellant further claims of alleged omissions and unexplained entries in the police blotter.

From the dancing hall?

Finally, the appellant wants us to favorably consider his defense of alibi which, according to him, gained
strength because of the lack of evidence on the identity of the killer. Furthermore, he stresses that his
conduct in voluntarily going to the police station after having been informed that he, among many others, A Yes, your honor.
was summoned by the police is hardly the actuation of the perpetrator of the killing of Diosdado Iroy —
specially so if Rosita Iroy's claim is to be believed that moments after the shooting she shouted that Daniel
Quijada shot Diosdado Iroy. Q And in your observation, was the place where Diosdado
Iroy was sitting lighted or illuminated?

In its Appellee's Brief, the People refutes every argument raised by the appellant and recommends that we
affirm in toto the challenged decision. A Yes, sir.

After a careful scrutiny of the records and evaluation of the evidence adduced by the parties, we find this Q What kind of light illuminated the place?
appeal to be absolutely without merit.
A I do not know what kind of light but it was lighted.
The imputation of ill-motive on the part of Rosita Iroy and the basis therefor hardly persuade. The
appellant was the one who was boxed by and lost to Diosdado Iroy in their fight on the night of 25 Q Was it an electric light?
December 1992. It is then logical and consistent with human experience that it would be the appellant who
would have forthwith entertained a grudge, if not hatred, against Diosdado. No convicting evidence was
shown that Rosita had any reason to falsely implicate the appellant in the death of her brother Diosdado. A It is electric light coming from a bulb.

The claim that Rosita could not have seen who shot her brother Diosdado because, as testified to by
defense witnesses Nistal and Aranzado, she was inside the dancing hall and rushed to her brother only after
the latter was shot is equally baseless. The following testimony of Rosita shows beyond cavil that she saw
the assailant:
Q You said that you were initially dancing inside the dancing
place and you went out, about what time did you get out?
A 11:00 o'clock.
Q Where is that electric bulb that illuminated the place
located?
A It was placed at the gate of the dancing place and the light
from the house.
Q You said gate of the dancing place, you mean the dancing
place was enclosed at that time and there was a gate, an
opening?

Q And you were standing about two (2) meters from A Yes, sir.
Diosdado Iroy until 11:30 when the incident happened?
29
 Q What material was used to enclose the dancing place?
A Bamboo.
Q And how far was the bulb which was placed near the
entrance of the dancing place to the place where Diosdado
Iroy was sitting?
A Five (5) meters.
Q You mentioned also that there was a light coming from the
house, now whose house was that?
A The house of spouses Fe and Berto, I do not know the
family name.
Q Was the light coming from the house of spouses Fe and
Berto an electric light?
A Yes, sir.
Q And in your estimate, how far was the source of light of the
house of Fe and Berto to the place where Diosdado Iroy was
sitting?
A About six (6) meters distance.24
xxx xxx xxx
Q What was the color of the electric bulb in the gate of the
dancing place?
A The white bulb.25
The trial court disbelieved the testimony of Nistal and Aranzado. It explicitly declared:
The factual findings of the Court in the instant case is anchored principally in ". . .
observing the attitude and deportment of witnesses while listening to them speak"
(People vs. Magaluna, 205, SCRA 266).
thereby indicating that on the basis of the witnesses' deportment and manner of testifying, the
declarations of Nistal and Aranzado failed to convince the trial court that they were telling the
truth. Settled is the rule that the factual findings of the trial court, especially on the credibility
of witnesses, are accorded great weight and respect. For, the trial court has the advantage of
observing the witnesses through the different indicators of truthfulness or falsehood, such as the
angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous
mutter of a reluctant answer or the forthright tone of a ready reply; 26 or the furtive glance, the
blush of conscious shame, the hesitation, the sincere of the flippant or sneering tone, the heat,
the calmness, the yarn, the sigh, the candor or lack of it, the scant or full realization of the
solemnity of an oath, the carriage and mien. 27 The appellant has miserably failed to convince
us that we must depart from this rule.
Neither are we persuaded by the claimed suppression of evidence occasioned by the non-presentation as
prosecution witnesses any of the companions of Diosdado who were seated with him when he was shot. In
the first place, the said companions could not have seen from their back the person who suddenly shot
Diosdado. In the second place, the testimony of the companions would, at the most, only corroborate that
of Rosita Iroy. Besides, there is no suggestion at all that the said companions were not available to the
appellant. It is settled that the presumption in Section 3 (e), Rule 131 of the Rules of Court that evidence
willfully suppressed would be adverse if produced does not apply when the testimony of the witness is
merely corroborative or where the witness is available to the accused. 28
The alleged improper motive on the part of SPO4 Nigparanon simply because he is a neighbor of the Iroy's
remains purely speculative, as no evidence was offered to establish that such a relationship affected SPO4
Nigparanon's objectivity. As a police officer, he enjoyed in his favor the presumption of regularity in the
performance of his official duty. 29 As to the alleged omissions and unexplained entries in the police
blotter, the same were sufficiently clarified by SPO4 Nigparanon.
The defense of alibi interposed by the appellant deserves scant consideration. He was positively identified
by a credible witness. It is a fundamental judicial dictum that the defense of alibi cannot prevail over the
positive identification of the accused. 30 Besides, for that defense to prosper it is not enough to prove that
the accused was somewhere else when the crime was committed; he must also demonstrate that it was
physically impossible for him to have been at the scene of the crime at the time of its commission. 31 As
testified to by defense witness Julian Bonao, the Tagbilaran wharf, where the appellant said he was, is only
about eight to nine kilometers away from the crime scene and it would take only about thirty minutes to
traverse the distance with the use of a tricycle. 32 It was, therefore, not physically impossible for the
appellant to have been at the scene of the crime at the time of its commission.
Finally, the appellant asserts that if he were the killer of Diosdado Iroy, he would not have voluntarily
proceeded to the police station. This argument is plain sophistry. The law does not find unusual the
voluntary surrender of offenders; it even considers such act as a mitigating circumstance. 33 Moreover, non-
flight is not conclusive proof of innocence.34
The evidence for the prosecution further established with moral certainty that the appellant had no license
to possess or carry a firearm. The firearm then that he used in shooting Diosdado Iroy was unlicensed. He,
therefore, committed the crime of aggravated illegal possession of firearm under the second paragraph of
Section 1 of P.D. No. 1866, which reads:
Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of
Firearms, Ammunition or Instruments Used or Intended to be Used in the
Manufacture of Firearms or Ammunition — The penalty of reclusion temporal in its
maximum period to reclusion perpetua shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose or possess any firearm, part of
firearm, ammunition or machinery, tool or instrument used or intended to be used in
the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the
penalty of death shall be imposed.
In light of the doctrine enunciated in People vs. Tac-an, 35 and reiterated in People vs. Tiozon, 36 People
vs. Caling, 37 People vs. Jumamoy, 38 People vs. Deunida, 39 People vs. Tiongco, 40 People
vs. Fernandez, 41 and People vs. Somooc, 42 that one who kills another with the use of an unlicensed firearm
commits two separate offenses of (1) either homicide or murder under the Revised Penal Code, and (2)
30
aggravated illegal possession of firearm under the second paragraph of Section 1 of P.D. No. 1866, we
sustain the decision of the trial court finding the appellant guilty of two separate offenses of murder in
Criminal Case No. 8178 and of aggravated illegal possession of firearm in Criminal Case No. 8179.
Although Tac-an and Tiozon relate more to the issue of whether there is a violation of the constitutional
proscription against double jeopardy if an accused is prosecuted for homicide or murder and for
aggravated illegal possession of firearm, they at the same time laid down the rule that these are separate
offenses, with the first punished under the Revised Penal Code and the second under a special law; hence,
the constitutional bar against double jeopardy will not apply. We observed in Tac-an:
It is elementary that the constitutional right against double jeopardy protects one
against a second or later prosecution for the same offense, and that when the
subsequent information charges another and different offense, although arising from
the same act or set of acts, there is no prohibited double jeopardy. In the case at bar,
it appears to us quite clear that the offense charged in Criminal Case No. 4007 is that
of unlawful possession of an unlicensed firearm penalized under a special statute,
while the offense charged in Criminal Case No. 4012 was that of murder punished
under the Revised Penal Code. It would appear self-evident that these two (2)
offenses in themselves are quite different one from the other, such that in principle,
the subsequent filing of Criminal Case No. 4012 is not to be regarded as having
placed appellant in a prohibited second jeopardy.
And we stressed that the use of the unlicensed firearm cannot serve to increase the penalty for
homicide or murder; however, the killing of a person with the use of an unlicensed firearm, by
express provision of P.D. No. 1866, shall increase the penalty for illegal possession of firearm.
In Tiozon, we stated:
It may be loosely said that homicide or murder qualifies the offense penalized in
said Section 1 because it is a circumstance which increases the penalty. It does not,
however, follow that the homicide or murder is absorbed in the offense; otherwise,
an anomalous absurdity results whereby a more serious crime defined and penalized
in the Revised Penal Code is absorbed by a statutory offense, which is just a malum
prohibitum. The rationale for the qualification, as implied from the exordium of the
decree, is to effectively deter violations of the laws on firearms and to stop the
"upsurge of crimes vitally affecting public order and safety due to the proliferation
of illegally possessed and manufactured firearms, . . . " In fine then, the killing of a
person with the use of an unlicensed firearm may give rise to separate prosecutions
for (a) violation of Section 1 of P.D. No. 1866 and (b) violation of either Article 248
(Murder) or Article 249 (Homicide) of the Revised Penal Code. The accused cannot
plead one as a bar to the other; or, stated otherwise, the rule against double jeopardy
cannot be invoked because the first is punished by a special law while the second,
homicide or murder, is punished by the Revised Penal Code.
In People vs. Doriguez [24 SCRA 163, 171], We held:
It is a cardinal rule that the protection against double jeopardy
may be invoked only for the same offense or identical
offenses. A simple act may offend against two (or more
entirely distinct and unrelated provisions of law, and if one
provision requires proof of an additional act or element which
the other does not, an acquittal or conviction or a dismissal of
the information under one does not bar prosecution under the
other. Phrased elsewise, where two different laws (or articles
of the same code) defines two crimes, prior jeopardy as to one
of them is not obstacle to a prosecution of the other, although
both offenses arise from the same fact, if each crime involves
some important act which is not an essential element of the
other.
In People vs. Bacolod, [89 Phil. 621], from the act of firing a shot from a sub-
machine gun which caused public panic among the people present and physical
injuries to one, informations of physical injuries through reckless imprudence and
for serious public disturbance were filed. Accused pleaded guilty and was convicted
in the first and he sought to dismiss the second on the ground of double jeopardy.
We ruled:
The protection against double jeopardy is only for the same
offense. A simple act may be an offense against two different
provisions of law and if one provision requires proof of an
additional fact which the other does not, an acquittal or
conviction under one does not bar prosecution under the
other.
Since the informations were for separate offense[s] — the first against a person and
the second against public peace and order — one cannot be pleaded as a bar to the
other under the rule or double jeopardy.
In Caling, we explicitly opined that a person charged with aggravated illegal possession of firearm under
the second paragraph of Section 1 of P.D. No. 1866 can also be separately charged with and convicted of
homicide or murder under the Revised Penal Code and punished accordingly. Thus:
It seems that the Court a quo did indeed err in believing that there is such a thing as
"the special complex crime of Illegal Possession of Unlicensed Firearm Used in
Homicide as provided for and defined under the 2nd paragraph of Sec. 1 of P.D.
1866 as amended," and declaring Caling guilty thereof. The legal provision invoked,
"Sec. 1 of P.D. 1866, as amended," reads as follows:
Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition
or Possession of Firearms [or] Ammunition or Instruments
Used or Intended to be Used in the Manufacture of Firearms
or Ammunition. — The penalty of reclusion temporal in its
maximum period to reclusion perpetua shall be imposed upon
any person who shall unlawfully manufacture, deal in,
acquire, dispose, or possess any firearm, part of firearm,
ammunition or machinery, tool or instrument used or intended
to be used in the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an
unlicensed firearm, the penalty of death shall be imposed.
What is penalized in the first paragraph, insofar as material to the present case is the
sole, simple act of a person who shall, among others, "unlawfully possess any
firearm . . (or) ammunition . . ." Obviously, possession of any firearm is unlawful if
the necessary permit and/or license therefor is not first obtained. To that act is
attached the penalty of reclusion temporal, maximum, to reclusion perpetua. Now, if
31
 "with the use of (such) an unlicensed firearm, a "homicide or murder is committed," justify the withdrawal, is no longer controlling in view of our decisions in People
the crime is aggravated and is more heavily punished, with the capital punishment. vs. Tac-an, People vs. Tiozon, and People vs. Caling.

The gravamen of the offense in its simplest form is, basically, the fact of possession In Somooc, we once more ruled:
of a firearm without license. The crime may be denominated simple illegal
possession, to distinguish it from its aggravated form. It is aggravated if the
The offense charged by the Information is clear enough from the terms of that
unlicensed firearm is used in the commission of a homicide or murder under the
document, although both the Information and the decision of the trial court used the
Revised Penal Code. But the homicide or murder is not absorbed in the crime of
term "Illegal Possession of Firearm with Homicide," a phrase which has sometimes
possession of an unlicensed firearm; neither is the latter absorbed in the
been supposed to connote a "complex crime" as used in the Revised Penal Code.
former. There are two distinct crimes that are here spoken of . One is unlawful
Such nomenclature is, however, as we have ruled in People vs. Caling, a misnomer
possession of a firearm, which may be either simple or aggravated, defined and
since there is no complex crime of illegal possession of firearm with homicide. The
punished respectively by the first and second paragraphs of Section 1 of PD
gravamen of the offense penalized in P.D. No. 1866 is the fact of possession of a
1866. The other is homicide or murder, committed with the use of an unlicensed
firearm without a license or authority for such possession. This offense is aggravated
firearm. The mere possession of a firearm without legal authority consummates the
and the imposable penalty upgraded if the unlicensed firearm is shown to have been
crime under P.D. 1866, and the liability for illegal possession is made heavier by
used in the commission of homicide or murder, offenses penalized under the
the firearm's use in a killing. The killing, whether homicide or murder, is obviously
Revised Penal Code. The killing of a human being, whether characterized as
distinct from the act of possession, and is separately punished and defined under the
homicide or murder, is patently distinct from the act of possession of an unlicensed
Revised Penal Code. (emphasis supplied)
firearm and is separately punished under the provision of the Revised Penal Code.

In Jumamoy, we reiterated Caling and amplified the rationale on why an accused who kills another with an
The foregoing doctrine suffered a setback when in our decision of 27 June 1995 in People vs. Barros, 43 we
unlicensed firearm can be prosecuted and punished for the two separate offenses of violation of the second
set aside that portion of the appealed decision convicting the appellant of the offense of murder and
paragraph of Section 1 of P.D. No. 1866 and for homicide or murder under the Revised Penal Code. Thus:
affirmed that portion convicting him of illegal possession of firearm in its aggravated form. We therein
made the following statement:
Coming to the charge of illegal possession of firearms, Section 1 of P.D. No. 1866
penalizes, inter alia, the unlawful possession of firearms or ammunition
[A]ppellant may not in the premises be convicted of two separate offenses [of illegal
with reclusion temporal in its maximum period to reclusion perpetua. However,
possession of firearm in its aggravated form and of murder], but only that of illegal
under the second paragraph thereof, the penalty is increased to death if homicide or
possession of firearm in its aggravated form, in light of the legal principles and
murder is committed with the use of an unlicensed firearm. It may thus be loosely
propositions set forth in the separate opinion of Mr. Justice Florenz D. Regalado, to
said that homicide or murder qualifies the offense because both are circumstances
which the Members of the Division, the ponente included, subscribe.
which increase the penalty. It does not, however, follow that the homicide or murder
is absorbed in the offense. If these were to be so, an anomalous absurdity would
result whereby a more serious crime defined and penalized under the Revised Penal The pertinent portions of the separate opinion of Mr. Justice Florenz D. Regalado referred to therein read
Code will be absorbed by a statutory offense, one which is merely malum as follows:
prohibitum. Hence, the killing of a person with the use of an unlicensed firearm may
give rise to separate prosecutions for (a) the violation of Section 1 of P.D. No. 1866
This premise accordingly brings up the second query as to whether or not the crime
and (b) the violation of either Article 248 (Murder) or Article 249 (Homicide) of the
should properly be the aggravated illegal possession of an unlicensed firearm
Revised Penal Code. The accused cannot plead one to bar the other; stated
through the use of which a homicide or murder is committed. It is submitted that an
otherwise, the rule against double jeopardy cannot be invoked as the first is
accused so situated should be liable only for the graver offense of aggravated illegal
punished by a special law while the second — Murder or Homicide — is punished
possession of the firearm punished by death under the second paragraph of Section
by the Revised Penal Code. [citing People vs. Tiozon, 198 SCRA 368, 379 (1991);
1, Presidential Decree No. 1866, and it is on this point that the writer dissents from
People vs. Doriguez, 24 SCRA 163 (1968)]. Considering, however, that the
the holding which would impose a separate penalty for the homicide in addition to
imposition of the death penalty is prohibited by the Constitution, the proper
that for the illegal possession of the firearm used to commit the former.
imposable penalty would be the penalty next lower in degree, or reclusion perpetua.
(emphasis supplied)
If the possession of the unlicensed firearm is the only offense imputable to the
accused, the Court has correctly held that to be the simple possession punished
In Deunida, in discussing the propriety of the Government's action in withdrawing an information for
with reclusion temporal in its maximum period to reclusion perpetua in the first
murder and pursuing only the information for "Qualified Illegal Possession of Firearm," this Court
paragraph of Section 1. Where, complementarily, the unlicensed firearm is used to
categorically declared:
commit homicide or murder, then either of these felonies will convert the erstwhile
simple illegal possession into the graver offense of aggravated illegal possession. In
At the outset, it must be stressed that, contrary to the prosecution's legal position in other words, the homicide or murder constitutes the essential element for integrating
withdrawing the information for murder, the offense defined in the second paragraph into existence the capital offense of the aggravated form of illegal possession of a
of Section 1 of P.D. No. 1866 does not absorb the crime of homicide or murder firearm. Legally, therefore, it would be illogical and unjustifiable to use the very
under the Revised Penal Code and, therefore, does not bar the simultaneous or same offenses of homicide or murder as integral elements of and to create the said
subsequent prosecution of the latter crime. The 1982 decision in Lazaro vs. People, capital offense, and then treat the former all over again as independent offenses to be
involving the violation of P.D. No. 9, which the investigating prosecutor invokes to

32
separately punished further, with penalties immediately following the death penalty
to boot.
The situation contemplated in the second query is, from the punitive standpoint,
virtually of the nature of the so-called, "special complex crimes," which should
more appropriately be called composite crimes, punished in Article 294, Article 297
and Article 335. They are neither of the same legal basis as nor subject to the rules
on complex crimes in Article 48, since they do not consist of a single act giving rise
to two or more grave or less grave felonies nor do they involve an offense being a
necessary means to commit another. However, just like the regular complex crimes
and the present case of aggravated illegal possession of firearms, only a single
penalty is imposed for each of such composite crimes although composed of two or
more offenses.
On the other hand, even if two felonies would otherwise have been covered by the
conceptual definition of a complex crime under Article 48, but the Code imposes a
single definite penalty therefor it cannot also be punished as a complex crime, much
less as separate offense, but with only the single penalty prescribed by law. Thus,
even where a single act results in two less grave felonies of serious physical injuries
and serious slander by deed, the offense will not be punished as a delito
compuestounder Article 48 but as less serious physical injuries with ignominy under
the second paragraph of Article 265. The serious slander by deed is integrated into
and produces a graver offense, and the former is no longer separately punished.
What is, therefore, sought to be stressed by such alternative illustration, as well as
the discussion on complex and composite crimes, is that when an offense becomes a
component of another, the resultant crime being correspondingly punished as thus
aggravated by the integration of the other, the former is not to be further separately
punished as the majority would want to do with the homicide involved in the case at
bar.
With the foregoing answers to the second question, the third inquiry is more of a
question of classification for purposes of the other provisions of the Code. The
theory in Tac-an that the principal offense is the aggravated form of illegal
possession of firearm and the killing shall merely be included in the particulars or,
better still, as an element of the principal offense, may be conceded. After all, the
plurality of crimes here is actually source from the very provisions of Presidential
Decree No. 1866 which sought to "consolidate, codify and integrate" the "various
laws and presidential decrees to harmonize their provision" which "must be updated
and revised in order to more effectively deter violators" of said laws.
This would be akin to the legislative intendment underlaying the provisions of the
Anti-Carnapping Act of 1972, wherein the principal crime to be charged is still
carnapping, although the penalty therefore is increased when the owner, driver or
occupant of the carnapped vehicle is killed. The same situation, with escalating
punitive provisions when attended by a killing, are found in the Anti-Piracy and
Anti-Highway Robbery Law of 1974 and the Anti-Cattle Rustling Law of 1974,
wherein the principal crimes still are piracy, highway robbery and cattle rustling.
Also, in the matter of destructive arson, the principal offense when, inter alia, death
results as a consequences of the commission of any of the acts punished under said
article of the Code.
In the present case, the academic value of specifying whether it is a case of illegal
possession of firearm resulting in homicide or murder, or, conversely, homicide or
murder through the illegal possession and use of an unlicensed firearm, would lie in
the possible application of the provision on recidivism. Essentially, it would be in
the theoretical realm since, taken either way, the penalty for aggravated illegal
possession of a firearm is the single indivisible penalty of death, in which case the
provision on recidivism would not apply. If, however, the illegal possession is not
established but either homicide or murder is proved, then the matter of recidivism
may have some significance in the sense that, for purposes thereof, the accused was
convicted of a crime against persons and he becomes a recidivist upon conviction of
another crime under the same title of the Code.
Lastly, on the matter of the offense or offenses to be considered and the penalty to
be imposed when the unlawful killing and the illegal possession are charged in
separate informations, from what has been said the appropriate course of action
would be to consolidate the cases and render a joint decision thereon, imposing a
single penalty for aggravated illegal possession of firearm if such possession and the
unlawful taking of life shall have been proved, or for only the proven offense which
may be either simple illegal possession, homicide or murder per se. The same
procedural rule and substantive disposition should be adopted if one information for
each offense was drawn up and these informations were individually assigned to
different courts or branches of the same court.
Indeed, the practice of charging the offense of illegal possession separately from the
homicide or murder could be susceptible of abuse since it entails undue
concentration of prosecutorial powers and discretion. Prefatorily, the fact that the
killing was committed with a firearm will necessarily be known to the police or
prosecutorial agencies, the only probable problem being the determination and
obtention of evidence to show that the firearm is unlicensed.
Now, if a separate information for homicide or murder is filed without alleging
therein that the same was committed by means of an unlicensed firearm, the case
would not fall under Presidential Decree No. 1866. Even if the use of a firearm is
alleged therein, but without alleging the lack of a license therefor as where that fact
has not yet been verified, the mere use of a firearm by itself, even if proved in that
case, would not affect the accused either since it is not an aggravating or qualifying
circumstance.
Conversely, if the information is only for illegal possession, with the prosecution
intending to file thereafter the charge for homicide or murder but the same is
inexplicably delayed or is not consolidated with the information for illegal
possession, then any conviction that may result from the former would only be for
simple illegal possession. If, on the other hand, the separate and subsequent
prosecution for homicide or murder prospers, the objective of Presidential Decree
No. 1866 cannot be achieved since the penalty imposable in that second prosecution
will only be for the unlawful killing and further subject to such modifying
circumstances as may be proved.
In any event, the foregoing contingencies would run counter to the proposition that
the real offense committed by the accused, and for which sole offense he should be
punished, is the aggravated form of illegal possession of a firearm. Further, it is the
writer's position that the possible problems projected herein may be minimized or
obviated if both offenses involved are charged in only one information or that the
trial thereof, if separately charged, be invariably consolidated for joint decision.
Conjointly, this is the course necessarily indicated since only a single composite
crime is actually involved and it is palpable error to deal therewith and dispose
thereof by segregated parts in piecemeal fashion.
33
If we follow Barros, the conviction of the appellant for murder in Criminal Case No. 8178 must have to be
set aside. He should only suffer the penalty for the aggravated illegal possession of firearm in Criminal
Case No. 8179.
The Court en banc finds in this appeal an opportunity to reexamine the existing conflicting doctrines
applicable to prosecutions for murder or homicide and for aggravated illegal possession of firearm in
instance where an unlicensed firearm is used in the killing of a person. After a lengthy deliberation
thereon, the Court en banc arrived at the conclusion that the rule laid down in Tac-an, reiterated
in Tiozon, Caling, Jumamoy, Deunida, Tiongco, Fernandez, and Somooc is the better rule, for it applies the
laws concerned according to their letter and spirit, thereby steering this Court away from a dangerous
course which could have irretrievably led it to an inexcusable breach of the doctrine of separation of
powers through judicial legislation. That rule upholds and enhances the lawmaker's intent or purpose in
aggravating the crime of illegal possession of firearm when an unlicensed firearm is used in the
commission of murder or homicide. Contrary to the view of our esteemed brother, Mr. Justice Florenz D.
Regalado, in his Concurring and Dissenting Opinion in the case under consideration, Tac-an did not
enunciated an "unfortunate doctrine" or a "speciously camouflaged theory" which "constitutes an affront
on doctrinal concepts of penal law and assails even the ordinary notions of common sense."
If Tac-an did in fact enunciated such an "unfortunate doctrine," which this Court has reiterated in a
convincing number of cases and for a convincing number of years, so must the same verdict be made in
our decision in People vs. De Gracia, 44 which was promulgated on 6 July 1994. In the latter case, we held
that unlawful possession of an unlicensed firearm in furtherance of rebellion may give rise to separate
prosecution for a violation of Section 1 of P.D. No. 1866 and also for a violation of Articles 134 and 135 of
the Revised Penal Code on rebellion. A distinction between that situation and the case where an unlicensed
firearm is used in homicide or murder would have no basis at all. In De Gracia, this Court, speaking
through Mr. Justice Florenz D. Regalado, made the following authoritative pronouncements:
III. As earlier stated, it was stipulated and admitted by both parties that from
November 30, 1989 up to and until December 9, 1989, there was a rebellion. Ergo,
our next inquiry is whether or not appellant's possession of the firearms, explosives
and ammunition seized and recovered from him was for the purpose and in
furtherance of rebellion.
The trial court found accused guilty of illegal possession of firearms in furtherance
of rebellion pursuant to paragraph 2 of Article 135 of the Revised Penal Code which
states that "any person merely participating or executing the command of others in a
rebellion shall suffer the penalty of prision mayorin its minimum period." The court
below held that appellant De Gracia, who had been servicing the personal needs of
Col. Matillano (whose active armed opposition against the Government, particularly
at the Camelot Hotel, was well known), is guilty of the act of guarding the
explosives and "molotov" bombs for and in behalf of the latter. We accept this
finding of the lower court.
The above provision of the law was, however, erroneously and improperly used by
the court below as a basis in determining the degree of liability of appellant and the
penalty to be imposed on him. It must be made clear that appellant is charged with
the qualified offense of illegal possession of firearms in furtherance of rebellion
under Presidential Decree No. 1866 which, in law, is distinct from the crime of
rebellion punished under Article 134 and 135 of the Revised Penal Code. There are
two separate statutes penalizing different offenses with discrete penalties. The
Revised Penal Code treats rebellion as a crime apart from murder, homicide, arson,
or other offenses, such as illegal possession of firearms, that might conceivably be
committed in the course of a rebellion. Presidential Decree No. 1866 defines and
punishes, as a specific offense, the crime of illegal possession of firearms committed
in the course or as part of a rebellion.
Missing p. 26
conceptual changes over time," as the concurring and dissenting opinion charges.
The majority now reiterates the doctrine in Tac-an and the subsequent cases not because it has become
hostage to the "inertia of time [which] has always been the obstacle to the virtues of change," as the
concurring and dissenting opinion finds it to be, but rather because it honestly believes that Tac-an laid
down the correct doctrine. If P.D. No. 1866 as applied in Tac-an is an "affront on doctrinal concepts of
penal laws and assails even the ordinary notions of common sense," the blame must not be laid at the
doorsteps of this Court, but on the lawmaker's. All that the Court did in Tac-an was to apply the law, for
there was nothing in that case that warranted an interpretation or the application of the niceties of legal
hermeneutics. It did not forget that its duty is a merely to apply the law in such a way that shall not usurp
legislative powers by judicial legislation and that in the course of such application or construction it should
not make or supervise legislation, or under the guise of interpretation modify, revise, amend, distort,
remodel, or rewrite the law, or give the law a construction which is repugnant to its terms. 45
Murder and homicide are defined and penalized by the Revised Penal Code 46 as crimes against persons.
They are mala in se because malice or dolo is a necessary ingredient therefor. 4 7 On the other hand, the
offense of illegal possession of firearm is defined and punished by a special penal law, 48 P.D. No. 1866. It
is a malum prohibitum 49which the lawmaker, then President Ferdinand E. Marcos, in the exercise of his
martial law powers, so condemned not only because of its nature but also because of the larger policy
consideration of containing or reducing, if not eliminating, the upsurge of crimes vitally affecting public
order and safety due to the proliferation of illegally possessed and manufactured firearms, ammunition,
and explosives. If intent to commit the crime were required, enforcement of the decree and its policy or
purpose would be difficult to achieve. Hence, there is conceded wisdom in punishing illegal possession of
firearm without taking into account the criminal intent of the possessor. All that is needed is intent to
perpetrate the act prohibited by law, coupled, of course, by animus possidendi. However, it must be clearly
understood that this animus possidendi is without regard to any other criminal
or felonious intent which an accused may have harbored in possessing the firearm. 50
A long discourse then on the concepts of malum in se and malum prohibitum and their distinctions is an
exercise in futility.
We disagree for lack of basis the following statements of Mr. Justice Regalado in his Concurring and
Dissenting Opinion, to wit:
The second paragraph of the aforestated Section 1 expressly and unequivocally
provides for such illegal possession and resultant killing as a single integrated
offense which is punished as such. The majority not only created two offenses by
dividing a single offense into two but, worse, it resorted to the unprecedented and
invalid act of treating the original offense as a single integrated crime and then
creating another offense by using a component crime which is also an element of the
former.
It would already have been a clear case of judicial legislation if the illegal
possession with murder punished with a single penalty have been divided into two
separate offenses of illegal possession and murder with distinct penalties. It is
consequently a compounded infringement of legislative powers for this Court to
now, as it has done, treat that single offense as specifically described by the law and
impose reclusion perpetua therefor (since the death penalty for that offense is still
proscribed), but then proceed further by plucking out therefrom the crime of murder
in order to be able to impose the death sentence. For indeed, on this score, it is
beyond cavil that in the aggravated form of illegal possession, the consequential
murder (or homicide) is an integrated element or integral component since without
34
 the accompanying death, the crime would merely be simple illegal possession of a
firearm under the first paragraph of Section 1.
The second paragraph of Section 1 of P.D. No. 1866 does not warrant and support a conclusion that it
intended to treat "illegal possession and resultant killing" (emphasis supplied) "as a single and integrated
offense" of illegal possession with homicide or murder. It does not use the clause as a result or on the
occasion of to evince an intention to create a single integrated crime. By its unequivocal and explicit
language, which we quote to be clearly understood:
If homicide or murder is committed with the use of an unlicensed firearm, the
penalty of death shall be imposed. (emphasis supplied)
the crime of either homicide or murder is committed NOT AS A RESULT OR ON THE
OCCASION of the violation of Section 1, but WITH THE USE of an unlicensed firearm,
whose possession is penalized therein. There is a world of difference, which is too obvious,
between (a) the commission of homicide or murder as a result or on the occasion of the
violation of Section 1, and (b) the commission of homicide or murder with the use of an
unlicensed firearm. In the first, homicide or murder is not the original purpose or primary
objective of the offender, but a secondary event or circumstance either resulting from or
perpetrated on the occasion of the commission of that originally or primarily intended. In the
second, the killing, which requires a mens rea is the primary purpose, and to carry that out
effectively the offender uses an unlicensed firearm.
As to the question then of Mr. Justice Regalado of whether this Court should also apply the rule enunciated
here to P.D. No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974), P.D. No. 533 (Anti-Cattle
Rustling Law of 1974), and P.D. No. 534 (Defining Illegal Fishing and Prescribing Stiffer Penalties
Therefor), the answer is resoundingly in the negative. In those cases, the lawmaker clearly intended a
single integrated offense or a special complex offense because the death therein occurs as a result or on the
occasion of the commission of the offenses therein penalized or was not the primary purpose of the
offender, unlike in the second paragraph of Section 1 of P.D. No. 1866. Thus, (a) Section 3 of P.D. No. 532
provides:
Sec. 3. Penalties. — Any person who commits piracy or highway
robbery/brigandage as herein defined, shall, upon conviction by competent court be
punished by:
a. Piracy. — The penalty of reclusion temporal in its medium and maximum periods
shall be imposed. If physical injuries or other crimes are committed as a result or on
the occasion thereof, the penalty of reclusion perpetua shall be imposed. If
rape, murder or homicide is committed as a result or on the occasion of piracy, or
when the offenders abandoned the victims without means of saving themselves, or
when the seizure is accomplished by firing upon or boarding a vessel, the mandatory
penalty of death shall be imposed.
b. Highway Robbery/Brigandage. — The penalty of reclusion temporal in its
minimum period shall be imposed. If physical injuries or other crimes are
committed during or on the occasion of the commission of robbery or brigandage,
the penalty of reclusion temporal in its medium and maximum periods shall be
imposed. If kidnapping for ransom or extortion, or murder or homicide, or rape is
committed as a result or on the occasion thereof, the penalty of death shall be
imposed. (emphasis supplied)
(b) Section 8 of P.D. No. 533 reads in part as follows:
Sec. 8. Penal provisions. — Any person convicted of cattle rustling as herein
defined shall, irrespective of the value of the large cattle involved, be punished
by prision mayor in its maximum period to reclusion temporal in its medium period
if the offense is committed without violence against or intimidation of persons or
force upon things. If the offense is committed with violence against or intimidation
of persons or force upon things, the penalty of reclusion temporal in its maximum
period to reclusion perpetua shall be imposed. If a person is seriously injured
or killed as a result or on the occasion of the commission of cattle rustling, the
penalty of reclusion perpetua to death shall be imposed. (emphasis supplied)
and (c) Section 3 of P.D. No. 534 reads as follows:
Sec. 3. Penalties. — Violations of this Decree and the rules and regulations
mentioned in paragraph (f) of Section 1 hereof shall be punished as follows:
a. by imprisonment from 10 to 12 years, if explosives are used: Provided, that if the
explosion results(1) in physical injury to person, the penalty shall be imprisonment
from 12 to 20 years, or (2) in the loss of human life, then the penalty shall be
imprisonment from 20 years to life, or death;
b. by imprisonment from 8 to 10 years, if obnoxious or poisonous substances are
used: Provided, that if the use of such substances results (1) in physical injury to any
person, the penalty shall be imprisonment from 10 to 12 years, or (2) in the loss of
human life, then the penalty shall be imprisonment from 20 years to life, or death; . .
. (emphasis supplied)
The unequivocal intent of the second paragraph of Section 1 of P.D. No. 1866 is to respect and preserve
homicide or murder as a distinct offense penalized under the Revised Penal Code and to increase the
penalty for illegal possession of firearm where such a firearm is used in killing a person. Its clear language
yields no intention of the lawmaker to repeal or modify, pro tanto, Articles 248 and 249 of the Revised
Penal Code, in such a way that if an unlicensed firearm is used in the commission of homicide or murder,
either of these crimes, as the case may be, would only serve to aggravate the offense of illegal possession
of firearm and would not anymore be separately punished. Indeed, the words of the subject provision are
palpably clear to exclude any suggestion that either of the crimes of homicide and murder, as crimes mala
in se under the Revised Penal Code, is obliterated as such and reduced as a mere aggravating circumstance
in illegal possession of firearm whenever the unlicensed firearm is used in killing a person. The only
purpose of the provision is to increase the penalty prescribed in the first paragraph of Section 1
— reclusion temporal in its maximum period to reclusion perpetua — to death, seemingly because of the
accused's manifest arrogant defiance and contempt of the law in using an unlicensed weapon to kill
another, but never, at the same time, to absolve the accused from any criminal liability for the death of the
victim.
Neither is the second paragraph of Section 1 meant to punish homicide or murder with death if either crime
is committed with the use of an unlicensed firearm, i.e., to consider such use merely as a qualifying
circumstance and not as an offense. That could not have been the intention of the lawmaker because the
term "penalty" in the subject provision is obviously meant to be the penalty for illegal possession of
firearm and not the penalty for homicide or murder. We explicitly stated in Tac-an:
There is no law which renders the use of an unlicensed firearm as an aggravating
circumstance in homicide or murder. Under an information charging homicide or
murder, the fact that the death weapon was an unlicensed firearm cannot be used to
increase the penalty for the second offense of homicide or murder to death. . . . The
essential point is that the unlicensed character or condition of the instrument used in
destroying human life or committing some other crime, is not included in the
35
 inventory of aggravating circumstances set out in Article 14 of the Revised Penal
Code.
A law may, of course, be enacted making the use of an unlicensed firearm as a qualifying
circumstance. This would not be without precedent. By analogy, we can cite Section 17 of B.P.
Blg. 179, which amended the Dangerous Drugs Act of 1972 (R.A. No. 6425). The said section
provides that when an offender commits a crime under a state of addiction, such a state shall be
considered as a qualifying aggravating circumstance in the definition of the crime and the
application of the penalty under the Revised Penal Code.
In short, there is nothing in P.D. No. 1866 that manifests, even vaguely, a legislative intent to decriminalize
homicide or murder if either crime is committed with the use of an unlicensed firearm, or to convert the
offense of illegal possession of firearm as a qualifying circumstance if the firearm so illegally possessed is
used in the commission of homicide or murder. To charge the lawmaker with that intent is to impute an
absurdity that would defeat the clear intent to preserve the law on homicide and murder and impose a
higher penalty for illegal possession of firearm if such firearm is used in the commission of homicide or
murder.
Evidently, the majority did not, as charged in the concurring and dissenting opinion, create two offenses by
dividing a single offense into two. Neither did it resort to the "unprecedented and invalid act of treating the
original offense as a single integrated crime and then creating another offense by using a component crime
We are unable to agree to the proposition. For one, the issue of double jeopardy is not raised in this case.
which is also an element of the former." The majority has always maintained that the killing of a person
For another, the so-called "same-evidence" test is not a conclusive, much less exclusive, test in double
with the use of an illegally possessed firearm gives rise to two separate offenses of (a) homicide or murder
jeopardy cases of the first category under the Double Jeopardy Clause which is covered by Section 21,
under the Revised Penal Code, and (b) illegal possession of firearm in its aggravated form.
Article III of the Constitution and which reads as follows:
What then would be a clear case of judicial legislation is an interpretation of the second paragraph of
Section 1 of P.D. No. 1866 that would make it define and punish a single integrated offense and give to the
words WITH THE USE OF a similar meaning as the words AS A RESULT OR ON THE OCCASION OF,
a meaning which is neither born out by the letter of the law nor supported by its intent. Worth noting is the
rule in statutory construction that if a statute is clear, plain, and free from ambiguity, it must be given its
literal meaning and applied without attempted interpretation, 51 leaving the court no room for any extended
ratiocination or rationalization of the law. 52
Peregrinations into the field of penology such as on the concept of a single integrated crime or composite
crimes, or into the philosophical domain of integration of the essential elements of one crime to that of
another would then be unnecessary in light of the clear language and indubitable purpose and intent of the
second paragraph of Section 1 of P.D. No. 1866. The realm of penology, the determination of what should
be criminalized, the definition of crimes, and the prescription of penalties are the exclusive prerogatives of
the legislature. As its wisdom may dictate, the legislature may even create from a single act or transaction
various offenses for different purposes subject only to the limitations set forth by the Constitution. This
Court cannot dictate upon the legislature to respect the orthodox view concerning a single integrated crime
or composite crimes.
The only apparent obstacle to the imposition of cumulative penalties for various acts is the rule on double
jeopardy. This brings us to the proposition in the dissenting opinion of Mr. Justice Regalado that the
majority view offends the constitutional bar against double jeopardy under the "same-evidence" test
enunciated in People vs. Diaz. 53 He then concludes:
In the cases now before us, it is difficult to assume that the evidence for the murder
in the first charge of aggravated illegal possession of firearm with murder would be
different from the evidence to be adduced in the subsequent charge for murder
alone. In the second charge, the illegal possession is not in issue, except peripherally
and inconsequentially since it is not an element or modifying circumstance in the
second charge, hence the evidence therefor is immaterial. But, in both prosecutions,
the evidence on murder is essential, in the first charge because without it the crime
is only simple illegal possession, and, in the second charge, because murder is the
very subject of the prosecution. Assuming that all the other requirements under
Section 7, Rule 117 are present, can it be doubted that double jeopardy is necessarily
present and can be validly raised to bar the second prosecution for murder?
In fact, we can extrapolate the constitutional and reglementary objection to the cases
of the other composite crimes for which a single penalty is imposed, such as the
complex, compound and so-called special complex crimes. Verily, I cannot conceive
of how a person convicted of estafa through falsification under Article 48 can be
validly prosecuted anew for the same offense or either estafa or falsification; or how
the accused convicted of robbery with homicide under Article 294 can be legally
charged again with either of the same component crimes of robbery or homicide; or
how the convict who was found guilty of rape with homicide under Article 335 can
be duly haled before the court again to face charges of either the same rape or
homicide. Why, then, do we now sanction a second prosecution for murder in the
cases at bar since the very same offense was an indispensable component for the
other composite offense of illegal possession of firearm with murder? Why would
the objection of non bis in idim as a bar to a second jeopardy lie in the preceding
examples and not apply to the cases now before us?
No person shall be twice put in jeopardy of punishment for the same offense. If an
act is punished by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act.
Note that the first category speaks of the same offense. The second refers to the same act. This
was explicitly distinguished in Yap vs. Lutero, 54 from where People vs. Relova 55 quotes the
following:
Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first
sentence of clause 20, section 1, Article III of the Constitution, ordains that "no
person shall be twice put in jeopardy of punishment for the same offense."
(emphasis in the original) The second sentence of said clause provides that "if an act
is punishable by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act." Thus, the first sentence
prohibits double jeopardy of punishment for the same offense whereas, the second
contemplates double jeopardy of punishment for the same act. Under the first
sentence, one may be twice put in jeopardy of punishment of the same act, provided
that he is charged with different offenses, or the offense charged in one case is not
included in, or does not include, the crime charged in the other case. The second
sentence applies, even if the offenses charged are not the same, owing to the fact
that one constitutes a violation of an ordinance and the other a violation of a statute.
If the two charges are based on one and the same act, conviction or acquittal under
either the law or the ordinance shall bar a prosecution under the other. Incidentally,
such conviction or acquittal is not indispensable to sustain the plea of double
jeopardy of punishment for the same offense. So long as jeopardy has been attached
under one of the informations charging said offense, the defense may be availed of
in the other case involving the same offense, even if there has been neither
conviction nor acquittal in either case.
36
 Elsewise stated, where the offenses charged are penalized either by different sections of the
same statute or by different statutes, the important inquiry relates to the identity of offenses
charged. The constitutional protection against double jeopardy is available only where an
identity as shown to exist between the earlier and the subsequent offenses charged. 56 The
question of identity or lack of identity of offenses is addressed by examining the essential
elements of each of the two offenses charged, as such elements are set out in the respective
legislative definitions of the offenses involved. 57
illegal possession of firearm in its aggravated form in Criminal Case No. 8179 is AFFIRMED. The penalty
imposed in the first case, as amended by the Order of 29 October 1993, is sustained; however, the penalty
imposed in the second case is changed to Reclusion Perpetua from the indeterminate penalty ranging from
Seventeen (17) years, Four (4) months, and One (1) day, as minimum, to Twenty (20) years and One (1)
day, as maximum.
Costs de oficio.

If may be noted that to determine the "same offense" under the Double Jeopardy Clause of the Fifth
SO ORDERED.
Amendment of the Constitution of the United States of America which reads:

Padilla, Bellosillo, Melo, Francisco, Panganiban and Torres, Jr., JJ., concur.
[N]or shall any person be subject for the same offense to be twice put in jeopardy of
life or limb. . .

the rule applicable is the following: "where the same act or transaction constitutes a violation of
two distinct statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of an additional fact which the
other does not." 58

The Double Jeopardy Clause of the Constitution of the United States of America was brought to the
Philippines through the Philippine Bill of 1 July 1902, whose Section 5 provided, inter alia:

[N]o person for the same offense shall be twice put in jeopardy of punishment . . . .

This provision was carried over in identical words in Section 3 of the Jones Law of 29 August
1916. 59 Then under the 1935 Constitution, the Jones Law provision was recast with the
addition of a provision referring to the same act. Thus, paragraph 20, Section 1, Article III
thereof provided as follows:

No person shall be twice put in jeopardy of punishment for the same offense. If an
act is punished by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act.

This was adopted verbatim in Section 22, Article IV of the 1973 Constitution and in Section 21,
Article III of the present Constitution.

This additional-element test in Lutero and Relova and in Blockburger, Gore, and Missouri would safely
bring the second paragraph of Section 1 of P.D. No. 1866 out of the proscribed double jeopardy principle.
For undeniably, the elements of illegal possession of firearm in its aggravated form are different from the
elements of homicide or murder, let alone the fact that these crimes are defined and penalized under
different laws and the former is malum prohibitum, while both the latter are mala in se. Hence, the fear that
the majority's construction of the subject provision would violate the constitutional bar against double
jeopardy is unfounded.

The penalty which the trial court imposed in Criminal Case No. 8179 for illegal possession of firearm in its
aggravated form must, however, be modified. The penalty prescribed by P.D. No. 1866 is death. Since
Section 19(1), Article III of the Constitution prohibits the imposition of the death penalty, the penalty next
lower in degree, reclusion perpetua, must be imposed.

WHEREFORE, the instant appeal is DISMISSED, and the challenged decision of 30 September 1993 of
Branch 1 of the Regional Trial Court of Bohol finding accused-appellant DANIEL QUIJADA y
CIRCULADO guilty beyond reasonable doubt of the crime of murder in Criminal Case No. 8178 and of
37

G.R. No. 39519 November 21, 1991
PEOPLE OF THE PHILIPPINES, petitioner-appellee
vs.
DANIEL PINTO, JR. and NARCISO BUENAFLOR, JR., defendants-appellants.
FERNAN, C.J.:
As an aftermath of the mission of the Legazpi City Police Department to serve on Christmas day in 1970 a
search warrant on Francisco Bello who was allegedly training a private army, patrolmen Daniel Pinto, Jr.
and Narciso Buenaflor, Jr. were found guilty beyond reasonable doubt by the then Circuit Criminal Court
in said city, of killing not only Bello but also 9-year-old Richard Tiongson and Rosalio Andes and
seriously wounding Maria Theresa Tiongson. The dispositive portion of the decision of June 13,
1974. 1 reads:
WHEREFORE, the Court finds the accused Narciso Buenaflor, Jr. and Daniel Pinto, Jr.
GUILTY beyond reasonable doubt of crime of:
(a) MURDER in CCC-X-288-Albay, and hereby sentences each of them to suffer
imprisonment for the rest of their lives (Reclusion Perpetua); to indemnify the heir
of Rosalie Andes in the amount of Twenty-five Thousand (P25,000.00) Pesos,
jointly and severally; and to pay the costs;
(b) MURDER in CCC-X-289-Albay, and hereby sentences each of them to suffer
imprisonment for the rest of their lives (Reclusion Perpetua); to indemnify the heirs
of Francisco Bello in the amount of Twenty-five Thousand (P25,000.00) Pesos,
jointly and severally; and to pay the costs;
(c) MURDER in CCC-X-298-Legazpi City, and hereby sentences each of them to
suffer imprisonment for the rest of their lives (Reclusion Perpetua); to indemnify the
heirs of Richard Tiongson in the amount of Twenty-five Thousand (P25,000.00)
Pesos, jointly and severally; and to pay the costs;
(d) FRUSTRATED MURDER in CCC-X-299 Legazpi City, and hereby sentences
each of them to imprisonment of from Six (6) Years and One (1) Day of Prision
Mayor as Minimum, to Twelve (12) Years and One (1) Day of Reclusion
Temporal as Maximum; to indemnify the victim, Maria Theresa Tiongson, in the
amount of Eight Thousand (P8,000.00) Pesos, jointly and severally; and to pay the
costs.
In addition to the foregoing the accused are sentenced to suffer perpetual disqualification from
public office.
According to the prosecution, on December 25, 1970, the Legazpi City Police secured from the City Court
of Legazpi a warrant for the search of the house and premises of Francisco Bello in Mariawa, Legazpi City
on the ground that the police had probable cause to believe that Bello illegally possessed a garand rifle, a
thompson submachinegun and two automatic pistols. 2 The police had earlier undertaken a surveillance of
Bello on the basis of information it had received that he was conducting an "obstacle course" or training
men for combat since October, 1970. 3
Upon receipt of the search warrant, the Chief of Police, Dr. Solomon Adornado, 4
called his officers to a "confidential conference" at the
residence of Mayor Gregorio Imperial. Present at the said conference were the mayor, his secretary, and
the officers of the patrol division, secret service and the administration of the city police. The Chief of
Police was assisted by Major Alfredo Molo, head of the intelligence division of the city police, in briefing
the group on how to serve the search warrant and to arrest Bello as the latter had been identified as the one
who shot Salustiano Botin the night before. At the time of the briefing, no warrant of arrest had yet been
issued against Bello. 5
The policemen were divided into three teams and around five members of the Philippine Constabulary (PC) who were also present were assigned to the different teams. 6
Team 3
was placed under the charge of Sgt. Salvador de la Paz with a policeman named Luna and appellants
7
Buenaflor and Pinto as members. Wilfredo Romero was the PC member assigned to the team. Except for
Romero and Pinto who were each armed with a carbine, the policemen of Team 3 each carried a .38 caliber
pistol. 8
Loaded in four vehicles, the three teams proceeded from the residence of the Mayor to barrio Homapon arriving there at around seven o'clock in the evening. The four vehicles met at the
junction of Homapon and the road to Mariawa. They had decided to ride on the way to Mariawa when one of the jeeps bogged down because of the muddy road. Hence, the three teams
had to walk in single file on the right side of the road with the teams had to walk in single file on the right side of the road with the teams maintaining a distance o around ten meters
between them. 9
Suddenly, Romero noticed the members of his team running. He ran with them and then he heard someone shout, "Pondo!" (stop). The shout was followed by a shot and then a burst of
gunfire. The team had by then deployed to the right side of the road. When Romero checked the men by shouting the agreed password of "bayawas" for which the person challenged
answered "santol", 10
he found that Buenaflor was 5 meters in front of him "at the bank of the road", Pinto was two
meters to the right of Buenaflor, Sgt. de la Paz was two meters to his (Romero's) right, Luna who was
holding a walkie-talkie was to his left and another policeman was in front of Luna. 11 When Romero heard
the gunburst, he saw "flashes of fire" "just in front" of him or from the place where Buenaflor was. 12
The area where the team deployed was lower in elevation than the road but Romero heard the rumbling of a jeep going towards the direction of Homapon when he heard the burst of
gunfire and saw the flashes of fire from the direction of Buenaflor. 13
On the jeep which passed by the deployed policemen were Fr. Felix Cappellan, Mrs. Zenaida Stilianopolous Tiongson, her six children and the driver. They had just come from a
lechonada party in the hacienda in Mariawa of Mrs. Purificacion Napal Anduiza, the mother of Francisco Bello. Fr. Capellan had celebrated mass to commemorate the death anniversary
of Mrs. Anduiza's father. When Fr. Capellan decided to go back to his parish, the Anduiza's offered their jeep for his transportation. 14
Seated on the front seat of
the "McArthur type" jeep which had only a canvass top but no cover on the sides and back, 15 were the
driver, Mrs. Tiongson with a child on her lap and Fr. Capellan. 16 Richard Tiongson was seated on the steel
seat behind the driver while his sister Maria Theresa was beside him. 17 The three other children were also
seated at the back.
After crossing the creek on their way to Homapon and as the driver "changed to high gear with a
dual", 18 Mrs. Tiongson saw blinking lights some 300 yards ahead. 19 Fearing that there might be "people
with bad intentions" or hold-uppers, Fr. Capellan told the driver to go faster. 20 Then Fr. Capellan heard one
38
shot and after a few seconds and around 50 meters ahead, there was rapid firing with some of the bullets The following men mentioned below are hereby assigned at Homapon until their mission is accomplished,
hitting the jeep. 21 According to Mrs. Tiongson, the widow of Col. Angel Tiongson of the PC, the rapid effective as of today, December 26, 1970:
firing sounded "automatic". 22 The firing came from the left rear side of the jeep. 23
1 Sgt. Salvador de la Paz, In-charge
Before they were fired upon, Maria Theresa saw a man lying flat on his stomach while holding a gun on the left side of the road just ahead of the jeep. 24
Through the light
of the jeep, Maria Theresa noticed that the man was wearing a jacket and a hat and he was on the shoulder
2. Pfc. Carlos Barbin, member
of the road. 25 After passing the man, the rapid firing ensued. Richard said "ugh" and fell on the floor of the
jeep. Maria Theresa was about to hold Richard when she felt herself hit at the buttocks. Then they all
screamed. 26 3. Pat. Eduardo Arcinue, member

The jeep continued its fast uphill climb until it reached a level area and almost fell into a ditch were it not for a clump of banana plants. The jeep came to a full stop. Fr. Capellan saw
4. Pat. Juan Luna, member
three men with flashlights but he could not distinguish their faces as it was dark and their flashlights were focused on the ground. 27
Mrs. Tiongson saw a PC jeep
and some cars and, believing that one of the cars was that of the Mayor, she called Tia Citang, the mother
5. Pat. Daniel Pinto, member
of the mayor, at the same time identifying herself. 28 She must have managed to take Richard from the jeep
and was cuddling him on the ground near the left rear end of the jeep when she requested Fr. Capellan to
administer extreme unction on Richard. As Fr. Capellan had no holy oil, he gave the boy absolution. 29 6. Pat. Celedonio Abordo, member

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

but the Chief of Police did not heed her pleas. 30

(TSN, February 9, 1972, pp. 17-22). Report progress of mission any time of day through the radio system. For strict compliance.

A few minutes later, a jeep driven by Fernando Anduiza arrived. Mrs. Tiongson and her children boarded (Sgd.)
the jeep. At the intersection of the road to Legazpi City proper and the road to Mariawa, the area was
brightly lighted and armed men ordered them to put their hands up. They were told to alight from the jeep SOLOMON B. ADORNADO
to be searched but Mrs. Tiongson begged the lieutenant manning the area to let them pass so they could Chief of Police
bring her two children to the hospital. 31
Copy furnished: The Honorable City Mayor, The Patrol Command, LCPD, the OIC and file . 44
Richard and Maria Theresa were brought to the Sacred Heart Clinic in Legazpi City. Thirteen-year-old Maria Theresa was treated for a gunshot wound at the "right upper quadrant of the
right buttocks." 32
Her pelvis and abdomen were x-rayed. One of the x-ray plates 33 revealed an oval spot The mission was to keep peace and order in the specified place and to determine the whereabouts of Bello. 45
indicating a foreign body in Maria Theresa's pelvis. The attending physician decided not to extract the It was not necessary to specify the mission
foreign body as Maria Theresa was not a "very good surgical risk". 34 The hospital charged P282.90 for in the order itself because the Chief of Police "had a close understanding with the squad that went to
46
Theresa's hospitalization. 35 She was later brought by an army plane to the PC Station Hospital in Camp Homapon". For a "convenient tactical deployment," Sgt. De la Paz further divided Team 3 into three
Crame, Quezon City for further treatment and hospitalization 36 but the foreign body was never removed groups with patrolmen Buenaflor and Pinto composing Group II. 47
from her pelvic area.
At noontime of December 26, 1970, Francisco Bello, more popularly known as Paquito, arrived at the residence of Inocencia Malbas in sitio Ando, Talahib, Daraga, Albay. He was with
Inocencia's brother, Francisco Andes, Francisco's son Ananias, and Leoncio Mostoles. Rosalio, another son of Francisco, also arrived with the group. 48
Richard sustained a gunshot wound at the back about the level of the 5th lumbar vertebrae. The bullet Bello requested
travelled obliquely to the left kidney, the lesser sac, the liver and the right auricle. 37 Richard was operated Inocencia and her husband that he and his group be allowed to spend the night in Inocencia's house. 49
at the hospital but he died at 8:45 the following morning due to massive hemorrhage caused by the gunshot
wound. 38 When he was autopsied, a lead slug was found embedded in his heart. 39 His mother paid Inocencia woke up at around 5:00 o'clock in the morning of December 27, 1970. At the sala, on her way from her room to the kitchen, she saw Bello sleeping alone. From the kitchen,

P862.35 40 for his hospitalization and was charged P200 by the church. Mayor Imperial paid P500 to Inocencia went to the balcony through the sala. On her way back to the kitchen, she noticed that Bello, who was wearing a red shirt and an underwear, had awakened. Bello opened the

Funeraria Oro for Richard's burial. 41 window, spat out and went to the balcony. He reentered the sala and saying that it was cold, Bello put on his clothes and pants. He also wore his jacket. He went back to the balcony and
asked for water. Inocencia's husband gave Bello a glass of water. After gurgling, Bello placed the glass on the window sill and ask Inocencia's husband for a cup of coffee. 50

Meanwhile, according to Chief of Police Adornado, after the shooting incident involving the Tiongsons, the police pursued their mission to serve the search warrant on Bello. When they

reached Bello's residence in Mariawa, they were met by a "volley of fire." Suddenly, the house was lighted and a certain Escober met him. Although Bello and his parents, Mr. and Mrs. Inocencia's husband was about to offer Bello a cup of coffee when she heard a successive burst of gunfire. Bello, who was the balcony facing the copra kiln ("agonan") with his back
Anduiza, were not around, the police searched the area and found a Japanese Springfield rifle, ammunition of a garand rifle, ammunition of a carbine, live ammunition for a .38 caliber towards the pili tree, gradually fell to the floor with his hands above his head. Then there was another burst of gunfire. From the kitchen, Inocencia rushed to the door from where she saw
pistol and 380 bullets for an automatic pistol. 42
Thereafter, the Chief of Police declared the search terminated and the entire a man holding a long firearm, whom she later identified as Pinto, near the pili tree which was around eight meters from where Bello was, and another man, also holding a gun, crouching

searching party left for headquarters. 43 The following day, he issued Special Order No. 24 which states: near the stairs. 51

December 26, 1970 Inocencia, with her two-year-old child in her arms, 52
was about to rush to Bello when her husband pulled her. Just then a man,
whom Inocencia identified as Buenaflor, came up the house, pointed a gun at Inocencia and her husband
To All Concerned: and told them to lay flat on the floor. The man asked them where the gun was. Inocencia told him that there
was no gun in the house but then, when she looked around, she saw a long firearm with its muzzle pointed

39

upward leaning against the wall near the door around two meters from where Bello laid flat on his back.
Bello himself had a gun but it was in its holster tucked on his waist. 53 It was Buenaflor who took both the
long firearm and the gun in Bello's holster. 54
When Francisco Andes went up the house, he told Inocencia that Rosalio was dead. 55
Inocencia went near the pili tree where Rosalio's body
was, knelt down and asked the man with a long firearm why he killed Rosalio. The man answered that
Rosalio fought back. However, Inocencia did not notice any weapon near Rosalio's body. 56
Bello's hands and feet were tied together and a bamboo pole was inserted between them so that two men, one of them being Francisco Andes, could carry the cadaver. 57
Bello
58
died because of "shock secondary to massive hemorrhage due to multiple gunshot wounds". A former
pilot and 28 years old at the time of his death, Bello sustained a gunshot wound at the left temple, an inch
above the highest point of the pinna of the left ear. The bullet which entered his head through the
squamous temporal bone travelled towards the occipital region down to the floor of the left middle cranial
fosa until it reached the base of the tongue.
Bello had three gunshot wounds on his chest. One bullet entered the superior part of the right scapular area
about the level of the third thoracic vertebrae. The bullet travelled to the right inna in a slightly upward
direction making its exit at the lateral part of the right supraclavicular fossa above the clavicle. The second
gunshot wound was at the left side interscapular area. The bullet travelled upwards and to the right
fracturing the 7th rib, entered the lower lobe of the left lung, punctured the pulmonary conus, went through
the junction of the right auricular appendage and the right auricle, the anteromedial side of the
pericardium, grazed the medial surface of the middle lobe of the right lung and exited at the right side of
the chest. The third gunshot wound was below the right nipple. The bullet went to the chest cavity, the
lower lobe of the right lung, the dome of the diaphragm, the right lobe of the liver, the 8th thoracic
vertebrae and exited at the left of the midline at the inferior interscapular area. 59
While Bellos corpse was being autopsied, a slug fell from his jacket. A bullet jacket and lead fragments were found at the base of his skull and a slug was extracted from the floor of his
mouth. 60
Rosalio Andes, 23 years old, also died of shock due to multiple gunshot wounds. A bullet entered his right temporal area, macerated the brain, fractured both parietal bones and exited at
the left parietal bone. Another bullet entered the left scapular area below the level of the 6th rib, travelled to the dome of the left diaphragm, the left lobe of the liver, the pancreas, the
small intestines, and the perineum below the ramus of the right pubis. The slug was found at the gluteoperineal junction about 2 inches below the tip of the coccys and 2 1/2 inches above
the gluteal line. A third bullet entered the left knee and exited at the medial side of the leg. 61
The slugs and parts of bullets which were extracted from the bodies of the victims were turned over to the National Bureau of Investigation (NBI) on December 29, 1970 by Fiscal
Aquilino Bonto for safekeeping purposes. 62
The empty shells and slugs which both the PC and the Legazpi City police
found in Talahib were also turned over to the NBI 63 in the same manner that the four empty carbine
shells 64 found by the PC near the coconut tree a meter from the shoulder of the road to Mariawa were also
turned over to the NBI. 65 Also submitted to the NBI for ballistic examination were twelve Smith &
Wesson caliber .38 revolvers, two Smith & Wesson "paltik" caliber .22, four Tell caliber revolvers, one
Bosque automatic pistol caliber .380, four carbine Inland rifles caliber .30, three US Springfield rifles
caliber.30, one Thompson submachine gun caliber .45 and one Colt automatic pistol caliber.45. 66
Defendants Pinto and Buenaflor both denied having fired at the jeep bearing the Tiongson family. 67
Pinto, who admitted carrying a caliber .30
68
carbine during the incident, testified that the shooting occurred because the Tiongsons' jeep "was going
towards" them. 69
According to Pinto, when they reached Mariawa, it was he who fired one shot in the air. 70
After the search had been conducted in Bello's
premises, Team 3 was instrued by a "superior officer" "to remain and maintain peace and order in (the)
vicinity including Mariawa". 71 While he and Buenaflor were patrolling the area, at around midnight, they
"chanced upon a house" wherein Bello and his group were staying. They captured four of Bello's
bodyguards and tied them to a pili tree with the torn shirt of one of the captives. 72
At daybreak, Pinto saw Bello smoking at the porch. Buenaflor, who was behind him, called Bello. Then a single shot coming from the house rang out. It was answered by a burst of fire
which Pinto "presumed" came from Buenaflor. By reflex action, Pinto transferred from the pili tree to a nearby coconut tree. But before he reached the coconut tree, he saw a man with a
bolo in his hand running towards him. As the man was menacingly near him, Pinto shot him. 73
After a lull in the firing, he went up the house to look for Bello's other companions. He saw the body of Bello on the porch and "near" it was a garand which he took. He also got Bello's
short firearm "from a holster." He turned over both the garand and the short firearm to Buenaflor. One of the captured persons kicked Bello's body saying that if not for Bello, his son
would not have been killed. Thereafter, the two dead persons were carried by the captured bodyguards to Mariawa. 74
In Mariawa, Pinto contacted (through the radio) police outpost No. 5 in Banquerohan and two jeeps arrived. When they reached the junction in Homapon, Major Molo, who was with
Fiscal Benito Se, told Pinto to go back with him to Talahib. Although Pinto warned Major Molo that it would be dangerous to go back because one of Bello's men had escaped, they
nevertheless proceeded to Talahib. With three other policemen, they arrived there between eight and nine in the morning where they were instructed to "look for evidence specifically . . .
for a thompson." He found in the porch two shells and the others found a hat and a flashlight. Thereafter, they returned to Mariawa and later, to Legazpi City proper. 75
On cross-examination, Pinto stated that he did not know that they found Bello in an area which was beyond the jurisdiction of Legazpi City. He admitted that while they were instructed
patrol the area, they were also told to effect the arrest of Bello even if no complaint had been lodged against him. 76
According to Pinto, of the fifteen
bullets in the magazine of his carbine, only two remained. He fired "most" of the thirteen shots during the
"Bello incident". 77
Pinto shot the man later identified as Rosalio Andes when he was at a distance of around three meters. Rosalio was "face to face" with him when Pinto shot him. As Rosalio did not fall
from the first shot, Pinto continued shooting him. 78
When he went up the porch he saw the garand "lying on the floor" but the
gun tucked on Bello's waist was still in its holster. 79
On the Tiongson incident, Pinto asserted that he did not fire his
carbine. 80
When he saw the headlight of the Tiongsons' jeep, he also saw a flashlight being waved. A little
later, he heard a shout ordering the jeep to stop. Then he heard one shot and immediately after, the volley
of fire as the jeep was going towards his direction. As it passed by him, he heard the jeep's passengers
shriek. 81
For his part, Buenaflor declared that during the mission to serve the search warrant on Bello, he carried the ".38 caliber revolver Tel." (sic) which had been issued to him by the Legazpi
City Police Department. He did not fire his gun at the Tiongsons and, "as a matter of fact," he surrendered his firearm for ballistic examination. 82
In the afternoon of
December 26, however, Major Molo issued him a Thompson submachinegun. 83
While patrolling Homapon, he and Pinto "chanced upon" some persons who told them that they could guide them to where Bello was. At the place which they later found to be Talahib,
they went near a pili tree from where they saw a house "below." Then he saw a man who turned out to be Mostoles. Buenaflor apprehended Mostoles because the latter was Bello's
bodyguard and he had a .22 caliber firearm with him. He came by another man with a bolo, named "Banteque" and apprehended him also. Then, from behind the pili tree, Pinto appeared
with yet another man. They waited for a while until another man, who turned out to be Francisco Andes, came within four meters of him. Buenaflor pointed his submachinegun at him so
Andes approached him. Buenaflor confiscated Andes' .22 caliber firearm. 84
From the group, Buenaflor learned that Bello provided them with firearms and that Bello himself had a pistol tucked in his holster as well as a garand. He and Pinto then tied the men to
the pili tree. Later, he saw a person in the balcony of the house below and Buenaflor shouted twice: "Paquito, mag-surrender ka!" Then Buenaflor heard a "a shot coming from the
direction of the balcony followed by successive shots." He sought cover behind the pili tree and, while in a crouching position, fired his submachinegun towards the balcony. Pinto was
then behind him. As Pinto shifted his position while firing his carbine, Buenaflor went down to the "elevated portion going down to the nipa shack" until he was near the coconut tree.
There he found a person lying with his face down. He later found out that the person was the son of Francisco Andes. 85
After the firing had stopped, Pinto told him that Bello was dead. Pinto then went up the house. Buenaflor went back to the pili tree, untied the four persons they had captured, and told
them to do something so they could carry the bodies of Bello and (Rosalio) Andes. 86
Like Pinto, on cross-examination, Buenaflor also asserted that he did not fire his gun at the jeep carrying the Tiongsons. 87
While admitting that the person
who led them to Bello had told them that the latter was in Talahib, Buenaflor did not know that Talahib
88
was a barrio of Daraga, Albay and not of Legazpi City. He reiterated that he shouted at Bello urging him
to surrender 89 but he was not able to fire a warning shot or identify himself as a member of the police force
"because after the secondshot there was already a burst of gunfire". 90
40
Buenaflor affirmed that the first shot emanating from the balcony of the house in Talalib which was around fifteen meters from the pili tree, came from a "high caliber
firearm". 91
After they had found out that Bello was dead, Pinto went up the house. Later, Pinto gave him
Bello's 380 automatic pistol and garand. 92 Although he looked at those firearms, he did not determine
whether they had been fired. 93 He noticed, however, that the magazine of the garand was "intact". 94 Aside
from Bello's firearms, Buenaflor and Pinto confiscated two .22 caliber revolvers and two bolos found on
Bello's bodyguards. 95
Buenaflor stated that his Thompson submachinegun had two clips with each clip containing 30 bullets. When he gave back the firearm to Major Molo, only four bullets were left of the
one clip he had used. 96
He remembered having squeezed twice the trigger of his Thompson submachinegun or
automatic rifle in Talahib. 97 His service revolver was still with him then. 98
As a result of this series of events, four separate informations were filed against Pinto and Buenaflor. The information charging Pinto and Buenaflor for the murder of Andes which was
filed on July 26, 1971 reads:
That on or about the 27th day of December, 1970, in sitio Ando, Barrio Talahib, Daraga, Albay and within the jurisdiction of this Honorable Court the accused,
conspiring and confederating together and mutually helping one another, without any justifiable cause or motive, with intent to kill, did, then and there, willfully,
unlawfully and feloniously, with treachery and evident premeditation, accused Pat. Narciso Buenaflor, Jr. and Pat. Daniel Pinto, Jr., and by means of a Cal. 45
Thompson Sub-Machine Gun, SN-213436 and a US Carbin Inland, Cal. 30, SN-5099407, owned respectively by said accused, shoot one Rosalio Andes, inflicting
upon him gunshot wounds as described in the attached Autopsy Report marked as Annex "A" and being made an integral part of this Information, thereby causing
upon said Rosalio Andes serious and mortal wounds which led to his instantaneous death.
Contrary to law.
The information charging Pinto and Buenaflor with having murdered Bello contains basically the same allegations as the above and it was filed on the same date. On August 24, 1971 two
other informations were filed against Pinto and Buenaflor: one for the murder of Richard Tiongson and another for the frustrated murder of Maria Theresa Tiongson. On arraignment,
Pinto and Buenaflor both pleaded not guilty to all the charges.
After trial, the trial court rendered the aforementioned judgment of conviction. For the killing of Bello and Andes, the trial court appreciated evident premeditation as a qualifying
circilmstance and treachery, nighttime and use of public position as aggravating circumstances. For the incident involving the Tiongson children, it considered the crimes as qualified by
treachery and aggravated by the use of public position.
Pinto and Buenaflor instituted the instant appeal praying for exoneration mainly on the basis of their claim that the killings were perpetrated in the course of the performance of their
official duties as peace officers in obedience to the lawful order of their superiors.
In order that the justifying circumstance of fulfillment of a duty under Article 11 of the Revised Penal Code may be successfully invoked, the defense has to prove that these two
requisites are present: (a) the offender acted in the performance of a duty and (b) the injury or offense committed be the necessary consequence of the due performance or lawful exercise
of such duty. In the absence of the second requisite, the justification becomes an incomplete one thereby converting it into a mitigating circumstance under Articles 13 and 69 of the same
Code. 99
Admittedly, the appellants and the rest of the police force involved, originally set out to perform a legal duty: the service of a search warrant on Bello. In the process, however, appellants
abused their authority resulting in unauthorized and unlawful moves and consequences. Armed with only a search warrant and the oral order to apprehend Bello, they went beyond the
ambit of their mission and deprived Bello and two other persons of their lives.
While the defense presented proofs that Bello had a string of record in the police blotter for misdeeds ranging from taking the harvest of their hacienda without the permission of his
parents to assaulting his stepfather, and that he was "dangerous while under the influence of liquor", 100
there was no proof that he had been convicted
of any offense or that he was a dangerous fugitive from justice which would warrant a "shoot to-kill" order
from police authorities. Proof of bad moral character of the victim only establishes a probability that he
committed a crime but it certainly cannot be the reason for annihilating him nor may it prevail over facts
proven showing that the same victim had been cold-bloodedly killed. 101 As such, the suspicion that Bello
was maintaining a private army was not a sufficient justification for his being rubbed out without due
process of law.
The police theory that Bello authored the shooting of one Salustiano Botin on Christmas eve is neither a
justification for his arrest without a warrant. It should be observed that while the police had obtained a
search warrant for illegal possession of firearms against Bello even on Christmas day which was supposed
to be a holiday, no such effort was made in securing warrant of arrest for Bello's alleged frustrated killing
of Botin. The improbability of the defense evidence through the testimony of Botin himself that Bello had
shot him in the evening of December 24, 1970 is bolstered by the same testimony showing that while he
was shot by Bello in the presence of the police force who were converging at the junction of Homapon and
Mariawa, the same law enforcers were unable to arrest Bello. Besides the fact that no other eyewitness
corroborated Botin's testimony even in the face of his own admission that Bello had no reason to shoot
him, no complaint was ever lodged against Bello for the alleged shooting. 102
On the other hand, the prosecution, through eyewitness Rogelio Escober, tried to establish that during said shooting incident the police were looking for Bello at the store of a certain
Serrano. 103
Unable to find Bello, the police, specifically Pinto, mauled Escober while asking him to testify
against Bello for allegedly shooting Botin. 104 The police had focused their vehicles' headlights near the
bodega of ex-Mayor Los Baños in their effort to flush out Bello who, unknown to the police, had earlier
left the vicinity. It was when the police fired at the said bodega that Botin must have been accidentally
shot. 105 This story was uncorroborated but if true, would show the police's dangerous propensity for using
otherwise official operations in an unlawful manner.
A propensity for rash judgment was likewise amply shown at the incident involving the Tiongson children.
Since the jeep coming towards them was owned by the Anduizas, the appellants acted obviously in the
belief that Bello was its passenger and posthaste they fired upon it even without any inquiry as to the
identity of its passengers. 106Granting that the police indeed fired a warning shot, sound discretion and
restraint dictated that, there being no responding shots from its passengers after the alleged warning shot
and considering the condition of the road which was not only muddy but uphill, instead of directing
aimless gunburst at the jeep, the most that they could have done was to render the jeep immobile by
shooting its tires. That way, they could have verified the identity of the passengers. As it were, they riddled
the jeep with bullets injuring in the process innocent passengers who were completely unaware of what
they were up against.
Appellants' stark denial of firing their guns upon the Tiongson family falls flat in the face of various
circumstantial evidence which point to their culpability. There is the unflinching testimony of Sgt. Romero
that he saw "flashes of fire" from the direction of Buenaflor as the jeep bearing the Tiongsons passed by.
Said testimony was corroborated by that of Rafael Jacob, the PC member of team 2, that while no one in
his team fired his gun, the "sporadic firing" came from team 3 after the first of fire which occurred while
the jeep was "abreast of team 2". 107 Even defense witness Mariano Rico, a policeman who led team 1, was
"sure" that he heard gunshots at the moment when "the jeep had just passed team 2". 108
Then there are the four empty .30 caliber carbine shells which were found near the coconut tree where, according to Romero, Pinto was deployed. While he himself carried a carbine,
Romero did not fire it and his testimony was never contradicted. The four empty shells were compared with the test shells which were fired from the US carbine, caliber .30 Inland
Division, SN-5099407, which, according to the aforequoted information charging appellant with having killed Andes, was used by Pinto, they were found to have "significant similar
individual characteristics". 109
41
While it is true that the ballistic report reveals that the lead bullet taken from the body of Richard was fired from a Smith & Wesson type firearm 110
and Buenaflor was
proven to be carrying a .38 caliber Tell revolver, the findings of expert witnesses or, in this case, the
ballistic report pointing to another kind of caliber .38 weapon as the source of Richard's wound only serves
as a guide for the courts after considering all the facts of the case. 111 The undisputed fact is that Buenaflor
was specifically pointed by Romero as the one who fired his firearm as the Anduiza jeep bearing the
Tiongsons passed by. Inasmuch as no evidence that Romero would prevaricate to pin responsibility on
Buenaflor was ever presented, there is, therefore, no reason to discredit his testimony. 112
In addition to all these, Buenaflor's motive for wanting to do away with Bello has been established. Such motive provided a circumstantial evidence leading to the inference that indeed he
fired his gun. 113
According to the unrebutted testimony of Rogelio Escober, an overseer of the Napal hacienda
and constant companion of Bello, on November 1, 1970, Buenaflor and another policeman named Santos
Urbana, Jr. borrowed Bello's jeep on the pretext that they needed it to transfer Moscoso, the suspect in the
Perez killing, to the Albay Police Headquarters. When it was returned, the jeep had bloodstains. Bello and
Escober later learned from a PC officer that the jeep had been used in dumping in Guinobatan the body of
Moscoso. Confronted by the PC officer, Bello admitted that the jeep was borrowed by Buenaflor and
Urbina and agreed to execute a sworn statement on the matter. Consequently, the PC authorities notified
Mayor Imperial of the solution of the Moscoso killing.
Three days later, Escober and Bello met Urbina who warned Bello, "Kit, if you want to give your
statement, just say that I borrowed your jeep for thirty minutes. This is a brotherly advice because
something might happen to you." Bello retorted that he would do what was right and that was to tell the
truth. Urbina said that it was up to Bello but he repeated that he was giving Bello a brotherly warning that
something might happen to him 114 (TSN, August 23, 1973, pp. 4-20). These facts were of course denied by
Buenaflor. However, as between the positive declaration of a prosecution witness and the negative denial
of the accused, the former deserves more credence. 115
All these pieces of circumstantial evidence point to no other inference than that Pinto and Buenaflor fired their guns in defiance of their superior officer's order only "to find the
whereabouts" of Bello 116
and to desist from using their weapons "without clearance from the Chief of
Police". 117 Since there is more than one circumstance and the facts from which the inferences are derived
are proven, the combination of all the circumstances is such as to produce a conviction beyond reasonable
doubt. 118
The fact that the victims were different from the ones the appellants intended to injure cannot save them from conviction. Aberratio ictus or mistake in the identity of the victim carries
the same gravity as when the accused zeroes in on his intended victim. The main reason behind this conclusion is the fact that the accused had acted with such a disregard for the life of
the victim(s) — without checking carefully the latter's identity as to place himself on the same legal plane as one who kills another willfully, unlawfully and feloniously. 119
Neither
may the fact that the accused made a mistake in killing one man instead of another be considered a
mitigating circumstance. 120
It is not even necessary to pinpoint who between Pinto and Buenaflor actually caused the death of Richard or the wounding of Maria Theresa in the presence of proof beyond reasonable
doubt that they acted in conspiracy with each other. 121
Prior agreement between the appellants to lull their intended victim is not
essential to prove conspiracy as the same may be inferred from their own acts showing joint purpose and
design. 122 In this case, such unity of purpose and design is shown by the fact that only the two of them
fired their guns when the Anduiza jeep with the Tiongsons passed by. This they did in defiance of the order
of their superior not to shoot unless ordered to do so. Conspiracy having been proved, the guilt or
culpability is imposable on both appellants in equal degrees. 123
The same conspiracy was evident in the killing of Bello and Andes. The appellants' concerted action was shown by the manner by which they killed the two. In this incident, however,
they invoke self-defense as a justifying circumstance. Evidence at hand, however, do not favor their claim.
Under Article 11 (1) of the Rules of Court, an accused must prove the presence of all the following elements of said exempting circumstance: (a) unlawful aggression, (b) reasonable
necessity of the means employed to prevent or repel it, and (c) lack of sufficient provocation on the part of the person defending himself. 124
The presence of unlawful
aggression is a condition sine qua non. There can be no self-defense, complete or incomplete, unless
the victim has committed an unlawful aggression on the person defending himself. 125
In this case, Buenaflor insists that he fired at Bello because, after calling out to him to surrender, his shout was answered by a gunshot. Pinto corroborates his story but the principal
prosecution eyewitness in this incident, Inocencia Malbas, swears that she heard no such shout to surrender nor a gunshot from Bello's direction before Bello was fired upon by the
appellants. Physical evidence as well as the testimonies of Buenaflor himself and Pinto show that Inocencia, and not the appellants, was telling the truth.
Rafael Señora, the NBI agent who went to Talahib and the road to Mariawa to investigate as well as to take pictures, found no bullet marks at the crime scene which would pertain to a .22
caliber "paltik" firearm which Bello's men allegedly used. 126
As no other "paltik" firearms were recovered from the crime scene
other than the two which Buenaflor confiscated from Mostoles and Francisco Andes, the possibility of said
firearms or one of its kind having been used by Bello's men against the appellant particularly the one who
escaped is nil.
Buenaflor claimed that the shot after his call to Bello belonged to a high-powered gun 127 obviously
referring to the firearms recovered from Bello himself. According to Buenaflor however, when he found
the rifle, its magazine was "intact" and he did not manipulate the rifle to know how many of its bullets had
been used. 128 Moreover, if Bello indeed fired a gun, it must be the firearm in his holster and not the garand
which was found a couple of meters from where Bello had fallen. That Bello did not fire any of his two
firearms is buttressed by Pinto's own testimony that Bello was smoking with his back towards them when
he was shot at and that at that moment, he did not see Bello holding a gun. 129 We cannot help, therefore,
but conclude that the defense claim that Buenaflor's call to Bello was answered by a gunshot is but a
figment of their imagination designed for their own exoneration.
Appellants' claim of unlawful aggression on the part of Bello or his men would have been clarified had any
of Bello's men whom they had captured been presented in court. These men, Leoncio Mostoles, Francisco
Andes, Domingo Bantique and Ananias Andes had executed statements before the Legazpi City police to
the effect that they heard Buenaflor's call for Bello to surrender and that Bello fired his gun at the
appellants. However, all four of them later executed statements before the NBI retracting said earlier
statements in view of the fact that the police had threatened them to make the statements favorable to the
appellants. 130
As regards the unlawful aggression of Rosalio Andes against Pinto, we find that if we are to believe Pinto, we have to stamp full credibility on his statement alone. Even Buenaflor
admitted that he did not see Rosalio Andes attack Pinto. 131
Inocencia swore that she did not see any weapon near the fallen
Rosalio. Indeed, if the aggression did occur, Pinto would not have lost time in presenting in court the bolo
which Andes threatened to use on him. But granting that Rosalio had a bolo, Pinto was not justified in
inflicting the wounds sustained by Rosalio because a mere threatening attitude of the victim will not
constitute unlawful aggression. 132Moreover, Pinto's testimony that Rosalio menacingly approached him
with a bolo after Buenaflor had released a sunburst directed at the house where Bello was, is contrary to
human behavior if not totally ridiculous. On the contrary, by his own admission, Pinto continued firing
until he saw Rosalio fell.
An accused who admits inflicting fatal injury on his victim and invokes self-defense must rely on the
strength of his own evidence and not only on the weakness of that of the prosecution for, even if weak, the
prosecution evidence gains more credibility. 133 Unfortunately, in this case, inspire of the fact that the
prosecution had only one eyewitness to the killing of Bello and Andes, the appellants had not presented
sufficiently strong evidence to shore up their claim of self-defense.
42
We agree with the trial court that treachery attended the commission of all four crimes in this case. The suffer the indeterminate penalty of from six (6) years of prision correccional maximum as minimum to ten
killing of Richard Tiongson, Francisco Bello and Rosalio Andes as well as the wounding of Maria Theresa (10) years and one (1) day of prision mayor maximum as maximum.
Tiongson were all so sudden that all of them were left defenseless. This is shown not only by the
testimonial evidence on the commission of the crimes but also by the nature and location of the wounds of
Inasmuch as appellant Daniel Pinto, Jr. had been a police officer for only five months 137 when the crimes
all the victims. 134 The presence of treachery qualifies the killings to murder and the wounding of Maria
were committed, let a copy of this decision be furnished the Office of the President for whatever action
Theresa to frustrated murder. Nighttime, however, may not be appreciated as there is no proof that it was
may be proper to temper his penalty. 138
specifically sought in the commission of the crime and therefore we deem it absorbed by treachery.

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

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

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

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

WHEREFORE, the decision of the lower court is hereby affirmed subject to the modifications that
appellants shall solidarily be liable for the amount of Fifty Thousand (P50,000) for each of the three
murders they committed and, for the frustrated murder of Maria Theresa Tiongson, each of them shall

43

G.R. No. L-47722 July 27, 1943
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.
MORAN, J.:
Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto
Galanta, chief of police of Cabanatuan and corporal of the Philippine Constabulary, respectively, were,
after due trial, found guilty by the lower court of homicide through reckless imprudence and were
sentenced each to an indeterminate penalty of from one year and six months to two years and two months
of prison correccional and to indemnify jointly and severally the heirs of the deceased in the amount of
P1,000. Defendants appealed separately from this judgment.
In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial Inspector at
Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor: "Information
received escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get him dead or alive."
Captain Monsod accordingly called for his first sergeant and asked that he be given four men. Defendant
corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio Serna and D. Fernandez, upon order of
their sergeant, reported at the office of the Provincial Inspector where they were shown a copy of the
above-quoted telegram and a newspaper clipping containing a picture of Balagtas. They were instructed to
arrest Balagtas and, if overpowered, to follow the instruction contained in the telegram. The same
instruction was given to the chief of police Oanis who was likewise called by the Provincial Inspector.
When the chief of police was asked whether he knew one Irene, a bailarina, he answered that he knew one
of loose morals of the same name. Upon request of the Provincial Inspector, the chief of police tried to
locate some of his men to guide the constabulary soldiers in ascertaining Balagtas' whereabouts, and
failing to see anyone of them he volunteered to go with the party. The Provincial Inspector divided the
party into two groups with defendants Oanis and Galanta, and private Fernandez taking the route to Rizal
street leading to the house where Irene was supposedly living. When this group arrived at Irene's house,
Oanis approached one Brigida Mallare, who was then stripping banana stalks, and asked her where Irene's
room was. Brigida indicated the place and upon further inquiry also said that Irene was sleeping with her
paramour. Brigida trembling, immediately returned to her own room which was very near that occupied by
Irene and her paramour. Defendants Oanis and Galanta then went to the room of Irene, and an seeing a
man sleeping with his back towards the door where they were, simultaneously or successively fired at him
with their .32 and .45 caliber revolvers. Awakened by the gunshots, Irene saw her paramour already
wounded, and looking at the door where the shots came, she saw the defendants still firing at him. Shocked
by the entire scene. Irene fainted; it turned out later that the person shot and killed was not the notorious
criminal Anselmo Balagtas but a peaceful and innocent citizen named Serapio Tecson, Irene's paramour.
The Provincial Inspector, informed of the killing, repaired to the scene and when he asked as to who killed
the deceased. Galanta, referring to himself and to Oanis, answered: "We two, sir." The corpse was
thereafter brought to the provincial hospital and upon autopsy by Dr. Ricardo de Castro, multiple gunshot
wounds inflicted by a .32 and a .45 caliber revolvers were found on Tecson's body which caused his death.
These are the facts as found by the trial court and fully supported by the evidence, particularly by the
testimony of Irene Requinea. Appellants gave, however, a different version of the tragedy. According to
Appellant Galanta, when he and chief of police Oanis arrived at the house, the latter asked Brigida where
Irene's room was. Brigida indicated the place, and upon further inquiry as to the whereabouts of Anselmo
Balagtas, she said that he too was sleeping in the same room. Oanis went to the room thus indicated and
upon opening the curtain covering the door, he said: "If you are Balagtas, stand up." Tecson, the supposed
Balagtas, and Irene woke up and as the former was about to sit up in bed. Oanis fired at him. Wounded,
Tecson leaned towards the door, and Oanis receded and shouted: "That is Balagtas." Galanta then fired at
Tecson.
On the other hand, Oanis testified that after he had opened the curtain covering the door and after having
said, "if you are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas, while the latter
was still lying on bed, and continued firing until he had exhausted his bullets: that it was only thereafter
that he, Oanis, entered the door and upon seeing the supposed Balagtas, who was then apparently watching
and picking up something from the floor, he fired at him.
The trial court refused to believe the appellants. Their testimonies are certainly incredible not only because
they are vitiated by a natural urge to exculpate themselves of the crime, but also because they are
materially contradictory. Oasis averred that be fired at Tecson when the latter was apparently watching
somebody in an attitudes of picking up something from the floor; on the other hand, Galanta testified that
Oasis shot Tecson while the latter was about to sit up in bed immediately after he was awakened by a
noise. Galanta testified that he fired at Tecson, the supposed Balagtas, when the latter was rushing at him.
But Oanis assured that when Galanta shot Tecson, the latter was still lying on bed. It is apparent from these
contradictions that when each of the appellants tries to exculpate himself of the crime charged, he is at
once belied by the other; but their mutual incriminating averments dovetail with and corroborate
substantially, the testimony of Irene Requinea. It should be recalled that, according to Requinea, Tecson
was still sleeping in bed when he was shot to death by appellants. And this, to a certain extent, is
confirmed by both appellants themselves in their mutual recriminations. According, to Galanta, Oanis shot
Tecson when the latter was still in bed about to sit up just after he was awakened by a noise. And Oanis
assured that when Galanta shot Tecson, the latter was still lying in bed. Thus corroborated, and considering
that the trial court had the opportunity to observe her demeanor on the stand, we believe and so hold that
no error was committed in accepting her testimony and in rejecting the exculpatory pretensions of the two
appellants. Furthermore, a careful examination of Irene's testimony will show not only that her version of
the tragedy is not concocted but that it contains all indicia of veracity. In her cross-examination, even
misleading questions had been put which were unsuccessful, the witness having stuck to the truth in every
detail of the occurrence. Under these circumstances, we do not feel ourselves justified in disturbing the
findings of fact made by the trial court.
The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back towards
the door, Oanis and Galanta, on sight, fired at him simultaneously or successively, believing him to be
Anselmo Balagtas but without having made previously any reasonable inquiry as to his identity. And the
question is whether or not they may, upon such fact, be held responsible for the death thus caused to
Tecson. It is contended that, as appellants acted in innocent mistake of fact in the honest performance of
their official duties, both of them believing that Tecson was Balagtas, they incur no criminal liability.
Sustaining this theory in part, the lower court held and so declared them guilty of the crime of homicide
through reckless imprudence. We are of the opinion, however, that, under the circumstances of the case,
the crime committed by appellants is murder through specially mitigated by circumstances to be mentioned
below.
In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the case
of U.S. v. Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only when the
mistake is committed without fault or carelessness. In the Ah Chong case, defendant therein after having
gone to bed was awakened by someone trying to open the door. He called out twice, "who is there," but
received no answer. Fearing that the intruder was a robber, he leaped from his bed and called out again., "If
you enter the room I will kill you." But at that precise moment, he was struck by a chair which had been
44
placed against the door and believing that he was then being attacked, he seized a kitchen knife and struck
and fatally wounded the intruder who turned out to be his room-mate. A common illustration of innocent
mistake of fact is the case of a man who was marked as a footpad at night and in a lonely road held up a
friend in a spirit of mischief, and with leveled, pistol demanded his money or life. He was killed by his
friend under the mistaken belief that the attack was real, that the pistol leveled at his head was loaded and
that his life and property were in imminent danger at the hands of the aggressor. In these instances, there is
an innocent mistake of fact committed without any fault or carelessness because the accused, having no
time or opportunity to make a further inquiry, and being pressed by circumstances to act immediately, had
no alternative but to take the facts as they then appeared to him, and such facts justified his act of killing.
In the instant case, appellants, unlike the accused in the instances cited, found no circumstances
whatsoever which would press them to immediate action. The person in the room being then asleep,
appellants had ample time and opportunity to ascertain his identity without hazard to themselves, and
could even effect a bloodless arrest if any reasonable effort to that end had been made, as the victim was
unarmed, according to Irene Requinea. This, indeed, is the only legitimate course of action for appellants
to follow even if the victim was really Balagtas, as they were instructed not to kill Balagtas at sight but to
arrest him, and to get him dead or alive only if resistance or aggression is offered by him.
Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to
secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes,
and protect himself from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never justified in using
unnecessary force or in treating him with wanton violence, or in resorting to dangerous means when the
arrest could be effected otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in the new Rules of
Court thus: "No unnecessary or unreasonable force shall be used in making an arrest, and the person
arrested shall not be subject to any greater restraint than is necessary for his detention." (Rule 109, sec. 2,
par. 2). And a peace officer cannot claim exemption from criminal liability if he uses unnecessary force or
violence in making an arrest (5 C.J., p. 753; U.S. vs. Mendoza, 2 Phil., 109). It may be true that Anselmo
Balagtas was a notorious criminal, a life-termer, a fugitive from justice and a menace to the peace of the
community, but these facts alone constitute no justification for killing him when in effecting his arrest, he
offers no resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the
principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242).
As the deceased was killed while asleep, the crime committed is murder with the qualifying circumstance
of alevosia. There is, however, a mitigating circumstance of weight consisting in the incomplete justifying
circumstance defined in article 11, No. 5, of the Revised Penal Code. According to such legal provision, a
person incurs no criminal liability when he acts in the fulfillment of a duty or in the lawful exercise of a
right or office. There are two requisites in order that the circumstance may be taken as a justifying one: (a)
that the offender acted in the performance of a duty or in the lawful exercise of a right; and (b) that the
injury or offense committed be the necessary consequence of the due performance of such duty or the
lawful exercise of such right or office. In the instance case, only the first requisite is present — appellants
have acted in the performance of a duty. The second requisite is wanting for the crime by them committed
is not the necessary consequence of a due performance of their duty. Their duty was to arrest Balagtas or to
get him dead or alive if resistance is offered by him and they are overpowered. But through impatience or
over-anxiety or in their desire to take no chances, they have exceeded in the fulfillment of such duty by
killing the person whom they believed to be Balagtas without any resistance from him and without making
any previous inquiry as to his identity. According to article 69 of the Revised Penal Code, the penalty
lower by one or two degrees than that prescribed by law shall, in such case, be imposed.
For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with
the mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate penalty of
from five (5) years of prision correctional to fifteen (15) years of reclusion temporal, with the accessories
of the law, and to pay the heirs of the deceased Serapio Tecson jointly and severally an indemnity of
P2,000, with costs.

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

The crime committed by appellants is not merely criminal negligence, the killing being intentional and not
accidental. In criminal negligence, the injury caused to another should be unintentional, it being simply the
incident of another act performed without malice. (People vs. Sara, 55 Phil., 939). In the words of Viada,
"para que se celifique un hecho de imprudencia es preciso que no haya mediado en el malicia ni intencion
alguna de dañar; existiendo esa intencion, debera calificarse el hecho del delito que ha producido, por mas
que no haya sido la intencion del agente el causar un mal de tanta gravedad como el que se produjo."
(Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once held by this Court, a deliberate
intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence
(People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16), and where such unlawful act is wilfully
done, a mistake in the identity of the intended victim cannot be considered as reckless imprudence
(People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability.

45

G.R. No. 103119 October 21, 1992
SULPICIO INTOD, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
CAMPOS, JR., J.:
Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of
Appeals 1 affirming in toto the judgment of the Regional Trial Court, Branch XIV, Oroquieta City, finding
him guilty of the crime of attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino Daligdig
went to Salvador Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental and asked him to go
with them to the house of Bernardina Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio and
Daligdig had a meeting with Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan to be
killed because of a land dispute between them and that Mandaya should accompany the four (4) men,
otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio and
Daligdig, all armed with firearms, arrived at Palangpangan's house in Katugasan, Lopez Jaena, Misamis
Occidental. At the instance of his companions, Mandaya pointed the location of Palangpangan's bedroom.
Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said room. It turned out, however, that
Palangpangan was in another City and her home was then occupied by her son-in-law and his family. No
one was in the room when the accused fired the shots. No one was hit by the gun fire.
Petitioner and his companions were positively identified by witnesses. One witness testified that before the
five men left the premises, they shouted: "We will kill you (the witness) and especially Bernardina
Palangpangan and we will come back if (sic) you were not injured". 2
After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as affirmed by
the Court of Appeals, holding that Petitioner was guilty of attempted murder. Petitioner seeks from this
Court a modification of the judgment by holding him liable only for an impossible crime, citingArticle
4(2) of the Revised Penal Code which provides:
Art. 4(2). CRIMINAL RESPONSIBILITY. — Criminal Responsibility shall be
incurred:
xxx xxx xxx
2. By any person performing an act which would be an offense against persons or
property, were it not for the inherent impossibility of its accomplishment or on
account of the employment of inadequate or ineffectual means.
Petitioner contends that, Palangpangan's absence from her room on the night he and his
companions riddled it with bullets made the crime inherently impossible.
On the other hand, Respondent People of the Philippines argues that the crime was not impossible. Instead,
the facts were sufficient to constitute an attempt and to convict Intod for attempted murder. Respondent
alleged that there was intent. Further, in its Comment to the Petition, respondent pointed out that:
. . . The crime of murder was not consummated, not because of the inherent
impossibility of its accomplishment (Art. 4(2), Revised Penal Code), but due to a
cause or accident other than petitioner's and his accused's own spontaneous
desistance (Art. 3., Ibid.) Palangpangan did not sleep at her house at that time. Had
it not been for this fact, the crime is possible, not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in the
Old Penal Code where:
. . . it was necessary that the execution of the act has been commenced, that the
person conceiving the idea should have set about doing the deed, employing
appropriate means in order that his intent might become a reality, and finally, that
the result or end contemplated shall have been physically possible. So long as these
conditions were not present, the law and the courts did not hold him criminally
liable. 5
This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired by the
Positivist School, recognizes in the offender his formidability, 7 and now penalizes an act which were it
not aimed at something quite impossible or carried out with means which prove inadequate, would
constitute a felony against person or against property. 8 The rationale of Article 4(2) is to punish such
criminal tendencies. 9
Under this article, the act performed by the offender cannot produce an offense against person or property
because: (1) the commission of the offense is inherently impossible of accomplishment: or (2) the means
employed is either (a) inadequate or (b) ineffectual. 10
That the offense cannot be produced because the commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the
offender must be by its nature one impossible of accomplishment. 11 There must be either impossibility of
accomplishing the intended act 12 in order to qualify the act an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not amount to a
crime. 13 Thus:
46
 Legal impossibility would apply to those circumstances where (1) the motive, desire
and expectation is to perform an act in violation of the law; (2) there is intention to
perform the physical act; (3) there is a performance of the intended physical act; and
(4) the consequence resulting from the intended act does not amount to a crime. 14
The impossibility of killing a person already dead 15 falls in this category.
On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or
beyond his control prevent the consummation of the intended crime. 16 One example is the man who puts
his hand in the coat pocket of another with the intention to steal the latter's wallet and finds the pocket
empty. 17
The case at bar belongs to this category. Petitioner shoots the place where he thought his victim would be,
although in reality, the victim was not present in said place and thus, the petitioner failed to accomplish his
end.
One American case had facts almost exactly the same as this one. In People vs. Lee Kong, 18 the accused,
with intent to kill, aimed and fired at the spot where he thought the police officer would be. It turned out,
however, that the latter was in a different place. The accused failed to hit him and to achieve his intent. The
Court convicted the accused of an attempt to kill. It held that:
The fact that the officer was not at the spot where the attacking party imagined
where he was, and where the bullet pierced the roof, renders it no less an attempt to
kill. It is well settled principle of criminal law in this country that where the criminal
result of an attempt is not accomplished simply because of an obstruction in the way
of the thing to be operated upon, and these facts are unknown to the aggressor at the
time, the criminal attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the victim
because the latter did not pass by the place where he was lying-in wait, the court held him liable for
attempted murder. The court explained that:
It was no fault of Strokes that the crime was not committed. . . . It only became
impossible by reason of the extraneous circumstance that Lane did not go that way;
and further, that he was arrested and prevented from committing the murder. This
rule of the law has application only where it is inherently impossible to commit the
crime. It has no application to a case where it becomes impossible for the crime to
be committed, either by outside interference or because of miscalculation as to a
supposed opportunity to commit the crime which fails to materialize; in short it has
no application to the case when the impossibility grows out of extraneous acts not
within the control of the party.
In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there was
nothing to rob. In disposing of the case, the court quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves punishment by reason of his
criminal intent, no one can seriously doubt that the protection of the public requires
the punishment to be administered, equally whether in the unseen depths of the
pocket, etc., what was supposed to exist was really present or not. The community
suffers from the mere alarm of crime. Again: Where the thing intended (attempted)
as a crime and what is done is a sort to create alarm, in other words, excite
apprehension that the evil; intention will be carried out, the incipient act which the
law of attempt takes cognizance of is in reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking that
the latter was inside. However, at that moment, the victim was in another part of the house. The court
convicted the accused of attempted murder.
The aforecited cases are the same cases which have been relied upon by Respondent to make this Court
sustain the judgment of attempted murder against Petitioner. However, we cannot rely upon these decisions
to resolve the issue at hand. There is a difference between the Philippine and the American laws regarding
the concept and appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes and
made the punishable. Whereas, in the United States, the Code of Crimes and Criminal Procedure is silent
regarding this matter. What it provided for were attempts of the crimes enumerated in the said Code.
Furthermore, in said jurisdiction, the impossibility of committing the offense is merely a defense to an
attempt charge. In this regard, commentators and the cases generally divide the impossibility defense into
two categories: legal versus factual impossibility. 22 In U.S. vs. Wilson 23 the Court held that:
. . . factual impossibility of the commission of the crime is not a defense. If the
crime could have been committed had the circumstances been as the defendant
believed them to be, it is no defense that in reality the crime was impossible of
commission.
Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability for an
attempt. In U.S. vs. Berrigan, 24 the accused was indicated for attempting to smuggle letters into and out
of prison. The law governing the matter made the act criminal if done without knowledge and consent of
the warden. In this case, the offender intended to send a letter without the latter's knowledge and consent
and the act was performed. However, unknown to him, the transmittal was achieved with the warden's
knowledge and consent. The lower court held the accused liable for attempt but the appellate court
reversed. It held unacceptable the contention of the state that "elimination of impossibility as a defense to a
charge of criminal attempt, as suggested by the Model Penal Code and the proposed federal legislation, is
consistent with the overwhelming modern view". In disposing of this contention, the Court held that the
federal statutes did not contain such provision, and thus, following the principle of legality, no person
could be criminally liable for an act which was not made criminal by law. Further, it said:
Congress has not yet enacted a law that provides that intent plus act plus conduct
constitutes the offense of attempt irrespective of legal impossibility until such time
as such legislative changes in the law take place, this court will not fashion a new
non-statutory law of criminal attempt.
To restate, in the United States, where the offense sought to be committed is factually impossible or
accomplishment, the offender cannot escape criminal liability. He can be convicted of an attempt to
commit the substantive crime where the elements of attempt are satisfied. It appears, therefore, that the act
is penalized, not as an impossible crime, but as an attempt to commit a crime. On the other hand, where the
offense is legally impossible of accomplishment, the actor cannot be held liable for any crime — neither
for an attempt not for an impossible crime. The only reason for this is that in American law, there is no
such thing as an impossible crime. Instead, it only recognizes impossibility as a defense to a crime charge
— that is, attempt.
This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The impossibility
of accomplishing the criminal intent is not merely a defense, but an act penalized by itself. Furthermore,
the phrase "inherent impossibility" that is found in Article 4(2) of the Revised Penal Code makes no
distinction between factual or physical impossibility and legal impossibility. Ubi lex non distinguit nec nos
distinguere debemos.
47
The factual situation in the case at bar present a physical impossibility which rendered the intended crime
impossible of accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code, such is
sufficient to make the act an impossible crime.

To uphold the contention of respondent that the offense was Attempted Murder because the absence of
Palangpangan was a supervening cause independent of the actor's will, will render useless the provision in
Article 4, which makes a person criminally liable for an act "which would be an offense against persons or
property, were it not for the inherent impossibility of its accomplishment . . ." In that case all circumstances
which prevented the consummation of the offense will be treated as an accident independent of the actor's
will which is an element of attempted and frustrated felonies.

WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of respondent
Court of Appeals holding Petitioner guilty of Attempted Murder is hereby MODIFIED. We hereby hold
Petitioner guilty of an impossible crime as defined and penalized in Articles 4, paragraph 2, and 59 of the
Revised Penal Code, respectively. Having in mind the social danger and degree of criminality shown by
Petitioner, this Court sentences him to suffer the penalty of six (6) months of arresto mayor, together with
the accessory penalties provided by the law, and to pay the costs.

SO ORDERED.

48

G.R. No. 188551 February 27, 2013
EDMUNDO ESCAMILLA y JUGO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
SERENO, J.:
This is a Petition for Review on Certiorari 1 dated 20 August 2009. It seeks a review of the 10 June 2009
Resolution2 of the Court of Appeals (CA) in CA-G.R. CR. No. 30456, which denied the Motion for
Reconsideration3of the 10 November 2008 CA Decision4 affirming the conviction of Edmundo Escamilla
(petitioner) for frustrated homicide.
BACKGROUND
The facts of this case, culled from the records, are as follows:
Petitioner has a house with a sari-sari store along Arellano Street, Manila.5 The victim, Virgilio Mendol
(Mendol), is a tricycle driver whose route traverses the road where petitioner's store is located. 6
Around 2:00 a.m. of 01 August 1999, a brawl ensued at the comer of Estrada and Arellano Streets,
Manila.7 Mendol was about to ride his tricycle at this intersection while facing Arellano Street.8 Petitioner,
who was standing in front of his store, 30 meters away from Mendol,9 shot the latter four times, hitting him
once in the upper right portion of his chest.10 The victim was brought to Ospital ng Makati for
treatment11 and survived because of timely medical attention.12
The Assistant City Prosecutor of Manila filed an Information13 dated 01 December 1999 charging
petitioner with frustrated homicide. The Information reads:
That on or about August 1, 1999, in the City of Manila, Philippines, the said accused, with intent to kill,
did then and there wilfully, unlawfully and feloniously attack, assault and use personal violence upon the
person of one Virgilio Mendol, by then and there shooting the latter with a .9mm Tekarev pistol with Serial
No. 40283 hitting him on the upper right portion of his chest, thereby inflicting upon him gunshot wound
which is necessarily fatal and mortal, thus performing all the acts of execution which should have
produced the crime of Homicide as a consequence, but nevertheless did not produce it by reason of causes,
independent of his will, that is, by the timely and able medical assistance rendered to said Virgilio Mendol
which prevented his death.
CONTRARY TO LAW.
Upon arraignment, petitioner pleaded not guilty.14 During trial, the prosecution presented the testimonies of
Mendol, Joseph Velasco (Velasco) and Iluminado Garcelazo (Garcelazo), who all positively identified him
as the shooter of Mendol.15 The doctor who attended to the victim also testified.16 The documentary
evidence presented included a sketch of the crime scene, the Medical Certificate issued by the physician,
and receipts of the medical expenses of Mendol when the latter was treated for the gunshot wound.17 In the
course of the presentation of the prosecution witnesses, the defense requested an ocular inspection of the
crime scene, a request that was granted by the court. 18 On the other hand, the defense witnesses are
petitioner himself, his wife, Velasco and Barangay Tanod George Asumbrado (Asumbrado).19 The defense
offered the results of the paraffin test of petitioner and the transcript of stenographic notes taken during the
court’s ocular inspection of the crime scene.20
The Regional Trial Court (RTC) held that the positive testimonies of eyewitnesses deserve far more weight
and credence than the defense of alibi.21 Thus, it found petitioner guilty of frustrated homicide.22 The
dispositive portion reads:
WHEREFORE, the Court finds the accused Edmund Escamilla Y Jugo GUILTY beyond reasonable doubt
of the crime of Frustrated Homicide under Articles 249 and 50 [sic] of the Revised Penal Code, and hereby
sentences the accused to suffer an indeterminate sentence of six (6) months and one (1) day of prision
correccional as minimum, to eight (8) years and one (1) day of prision mayor as maximum. Accused is
hereby ordered to indemnify complainant Virgilio Mendol the sum of ₱34,305.16 for actual damages,
₱30,000.00 for moral damages.
SO ORDERED.23
Petitioner filed a Notice of Appeal dated 14 July 2006.24 In the brief that the CA required him to file,25 he
questioned the credibility of the prosecution witnesses over that of the defense.26 On the other hand, the
Appellee’s Brief27posited that the prosecution witnesses were credible, because there were no serious
discrepancies in their testimonies.28 Petitioner, in his Reply brief,29 said that the prosecution witnesses did
not actually see him fire the gun.30 Furthermore, his paraffin test yielded a negative result.31
The CA, ruling against petitioner, held that the issue of the credibility of witnesses is within the domain of
the trial court, which is in a better position to observe their demeanor.32 Thus, the CA upheld the RTC’s
appreciation of the credibility of the prosecution witnesses in the present case.33 Also, the CA ruled that the
victim’s positive and unequivocal identification of petitioner totally destroyed his defense of alibi. Hence,
it found no reason to disbelieve Mendol’s testimony.34 In addition, it said that a paraffin test is not a
conclusive proof that a person has not fired a gun and is inconsequential when there is a positive
identification of petitioner.35
A Motion for Reconsideration36 dated 08 December 2008 was filed by petitioner, who asserted that the
defense was able to discredit the testimony of the victim.37
In its 10 June 2009 Resolution,38 the CA denied petitioner’s Motion for Reconsideration for being without
merit, because the matters discussed therein had already been resolved in its 10 November 2008
Decision.39
Hence, this Petition40 assailing the application to this case of the rule that the positive identification of the
accused has more weight than the defense of alibi.41 This Court resolved to require the prosecution to
comment on the Petition.42 In his Comment43 dated 15 December 2009, the victim said that his positive
identification of petitioner was a direct evidence that the latter was the author of the crime.44 Furthermore,
what petitioner raised was allegedly a question of fact, which is proscribed by a Rule 45 petition. 45 Thus,
49
the victim alleged, there being no new or substantial matter or question of law raised, the Petition should
be denied.46
We then obliged petitioner to file a reply.47 In his Reply dated 01 March 2010,48 he assigned as an error the
application by the CA of the rule that the positive identification of the accused has more weight than the
defense of alibi.49 He posits that the lower court manifestly overlooked relevant facts not disputed by the
parties, but if properly considered would justify a different conclusion. 50 This Court, he said, should then
admit an exception to the general rule that the findings of fact of the CA are binding upon the Supreme
Court.51
ISSUES
The questions before us are as follows:
I. Whether the prosecution established petitioner’s guilt beyond reasonable doubt. 52
II. Whether a defense of alibi, when corroborated by a disinterested party, overcomes the positive
identification by three witnesses.53
COURT’S RULING
We deny the Petition.
I. The prosecution proved petitioner’s guilt beyond reasonable doubt.
A. Petitioner was positively identified by three witnesses.
Petitioner argues that there was reasonable doubt as to the identity of the shooter. 54 He is wrong. As
correctly held by the RTC and affirmed by the CA, the identity of the assailant was proved with moral
certainty by the prosecution, which presented three witnesses – the victim Mendol, Velasco, and Garcelazo
– who all positively identified him as the shooter.55 We have held that a categorical and consistently
positive identification of the accused, without any showing of ill motive on the part of the eyewitnesses,
prevails over denial.56 All the three witnesses were unswerving in their testimonies pointing to him as the
shooter. None of them had any ulterior motive to testify against him.
Mendol said that he was about to ride his tricycle at the corner of Arellano and Estrada Streets, when
petitioner, who was in front of the former’s store, shot him.57 The first shot hit its target, but petitioner
continued to fire at the victim three more times, and the latter then started to run away. 58
Velasco, who was also at the corner of Estrada and Arellano Streets, heard the first shot, looked around,
then saw petitioner firing at Mendol three more times.59
Lastly, Garcelazo testified that while he was buying bread from a bakery at that same street corner, he
heard three shots before he turned his head and saw petitioner pointing a gun at the direction of the victim,
who was bloodied in the right chest.60 Garcelazo was just an arm’s length away from him.61
The three witnesses had a front view of the face of petitioner, because they were all facing Arellano Street
from its intersection with Estrada Street, which was the locus criminis.62 Although the crime happened in
the wee hours of the morning, there was a street lamp five meters from where petitioner was standing
when he shot the victim, thus allowing a clear view of the assailant’s face.63 They all knew petitioner,
because they either bought from or passed by his store.64
B. The intent to kill was shown by the continuous firing at the victim even after he was hit.
Petitioner claims that the prosecution was unable to prove his intent to kill. 65 He is mistaken. The intent to
kill, as an essential element of homicide at whatever stage, may be before or simultaneous with the
infliction of injuries.66 The evidence to prove intent to kill may consist of, inter alia, the means used; the
nature, location and number of wounds sustained by the victim; and the conduct of the malefactors before,
at the time of, or immediately after the killing of the victim.67
Petitioner’s intent to kill was simultaneous with the infliction of injuries. Using a gun,68 he shot the victim
in the chest. 69 Despite a bloodied right upper torso, the latter still managed to run towards his house to ask
for help. 70Nonetheless, petitioner continued to shoot at him three more times,71 albeit
unsuccessfully.72 While running, the victim saw his nephew in front of the house and asked for help. 73 The
victim was immediately brought to the hospital on board an owner-type jeep.74 The attending physician,
finding that the bullet had no point of exit, did not attempt to extract it; its extraction would just have
caused further damage.75 The doctor further said that the victim would have died if the latter were not
brought immediately to the hospital.76 All these facts belie the absence of petitioner’s intent to kill the
victim.
II. Denial and alibi were not proven.
In order for alibi to prosper, petitioner must establish by clear and convincing evidence that, first, he was in
another place at the time of the offense; and, second, it was physically impossible for him to be at the
scene of the crime. 77The appreciation of the defense of alibi is pegged against this standard and nothing
else. Petitioner, as found by both the RTC and CA, failed to prove the presence of these two requisite
conditions. Hence, he was wrong in asserting that alibi, when corroborated by other witnesses, succeeds as
a defense over positive identification.78
A. Petitioner was unable to establish that he was at home at the time of the offense.
The alibi of petitioner was that he was at home asleep with his wife when Mendol was shot.79 To support
his claim, petitioner presented the testimonies of his wife and Asumbrado.80
1. The wife of petitioner did not know if he was at home when the shooting happened.
The wife of petitioner testified that both of them went to sleep at 9:00 p.m. and were awakened at 3:00
a.m. by the banging on their door.81 However, she also said that she did not know if petitioner stayed inside
their house, or if he went somewhere else during the entire time she was asleep.82 Her testimony does not
show that he was indeed at home when the crime happened. At the most, it only establishes that he was at
home before and after the shooting. Her lack of knowledge regarding his whereabouts between 1:00 a.m.
and 3:00 a.m. belies the credibility of his alibi. Even so, the testimonies of relatives deserve scant
consideration, especially when there is positive identification83by three witnesses.
2. Asumbrano did not see the entire face of the shooter.
Petitioner is questioning why neither the RTC nor the CA took into account the testimony of Asumbrado,
the Barangay Tanod on duty that night.84 Both courts were correct in not giving weight to his testimony.
50
Asumbrado said that he was there when the victim was shot, not by appellant, but by a big man who was in
his twenties.85 This assertion was based only on a back view of the man who fired the gun 12 meters away
from Asumbrado.86 The latter never saw the shooter’s entire face.87 Neither did the witness see the victim
when the latter was hit.88 Asumbrado also affirmed that he was hiding when the riot took place. 89 These
declarations question his competence to unequivocally state that indeed it was not petitioner who fired at
Mendol.

B. Petitioner's home was just in front of the street where the shooting occurred.

Physical impossibility refers to the distance between the place where the accused was when the crime
transpired and the place where it was committed, as well as the facility of access between the two
places. 90 Petitioner failed to prove the physical impossibility of his being at the scene of the crime at the
time in question.

Both the prosecution and the defense witnesses referred to the front of appellant's house or store whenever
they testified on the location of the shooter. Petitioner was in front of his house when he shot the victim,
according to Velasco's testimony.91 Meanwhile the statement of Asumbrado that the gate of the store of the
petitioner was closed when the shooting happened92 can only mean that the latter's house and store were
both located in front of the scene of the crime.1âwphi1

Petitioner proffers the alibi that he was at home, instead of showing the impossibility of his authorship of
the crime. His alibi actually bolsters the prosecution's claim that he was the shooter, because it placed him
just a few steps away from the scene of the crime. The charge is further bolstered by the testimony of his
wife, who could not say with certainty that he was at home at 2:00a.m.- the approximate time when the
victim was shot.

Based on the foregoing, it cannot be said that the lower courts overlooked any fact that could have justified
a different conclusion. Hence, the CA was correct in affirming the R TC 's Decision that petitioner, beyond
reasonable doubt, was the assailant.

WHEREFORE, in view of the foregoing, the Petition is DENIED. The 10 June 2009 Resolution 93 and 10
November 2008 Decision94 of the Court of Appeals in CA-G.R. CR. No. 30456 are hereby AFFIRMED in
toto.

SO ORDERED

51

G.R. No. 129433 March 30, 2000
PEOPLE OF THE PHILIPPINES, plaintiff,
vs.
PRIMO CAMPUHAN Y BELLO accused.
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita 1 finally did away with frustrated rape 2 and allowed only
attempted rape and consummated rape to remain in our statute books. The instant case lurks at the
threshold of another emasculation of the stages of execution of rape by considering almost every attempt at
sexual violation of a woman as consummated rape, that is, if the contrary view were to be adopted. The
danger there is that that concept may send the wrong signal to every roaming lothario, whenever the
opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since after all any
attempted fornication would be considered consummated rape and punished as such. A mere strafing of
the citadel of passion would then be considered a deadly fait accompli, which is absurd.
In Orita we held that rape was consummated from the moment the offender had carnal knowledge of the
victim since by it he attained his objective. All the elements of the offense were already present and
nothing more was left for the offender to do, having performed all the acts necessary to produce the crime
and accomplish it. We ruled then that perfect penetration was not essential; any penetration of the female
organ by the male organ, however slight, was sufficient. The Court further held that entry of the labia or
lips of the female organ, even without rupture of the hymen or laceration of the vagina, was sufficient to
warrant conviction for consummated rape. We distinguished consummated rape from attempted rape where
there was no penetration of the female organ because not all acts of execution were performed as the
offender merely commenced the commission of a felony directly by overt acts. 3The inference that may be
derived therefrom is that complete or full penetration of the vagina is not required for rape to be
consummated. Any penetration, in whatever degree, is enough to raise the crime to its consummated stage.
But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or lips of
the female organ, even if there be no rupture of the hymen or laceration of the vagina, to warrant a
conviction for consummated rape. While the entry of the penis into the lips of the female organ was
considered synonymous with mere touching of the external genitalia, e.g., labia majora, labia minora,
etc.,4 the crucial doctrinal bottom line is that touching must be inextricably viewed in light of, in relation to,
or as an essential part of, the process of penile penetration, and not just mere touching in the ordinary
sense. In other words, the touching must be tacked to the penetration itself. The importance of the
requirement of penetration, however slight, cannot be gainsaid because where entry into the labia or the
lips of the female genitalia has not been established, the crime committed amounts merely to attempted
rape.
Verily, this should be the indicium of the Court in determining whether rape has been committed either in
its attempted or in its consummated stage; otherwise, no substantial distinction would exist between the
two, despite the fact that penalty-wise, this distinction, threadbare as it may seem, irrevocably spells the
difference between life and death for the accused — a reclusive life that is not even perpetua but
only temporal on one hand, and the ultimate extermination of life on the other. And, arguing on another
level, if the case at bar cannot be deemed attempted but consummated rape, what then would constitute
attempted rape? Must our field of choice be thus limited only to consummated rape and acts of
lasciviousness since attempted rape would no longer be possible in light of the view of those who disagree
with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the court a
quo to the extreme penalty of death, 5 hence this case before us on automatic review under Art. 335 of the
Revised Penal Code as amended by RA 7659. 6
As may be culled from the evidence on record, on 25 April 1996, at around 4 o'clock in the afternoon, Ma.
Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went down from the second floor
of their house to prepare Milo chocolate drinks for her two (2) children. At the ground floor she met Primo
Campuhan who was then busy filling small plastic bags with water to be frozen into ice in the freezer
located at the second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was
busy preparing the drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!" 7 prompting Corazon to
rush upstairs. Thereupon, she saw Primo Campuhan inside her children's room kneeling before Crysthel
whose pajamas or "jogging pants" and panty were already removed, while his short pants were down to his
knees.
According to Corazon, Primo was forcing his penis into Crysthel's vagina. Horrified, she cursed the
accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He evaded her blows and pulled
up his pants. He pushed Corazon aside when she tried to block his path. Corazon then ran out and shouted
for help thus prompting her brother, a cousin and an uncle who were living within their compound, to
chase the accused. 8 Seconds later, Primo was apprehended by those who answered Corazon's call for help.
They held the accused at the back of their compound until they were advised by their neighbors to call the
barangay officials instead of detaining him for his misdeed. Physical examination of the victim yielded
negative results. No evident sign of extra-genital physical injury was noted by the medico-legal officer on
Crysthel's body as her hymen was intact and its orifice was only 0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and assailed
the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against him for his
refusal to run an errand for her. 9 He asserted that in truth Crysthel was in a playing mood and wanted to
ride on his back when she suddenly pulled him down causing both of them to fall down on the floor. It was
in this fallen position that Corazon chanced upon them and became hysterical. Corazon slapped him and
accused him of raping her child. He got mad but restrained himself from hitting back when he realized she
was a woman. Corazon called for help from her brothers to stop him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente punched him
and threatened to kill him. Upon hearing the threat, Primo immediately ran towards the house of Conrado
Plata but Vicente followed him there. Primo pleaded for a chance to explain as he reasoned out that the
accusation was not true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead
pipe, Primo raised his hands and turned his back to avoid the blow. At this moment, the relatives and
neighbors of Vicente prevailed upon him to take Primo to the barangay hall instead, and not to maul or
possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of
statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay his victim
P50,000.00 for moral damages, P25,000.00 for exemplary damages, and the costs.
52
The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female
her narration should not be given any weight or credence since it was punctured with implausible organ," 17but has also progressed into being described as "the introduction of the male organ into the labia
statements and improbabilities so inconsistent with human nature and experience. He claims that it was of the pudendum," 18 or "the bombardment of the drawbridge." 19 But, to our mild, the case at bar merely
truly inconceivable for him to commit the rape considering that Crysthel's younger sister was also in the constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a "strafing of the citadel of
room playing while Corazon was just downstairs preparing Milo drinks for her daughters. Their presence passion.
alone as possible eyewitnesses and the fact that the episode happened within the family compound where a
call for assistance could easily be heard and responded to, would have been enough to deter him from
A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of proving
committing the crime. Besides, the door of the room was wide open for anybody to see what could be
that Primo's penis was able to penetrate Crysthel's vagina however slight. Even if we grant arguendo that
taking place inside. Primo insists that it was almost inconceivable that Corazon could give such a vivid
Corazon witnessed Primo in the act of sexually molesting her daughter, we seriously doubt the veracity of
description of the alleged sexual contact when from where she stood she could not have possibly seen the
her claim that she saw the inter-genital contact between Primo and Crysthel. When asked what she saw
alleged touching of the sexual organs of the accused and his victim. He asserts that the absence of any
upon entering her children's room Corazon plunged into saying that she saw Primo poking his penis on the
external signs of physical injuries or of penetration of Crysthel's private parts more than bolsters his
vagina of Crysthel without explaining her relative position to them as to enable her to see clearly and
innocence.
sufficiently, in automotive lingo, the contact point. It should be recalled that when Corazon chanced upon
Primo and Crysthel, the former was allegedly in a kneeling position, which Corazon described thus:
In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw
Primo with his short pants down to his knees kneeling before Crysthel whose pajamas and panty were
Q: How was Primo holding your daughter?
supposedly "already removed" and that Primo was "forcing his penis into Crysthel's vagina." The
gravamen of the offense of statutory rape is carnal knowledge of a woman below twelve (12), as provided
in Art. 335, par. (3), of the Revised Penal Code. Crysthel was only four (4) years old when sexually A: (The witness is demonstrating in such a way that the chest of the accused is pinning down
molested, thus raising the penalty, from reclusion perpetuato death, to the single indivisible penalty of the victim, while his right hand is holding his penis and his left hand is spreading the legs of the
death under RA 7659, Sec. 11, the offended party being below seven (7) years old. We have said often victim).
enough that in concluding that carnal knowledge took place, full penetration of the vaginal orifice is not an
essential ingredient, nor is the rupture of the hymen necessary; the mere touching of the external genitalia
It can reasonably be drawn from the foregoing narration that Primo's kneeling position rendered an
by the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge. 10 But the
unbridled observation impossible. Not even a vantage point from the side of the accused and the victim
act of touching should be understood here as inherently part of the entry of the penis into the labias of the
would have provided Corazon an unobstructed view of Primo's penis supposedly reaching Crysthel's
female organ and not mere touching alone of the mons pubis or the pudendum.
external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and arms of Primo
would have hidden his movements from Corazon's sight, not to discount the fact that Primo's right hand
In People v. De la Peña 11 we clarified that the decisions finding a case for rape even if the attacker's penis was allegedly holding his penis thereby blocking it from Corazon's view. It is the burden of the prosecution
merely touched the external portions of the female genitalia were made in the context of the presence or to establish how Corazon could have seen the sexual contact and to shove her account into the permissive
existence of an erect penis capable of full penetration. Where the accused failed to achieve an erection, had sphere of credibility. It is not enough that she claims that she saw what was done to her daughter. It is
a limp or flaccid penis, or an oversized penis which could not fit into the victim's vagina, the Court required that her claim be properly demonstrated to inspire belief. The prosecution failed in this respect,
nonetheless held that rape was consummated on the basis of the victim's testimony that the accused thus we cannot conclude without any taint of serious doubt that inter-genital contact was at all achieved. To
repeatedly tried, but in vain, to insert his penis into her vagina and in all likelihood reached the labia of her hold otherwise would be to resolve the doubt in favor of the prosecution but to run roughshod over the
pudendum as the victim felt his organ on the lips of her vulva, 12 or that the penis of the accused touched constitutional right of the accused to be presumed innocent.
the middle part of her vagina. 13 Thus, touching when applied to rape cases does not simply mean mere
epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external
Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her timely
layer of the victim's vagina, or the mons pubis, as in this case. There must be sufficient and convincing
appearance, thus giving her the opportunity to fully witness his beastly act.
proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the
external surface thereof, for an accused to be convicted of consummated rape. 14 As the labias, which are
required to be "touched" by the penis, are by their natural situs or location beneath the mons pubis or the We are not persuaded. It is inconsistent with man's instinct of self-preservation to remain where he is and
vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, persist in satisfying his lust even when he knows fully well that his dastardly acts have already been
hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes discovered or witnessed by no less than the mother of his victim. For, the normal behavior or reaction of
consummated rape. Primo upon learning of Corazon's presence would have been to pull his pants up to avoid being caught
literally with his pants down. The interval, although relatively short, provided more than enough
opportunity for Primo not only to desist from but even to conceal his evil design.
The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal
area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The
mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the What appears to be the basis of the conviction of the accused was Crysthel's answer to the question of the
surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer court —
convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles
and is pigmented, while the inner surface is a thin skin which does not have any hair but has many
sebaceous glands. Directly beneath the labia majora is the labia minora. 15 Jurisprudence dictates that the Q: Did the penis of Primo touch your organ?
labia majora must be entered for rape to be consummated, 16 and not merely for the penis to stroke the
surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis A: Yes, sir.
of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest
penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. But when asked further whether his penis penetrated her organ, she readily said, "No." Thus —

53
 Q: But did his penis penetrate your organ? maximum of the penalty to be imposed upon the accused shall be taken from the medium period
of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen
(17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree,
A: No, sir. 20
which is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in
any of its periods.
This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in
this case was consummated. It has foreclosed the possibility of Primo's penis penetrating her vagina,
WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y
however slight. Crysthel made a categorical statement denying penetration, 27 obviously induced by a
BELLO guilty of statutory rape and sentencing him to death and to pay damages is MODIFIED. He is
question propounded to her who could not have been aware of the finer distinctions between touching and
instead found guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight (8)
penetration. Consequently, it is improper and unfair to attach to this reply of a four (4)-year old child,
years four (4) months and ten (10) days of prision mayor medium as minimum, to fourteen (14) years ten
whose vocabulary is yet as underdeveloped as her sex and whose language is bereft of worldly
(10) months and twenty (20) days of reclusion temporal medium as maximum. Costs de oficio.
sophistication, an adult interpretation that because the penis of the accused touched her organ there was
sexual entry. Nor can it be deduced that in trying to penetrate the victim's organ the penis of the accused
touched the middle portion of her vagina and entered the labia of her pudendum as the prosecution failed SO ORDERED.1âwphi1.nêt
to establish sufficiently that Primo made efforts to penetrate Crysthel. 22 Corazon did not say, nay, not even
hint that Primo's penis was erect or that he responded with an erection. 23 On the contrary, Corazon even
narrated that Primo had to hold his penis with his right hand, thus showing that he had yet to attain an
erection to be able to penetrate his victim.

Antithetically, the possibility of Primo's penis having breached Crysthel's vagina is belied by the child's
own assertion that she resisted Primo's advances by putting her legs close together; 24 consequently, she did
not feel any intense pain but just felt "not happy" about what Primo did to her. 25 Thus, she only shouted
"Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where penetration was not fully established, the Court
had anchored its conclusion that rape nevertheless was consummated on the victim's testimony that she felt
pain, or the medico-legal finding of discoloration in the inner lips of the vagina, or the labia minora was
already gaping with redness, or the hymenal tags were no longer visible. 26 None was shown in this case.
Although a child's testimony must be received with due consideration on account of her tender age, the
Court endeavors at the same time to harness only what in her story appears to be true, acutely aware of the
equally guaranteed rights of the accused. Thus, we have to conclude that even on the basis of the testimony
of Crysthel alone the accused cannot be held liable for consummated rape; worse, be sentenced to
death.1âwphi1

Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no external
signs of physical injuries on complaining witness' body to conclude from a medical perspective that
penetration had taken place. As Dr. Aurea P. Villena explained, although the absence of complete
penetration of the hymen does not negate the possibility of contact, she clarified that there was no medical
basis to hold that there was sexual contact between the accused and the victim. 27

In cases of rape where there is a positive testimony and a medical certificate, both should in all respects
complement each other; otherwise, to rely on the testimonial evidence alone, in utter disregard of the
manifest variance in the medical certificate, would be productive of unwarranted or even mischievous
results. It is necessary to carefully ascertain whether the penis of the accused in reality entered the labial
threshold of the female organ to accurately conclude that rape was consummated. Failing in this, the thin
line that separates attempted rape from consummated rape will significantly disappear.

Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender
commences the commission of rape directly by overt acts, and does not perform all the acts of execution
which should produce the crime of rape by reason of some cause or accident other than his own
spontaneous desistance. All the elements of attempted rape — and only of attempted rape — are present in
the instant case, hence, the accused should be punished only for it.

The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense
charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower is reclusion
temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the
Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstance, the

54

G.R. No. L-21860 February 28, 1974
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VIOLETO VILLACORTE, alias BONGING, et al., defendants. CRISANTO INOFERIO Y
ALINDAO alias SANTE, and MARCIANO YUSAY alias MANCING (appeal withdrawn res. of
7/10/67), defendants-appellants.
FERNANDEZ, J.:p
The charge in this case was for robbery with homicide and the penalty imposed upon the appellant
Crisanto Inoferio and his co-accused Violeto Villacorte and Marciano Yusay was reclusion perpetua and
the payment of indemnity to the heirs of the deceased Benito Ching in the sum of P6,000.00. This case is
now before this Court only on the appeal of Inoferio, because although the lower court convicted him and
his co-accused Villacorte and Yusay (Alfredo Handig, a fourth accused was acquitted), Villacorte did not
appeal, while the appeal of Yusay was withdrawn upon his motion which was granted by this Court on July
10, 1967.
In the evening of August 27, 1959, Benito Ching, a Chinese merchant, left his sari-sari store in the public
market of Caloocan1 to go home, bringing with him the proceeds of his sales of the day which were placed
in a paper bag. He was accompanied by his two employees, Pedro Libantino and Modesto Galvez, who
acted as his bodyguards. On the way towards his home located at 133 F. Roxas, Grace Park, Caloocan,
Benito Ching and his two companions were accosted by four persons near the corner of an alley at F.
Roxas street. At that time, Libantino was some three or four meters in front of Ching, while Galvez was
walking directly behind the Chinese merchant.
One of the holduppers pointed a .45 cal. pistol at Ching. Another placed his left arm around the neck of
Galvez, while the third held both his arms. The first who pointed a pistol at Ching snatched from him the
paper bag containing the money. The fourth got that paper bag from the snatcher.
Ching shouted for help, crying aloud "Pedie, Pedie"; his companion Libantino turned around to respond to
his employer's call; but upon seeing the bag snatcher pointing a pistol at Ching, Libantino fled. When
Ching shouted: "Pedie, Pedie," the pistol-holder fired at him. Galvez, Ching's other companion, was able to
free himself from two of the holduppers holding him, and he too ran away. Ching fell down sprawled on
the street and the four holduppers ran away. Benito Ching, notwithstanding his wound, was able to walk,
staggering towards his home. His common-law wife immediately called for a taxicab, brought Ching to the
North General Hospital in Manila where he died the following day.
Later that evening when Galvez was interrogated by police officers of Caloocan who were investigating
the incident, the interrogation proved fruitless for Galvez was able to furnish the investigators any
information on the identities of the holduppers. But when investigated by the CIS, Philippine
Constabulary, at Camp Crame on September 11, 1959, Galvez declared that Ching was accosted by three
persons, one of them pointing his pistol at the right ribs of his employer. He identified the gunman as
Violeto Villacorte alias Bonging and even described the shirt and pants the gunman was then wearing. He
could not identify the two other companions of Villacorte.
Libantino, when examined by the investigators of the Caloocan police department on the same night of
August 27, 1959, declared that the holdup and shooting incident took place in a dark "kalyehon" and that
he could not identify the gunman nor the latter's companions. But, in his written statement taken by the
CIS at Camp Crame, Quezon City on September 11, 1959, he declared positively that he saw Violeto
Villacorte alias Bonging as the person who grabbed the paper bag containing money from Ching and fired
a pistol at Ching. He further said that aside from Villacorte he saw three other persons, two of them were
holding the hands of his companion, Galvez. He admitted however, that he could not recognize the two
persons who were holding Galvez.
Villacorte who, in the meantime, had been positively identified by Galvez and Libantino as the bag
snatcher and as the gunman who shot down Ching, when interrogated by the investigators of the Criminal
Investigation Service at Camp Crame on September 12, 1959 admitted that he was the one who snatched
the paper bag from Benito Ching and shot him. He identified his companions as "Roque", "Sante" and
"Fred".
In the information for robbery with homicide filed in the Court of First Instance of Rizal on September 12,
1959, Violeto Villacorte was so named therein; "Roque" and "Fred" were already identified as Roque
Guerrero and Alfredo Handig, respectively while "Sante" was not yet identified and was named "John Doe
alias Sante". On September 24 of the same year, the information was amended by changing the name of
the accused John Doe alias Sante to Crisanto Inoferio y Alindao; and another person, Marciano Yusay, was
included among the accused. Before the trial, upon motion, the trial court discharged Roque Guerrero to be
used as a State witness.
As already above stated, the trial court, in its decision of May 15, 1963, acquitted Handig, convicted
Villacorte who did not appeal, and Yusay who appealed but who withdrew his appeal, and Inoferio who
pursued his appeal.
Upon a careful review of the evidence, We hold that the accused-appellant Crisanto Inoferio should be
acquitted upon the ground that although his defense, in the nature of an alibi, is inherently a weak defense,
it should be considered sufficient as in this case, to tilt the scale of justice in favor of the accused because
the evidence for the prosecution is itself weak and unconvincing and, therefore, by and large, insufficient
to prove the guilt of the accused beyond reasonable doubt.
Only Modesto Galvez and the State witness, Roque Guerrero, identified the appellant Inoferio as one of
the holduppers. So, let us now review and analyze their testimonies, especially insofar as they refer to
Inoferio, on the one hand, and the evidence of Inoferio, on the other.
At the time he testified in Court, Modesto Galvez was 21 years old, married and unemployed. In synthesis,
he declared that: In August, 1957, he was working as a helper in the store of Benito Ching inside the
market in Grace Park. Between 7 and 8 o'clock in the evening of August 27 that year, he and another store
helper, Pedro Libantino accompanied Ching in going home. While they were at F. Roxas Street, they were
waylaid by four men.2
He was able to recognize two of them, namely Villacorte and the herein appellant Crisanto Inoferio who
were pointed to by him in open court. Villacorte snatched the bag from Benito Ching and fired at him once.
The bag contained money. Two persons held him. Inoferio was one of them. He did not know the other
one. Inoferio held him, Inoferio was behind and to the right of Galvez, placing his left hand over the nape
of the latter. He was able to recognize Inoferio because he looked at his left, removed his hand around the
front part of his neck, and he saw tattoo on his forearm. It was the figure of a woman with a bird. The place
where they were waylaid was bright. 3
55
On cross examination, Galvez admitted that he saw accused-appellant Inoferio for the first time only on
that night of August 27, 1959. The place was lighted from two electric posts; one in the alley and the other
east of the alley, corner of the alley and F. Roxas street. He was scared at the time he was held up. When he
was held by two persons, one at his back (by appellant Inoferio) and another at his front, he was scared. He
did not move nor run away until they released him. Inoferio was holding him with his left arm, held him
tight around the neck; it was difficult to unloose his hold; the left forearm was so close to his neck that he
could hardly breathe; and immediately after being released, he ran away. 4
On further cross examination, the witness testified: The morning following August 27, 1959, he went to the
police station in Caloocan. Three officers interrogated him. He was still scared and was not able to tell
them anything.5
On September 11, 1957, he was brought by some PC officers to the CIS office, Camp Crame. He was
interrogated by agents Rodolfo Estevez and Florencio Suela. They asked him to relate the details of the
incident as best as he could. His statement was taken down in writing. He signed that statement under oath
before Assistant Fiscal Castillo. The last question asked of him was: "Do you have anything more to say?"
And his answer was: "No more". In that investigation, he said that he saw only three holduppers. In that
sworn statement, although he did not mention the name of Inoferio, he stated that he saw a tattoo on the
arm of the person who held his neck that night. His sworn statement consisting of two pages has been
marked as Exh. "1-Inoferio".
Reading the sworn statement of Modesto Galvez (Exh. "1-Inoferio"), it appears that it was taken on
September 11, 1959 but subscribed and sworn to before Assistant Fiscal Jose Castillo on September 12,
1959. It is a fact that in this statement, he mentioned that they were held up only by three persons. But,
contrary to his statement in Court, he did not mention in this sworn statement (Exh. "1-Inoferio") that the
one who held him by the neck had a tattoo on his arm.
Let us now go to the testimony of Roque Guerrero. On direct examination, he declared: He knows the
accused Violeto Villacorte. He had known him for a long time already. He knows the accused Alfredo
Handig. He also knows the accused Crisanto Inoferio alias "Sante". He came to know him because they
used to play cara y cruz in 1959. As far as he knows, Crisanto Inoferio is a Visayan. He also knows the
accused Marciano Yusay.
In July, 1959, while he was driving a tricycle, Violeto Villacorte called him and asked if he wanted to make
some money by waylaying somebody. He did not agree and he continued driving the tricycle. After two
weeks, they saw each other again when he was driving a tricycle. Villacorte again asked him if he wanted
to make some money. He did not agree. Then, in the afternoon of August 29, 1959, Villacorte met him
again. His companions then were Alfredo Handig, Marciano Yusay and "Sante". Villacorte asked him if he
was not really going with them. His answer was how could he go when "Sante" did not want to tell him the
person to be waylaid. Handig told him to go. "Sante" also told him that he go with them. Yusay even pulled
out his .45 caliber gun and threatened him, telling him: "Don't be afraid, this is what we are going to use."
Guerrero told them that he could not go with them because "he is my kuya," referring to Benito Ching.
When Villacorte told him that they were going to rob Ching, he left them but Alfredo Handig and "Sante"
followed him. They told him that they would kill him if he would approach anybody. He continued driving
his tricycle but they followed him. They left already however at about 7 o'clock that evening.6
On cross examination, Guerrero declared: At the time he met "Sante", he was dressed in long sleeve — he
was always wearing long sleeve shirt in the same manner that he was dressed while Inoferio was in Court
at the time this witness was cross examined.7
On the night of August 8, 1959, he was arrested in connection with an attempt to rob the store of Benito
Ching. He was prosecuted for vagrancy and he pleaded guilty. He was sentenced to ten days imprisonment.
Subsequently, he was charged with attempted robbery. When investigated by the CIS agents, he did not
reveal to them anything. He gave a written statement at Camp Crame on September 21, 1959. In that
statement, he told "the entire truth of what you (Guerrero) knew about the entire case." 8 In this statement,
Guerrero mentioned only "Sante" as among those who talked to him, but did not mention his name
Crisanto Inoferio.
The appellant Crisanto Inoferio, testifying in his defense, stated that he was 39 years old, single, house
painter, and a resident of 1691 Alvarez St., Sta. Cruz, Manila.9 He came to know the accused Violeto
Villacorte for the first time only in Camp Crame on September 12, 1959. He came to know the accused
Alfredo Handig for the first time also on September 12, 1959 but in the Caloocan Police Department. He
came to know the accused who became a State witness, Roque Guerrero, for the first time sometime before
August, 1959 at Caloocan. He used to ride in his tricycle and they often played cara y cruz together. 10
He had been to the CIS office at Camp Crame two times. The first was on September 12, 1959. In the
morning of that date, he was invited by the policemen of Caloocan to go to their headquarters. He was
made to wait there because some CIS agents would come. They came at about 1 to 2 o'clock in the
afternoon. The Caloocan police officers and the CIS agents talked to each other. After a while, the CIS said
that they would bring him to their headquarters. The Caloocan police officers answered that they
themselves would take him to Camp Crame which they did. They were Pat. Cadoy, Cpl. Mauricio and
another police lieutenant whom he did not know. He was brought to the CIS headquarters at Camp Crame
at about 3 o'clock already that afternoon. 11
When he, Inoferio, was brought upstairs, the accused Villacorte was going down. He did not mind him
because he did not know him then. Upon reaching the office of Capt. Calderon, he was made to sit down.
Later on, Villacorte and his companion came in. His companion asked Villacorte if he knew him (Inoferio)
and Villacorte answered in the negative. He was also asked if he knew Villacorte and his answer was in the
negative. Then the accused Handig was brought and in the confrontation, both of them stated that they did
not know each other. 12
Then he was brought to another room by the CIS agent who said: "You are lucky you don't know those
people. "After that, he told them that he was not "Sante" because his nickname was "Santing." 13
Towards the afternoon, he was given food to eat. While he was eating, the Caloocan policemen told him
not to finish eating anymore as they were going home. And they left Camp Crame at about past 6 o'clock
in the afternoon of September 12, 1959. When they reached Grace Park, Caloocan, the Policemen told him
to go home because he had no case. 14
The second time he was at Camp Crame was on September 21, 1959. At about 2 o'clock in the afternoon,
some CIS agents went to his house and upon their invitation, he went with them to Camp Crame. They
arrived there at about 5 o'clock in the afternoon. While they were walking at the corridor, they saw Capt.
Calderon talking with Roque Guerrero. The CIS agent asked him if he knew Guerrero and he said yes.
Guerrero was asked if he knew him and he answered in the affirmative. Then he was brought to a cell at
the groundfloor. At about 6 o'clock in the afternoon, CIS agent Morales came and brought him upstairs. He
was asked if he was drinking wine and when he answered in the affirmative, wine was brought. Morales
opened the bottle and he was asked to drink. While he was drinking, Morales told him: "I want to help you
but you also help me." His answer was: "What help can I do?" And the reply was: "I'll make you a witness
for the government." He asked Morales what he would testify and the answer was: "At the trial, point to
Violeto Villacorte, Alfredo Handig and Roque Guerrero as the persons who robbed the Chinese and that
they were inviting you to join them." His answer was: "That is bad Mr. Morales. I do not know anything
about the case you are talking about. I even do not know Alfredo Handig and Violeto Villacorte." Morales
stood up, took him downstairs and told him to think about the matter. He was again brought to his cell. 15
The following morning, after Inoferio had just taken his breakfast, Morales came and told him: "What
about the matter we talked about last night, have you come to think about it?" He said: "I am sorry, I
cannot do what you are asking me." Then Morales replied: "You might regret, I can also secure another
witness," and he left. At about 11 o'clock that morning, Morales returned with somebody named Galvez
56
whom he did not know. Morales then told him to take off his clothes. After he had taken off his shirt, With respect to the herein appellant Crisanto Inoferio, the evidence of the prosecution to the effect that he
Morales saw the tattoo on his arms (anterior portion of his left forearm). Morales then told him to show his was one of the holduppers is weak and unconvincing.
arm with the tattoo to Galvez. After a few minutes, Morales and Galvez left. At about 5 o'clock in the
afternoon, Morales came, brought him out of his cell and conducted him upstairs. While they were inside a
In the investigations conducted by the Caloocan Police Department, both Modesto Galvez and Pedro
room, Morales asked him questions which he, the latter, typed. Whenever he would not be able to answer
Libantino never mentioned appellant Inoferio as one of those who either planned or executed the robbery
Morales, Morales would slap him. Morales even tied his belt around his neck and whenever he could not
and killing although the name of Villacorte was mentioned by Libantino. In the examination conducted by
answer the questions, Morales would just pull the belt. After the questioning by Morales in that afternoon
the CIS investigators at Camp Crame, again Inoferio's name was never mentioned by both prosecution
of September 22, 1959, he was made to sign his statement. At that time, Capt. Calderon was passing by the
witnesses although Villacorte's and Yusay's names were now mentioned and linked to the crime.
corridor. Then he was placed in his cell. 16

When the accused Villacorte was subjected to a thorough investigation by the CIS agents, he admitted his
The next day, he was brought out his cell, was brought to the stockade and then afterwards, to the
part in the planning and in the commission of the crime and named Marciano Yusay, Alfredo Handig and a
provincial jail in Pasig. 17
certain "Sante". Again, Inoferio at this stage of the investigation had as yet to be linked to this person
called "Sante" and to the crime.
Inoferio categorically denied the testimony of Roque Guerrero that he was with Handig, Yusay, and
Villacorte on August 27, 1959, and that before that date, he and his companions were inviting him
In court, Libantino never identified Inoferio. More than that, he contradicted Galvez, for while the latter
(Guerrero) to join them to holdup somebody. And the reason why Roque Guerrero testified against him
testified that the man who had his arm around his neck was Inoferio, Libantino who was the one face to
was that Guerrero thought that he was arrested because Inoferio pointed to him when they met at Camp
face with the man who had his arm around Galvez, said that it was the accused Marciano Yusay. 23 And
Crame. But Inoferio said that he pointed to Guerrero only when he was asked by the CIS where Guerrero
Libantino declared that the place where the holdup and the shooting incident took place was in a dark
was. 18
"kalyehon," that was why he could not identify the gunman nor the latter's companions. This contradicts
the testimony of Galvez that the place where the holdup and the shooting took place, was lighted from
Inoferio denied the testimony of Galvez that he (Inoferio) was one of those that embraced him (Galvez) electric posts. Libantino said that these two electric posts were quite far from the scene of the crime; they
during the holdup. 19 He categorically stated that he had not known Galvez nor have met him prior to were 10 meters away.
August 27, 1959. He came to know Villacorte for the first time on September 12, 1959 when they met at
the stairway of a building Camp Crame where he was interrogated. It was while he was coming up said
And as we consider the testimony of Modesto Galvez, even by itself, we conclude that he was not able to
stairway when he met Violeto Villacorte for the first time. Villacorte was then coming down the stairs. He
see the face of the man who held him around his neck and therefore could not possibly identify him. He
admitted that before August, 1959, he already knew Roque Guerrero. 20
was scared at the time. The one holding him by the neck was at his back. And immediately after he was
released, he ran away.
Violeto Villacorte, the person identified as the bag snatcher and the one who shot Benito Ching, declared:
He came to know Crisanto Inoferio for the first time when he met at Camp Crame on September 12, 1959.
Let us now go to the telltale tattoo, the figure of a woman with a bird, on the left forearm of Inoferio. Yes,
Before August 27, 1959, he had not yet met Inoferio. 21
Inoferio has that tattoo. And according to Galvez, the one who held him around his neck was Inoferio
because he saw the tattoo of Inoferio when he looked at his left and tried to remove the arm of the man
Another co-accused, Alfredo Handig, testified that he came to know Crisanto Inoferio for the first time on holding him by his neck. But any other person could have that kind of a tattoo, the figure of a woman with
September 12, 1959 in the municipal building of Caloocan. He categorically declared that prior to this a bird. But it may be asked: How did Galvez come to know that Inoferio had that tattoo? The answer is
date, he did not know said Crisanto Inoferio. 22 furnished by the testimony of Inoferio. We have taken pains to give the synthesis of his entire testimony,
and we are satisfied that he told the truth, particularly on the point that when he was brought to Camp
Crame for the second time on September 21, 1959, he was told to remove his clothes and show his arm
By way of background to our findings of facts which justify the acquittal of appellant Inoferio, we now
with the tattoo to Galvez.
recapitulate the evidence against the accused Violeto Villacorte, Marciano Yusay, and Alfredo Handig.

On top of all of these, there is the testimony in open court by Galvez that as early as September 11, 1959,
Violeto Villacorte was positively identified by prosecution witnesses Libantino and Galvez. And in an
when he was investigated at the CIS office in Camp Crame, he already stated and specifically in his sworn
extrajudicial statement secured from him by CIS investigators and which he signed and swore to before the
statement given on that date but subscribed and sworn to before Assistant Fiscal Castillo the following day,
Assistant Fiscal of Rizal in Pasig, Villacorte admitted his role as mastermind of the plan to waylay Benito
that the one who held him by the neck had a tattoo on his arm. We have gone over this written sworn
Ching and his having grabbed the paper bag containing the proceeds of the sales of the sari-sari store of the
statement and we do not see any mention therein by Galvez of a tattoo on the arm of person that held him.
Chinaman. He likewise admitted responsibility for firing the pistol that snuffed the life of Benito Ching.

And how could Galvez have seen the tattoo on the arm of the man who held him by the neck when
Marciano Yusay was equally identified positively by Pedro Libantino and Modesto Galvez as one of those
according to Guerrero, "Sante" was dressed in long sleeve in the afternoon of the holdup (the prosecution
present when Villacorte was planning the holdup and at the time of the holdup. And in the ante
would want to prove that "Sante" is the accused Crisanto Inoferio).
mortem statement of Benito Ching made to his wife Candida Pasion, he said that Marciano Yusay was one
of those who held him up.
Therefore, the authorities cited by the prosecution that written statements of witnesses to police authorities
are usually sketchy and incomplete; that as a matter of fact, it is natural for even material matters to be left
Alfredo Handig, on the other hand, although mentioned by accused Villacorte as one of his companions in
out when a person gives a sworn statement during a criminal investigation, do not here apply. The fact is
the planning and in the execution of the robbery, prosecution witnesses Libantino and Galvez never
that Galvez told a lie when he said that in his written statement he declared that the man who held him had
identified him positively because of which he was acquitted by the trial court.
a tattoo.

57
How about the testimony of Roque Guerrero, the second and the only other witness linking the appellant WHEREFORE, the decision appealed from convicting the accused-appellant Crisanto Inoferio is hereby
Inoferio to the robbery holdup in question? He was not there at the scene of the crime. All that he said was reversed and he is hereby acquitted with costs de oficio. It appearing that he is at present detained at the
that he was asked three times before the robbery holdup took place to go with the holduppers. But New Bilibid Prisons at Muntinlupa, his immediate release is hereby ordered. So ordered.
Villacorte, Yusay and Handig denied this testimony of Guerrero. And of course, Inoferio also denied it.

But what is most significant is the fact that all along, he was referring to "Sante" as the one who was with
the group when he was asked to join them in the robbery holdup. As early as in his written statement given
at Camp Crame on September 21, 1959, he referred to one of the holduppers as "Sante"; he never
mentioned therein the name of Crisanto Inoferio; and yet it is a fact, admitted by both Guerrero and
Inoferio, that they had known each other long before the robbery holdup took place on August 27, 1959.
Therefore, if Inoferio was the "Sante" with the group of the holduppers, Guerrero should have referred to
him as Inoferio in his written statement of September 21, 1959.

And Crisanto Inoferio is not "Sante". He is the best witness to testify on his nickname and he said that his
nickname is "Santing".

Furthermore, this witness Guerrero has very poor credentials as far as his credibility is concerned. He was,
at the time he testified, 18 years old, single and unemployed. And on cross examination, he admitted that
on August 1959, he was arrested in an attempt to rob the store of Benito Ching; he was prosecuted for
vagrancy; pleaded guilty and sentenced to ten days imprisonment. Subsequently, he was charged with
attempted robbery.

And assuming that appellant Inoferio was the "Sante" who took part in the planning of the robbery holdup
in question, which is not the fact in this case, that in itself would not make him incur any criminal liability
if later on there is not that sufficient evidence to prove that he actually took part in the robbery holdup. For
after taking part in the planning, he could have desisted from taking part in the actual commission of the
crime by listening to the call of his conscience. This exempts him from criminal liability whatsoever.

Against the weak and unconvincing evidence of the prosecution regarding appellant Inoferio are his
testimony and those of the witnesses who corroborated him.

At the time he testified, Inoferio was 39 years old, single, and a house painter. The flow of events as
related by him in his testimony, a synopsis of which we have already given earlier, is so natural and
convincing as to set at ease the mind and the conscience of the Court that he was telling the truth. He
denied any participation in the robbery holdup in question. Moreover, that he did not know co-accused
Villacorte and Handig at the time the crime was committed on August 27, 1959. He came to know them
only when these two were already arrested, a fact corroborated by Villacorte and Handig. Even at the
confrontation before police officers and CIS agents, Inoferio, on one hand, and his two co-accused, on the
other, already denied having known each other earlier.

The motive of Guerrero in testifying against Inoferio was explained by the latter, and that is, that Guerrero
thought, when Inoferio pointed to him at Camp Crame that Inoferio was implicating Guerrero in the
robbery holdup. And Galvez, who never implicated Inoferio when investigated by the Caloocan police
officers in the evening of August 27, 1959 and when investigated by the CIS Camp Crame on September
11, 1959, must have based his testimony in court, where he identified Inoferio, on the erroneous
information supplied to him that "Sante" (one of the holduppers) was Inoferio.

This is good a time as any to emphasize the fact that courts should not at once look with disfavor at the
defense of alibi. Although inherently weak and easily fabricated, the evidence presented by an accused in
support of that defense must be scrutinized with the same care that evidence supporting other defenses
deserves. When an accused puts up the defense of alibi, the court should not at once have a mental
prejudice against him. For, taken in the light of all the evidence on record, it may be sufficient to acquit
him, as in the case of appellant Inoferio.

58

G.R. No. L-19069 October 29, 1968
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AMADEO PERALTA, ET AL., defendants,
ANDRES FACTORA, LEONARDO DOSAL, ANGEL PARUMOG, AMADEO PERALTA,
FLORENCIO LUNA and GERVASIO LARITA, defendants-review.
Assistant Solicitors General Vicente A. Torres and Antonio Ibarra for plaintiff-appellee.
J. R. Nuguid for defendants-review.
PER CURIAM:
In the decision in criminal case 7705 of the Court of First Instance of Rizal,subject of the present
automatic review, Amadeo Peralta, Andres Factora, Leonardo Dosal, Angel Parumog, Gervasio
Larita and Florencio Luna (six among the twenty-two defendants1 charged therein with multiple murder)
were pronounced guilty, and all sentenced to death, to indemnify jointly and severally the heirs of each of
the victims, namely, Jose Carriego, Eugenio Barbosaand Santos Cruz, in the sum of P6,000, and each to
pay his corresponding share of the costs.
The information recites:
That on or about the 16th day of February, 1958, in the municipality of Muntinglupa, province
of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed
accused, who are convicts confined in the New Bilibid Prisons by virtue of final judgments,
conspiring, confederating and mutually helping and aiding one another, with evident
premeditation and treachery, all armed with deadly weapons, did, then and there, willfully,
unlawfully and feloniously kill Jose Carriego, Eugenio Barbosa and Santos Cruz, also convicts
confined in the same institution, by hitting, stabbing and striking them with ice picks, clubs and
other improvised weapons, pointed and/or sharpened, thereby inflicting upon the victims
multiple serious injuries which directly caused their deaths.
That the aggravating circumstance of quasi-recidivism is present in the commission of the
crime in that the crime was committed after the accused have been convicted by final
judgments and while they are serving the said judgments in the New Bilibid Prisons.
Contrary to law with the following aggravating circumstances:
1. That the crime was committed with insult to public authorities;
2. That the crime was committed by a band;
3. That the crime was committed by armed men or persons who insure or afford impunity;
4. That use of superior strength or means was employed to weaken the defense;
5. That as a means to the commission of the crime doors and windows have been broken;
6. That means was employed which add ignominy to the natural effects of the act;
7. That the crime was committed where public authorities were engaged in the discharge of
their duties.
Upon motion of the provincial fiscal before trial, the lower court dismissed the charge against one of the
accused2for lack of evidence. After the prosecution had rested its case, the charges against six of the
accused3 were dismissed for failure of the prosecution to establish a prima facie case against them. One of
the defendants died4during the pendency of the case. After trial, the court a quo acquitted eight5 of the
remaining defendants.
As early as in 1956, a great number of inmates confined in the national penitentiary at Muntinglupa
arrayed themselves into two warring gangs, the "Sigue-Sigue" and the "OXO", the former composed
predominantly of Tagalog inmates, the latter comprised mainly of prisoners from the Visayas and
Mindanao. Since then the prison compound has been rocked time and time again by bloody riots resulting
in the death of many of their members and suspected sympathizers. In an effort to avert violent clashes
between the contending groups, prison officials segrerated known members of the "Sigue-Sigue" from
those of the "OXO". Building 1 housed "Sigue-Sigue" members, while a majority of the prisoners confined
in Bldg. 4 belonged to the "OXO". Even in Bldg. 4, which is composed of four brigades, namely, 4-A and
4-B (upper floor) and 4-C and 4-D (first floor), inmates from Visayas and Mindanao, from whom the
"OXO" drew most of its members, were confined in 4-A.
It was at about 7:00 a.m. on February 16, 1958, while the inmates of the penitentiary were preparing to
attend Sunday mass, that a fight between two rival members of the "Sigue-Sigue" and "OXO" gangs
occurred in the plaza where the prisoners were assembled, causing a big commotion. The fight was,
however, quelled, and those involved were led away for investigation, while the rest of the prisoners were
ordered to return to their respective quarters. Hardly had conditions returned to normal when a riot broke
out in Bldg. 1, a known lair of the "Sigue-Sigue". The inmates thereof tried to invade Bldg. 4, where many
members and sympathizers of the "OXO" gang were confined. The timely arrival of the guards forced the
invading inmates to retreat and return to Bldg. 1. Moments later, another riot erupted in Bldg. 4, as the
inmates of brigade 4-A destroyed the lock of their door and then rampaged from one brigade to another.
The invading prisoners from 4-A, mostly "OXO" members and sympathizers, clubbed and stabbed to death
Jose Carriego, an inmate of 4-B. Afterwards, they forcibly opened the door of 4-C and killed two more
inmates, namely, Eugenio Barbosa and Santos Cruz.
The three victims sustained injuries which swiftly resulted in their death — before they could be brought
to the hospital.
Jose Carriego: (a) lacerated wound on the lower lip, 5 cm. in length and 3 cm.in depth; (b) contusion and
hematoma of the back of the neck, about 2 inches in diameter; and (c) five punctured wounds in the chest,
penetrating the lungs. Cause of death: internal hemorrhage from multiple fatal wounds in the chest.
Eugenio Barbosa: (a) lacerated wound in the occipital region, 3 inches in length and 1 cm. in depth; (b)
two penetrating wounds in the abdomen, puncturing the intestines; (c) lacerated wounds on the right oxilla,
3 cm. in length and 2 cm. in depth; and (d) several bruises at the right and left lower extremities. Cause of
death: shock, secondary to internal hermorrhage in the abdomen.
Santos Cruz: (a) lacerated wound on the head, 2 inches in length; (b) fractured skull; (c) wound on the
upper lip cutting the lip in two; (d) seven punctured wounds in the chest, two of which were penetrating;
(e) hematoma on the right hand; and (f) three punctured wounds on the left hand. Cause of death: fractured
skull.
59
Romeo Pineda, an inmate and first quarter-in-charge of brigade 4-B, testified that while he was taking his
breakfast with Jose Carriego, who was at the time the representative of the prisoners confined in 4-B to the
inmate carcel, he "suddenly heard commotion" near the door of their brigade; that his fellow prisoners
started shouting "pinapasok na tayo," as the invading inmates from brigade 4-A stampeded into 4-B; that
he and Carriego took hold of their clubs and stood at the end of the passageway; that he saw Carriego
surrender his club to Andres Factora, an "OXO" member from 4-A; that as Carriego started to walk away,
Factora clubbed Carriego on the nape causing the latter to fall; that Factora turned up the face of his fallen
victim and struck him again in the face; that while Carriego was in this prostrate position, Amadeo Peralta
and Leonardo Dosal, companions of Factora, repeatedly stabbed him.
The testimony of Pineda was corroborated in all its material points by Juanito Marayoc and Avelino Sauza,
both inmates of 4-B. These two prosecution witnesses identified Factora, Peralta and Dosal as the
assailants of Carriego.
From 4-B, the invading inmates of 4-A went down and forcibly entered 4-C. According to Oscar Fontillas,
an inmate of 4-C, he saw the prisoners from 4-A rushing toward their brigade; that among the invading
inmates who forced open the door of 4-C, with help from the inside provided by Visayan prisoners
confined in 4-C, were Factora, Dosal, Angel Parumog, Gervacio Larita, Ernesto Fernandez and Jose
Tariman; that he saw Factora, Larita and Fernandez kill Barbosa, while the rest of their companies
instructed the Visayans to leave their cell and ordered the "Manila boys" (Tagalogs) to remain. Antonio
Pabarlan, another inmate of 4-C, declared that he saw Peralta stab Barbosa, as Dosal, Larita, Florencio
Luna, Parumog and Factora clubbed the hapless victim. Another inmate of 4-C, Jose Halili, not only
corroborated the testimony of Fontillas and Pabarlan but as well added grim details. He declared that while
Barbosa was trying to hide under a cot, he was beaten and stabbed to death by Dosal, Parumog, Factora
and Fernandez, with Luna, Larita, Pedro Cogol and Eilel Tugaya standing guard, armed with clubs and
sharp instruments, in readiness to repel any intervention from the Tagalog inmates. Carlos Espino, also
confined in 4-C, declared that he saw Parumog, Peralta Factora and Larita assault and kill Barbosa.
The same witnesses for the prosecution testifies that after killing Barbosa, the invading "OXO" members
and sympathizers proceeded to hunt for Santos Cruz, another Tagalog like Carriego and Barbosa. Halili
testified, that he saw Peralta, Larita, Cogol and Tugaya take Santos Cruz to 4-A from 4-C; that Santos Cruz
knelt down and pleaded for his life, saying, "Maawa kayo sa akin. Marami akong anak;" that Luna and
Peralta were unmoved as they stabbed Santos Cruz to death. Pabarlan declared that after the death of
Barbosa, Santos Cruz was brought to 4-A by the invading inmates but Cruz was able to slip back to his cell
only to be recaptured by Factora, Dosal and Luna and brought to near the fire escape where he was
clubbed and stabbed to death by Parumog, Dosal, Factora and Peralta. Fontillas and Espino corroborated
the declarations of Halili and Pabarlan with respect to the killing of Santos Cruz, and both mentioned
Larita as one of the assailants of Cruz.
The trial judge summarized the evidence for the prosecution, thus:
"... it clearly appears that the three killings in question were an offshoot of the rivalry between
the two organizations. All those who were killed, namely, Barbosa, Carriego and Santos Cruz,
were Tagalogs and well known as members if not sympathizers of the Sigue Sigue, while the
accused so charged with their killing were mostly members if not sympathizers of the Oxo
organization. These three killings were sparked by the commotion that happened in the plaza
between 8:00 and 9:00 in the morning, while the prisoners were preparing to go the mass ... It
was evident that the clash that occurred in the plaza produced a chain reaction among the
members and followers of the two organizations. The inmates of Building No. 1, known lair of
the Sigue Sigues bolted the door of their cells and tried to invade Building No. 4 where a big
number of the Oxo members and their sympathizers were confined, but, however, were forced
to retreat by the timely arrival of the guards who sent them back to their building. When the
members of the Oxo in Building No. 4 learned about this, they went on a rampage looking for
members of the Sigue Sigue or their sympathizers who were confined with them in the same
building. As the evidence of the prosecution shows, the accused who were confined in Brigade
4-A of Building No. 4 led the attack. They destroyed the lock of their dormitories and with the
help of their companions succeeded in bolting the door of the different brigades, and once they
succeeded in bolting the doors of the different brigades, they went inside and tried to segregate
the Tagalogs from their group; that as soon as they discovered their enemies they clubbed and
stabbed them to death ...
Admitting that he was one among several who killed Jose Carriego, Peralta nevertheless claims self-
defense. He testified that on the morning of the riot he was attacked by Carriego and Juan Estrella near the
door of 4-A while he was returning to his brigade from the chapel with some companions; that Carriego
clubbed him on the head; that he was able to parry the second blow of Carriego and then succeeded in
squeezing Carriego's head with his hands; that forthwith he whipped out an improvised ice pick and
stabbed Carriego several times; that when he (Peralta) was already dizzy due to the head wound he
sustained from the clubbing, Carriego managed to slip away; that he then became unconscious, and when
he regained consciousness he found himself on a tarima with his head bandaged.
Peralta's declarations do not inspire belief. The impressive array of prosecution witnesses who saw him
actively participate in the killing of the three victims pointed to him as the aggressor, not the aggrieved.
Pineda, Marayoc and Sauza positively identified him as one of the assailants of Carriego. Contrary to the
pretensions of Peralta, Carriego an alleged "Sigue-Sigue" member, would not have attacked him, knowing
fully well that Building No. 4 was an "OXO" lair where the "Sigue-Sigue" members were outnumbered.
Anent the killing of Barbosa and Santos Cruz, Peralta failed to offer any explicit defense to rebut the
inculpatory declarations of prosecution witnesses Pabarlan and Espino who saw him participate in the
killing of Barbosa and those of Halili, Fontillas and Espino who identified him as one of the murderers of
Santos Cruz.
For his part, Leonardo Dosal stated that he killed Santos Cruz, but also claims self-defense in exculpation.
He declared that Santos Cruz, Jose Carriego, Juanita Espino, Carlos Espino and Oscar Fontillas invaded 4-
A where he was confined; that a free-for-all forthwith ensued; that he then heard Santos Cruz call Carlos
Espino, and advise the latter to go away as "I will be the one to kill that person (Dosal);" that with a sharp
instrument, Cruz hit him on the head and then on the nose; that as Cruz was about to hit him again, he got
hold of his ice pick and stabbed Cruz repeatedly until the latter fell.
Dosal's avowal is clearly belied by the positive testimonies of Pabarlan, Halili and Espino who saw him
participate in the killing of Santos Cruz. If it is true that Dosal killed Santos Cruz in self-defense when the
latter together with his companions supposedly invaded Dosal's brigade (4-A), why is it that the body of
Santos Cruz was found at the fire escape near the pasillo between 4-C and 4-D of the first floor of Bldg. 1
instead of in 4-A which is located in the upper floor? Moreover, Dosal failed to explain why he was seen in
4-C, which he does not deny, since he was an inmate of 4-A where he was allegedly attacked. With respect
to the murder of Carriego and Barbosa with which Dosal was also charged, he did not offer any evidence
in his behalf. Hence, the testimonies of Pineda, Marayoc and Sauza identifying him as one of the killers of
Carriego and those of Pabarlan, Halili and Espino implicating him in the death of Santos Cruz, stand
unrebutted.
Andres Factora declared that he clubbed Carriego and Santos Cruz under compulsion of his co-accused
who threatened to kill him if he disobeyed their order; that he did not hit Barbosa anymore because the
latter was already dead; that it was his co-accused who actually killed the three victims. Again, the
declarations of the prosecution witnesses, which were accorded full credence by the trial court, expose the
guilt of Factora beyond reasonable doubt. In fact, according to Pineda, whose testimony was corroborated
by Marayoc, it was Factora who started the mass assault by clubbing Carriego treacherously. Fontillas,
Halili, Pabarlan and Espino pointed to Factora as one of the killers of Barbosa, while at least three
prosecution witnesses, namely, Pabarlan, Fontillas and Espino, saw Factora participate in the slaying of
Santos Cruz. The active participation of Factora in the killing, which is clear index of voluntariness, thus
negates his claim of compulsion and fear allegedly engendered by his co-accused.
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Angel Parumog, Gervasio Larita and Florencio Luna take refuge in the exculpatory device of alibi.
Parumog testified that he did not participate in the killing of the three inmates because he stayed during
that entire hapless day in the office of the trustees for investigation after the fight in the plaza; that he was
implicated in the killing by the prosecution witnesses because of his refusal to accede to their request to
testify against his co-accused; that he is not a Visayan but a Tagalog from Nueva Ecija. Larita claims that
he did not know about the killing until he was informed that three inmates had died; that on the day in
question he was brought to the police trustee brigade for investigation after the incident in the plaza; that
he was escorted back to his brigade only in the afternoon. Luna likewise disclaims any knowledge of the
killing and asserts that for the entire duration of the riot he remained in his cell (brigade 4-A).
The alibis of Parumog, Larita and Luna merit no credence when set against the positive testimonies of
prosecution witness identifying them as participants in the killing of Barbosa and Santos Cruz. Pabarlan,
Espino and Fontillas declared that Larita was one of the killers of Barbosa; Espino and Fontillas declared
that they saw Larita kill Santos Cruz; Pabarlan, Halili and Espino testified that they saw Parumog
participate in the murder of Barbosa; Espino, Fontillas and Pabarlan stated that Parumog took part in the
killing of Santos Cruz. Pabarlan and Halili declared that Luna participated in the fatal assault on Barbosa
and Santos Cruz.
The alibis of the accused are thus sufficiently overcome by strong evidence to the contrary. The defense of
alibi is generally weak since it is easy to concoct. For this reason, courts view it with no small amount of
caution, and accept it only when proved by positive, clear and satisfactory evidence.6 In the case at bar, if
Parumog and Larita were really confined in the police trustee brigade for investigation on the day of the
incident, there should have been a record of the alleged investigation. But none was presented. The
testimony of Luna that throughout the riot he stayed in his cell is quite unnatural. He claims that he did not
even help his cellmates barricade their brigade with tarimas in order to delay if not prevent the entry of the
invading inmates. According to him, he "just waited in one corner."
The rule is settled that the defense of alibi is worthless in the face of positive identification by prosecution
witnesses pointing to the accused as particeps criminis.7 Moreover, the defense of alibi is an issue of fact
the resolution of which depends almost entirely on the credibility of witnesses who seek to establish it. In
this respect the relative weight which the trial judge accords to the testimony of the witnesses must, unless
patently inconsistent without evidence on record, be accepted.8 In the case at bar, the trial court, in
dismissing the alibis of Parumog, Larita and Luna, said that "their mere denial cannot prevail over the
positive testimony of the witnesses who saw them participate directly in the execution of the conspiracyto
kill Barbosa, Carriego and Santos Cruz."
The killing of Carriego constitutes the offense of murder because of the presence of treachery as a
qualifying circumstance: Carriego was clubbed by Factora from behind, and as he lay prostrate and
defenseless, Peralta and Dosal stabbed him repeatedly on the chest. The blow on the nape and the
penetrating chest wounds were all fatal, according to Dr. Bartolome Miraflor. Abuse of superior strength
qualified the killing of Barbosa and Santos Cruz to the category of murder. The victims, who were attacked
individually were completely overwhelmed by their assailants' superiority in number and weapons and had
absolutely no chance at all to repel or elude the attack. All the attackers were armed with clubs or sharp
instruments while the victims were unarmed, as so found by the trial court. In fact, Halili testified that
Barbosa was clubbed and stabbed to death while he was trying to hide under a cot, and Santos Cruz was
killed while he was on his knees pleading for his life.
The essential issue that next confronts us is whether conspiracy attended the commission of the murders.
The resolution of this issue is of marked importance because upon it depends the quantity and quality of
the penalties that must be imposed upon each of the appellants.
For this purpose, it is not amiss to briefly restate the doctrine on conspiracy, with particular emphasis on
the facets relating to its nature, the quantum of proof required, the scope and extent of the criminal liability
of the conspirators, and the penalties imposable by mandate of applicable law.
Doctrine. A conspiracy exists when two or more persons come to an agreement concerning the commission
of a felony and decide to commit it.9 Generally, conspiracy is not a crime except when the law specifically
provides a penalty therefor as in treason,10 rebellion11 and sedition.12 The crime of conspiracy known to the
common law is not an indictable offense in the Philippines.13 An agreement to commit a crime is a
reprehensible act from the view-point of morality, but as long as the conspirators do not perform overt acts
in furtherance of their malevolent design, the sovereignty of the State is not outraged and the tranquility of
the public remains undisturbed. However, when in resolute execution of a common scheme, a felony is
committed by two or more malefactors, the existence of a conspiracy assumes pivotal importance in the
determination of the liability of the perpetrators. In stressing the significance of conspiracy in criminal law,
this Court in U.S. vs. Infante and Barreto14 opined that
While it is true that the penalties cannot be imposed for the mere act of conspiring to commit a
crime unless the statute specifically prescribes a penalty therefor, nevertheless the existence of a
conspiracy to commit a crime is in many cases a fact of vital importance, when considered
together with the other evidence of record, in establishing the existence, of the consummated
crime and its commission by the conspirators.
Once an express or implied conspiracy is proved, all of the conspirators are liable as co-principals
regardless of the extent and character of their respective active participation in the commission of the
crime or crimes perpetrated in furtherance of the conspiracy because in contemplation of law the act of one
is the act of all.15 The foregoing rule is anchored on the sound principle that "when two or more persons
unite to accomplish a criminal object, whether through the physical volition of one, or all, proceeding
severally or collectively, each individual whose evil will actively contributes to the wrong-doing is in law
responsible for the whole, the same as though performed by himself alone."16 Although it is axiomatic that
no one is liable for acts other than his own, "when two or more persons agree or conspire to commit a
crime, each is responsible for all the acts of the others, done in furtherance of the agreement or
conspiracy."17 The imposition of collective liability upon the conspirators is clearly explained in one
case18 where this Court held that
... it is impossible to graduate the separate liability of each (conspirator) without taking into
consideration the close and inseparable relation of each of them with the criminal act, for the
commission of which they all acted by common agreement ... The crime must therefore in view
of the solidarity of the act and intent which existed between the ... accused, be regarded as the
act of the band or party created by them, and they are all equally responsible ...
Verily, the moment it is established that the malefactors conspired and confederated in the commission of
the felony proved, collective liability of the accused conspirators attaches by reason of the conspiracy, and
the court shall not speculate nor even investigate as to the actual degree of participation of each of the
perpetrators present at the scene of the crime. Of course, as to any conspirator who was remote from
the situs of aggression, he could be drawn within the enveloping ambit of the conspiracy if it be proved
that through his moral ascendancy over the rest of the conspirators the latter were moved or impelled to
carry out the conspiracy.
In fine, the convergence of the wills of the conspirators in the scheming and execution of the crime amply
justifies the imputation to all of them the act of any one of them. It is in this light that conspiracy is
generally viewed not as a separate indictable offense, but a rule for collectivizing criminal liability.
The ensnaring nature of conspiracy is projected in bold relief in the cases of malversation and rape
committed in furtherance of a common design.
The crime of malversation is generally committed by an accountable public officer who misappropriates
public funds or public property under his trust.19 However, in the classic case of People vs. Ponte20 this
Court unequivocally held that a janitor and five municipal policemen, all of whom were not accountable
public officers, who conspired and aided a municipal treasurer in the malversation of public funds under
61
the latter's custody, were principally liable with the said municipal treasurer for the crime of malversation.
By reason of conspiracy, the felonious act of the accountable public officer was imputable to his co-
conspirators, although the latter were not similarly situated with the former in relation to the object of the
crime committed. Furthermore, in the words of Groizard, "the private party does not act independently
from the public officer; rather, he knows that the funds of which he wishes to get possession are in the
latter's charge, and instead of trying to abstract them by circumventing the other's vigilance he resorts to
corruption, and in the officer's unfaithfulness seeks and finds the most reprehensible means of
accomplishing a deed which by having a public officer as its moral instrument assumes the character of a
social crime."21 In an earlier case22 a non-accountable officer of the Philippine Constabulary who conspired
with his superior, a military supply officer, in the malversation of public funds was adjudged guilty as co-
principal in the crime of malversation, although it was not alleged, and in fact it clearly appeared, that the
funds misappropriated were not in his custody but were under the trust of his superior, an accountable
public officer.
In rape, a conspirator is guilty not only of the sexual assault he personally commits but also of the separate
and distinct crimes of rape perpetrated by his co-conspirators. He may have had carnal knowledge of the
offended woman only once but his liability includes that pertaining to all the rapes committed in
furtherance of the conspiracy. Thus, in People vs. Villa,23 this Court held that
... from the acts performed by the defendants front the time they arrived at Consolacion's house
to the consummation of the offense of rape on her person by each and everyone of them, it
clearly appears that they conspired together to rape their victim, and therefore each one is
responsible not only for the rape committed personally by him, but also that committed by the
others, because each sexual intercourse had, through force, by each one of the defendants with
the offended was consummated separately and independently from that had by the others, for
which each and every one is also responsible because of the conspiracy.
The rule enunciated in People vs. Villa was reiterated in People vs. Quitain24 where the appellant Teofilo
Anchita was convicted of forcible abduction with double rape for having conspired and cooperated in the
sexual assault of the aggrieved woman, although he himself did not actually rape the victim. This Court
observed:
We have no doubt all in all that Teofilo Anchita took part in the sexual assault ... the accused
inserted his fingers in the woman's organ, and widened it. Whether he acted out of lewdness or
to help his brother-in-law consummate the act, is immaterial; it was both maybe. Yet, surely, by
his conduct, this prisoner conspired and cooperated, and is guilty.
With respect to robbery in band, the law presumes the attendance of conspiracy so much so that "any
member of a band who is present at the commission of a robbery by the band, shall be punished as
principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the
same."25 In this instance, conspiracy need not be proved, as long as the existence of a band is clearly
established. Nevertheless, the liability of a member of the band for the assaults committed by his group is
likewise anchored on the rule that the act of one is the act of all.
Proof of conspiracy. While conspiracy to commit a crime must be established by positive evidence,26 direct
proof is not essential to show conspiracy.27 Since by it nature, conspiracy is planned in utmost secrecy, it
can seldom be proved by direct evidence.28 Consequently, competent and convincing circumstantial
evidence will suffice to establish conspiracy. According to People vs. Cabrera,29 conspiracies are generally
proved by a number of indefinite acts, conditions, and circumstances which vary according to the purposes
to be accomplished. If it be proved that the defendants pursued by their acts the same object, one
performing one part and another another part of the same, so as to complete it, with a view to the
attainment of the same object, one will be justified in the conclusion that they were engaged in a
conspiracy to effect the object." Or as elucidated in People vs. Carbonel30the presence of the concurrence
of minds which is involved in conspiracy may be inferred from "proofs of facts and circumstances which,
taken together, apparently indicate that they are merely parts of some complete whole. If it is proved that
two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each
doing a part so that their acts, though apparently independent, were in fact connected and cooperative,
indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be
inferred though no actual meeting among to concert means is proved ..." In two recent cases,31 this Court
ruled that where the acts of the accused, collectively and individually, clearly demonstrate the existence of
a common design toward the accomplishment of the same unlawful purpose, conspiracy is evident.
Conspiracy presupposes the existence of a preconceived plan or agreement; however, to establish
conspiracy, "it is not essential that there be proof as to previous agreement to commit a crime, it being
sufficient that the malefactors committed shall have acted in concert pursuant to the same
objective."32 Hence, conspiracy is proved if there is convincing evidence to sustain a finding that the
malefactors committed an offense in furtherance of a common objective pursued in concert.
Liability of conspirators. A time-honored rule in the corpus of our jurisprudence is that once conspiracy is
proved, all of the conspirators who acted in furtherance of the common design are liable as co-
principals.33 This rule of collective criminal liability emanates from the ensnaring nature of conspiracy. The
concerted action of the conspirators in consummating their common purpose is a patent display of their
evil partnership, and for the consequences of such criminal enterprise they must be held solidarity liable.
However, in order to hold an accused guilty as co-principal by reason of conspiracy, it must be established
that he performed an overt act in furtherance of the conspiracy, either by actively participating in the actual
commission of the crime, or by lending moral assistance to his co-conspirators by being present at the
scene of the crime, or by exerting moral ascendancy over the rest of the conspirators as to move them to
executing the conspiracy. The difference between an accused who is a principal under any of the three
categories enumerated in Art. 17 of the Revised Penal Code and a co-conspirator who is also a principal is
that while the former's criminal liability is limited to his own acts, as a general rule, the latter's
responsibility includes the acts of his fellow conspirators.
In People vs. Izon, et al.,34 this Court acquitted appellant Francisco Robles, Jr., who was convicted by the
trial court of robbery with homicide as a conspirator, on the ground that although he may have been
present when the conspiracy to rob was proposed and made, "Robles uttered not a word either of approval
or disapproval. There are authorities to the effect that mere presence at the discussion of a conspiracy, even
approval of it, without any active participation in the same, is not enough for purposes of conviction." In a
more recent case,35this Court, in exonerating one of the appellants, said:
There is ample and positive evidence on record that appellant Jose Guico was absent not only
from the second meeting but likewise from the robbery itself. To be sure, not even the decision
under appeal determined otherwise. Consequently, even if Guico's participation in the first
meeting sufficiently involved him with the conspiracy (as he was the one who explained the
location of the house to be robbed in relation to the surrounding streets and the points thereof
through which entrance and exit should be effected), such participation and involvement,
however, would be inadequate to render him criminally liable as a conspirator. Conspiracy
alone, without the execution of its purpose, is not a crime punishable by law, except in special
instances (Article 8, Revised Penal Code) which, however, do not include robbery.
Imposition of multiple penalties where conspirators commit more than one offense. Since in conspiracy, the
act of one is the act of all, then, perforce, each of the conspirators is liable for all of the crimes committed
in furtherance of the conspiracy. Consequently, if the conspirators commit three separate and distinct
crimes of murder in effecting their common design and purpose, each of them is guilty of three murders
and shall suffer the corresponding penalty for each offense. Thus in People vs. Masin,36 this Court held:
... it being alleged in the information that three crimes were committed not simultaneously
indeed but successively, inasmuch as there was, at least, solution of continuity between each
62
 other, the accused (seven in all) should be held responsible for said crimes. This court holds
that the crimes are murder ... In view of all these circumstances and of the frequently reiterated
doctrine that once conspiracy is proven each and every one of the conspirators must answer for
the acts of the others, provided said acts are the result of the common plan or purpose ... it
would seem evident that the penalty that should be imposed upon each of the appellants for
each of their crimes should be the same, and this is the death penalty ... (emphasis supplied).
In the aforesaid case, however, the projected imposition of three death penalties upon each of the
conspirators for the three murders committed was not carried out due to the lack of the then requisite
unanimity in the imposition of the capital penalty.
In another case,37 this Court, after finding that conspiracy attended the commission of eleven murders, said
through Mr. Justice Tuason:
Some members of this Court opine that the proper penalty is death, under the circumstances of
the case, but they fall short of the required number for the imposition of this punishment. The
sentence consequently is reclusion perpetua; but each appellant is guilty of as many crimes of
murder as there were deaths (eleven) and should be sentenced to life imprisonment for each
crime, although this may be a useless formality for in no case can imprisonment exceed forty
years. (Emphasis supplied.)
38
In People vs. Masani, the decision of the trial court imposing only one life imprisonment for each of the
accused was modified by this Court on appeal on the ground that "inasmuch as their (the conspirators')
combined attack resulted in the killing of three persons, they should be sentenced to suffer said penalty
(reclusion perpetua) for each of the three victims (crimes)." (Emphasis supplied.)
It is significant to note that in the abovementioned cases, this Court consistently stressed that once
conspiracy is ascertained, the culpability of the conspirators is not only solidary (all co-principals) but also
multiple in relation to the number of felonies committed in furtherance of the conspiracy. It can also be
said that had there been a unanimous Court in the Masin and Macaso cases, multiple death penalties would
have been imposed upon all the conspirators.
Legality and practicality of imposing multiple death penalties upon conspirators. An accused who was
charged with three distinct crimes of murder in a single information was sentenced to two death penalties
for two murders,39 and another accused to thirteen (13) separate death penalties for the 13 killings he
perpetrated.40 Therefore there appears to be no legal reason why conspirators may not be sentenced to
multiple death penalties corresponding to the nature and number of crimes they commit in furtherance of a
conspiracy. Since it is the settled rule that once conspiracy is established, the act of one conspirator is
attributable to all, then each conspirator must be held liable for each of the felonious acts committed as a
result of the conspiracy, regardless of the nature and severity of the appropriate penalties prescribed by
law.
The rule on the imposition of multiple penalties where the accused is found guilty of two or more separate
and distinct crimes charged in one information, the accused not having interposed any objection to the
multiplicity of the charges, was enunciated in the leading case of U.S. vs. Balaba,41 thus: Upon conviction
of two or more offenses charged in the complaint or information, the prescribed penalties for each and all
of such offenses may be imposed, to be executed in conformity with the provisions of article 87 of the
Penal Code [now article 70 of the Revised Penal Code]. In other words, all the penalties corresponding to
the several violations of law should be imposed. Conviction for multiple felonies demands the imposition
of multiple penalties.
The two conceptual exceptions to the foregoing rule, are the complex crime under article 48 of the Revised
Penal Code and the special complex crime (like robbery with homicide). Anent an ordinary complex crime
falling under article 48, regardless of the multiplicity of offenses committed, there is only one imposable
penalty — the penalty for the most serious offense applied in its maximum period. Similarly, in special
complex crimes, there is but a single penalty prescribed by law notwithstanding the number of separate
felonies committed. For instance, in the special complex crime of robbery with hommicide the imposible
penalty is reclusion perpetua to death42 irrespective of the number of homicides perpetrated by reason or
on occasion of the robbery.
In Balaba, the information charged the accused with triple murder. The accused went to trial without
objection to the said information which charged him with more than one offense. The trial court found the
accused guilty of two murders and one homicide but it imposed only one death penalty. In its review en
consulta, this Court modified the judgment by imposing separate penalties for each of the three offenses
committed. The Court, thru Mr. Justice Carson (with Mr. Justice Malcolm dissenting with respect to the
imposition of two death penalties), held:
The trial judge was erroneously of the opinion that the prescribed penalties for the offenses of
which the accused was convicted should be imposed in accord with the provisions of article 89
of the Penal Code. That article is only applicable to cases wherein a single act constitutes two
or more crimes, or when one offense is a necessary means for committing the other. (U.S. vs.
Ferrer, 1 Phil. Rep., 56)
It becomes our duty, therefore, to determine what penalty or penalties should have been
imposed upon the accused upon conviction of the accused of three separate felonies charged in
the information.
There can be no reasonable doubt as to the guilt of the convict of two separate crimes
of asesinato (murder) marked with the generic aggravating circumstances mentioned in the
decision of the trial judge ... It follows that the death penalty must and should be imposed for
each of these offenses ...
Unless the accused should be acquitted hereafter on appeal of one or both the asesinatos with
which he is charged in the information, it would seem to be a useless formality to impose
separate penalties for each of the offenses of which he was convicted, in view of the nature of
the principal penalty; but having in mind the possibility that the Chief Executive may deem it
proper to grant a pardon for one or more of the offenses without taking action on the others; and
having in mind also the express provisions of the above cited article 87 of the Penal Code, we
deem it proper to modify the judgment entered in the court below by substituting for the penalty
imposed by the trial judge under the provisions of article 89 of the Code, the death penalty
prescribed by law for each of the two separate asesinatos of which he stands convicted, and the
penalty of 14 years, 8 months and 1 day of reclusion temporal (for the separate crime of
homicide) ... these separate penalties to be executed in accord with the provisions of article 87
of the Penal Code. (Emphasis supplied.)
The doctrine in Balaba was reiterated in U.S. vs. Jamad43 where a unanimous Court, speaking again thru
Mr. Justice Carson (with Mr. Justice Malcolm concurring in the result in view of the Balaba ruling),
opined:
For all the offenses of which the accused were convicted in the court below, the trial judge
imposed the death penalty, that is to say the penalty prescribed for the most serious crime
committed, in its maximum degree, and for this purpose made use of the provisions of article
89 of the Penal Code [now article 48 of the Revised Penal Code]. But as indicated in the case of
the United States vs. Balaba, recently decided wherein the controlling facts were substantially
similar to those in the case at bar, "all of the penalties corresponding to the several violations of
law" should have been imposed under the express provisions of article 87 [now engrafted in
63
 article 70 of the Revised Penal Code] and under the ruling in that case, the trial court erred in
applying the provision of article 89 of the code.
We conclude that the judgment entered in the court below should be reversed, ... and that the
following separate penalties should be imposed upon him [the accused Jamad], to be executed
in accordance with article 87 of the Penal Code: (1) The penalty of death for the parricide of his
wife Aring; (2) the penalty of life imprisonment for the murder of Labonete; (3) the penalty of
life imprisonment for the murder of Torres; (4) the penalty of 12 years and one day of cadena
temporal for the frustrated murder of Taclind ...
44
The doctrine in Balaba was reechoed in People vs. Guzman, which applied the pertinent provisions of the
Revised Penal Code, where this Court, after finding the accused liable as co-principals because they acted
in conspiracy, proceeded to stress that where an "information charges the defendants with the commission
of several crimes of murder and frustrated murder, as they failed to object to the multiplicity of the charges
made in the information, they can be found guilty thereof and sentenced accordingly for as many crimes
the information charges them, provided that they are duly established and proved by the evidence on
record." (Emphasis supplied.)
The legal and statutory justification advanced by the majority in Balaba for imposing all the penalties (two
deaths and one life imprisonment) corresponding to the offense charged and proved was article 87 of the
old Penal Code which provided:
When a person is found guilty of two or more felonies or misdemeanors, all the penalties
corresponding to the several violations of law shall be imposed, the same to be simultaneously
served, if possible, according to the nature and effects of such penalties.
in relation to article 88 of the old Code which read:
When all or any of the penalties corresponding to the several violations of the law can not be
simultaneously executed, the following rules shall be observed with regard thereto:
1. In the imposition of the penalties, the order of their respective severity shall be followed so
that they may be executed successively or as nearly as may be possible, should a pardon have
been granted as to the penalty or penalties first imposed, or should they have been served out.
The essence and language, with some alterations in form and in the words used by reason of style, of the
above-cited provisions have been preserved in article 70 of the Revised Penal Code which is the product of
the merger of articles 87 and 88 of the old Penal Code. Article 70 provides:
When the culprit has to serve two or more penalties, he shall serve them simultaneously if the
nature of the penalties will so permit; otherwise, the following rules shall be observed:
In the imposition of the penalties, the order of their respective severity shall be followed so that
they may be executed successively or as nearly as may be possible, should a pardon have been
granted as to the penalty or penalties first imposed, or should they have been served out.
Although article 70 does not specifically command, as the former article 87 clearly did, that "all the
penalties corresponding to the several violations of law shall be imposed," it is unmistakable, however, that
article 70 presupposes that courts have the power to impose multiple penalties, which multiple penal
sanctions should be served either simultaneously or successively. This presumption of the existence of
judicial power to impose all the penalties corresponding to the number and nature of the offenses charged
and proved is manifest in the opening sentence of article 70: "When the culprit has to serve two or more
penalties, he shall serve them simultaneously if the nature of the penalties will so permit ..." (Emphasis
supplied.) Obviously, the two or more penalties which the culprit has to serve are those legally imposed by
the proper court. Another reference to the said judicial prerogative is found in the second paragraph of
article 70 which provides that "in the imposition of the penalties, the order of their respective severity shall
be followed ..." Even without the authority provided by article 70, courts can still impose as many
penalties as there are separate and distinct offenses committed, since for every individual crime committed,
a corresponding penalty is prescribed by law. Each single crime is an outrage against the State for which
the latter, thru the courts ofjustice, has the power to impose the appropriate penal sanctions.
With respect to the imposition of multiple death penalties, there is no statutory prohibition or
jurisprudential injunction against it. On the contrary, article 70 of the Revised Penal Code presumes that
courts have the power to mete out multiple penalties without distinction as to the nature and severity of the
penalties. Moreover, our jurisprudence supports the imposition of multiple death penalties as initially
advocated in Balaba and thunderously reechoed in Salazar where the accused was sentenced on appeal to
thirteen (13) death penalties. Significantly, the Court in Balaba imposed upon the single accused mixed
multiple penalties of two deaths and one life imprisonment.
The imposition of multiple death penalties is decried by some as a useless formality, an exercise in futility.
It is contended, undeniably enough, that a death convict like all mortals, has only one life to forfeit. And
because of this physiological and biological attribute of man, it is reasoned that the imposition of multiple
death penalties is impractical and futile because after the service of one capital penalty, the execution of
the rest of the death penalties will naturally be rendered impossible. The foregoing opposition to the
multiple imposition of death penalties suffers from four basic flaws: (1) it fails to consider the legality of
imposing multiple capital penalties; (2) it fails to distinguish between imposition of penalty and service of
sentence; (3) it ignores the fact that multiple death sentences could be served simultaneously; and (4) it
overlooks the practical merits of imposing multiple death penalties.
The imposition of a penalty and the service of sentence are two distinct, though related, concepts. The
imposition of the proper penalty or penalties is determined by the nature, gravity and number of offenses
charged and, proved, whereas service of sentence is determined by the severity and character of the penalty
or penalties imposed. In the imposition of the proper penalty or penalties, the court does not concern itself
with the possibility or practicality of the service of the sentence, since actual service is a contingency
subject to varied factors like successful escape of the convict, grant of executive clemency or natural death
of the prisoner. All that go into the imposition of the proper penalty or penalties, to reiterate, are the nature,
gravity and number of the offenses charged and proved and the corresponding penalties prescribed by law.
Multiple death penalties are not impossible to serve because they will have to be executed simultaneously.
A cursory reading of article 70 will show that there are only two modes of serving two or more (multiple)
penalties: simultaneously or successively. The first rule is that two or more penalties shall be served
simultaneously if the nature of the penalties will so permit. In the case of multiple capital penalties, the
nature of said penal sanctions does not only permit but actually necessitates simultaneous service.
The imposition of multiple death penalties, far from being a useless formality, has practical importance.
The sentencing of an accused to several capital penalties is an indelible badge of his extreme criminal
perversity, which may not be accurately projected by the imposition of only one death sentence
irrespective of the number of capital felonies for which he is liable. Showing thus the reprehensible
character of the convict in its real dimensions, the possibility of a grant of executive clemency is justifiably
reduced in no small measure. Hence, the imposition of multiple death penalties could effectively serve as a
deterrent to an improvident grant of pardon or commutation. Faced with the utter delinquency of such a
convict, the proper penitentiary authorities would exercise judicious restraint in recommending clemency
or leniency in his behalf.
Granting, however, that the Chief Executive, in the exercise of his constitutional power to pardon (one of
the presidential prerogatives which is almost absolute) deems it proper to commute the multiple death
64
penalties to multiple life imprisonments, then the practical effect is that the convict has to serve the In other words, there is no showing of the opportunity of reflection and the persistence in the
maximum of forty (40) years of multiple life sentences. If only one death penalty is imposed, and then is criminal intent that characterize the aggravating circumstance of evident premeditation (People
commuted to life imprisonment, the convict will have to serve a maximum of only thirty years vs. Mendoza, 91 Phil. 58; People vs. Iturriaga, 47 Off. Gaz., [Supp to No. 12] 166; People vs.
corresponding to a single life sentence. Lesada 70 Phil., 525.)

Reverting now to the case at bar, it is our considered view that the trial court correctly ruled that Not a single extenuating circumstance could be appreciated in favor of any of the six accused, as they did
conspiracy attended the commission of the murders. We quote with approval the following incisive neither allege nor prove any.
observations of the court a quo in this respect:
In view of the attendance of the special aggravating circumstance of quasi-recidivism, as all of the six
Although, there is no direct evidence of conspiracy, the Court can safely say that there are accused at the time of the commission of the offenses were serving sentences49 in the New Bilibid Prison at
several circumstances to show that the crime committed by the accused was planned. The Muntinlupa by virtue of convictions by final judgments the penalty for each offense must be imposed in its
following circumstances show beyond any doubt the acts of conspiracy: First, all those who maximum period, which is the mandate of the first paragraph of article 160 of the Revised Penal Code.
were killed, Barbosa, Santos Cruz and Carriego, were Tagalogs. Although there were many Viada observes, in apposition, that the severe penalty imposed on a quasi-recidivist is justified because of
Tagalogs like them confined in Building 4, these three were singled out and killed thereby his perversity and incorrigibility.50
showing that their killing has been planned. Second, the accused were all armed with
improvised weapons showing that they really prepared for the occasion. Third, the accused
ACCORDINGLY, the judgment a quo is hereby modified as follows: Amadeo Peralta, Andres Factora,
accomplished the killing with team work precision going from one brigade to another and
Leonardo Dosal, Angel Parumog, Gervasio Larita and Florencio Luna are each pronounced guilty of three
attacking the same men whom they have previously marked for liquidation and lastly, almost
separate and distinct crimes of murder, and are each sentenced to three death penalties; all of them shall,
the same people took part in the killing of Carriego, Barbosa and Santos Cruz.
jointly and severally, indemnify the heirs of each of the three deceased victims in the sum of
P12,000;51 each will pay one-sixth of the costs.
It is also important to note that all the accused were inmates of brigade 4-A; that all were from either the
Visayas or Mindanao except Peralta who is from Masbate and Parumog who hails from Nueva Ecija; that
all were either "OXO" members or sympathizers; and that all the victims were members of the "Sigue-
Sigue" gang.

The evidence on record proves beyond peradventure that the accused acted in concert from the moment
they bolted their common brigade, up until the time they killed their last victim, Santos Cruz. While it is
true that Parumog, Larita and Luna did not participate in the actual killing of Carriego, nonetheless, as co-
conspirators they are equally guilty and collectively liable for in conspiracy the act of one is the act of all.
It is not indispensable that a co-conspirator should take a direct part in every act and should know the part
which the others have to perform. Conspiracy is the common design to commit a felony; it is not
participation in all the details of the execution of the crime. All those who in one way or another help and
cooperate in the consummation of a felony previously planned are co-principals.45 Hence, all of the six
accused are guilty of the slaughter of Carriego, Barbosa and Santos Cruz — each is guilty of three separate
and distinct crimes of murder.

We cannot agree, however, with the trial court that evident premeditation was also present. The facts on
record and the established jurisprudence on the matter do not support the conclusion of the court a quo that
evident premeditation "is always present and inherent in every conspiracy." Evident premeditation is not
inherent in conspiracy as the absence of the former does not necessarily negate the existence of the
latter.46 Unlike in evident premeditation where a sufficient period of time must elapse to afford full
opportunity for meditation and reflection for the perpetrator to deliberate on the consequences of his
intended deed, conspiracy arises at the very instant the plotters agree, expressly or impliedly, to commit the
felony and forthwith decide to commit it.47 This view finds added support in People vs. Custodia,48 wherein
this Court stated:

Under normal conditions, where the act of conspiracy is directly established, with proof of the
attendant deliberation and selection of the method, time and means of executing the crime, the
existence of evident premeditation can be taken for granted. In the case before us, however, no
such evidence exists; the conspiracy is merely inferred from the acts of the accused in the
perpetration of the crime. There is no proof how and when the plan to kill Melanio Balancio
was hatched, or what time elapsed before it was carried out; we are, therefore, unable to
determine if the appellants enjoyed "sufficient time between its inception and its fulfillment
dispassionately to consider and accept the consequences." (cf. People vs. Bangug, 52 Phil. 91.) G.R. No. 128966 August 18, 1999

65
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EDWIN DE VERA y GARCIA, RODERICK GARCIA y GALAMGAM, KENNETH FLORENDO
and ELMER CASTRO, accused,
EDWIN DE VERA y GARCIA, appellant.
PANGANIBAN, J.:
When is a lookout deemed an accomplice and when a conspirator? What is the distinction between the
two?
Statement of the Case
These are the main questions passed upon by the Court in resolving the present appeal, which assails the
March 12, 1997 Decision1 of the Regional Trial Court of Quezon City (Branch 57) in Criminal Case No.
Q-92-31323, finding Appellant Edwin De Vera and Accused Roderick Garcia guilty beyond reasonable
doubt of murder and sentencing them to reclusion perpetua.
In an Information dated June 11, 1992, Assistant City Prosecutor Tirso M. Gavero charged with murder
Appellant Edwin De Vera, together with Roderick Garcia and two other persons who were subsequently
identified during the trial as Kenneth Florendo and Elmer Castro. The crime was allegedly committed as
follows:
That on or about the 8th day of June, 1992, in Quezon City, Philippines, the said accused,
conspiring [and] confederating [with] and helping . . . two (2) other persons, did then and there
wilfully, unlawfully and feloniously with intent to kill, with evident premeditation, treachery
and use of superior strength, attack, assault and employ personal violence upon the person of
one FREDERICK CAPULONG y DIZON, by then and there shooting him with the use of a .22
cal. with trade mark "Paspar Armas" bearing SN-29069 with five (5) pieces of caliber 22 ammo
inside, hitting him between his eyes and striking him with the use of a baseball bat in the
mouth, thereby inflicting upon him serious and mortal wounds which were the direct and
immediate cause of his untimely death, to the damage and prejudice of the heirs of the said
Frederick Capulong y Dizon.2
On July 9, 1992, Assistant City Prosecutor Enrico P. Bringas filed a Motion to Amend the Information to
include the use of a .32 caliber firearm in the killing of Frederick Capulong. The trial court granted the
Motion, and the Amended Information now reads as follows:
That on or about the 8th day of June, 1992, in Quezon City, Philippines, the said accused,
conspiring [and] confederating [with] and helping . . . two (2) other persons, did then and there
wilfully, unlawfully and feloniously with intent to kill, with evident premeditation, treachery
and use of superior strength, attack, assault and employ personal violence upon the person of
one FREDERICK CAPULONG y DIZON, by then and there shooting him with the use of a .22
cal. with trade mark "Paspar Armas" bearing SN-29069 with five (5) pieces of caliber 22 ammo
inside and a .32 cal. firearm of still undetermined make, hitting him between his eyes and
striking him with the use of a baseball bat in the mouth, thereby inflicting upon him serious and
mortal wounds which were the direct and immediate cause of his untimely death, to the damage
and prejudice of the heirs of the said Frederick Capulong y Dizon.3
On their arraignment, Appellant Edwin De Vera4 and Roderick Garcia5 pleaded not guilty. The other two
accused were at large. Trial in due course proceeded only against De Vera and Garcia. Thereafter, the trial
court rendered the assailed Decision, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered finding the accused EDWIN DE VERA y
GARCIA and RODERICK GARCIA y GALAMGAM guilty beyond reasonable doubt of the
crime of MURDER and they are hereby accordingly sentenced to suffer reclusion perpetua,
including all its accessory penalties; to indemnify the heirs of Frederick Capulong y Dizon, as
follows:
a) P50,000.00, as death indemnity;
b) P211,670.00, as compensatory damages;
c) P600,000.00, as indemnification for loss of earning capacity;
d) P500,000.00, as moral damages;
e) Interest at the legal rate on a) and b), hereof from the filing of the information
until full payment; and,
f) Costs of suit.16
Only Edwin De Vera filed a Notice of Appeal.7
The Facts
Version of the Prosecution
In its Brief,8 the Office of the Solicitor General presented the following narration of facts:9
As earlier stated, the prosecution presented an eyewitness in the person of
Bernardino Cacao, a resident of Denver Loop Street, Filinvest II, Quezon City
before he moved to No. 58 Elisa Street, Caloocan City. He was residing at Filinvest
II, together with his wife and children, at the time of the incident on June 28, 1992
in the house owned by David Lim. He was then employed at a Kodak branch in
Caloocan City, while his wife served as secretary of the homeowners
association.1âwphi1.nêt
About 1:30 in the afternoon of June 8, 1992, while bringing out the garbage, the
witness saw a car passing by, driven by victim Frederick Capulong together with
four (4) other passengers. He knew the victim by name who was a resident of the
subdivision. He recognized and identified two of the passengers as Kenneth
Florendo and Roderick Garcia, both familiar in the subdivision.
Cacao did not at first notice anything unusual inside the car while it passed by him,
but then he heard unintelligible voices coming from the car as it was cruising around
Denver Loop Street, a circular road whose entrance and exit were through the same
point (ibid, p. 12). His curiosity taking [the] better part of him, Cacao walked to the
opposite side of the road from where he saw the car already parked. Moments later,
he saw the victim dragged out of the car by Florendo and brought to a grassy place.
Florendo was holding a gun (ibid, p. 13). Upon reaching the grassy spot, Florendo
aimed and fired the gun at the victim, hitting him between the eyes, After the
shooting, Florendo and his companions fled in different directions.
66
When he submitted a sworn statement to the investigating prosecutor, Cacao
attached a sketch of the crime scene prepared by police officers, indicating therein
his relative position at the time of the incident. While testifying in court, Cacao
identified Garcia and pointed to appellant as among the companions of Florendo.
Ten minutes later, or about 2:40 in the afternoon, the desk officer of the
Investigation Division, Station 5, Central Police District, Quezon City received a
report about the shooting incident from a security guard of the subdivision. The
officer immediately dispatched a team to Filinvest II, composed of PO2 Armando
Garcia, PO3 Armando Junio, and PO3 Jovencio Villacorte, to investigate and gather
evidence (TSN, p. 5, September 13, 1993). A security guard guided the team to the
corner of Denver and Doña Justina Streets, site of the shooting, where they
discovered blood stains and damaged grass (ibid, p. 6). The guard informed them
that the victim was rushed to the East Avenue Medical Center by other security
guards. The policemen then found a color red sports car with plate no. NBZ 869,
with engine still running and its doors opened. They recovered inside the car several
class cards and a license belonging to one Ric Capulong, who was later identified as
Frederick Capulong.
The policemen went around the subdivision to look for possible suspects. They
came upon a person wearing muddled maong pants and white t-shirt "standing and
walking around" near the clubhouse of the subdivision. When asked his name, the
person identified himself as Edwin de Vera, herein appellant. Explaining the mud
stains on his pants, appellant declared that he was a victim of a hold-up. Suspicious
[of] his conduct, the policemen brought appellant to Station 5 and turned him over
to the desk officer for investigation.
Another prosecution witness, SPO3 Mario Guspid, a police investigator since 1989,
was assigned to investigate the shooting of Frederick Capulong. He was assisted by
SPO4 Pablito Selvido, SPO2 Armando Rivera, SPO3 Jovencio Villacorte, SPO3
Rolando Gacute, SPO3 Danilo Castro and other police officers.
Upon receiving his assignment, SPO3 Guspid immediately went to the East Avenue
Medical Center where he saw the victim lying inside the intensive care unit
receiving medical treatment. The victim was unconscious. After conferring with the
victim's parents and relatives, SPO3 Guspid returned to Station 5. On his arrival, the
desk officer referred appellant to him for questioning. He was told that appellant
was picked up near the crime scene acting suspiciously. When appellant was asked
about his participation in the shooting, he was reluctant at first to talk, but later
relented after SPO3 Guspid told him that his conscience would bother him less if he
would tell the truth.
Without any hesitation, appellant admitted being [with the] group which perpetrated
the crime, and implicated Roderick Garcia. He was then persuaded to accompany a
group of policemen to the residence of Garcia, which turned out to be at Doña
Justina Street, Filinvest II Subdivision. Finding Garcia at home, SPO3 Guspid
informed him that he was implicated by appellant [in] the crime. He was then
invited to the station to shed light [on] the incident. Garcia consented.
At Station 5, SPO3 Guspid interviewed appellant and Garcia. In the course of the
interview, Garcia revealed the place where he hid a .22 caliber gun, black t-shirt and
black cap. According to Garcia, Florendo asked them to wear black t-shirts. With the
revelation, SPO3 Guspid, SPO2 Rivera, SPO3 Gacute and SPO3 Castro, together
with the suspects, went back to the subdivision and proceeded to a grassy portion
near the boundary of Filinvest II and San Mateo, Rizal. The place was near a creek
and about 50 meters away from the residence of Garcia (TSN, pp. 9-14, September
30, 1993). Truly, the policemen recovered a .22 caliber revolver, black t-shirt and
black cap (TSN, pp. 12-13, August 24, 1993).While there, SPO3 Guspid and SPO2
Rivera prepared a sketch of the crime scene to reflect the explanations and answers
given by appellant and Garcia in response to their questions. As identifying marks,
SPO3 Gacute placed his initials "OG" (acronym for his first name and family name)
between the handle and cylinder of the gun, and on the neck of the t-shirt, as well as
in the inner lining of the black cap.
From the crime site, the policemen and the suspects returned to Station 5 where
SPO3 Guspid asked them if they were willing to give their written statements, to
which they assented. Consequently, they were brought to the Integrated Bar of the
Philippines, Quezon City Chapter, at Malakas Street, Diliman, Quezon City. They
were then introduced to Atty. Confesor Sansano, the [c]hairman of the Free Legal
Aid of the IBP. Also, present at that time were appellant's relatives, including his
mother and sisters, and other lawyers of the IBP.
SPO3 Guspid inquired from them if they would agree to be assisted by Atty.
Sansano, "a competent lawyer." They replied in the affirmative. Thereafter, the two
conferred with Atty. Sansano.
Atty. Sansano, a rebuttal witness of the prosecution, testified that upon arrival of the
suspects [i]n his office, he requested the policemen, as a matter of policy, to step
outside the building in order to assure that no pressure would be exerted on the
suspects even by their mere presence (TSN, p. 6, November 6, 1996). After they left,
Atty. Sansano interviewed the suspects for about twenty minutes, informing them of
their rights under the constitution and inquiring from them if they indeed wanted to
give voluntary statements. To the query, the suspects answered positively. They also
affirmed their earlier declaration that they were willing to be assisted by the IBP
(ibid, pp. 8-9). He further advised them of their right during the investigation to
answer or not to answer the questions which they thought would incriminate them,
but they retorted that they fully understood their right.
Satisfied that they were not coerced or threatened to give their statements, Atty.
Sansano requested the suspects to show their upper bodies to enable him to
determine any telltale signs of torture or bodily harm. Finding no such signs, he then
summoned the policemen to re-enter the building. The investigators readied two
typewriters and each suspect was assigned to an investigator. He served as the
lawyer of the suspects, cautioning them against answering questions that they did
not understand, and to seek . . . a clarification, if needed.
According to Atty. Sansano, the interrogation took place in his office, a single
separate room from where his five staff members were visible. He sat between the
two tables used by the investigators for typing the questions and answers, involving
himself from beginning to end of the investigation until the signing of the
statements. He never left the office to attend to anything else, consistent with [the]
standing policy of the IBP to properly safeguard the rights of suspects during
investigation.
He recalled that the investigators first typed the headings of the statements, then
informed the suspects before starting the investigation about their rights under the
constitution, specifically, the right of the suspects to have a lawyer of their own
choice; if not, the police would provide them with one who would assist them; that
67
 they could answer or refuse to answer the questions. The investigators also asked
him if he was willing to serve as counsel of the suspects. They also asked the
suspects if they were willing to accept him as their counsel. They agreed expressly
by saying: "Oho."
SPO3 Guspid investigated Garcia while SPO4 Selvido investigated appellant. They
conducted the question and answer investigation in Pilipino. The statement of
appellant was marked as Exhibit O and that of Garcia was marked as Exhibit N. The
statements were signed by the suspects and Atty. Sansano.
For his part, SPO4 Selvido declared that SPO3 Guspid requested his help in taking
the statements of the suspects (TSN, p. 4, June 29, 1993). He took the statement of
appellant in the presence of Atty. Sansano. Before proceeding, he reminded
appellant of the constitutional warnings, consisting of four (4) questions under the
heading "Paunawa," to which the latter gave positive answers. The statement was
signed by appellant and Atty. Sansano. After taking down the statement, he turned
over appellant to SPO3 Guspid.
Following the investigation, the policemen brought the suspects to the Philippine
National Police Crime Laboratory for paraffin testing. The result: "both hands of
Edwin de Vera y Garcia @ Boy/Bong gave positive results [in] the test for
gunpowder nitrates while both hands of Roderick Garcia y Galamgam @ Deo gave
negative result [in] the test for gunpowder nitrates."
After coming from the crime laboratory, SPO3 Guspid contacted the mother of the
victim to get her own statement. Next, he obtained a death certificate and prepared
a referral to the Quezon City Prosecution Office which was signed by Senior
Inspector Ernesto Collado, Chief of the Station Investigation Division. During the
inquest, the prosecutor asked the suspects some clarificatory questions.
Surveillance and follow-up operations were conducted against Florendo and his
other companion, Elmer Castro. However, the two were never arrested and brought
to trial.
Version of the Defense
Appellant claims that he had no part in the killing, and that it was Kenneth Florendo who had
shot the victim. He avers that he merely accompanied to Filinvest the other accused and
Florendo, who was his friend, upon the latter's request. A few hours after the shooting incident,
appellant was picked up by the police, who subsequently tortured and coerced him into signing
his Statement regarding the incident. The trial court summarized appellant's evidence in this
wise:10
Edwin de Vera admitted that, as of June 8, 1992, he and Kenneth Florendo were
already close friends for about a year, sometimes sleeping in the latter's house at No.
106 Kamias Road, Quezon City. His own residence at the time was at No. 7 Bignay
Street, Project 2, Quezon City. That was also the address of Elmer Castro, his and
Kenneth's friend.
Edwin had slept in Kenneth's house on Kamias Road from June 6 to June 8, 1992
and went home at 7:00 am of June 8th Later at around 10:30 am, Kenneth passed by
Edwin's house to invite him back to [the former's] house that morning and to bring
Elmer along. Kenneth mentioned that he, his girlfriend, and Deo, who were then
with him, would be going somewhere first. Deo, or Roderick Garcia, was another
friend of Kenneth's.
Edwin and Elmer later went to and arrived at Kenneth's house at 11:00 am. Kenneth,
his girlfriend, and Deo were already taking lunch, and invited the two to lunch. After
lunch, Kenneth asked Edwin to go with him to Filinvest without telling why. It was
Deo who mentioned to Edwin that Kenneth was going to see a friend. Edwin was
not aware if Kenneth had also asked the others to go with him to Filinvest, but the
four of them — Kenneth, Edwin, Elmer, and Deo — later proceeded to Filinvest [i]n
Kenneth's car. Edwin sat at the back seat. The time was past 12:00 noon.
Kenneth drove his car. Upon reaching Filinvest, Kenneth stopped at a house and the
four of them alighted in front of the house. Edwin did not know whose house it was.
Kenneth and Elmer told Edwin and Deo to wait near the car because they were
going to see a friend. At that point in time, Edwin knew the person[,] whom Kenneth
and Elmer went to see[,] by name, never having met him personally before then.
From his conversation with Deo, Edwin found out that the house was where Deo
stayed.
Then, Edwin heard the voices of Kenneth and his friend and they appeared to be
arguing (". . . . parang nagtatalo sila") The voices came from some twenty-two (22)
meters away. Not before long, Edwin also heard a gunshot which came from where
Kenneth and Elmer had gone to. He was shocked because he was not used to
hearing gunfire. Frightened, he panicked and ran away from the place. His singular
thought while running was to get out of Filinvest. Deo also ran away.
Edwin denied that either he or Deo carried any firearm on that occasion.
Edwin was arrested by the police at past 2:00 p.m. when he was already outside of
Filinvest subdivision in front of Batasan. He was brought to Station 5 where four (4)
persons in civilian attire tortured him by forcing him to lie down on a bench, tying
his feet together and binding his hands from his back with handcuffs, and then
covering his face with a piece of dirty cloth into which water was poured little by
little into his face and mouth, while one of them sat on his thighs. This maltreatment
lasted for about 20 or 25 minutes, because they wanted him to admit "something"
and to name "my companions" but he refused to admit or to name anyone. They next
took him outside to a mango tree where they repeated his ordeal for 30 minutes. At
one point during the torture, a policeman untied his feet and hands and poked a gun
to his temple, telling him to run as it was his chance to escape, but he did not escape
because he could see that they were merely frightening him.
None of the policemen told him that he could . . . get a lawyer[;] instead, one of
them, whose name he [did] not know, told him that "I should listen only to them and
not to anyone else." He claimed that he saw one [of] his tormentors in court, and he
identified him as police officer Rivera. Guspid did not participate in his torture,
because he merely took down his statement. His tormentors were not drunk or under
the influence of drugs, but Guspid seemed to be under the influence of drugs when
he took his statement because of his troubled appearance.
Edwin was not advised to inform or call any of his relatives. Before his torture, his
request to contact his relatives or lawyer was turned down. His intimidation
continued (". . . . puro pananakot and ginawa nila sa akin"). After his torture at the
mango tree, he was returned inside and thrown into a cell, where he remained until
the following day (June 9th). During the night, an inmate named Cesar boxed him
68
 once in the upper body upon instruction of a policeman. He was not given any THE TRIAL JUDGE ERRED IN NOT FINDING THAT PROSECUTION EYE-WITNESS BERNARDO
dinner. CACAO HAD TESTIFIED TO NO CRIMINAL ACT OF APPELLANT;

At around noontime of the next day (June 9th), Edwin was taken out of the cell and II
brought to the IBP office by police officers Guspid and Selvido. Also with them
were Deo Garcia and two other police officers. At the IBP office, the officers talked
THE TRIAL JUDGE ERRED IN FINDING AND CONCLUDING THAT THERE WAS A CONSPIRACY
with one of the lawyers there, whom Edwin came to know to be Atty. Sansano only
TO KILL THE VICTIM AND THAT APPELLANT WAS A CO-CONSPIRATOR;
after the lawyer was introduced ("present") to him and Deo. That was the first he
met and saw Atty. Sansano.
III
Atty. Sansano informed both Edwin and Deo that they had the choice whether to talk
or not. Edwin could not make any comment because "wala po ako sa sarili ko". THE TRIAL JUDGE ERRED IN ADMITTING EXHIBIT "O", ALLEGED STATEMENT OF
Then, Atty. Sansano warned Edwin substantially that: "Alam n'yo ba na ang APPELLANT; AND IN NOT DECLARING THE SAME AS AN INADMISSIBLE EVIDENCE
salaysay na ito ay maaring hindi ninyo sumpaan," referring to the statement taken CONSIDERING THE BARBARIC MANNER UNDER WHICH IT WAS EXTRACTED/OBTAINED
from Edwin by officers Guspid at around past 8 p.m. until 9 p.m. on the day before FROM THE APPELLANT WHICH VIOLATED THE LATTER'S CONSTITUTIONAL RIGHTS;
(June 8, 1992) at the police station. He was not assisted by counsel, and had no
relatives present. Guspid appeared to be "like drunk or tipsy," when he took down
IV
Edwin's statement that night."

THE TRIAL COURT ERRED IN NOT FINDING AND DECLARING THAT THE PROSECUTION HAS
At the IBP office, Edwin's and Deo's statement were taken separately by Guspid and
NOT PROVED THE APPELLANT'S GUILT BEYOND REASONABLE DOUBT AND IN NOT
Selvido, respectively. At the time, Edwin and Deo were about six (6) meters from
ACQUITTING THE APPELLANT.12
each other, but he could hear what was being asked of Deo. Guspid asked the
questions and typed both the questions and his answers, which were given in
Tagalog. All the while, Atty. Sansano was inside his office, which was about seven In the main, the Court will resolve three questions: (1) the sufficiency of the prosecution evidence, (2) the
(7) meters away from where he and Guspid were situated. The office of Atty. admissibility of appellant's extrajudicial statement, and (3) the nature of his liability.
Sansano was separated by a divider, so that he could not see what Atty. Sansano was
doing at the time. After the questioning, he signed a paper which he was not able to
read. He did not see Atty. Sansano sign the paper. The Court's Ruling

xxx xxx xxx The appeal is partly meritorious. Appellant should be convicted only as an accomplice, not as a principal.

On July 14, 1992, Edwin executed a so-called salaysay ng pagbabawi ng First and Third Issues:
sinumpaang salaysay, which he swore to before Prosecutor Tobia of Quezon City,
for the purpose of recanting his statements given at the precinct in the evening of Sufficiency of Prosecution Evidence and Appellant's Liability
June 8, 1992 and at the IBP office on June 9, 1992 on the ground that they were
given under coercion, intimidation, and in violation of his constitutional rights.
Because the first and the third questions mentioned above are interrelated, they shall be discussed jointly.

Ruling of the Trial Court

Eyewitness Account

Based on the testimony of Eyewitness Bernardino Cacao, the trial court ruled that it was indeed Kenneth
Florendo who had actually shot the victim, Roderick Capulong. It convicted appellant as a principal,
however, because "the scientific and forensic findings on the criminal incident directly and substantially
confirmed the existence of conspiracy among the four [accused], namely, Kenneth Florendo, Elmer Castro,
Edwin de Vera, and Roderick Garcia.11
In ruling that there was conspiracy between Florendo, Castro, Garcia and Appellant De Vera, the trial court
relied mainly on the testimony of Eyewitness Cacao. Specifically, it based its conclusions on the following
facts: appellant was seen with the other accused inside the victim's car; the victim was clearly struck with a
blunt object while inside the car, and it was unlikely for Florendo to have done it all by himself; moreover,
it was impossible for De Vera and Garcia to have been unaware of Florendo's dark design on Roderick.

The Issues
We disagree. It is axiomatic that the prosecution must establish conspiracy beyond reasonable doubt.13 In
the present case, the bare testimony of Cacao fails to do so.
Appellant submits for the consideration of this Court the following alleged errors:
Cacao testified that he saw Appellant De Vera in the car, where an altercation later occurred. Thereafter, he
I saw Florendo drag out of the vehicle an apparently disabled Capulong and shoot the victim in the head
moments later.

69
Cacao's testimony contains nothing that could inculpate appellant. Aside from the fact that he was inside
the car, no other act was imputed to him. Mere presence does not amount to conspiracy.14 Indeed, the trial
court based its finding of conspiracy on mere presumptions, and not on solid facts indubitably indicating a
common design to commit murder. Such suppositions do not constitute proof beyond reasonable doubt. As
the Court has repeatedly stated, criminal conspiracy must be founded on facts, not on mere surmises or
conjectures. Clearly, Cacao's testimony does not establish appellant's culpability.
Appellant's Extrajudicial
Statement
Aside from the testimony of Cacao, the prosecution also presented Appellant De Vera's extrajudicial
statement, which established three points.
First, appellant knew of Kenneth Florendo's malevolent intention.
T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag kang
maging kasapakat nito?
S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan
na lamang at napilitan akong sumama.15
Second, appellant's companions were armed that day, a fact which revealed the unmistakable plan of the
group.
T: Ikaw ba ay mayroong dalang armas noong hapon na iyo[n]?
S: Wala po akong dalang armas. Pero itong si Kenneth ay mayroong dalang dalawang baril[,]
sina Deo at Elmer ay wala. Pero noong naroroon na kami sa lugar ay ibinigay ni Kenneth ang
isang baril niya kay Deo at itong si Elmer ay mayroong nang dalang baseball bat.
Third, he cooperated with the other accused in the commission of the crime by placing himself at a certain
distance from Kenneth and the victim in order to act as a lookout. This is clear from the following portion
of his statement:
S: Kabarkada ko po si Kenneth at dalawang araw po akong nakitulog sa kanila at noong araw
ng June 08, 1992 ay sinabihan ako ni Kenneth Gumabao na huwag raw akong uuwi, dahil
[mayroon] daw po kaming lakad. Pagkaraan ng ilang oras ay dumating naman itong si Roderick
Garcia @ Deo at may sinabi sa kanya itong si Kenneth at sinabi naman ito sa akin ni Deo na
kaysa raw maunahan siya ni Frederick Sumulong [sic] ay uunahan na raw po niya ito. Umalis
po itong si Kenneth na kasama ang kanyang nobya at itong si Deo, para ihatid ang kanyang
[sic] sa hospital at bago sila umalis ay sinabihan ako ni Kenneth na sunduin ko raw itong si
Elmer Castro at magbhihai [magbihis] na rin daw ako at pagdating nila ay . . . lalakad na raw po
kami. Mga ilang oras pa ay sinundo ko na itong si Elmer Castro at pagdating namin sa bahay
nila Kenneth ay naroroon na itong si Kenneth at Deo. Matapos magpalit ng damit itong si
Kenneth ay sumakay na kami sa kanilang kotse at nagtuloy sa kanilang katabing bahay at doon
ay kumain kami. Pagkatapos noon ay umalis na kami at nagtuloy sa F[i]l-Invest. P[a]gdating
namin sa isang lugar doon sa medyo malayo-layo sa bahay nila Deo ay bumaba na itong si Deo
at Elmer at sila ay nagpunta doon sa lugar ng pinagbarilan para kunin ang bayad sa utang ni
Fred[er]ick Capulong sa tiyuhin ni Deo P[a]gkaraan ng ilang minuto ay sumunod po kami ni
Kenn[e]th sa lugar at ako ay naiwan nang medyo malayo-layo sa lugar upang tingnan kung
mayroong darating na tao. Samantalang si Kenneth ay lumapit kina Deo at Frederick at
kasunod noon ay nagkaroon ng sagutan itong si Kenneth at Frederick at nakita kong inaawat ni
Deo itong si Kenneth. Hindi nakapagpigil itong si Kenneth at nasipa niya s[i] Frederick at
kasunod noon ay binunot niya ang kanyang baril na kalibre .38 at pinaputukan niya ng isang
beses itong si Frederick na noong tamaan ay natumba sa lupa. Lumapit si Elmer kina Kenneth
habang binabatak ni Kenneth itong si Frederick at kasunod po noon ay lumapit sa akin si Deo at
sinabihan ako na tumakbo na kami. Tumakbo na po kami, pero ako po ay nahuli ng mga
security guard ng Subdivision at itong si Deo ay nahuli naman sa kanilang bahay. Itong sina
Kenneth at Elmer ay hindi pa nahuhuli.16
Appellant an Accomplice,
Not a Conspirator
In other words, appellant's presence was not innocuous. Knowing that Florendo intended to kill the victim
and that the three co-accused were carrying weapons, he had acted as a lookout to watch for passersby. He
was not an innocent spectator; he was at the locus criminis in order to aid and abet the commission of the
crime. These facts, however, did not make him a conspirator; at most, he was only an accomplice.
The Revised penal Code provides that a conspiracy exists when "two or more persons come to an
agreement concerning the commission of a felony and decide to commit it."17 To prove conspiracy, the
prosecution must establish the following three requisites: "(1) that two or more persons came to an
agreement, (2) that the agreement concerned the commission of a crime, and (3) that the execution of the
felony [was] decided upon."18 Except in the case of the mastermind of a crime, it must also be shown that
the accused performed an overt act in furtherance of the conspiracy.19 The Court has held that in most
instances, direct proof of a previous agreement need not be established, for conspiracy may be deduced
from the acts of the accused pointing to a joint purpose, concerted action and community of interest.20
On the other hand, the Revised Penal Code defines accomplices as "those persons who, not being included
in Article 17,21 cooperate in the execution of the offense by previous or simultaneous acts."22 The Court has
held that an accomplice is "one who knows the criminal design of the principal and cooperates knowingly
or intentionally therewith by an act which, even if not rendered, the crime would be committed just the
same."23 To hold a person liable as an accomplice, two elements must be present: (1) the "community" of
criminal design; that is, knowing the criminal design of the principal by direct participation, he concurs
with the latter in his purpose;" and (2) the performance of previous or simultaneous acts that are not
indispensable to the commission of the crime.24
The distinction between the two concepts needs to be underscored, in view of its effect on appellant's
penalty. Once conspiracy is proven, the liability is collective and not individual. The act of one of them is
deemed the act of all.25 In the case of an accomplice, the liability is one degree lower than that of a
principal.
Conspirators and accomplices have one thing in common: they know and agree with the criminal design.
Conspirators, however, know the criminal intention because they themselves have decided upon such
course of action. Accomplices come to know about it after the principals have reached the decision, and
only then do they agree to cooperate in its execution. Conspirators decide that a crime should be
committed; accomplices merely concur in it. Accomplices do not decide whether the crime should be
committed; they merely assent to the plan and cooperate in its accomplishment. Conspirators are the
authors of a crime; accomplices are merely their instruments who perform acts not essential to the
perpetration of the offense.
Thus, in People v. Castro,26 the Court convicted Rufino Cinco, together with two others, as a principal,
although he had acted merely as a lookout. The Court held that "their concerted action in going armed and
together to their victim's house, and there, while one stayed as a lookout, the other two entered and shot the
70
mayor and his wife, leaving again together afterwards, admits no other rational explanation but T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag kang
conspiracy." It may be noted further that Cinco executed a Sworn Statement that the three of them, maging kasapakat nito?
together with some others, had planned to kill the victim on the promise of a P5,000 reward.
S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan
In People v. Tawat et al.,27 the lookout, Nestor Rojo, was convicted as a principal for conspiring with two na lamang at napilitan akong sumama.34
others. The Court ruled that the conspiracy was shown by their conduct before, during and after the
commission of the crime. The Court also noted that, upon their arrest, they disclosed that they had intended
Significantly, the plan to kill could have been accomplished without him. It should be noted further that he
to rob the victim's store and that they did so in accordance with their plan. In that case, it was clear that all
alone was unarmed that afternoon. Florendo and Garcia had guns, and Castro had a baseball bat.
three of them, including the lookout, were the authors of the crime.

In any event, the prosecution evidence has not established that appellant was part of the conspiracy to kill
In People v. Loreno,28 the Supreme Court convicted all the accused as principals because they had acted in
the victim. His participation, as culled from his own Statement, was made. after the decision to kill was
band. In acting as a lookout, Jimmy Marantal was armed at the time like the other conspirators, and he
already a fait accompli. Thus, in several cases, the Court has held:
gave his companions effective means and encouragement to commit the crime of robbery and rape.

[L]ack of complete evidence of conspiracy, that creates the doubt whether they had acted as
Upon the other hand in People v. Corbes,29 the Court noted that Manuel Vergel knew of the criminal design
principals or accomplices in the perpetration of the offense, impels this Court to resolve in their
to commit a robbery, and that he cooperated with the robbers by driving the vehicle to and from the crime
favor the question, by holding . . . that they were guilty of the "milder form of
scene. In convicting him as an accomplice and not as a conspirator, the Court observed that he was merely
responsibility," i.e., guilty as mere accomplices.35
approached by one of the robbers who was tasked to look for a getaway vehicle. He was not with the
robbers when they resolved to commit a robbery. When his services were requested the decision to commit
the crime had already been made. Second Issue:

In People v. Tatlonghari,30 the Court was asked to resolve the responsibility of some appellants who Admissibility of Extrajudicial Statement
"knowingly aid[ed] the actual killers by casting stones at the victim, and distracting his attention." The
Court ruled that they were accomplices and not co-conspirators, "[i]n the absence of clear proof that the
Extrajudicial confessions must conform to constitutional requirements. Section 12, Article III of the
killing was in fact envisaged by them."
Constitution, provides:

In People v. Suarez et al.,31 Wilfredo Lara merely introduced the gang of Reyes to Suarez who intended to
(1) Any person under investigation for the commission of an offense shall have the right to be
perpetrate the crime with the help of the said group. In ruling that he was merely an accomplice, the Court
informed of his right to remain silent and to have competent and independent counsel
noted that there was no evidence showing that he "took part in the planning or execution of the crime, or
preferably of his own choice. If the person cannot afford the services of counsel, he must be
any proof indicating that he profited from the fruits of the crime, or of acts indicative of confederacy on his
provided with one. These rights cannot be waived except in writing and in the presence of
part."
counsel.

In People v. Balili,32 the Court convicted appellant as an accomplice, holding that "in going with them,
xxx xxx xxx
knowing their criminal intention, and in staying outside of the house with them while the others went
inside the store to rob and kill, [he] effectively supplied the criminals with material and moral aid, making
him guilty as an accompliance." The Court noted that there was no evidence that he "had conspired with (3) Any confession or admission obtained in violation of this or section 17 hereof shall be
the malefactors, nor that he actually participated in the commission of the crime." inadmissible in evidence against him.

In People v. Doble,33 the Court held that Cresencio Doble did not become a conspirator when he looked for
a banca that was eventually used by the robbers. Ruled the Court: "Neither would it appear that Joe Intsik
wanted to draft Crescencio into his band of malefactors that would commit the robbery more than Just
asking his help to look for a banca. Joe Intsik had enough men, all with arms and weapons to perpetrate the
crime, the commission of which needed planning and men to execute the plan with full mutual confidence
of each other, which [was] not shown with respect to appellants by the way they were asked to look and
provide for a banca just a few hours before the actual robbery."
In the present case, Appellant De Vera knew that Kenneth Florendo had intended to kill Capulong at the
time, and he cooperated with the latter. But he himself did not participate in the decision to kill Capulong;
that decision was made by Florendo and the others. He joined them that afternoon after the decision to kill
had already been agreed upon; he was there because "nagkahiyaan na." This is clear from his statement,
which we quote again for the sake of clarity:
If the confession meets these requirements, "it is subsequently tested for voluntariness, i.e., if it was given
freely — without coercion, intimidation, inducement, or false promises; and credibility, i.e., if it was
consistent with the normal experience of mankind."36
Appellant claims that his extrajudicial statement was inadmissible, because it was not made in the presence
of counsel. Although Atty. Confesor Sansano of the Quezon City IBP Legal Aid Committee purportedly
assisted him and his co-accused in the execution of their extrajudicial Statements, appellant asserts that the
lawyer was in his office, not with them, at the time. Appellant adds that he was tortured.
Appellant's claims must be rejected. Atty. Sansano testified that he did not leave them at any time.
Q: You were involved in the interrogation from the very start?

A: Yes, from the beginning to the end of the interview until the boys signed their statements.
71
 Q: Did you recall having at any time left your office to attend to some official matters?
A: I never left the office to attend to anything.
Q: Is that the usual manner by which you assist persons referred to you by the police insofar as
custodial investigation is concerned?
A: It is our policy that when we assist [in] that capacity, we [want] to see to it that the rights of
the accused or suspects are properly [protected] during the course of the entire interrogation.37
In fact, Atty. Sansano even checked to see if there were torture marks on Appellant De Vera, and Garcia
and interviewed the two to make sure that they understood what they were doing.
Q: What was your purpose in asking the police officers to leave the room?
A: My purpose in asking the police officers to step out of the building was to assure myself that
no pressure could be exerted on the two boys by the presence of the police officers during my
personal interview. Before we allow any police officers to take the statements of people brought
before us[,] we see to it [that] we interview the persons personally out of hearing and sight of
any police officer.
Q: After the police officers left the room, completely left the room[,] you were able to interview
the two accused namely Mr. de Vera and Mr. Garcia?
A: Yes, I spent about 15 to 20 minutes interviewing the boys.
Q: What was the nature of your initial interview with these two accused?
A: I asked the boys Roderick and Edwin if it [was] true that they [were] going to give their own
statements to the police?
Q: And what did they say?
A: They said yes, sir.
Q: What was your reaction to that?
A: Routinely[,] I informed them about their rights under the constitution.
xxx xxx xxx
Q: Having obtained their answers, what next transpired?
A: After telling them the statements they may give to the police could be used against them for
a [sic] in any court of the Phil., I was satisfied that nobody coerced them, that they were never
threatened by anybody much less by the police officers to give these statements. Casually I
asked the two boys to raise their upper clothes.
xxx xxx xxx
Q: What was your purpose in requiring these persons to show you or remove their upper
clothing?
A: I wanted to assure myself that there were no telltale signs of torture or bodily harm
committed on the[m] prior to their [being brought] to the office. In spite of their [personal]
assurances . . . , verbal assurance that they were never hurt. 38
The right to counsel is enshrined in the Constitution in order to address, among others, the use of duress
and undue influence in the execution of extrajudicial confessions.39 In the present case, the Court is
satisfied that Atty. Sansano sufficiently fulfilled the objective of this constitutional mandate. Moreover,
appellant's allegations of torture must be disregarded for being unsubstantiated. To hold otherwise is to
statements at the mere facilitate the retraction of solemnly made statements of the mere allegation of
torture, without any proof whatsoever.
When an extrajudicial statement satisfies the requirements of the Constitution, it constitutes evidence of a
high order, because of the strong presumption that no person of normal mind would deliberately and
knowingly confess to a crime unless prompted by truth and conscience.40 The defense has the burden of
proving that it was extracted by means of force, duress or promise of reward.41 Appellant failed to
overcome the overwhelming prosecution evidence to the contrary.
Sec. 3, Rule 133 of the Rules of Court, provides that "[a]n extrajudicial confession made by an accused
shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti." In the
present case, the prosecution presented other evidence to prove the two elements of corpus delicti: (a) a
certain result has been proven — for example, a man has died; and (b) some person is criminally
responsible.42 It is indubitable that a crime has been committed, and that the other pieces of prosecution
evidence clearly show that appellant had conspired with the other accused to commit the crime. He himself
does not deny that he was at the crime scene. In fact, he was seen by the prosecution eyewitness in the
company of the gunman. Furthermore, Atty. Sansano and the police officers testified to the voluntariness
of his confession. It must be stressed that the aforementioned rule merely requires that there should be
some other evidence "tending to show the commission of the crime apart from the confession."43
Criminal and Civil Liability
In ruling that the crime committed was murder, the trial court found that the killing was attended by
treachery, evident premeditation and abuse of superior strength. One of these was enough to qualify the
crime as murder; the two others constituted generic aggravating circumstances. The lower court explained
that the evidence established evident premeditation, for Florendo's group acted with deliberate forethought
and tenacious persistence in the accomplishment of the criminal design. Treachery was also proven,
because the attack was planned and performed in such a way as to guarantee the execution of the criminal
design without risk to the group. There was also abuse of superior strength, because the attackers took
advantage of their superiority in numbers and weapons.
We disagree with the court a quo in appreciating two generic aggravating circumstances, because treachery
absorbs abuse of superior strength.44 Hence, there is only one generic aggravating circumstance, not two.
Notwithstanding the presence of a generic aggravating circumstance, we cannot impose the death penalty,
because the crime was committed before the effectivity of the Death Penalty Law.
In the present case, the penalty of appellant as an accomplice is one degree lower than that of a principal,
which in murder cases is reclusion temporal in its maximum period to death. He is also entitled to the
benefits of the Indeterminate Sentence Law.
72
We sustain the trial court's grant of P50,000 as indemnity ex delicto, which may be awarded without need
of proof other than the commission of the crime. The award of P211,670 as compensatory damages was
duly supported by evidence. Based on the evidence presented, moral damages is also warranted, but only
in the amount of P50,000, not P500,000 as fixed by the trial court. Furthermore, we affirm the payment of
interest.45 However, the grant of P600,000 for loss of earning capacity lacks factual basis. Such
indemnification partakes of the nature of actual damages, which must be duly proven.46 In this case, the
trial court merely presumed the amount of Capulong's earnings. Since the prosecution did not present
evidence of the current income of the deceased, the indemnity for lost earnings must be rejected.

WHEREFORE, the appeal is hereby partially GRANTED. Appellant De Vera is CONVICTED as an

accomplice, not as a principal, in the crime of murder. He is sentenced to an indeterminate prison term of 8
years and 1 day ofprision mayor as minimum, to 14 years 8 months and 1 day of reclusion temporal as
maximum. We AFFIRM the awards of: (a) P50,000 indemnity ex delicto, (b) P211,670 as compensatory
damages and (c) interest of six percentper annum on these two amounts. The award of moral damages is
however REDUCED to P50,000 and the award for the loss of earning capacity is DELETED. No
pronouncement as to costs.

SO ORDERED.

G.R. No. 202867 July 15, 2013

73
PEOPLE OF THE PHILIPPINES, Appellee, Version of the prosecution
vs.
REGIE LABIAGA, Appellant.
The prosecution’s version of the facts is as follows: At around 7:00 p.m. on 23 December 2000, Gregorio
Conde, and his two daughters, Judy and Glenelyn Conde, were in their home at Barangay Malayu-an,
DECISION Ajuy, Iloilo. Thereafter, Gregorio stepped outside. Glenelyn was in their store, which was part of their
house.
CARPIO, J.:
Shortly thereafter, appellant, who was approximately five meters away from Gregorio, shot the latter.
Gregorio called Judy for help. When Judy and Glenelyn rushed to Gregorio’s aid, appellant shot Judy in
The Case
the abdomen. The two other accused were standing behind the appellant. Appellant said, "she is already
dead," and the three fled the crime scene.
Before the Court is an appeal assailing the Decision1 dated 18 October 2011 of the Court of Appeals-Cebu
(CA-Cebu) in CA-G.R. CEB CR-HC No. 01000. The CA-Cebu affirmed with modification the Joint
Gregorio and Judy were rushed to the Sara District Hospital. Judy was pronounced dead on arrival while
Decision2 dated 10 March 2008 of the Regional Trial Court of Barotac Viejo, Iloilo, Branch 66 (RTC), in
Gregorio made a full recovery after treatment of his gunshot wound.
Criminal Case No. 2001-155) convicting Regie Labiaga alias "Banok" (appellant) of murder and Criminal
Case No. 2002-1777 convicting appellant of frustrated murder.
Dr. Jeremiah Obañana conducted the autopsy of Judy. His report stated that her death was caused by
"cardiopulmonary arrest secondary to Cardiac Tamponade due to gunshot wound."5
The Facts

Dr. Jose Edwin Figura, on the other hand, examined Gregorio after the incident. He found that Gregorio
In Criminal Case No. 2001-1555, appellant, together with a certain Alias Balatong Barcenas and Cristy
sustained a gunshot wound measuring one centimeter in diameter in his right forearm and "abrasion
Demapanag (Demapanag), was charged with Murder with the Use of Unlicensed Firearm under an
wounds hematoma formation" in his right shoulder.6
Information3 which reads:

Version of the defense

That on or about December 23, 2000 in the Municipality of Ajuy, Province of Iloilo, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
helping one another, armed with unlicensed firearm, with deliberate intent and decided purpose to kill, by Appellant admitted that he was present during the shooting incident on 23 December 2000. He claimed,
means of treachery and with evident premeditation, did then and there willfully, unlawfully and feloniously however, that he acted in self-defense. Gregorio, armed with a shotgun, challenged him to a fight. He
attack, assault and shoot JUDY CONDE alias ‘JOJO’ with said unlicensed firearm, hitting her and attempted to shoot appellant, but the shotgun jammed. Appellant tried to wrest the shotgun from Gregorio,
inflicting gunshot wounds on the different parts of her breast which caused her death thereafter. and during the struggle, the shotgun fired. He claimed that he did not know if anyone was hit by that
gunshot.
CONTRARY TO LAW.
Demapanag claimed that at the time of the shooting, he was in D&D Ricemill, which is approximately 14
kilometers away from the crime scene. This was corroborated by Frederick, Demapanag’s brother.
The same individuals were charged with Frustrated Murder with the Use of Unlicensed Firearm in
Criminal Case No. 2002-1777, under an Information4 which states:
The Ruling of the RTC
That on or about December 23, 2000 in the Municipality of Ajuy, Province of Iloilo, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and In its Joint Decision, the RTC acquitted Demapanag due to insufficiency of evidence. Appellant, however,
helping one another, armed with unlicensed firearm, with deliberate intent and decided purpose to kill, by was convicted of murder and frustrated murder. The dispositive portion of the Joint Decision reads:
means of treachery and with evident premeditation, did then and there willfully, unlawfully and feloniously
attack, assault and shoot Gregorio Conde with said unlicensed firearm, hitting him on the posterior aspect,
WHEREFORE, in light of the foregoing, the court hereby finds the accused Regie Labiaga @ "Banok"
middle third right forearm 1 cm. In diameter; thereby performing all the acts of execution which would
GUILTY beyond reasonable doubt of the Crime of Murder in Crim. Case No. 2001-1555 and hereby
produce the crime of Murder as a consequence, but nevertheless did not produce it by reason of causes
sentences the said accused to reclusion perpetua together with accessory penalty provided by law, to pay
independent of the will of the accused; that is by the timely and able medical assistance rendered to said
the heirs of Judy Conde ₱50,000.00 as civil indemnity, without subsidiary imprisonment in case of
Gregorio Conde which prevented his death.
insolvency and to pay the costs.

CONTRARY TO LAW.
Alias Balatong Barcenas remained at large. Both appellant and Demapanag pled not guilty in both cases
and joint trial ensued thereafter. The prosecution presented four witnesses: Gregorio Conde, the victim in
Criminal Case No. 2002-1777; Glenelyn Conde, his daughter; and Dr. Jeremiah Obañana and Dr. Edwin
Jose Figura, the physicians at the Sara District Hospital where the victims were admitted. The defense, on
the other hand, presented appellant, Demapanag, and the latter’s brother, Frederick.
In Crim. Case No. 2002-1777, the court finds accused Regie Labiaga @ "Banok" GUILTY beyond
reasonable doubt of the crime of Frustrated Murder and hereby sentences the said accused to a prison term
ranging from six (6) years and one (1) day of prision mayor as minimum to ten (10) years and one (1) day
of reclusion temporal as maximum, together with the necessary penalty provided by law and without
subsidiary imprisonment in case of insolvency and to pay the costs.

74
Accused’s entire period of detention shall be deducted from the penalty herein imposed when the accused SO ORDERED.
serves his sentence.
SO ORDERED.10
For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crimes charged in both cases.
The Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby directed to release accused
Hence, this appeal.
Cristy Demapanag from custody unless he is being held for some other valid or lawful cause.

The Ruling of the Court

SO ORDERED.7

The Ruling of the CA-Cebu
Appellant impugned the RTC’s Joint Decision, claiming that "the RTC gravely erred in convicting the
appellant of the crime charged despite failure of the prosecution to prove his guilt beyond reasonable
doubt."8 The CA-Cebu, however, upheld the conviction for murder and frustrated murder.
Our review of the records of Criminal Case No. 2002-1777 convinces us that appellant is guilty of
attempted murder and not frustrated murder. We uphold appellant’s conviction in Criminal Case No. 2001-
1555 for murder, but modify the civil indemnity awarded in Criminal Case No. 2001-1555, as well as the
award of moral and exemplary damages in both cases.
Justifying circumstance of self-defense

The CA-Cebu also modified the Joint Decision by imposing the payment of moral and exemplary damages
Appellant’s feeble attempt to invoke self-defense in both cases was correctly rejected by the RTC and the
in both criminal cases. The CA-Cebu made a distinction between the civil indemnity awarded by the RTC
CA-Cebu. This Court, in People v. Damitan,11 explained that:
in Criminal Case No. 2001-1555 and the moral damages. The CA-Cebu pointed out that:

When the accused admits killing a person but pleads self-defense, the burden of evidence shifts to him to
The trial court granted the amount of ₱50,000.00 as civil indemnity in Criminal Case No. 2001-1555. It
prove by clear and convincing evidence the elements of his defense. However, appellant’s version of the
did not award moral damages. Nonetheless, the trial court should have awarded both, considering that they
incident was uncorroborated. His bare and self-serving assertions cannot prevail over the positive
are two different kinds of damages. For death indemnity, the amount of ₱50,000.00 is fixed "pursuant to
identification of the two (2) principal witnesses of the prosecution.12
the current judicial policy on the matter, without need of any evidence or proof of damages. Likewise, the
mental anguish of the surviving family should be assuaged by the award of appropriate and reasonable
moral damages."9 Appellant’s failure to present any other eyewitness to corroborate his testimony and his unconvincing
demonstration of the struggle between him and Gregorio before the RTC lead us to reject his claim of self-
defense. Also, as correctly pointed out by the CA-Cebu, appellant’s theory of self-defense is belied by the
The dispositive portion of the Decision of the CA-Cebu reads:
fact that:

WHEREFORE, premises considered, the appeal is DENIED. The Joint Decision dated March 10, 2008 of
x x x The appellant did not even bother to report to the police Gregorio’s alleged unlawful aggression and
the Regional Trial Court, Branch 66, in Barotac Viejo, Iloilo is AFFIRMED with MODIFICATIONS. The
that it was Gregorio who owned the gun, as appellant claimed. And, when appellant was arrested the
dispositive portion of the said Joint Decision should now read as follows:
following morning, he did not also inform the police that what happened to Gregorio was merely
accidental.13
WHEREFORE, in light of the foregoing, the court hereby finds the accused Regie Labiaga @ "Banok"
GUILTY beyond reasonable doubt of the crime of Murder in Crim. Case No. 2001-1555 and hereby
Appellant’s claim that he did not know whether Gregorio was hit when the shotgun accidentally fired is
sentences the said accused to reclusion perpetua together with the accessory penalty provided by law, to
also implausible.
pay the heirs of Judy Conde ₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages and ₱25,000.00
as exemplary damages, without subsidiary imprisonment in case of insolvency and to pay the costs.
In contrast, we find that the Condes’ account of the incident is persuasive. Both the CA-Cebu and the RTC
found that the testimonies of the Condes were credible and presented in a clear and convincing manner.
In Crim. Case No. 2002-1777 the court finds accused Regie Labiaga @ "Banok" GUILTY beyond
This Court has consistently put much weight on the trial court’s assessment of the credibility of witnesses,
reasonable doubt of the crime of Frustrated Murder and hereby sentences the said accused to suffer the
especially when affirmed by the appellate court.14 In People v. Mangune,15 we stated that:
indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14)
years and eight (8) months of reclusion temporal, as maximum, together with the accessory penalty
provided by law, to pay Gregorio Conde ₱25,000.00 as moral damages and ₱25,000.00 as exemplary It is well settled that the evaluation of the credibility of witnesses and their testimonies is a matter best
damages, without subsidiary imprisonment in case of insolvency and to pay the costs Accused(’s) entire undertaken by the trial court because of its unique opportunity to observe the witnesses first hand and to
period of detention shall be deducted from the penalty herein imposed when the accused serves his note their demeanor, conduct, and attitude under grilling examination. These are important in determining
sentence. the truthfulness of witnesses and in unearthing the truth, especially in the face of conflicting testimonies.
For, indeed, the emphasis, gesture, and inflection of the voice are potent aids in ascertaining the witness’
credibility, and the trial court has the opportunity to take advantage of these aids. 16
For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crime(s) charged in both
cases. The Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby directed to release
accused Cristy Demapanag from custody unless he is being held for some other valid or lawful cause. Since the conclusions made by the RTC regarding the credibility of the witnesses were not tainted with
arbitrariness or oversight or misapprehension of relevant facts, the same must be sustained by this Court.

75
Attempted and Frustrated Murder Q: When you examined the person of Gregorio Conde, can you tell the court what was the situation of the
patient when you examined him?
Treachery was correctly appreciated by the RTC and CA-Cebu. A treacherous attack is one in which the
victim was not afforded any opportunity to defend himself or resist the attack.17 The existence of treachery A: He has a gunshot wound, but the patient was actually ambulatory and not in distress.
is not solely determined by the type of weapon used. If it appears that the weapon was deliberately chosen
to insure the execution of the crime, and to render the victim defenseless, then treachery may be properly
xxxx
appreciated against the accused.18

Court (to the witness)

In the instant case, the Condes were unarmed when they were shot by appellant. The use of a 12-gauge
shotgun against two unarmed victims is undoubtedly treacherous, as it denies the victims the chance to
fend off the offender. Q: The nature of these injuries, not serious?

We note, however, that appellant should be convicted of attempted murder, and not frustrated murder in A: Yes, Your Honor, not serious. He has also abrasion wounds hematoma formation at the anterior aspect
Criminal Case No. 2002-1777. right shoulder.22

Article 6 of the Revised Penal Code defines the stages in the commission of felonies:
Art. 6. Consummated, frustrated, and attempted felonies.— Consummated felonies as well as those which
are frustrated and attempted, are punishable.
Since Gregorio’s gunshot wound was not mortal, we hold that appellant should be convicted of attempted
murder and not frustrated murder. Under Article 51 of the Revised Penal Code, the corresponding penalty
for attempted murder shall be two degrees lower than that prescribed for consummated murder under
Article 248, that is, prision correccional in its maximum period to prision mayor in its medium period.
Section 1 of the Indeterminate Sentence Law provides:

A felony is consummated when all the elements necessary for its execution and accomplishment are
x x x the court shall sentence the accused to an indeterminate sentence the maximum term of which shall
present; and it is frustrated when the offender performs all the acts of execution which would produce the
be that which, in view of the attending circumstances, could be properly imposed under the rules of the
felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the
Revised Penal Code, and the minimum which shall be within the range of the penalty next lower to that
will of the perpetrator.
prescribed by the Code for the offense.1âwphi1

There is an attempt when the offender commences the commission of a felony directly by overt acts, and
Thus, appellant should serve an indeterminate sentence ranging from two (2) years, four (4) months and
does not perform all the acts of execution which should produce the felony by reason of some cause or
one (1) day of prision correccional in its medium period to eight (8) years and one (1) day of prision mayor
accident other than his own spontaneous desistance.
in its medium period.

In Serrano v. People,19 we distinguished a frustrated felony from an attempted felony in this manner:
Award of damages

1.) In a frustrated felony, the offender has performed all the acts of execution which should
In light of recent jurisprudence, we deem it proper to increase the amount of damages imposed by the
produce the felony as a consequence; whereas in an attempted felony, the offender merely
lower court in both cases. In Criminal Case No. 2001-1555, this Court hereby awards ₱75,000.00 as civil
commences the commission of a felony directly by overt acts and does not perform all the acts
indemnity23 and ₱30,000.00 as exemplary damages.24 The award of ₱50,000.00 as moral damages in the
of execution.
foregoing case is sustained. Appellant is also liable to pay ₱40,000.00 as moral damages and ₱30,000.00 as
exemplary damages, in relation to Criminal Case No. 2002-1777.
2.) In a frustrated felony, the reason for the non-accomplishment of the crime is some cause
independent of the will of the perpetrator; on the other hand, in an attempted felony, the reason
WHEREFORE, we AFFIRM the 18 October 2011 Decision of the Court of Appeals-Cebu in CA-G.R.
for the non-fulfillment of the crime is a cause or accident other than the offender’s own
CEB CR-HC No. 01000 with MODIFICATIONS. In Criminal Case No. 2002-1777, we find that appellant
spontaneous desistance.20
Regie Labiaga is GUILTY of Attempted Murder and shall suffer an indeterminate sentence ranging from
two (2) years, four (4) months and one (1) day of prision correccional as minimum, to eight (8) years and
In frustrated murder, there must be evidence showing that the wound would have been fatal were it not for one (1) day of prision mayor as maximum, and pay ₱40,000.00 as moral damages and ₱30,000.00 as
timely medical intervention.21 If the evidence fails to convince the court that the wound sustained would exemplary damages. In Criminal Case No. 2001-1555, appellant shall pay ₱75,000.00 as civil indemnity,
have caused the victim’s death without timely medical attention, the accused should be convicted of ₱50,000.00 as moral damages, and ₱30,000.00 as exemplary damages.
attempted murder and not frustrated murder.
SO ORDERED.
In the instant case, it does not appear that the wound sustained by Gregorio Conde was mortal. This was
admitted by Dr. Edwin Figura, who examined Gregorio after the shooting incident:

Prosecutor Con-El:
G.R. No. 220598

76
GLORIA MACAPAGAL ARROYO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES AND THE SANDIGANBAYAN, (First Division), Respondents
RES OLUTIO N
BERSAMIN,, J.:
On July 19, 2016, the Court promulgated its decision, disposing:
WHEREFORE, the Court GRANTS the petitions for certiorari; ANNULS and SETS ASIDE the
resolutions issued in Criminal Case No. SB-12-CRM-0174 by the Sandiganbayan on April 6, 2015 and
September 10, 2015; GRANTSthe petitioners' respective demurrers to evidence; DISMISSES Criminal
Case No. SB-12-CRM-0174 as to the petitioners GLORIAMACAPAGAL-
ARROYO and BENIGNOAGUAS for insufficiency of evidence; ORDERS the immediate release from
detention of said petitioners; and MAKES no pronouncements on costs of suit.
SO ORDERED. 1
On August 3, 2016, the State, through the Office of the Ombudsman, has moved for the reconsideration of
the decision, submitting that:
I. THIS HONORABLE COURT'S GIVING DUE COURSE TO A CERTIORARI ACTION
ASSAILING AN INTERLOCUTORY ORDER DENYING DEMURRER TO EVIDENCE VIOLA
TES RULE 119, SECTION 23 OF THE RULES OF COURT, WHICH PROVIDES THAT AN
ORDER DENYING THE DEMURRER TO EVIDENCE SHALL NOT BE REVIEWABLE BY
APPEAL OR BY CERTIORARI BEFORE JUDGMENT.
II. THE HONORABLE COURT COMMITTED GRAVE ERRORS WHICH AMOUNT TO A
VIOLATION OR DEPRIVATION OF THE STATE'S FUNDAMENTAL RIGHT TO DUE
PROCESS OF LAW.
A. THE DECISION REQUIRES ADDITIONAL ELEMENTS IN THE PROSECUTION
OF PLUNDER, VIZ. IDENTIFICATION OF THE MAIN
PLUNDERER AND PERSONAL BENEFIT TO HIM/HER, BOTH OF WHICH ARE
NOT PROVIDED IN THE TEXT OF REPUBLIC ACT (R.A.) NO. 7080.
B. THE EVIDENCE PRESENTED BY THE PROSECUTION WAS NOT FULLY
TAKEN INTO ACCOUNT, INCLUDING BUT NOT LIMITED TO
THE IRREGULARITIES IN THE CONFIDENTIAL/INTELLIGENCE FUND (CIF)
DISBURSEMENT PROCESS, QUESTIONABLE PRACTICE OF CO-MINGLING OF
FUNDSAND AGUAS' REPORTS TO THE COMMISSION ON AUDIT (COA) THAT
BULK OF THE PHP365,997,915.00 WITHDRAWN FROM THE PHILIPPINE
CHARITY SWEEPSTAKES OFFICE'S (PCSO) CIF WERE DIVERTED TO THE
ARROYO-HEADED OFFICE OF THE PRESIDENT.
C. ARROYO AND AGUAS, BY INDISPENSABLE COOPERATION, IN CONSPIRACY
WITH THEIR COACCUSED IN SB-12-CRM-0174, COMMITTED PLUNDER VIA· A
COMPLEX ILLEGAL SCHEME WHICH DEFRAUDED PCSO IN HUNDREDS OF
MILLIONS OF PESOS.
D. EVEN ASSUMING THAT THE ELEMENTS OF PLUNDER WERE NOT PROVEN
BEYOND REASONABLE DOUBT, THE EVIDENCE PRESENTED BY THE PEOPLE
SHOWS, BEYOND REASONABLE DOUBT, THAT ARROYO, AGUAS AND THEIR
COACCUSED IN SB-12-CRM-0174 ARE GUILTY OF MALVERSATION. 2
In contrast, the petitioners submit that the decision has effectively barred the consideration and granting of
the motion for reconsideration of the State because doing so would amount to the re-prosecution or revival
of the charge against them despite their acquittal, and would thereby violate the constitutional proscription
against double jeopardy.
Petitioner Gloria M. Macapagal-Arroyo (Arroyo) points out that the State miserably failed to prove
the corpus delicti of plunder; that the Court correctly required the identification of the main plunderer as
well as personal benefit on the part of the raider of the public treasury to enable the successful prosecution
of the crime of plunder; that the State did not prove the conspiracy that justified her inclusion in the
charge; that to sustain the case for malversation against her, in lieu of plunder, would violate her right to be
informed of the accusation against her because the information did not necessarily include the crime of
malversation; and that even if the information did so, the constitutional prohibition against double jeopardy
already barred the re-opening of the case for that purpose.
Petitioner Benigno B. Aguas echoes the contentions of Arroyo in urging the Com1 to deny the motion for
reconsideration.
In reply, the State avers that the prohibition against double jeopardy does not apply because it was denied
its day in court, thereby rendering the decision void; that the Court should re-examine the facts and pieces
of evidence in order to find the petitioners guilty as charged; and that the allegations of the information
sufficiently included all that was necessary to fully inform the petitioners of the accusations against them.
Ruling of the Court
The Court DENIES the motion for reconsideration for its lack of merit.
To start with, the State argues' that the consolidated petitions for certiorari were improper remedies in light
of Section 23, Rule 119 of the Rules of Court expressly prohibiting the review of the denial of their
demurrer prior to the judgment in the case either by appeal or by certiorari; that the Court has thereby
limited its own power, which should necessarily prevent the giving of due course to the petitions
for certiorari, as well as the undoing of the order denying the petitioners' demurrer to evidence; that the
proper remedy under the Rules of Court was for the petitioners to proceed to trial and to present their
evidence-in-chief thereat; and that even if there had been grave abuse of discretion attending the denial, the
Court's certiorari powers should be exercised only upon the petitioners' compliance with the stringent
requirements of Rule 65, particularly with the requirement that there be no plain, speedy or adequate
remedy in the ordinary course of law, which they did not establish.
Section 23, Rule 119 of the Rules of Court, pertinently provides:
Section 23. Demurrer to evidence. – xxx
xxxx
The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself
shall not be reviewable by appeal or by certiorari before judgment. (n)
77
The argument of the State, which is really a repetition of its earlier submission, was squarely resolved in Secondly, the State submits that its right to due process was violated because the decision imposed
the decision, as follows: additional elements for plunder that neither ' Republic Act No. 7080 nor jurisprudence had theretofore
required, i.e., the identification of the main plunderer, and personal benefit on the part of the accused
committing the predicate crime of raid on the public treasury. The State complains that it was not given the
The Court holds that it should take cognizance of the petitions for certiorari because
opportunity to establish such additional elements; that the imposition of new elements fu1iher amounted to
the Sandiganbayan, as shall shortly be demonstrated, gravely abused its discretion amounting to lack or
judicial legislation in violation of the doctrine of separation of powers; that the Court nitpicked on the
excess of jurisdiction.
different infirmities of the information despite the issue revolving only around the sufficiency of the
evidence; and that it established all the elements of plunder beyond reasonable doubt.
The special civil action for certiorari is generally not proper to assail such an interlocutory order issued by
the trial court because of the availability of another remedy in the ordinary course of law. Moreover,
The State cites the plain meaning rule to highlight that the crime of plunder did not require personal benefit
Section 23, Rule 119 of the Rules of Court expressly provides that "the order denying the motion for leave
on the part of the raider of the public treasury. It insists that the definition of raids on the public
of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or
treasury, conformably with the plain meaning rule, is the taking of public money through fraudulent or
by certiorari before judgment." It is not an insuperable obstacle to this action, however, that the denial of
unlawful means, and such definition does not require enjoyment or personal benefit on the part of
the demurrers to evidence of the petitioners was an interlocutory order that did not terminate the
plunderer or on the part of any of his co-conspirators for them to be convicted for plunder.
proceedings, and the proper recourse of the demurring accused was to go to trial, and that in case of their
conviction they may then appeal the conviction, and assign the denial as among the errors to be reviewed.
Indeed, it is doctrinal that the situations in which the writ of certiorari may issue should not be limited, The submissions of the State are unfounded.
because to do so -
The requirements for the identification of the main plunderer and for personal benefit in the predicate act
x x x would be to destroy its comprehensiveness and usefulness. So wide is the discretion of the com1 that of raids on the public treasury have been written in R.A. No. 7080 itself as well as embedded in pertinent
authority is not wanting to show that certiorari is more discretionary than either prohibition jurisprudence. This we made clear in the decision, as follows:
or mandamus. In the exercise of oursuperintending control over other courts, we are to be guided by
all the circumstances of each particular case 'as the ends of justice may require.' So it is that the writ
A perusal of the information suggests that what the Prosecution sought to show was an implied conspiracy
will be granted where necessary to prevent a substantial wrong or to do substantial justice.
to commit plunder among all of the accused on the basis of their collective actions prior to, during and
after the implied agreement. It is notable that the Prosecution did not allege that the conspiracy among all
The Constitution itself has imposed upon the Court and the other courts of justice the duty to correct errors of the accused was by express agreement, or was a wheel conspiracy or a chain conspiracy.
of jurisdiction as a result of capricious, arbitrary, whimsical and despotic exercise of discretion by
expressly incorporating in Section 1 of Article VIII the following provision:
This was another fatal flaw of the Prosecution.

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
In its present version, under which the petitioners were charged, Section 2 of Republic Act No. 7080
established by law.
(Plunder Law) states:

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
Section 2. Definition of the Crime of Plunder: Penalties. - Any public officer who, by himself or in
which are legally demandable and enforceable, and to determine whether or not there has been a
connivance with members of his family, relatives by affinity or consanguinity, business associates,
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or
instrumentality of the Government. The exercise of this power to correct grave abuse of discretion
series of overt criminal acts as described in Section 1 (d) hereof in the aggregate amount or total value of at
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
least Fifty million pesos (₱50,000,000.00) shall be guilty of the crime of plunder and shall be punished
Government cannot be thwarted by rules of procedure to the contrary or for the sake of the
by reclusion perpetua to death. Any person who participated with the said public officer in the commission
convenience of one side. This is because the Court has the bounden constitutional duty to strike
of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the
down grave abuse of discretion whenever and wherever it is committed. Thus, notwithstanding the
imposition of penalties, the degree of participation and the attendance of mitigating and extenuating
interlocutory character and effect of the denial of the demurrers to evidence, the petitioners as the
circumstances, as provided by the Revised Penal Code, shall be considered by the court. The court shall
accused could avail themselves of the remedy of certiorari when the denial was tainted with grave
declare any and all ill-gotten wealth and their interests and other incomes and assets including the
abuse of discretion. As we shall soon show, the Sandiganbayan as the trial court was guilty of grave
properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the
abuse of discretion when it capriciously denied the demurrers to evidence despite the absence of
State. [As Amended by Section 12, Republic Act No. 7659 (The Death Penalty Law)]
competent and sufficient evidence to sustain the indictment for plunder, and despite the absence of
the factual bases to expect a guilty verdict.3
Section l(d) of Republic Act No. 7080 provides:
We reiterate the foregoing resolution, and stress that the prohibition contained in Section 23, Rule 119 of
the Rules of Court is not an insuperable obstacle to the review by the Court of the denial of the demurrer to Section 1. Definition of terms. - As used in this Act, the term:
evidence through certiorari. We have had many rulings to that effect in the past. For instance, in Nicolas v.
Sandiganbayan,4the Court expressly ruled that the petition for certiorari was the proper remedy to assail
xxxx
the denial of the demurrer to evidence that was tainted with grave abuse of discretion or excess of
jurisdiction, or oppressive exercise of judicial authority.
d. "Ill-gotten wealth" means any asset, property, business enterprise or material possession of any person
within the purview of Section two (2) hereof, acquired by him directly or indirectly through dummies,
78
nominees, agents, subordinates and/or business associates by any combination or series of the following
means or similar schemes:
1. Through misappropriation, conversion, misuse, or malversation of public funds or raids on
the public treasury;
2. By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or
any/or entity in connection with any government contract or project or by reason of the office
or position of the public officer concerned;
3. By the illegal or fraudulent conveyance or disposition of assets belonging to the National
Government or any of its subdivisions, agencies or instrumentalities or government-owned or
controlled corporations and their subsidiaries;
4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any
other form of interest or participation including the promise of future employment in any
business enterprise or undertaking;
5. By establishing agricultural, industrial or commercial monopolies or other combinations
and/or implementation of decrees and orders intended to benefit particular persons or special
interests; or
6. By taking undue advantage of official positi0n, authority, relationship, connection or
influence to unjustly enrich himself or themselves at the expense and to the damage and
prejudice
The law on plunder requires that a particular public officer must be identified as the one who
amassed, acquired or accumulated ill-gotten wealth because it plainly states that plunder is
committed by any public officer who, by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth in the aggregate amount or total value of at least
₱50,000,000.00 through a combination or series of overt criminal acts as described in Section l(d)
hereof. Surely, the law requires in the criminal charge for plunder against several individuals that
there must be a main plunderer and her co-conspirators, who may be members of her family,
relatives by affinity or consanguinity, business associates, subordim1tes or other persons. In other
words, the allegation of the wheel conspiracy or express conspiracy in the information was
appropriate because the main plunderer would then be identified in either manner. Of course,
implied conspiracy could also identify the main plunderer, but that fact must be properly alleged
and duly proven by the Prosecution.
This interpretation is supported by Estrada v. Sandiganbayan, where the Court explained the nature of the
conspiracy charge and the necessity for the main plunderer for whose benefit the amassment, accumulation
and acquisition was made, thus:
There is no denying the fact that the "plunder of an entire nation resulting in material damage to the
national economy" is made up of a complex and manifold network of crimes. In the crime of plunder,
therefore, different parties may be united by a common purpose. In the case at bar, the different accused
and their different criminal acts have a commonality - to help the former President amass, accumulate or
acquire ill-gotten wealth. Sub-paragraphs (a) to (d) in the Amended Information alleged the different
participation of each accused in the conspiracy. The gravamen of the conspiracy charge, therefore, is
not that each accused agreed to receive protection money from illegal gambling, that each misappropriated
a portion of the tobacco excise tax, that each accused ordered the GSIS and SSS to purchase shares of
Belle Corporation and receive commissions from such sale, nor that each unjustly enriched himself from
commissions, gifts and kickbacks; rather, it is that each of them, by their individual acts, agreed to
participate, directly or indirectly, in the amassing, accumulation and acquisition of ill-gotten wealth
of and/or for former President Estrada. 5 [bold underscoring supplied for emphasis]
Indeed, because plunder is a crime that only a public official can commit by amassing, accumulating, or
acquiring ill-gotten wealth in the aggregate amount or total value of at least ₱50,000,000.00, the
identification in the information of such public official as the main plunderer among the several individuals
thus charged is logically necessary under the law itself. In particular reference to Criminal Case No. SB-
12-CRM-0174, the individuals charged therein - including the petitioners - were 10 public officials; hence,
it was only proper to identify the main plunderer or plunderers among the 10 accused who herself or
himself had amassed, accumulated, or acquired ill-gotten wealth with the total value of at least
₱50,000,000.00.
The phrase raids on the public treasury as used in Section 1 (d) of R. A. No. 7080 is itself ambiguous. In
order to ascertain the objective meaning of the phrase, the act of raiding the public treasury cannot be
divided into parts. This is to differentiate the predicate act of raids on the public treasury from other
offenses involving property, like robbery, theft, or estafa. Considering that R.A. No. 7080 does not
expressly define this predicate act, the Court has necessarily resorted to statutory construction. In so doing,
the Court did not adopt the State's submission that personal benefit on the part of the accused need not be
alleged and shown because doing so would have defeated the clear intent of the law itself,6 which was to
punish the amassing, accumulating, or acquiring of ill-gotten wealth in the aggregate amount or total value
of at least ₱150,000,000.00 by any combination or series of acts of misappropriation, conversion, misuse,
or malversation of public funds or raids on the public treasury.
As the decision has observed, the rules of statutory construction as well as the deliberations of Congress
indicated the intent of Congress to require personal benefit for the predicate act of raids on the public
treasury, viz.:
The phrase raids on the public treasury is found in Section 1 (d) of R.A. No. 7080, which provides:
Section l .Definition of Terms. – xxx
xxxx
d) Ill-gotten wealth means any asset, prope1iy, business enterprise or material possession of any person
within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by any combination or series of the following
means or similar schemes:
1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury;
xxxx
To discern the proper import of the phrase raids on the public treasury, the key is to look at the
accompanying words: misappropriation, conversion, misuse or malversation of public funds. This
process is conformable with the maxim of statutory construction noscitur a sociis, by which the
correct construction of a particular word or phrase that is ambiguous in itself or is equally
susceptible of various meanings may be made by considering the company of the words in which the
word or phrase is found or with which it is associated. Verily, a word or phrase in a statute is always
used in association with other words or phrases, and its meaning may, therefore, be modified or
restricted by the latter.
79
To convert connotes the act of using or disposing of another's property as if it were one's own; to
misappropriate means to own, to take something for one's own benefit; misuse means "a good, substance,
privilege, or right used improperly, unforcsccably, or not as intended;" and malversation occurs when "any
public officer who, by reason of the duties of his office, is accountable for public funds or property, shall
appropriate the same or shall take or misappropriate or shall consent, through abandonment or negligence,
shall permit any other person to take such public funds, or property, wholly or partially." The common
thread that binds all the four terms together is that the public officer used the property taken. Considering
that raids on the public treasury is in the company of the four other terms that require the use of the
property taken, the phrase raids on the public treasury similarly requires such use of the property taken.
Accordingly, the Sandiganbayan gravely erred in contending that the mere accumulation and gathering
constituted the forbidden act of raids on the public treasury. Pursuant to the maxim of noscitur a sociis,
raids on the public treasury requires the raider to use the property taken impliedly for his personal benefit. 7
The Prosecution asserts that the Senate deliberations removed personal benefit as a requirement for
plunder. In not requiring personal benefit, the Sandiganbayan quoted the following exchanges between
Senator Enrile and Senator Tafiada, viz.:
Senator Enrile. The word here, Mr. President, "such public officer or person who conspired or knowingly
benefited". One does not have to conspire or rescheme. The only element needed is that he "knowingly
benefited". A candidate for the Senate for instance, who received a political contribution from a plunderer,
knowing that the contributor is a plunderer and therefore, he knowingly benefited from the plunder, would
he also suffer the penalty, Mr. President, for life imprisonment?
Senator Tafiada. In the committee amendments, Mr. President, we have deleted these lines 1 to 4 and part
of line 5, on page 3. But, in a way, Mr. President, it is good that the Gentleman is bringing out these
questions, I believe that under the examples he has given, the Court will have to...
Senator Enrile. How about the wife, Mr. President, he may not agree with the plunderer to plunder the
country but because she is a dutiful wife or a faithful husband, she has to keep her or his vow of fidelity to
the spouse. And, of course, she enjoys the benefits out of the plunder. Would the Gentleman now impute to
her or him the crime of plunder simply because she or he knowingly benefited out of the fruits of the
plunder and, therefore, he must suffer or he must suffer the penalty of life imprisonment?
The President. That was stricken out already in the Committee amendment.
Senator Tañada. Yes, Mr. President. Lines 1 to 4 and part of line 5 were stricken out in the Committee
amendment. But, as I said, the examples of the Minority Floor Leader are still worth spreading
the Record. And, I believe that in those examples, the Court will have just to take into consideration all the
other circumstances prevailing in the case and the evidence that will be submitted.
The President. In any event, 'knowingly benefited' has already been stricken off."
The exchanges between Senator Enrile and Senator Tañada reveal, therefore, that what was removed from
the coverage of the bill and the final version that eventually became the law was a person who was not the
main plunderer or a co-conspirator, but one who personally benefited from the plunderers' action. The
requirement of personal benefit on the part of the main plunderer or his co-conspirators by virtue of their
plunder was not removed.
As a result, not only did the Prosecution fail to show where the money went but, more importantly, that
GMA and Aguas had personally benefited from the same. Hence, the Prosecution did not prove the
predicate act of raids on the public treasury beyond reasonable doubt. 8
Thirdly, the State contends that the Court did not appreciate the totality of its evidence, particularly the
different irregularities committed in the disbursement of the PCSO funds, i.e., the commingling of funds,
the non-compliance with LOI No. 1282, and the unilateral approval of the disbursements. Such totality,
coupled with the fact of the petitioners' indispensable cooperation in the pilfering of public funds, showed
the existence of the conspiracy to commit plunder among all of the accused.
The contention lacks basis.
As can be readily seen from the decision, the Court expressly granted the petitioners' respective demurrers
to evidence and dismissed the plunder case against them for insufficiency of evidence because:
x x x the Sandiganbayan as the trial court was guilty of grave abuse of discretion when it capriciously
denied the demurrers to evidence despite the absence of competent and sufficient evidence to sustain
the indictment for plunder, and despite the absence of the factual bases to expect a guilty verdict. 9
Such disposition of the Court fully took into consideration all the evidence adduced against the petitioners.
We need not rehash our review of the evidence thus adduced, for it is enough simply to stress that the
Prosecution failed to establish the corpus delicti of plunder - that any or all of the accused public officials,
particularly petitioner Arroyo, had amassed, accumulated, or acquired ill-gotten wealth in the aggregate
amount or total value of at least ₱50,000,000.00.
Fourthly, in accenting certain inadequacies of the allegations of the information, the Court did not engage
in purposeless nitpicking, and did not digress from the primary task of determining the sufficiency of the
evidence presented by the State against the petitioners. What the Court thereby intended to achieve was to
highlight what would have been relevant in the proper prosecution of plunder and thus enable itself to
discern and determine whether the evidence of guilt was sufficient or not. In fact, the Court categorically
clarified that in discussing the essential need for the identification of the main plunderer it was not harping
on the sufficiency of the information, but was only enabling itself to search for and to find the relevant
proof that unequivocally showed petitioner Arroyo as the "mastermind" - which was how the
Sandiganbayan had characterized her participation - in the context of the implied conspiracy alleged in the
information. But the search came to naught, for the information contained nothing that averred her
commission of the overt act necessary to implicate her in the supposed conspiracy to commit the crime of
plunder. Indeed, the Court assiduously searched for but did not find the sufficient incriminatory evidence
against the petitioners. Hence, the Sandiganbayan capriciously and oppressively denied their demurrers to
evidence.
Fifthly, the State posits that it established at least a case for malversation against the petitioners.
Malversation is defined and punished under Article 217 of the Revised Penal Code, which reads thusly:
Article 217. Malversation of public funds or property; Presumption of malversation. - Any public officer
who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the
same or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any
other person to take such public funds, or property, wholly or partially, or shall otherwise be guilty of the
misappropriation or malversation of such funds or property, shall suffer:
1. The penalty of prision correccional in its medium and maximum periods, if the amount
involved in the misappropriation or malversation does not exceed two hundred pesos.
2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is
more than two hundred pesos but does not exceed six thousand pesos.
80
 3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum
period, if the amount involved is more than six thousand pesos but is less than twelve thousand
pesos.
4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount
involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the
amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period
to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification
and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or property with which he is
chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such
missing funds or property to personal use. (As amended by RA 1060).
The elements of malversation are that: (a) the offender is an accountable public officer; (b) he/she is
responsible for the misappropriation of public funds or property through intent or negligence; and (c)
he/she has custody of and received such funds and property by reason of his/her office. 10
The information in Criminal Case No. SB-12-CRM-017411 avers:
The undersigned Assistant Ombudsman and Graft Investigation and Prosecution Officer III, Office of the
Ombudsman, hereby accuse GLORIA MACAPAGAL-ARROYO, ROSARIO C. URIARTE, SERGIO O.
VALENCIA, MANUEL L. MORATO, JOSE R. TARUC V, RAYMUNDO T. ROQUERO, MA. FATIMA
AS. VALDES, BENIGNO B. AGUAS, REYNALDO A. VILLAR and NILDA B. PLARAS, of the crime
of PLUNDER, as defined by, and penalized under Section 2 of Republic Act (R.A.) No. 7080, as amended
by R.A. No. 7659, committed, as follows:
That during the period from January 2008 to June 2010 or sometime prior or subsequent thereto, in
Quezon City, Philippines, and within the jurisdiction of this Honorable Court, accused GLORIA
MACAPAGAL-ARROYO, then the President of the Philippines, ROSARIO C. URIARTE, then General
Manager and Vice Chairman, SERGIO 0. VALENCIA, then Chairman of the Board of Directors,
MANUEL L. MORA TO, JOSE R. TARUC V, RAYMUNDO T. ROQUERO, MA. FATIMA AS.
VALDES, then members of the Board of Directors, BENIGNO B. AGUAS, then Budget and Accounts
Manager, all of the Philippine Charity Sweepstakes Office (PCSO), REYNALDO A. VILLAR, then
Chairman, and NILDA B. PLARAS, then Head of Intelligence/Confidential Fund Fraud Audit Unit, both
of the Commission on Audit, all public officers committing the offense in relation to their respective
offices and taking undue advantage of their respective official positions, authority, relationships,
connections or influence, conniving, conspiring and confederating with one another, did then and there
willfully, unlawfully and criminally 'amass,, accumulate and/or acquire directly or indirectly, ill-gotten
wealth in the aggregate amount or total value of THREE HUNDRED SIXTY FIVE MILLION NINE
HUNDRED NINETY SEVEN THOUSAND NINE HUNDRED FIFTEEN PESOS (PHP365,997,915.00),
more or less, through any or a combination or a series of overt or criminal acts, or similar schemes or
means, described as follows:
(a) diverting in several instances, funds from the operating budget of PCSO to its
Confidential/Intelligence Fund that could be accessed and withdrawn at any time with minimal
restrictions, and converting, misusing, and/or illegally conveying or transferring the proceeds
drawn from said fund in the aforementioned sum, also in several instances, to themselves, in the
guise of fictitious expenditures, for their personal gain and benefit;
(b) raiding the public treasury by withdrawing and receiving, in several instances, the above-
mentioned amount from the Confidential/Intelligence Fund from PCSO's accounts, and or
unlawfully transferring or conveying the same into their possession and control through
irregularly issued disbursement vouchers and fictitious expenditures; and
(c) taking advantage of their respective official positions, authority, relationships, connections
or influence, in several instances, to unjustly enrich themselves in the aforementioned sum, at
the expense of, and the damage and prejudice of the Filipino people and the Republic of the
Philippines.
CONTRARY TO LAW.
In thereby averring the predicate act of malversation, the State did not sufficiently allege the
aforementioned essential elements of malversation in the information. The omission from the information
of factual details descriptive of the aforementioned elements of malversation highlighted the insufficiency
of the allegations. Consequently, the State's position is entirely unfounded.
Lastly, the petitioners insist that the consideration and granting of the motion for reconsideration of the
State can amount to a violation of the constitutional prohibition against double jeopardy because their
acquittal under the decision was a prior jeopardy within the context of Section 21, Article III (Bill of
Rights) of the 1987 Constitution, to wit:
Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another
prosecution for the same act.
The insistence of the petitioners is fully warranted. Indeed, the consideration and granting of the motion
for reconsideration of the State will amount to the violation of the constitutional guarantee against double
jeopardy.
The Court's consequential dismissal of Criminal Case No. SB-12- CRM-0174 as to the petitioners for
insufficiency of evidence amounted to their acquittal of the crime of plunder charged against them.
In People v. Tan, 12the Court shows why:
In People v. Sandiganbayan, this Com1 explained the general rule that the grant of a demurrer to evidence
operates as an acquittal and is, thus, final and unappealable, to wit:
The demurrer to evidence in criminal cases, such as the one at bar, is ''filed after tile prosecution had
rested its case," and when the same is granted, it calls "for an appreciation of the evidence adduced
by the prosecution and its sufficiency to warrant conviction beyond reasonable doubt, resulting in
a dismissal of the case on the merits, tantamount to an acquittal of the accused." Such dismissal of a
criminal case by the grant of demurrer to evidence may not be appealed, for to do so would be to
place the accused in double jeopardy. The verdict being one of acquittal, the case ends there.
xxxx
The rule on double jeopardy, however, is not without exceptions. In People v. Laguio, Jr., this Court stated
that the only instance when double jeopardy will not attach is when the RTC acted with grave abuse of
discretion, thus:
81
... The only instance when double ,jeopardy will not attach is when the trial court acted with grave abuse of
discretion amounting to lack or excess of jurisdiction, such as where the prosecution was denied the
opportunity to present its case or where the trial was a sham. However, while certiorari may be availed of
to correct an erroneous acquittal, the petitioner in such an extraordinary proceeding must clearly
demonstrate that the trial court blatantly abused its authority to a point so grave as to deprive it of its very
power to dispense justice. 13

The constitutional prohibition against placing a person under double jeopardy for the same offense bars not
only a new and independent prosecution but also an appeal in the same action after jeopardy had
attached. 14 As such, every acquittal becomes final immediately upon promulgation and cannot be recalled
for correction or amendment. With the acquittal being immediately final, granting the State's motion for
reconsideration in this case would violate the Constitutional prohibition against double jeopardy because it
would effectively reopen the prosecution and subject the petitioners to a second jeopardy despite their
acquittal.

It is cogent to remind in this regard that the Constitutional prohibition against double jeopardy provides to
the accused three related protections, specifically: protection against a second prosecution for the same
offense after acquittal; protection against a second prosecution for the same offense after
conviction; and protection against multiple punishments for the same offense. 15The rationale for the three
protections is expounded in United States v. Wilson: 16

The interests underlying these three protections arc quite similar. When a defendant has been once
convicted and punished for a particular crime, principles of fairness and finality require that he not
be subjected to the possibility of further punishment by being again tried or sentenced for the same
offense.Ex pa rte Lange, 18 Wall 163 (1874); In re Nielsen, 131 U.S. 176 (1889). When a defendant has
been acquitted of an offense, the Clause guarantees that the State shall not be permitted to make
repeated attempts to convict him,

"thereby subjecting him to embarrassment, expense and ordeal, and compelling him to live in a
continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though
innocent, he may be found guilty."

Green v. United States, 355 U.S. 184, 187-188 (1957).

The policy of avoiding multiple trials has been regarded as so important that exceptions to the
principle have been only grudgingly allowed. Initially, a new trial was thought to be unavailable
after appeal, whether requested by the prosecution or the defendant. See United States v. Gibert, 25 F.
Cas. 1287 (No. 15,204) (CCD Mass. 1834) (Story, J.). It was not until 1896 that it was made clear that a
defendant could seek a new trial after conviction, even though the Government enjoyed no similar
right. United States v. Ball, 163 U.S. 662. (Bold underscoring supplied for emphasis)

WHEREFORE, the Court DENIES the motion for reconsideration for lack of merit.

SO ORDERED.

G.R. No. 220598

82
GLORIA MACAPAGAL-ARROYO, Petitioner,
vs
PEOPLE OF THE PHILIPPINES AND THE SANDIGANBAYAN (First Division), Respondents.
x-----------------------x
G.R. No. 220953
BENIGNO B. AGUAS, Petitioner,
vs.
SANDIGANBAYAN (First Division), Respondent.
DECISION
BERSAMIN, J.:
We resolve the consolidated petitions for certiorari separately brought to assail and annul the resolutions
issued on April 6, 20151 and September 10, 2015,2 whereby the Sandiganbayan respectively denied their
demurrer to evidence, and their motions for reconsideration, asserting such denials to be tainted with grave
abuse of discretion amounting to lack or excess of jurisdiction.
Antecedents
On July 10, 2012, the Ombudsman charged in the Sandiganbayan former President Gloria Macapagal-
Arroyo (GMA); Philippine Charity Sweepstakes Office (PCSO) Budget and Accounts Officer Benigno
Aguas; PCSO General Manager and Vice Chairman Rosario C. Uriarte; PCSO Chairman of the Board of
Directors Sergio 0. Valencia; Members of the PCSO Board of Directors, namely: Manuel L. Morato, Jose
R. Taruc V, Raymundo T. Roquero, and Ma. Fatima A.S. Valdes; Commission on Audit (COA) Chairman
Reynaldo A. Villar; and COA Head of Intelligence/Confidential Fund Fraud Audit Unit Nilda B. Plaras
with plunder. The case was docketed as Criminal Case No. SB-12-CRM-O 174 and assigned to the First
Division of the Sandiganbayan.
The information3 reads:
The undersigned Assistant Ombudsman and Gratl Investigation and Prosecution Officer III, Office of the
Ombudsman, hereby accuse GLORIA MACAPAGAL-ARROYO, ROSARIO C. URIARTE, SERGIO O.
VALENCIA, MANUEL L. MORA TO, JOSE R. TARUC V, RAYMUNDO T. ROQUERO, MA. FATIMA
A.S. V ALOES, BENIGNO B. AGUAS, REYNALDO A. VILLAR and NILDA B. PLARAS, of the crime
of PLUNDER, as defined by, and penalized under Section 2 of Republic Act (R.A.) No. 7080, as amended
by R.A. No. 7659, committed, as follows:
That during the period from January 2008 to June 2010 or sometime prior or subsequent thereto, in
Quezon City, Philippines, and within the jurisdiction of this Honorable Court, accused GLORIA MA CAP
A GAL-ARROYO, then the President of the Philippines, ROSARIO C. URIARTE, then General Manager
and Vice Chairman, SERGIO O. VALENCIA, then Chairman of the Board of Directors, MANUEL L.
MORA TO, JOSE R. TARUC V, RAYMUNDO T. ROQUERO, MA. FATIMA A.S. V ALOES, then
members of the Board of Directors, BENIGNO B. AGUAS, then Budget and Accounts Manager, all of the
Philippine Charity Sweepstakes Office (PCSO), REYNALDO A. VILLAR, then Chairman, and NILDA B.
PLARAS, then Head of Intelligence/Confidential Fund Fraud Audit Unit, both of the Commission on
Audit, all public officers committing the offense in relation to their respective offices and taking undue
advantage of their respective official positions, authority, relationships, connections or influence,
conniving, conspiring and confederating with one another, did then and there willfully, unlawfully and
criminally amass, accumulate and/or acquire. Directly or indirectly, ill-gotten wealth in the aggregate
amount or total value of THREE HUNDRED SIXTY FIVE MILLION NINE HUNDRED NINETY
SEVEN THOUSAND NINE HUNDRED FIFTEEN PESOS (PHP365,997,915.00), more or less, through
any or a combination or a series of overt or criminal acts, or similar schemes or means, described as
follows:
(a) diverting in several instances, funds from the operating budget of PCSO to its
Confidential/Intelligence Fund that could be accessed and withdrawn at any time with minimal
restrictions, and converting, misusing, and/or illegally conveying or transferring the proceeds
drawn from said fund in the aforementioned sum, also in several instances, to themselves, in the
guise of fictitious expenditures, for their personal gain and benefit;
(b) raiding the public treasury by withdrawing and receiving, in several instances, the above-
mentioned amount from the Confidential/Intelligence Fund from PCSO's accounts, and or
unlawfully transferring or conveying the same into their possession and control through
irregularly issued disbursement vouchers and fictitious expenditures; and
(c) taking advantage of their respective official positions, authority, relationships, connections
or influence, in several instances, to unjustly enrich themselves in the aforementioned sum, at
the expense of, and the damage and prejudice of the Filipino people and the Republic of the
Philippines.
CONTRARY TO LAW.
By the end of October 2012, the Sandiganbayan already acquired jurisdiction over GMA, Valencia,
Morato and Aguas. Plaras, on the other hand, was able to secure a temporary restraining order (TRO) from
this Court in Plaras v. Sandiganbayan docketed as G.R. Nos. 203693-94. Insofar as Roquero is concerned,
the Sandiganbayan acquired jurisdiction as to him by the early part of 2013. Uriarte and Valdes remained
at large.
Thereafter, several of the accused separately filed their respective petitions for bail. On June 6, 2013,
the Sandiganbayan granted the petitions for bail of Valencia, Morato and Roquero upon finding that the
evidence of guilt against them was not strong.4 In the case of petitioners GMA and Aguas,
the Sandiganbayan, through the resolution dated November 5, 2013, denied their petitions for bail on the
ground that the evidence of guilt against them was strong.5 The motions for reconsideration filed by GMA
and Aguas were denied by the Sandiganbayan on February 19, 2014.6 Accordingly, GMA assailed the
denial of her petition for bail in this Court, but her challenge has remained pending and unresolved todate.
Personal jurisdiction over Taruc and Villar was acquired by the Sandiganbayan in 2014. Thereafter, said
accused sought to be granted bail, and their motions were granted on different dates, specifically on March
31, 20147 and May 9, 2014,8 respectively.
The case proceeded to trial, at which the State presented Atty. Aleta Tolentino as its main witness against
all the accused. The Sandiganbayan rendered the following summary of her testimony and evidence in its
resolution dated November 5, 2013 denying the petitions for bail of GMA and Aguas, to wit:
She is a certified public accountant and a lawyer. She is a member of the Philippine Institute of Certified
Public Accountants and the Integrated Bar of the Philippines. She has been a CPA for 30 years and a
lawyer for 20 years. She has practiced accountancy and law. She became accounting manager of several
companies. She has also taught subjects in University of Santo Tomas, Manuel L. Quezon University,
Adamson University and the Ateneo de Manila Graduate School. She currently teaches Economics,
Taxation and Land Reform.
83
Presently, she is a Member of the Board of Directors of the PCSO. The Board appointed her as Chairman
of an Audit Committee. The audit review proceeded when she reviewed the COA Annual Reports of the
PCSO for 2006 2007 2008 and 2009 (Exhibits "D" "E" "F" and "G" respectively), and the annual financial
statements contained therein for the years 2005 to 2009. The reports were given to them by the COA.
These are transmitted to the PCSO annually after the subject year of audit.
In the 2008 COA report, it was noted that there was still no deposit to the prize and charity funds, adverted
in the 2007 COA report. There was already a recommendation by the COA to separate the deposits or
funds in 2007. But the COA noted that this was not followed. The financial statements show the
Confidential and the Extra-Ordinary Miscellaneous Expenses account is P38,293,137, which is more than
the P10 million that was approved.

One of her major findings was that the former management of the PCSO was commingling the charity
fund, the prize fund and the operating fund. By commingling she means that the funds were maintained in
only one main account. This violates Section 6 of Republic Act 1169 (PCSO Charter) and generally
accepted accounting principles.
The Audit Committee also found out that there was excessive disbursement of the Confidential and
Intelligence Fund (CIF). There were also excessive disbursements for advertising expenses. The internal
audit department was also merged with the budget and accounting department, which is a violation of
internal audit rules.
There was excessive disbursement of the CIF because the PCSO was given only P10 million in 2002, i.e.
P5 million for the Office of the Chairman and P5 million for the Office of the General Manager. Such
allocation was based on the letters of then Chairman Lopez (Exh. "I") and then General Manager Golpeo
(Exh. "J"), asking for P5 million intelligence fund each. Both were dated February 21, 2000, and sent to
then President Estrada, who approved them. This allocation should have been the basis for the original
allocation of the CIF in the PCSO, but there were several subsequent requests made by the General
Manager during the time of, and which were approved by, former President Arroyo.
In the Comparative Income Statement (Exh. "K"), the 2008 Confidential/Intelligence Expense budget was
approved for P28 million. The Confidential and Extra-Ordinary Miscellaneous Expenses is the account
being used for confidential and intelligence expenses. The amount in the financial statements is over the
budgeted amount of P28 million. Further, the real disbursement is more than that, based on a summary of
expenditures she had asked the treasurer to prepare.
In the Comparative Income Statement for 2009 Budget against the 2008 Actual Budget (Exh. "L"), the
budget for CIF and expenses was P60 million.
In the 2009 COA report, it was noted that there was still no deposit to the prize and charity funds, despite
the instruction or recommendation of COA. The funds were still deposited in one account. The COA
observation in 2007 states that there is juggling or commingling of funds.
After she had concluded the audit review, she reported her findings to the Board of Directors in one of
their executive meetings. The Board instructed her to go in-depth in the investigation of the disbursements
of CIF.

The Audit Committee also asked Aguas why there were disbursements in excess of P10 million. He
The allocation in excess of P10 million was in violation of the PCSO Charter. PCSO did not have a budget
explained that there were board resolutions confirming additional CIF which were approved by former
for this. They were working on a deficit from 2004 to 2009. The charter allows only 15% of the revenue as
President Arroyo. Aguas mentioned this in one of their meetings with the directors and corporate secretary.
operating fund, which was already exceeded. The financial statements indicate that they were operating on
The board secretary, Atty. Ed Araullo, gave them the records of those resolutions.
a deficit in the years 2006 to 2009.

In the records that Araullo submitted to her, it appears that Uriarte would ask for additional CIF, by letter
It is within the power of the General Manager to ask for additional funds from the President, but there
and President Arroyo approves it by affixing her signature on that same letter-request. There were seven
should be a budget for it. The CIF should come from the operating fund, such that, when there is no more
letters or memoranda to then President Arroyo, with the subject "Request for Intelligence Fund."
operating fund, the other funds cannot be used.

She then asked their Treasurer, Mercy Hinayon, to give her a summary of all the disbursements from CIF
The funds were maintained in a commingled main account and PCSO did not have a registry of budget
from 2007 to 2010. The total of all the amounts in the summaries for three years is P365,997,915.
utilization. The excess was not taken from the operating fund, but from the prize fund and the charity fund.

After receiving the summaries of the disbursed checks, she asked Hinayon to give her the checks or copies
In 2005, the deficit was P916 million; in 2006, Pl,000,078,683.23. One of the causes of the deficit for 2006
thereof. She also asked Dorothy Robles, Budget and Accounting Manager, to give her the corresponding
was the CIF expense of P215 million, which was in excess of the approved allocation of P10 million. The
vouchers. Only two original checks were given to her, as the rest were with the bank. She asked her to
net cash provided by operating expenses in 2006 is negative, which means that there were more expenses
request certified true copies of the checks.
than what was received.

They were then called to the Senate Blue Ribbon Committee, which was then investigating the operation
In the 2007 COA report, it was found that there was still no deposit to the prize and charity funds. The
of PCSO, including the CIF. She was invited as a resource speaker in an invitation from Chairman Teofisto
COA made a recommendation regarding the deposits in one main account. There were also excessive
Guingona III (Exh. "DD"). Before the hearing, the Committee Chairman went to the PCSO and got some
disbursements of CIF amounting to P77,478,705.
documents regarding the subject matter being investigated. Araullo was tasked to prepare all the
documents needed by the Committee. These documents included the CIF summary of disbursements,
She received a copy of the PCSO corporate operating budget (COB) for the year 2008 in 2010 because she letters of Uriarte and the approval of the former president.
was already a member of its Board of Directors. The 2008 approved COB has a comparative analysis of
the actual budget for 2007 (Exh. "K"). It is stated there that the budget for CTF in 2007 is only
She attended whenever there were committee hearings. Among those who also attended were the incoming
P25,480,550. But the financial statements reflect P77 million. The budget was prepared and signed by then
members if the PCSO Board Directors and the directors. Accused Valencia and Aguas were also present in
PCSO General Manager Rosario Uriarte. It had accompanying Board Resolution No. 305, Series of 2008,
some hearings as resources speakers. They were invited in connection with the past disbursements of
which was approved by then Chairperson Valencia, and board members Valdes, Morato, Domingo, and
PCSO related to advertising expenses, CIF, vehicles for the bishops, and the commingling of funds.
attested to by Board Secretary Atty. Ronald T. Reyes.

84
The proceedings in the Committee were recorded and she secured a copy of the transcript of stenographic
notes from the Office of the Blue Ribbon Committee. In the proceeding on June 7, 2011 (Exh. ''EE"),
Uriarte testified. The witness was about two to three meters away from Uriarte when the latter testified,
and using a microphone.
According to the witness, Uriarte testified that all the confidential intelligence projects she had proposed
were approved by President Arroyo; all the requests she gave to the President were approved and signed by
the latter personally in her (Uriarte's) presence; and all the documents pertaining to the CIF were submitted
to President Arroyo. On the other hand, Valencia and Taruc said they did not know about the projects.
Statements before the Committee are under oath.
After the Committee hearings, she then referred to the laws and regulations involved to check whether the
disbursements were in accordance with law. One of the duties and responsibilities of the audit committee
was to verify compliance with the laws.
She considered the following laws: R.A. 1169, as amended (PCSO Charter); P.D. 1445 (COA Code); LOI
1282; COA Circular 92-385, as amended by Circular 2003-002, which provides the procedure for approval
of disbursements and liquidation of confidential intelligence funds. She made a handwritten flowchart
(Exh. "II") of the allocations/disbursements/liquidation and audit of the CIF, based on LOI 1282 and the
COA Circulars. A digital presentation of this flowchart was made available.
The first step is the provision or allotment of a budget because no CIF fund can be disbursed without the
allocation. This is provided in the second whereas clause of Circular 92-385. For GOCCs, applying
Circular 2003-002, there must be allocation or budget for the CIF and it should be specifically in the
corporate operating budget or would be taken from savings authorized by special provisions.
This was not followed in the PCSO CIF disbursement in 2008. The disbursement for that year was
P86,555,060. The CIF budget for that year was only P28 million, and there were no savings because they
were on deficit. This was also not followed for the year 2009. The CIF disbursement for that year was
P139,420,875. But the CIF budget was only P60 million, and there was also no savings, as they were in
deficit. For the year 2010, the total disbursement, as of June 2010, was P141,021,980. The budget was only
P60 million.
The requirements in the disbursement of the CIF are the budget and the approval of the President. If the
budget is correct, the President will approve the disbursement or release of the CIF. In this case, the
President approved the release of the fund without a budget and savings. Also, the President approved the
same in violation of LOI 1282, because there were no detailed specific project proposals and specifications
accompanying the request for additional CIF. The requests for the year 2008, 2009 and 2010 were uniform
and just enumerated the purposes, not projects. They did not contain what was required in the LOI.
The purpose of this requirement is stated in the LOI itself. The request for allocations must contain full
details and specific purposes for which the fund will be used. A detailed presentation is made to avoid
duplication of expenditures, as what had happened in the past, because of a lack of centralized planning
and organization or intelligence fund.
There was no reason for each additional intelligence fund that was approved by then President Arroyo.
The third step is the designation of the disbursing officer. In this case, the Board of Directors designated
Uriarte as Special Disbursing Officer (SDO) for the portion of the CIF that she withdrew. For the portion
withdrawn by Valencia, there was no special disbursing officer designated on record.
The designation of Uriarte was in violation of internal control which is the responsibility of the department
head, as required by Section 3 of Circular 2003-002. When she went through copies of the checks and
disbursement vouchers submitted to her, she found out that Uriarte was both the SDO and the authorized
officer to sign the vouchers and checks. She was also the payee of the checks. All the checks withdrawn by
Uriarte were paid to her and she was also the signatory of the checks.
Aside from Uriarte, Valencia also disbursed funds in the CIF. For the funds withdrawn by Valencia, he was
also the authorized officer to sign the vouchers and checks. He was also the payee of the checks.
The confidential funds were withdrawn through cash advance. She identified the vouchers and checks
pertaining to the disbursements made by Uriarte and Valencia in 2008, 2009 and 2010.
The checks of Uriarte and Valencia had the treasurer as cosignatory. The treasurer who signed depends on
when the checks were issued
She knows the signatures of Uriarte, Valencia and Aguas because they have their signatures on the records.
Uriarte and Valencia signed the vouchers to certify to the necessity and legality of the vouchers; they also
signed to approve the same, signify they are "okay" for payment and claim the amount certified and
approved as payee. Gloria P. Araullo signed as releasing officer, giving the checks to the claimants.
Accused Aguas signed the vouchers to certify that there are adequate funds and budgetary allotment, that
the expenditures were properly certified and supported by documents, and that the previous cash advances
were liquidated and accounted for. This certification means that the cash advance voucher can be released.
This is because the COA rule on cash advance is that before any subsequent cash advance is released, the
previous cash advance must be liquidated first. This certification allowed the requesting party and payee to
get the cash advance from the voucher. Without this certification, Uriarte and Valencia could not have been
able to get the cash advance. Otherwise, it was a violation of P.D. 1445 (Government Auditing Code).
The third box in the flowchart is the designation of the SDO. Board Resolutions No. 217, Series of2009
(Exh."M"), No. 2356, Series of 2009 (Exh."N"), and No. 029, Series of 2010 (Exh. "O"), resolved to
designate Uriarte as SDO for the CIF. These resolutions were signed and approved by Valencia, Taruc,
Valdes, Uriarte, Roquero and Morato. The witness is familiar with these persons' signature because their
signatures appear on PCSO official records.
Valencia designated himself as SDO upon the recommendation of COA Auditor Plaras. There was no
board resolution for this designation. There was just a certification dated February 2, 2009 (Exh. "Z4").
This certification was signed by Valencia himself and designates himself as the SDO since he is personally
taking care of the funds which are to be handled with utmost confidentiality. The witness is familiar with
Valencia's signature because it appears on PCSO official documents. Under COA rules, the Board of
Directors has authority to designate the SDO. The chairman could not do this by himself.
Plaras wrote a letter dated December 15, 2008 to Valencia. It appears in the letter that to substantiate the
liquidation report, Plaras told Valencia to designate himself as SDO because there was no disbursing
officer. It was the suggestion of Plaras. Plaras is the head of the CIF Unit under then COA Chairman Villar.
Liquidation vouchers and supporting papers were submitted to them, with corresponding fidelity bond.
COA Circulars 92-385 and 2003-002 indicate that to disburse CIF, one must be a special disbursing officer
or SDO. All disbursing officers of the government must have fidelity bonds. The bond is to protect the
government from and answer for misappropriation that the disbursing officer may do. The bond amount
required is the same as the amount that may be disbursed by the officer. It is based on total accountability
85
and not determined by the head of the agency as a matter of discretion. The head determines the
accountability which will be the basis of the bond amount.
The Charter states that the head of the agency is the Board of Directors, headed by the Chairman. But now,
under the Governance of Government Corporation law, it is the general manager.
Plaras should have disallowed or suspended the cash advances because there was no fidelity bond and the
disbursing officer was not authorized. There was no bond put up for Valencia. The records show that the
bond for Uriarte was only for the amount of Pl.5 million. This is shown in a letter dated August 23, 2010,
to COA Chairman Villar through Plaras from Aguas (Exh. "B5"), with an attachment from the Bureau of
Treasury, dated March 2, 2009. It appears there that the bond for Uriarte for the CIF covering the period
February 2009 to February 2010 was only Pl.5 million.
Aguas submitted this fidelity bond certification, which was received on August 24, 2010, late, because
under the COA Circulars, it should have been submitted when the disbursing officer was designated. It
should have been submitted to COA because a disbursing officer cannot get cash advances if they do not
have a fidelity bond.
Once an SDO is designated, the specimen signature must be submitted to COA, together with the fidelity
bond and the signatories for the cash advances.
The approval of the President pertains to the release of the budget, not its allocation. She thinks the action
of the Board was done because there was no budget. The Board's confirmation was needed because it was
in excess of the budget that was approved. They were trying to give a color of legality to them approval of
the CIF in excess of the approved corporate operating budget. The Board approval was required for the
amount to be released, which amount was approved in excess of the allotted budget for the year. The
President cannot approve an additional amount, unless there is an appropriation or a provision saying a
particular savings will be used for the CIF. The approvals here were all in excess of the approved budget.
Cash advances can be given on a per project basis for CIF. For one to get a cash advance, one must state
what the project is as to that cash advance. No subsequent cash advance should be given, until previous
cash advances have been liquidated and accounted for. If it is a continuing project, monthly liquidation
reports must be given. The difference in liquidation process between CIF and regular cash advances is that
for CIF, the liquidation goes to the Chair and not to the resident auditor of the agency or the GOCC. All of
the liquidation papers should go to the COA Chair, given on a monthly basis.
In this case, the vouchers themselves are couched generally and just say cash advance from CIF of the
Chairman or from the GM's office in accordance with her duties. There is no particular project indicated
for the cash advance. Also, the requirement that prior advances be liquidated first for subsequent advances
to be given was not followed. The witness prepared a summary of the cash advances withdrawn by the two
disbursing officers covering the years 2008, 2009 and 2010 (Exh. "D5"). The basis for this summary is the
record submitted to them by Aguas, which were supposedly submitted to COA. It shows that there were
subsequent cash advances, even if a prior advance has not yet been liquidated. Valencia submitted
liquidation reports to Villar, which consists of a letter, certification and schedule of cash advances, and
liquidation reports. One is dated July 24, 2008 (Exh. "G5") and another is dated February 13, 2009 (Exh.
"H5").
When she secured Exhibit "G5", together with the attached documents, she did not find any supporting
documents despite the statement in Exhibit "G5" that the supporting details of the expenses that were
incurred from the fund can be made available, if required. Aguas, the person who processed the cash
advances said he did not have the details or suppmiing details of documents of the expenditures.
Normally, when liquidating CIF, the certification of the head of the agency is necessary. If there were
vouchers or receipts involved, then all these should be attached to the liquidation report. There should also
be an accomplishment report which should be done on a monthly basis. All of these should be enclosed in
a sealed envelope and sent to the Chairman of the COA, although the agency concerned must retain a
photocopy of the documents. The report should have a cover/transmittal letter itemizing the documents, as
well as liquidation vouchers and other supporting papers. If the liquidation voucher and the supporting
papers are in order, then the COA Chairman or his representative shall issue a credit memorandum.
Supporting papers consist of receipts and sales invoices. The head of the agency would have to certify that
those were all actually incurred and are legal. In this case, there were no supporting documents submitted
with respect to Valencia's cash advances in 2008. Only the certifications by the SDO were submitted.
These certifications stated that he has the documents in his custody and they can be made available, if and
when necessary.
When she reviewed the CIF, she asked Aguas to produce the supporting documents which were indicated
in Valencia's certification and Aguas's own certification in the cash advance vouchers, where he also
certified that the documents supporting the cash advance were in their possession and that there was proper
liquidation. Aguas replied that he did not have them.
She identified the letter of Uriarte to Villar dated July 24, 2008 as well as a transmittal letter by Uriarte for
August 1, 2008, a certification and schedule of cash advances and an undetailed liquidation report. Among
the attachments is Board Resolution 305, a copy of the COB for 2008, a document for the second half of
2008, a document dated April 2, 2009, and a document for liquidation of P2,295,000. She also identified
another letter for P50 million, dated February 13, 2009, attached to the transmittal letter. There is a
certification attached to those two letters amounting to P2,295,000. Also attached is the schedule of cash
advances by Aguas and a liquidation report where Aguas certified that the supporting documents are
complete and proper although the supporting documents and papers are not attached to the liquidation
report, only the general statement. These documents were submitted to them by Aguas.
She was shown the four liquidation reports (Exhibits "M5", "N5", "05" and "P5") attached to the transmittal
letter and was asked whether they were properly and legally accomplished. She replied that they were
couched in general terms and the voucher for which the cash advance was liquidated is not indicated and
only the voucher number is specified. She adds that the form of the liquidation is correct, but the details
are not there and neither are the supporting papers.
The liquidation report was dated July 24, 2008, but it was submitted only on August 1, 2008 to COA, and
it supposedly covered the cash advances of Uriarte from January to May 2008. This is stated in her
summary of liquidation that was earlier marked. There were no supporting papers stated on or attached to
the liquidation report.
She identified a set of documents to liquidate the cash advances from the CIF for the second semester of
2008 by Uriarte. The transmittal letter of Uriarte was received by the COA on April 2, 2009. Upon inquiry
with Aguas, he said that he did not have any of the supporting papers that he supposedly had according to
the certification. According to him, they are with Uriarte. Uriarte, on the other hand, said, during the
Senate hearing, that she gave them to President Arroyo.
When Plaras wrote Valencia on December 15, 2008, Aguas wrote back on behalf of Valencia, who had
designated himself as SDO. However, their designations, or in what capacity they signed the voucher are
not stated. Among the attachments is also a memorandum dated April 2, 2008 (Exhibit "P5"), containing
the signature of Arroyo, indicating her approval to the utilization of funds. Another memorandum, dated
August 13, 2008, indicating the approval of Arroyo was also attached to the transmittal letter of Aguas on
April 4, 2009. These two memoranda bear the reasons for the cash advances, couched in general terms.
The reasons were donated medicines that were sold and authorized expenditures on endowment fund. The
reasons stated in the memoranda are practically the same. Uriarte did not submit any accomplishment
86
reports regarding the intelligence fund. Aguas submitted an accomplishment report, but the project the credit notice was being given. It merely says "First Semester of 2008". In other words, it is a
accomplishments were not indicated in definite fashion or with specificity. "global" credit notice that she issued and it did not state that she made an audit.

The witness narrated, based on her Summary of Liquidation Reports in 2009, that the total cash advance Another letter, dated July 14, 2010 and signed by Plaras, supposedly covers all the cash advances in 2009,
made by Uriarte was P132,760,096. Arroyo approved P90 million for release. P10 million in January 2009 but only up to the amount of P116,386,800. It also did not state that an audit was made.
and April 27, 2009, and then P50 million in May 6, 2009.In July 2, 2009, P10 million or a total of P70
million. In October 2009, P20 million or a total of P90 million. The amount that was cash advanced by
There were no supporting papers attached to the voucher, and the certification issued is not in conformity
Valencia was P5,660,779. Therefore, the total cash advances by these two officials were P138,420,875, but
with the required certification by COA Circular 2003-002. The certification dated July 24, 2008 by
all of these were never liquidated in 2009. Uriarte and Valencia only submitted a liquidation voucher and a
Valencia was not in conformity with the certification required by COA. The required form should specify
report to COA on April I2, 2010. For the January 22, 2009 disbursements, the date of the liquidation
the project for which the certification was being issued, and file code of the specific project. The
voucher was June 30, 2009, but it was submitted to COA on April 12, 2010. Witness identified the
certification dated July 24, 2008, however, just specified that it was to certify that the P2 million from the
transmittal letter for P28 million by Uriarte, dated October 19, 2009, which was received by the COA only
2008 CIF Fund was incurred by the undersigned, in the exercise of his functions as PCSO Chairman for
on April 12, 2010, with an accompanying certification from Uriarte as to some of the documents from
the various projects, projects and activities related to the operation of the office, and there was no specific
which the witness's Summary of Liquidation was based.
project or program or file code of the intelligence fund, as required by COA. Furthermore, the certification
also did not contain the last paragraph as required by COA. Instead, the following was stated in the
The cash advances made by Uriarte and Valencia violated par. I, Sec. 4 and Sec. 84 of P.D. I445 and par. 2, certification: "He further certifies that the details and supporting documents and papers on these highly
III, COA Circular No. 92-385. confidential missions and assignments are in our custody and kept in our confidential file which can be
made available if circumstances so demand." No details or supporting documents were reviewed by the
witness, and though she personally asked Aguas, the latter said that he did not have the supporting papers,
Since these cash advances were in excess of the appropriation, in effect, they were disbursed without any
and they were not in the official files of the PCSO. Two people should have custody of the papers, namely,
appropriation. These cash advances were also made without any specific project, in violation of par. 2 of
The Chairman of COA and the PCSO or its Special Disbursing Officer. The witness asked Aguas because
COA Circular No. 92-385. In this case, the cash advances were not for a specific project. The vouchers
Valencia was not there, and also because Aguas was the one who made the certification and was in-charge
only indicate the source of the fund. The vouchers did not specify specific projects.
of accounting. The vouchers, supposedly certified by Aguas, as Budget and Accounting Department
Manager, each time cash advances were issued, stated that the supporting documents are complete, so the
The total cash advances for the years 2008, 2009 and 2010 to accused Uriarte and Valencia is more than witness went to him to procure the documents.
P366,000,000. Valencia cash advanced PI 3.3 million. The rest was made by Uriarte.
A certification dated February 13, 2009, stating that P2,857,000 was incurred by Valencia in the exercise of
The memoranda to President Arroyo stated only the problems encountered by the PCSO. These problems, his function as PCSO Chairman, related to the operations of his office without the specific intelligence
as stated in each memorandum, included donated medicines sometimes ending up in store for sale, project. In the same document, there is a certification similar to one in the earlier voucher. No details of
unofficial use of ambulances, rise of expenditures of endowment fund, lotto sweepstakes scams, fixers for this certification were submitted by Aguas.
programs of the PCSO, and other fraudulent schemes. No projects were mentioned.
Another certification dated July 24, 2008 was presented, and it also did not specify the intelligence and
As regards the sixth step - the credit notice, the same was not validly issued by the COA. The credit notice confidential project, and it did not contain any certification that the amount was disbursed legally or that
is a settlement or an action made by the COA Auditors and is given once the Chairman, in the case of CIF no benefits was given to any person. Similarly, the fourth paragraph of the same document states that
Fund, finds that the liquidation report and all the supporting papers are in order. In this case, the supporting Uriarte certified that details and supporting papers of the cash advance that she made of P27,700,000 are
papers and the liquidation report were not in order, hence, the credit notice should not have been issued. "kept in their confidential" (sic). The same were not in the PCSO official records.
Further, the credit notice has to follow a specific form. The COA Chairman or his representative can: 1)
settle the cash advance when everything is in order; 2) suspend the settlement if there are deficiencies and
The certification dated October 19, 2009 for the amount of P2,498,300, was submitted to the witness by
then ask for submission of the deficiencies; or 3) out rightly disallow it in case said cash advances are
Aguas. It also did not conform to the COA requirements, as it also did not specify the use of the cash
illegal, irregular or unconscionable, extravagant or excessive. Instead of following this form, the COA
advance, did not contain any certification that the cash advance was incurred for legal purposes, or that no
issued a document dated January 10, 2011, which stated that there is an irregular use of the price fund and
benefits to other people were paid out of it. Again, no supporting documents were found and none were
the charity fund for CIF Fund. The document bears an annotation which says, "wait for transmittal, draft"
given by Aguas. Similarly, a certification dated February 8, 2010 for the amount of P2,394,654 was
among others. The document was not signed by Plaras, who was the Head of the Confidential and
presented, and it also does not conform with the COA circular, as it only stated that the amount was spent
Intelligence Fund Unit under COA Chairman Villar. Instead, she instructed her staff to "please ask Aguas
or incurred by Valencia for projects covering the period of July 1 to December 31, 2009 to exercise his
to submit the supplemental budget." This document was not delivered to PCSO General Manager J.M.
function as PCSO Chairman, thus no particular intelligence fund or project was stated. As in the other
Roxas. They instead received another letter dated January 13, 2011 which was almost identical to the first
certifications, though it was stated that the details were in the confidential file, it appeared that these were
document, except it was signed by Plaras, and the finding of the irregular use of the prize fund and the
not in the possession of PCSO. Another certification dated October 19, 2009 submitted by Uriarte was
charity fund was omitted. Instead, the work "various" was substituted and then the amount of
examined by the witness in the course of her audit, and found that it also did not conform to the
P137,5000,000. Therefore, instead of the earlier finding of irregularity, suddenly, the COA issued a credit
requirements, as it only stated that the P25 million and P10 million intelligence and confidential fund dated
notice as regards the total of P140,000,000. The credit notice also did not specify that the transaction had
January 29, 2009 and April 27, 2009 were used in the exercise of her function as PCSO Vice Chairman and
been audited, indicating that no audit was made.
General Manager.

A letter dated May 11, 2009 from the COA and signed by Plaras, states that the credit notice is hereby
All the documents were furnished by Aguas during the course of the audit of the financial transactions of
issued. Thus, it is equivalent to the credit notice, although it did not come in the required form. It merely
PCSO. Other documents given by Aguas include a letter by Valencia to COA Chairman Villar, which was
stated that the credit notice is issued for P29,700,000, without specifying for which vouchers and for which

87
attached to the letter dated July 24, 2008. For the Certification issued by Valencia for P2,857,000, there
was also a certification attached dated February 13, 2009. As to Exhibit "J5", together with the certification,
there was a letter but no other documents were submitted. Similarly, as to Exhibit "M6", it was attached to
a letter dated October 19, 2009 and was submitted to the witness by Aguas. Exhibit "N6" was attached to
the letter of Valencia dated February 8, 2010, the October 19, 2009 certification was attached to the
October 19, 2009 letter to Chairman Villar.
The certification dated June 29, 2010, signed by Valencia in the amount of P2,075,000, also does not
conform with the COA requirement as it only specifies that the fund was disbursed by Valencia under his
office for various programs in the exercise of his function as Chairman. Though there was a certification
that the supporting papers were kept in the office, these papers were not found in the records of the PCSO
and Aguas did not have any of the records. The certification was attached to the letter of Valencia to Villar
dated June 29, 2010.
In the certification dated June 29, 2010 signed by Uriarte in the amount of P137 ,500,000, the witness also
said that the certification did not conform to the COA Circular because it only stated that the amount was
disbursed from a special intelligence fund, authorized and approved by the President under the disposition
of the Office of the Vice Chairman. Despite the statement certifying that there were documents for the
audit, no documents were provided and the same were not in the official files of PCSO . The certification
was attached to a letter by Uriarte dated July 1, 2010 addressed to Villar.
In the certification dated October 19, 2009 signed by Uriarte in the amount of P2,500,000, the witness
made the same finding that it also did not conform to the COA Circular, as it did not specify the project for
which the cash advance was obtained and there were also no records in the PCSO. It was attached to the
letter dated October 19, 2009.
Finally, in the certification dated February 9, 2010 signed by Uriarte in the amount of P73,993,846, the
witness likewise found that it did not conform with the requirements of the COA, as all it said was the
amount was used for the exercise of the functions of the PCSO Chairman and General Manager. The
documents related to this were also not in the PCSO records and Aguas did not submit the same. It was
attached to a letter dated February 8, 2010 from Uriarte to Villar.
There are two kinds of audit on disbursements of government funds: pre-audit and post-audit. Both are
defined in COA Circular 2009-002. Pre-audit is the examination of documents supporting the transaction,
before these are paid for and recorded. The auditor determines whether: (1) the proposed expenditure was
in compliance with the appropriate law, specific statutory authority or regulations; (2) sufficient funds are
available to enable payment of the claim; (3) the proposed expenditure is not illegal, irregular, extravagant,
unconscionable or unnecessary, and (4) the transaction is approved by the proper authority and duly
supported by authentic underlying evidence. On the other hand, the post-audit requirement is the process
where the COA or the auditor will have to do exactly what was done in the pre-audit, and in addition, the
auditor must supplement what she did by tracing the transaction under audit to the books of accounts, and
that the transaction is all recorded in the books of accounts. The auditor, in post-audit, also makes the final
determination of whether the transaction was not illegal, irregular, extravagant, excessive, unconscionable
or unnecessary.
In this case, no audit was conducted. In a letter dated May 11, 2009 signed by Plaras, it was stated that a
credit advice was given. However, the letter did not conform to the requirements or form of a credit notice.
Such form was in COA Circular 2003-002, and should specify the liquidation report number, the amount,
check numbers, and the action taken by the auditor. The auditor should also include a certification that
these have been audited. In this instance, no certification that the transaction was audited was given by
Plaras. Other similar letters did not conform with the COA Circular. All transactions of the government
must be subject to audit in accordance with the provisions of the Constitution. Nevertheless, the
requirements for audit are the same.
The effect of the issuance of the credit notice by the COA was that the agency will take it up in the books
and credit the cash advance. This is the seventh step in the flowchart. Once there is a cash advance, the
liability of the officers who obtained the cash advance would be recorded in the books. The credit notice,
when received, would indicate that the account was settled. The agency will credit the receivable or the
cash advance, and remove from the books as a liability of the person liable for the cash advance. The effect
of this was that the financial liabilities of Uriarte and Valencia were removed from the books, but they
could still be subject to criminal liability based on Sec. 10 of COA Circular 91-368 (Government
Accounting and Auditing Manuals, Vol. 1, implementing P.O. 1445), which states: "The settlement of an
account whether or not on appeal has been made within the statutory period is no bar to criminal
prosecution against persons liable." From the 2008 COA Annual Audited Financial Statements of PCSO, it
was seen that the procedure was not followed because the liability of the officers was already credited even
before the credit notice was received. In the financial statements, it was stated that the amount due from
officers and employees, which should include the cash advances obtained by Uriarte and Valencia, were
not included because the amount stated therein was P35 million, while the total vouchers of Uriarte and
Valencia was P86 million.
The witness also related that she traced the records of the CIF fund (since such was no longer stated as a
receivable), and reviewed whether it was recorded as an expense in 2008. She found out that the recorded
CIF fund expense, as recorded in the corporate operating budget as actually disbursed, was only
P21,102,000. As such, she confronted her accountants and asked them "Saan tinago itong amount na to?"
The personnel in the accounting office said that the balance of the P86 million or the additional P21
million was not recorded in the operating fund budget because they used the prize fund and charity fund as
instructed by Aguas. Journal Entry Voucher No. 8121443 dated December 31, 2008, signed by Elmer
Camba, Aguas (Head of the Accounting Department), and Hutch Balleras (one of the staff in the
Accounting Department), showed that this procedure was done.
The contents of the Journal Entry Voucher are as follows:
(a) Accounts and Explanation: Due to other funds. This means that the amount of P63,750,000 was
credited as confidential expense from the operating fund. The amount was then removed from the
operating fund, and it was passed on to other funds.
(b) PF Miscellaneous, Account No. 424-1-L P41,250,000 and CF Miscellaneous for 424-2-G for
P22,500,000. PF Miscellaneous means Prize Fund Miscellaneous and CF stands for Charity Fund
Miscellaneous. This means that funds used to release the cash advances to Uriarte and Valencia were from
the prize fund and charity.
Attached to the Journal Entry Voucher was a document which reads "Allocation of Confidential and
Intelligence Fund Expenses", and was the basis of Camba in doing the Journal Entry Voucher. In the same
document, there was a written annotation dated 12-31-2008 which reads that the adjustment of CIF, CF
and IF, beneficiary of the fund is CF and PF and signed by Aguas.
The year 2009 was a similar case, as the witness traced the recording of the credit notice at the end of
2009, and despite the absence of the credit notice, the Accounting Department removed from the books of
PCSO the liability of Uriarte and Valencia, corresponding to the cash advances obtained in 2009. She
based this finding on the COA Annual Audit Report on the PCSO for the year ended December 31, 2009. It
was stated in the Audit Report that the total liability due from officers and employees was only
P87,747,280 and it was less than the total cash advances of Uriarte and Valencia, which was P138 million.
As a result, the witness checked the corresponding entry for the expenses in the corporate operating budget
and found out that the same was understated. The CIF expenses were only P24,968,300, as against the
actual amount per vouchers, which was P138,420,875. Upon checking with the Accounting Department,
the department showed her another Journal Entry Voucher No. 9121157, dated December 29, 2009, where
the personnel removed immediately the expense and recorded it as expense for the prize fund and charity
fund by the end of December 31.
88
The contents of the Journal Entry Voucher, especially the notation "due from'', means the accountability of
those who had cash advance was instead credited. It was removed, and the amount was P106 million. The
entry was confidential expense for P15,958,020 and then the due to other funds was P90,428,780. The
explanation for "424" was found in the middle part, stating: "424-1-L" of miscellaneous prize fund was
used in the amount of P58,502,740 and the charity fund was used in the amount of P31, 916,040. The total
amount of the receivables from Uriarte and Valencia that was removed was P106,386,800 and P90,428,780
respectively which came from the prize fund and charity fund.
The witness reported the discrepancy because there were violations of R.A. 1169, Sec. 6, which provides
for the different funds of PCSO namely: prize fund (55% of the net receipts), charity fund (30% of the net
receipts), and operating fund (15% ). The proceeds of the lotto and sweepstakes ticket sales provide the
money for these different funds, removing first the printing cost and the net proceeds (98%) is divided
among the three funds mentioned. The prize fund is the fund set aside to be used to pay the prizes for the
winnings in the lotto or sweepstakes draws, whether they are jackpot or consolation prizes. Incentives to
the lotto operators or horse owners are also drawn from this fund, as all of the expenses connected to the
winnings of the draw. On the other hand, the charity fund is reserved for charity programs approved by the
board of PCSO, and constitutes hospital and medical assistance to individuals, or to help facilities and
other charities of national character. Operating expenses are charged to the expenses to operate, personnel
services, and MOOE. One kind of fund cannot be used for another kind, as they become a trust fund which
should only be used for the purpose for which it was authorized, not even with the approval of the board.
The amounts obtained from the charity fund and prize fund for 2008 was P63,750,000, and in 2009
P90,428,780. The Board of Directors was given a copy of the COA Audit Reports for years 2008 and 2009.
The Board of Directors for both years was composed of: Chairman Valencia, and Board Members Morato,
Roquero, Taruc and Valdez. Uriarte was the Vice Chairman of the Board of Directors. The witness did not
know whether the Board checked the COA reports, but there was no action on their part, and neither did
they question the correctness of the statements. They also had the Audit Committee (which was composed
of members of the board) at that time, and one of the duties of the Audit Committee was to verify the
balances.
The witness identified the documents referring to the confirmation by the Board of Directors of PCSO of
the CIF. Board Resolution No. 217, approved on February 18, 2009, confirms the CIF approved by the
President. It did not state which CIF they were approving. They also assigned Uriarte as the Special
Disbursing Officer of the CIF, but it did say for what year. The signatories to the same Board Resolution
were Valencia, Taruc, Valdes, Uriarte, Roquero and Morato. The same were the witness's findings for
Board Resolution No. 2356 S. 2009, approved on December 9, 2009. As for Board Resolution No. 29, S.
2010, approved on January 6, 2010, the Board confirmed the fund approved by the President for 2010,
though the approval of the President was only received on August 13, 2010 as shown in the Memorandum
dated January 4. In effect, the Board was aware of the requests, and because they ratified the cash
advances, they agreed to the act of obtaining the same.
Apart from the President violating LOI 1282, the witness also observed that the President directly dealt
with the PCSO, although the President, by Executive Order No. 383 dated November 14, 2004, and
Executive Order No. 455 dated August 22, 2005, transferred the direct control and supervision of the
PCSO to the Department of Social Welfare and Development (DSWD), and later to the Department of
Health (DOH). A project should first be approved by the Supervising and Controlling Secretary of the
Secretary of Health; that the President had transferred her direct control and supervision, and lost the same.
The witness said her basis was administrative procedure. In this regard, President Aquino now has
transferred the control and supervision of the PCSO back to the Office of the President through Executive
Order No. 14, S. 2010, dated November 19, 2010.
Uriarte should not have gone directly to the President to ask for the latter's approval for allocation.
Nonetheless, the release of the CIF must still be approved by the President.9
The State also presented evidence consisting in the testimonies of officers coming from different law
enforcement agencies10 to corroborate Tolentino's testimony to the effect that the PCSO had not requested
from their respective offices any intelligence operations contrary to the liquidation report submitted by
Uriarte and Aguas.
To complete the evidence for the Prosecution, Atty. Anamarie Villaluz Gonzales, Office-in-Charge and
Department Manager of the Human Resources of PCSO; Flerida Africa Jimenez, Head of the Intelligence
and Confidential Fund Audit Unit of the COA; and Noel Clemente, Director of COA were presented as
additional witnesses.
After the Prosecution rested its case, GMA, Aguas, Valencia, Morato, Taruc V, Roquero and Villar
separately filed their demurrers to evidence asserting that the Prosecution did not establish a case for
plunder against them.
On April 6, 2015, the Sandiganbayan granted the demurrers to evidence of Morato, Roquero, Taruc and
Villar, and dismissed the charge against them. It held that said accused who were members of the PCSO
Board of Directors were not shown to have diverted any PCSO funds to themselves, or to have raided the
public treasury by conveying and transferring into their possession and control any money or funds from
PCSO account; that as to Villar, there had been no clear showing that his designation of Plaras had been
tainted with any criminal design; and that the fact that Plaras had signed "by authority" of Villar as the
COA Chairman could not criminally bind him in the absence of any showing of conspiracy.
However, the Sandiganbayan denied the demurrers of GMA, Aguas and Valencia, holding that there was
sufficient evidence showing that they had conspired to commit plunder; and that the Prosecution had
sufficiently established a case of malversation against Valencia, pertinently saying:
Demurrer to evidence is an objection by one of the parties in an action, to the effect that the evidence
which his adversary produced is insufficient in point of law, whether true or not, to make out a case or
sustain the issue. The party demurring challenges the sufficiency of the whole evidence to sustain a
verdict. The court then ascertains whether there is a competent or sufficient evidence to sustain the
indictment or to support a verdict of guilt.
xxxx
Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight or
amount as will legally justify the judicial or official action demanded to accord to circumstances. To be
considered sufficient therefore, the evidence must prove (a) the commission of the crime, and (b) the
precise degree of paiiicipation therein by the accused (Gutib v. CA, 110 SCAD 743, 312 SCRA 365
[1999]).
xxx xxx xxx
A. Demurrer filed by Arroyo and Aguas:
It must be remembered that in Our November 5, 2013 Resolution, We found strong evidence of guilt
against Arroyo and Aguas, only as to the second predicate act charged in the Information, which
reads:
(b) raiding the public treasury by withdrawing and receiving, in several instances, the above-mentioned
amount from the Confidential/Intelligence Fund from PCSO's accounts, and/or unlawfully transferring or
conveying the same into their possession and control through irregularly issued disbursement vouchers and
fictitious expenditures.
89
In the November 5, 2013 Resolution, We said:
It should be noted that in both R.A. No. 7080 and the PCGG rules, the enumeration of the possible
predicate acts in the commission of plunder did not associate or require the concept of personal
gain/benefit or unjust enrichment with respect to raids on the public treasury, as a means to commit
plunder. It would, therefore, appear that a "raid on the public treasury" is consummated where all the acts
necessary for its execution and accomplishment are present. Thus a "raid on the public treasury" can be
said to have been achieved thru the pillaging or looting of public coffers either through misuse,
misappropriation or conversion, without need of establishing gain or profit to the raider. Otherwise
stated, once a "raider" gets material possession of a government asset through improper means and
has free disposal of the same, the raid or pillage is completed. x x x
xxxx
Clearly, the improper acquisition and illegal use of CIF funds, which is obviously a government asset, will
amount to a raid on the public treasury, and therefore fall into the category of ill-gotten wealth.
xxxx
xxx It is not disputed that Uriarte asked for and was granted authority by Arroyo to use additional CIF
funds during the period 2008-2010. Uriarte was able [to] accumulate during that period CIF funds in
the total amount of P.352,681,646. This was through a series of withdrawals as cash advances of the CIF
funds from the PCSO coffers, as evidenced by the disbursement vouchers and checks issued and encashed
by her, through her authorized representative.
These flagrant violations of the rules on the use of CIF funds evidently characterize the series of
withdrawals by and releases to Uriarte as "raids" on the PCSO coffers, which is part of the public
treasury. These were, in every sense, "pillage," as Uriarte looted government funds and appears to
have not been able to account for it. The monies came into her possession and, admittedly, she disbursed
it for purposes other than what these were intended for, thus, amounting to "misuse" of the same.
Therefore, the additional CIF funds are ill-gotten, as defined by R.A. 7080, the PCGG rules, and Republic
v. Sandiganbayan. The encashment of the checks, which named her as the "payee," gave Uriarte
material possession of the CIF funds which she disposed of at will.
As to the determination whether the threshold amount of P50million was met by the prosecution's
evidence, the Court believes this to have been established. Even if the computation is limited only to the
cash advances/releases made by accused Uriarte alone AFTER Arroyo had approved her requests and the
PCSO Board approved CIF budget and the "regular" P5million CIF budget accorded to the PCSO
Chairman and Vice Chairman are NOT taken into account, still the total cash advances through accused
Uriarte's series of withdrawals will total P189,681,646. This amount surpasses the P50million threshold.
The evidence shows that for the year 2010 alone, Uriarte asked for P150 million additional CIF funds, and
Arroyo granted such request and authorized its use. From January 8, 2010 up to June 18, 2010, Uriarte
made a series of eleven (11) cash advances in the total amount of P138,223,490. According to Uriarte's
testimony before the Senate, the main purpose for these cash advances was for the "roll-out" of the small
town lottery program. However, the accomplishment report submitted by Aguas shows that P137,500,000
was spent on non-related PCSO activities, such as "bomb threat, kidnapping, terrorism and bilateral and
security relations." All the cash advances made by Uriarte in 2010 were made in violation of LOI 1282,
and COA Circulars 2003-002 and 92-385. These were thus improper use of the additional Cff funds
amounting to raids on the PCSO coffers and were ill-gotten because Uriarte had encashed the checks and
came into possession of the monies, which she had complete freedom to dispose of but was not able to
properly account for.
These findings of the Court clearly point out the commission by Uriarte of the crime of Plunder under
the second predicate act charged in the Information. As to Arroyo's participation, the Court stated in
its November 5, 2013 Resolution that:
The evidence shows that Arroyo approved not only Uriarte's request for additional CIF funds in 2008-
2010, but also authorized the latter to use such funds. Arroyo's "OK" notation and signature on
Uriartc's letter-requests signified unqualified approval of Uriarte's request to use the additional CIF
funds because the last paragraph of Uriarte's requests uniformly ended with this phrase: "With the
use of intelligence fund, PCSO can protect its image and integrity of its operations.
The letter-request of Uriarte in 2010 was more explicit because it categorically asked for: "The approval on
the use of the fifty percent of the PR Fund as PCSO Intelligence Fund will greatly help PCSO in the
disbursement of funds to immediately address urgent issues."
Arroyo cannot, therefore, successfully argue that what she approved were only the request for the grant or
allocation of additional CIF funds, because Arroyo's "OK" notation was unqualified and, therefore,
covered also the request to use such funds, through releases of the same in favor of Uriarte. 11
The Sandiganbayan later also denied the respective Motions for Reconsideration of GMA and Aguas,
observing that:
In this case, to require proof that monies went to a plunderer's bank account or was used to acquire
real or personal properties or used for any other purpose to personally benefit the plunderer, is
absurd. Suppose a plunderer had already illegally amassed, acquired or accumulated P50 Million or more
of government funds and just decided to keep it in his vault and never used such funds for any purpose to
benefit him, would that not be plunder? Or, if immediately right after such amassing, the monies went up
in flames or recovered by the police, negating any opportunity for the person to actually benefit, would
that not still be plunder? Surely, in such cases, a plunder charge could still prosper and the argument that
the fact of personal benefit should still be evidence-based must fail.
Also, accused Arroyo insists that there was no proof of the fact of amassing the ill-gotten wealth, and that
the "overt act" of approving the disbursement is not the "overt act" contemplated by law. She further
stresses that there was no proof of conspiracy between accused Arroyo and her co-accused and that the
Prosecution was unable to prove their case against accused Arroyo. What accused Arroyo forgets is that
although she did not actually commit any "overt act" of illegally amassing CIF funds, her act of
approving not only the additional CIF funds but also their releases, aided and abetted accused
Uriarte's successful raids on the public treasury. Accused Arroyo is therefore rightly charged as a
coconspirator of Uriarte who accumulated the CIF funds. Moreover, the performance of an overt act is
not indispensable when a conspirator is the mastermind.12
Considering that the Sandiganbayan denied the demurrers to evidence of GMA and Aguas, they have come
to the Court on certiorari to assail and set aside said denial, claiming that the denial was with grave abuse
of discretion amounting to lack or excess of jurisdiction.
Issues
GMA pleads that the denial of her demurrer to evidence was in patent and flagrant violation of Republic
Act No. 7080, the law on plunder, and was consequently arbitrary and oppressive, not only in grave abuse
of discretion but rendered without jurisdiction because:
First Ground
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On the basis of the above Resolutions, the Sandiganbayan has denied petitioner Arroyo's Demurrer
to Evidence and considering the reasons for doing so, would find petitioner Arroyo guilty of the
offense of plunder under Republic Act No. 7080 as charged in the Information notwithstanding the
following:
a. While the gravamen, indeed corpus delicti of the offense of plunder under R.A. No. 7080, and as
charged in the Information, is that the public officer ... "amasses, accumulates or acquires ill-gotten
wealth through a combination or series of overt or criminal acts as described in Section l(d) hereof,
in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00)", the
Sandiganbayan Resolutions extirpate this vital element of the offense of plunder;
b. In point of fact, not a single exhibit of the 637 exhibits offered by the prosecution nor a single
testimony of the 21 witnesses of the prosecution was offered by the prosecution to prove that
petitioner amassed, accumulated or acquired even a single peso of the alleged ill-gotten wealth
amounting to P365,997,915.00 or any part of that amount alleged in the Information;
c. Implicitly confirming the above, and aggravating its error, on the basis solely of petitioner
Arroyo's authorization of the release of the Confidential/Intelligence Fund from PCSO's accounts,
the Sandiganbayan ruled that she has committed the offense of plunder under R.A. No. 7080 for the
reason that her release of CIF funds to the PCSO amount to a violation of Sec. l(d) [11 of R.A. No.
7080 which reads, as follows:
1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the
public treasury;
which, "did not associate or require the concept of personal gain/benefit or un.just enrichment with
respect to raids on the public treasury", thereby disregarding the gravamen or the corpus delicti of
the offense of plunder under R.A. No. 7080.
Second Ground
Worsening the above error of the Sandiganbayan, the Resolutions, with absolutely no justification in
law or in the evidence, purportedly as the "mastermind" of a conspiracy, and without performing
any overt act, would impute to petitioner Arroyo the "series of withdrawals as cash advances of the
CIF funds from the PCSO coffers" by Uriarte as "raids on the PCSO coffers, which is part of the
public treasury" and "in every sense, 'pillage' as Uriarte looted government funds and appears to
have not been able to account for it". Parenthetically, Uriarte has not been arrested, was not
arraigned and did not participate in the trial of the case.
Third Ground
That as an obvious consequence of the above, denial of petitioner Arroyo's Demurrer To Evidence
for the reasons stated in the Sandiganbayan Resolutions, amounting no less to convicting her on the
basis of a disjointed reading of the crime of plunder as defined in R.A. No. 7080, aggravated by the
extirpation in the process of its "corpus delicti" - the amassing, accumulation or acquisition of ill-
gotten wealth, hence, of a crime that docs not exist in law and consequently a blatant deprivation of
liberty without due process of law.
Fourth Ground
The Information alleges that the ten (10) persons accused in Crim. Case No. SB-12-CRM-0174,
namely: Gloria Macapagal-Arroyo, Rosario C. Uriarte, Sergio 0. Valencia, Manuel L. Morato, Jose
R. Taruc V, Raymundo T. Roquero, [M]a. Fatima A.S. Valdes, Benigno B. Aguas, Reynaldo A. Villar
and Nilda B. Plaras" ... all public officers committing the offense in relation to their respective
offices and taking undue advantage of their respective official positions, authority, relationships,
connections or influence, conniving, conspiring and confederating with one another, did then and
there willfully, unlawfully and criminally amass, accumulate and/or acquire, directly or indirectly,
ill-gotten wealth in the aggregate amount or total value of THREE HUNDRED SIXTY FIVE
MILLION NINE HUNDRED NINETY SEVEN THOUSAND NINE HUNDRED FIFTEEN PESOS
(PHP365,997,915.00), more or less, through any or a combination or a series of overt or criminal
acts, or similar schemes or means, described as follows ... " or each of them, P36,599,791.50 which
would not qualify the offense charged as "plunder" under R.A. No. 7080 against all ten (10) accused
together, for which reason the Information docs not charge the offense of plunder and, as a
consequence, all proceedings thereafter held under the Information arc void.13
On his part, Aguas contends that:
A. In light of the factual setting described above and the evidence offered and admitted, docs proof
beyond reasonable doubt exist to warrant a holding that Prosecution proved the guilt of the accused
such that there is legal reason to deny Petitioner's Demurrer'?
B. Did the Prosecution's offered evidence squarely and properly support the allegations in the
Information'?
PETITIONER STRONGLY SUBMITS THAT PROSECUTION FAILED TO ESTABLISH BY
PROOF BEYOND REASONABLE DOUBT THE EXISTENCE OF THE CORE ELEMENTS OF
THE CRIME OF PLUNDER.14
On the other hand, the Prosecution insists that the petitions for certiorari should be dismissed upon the
following grounds, namely:
A. CERTIORARI IS NOT THE PROPER REMEDY FROM AN ORDER OR RESOLUTION
DENYING DEMURRER TO EVIDENCE.
B. THERE IS NO GRAVE ABUSE OF DISCRETION BECAUSE THE SANDIGANBAYAN
MERELY INTERPRETED WHAT CONSTITUTES PLUNDER UNDER LAW AND
JURISPRUDENCE IN LIGHT OF FACTS OF THE CASE. IT DID NOT JUDICIALLY
LEGISLATE A "NEW" OFFENSE.
1. ACTUAL PERSONAL GAIN, BENEFIT OR ENRICHMENT IS NOT AN ELEMENT OF
PLUNDER UNDER R.A. No. 7080.
2. EVIDENCE SHOWS THAT ARROYO, BY INDISPENSABLE COOPERATION, CONSPIRED
WITH HER CO-ACCUSED AND PARTICIPATED IN THE COMPLEX, ILLEGAL SCHEME
WHICH DEFRAUDED PCSO IN HUNDREDS OF MILLIONS OF PESOS, WHICH
CONSTITUTES PLUNDER.
3. ARROYO IS NOT SIMILARLY SITUATED WITH ACCUSED PCSO BOARD MEMBERS AND
CANNOT THUS DEMAND THAT THE SANDIGANBA YAN DISMISS THE PLUNDER CASE
AGAINST HER.
C. ARROYO'S BELATED, COLLATERAL ATTACK ON THE INFORMATION CHARGING
HER AND CO-ACCUSED FOR PLUNDER IS HIGHLY IMPROPER, ESPECIALLY AT THIS LA
TE STAGE OF THE PROCEEDING.
91
1. THE FACTS CONSTITUTING THE OFFENSE ARE CLEARLY ALLEGED IN THE
INFORMATION.
2. ARROYO'S ACTIVE PARTICIPATION IN THE PROCEEDINGS ARISING FROM OR
RELATING TO SB-12-CRM-0174 PROVES THAT SHE HAS ALWAYS KNOWN AND
UNDERSTOOD THE NATURE AND SCOPE OF THE ACCUSATIONS AGAINST HER.
D. ARROYO IS NOT ENTITLED TO A TEMPORARY RESTRAINING ORDER BECAUSE THE
CRIMINAL PROSECUTION IN SB-12-CRM-0174 CANNOT BE ENJOINED.15
Based on the submissions of the parties, the Court synthesizes the decisive issues to be considered and
resolved, as follows:
Procedural Issue:
1. Whether or not the special civil action for certiorari is proper to assail the denial of the demurrers to
evidence.
Substantive Issues:
1. Whether or not the State sufficiently established the existence of conspiracy among GMA, Aguas, and
Uriarte;
2. Whether or not the State sufficiently established all the elements of the crime of plunder:
a. Was there evidence of amassing, accumulating or acquiring ill-gotten wealth in the total amount of not
less than P50,000,000.00?
b. Was the predicate act of raiding the public treasury alleged in the information proved by the
Prosecution?
Ruling of the Court
The consolidated petitions for certiorari are meritorious.
I.
The Court cannot be deprived of its jurisdiction
to correct grave abuse of discretion
The Prosecution insists that the petition for certiorari of GMA was improper to challenge the denial of her
demurrer to evidence; that she also thereby failed to show that there was grave abuse of discretion on the
part of the Sandiganbayan in denying her demurrer to evidence; and that, on the contrary,
the Sandiganbayan only interpreted what constituted plunder under the law and jurisprudence in light of
the established facts, and did not legislate a new offense, by extensively discussing how she had connived
with her co-accused to commit plunder.16
The Court holds that it should take cognizance of the petitions for certiorari because
the Sandiganbayan, as shall shortly be demonstrated, gravely abused its discretion amounting to lack or
excess of jurisdiction.
The special civil action for certiorari is generally not proper to assail such an interlocutory order issued by
the trial court because of the availability of another remedy in the ordinary course of law. 17 Moreover,
Section 23, Rule 119 of the Rules of Court expressly provides that "the order denying the motion for leave
of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or
by certiorari before judgment." It is not an insuperable obstacle to this action, however, that the denial of
the demurrers to evidence of the petitioners was an interlocutory order that did not terminate the
proceedings, and the proper recourse of the demurring accused was to go to trial, and that in case of their
conviction they may then appeal the conviction, and assign the denial as among the errors to be
reviewed.18 Indeed, it is doctrinal that the situations in which the writ of certiorari may issue should not be
limited,19 because to do so –
x x x would be to destroy its comprehensiveness and usefulness. So wide is the discretion of the court that
authority is not wanting to show that certiorari is more discretionary than either prohibition
or mandamus. In the exercise of our superintending control over other courts, we are to be guided by
all the circumstances of each particular case 'as the ends of justice may require.' So it is that the writ
will be granted where necessary to prevent a substantial wrong or to do substantial justice.20
The Constitution itself has imposed upon the Court and the other courts of justice the duty to correct errors
of jurisdiction as a result of capricious, arbitrary, whimsical and despotic exercise of discretion by
expressly incorporating in Section 1 of Article VIII the following provision:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government.
The exercise of this power to correct grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government cannot be thwarted by rules of procedure to
the contrary or for the sake of the convenience of one side. This is because the Court has the bounden
constitutional duty to strike down grave abuse of discretion whenever and wherever it is committed. Thus,
notwithstanding the interlocutory character and effect of the denial of the demurrers to evidence, the
petitioners as the accused could avail themselves of the remedy of certiorari when the denial was tainted
with grave abuse of discretion.21 As we shall soon show, the Sandiganbayan as the trial court was guilty of
grave abuse of discretion when it capriciously denied the demurrers to evidence despite the absence of
competent and sufficient evidence to sustain the indictment for plunder, and despite the absence of the
factual bases to expect a guilty verdict.22
II.
The Prosecution did not properly allege and prove
the existence of conspiracy among GMA, Aguas and Uriarte
Conspiracy exists when two or more persons come to an agreement concerning the commission of a
felony, and decide to commit it.23 In this jurisdiction, conspiracy is either a crime in itself or a mere means
to commit a crime.
As a rule, conspiracy is not a crime unless the law considers it a crime, and prescribes a penalty for
it.24 The exception is exemplified in Article 115 (conspiracy and proposal to commit treason), Article
136 (conspiracy and proposal to commit coup d'etat, rebellion or insurrection) and Article
141 (conspiracy to commit sedition) of the Revised Penal Code. When conspiracy is a means to commit a
92
crime, it is indispensable that the agreement to commit the crime among all the conspirators, or their
community of criminal design must be alleged and competently shown.
We also stress that the community of design to commit an offense must be a conscious one.25 Conspiracy
transcends mere companionship, and mere presence at the scene of the crime does not in itself amount to
conspiracy. Even knowledge of, or acquiescence in, or agreement to cooperate is not enough to constitute
one a party to a conspiracy, absent any active participation in the commission of the crime with a view to
the furtherance of the common design and purpose.26 Hence, conspiracy must be established, not by
conjecture, but by positive and conclusive evidence.
In terms of proving its existence, conspiracy takes two forms. The first is the express form, which requires
proof of an actual agreement among all the co-conspirators to commit the crime. However, conspiracies
are not always shown to have been expressly agreed upon. Thus, we have the second form, the implied
conspiracy. An implied conspiracy exists when two or more persons are shown to have aimed by their acts
towards the accomplishment of the same unlawful object, each doing a part so that their combined acts,
though apparently independent, were in fact connected and cooperative, indicating closeness of personal
association and a concurrence of sentiment.27Implied conspiracy is proved through the mode and manner
of the commission of the offense, or from the acts of the accused before, during and after the commission
of the crime indubitably pointing to a joint purpose, a concert of action and a community of interest.28
But to be considered a part of the conspiracy, each of the accused must be shown to have performed at
least an overt act in pursuance or in furtherance of the conspiracy, for without being shown to do so none
of them will be liable as a co-conspirator, and each may only be held responsible for the results of his own
acts. In this connection, the character of the overt act has been explained in People v. Lizada:29
An overt or external act is defined as some physical activity or deed, indicating the intention to commit a
particular crime, more than a mere planning or preparation, which if carried out to its complete termination
following its natural course, without being frustrated by external obstacles nor by the spontaneous
desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. The raison
d'etre for the law requiring a direct overt act is that, in a majority of cases, the conduct of the
accused consisting merely of acts of preparation has never ceased to be equivocal; and this is
necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must be
lacking before the act becomes one which may be said to be a commencement of the commission of
the crime, or an overt act or before any fragment of the crime itself has been committed, and this is
so for the reason that so long as the equivocal quality remains, no one can say with certainty what
the intent of the accused is. It is necessary that the overt act should have been the ultimate step towards
the consummation of the design. It is sufficient if it was the "first or some subsequent step in a direct
movement towards the commission of the offense after the preparations are made." The act done need not
constitute the last proximate one for completion. It is necessary, however, that the attempt must have
a causal relation to the intended crime. In the words of Viada, the overt acts must have an immediate
and necessary relation to the offense. (Bold underscoring supplied for emphasis)
In her case, GMA points out that all that the State showed was her having affixed her unqualified "OK" on
the requests for the additional CIFs by Uriarte. She argues that such act was not even an overt act of
plunder because it had no immediate and necessary relation to plunder by virtue of her approval not
being per se illegal or irregular. However, the Sandiganbayan, in denying the Motions for Reconsideration
of GMA and Aguas vis-a-vis the denial of the demurrers, observed that:
xxxx accused Arroyo insists that there was no proof of the fact of amassing the ill-gotten wealth, and that
the "overt act" of approving the disbursement is not the "overt act" contemplated by Jaw. She further
stresses that there was no proof of conspiracy between accused Arroyo and her co-accused and that the
Prosecution was unable to prove their case against accused Arroyo. What accused Arroyo forgets is that
although she did not actually commit any "overt act" of illegally amassing CIF funds, her act of approving
not only the additional CIF funds but also their releases, aided and abetted accused Uriarte's successful
raids on the public treasury. Accused Arroyo is therefore rightly charged as a co-conspirator of Uriarte who
accumulated the CIF funds. Moreover, the performance of an overt act is not indispensable when a
conspirator is the mastermind.30
It is in this regard that the Sandigabayan gravely abused its discretion amounting to lack or excess of its
jurisdiction. To start with, its conclusion that GMA had been the mastermind of plunder was plainly
conjectural and outrightly unfounded considering that the information did not aver at all that she had been
the mastermind; hence, the Sandigabayan thereby acted capriciously and arbitrarily. In the second place,
the treatment by the Sandiganbayan of her handwritten unqualified "OK" as an overt act of plunder was
absolutely unwarranted considering that such act was a common legal and valid practice of signifying
approval of a fund release by the President. Indeed, pursuant to People v. Lizada, supra, an act or conduct
becomes an overt act of a crime only when it evinces a causal relation to the intended crime because the
act or conduct will not be an overt act of the crime if it does not have an immediate and necessary relation
to the offense.
In Estrada v. Sandiganbayan,31the Court recognized two nuances of appreciating conspiracy as a means to
commit a crime, the wheel conspiracy and the chain conspiracy.
The wheel conspiracy occurs when there is a single person or group (the hub) dealing individually with
two or more other persons or groups (the spokes). The spoke typically interacts with the hub rather than
with another spoke. In the event that the spoke shares a common purpose to succeed, there is a single
conspiracy. However, in the instances when each spoke is unconcerned with the success of the other
spokes, there are multiple conspiracies.32
An illustration of wheel conspiracy wherein there is only one conspiracy involved was the conspiracy
alleged in the information for plunder filed against former President Estrada and his co-conspirators.
Former President Estrada was the hub while the spokes were all the other accused individuals. The rim that
enclosed the spokes was the common goal in the overall conspiracy, i.e., the amassing, accumulation and
acquisition of ill-gotten wealth.
On the other hand, the American case of Kotteakos v. United States33 illustrates a wheel conspiracy where
multiple conspiracies were established instead of one single conspiracy. There, Simon Brown, the hub,
assisted 31 independent individuals to obtain separate fraudulent loans from the US Government. Although
all the defendants were engaged in the same type of illegal activity, there was no common purpose or
overall plan among them, and they were not liable for involvement in a single conspiracy. Each loan was
an end in itself, separate from all others, although all were alike in having similar illegal objects. Except
for Brown, the common figure, no conspirator was interested in whether any loan except his own went
through. Thus, the US Supreme Court concluded that there existed 32 separate conspiracies involving
Brown rather than one common conspiracy.34
The chain conspiracy recognized in Estrada v. Sandiganbayan exists when there is successive
communication and cooperation in much the same way as with legitimate business operations between
manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer. 35
This involves individuals linked together in a vertical chain to achieve a criminal objective.36 Illustrative of
chain conspiracy was that involved in United States v. Bruno,37of the US Court of Appeals for the Second
Circuit. There, 88 defendants were indicted for a conspiracy to import, sell, and possess narcotics. This
case involved several smugglers who had brought narcotics to retailers who, in turn, had sold the narcotics
to operatives in Texas and Louisiana for distribution to addicts. The US Court of Appeals for the Second
Circuit ruled that what transpired was a single chain conspiracy in which the smugglers knew that the
middlemen must sell to retailers for distribution to addicts, and the retailers knew that the middle men must
purchase drugs from smugglers. As reasoned by the court, "the conspirators at one end of the chain knew
that the unlawful business would not and could not, stop with their buyers; and those at the other end knew
that it had not begun with their sellers." Each conspirator knew that "the success of that part with which he
93
was immediately concerned was dependent upon success of the whole." This means, therefore, that "every
member of the conspiracy was liable for every illegal transaction carried out by other members of the
conspiracy in Texas and in Louisiana."38
Once the State proved the conspiracy as a means to commit a crime, each co-conspirator is as criminally
liable as the others, for the act of one is the act of all. A co-conspirator does not have to participate in every
detail of the execution; neither does he have to know the exact part performed by the co-conspirator in the
execution of the criminal act.39 Otherwise, the criminal liability of each accused is individual and
independent.
The Prosecution insisted that a conspiracy existed among GMA, Uriarte, Valencia and the Members of the
PCSO Board of Directors, Aguas, Villar and Plaras. The Sandiganbayan agreed with the Prosecution as to
the conspirators involved, declaring that GMA, Aguas, and Uriarte had conspired and committed plunder.
A review of the records of the case compels us to reject the Sandiganbayan's declaration in light of the
information filed against the petitioners, and the foregoing exposition on the nature, forms and extent of
conspiracy. On the contrary, the Prosecution did not sufficiently allege the existence of a conspiracy among
GMA, Aguas and Uriarte.
A perusal of the information suggests that what the Prosecution sought to show was an implied conspiracy
to commit plunder among all of the accused on the basis of their collective actions prior to, during and
after the implied agreement. It is notable that the Prosecution did not allege that the conspiracy among all
of the accused was by express agreement, or was a wheel conspiracy or a chain conspiracy.
This was another fatal flaw of the Prosecution.
In its present version, under which the petitioners were charged, Section 2 of Republic Act No. 7080
(Plunder Law) states:
Section 2. Definition of the Crime of Plunder; Penalties. – Any public officer who, by himself or in
connivance with members of his family, relatives by affinity or consanguinity, business associates,
subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or
series of overt criminal acts as described in Section 1 (d) hereof in the aggregate amount or total value of at
least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished
by reclusion perpetua to death. Any person who participated with the said public officer in the commission
of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the
imposition of penalties, the degree of participation and the attendance of mitigating and extenuating
circumstances, as provided by the Revised Penal Code, shall be considered by the court. The court shall
declare any and all ill-gotten wealth and their interests and other incomes and assets including the
properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the
State. [As Amended by Section 12, Republic Act No. 7659 (The Death Penalty Law)]
Section l(d) of Republic Act No. 7080 provides:
Section 1. Definition of terms. - As used in this Act, the term:
xxxx
d. "Ill-gotten wealth" means any asset, property, business enterprise or material possession of any person
within the purview of Section two (2) hereof, acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by any combination or series of the following
means or similar schemes:
1. Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury;
2. By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any/or entity
in connection with any government contract or project or by reason of the office or position of the public
officer concerned;
3. By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government
or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations
and their subsidiaries;
4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form
of interest or participation including the promise of future employment in any business enterprise or
undertaking;
5. By establishing agricultural, industrial or commercial monopolies or other combinations and/or
implementation of decrees and orders intended to benefit particular persons or special interests; or
6. By taking undue advantage of official position, authority, relationship, connection or influence to
unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines.
The law on plunder requires that a particular public officer must be identified as the one who amassed,
acquired or accumulated ill-gotten wealth because it plainly states that plunder is committed by any public
officer who, by himself or in connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-
gotten wealth in the aggregate amount or total value of at least P50,000,000.00 through
a combination or series of overt criminal acts as described in Section l(d) hereof. Surely, the law requires
in the criminal charge for plunder against several individuals that there must be a main plunderer and her
co-conspirators, who may be members of her family, relatives by affinity or consanguinity, business
associates, subordinates or other persons. In other words, the allegation of the wheel conspiracy or express
conspiracy in the information was appropriate because the main plunderer would then be identified in
either manner. Of course, implied conspiracy could also identify the main plunderer, but that fact must be
properly alleged and duly proven by the Prosecution.
This interpretation is supported by Estrada v. Sandiganbayan,40where the Court explained the nature of the
conspiracy charge and the necessity for the main plunderer for whose benefit the amassment, accumulation
and acquisition was made, thus:
There is no denying the fact that the "plunder of an entire nation resulting in material damage to the
national economy" is made up of a complex and manifold network of crimes. In the crime of plunder,
therefore, different parties may be united by a common purpose. In the case at bar, the different accused
and their different criminal acts have a commonality - to help the former President amass, accumulate or
acquire ill-gotten wealth. Sub-paragraphs (a) to (d) in the Amended Information alleged the different
participation of each accused in the conspiracy. The gravamen of the conspiracy charge, therefore, is
not that each accused agreed to receive protection money from illegal gambling, that each misappropriated
a portion of the tobacco excise tax, that each accused ordered the GSIS and SSS to purchase shares of
Belle Corporation and receive commissions from such sale, nor that each unjustly enriched himself from
commissions, gifts and kickbacks; rather, it is that each of them, by their individual acts, agreed to
participate, directly or indirectly, in the amassing, accumulation and acquisition of ill-gotten wealth
of and/or for former President Estrada. [bold underscoring supplied for emphasis]
94
Here, considering that 10 persons have been accused of amassing, accumulating and/or acquiring ill-gotten circumstances giving rise to the necessity for the expenditure and the particular aims to be accomplished."
wealth aggregating P365,997,915.00, it would be improbable that the crime charged was plunder if none of It posits that the requests were not specific enough, contrary to what is required by LOI 1282.
them was alleged to be the main plunderer. As such, each of the 10 accused would account for the aliquot
amount of only P36,599,791.50, or exactly 1/10 of the alleged aggregate ill-gotten wealth, which is far
LOI 1282 reads:
below the threshold value of ill-gotten wealth required for plunder.

LETTER OF INSTRUCTION No. 1282

We are not unmindful of the holding in Estrada v. Sandiganabayan41 to the effect that an information
alleging conspiracy is sufficient if the information alleges conspiracy either: (1) with the use of the
word conspire, or its derivatives or synonyms, such as confederate, connive, collude, etc; or (2) by To: All Ministries and Offices Concerned
allegations of the basic facts constituting the conspiracy in a manner that a person of common
understanding would know what is being conveyed, and with such precision as would enable the accused
In recent years intelligence funds appropriated for the various ministries and certain offices have been, as
to competently enter a plea to a subsequent indictment based on the same facts. We are not talking about
reports reaching me indicate, spent with less than full regard for secrecy and prudence. On the one hand,
the sufficiency of the information as to the allegation of conspiracy, however, but rather the identification
there have been far too many leakages of information on expenditures of said funds; and on the other hand,
of the main plunderer sought to be prosecuted under R.A. No. 7080 as an element of the crime of plunder.
where secrecy has been observed, the President himself was often left unaware of how these funds had
Such identification of the main plunderer was not only necessary because the law required such
been utilized.
identification, but also because it was essential in safeguarding the rights of all of the accused to be
properly informed of the charges they were being made answerable for. The main purpose of requiring the
various elements of the crime charged to be set out in the information is to enable all the accused to Effective immediately, all requests for the allocation or release of intelligence funds shall indicate in full
suitably prepare their defense because they are presumed to have no independent knowledge of the facts detail the specific purposes for which said funds shall be spent and shall explain the circumstances giving
that constituted the offense charged.42 rise to the necessity for the expenditure and the particular aims to be accomplished.

For sure, even the Sandiganbayan was at a loss in this respect. Despite the silence of the information on
who the main plunderer or the mastermind was, the Sandiganbayan readily condemned GMA in its
resolution dated September 10, 2015 as the mastermind despite the absence of the specific allegation in the
information to that effect. Even worse, there was no evidence that substantiated such sweeping
generalization.
The requests and the detailed explanations shall be submitted to the President personally.
It is imperative that such detailed presentations be made to the President in order to avoid such duplication
of expenditures as has taken place in the past because of the lack of centralized planning and organized
disposition of intelligence funds.

In fine, the Prosecution's failure to properly allege the main plunderer should be fatal to the cause of the
State against the petitioners for violating the rights of each accused to be informed of the charges against Full compliance herewith is desired.
each of them.
Manila, January 12, 1983.
Nevertheless, the Prosecution insists that GMA, Uriarte and Aguas committed acts showing the existence
of an implied conspiracy among themselves, thereby making all of them the main plunderers. On this (Sgd.) FERDINANDE. MARCOS
score, the Prosecution points out that the sole overt act of GMA to become a part of the conspiracy was her President of the Philippines
approval via the marginal note of "OK" of all the requests made by Uriarte for the use of additional
intelligence fund. The Prosecution stresses that by approving Uriaiie's requests in that manner, GMA
violated the following: However, an examination of Uriarte' s several requests indicates their compliance with LOI No. 1282. The
requests, similarly worded, furnished: (a) the full details of the specific purposes for which the funds
would be spent; (b) the explanations of the circumstances giving rise to the necessity of the expenditure;
a. Letter of Instruction 1282, which required requests for additional confidential and intelligence funds and (c) the particular aims to be accomplished.
(CIFs) to be accompanied with detailed, specific project proposals and specifications; and
The specific purposes and circumstances for the necessity of the expenditures were laid down as follows:
b. COA Circular No. 92-385, which allowed the President to approve the release of additional CIFs only if
there was an existing budget to cover the request.
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and
nefarious activities on a continuing basis which affect the integrity of our operations, to wit:
The insistence of the Prosecution is unwarranted. GMA's approval of Uriarte's requests for additional CIFs
did not make her part of any design to raid the public treasury as the means to amass, accumulate and
acquire ill-gotten wealth. Absent the specific allegation in the information to that effect, and competent 1. Donated medicines sometimes end up in drug stores for sale even if they were labeled "Donated by
proof thereon, GMA' s approval of Uriarte' s requests, even if unqualified, could not make her part of any PCSO- Not for Sale";
criminal conspiracy to commit plunder or any other crime considering that her approval was not by any
means irregular or illegal. 2. Unwarranted or unofficial use of ambulances by beneficiarydonees;

The Prosecution takes GMA to task for approving Uriarte's request despite the requests failing to provide 3. Unauthorized expenditures of endowment fund for charity patients and organizations;
"the full detail [ ofJ the specific purposes for which said funds shall be spent and shall explain the

95
4. Lotto and sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered
tickets as winning tickets;
5. Fixers for the different programs of PCSO such as Ambulance Donation Project, Endowment Fund
Program and Individual Medical Assistance Program;
6. Other fraudulent schemes and activities which put the PCSO in bad light.43
A reading of the requests also reveals that the additional CIFs requested were to be used to protect PCSO's
image and the integrity of its operations. The Court thus cannot share the Prosecution's dismissiveness of
the requests for not being compliant with LOI No. 1282. According to its terms, LOI No. 1282 did not
detail any qualification as to how specific the requests should be made. Hence, we should not make any
other pronouncement than to rule that Uriarte's requests were compliant with LOI No. 1282.
COA Circular No. 92-385 required that additional request for CIFs would be approved only when there
was available budget. In this regard, the Prosecution suggests that there was no longer any budget when
GMA approved Uriarte's requests because the budget had earmarked intelligence funds that had already
been maxed out and used. The suggestion is not acceptable, however, considering that the funds of the
PCSO were comingled into one account as early as 2007. Consequently, although only 15% of PCSO's
revenues was appropriated to an operation fund from which the CIF could be sourced, the remaining 85%
of PCSO's revenues, already co-mingled with the operating fund, could still sustain the additional requests.
In short, there was available budget from which to draw the additional requests for CIFs.
It is notable that the COA, although frowning upon PCSO's co-mingling of funds, did not rule such co-
mingling as illegal. As such, sourcing the requested additional CIFs from one account was far from illegal.
Lastly, the Prosecution's effort to show irregularities as badges of bad faith has led it to claim that GMA
had known that Uriarte would raid the public treasury, and would misuse the amounts disbursed. This
knowledge was imputed to GMA by virtue of her power of control over PCSO.
The Prosecution seems to be relying on the doctrine of command responsibility to impute the actions of
subordinate officers to GMA as the superior officer. The reliance is misplaced, for incriminating GMA
under those terms was legally unacceptable and incomprehensible. The application of the doctrine of
command responsibility is limited, and cannot be true for all litigations. The Court ruled in Rodriguez v.
Macapagal-Arroyo44that command responsibility pertains to the responsibility of commanders for crimes
committed by subordinate members of the armed forces or other persons subject to their control in
international wars or domestic conflict. The doctrine has also found application in civil actions for human
rights abuses. But this case involves neither a probe of GMA' s actions as the Commander-in-Chief of the
Armed Forces of the Philippines, nor of a human rights issue. As such, it is legally improper to impute the
actions of Uriarte to GMA in the absence of any conspiracy between them.
On the part of Aguas, the Sandiganbayan pronounced him to be as much a member of the implied
conspiracy as GMA was, and detailed his participation in this manner:
In all of the disbursement vouchers covering the cash advances/releases to Uriarte of the CIF funds, Aguas
certified that:
CERTIFIED: Adequate available funds/budgetary allotment in the amount of P___________ ; expenditure
properly certified; supported by documents marked (X) per checklist and back hereof; account codes
proper; previous cash advance liquidated/accounted for.
These certifications, after close scrutiny, were not true because: 1.) there were no documents which lent
support to the cash advances on a per project basis. The particulars of payment simply read: "To draw cash
advance form the CIF Fund of the Office of the Vice-Chairman and General Manager". No particular
purpose or project was specified contrary to the requirement under COA Circular 2003-002 that cash
advances must be on a per project basis. Without specifics on the project covered by each cash advance.
Aguas could not certify that supporting documents existed simply because he would not know what project
was being funded by the cash advances; and 2.) There were no previous liquidations made of prior cash
advances when Aguas made the certifications. COA circular 2003-002 required that cash advances be
liquidated within one (1) month from the date the purpose of the cash advance was accomplished. If the
completion of the projects mentioned were for more than one month, a monthly progress liquidation report
was necessary. In the case of Uriarte' s cash advances certified to by Aguas, the liquidation made was
wholesale, i.e. these were done on a semi-annual basis without a monthly liquidation or at least a monthly
liquidation progress report. How then could Aguas correctly certify that previous liquidations were
accounted for? Aguas's certification also violated Sec. 89 of P.D. 1445 which states:
Limitations on cash advance. No cash advance shall be given unless for a legally authorized specific
purpose. A cash advance shall be reported on and liquidated as soon as the purpose for which it was given
has been served. No additional cash advance shall be allowed to any official or employee unless the
previous cash advance given to him is first settled or a proper accounting thereof is made.
There is a great presumption of guilt against Aguas, as his action aided and abetted Uriarte's being able to
draw these irregular CIF funds in contravention of the rules on CIF funds. Without Aguas's certification,
the disbursement vouchers could not have been processed for payment. Accordingly, the certification that
there were supporting documents and prior liquidation paved the way for Uriarte to acquire ill-gotten
wealth by raiding the public coffers of the PCSO.
By just taking cognizance of the series and number of cash advances and the staggering amounts involved,
Aguas should have been alerted that something was greatly amiss and that Uriarte was up to something. If
Aguas was not into the scheme, it would have been easy for him to refuse to sign the certification, but he
did not. The conspiracy "gravamen" is therefore present in the case of Aguas. Moreover, Aguas's attempt to
cover-up Uriarte's misuse of these CIF funds in his accomplishment report only contributed to unmasking
the actual activities for which these funds were utilized. Aguas' s accomplishment report, which was
conformed to by Uriarte, made it self-evidence that the bulk of the CIF funds in 2009 and 2010 were
allegedly spend for non-PCSO related activities, e.g. bomb threats, kidnapping, terrorism, and others.45
Thus, the Sandiganbayan concluded that Aguas became a part of the implied conspiracy when he signed
the disbursement vouchers despite the absence of certain legal requirements, and issued certain
certifications to the effect that the budgetary allotment/funds for cash advance to be withdrawn were
available; that the expenditures were supported by documents; and that the previous cash advances had
been liquidated or accounted for.
We opine and declare, however, that Aguas' certifications and signatures on the disbursement vouchers
were insufficient bases to conclude that he was into any conspiracy to commit plunder or any other crime.
Without GMA's participation, he could not release any money because there was then no budget available
for the additional CIFs. Whatever irregularities he might have committed did not amount to plunder, or to
any implied conspiracy to commit plunder.
Under the circumstances, the Sandiganbayan's finding on the existence of the conspiracy to commit
plunder was unsustainable. It then becomes unavoidable for the Court to rule that because the Prosecution
failed to properly allege the elements of the crime, as well as to prove that any implied conspiracy to
commit plunder or any other crime existed among GMA, Aguas and Uriarte there was no conspiracy to
commit plunder among them. As a result, GMA and Aguas could be criminally responsible only for their
own respective actions, if any.
96
 III. witness of the prosecution when asked, said that she does not know the existence or whereabouts of the
No proof of amassing, or accumulating, or acquiring alleged ill-gotten wealth, to wit:
ill-gotten wealth of at least P50 Million
was adduced against GMA and Aguas
Q: Of course, you don't know where is this ill-gotten wealth are (sic) now?

The Sandiganbayan sustained the sufficiency of the evidence to convict the petitioners for plunder on the
A: Yes, Your Honors. We don't know whether they saved it, squandered it or what? We don't know,
basis that the Prosecution established all the elements of plunder.
Your Honor.47 [bold emphasis supplied]

After a review of the records, we find and rule that the Prosecution had no case for plunder against the
After Atty. Tolentino, as the Prosecution's main witness, conceded lack of any knowledge of the amassing,
petitioners.
accumulating or acquiring of ill-gotten wealth of at least P50,000,000.00, nothing more remained of the
criminal prosecution for plunder. Hence, the Sandiganbayan should have granted the demurrers of GMA
To successfully mount a criminal prosecution for plunder, the State must allege and establish the following and Aguas, and dismissed the criminal action against them.
elements, namely:
IV.
1. That the offender is a public officer who acts by herself or in connivance with members of her family, The Prosecution failed to prove the
relatives by affinity or consanguinity, business associates, subordinates or other persons; predicate act of raiding the public treasury

2. That the offender amasses, accumulates or acquires ill-gotten wealth through a combination or series of The Sandiganbayan observed that the Prosecution established the predicate act of raiding the public
the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of treasury, to wit:
public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift,
share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in
Secondly, the terms "unjust enrichment," "benefit," and "pecuniary benefit" are only mentioned in the
connection with any government contract or project or by reason of the office or position of the public
predicate acts mentioned in par. 2, 5 and 6 of Section 1 (d) of the Plunder Law. Paragraph 1 of the same
officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National
section where "raids on the public treasury" is mentioned did not mention "unjust enrichment" or "personal
Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled
benefit". Lastly, the predicate act covering "raids on the public treasury" is lumped up with the phrases
corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares
misappropriation, conversion, misuse and malversation of public funds. Thus, once public funds, as in the
of stock, equity or any other form of interest or participation including the promise of future employment
case of CIF funds, are illegally accumulated, amassed or acquired. To the tune of PSO Million or more,
in any business enterprise or undertaking; (e) by establishing agricultural, industrial or commercial
there will be no need to establish any motive to gain, or much more establish where the money eventually
monopolies or other combinations and/or implementation of decrees and orders intended to benefit
ended up. As stated in Our Resolution dated November 5, 2013:
particular persons or special interests; or (f) by taking advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at the expense and to the damage and
prejudice of the Filipino people and the Republic of the Philippines; and, It should be noted that in both R.A. No. 7080 and the PCGG rules, the enumeration of the possible
predicate acts in the commission of plunder did not associate or require the concept of personal
gain/benefit or unjust enrichment with respect to raids on the public treasury, as a means to commit
3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at
plunder. It would, therefore, appear that a "raid on the public treasury" is consummated where all the acts
least P50,000,000.00.46
necessary for its execution and accomplishment are present. Thus a "raid on the public treasury" can be
said to have been achieved thru the pillaging or looting of public coffers either through misuse,
The corpus delicti of plunder is the amassment, accumulation or acquisition of ill-gotten wealth valued at misappropriation or conversion, without need of establishing gain or profit to the "raider" gets material
not less than P50,000,000.00. The failure to establish the corpus delicti should lead to the dismissal of the possession of a government asset through improper means and has free disposal of the same, the raid or
criminal prosecution. pillage is completed.

As regards the element that the public officer must have amassed, accumulated or acquired ill-gotten xxxx
wealth worth at least P50,000,000.00, the Prosecution adduced no evidence showing that either GMA or
Aguas or even Uriarte, for that matter, had amassed, accumulated or acquired ill-gotten wealth of any
Clearly, the improper acquisition and illegal use of CIF funds, which is obviously a government asset, will
amount. There was also no evidence, testimonial or otherwise, presented by the Prosecution showing even
amount to a raid on the public treasury, and therefore fall into the category of ill-gotten wealth.
the remotest possibility that the CIFs of the PCSO had been diverted to either GMA or Aguas, or Uriarte.

The absolute lack of evidence on this material but defining and decisive aspect of the criminal prosecution
was explicitly noted in the concurring and partial dissenting opinion of Justice Rodolfo A. Ponferrada of
the Sandiganbayan, to wit:
Here the evidence of the prosecution failed to show the existence of the crime of plunder as no evidence
was presented that any of the accused, accumulated and/or acquired ill-gotten wealth. In fact, the principal
xxxx
x x x It is not disputed that Uriarte asked for and was granted authority by Arroyo to use additional CIF
funds during the period 2008 - 2010. Uriarte was able to accumulate during that period CIF funds in the
total amount of P352,681,646. This was through a series of withdrawals as cash advances of the CIF funds
from the PCSO coffers, as evidenced by the disbursement vouchers and checks issued and encashed by
her, through her authorized representatives.

97
These flagrant violations of the rules on the use of CIF funds evidently characterize the series of
withdrawals by and releases to Uriarte as "raids" on the PCSO coffers, which is part of the public treasury.
These were, in every sense, "pillage," as Uriarte looted government funds and appears to have not been
able to account for it. The monies came into her possession and, admittedly, she disbursed it for purposes
other than what these were intended for, thus amounting to "misuse" of the same. xxx
In this case, to require proof that monies went to a plunderer's bank account or was used to acquire real or
personal properties or used for any other purpose to personally benefit the plunderer, is absurd. Suppose a
plunderer had already amassed, acquired or accumulated P50 Million or more of government funds and
just decide to keep it in his vault and never used such funds for any purpose to benefit him, would that not
be plunder? Or, if immediately right after such amassing, the monies went up in flames or recovered by the
police, negating any opportunity for the purpose to actually benefit, would that not still be plunder? Surely,
in such cases, a plunder charge could still prosper and the argument that the fact of personal benefit should
still be evidence-based must fail.48
The Sandiganbayan contended that in order to prove the predicate act of raids of the public treasury, the
Prosecution need not establish that the public officer had benefited from such act; and that what was
necessary was proving that the public officer had raided the public coffers. In support of this, it referred to
the records of the deliberations of Congress to buttress its observation.
We do not share the Sandiganbayan' s contention.
The phrase raids on the public treasury is found in Section 1 (d) of R.A. No. 7080, which provides:
Section I .Definition of Terms. - x x x
xxxx
d) Ill-gotten wealth means any asset, property, business enterprise or material possession of any person
within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by any combination or series of the following
means or similar schemes:
1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury;
xxxx
To discern the proper import of the phrase raids on the public treasury, the key is to look at the
accompanying words: misappropriation, conversion, misuse or malversation of public funds. This process
is conformable with the maxim of statutory construction noscitur a sociis, by which the correct
construction of a particular word or phrase that is ambiguous in itself or is equally susceptible of various
meanings may be made by considering the company of the words in which the word or phrase is found or
with which it is associated. Verily, a word or phrase in a statute is always used in association with other
words or phrases, and its meaning may, therefore, be modified or restricted by the latter. 49
To convert connotes the act of using or disposing of another's property as if it were one's own; to
misappropriate means to own, to take something for one's own benefit;50 misuse means "a good, substance,
privilege, or right used improperly, unforeseeably, or not as intended;"51 and malversation occurs when
"any public officer who, by reason of the duties of his office, is accountable for public funds or property,
shall appropriate the same or shall take or misappropriate or shall consent, through abandonment or
negligence, shall permit any other person to take such public funds, or property, wholly or partially."52 The
common thread that binds all the four terms together is that the public officer used the property taken.
Considering that raids on the public treasury is in the company of the four other terms that require the use
of the property taken, the phrase raids on the public treasury similarly requires such use of the property
taken. Accordingly, the Sandiganbayan gravely erred in contending that the mere accumulation and
gathering constituted the forbidden act of raids on the public treasury. Pursuant to the maxim of noscitur a
sociis, raids on the public treasury requires the raider to use the property taken impliedly for his personal
benefit.
The Prosecution asserts that the Senate deliberations removed personal benefit as a requirement for
plunder. In not requiring personal benefit, the Sandiganbayan quoted the following exchanges between
Senator Enrile and Senator Tañada, viz.:
Senator Emile. The word here, Mr. President, "such public officer or person who conspired or knowingly
benefited". One does not have to conspire or rescheme. The only element needed is that he "knowingly
benefited". A candidate for the Senate for instance, who received a political contribution from a plunderer,
knowing that the contributor is a plunderer and therefore, he knowingly benefited from the plunder, would
he also suffer the penalty, Mr. President, for life imprisonment?
Senator Tañada. In the committee amendments, Mr. President, we have deleted these lines 1 to 4 and part
ofline 5, on page 3. But, in a way, Mr. President, it is good that the Gentleman is bringing out these
questions, I believe that under the examples he has given, the Court will have to ...
Senator Emile. How about the wife, Mr. President, he may not agree with the plunderer to plunder the
country but because she is a dutiful wife or a faithful husband, she has to keep her or his vow of fidelity to
the spouse. And, of course, she enjoys the benefits out of the plunder. Would the Gentleman now impute to
her or him the crime of plunder simply because she or he knowingly benefited out of the fruits of the
plunder and, therefore, he must suffer or he must suffer the penalty of life imprisonment?
The President. That was stricken out already in the Committee amendment.
Senator Tañada. Yes, Mr. President. Lines l to 4 and part of line 5 were stricken out in the Committee
amendment. But, as I said, the eamples of the Minority Floor Leader are still worth spreading
the Record. And, I believe that in those examples, the Court will have just to take into consideration all the
other circumstances prevailing in the case and the evidence that will be submitted.
The President. In any event, 'knowingly benefited' has already been stricken off."53
The exchanges between Senator Enrile and Senator Tañada reveal, therefore, that what was removed from
the coverage of the bill and the final version that eventually became the law was a person who was not the
main plunderer or a co-conspirator, but one who personally benefited from the plunderers' action. The
requirement of personal benefit on the part of the main plunderer or his co-conspirators by virtue of their
plunder was not removed.
As a result, not only did the Prosecution fail to show where the money went but, more importantly, that
GMA and Aguas had personally benefited from the same. Hence, the Prosecution did not prove the
predicate act of raids on the public treasury beyond reasonable doubt.
V.
Summation
In view of the foregoing, the Court inevitably concludes that the Sandiganbayan completely ignored the
failure of the information to sufficiently charge conspiracy to commit plunder against the petitioners; and
98
ignored the lack of evidence establishing the corpus delicti of amassing, accumulation and acquisition of
ill-gotten wealth in the total amount of at least P50,000,000.00 through any or all of the predicate crimes.
The Sandiganbayan thereby acted capriciously, thus gravely abusing its discretion amounting to lack or
excess of jurisdiction.

Grave abuse of discretion means such capricious or whimsical exercise of judgment which is equivalent to
lack of jurisdiction.54 To justify the issuance of the writ of certiorari, the abuse of discretion must be grave,
as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and the abuse must be so patent and gross as to amount to an evasion of a positive duty or to a
virtual refusal to perform the duty enjoined, or to act at all, in contemplation of law, as to be equivalent to
having acted without jurisdiction.55

WHEREFORE, the Court GRANTS the petitions for certiorari; ANNULS and SETS ASIDE the
resolutions issued in Criminal Case No. SB-12-CRM-0174 by the Sandiganbayan on April 6, 2015 and
September 10, 2015; GRANTS the petitioners' respective demurrers to evidence; DISMISSES Criminal
Case No. SB-12-CRM-0174 as to the petitioners GLORIA MACAPAGAL-ARROYO and BENIGNO
AGUAS for insufficiency of evidence; ORDERS the immediate release from detention of said petitioners;
and MAKES no pronouncements on costs of suit.

SO ORDERED.

G.R. No. 123979 December 3, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

99
ALIPIO SANTIANO, JOSE SANDIGAN, ARMENIA PILLUETA and JOSE VICENTE (JOVY)
CHANCO, accused-appellants.
VITUG, J.:
Accuse-appellants Alipio Santiano, Jose Sandigan, Armenia Pillueta and Jose Vicente (Jovy) Chance were
indicted for the kidnapping with murder of Ramon John Dy Kow, Jr., a detention prisoner at the Naga City
Jail, in an amended Information, docketed Criminal Case No. P-2319, filed with the Regional Trial Court
("RTC") of Pili, Branch 32, Camarines Sur.
When arraigned, the four accused pleaded not guilty to the charge. The trial thereupon ensued.
The evidence submitted by the prosecution, disclosing its version of the case, is narrated by the Solicitor
General in the People's brief.
On May 13, 1993, the kidnap victim, Ramon John Dy Kow, Jr. and his live-in
partner, Loida Navidad were arrested by appellants Jose Sandigan and Armenia
Pillueta and several other NARCOM agents for alleged illegal possession of
marijuana (p. 32, TSN, April 20, 1994).
After the arrest, they were brought to the NARCOM Office situated at the
compound of the Philippine National Police (PNP) Headquarters, Naga City (p.
32, ibid.). Thereat, they were at first warned by appellant Pillueta not to contact a
lawyer (p. 35, ibid.). Appellant Pillueta likewise reminded them that "it is only a
matter of P10,000.00" (p. 35, ibid.).
When Navidad's brother nonetheless arrived accompanied by a lawyer, appellant
Pillueta got angry (p. 38, ibid.). At once, the victim and Navidad were dragged to the
Naga City Jail situated at a distance of six (6) to seven (7) meters from the
NARCOM Office (pp. 10, 38-39, ibid.). Since their arrest, they were detained at the
Naga City Jail (ibid.).
Sometime in July 1993, appellant Alipio Santiano was detained at the Naga City Jail
(pp. 4-5, ibid.). He was detained in the same cell occupied by the victim (p. 6, ibid.).
When appellant Santiano was mauled by the inmates of Cell 3, the victim was one
of those who participated in mauling him (p. 16, ibid.).
After the release of Santiano, he returned to the City Jail in November 1993
accompanied by one Lt. Dimaano (pp. 7-8, ibid.). Thereat, the victim was pointed to
by appellant Santiano as the one who mastermind his mauling (ibid.).
On December 27, 1993, at about 6:00 o'clock in the evening, the victim asked
permission from a jail trustee to allow him to buy viand outside the jail (pp. 7-
9, ibid.). When he left, the victim was wearing a fatigue jacket and short pants (p.
9, ibid.).
As the victim emerged from the PNP store, he was accosted by appellants Sandigan
and Santiano (p. 7, TSN, April 25, 1994). The two (2) appellants held the victim
between them and thereafter hurriedly, proceeded towards the NARCOM Office
situated at a distance of about twenty-five (25) meters away (pp. 7, 38-41, ibid.).
Upon reaching the door of the NARCOM office, the victim was pushed inside (pp.
7-8, ibid.). Once the victim was already inside the NARCOM Office, appellant
Sandigan proceeded to and took his place at Plaza Barlin facing the PNP Police
Station (pp. 8-12, ibid.). The victim was made to sit and thereafter mauled by
appellant Santiano (pp. 8-11, ibid.). Santiano got hold of a handkerchief, rolled it
around his fists and continued to punch the victim for almost fifteen (15) minutes (p.
16, ibid.). As the victim was being mauled, appellant Pillueta stood by the door of
the NARCOM office, her both hands inside her pockets while looking to her right
and left, acting as a lookout (ibid.).
At this time, appellant Chanco who owned and drove his trimobile, parked it in front
of the door of the NARCOM Office (pp. 15, 17, TSN, April 25, 1994). Thereafter,
he proceeded inside the NARCOM Office (pp. 15, 17, ibid.).
After a few minutes, appellant Chanco went out of the NARCOM Office and started
the trimobile (p. 21,ibid.). His co-appellant Santiano and Pillueta followed him.
Inside the trimobile, appellant Pillueta occupied the back seat (p. 21, ibid.). Santiano
occupied the reserved seat in front of the passenger seat which was occupied by the
victim (ibid.).
As appellant Chanco was about to start his trimobile, appellant Sandigan, who was
at Plaza Barlin, transferred to and stationed himself at the Century Fox in front of
the GSIS building situated at the corner of General Luna and Arana Streets (p.
23, ibid.).
The trimobile proceeded towards the direction of San Francisco Church (p. 40, TSN,
April 23, 1994). When it passed the Panganiban Drive, Naga City, on its way
towards the direction of Palestina, Pili, Camarines Sur, the victim was still aboard
the trimobile seated at the passenger seat nearest the driver (p. 4, TSN, May 24,
1994).
When prosecution witness Rañola heard over the radio that a person was found dead
at the canal in Palestina, Pili, Camarines Sur, he lost no time in informing a
policeman Prila of the Pili Police Department that the descriptions of the dead
person he heard over the radio fit not only the person he saw being hauled to and
thereafter mauled at the NARCOM Office but likewise the same person who was on
board the trimobile driven by appellant Chanco (p. 13, TSN, May 6, 1994).
Robert Dy Kow identified the man found dead in Palestina, Pili, Camarines Sur, as
his brother Ramon John Dy Kow, Jr.1
The defense presented its own account of the facts hereunder expounded by it; viz:
Accused-appellant Armenia Pillueta is an organic member of the NARCOM, Naga
City, Command. Accused-Appellant Jose Sandigan is a regular member of the PNP
but, he was a former organic member of the NARCOM. On the other hand, Accused
Alipio Santiano and Jose Vicente "Jovi" Chanco are amongst the active Civilian
Volunteer/Assists of the NARCOM.
That at or about 5:00 o'clock P.M. of December 27, 1993, accused-appellant
Sandigan was in front of the Advent theater; that while thereat, he saw accused-
appellant Santiano and he invited the latter for a snack at the Mang Donald's, a
100
burger house, situated just beside the Advent theater; that after taking their snacks,
they decided to go to the NARCOM office; that while on their way to the NARCOM
office, they saw accused-appellant Chanco emerging from the Nehrus Department
Store where the latter bought something; that this Nehrus Department Store is
located in front of the Naga City Police Head Quarters which is also near the
NARCOM office, that the three of them (Sandigan, Santiano and Chanco)
proceeded to the NARCOM office; that when they arrived, accused-appellant
Pillueta, SPO3 Lorna "Onang" Fernandez, Tet Deniega and the NARCOM, District
Commander P/Insp. Del Socorro were at the NARCOM office while accused-
appellant. Chanco's trimobile was parked in front of the NARCOM office; that
while in the NARCOM office, accused-appellant Santiano and Chanco were joking
with each other, like kids, such that accused-appellants Santiano would sling
accused-appellant Chanco with his handkerchief; that, as it was intermittently
raining, accused-appellants Sandigan, Santiano and Chanco left the NARCOM
office past 6:00 P.M. aboard the trimobile of accused-appellant Chanco, while
accused-appellant Pillueta together with SPO3 Lorna Fernandez and Tet Deniega
left the NARCOM office at or about 8:00 P.M. and proceeded to the Sampaguita
Music Lounge to watch a lady band performing at the Sampaguita Music Lounge,
leaving behind P/Insp. Nelson Del Socorro at the NARCOM office.
That upon leaving the NARCOM office and while on board the trimobile accused-
appellants Sandigan, Santiano and Chanco were deciding whether to see a movie or
have a round of drink and, after failing to decide whether to see a movie or a round
of drink, accused-appellants Sandigan and Chanco conducted accused-appellant
Santiano to the jeepney terminal for Milaor, Camarines Sur and thereupon, accused-
appellant Chanco also conducted accused-appellant Sandigan to the Philtranco
terminal where the latter boarded a bus to Bato, Camarines Sur where he resides.
That between 6:30 and 7:00 o'clock P.M. of the same date, accused-appellant
Santiano was in Milaor, Camarines Sur, a Municipality less than four kilometers
away from Naga City, and fetched Ms. Arcadia Paz, a traditional mid-wife
(komadrana), from the latter's residence to conduct/perform a pre-natal therapy
(hilot) upon his (Santiano) pregnant wife; that Ms. Paz and accused-appellant
Santiano proceeded to and arrived at the latter's house in Naga City about past 7:00
o'clock in the evening where Ms. Paz conducted a pre-natal therapy upon appellant
Santiano's wife; that Ms. Paz finished the pre-natal therapy at or about 9:00 o'clock
P.M.; that she (Paz) left the house of accused-appellant Santiano and was
accompanied for home by latter at or about 10:00 o'clock of the same evening; that
from past 7:00 o'clock when Paz and Santiano arrived at the latter's house until past
10:00 o'clock when they left Santiano's house, accused-appellant Santiano was all
the time present at and never left his house;
That on the other hand, SPO3 Fernandez, Deniega and accused-appellant Pillueta,
upon leaving the NARCOM office, went directly to the Sampaguita Music Lounge
and watched the lady band perform thereat; that Roy Cabral, a common
acquaintance of SPO3 Fernandez, Deniega and accused-appellant Pillueta, even saw
and approached them (SPO3 Fernandez, Deniega and Pillueta) at their table inside
the Sampaguita Music Lounge; that the three of them (SPO3 Fernandez, Deniega
and Pillueta) left the Sampaguita Music Lounge at or about 2:00 A.M. of December
28, 1993, and thereupon, they went to their respective homes.
That on December 27, 1993, at any time of the day, the late Ramon John Dy Kow,
Jr. was neither seen by the accused-appellants nor was he in the NARCOM office
more specifically and particularly between 6:00 to 7:00 P.M. of the same date; that
the late Ramon John Dy Kow, Jr. was known to SPO3 Fernandez and his (Dy Kow,
Jr.) height and body built is almost the same or similarly the same as that of
accused-appellant Chanco; that she (SPO3 Fernandez) also known William Rañola
whom she usually see drunk/under the influence of liquor;
That in the first week of January, 1994, during the investigation of the case
conducted by the PNP Pili, Camarines Sur, SPO3 Fernandez was asked by major
Ernesto Idian, chief of PNP Pili, Camarines Sur, of accused-appellant Pillueta's
whereabouts in the night of December 27, 1993, where she (SPO3 Fernandez) told
Major Idian that accused-appellant Pillueta was with her (SPO3 Fernandez) at the
Sampaguita Music Lounge; that Major Idian did not ask her (SPO3 Fernandez) to
execute an affidavit of what she told him instead, Major Idian requested her not to
tell accused-appellant Pillueta about what he asked her.
That on January 20, 1994, accuse-appellants Pillueta, Santiano and Chanco, reported
and submitted themselves to their superior officer, Col. Norberto Manaog, Deputy
Director of the NARCOM at Camp Crame, Quezon City, wherein they reported that
they were suspected of having killed Ramon John Dy Kow, Jr. and requested that
they be placed under his custody; that Col. Manaog referred them to the legal officer
of the NARCOM, Major Acpal; that after being informed by accused-appellants
Pillueta, Santiano and Chanco that they did not have any idea of whether a warrant
of arrest was already issued against them, Col. Manaog, in consultation with Major
Acpal, told them that there is no yet basis for them to be placed under custody, so
that, Col. Manaog instructed them just get in touch with him so that if a warrant of
arrest comes out, the same could be served upon them; that Col. Manaog directed
Major Acpal to proceed to Pili, Camarines Sur to determine the status of the
investigation and to know whether a warrant of arrest was already issued; that on
January 24, 1994, Major Acpal went to Pili, Camarines Sur and found out that a
warrant of arrest against accused-appellants, Sandigan, who was already arrested,
Pillueta and Santiano has been issued on January 21, 1994; that on January 25,
1994, Major Acpal, being a lawyer and the Legal officer of the NARCOM filed
before the Municipal Trial Court, Pili, Camarines Sur, a motion to quash the warrant
of arrest; that on January 23, 1994 accused-appellant Pillueta informed Col. Manaog
that she was hospitalized due to a car accident and that she may be placed under his
custody should a warrant for her arrest be issued; on January 26, 1994, she was
placed under the custody of her superior, Col. Manaog of the NARCOM. On the
other hand, accused-appellants, Santiano and Chanco were, from time to time,
contacting Col. Manaog to determine whether a warrant of arrest was already issued
but, since Col. Manaog was always out of his office, they were able to contact, via
telephone facility, Col. Manaog only on April 16, 1994; and accused-appellants
Chanco and Santiano went to the office of NARCOM, Camp Crame, Quezon City,
voluntarily surrendered, and Maj. Acpal placed them under the custody of the
NARCOM and were detained at PNP NARCOM Cell, Camp Crame, Quezon City.
The records of this case show that no warrant of arrest was issued against accused-
appellant Chanco (Order dated Sept. 5, 1994), however, he voluntarily surrendered
and submitted to the custody of the NARCOM and to the trial court.2
Appellant Jovy Chanco had this further statement in his supplemental appeal brief; thus:
On December 28, 1993, a cadaver of an unknown person was discovered
somewhere in the vicinity of Barangay Palestina, Municipality of Pili, Province of
Camarines, by Danilo Camba, the Barangay Captain of said locality. The corpse was
later on identified by Robert Dy Kow as that one of his brother, Ramon John Dy
Kow, Jr. 3
101
Dr. Thomas S. Gonzales performed an autopsy on the cadaver of the victim. His findings revealed that Dy
Kow, Jr., had fatally sustained the following injuries:
Eye: Contusion, upper lid extending to
the outer canthus, right;
Ear: lacerated wound ripping off the
lowest pole of the lobule, right;
serrated border
Sub-occipital region: lacerated wound,
0.9 cms. in length, centrally located;
Neck: punctured wound, 3-4 mm deep,
semi-circular with serrated border, base
of neck at the sternomastoid border,
right;
Chest: Gunshot wound
point of entrance: 2nd ICS, sternal
border, right, 12 mm in diameter
Bullet route: from the point of entrance
extending backwards to the left,
piercing the heart and left lung and
lodging on the anterior aspect or
surface of the sub scapular area, left
Point of exist: None
Bullet slug: Recovered
CAUSE OF DEATH: INTERNAL HEMORRHAGE
4
SECONDARY TO GUNSHOT WOUND.
Evaluating the evidence before it, the trial court found all four accused guilty beyond reasonable doubt of
kidnapping, defined and penalized under Article 267 of the Revised Penal Code; the court adjudged:
UPON THE FOREGOING CONSIDERATIONS, this Court FINDS FOR THE
PEOPLE OF THE PHILIPPINES, and finds all of the accused, Jose Sandigan,
Armenia, aka Armie Pillueta, Alipio Santiano, and Jose Vicente Chanco, aka Jovy,
guilty beyond reasonable doubt of the crime of KIDNAPPING as defined and
penalized under Art. 267 of the Revised Penal Code, and there being no mitigating
or aggravating circumstances, hereby sentences each and all of them to suffer
imprisonment, RECLUSION PERPETUA, with all the accessories of the penalty,
and to indemnify the heirs of Ramon John Dy Kow, Jr. the sum of Fifty Thousand
Pesos, and to pay the costs; they are credited in full for the preventive
imprisonment.5
Accused-appellants filed the instant appeal.
Assailing the decision of the court a quo, appellants would insist that the amended information under
which they were arraigned, tried and convicted, although so captioned as an indictment for the complex
crime of kidnapping with murder, was, in reality a mere indictment for murder. According to appellants,
the use of the words "abducted" and "kidnapping" in the amended information was not in itself indicative
of the crime of kidnapping being charged but that, from the averments of the information, it could be
apparent that Ramon John Dy Kow, Jr., was "abducted or kidnapped" not for the purpose of detaining but
of liquidating him. Hence, the defense theorized, the conviction for kidnapping had no legal ground to
stand on.
Let it not be said that the contention lacks remarkableness nevertheless, it is a legal proposition that can
here hardly be accepted. The amended information reads:
The undersigned 1st Assistant Provincial Prosecutor of Camarines Sur accuses JOSE
SANDIGAN, ALIPIO SANTIANO, ARMIE PILLUETA and JOVY CHANCO of
the crime of KIDNAPPING WITH MURDER, defined and penalized under Article
267 and Article 248 of the Revised Penal Code, committed as follows:
That on or about the 27th day of December 1993 between
6:00 o'clock to 7:00 o'clock in the evening at Barangay
Palestina, Municipality of Pili, Province of Camarines Sur,
Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating
and mutually helping one another with intent to kill, with
treachery, superior strength and evident premeditation, did
then and there, willfully, unlawfully and feloniously abduct,
kidnap, and bring into a secluded place at Palestina, Pili,
Camarines Sur, one RAMON JOHN DY KOW, JR. and while
thereat attack and shoot with firearm the said Ramon John Dy
Kow, Jr. for several times hitting him on the different parts of
his body causing his instantaneous death.
That as a consequence of the death of the victim Ramon John
Dy Kow, Jr. his heirs suffered damages. 6
The information is not so wanting as to render it legally inadequate for the purpose it has been intended by
the prosecution. It should be sufficient for an information to distinctly state the statutory designation of the
offense and the acts or omissions complained of as being constitutive of that offense.7 A reading of the
amended information readily reveals that the charge is for "kidnapping with murder, defined and
penalized under Article 267 (Kidnapping and Serious Illegal Detention) and Article 248 (Murder) of
the Revised Penal Code" Evidently, appellants have been properly apprised of the charges, the
information did go on to state thus —
That on or about the 27th day of December 1993 between 6:00 o'clock to 7:00
o'clock in the evening at Barangay Palestina, Municipality of Pili, Province of
Camarines Sur, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused conspiring, confederating and mutually
helping one another with intent to kill, with treachery, superior strength and
evident premeditation, did then and there, willfully, unlawfully and feloniously
abduct kidnap and bring into a secluded place at Palestina, Pili, Camarines Sur
one RAMON JOHN DY KOW, JR. and while thereat attack and shoot with
firearm the said Ramon John Dy Kow, Jr. for several times hitting him on the
different parts of his body causing his instantaneous death. 8
102
 The accused have gone through trial without any objection thereover. Exceptions relative
to the statement or recital of fact constituting the offense charged ought be presented
before the trial court; if none is taken and the defective or even omitted averments are
supplied by competent proof, it would not be error for an appellate court to reject those
exceptions on appeal.9
The issue is next posed: When a complex crime has been charged in an information and the evidence
fails to support the charge on one of the component offenses, can the defendant still be separately
convicted of the other offense? The question has long been answered in the affirmative. In United
States vs. Lahoylahoy and Madanlog, 10 the Court has ruled to be legally feasible the conviction of an
accused on one of the offenses included in a complex crime charged, when properly established,
despite the failure of evidence to hold the accused guilty of the other charge.
Art. 267 of the Revised Penal Code, prior to its amendment by Section 8 of Republic Act
7659, 11 reads:
Art. 267. Kidnapping and serious illegal detention. — Any private individual
who shall kidnap or detain another; or in any other manner deprive him of his
liberty, shall suffer the penalty ofreclusion perpetua to death;
1. If the kidnapping or detention shall have lasted more than five days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the person
kidnapped or detained; or if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, female, or a public
officer.
The penalty shall be death where the kidnapping or detention was committed
for the purpose of extorting ransom from the victim or any other person, even
if none of the circumstances above mentioned were present in the commission
of the offense.
The elements of the offense, here adequately shown, are (a) that the offender is a private
individual; (b) that he kidnaps or detains another, or in any other manner deprives the
latter of his liberty; (c) that the act of detention or kidnapping is illegal; and (d) that, in
the commission of the offense, any of the following circumstances is present, i.e., (i) that
the kidnapping or detention lasts for more than 5 days, or (ii) that it is committed
simulating public authority, or (iii) that any serious physical injuries are inflicted upon
the person kidnapped or detained or threats to kill him are made, or (iv) that the person
kidnapped or detained is a minor, female, or a public officer. 12
Prosecution witness William Rañola testified that he had seen the victim being accosted, held and
thereafter dragged to the NARCOM office by appellants Santiago and Sandigan. Inside the
NARCOM office the victim was mauled by Santiano. For several minutes, Santiano continued to
batter him with punches while Pillueta stood by the door and so acted as the "lockout." The
appellants then took the victim away on a trimobile owned and driven by Chanco. Rañola positively
identified the fatigue jacket worn by the victim on the evening of his abduction on 27 December 1993
and when his lifeless body was found in the morning of 28 December 1993. Don Gumba
corroborated Rañola's testimony. Gumba was positive that he had seen the victim at around eight
o'clock in the evening of 27 December 1993 with appellants Santiano and Pillueta on board the
trimobile driven by appellant Chanco on its way towards the direction of Palestina, Pili, Camarines
Sur, where, the following morning the victim was found dead evidently after succumbing to several
gunshot wounds.
Appellants have not shown any nefarious motive on the part of the witnesses that might have
influenced them to declare falsely against appellants; the Court sees no justification to thereby deny
faith and credit to their testimony. 13 The Court likewise shares the view of the Solicitor General in
pointing out that —
1. There is no question that the victim, who was on the date in question
detained at the Naga City Jail, asked permission from the jail trustee in order
to buy viand outside. It was while he was emerging from the PNP store that he
was accosted by appellants Santiano and Sandigan.
2. From the moment that the victim was accosted in Naga City, he was at first
dragged to the NARCOM Office where he was mauled. This circumstance
indicated the intention to deprive him of his liberty for sometime, an essential
element of the crime of kidnapping.
3. The victim did not only sustain serious physical injuries but likewise died as
indicated in the autopsy report, thus, belying appellants' claim that none of the
circumstances in Article 267 of the Revised Penal Code was present.
4. Witness Don Gumba was positive when he declared that he saw the victim at
about 8:00 o'clock in the evening of December 27, 1993 with appellant Chanco
on its way towards the direction of Palestina, Pili, Camarines Sur where the
victim was found dead. 14
The fact alone that appellant Pillueta is "an organic member of the NARCOM" and appellant
Sandigan a regular member of the PNP would not exempt them from the criminal liability for
kidnapping. 15 It is quite clear that in abducting and taking away the victim, appellants did so
neither in furtherance of official function nor in the pursuit of authority vested in them. It is not, in
fine, in relation to their office, but in purely private capacity that they have acted in concert with
their co-appellants Santiano and Chanco.
The crime of kidnapping cannot be here absorbed by the charge of murder since the detention of the
victim is not shown to have been for the purpose of liquidating him. Appellants themselves, in fact,
all deny having killed the victim. And while the evidence may have thus been found to be wanting by
the trial court so as to equally hold appellants responsible for the death of the victim, the Court is
conviced that the court a quo did not err in making them account for kidnapping. The circumstances
heretofore recited indicate the attendance of conspiracy among the appellants thereby making them
each liable for the offense.
The claim of appellants that they cannot be held liable for indemnity in the amount of P50,000.00
because the prosecution did not present evidence to prove damages is without merit. The indemnity
awarded by the trial court clearly refers to the civil indemnity for the offense 16 and not for actual
damages sustained.
SO ORDERED.
103
G.R. Nos. L-33466-67 April 20, 1983

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MAMERTO NARVAEZ, defendant-appellant.

104
The Solicitor General for plaintiff-appellee.
Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.
MAKASIAR, J.:
This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch I, in Criminal
Cases Nos. 1815 and 1816 for murder which, after a joint trial, resulted in the conviction of the accused in
a decision rendered on September 8, 1970, with the following pronouncement:
Thus, we have a crime of MURDER qualified by treachery with the aggravating
circumstance of evident premeditation offset by the mitigating circumstance of
voluntary surrender. The proper penalty imposable, therefore, is RECLUSION
PERPETUA (Arts. 248 and 64, Revised Penal Code).
Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the crime
of murder,
(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION
PERPETUA, to indemnify the heirs of the deceased Davis Q. Fleischer in the sum
of P 12,000.00 as compensatory damages, P 10,000.00 as moral damages, P
2,000.00 as attorney's fees, the offended party having been represented by a private
prosecutor, and to pay the costs;
(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION
PERPETUA, to indemnify the heirs of the deceased Flaviano Rubia in the sum of
P12,000.00 as compensatory damages, P10,000.00 as moral damages, P2,000.00 as
attorney's fees, the offended party having been represent by a private prosecutor, and
to pay the costs (p. 48, rec.).
The facts are summarized in the People's brief, as follows:
At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Verano and
Cesar Ibanez together with the two deceased Davis Fleischer and Flaviano Rubia,
were fencing the land of George Fleischer, father of deceased Davis Fleischer. The
place was in the boundary of the highway and the hacienda owned by George
Fleischer. This is located in the municipality of Maitum, South Cotabato. At the
place of the fencing is the house and rice drier of appellant Mamerto Narvaez (pp.
179-182, t.s.n., Pieza II). At that time, appellant was taking his rest, but when he
heard that the walls of his house were being chiselled, he arose and there he saw the
fencing going on. If the fencing would go on, appellant would be prevented from
getting into his house and the bodega of his ricemill. So he addressed the group,
saying 'Pare, if possible you stop destroying my house and if possible we will talk it
over what is good,' addressing the deceased Rubia, who is appellant's compadre. The
deceased Fleischer, however, answered: 'No, gademit, proceed, go ahead.' Appellant
apparently lost his equilibrium and he got his gun and shot Fleischer, hitting him. As
Fleischer fell down, Rubia ran towards the jeep, and knowing there is a gun on the
jeep, appellant fired at Rubia, likewise hitting him (pp. 127-133, t.s.n., Defense
transcript). Both Fleischer and Rubia died as a result of the shotting' (pp. 9-14, t.s.n.,
Pieza I, pp. 8-9, Appellant's Brief, p.161, rec.).
It appears, however, that this incident is intertwined with the long drawn out legal battle between the
Fleischer and Co., Inc. of which deceased Fleischer was the secretary-treasurer and deceased Rubia the
assistant manager, on the one hand, and the land settlers of Cotabato, among whom was appellant.
From the available records of the related cases which had been brought to the Court of Appeals (CA-G.R.
Nos. 28858-R and 50583-R) and to this Court on certiorari (G.R. No. L-26757 and L-45504), WE take
judicial notice of the following antecedent facts:
Appellant was among those persons from northern and central Luzon who went to Mindanao in 1937 and
settled in Maitum, a former sitio of Kiamba and now a separate municipality of South Cotabato. He
established his residence therein, built his house, cultivated the area, and was among those who petitioned
then President Manuel L. Quezon to order the subdivision of the defunct Celebes Plantation and nearby
Kalaong Plantation totalling about 2,000 hectares, for distribution among the settlers.
Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American landowner in
Negros Oriental, filed sales application No. 21983 on June 3, 1937 over the same area formerly leased and
later abandoned by Celebes Plantation Company, covering 1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in 1941 but the
survey report was not submitted until 1946 because of the outbreak of the second world war. According to
the survey, only 300 hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, were set aside for
Sales Application No. 21983, while the rest were subdivided into sublots of 5 to 6 hectares each to be
distributed among the settlers (pp. 32-33, G.R. No. L-45504).
The 300 hectares set aside for the sales application of Fleischer and Company was declared open for
disposition, appraised and advertised for public auction. At the public auction held in Manila on August 14,
1948, Fleischer and Company was the only bidder for P6,000.00. But because of protests from the settlers
the corresponding award in its favor was held in abeyance, while an investigator was sent by the Director
of Lands to Kiamba in the person of Atty. Jose T. Gozon Atty. Gozon came back after ten days with an
amicable settlement signed by the representative of the settlers. This amicable settlement was later
repudiated by the settlers, but the Director of Lands, acting upon the report of Atty. Gozon, approved the
same and ordered the formal award of the land in question to Fleischer and Company. The settlers
appealed to the Secretary of Agriculture and Natural Resources, who, however, affirmed the decision in
favor of the company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of Cotabato which
then consisted only of one sala, for the purpose of annulling the order of the Secretary of Agriculture and
Natural Resources which affirmed the order of the Director of Lands awarding the contested land to the
company. The settlers as plaintiffs, lost that case in view of the amicable settlement which they had
repudiated as resulting from threats and intimidation, deceit, misrepresentation and fraudulent machination
on the part of the company. They appealed to the Court of Appeals (CA-G.R. No. 28858-R) which likewise
affirmed on August 16, 1965 the decision of the Court of First Instance in favor of the company.
This resulted in the ouster of the settlers by an order of the Court of First Instance dated September 24,
1966, from the land which they had been occupying for about 30 years. Among those ejected was the
appellant who, to avoid trouble, voluntarily dismantled his house, built in 1947 at a cost of around
P20,000.00, and transferred to his other house which he built in 1962 or 1963 near the highway. The
second house is not far from the site of the dismantled house. Its ground floor has a store operated by Mrs.
June Talens who was renting a portion thereof. He also transferred his store from his former residence to
the house near the highway. Aside from the store, he also had a rice mill located about 15 meters east of the
house and a concrete pavement between the rice mill and the house, which is used for drying grains and
copra.
105
On November 14, 1966, appellant was among the settlers on whose behalf Jose V. Gamboa and other
leaders filed Civil Case No. 755 in the Court of First Instance of Cotabato, Branch I. to obtain an
injunction or annulment of the order of award with prayer for preliminary injunction. During the pendency
of this case, appellant on February 21, 1967 entered into a contract of lease with the company whereby he
agreed to lease an area of approximately 100 to 140 square meters of Lot No. 38 from the company (Exh.
9, p. 1, Folder of Exhibits for Defense) for a consideration of P16.00 monthly. According to him, he signed
the contract although the ownership of the land was still uncertain, in order to avoid trouble, until the
question of ownership could be decided. He never paid the agreed rental, although he alleges that the
milling job they did for Rubia was considered payment. On June 25, 1968, deceased Fleischer wrote him a
letter with the following tenor:
You have not paid six months rental to Fleischers & Co., Inc. for that portion of land
in which your house and ricemill are located as per agreement executed on February
21, 1967. You have not paid as as even after repeated attempts of collection made by
Mr. Flaviano Rubia and myself.
In view of the obvious fact that you do not comply with the agreement, I have no
alternative but to terminate our agreement on this date.
I am giving you six months to remove your house, ricemill, bodega, and water
pitcher pumps from the land of Fleischers & Co., Inc. This six- month period shall
expire on December 31, 1966.
In the event the above constructions have not been removed within the six- month
period, the company shall cause their immediate demolition (Exhibit 10, p.
2, supra).
On August 21, 1968, both deceased, together with their laborers, commenced fencing Lot 38 by putting
bamboo posts along the property line parallel to the highway. Some posts were planted right on the
concrete drier of appellant, thereby cutting diagonally across its center (pp. 227-228, t.s.n., Vol. 2), with the
last post just adjacent to appellant's house (p. 231, t.s.n., supra). The fence, when finished, would have the
effect of shutting off the accessibility to appellant's house and rice mill from the highway, since the door of
the same opens to the Fleischers' side. The fencing continued on that fateful day of August 22, 1968, with
the installation of four strands of barbed wire to the posts.
At about 2:30 p.m. on the said day, appellant who was taking a nap after working on his farm all morning,
was awakened by some noise as if the wall of his house was being chiselled. Getting up and looking out of
the window, he found that one of the laborers of Fleischer was indeed chiselling the wall of his house with
a crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia was nailing the barbed wire and deceased Fleischer
was commanding his laborers. The jeep used by the deceased was parked on the highway. The rest of the
incident is narrated in the People's Brief as above-quoted. Appellant surrendered to the police thereafter,
bringing with him shotgun No. 1119576 and claiming he shot two persons (Exh. Pp. 31, Defense Exhibits).
Appellant now questions the propriety of his conviction, assigning the following errors:
First Assignment of Error: That the lower court erred in convicting defendant-
appellant despite the fact that he acted in defense of his person; and
Second Assignment of Error: That the court a quo also erred in convicting
defendant-appellant although he acted in defense of his rights (p. 20 of Appellant's
Brief, p. 145, rec.).
The act of killing of the two deceased by appellant is not disputed. Appellant admitted having shot them
from the window of his house with the shotgun which he surrendered to the police authorities. He claims,
however, that he did so in defense of his person and of his rights, and therefore he should be exempt from
criminal liability.
Defense of one's person or rights is treated as a justifying circumstance under Art. 11, par. 1 of the Revised
Penal Code, but in order for it to be appreciated, the following requisites must occur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself
(Art. 11, par. 1, Revised Penal Code, as amended).
The aggression referred to by appellant is the angry utterance by deceased Fleischer of the following
words: "Hindi, sigue, gademit, avante", in answer to his request addressed to his compadre, the deceased
Rubia, when he said, "Pare, hinto mona ninyo at pag-usapan natin kung ano ang mabuti" (pp. 227-229,
t.s.n., Vol. 6). This was in reaction to his having been awakened to see the wall of his house being
chiselled. The verbal exchange took place while the two deceased were on the ground doing the fencing
and the appellant was up in his house looking out of his window (pp. 225-227, supra). According to
appellant, Fleischer's remarks caused this reaction in him: "As if, I lost my senses and unknowingly I took
the gun on the bed and unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr. Fleischer" (p.
132, supra). As for the shooting of Rubia, appellant testified:
When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing the shot,
Mr. Rubia looked at Mr. Fleischer and when Mr. Fleischer fell down, Mr. Rubia ran
towards the jeep and knowing that there was a firearm in the jeep and thinking that
if he will take that firearm he will kill me, I shot at him (p. 132, supra, Emphasis
supplied).
The foregoing statements of appellant were never controverted by the prosecution. They claim, however,
that the deceased were in lawful exercise of their rights of ownership over the land in question, when they
did the fencing that sealed off appellant's access to the highway.
A review of the circumstances prior to the shooting as borne by the evidence reveals that five persons,
consisting of the deceased and their three laborers, were doing the fencing and chiselling of the walls of
appellant's house. The fence they were putting up was made of bamboo posts to which were being nailed
strands of barbed wire in several layers. Obviously, they were using tools which could be lethal weapons,
such as nail and hammer, bolo or bamboo cutter, pliers, crowbar, and other necessary gadgets. Besides, it
was not disputed that the jeep which they used in going to the place was parked just a few steps away, and
in it there was a gun leaning near the steering wheel. When the appellant woke up to the sound of the
chiselling on his walls, his first reaction was to look out of the window. Then he saw the damage being
done to his house, compounded by the fact that his house and rice mill will be shut off from the highway
by the fence once it is finished. He therefore appealed to his compadre, the deceased Rubia, to stop what
they were doing and to talk things over with him. But deceased Fleischer answered angrily with 'gademit'
and directed his men to proceed with what they were doing.
The actuation of deceased Fleischer in angrily ordering the continuance of the fencing would have resulted
in the further chiselling of the walls of appellant's house as well as the closure of the access to and from his
house and rice mill-which were not only imminent but were actually in progress. There is no question,
therefore, that there was aggression on the part of the victims: Fleischer was ordering, and Rubia was
106
actually participating in the fencing. This was indeed aggression, not on the person of appellant, but on his
property rights.
The question is, was the aggression unlawful or lawful? Did the victims have a right to fence off the
contested property, to destroy appellant's house and to shut off his ingress and egress to his residence and
the highway?
Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his land or tenements.
However, at the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of the order of
award to Fleischer and Company was still pending in the Court of First Instance of Cotabato. The parties
could not have known that the case would be dismissed over a year after the incident on August 22, 1968,
as it was dismissed on January 23, 1970 on ground of res judicata, in view of the dismissal in 1965 (by the
Court of Appeals) of Civil Case No. 240 filed in 1950 for the annulment of the award to the company,
between the same parties, which the company won by virtue of the compromise agreement in spite of the
subsequent repudiation by the settlers of said compromise agreement; and that such 1970 dismissal also
carried the dismissal of the supplemental petition filed by the Republic of the Philippines on November 28,
1968 to annul the sales patent and to cancel the corresponding certificate of title issued to the company, on
the ground that the Director of Lands had no authority to conduct the sale due to his failure to comply with
the mandatory requirements for publication. The dismissal of the government's supplemental petition was
premised on the ground that after its filing on November 28, 1968, nothing more was done by the
petitioner Republic of the Philippines except to adopt all the evidence and arguments of plaintiffs with
whom it joined as parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed hoping for a favorable judgment in Civil Case
No. 755 filed on November 14, 1966 and his execution of the contract of lease on February 21, 1967 was
just to avoid trouble. This was explained by him during cross-examination on January 21, 1970, thus:
It happened this way: we talked it over with my Mrs. that we better rent the place
because even though we do not know who really owns this portion to avoid trouble.
To avoid trouble we better pay while waiting for the case because at that time, it was
not known who is the right owner of the place. So we decided until things will clear
up and determine who is really the owner, we decided to pay rentals (p. 169, t.s.n.,
Vol.6).
In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2, Defense Exhibits) within
which to vacate the land. He should have allowed appellant the peaceful enjoyment of his properties up to
that time, instead of chiselling the walls of his house and closing appellant's entrance and exit to the
highway.
The following provisions of the Civil Code of the Philippines are in point:
Conformably to the foregoing provisions, the deceased had no right to destroy or cause damage to
appellant's house, nor to close his accessibility to the highway while he was pleading with them to stop and
talk things over with him. The assault on appellant's property, therefore, amounts to unlawful aggression as
contemplated by law.
Illegal aggression is equivalent to assault or at least threatened assault of immediate
and imminent kind (People vs. Encomiendas, 46 SCRA 522).
In the case at bar, there was an actual physical invasion of appellant's property which he had the right to
resist, pursuant to Art. 429 of the Civil Code of the Philippines which provides:
Art. 429. The owner or lawful possessor of a thing has the right to exclude any
person from the enjoyment and disposal thereof. For this purpose, he may use such
force as may be reasonably necessary to repel or prevent an actual or threatened
unlawful physical invasion or usurpation of his property (Emphasis supplied).
The reasonableness of the resistance is also a requirement of the justifying circumstance of self-defense or
defense of one's rights under paragraph 1 of Article 11, Revised Penal Code. When the appellant fired his
shotgun from his window, killing his two victims, his resistance was disproportionate to the attack.
WE find, however, that the third element of defense of property is present, i.e., lack of sufficient
provocation on the part of appellant who was defending his property. As a matter of fact, there was no
provocation at all on his part, since he was asleep at first and was only awakened by the noise produced by
the victims and their laborers. His plea for the deceased and their men to stop and talk things over with him
was no provocation at all.
Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the elements for
justification are present. He should therefore be held responsible for the death of his victims, but he could
be credited with the special mitigating circumstance of incomplete defense, pursuant to paragraph 6,
Article 13 of the Revised Penal Code.
The crime committed is homicide on two counts. The qualifying circumstance of treachery cannot be
appreciated in this case because of the presence of provocation on the part of the deceased. As WE held
earlier in People vs. Manlapaz (55 SCRA 598), the element of a sudden unprovoked attack is therefore
lacking.
Moreover, in order to appreciate alevosia, "it must clearly appear that the method of assault adopted by the
aggressor was deliberately chosen with a special view to the accomplishment of the act without risk to the
assailant from any defense that the party assailed might have made. This cannot be said of a situation
where the slayer acted instantaneously ..." (People vs. Cañete, 44 Phil. 481).

WE likewise find the aggravating (qualifying) circumstance of evident premeditation not sufficiently
Art. 536. In no case may possession be acquired through force or intimidation as
established. The only evidence presented to prove this circumstance was the testimony of Crisanto Ibañez,
long as there is a possessor who objects thereto. He who believes that he has an
37 years old, married, resident of Maitum, South Cotabato, and a laborer of Fleischer and Company, which
action or a right to deprive another of the holding of a thing must invoke the aid of
may be summarized as follows:
the competent court, if the holder should refuse to deliver the thing.

On August 20, 1968 (two days before the incident) at about 7:00 A.M., he was
Art. 539. Every possessor has a right to be respected in his possession; and should
drying corn near the house of Mr. and Mrs. Mamerto Narvaez at the crossing,
he be disturbed therein he shall be protected in or restored to said possession by the
Maitum, South Cotabato, when the accused and his wife talked to him. Mrs.
means established by the laws and the Rules of Court (Articles 536 and 539, Civil
Narvaez asked him to help them, as he was working in the hacienda. She further told
Code of the Philippines).
him that if they fenced their house, there is a head that will be broken. Mamerto
Narvaez added 'Noy, it is better that you will tell Mr. Fleischer because there will be

107
 nobody who will break his head but I will be the one.' He relayed this to Mr.
Flaviano Rubia, but the latter told him not to believe as they were only Idle threats
designed to get him out of the hacienda (pp. 297-303, t.s.n., Vol. 2).
This single evidence is not sufficient to warrant appreciation of the aggravating circumstance of evident
premeditation. As WE have consistently held, there must be "direct evidence of the planning or preparation
to kill the victim, .... it is not enough that premeditation be suspected or surmised, but the criminal intent
must be evidenced by notorious outward acts evincing the determination to commit the crime" (People vs.
Ordioles, 42 SCRA 238). Besides, there must be a "showing" that the accused premeditated the killing; that
the culprit clung to their (his) premeditated act; and that there was sufficient interval between the
premeditation and the execution of the crime to allow them (him) to reflect upon the consequences of the
act" (People vs. Gida, 102 SCRA 70).
Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the deceased Davis Fleischer,
neutralizes his credibility.
Since in the case at bar, there was no direct evidence of the planning or preparation to kill the victims nor
that the accused premeditated the killing, and clung to his premeditated act, the trial court's conclusion as
to the presence of such circumstance may not be endorsed.
Evident premeditation is further negated by appellant pleading with the victims to stop the fencing and
destroying his house and to talk things over just before the shooting.
But the trial court has properly appreciated the presence of the mitigating circumstance of voluntary
surrender, it appearing that appellant surrendered to the authorities soon after the shooting.
Likewise, We find that passion and obfuscation attended the commission of the crime. The appellant
awoke to find his house being damaged and its accessibility to the highway as well as of his rice mill
bodega being closed. Not only was his house being unlawfully violated; his business was also in danger of
closing down for lack of access to the highway. These circumstances, coming so near to the time when his
first house was dismantled, thus forcing him to transfer to his only remaining house, must have so
aggravated his obfuscation that he lost momentarily all reason causing him to reach for his shotgun and
fire at the victims in defense of his rights. Considering the antecedent facts of this case, where appellant
had thirty years earlier migrated to this so-called "land of promise" with dreams and hopes of relative
prosperity and tranquility, only to find his castle crumbling at the hands of the deceased, his dispassionate
plea going unheeded-all these could be too much for any man-he should be credited with this mitigating
circumstance.
Consequently, appellant is guilty of two crimes of homicide only, the killing not being attended by any
qualifying nor aggravating circumstance, but extenuated by the privileged mitigating circumstance of
incomplete defense-in view of the presence of unlawful aggression on the part of the victims and lack of
sufficient provocation on the part of the appellant-and by two generic mitigating circumstance of voluntary
surrender and passion and obfuscation.
Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusion temporal. Pursuant
to Article 69, supra, the penalty lower by one or two degrees shall be imposed if the deed is not wholly
excusable by reason of the lack of some of the conditions required to justify the same. Considering that the
majority of the requirements for defense of property are present, the penalty may be lowered by two
degrees, i.e., to prision correccional And under paragraph 5 of Article 64, the same may further be reduced
by one degree, i.e., arresto mayor, because of the presence of two mitigating circumstances and no
aggravating circumstance.
The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan American World
Airways (43 SCRA 397), the award for moral damages was reduced because the plaintiff contributed to the
gravity of defendant's reaction. In the case at bar, the victims not only contributed but they actually
provoked the attack by damaging appellant's properties and business. Considering appellant's standing in
the community, being married to a municipal councilor, the victims' actuations were apparently designed to
humiliate him and destroy his reputation. The records disclose that his wife, councilor Feliza Narvaez, was
also charged in these two cases and detained without bail despite the absence of evidence linking her to the
killings. She was dropped as a defendant only upon motion of the prosecution dated October 31, 1968. (p.
14, CFI rec. of Crim. Case No. 1816), but acted upon on November 4, 1968 (p. 58, CFI rec. of Criminal
Case No. 1815).
Moreover, these cases arose out of an inordinate desire on the part of Fleischer and Company, despite its
extensive landholdings in a Central Visayan province, to extend its accumulation of public lands to the
resettlement areas of Cotabato. Since it had the capability-financial and otherwise-to carry out its land
accumulation scheme, the lowly settlers, who uprooted their families from their native soil in Luzon to
take advantage of the government's resettlement program, but had no sufficient means to fight the big
landowners, were the ones prejudiced. Thus, the moral and material suffering of appellant and his family
deserves leniency as to his civil liability.
Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prision
correccional or arrests mayor and fine who has no property with which to meet his civil liabilities to serve
a subsidiary imprisonment at the rate of one (1) day for each P 2.50. However, the amendment introduced
by Republic Act No. 5465 on April 21, 1969 made the provisions of Art. 39 applicable to fines only and
not to reparation of the damage caused, indemnification of consequential damages and costs of
proceedings. Considering that Republic Act 5465 is favorable to the accused who is not a habitual
delinquent, it may be given retroactive effect pursuant to Article 22 of the Revised Penal Code.
WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONLY TWO
(2) HOMICIDES, MITIGATED BY THE PRIVILEGED EXTENUATING CIRCUMSTANCE OF
INCOMPLETE SELF-DEFENSE AS WELL AS BY TWO (2) GENERIC MITIGATING
CIRCUMSTANCES OF VOLUNTARY SURRENDER AND OBFUSCATION, WITHOUT ANY
AGGRAVATING CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN
IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO INDEMNIFY EACH GROUP
OF HEIRS OF DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN THE SUM OF FOUR
THOUSAND (P 4,000.00) PESOS, WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY
AWARD FOR MORAL DAMAGES AND ATTORNEY'S FEES.
CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST FOURTEEN
(14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER ON AUGUST 22,1968, HIS IMMEDIATE
RELEASE IS HEREBY ORDERED. NO COSTS.
SO ORDERED.
G.R. No. 181354 February 27, 2013
108
SIMON A. FLORES, Petitioner, Duran immediately helped board Jesus in an owner-type jeep to be brought to a hospital. Thereafter,
vs. Duran, Ronnie de Mesa and Noli de Mesa went home. Jesus was brought to the hospital by his wife and
PEOPLE OF THE PHILIPPINES, Respondent. children. Duran did not, at any time during the occasion, notice the victim carrying a gun with him.6

DECISION Gerry narrated that he was going in and out of their house before the shooting incident took place,
anxiously waiting for the arrival of his parents from Sta. Rosa, Laguna. His parents were then attending to
his problem regarding a vehicular accident. When they arrived, Gerry had a short conversation with his
MENDOZA, J.:
father, who later joined their visitors at the terrace.7

This is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to annul and set
Gerry was outside their house when he saw Flores across the street in the company of some members of
aside the August 2 7, 2004 Decision1 of the Sandiganbayan, First Division (Sandiganbayan), in Criminal
the CAFGU. He was on his way back to the house when he saw Flores and his father talking to each other
Case No. 16946, finding petitioner Simon A. Flores (Flores) guilty beyond reasonable doubt of the crime
from a distance of about six (6) meters. Suddenly, Flores shot his father, hitting him on the right shoulder.
of Homicide, and its November 29, 2007 Resolution2 denying his motion for reconsideration.
Flores continued shooting even as Jesus was already lying flat on the ground. Gerry testified that he felt
hurt to have lost his father.8
Flores was charged with the crime of Homicide in an Information, dated July 9, 1991, filed before the
Sandiganbayan which reads:
Elisa related that she was on her way from the kitchen to serve "pulutan" to their visitors when she saw
Flores, from their window, approaching the terrace. By the time she reached the terrace, her husband was
That on or about the 15th day of August, 1989, at nighttime, in the Municipality of Alaminos, Province of already lying on the ground and still being shot by Flores. After the latter had left, she and her children
Laguna, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, a public rushed him to the hospital where he was pronounced dead on arrival.9
officer, being then the Barangay Chairman of San Roque, Alaminos, Laguna, while in the performance of
his official functions and committing the offense in relation to his office, did then and there willfully,
As a consequence of her husband’s untimely demise, she suffered emotionally. She testified that Jesus had
unlawfully, feloniously and with intent to kill, shoot one JESUS AVENIDO with an M-16 Armalite Rifle,
an average monthly income of Twenty Thousand Pesos (₱20,000.00) before he died at the age of forty-one
thereby inflicting upon him several gunshot wounds in different parts of his body, which caused his
(41). He left four (4) children. Although she had no receipt, Elisa asked for actual damages consisting of
instantaneous death, to the damage and prejudice of the heirs of said JESUS AVENIDO.
lawyer’s fees in the amount of Fifteen Thousand Pesos (₱15,000.00) plus Five Hundred Pesos (₱500.00)
for every hearing, and Six Thousand Five Hundred Pesos (₱6,500.00) for the funeral expenses.10
CONTRARY TO LAW.3
Dr. Ruben Escueta (Dr. Escueta) testified that on August 17, 1989, he conducted an autopsy on the cadaver
During his arraignment, on August 26, 1991, Flores pleaded "Not Guilty" and waived the pre-trial. of Jesus, whom he assessed to have died at least six (6) hours before his body was brought to him. 11
Thereafter, the prosecution presented four (4) witnesses, namely: Paulito Duran, one of the
visitors (Duran); Gerry Avenido (Gerry), son of the victim; Elisa Avenido (Elisa), wife of the victim; and
Based on the Autopsy Report,12 it appeared that the victim suffered four gunshot wounds in the different
Dr. Ruben Escueta, the physician who performed the autopsy on the cadaver of the victim, Jesus
parts of his body, specifically: on the medial portion of the left shoulder, between the clavicle and the first
Avenido (Jesus).
rib; on the left hypogastric region through the upper right quadrant of the abdomen; on the tip of the left
buttocks to the tip of the sacral bone or hip bone; and on the right flank towards the umbilicus. The victim
For its part, the defense presented as witnesses, the accused Flores himself; his companion-members of the died of massive intra-abdominal hemorrhage due to laceration of the liver.
Civilian Action Force Group Unit (CAFGU), Romulo Alquizar and Maximo H. Manalo; and Dr. Rene
Bagamasbad, resident physician of San Pablo City District Hospital.
The Version of the Defense

The Version of the Prosecution

To avoid criminal liability, Flores interposed self-defense.

On August 15, 1989, on the eve of the barangay fiesta in San Roque, Alaminos, Laguna, certain visitors,
Flores claimed that in the evening of August 15, 1989, he, together with four members of the CAFGU and
Ronnie de Mesa, Noli de Mesa, Marvin Avenido, and Duran, were drinking at the terrace of the house of
Civil Service Unit (CSU), Maximo Manalo, Maximo Latayan (Latayan), Ronilo Haballa, and Romulo
Jesus. They started drinking at 8:30 o’clock in the evening. Jesus, however, joined his visitors only at
Alquizar, upon the instructions of Mayor Samuel Bueser of Alaminos, Laguna, conducted a ronda in
around 11:00 o’clock after he and his wife arrived from Sta. Rosa, Laguna, where they tried to settle a
Barangay San Roque which was celebrating the eve of its fiesta.13
problem regarding a vehicular accident involving one of their children. The drinking at the terrace was
ongoing when Flores arrived with an M-16 armalite rifle.4
At around midnight, the group was about 15 meters from the house of Jesus, who had earlier invited them
for some "bisperas" snacks, when they heard gunshots seemingly emanating from his house. Flores asked
Duran testified that Jesus stood up from his seat and met Flores who was heading towards the terrace.
the group to stay behind as he would try to talk to Jesus, his cousin, to spare the shooting practice for the
After glancing at the two, who began talking to each other near the terrace, Duran focused his attention
fiesta celebration the following day. As he started walking towards the house, he was stopped by Latayan
back to the table. Suddenly, he heard several gunshots prompting him to duck under the table. Right after
and handed him a baby armalite. He initially refused but was prevailed upon by Latayan who placed the
the shooting, he looked around and saw the bloodied body of Jesus lying on the ground. By then, Flores
weapon over his right shoulder, with its barrel or nozzle pointed to the ground. Latayan convinced Flores
was no longer in sight.5
that such posture would gain respect from the people in the house of Jesus.14

109
Flores then proceeded to the terrace of the house of Jesus, who was having a drinking spree with four
others. In a calm and courteous manner, Flores asked Jesus and his guests to cease firing their guns as it
was already late at night and to save their shots for the following day’s fiesta procession. Flores claimed
that despite his polite, unprovocative request and the fact that he was a relative of Jesus and the barangay
chairman, a person in authority performing a regular routine duty, he was met with hostility by Jesus and
his guests. Jesus, who appeared drunk, immediately stood up and approached
him as he was standing near the entrance of the terrace. Jesus abruptly drew his magnum pistol and poked
it directly at his chest and then fired it. By a twist of fate, he was able to partially parry Jesus’ right hand,
which was holding the pistol, and was hit on his upper right shoulder.15
With fierce determination, however, Jesus again aimed his gun at Flores, but the latter was able to
instinctively take hold of Jesus’ right hand, which was holding the gun. As they wrestled, Jesus again fired
his gun, hitting Flores’ left hand.16
Twice hit by bullets from Jesus’ magnum pistol and profusely bleeding from his two wounds, Flores, with
his life and limb at great peril, instinctively swung with his right hand the baby armalite dangling on his
right shoulder towards Jesus and squeezed its trigger. When he noticed Jesus already lying prostrate on the
floor, he immediately withdrew from the house. As he ran towards the coconut groves, bleeding and utterly
bewildered over the unfortunate incident that just transpired between him and his cousin Jesus, he heard
more gunshots. Thus, he continued running for fear of more untoward incidents that could follow. He
proceeded to the Mayor’s house in Barangay San Gregorio, Alaminos, Laguna, to report what had
happened. There, he found his ronda groupmates.17
The incident was also reported the following day to the CAFGU Superior, Sgt. Alfredo Sta. Ana.
Decision of the Sandiganbayan
On August 27, 2004, after due proceedings, the Sandiganbayan issued the assailed decision18 finding Flores
guilty of the offense charged. The Sandiganbayan rejected Flores’ claim that the shooting was justified for
failure to prove self-defense. It gave credence to the consistent testimonies of the prosecution witnesses
that Flores shot Jesus with an armalite rifle (M16) which resulted in his death. According to the
Sandiganbayan, there was no reason to doubt the testimonies of the said witnesses who appeared to have
no ill motive to falsely testify against Flores. The dispositive portion of the said decision reads:
WHEREFORE, judgment is hereby rendered in Criminal Case No. 16946 finding the accused Simon A.
Flores GUILTY beyond reasonable doubt of the crime of homicide and to suffer the penalty of 10 years
and 1 day of prision mayor maximum, as minimum, to 17 years, and 4 months of reclusion
temporal medium, as maximum. The accused is hereby ordered to pay the heirs of the victim Fifty
Thousand Pesos (₱50,000.00) as civil indemnity for the death of Jesus Avenido, another Fifty Thousand
Pesos (₱50,000.00) as moral damages, and Six Thousand Five Hundred Pesos (₱6,500.00) as actual or
compensatory damages.
SO ORDERED.19
Flores filed a motion for the reconsideration. As the motion did not contain any notice of hearing, the
Prosecution filed its Motion to Expunge from the Records Accused’s Motion for Reconsideration." 20
In its Resolution, dated November 29, 2007, the Sandiganbayan denied the motion for being a mere scrap
of paper as it did not contain a notice of hearing and disposed as follows:
WHEREFORE, in view of the foregoing, the Motion for Reconsideration of accused Flores is considered
pro forma which did not toll the running of the period to appeal, and thus, the assailed judgment of this
Court has become FINAL and EXECUTORY.
SO ORDERED.21
Hence, Flores filed the present petition before this Court on the ground that the Sandiganbayan committed
reversible errors involving questions of substantive and procedural laws and jurisprudence. Specifically,
Flores raises the following
ISSUES
(I)
WHETHER THE SANDIGANBAYAN, FIRST DIVISION, GRAVELY ERRED IN NOT GIVING
DUE CREDIT TO PETITIONER’S CLAIM OF SELF-DEFENSE
(II)
WHETHER THE SANDIGANBAYAN, FIRST DIVISION, COMMITTED SERIOUS BUT
REVERSIBLE ERRORS IN ARRIVING AT ITS FINDINGS AND CONCLUSIONS
(III)
WHETHER THE SANDIGANBAYAN, FIRST DIVISION, COMMITTED A GRAVE ERROR IN
NOT ACQUITTING PETITIONER OF THE CRIME CHARGED22
The Court will first resolve the procedural issue raised by Flores in this petition.
Flores claims that the outright denial of his motion for reconsideration by the Sandiganbayan on a mere
technicality amounts to a violation of his right to due process. The dismissal rendered final and executory
the assailed decision which was replete with baseless conjectures and conclusions that were contrary to the
evidence on record. He points out that a relaxation of procedural rules is justified by the merits of this case
as the facts, viewed from the proper and objective perspective, indubitably demonstrate selfdefense on his
part.
Flores argues that he fully complied with the requirements of Section 2 of Rule 37 and Section 4 of Rule
121 of the Rules of Court when the motion itself was served upon the prosecution and the latter, in fact,
admitted receiving a copy. For Flores, such judicial admission amounts to giving due notice of the motion
which is the intent behind the said rules. He further argues that a hearing on a motion for reconsideration is
not necessary as no further proceeding, such as a hearing, is required under Section 3 of Rule 121.
Flores’ argument fails to persuade this Court.
Section 5, Rule 15 of the Rules of Court reads:
SECTION 5. Notice of hearing. – The notice of hearing shall be addressed to all parties concerned, and
shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of
the motion.
110
Section 2, Rule 37 provides:
SEC. 2. Contents of motion for new trial or reconsideration and notice thereof. – The motion shall be
made in writing stating the ground or grounds therefore, a written notice of which shall be served by the
movant on the adverse party.
xxxx
A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal.
Section 4, Rule 121 states:
SEC. 4. Form of motion and notice to the prosecutor. – The motion for a new trial or reconsideration shall
be in writing and shall state the grounds on which it is based. X x x. Notice of the motion for new trial or
reconsideration shall be given to the prosecutor.
As correctly stated by the Office of the Special Prosecutor (OSP), Sec. 2 of Rule 37 and Sec. 4 of Rule 121
should be read in conjunction with Sec. 5 of Rule 15 of the Rules of Court. Basic is the rule that every
motion must be set for hearing by the movant except for those motions which the court may act upon
without prejudice to the rights of the adverse party.23 The notice of hearing must be addressed to all parties
and must specify the time and date of the hearing, with proof of service.
This Court has indeed held, time and again, that under Sections 4 and 5 of Rule 15 of the Rules of Court,
the requirement is mandatory. Failure to comply with the requirement renders the motion defective. "As a
rule, a motion without a notice of hearing is considered pro forma and does not affect the reglementary
period for the appeal or the filing of the requisite pleading."24
In this case, as Flores committed a procedural lapse in failing to include a notice of hearing, his motion
was a worthless piece of paper with no legal effect whatsoever. Thus, his motion was properly dismissed
by the Sandiganbayan.
Flores invokes the exercise by the Court of its discretionary power to review the factual findings of the
Sandiganbayan. He avers that the ponente as well as the other members of the First Division who rendered
the assailed decision, were not able to observe the witnesses or their manner of testifying as they were not
present during the trial.25 He, thus, argues that there was palpable misapprehension of the facts that led to
wrong conclusions of law resulting in his unfounded conviction.
His contention is likewise devoid of merit.
"It is often held that the validity of a decision is not necessarily impaired by the fact that the ponente only
took over from a colleague who had earlier presided at the trial, unless there is a showing of grave abuse of
discretion in the factual findings reached by him."26
"Moreover, it should be stressed that the Sandiganbayan, which functions in divisions of three Justices
each, is a collegial body which arrives at its decisions only after deliberation, the exchange of view and
ideas, and the concurrence of the required majority vote."27
In the present case, Flores has not convinced the Court that there was misapprehension or misinterpretation
of the material facts nor was the defense able to adduce evidence to establish that the factual findings were
arrived at with grave abuse of discretion. Thus, the Court sustains the Sandiganbayan’s conclusion that
Flores shot Jesus and continued riddling his body with bullets even after he was already lying helpless on
the ground.
Flores insists that the evidence of this case clearly established all the elements of self-defense. According
to him, there was an unlawful aggression on the part of Jesus. He was just at the entrance of Jesus’ terrace
merely advising him and his guests to reserve their shooting for the fiesta when Jesus approached him,
drew a magnum pistol and fired at him. The attack by Jesus was sudden, unexpected and instantaneous.
The intent to kill was present because Jesus kept pointing the gun directly at him. As he tried to parry
Jesus’ hand, which was holding the gun, the latter kept firing. Left with no choice, he was compelled to use
the baby armalite he was carrying to repel the attack. He asserts that there was lack of sufficient
provocation on his part as he merely requested Jesus and his drinking buddies to reserve their shooting for
the following day as it was already late at night and the neighbors were already asleep.
In effect, Flores faults the Sandiganbayan in not giving weight to the justifying circumstance of self-
defense interposed by him and in relying on the testimonies of the prosecution witnesses instead.
His argument deserves scant consideration.
The issue of whether Flores indeed acted in self-defense is basically a question of fact. In appeals to this
Court, only questions of law may be raised and not issues of fact. The factual findings of the
Sandiganbayan are, thus, binding upon this Court.28 This Court, nevertheless, finds no reason to disturb the
finding of the Sandiganbayan that Flores utterly failed to prove the existence of self-defense.
Generally, "the burden lies upon the prosecution to prove the guilt of the accused beyond reasonable doubt
rather than upon the accused that he was in fact innocent." If the accused, however, admits killing the
victim, but pleads self-defense, the burden of evidence is shifted to him to prove such defense by clear,
satisfactory and convincing evidence that excludes any vestige of criminal aggression on his part. To
escape liability, it now becomes incumbent upon the accused to prove by clear and convincing evidence all
the elements of that justifying circumstance.29
In this case, Flores does not dispute that he perpetrated the killing of Jesus by shooting him with an M16
armalite rifle. To justify his shooting of Jesus, he invoked self-defense. By interposing self-defense, Flores,
in effect, admits the authorship of the crime. Thus, it was incumbent upon him to prove that the killing was
legally justified under the circumstances.
To successfully claim self-defense, the accused must satisfactorily prove the concurrence of the elements
of self-defense. Under Article 11 of the Revised Penal Code, any person who acts in defense of his person
or rights does not incur any criminal liability provided that the following circumstances concur: (1)
unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of
sufficient provocation on the part of the person defending himself.
The most important among all the elements is unlawful aggression. "There can be no self-defense, whether
complete or incomplete, unless the victim had committed unlawful aggression against the person who
resorted to self-defense."30 "Unlawful aggression is defined as an actual physical assault, or at least a threat
to inflict real imminent injury, upon a person. In case of threat, it must be offensive and strong, positively
showing the wrongful intent to cause injury. It presupposes actual, sudden, unexpected or imminent
danger––not merely threatening and intimidating action. It is present only when the one attacked faces real
and immediate threat to one’s life."31"Aggression, if not continuous, does not constitute aggression
warranting self-defense."32
In this case, Flores failed to discharge his burden.
111
The Court agrees with the Sandiganbayan’s assessment of the credibility of witnesses and the probative
value of evidence on record. As correctly noted by the Sandiganbayan, the defense evidence, both
testimonial and documentary, were crowded with flaws which raised serious doubt as to its credibility, to
wit:
First, the accused claims that Jesus Avenido shot him on his right shoulder with a magnum handgun from a
distance of about one (1) meter. With such a powerful weapon, at such close range, and without hitting any
hard portion of his body, it is quite incredible that the bullet did not exit through the accused’s shoulder. On
the contrary, if he were hit on the part where the ball and socket were located, as he tried to make it appear
later in the trial, it would be very impossible for the bullet not to have hit any of the bones located in that
area of his shoulder.
Second, Simon Flores executed an affidavit on September 2, 1989. Significantly, he did not mention
anything about a bullet remaining on his shoulder. If indeed a bullet remained lodged in his shoulder at the
time he executed his affidavit, it defies logic why he kept mum during the preliminary investigation when
it was crucial to divulge such fact if only to avoid the trouble of going through litigation. To wait for trial
before finally divulging such a very material information, as he claimed, simply stretches credulity.
Third, in his feverish effort of gathering evidence to establish medical treatment on his right shoulder, the
accused surprisingly did not bother to secure the x-ray plate or any medical records from the hospital. Such
valuable pieces of evidence would have most likely supported his case of self-defense, even during the
preliminary investigation, if they actually existed and had he properly presented them. The utter lack of
interest of the accused in retrieving the alleged x-ray plate or any medical record from the hospital militate
against the veracity of his version of the incident.
Fourth, the T-shirt presented by the accused in court had a hole, apparently from a hard object, such as a
bullet, that pierced through the same. However, the blood stain is visibly concentrated only on the area
around the hole forming a circular shape. Within five (5) hours and a half from 12:00 o’clock midnight
when he was allegedly shot, to 5:35 a.m. in the early morning of August 16, 1989, when his wounds were
treated, the blood would naturally have dripped down to the hem. The blood on the shirt was not even
definitively shown to be human blood.
Fifth, Jesus Avenido arrived at his house and joined his visitors who were drinking only at 11:00 o’clock in
the evening. Both parties claim that the shooting incident happened more or less 12:00 midnight. Hence, it
is very possible that Jesus Avenido was not yet drunk when the incident in question occurred. Defense
witnesses themselves noted that the victim Jesus Avenido was bigger in built and taller than the accused.
Moreover, the victim was familiar and very much experienced with guns, having previously worked as a
policeman.1âwphi1 In addition, the latter was relatively young, at the age of 41, when the incident
happened. The Court therefore finds it difficult to accept how the victim could miss when he allegedly shot
the accused at such close range if, indeed, he really had a gun and intended to harm the accused. We find it
much less acceptable to believe how the accused allegedly overpowered the victim so easily and wrestled
the gun from the latter, despite allegedly having been hit earlier on his right shoulder.
Finally, it hardly inspires belief for the accused to have allegedly unlocked, with such ease, the armalite
rifle (M16) he held with one hand, over which he claims to have no experience handling, while his right
shoulder was wounded and he was grappling with the victim.33 (Underscoring supplied citations omitted)
The foregoing circumstances indeed tainted Flores’ credibility and reliability, his story being contrary to
ordinary human experience. "Settled is the rule that testimonial evidence to be believed must not only
proceed from the mouth of a credible witness but must foremost be credible in itself. Hence, the test to
determine the value or credibility of the testimony of a witness is whether the same is in conformity with
common knowledge and is consistent with the experience of mankind."34
The Court also sustains the finding that the testimony of Dr. Bagamasbad, adduced to prove that Flores
was shot by Jesus, has no probative weight for being hearsay. As correctly found by the Sandiganbayan:
The testimony of defense witness Dr. Bagamasbad, cannot be of any help either since the same is in the
nature of hearsay evidence. Dr. Bagamasbad’s testimony was a mere re-statement of what appeared as
entries in the hospital logbook (EXH. "8-a"), over which he admitted to possess no personal knowledge.
The photocopy of the logbook itself does not possess any evidentiary value since it was not established by
the defense that such evidence falls under any of the exceptions enumerated in Section 3, Rule 130, which
pertain to the rules on the admissibility of evidence.35 x x x
Granting for the sake of argument that unlawful aggression was initially staged by Jesus, the same ceased
to exist when Jesus was first shot on the shoulder and fell to the ground. At that point, the perceived threat
to Flores’ life was no longer attendant. The latter had no reason to pump more bullets on Jesus’ abdomen
and buttocks.
Indeed, the nature and number of the gunshot wounds inflicted upon Jesus further negate the claim of self-
defense by the accused. Records show that Jesus suffered four (4) gunshot wounds in the different parts of
his body, specifically: on the medial portion of the left shoulder, between the clavicle and the first rib; on
the left hypogastric region through the upper right quadrant of the abdomen; on the tip of the left buttocks
to the tip of the sacral bone or hip bone; and on the right flank towards the umbilicus. According to Dr.
Ruben Escueta, who performed the autopsy on the victim, the latter died of massive intra-abdominal
hemorrhage due to laceration of the liver.36 If there was any truth to Flores’ claim that he merely acted in
self-defense, his first shot on Jesus’ shoulder, which already caused the latter to fall on the ground, would
have been sufficient to repel the attack allegedly initiated by the latter. But Flores continued shooting
Jesus. Considering the number of gunshot wounds sustained by the victim, the Court finds it difficult to
believe that Flores acted to defend himself to preserve his own life. "It has been held in this regard that the
location and presence of several wounds on the body of the victim provide physical evidence that
eloquently refutes allegations of self-defense."37
"When unlawful aggression ceases, the defender no longer has any justification to kill or wound the
original aggressor. The assailant is no longer acting in self-defense but in retaliation against the original
aggressor."38Retaliation is not the same as self-defense. In retaliation, the aggression that was begun by the
injured party already ceased when the accused attacked him, while in self-defense the aggression still
existed when the aggressor was injured by the accused.39
The Court quotes with approval the following findings of the Sandiganbayan, thus:
x x x. The difference in the location of the entry and exit points of this bullet wound was about two to three
inches. From the entry point of the bullet, the shooting could not have taken place when accused and his
victim were standing and facing each other. Another bullet entered through the medial portion of the
victim's buttocks and exited through his abdominal cavity. A third bullet entered through the left
hypogastric region and exited at the upper right quadrant of the victim's abdomen. The respective
trajectory of these wounds are consistent with the testimony of prosecution witnesses Elisa B. Avenido and
Arvin B. Aveniclo that the accused shot Jesus Avenido while the latter was already lying on the ground.
Moreover, according to Arvin Avenido, the first shot hit his father on the right shoulder making him fall to
the ground. Hence, even on the assumption that unlawful aggression initially existed, the same had
effectively ceased after the victim was first shot and fell to the ground. There was no more reason for the
accused to pull the trigger, at least three times more, and continue shooting at the victim.40 (Emphasis in
the original)
The means employed by a person claiming self-defense must be commensurate to the nature and the extent
of the attack sought to be averted, and must be rationally necessary to prevent or repel an unlawful
aggression.41 In this case, the continuous shooting by Flores which caused the fatal gunshot wounds were
112
not necessary and reasonable to prevent the claimed unlawful aggression from Jesus as the latter was
already lying flat on the ground after he was first shot on the shoulder.

In fine, the Sandiganbayan committed no reversible error in finding accused Flores guilty beyond
reasonable doubt of the crime of homicide.

WHEREFORE, the petition is DENIED.

SO ORDERED.

G.R. Nos. 109614-15 March 29, 1996

113
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ADRONICO GREGORIO and RICARDO GREGORIO, defendants-appellants.
KAPUNAN, J.:p
The instant appeal seeks the reversal of the joint decision of the Regional Trial Court of Bacolod City,
Branch 43, rendered on April 20, 1992, in Criminal Cases Nos. 428 and 6307 finding both appellants
guilty beyond reasonable doubt of the crime of murder.
The facts of the case as established by the evidence for the prosecution are faithfully summarized in the
People's brief, to wit:
Around 8:00 o'clock in the evening of May 7, 1986, Carlos Catorse together with his
fifteen year old son Romeo Catorse arrived at the house (the house is composed of
two storeys) of appellant Adronico Gregorio at Sitio Bug-as, Barangay Sta. Cruz,
Murcia, Negros Occidental, to attend the wake of the latter's grandson (TSN, March
24, 1987, pp. 3-4).
When Carlos and his son arrived, there were already people attending the wake.
Jovito Nicavera, Marcelo Lo and Adronico were conversing downstairs while
upstairs, some were playing "pusoy" (russian poker), among them were Jerry
Nicavera, Renato Calalas, "Tunggak", (son of Adronico) and Ricardo Gregorio
(brother and co-appellant of Adronico). Kibitzing and at times betting in the game
were John Villarosa, Remolito Calalas, Carmelo Alubaga and Crispin Calalas (I.D.,
pp. 5; TSN, May 30, 1989, pp. 12-13).
Persons attending the wake were requested by appellant Adronico to deposit with
him any weapon in their possession for safekeeping so as to avoid trouble.
Complying therewith, Carlos Catorse handed over his "samurai", John Villarosa and
Remolito Calalas, their respective knives, to Adronico (TSN, May 30, 1989, pp. 16-
19; TSN, November 14, 1989, pp. 22-23).
Around 1:00 o'clock in the morning of May 8, 1986, while the game of "pusoy" was
still in progress, appellant Ricardo, in a very loud voice, reprimanded "Tunggak"
from (sic) peeping at the cards of other players. In response, "Tunggak" stood up
and also in a very loud voice ordered the game stopped (TSN, May 30, 1989, pp. 25-
27; TSN, November 14, 1987, pp. 45-50).
Overhearing the incident, Adronico ordered Tunggak downstairs and right there and
then, Adronico scolded and boxed him (Tunggak) several times (TSN, May 30,
1989, pp. 27-30; TSN, November 14, 1989, pp. 51-55).
While Adronico was severely beating Tunggak, Carlos Catorse approached and
begged Adronico from further hurting his son so as not to put him to shame before
the crowd. Carlos was in this act of pacifying the matter between the father and son
when suddenly appellant Ricardo stealthily stabbed Carlos from behind with a
"samurai" (the same samurai deposited by Carlos to Adronico) and thereafter hacked
and stabbed him several times more in different parts of his body. Right after Carlos
fell to the ground, Adronico, for his part, repeatedly hacked the victim with a bolo.
(TSN, May 30, 1989, pp. 30-31; November 14, 1989, pp. 57-65).
Terrified, Romeo Catorse, son of Carlos Catorse, ran out of the house. Jovito
Nicavera also tried to get out of the house but Adronico hacked him instead with a
bolo hitting his left shoulder. Marcelo Lo tried to help his uncle Jovito but Ricardo,
with the same "samurai" used against Carlos hacked him on his forearm. Adronico
immediately followed and using a bolo hacked Marcelo on the nape. Although
wounded, Marcelo was able to run out of the house but Adronico ran after and
overtook him. Adronico then hacked him again. When Ricardo followed the two, the
visitors attending the wake scampered out of the house (TSN, May 30, 1989, pp. 44-
56; TSN, November 14, 1989, pp. 66-77).
Later, Romeo Catorse together with his sister and younger brother returned to the
house of Adronico where they found their father lying prostrate and dead. Nobody
was around. Later on, the family of Jovito Nicavera arrived and brought the latter to
a hospital in Bacolod (TSN, March 24, 1987, pp. 8-10).
Around 9:00 o'clock of the same morning of May 8, 1987, police authorities arrived
at Adronico's place to investigate the killing incident. The bodies of Carlos Catorse
and Marcelo Lo were found inside the house and at the yard of Adronico,
respectively (TSN, November 14, 1989, pp. 76-78). The investigation revealed that
appellants Adronico and Ricardo fled to Sitio Anangge, Barangay Buenavista,
Murcia, Negros Occidental, about 4 kilometers away from the situs of the crime.
The authorities pursued and succeeded in apprehending the appellants. Appellants
were thereafter brought and investigated at Murcia Police Headquarters (TSN, April
5, 1991, pp. 9-10).
The post-mortem examination on the cadaver of the victims reveals that Carlos
Catorse sustained twelve hack and four stab wounds while Marcelo Lo sustained six
hack wounds. Both victims died of cardio respiratory arrest due to multiple wounds
(Exhibits "A", "B", "C" & "D").1
Accordingly, an information for the murder of Carlos Catorse was filed against Adronico Gregorio and
Ricardo Gregorio before the Regional Trial Court of Negros Occidental, Branch LXII, Bago City. The
indictment, docketed as Criminal Case No. 428, reads:
That on or about the 8th day of May 1986, in the Municipality of Murcia, Province
of Negros Occidental, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, armed with a "samurai" and a bolo, conspiring,
confederating and mutually helping each other, with evident premeditation and
treachery, and with intent to kill, did then and there, willfully, unlawfully and
feloniously attack, assault, stab and hack one, CARLOS CATORSE y APELYEDO
thereby inflicting multiple stab and hack wounds upon the body of the latter, which
caused the death of said victim.
CONTRARY TO LAW.2
Upon arraignment, both accused entered separate pleas of "not guilty."3
Another information for the murder of Marcelo Lo was instituted against Adronico Gregorio, this time,
before the Regional Trial Court of Negros Occidental, Branch 43, Bacolod City. Docketed as Criminal
Case No. 6307, the accusatory portion of the information reads:
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 That on or about the 8th day of May, 1986, in the Municipality of Murcia, Province THE TRIAL COURT GRAVELY ERRED IN REJECTING APPELLANTS'
of Negros Occidental, Philippines, and within the jurisdiction of this Honorable DEFENSE OF SELF-DEFENSE.
Court, the above-named accused, armed with a bladed weapon, with intent to kill,
with evident premeditation and treachery, did then and there, willfully, unlawfully
III
and feloniously attack, assault and hack one MARCELO LO y NICAVERA, thereby
inflicting multiple injuries upon the body of the latter which caused the death of the
said victim. THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THERE EXIST
CONSPIRACY AND TREACHERY IN THE CASE AT BAR.
CONTRARY TO LAW.4
IV
5
On arraignment, Adronico Gregorio entered a plea of "not guilty" to the offense charged.
THE TRIAL COURT GRAVELY ERRED IN FINDING BOTH THE ACCUSED
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER. 7
Later, the two cases were consolidated and tried jointly by the Regional Trial Court of Negros Occidental,
Bacolod City, Branch 43.
However, before the Office of the Solicitor General could file its Appellee's Brief, appellant Ricardo
Gregorio died on December 12, 1993. Consequently, his criminal liability as well as his civil liability based
On April 20, 1992 as aforestated, the trial court rendered a joint decision, the dispositive portion of which
solely thereon is extinguished.8 Evidently, this appeal will proceed only with respect to appellant Adronico
reads:
Gregorio.

WHEREFORE, premises considered, the Court finds and so holds the two (2)
After a careful perusal and evaluation of the case, this Court is not inclined to disturb the findings and
accused Adronico Gregorio and Ricardo Gregorio "GUILTY" beyond reasonable
conclusion of the court below, there being no cogent reason therefor. For, aside from the well-settled rule
doubt as principals of having committed the crime of Murder in Crim. Case No. 428
that the factual findings of the trial judge who had the opportunity to observe the demeanor of the
and hereby sentences each to life imprisonment and to solidarily indemnify the heirs
witnesses and assess their credibility is entitled to the highest degree of respect,9 there appears to be no
of Carlos Catorse the sum of THIRTY THOUSAND (P30,000.00) PESOS with no
strong reason to depart from the said doctrine since the decision is fully supported by the evidence on
subsidiary imprisonment in case of insolvency.
record.

In Crim. Case No. 6307 (2292) (sic) the Court finds the same Adronico Gregorio
"GUILTY" beyond reasonable doubt of having committed Murder and hereby
sentences him to another life imprisonment and to indemnify the heirs of Marcelo
Lo the sum of THIRTY THOUSAND (P30,000.00) PESOS with no subsidiary
imprisonment in case of insolvency.
Further, the two (2) accused shall be credited with the full term of their preventive
confinement.
Appellant Adronico Gregorio interposed self-defense to exculpate himself from criminal liability.
However, the trial court, skeptic of the said plea, rejected the same, reasoning that appellant failed to
establish self-defense by clear and convincing evidence. We agree. In numerous cases decided by this
Court, the guiding jurisprudential principle has always been that when an accused invokes the justifying
circumstance of self-defense, the burden of proof is shifted to him to prove the elements of that claim;
otherwise, having admitted the killing, conviction is inescapable.10Concomitantly, he must rely on the
strength of his own evidence and not on the weakness of the prosecution. 11Having admitted the killing,
appellant has to justify his taking of a life by the exacting standards of the law.

No cost. It is axiomatic that for self-defense to prosper, the following requisites must concur: (1) there must be
unlawful aggression by the victim; (2) that the means employed to prevent or repel such aggression were
reasonable; and (3) that there was lack of sufficient provocation on the part of the person defending
SO ORDERED.6
himself.12

Hence, this appeal.

In the case at bench, appellant's claim of self-defense must fail. For one, the physical evidence tells us a
different story. Dr. Emmanuel Boado, the medico-legal officer who conducted the autopsy on the cadavers
In their brief, appellants raised the following errors, to wit: of Carlos Catorse and Marcelo Lo, submitted the following post-mortem reports and attested to the
veracity and authenticity of the same, thus:
I
Cadaver of Carlos Catorse:
THE TRIAL COURT GRAVELY ERRED IN GIVING WEIGHT AND
CREDENCE TO THE THEORY OF THE PROSECUTION AND IN EXTERNAL FINDINGS:
DISREGARDING THAT OF THE DEFENSE.
1. Hack wound 5 inches long, left temporal going backward with chip fractured (sic)
II of the skull.

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2. Hack wound 8 inches long, from the base of the left Nose going backward below
the left ear.
3. Hack wound 7 inches long, neck left side going backward with complete chip
fractured (sic) of the fourth vertebrae cutting blood vessels.
4. Stab wound 2 inches wide, 4 inches deep anterior abdomen, below the 10th rib,
left side.
5. Stab wound 1 1/2 inches wide, 4 inches deep at the side of the navel left.
6. Hack wound, base of the palm, 3 inches long posterior side, cutting bones.
7. Hack wound, cutting left small finger.
8. Hack wound, 3 inches long upper 3rd right forearm running anteroposteriorly,
chip fracture of bones.
9. Hack wound left shoulder back 4 inches long going downward with chip fracture
of the shoulder joint.
10. Hack wound 5 inches long posteriorly left joint with chip fracture of the bones.
11. Hack wound 3 inches long posteriorly forearm below the elbow joint chip
fracture of the bones.
12. Hack wound 3 inches long middle 3rd forearm, posterior surface, with chip
fracture of the bones.
13. Stab wound 4 inches wide left back level of the 11th embracio rib, back side
through and through of the level of 12th rib right.
14. Hack wound 2 1/2 inches long with chip fracture of the 11th lobar vertebrae.
15. Hack wound middle right arm posterior side 4 inches long with chip fracture of
bone.
16. Stab wound 1 inch wide hitting the vertebral bones, 5th thoracic vertebrae.
INTERNAL FINDINGS:
1. Stab wound, liver, large intestine, small intestine.
2. Massive abdominal bleeding.
CAUSE OF DEATH:
Cardio Respiratory Arrest due to Multiple hack and Stab wounds.13
Cadaver of Marcelo Lo:
EXTERNAL FINDINGS:
1. Hack wound 6 inches long left temporal area going occiput, chip fracture skull.
2. Hack wound, left face going backward base of the skull, brain tissue coming out,
with chip fracture of the skull.
3. Hack wound, right 4 inches long right back cutting the scapular bones.
4. Hack wound 6 inches long, with chip fracture of the Vertebrae bones.
5. Hack wound 4 inches long cutting the 1st thoracic rib; scapular bones.
6. Hack wound 4 inches long, below the left scapular bones, cutting ribs.
INTERNAL FINDINGS:
1. Cerebral Hemorrhage, Massive
2. Thoracic Hemorrhage, Massive
CAUSE OF DEATH:
Cardio Respiratory Arrest due to multiple hack wounds.14
If Adronico Gregorio and Ricardo Gregorio stabbed Carlos Catorse and Marcelo Lo merely to
defend themselves, it certainly defies reason why they had to inflict sixteen stab wounds on
Carlos and six on Marcelo. The location, number and gravity of the wounds inflicted on the
victims belie the appellant's contention that they acted in self-defense.15 The rule is settled that
the nature and extent of the wounds inflicted on a victim negate an accused's claim of self-
defense.16
The futility of invoking self-defense is likewise revealed in the testimonies of accused Ricardo Gregorio
and appellant Adronico Gregorio. Ricardo Gregorio testified that at around 9:00 o'clock in the evening of
May 7, 1986, Carlos Catorse suddenly kicked, from the outside, the front door of the house of Adronico,
then ran towards Eduardo (nephew of Ricardo) and boxed the latter; that he intervened to pacify Carlos but
the latter drew his "samurai" and attempted to attack him and Eduardo; that he grappled for possession of
the "samurai" and was able to turn its point back to Carlos who was hit in the stomach and then fell on the
ground; and thereafter he left the victim, then went home.17
On his part, appellant Adronico Gregorio declared that at the same time his son, Eduardo, and brother,
Ricardo, were being attacked by Carlos, he was in the kitchen preparing food for the people attending the
wake of his grandson; that suddenly Marcelo Lo and Jovito Nicavera destroyed the bamboo walls of his
kitchen, entered threat and assaulted him; that Marcelo attacked him with a bolo but he was able to parry
the latter's hand and the bolo instead landed and struck the wooden rail of the kitchen sink; that Jovito in
turn pointed a gun at him but without wasting time, he dislodged the bolo from the wooden rail of the sink
and slashed Jovito's hand; that because of the injury sustained, Jovito dropped the gun and ran out of the
house; that he turned to Marcelo and struck him with a bolo until the latter fell outside of the kitchen; and
116
that he never knew what happened next to Marcelo until the following morning when he learned that the
latter died.18
Not only are the foregoing declarations incredible and incredulous but are innately false and fatuous.
By making said allegations, appellant and deceased accused would want to impress upon this Court that
both were able to inflict only a single stab wound on deceased Carlos Catorse and Marcelo Lo. Curiously,
however, none of their empty claims could explain the physical evidence and findings of the autopsy
reports that Carlos Catorse sustained a total of 16 hack and stab wounds while Marcelo Lo, 6 mortal hack
wounds. 19 Moreover, the prosecution witnesses were unanimous in their declaration that it was the
appellant and his brother Ricardo who started the skirmish. There was no unlawful aggression on the part
of Carlos Catorse who only wanted to help pacify Adronico nor on Marcelo Lo's part, who was only trying
to flee from the melee when he was attacked and hacked to death. Likewise extant from the records is the
absence of any act on the part of the victims giving sufficient provocation for the attack.
Likewise telling is the fact that appellant and his brother fled from their homes soon after the incident
instead of reporting the matter to the police. Their flight negates self-defense and indicates guilt.20 As we
have repeatedly held, flight evidences guilt and a guilty conscience, the same strongly indicates a guilty
mind and betrays the existence of a guilty conscience.21
Appellant also challenges the court a quo's finding that there was conspiracy between his and his brother
Ricardo. Conspiracy exists when two or more persons come to an agreement concerning the commission
of a felony and decide to commit it.22 However, direct proof is not essential to prove conspiracy,23 as it
maybe deduced from the mode and manner in which the offense was perpetrated, or inferred from the acts
of the accused.24 Where the acts of the accused collectively and individually demonstrate the existence of a
common design towards the accomplishment of the same unlawful purpose, conspiracy is evident, and
regardless of the fact, the perpetrators will be liable as principals.25
In the case at bench, although there is no proof as to a previous agreement by the assailants to commit the
crime charged, conspiracy is evident from the manner of its perpetration.26 After Ricardo lunged at Carlos
with a samurai from behind several times, Adronico attacked him in turn with a bolo. Likewise, appellants
successively hacked Marcelo using the weapons they used against Carlos. The incident happened in split
seconds, so to speak. Under the circumstances, it is evident that Adronico and Ricardo acted in unison and
cooperated with each other towards the accomplishment of a common felonious objective. In People
v. Regalario 27 cited in People v. Lopez,28 we held:
An indicium of conspiracy is when the acts of the accused are aimed at the same
object, one performing one part and another performing another part so as to
complete it with a view to the attainment of the same object, and their acts though
apparently independent were in fact concerted and cooperative, indicating closeness
of personal association, concerted action and concurrence of sentiments. The
evidence need not establish the actual agreement which shows the pre-conceived
plan, motive, interest, or purpose in the commission of the crime; conspiracy is
shown by the coordinated acts of the assailants.29
Certainly, there was conspiracy between the brothers Adronico and Ricardo, and it was not
necessary to prove a previous agreement to commit the crime since from their overt acts, it was
clear that they acted in concert in the pursuit of their unlawful design or common goal which
was to kill the victims.30
We agree with the trial court that the aggravating circumstance of treachery (alevosia) may be appreciated
against the appellants. Treachery exists when an offender commits any of the crimes against persons,
employing means, methods or forms in the execution thereof which tend to directly and specially insure its
execution, without risk to himself arising from the defense which the offended party might make.31 In this
case, it was clearly established that Ricardo stealthily stabbed Carlos from behind, and repeatedly hacked
him in different parts of his body, with a "samurai." As Carlos fell to the ground, Adronico followed suit,
repeatedly hacking the victim with a bolo. Though the assault upon Marcelo was preceded by appellants'
assault upon Carlos and Jovito, the incident happened in a span of seconds only. Terrified by what he
witnessed, Jovito Nicavera tried to run out of the house but Adronico hacked him instead. Instinctively,
Marcelo Lo came to help his uncle Jovito but Ricardo followed by Adronico hacked him using the same
samurai and bolo they used against Carlos. Defenseless and severely wounded Marcelo tried to run but
Adronico finished him off by more mortal hacks. From all indications; the mode of attack adopted by the
appellant and his brother qualifies the killing to murder as the same rendered the victims who were
unarmed at that time defenseless and helpless, without any opportunity to defend themselves from their
assailants' unreasonable and unexpected assault. The attack was sudden and was specially employed by the
assailants to insure the execution of the said crime without risk to themselves arising from the defense
which the victims might make.
Indeed, the use against Carlos Catorse and Marcelo Lo of the "samurai" and "bolo", both deadly weapons,
the traitorous manner in which they were assaulted, and the number of wounds inflicted on them, all
demonstrate a deliberate, determined assault with intent to kill. Appellant is guilty of murder.
Some last notes. The fallo of the assailed decision sentences the appellant to suffer the penalty of "life
imprisonment" and to indemnify the heirs of Carlos Catorse and Marcelo Lo the sum of P30,000.00 each.
The correct penalty, however, should be reclusion perpetua in accordance with Article 248 of the Revised
Penal Code. As we have held time and again, life imprisonment and reclusion perpetua are different and
distinct from each other. In People v. Ruelan,32 we outlined the distinction thusly:
As noted from the dispositive portion of the assailed decision, the trial court
imposed the penalty of life imprisonment for the crime of murder. Evidently, the
said court failed to appreciate the substantial difference between Reclusion
Perpetua under the Revised Penal Code and Life Imprisonment when imposed as a
penalty by special law. These two penalties are different and distinct from each
other. Hence, we would like to reiterate our admonition in the case of People
v. Penillos, likewise quoted under Administrative Circular No. 6-A-92 amending
Administrative Circular No. 6-92 dated October 12, 1992 re: the correct application
of the penalties of reclusion perpetua and life imprisonment, thus:
As noted from the dispositive portion of the challenged decision, the trial court
imposed the penalty of "reclusion perpetua or life imprisonment." Evidently, it
considered the latter as the English translation of the former, which is not the case.
Both are different and distinct penalties. In the recent case of People v. Baguio, this
Court held:
The Code does not prescribe the penalty of "life
imprisonment" for any of the felonies therein defined, that
penalty being invariably imposed for serious offenses
penalized not by the Revised Penal Code but by special
laws. Reclusion perpetua entails imprisonment for at least
thirty (30) years after which the convict becomes eligible for
pardon, it also carries with it accessory penalties, namely:
perpetual special disqualification, etc. It is not the same as
"life imprisonment" which, for one thing, does not "carry with
it any accessory penalty, and for another, does not appear to
have any definite extent or duration."
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 As early as 1948, in People vs. Mobe, reiterated in People vs. Pilones, and in the
concurring opinion of Justice Ramon Aquino in People vs. Sumadic, this Court
already made it clear that reclusion perpetua, is not the same as imprisonment for
life or life imprisonment. Every judge should take note of the distinction and this
Court expects that, henceforth, no trial judge should mistake one for the other. 33

Finally, conformably with the stated policy of this Court and pursuant to People v. Sison,34 the civil
indemnity for the death of a victim is increased to P50,000.00. Consequently, the heirs of Carlos Catorse
and Marcelo Lo are entitled to P50,000.00 each.

WHEREFORE, except for the modification that appellant Adronico Gregorio is to suffer the penalty
of reclusion perpetua and to indemnify the heirs of Carlos Catorse and Marcelo Lo the sum of P50,000.00
each, the judgment appealed from is hereby AFFIRMED in all respects. As aforestated, the death of
Ricardo Gregorio extinguished both his criminal and civil liability arising from said crime.

SO ORDERED.

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