Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

7450, 7451 and 7452 September 18, 1912

THE UNITED STATES, plaintiff-appellee, vs. FLORENCIO TORRIDA, defendant-appellant. Pastor Salo, for appellant. Office of the Solicitor General Harvey, for appellee. TRENT, J.: These cases come before us on appeal from the Court of First Instance of the First Judicial District. Appellant was charged with three separates crimes of estafa in three separate actions, tried and found guilty in each case and sentenced in each of the first and second to four months and in the third to six months of arresto mayor. He was also condemned to indemnify the offended parties, to temporary special disqualification for the period of ten years and one day and to pay the costs of the causes. By agreement the three cases were tried together in the court below and also in this court. The facts are these: The appellant shortly after entering upon his duties as councilman of the town of Aparri, Province of Cagayan, gave, in the month of October, 1910, directions to his subordinates that the death of all large animals must be reported by the owners to him as councilman. These orders were conveyed to the people as directed. Damaso Rabilas lost one carabao, Bonifacio Rante one, Santiago Rante two, and Felipe Rante one (those of Santiago and Felipe were included in the same complaint. The respective owners of these animals reported their death to the appellant. Upon the receipt of this information the appellant informed these owners that they must pay a fine of P5 for each animal, these fees to be turned into the municipality by him. The owners, believing that the municipality had provided for the payment of such fines, turned over to the appellant five pesos for each animal that died. There was no provision whatever made by the municipality or any other entity for the imposition of such fines. These facts clearly constitute the crime of estafa as defined and penalized in paragraph 1, article 535, in relation with paragraphs 1, article 534, Penal Code. Appellant insists that the trial court erred (1) finding that there were present in the commission of these crimes the aggravating circumstances numbers 10, 11, and 18 of article 10 of the Penal Code; and (2) in imposing the penalty set forth in article 399 of said code. These provisions read: ART. 10. The following are aggravating circumstances:

xxx

xxx

xxx

10. That the act be committed with abuse of confidence. 11. That advantage be taken by the offender of his public position. xxx 18. That the accused is a recidivist. xxx xxx xxx xxx xxx

ART. 399. Any public officer who, taking advantage of his official position, shall commit any of the crimes enumerated in chapter 4 of the section 2 of title 13 of this book shall, in addition to the penalties therein prescribed, suffer a penalty ranging from temporary special disqualification in its maximum degree to perpetual special disqualification. We agree with the counsel that there were not present the aggravating circumstances mentioned in numbers 10 and 18, supra, because there is nothing to show that the crimes were committed with abuse of confidence. There were no confidential relations between the appellant and the injured parties. The mere fact that people had reposed in the appellant sufficient confidence to elect him to a public office does not constitute the aggravating circumstance set forth in number 10. In order to constitute this circumstance the confidence between the parties must be immediate and personal and such as would give the accused person some advantage or make it easier for him to commit the criminal act. These three cases were tried together in the court below. The judgments in all three of these cases were rendered at the same time; in fact, the three judgments are contained in the same paragraph and were pronounced at the same time. A recidivist is one who at the time of his trial for one crime shall have been convicted by the final judgment of another crime embraced in the same title of the Penal Code. At the time the trial court held that the accused was twice a recidivist there was no final judgment against him. In fact, the judgments imposed could not have become final until after the expiration of fifteen days and this only in the event that an appeal was not taken. So it is clear that the aggravating circumstance mentioned in number 18 was not present. It is insisted that the appellant in committing these crimes did not take advantage of his public position or office. in this we cannot agree with counsel. The fact that the appellant was councilman at the time placed him in a position to commit these crimes. If he had not been councilman he could not have induced the injured parties to pay these alleged fines. It was on account of his being councilman that the parties believed that he had the right to collect fines and it was for this reason that they made the payments. It is true that he had no right to either impose or collect any fines whatsoever. It is also true that a municipal councilman is not an official designated by law to collect public fines. But these facts do not destroy or disprove the important fact that the accused did by taking advantage of his public position deceive and defraud the injured parties out of the money which they paid him. This holding is not in conflict with the doctrine enunciated in the case of United States vs. Casin

(8 Phil. Rep., 589). In that case Casin and Calleja, the offended party, lived in the same house. Calleja gave Casin two pesos for the purpose of buying her a cedula in order that she might institute a civil action in the courts. Casin received the money promising to buy the cedula. He neither purchased the cedula nor returned the money but converted it to his own use. The fact that he was a councilman did not have anything to do with his receiving the two pesos. He acted purely in his private capacity. Consequently, he did not in any manner take advantage of his public position. It is also insisted that it was error to take into consideration the aggravating circumstance number 11 and also impose the penalty provided in article 399. The aggravating circumstance number 11 was found to be present and was taken into consideration for the purpose of increasing the penalty which the law says must be imposed. The disqualification mentioned in article 399 is a part of the penalty to be imposed. This penalty is never imposed as an aggravating circumstance because from the very nature of the penalty it cannot be so considered. There being present one aggravating circumstance and no extenuating circumstances in the commission of these crimes, the penalty should be imposed in each case in its maximum degree, which is four months of arresto mayor. In the first and second cases the penalties imposed are in accordance with the law; in the third the court erred in imposing six months instead of four. This penalty is, therefore, reduced to four months. In all other respects the judgment appealed from are affirmed, with costs against the appellant. So ordered. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-41746 March 27, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. JOAQUIN SIOJO, defendant-appellant. Camus and Delgado for appellant. Office of the Solicitor-General Hilado for appellee. VICKERS, J.: The appellant was tried in the Court of First Instance of Bulacan on a plea of not guilty to an information for the crime of homicide, wherein it was alleged: Que en o hacia el 17 de agosto de 1933, en el Municipio de San Miguel, Provincia de Bulacan, Islas Filipinas, y dentro de la jurisdiccion de este Honorable Juzgado, el acusado arriba referido voluntaria, maliciosa, ilegal y criminalmente, agredio, acometio y dio tiros con su revolver, calibre 45, a Gregorio Esguerra, causando a

este dos heridas mortales que causaron su muerte. Hecho cometido con infraccion de la ley, con la agravante de que el acusado cometio el delito en desprecio y con ofensa a la autoridad publica, pues, el occiso era entonces el Jefe de Policia de San Miguel, Bulacan e iba uniformado entonces. The lower court found the defendant guilty of the crime charged, and that the homicide was committed in contempt of and with insult to public authority, but that this aggravating circumstance was offset by the mitigating circumstance of voluntary surrender or the equivalent thereof, and sentenced the defendant to suffer an indeterminate sentence of not less than eight years and one day of prision mayor and not more than fourteen years, eight months, and one day of reclusion temporal, to indemnify the family of the deceased in the sum of P1,000, and to pay the costs. Appellant's attorneys allege that the trial court erred: 1. In finding that the fight between the deceased and the accused was preconcerted. 2. In finding that the accused was the challenger and the one who provoked the fight which resulted in the death of the deceased. 3. In finding that the deceased was, on the day of the crime, not bearing any weapon other than thecaborrata, Exhibit 2. 4. In not finding that the accused, in killing the deceased, acted in the lawful defense of his person and hence, exempt from criminal liability. 5. In not finding in favor of the accused the mitigating circumstance of incomplete self-defense, granting without admitting that not all the circumstances for complete self-defense were attendant. 6. In finding against the accused the aggravating circumstance of having committed the crime in contempt of and with insult to authority, and in off-setting the same with the mitigating circumstance in favor of the accused of having voluntarily surrendered himself to the agents of authority. 7. In not finding for the accused the following mitigating circumstances: (a) That the accused had no intention to commit so grave a wrong as that committed; (b) That sufficient provocation on the part of the deceased immediately preceded the act; (c) That the act was committed in the immediate vindication of a great offense to the accused; (d) That of having acted upon an impulse so powerful as naturally to have produced passion and obfuscation. 8. In admitting and giving weight to the supposed, dying declaration, Exhibit B.

9. In believing the witnesses for the prosecution and in not giving credit to the testimonies of the accused and his witnesses. 10. In finding the accused guilty beyond a reasonable doubt of the crime charged and in sentencing him to an imprisonment of from eight years and one day of prision mayor to fourteen years, eight months and one day of reclusion temporal. After finding that the deceased Gregorio Esguerra was the chief of police of the municipality of San Miguel, in the Province of Bulacan, and at the time of the assault was wearing his uniform and discharging his official duties, and that the defendant was a secret agent of the Constabulary, and that there existed ill feeling between them, the trial judge made the following findings of fact as to the incident in question: El occiso que se hallaba en la tarde de la citada fecha 17 de agosto de 1933, en el Barrio de San Jose, Municipio de San Miguel, de esta Provincia, al pasar un truck de pasajeros procedente de Manila y que se dirigia a la poblacion de San Miguel, se embarco en el colocandose en el asiento delatero al lado delchauffeur. Dicho truck se componia de 5 hileras de banco para asientos y podia llevar ordinariamente unos treinta pasajeros, pero en aquella ocasion no estaban montadas mas que unas 8 personas. Despues de 2 kilometros poco mas o menos de viaje, al llegar al Barrio de Camias del mismo municipio, frente a una estacion de gasolina, el acusado, que se hallaba alli, lo hizo parar para embarcarse el a su vez. El acusado, en vez de pasar a otros asientos vacios, se habia colocado en el asiento delantero del truck entre el occiso y el chauffer. Este asiento delantero estaba aparente y completamente ocupado. Bajo la influencia de las relaciones existentes entre ellos, el acusado al colocarse alli, se quejo de que estaban apiados, a lo que el occiso replico que si era asi, que se transladara el acusado, a otro asiento, de otro modo, que tuviera paciencia. El acusado quejose de nuevo que aquel queria oprimirle. Despues de este primer cambio de palabras, continuaron disputando con cierto tono de enfado. El acusado le dijo al occiso que si estaba enfadado, que bajaria, y, en efecto, ordeno al chauffer que parara el truck; a lo que replico el occiso que no le hacia bajar sino que saliera, si queria, puesto que el truck no era de ellos. Asi que se hubo parado eltruck y se hubo apeado el acusado, este le invito al occiso a que bajara con el objeto de continuar hablando los dos en tierra. El occiso trato en efecto de apearse tambien, pero al ver el acusado demostraba una actitud hostil y al observarle que tenia su mano derecha en el holsillo trasero donde llevaba su revolver, retrocedio hacia los altos del truck, y mientras se hallaba en el estribo del mismo, el acusado le pego con su puo en la espalda y en la nalga profiriendo, ue aunque el occiso era mayor de cuerpo que el, pero que era un cobarde. Irritado de este modo el occiso, bajo a tierra y se puso en frente del acusado. En represalia al maltrato referido, el occiso uso inmediatamente de su caborrata de hierro envuelto con cuero y le habia golpeado al acusado; este, por esquivar los golpes, sufrio ciertas contusiones en el antebrazo y brazo izquierdo, en la region parietal y occipital de la cabeza. Casi inmediata y simultaneamente con estos golpes, el acusado arranco su revolver automatico y disparo con el al occiso dos tiros que le hicieron blanco, el uno, en el abdomen habiendo interesado los intestinos, y disparo con el al occiso dos tiros que le hicieron blanco, el uno, en el abdomen habiendo interesado los intestinos, y el otro, en la parte inferior de la oreja

izquierda a consecuencia de estos disparos, el occiso cayo hacia delante bocabajo y en medio de sus convulsiones, pudo ponerse boca arriba y sentarse. Entonces el acusado se habia apoderado del caborrata del occiso, conminandole adem,as que si era valiente, que embistiera. El occiso no llevaba en esta ocasion otra arma alguna; fue llevado a la Presidencia de San Miguel, de aqui al Hospital de Emergencia del pueblo y despues al Hospital Provincial de Malolos, y a consecuencia de las heridas asi recibidas, fallecio a los dos dias. Mientras estaba en el Hospital de San Miguel, el occiso pudo prestar una declaracion ante mortem, Exhibit B, en la que consta los hechos que acaban de ser relatados en sintesis, los cuales estan corroborados por el testimonio de otros testigos de la acusacion. The defendant admitted at the trial that he shot the deceased, but claimed that he acted in self-defense. Under the eight assignment of error, which we shall consider first, it is contended that the lower court erred in admitting the dying declaration, Exhibit B, because the prosecution failed (a) to prove that it was made under the consciousness f impending death, and (b) to submit with this document, which is written in Tagalog, an English or Spanish translation of it. The evidence shows that Javier Pabalan, the justice of the peace of San Miguel, was called to the Emergency Hospital in that municipality to take the statement of Gregorio Esguerra, who had been shot in the abdomen Gregorio Esguerra, who had been shot in the abdomen and through the face, and was about to die; that the injured man told the justice of the peace that he was in a critical condition and was going to die (Me manifesto de que el estaba en una critica situacion, de que iba a perder la vida). It further appears that the justice of the peace asked the doctor as to the condition of the injured man and the doctor said that he was going to die; that the justice of the peace then asked the injured man if he heard what the doctor said, and he replied that he had (El medico me dijo de que se iba a morir; yo le dije entonces al occiso: "Oyes lo que dijo el medico?" y me dijo: "Si, seor"). Furthermore, it appears from the dying declaration itself that the wounded man realized that he was about to die. Under these circumstances, we are of the opinion that the document in question was admissible as the dying declaration of Gregorio Esguerra. It is contended, however, that this document, which is written in Tagalog, was not admissible for the further reason that it was not accompanied by any English or Spanish translation. Appellant's attorneys rely on Rule 29 of the Rules of Courts of First Instance, which reads as follows: "Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Spanish. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial." The attorneys for the appellant call attention to the fact that when Exhibit B was offered in evidence, counsel for the accused objected to its admission. This is true, but it does not appear that appellant's counsel objected to its admission because it was not accompanied by a translation. He objected to it as incompetent, "por no haberse establecido todas las exigencias legales para que dicha declaracion pueda ser admisible como prueba". No decision of this court is cited in support of the contention of the appellant.

More than once this court, as shown by its published decisions, has taken into consideration documents written in a Philippine dialect, which had been admitted into evidence without being accompanied by translation. In the case of Ahag vs. Cabiling (18 Phil., 415), it was said that when there is presented in evidence an exhibit written in any language other than Spanish, if there is an appeal, that exhibit should be translated into Spanish by the official interpreter of the court, or a translation should be agreed upon by the parties, and both original and translation sent to this court. In the present case we ordered the SolicitorGeneral to submit a translation of the document in question. This order was complied with, and no exception to the translation made by the Solicitor-General was taken by the attorneys for the appellant. Undoubtedly the trial judge should have required the fiscal to submit with Exhibit B an English or Spanish translation of it, but in view of the failure of defendant's attorneys to object to the admission of Exhibit B on that specific ground, and because of the particular facts of this case, namely, that the document in question is written in the language of the province where the crime was committed, and this language was known by the accused and his attorneys, there was no error, certainly no reversible error, in the admission of the document in question. We cannot accept appellant's contention that no weight should be given to Exhibit B because Javier Pabalan, who prepared it, was a near relative of the deceased, and for the further reason that the accused had filed administration charges against Pabalan as a justice of the peace. There is nothing in the record to justify the insinuation that Pabalan took advantage of the situation to pervert the words of the dying man to the prejudice of the accused. In the first and second errors assigned it is alleged that the lower court erred in finding that the fight between the deceased and the accused was preconcerted, and that the accused was the challenger and the one who provoked the fight which resulted in the death of the deceased. Apparently the lower court did not make any finding to the effect that the fight in question was preconcerted, and in our opinion the evidence for the prosecution, consisting of the dying declaration of Gregorio Esguerra and the testimony of Julio Oreta and Alberto Domingo, sustains the finding of the trial judge that the accused was the one who provoked the fight and challenged the deceased, although what subsequently took place was not a mutual fight, but an assault, in which the appellant was the aggressor. The existence of ill feeling between the accused and the deceased is fully established, and the fact that the accused under those circumstances seated himself between the deceased and the driver, where there was scarcely room enough for him, although there were vacant seats in the motor bus, clearly tends to show that the accused was bent on making trouble. The contention of the defense that the deceased was carrying a revolver at the time is not proved. This contention rests upon the conjectures of the defendant and his witnesses. No revolver was found on the person of the deceased, and none of the witnesses for the defense claims to have actually seen a revolver in the possession of the deceased on that occasion. Furthermore, the deceased stated in his dying declaration that he was not carrying at the time any arm except a black-jack. The accused carried away the black-jack belonging to the deceased, and when asked by the court why he did not take possession of

Esguerra's revolver, he replied that if he had seen the revolver during the fight as he did the black-jack, he would have taken it. Under the fourth and fifth assignments of error it is contended that the lower court erred in not finding that the accused, in killing the deceased, acted in the lawful defense of his person and hence was exempt from criminal liability, or at least entitled to the mitigating circumstance of incomplete self-defense, if it be conceded that all the requisites necessary to exempt from criminal liability were not attendant. The trial judge found that the defendant provoked the fight, challenged the deceased, the began the aggression by striking the deceased on the back and on the buttocks with his fist. The evidence shows that Esguerra desisted from accepting defendant's challenge to fight when he saw that the defendant was armed with a revolver, and that when Esguerra attempted to resume his seat in the motor bus and had turned his back to the defendant, the defendant struck him with his fist. Esguerra then stepped down and struck the defendant with a black-jack, the only weapon that the deceased was carrying at the time. Almost simultaneously therewith the defendant shot the deceased twice with a revolver. It is evident that in such a case there was no self-defense. Instead of the accused being the object of an unlawful aggression without provocation on his part, he was the aggressor, although the deceased had given him no provocation. It is contended that it was necessary for the appellant to shoot the deceased because the latter turned upon the appellant and began striking him with his black-jack; that the deceased was larger and stronger than the appellant, and that the appellant had to make use of his revolver to protect his life. This defense of the appellant cannot prosper. Although it is true that the deceased was larger and stronger than the appellant, and under ordinary circumstances could have protected himself with his fists, but on this occasion the appellant, who had treacherously assaulted the deceased, was armed with a revolver and had attempted to draw his revolver when the deceased first got out of the bus. This is not a case of self-defense, complete or incomplete. With respect to the sixth assignment of error, we are of the opinion that according to the evidence the deceased at the time of the assault was discharging his duties as the chief of police of the municipality in which the crime was committed, but there is no allegation in the information that would justify us in finding the appellant guilty of the complex crime of assault upon an agent of the authorities with homicide. As to the finding of the lower court that the crime was committed in contempt of and with insult to the authorities, we think this finding is not justified by the facts of the case. In the first place, the deceased was not a public authority, but an agent of the authorities. In the second place, the provision of law in question is not applicable when the person in authority is the offended party (U.S. vs. Rodriguez, 19 Phil., 150, where it was held the this aggravating circumstance can exist only when the public authority is engaged in the exercise of his functions, and is not the person against whom the crime is committed in which that circumstance appears; decision of the Supreme Court of Spain, January 24, 1881; 1 Viada, 310).

As to the mitigating circumstance of voluntary surrender appreciated by the lower court in favor of the appellant, we are constrained to hold that the evidence does not justify this finding. The reason why the lower court gave the appellant the benefit of the mitigating circumstance of voluntary surrender is explained as follows: "Consta en autos de que el acusado procuro medios para presentarse inmediatamente a la autoridad, como asi hizo, haciendo entrega al teniete Ferreol de la Constabularia, del revolver usado en autos y otras armas de fuego que poseia." Lieut. Ferreol of the Constabulary, who arrested the accused, testified that he received a telephone message in Malolos from the police of San Miguel stating that the accused had not been arrested, and requesting the aid of the Constabulary; that he went to San Miguel to make the necessary investigation and to arrest the accused, and that when he arrested the accused, who was at home, the accused voluntarily handed him the revolver, Exhibit D; that he required the accused to deliver to him his rifle and shotgun; and that after that he arrested the accused and took him to the Constabulary headquarters in Malolos. The result is the same as that reached by the lower court. The other assignments of error are included in those already considered and require no further discussion. The sentence of the lower court is affirmed, with the costs against the appellant.

FIRST DIVISION

[G.R. No. 118240. October 28, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GIOVANNI BAJAR y CABOG, accused-appellant. DECISION
VITUG, J.:

Giovanni Bajar y Cabog was found guilty by the Regional Trial Court of Manila, Branch 12, of the crime of robbery with homicide in Criminal Case No. 90-87734 and meted the penalty of reclusion perpetua. Bajar was also ordered to pay the amount of P20,700.00 allegedly taken from the deceased victim, Ramon Mallari, plus civil indemnity of P50,000.00, to the latter's heirs. Bajar's conviction for that crime arose from an information that read:

That on or about September 11, 1990, in the City of Manila, Philippines, the said accused, conspiring and confederating together with three other persons, whose true

names, identities and present whereabouts are still unknown, and helping one another, all armed with firearms and bladed weapons, and therefore in band, while in front of the Pritil Market along Juan Luna St., Tondo, Manila, a street used by persons or vehicles for the movement or circulation of persons or transportation of goods, articles or property, or both, with intent to gain and by means of force, violence against and intimidation of person, that is, by shooting one RAMON MALLARI Y DELA CRUZ several times with their said firearms, hitting him on his head and other vital parts of his body, and shouting `Walang makikialam. Holdup ito, did then and there wilfully, unlawfully, and feloniously take, rob, and carry away the sum of P20,200.00, Philippine currency, in cash, of said Ramon Mallari y dela Cruz against his will, to the damage and prejudice of the latter, in the same sum as aforesaid; that by reason and on the occasion of the said robbery, the said Ramon Mallari y dela Cruz, sustained mortal gunshot wounds, which were the direct cause of his death immediately thereafter. "SO ORDERED.
[1]

The accused pleaded not guilty to the charge.[2] During the trial, the prosecution moved for an amendment of the information to conform to the evidence, i.e., that the amount taken from the victim was P20,700.00 and not P20,200.00 as so initially alleged. Twenty five-year old[3] Ramon Mallari helped in tending the family's grocery store at the Pritil market in Tondo, Manila. Lucia Mallari, Ramons mother, remembered having taken into her employ Bajar, the accused, as a store helper. Her son, Ramon, would repair to the store every afternoon and there stay until early evening when the two would return home with the stores earnings for the day. On 11 September 1990, when the store was just about ready to close, the proceeds of sale had reached P18,500.00.[4] Melchor Santos, a "sidecar" driver, was standing near a Ford Fierra and attending to his passengers pieces of baggage when he heard a gunshot. He did not see at that instant where the gunfire originated from but he could see that Ramon Mallari was evidently the victim of the gunshot. The latter, with a bloodied head and body, crawled under the Ford Fierra. Then, Santos saw the gunwielder. The latter approached and pulled the victim from under the vehicle. The gunman fired two more shots on the now cowering victim. The assailant, after staring momentarily at Santos, walked away towards Dandan to the direction of the Tondo Church. Santos, prodded by his passenger, hurriedly drove his "sidecar" away from the scene. Santos later went to the homicide section of the Western Police District to give a statement.[5] He identified Bajar to be the person who shot Mallari from among the eight persons who were lined up at the police station.[6] The assailant was not unfamiliar to Santos. He would see the man about three times or so a week around the Pritil market. Meanwhile, Mallari was rushed to the Moriones Hospital; he did not make it.[7] He sustained three gunshot wounds one on the left side of his forehead, another on the lower portion of the neck and the third on the chest backside" towards his left.[8] The latter wound was the most fatal since it affected a vital organ, the left lung.[9] His body

was brought to the Veronica Memorial Chapel in Pasay City where it was photographed,[10] identified by his sister Lydia, and later autopsied by Dr. Roberto Garcia.[11] Aside from the missing sales proceeds of P18,500.00 for the day, the deceased victim also lost his wallet containing P1,000.00 and his wedding ring worth P1,200.00.[12] Bajar interposed denial and alibi in his defense. A native of Masbate, Bajar went to Manila to seek employment. He first found it in the Mallari Grocery at the Pritil market in Tondo, Manila. Lucia Mallari, the victims mother, readily took him in her employ. He worked at the grocery shop from 1987 until some time in 1988 when he went home to Masbate for a vacation. In June 1990, appellant returned to Manila. Failing to get himself re-employed at the Mallari Grocery, he sought and found another job, as a "livein" employee, at the Ricardo Patea Rice Supply in Maypajo Market, Caloocan City, starting July 1990 until 01 October 1990. On that particular day of 01 October 1990, he was supposed to leave for Masbate with an aunt but he missed the ship. He then applied for employment with, and was hired by, the Melao Grocery and Rice Supply. Just before lunchtime on 03 October 1990, four men unexpectedly came to arrest him at Melao's store.[13] Bajar's story was corroborated, in part, by his previous employer, Ricardo Patea, who said that Bajar was Patea's helper from 1987 to October 1990. On 11 September 1990, Patea left his residence with Bajar and two other employees at around 6:15 a.m., arriving at the store about fifteen minutes later. Nobody left the store until about 8:30 in the evening when they drove back to the residence.[14] Parenthetically, the complete records of the case, left undecided by the presiding judge of Branch 12, Regional Trial Court of Manila, were forwarded, on 09 March 1994, by Judge Rosmari D. Carandang to the Judiciary Planning Development and Implementation Office (JPDIO).[15] Pursuant to Administrative Order No.68-92, Judge Willelmo C. Fortun was designated to assist in the disposition of the inherited case.[16] In his appeal from the judgment convicting him, Bajar, through the Public Attorneys Office, contended that -

I "THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH HOMICIDE DESPITE LACK OF POSITIVE IDENTIFICATION BY THE LONE WITNESS FOR THE PROSECUTION. "II "THE TRIAL COURT ERRED IN ORDERING THE ACCUSED-APPELLANT TO PAY THE HEIRS OF RAMON MALLARI THE AMOUNT OF P20,700.00 AS ACTUAL DAMAGES AND P50,000.00 AS DEATH INDEMNITY.
[17]

The Court has carefully gone over the records and finds no plausible reason or justification to overturn the judgment of the trial court. It must, therefore, reject appellant's plea for a reversal of his conviction. The positive identification of appellant as the gunwielder who had delivered the fatal shots that killed the victim was not convincingly assailed. Santos, an eyewitness, testified:
DIRECT EXAMINATION BY FISCAL PAZZIUAGAN: "Q Mr. Santos, on September 11, 1990 at around 7:30 in the evening do you remember where were you? "WITNESS "A I was in front of my side car when I heard a gunshot, sir. "Q Now, where were you specifically situated, what area? "A At Juan Luna St., Tondo, Manila, sir. "Q What were you doing at that time? "A I was then taking passengers baggages (sic) to my side car, sir. "Q After hearing a gunshot, what did you do if you did anything? "A I went near my side car and the people there thought that was someone, a sidecar boy who was killed, sir. "PROSECUTOR "Q When you heard that gunshot, Mr. Witness, do you know where it come (sic) from? "WITNESS "A At the very front where I was standing then, sir. "Q And how far were you from that place where you heard the gunshot? "A The place where I was standing was near the Ford Fierra, with the distance of 2 meters away from me, sir. "Q Do you know who fired that shot? "ATTY. ALISUAG He will be incompetent. "COURT If he knows let him answer. "WITNESS "A I dont know who fired the gun but I just heard a gunshot, sir. "Q And do you know who was he shooting at? "A All I saw is that Ramon Mallari was shot and he crawled under the Ford Fierra and was pulled out and was shot again, sir.

"Q How many times was Ramon Mallari was shot (sic) ? "A I just heard three gunshot, sir. "Q And do you know how many person shot Ramon Mallari? "A I dont know, sir. "Q This Ramon Mallari, do you know him? "A I know him sir, he was being called Ramon Mallari. "Q Why do you know him Mr. Witness? "ATTY. ALISUAG That would be misleading, Your Honor. "COURT Reform your question. "PROSECUTOR "Q How did you know that he was Ramon? "A I came to know him when he was pulled out under the Ford Fierra, sir. "PROSECUTOR "Q When you saw the victim being shot and pulled from the Ford Fierra where was the person who shot Ramon facing at the time in relation to your place now? "WITNESS "A He was facing Ramon Mallari, sir. "Q In relation to you where was he at the time? "A Assuming the Ford Fierra is in front of me, the person who shot the victim was facing beside the Ford Fierra, sir. "Q And your position is there? "A I was beside the Ford Fierra, obliquely facing the assailant - - at the rear end of the Ford Fierra, sir. "Q The question is where is the person who shot Ramon facing at the time in relation to your place now? "A I was standing near the rear end of the Ford Fierra facing the sidecar and when I heard the gunshots I turned my back to may left and facing the Ford Fierra, sir (sic). "Q Now, Mr. Melchor Santos, for example the sidecar is here where were you? "INTERPRETER The witness described the scene by showing that the Ford Fierra was parked sidewise while his sidecar was parked in such a way that its rear portion is facing the right side of the parked Ford Fierra. Then he pointed to the rear portion of his sidecar as the place where he was standing such that he was facing the rear

portion of his sidecar while the assailant was facing the right side of the Ford Fierra when he shot Ramon after he pulled him under the Ford Fierra then when he stated when he hard (sic) the shot the witness turned around to his left and he saw the assailant pulled hout (sic) the victim, Ramon Mallari, then he shot him again (sic). "PROSECUTOR "Q Now, what happened after you saw Ramon Mallari being shot again after he was pulled by the assailant? "WITNESS "A The person who shot the victim walked toards (sic) Dandan proceeding Tondo, towards the direction of Tondo Church, sir. "PROSECUTOR "Q Base(d) on where you were standing, to what direction did the assailant go, was it towards the place where you were standing or away to (sic) where you were standing? "WITNESS "A Away from me, but before he passed by me we had the chance of staring at each other, sir.

"Q Now Mr. Witness, was it the first time that you saw that person who shot the victim? "ATTY. ALISUAG No basis, Your Honor. "COURT Reform you question, Fiscal. "PROSECUTOR "Q Aside from that time when you saw that assailant when you were stared at him when was the first time that you saw him, aside from that time when you were staring at him? "WITNESS "A After we have stared at each other, we did not meet again, sir.

"ATTY. ALISUAG Considering that the answer is not responsive, Your Honor, may we request that that answer. "PROSECUTOR "Q You said that you stared at that assailant during the shooting incident, is that correct? "WITNESS "A I first saw him when he was roaming along Torres Tondo, Manila.

"Q And how often do you see him at Torrest St. (sic), before that incident? "A Sometimes three times a week, sir. "x x x x x x x x x.

"Q Is the person who shot now, if he happened to be inside the courtroom will you be able to identify? "A Yes sir. "Q Will you please point to him? "INTERPRETER Witness pointed to a person who gave the name GIOVANNI BAJAR when asked.[18]

During a startling event, the natural tendency of witnesses would be to strive to look at the appearance of the perpetrator of the crime and to observe the manner of its perpetration.[19] Eyewitness Santos was barely two meters away from the shooting and his vision remained focus on the incident. The momentary power outage did not prevent him from seeing what was taking place. He explained:
Q At that time that you saw the incident, what was the condition of the area, was it dark or lighted? "ATTY. ALISUAG Your Honor, the defense "Q (sic) At first it was lighted then later on the light were went of (sic). "PROSECUTOR "Q When did the light go off, Mr. Witness, was it after the victim was shot, will you please tell us? "A On the second gunshot the light went off, sir. "Q After the second gunshot how about when you stared at the assailant was the light still on? "ATTY. ALISUAG Leading. "PROSECUTOR Alternative. "COURT Alternative, let the witness answer. "A When we stared at each other there was a light coming in the nearby store using a gas lamp, and very soon the light went on, sir.[20]

Illumination by a gas lamp could be sufficient for purposes of identification of the malefactor.[21] In any event, the electric power was cut-off only for a moment and restored almost instantly, even before the third gunshot was delivered. The fact that the prosecution has presented only one eyewitness to the crime is of little consequence. The testimony of a single witness, when credible and trustworthy, could be sufficient to convict.[22] Significantly, appellant has not imputed any ulterior motive why Santos, a stranger, would testify against him.[23] The positive identification made by an eyewitness of the culprit effectively effaced the claim of alibi.[24] Additionally, this defense failed to establish the physical impossibility of appellant being at the crime scene when it transpired, an essential element for the defense of alibi to prosper.[25] Appellant argues that if, indeed, he has committed the crime, then he would have fled and sought employment elsewhere to avoid the clutches of the law.[26] Non-flight, however, is not always an indication of innocence. In People vs. Lamsing,[27] the Court has said:

Appellant also argues that his arrest in a place near the scene of the crime negates his guilt. He contends that since flight is evidence of guilt and of a guilty conscience, then conversely non-flight is an indication of innocence. The argument is untenable. If the contention is correct then all that a criminal must do to profess his innocence would be to remain at or near the place of the crime and declare, when arrested, that he is innocent otherwise he would have fled. The crime may have been committed with impunity and he may have thought that the victim or his heirs would not complain, or that the eyewitness will not be able to identify him."
[28]

The crime charged against appellant is robbery with homicide, the elements of which, under Article 294, paragraph 1, in relation to Article 293, of the Revised Penal Code,[29] are: (a) intent to gain, (b) unlawful taking of personal property belonging to another and (c) violence against or intimidation of any person by reason of which, or on occasion thereof, the crime of homicide shall have been committed. In robbery with homicide, it is essential, however, that there should be a direct relation or an intimate connection between robbery and the killing whether the latter be prior or subsequent to the former or whether or not both crimes are committed at the same time.[30] Santos, in his testimony, failed to mention the robbery angle. In fact, in his sworn statement,[31] he stated categorically that he did not know whether the assailants had taken anything from the victim (Hindi ko po alam kung may kinuha po.) The other alleged eyewitness, Edgardo Celso y Hubilla, whose sworn statement[32] was taken by the police on 13 September 1990, did not swear that the victim was actually robbed. The only hint to indicate robbery was Celsos statement that one of the culprits had been heard to say that they were conducting a hold-up; thus:
10. T: Maari bang ikuwento mo sa amin kung ano yong nasaksihan mong pangyayari? "S: Ganito po iyon, habang hinihintay ko si Pareng Efren para kunin sa kanya ang pedicab na ibebeyahe ko napansin na may dalawang lalaki na parang nag-aaway sa tabi

ng Ford Fiera maya maya nakita ko ko (sic) yong isang lalaki, tapos nakita ko bumagsak yong lalaki at napunta sa ilalim ng Ford Fiera, tapos nakita yong isa pang lalaki na may dalang baril na nagsabi ng `WALANG MAKIKIALAM HOLD-UP ITO tapos nakita ko yong lalaking bumaril doon sa anak ni Mallari na hinihila yong anak ni Mallari na nabaril tapos nakita ko na muling binaril nong lalaki ang anak ni Mallari, tapos nakita ko may may (sic) tatlong lalaki na tumakbo na may mga dalang baril at ang isa ay may da (sic) dalang balisong na tumakbo papuntang Pritil Detachment. Tapos nakita ko yong lalaki bumaril sa anak ni Mallari na tumakbo na papuntang Divisoria. Ang ginawa namin mga sidecar boys ay nilapitan (sic) namin yong lalaking nabaril at isinakay namin sa jeep tapos dinala namin sa hospital.[33]

Unfortunately, the prosecution failed to present Celso at the witness stand. Absent any evidence that appellant indeed robbed the victim, the special complex crime of robbery with homicide would not stand. The fact that the Mallari family lost some amount of cash or valuables did not necessarily establish, let alone beyond reasonable doubt, that it was appellant's doing. Given all the evidence, the only crime proven is one of homicide under Article 249 of the Revised Penal Code that imposes the penalty of reclusion temporal. In the absence of any mitigating or aggravating circumstance, appellant should be meted the medium period of the penalty.[34] Applying the Indeterminate Sentence Law, there being no reasons shown for its inapplicability, that penalty can be anywhere within the range of prision mayor, as minimum, to the medium period of reclusion temporal, as maximum. Pursuant to prevailing jurisprudence, appellant must indemnify the heirs of the victim in the amount of P50,000.00. WHEREFORE, the Court MODIFIES the appealed judgment of the trial court by now holding that appellant Giovanni Bajar y Cabog is guilty of the crime of homicide for the killing of Ramon Mallari, for which crime he shall suffer the indeterminate penalty of nine (9) years of the medium period of prision mayor, as minimum, to fifteen (15) years and four (4) months of the medium period of reclusion temporal, as maximum, and ordered to indemnify the heirs of Ramon Mallari in the amount of P50,000.00. Costs against appellant. SO ORDERED.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-18866 January 31, 1966

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DIOSDADO DEVELOS alias MARIANO and SANTIAGO ALDEA, JR. alias JUANITO, defendant. DIOSDADO DEVELOS alias MARIANO, defendant-appellant.

J.M. Madarang for the defendant-appellant. Office of the Solicitor General for the plaintiff-appellee. REGALA, J.: This is a review of the decision of the Court of First Instance of Iloilo imposing the death penalty on Diosdado Develos for having committed the crime of robbery with homicide. In the afternoon of June 19, 1961, a patrolman of the Iloilo City Police Department received a report that the store of Marcelino Tan Bon Huat located at Mabini Street of that city had not been opened for business for two days already, and that people in the vicinity had been smelling foul odor emitting therefrom. The said patrolman, accompanied by one Ta Chi of the local Chinese Association, went to the store and found the dead body of Marcelino Tan Bon Huat lying on its back covered with a sack. Report of this incident having reached the police department, the chief of the Arson and Homicide Section, Secret Service Division, with three detectives, the Assistant Medico legal officer of the City Police Department, and Assistant City Fiscal repaired to the scene. A picture of the victim was taken in the same position as first seen by the police officers with a sack covering his dead body and another showing a rope tied around his neck. Dr. Raymundo Torres, assistant medico-legal officer, conducted a post-mortem examination upon the deceased and it was found in his autopsy findings that the victim died of asphyxia due to strangulation and burns; that there was a lacerated wound appearing at the occipital region; that there were first degree burns at his neck and abdomen; and that second degree burns were found at the thorax and upper extremity. It was established in the course of investigation conducted by the police officers, that the perpetrators of the crime were Diosdado Develos alias "Mariano" and Santiago Aldea, Jr. alias "Juanito" who were employed by the victim as houseboys. A team of police officers organized themselves and were able to arrest Develos at La Paz, Iloilo City, recovering from him the following articles which were found to have been lacking in the store of the deceased: one jacket, two towels, two pants, eight shirts, two T-shirts and a pair of shoes. Develos confessed his guilt upon interrogation by one Lt. Arante at the office of the Secret Service Division. He narrated how he and his companion, Santiago Aldea, Jr. killed the victim in the evening of January 27, 1961, and afterwards robbed him. Santiago Aldea, Jr. was also arrested and upon investigation he recounted in detail how he and Develos committed the crime. The commission of the crime was thus reenacted in the presence of police officers and pictures of the reenactment were taken. Information was filed against the two accused for the crime of robbery with homicide. During arraignment, both the accused were assisted by counsel de oficio. While the herein appellant entered a plea of guilty, his co-accused entered a plea of not guilty. At the date set for trial, however, without objection from the fiscal, Aldea, thru counsel, withdrew his plea of not guilty and upon arraignment pleaded guilty. And there being no question as to the guilt of the accused, the trial proceeded only for the purpose of receiving the evidence as to the aggravating circumstances that attended the commission of the crime.

Thereafter, the court rendered judgment pronouncing the crime to have been committed with the aggravating circumstances of evident premeditation, treachery, abuse of confidence or obvious ungratefulness, abuse of superior strength and unusual cruelty. The trial court considered the first aggravating circumstance of evident premeditation offset by the mitigating circumstance of plea of guilty, the only mitigating circumstance that may be appreciated in favor of the defendants. Dispositive part of the judgment reads: POR TANTO, el Juzgado declara al acusado Diosdado Develos culpable, fuera de toda duda racional, del delito de robo homicido, apreciando en contra de el las agravantes de alevosia, abuso de confianza, abuso de superioridad y la de haber aumentado deliberadamente el mal del delito, causando otros males innecesarios para su ejecucion, no neutralizadas por ninguna atenuante, le condena a sufrir le pena de muerte; a indemnizar a los herederos de Marcelino Tan Bon Huat en la suma de P6,000.00, mas la otra suma de P25.50, importe de objetos robados y no recuperados, sin sufrir prision subsidiaria correspondiente, en caso de insolvencia, dada la naturaleza de la pena principal; a las accesorias de la ley y a pagar, ademas un mitad (1/2) de las costas del juicio. Apareciendo que el acusado Santiago Aldea, hijo, era menor de 16 aos cuando cometio el delito alegado en la querella enmendada, de conformidad con al Articulo 80 de Codigo Penal Revisado, tal como ha sido enmendado, suspendase todo ulterior procedimiento contra el y se ordena su envio y reclusion en el "Philippine Training School for Boys", Welfareville Institution, Mandaluyong, Rizal, hasta que llegue a su mayoria de edad o hasta nueva orden de este Juzgado. In his brief before us, counsel for appellant points out the fact that Aldea, his co-accused, who "did not only initiate the fatal blow but also poured alcohol over the body and burned the deceased" was given a suspended sentence and committed to the Philippine Training School for boys while he (the appellant) was sentenced to suffer the death penalty. The suspension of Aldea's sentence is clearly in accordance with Article 80 of the Revised Penal Code which applies only to minors under sixteen years of age at the date of the commission of a grave or less grave felony. It appears that while Aldea was only 15 years, 4 months and 15 days old when the crime took place, the herein appellant was already 22 years old. Hence, the latter cannot invoke the same treatment given by the trial court to his co-accused. Since the appellant has pleaded guilty to the crime charged, this review is merely to find out the correctness of the punishment imposed, considering the circumstances attendant to the crime. We fully agree with the observation of the Solicitor General that the aggravating circumstance of evident premeditation has not been proven beyond reasonable doubt. For in his sworn statement during investigation by Lt. Arante of the Iloilo City Police Department, the appellant stated that in the evening of June 17, when Aldea bared to him (Develos) his plan to kill their employer, Aldea struck the victim suddenly and from behind. The fact that appellant did not assent to the killing that very instant renders doubtful the attendance of evident premeditation on his part.

However, we find the aggravating circumstances of (1) abuse of confidence or obvious ungratefulness (2) treachery, (3) abuse of superior strength, and (4) unusual cruelty to have been sufficiently proven as shown by the evidence, summarized by the Solicitor General, as follows: The appellant, in confessing his guilt before the police officers, stated that while employed as a houseboy by the victim he lived and ate with him in his store; that after his co-accused Aldea suddenly and without warning struck the victim from behind, as he was massaging him with rubbing alcohol, while the victim was about to rise, the appellant strangulated him with a rope; that after killing the victim, the appellant ransacked the store for money while his co-accused watched him but when he failed to find any he took some cigarettes and the clothes belonging to the victim; that while he was looking for money, Aldea set the victim on fire which accounts for the burns on the arms, chest and abdomen; that when he returned to the place where the body was, he found it covered with a sack; that after killing and robbing the victim they stayed in the kitchen until 4 o'clock in the morning of the next day and took a bus bound for Dingle to hide in the house of his aunt. The foregoing testimony was affirmed by Santiago Aldea, Jr., the appellant's co-accused.
1wph1.t

Dr. Raymundo Torres, assistant medico-legal officer of the Iloilo City Police Department, testified that the wound sustained by the victim in the occipital region, three centimeters long, could have been caused by a blunt instrument; that with the location of the wound at the head of the victim, it could have been inflicted while the appellant was face to face with the victim and that the assailant must have been at the back of the victim; that when he first saw the body of the deceased, the neck was tied with a rope; that he must have been strangulated while he was still alive because the tongue came out of his mouth; that the second degree burns in the thorax and upper extremities and the first degree burns in the abdomen, as shown by the skin blisters and burnt areas, were caused by setting afire the rubbing alcohol he found near the body of the victim; that the victim could have died by the impact of the blow alone, even without burning and strangulating him. Lt. Arante, Chief of the Arson and homicide Section, Secret Service Division of the City Police Department, testified that appellant reenacted the way the crime was committed as Detective Abarcoso took pictures of the various stages thereof. According to the witness, as reenacted by the appellant, he was struck from behind by Aldea, with a piece of wood; that after the victim was struck thus, he fell down; that as he was rising up, the appellant also struck him with the same piece of wood and strangulated him with a rope. That the appellant had abused the confidence of his victim and was obviously ungrateful is apparent from the fact that he was an employee of the victim, living with him in the same dwelling. There was treachery on the part of the appellant when he suddenly struck the victim from behind without warning, as the latter was about to rise a method which had insured the execution of the crime without risk to himself arising from the defense. Abuse of superior strength was likewise present because aside from the fact that the appellant and his co-accused were two, while the victim was alone, the latter was unarmed and defenseless.

The presence of unusual cruelty is borne by the fact that the accused did not merely kill the victim but augmented his sufferings by strangulating him with a rope and setting him on fire after having struck him twice on the head. Paragraph 1, Article 294, of the Revised Penal Code prescribes reclusion perpetua to death as the penalty for robbery with homicide. For lack of the necessary votes for the imposition of the death penalty, considering the youth of the appellant, we hereby impose the penalty of reclusion perpetua. As recommended by the Solicitor General, the articles belonging to the deceased enumerated somewhere in this decision, which have been recovered from the appellant, should be returned to the heirs of the deceased. In view of the foregoing, the judgment of the lower court is hereby modified in accordance with the above pronouncements. With costs. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-26789 April 25, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DICTO ARPA and MAALUM ARPA defendants-appellants. Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Felicisimo R. Rosete and Solicitor Antonio M. Martinez for plaintiff-appellee. Antonio L. Africa for defendants-appellants. TEEHANKEE, J.: Automatic review by this Court of the death penalty imposed by the trial court on the accused for the crime of Robbery with Triple Homicide. In the information filed before the Court of First Instance of Davao, the accused, Dicto Arpa and Maalum Arpa, were charged with the crime of Robbery with Triple Homicide (Criminal Case No. 9694); alleged to have been committed as follows: That on or about February 20, 1966, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, having boarded a motor banca named "MAMI I", owned by Epimaco Mola together with other passengers bound for Talicud Island, Davao, and once the motor banca was in the middle of the sea and when it developed engine trouble, the accused, conspiring together and helping one another, with intent to steal the motor banca and by means of intimidation, the accused Dicto Arpa firing his .22 cal. revolver to scare the

passengers of the banca, and fired at one of the passengers, hitting the said passenger at the right shoulder, wilfully, unlawfully and feloniously took and carried away the said motor banca "MAMI I" belonging to the said Epimaco Mola valued at P2,100.00, to the damage and prejudice of the above-named owner in the aforementioned amount of P2,100.00, and as a result of the jumping into the sea of all the passengers of the motor banca, Alfonso Villegas, Bernardo Villegas and Lourdes Villegas, all passengers of the motor banca were drowned and died. On the scheduled date of arraignment on March 7, 1966, the accused, through their counsel de oficio, Atty. Bernardino Bolcan Jr., manifested their desire to plead guilty only as to the fact of "the killing of one of the persons mentioned in the information," 1 denying the killing of the two other persons. The fiscal, however, manifested that the State could not agree to the accused's offer to plead guilty to only one homicide, since "the two other persons were lost on the same occasion, ... because of the incident. They jumped overboard after the firing at one of the victims, ..." 2 The trial judge, Hon. Manases G. Reyes, accordingly did not accept the plea and reset the arraignment for the next day, informing the accused that as the prosecution was not agreeable to their qualified plea, they would have to enter into trial. When the case was called on the following day, the information was read to the accused in the dialect they understood, and both accused pleaded guilty, their counsel de oficio invoking, in their favor two mitigating circumstances of plea of guilty and lack of intent to commit so grave a wrong. The fiscal objected to the appreciation of the latter circumstance, demonstrating that "there could be no lack of intent when they immediately fired at one of the victims point blank with a pistol, that is fatal." 3 The case was submitted and the trial court rendered thereafter on March 11, 19661, its decision, crediting the accused with the mitigating circumstance of their voluntary plea of guilty, but rejecting the claimed mitigating circumstance of lack of intent to commit so grave a wrong, in view of "the nature and gravity of the offense committed." The trial court further found two aggravating circumstances against the accused, as follows; A perusal of the information reveals the following, allegation in the information: ...and once the motor banca was in the middle of the sea and when it developed engine trouble.... These allegations to the mind of the Court constitute two aggravating circumstances. The first underlined portion constitutes the aggravating circumstance that the crime was committed in an uninhabited place. (People vs. Rubia 52 Phil. 172). And the second constitutes the aggravating circumstance that the crime is committed on the occasion of conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune. The Court believes that the development of engine trouble in the middle of the sea is a misfortune which tends to create confusion and apprehensions of the passengers and, thereby, to commit a crime such a time the accused manifested

greater perversity and instead of rendering help increased their affliction by taking advantage of the said misfortune. As it is, therefore, the accused in the commission of this crime has one mitigating circumstance in their favor and two aggravating circumstances against them, and offsetting one another there is still remaining one aggravating circumstance to the accused.4 Consequently, the trial court sentenced each of the accused to the penalty of death and order both of them, jointly and severally, to indemnify the heirs of the deceased Alfonso Villegas, Bernardo Villegas and Lourdes Villegas in the amount of P6,000.00 for each of them, without subsidiary imprisonment in case of insolvency by reason of the penalty imposed, and to indemnify Epimaco Mola in the sum of P2,100.00, and to pay the costs proportionately. For purposes of this review, Atty. Antonio L. Africa was appointed counsel de oficio for the accused, upon the latter's request for such counsel. Said Counsel urges the reversal of the death sentence, and the Solicitor-General recommends the affirmance thereof. Counsel for the accused in a well-prepared brief, assigns the following errors: I. THE LOWER COURT ERRED IN HOLDING THAT THE CRIME COMMITTED IS ROBBERY WITH TRIPLE HOMICIDE. II. THE LOWER COURT ERRED IN HOLDING THAT THE CRIME COMMITTED WAS ATTENDED BY THE AGGRAVATING CIRCUMSTANCES OF UNINHABITED PLACE AND ON THE OCCASION OF A MISFORTUNE. III. THE LOWER COURT ERRED IN NOT CONSIDERING THE MITIGATING CIRCUMSTANCE OF LACK OF INTENT TO COMMIT SO GRAVE A WRONG AS THAT COMMITTED. IV. THE LOWER COURT ERRED IN IMPOSING UPON THE ACCUSED THE SUPREME PENALTY OF DEATH. The accused, leaving voluntarily pleaded guilty to the information, come under the firmly settled doctrine of being deemed to have admitted all the material facts alleged in the information, including the aggravating circumstances therein alleged. 5 The first error assigned that "if the original criminal design does not clearly comprehend homicide, (in view of the allegations in the information that the accused's intent was to steal the motor banca and that accused Dicto Arpa fired his 22 cal. revolver to scare the passengers of the banca), but homicide follows the robbery as an incident of the latter, the criminal acts should be viewed as constitutive of two offenses, and not as a single special offense (of robbery with homicide)" 6 is without merit. Article 294, paragraph 1 of the Revised Penal Code which defines the special, single and indivisible crime of robbery with homicide with the use of violence against, or intimidation of any person, imposes one distinct penalty of reclusion perpetua to death "when by reason or on occasion of the robbery, the crime of homicide shall have been committed." In the case of People vs.

Mangulabnan, et al., 7 this Court pointed out that the "English version of the Code is a poor translation of the prevailing Spanish text of sale paragraph, which reads as follows:
lawphi1.nt

I. o Con la pena de reclusion perpetua a muerte cuando con motivo o' con occasion del robo resultare homicidio. We see, therefore, that in order to determine the existence of the crime of robbery with homicide it is enough that a homicide would result by reason or on the occasion of the robbery (Decision of the Supreme Court of Spain of November 26, 1892, and January 7, 1878, quoted in 2 Hidalgo's Penal code, p. 267 and 259-260, respectively). This High Tribunal speaking of the accessory character of the circumstances leading to the homicide, has also held that it is immaterial that the death would supervene by mere accident (Decision of September 9, 1886; October 22, 1907; April 30, 1910 and July 14, 1917), provided that the homicide be produced by reason or on occasion of the robbery, inasmuch as it is only the result obtained, without reference or distinction as to the circumstances, causes, modes or persons intervening in commission of the crime, that has to be taken into consideration (Decision of January 12, 1889 see Cuello Calon's Codigo Penal p. 501-502). In that case, one of the two unidentified co-participants of the appellant Mangulabnan climbed up a table and fired at the ceiling, which was conceded to be "an unpremeditated act that surged on the spur of the moment and possibly without any idea that Vicente Pacson was hiding therein" that resulted in the killing of said Vicente Pacson, but said appellant having been shown to have participated in the criminal design to commit the robbery with his co-defendants was held guilty of the crime of robbery with homicide. Here, upon the accused carrying out their criminal design to steal the motor banca, one of them, Dicto Arpa, started firing his revolver to scare the passengers and fired directly at one of the passengers, hitting him at the right shoulder, and as a result, the three passengers jumped into the sea and met their death by drowning. Even if we were to concede appellants' contention that their original criminal design did not clearly comprehend homicide, and that homicide followed the robbery "as an incident of the latter", still the deaths clearly resulted by reason of or on the occasion of the robbery and the trial court therefore correctly found them guilty of the crime of robbery with triple homicide. The remaining errors assigned concern the trial court's appreciation and finding of two aggravating circumstances as against one mitigating circumstance of a voluntary plea of guilty in the commission of the crime and the mandatory imposition, as a consequence, of the penalty of death. We hold that the trial court correctly held that the crime committed was attended by the aggravating circumstance of uninhabited place. The accused, in having boarded at Davao City the motor banca, together with other passengers bound for Talicud Island, Davao, and carrying out their criminal design of stealing the said motor banca, once it was in the middle of the sea and when it developed engine trouble, with one of them firing revolver shots in order to forestall any resistance, certainly cannot disclaim that they sought the isolation of the sea to attain their criminal objective without interference. As held by this Court in People vs. Rubia, 8 the aggravating circumstance of the crime of homicide having been committed in an uninhabited place must be considered, where the deed was

committed at sea, where it was difficult for the offended party to receive any help, while the assailants could easily have escaped punishment, and the purely accidental circumstance that another banca carrying the eyewitnesses to the crime was also at sea in the vicinity at the time without the assailants' knowledge is no argument against the appreciation of said circumstance. We hold, however, against the trial court's finding of a second aggravating circumstance in that the crime was committed "on the occasion of a conflagration, shipwreck, earthquake, epidemic, or other calamity or misfortune." 9 In so holding, the trial Court reasoned: The Court believes that the development of engine trouble in the middle of the sea is a misfortune which tends to create confusions and apprehensions of the passengers and, thereby, to commit a crime at such a time the accused manifested greater perversity and instead of rendering help increased their affliction by taking advantage of the said misfortune. (Decision, p. 3). The development of engine trouble at sea is a misfortune, but it does not come within the context of the phrase "other calamity or misfortune" as used in Article 14, paragraph 7 of the Revised Penal Code, which refer to other conditions of distress similar to those precedingly enumerated therein, namely, "configuration, shipwreck, earthquake, epidemic", such as the chaotic conditions resulting from war or the liberation of the Philippines during the last World War. The reason for the provision of this aggravating circumstance "is found in the debased form of criminality met in one who, in the midst of a great calamity, instead of lending aid to the afflicted adds to their suffering by taking advantage of their misfortune to despoil them." 10 Clearly, no such condition of great calamity or misfortune existed when the motor banca developed engine trouble. It should be added that there is nothing in the record whatever to indicate that the engine trouble developed was a serious one such as to create confusion and apprehension on the part of the passengers as perceived by the trial court, and that the same was not easily repaired; if at all, the indications are to the contrary, for as alleged in the information, the accused succeeded in stealing the motor banca at sea. We hold also against the accused's claim of a second mitigating circumstance of lack of intent to commit so grave a wrong. The trial court correctly held that this circumstance could not properly be appreciated in favor of the accused "viewed from the nature and gravity of the offense committed." As previously pointed out by this Court in the case of People vs. Boyles, 11 the true nature of this circumstance "addresses itself to the intention of the offender at the particular moment when he executes or commits the criminal act; not to his intention during the planning stage. Therefore, when, as in the case under review the original plan was only to rob, but which plan, on account of the resistance offered by the victim, was compounded into the more serious crime of robbery with homicide, the plea of lack of intention to commit so grave a wrong cannot be rightly granted." In the present case, the accused embarked on their most reprehensible criminal design of pirating a motor banca at sea, firing a volley of shots at the passengers notwithstanding the lack of indications of any resistance, thus forcing them to jump overboard in a desperate act of selfpreservation only to be swallowed by the sea. The accused cannot now disclaim their lack

of criminal intent and responsibility for the direct, logical and fearsome consequences of their unlawful acts. As thus established, therefore, the crime committed was Robbery with Triple Homicide, attended by the aggravating circumstance of the same having been committed in an uninhabited place which is offset by the accused's voluntary plea of guilty, and the proper imposable penalty is the lesser penalty of reclusion perpetua. (Article 294, paragraph 1 in relation to Article 3, Revised Penal Code.) The compensatory damages awarded to the heirs of the victims should properly be increased to P12,000.00. (People vs. Pantoja, G.R. L-18793, Oct. 11, 1968.) It may be noted that even if the accused were to be granted the additional claimed mitigating circumstance of lack of intent, the said imposable penalty would still be the same. 12 The question of the fact of death of the two other passengers, since the accused deny knowledge of the fact of their death, as their counsel in the lower court claimed that there was no showing of such fact, 13 although both counsels in this Court as well as in the lower court do not dispute the "judicial admission by the accused appellants of the fact of killing (death) of one of the persons named in the information" 14 would not affect the nature of the single and indivisible crime of Robbery with Homicide committed by the accused nor the proper imposable penalty as herein established, since all the homicides perpetrated by reason or occasion of the robbery are merged in the composite, integrated whole that constitutes the crime of robbery with homicide. 15 Nevertheless, we feel constrained to add that in reviewing the records of the case, we were struck with the paucity of facts and evidence attending the commission of the crime other than those stated in the information and other circumstances that would aid the Court in its ordained task of passing en consulta upon the legality and propriety of the death penalty imposed by the trial court, e.g. the age and education or lack thereof of the accused, and whether there were other passengers who survived, aside from the three persons named in the information as having drowned, as well as what the crew did, if anything, during the commission of the crime. Were it not for the conclusion here reached of imposing the lesser penalty of reclusion perpetua, by virtue of our disallowance of the additional aggravating circumstance of calamity or misfortune found by the trial court, we might have been constrained to remand the case for new trial to the court a quo in order to satisfy ourselves as to the degree of culpability of the accused in relation to the death penalty imposed, especially since the information did not expressly designate as such the aggravating circumstances found by the trial court and there was no discussion nor spelling out thereof whatever in the eight-page transcript of the entire proceedings. We therefore reiterate the rule of practice recommended since the early cases of U.S. vs. Talbanos 16 and U.S. vs. Rota. 17 set out in Rule 118 section 5 of the Rules of Court, 18 and thereafter suggested a number of cases, lastly, in the case of People vs. Bulalake, 19 where this Court said: It is of course true that the taking of such evidence is a matter left to the discretion of the trial court. Nevertheless, inasmuch as judgments of conviction imposing the extreme penalty of death are subject to review by the Supreme Court as law and justice shall dictate, whether the defendant appeals or not, which automatic review neither the Court nor the accused could waive or evade it would

seem that the proper and prudent course to follow where the accused enters a plea of 'guilty' to capital offenses specially where he is an ignorant person with little or no education, is to take testimony not only to satisfy the trial judge himself but to aid the Supreme Court in determining whether the accused really and truly understood and comprehended the meaning, full significance and consequences of his plea. WHEREFORE, the decision under review is modified: the accused are imposed the penalty of reclusion perpetua and ordered, jointly and severally, to indemnify the heirs of the deceased Alfonso Villegas, Bernardo Villegas and Lourdes Villegas in the amount of P12,000.00 for each of them, and Epimaco Mola in the sum of P2,100.00, and proportionately to pay the costs. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 4487 September 7, 1908

THE UNITED STATES, plaintiff-appellee, vs. ALFONSO MELEGRITO, ET AL., defendants-appellants. Eusebio Orense for appellants. Attorney-General Araneta for appellee. CARSON, J.: The accused were charged with the crime of robbery in an armed gang (robo en cuadrilla) on the following complaint; The undersigned charges Alfonso Melegrito and Catalino Melegrito with the crime of robbery in a gang, committed as follows: That between 10 and 11 p.m. of the 15th of March, 1907, in the barrio of Mabanengbeng, pueblo Baclotan province of La Union, the said accused, accompanied by two unknown men, willfully, illegally, and feloniously, and with arms entered the dwelling of one Teodoro Dacanay and, with intent to profiting thereby and by means of violence and intimidation, took possession of personal property of said Teodoro Dacanay< of the total value of 1,028 pesetas; the commission of the crime in marked by "gravity manifestly unnecesary for its execution." The said did constitutes the crime punished by paragraph 4 of article 503 of the Penal Code, and was committed within the jurisdiction of the Court of First Instance and against statute. The evidence of record conclusively establishes the guilt of the accused of the crime of robbery, as charged, in so far as it is alleged that it was committed en cuadrilla, and that the robbery was attended with violence or intimidation, manifestly unnecesary for its execution.

The only questions raised by counsel of the appellants is as to the accuracy of their identification by the witnesses for the prosecution. Upon this point the trial judge held that "that the two accused were clearly and positively identified at the time of their arrest by Agapita Lagao, who is a very intelligent woman, and her daughter, a young girl in whose testimony the court had the utmost faith. There is not the least doubt in the mind of court of the identity of the accused nor of their guilt." We think that this finding must be sustained. The evidence in support of the allegation of the crime was committed en cuadrilla consists of proof that the true appellants being armed, entered the house of Teodoro Dacanay, living several companions outside, and that one of their companions drove bolo through the floor of the house. None of their companions were seen by the witnesses. While it appears, therefore that at least three of the party were armed, the evidence of record does not disclose that "more than three" of the guilt of the party were armed, as required by the provisions of article 505 of the Penal Code which describes a gang as consisting of more than three armed malefactors united in the robbery. The only evidence as the violence committed by the accuse was to the effect that they pushed Teodoro Dacanay, the owner of the house, into one corner of the room, and at the same time instructing him at the back with a bolo, causing no wound and making him lie down and cover himself with a blanket or sheet. This is not violence or intimidation of a "gravity manifestly or unnecessary for the execution of the crime," and was not sufficient to bring it under the provisions of subdivisions 4 of article 503, as alleged in the complaint. The judgment of the trial court should, therefore, be reversed, and the appellants should be and are hereby convicted of the crime of simple robbery, as defined in subdivision 5 article of 503, and it appearing was marked by the aggravating circumstance of nocturnity and the fact that was committed in the house of the offended person, the penalty should be impose in its maximum degree. (U.S. vs. Marcelo Aquino et al., decided September 8, 1908;1 U.S. vs. Leyba 8 Phil. Rep., 671; sentencia of the supreme court of Spain, December 24, 1896.) The penalty of nine years of presidio mayor with the accessory penalties prescribed by law imposed by the trial court, is within the limits prescribed for the offense of which the accused are thus convicted, and we therefore imposed upon the appellants the same penalty, if the costs of this instance against the appellants. So ordered. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 1255 August 17, 1903

THE UNITED STATES, complainant-appellee, vs. FELIPE ABAIGAR, defendant-appellant. Fermin Mariano for appellant. Solicitor-General Araneta for appellee.

MAPA, J.: The testimony of the witnesses and the confession of the accused himself show unquestionably that the latter stabbed Constantino Nabaonag to death while he was bound, and therefore unable to defend himself against the aggression. This circumstance constitutes alevosia, and the offense is therefore properly classified as murder, defined and punished by article 403 of the Penal Code. It follows, therefore, that the judgment of the court below now before us in consultation is correct, in so far as it finds the defendant guilty of the crime of murder. This judgment condemns the accused to the penalty of death, the court considering that the crime was committed with the aggravating circumstances of deliberate premeditation, the employment of means tending to add ignominy to the necessary effects of the acts, and the commission of the crime with the assistance of armed men. The opinion of the court in this regard does not meet with our approval. There was no premeditation, because an examination of the record shows that the purpose of killing Constantino arose suddenly in the mind of the defendant, and was instantaneously carried into effect, upon information that the deceased had spoken ill of the defendant. The accused says: "As soon as I heard of this I became furiously enraged; I seized my dagger and killed him at once." This part of the defendant's testimony was not disproven in the course of the trial. The determination to kill was, then, followed immediately by the execution of the crime; and consequently between the determination to commit the act and its actual commission there was no opportunity for the cold, meditative, and persistent reflection, which constitutes premeditation, which is essentially different from a simple determination of the will, which is always presumed in the commission of every offense. The circumstance of ignominy was not present because no means were employed nor did any circumstances surround the act tending to make the effects of the crime more humiliating. Ignominy is a circumstance pertaining to the moral order, which adds disgrace and obloquy to the material injury caused by the crime. The fact that the deceased was killed in the presence of his wife is the circumstance which the court below had in view when declaring that this circumstance had concurred. Furthermore, the evidence shows that the crime was not committed with the assistance of armed men. The testimony of the accused, corroborated by that of the witness for the prosecution, Francisco Abadiano, is that the crime was committed by the defendant alone, without assistance from any one. It is true that in the house near the place where the crime was committed there were ten men armed with daggers, according to the statements of the witness referred to, and five without arms, according to the accused, but as these men took no part, directly or indirectly, in the commission of the crime, and it does not appear that they heard the conversation which caused the sudden determination on the part of the accused to kill the deceased, and still less that they had in any way participated in this determination, we can not, within the law, find that this circumstance concurred in the commission of the crime prosecuted for the purpose of augmenting the criminal responsibility of the accused. The mere casual presence of armed men, more or less numerous, near the place of the occurrence does not constitute an aggravating

circumstance when it appears that the defendant did not avail himself in any way of their aid, and did not knowingly count upon their assistance in the commission of the crime. In the present case, there being no circumstancial tending to modify the guilt of the defendant, the penalty is that prescribed by article 403 of the Penal Code in its medium grade, to wit, the penalty of life imprisonment, and not the penalty of death imposed by the court. For the reasons stated we reverse the judgment in so far as it condemns the defendant to death, and impose upon the latter the penalty of life imprisonment, and condemn him to the payment of an indemnification of 1,000 Mexican pesos to the heirs of the deceased, together with the costs of this instance.

EN BANC

[G.R. No. 124705. January 20, 1998]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GERRY SUMALPONG, JOSEPH LUMUNGGO, MELCHOR FERNANDO and BILLY LAKSINTO, accused, GERRY SUMALPONG and MELCHOR FERNANDO, accused-appellants. DECISION
PANGANIBAN, J.:

The Court finds occasion to reiterate the time-settled rule that the attendant circumstances in the commission of a crime must be proved as solidly as the offense itself, and any doubt as to their presence must be resolved in favor of the accused. In the clear absence of any generic aggravating circumstance attending the murder, appellants may be sentenced only to reclusion perpetua, not death as imposed by the trial court.

The Case In an Information[1] dated January 17, 1994, Cotabato City Prosecutor Ortillano D. Tan charged Gerry Sumalpong, Joseph Lumunggo, Melchor Fernando and Billy Laksinto with the crimes of murder and frustrated murder[2] allegedly committed as follows:

That on or about January 12, 1994, in the City of Cotabato, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another, armed with sharp-pointed instruments, with treachery and evident premeditation and with intent to kill, did then and there wilfully, unlawfully and feloniously attack, assault and stab with said weapons Arola Dilangalen and Mohammad Managili, thereby inflicting upon Arola Dilangalen mortal wounds which caused his death, and inflicting upon Mohammad Managili mortal wounds which could have caused his death, thus the accused have performed all the acts of execution which would have produced the crime of murder as a consequence but which, nevertheless, did not produce it by reason of the timely medical assistance rendered to Mohammad Managili which prevented his death.
[3]

Appellants Gerry Sumalpong and Melchor Fernando pleaded not guilty.[4] Accused Joseph Lumunggo and Billy Laksinto could not be arraigned, since they were at large. After due trial, the Regional Trial Court of Cotabato City, Branch 14[5] convicted both appellants of the crime charged in its Decision[6] dated December 27, 1995, the dispositive portion of which reads:

WHEREFORE, in the light of all the foregoing, the Court finds the guilt of Accused Gerry Sumalpong and Melchor Fernando established beyond reasonable doubt and therefore guilty of the offense charged in the information and hereby sentences each of them for the death of Arola Dilangalen to suffer the penalty of DEATH and to indemnify the heirs of Arola Dilangalen jointly and severally, in the amount of [o]ne hundred thousand pesos (P100,000.00) as and for exemplary damages. For the wounding of Mohammad Managuili, the accused are each sentenced to suffer the penalty of 17 years, 4 months and one day to twenty years of Reclusion Temporal in its maximum period, with the accessories of the law and to pay the said victim, jointly and severally, the amount of [f]ifty thousand pesos (P50,000.00) as and for actual and moral damages. Let the entire records of this case together with the transcript of stenographic notes be forwarded to the Supreme Court immediately for review. No costs.
[7]

The Facts Version of the Prosecution

After a thorough perusal of the evidence proffered by both the prosecution and the defense, we find the facts as narrated by the trial court to be fairly reflective of the evidence for the prosecution. The relevant portions are hereinbelow reproduced:

x x x [On] January 12, 1994 at about 8:00 oclock in the evening, Arola Dilangalen and Mohammad Managuili escorted home their friend, Jukaris Buan at Nayon Shariff Kabunsuan, Cotabato City taking a service owned by a certain Nong Fred. Only Jukaris Buan alighted upon reaching home and thereafter, the owner of the service vehicle together with Arola Dilangalen and Mohammad Managuili returned way back home. Arola Dilangalen and Mohammad Managuili alighted at 4J Pizza House along Notre Dame Avenue to take merienda. After both took merienda, they went out of the pizza parlor to go home. While waiting for a tricycle to take them home, they saw four (4) men near an electric post around five (5) meters away at the other side fronting the 4J pizza parlor, who suddenly and simultaneously stabbed them. Arola Dilangalen died of hemmorhage and antecedent multiple wounds as shown in the Death Certificate marked as Exhibit A. Mohammad Managuili sustained stab wounds on the right ant[erior]-axillary line as shown in the Medical Certificate which was marked as Exhibit B.
[8]

Managuili was initially brought to an emergency hospital, then transferred to the Cotabato Regional Hospital where his wound was sutured by Dr. Pearlie Sibud.[9] He was confined there until January 14, 1994,[10] the same day on which Police Officer Bernard Tayong brought before him five persons, including Appellant Gerry Sumalpong, for identification purposes. Sumalpong was positively identified by Managuili as one of the assailants.[11] Bai Farida Dilangalen, mother of Victim Arola, testified that, upon learning that her son was stabbed to death, she collapsed and felt grief, while her husband suffered hypertension. She estimated that they spent P70,000[12] for the burial of her son and for other ceremonies for the dead under the Muslim tradition.

Version of the Defense Both appellants denied participation in the crime. Each gave his respective alibi. According to Melchor Fernando,[13] he worked continuously at his employers shop, making balusters, from 7:00 a.m. to 10:00 p.m. on January 12, 1994, with only tenminute breaks for his lunch and supper. He denied previously knowing his co-accused and claims that the first time he saw the latter was in the city jail.[14] Appellant Fernandos statement was corroborated by his father. The latter testified that, from the porch of their house, he saw Melchor working at the shop, which was only a few meters away, about 8:30 p.m. until almost 11:00 p.m. on January 12, 1994.[15] Melchors employer, Mr. Lauro Navarro, also confirmed[16] that said accused worked with him from 7:00 a.m. to

past 10:00 p.m. that day. Most significant was his explanation of their work procedure. He said that, in making balusters, they had to wait for four (4) hours from the time they poured mixed cement into the molding until it hardened. Melchor would usually go home to eat and sleep during the waiting time, and Navarro would just wake him up when his services were needed again. The other accused, Gerry Sumalpong, claimed that he was at home reading in the evening of January 12, 1994.[17] This was confirmed by his father[18] and another witness, Arnel Hinaut, who allegedly saw Sumalpong between seven and eight oclock that evening reading a book at the balcony of their house.[19] Sumalpong and his father added that when the police presented them in a lineup for identification purposes at the hospital on January 14, 1994, Managuili, before whom they were presented, failed to identify Sumalpong as one of the assailants.[20]

Ruling of the Trial Court In refusing to give credence to the defenses of Appellants Sumalpong and Fernando, the court a quo ratiocinated:

x x x The Court cannot consider the alibi of Gerry Sumalpong seriously. First, 8:00 oclock is still early in the evening and it[]s unusual for a college student to sleep at said time; Second, the testimony of Arnel Hinaut cannot be given credence for as jeepney conductor, he does not even know Notre Dame Avenue and 4J pizza house but knows Notre Dame University, when in truth and in fact, Notre Dame University is along Notre Dame Avenue and it is impossible for a jeepney plying Awang to Super, vice versa not passing the intersection of Notre Dame Avenue and Quezon Avenue (Parang road); Third, in the penultimate part of the affidavit of PO1 Bernard Tayong which was earlier quoted and affirmed by the latter, Gerry Sumalpong claimed that he was allegedly buying a pack of sliced mango when he saw Joseph Lumunggo, Melchor Fernando and Billy Laksinto, helping or conspiring [with] one another in assaulting the two victims with their respective knife [sic] which means that Gerry Sumalpong was at the scene of the crime and in fact one of the perpetrators. This was affirmed by PO1 Tayong when he conducted another investigation at the crime scene and where the couple Rolando and Mona Dumaldal confided to him that on the evening of the stabbing incident, they saw four (4) male persons namely Gerry Sumalpong, Joseph Lumunggo, a ceratin [sic] Peryong and one male person unknown to them running to the interior portion near Sto. Nio Chapel and that he saw Joseph Lumunggo inserting a knife in his waistline but that these [sic] couple refused to testify for reasons known only to them. Fourth, that he is a student of Dela Vida College, which is about 20 meters from the 4J Pizza house, and a resident of Fatima II

which is around 150 meters away from Dela Vida College, thus, their house is walking distance to their school and to the crime scene; Lastly, Gerry Sumalpong was positively identified by Mohammad Managuili as the one who stabbed him.
xxx xxx xxx

The Court cannot give credence to said alibi of Melchor Fernando. First, he testified that he worked continuosly [sic] from 7:00 oclock in the morning to 10:00 oclock in the evening except for meal breaks which was [sic] about 20 minutes but his neighbor-employer testified that while waiting for the ballusters [sic] to harden which is about four (4) hours, they did not have work thus his neighbor-worker/helper Melchor Fernando went home, slept and woke him up if his services was [sic] needed; Second, his neighbor-employer testified that they had (3) three pourings on said date but Melchor Fernando, testified that they had four (4) pourings; Third, it is hard to believe that his father, Elpidio Fernando, after a hectic days work being a mason watched him working from 8:30 to almost 11:00 oclock in the evening; Fourth, the residence of Accused Melchor Fernando is just a few minutes ride from the scene of the crime;Fifth, in the testimony of PO1 Bernard Tayong, Melchor Fernando is one of the three persons named by Accused Gerry Sumalpong, who helped or conspired one another in assaulting the two victims which means that accused Gerry Sumalpong knows Melchor Fernando and other perpetrators of the crime; Lastly, Melchor Fernando was positively identified by victim Mohammad Managuili as one of the four persons who attacked them.
[21]

The trial court also found the presence of treachery in the sudden and simultaneous attack against the victims who were unarmed and unsuspecting. It also believed that there was conspiracy among the accused. But, without any explanation, it found that evident premeditation aggravated the crime. Thus, it imposed upon both accusedappellants the penalty of death for the fatal stabbing of Arola Dilangalen and reclusion temporal maximum for the wounding of Mohammad Managuili, with damages. Hence, this appeal.[22]

Assignment of Errors In the appellants brief[23] dated January 3, 1997 and prepared jointly by their respective counsels,[24] the following alleged errors in the assailed Decision were assigned:

I. The lower court erred in totally crediting the identification made by the prosecution witness of the appellants as the perpetrators of the crime charged. II. The lower court erred in totally discrediting the defense of very strong alibi interposed by the appellants. III. The lower court erred in finding the appellants guilty of conspiracy; affidavit of prosecution witness PO1 Tayong is purely hearsay. IV. The lower court erred in not acquitting appellants on the ground that his guilt was not proved beyond reasonable doubt. V. The lower court erred in not finding that Appellant Melchor Fernando is entitled to mitigating circumstance of voluntary surrender. VI. The lower court erred in totally admitting in evidence the medical certificates issued by the physicians.
Simply stated, the issues raised by the appellants are the following: 1. Sufficiency and credibility of prosecution evidence 2. Strength of appellants defense of alibi 3. Presence of conspiracy 4. Appreciation of voluntary surrender in favor of Appellant Fernando Inasmuch as a review of decisions imposing death opens the whole record, we exercise judicial discretion in reevaluating the trial courts finding that evident premeditation aggravated the felony, upon which it based its imposition of the capital penalty.

This Courts Ruling The appeal is partly meritorious. After a thorough review of the evidence and the applicable law, we find that evident premeditation and voluntary surrender were wrongly appreciated by the trial court. While affirming the criminal culpability of both appellants, we remind trial judges to be more circumspect in justifying their conclusions particularly in offenses punishable by death. The judicial taking of life cannot be lightly treated. The duty of the courts is to discover the truth based on facts and solid evidence adduced by the parties; not on surmises, conjectures and dialectics. Conclusions must always be supported by the quantum of proof required by law -- proof beyond reasonable doubt in criminal offenses.

First Issue: Sufficiency and Credibility of Prosecution Evidence In the matter of examining real evidence and assessing the credibility of witnesses, the well-entrenched rule is that the findings of the trial courts deserve great weight and high respect, since they are in a better position than appellate tribunals in appreciating the same.[25] In People vs. Cayabyab,[26] this Court elaborated:

x x x [T]he issue on which witness is to be believed is one best addressed by a trial court rather than by an appellate tribunal. Having the advantage of directly observing witnesses, the trial judge is able to detect that sometimes thin line between fact and prevarication that will determine the guilt or innocence of the accused. That line may not be discernible from a mere reading of the impersonal record by the reviewing court. That record will not reveal those tell-tale signs that will affirm the truth or expose the contrivance, like 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. The record will not show if the eyes have darted in evasion or looked down in confession or gazed steadily with a serenity that has nothing to distort or conceal. The record will not show if tears were shed in anger, or in shame, or in remembered pain, or in feigned innocence. Only the judge trying the case can see all these and on the basis of his observations arrive at an informed and reasoned verdict. Thus, his factual findings are accorded high respect and are generally not disturbed by the appellate court unless found to be clearly arbitrary or unfounded. x x x
[27]

In any event, because death was imposed by the trial court, we waded through the entire records only to conclude that it correctly appreciated the main evidence (but not, we stress, that involving evident premeditation and voluntary surrender). Appellants primarily assail the credence given by the court a quo to their identification by the surviving victim, Mohammad Managuili. They aver instead that on the night in question, it was dark and Managuili supposedly saw the assailants only for the first time during said incident. They posit that in order to positively recognize any of the aggressors under limited visibility, the witness should be familiar with the latters facial features.[28] We find no merit in these contentions. The surviving victim positively and unequivocally pointed to Appellant Sumalpong as his assailant and to Appellant Fernando as one of those who attacked the deceased, Arola Dilangalen. We find no reason to doubt Managuilis testimony, since there was only a five-meter distance between him and Sumalpong who, with his group, was beside an illuminated mercury lamppost. We quote relevant portions of the surviving victims testimony:
Q A At what point of Notre Dame Avenue did you wait for a tricycle to bring you home? At the front of the 4J Pizza House.

Q A Q A Q A Q A Q A Q A Q A Q

For how long did it take you to wait for a tricycle? About a minute, sir. One minute. After waiting for tricycle to ride in going home for about one minute, what happened? Someone approached us, sir. Who approached you while waiting for tricycle in going home in front of 4J Pizza House? Four (4) persons, sir. What are these four persons who approaced [sic] you, male or female? Male, sir. Where did they come from? At the other side of the 4J Pizza House. Before these four men approached you, how far were they from you when you saw them? About five (5) meters, sir. Now, when these 4 men approached you, what did they do? They stabbed us, sir. You said there were four (4) men who approached you about 5 meters away in front of the 4J Pizza House, if these four men would be shown to you, would you be able to reidentify them? Yes, sir. Now right inside the courtroom, please inform the Honorable Court whether you could recognize any or all of the four men who approached you on that evening of January 12, 1994 if they are inside the courtroom? Yes, sir. Please point with your finger any or all of the four men if they are inside the courtroom. The two of them, sir.

A Q

A Q A

MR. ARUMPAC: Witness pointing to the accused who when asked their names answered Gerry Sumalpong and Melchor Fernando.

xxx
ATTY. DILANGALEN:

xxx

xxx

What about the other two, can you see them inside the courtroom? A Q They are not here, sir. You said that you were approached by these four men, what did they do when these four men which included these two accused when they approached you?

A Q A Q A

They stabbed us. Who stabbed you? That one, sir. You are referring to Gerry Sumalpong? Yes, sir.

xxx
Q A

xxx

xxx

Now, you said Gerry Sumalpong was with the three other men or boys, what did these three other men do on that evening to you and Arola Dilangalen? They stabbed Arola Dilangalen.

xxx
Q A Q A

xxx

xxx

How did you recognize Gerry Sumalpong and the other accused on that evening when they stabbed you? Because there was a light, sir. What kind of light was there at the time the accused stabbed you? A mercury post, sir.[29]

During his cross-examination, Managuili stood firm on his declarations:

ATTY. CEDEO: Mohammad Managuili, you did not see of course who stabbed really Arola Dilangalen at that evening? A I saw, sir.

COURT: Who are those you saw who stabbed him? A One of them is that one, Fernando.

COURT: Witness pointing to the accused. Proceed. ATTY. CEDEO: Is it not[,] Mohammad Managuili[,] that Melchor Fernando was only there as a companion but without holding a knife or without a weapon? A He had a knife, sir.

xxx
A I am sure, sir.

xxx

xxx

[Q] Are you sure that Melchor Fernando was holding a knife or only his companions?

Is it not true that the other two companions of Melchor Fernando were the ones who attacked Arola Dilangalen and not Melchor because Melchor was right behind on the other side? No, sir. The three of them attacked Arola.[30]

Neither did he falter when the trial court itself asked clarificatory questions. Rather, his additional declarations served to strengthen the credibility of his version of the incident:
COURT: At the time of the incident, did you see the face of Fernando and the other three companions? A Q A Q A Q A Yes, Your Honor. How did you see them? Because there was a light. Where were those four persons at that time you saw them? In front of the 4J Pizza House. On the other side of the road fronting the 4J Pizza House. Now, what were they doing at the time you saw them in front of the opposite side of the 4J Pizza House? They were standing near the electric post, Your Honor.

xxx
Q A Q A Q A Q A Q A Yes, You Honor. Did they attack you simultaneously? Yes, You Honor.

xxx

xxx

The four of them approached you and Arola Dilangalen?

Who approached first among the group of Gerry Sumalpong? The three persons, Your Honor. They attacked Arola Dilangalen? Yes, You Honor. And you are sure that Gerry Sumalpong was the one who attacked you? Yes, You Honor.[31]

Manifest in the attack employed by the offenders was treachery. There is treachery when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution without risk to himself arising from the defense which the offended party might make.[32] Two conditions must concur: (1) the means, method and form of execution employed gave the person attacked no opportunity to defend himself or to

retaliate; and (2) such means, method or form of execution was deliberately and consciously adopted by the accused.[33] From the testimony of Managuili who himself was one of the victims, he and his companion were waiting for a tricycle ride when the four accused, who were only five meters across the street, approached them. Without any warning or provocation whatsoever, Sumalpong suddenly stabbed Managuili in the chest, while the three others ganged up on Arola who immediately fell to the ground.[34] All the four accused were armed, while the two victims were not. Both victims, with nary an inkling of danger, had absolutely no chance to defend themselves, much less to retaliate. The attack was undisputably sudden and unexpected. The essence of treachery is the suddenness and unexpectedness of the assault without the slightest provocation on the part of the person attacked.[35] Clearly, in this case the onslaught was treacherous. Appellants also allege that SPO1 Tayongs testimony was evasive, wanting in candor and alacrity, and replete with I cannot recall answers when asked about certain material details of the incident. Again, appellants contentions are without merit. A police officer is not expected to remember all details of every incident he investigates. The material details that the defense tried to elicit from SPO1 Tayong referred to the identities of (1) the duty desk sergeant who informed him of the stabbing incident on the night of January 12, 1994; (2) the other investigators who proceeded to the scene of the crime upon receipt of the information; and (3) the waitresses at the 4J Pizza House from whom he learned the identities of the victims and their having been brought to the hospital. Obviously, these are not material to what actually transpired, who the culprits were, and the involvements of the suspects.[36] Appellants further impugn as hearsay the statements made by SPO1 Tayong in his affidavit. A certain Rolando Dumaldal supposedly informed SPO1 Tayong that he saw Joseph Lumunggo, Gerry Sumalpong, a certain Peryong and an unidentified person leaving the scene of the crime shortly after the stabbing incident, with Lumunggo hiding a knife in his waistline. Tayong also claimed that during the investigation of Appellant Sumalpong, the latter declared that he was buying sliced mango when he saw Joseph Lumunggo, Billy Laksinto and Melchor Fernando stabbing the two victims. Indeed, such declarations by the investigating police officer cannot be admitted in evidence against the appellants, for they are purely hearsay. Dumaldal should have been presented in court to testify on what he actually saw, and the defense given an opportunity to cross-examine him. As regards the alleged statement of Sumalpong imputing the crime to his three co-accused, it cannot be taken as an extrajudicial admission or confession, since he was under investigation when he supposedly made such statement, and it does not appear that he was assisted by counsel or that he waived the presence of one at the time.[37] Nonetheless, the conviction of both appellants does not rest on the testimony of SPO1 Tayong alone. Even without such evidence, appellants culpability is sufficiently proven by the clear and unequivocal testimony of the surviving victim, who was not shown to have been actuated by any ill motive.

The appellants also assail the admission of the death certificate issued by Dr. Zacarias Pabiona, municipal health officer, as evidence of the cause of death of Arola Dilangalen. According to Dr. Pabiona, he based his entry on Arolas cause of death (hemorrhage and antecedent multiple stab wounds) merely on the police report without seeing the victims body.[38] The death certificate, however, was offered by the prosecution only to prove the fact of Arolas death, and not the cause thereof. As regards the latter, it was sufficiently established by the prosecution that three of the accused, among them Appellant Fernando, simultaneously stabbed Arola who was thereafter brought to the emergency hospital but was declared dead on arrival. This unbroken chain of events leads us to no other conclusion than that Arolas death resulted from his stab wounds.[39] Lastly, appellants, in their Reply Brief, belatedly cite an initial flash report of the police who made a spot investigation a few minutes after the incident took place. They allege that a correct appreciation of this report would further cloud the testimony of the prosecutions sole eyewitness because of the discrepancies between the two. The report[40] adverted to, which has been part of the records of the trial court, was however not properly identified and offered as evidence. It is elementary that this Court, as a reviewing body, cannot rightly appreciate firsthand the genuineness of an unverified and unidentified document; much less, accord it evidentiary value. On the other hand, we find one contention of the appellants to be meritorious: they could not be convicted of frustrated murder for the injuries inflicted upon the surviving victim, because the prosecution failed to prove that his injuries would have caused his death if no timely medical assistance were rendered to him. Dr. Sibud, the attending physician, simply conducted a restoration and suturing of the wound, and the medical certificate showed that Managuili was confined at the hospital on January 12-14, 1994. No evidence was offered to establish that his stab wound (Right Ant. Axillary Line Non Penetrating)[41] was so serious as to have caused his death were it not for the timely medical assistance given him. Where the wound inflicted on the victim is not as severe as to cause his death, the offender not having performed all the acts of execution that would have brought it about, the crime is onlyattempted murder.[42]

Second Issue: Defense of Alibi Contending that the prosecution failed to prove their guilt beyond reasonable doubt and to overcome the constitutional presumption of innocence in their favor, appellants insist on their common defense of alibi. In the face of the clear and positive identification of the appellants by the surviving victim himself, alibi becomes unworthy of credence. No jurisprudence in criminal cases is more settled than that alibi is the weakest of all defenses, for which reason it should be rejected when the identity of the accused is sufficiently and positively established by credible eyewitnesses to the crime.[43] Time and again, we have also held that the defense of alibi can prosper only if the accused satisfactorily demonstrates the physical impossibility of his presence at the

scene of the crime or within its immediate vicinity when the incident happened.[44] For clarity, we will demonstrate why the aforesaid doctrines militate against both appellants. Inevitably inviting suspicion, to begin with, is Appellant Fernandos claim that he worked continuously from 7:00 a.m. until 10:00 p.m. on January 12, 1994 with only ten-minute breaks for meals. No ordinary human being can sustain any nonstop work; much less, mixing cement and cleaning molders continuously for fifteen hours in one day. Twenty-one-year-old Fernando did not exhibit superhuman stamina that would convince us of the truth of his claim. Besides, he was contradicted by his own employer who testified that, in making balusters, workers had to wait about four hours for the cement to dry up, during which interval Fernando would usually go home to sleep. Moreover, the shop was only a few minutes ride to the locus criminis. In addition, during the cross-examination of the surviving victim (Managuili), Fernandos counsel[45] tried to elicit from him the admission that Accused Fernando was merely in the company of the assailants but did not participate in the attack.[46] This line of defense runs counter to the alibi interposed by the appellant himself. And even if the appellants testimony was corroborated by his father, it does not become more plausible since it is supported merely by an immediate relative and not by disinterested, credible persons.[47] As regards Appellant Sumalpong, his claim that he was only studying in their house when the incident took place was not sufficiently corroborated by independent and credible persons. His father testified on direct examination that they went to sleep at ten oclock in the evening of January 12, 1994, but during cross-examination he said that he slept at eight oclock. Such fickle testimony is definitely not worthy of credence. If he did sleep at the latter time, he is still not competent to testify on his sons activities thereafter, considering that the stabbing incident reportedly occurred after 8 p.m. We therefore find Appellant Sumalpongs alibi undeserving of belief.

Third Issue: Conspiracy Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.[48] Evidence need not establish the actual agreement among the conspirators showing a preconceived plan or motive for the commission of the crime.[49] Proof of concerted action before, during and after the crime, which demonstrates their unity of design and objective, is sufficient.[50] When conspiracy is established, the act of one is the act of all regardless of the degree of participation of each.[51] A conclusion on conspiracy therefore depends greatly on factual findings. It is a legal aphorism that the findings of facts of a trial judge are entitled to great weight and generally should not be disturbed on appeal unless certain facts of substance and value were overlooked or misappreciated which, if considered, may affect the outcome of the case.[52] In the case at bar, we find no compelling reason to reverse the findings and conclusions of the trial court on the presence of conspiracy. From the acts of appellants, it appears that they had a single criminal design -- to kill or injure both Managuili and Dilangalen. Their overt acts point to the mutuality of their unlawful intent.

Fourth Issue: Voluntary Surrender For voluntary surrender to be appreciated as a mitigating circumstance, the following requisites must concur: (1) the offender had not been actually arrested; (2) the offender surrendered himself to a person in authority; and (3) the surrender was voluntary.[53] The claim of Appellant Fernando that he voluntarily surrendered to the barangay captain who turned him over to the police is belied by the testimonies of his own father and the barangay captain himself. Elpidio Fernando stated[54]in court that in the evening of February 1, 1994, about seven to eight armed persons came to their house to arrest his son Melchor. Although the latter was inside their house, Elpidio refused to present him even when the barangay captain arrived. On the other hand, Barangay Captain Vicente Catacata testified[55] that he first persuaded Appellant Melchors father prior to persuading Melchor himself on the morning of February 3, 1994 to surrender to his custody. He also guaranteed said accuseds safety if he surrendered to the police authorities. The above circumstances cannot be equated with spontaneous and voluntary surrender to a person in authority. The police had priorly tried to arrest Fernando, but he did not yield himself to them; instead, he implicitly allowed his father to conceal his presence. Then, the barangay captain came, and only with the assurance of safety did he submit himself to the former. His surrender, therefore, was not of his own knowing and unconditional accord as required by law. It has been held that if the only reason for the accuseds supposed surrender is to ensure his safety, his arrest being inevitable, the surrender is not spontaneous and, hence, not voluntary.[56] It is also settled that voluntary surrender cannot be appreciated where the evidence adduced shows that it was the authorities who came looking for the accused.[57]

Fifth Issue: Evident Premeditation The court a quo, after discussing the attendance of treachery, merely enumerated the requisites of evident premeditation citing People vs. Muyano,[58] then proceeded to explain its finding of conspiracy. No ratiocination was made on how it came to appreciate premeditacion conocida under the circumstances of the case. An examination of the records indeed reveals the lack of evidence showing its presence. For evident premeditation to aggravate a crime, there must be proof, as clear as the evidence of the crime itself, of the following elements: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that he clung to his determination; and (3) sufficient lapse of time, between determination and execution, to allow himself to reflect upon the consequences of his act.[59] The solicitor general correctly observed that these requisites were not duly established by the prosecution. [60] Absent any clear and convincing evidence establishing the presence of evident premeditation or other aggravating or mitigating circumstances, the penalty imposable

for the murder of Arola Dilangalen is reclusion perpetua. As aptly stated by the solicitor general:

Article 63, paragraph 2 of the Revised Penal Code provides that when there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied. Under Section 6 of R.A. 7659, the penalty for [m]urder is reclusion perpetua to death. Hence, the lesser penalty of Reclusion Perpetua should be applied on appellants for the crime of [m]urder.
[61]

The penalty for the attempt on the life of Mohammad Managuili, on the other hand, is prision mayor in its medium period.[62] Applying the Indeterminate Sentence Law, the penalty imposable against appellants is four (4) years and two (2) months of prision correccional medium, as minimum, to ten (10) years of prision mayor medium, as maximum.

Damages The trial court ordered the accused-appellants to indemnify the heirs of Arola Dilangalen jointly and severally, in the amount of [o]ne hundred thousand pesos (P100,000.00) as and for exemplary damages and to pay x x x victim [Mohammad Managuili], jointly and severally, the amount of [f]ifty thousand pesos (P50,000.00) as actual and moral damages. Time and again, we have reminded lower courts that indemnity is different from other damages. Civil indemnity is automatically granted to the offended party or his/her heirs in case of the formers death, without need of further evidence other than the fact of the commission of the crime and the appellants culpability therefor.[63] Actual or moral damages may be additionally granted upon sufficient proof that the private complainant is legally entitled thereto. Exemplary damages may also be awarded if the crime was committed with one or more aggravating circumstances duly proven.[64] In accordance with prevailing jurisprudence, civil indemnity in the amount of P50,000 should be awarded to the heirs of Arola Dilangalen. Said victims mother also satisfactorily established the familys moral sufferings due to the violent death of her son. We find the grant of P25,000 as and for moral damages justified. Her claim for actual damages in the amount of P70,000 is, however, not backed by evidence like official receipts. The other victim, Mohammad Managuili, lengthily testified on the incidents before, during and after the assault on him and Arola, but he failed to offer any proof of the actual damages and/or moral sufferings he may have incurred as a result thereof. There being no evidence to serve as our basis, we cannot determine whether he is entitled to any damages and, if so, how much. Thus, we cannot award him any.

WHEREFORE, premises considered, the assailed hereby MODIFIED. Appellants Gerry Sumalpong and Melchor found GUILTY of:

Decision Fernando

is are

1. murder for which they are each SENTENCED to reclusion perpetua and ORDERED to pay jointly and severally the heirs of Arola Dilangalen civil indemnity in the amount of P50,000 and moral damages of P25,000; and 2. attempted murder for which they are each SENTENCED to four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum. Both sentences shall be served successively. Costs against appellants. SO ORDERED.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-45053 October 19, 1936

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. CIRIACO PIRING, ET AL., defendants. CIRIACO PIRING, appellant. Pedro Abad Santos for appellant. Acting Solicitor-General Melencio for appellee.

DIAZ, J.: At midnight on October 9, 1935, the spouses Leon or Leonardo Nacpil and Marcelina Mercado were attacked and killed, and their son Jose Nacpil, 13 years of age, seriously wounded, while they were sleeping in their own house where the they lived alone, in Maunani, within the barrio of Ugut in the municipality of Porac, Province of Pampanga, the house having later burned by the person or persons who committed the attack. It having resulted from the first investigations conducted by the authorities and their agents that Ciriaco Piring, Leoncio Piring, Felix Capili and Flaviano Capili committed said acts, they were arrested and charged with double murder and serious physical injuries in two separate cases, it having been alleged in the information for double murder filed against them that they committed the crime with the aggravating circumstances of uninhabited place, disguise, dwelling, nighttime, cruelty and aid of armed persons. Upon their petition they were granted two separate trials in the case for double murder, one of Felix Capili and

Flaviano Capili, and another for Ciriaco Piring. For lack of evidence, everybody was acquitted except Ciriaco Piring who was found guilty of said crime by the Court of First Instance of Pampanga which sentenced him to reclusion perpetua, having taken into consideration the mitigating circumstances of lack of instruction in his favor, in spite of having stated that the aggravating circumstances of disguise, dwelling and cruelty, in addition to the qualifying circumstance of treachery, were also present in the commission of the crime. Ciriaco Piring appealed from the sentence imposing upon him the penalty in question and that of indemnity in the sum of P2,000 to the heirs of the deceased spouses, alleging that the lower court erred: (1) In giving credit to the testimony of the minor Jose Nacpil; (2) in admitting Exhibit D-1-A, which is his confession made before the justice of the peace, as evidence against him; and (3) in sentencing him to the above-stated penalty. It has been proven by the prosecution and not disputed by the defense, that at midnight on October 9, 1935, a man whose face was covered by a handkerchief climbed into the house of Leon or Leonardo Nacpil and Marcelina Mercado, attacked them and their son Jose Nacpil with a bolo, while they were asleep, and later set fire to their house in order to burn it, as it in fact, burned. Leon or Leonardo Nacpil and Marcelina Mercado died instantly of the wounds received by them and their bodies were found burned and charred on the following day. It is also proven by the prosecution and not disputed by the defense that in the barrio where the deceased lived, there were some people who considered them witches; that one month or some weeks prior to the night in question, the accused Leoncio Piring and others went to the house of the deceased Leon or Leonardo Nacpil to explain why he had been circulating the story that they had robbed him of a plow; and as he told them, after a slight altercation, that he really suspected Leoncio Piring, Leoncio, together with his brother Ciriaco Piring and one De la Pea, challenged him to a fight, surrounding him later, holding him by the hands in order to take away his bolo, and wounding him in the little finger. The boy Jose Nacpil testified that on the night in question he was awakened by cries of his father; that he saw a man, whose face was covered by a handkerchief, attacked his father and mother with a bolo; that said man forthwith approached him saying "there is the boy", as if he were addressing somebody; that he was later struck in the face with a bolo, which rendered him unconscious; that when he regained consciousness, their house was already on fire; and had it not been for a voice that told him to "come down right away", he would not have gotten up cause he had no strength to move. He further testified that the man whose face was covered by a handkerchief, who attacked his parents, was no other than the appellant; that he recognized the man not only by his voice with which he was already familiar, according to him, but also by the clothes he wore, which were the same as those worn by him in the morning of the following day, when the constabulary took him from his house for investigation. The defense contends that the testimony of the boy Jose Nacpil should be disregarded because it is unworthy of credit, because his version of the incident, which he claims to have witnessed, is improbable, being based upon a miracle, and because miracles are unbelievable. In addition to the foregoing, said boy really testified that it was the child Jesus who, after he had jumped from their house to escape from the fire, led him to that of his sister Josefa Nacpil about a kilometer away. Be it a miracle or a hallucination that gave Jose Nacpil strength to arrive at his sister's house on the night in question, after

he had already been wounded, the truth is that the appellant himself, in a confession made by him before the justice of the peace Ramon Miranda, on November 7, 1935, (Exhibit D-1A) which confession he did not even attempt to contradict because, on the contrary, his counsel stated in his brief that had the appellant testified at the trial, the only thing he could have stated would be the same as that contained in his confession admitted that upon the invitation of his uncle Felix Capili, he accompanied the latter, together with Flaviano Capili and Leoncio Piring, to the house of the deceased for the purpose of killing them for being witches, although to lessen his liability he stated that at first he had refused to accompany him, telling that he did not want to take a life; that he finally decided to follow his uncle because the latter threatened to kill him if he did not do so; and that, at any rate, he did not directly participate in the commission of the crimes imputed to him and his coaccused, because the only one who went up the house to commit them and later set the house on fire was Felix Capili. Therefore, the testimony of the boy Jose Nacpil is neither unworthy of credit, nor improbable, particularly, if it is taken into consideration that the clothes worn by the appellant in the morning after the night of the crime were similar if not the same as those which the boy saw were worn by the man who attacked him and his parents. If to this is added the fact that the voice which uttered the words "there is the boy", referring to Jose Nacpil before he was wounded, belonged to the appellant himself, according to said witness there would be no doubt that said appellant directly participated in the commission of the murder of Leon or Leonardo Nacpil and that of Marcelina Mercado. It is not strange that the appellant has not admitted not having personally committed the two crimes in question before justice of the peace Ramon Miranda, because, ordinarily, it is the natural tendency of every transgressor, with very rare exemptions, to acquit himself of all liability while he can do so, or at least mitigate it in the eyes of the law and of his fellowmen. Let it not be said that as the appellant's admission contained in Exhibit D-1-A is based upon the fact therein stated that he was threatened with death by his uncle Felix Capili, instead of prejudicing him, greatly favors him, for it supplies him with evidence exempting him from all responsibility inasmuch as evidence of such nature, if admitted, must be admitted and accepted in its entirety, because it does not appear that the threat has been continuous and he had no opportunity to evade it. It appears, however, that he had said opportunity because Felix Capili had left him and his companions Flaviano Capili and Leoncio Piring alone, when Felix Capili went up to the house of the deceased. The part of said document proving this reads: . . . my uncle Felix Capili, his son Flaviano Capili, my younger brother Leoncio Piring and I were on our way to the house of the spouses Leon Nacpil and Marcelina Mercado, when we reached a place overgrown with cogon near Leon Nacpil's house, my uncle Felix Capili instructed us to stay there because it was too early; that at about 12 o'clock at night, according to his calculation, he brought us to the house of Leon Nacpil and Marcelina Mercado. Upon arriving there my, uncle Felix Capili went up to the house. He wanted us to follow him but we three did not go up; we remained downstairs. The foregoing confession of the appellant disproves everything he may say about his having been threatened to death by Felix Capili and his not having conspired with the latter and the other two persons above-stated.
lwphi1.nt

On the other hand, the rule that a confession should be admitted and considered in its entirety, whether a part thereof be favorable or unfavorable to the accused, stated in general terms in the case of United States vs. Alano (32 Phil., 381), is not absolute as this court has already held in People vs. Layos (60 Phil., 760). The reason for this is that there may be instances, and in fact there are some instances, where only a part of confessions or admissions of the nature of Exhibit D-1-A is admissible, rejecting the rest by reason of the improbability of the facts or statements contained therein, or because there are other reasons or facts showing that they are false thus making them unworthy of credit. In the present case, the testimony of Jose Nacpil, the clothes worn by the appellant on the morning of his arrest, his antecedents with the deceased Leon or Leonardo Nacpil, and the belief of some people of his barrio that Leon or Leonardo Nacpil and his wife were witches, disprove and destroy everything favorable to the appellant contained in his said confession, Exhibit D-1-A. In view of the foregoing, it seems clear that the firs two errors attributed to the lower court by the appellant are unfounded, and we are of the opinion that said appellant should be found guilty not of only one crime of double murder but of two crimes of murder: the one committed on the person of Leon or Leonardo Nacpil and that committed on the person of Marcelina Mercado. Treachery should be considered as a qualifying circumstance of said two crimes, and as aggravating circumstances those of disguise, as the fact that one covers his face with a handkerchief constitutes disguise because he thereby avoids recognition; and dwelling, because said were committed in the very house where the deceased lined. The only mitigating circumstance to be taken into consideration in favor of the appellant is his lack of instruction. The circumstances of nighttime, uninhabited place, cruelty and aid of armed persons cannot be taken into consideration as aggravating circumstances because the first, or nighttime, was necessarily included in that of treachery; that of uninhabited place, because it has not been proven that there were no houses near the house of the deceased; that of cruelty, because the fire, which is the fact in which said circumstance is made to consist, took place after the victims were already dead, the appellant not having taken advantage of said means to deliberately augment the seriousness of the crime; and that of aid of armed persons, because the appellant as well as those who cooperated with him in the commission of the crimes in question acted under the same plan for the same purpose. Were it not for the fact that there has been no unanimity in imposing the death penalty upon the appellant, this penalty should be the one imposed upon him, because by compensating the aggravating circumstance of disguise with the circumstance of lack of instruction there still remains the aggravating circumstance of dwelling which, by itself alone, is sufficient to warrant the imposition of said penalty. However, as there has been no unanimity in the decision, the penalty next lower to death, which is reclusion perpetua in each case, that is for the murder of Leon or Leonardo Nacpil and for the murder of Marcelina Mercado, should be imposed upon him, by virtue of the provisions of section 133 of the Revised Administrative Code, as amended by section 2 of Commonwealth Act No. 3. Wherefore, the appealed judgment is modified, sentencing the appellant to reclusion perpetua for the murder of Leon or Leonardo Nacpil, and to another penalty of the same nature for the murder of Marcelina Mercado; and in each case to indemnify the heirs of

each of the deceased in the sum of P1,000. The judgment in question is affirmed in all other respects, except in regard to the pronouncement thereof relative to the crime of serious physical injuries committed on the person of Jose Nacpil, which is left open for the decision of the Court of Appeals, with the costs of this instance to the appellant. So ordered.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 46068 September 23, 1939

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. EUSTAQUIO CAROZ, ET AL. Defendants-Appellant. LAUREL, J.:
ch an rob les virt u al l aw lib rary

This is an appeal from a decision of the Court of First Instance of Davao convicting the appellants of murder, with the aggravating circumstance of abuse of superior strength and sentencing each of them to suffer reclusion perpetua, with the accessory penalties of the law, to indemnify, jointly and severally, the heirs of Maximo Omboy in the sum of P1,000 and to pay the costs.chanroblesvirtuallawlibrary
ch an rob les virt u al l aw lib rary

Maximo Omboy (deceased) and Eustaquio Caroz, one of the defendants herein, had long been engrossed in dispute concerning a certain parcel of public land in the sitio of Mabo, barrio of Kingking, municipality of Pantukan, Province of Davao. Omboy filed a sales application therefor. The Director of Lands, however, approved Omboy's application in 1931 and rejected the opposition and sales application of Caroz. On February 18, 1937, Omboy secured the issuance in his favor of a homestead patent.chanroblesvirtuallawlibrary
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The relationship between the two claimants became more bitter because of the alleged frequent incursions of Eustaquio Caroz and the other defendants herein upon the property of Omboy. On February 8, 1937, Maximo Omboy charged Eustaquio Caroz, together with Bernabe and Panfilo Caroz and Enrique Awing, with robbery of 17 piculs of copra from his house. Again, on June 18, 1937, Omboy accused Eustaquio Caroz, Panfilo Caroz and Felix Sangeunza of qualified theft of 929 coconuts. And again, on July 17, 1937, Omboy filed another charge against Eustaquio and Panfilo Caroz and Felix Sanguenza for qualified trespass of dwelling.chanroblesvirtuallawlibrary
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With these antecedent circumstances, it is easy, in the language of the trial court, to understand the natural sequence of events which culminated in the unfortunate occurrence of July 28, 1937.chanroblesvirtuallawlibrary
ch an rob l es virt u al l aw lib rary

In the afternoon of July 28, 1937, the deceased Maximo Omboy, together with his wife and laborer Agapito Panerio, went to the land to carry away the coconuts which they had gathered and piled up in the morning. There they found the appellants, sitting near the pile of nuts, all armed with bolos, except Eustaquio Caroz who was armed with a scythe. Nevertheless, Omboy nonchalantly proceeded to gather the coconuts, but Eustaquio Caroz faced him and asked him why he was gathering them. Omboy answered that they belonged to him, whereupon the other defendants surrounded him. While Omboy was engaged in

conversation with Eustaquio Caroz, Bernabe Caroz dealt him a blow with a bolo on the left shoulder, and forthwith all the other defendants attacked Omboy with their weapons. Hemmed on every side and wounded, Omboy nevertheless managed to unsheathe his bolo and defended himself and succeeded in wounding Eustaquio and Panfilo Caroz. He nevertheless succumbed in the unequal combat, a fallen victim with twenty-two wounds, six of which were fatal.chanroblesvirtuallawlibrary
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Alberta de Omboy and Agapito Panerio who witnessed the full enactment of the crime were afterwards pursued by Felix Sanguenza and Bernabe Caroz, but they managed to escape by hiding in a nearby bush. These two witnesses for the prosecution testified to the occurrence in the manner above narrated and the trial court gave full credence to their vision.chanroblesvirtuallawlibrary
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Defense counsel assigns several errors committed by the trial court. In substance, it is here urged that the defense version of the incident should be accepted as the true one.chanroblesvirtuallawlibrary
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Eustaquio Caroz testified in the lower court that while he and his son Panfilo were occupied in putting the coconuts in a sack, the deceased Omboy, with his wife and Agapito Panerio, came and asked him why he was appropriating the fruits to which he answered that they were his; that thereupon Omboy dealt with a blow with a bolo on the left leg on account of which he fell to the ground; that Omboy then attacked his son Panfilo, hitting him on the head but that the latter was able to wrest the bolo from his assailant; and that while the two were engaged in a struggle he (Eustaquio) was able to retire to the house of his cousin, Bernabe Caroz.chanroblesvirtuallawlibrary
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Panfilo Caroz declared that after Omboy had wounded his father the former then gave him a blow on the head, but that having secured hold of the wrist of Omboy he was able to wrest him the bolo; that with bolo in hand he turned to flee, but Omboy pursued him and overtook and struck him with a piece of wood; and that in self-defense he used the bolo and inflicted upon Omboy the injuries which caused his death.chanroblesvirtuallawlibrary
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As for Bernabe Caroz, it is averred that at the time of the fight he was taking a "siesta" in his house some two hundred meters away from the scene of the crime and woke up only after the arrival of Eustaquio and Panfilo Caroz who were both wounded, and that immediately thereafter he asked Rufo Roxas to notify the authorities. Felix Sanguenza stated that he had fever and was then confined in bed in the house of Eustaquio Caroz, while Enrique Awing averred that he was working in a field belonging to Bernabe Caroz around three hundred meters distant from the place of the incident.chanroblesvirtuallawlibrary

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Defense version of the crime diametrically opposed to that of the prosecution. We cannot, however, accept this version of the defense. It should be observed that Panfilo Caroz sustained four wounds, the most serious of which was an incision on the frontal and parietal region of the head with a corresponding fracture of the cranium. According to Dr. Manuel Babao of the Public Hospital of Davao who was presented as witness for the defense, this wound produced a partial paralysis of the face and deprived him of the power of speech for three days, and as to the fracture of the cranium this produced instant loss of consciousness. Under the circumstances, it was not likely that, as testified by him, he was able to get hold of the wrist of his alleged assailant, wrest the bolo from him, run and afterwards defend himself and kill Omboy - a man whom he himself admitted was much bigger and stronger than he. Eustaquio Caroz, on the other hand, sustained a wound on the left leg which the trial judge observed to be "completamente transversal, de modo que, si

se trazara una linea imaginaria paralela a la pierna, se formaria con aquella, un angulo recto" (p. 6, dec; p. 102, rec.). Said transverse would could have been produced only by a person dealing the blow from a position at the level or at the height of the knee of Eustaquio, which fact supports the theory of the prosecution that Omboy defended himself when he was already lying down with his bolo which he was able to unsheathe before falling. If, as Eustaquio Caroz avers, he had been wounded by the deceased while the latter was standing by his left side, the natural and obvious direction of the wound would have been oblique and not transverse. Likewise, the other wounds sustained by Panfilo Caroz on the left forearm and on the left leg, which were all incised wounds and consequently could have been caused only by a sharp cutting instrument, must have been inflicted by Omboy while already lying on the ground defending himself with his bolo. It should also be observed that the deceased Maximo Omboy sustained twenty-two wounds all over his body. It is not explained by the defense how, if Omboy was killed in a struggle with the defendant Panfilo Caroz alone, so many wounds were inflicted upon Omboy.chanroblesvirtuallawlibrary
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With regards to the defense of alibi presented by Bernabe Caroz, Enrique Awing and Felix Sanguenza, we find it to be without merit. It appears that the house of Bernabe Caroz was only five hundred meters and that the plantation where Enrique Awing was alleged to be working was only three hundred meters away from the scene of the crime. It cannot, therefore, be said that it was impossible for both Bernabe Caroz and Enrique Awing to have gone to said places after their participation in the crime. (Klein vs. People, 113 Ill., 596, cited in U.S. vs. Oxiles, 29, Phil., 587, 593.)
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The alleged sickness of Felix Sanguenza was not of such gravity as to have made it impossible for him to participate in the perpetration of the crime, because he could walk, and as a matter of fact did help in carrying Eustaquio and Panfilo Caroz to the municipal building, a distance of about one and one-half kilometers (pp. 127, 194, t.s.n.; videPeople vs. Limbo and Limbo, 49 Phil., 94).chanroblesvirtuallawlibrary
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The testimony of the ex-policeman Wakan that in the afternoon of the occurrence of the crime, Alberta de Omboy had told him that it was only Eustaquio and Panfilo Caroz who attacked her husband is not worthy of credence not only because of disavowal of Alberta herself in the trial (p. 200, t.s.n.) but also because the chief of police Albutra testified that Alberta could not be investigated that afternoon because he was crying over the death of her husband (p. 193, t.s.n.).chanroblesvirtuallawlibrary
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Alibis cannot stand and prevail over clear and convincing affirmations of credible witnesses. (People vs. De Asis, 61 Phil., 384, citing People vs. Cabantug, 49 Phil., 482, 484-486; People vs. Palamos, 49 Phil., 601, 604, 605; People vs.Medina, 59 Phil., 330; U.S. vs. Garcia, 26 Phil., 289; People vs. Cinco, 37 Off. Gaz., 2740.)
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The evidence for the prosecution, considered in the light of surrounding circumstances, point conclusively to the guilt of the appellants. We, however, find the appellants herein guilty of murder with abuse of superior strength not as an aggravating circumstance. We do no find the presence of treachery in the commission of the offense. The deceased was able to unsheathe his bolo and did not offer a defense to the risk of his aggressors in consequence of which two of them were wounded. There was struggle and it was because of the overwhelming onslaught upon the victim that he finally succumbed. The number of the aggressors here point to the attending circumstance of superior force, not treachery. (U.S. vs. Baagale, 24 Phil., 69.)
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In view of the foregoing, we find the defendants-appellants guilty of murder as qualified by abuse of superior strength as this crime is defined and punished in article 248 of the Revised Penal Code. With the modification indicated, the judgment of the lower court sentencing each of the appellants to reclusion perpetua, with the accessory penalties of the law, to indemnify, jointly and severally the heirs of Maximo Omboy in the sum of P1,000, and to pay the costs, is affirmed. So ordered

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. Nos. 82729-32 June 15, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO VERCHEZ Y BALANE, ROMEO ALDAVE Y TATAD, VIRGILIO BALANE Y ZAPANTA, ALFREDO MAMUNTAG Y CRUZ, HECTOR MAMUNTAG Y ZUNIGA, & GILBERT ANG Y TAN, accused. ROLANDO VERCHEZ y BALANE and ROMEO ALDAVE y TATAD, accused-appellants. The Solicitor General for plaintiff-appellee. Arturo de Leon for accused-appellants. Ciriaco S. Cruz & Florencio Alvarez for Rolando Verchez.

QUIASON, J.: This is an appeal from the Decision of the Regional Trial Court, Branch 19, Bacoor, Cavite in Criminal Cases Nos. B-85-213 to B-85-216. We affirm with modification the decision of the Regional Trial Court. I The Information in Criminal Case No. B-85-213, for murder reads as follows: The undersigned Assistant Provincial Fiscal accuses ROLANDO VERCHEZ Y BALANE, ROMEO ALDAVE Y TATAD, VIRGILIO BALANE Y ZAPANTA, ALFREDO MAMUNTAG Y CRUZ, HECTOR MAMUNTAG Y ZUNIGA and GILBERT ANG Y TAN of the crime of Murder, committed as follows:

That on or about the 15th day of August, 1985, in the Municipality of Bacoor, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, acting jointly and mutually aiding each other, with intent to kill with treachery and evident premeditation, armed with assorted firearms, did, then and there, willfully, unlawfully and feloniously attack, assault and fire upon a group of PC/INP soldiers, hitting Sgt. Monico Norcio, on different parts of his body causing his instantaneous death, to the damage and prejudice of his family (Rollo, p. 45). The information in Criminal Case No. B-85-214 for frustrated murder, reads as follows: The undersigned Assistant Provincial Fiscal accuses ROLANDO VERCHEZ Y BALANE, ROMEO ALDAVE Y TATAD, VIRGILIO BALANE Y ZAPANTA, ALFREDO MAMUNTAG Y ZUNIGA AND GILBERT ANG Y TAN of the crime of FRUSTRATED MURDER, committed as follows: That on or about the 15th day of August, 1985, in the Municipality of Bacoor, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, acting jointly and mutually aiding each other, with intent to kill, with treachery and evident premeditation, armed with assorted firearms, did then and there, willfully, unlawfully, and feloniously attack, assault and fire upon a group of PC/INP soldiers, hitting P/Cpl. David Noora, on different parts of his body, accused having performed all the acts of execution which would produce the crime of MURDER as a consequence but which did not produce it by reason of causes independent of his will, that is due to the able and timely medical assistance rendered to him which prevented his death, to the damage and prejudice of said P/Cpl. David Noora (Rollo, p. 44). The Information in Criminal Case No. B-85-215, for frustrated murder, reads as follows: The undersigned Assistant Provincial Fiscal accuses ROLANDO VERCHEZ Y BALANE, ROMEO ALDAVE Y TATAD, VIRGILIO BALANE Y ZAPANTA, ALFREDO MAMUNTAG Y CRUZ, HECTOR MAMUNTAG Y ZUNIGA AND GILBERT ANG Y TAN of the crime of FRUSTRATED MURDER, committed as follows: That on or about the 15th day of August, 1985, in the Municipality of Bacoor, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, acting jointly and mutually aiding each other, with intent to kill, with treachery and evident premeditation, armed with assorted firearms, did, then and there, willfully, unlawfully and feloniously attack, assault and fire upon a group of PC/INP soldiers, hitting PFC Wilfredo Pagsanjan, on different parts of his body, accused having performed all the acts of execution which would produce the crime of MURDER as a consequence but which did not produce it by reason of causes independent of his will, that is due to the able and timely medical

assistance rendered to him which prevented his death, to the damage and prejudice of said PFC Wilfredo Pagsanjan (Rollo, pp. 44-45). The Information in Criminal Case No. 85-216, for illegal possession of firearms and ammunitions, reads as follows: The undersigned Assistant Provincial Fiscal accuses ROLANDO VERCHEZ Y BALANE, ROMEO ALDAVE Y TATAD, VIRGILIO BALANE Y ZAPANTA, ALFREDO MAMUNTAG Y CRUZ, HECTOR MAMUNTAG Y ZUNIGA AND GILBERT ANG Y TAN of the crime of ILLEGAL POSSESSION OF FIREARMS AND AMMUNITIONS, committed as follows: That on or about the 15th day of August, 1985, in the Municipality of Bacoor, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, acting jointly and mutually helping each other, did, then and there, willfully, and unlawfully and feloniously have in their possession, custody and control the following firearms to wit: 1. One (1) Armalite Rifle M16 with SN-041868 2. One (1) Baby Armalite Rifle M16 with SN-123658 3. One (1) Cal. 45 Pistol Remington with SN-2228779 4. One (1) Revolver Cal. 38 Remington with defaced serial number 5. One (1) Shotgun CA12 Squire Bingham with defaced serial number without first securing and obtaining the necessary licenses and permits from competent authority, to the damage and prejudice of the government. A shoot-out between elements of the Special Operations Group of the Philippine Constabulary and suspected bank robbers on August 15, 1985 in Bacoor, Cavite, resulted to the death of a police officer and injuries to two other officers (Rollo, pp. 45-46). Upon arraignment, all the accused pleaded not guilty to the crimes charged. Trial then ensued. The trial court rendered a decision on December 28, 1987, disposing as follows: WHEREFORE, foregoing considered, the Court finds: 1. In Crim. Case No. B-85-213, accused ROLANDO VERCHEZ and ROMEO ALDAVE, beyond reasonable doubt GUILTY of the crime of MURDER for the death of Sgt. Monico Norcio and after considering the aggravating circumstance in disregard of the respect due the offended party on account of his rank hereby sentences said accused to a penalty of reclusion

perpetua and to indemnify the heirs of Sgt. Monico Norcio in the amount of Thirty Thousand (P30,000.00) Pesos, moral damages of Ten Thousand (P10,000.00) Pesos and exemplary damages of Five Thousand (P5,000.00) Pesos; 2. In Crim. Case No. B-85-214, accused ROLANDO VERCHEZ and ROMEO ALDAVE, beyond reasonable doubt GUILTY of the crime of FRUSTRATED MURDER and after considering the aggravating circumstance in disregard of the respect due the offended party on account of his rank, hereby sentences said accused to a penalty ranging from 8 years of prision mayor as minimum to 14 years, 10 months and 21 days of reclusion temporal as maximum; 3. In Criminal Case No. B-85-216, accused ROLANDO VERCHEZ and ROMEO ALDAVE beyond reasonable doubt GUILTY of VIOLATION of SECTION 1 OF PRESIDENTIAL DECREE NO. 1866 resulting to Murder and hereby sentences said accused to suffer a penalty of reclusion perpetua; 4. In Criminal Case No. B-85-215, accused ROLANDO VERCHEZ and ROMEO ALDAVE are ordered ACQUITTED; 5. Accused VIRGILIO BALANE, HECTOR MAMUNTAG and ALFREDO MAMUNTAG in Crim. Cases Nos. B-85-213 (Murder); B-85-214 and 215 (Frustrated Murder) and B-85-216 for Illegal Possession of Firearms are ordered ACQUITTED of the charge. Accused VERCHEZ and ALDAVE are ordered to pay the proportionate cost. The promulgation of judgment of the charge against GILBERT ANG considering his absence today, notice duly served personally by the process server of this Court and on January 29, 1988 is ordered cancelled and to be included in the calendar of the Court soon (sic) upon his arrest or when he submits to the jurisdiction of the Court. The firearms involved are ordered confiscated in favor of the government and to be disposed of in accordance with law. The car (Toyota) confiscated from accused Romeo Balane (sic) is ordered returned to the lawful owner (Rollo, pp. 84-85). Defendants Rolando Verchez and Romero Aldave interposed the instant appeal, assailing the trial courts decision in Criminal Cases Nos. B-85-213 (Murder), B-85-214 (Frustrated Murder) and B-85-216 (Violation of P.D. 1866) (Rollo, pp. 165-187, 217-304). II On August 15, 1985, Capt. Raul Castaneda and Lt. Marcelo Garbo of the Special Operations Group (SOG) of the Central Organized Crime Task Force of the Philippine Constabulary/Integrated National Police (PC/INP) led a team of government agents in conducting a surveillance operation on a house reported to be the hideout of a gang of

suspected bank robbers at Queen's Row Subdivision, Barangay Molino, Bacoor, Cavite. When a blue Toyota car came out of the subdivision, the government agents stopped it and introduced themselves to the driver of the car as police officers. Virgilio Balane, the driver, identified himself as a member of the PC. Balane was prevailed upon into accompanying the government agents to the house where his companions were staying (TSN, February 12, 1986, p. 4). The government agents, together with Balane, then proceeded to the house in four cars. In the first car were Sgts. Sangel and Monico Norcio followed by the car driven by Lt. Marcelo Garbo. The third car was driven by Capt. Castaneda while the fourth car was occupied by Sgt. Gana, Cpl. David Noora and Balane. When the first car approached the house, the lawmen were met by a heavy volley of gunfire. The police disembarked from their vehicles and after seeking cover, shouted to the occupants of the house that they were members of the PC. The occupants of the house responded with another barrage of bullets. As the government agents returned fire, a fire fight ensued. Three of the lawmen were hit. Sgt. Norcio died on the spot, while Cpl. Noora and Pfc. Wilfredo Pagsanjan sustained injuries but survived. Lt. Garbo sought reinforcement from the Bacoor Police Department upon instructions of Capt. Castaneda. He returned with about ten lawmen, who were deployed around the hideout. The fire fight resumed. With Balane in tow, Capt. Castaneda then approached the house, and negotiated for the surrender of its occupants. The men inside the house eventually surrendered, throwing their firearms outside the gate (TSN, January 14, 1986, p. 6). They were later identified as Rolando Verchez, Romeo Aldave, Alfredo Mamuntag, Hector Mamuntag and Gilbert Ang. Confiscated from them were one (1) baby Armalite rifle (Serial No. 123658), one (1) Armalite rifle (Serial No. 041868), one (1) cal. 45 Remington Pistol (Serial No. 222879) with ammunition, one (1) revolver, cal. .38 Squire Bingham (with defaced serial number) and empty shells of a .38 caliber pistol, one (1) shotgun 12 gauge (with defaced serial number) and five cartons of M-16 ammunitions. The police, likewise, recovered 114 empty shells of Armalite rifle bullets. The accused were brought to the SOG headquarters at Camp Crame, Quezon City for investigation. With the assistance of Atty. Leopoldo de la Rosa, they executed their respective sworn statements (TSN, March 21, 1986, pp. 4-5). Verchez, Aldave and Balane admitted being involved in several bank heists. They, likewise, admitted that Verchez fired the first shot at the policemen, which triggered the gun battle (Exhs. "J" - "L"). All of them were then subjected to paraffin tests, the results of which (Exh. "P") showed Balane, Aldave and Verchez to be positive for nitrates while there were no traces of nitrates found from Ang, Alfredo and Hector Mamuntag. The Firearms and Explosives Unit of the PC issued a certification (Exh. "F") to the effect that the confiscated firearms were unregistered and unlicensed. The firearms were likewise submitted to the PC Crime Laboratory for ballistics examination. The report of the examination concluded that: xxx xxx xxx 1. The .223 cal. fired cartridge cases marked "EM-1" to "EM-73" were fired from the above-mentioned .223 cal. Armalite Rifle with Serial No. 041868,

while those marked "EM-79" to "EM-114" were fired from .223 cal. Armalite Rifle with Serial No. RP-123658. 2. The .45 cal. fired cartridge cases marked "EM-1" to "EM-5" were fired from the above-mentioned .45 cal. Remington Rand Pistol with Serial No. 2228779 (Rollo, p. 334). Dr. Desiderio Moraleda of the PC Crime Laboratory, who conducted an autopsy on the cadaver of Sgt. Norcio, found the latter's cause of death as "cardio-respiratory arrest due to shock and hemorrhage as a result of gunshot wound of the trunk" (Exh. "W"). III According to the defense, Verchez invited Balane on August 15, 1985 to visit his brother, who was then living in Queen's Row Subdivision, Bacoor, Cavite. On their way, the two chanced upon Aldave, a "compadre" of Verchez' brother, who joined them. They arrived at their destination at about 2:30 P.M. but found that Verchez' brother was not at home. However, they saw Alfredo Mamuntag, the caretaker of the house, Alfredo's son, Hector, and Gilbert Ang, who were then visiting with Alfredo. Verchez decided to wait and drink liquor at the yard. At about 3:00 P.M., Balane drove away to buy cigarettes and "pulutan." He had not driven far when a car blocked his way, with the occupants pointing their firearms at him. Then another car arrived. One of the passengers from the second car approached Balane and frisked him. Thereafter he was dragged out of the car, handcuffed and blindfolded. After he was boxed on the face and stomach, he was pushed inside a car. Verchez saw several cars stop in front of the house. Men in civilian clothes with firearms alighted from the cars. One of the men ordered him to open the door. Suddenly, he heard a gunshot and Aldave, who was then at the back of the house, shouted that someone took a shot at him. After the two ran inside the house, they heard more gunshots. Verchez got a loaded M-16 Armalite rifle from one of the rooms and fired back at his attackers. Aldave looked around and found an Armalite rifle. He also fired back. Balane, still blindfolded and handcuffed, was ordered by Capt. Castaneda to advise his companions to surrender. Hence, he shouted, "Sumuko na kayo si Vic ito." However, someone also shouted "Huwag na kayong sumurender, papatayin nalang namin kayo." The firing continued for 15 minutes, after which the police were able to enter the house. Verchez and Aldave, together with the other occupants of the house, surrendered and were brought to Camp Crame. Verchez and Aldave claimed that at Camp Crame, they were tortured into admitting participation in several bank robberies. They were forced into signing a prepared statement confessing their illegal activities, including having engaged the police officers in a fire fight on August 15, 1985.

In assailing the judgment convicting them, appellants contend that the court a quo erred in: (1) giving faith and credence to the testimonies of Capt. Castaneda, Lt. Garbo and Sgt. Norcio regarding the encounter between the government agents and appellants; (2) admitting in evidence these extrajudicial statements in violation of Section 12(3), Article III of the Constitution; and (3) considering against them the aggravating circumstance of disregard of respect due the offended party on account of his rank. Well-settled is the rule that findings of the trial court pertaining to the credibility of a witness are entitled to great respect since it had the opportunity to examine his demeanor as he testified on the witness stand. Therefore, it could discern if such witness was telling the truth or not (People v. De Guzman, 216 SCRA 754 [1992]). In giving faith and credence to the version of the police officers, the trial court held: On the other hand, the evidence against accused Rolando Verchez and Romeo Aldave was sufficient to hold both accused liable of the crimes imputed against them. The Court cannot give credence to their claim that when the car of the lawmen stopped in front of the house and without warning, the lawmen fired the initial volley of fires which were directed at the house occupants. In the first place, there is no showing that Capt. Raul Castaneda saw the persons inside the house in order to be sure of their target. Secondly, Capt. Castaneda and his men were not definite (sic) of the identity of the persons in the house; and thirdly, there was no motive, reason or justification for Capt. Castaneda, an experienced military combat officer having been assigned in the battlefronts in Mindanao and in the province of Cagayan, to order his men to discharge their firearms indiscriminately (Rollo, pp. 227-228). To our mind, the issue of whether or not the extra-judicial confessions of appellants are admissible against them is not material. As the trial court correctly ruled, there is sufficient evidence, independent of their confessions, to hold appellants guilty beyond reasonable doubt for the death of Sgt. Norcio and for the injuries sustained by Cpl. Noora. Anent the claim of appellants that they were tortured and maltreated by the apprehending lawmen, as well as by the crime investigators, no evidence was ever presented by appellants to support it. However, while we are adopting the factual findings of the court a quo, we are not inclined to agree with its conclusions. In convicting appellants of murder, the trial court ruled that the killing of Sgt. Norcio was qualified by treachery as the firing of the guns was sudden and unexpected (Rollo, p. 39). We find, however, that treachery was not sufficiently established. For the qualifying circumstance of treachery to be present, two conditions must concur: (a) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (b) that said means of execution was deliberately or consciously adopted (People v. Dela Cruz, 207 SCRA 632 [1992]).

The lawmen, knowing that they were dealing with a gang of bank robbers, were prepared for any resistance that may possibly be put up. They even brought along with them Balane to facilitate the surrender of appellants. The casualties on the lawmen's side were suffered only after the first volley of fire came from the side of appellants and after the lawmen had left their vehicles and taken cover. In short, Sgt. Norcio was killed and Cpl. Noora was wounded during, and not before the gun battle. There is no showing that appellants deliberately and consciously adopted their mode of attack. Neither is there any showing that they planned to ambush the lawmen, much less that they knew that the lawmen were coming. What is apparent is that appellants were caught by surprise by the lawmen, hence, acting on the spur of the moment, they fired back. Absent the qualifying circumstance of treachery, appellants can only be convicted of homicide for the death of Sgt. Norcio and frustrated homicide for the wounding of Sgt. Noora. The aggravating circumstance of disregard of the respect due the offended party on account of his rank is, likewise, unavailing. There is no showing that appellants deliberately intended to offend or insult the rank of the victim, which is the essence of said aggravating circumstance. This is so because the raiding police officers were not even in uniform. The penalty for homicide is reclusion temporal (Revised Penal Code, Art. 249) which should be imposed in its medium period since neither aggravating nor mitigating circumstances were proven in this case. Applying the Indeterminate Sentence Law, appellants shall suffer the penalty of twelve (12) years of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum. Following recent case law, the indemnity for Sgt. Norcio's death should be P50,000.00 (People v. Simon, 209 SCRA 148 [1992]). For committing frustrated homicide, appellants should be meted a penalty one degree lower than that prescribed by law for the consummated homicide (Revised Penal Code, Art. 250) or prision mayor medium, there being no aggravating or mitigating circumstances attendant in the commission of the crime. With the application of the Indeterminate Sentence Law, the proper penalty should be six (6) years of prision correccional as minimum to ten (10) years of prision mayor as maximum. Appellants' contention that the trial court erred in convicting them of illegal possession of firearms must also fail. Their contention is premised on the allegations that: (1) they used the firearms in legitimate self-defense; and (2) they did not own the firearms and their possession of the same "was for a fleeting moment only and the firearm was not subject to his control and management" (Rollo, pp. 215-218). Section 1 of P.D. No. 1866 states that: Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunitions 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 firearms, 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. This provision of law is clear. What is penalized in the first paragraph is the act of a person who shall, among others, "unlawfully possess any firearm . . . (or) ammunition . . . " The possession of a firearm becomes unlawful when there is no permit or license for its holding. The law does not prescribe a minimum period of time for the holding of the firearm before its possession can be illegal. Appellants' allegation that they did not have control or management of the firearms is without merit. The records show that they knew where to find the firearms. Both Verchez and Aldave testified that they sought cover inside separate bedrooms when the lawmen fired at them. Thereafter, they retrieved the firearms from the cabinet in their respective rooms. Their story that their finding of firearms in the cabinets was a happenstance is simply incredible and not deserving the slightest consideration of this Court. However, the trial court erred in finding appellants guilty of violating of Section 1 of P.D. No. 1866 "resulting to murder," and in sentencing said accused to suffer a penalty of reclusion perpetua (Rollo, p. 84). It is true that under paragraph 2 of Section 1 of P.D. No. 1866, the penalty of death shall be imposed if homicide or murder is committed with the use of an unlicensed firearm. This qualifying circumstance must, however, be alleged in the information, which was not done in Criminal Case No. B-85-216. In People v. Tiozon, 198 SCRA 368 (1991) we held that because homicide or murder is a circumstance which increases the penalty under Section 1 of P.D. No. 1866, said crime qualifies the offense. The Court added: . . ., to justify the imposition of the increased penalty under Section 1 of P.D. No. 1866 because of the resulting crime of homicide or murder, the prosecution must allege in the information and prove by the quantum of evidence required for conviction violation of said section and, more specifically, the use of an unlicensed firearm and the commission of homicide or murder. In this regard, the information in this case is sufficient in form and substance. It alleges illegal possession of a firearm and of murder. The latter is covered by the clause "which firearm was used with treachery and evident premeditation in shooting one Leonardo Bolima y Mesia, which caused his death." The law imposes the penalty of reclusion temporal maximum or 17 years, 4 months and 1 day to reclusion perpetua for the unqualified offense of illegal possession of firearms. There

being neither aggravating nor mitigating circumstances, the penalty which shall be imposed is the medium period or 18 years, 8 months and 1 day to 20 years of reclusion temporal (Revised Penal Code, Arts. 64 and 65). Applying the Indeterminate Sentence Law, the minimum penalty that can be imposed is from 17 years, 4 months 1 day to 20 years of reclusion temporal. Under the said law, as amended by Act. No. 4225, "if the offense is punished by any other law (than the Revised Penal Code or its amendments), the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." WHEREFORE, the appealed Decision is AFFIRMED, with the following modifications: 1. In Criminal Case No. B-85-213, appellants are found GUILTY beyond reasonable doubt of Homicide and are SENTENCED to ten (10) years of prision mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum. Appellants shall jointly and severally indemnify the heirs of Sgt. Monico Norcio in the amount of fifty thousand pesos (P50,000.00). 2. In Criminal Case No. B-85-214, appellants are found GUILTY beyond reasonable doubt of Frustrated Homicide and are SENTENCED to three (3) years of prision correccional as minimum to eight (8) years and one (1) day ofprision mayor as maximum. 3. In Criminal Case No. B-85-216, appellants are found GUILTY of Violation of P.D. 1866 (Illegal Possession of Firearms) and are SENTENCED to seventeen (17) years, four (4) months and one (1) day as minimum to twenty (20) years of reclusion temporal as maximum. These penalties shall be served by appellants in accordance with Article 70 of the Revised Penal Code. SO ORDERED.

THIRD DIVISION
[G.R. No. 126021. March 3, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RENE SIAO, accused-appellant. DECISION

GONZAGA_REYES, J.: Accused-appellant Rene Siao together with Reylan Gimena were charged before the Regional Trial Court of the City of Cebu with the crime of rape committed as follows:

"xxx

xxx

xxx:

That on or about the 27th day of May, 1994, about 3:00 P.M., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conniving and confederating together and mutually helping each other, with deliberate intent and with force and intimidation upon person, did then and there willfully, unlawfully and feloniously have carnal knowledge with the undersigned, Estrella Raymundo, a minor, 14 years old, against the latters will."[1] Accused-appellant Rene Siao and Reylan Gimena pleaded "not guilty" to the charge. Hence, trial proceeded in due course. After trial, the Regional Trial Court of the City of Cebu convicted accused-appellant Rene Siao of the crime of rape as principal by induction and acquitted Reylan Gimena. The dispositive portion of the decision rendered on March 29, 1996 reads: "WHEREFORE, in view of all the foregoing, judgment is hereby rendered finding accused Rene Siao GUILTY beyond reasonable doubt as principal by induction in the crime of rape committed against the person of Ester Raymundo and imposes upon him the penalty of RECLUSION PERPETUA. He is, likewise, directed to indemnify private complainant Ester Raymundo the sum of P50,000.00 as and for moral damages. Accused Reylan Gimena is hereby ACQUITTED because he acted under the impulse of uncontrollable fear of an equal, if not greater injury. For want of evidence, his cross-claim against Rene Siao should be, as it is hereby ordered, DISMISSED."[2] Hence, this appeal by Rene Siao. The Office of the Solicitor General[3] summarized the evidence for the prosecution in this wise: Joy Raymundo and private complainant Estrella Raymundo are cousins. They worked as house maids of appellants family. Reylan Gimena was also a helper of appellants family. Estrella was then a 14-year old "probinsiyana" from Palompon, Leyte (p. 5, TSN, September 16, 1994). On May 27, 1994, at about 3:00 p.m., in the Siao residence located at 417-A Basak Brotherhood, Cebu City, appellant ordered Reylan Gimena, a houseboy of the Siaos, to pull Estrella to the room of the women. Gimena dragged her toward the womens quarters and once inside, appellant pushed her to the wooden bed (naomog). Appellant pointed a pistol colored white at Gimena and the face of Estrella (pp. 7-8, TSN, September 16, 1994).

Producing a candle and a bottle of sprite, appellant asked Estrella to choose one among a pistol, candle or a bottle of sprite. He also told Gimena "Reylan, birahi si Ester." (Reylan do something to Ester.) Appellant lighted the candle and dropped the melting candle on her chest (p. 7, TSN, September 20, 1994). Estrella chose a bottle of sprite because she was afraid of the pistol. She was made to lie down on her back on the bed with her head hanging over one end. Whereupon, appellant poured sprite into her nostrils as she was made to spread her arms. While appellant dropped the bottle of sprite into her nostrils, he pointed the gun at her face. Estrella felt dizzy and her eyesight became blurred (p. 6, TSN, September 20, 1994). She tried to fold her arms to cover her breasts but appellant ordered Gimena to hold her hands (p. 10-15, TSN, September 16, 1994). Appellant then tied her feet and hands with an electric cord or wire as she was made to lie face down on the bed. After that, appellant untied her hands and feet but tied her back with the same wire (p. 17, TSN, September 16, 1994). As appellant pointed his pistol at her, he ordered Estrella to remove her pants and T-shirt, she sat on the bed and did as she was told and when she was naked, appellant commanded her to take the initiative (ikaw ang mauna sa lalaki.) She did not understand what appellant meant. At this point, appellant poked the gun at her temple (pp. 19-20, TSN, September 16, 1994). Appellant then commanded Gimena to remove his shorts. But Gimena refused. Gimena did not remove his shorts but let his penis out (p. 21, TSN, September 1, 1994; p. 11, TSN, September 20, 1994). Appellant spread the arms of Estrella and made her lie down spreadeagled (pp. 4-5, TSN, September 29, 1994). She felt dizzy and shouted for help twice. Appellant ordered Gimena to rape Estrella. At first Gimena refused to heed the command of appellant to rape Estrella (birahi) because, according to Gimena, he has a sister. Appellant said that if they would not obey, he would kill both of them (pp. 4-10, TSN, September 20, 1994. Appellant told Gimena, "Reylan, do something (birahi) to Ester!" Estrella was made to suck the penis of Gimena at gunpoint. She complied with the order of appellant and when the penis of Gimena was inside her mouth, appellant kept looking and pointing his handgun at them (pp. 11-14, TSN, September 20, 1994; pp. 19-20, TSN, September 21, 1994). Thereafter, Gimena got on top of Estrella (gisakyan) and did the sexual act (kayatan). She felt excruciating pain. Gimena made push-and-pull

movements for around 10 minutes. Appellant looked on and said, "why did it take you long to penetrate?" While Gimena was making the push-andpull movements, appellant held the legs of Estrella to keep them apart (pp. 21-24, TSN, September 20, 1994). After Gimena had sexual intercourse with Estrella, she sat down. Not long after, appellant said: "You do it again." Gimena said that he could not do it again because he was already very tired. But appellant pointed the pistol at Gimenas temple. Gimena obeyed the order of appellant because the pistol was pointed at him (pp. 25-26, TSN, September 20, 1994). They were made to lay side by side while appellant kept on pointing the pistol at them. Gimena, who was behind Estrella made a push-and-pull movements so that his organ would reach her private part (pp. 27-29, TSN, September 20, 1994). After the side by side position, they were made to assume the dog position (patuwad). Appellant commanded her to do it but she refused because she was already tired. Appellant pointed the pistol at her, so she obeyed his order. Gimena said: "I will not do that because I am already tired." At that, appellant pointed the pistol at Gimena. Thus, Gimena copulated with Estrella in the manner dogs perform the sexual intercourse. Gimena shouted for help. Somebody knocked on the door and they heard the voice of Teresita Paares, the older sister of appellant. Appellant ignored Paares and kept on pointing the pistol at Estrella and Gimena, as he looked at them with wide-open eyes (siga) (pp. 30-31, TSN, September 20, 1994). Shortly, appellant told them to go to the boys room. They complied with his order tearfully, after he followed them laughing all the while. Appellant then warned them: "If you will tell the police, I will kill your mothers." (pp. 33-34, TSN, September 20, 1994). At around 6:00 oclock in the evening of the same day, Estrella and Joy Raymundo sought permission to go home. On their way home, they met an old man who saw Estrella crying. The old man took them to his house. After the incident was reported to the police, Senior Police Officer Reynaldo Omaa conducted the investigation and arrested Gimena, who was identified by Esrtrella as the one who raped her on orders of appellant. The police officers looked for appellant to shed light on the reported rape. But they could not locate him (Exhibit "B"; pp. 5-7, TSN, December 13, 1994).[4] Accused-appellant Rene Siao, anchoring his defense mainly on denial, presents a different version of the case; his story "Private complainant Ester or "Estrella" Raymundo, together with her cousin Joy Raymundo, was employed as a maid by the Siao family on May 9, 1994.

In the morning of May 27, 1997, a commotion in the household of Jose Siao awakened Teresita Paares, a sister of accused-appellant. Ms. Paares learned that accused Reylan Gimena, one of the houseboys of the Siao family, was accusing private complainant of stealing his wristwatch. This was not the first time accused Gimena confronted private complainant with the loss of his watch. Earlier in the week, Teresita had also lost money in the amount of P1,300.00, while her daughter Jan Bianca Abellana lost a necklace. It would turn out that the other househelpers of the Siaos had likewise lost personal articles. Marilyn Resujent, a maid, lost a brand new panty and sleeveless blouse. Simeon Siroy Jr., a houseboy, lost two T-shirts. Until the employment of the Raymundo cousins, the household of the Siaos had not fallen victim to thievery. At around noontime of the same day, upon his return from his morning chores, accused Gimena inquired from Ms. Paares whether his watch had been found. When informed that his watch had not been recovered, he confronted private complainant, who offered to pay for the value of the watch instead. Joy Raymundo agreed to accompany accused Gimena to the house of an aunt (of Joy and private complainant) for financial assistance. An hour later, accused Gimena and Joy Raymundo returned to the Siao compound and reported to Ms. Paares that the aunt was unable willing (sic) to help. In the meantime, private complainant admitted to Ms. Paares that she stole the P1,300.00 but denied having taken the necklace. Private complainant initially returned the sum of P600.00 to Ms. Paares. When Ms. Paares stated that what she lost was P1,300.00, private complainant went to her quarters and returned with an additional P200.00. Private complainant explained that she could no longer produce the remaining money because she had already purchased a number of personal effects (pail, basin, pants, shorts) for herself with it. A little while after accused Gimena and Joy returned from the house of Joy and Esters aunt, accused Gimena and private complainant went to the males quarters. Sometime thereafter, accused Gimena emerged from the males quarters and announced the recovery of his watch. Private complainant had revealed to accused Gimena the hiding place of his watch, which was under the ironing board. In the afternoon of May 24, 1994,[5] many people were present in the household of Jose Siao, father of accused-appellant. Ms. Beatriz Baricuatro was in the sala praying the rosary as was were habit. Joy Raymundo was in the kitchen. Ms. Paares was likewise downstairs going about her daily business. The grandchildren of Jose Siao were running in and out of the house.

At about 3:00 p.m., Ms. Paares left their residence to seek the assistance of the barangay with respect to the lost necklace of her daughter. (Until this time, private complainant would not admit to stealing the necklace). Within an hour, Ms. Paares returned to the compound accompanied by Barangay Tanod Arturo Jabines. Private complainant was inside the males quarters when the two arrived. Accused had earlier reported for work at the retail store owned by Jose Siao. When Barangay Tanod Jabinez introduced himself, private complainant immediately begged for his forgiveness and promised not to do it again. Barangay Tanod Jabinez instructed the private complainant to address her pleas to her victims and not to him. Before the barangay tanod, private complainant admitted to stealing the necklace. Dissatisfied with the piece-meal confession of the private complainant, Ms. Paares decided to bring her to the barangay hall where she could report the theft. On the way to the barangay hall, private complainant confessed to selling the necklace and begged for forgiveness. At the last minute Ms. Paares relented and decided to give the private complainant a second chance. Upon their return to the Siao compound, private complainant and Joy Raymundo sought permission from Ms. Baricuatro to just return to their home in Leyte. Ms. Beatriz gave her consent and even handed them money for boat fare. At about 6:00 p.m., both housemaids left the Siao residence, bringing with them all their personal belongings. An hour later, some people came to the house of Jose Siao looking for private complainant and her cousin. At this time, accused-appellant Rene Siao remained unaware of the developments that unraveled in the residence of Jose Siao. In the morning of May 24, 1994,[6] accused-appellant made his usual rounds ]collecting the obligations of his fathers creditors. At noontime, accused-appellant went directly to the retail store of his father where he had lunch with his wife Gina, as was his habit. This was the usual hour of his fathers siesta and he would tend to the store in his fathers absence, as was his custom. At about 9:00 p.m. of the same evening, a barangay tanod came to the retail store and invited accused Gimena to the barangay hall. Jose Siao and Ms. Paares would follow. At the barangay hall, upon the complaint of a certain Rosalie Sallentes (who claimed to be related to the Raymundo cousins), Barangay Captain George Rama asked accused Gimena of the whereabouts of Ester and Joy Raymundo. Accused Gimena answered that he did not know. During the course of the investigation, and under threat by the Barangay Captain that his head would be broken if he did not tell the truth, accused Gimena

confessed to tying up the private complainant to force her to reveal the place where his watch was being kept. He untied her after he recovered his watch from under the ironing board. The following evening, on May 28, 1994, accused Gimena was picked up by policemen at the retail store of Jose Siao and brought to the Tabo-an Police Station. Neither the police nor the barangay tanod looked for accused-appellant on the evenings of May 27 and 28, 1994. Private complainant would file a complaint against accused-appellant and accused Gimena on June 21, 1994. After the case was filed but before trial commenced, a person who presented himself as the father of private complainant set a meeting with the Siaos. The father of private complainant demanded 1 Million Pesos from the Siaos to drop the rape case."[7] As stated earlier, the trial court rendered a decision finding accused-appellant Rene Siao guilty of the crime of rape as principal by induction in accordance with Article 17(2) of the Revised Penal Code.[8] Insisting on his innocence, accused-appellant assigns to the trial court the following alleged errors: "THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT SIAO GUILTY BY INDUCEMENT THE TRIAL COURT ERRED IN CHARACTERIZING THE INCONSISTENCIES AS MINOR AND IMMATERIAL THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF THE PROSECUTION WITNESSES"[9] The Court has carefully reviewed the records of this case and has found accusedappellants contentions to be without merit. Against the victims story, accused-appellant urges us to accept his own version. But we cannot do so, for we agree with the trial courts observation that a 14-year old girl from the province, nave and innocent to the ways of the world, is incapable of concocting serious charges against her employer and fabricating a story of aberrant sexual behavior as can only be told by one who has been subjected to it. First, accused-appellants assertion that the failure of the prosecution to present the gun used by him to force and intimidate Ester Raymundo and Reylan Gimena to perform sexual intercourse is fatal to the prosecutions cause is clearly untenable. This Court

has held in People vs. Travero, that "[t]he non-presentation of the weapon used in the commission of the rape is not essential to the conviction of the accused. It suffices that the testimony of the rape victim is credible because the established rule is that the sole testimony of the offended party is sufficient to sustain the accuseds conviction if it rings the truth or is otherwise credible."[10] As to fact that accused-appellant Rene Siao forced and intimidated at gunpoint Ester Raymundo and Reylan Gimena to have carnal knowledge of each other, we are convinced that the same has been adequately proved by the prosecutions evidence. Even as under settled jurisprudence, the evidence for conviction must be clear and convincing to overcome the constitutional presumption of innocence, we find the straightforward, consistent and candid manner in which Ester Raymundo related her harrowing experience in the hands of accused-appellant as bearing all the earmarks of verity. Not only that, the corroborative testimony of Reylan Gimena was consistent in material respects with that of Ester Raymundo. Ester Raymundo testified as follows: Q: Now, in your position which you have stated awhile ago, what did Reylan do with his penis? COURT "If he did anything?" To avoid any leading question. You can ask, "What happened next?" "What did he do?" But to ask what did he do with his penis . . . FISCAL BUENVIAJE My questions are personal and very . . . COURT You can frame your question by just adding a few words "if he did anything." WITNESS A: We did the sexual act (kayatan).

FISCAL BUENVIAJE Q: A: Was he successful in penetrating you? Yes.

Q:

And all the time Rene Siao was holding both of your legs?

ATTY. SENINING One of the . . . COURT Sustained. That is very leading. Q: A: Now, what did you feel when Reylan penetrated you? I felt excruciating pain.

FISCAL BUENVIAJE Q: So, what did you do because of that pain?

WITNESS A: I sat down when it was finished.

Q: How many minutes was Reylan doing the sexual act, the push-andpull above you? ATTY. FERNANDEZ Your Honor, I would suggest, because there is no testimony to the effect that there was a push and pull. There was no establishment, Your Honor, the penetration was established but whether there was a push and pull after the first penetration. Just for justice in this matter it must be established by simple questions. COURT Okay, ask simple questions. FISCAL BUENVIAJE Q: Did Reylan make a push-and-pull?

ATTY. SENINING That is leading also. FISCAL BUENVIAJE

That is natural, that necessarily follows: COURT Let the Court ask the question: Q: What was the body movement of Reylan when he had a sexual intercourse with you? A: He kept on push . . .

COURT "He made a push-and-pull movement." ATTY. FERNANDEZ Making pumping action. FISCAL BUENVIAJE That is push-and-pull. I object that "pumping." This is not an artesian well. COURT You will just Americanize "pumping." FISCAL BUENVIAJE Q: For how many minutes was Reylan doing the sexual act of pushand-pull? WITNESS A: Ten (10) minutes, more or less.

Q: Now, while Reylan was doing the push-and-pull for about 10 minutes, what was Rene Siao doing all the time? A: Rene Siao kept on looking and said, "Why did it take long to penetrate? Q: Now, what was the position of both of the hands of Rene Siao?

COURT INTERPRETER

Witness demonstrating that Rene Siao held her both legs in order to spread it apart. FISCAL BUENVIAJE I would like to add some comments to the interpretation. According to the witness, while Reylan Gimena was doing the sexual act, all the time Rene Siao was holding both her legs. That is precisely the meaning. Another question. Q: Did Reylan Gimena reach that climax wherein he was like being electrocuted? COURT Sustained; she does not even know what is a climax. FISCAL BUENVIAJE Q: Was Gimena able to consummate the act of rape on you?

ATTY. SENINING That is a matter of law and interpretation. COURT Sustained. Anyway, you have the medical certificate. Next question. FISCAL BUENVIAJE Q: Now, after that 10 minutes wherein Gimena raped you while Rene Siao was holding both of your legs, what happened next? ATTY. SENINING I would just like to correct the word "rape." ATTY. FERNANDEZ I would also . . ATTY. SENINING I would suggest . . . (not finished)

FISCAL BUENVIAJE "Sexual act." ATTY. SENINING All right. WITNESS A: Rene Siao then said that "You do it again."

COURT Then continue. WTNESS A: Then Reylan Gimena answered that he cannot do it because he is already very tired. FISCAL BUENVIAJE Q: Did Rene Siao allow Gimena to take a rest?

ATTY. SENINING Again, Your Honor, please. COURT What is your ground? ATTY. SENINING Leading. COURT Reform. FISCAL BUENVIAJE Q: What did Rene Siao do when at first Gimena refused because he was tired?

A:

He pointed the handgun to Reylan Gimena.

Q: What portion of the body of Gimena was pointed with a gun by Rene Siao? A: Q: A: At the left temple. So, what did Reylan do when Siao pointed the pistol on his temple? He obeyed the order because he was afraid of the handgun.

FISCAL BUENVIAJE Q: So, what did Reylan do to you for the second sexual act?

ATTY. FERNANDEZ Your Honor, please, I would object, I would rather suggest that the question, "What did Reylan do after?" FISCAL BUENVIAJE: After the statement. COURT Sustained. You already assumed that there was a second. FISCAL BUENVIAJE Okay, I will reform. Q: What did Reylan Gimena do when Siao pointed his gun on his temple? WITNESS A: Q: A: Q: A: He obeyed the order because he is pointed with a handgun. What position this time? He was made to lie at my side. As you were now on your side, what did Reylan Gimena do? Reylan Gimena also laid at his side.

Q: A: Q: A:

What did Rene Siao do, if any? He kept on pointing the handgun. To whom? Me.

FISCAL BUENVIAJE Q: Was Gimena able to successfully penetrate you this second time around? ATTY. SENINING May I just request, Your Honor, that the . . . (not finished) COURT Reform. FISCAL BUENVIAJE Q: You said Gimena also . . . (not finished)

COURT Just ask, "What happened next?" WITNESS A: Q: He kept on push-and-pull toward my private part. Where did Gimena position himself in relation to you?

COURT INTERPRETER The witness demonstrated by pointing at her left back. COURT Q: A: Were you face-to-face or was he behind you? He is behind.

FISCAL BUENVIAJE

Q:

And what did he do?

ATTY. FERNANDEZ I think that has been answered that he made push-and-pull. Q: Was he able to penetrate you the second time?

WITNESS A: Yes, Sir.

Q: For how many minutes, if you still remember, did Gimena do the push-and-pull action from your behind? A: Q: Ten (10) minutes. Was he able to accomplish his act?

ATTY. SENINING What act? FISCAL BUENVIAJE Sexual act. ATTY. SENINING Already answered, penetrated. FISCAL BUENVIAJE But there is still climax that is why I am asking. ATTY. FERNANDEZ I think I have no objection to the question whether Reylan Gimena ejaculated. ATTY. SENINING In fact that will be part of my cross-examination. WITNESS

A: Q: A:

Maybe. Now, after that 10 minutes, what happened next? After the 10 minutes he let me assume a dog position (patuwad).

FISCAL BUENVIAJE Q: A: Q: Who ordered you to do the dog position? Rene Siao. What did he do to you?

A: He told me to do it again but I was already tired and he pointed the handgun to me. Q: A: Q: Did you assume the dog position upon the order of Rene Siao? Yes, because I was afraid of the handgun. And what did Reylan do this time, if any?

A: Reylan answered that "I will not do that because I am already very tired." Q: What did Rene Siao do upon hearing the statement of Reylan that he would not comply? A: Q: A: Q: He again pointed his handgun. Did Reylan comply wen Rene Siao pointed the gun to him? Yes, because he was afraid. And what did Reylan do to you?

A: Reylan made a push-and-pull because I was made by Rene Siao to assume the dog position (patuwad). Q: A: Q: Was Reylan able to penetrate you this time? Yes, and I even shouted. What did you shout?

A: "Tabang!" I asked for help "Tabang!" and then there was somebody who knocked. There was a knock made by my Ate and she asked, "What are you doing there?" And Rene Siao did not listen. FISCAL BUENVIAJE Q: According to you Rene Siao did not listen. In effect, did he order you and Reylan to continue the act? WITNESS A: Yes, Sir.

Q: While Reylan Gimena was doing the sexual act on you, what was Rene Siao doing all the time? A: He kept on pointing the handgun and kept on looking with wide eyes (siga). Q: For about how many minutes was that dog position continued until termination? A: Q: A: Five (5) minutes. After that, what happened next? Then Rene Siao told us to do the act in the room of the boys."[11]

Corroborating the foregoing, Reylan Gimena testified as follows: FISCAL BUENVIAJE Q: A: After the sucking incident, what happened next? The woman was ordered to lie down.

COURT The Court would like to ask one question. Q: When Ester was sucking your penis, did you ejaculate or did you feel warm liquid coming out of your penis? A: No, Your Honor. Continue, Fiscal.

FISCAL BUENVIAJE Q: Now, you said Rene Siao ordered Ester to lie down, did she comply? A: Q: A: Q: A: Q: A: Yes, because he pointed a firearm to her. Where did she lie down? On the bed, sir. What was the position of Ester as she was lying down? She was lying face upward. What was the position of her legs? Straight, sir.

FISCAL BUENVIAJE Q: Now, as Ester was already lying down straight upon order of Rene Siao, what happened then? A: Q: A: Q: A: Q: A: I was told by him to go on top of the woman. What was the exact word of Rene Siao in ordering you so? He said go on top of the woman so that you can deflower her. Did you understand what Rene Siao told you? Yes, sir. What was your understanding? He wants the woman to be raped.

COURT Q: I think you have not answered the question of the prosecuting fiscal. If you can still recall, what were the words uttered or used by Rene Siao? A: Q: He said that he wants me to fuck the woman and he wants it fast. And did you lie on top of the woman of Ester?

ATTY. SENINING Leading. COURT Your just reform. FISCAL BUENVIAJE Q: A: Q: What did you do? I got on top of the woman. Did you make a push and pull action on the vagina of Ester?

ATTY. SENINING Leading, Your Honor. FISCAL BUENVIAJE Naturally, it follows. In the interest of justice, Your Honor. COURT Let the Court ask the question. Q: A: Were you able to penetrate or not? I was not able to penetrate yet.

FISCAL BUENVIAJE Q: When you were not able to penetrate Ester, what was the reaction of Rene? A: He said, "How is that?" Is it not inserted yet?" And I answered back, "Not yet, Pard, because it is hard." And he said, "If it is hard we will separate her legs." Q: In effect, did Rene fulfill his words of spreading the legs of Ester?

ATTY. SENINING

Leading, Your Honor, because the word is "we." "We will spread her legs." COURT You just reform. Q: What, if anything, did Rene do?

FISCAL BUENVIAJE Q: After uttering those words that we will separate her legs?

ATTY. FERNANDEZ No. He answered "bilangkad," Your Honor. COURT No, Its on tape. ATTY. FERNANDEZ After he said "kuan, he said "bilangkad." COURT Although you put it on record. No. COURT INTERPRETER Witness motioning as if he was spreading. COURT To satisfy Atty. Fernandez. You rewind. (The tape was rewinded and played by the stenographer.) COURT What is audible is the use of the word "kuan." You clarify this point. FISCAL BUENVIAJE

We have the prerogative to ask. COURT Never mind. You ask. FISCAL BUENVIAJE Please do not refrain us from clarifying. COURT Clarify. FISCAL BUENVIAJE Because we will clarify what is not clarified. Q: A: After uttering those words, what did Rene do, if any? He held the woman and spread her legs.

Q: At this juncture wherein Rene Siao was already holding the legs of Ester in order to spread it, were you able to penetrate Ester? ATTY. SENINING Leading again, Your Honor, please. FISCAL BUENVIAJE This is cross-examination. COURT I will allow. FISCAL BUENVIAJE How can we . . . COURT Never mind. I will allow. WITNESS

A:

Yes, that was the time I penetrated.

COURT Q: A: Q: A: So your penis was stiff? Yes, Your Honor. Did you like what you do? No, Your Honor. Next question. FISCAL BUENVIAJE Q: A: Did you ejaculate? Yes, sir.

COURT Q: What did you feel when you ejaculated?

A: I do not know because that was my first time, Your Honor, with a woman. FISCAL BUENVIAJE Q: You said you were able to penetrate Ester while Rene Siao was holding both of her thighs, then spreading it, and you said you ejaculated. After that, what happened next? A: Q: A: He told the woman to lie on her side. Did Ester comply to lie on her side? Yes, because a firearm was pointed at her.

COURT Q: A: Q: Did you notice if Ester was bleeding? No, Your Honor. In her vagina?

A:

Yes, Your Honor.

FISCAL BUENVIAJE Q: do? A: Q: At that position wherein Ester was lying on her side, what did Rene He ordered another position. Did you comply to fuck Ester in that position as ordered by Rene

ATTY. SENINING There is no basis yet. COURT There was no question yet. There was no evidence that he was commanded to have sexual intercourse. ATTY. SENINING He told . . . COURT Not yet. He only testified that Ester was made to lie sideways. FISCAL BUENVIAJE Q: After Ester complied to the order of Rene to lie on her side, what more happened? A: Q: That was the time that mine penetrated. Was that upon order of Rene?

ATTY. SENINING Leading again, Your Honor. COURT Sustained. FISCAL BUENVIAJE

Q: You said you were able to penetrate Ester as she was on her side, is that your own volition to fuck her on that position? ATTY. SENINING Leading, Your Honor. FISCAL BUENVIAJE That is precisely the consequence. COURT Let the Court ask the question. Q: A: Why did you fuck her on that position? Because it was the order of Rene, Your Honor. Sometimes it is the way you phrase the question. Okay, continue. FISCAL BUENVIAJE Q: A: After this side position, what happened next? He ordered the woman to assume the doggy position.

COURT Lets just understand. "Gipatuwad." Lets just assume. ATTY. FERNANDEZ Crouching position. COURT Crouching. FISCAL BUENVIAJE Q: A: In effect, did Ester comply to pose in a doggy position? Yes, because a firearm was pointed to her.

COURT

You just put there parenthesis (gipatuwad). FISCAL BUENVIAJE Q: As Ester was in a dog position, did Rene utter anything to you?

ATTY. SENINING Hearsay again, Your Honor. Leading, Your Honor. COURT You just reform. FISCAL BUENVIAJE Q: A: Q: After Ester assumed that dog position, what did Rene do, if any? He ordered me. What was the order?

ATTY. SENINING I only request that the DSWD at my back, Your Honor, should not be allowed to coach the witness. I have no objection . . . COURT I am warning the representative of the DSWD to leave the interpreter alone. ATTY. SENINING Are you interested in this case? COURT Never mind, Compaero. There is a warning already. (The last question of Fiscal Buenviaje was interpreted and answered by the witness). COURT I understand because he is not used to using obscene words.

FISCAL BUENVIAJE He is not accustomed. ATTY. FERNANDEZ We just would like to manifest that the witness is not familiar in using obscene words. COURT We do not know. The understanding of the court is he is hesitant to use obscene words. ATTY. SENINING Not because that . . . ATTY. FERNANDEZ I would like to manifest that the witness is hesitant to use obscene words. FISCAL BUENVIAJE Q: A: Q: A: Q: A: What did you do upon that order of Rene? He ordered me to fuck the woman, sir. Did you comply with the order to fuck Ester? Yes, because I was afraid as he kept on pointing his firearm to me. And you were able to penetrate Ester on that position? Yes, sir.

COURT Q: By the way, at this juncture your penis was still stiff after the third position? ATTY. SENINING Fourth.

ATTY. FERNANDEZ Third, Your Honor. COURT Third. The sexual intercourse. Oral sex first. After the third sexual intercourse. ATTY. FERNANDEZ Third penetration, Your Honor. WITNESS A: Yes, Your Honor.

COURT Q: Were you afraid at that juncture or point of time?

A: I was still afraid, Your Honor, because he kept on pointing his firearm to me. Q: Did you like what did the third time, that is, penetrating Ester in a doggy position? A: Q: A: Q: A: No, Your Honor. But you insist that your penis was still stiff? Yes, Your Honor. Did you easily penetrate the vagina of Ester?

Not so easy, Your Honor."[12]

To sum up, Ester Raymundo and Reylan Gimena were forced and intimidated at gunpoint by accused-appellant Rene Siao to have carnal knowledge of each other. Rene Siao called Reylan Gimena inside the womens quarter. After Rene Siao closed the door, he told Reylan, "Reylan, birahi si Ester". Since Reylan was at a loss as to what to do, Rene Siao commanded Ester at gunpoint to "suck (um-um) the penis" of Reylan Gimena.[13] Both Reylan and Ester performed the sexual act because they were afraid they will be killed. Thereafter, accused-appellant commanded Reylan to rape Ester in three (3) different positions, pointing the handgun at them the whole time.

The testimony of Ester and Reylan were assessed by the trial court to be credible. Unless certain facts of substance and value were overlooked which, if considered, might affect the result of the case, its assessment must be respected for it had the opportunity to observe the conduct and demeanor of the witnesses while testifying and detect if they are lying.[14] We find no reason to deviate from the findings of the trial court. If their story had only been contrived, Ester and Reylan would not have been composed and consistent in the face of such intense and lengthy interrogation. Second, accused-appellant faults the trial court for giving credence to the testimonies of Ester Raymundo and Reylan Gimena despite being fraught with substantial inconsistencies with regard to the following points: 1. Ester testified that Reylan pulled her to the womens quarter, while Reylan testified that when he entered the room Ester was already tied up in the bed; 2. Ester testified that she was lying "face down" on the bed, while Reylan testified that she was lying "face upward"; 3. Ester testified that before being made to undress, accused-appellant Rene Siao wound electrical wire around her neck and Gimena made no mention of this; 4. Ester testified that Gimena ejaculated while performing the sexual acts while Gimena testified that he did not ejaculate; and lastly, 5. Ester testified that she had sought help from her cousin Joy Raymundo on the way out from the womens quarter while Reylan testified that she just walked slowly towards the mens quarters as ordered by accused-appellant. It can readily be seen that the alleged inconsistencies are inconsequential considering that they refer to trivial matters which have nothing to do with the essential fact of the commission of rape, that is carnal knowledge through force and intimidation. This Court has consistently adhered to the rule that inconsistencies on minor details of the testimonies of witnesses serve to strengthen their credibility as they are badges of truth rather than an indicia of falsehood.[15] If at all, they serve as proof that the witnesses were not coached and rehearsed. Third, accused-appellant contends that the testimonies of the prosecution witnesses do not conform to common experience due to the following reasons: Reylan Gimena ejaculated three times in a span of less than 30 minutes; the rape took place within earshot and near the presence of other people; Ester and Reylan did not make a dash for freedom during the ten minutes it took Rene Siao to follow them from the womens quarter to the males quarter where the latter wanted them to resume their copulation; a barangay tanod was present at the place of the alleged rape at about 4:00 p.m.; the private complainant reported the incident to an old man she chanced upon on her way home. Again, the points raised by accused-appellant are trite and of no consequence. First of all, the important consideration in rape is not the emission of semen but the penetration of the female genitalia by the male organ.[16] Well-settled is the rule that penetration, however slight, and not ejaculation, is what constitutes rape.[17] Thus, this factor could not affect the case for the prosecution. Second, accused-appellants argument that it is impossible to commit a rape in house where there are many occupants is untenable. We have held in a number of cases that lust is no respecter of time and place.[18] It is not

impossible to perpetrate a rape even in a small room. Rape can be committed in a house where there are many other occupants.[19] Third, Ester and Reylan could not be expected to flee or even to attempt to flee under the circumstances. Undoubtedly, considering that Ester was only fourteen-years old and a newly employed housemaid, while Reylan Gimena a seventeen-year old houseboy, they were easily intimidated and cowed into submission by accused-appellant, who aside from being their "amo" or employer, was menacingly threatening to kill them or their family with a gun if they did not do as he commanded them to do. Thus, it was not improbable for them not to attempt to escape when as accused-appellant perceived they had an opportunity to do so. Moreover, while most victims will immediately flee from their aggressors, others become virtually catatatonic because of the mental shock they experience.[20] It was also not improbable for them to report the incident to an old man they met on the road as there was no on else to turn to. In a bid to exculpate himself, accused-appellant presents a totally different version of the story. Accused-appellant sought to establish by his story that since Ester was caught stealing money and the personal belongings of the people in the household she had motive to implicate accused-appellant in such a serious charge. We cannot see how a 14-year old girl from the rural area could fabricate such charges borne out of a desire for revenge. We agree with the following explanation by the trial court: "The court cannot believe that a 14-year-old girl who is a stranger in the city will vent her ire on Rene Siao. If Rene Siao were to be believed that he did not confront Ester about the latters act of committing the crime of theft, why would Ester take revenge on Rene Siao? The court cannot believe that this 14-year-old probinsyana will concoct a story so as to do damage against business men like Jose Siao, Beatriz Baricuatro and Rene Siao. As a matter of fact, filing a case in court would mean untold misery and inconvenience. It will expose her to shame. She mustered enough courage if only to make the truth prevail. She ventured to assume the role of David against Goliath."[21] On the contrary, this theory of accused-appellant backfires on him because it appears that due to the thefts allegedly committed by Ester, Rene Siao decided to vent his ire by subjecting her to a perverted form of punishment and using Reylan as an instrument thereof. As to the charge of accused-appellant that the father of Ester tried to extort a huge sum of money from the accused-appellants family so that the case against him will be dropped, we agree with the trial court that this contention is largely self-serving as it is uncorroborated. All told, we agree with the trial court that the testimony of Ester Raymundo as well as the testimony of Reylan Gimena corroborating the same support the prosecutions version of the fateful incident. The rape was committed on May 27, 1994 or after the effectivity of R.A. 7659 on December 31, 1993.[22] The governing law, Article 335 of the Revised Penal Code as

amended by R.A. No 7659 imposes the penalty of reclusion perpetua to death, if committed with the use of a deadly weapon. It reads: "When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. 2. and 3. By using force or intimidation; When the woman is deprived of reason or otherwise unconscious; When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua. Whenever the crime of rape is committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. when the victim is under eighteen (18)years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. 2. when the victim is under the custody of the police or military authorities. 3. when the rape is committed in full view of the husband, parent, any of the children or other relative within the third degree of consanguinity. 4. when the victim is a religious or child below seven (7) years old.

5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease.

6. when committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency. 7. when by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation. Accused-appellant was held guilty of rape with the use of a deadly weapon, which is punishable by reclusion perpetua to death.[23] But the trial court overlooked and did not take into account the aggravating circumstance of ignominy and sentenced accusedappellant to the single indivisible penalty of reclusion perpetua. It has been held that where the accused in committing the rape used not only the missionary position, i.e. male superior, female inferior but also the dog position as dogs do, i.e. entry from behind, as was proven like the crime itself in the instant case, the aggravating circumstance of ignominy attended the commission thereof.[24] However, the use of a weapon serves to increase the penalty.[25] Since the use of a deadly weapon increases the penalty as opposed to a generic aggravating circumstance which only affects the period of the penalty, said fact should be alleged in the information, because of the accuseds right to be informed of the nature and cause of the accusation against him.[26] Considering that the complaint (which was later converted into the Information) failed to allege the use of a deadly weapon, specifically, that herein accused-appellant was armed with a gun, the penalty to be reckoned with in determining the penalty for rape would be reclusion perpetua, the penalty prescribed for simple rape under Article 335, as amended by R.A. No. 7659. Simple rape is punishable by the single indivisible penalty of reclusion perpetua, which must be applied regardless of any mitigating or aggravating circumstance which may have attended the commission of the deed.[27] Hence, the penalty of reclusion perpetua imposed by the trial court is correct. As a final matter, the trial court erred in ordering accused-appellant Rene Siao to pay the complainant only the civil liability arising from the offense in the amount of P50,000.00. In addition, it should have ordered accused-appellant to pay the offended party moral damages, which is automatically granted in rape cases without need of any proof.[28] Currently, the amount of moral damages for rape is fixed at P50,000.00.[29] Moreover, the presence of one aggravating circumstance justifies the award of exemplary damages pursuant to Article 2230 of the Civil Code of the Philippines[30] We find the amount of P20,000.00 as exemplary damages reasonable on account of the fact that the aggravating circumstance of ignominy attended the commission of the crime of rape. WHEREFORE, the decision of the Regional Trial Court, Branch 13, Cebu City, is hereby AFFIRMED with the MODIFICATION that accused-appellant Rene Siao is ordered to pay P50,000.00 to Ester Raymundo by way of moral damages, and P20,000.00 by way of exemplary damages in addition to the amount of P50,000.00 which the trial court ordered him to pay as indemnity.

SO ORDERED.
Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 101314 July 1, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOHN AMET BAELLO Y GUINTIVANO @ "TOTONG," accused-appellant. The Solicitor General plaintiff-appellee. Tomas J. Caspe for accused-appellant.

DAVIDE, JR., J.: In an Information filed with the Regional Trial Court (RTC) of Pasig, Metro Manila, on 18 October 1990, accused John Amet Baello @ "Totong" was charged with the crime of Robbery with Homicide. The accusatory portion of the information reads as follows: That on or about the 10th day of October, 1990 in the Municipality of Pasig, Metro-Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with one @ "Jerry"; whose true identity and present whereabout is still unknown, and mutually helping and aiding with one another, with intent to gain, without the knowledge and consent of the owner thereof, entered the house of one Eustaquio Borja y Reyes thru the window at the second floor of the said house, an opening not intended for ingress or egress, and once inside the same, did then and there willfully, unlawfully and feloniously take, steal and carry away the following items, to wit: One (1) 20" colored television set marked "Sharp" worth P11,269.00 One (1) stereo cassette recorder colored black worth P2,500.00 One (1) camera worth P1,000.00

Assorted jewelries (sic) of still undetermined amount ___________ P14,769.00

belonging to Eustaqiuo Borja y Reyes, to the damage and prejudice of the owner thereof in the total amount of P14,769.00; and that by reason and on the occasion of the robbery, the above-named accused, with intent to kill, armed with bladed instrument, did then and there willfully, unlawfully and feloniously stab one Veronica Borja y Ramos on the vital parts of her body, thereby inflicting upon her mortal wounds which were the direct and immediate cause of her death thereafter. 1

The case was docked as Criminal Case No. 84253 and raffled off to Branch 156 of the said court. At his arraignment on 13 November 1990, the accused entered a plea of not guilty. 2 Trial in the merits commenced on 18 December 1990. After trial, the RTC promulgated its decision 3 on 19 July 1991 finding the accused guilty as charged. The adjudicatory portion thereof read as follows: IN VIEW OF ALL THE FOREGOING, the Court finds the accused JOHN AMET BAELLO y Guintavino @ "TOTONG" guilty beyond reasonable doubt of the crime of "robbery with homicide" under Article 294 (1) of the Revised Penal Code with the aggravating circumstance of unlawful entry and hereby sentences said accused to suffer the penalty of reclusion perpetua with all its accessory penalties, to indemnify the heirs of Veronica Borja y Ramos in the amount of P50,000.00, to pay the sum of P50,000.00 by way of reparation of the stolen cassette, camera and assorted jewelries (sic), to pay the further sum of P41,672.00 by way of reimbursement of the burial and other related expenses and the additional sum of P20,000.00 and P10,000.00 as moral and exemplary damages, respectively, all without subsidiary imprisonment in case of insolvency and to pay the costs.
In the service of his sentence, the accused shall be credited in full with the period of his 4 preventive imprisonment.

From this adverse decision, the accused interposed an appeal which this Court accepted in a resolution dated 30 September 1991. 5 The factual antecedents of this case, as culled from the records, are as follows: On 10 October 1990, at about five 5:00 o'clock in the morning. Barangay Captain Eustaquio R. Borja awoke to find out that the front door of his residence at No. 164 Evangelista Street, Barangay Santolan, Pasig, Metro-Manila, was open and that their television set in the sala was missing. Eustaquio told his wife about what he saw and together they proceeded upstairs to the second floor to check on their 22-year old daughter, Veronica Borja. They

noticed that the door to her room was open. Upon entering the room, they were shocked to find the bloodied corpse of their daughter lying in bed. The window of her room was open. Eustaqiuo instructed his wife not to touch the body while he summoned the authorities. He proceeded to the Barangay Hall from where he called the police. The couple later discovered that a cassette player, a camera, and various pieces of jewelry in their daughter's cabinet, all worth about P50,000.00, were likewise missing. 6 On the same day, P/Capt. Florante F. Baltazar, Medico-Legal Officer of the PC/INP Crime Laboratory Services, performed an autopsy on the body of the victim. He concluded that the cause of death was "cardio-respiratory arrest due to shock and hemorrhage secondary to multiple stab wounds." 7 He stated in his autopsy report that the victim suffered a total of four stab wounds; that the stab wound inflicted on the victim's neck, which severed her jugular vein, was a fatal one; and that at the time of the autopsy (3:25 p.m.), the victim had been dead for more or less ten to twelve hours. 8 At 6:00 p.m., the police were able to recover the missing television set from the house of Eugenio Tagifa (or Tadifa), the husband of the accused's sister. 9 Tagifa was brought to the police station for questioning. On 11 October 1990 at 10:55 a.m., Tagifa executed a "Sinumpaang Salaysay" wherein he pointed to the accused as the person who had placed the television set under the stairs of his house. 10 On 13 October 1990 at 5:30 p.m., the accused was captured in Bangkal, Makati by elements of the Intelligence and Special Operations Unit (ISOU) of the Pasig Police and brought to the police station. 11 He made an oral admission of his participation in the commission of the crime. 12 He was then endorsed to the Criminal Investigation Division (CID) for formal investigation. 13 The accused was asked if he could understand, read and write Tagalog, and he replied that he could. 14 The accused was likewise asked if he could afford the services of counsel; he answered that he could not. 15 Upon being asked if he was willing to avail of the services of Atty. Eber Generoso of the Public Attorney's Office (PAO), the accused replied in the affirmative. 16 Atty. Generoso then brought the accused away from the police investigators so that the two of them could talk privately. 17 Atty. Generoso inquired from the accused whether or not he had any participation in the crime and told him that if he had none, he must not make any admission or statement as this would be prejudicial to him. The accused, however, said, "Attorney, aaminin ko na ho total ginawa ko naman." The accused then told Atty. Generoso that he was the one who took the television set but denied having killed Veronia Borja. 18 Afterwards, the police started the formal investigation of the accused in the presence of Atty. Generoso.The accused gave his statement before the police and this was reduced into writting and marked at the trial as Exhibit "L." Atty. Generoso read the statement to the accused and then let the accused read it himself. 19 The accused gave then signed Exhibit "L," after which Atty. Generoso also signed the same. The body of the said document reads as follows: Tanong: Ikaw ba ay marunong sumulat at umunawa ng Wikang Tagalog na atin gagamitin sa pagsisiyasat na ito?

Sagot: Opo. Pasubali: Bago ko simulan ang imbestigasyong ito, nais kong ipabatid sa iyo na ikaw bilang isang mamayang Pilipino alinsunod sa ating Binagong Saligang Batas ay may mga karapatan, gaya ng mga sumusunod: Na, karapatan mong manatiling tahimik at huwag sagutin and alin man aking mga katanungan; (Sgd.) (Sgd.) Atty. Eber Generoso John Amet Baello Na, karapatan mo ring kumuha ng isang piling abogado na maaring tumulong sa iyo sa oras ng imbestigasyong ito; (Sgd.) (Sgd.) Atty. Eber Generoso John Amet Baello Na, kung ikaw ay wala pang isang piling abogado, ikaw ay bibigyan para sa iyong kapakanan ng libre; (Sgd.) (Sgd.) Atty. Eber Generoso John Amet Baello Na, ikaw ay muli kong pinalahanan na ang lahat ng iyong sasabihin dito ay maaring gamitin pabor O' laban sa iyong panig; (Sgd.) (Sgd.) Atty. Eber Generoso John Amet Baello 01. t: Kung gayon ay turan mong muli ang iyong tunay na pangalan, idad, katayuan sa buhay at iba pang maaaring pagkakailanman sa iyo? s: JOHN AMET BAELLO y GUINTIVIANO, 20 anyos, binata, figthing (sic) cock caretaker, tubong Liganes, Ili-Ilo (sic) at nakatira sa may Nr. 145-B Interior, Evangelista ST., Santolan, Pasig, MM. 02. t: John Amet G. Baello, ipinakilala ko sa iyo si Atty. Eber Generoso na abogado ng CLAO, at siya ang siyang tutulong sa iyo, nais mo ba siyang maging abogado mo? s: Opo.

03. t: Bibigyan ko muna kayo ng ilang minuto para kayo magusap ni Atty. Generoso upang maintindihan mo ang ibibigay mong salaysay. Sige magusap muna kayo (at this juncture this prober allowing the affiant and Attorney to talk). 04. t: G. Baello, nais kong ipbatid (sic) sa iyo na ikaw ay nasasngkot (sic) sa kasong Robbery with Homicide and Rape, ano ang masasabi mo tungkol dito? s: Robbery po lamang ang alam ko. 05. t: Saan at kailan naman nangyari itong sinasabi mong Robbery kung iyong natatandaan? s: Sa bahay po ni Bgy. Captain Borja sa may Santolan, Pasig, MM. 06. t: Anong oras ninyo ba naman ginawa itong sinasabi mong nakawan? s: Mga humigit kumulang alas 4:00 ng mdaling (sic) araw ika10 ng Oktubre 1990. 07. t: Sino O' sinu-sino ba naman ang kasama mo ng nakawan ninyo ang bahay ni Bgy. Capt. Borja? s: Si Alias GERRY po lamang dalawa. 08. t: Papaano naman ninyo pinagnakawan ang bahay nina Bgy. Capt. Borja? s: Kami po nitong si Gerry ay nagdaan sa may bintana ng second floor ng bahay sa may harap ng basketball court. 09. t: Anu-ano ba naman and kinuha ninyo sa loob ng bahay nina Bgy. Catp. (sic) Borja? s: Ang kinuha ko po ay isang television, pero hindi ko po alam kung ano ang mga kinuha ni GERRY. 10. t: Mayroon akong ipapakita sa iyong isang television, ano ang masasabi mo tungkol dito (declarant at this juncture this prober pointing a colored Television set marked Sharp in the course of investigation). s: Iyan po ang television na aking ninakaw sa bahay nina Capt. Borja (at this juncture suspect/declarant was pointing to a

colored TV Sharp placed on top of the investigating room in the course of investigation). 11. t: G. Baello, nais kong ipa-alam sa iyo na sa bahay na iyong pinag-nakawan ay mayroon napatay na si Veronica Borja na anak na babae nuong may-ari ng bahay, alam mo ba kung sino ang pumatay dito? s: Opo, si GERRY po na aking kasama nang magnakaw kami. 12. t: Papaano mo naman nasiguro na itong si Gerry ang pumatay kay Veronia? s: Dahil po siya lamang ang naiwan sa itaas ng bahay. 13. t: Nasaan ba naman itong Veronica Borja ng pasukin ninyo ang bahay nina Bgy. Capt. Borja? s: Siya po ay nakiya (sic) ko sa isang kuwarto sa itaas ng bahay. 14. t: Papaano ba naman pinatay ni Berry (sic) si Veronica Borja kung nalalaman mo? s: Hindi ko po nakita dahil sa nauna akong umalis sa kanya. 15. t: Bukod sa inyong dalawa ni Gerry, mayroon pa bang ibang taong pumasok sa bahay nina Bgy. Capt. Borja? s: Wala na po, kaming dalawa lamang. 16. t: Nalaman mo ba kung saan ma-aaring matagpuan itong si Gerry? s: Sa Nueva Ecija po, pero hindi ko alam kung saang lugar duon. 17. t: Wala na muna akong itatanong sa iyo may nais ka pa bang idadagdag O babawasin sa iyong salaysay? s: Wala na po muna. 18. t: Ikaw ba ay tinakot, sinaktan, binayaran O' pinangakuan upang magbigay ng iyong salaysay dito? s: Hindi po, kusang loob ko po ito lahat.

19. t: Handa mo bang panumpaan at lagdaan ang iyong salaysay bilang patotoo sa lahat ng iyong mga sinasabi dito? s: Opo. wakas ng Salaysay ni 1 5 O k t u b r e 1 9 9 0 P a s i g ,

M e t r o M a n i l a Pinabasa, pinuu-unawa (Sgd.) at pinirmahan John Amet Baello ni (Sgd.) Atty. Eber Generoso On the other hand, the defense presented only two witnesses, viz.: the accused, testifying pro se, and his mother, Anita Baello. The version of the accused is as follows: He was born in Leganes, Iloilo but resides with his mother at No. 145 Evangilista Street, Santolan, Pasig, Metro Manila. He only reached the fourth grade of elementary school. He was at the house of his cousin after having watched a movie when the police came. They handcuffed him and then brought him to the Pasig Police Headquarters. He was immediately detained and not subjected to any investigation. Afterwards, he was mauled inside the jail by Antonio Gabriel, the nephew of Capt. Borja, and two of Gabriel's companions. These persons beat him up by kicking and punching his stomach and back, and striking his back and buttocks with a "baston." He was unable to recall the day when his statement was taken down, though he remembers it was in the afternoon. On that particular afternoon, he was taken downstairs and told that he would be given a lawyer to assist and defend him. However, Atty. Generosa, the lawyer assigned to him, simply sat down and stared at him without doing anything. Atty. Generoso told him that he would be going somewhere and then left for about an hour. When Atty. Generoso came back, the statement was already typewritten and Atty. Generoso merely signed it after which the accused was asked to sign, which he did as he was promised that he would be released after signing. While he was downstairs, a policeman asked him carry a television set. At first, the accused refused to do so, but then the policeman shouted at him. Since he got scared, he carried the television set. His picture was then and presented as Exhibit "0-6" by the prosecution. All the time downstairs, the police only asked for his name, age, civil status and nothing more. Anita Baello testified thus: When she visited her son, the accused, in jail a week after his arrest, she saw contusions on his body; he complained to her of chest pains because of the beatings he had received. She visited her son every other day and when she visited him

sometime in the first week of January 1991, he told her that he could not bear anymore the beatings he received from Antonio Gabriel. Their lawyer then wrote a letter to the jail warden and after that, her son was not hurt anymore. When she visited him later, she was surprised to see Gabriel in the same cell with her son; the latter told her he was not able to sleep for three nights because he was being pricked with a needle, so she complained to the police after which her son was separated from Gabriel. 21 In his brief, 22 the accused submits the following assignment of errors: 1 THE LOWER COURT ERRED IN HOLDING THAT ACCUSED-APPELLANT WAS FULLY AND DULLY ASSISTED BY A COUNSEL ENGAGED BY HIM AND IN FURTHER [sic] HOLDING THAT HIS EXTRA-JUDICIAL CONFESSION DURING CUSTODIAL INVESTIGATION IS ADMISSIBLE IN EVIDENCE. 2 THE LOWER COURT ERRED IN FINDING THAT CONSPIRACY EXIST IN THE COMMISSION OF THE CRIME. 3 THE LOWER COURT ERRED IN GIVING FULL CREDENCE TO THE TESTIMONIES OF THE PROSECUTION NAMELY, EUGENIO TAGIFA AND PRUDENCIO BAGASINA FOR IN TRUTH AND IN FACT THESE WERE INCONSISTENT, HIGHLY IMPROBABLE AND EXAGGERATED. 4 THE LOWER COURT ERRED IN HOLDING ACCUSED-APPELLANT GUILTY AND CONVICTING HIM OF THE CRIME CHARGE [sic] CONSIDERING THAT HIS GUILT WAS NOT ESTABLISHED BEYOND REASONABLE DOUBT In his first assigned error, the accused maintains that he was not "fully and duly assisted by a counsel engaged by him." Hence, his extra-judicial confession is constitutionally infirm and inadmissible in evidence. The records of the case, however, clearly belie this allegation of the accused. While it is true that Atty. Generoso was not initially his counsel of choice, the fact remains that after the accused was asked if he could afford the services of counsel and he answered in the negative, he was informed that he would be provided with one Atty. Generoso of the PAO to assist him during the investigation. He then voluntarily accepted the services of Atty. Generoso. This was in compliance with paragraph (1), Section 12, Article III of the Constitution which provides that:

Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. Apropos is the case of People vs. Parojinog. 23 Parojinog was arrested for triple murder. Before the start of the investigation, the police apprised Parojinog of his constitutional right to counsel of his own choice and told him that if did not have one, a certain Atty. Fernando Fuentes III of the Citizens Legal Assistance Office (CLAO) would be engaged to assist him. He agreed to have Atty. Fuentes as his lawyer. Atty. Fuentes assisted Parojinog during the entire investigation after which Parojinog signed his extra-judicial confession. Atty. Fuentes also signed the document. Later on, Parojinog assailed the confession, contending that Atty. Fuentes was not his counsel of choice. This Court refuted him thus: Anent his claim that Atty. Fuentes was not his choice, Section 12(1) of Article III of the 1987 Constitution provides: Sec. 12(1). Any person under investigation for the commission of an offenses shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. It is very clear from the aforequoted provision that a person under investigation for the commission of an offense may choose his own counsel but if he cannot afford the services of counsel, he must be provided with one. While the initial choice of the lawyer in the latter case is naturally lodged in the police investigators, the accused really has the final choice as he may reject the counsel chosen for him and ask for another one. In the instant case, the records show that no objection was voiced by the accused throughout the entire proceedings of the investigation and afterwards when he subscribed to its veracity before City Prosecutor Luzminda V. Uy. Thus, he apparently acquiesced to the choice of the investigators. He complained for the first time that Atty. Fuentes was not his choice only during the trial. Thus, it was too late. Likewise, in the People vs. Masongsong, 24 we dismissed similar plaint in the wise: To accept the appellant's contention that he was in effect denied justice since the counsel assigned to him was not really his choice is ridiculous. As correctly stated by the Solicitor General, every lawyer is presumed to have knowledge of the law as well as the training in procedure sufficient to enable him to protect his client. Furthermore, the accused was given sufficient time to choose his own counsel had he opted to so. His failure, therefore, to

request for another counsel negates his claim of denial of the right to choose his lawyer. And in People vs. Pinzon, 25 this Court made the following disquisition: There is no merit in the above argument. We agree with the Solicitor General's view that: . . . the entire process of custodial investigation was conducted in the manner required by the Constitution. Atty. Saldivar informed appellant of the latter's right to remain silent, as anything he says in said investigation could be used against him. Appellant was likewise informed of his right to counsel and that if he could not afford to pay [for] the services of one, he could avail of the free legal services of the CLAO, which offer appellant accepted. By said acceptance, Atty. Saldivar became appellant's counsel of choice, and the fact that appellant had no previous acquintance with Atty. Saldivar did not render null and void appellant's otherwise valid extra-judicial confession. Atty. Saldivar was present from the time appellant's statements were taken up to the time appellant affixed his signature thereon. In fact, Atty. Saldivar's signature appears on the statement. Plainly, the admission in evidence of appellant's sworn statement does not suffer from any constitutional infirmity. Exhibit "L" completely belies the allegation that the accused was not fully assisted by Atty. Generoso during the investigation. Said document discloses that the accused was informed of his constitutional rights by Atty. Generoso in extenso. Atty. Generoso conferred with the accused, warned the latter of the consequences of his confession and even advised him not to make any; however, the accused insisted on going ahead with his confession, although he only confessed to the robbery. It was only after the said conference that the accused gave a statement. After it was completed, Atty. Generoso again explained to him the contents and the adverse effects of his confession, but the accused found himself at ease with his conscience by voluntarily affixing his signature therein. If, indeed, he had any objections to his statement, he should not have signed Exhibit "L," or he should have at least voiced out such objections to Atty. Generoso. Atty. Generoso, as an officer of the PAO, would not have affixed his signature in the extra-judicial confession as counsel for the accused had he known of any infirmity in its execution. 26 If he did so, he would have been remiss in the performance of his duty and unfaithful to his office. But there must be convincing proof of that for he has in his favor the presumption of regularity in the performance of his duty. The accused likewise assails what he perceives to be "a preconditioned (sic) of the mind on the part of the investigator as well as the counsel that an admission was about to take place and for that the accused must be assisted only in this aspect." 27 He then labors under a misconception. In People vs. Layuso, stated:

This Court denounces in the strongest terms possible the widespread misconception that the presence of a lawyer under the "right to counsel" provision of the Constitution is intended to stop an accused from saying anything which might incriminate him. The right to counsel is intended to prelude the slightest coercion as would lead the accused to admit something false. The lawyer, however, should never prevent an accused from freely and voluntarily telling the truth. Whether it is an extra-judicial statement or testimony in open court, the purpose is always the ascertainment of truth. The accused jointly discusses the remaining assigned errors. He contends that there was no evidence of conspiracy with respect to the crime of robbery with homicide, and faults the trial court for giving full credence to the testimonies of prosecution witness Eugenio Tagifa (his brother-in-law) and Prudencio Bagasina. He alleges that Eugenio Tagifa testified against him because the former was threatened with arrest and prosecution. 29 The accused likewise impugns the testimony of Prudencio Bagasina as "inconsistent, highly improbable and exaggerated." These contentions are as hollow as those offered to support the first assignment of error. Anent his claim of lack of evidence of conspiracy for the crime of robbery with homicide, the accused has absolutely nothing but vague conclusions in between which he fears to openly express, that since he confessed only to robbery and that since it was only Jerry, his companion, who killed Veronica Borja, he could only be held liable for robbery but not for robbery with homicide. Indeed, the accused deliberately and carefully confined his participation to the robbery, and the prosecution had no direct evidence that the accused took part in the killing of Veronica. But the accused is not thereby absolved from any liability for her death. Once conspiracy is established between the accused Jerry in the commission of the crime of robbery, the accused would be equally culpable for the homicide committed by Jerry on the occasion of the robbery, unless the former proved that he endeavored to prevent Jerry from committing homicide. In People vs. de la Cruz, 30 we said: "The rule is likewise settled that when homicide takes place as a consequence or on the occasion of a robbery, all those who took part in the robbery are guilty as principals of the crime of robbery with homicide unless proof is presented that the accused tried to prevent the killing." Accused offered no such proof. The conspiracy to commit the crime of robbery was sufficiently and convincingly established in this case. As admitted by the accused in his sworn statement, he and Jerry had a prior agreement to commit robbery in the house of Eustaquio Borja. Together they went to the latter's house at 4:00 o'clock in the morning of 10 October 1990, entered the house through the window at the second floor, and once inside, he got the television set while Jerry got the other items, and then, together again, they left the house with their loot. These acts taken as a whole are more than sufficient to establish a common design between Jerry and the accused to commit robbery; such acts eloquently showed nothing less than a joint purpose and design, and a community of interest which established beyond doubt the existence of a conspiracy. 31 It is axiomatic that direct proof is not essential to prove conspiracy; it may be shown by acts and circumstances from which may logically be inferred the existence of a common design 32 or may be deduced from the mode and manner in which the offense is perpetrated. 33

Accused's claim that his brother-in-law, Eugenio Tagifa, testified against him because "he was intimidated with arrest and prosecution" is purely conjectural. It is to be noted that the accused does not, in the main, dispute the prosecution's evidence that he was the one who placed the television set under the stairs of Tagifa's house and that he was seen carrying it on his shoulders in the early morning of 10 October 1990. All that the accused could do was to raise a feeble and unsubstantiated denial. On the witness stand, Tagifa identified the sworn statement he executed on 11 October 1990 (Exhibit "A") and openly admitted that it was the accused who brought the television set, thus: Q Who brought the TV set under your stairs if you were not the one? A My brother in law, sir. Q Could you identify him, Mr. witness? A Yes, sir. Q Will you point him now?
A Yes, sir. (witness pointing to a person who identified himself as John Amet Baello, the accused in this case). 34

The due execution of Tagifa's sworn statement was not put in doubt during his crossexamination by the counsel for the defense. The impression then that Tagifa leaves us is that he was telling the truth. The trial court, which was obviously in a better position to decide the question of his credibility, having heard him and observed his deportment and manner of testifying, gave full faith and credit to Tagifa's testimony. We accord it the highest respect, especially considering that we find no fact or circumstance of value in the said testimony that it had overlooked or misappreciated and which if considered, may alter the result. 35 Prudencio Bagasina's testimony deserves a separate treatment. He had the temerity to testify in open court that he was just brought to the police station and then made to sign a prepared statement, which was marked as Exhibit "P." He denied having been investigated at all. In said sworn statement, he declared that in the early morning of 10 October 1990, he saw the accused along Daang Kalabaw at Santolan, Pasig, Metro Manila, carrying a television set the same television set identified by Tagifa. The trial court immediately perceived that he was lying through his teeth and held him in contempt, thus: COURT:
The witness is hereby cited in contempt for making untruthful statements until further orders from this Court. Send him to the provincial jail, for twenty-four hours. Let the 36 hearing be continued on another date.

In short, the trial court gave full faith and credit to Bagasina's sworn statement. We find no compelling reason to disagree with the trial court. The aggravating circumstance of unlawful entry 37 was properly appreciated against the accused as he and his companion, Jerry, had entered the Borja residence through the second-floor window, a way not intended for ingress. The evidence likewise shows that the aggravating circumstance of nocturnity 38 was present in the commission of the crime as the darkness was taken advantage of by the malefactors and such circumstances facilitated their evil designs. WHEREFORE, the judgement of conviction the Regional Trial Court of Pasig (Branch 156), Metro Manila in Criminal Case No. 84253 is hereby AFFIRMED in toto. Cost against the accused-appellant. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC GR No. L-46 786 November 25, 1940 THE PEOPLE OF THE PHILIPPINES, plaintiff and respondent vs. Octavio Marasigan, defendant and appellant. D. Claro M. Straight and Mr. Delgado and Taada in representation of appellant. The Attorney General Mr. Ozaeta and Mr. Assistant Attorney General representing the Government Gianzon. IMPERIAL, J.: Octavio Marasigan The defendant was prosecuted in the Court of First Instance of Baguio City for the crime of murder under the following allegations of the complaint that was presented against: That on or about the 23d day of October, 1938, in the City of Baguio, Commonwealth of the Philippines, and Within the jurisdiction of this Court, the above named Accused Octavio Marasigan, Then and There Being Armed with a big double-bladed knife or balisong, a deadly weapon, did, with intent to kill, evident premeditation and Treachery, historical and taking advantage of superior strength and while riding on a motor vehicle while running Was Taxi No. 1335 of the Royal Garage, Then and There wilfully, unlawfully, and feloniously assault, attack and stab many times with one Elisa Jere said knife, thereby inflicting upon her a mortal wound stabbed on the right chest, penetrating the third intercostal space and cutting the bronchus and pulmonary Vessels; Another fatal wound penetrating on the xipoid,

cutting the diaphragm, liver and Lesser omentum; a stabbed wound on the right shoulder, an Incised wound on the left forearm, a penetrating, stabbed wound on the left interscapular region; to nonpenetrating, stabbed wound on the same region; to nonpenetrating, stabbed wound on the dorsal mid-line about the level of the Eleventh vertebra, and Numerous Wounds on the fingers and hands, Which mortal Wounds and Other Injuries produced acute hemorrhage and directly Caused the death of Elisa said Jere almist instantaneously. In the commission of the above Described murder, the aggravating Circumstances (1) That It Was Committed with Treachery, (2) evidence premeditation and (3) abuse of superior strength and (4) by taking advantage of a running motor vehicle, Were attendant . The defendant waived his right to be informed of the complaint, but the Court noted in the file his declaration of not guilty. The defendant admitted during his testimony the fact that he killed the deceased, but alleged that the death of this was the result of mutual agreement they had concluded to commit suicide. His defense maintains that the crime was committed murder is mitigated by extenuating circumstances will be considered later. The defendant appealed the ruling that he found guilty of the crime of murder in the person of Elisa Jere and he was condemned to life imprisonment, the ancillary law, to indemnify the heirs of the deceased in the amount of P2, 000 and to pay the costs. The appellant was a business student at the Ateneo de Manila. The deceased was a student at the University of Santo Tomas pre-med course. In June 1938 the appellant was captivated by the deceased and that you agree to the following month and since then sustuvieron love relationships, letters daily. Before accepting the appellant the deceased supported it and loving relationships with the cadet Ramon Gelvezon and this was regarded as one of the suitors of that. On the morning of October 20, 1938 the appellant, the deceased and her friend Suzanne Montelibano went to Baguio City in the Ilocos Express. On arrival, the appellant was staying in room No. 21 of Zigzag Hotel and the deceased and her friend in the room No. 19. Both rooms were separated by another. At about 5 pm the same day the three went to Teachers' Camp and there Gelvezon was introduced by the deceased to Montserrat and the appellant. On the afternoon of 22 of the same month the three were again at Teachers' Camp and there were entertained by Gelvezon in a game of basketball. At dusk the same day the deceased phoned Gelvezon and after having talked both, this gives the device to the appellant. In the conversation that his rival said both were gallant Gelvezon and offered reciprocally to continue courting the deceased. Shortly after the telephone conversation the deceased went to Teachers' Camp, accompanied by Gelvezon, where they remained until about 9 pm. The appellant and Montserrat were in search of the deceased and how they found out the building of shows (showhouse), was taken to the hotel and on the way the appellant's recriminodiciendo if that was going to keep doing, he would rather see her dead before that loss. On the morning of October 23 the same year the appellant and the deceased went together to the church and heard mass. Leaving the church, about 6, the two embarked on a Taxicab and the appellant instructed the driver to lead them to Mines View Park. When the car was headed to go to that site and ordered the driver to turn around and you illevara the hotel, but again the appellant instructed the driver to proceed in the direction the Mines View Park. To be in front of the Post Office the driver stopped the car because he heard that the door had

opened and saw that the deceased was the one who opened it, I ask the two passengers who would obey. On that occasion the driver observed that the deceased was pale and tried to jump out the door unless it would lead to the hotel. The driver takes you to Zigzag Hotel. Before reaching the hotel, the deceased accept the appellant's invitation to go to walk at 5 pm. About 1:30 in the nap of the same provisions the deceased felt a heart attack and the doctor that the treatment "an injection and prescribed rest and not go outside. Shortly after the visit of Gelvezon who remained in the room until 4 pm. During this time the deceased was lying in bed and the appellant entered five times in the Gelvezon room while she was inside. Before leaving the hotel, Gelvezon, the appellant, the deceased and of Montelibano went to the hotel room and the deceased Gelvezon and danced to the beat of a phonograph. When Montelibano Gelvezon and were to go to a tea that was to hit the Teachers' Camp, the deceased meant to accompany his desire, to which the appellant's told not to do such a thing and should not go. As soon as Montelibano Gelvenzon and had left the hotel, the appellant called a Taxicab who came at once handled by the driver Abonejar Nicomedes. The appellant embarked on the order followed by the deceased and instructed the driver to take them to the Teachers' Camp.When they were along Leonard Wood Road, near the Teachers' Camp, Abonejar suddenly heard that the deceased cried with fear and terror. I look at the mirror in front of him and saw that the appellant stabbed the deceased with a double-edged knife is marked as Exhibit "AA." Stop the car and be within the appellant was struck the deceased in the chest with the knife and that this would stop the blows with his hands. Automotive Abonejar alighted and saw that the appellant was injured with the same weapon. Unemployment Abonejar another Taxicabhad happened and beg the driver to driving that would track the incident to the police. After a taro arrived on the scene a group of policemen led by Sergeants Bugayong and blossom. The police found the deceased lying dead, face up on the floor of the car, head to the left door and the appellant sitting in the back seat, bent over the body of the deceased. Wounds that had the appellant and the deceased were bleeding profusely and in the car they found the bloodied doubleedged knife as well as the purse of the deceased. The appellant and the corpse of the deceased were taken to hospital in Baguio. The body of the deceased had two serious and fatal injuries in the chest, one on the right shoulder, three in the back, another on his right forearm, several in the fingers of both hands, plus a contusion on the shoulder and scratches left in the forearm and right arm. The appellant had two wounds that were inferred to himself, which forced him to be hospitalized for long. As mentioned above, the appellant admitted having killed the deceased and the defense argues that the crime was committed is that of manslaughter and not murder. The court upheld the concurrence of the fact that in his opinion malice qualify the offense turning it into murder. In the third error signal is intended that the qualifying circumstance has not been tested in the fifth error signal reiterates that the crime is manslaughter. On the way the attack was executed by the appellant no further proof that the statement provided by Nicomedes Abonejar, the chauffeur who drove the taxi in which the crime was developed. According to the witness the first time he perceived that something extraordinary happened in the car was when I noticed that he had left the door open and saw that the deceased tried to jump out. Then he saw the appellant stabbed the double-edged knife to the deceased, and this is defended with their hands. Stop the car and that was when he saw that the deceased had fallen lifeless inside the car and had received fatal injuries and the appellant, also wounded, was bent toward the body of the victim. All this happened in a very short time. Assuming that the deceased full of terror I try to jump from the car and

immediately after he was repeatedly assaulted and injured by the appellant, it is undeniable that the aggression was unexpected and sudden and the appellant has been conducted without risk of person in view of that the deceased could not defend himself or offer any resistance due to the small space of the car where the two were. The fact that the deceased strike some blows with their hands do not change the circumstances under which carried out the aggression whenever he did instinctively, and it was not appropriate means to evade the defense constituted armed aggression. The fact is highlighted malice (Article 14, 16, of the Revised Penal Code) and the court did not err in holding as a qualifying crime of murder. The Court appreciated the premeditation known as an aggravating circumstance that compensated by the youth of the appellant that I consider as a mitigating circumstance. On the second point of error alleges that the facts do not support the conclusion of premeditation known being present. In the commission of the crime details that abound in our view clearly demonstrate the presence of this aggravating factor. Will be recalled that one of the letters of the deceased Gelvezon give the appellant, he read a passage intimate woke him jealous. According to the appellant himself, he conceived the idea of killing the deceased on the night of October 22, 1938 when the two alleged suicide pact had been agreed as a result of serious trouble that he had received in connection with the conduct of the deceased. On the morning of 23 of the same month the appellant persisted in the idea of boarding a crime when the deceased in a taxi and instructed the driver to lead them to Mines View Park. The deceased must have suspected the sinister plan of the appellant as insistently resisted going to that place and barely got it returned to the hotel. Before the crime the appellant wrote letters to his parents, brothers and sisters and a priest and they said goodbye to all of them. Finally, the last note he wrote in his own handwriting assignment that he and the deceased were buried both in Black or Batangas and on his tomb was inscribed the following epitaph: "They Love Each Other So Much That They Can not Afford to be separated. " All these circumstances demonstrate conclusively that the crime was committed with premeditation by the appellant (Article 14, Article 13 of the Revised Penal Code). It should be appreciated the aggravating circumstance of premeditation known when the offense has been pondered thoughtfully by the offender, when prepared in advance means that he believed on purpose to run it, and when he had time to cool reason to take charge of their subsequent consequences (Judgments of the Supreme Court of Spain of December 26, 1887 and 1. September 1893; EU against Eulalio Cornejo, 28 Phil Jur., 476). It is intended that there was no malice or premeditation known because between the appellant and the deceased had entered into a suicide pact both. We believe that the Court was right to reject such a defense. Tests have not shown such a suicide pact. But even if there had been no justification of the crime would not undermine the premeditation and malice that have attended. The death of the deceased was not a suicide because he was directly caused by the appellant and Article 253 of the Revised Penal Code criminalizes the act of helping to commit suicide. It is held on the first point of error that must be upheld in favor of the appellant the mitigating 6a of Article 13 of the Revised Penal Code for having acted upon the stimuli were so powerful that naturally fit and blindness. We believe that the mitigation has been busy, because it appears that jealousy was the motive which induced the appellant to commit the

crime. As noted in the case of the United States against Vicente Santillan, 4 Jur Fil., 170, "the resentment of rivalry in an affair with a woman is a powerful stimulus of jealousy, as appropriate to produce fit and blindness." We found baseless the claim of the defense recorded in the fourth points of error to the effect that the appellant's condition while he was apprehended by the authorities is a similar circumstance and analogous to the voluntary submission referred to in Article 13, 2, of Revised Penal Code. The voluntary submission to the authorities is considered by the Revised Penal Code as a circumstance that mitigates the offense run by the offender, acknowledges his repentance basis in this case can not resemble the condition in which the appellant was at the time their apprehension. For the reasons expressed below is equally untenable theory exposed in the sixth and final error signal that the appellant is entitled to a indeterminate sentence in accordance with Law No. 4103, as amended by Act . 4225. The Court appreciated the appellant's youth as a mitigating factor that mitigates criminal responsibility and compensated by the aggravating circumstance of premeditation known. The Attorney General believes that such mitigating factor has not busy, because when you use the offense the appellant was over 18 years of age. Article 13, paragraph 2, of the Revised Penal Code provides that the mitigating circumstances were considered to be the culprit under 18 or over 70 years of age. Not submitted any proof of age that the appellant had at the time that perpetrated the crime, but when he declared on May 8, 1939 manifesto that was 19 years. In preliminary research carried on 25 November 1938 the appellant himself said he had 19 years. Accepting that this was his exact age, it follows that committed the crime when he was 18 years and 11 months. The court took into account the appellant's age will appreciate as a mitigating factor, the fact that according to article 320 of the Code of Civil Procedure has been amended by Law No. 1891, a person is not considered able to exercise their rights or bound but from his 21st birthday and since then becomes an adult, and held that appellant's youth contributed a great way to not act with the maturity of an adult trial. This question has been resolved and in the case of The People against Macario Sera Josefa, 52 Jur Fil., 213, where this Court said: With regard to the age that the accused had to commit the crime, 19 years and six months, it is true that for the full exercise of their civil rights so he was not trained to be less of age according to the Civil Code. But please note that the degree of discernment that is required of a person criminally accountable for their actions, is not the same as is required for the full exercise of civil rights in the field. And inside the penalty area, crime has its degree correlated to the individual's age. It is true that, as well as obvious, the reason for such degrees of crime by age, based on less or greater discernment, it is difficult for the Constitutional Right to set the limits of such degrees, but does not concern us resolve these legal issues. Our function is to apply the law, the right set up such as this, and positive law in the criminal field, requires full responsibility, as the defendant has already completed 18 years of age. We are not allowed to take into account as mitigating graph 19 years and 6 months of age who had the defendant to commit the crime. Nor can we consider, under the circumstances eighth Article 9 of the Penal Code, as the same entity analogous to the previous ones in that article. More than equality or analogy in the

state, so there is gradation, and gradation marked by law. Consider that age as a mitigating circumstance the defendant would amount to amending the age limit fixed in the second circumstance, Article 9 of the Code. In the case of People against Macabangon, RG No. 44 783, enacted on October 26, 1936, the Court seized of the same mitigating said: We declare that the fact of having only 19 years old the defendant is not a mitigating factor under No. 2 of that article, can not be regarded as similar in nature according to the No. 10, therefore the law grants the benefit only to minor 18 or older than 70 years. The cars do not provide any detail to indicate that the age of the accused INFU for the better for the commission of the crime. There is no evidence to even insinuate that because of his age did not have the maturity of an adult trial. We conclude that the appellant's age is not a mitigating circumstance must be assessed in its favor. Summarizing the circumstances under which the crime was committed, the Attorney General maintains that have attended the premeditation aggravating known, which is embedded in the cunning (People Against Madrid, RG No. 41 967), abuse of trust and use of vehicle motor, without any mitigating that can compensate for any of the aggravating factors mentioned. The breach of trust must be upheld in this case, because being the boyfriend of the deceased appellant overreach the confidence that he had deposited, and the use of motor vehicle is another aggravating factor that must be assessed because the offense was committed in taxi was called and used by the same appellant. The crime committed by the appellant is to be murder qualified by treachery and is punishable by Article 248 of the Revised Penal Code with reclusion temporal in its maximum degree to death, and having attended his commission in the aggravating circumstances of premeditation known breach of trust and use of motor vehicle and must be compensated with one of these mitigating outburst and obfuscation, to impose the penalty prescribed in its maximum degree to death. But, for lack of a unanimous vote of the members of this Court should impose the penalty next lower in degree to the death penalty in this case is life imprisonment, in accordance with what provides the last paragraph of Article 133 of Revised Administrative Code, was amended according to Article 2 of Law No. 3 of the Commonwealth. It confirms the sentence appeal, the costs of this instance to the appellant. So ordered. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 94308 June 16, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUBEN E. ILAOA and ROGELIO E. ILAOA, accused-appellants. The Solicitor General for plaintiff- appellee. Buen Zamar for accused- appellants.

BELLOSILLO, J.: Pfc. Reynaldo P. Angeles was dispatched in the early morning of 5 November 1987 to Tinio St., Sta. Maria Phase I, Balibago, Angeles City, where the decapitated body of a man, later identified through his voters identification card as Nestor de Loyola, was found in a grassy portion thereof. Apart from the decapitation, the deceased bore forty-three (43) stab wounds in the chest as well as slight burns all over the body. The head was found some two (2) feet away from the corpse. Five persons, Ruben E. Ilaoa, Rogelio E. Ilaoa, Rodel E. Ilaoa, Julius Eliginio and Edwin Tapang, were charged for the gruesome murder of Nestor de Loyola. However, only the brothers Ruben and Rogelio stood trial since the other accused escaped and were never apprehended. On 15 June 1990, the Regional Trial Court of Angeles City found Ruben and Rogelio guilty of murder with the attendant circumstances of evident premeditation, abuse of superior strength and cruelty, and imposed upon them the penalty of "life imprisonment." 1 The conviction was based on the following circumstantial evidence: One. The deceased Nestor de Loyola was seen at about eleven oclock in the evening of 4 November 1987, in a drinking session with his compadre Ruben Ilaoa together with Julius Eliginio, Edwin Tapang and a certain "Nang Kwang" outside Rubens apartment. 2 Two. The drunken voices of Ruben and Nestor engaged in an apparent argument were later on heard. 3 Nestor was then seen being kicked and mauled by Ruben and his brother Rodel, Julius Eliginio and Edwin Tapang. 4Nestor was crying all the while, "Pare, aray, aray!" Afterwards, Nestor, who appeared drunk, was seen being "dragged" 5 into Ruben Ilaoas apartment. Nestor was heard saying, "Pare, bakit ninyo ako ginaganito, hirap na hirap na ako!" 6 Three. Ruben Ilaoa and Julius Eliginio borrowed Alex Villamils tricycle at about two oclock the following morning allegedly for the purpose of bringing to the hospital a neighbor who was about to give birth. Ruben was seen driving the tricycle alone, with a sack which looked as though it contained a human body, placed in the sidecar. The tricycle was returned an hour later to Alex who noticed bloodstains on the floor. The latter thought that they were those of the pregnant woman.

Four. Blood was found on Rubens shirt when he was asked to lift it during the investigation by the police. 7Moreover, Rubens hair near his right forehead was found partly burned and his shoes were splattered with blood.8 Susan Ocampo, Rubens live-in partner, was likewise seen in the early morning of 5 November 1987 sweeping what appeared to be blood at the entrance of their apartment. 9 In this appeal, brothers Ruben and Rogelio Ilaoa argue for their acquittal. They contend that the circumstantial evidence relied upon by the trial court for their conviction failed to establish their guilt beyond reasonable doubt. Specifically, they assail the finding of evident premeditation, abuse of superior strength and cruelty as totally unwarranted. We affirm Ruben Ilaoas guilt having been satisfactorily established by the evidence on hand, albeit circumstantial. However, we reverse the conviction of Rogelio as we find it patently baseless. In finding Rogelio guilty of murder, the court a quo relied solely on the testimony that he helped his brother Ruben drag Nestor de Loyola inside Rubens apartment where the deceased was last seen alive. Apart from such testimony, however, there is nothing else to link Rogelio to the killing. To warrant a conviction on the basis of circumstantial evidence, three requisites must concur: (a) there must be more than one circumstance; (b) the circumstances from which the inferences are derived are proven; and, (c) the combination of all the circumstances is such as to prove the guilt of the accused beyond reasonable doubt. 10 In the case at bench, it does not require much analysis to conclude that the circumstance relied upon to establish Rogelio Ilaoas guilt, i.e., the alleged dragging of the deceased to his brothers apartment, is totally inadequate for a conviction, having miserably failed to meet the criteria. This is especially so where the veracity of such circumstance is even open to question. While Antonio Ramos and Abdulia Logan testified that Rogelio Ilaoa helped his brother drag the deceased to his apartment, Eustancia Bie who claimed to have witnessed the same incident positively testified that it was Ruben Ilaoa and Julius Eliginio who did so. 11 Rogelio Ilaoa was not mentioned. Not having been adequately established, in addition to being uncorroborated, such circumstance alone cannot be the basis of Rogelios conviction. Rubens case, however, is a totally different matter. Unlike that of his brother, Ruben Ilaoas fate was most definitely assured by the unbroken chain of circumstances which culminated in the discovery of Nestor de Loyolas decapitated body in the early morning of 5 November 1987. As found by the trial court, in the late evening of 4 November 1987, appellant Ruben Ilaoa was engaged in a drinking session with the deceased Nestor de Loyola together with several others. Ruben was heard arguing with Nestor. A few moments later, Ruben mauled and kicked the deceased with the help of their drinking companions just outside Rubens apartment. As the deceased cried "Aray! Aray!" and "Pare, bakit nyo ako ginaganito? Hirap na hirap na ako!" appellant dragged the deceased with the help of Julius Eliginio to the apartment from where a mans cries were continued to be heard later. To further seal the case against him, Ruben borrowed Alex Villamils tricycle at two oclock in the morning of 5 November 1987 on the pretext that a neighbor was about to give birth and had to be rushed

to the hospital. However, he was seen driving the tricycle alone with a sack placed in the sidecar. The sack looked as if it contained a human body. 12 Then, an hour later, or at three oclock in the morning, the tricycle was returned with bloodstains on the floor. For his defense, appellant Ruben Ilaoa does not dispute the testimony of an eyewitness that he was driving the tricycle at past two oclock in the morning with the sack in the sidecar. However, he claims that the sack containedbuntot ng pusa, a local term for marijuana, not a human body, which he delivered to a designated place in Fields Avenue as a favor to his compadre Nestor de Loyola whom he could not refuse. Moreover, it was the vomit discharged by his drinking companions that was being swept clean by his girlfriend at the entrance of their apartment in the early morning of 5 November 1987, not blood as the witnesses asseverated. We find the version of the prosecution more persuasive than the defense. The fact that appellant quarreled with the deceased, then mauled and pulled him to the apartment where the latter was last seen alive, in addition to borrowing a tricycle which was found with bloodstains when returned, sufficiently point to Ruben as the culprit responsible for the crime. The fact that the deceased was his compadre, hence, presumably would have no motive to kill the latter, is not enough to exculpate appellant. It is a matter of judicial knowledge that persons have been killed or assaulted for no apparent reason at all, 13 and that friendship or even relationship is no deterrent to the commission of a crime. 14 If we are to believe appellant Ruben, we will not be able to account for the blood found on the floor of the tricycle after it was brought back to the owner. Ruben himself could not explain away such testimony for he belied the excuse that the tricycle was needed to rush a pregnant woman to the hospital, which was the explanation he gave to Alex Villamil when he borrowed it. We cannot even consider that the story about the blood on the tricycle was simply concocted by Alex Villamil to incriminate Ruben because the latter was his friend, as Ruben himself has admitted. 15 In fact he could think of no reason for Alex Villamil to testify falsely against him. 16 Despite the foregoing, however, we hold appellant liable only for homicide, not murder, on the ground that the qualifying circumstances alleged in the information, namely, abuse of superior strength, cruelty and evident premeditation, were not sufficiently proved to be appreciated against appellant. Abuse of superior strength cannot be considered because there was no evidence whatsoever that appellant was physically superior to the deceased and that the former took advantage of such superior physical strength to overcome the latters resistance to consummate the offense. 17 The fact that Nestor de Loyolas decapitated body bearing fortythree (43) stab wounds, twenty-four (24) of which were fatal, 18 was found dumped in the street is not sufficient for a finding of cruelty where there is no showing that appellant Ruben Ilaoa, for his pleasure and satisfaction, caused Nestor de Loyola to suffer slowly and painfully and inflicted on him unnecessary physical and moral pain. 19 Number of wounds alone is not the criterion for the appreciation of cruelty as an aggravating circumstance. 20 Neither can it be inferred from the mere fact that the victims dead body was dismembered. 21Evident premeditation cannot likewise be considered. There is nothing in the records to show that appellant, prior to the night in question, resolved to kill Nestor de

Loyola, nor is there proof to show that such killing was the result of meditation, calculation or resolution on his part. On the contrary, the evidence tends to show that the series of circumstances which culminated in the killing constitutes an unbroken chain of events with no interval of time separating them for calculation and meditation. Absent any qualifying circumstance, Ruben Ilaoa should only be held liable for homicide. The penalty prescribed for homicide in Art. 249 of the Revised Penal Code is reclusion temporal. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstances, the maximum shall be taken from the medium period of reclusion temporal, which is fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, in any of its periods, the range of which is six (6) years and one (1) day to twelve (12) years. In line with present jurisprudence, the civil indemnity fixed by the court a quo for the death of Nestor de Loyola is increased from P30,000.00 to P50,000.00. WHEREFORE, the judgment finding accused RUBEN E. ILAOA guilty beyond reasonable doubt is AFFIRMED but only for homicide, instead of murder. Consequently, he is sentenced to an indeterminate prison term of eight (8) years, ten (10) months and twenty (20) days of prision mayor medium, as minimum, to sixteen (16) years, four (4) months and ten (10) days of reclusion temporal medium as maximum. In addition, accused-appellant RUBEN E. ILAOA is ordered to pay the heirs of Nestor de Loyola P50,000.00 as civil indemnity and, as fixed by the court a quo, P46,765.00 as actual damages, P10,000.00 as reasonable attorneys fees and expenses of litigation, and P10,000.00 for moral damages. Accused-appellant ROGELIO E. ILAOA, however, is ACQUITTED of the crime charged for obvious insufficiency of evidence. SO ORDERED.