MODULE 8: AGGRAVATING CIRCUMSTANCES

A. Classes of Aggravating Circumstances

a. Art. 14, RPC
b. Article 62, RPC
c. Art. 160, RPC
d. Section 20 (C) of Republic Act No. 9344

TITLE IV
TREATMENT OF CHILDREN BELOW THE AGE OF CRIMINAL RESPONSIBILITY

SEC. 20. Children Below the Age of Criminal Responsibility. - If it has been determined that the child
taken into custody is fifteen (15) years old or below, the authority which will have an initial contact with
the child has the duty to immediately release the child to the custody of his/her parents or guardian, or
in the absence thereof, the child's nearest relative. Said authority shall give notice to the local social
welfare and development officer who will determine the appropriate programs in consultation with the
child and to the person having custody over the child. If the parents, guardians or nearest relatives
cannot be located, or if they refuse to take custody, the child may be released to any of the following: a
duly registered nongovernmental or religious organization; a barangay official or a member of the
Barangay Council for the Protection of Children (BCPC); a local social welfare and development officer;
or when and where appropriate, the DSWD. If the child referred to herein has been found by the Local
Social Welfare and Development Office to be abandoned, neglected or abused by his parents, or in the
event that the parents will not comply with the prevention program, the proper petition for involuntary
commitment shall be filed by the DSWD or the Local Social Welfare and Development Office pursuant to
Presidential Decree No. 603, otherwise ,known as "The Child and Youth Welfare Code".

e. Republic Act No. 10591

[REPUBLIC ACT NO. 10591]

AN ACT PROVIDING FOR A COMPREHENSIVE LAW ON FIREARMS AND AMMUNITION AND PROVIDING
PENALTIES FOR VIOLATIONS THEREOF

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

ARTICLE I

TITLE, DECLARATION OF POLICY AND

DEFINITION OF TERMS

SECTION 1. Short Title. – This Act shall be known as the “Comprehensive Firearms and Ammunition
Regulation Act”.
SEC. 2. Declaration of State Policy. – It is the policy of the State to maintain peace and order and protect
the people against violence. The State also recognizes the right of its qualified citizens to self-defense
through, when it is the reasonable means to repel the unlawful aggression under the circumstances, the
use of firearms. Towards this end, the State shall provide for a comprehensive law regulating the
ownership, possession, carrying, manufacture, dealing in and importation of firearms, ammunition, or
parts thereof, in order to provide legal support to law enforcement agencies in their campaign against
crime, stop the proliferation of illegal firearms or weapons and the illegal manufacture of firearms or
weapons, ammunition and parts thereof.

SEC. 3. Definition of Terms. – As used in this Act:

(a) Accessories refer to parts of a firearm which may enhance or increase the operational efficiency or
accuracy of a firearm but will not constitute any of the major or minor internal parts thereof such as, hut
not limited to, laser scope, telescopic sight and sound suppressor or silencer.

(b) Ammunition refers to a complete unfixed unit consisting of a bullet, gunpowder, cartridge case and
primer or loaded shell for use in any firearm.

(c) Antique firearm refers to any: (1) firearm which was manufactured at least seventy-five (75) years prior
to the current date but not including replicas; (2) firearm which is certified by the National Museum of
the Philippines to be curio or relic of museum interest; and (3) any other firearm which derives a
substantial part of its monetary value from the fact that it is novel, rare, bizarre or because of its
association with some historical figure, period or event.

(d) Arms smuggling refers to the import, export, acquisition, sale, delivery, movement or transfer of
firearms, their parts and components and ammunition, from or across the territory of one country to that
of another country which has not been authorized in accordance with domestic law in either or both
country/countries.

(e) Authority to import refers to a document issued by the Chief of the Philippine National Police (PNP)
authorizing the importation of firearms, or their parts, ammunition and other components.

(f) Authorized dealer refers to any person, legal entity, corporation, partnership or business entity duly
licensed by the Firearms and Explosive Office (FEO) of the PNP to engage in the business of buying and
selling ammunition, firearms or parte thereof, at wholesale or retail basis.

(g) Authorized importer refers to any person, legal entity, corporation, partnership or business duly
licensed by the FEO of the PNP to engage in the business of importing ammunition and firearms, or parts
thereof into the territory of the Republic of the Philippines for purposes of sale or distribution under the
provisions of this Act.

(h) Authorized manufacturer refers to any person, legal entity, corporation, or partnership duly licensed
by the FEO of the PNP to engage in the business of manufacturing firearms, and ammunition or parts
thereof for purposes of sale or distribution.
(i) Confiscated firearm refers to a firearm that is taken into custody by the PNP, National Bureau of
Investigation (NBI), Philippine Drug Enforcement Agency (PDEA), and all other law enforcement agencies
by reason of their mandate and must be necessarily reported or turned over to the PEO of the PNP.

(j) Demilitarized firearm refers to a firearm deliberately made incapable of performing its main purpose
of firing a projectile.

(k) Duty detail order refers to a document issued by the juridical entity or employer wherein the details of
the disposition of firearm is spelled-out, thus indicating the name of the employee, the firearm
information, the specific duration and location of posting or assignment and the authorized bonded
firearm custodian for the juridical entity to whom such firearm is turned over after the lapse of the order.

(l) Firearm refers to any handheld or portable weapon, whether a small arm or light weapon, that expels
or is designed to expel a bullet, shot, slug, missile or any projectile, which is discharged by means of
expansive force of gases from burning gunpowder or other form of combustion or any similar instrument
or implement. For purposes of this Act, the barrel, frame or receiver is considered a firearm.

(m) Firearms Information Management System (FIMS) refers to the compilation of all data and
information on firearms ownership and disposition for record purposes.

(n) Forfeited firearm refers to a firearm that is subject to forfeiture by reason of court order as accessory
penalty or for the disposition by the FEO of the PNP of firearms considered as abandoned, surrendered,
confiscated or revoked in compliance with existing rules and regulations.

(o) Gun club refers to an organization duly registered with and accredited in good standing by the FEO of
the PNP which is established for the purpose of propagating responsible and safe gun ownership, proper
appreciation and use of firearms by its members, for the purpose of sports and shooting competition, self-
defense and collection purposes.

(p) Gunsmith refers to any person, legal entity, corporation, partnership or business duly licensed by the
FEO of the PNP to engage in the business of repairing firearms and other weapons or constructing or
assembling firearms and weapons from finished or manufactured parts thereof on a per order basis and
not in commercial quantities or of making minor parts for the purpose of repairing or assembling said
firearms or weapons.

(q) Imitation firearm refers to a replica of a firearm, or other device that is so substantially similar in
coloration and overall appearance to an existing firearm as to lead a reasonable person to believe that
such imitation firearm is a real firearm.

(r) Licensed citizen refers to any Filipino who complies with the qualifications set forth in this Act and duly
issued with a license to possess or to carry firearms outside of the residence in accordance with this Act.

(s) Licensed, juridical entity refers to corporations, organizations, businesses including security agencies
and local government units (LGUs) which are licensed to own and possess firearms in accordance with this
Act.
(t) Light weapons are: Class-A Light weapons which refer to self-loading pistols, rifles and carbines,
submachine guns, assault rifles and light machine guns not exceeding caliber 7.62MM which have fully
automatic mode; and Class-B Light weapons which refer to weapons designed for use by two (2) or more
persons serving as a crew, or rifles and machine guns exceeding caliber 7.62MM such as heavy machine
guns, handheld underbarrel and mounted grenade launchers, portable anti-aircraft guns, portable anti-
tank guns, recoilless rifles, portable launchers of anti-tank missile and rocket systems, portable launchers
of anti-aircraft missile systems, and mortars of a caliber of less than 100MM.

(u) Long certificate of registration refers to licenses issued to government agencies or offices or
government-owned or -controlled corporations for firearms to be used by their officials and employees
who are qualified to possess firearms as provider in this Act, excluding security guards.

(v) Loose firearm refers to an unregistered firearm, an obliterated or altered firearm, firearm which has
been lost or stolen, illegally manufactured firearms, registered firearms in the possession of an individual
other than the licensee and those with revoked licenses in accordance with the rules and regulations.

(w) Major part or components of a firearm refers to the barrel, slide, frame, receiver, cylinder or the bolt
assembly. The term also includes any part or kit designed and intended for use in converting a semi-
automatic burst to a full automatic firearm.

(x) Minor parts of a firearm refers to the parts of the firearm other than the major parts which are
necessary to effect and complete the action of expelling a projectile by way of combustion, except those
classified as accessories.

(y) Permit to carry firearm outside of residence refers to a written authority issued to a licensed citizen by
the Chief of the PNP which entitles such person to carry his/her registered or lawfully issued firearm
outside of the residence for the duration and purpose specified in the authority.

(z) Permit to transport firearm refers to a written authority issued to a licensed citizen or entity by the
Chief of the PNP or by a PNP Regional Director which entitles such person or entity to transport a particular
firearm from and to a specific location within the duration and purpose in the authority.

(aa) Residence refers to the place or places of abode of the licensed citizen as indicated in his/her license.

(bb) Shooting range refers to a facility established for the purpose of firearms training and skills
development, firearm testing, as well as for sports and competition shooting either for the exclusive use
of its members or open to the general public, duly registered with and accredited in good standing by the
FEO of the PNP.

(cc) Short certificate of registration refers to a certificate issued by the FEO of the PNP for a government
official or employee who was issued by his/her employer department, agency or government-owned or -
controlled corporation a firearm covered by the long certificate of registration.

(dd) Small arms refer to firearms intended to be or primarily designed for individual use or that which is
generally considered to mean a weapon intended to be fired from the hand or shoulder, which are not
capable of fully automatic bursts of discharge, such as:
(1) Handgun which is a firearm intended to be fired from the hand, which includes:

(i) A pistol which is a hand-operated firearm having a chamber integral with or permanently aligned with
the bore which may be self-loading; and

(ii) Revolver which is a hand-operated firearm with a revolving cylinder containing chambers for individual
cartridges.

(2) Rifle which is a shoulder firearm or designed to be fired from the shoulder that can discharge a bullet
through a rifled barrel by different actions of loading, which may be classified as lever, bolt, or self-loading;
and

(3) Shotgun which is a weapon designed, made and intended to fire a number of ball shots or a single
projectile through a smooth bore by the action or energy from burning gunpowder.

(ee) Sports shooting competition refers to a defensive, precision or practical sport shooting competition
duly authorized by the FEO of the PNP.

(ff) Tampered, obliterated or altered firearm refers to any firearm whose serial number or other
identification or ballistics characteristics have been intentionally tampered with, obliterated or altered
without authority or in order to conceal its source, identity or ownership.

(gg) Thermal weapon sight refers to a battery operated, uncooled thermal imaging device which amplifies
available thermal signatures so that the viewed scene becomes clear to the operator which is used to
locate and engage targets during daylight and from low light to total darkness and operates in adverse
conditions such as light rain, light snow, and dry smoke or in conjunction with other optical and red dot
sights.

ARTICLE II

OWNERSHIP AND POSSESSION OF FIREARMS

SEC. 4. Standards and Requisites for Issuance of and Obtaining a License to Own and Possess Firearms. –
In order to qualify and acquire a license to own and possess a firearm or firearms and ammunition, the
applicant must be a Filipino citizen, at least twenty-one (21) years old and has gainful work, occupation or
business or has filed an Income Tax Return (ITR) for the preceding year as proof of income, profession,
business or occupation.

In addition, the applicant shall submit the following certification issued by appropriate authorities
attesting the following:

(a) The applicant has not been convicted of any crime involving moral turpitude:

(b) The applicant has passed the psychiatric test administered by a PNP-accredited psychologist or
psychiatrist;
(c) The applicant has passed the drug test conducted by an accredited and authorized drug testing
laboratory or clinic;

(d) The applicant has passed a gun safety seminar which is administered by the PNP or a registered and
authorized gun club;

(e) The applicant has filed in writing the application to possess a registered firearm which shall state the
personal circumstances of the applicant;

(f) The applicant must present a police clearance from the city or municipality police office; and

(g) The applicant has not been convicted or is currently an accused in a pending criminal case before any
court of law for a crime that is punishable with a penalty of more than two (2) years.

For purposes of this Act, an acquittal or permanent dismissal of a criminal case before the courts of law
shall qualify the accused thereof to qualify and acquire a license.

The applicant shall pay the reasonable licensing fees as may be provided in the implementing rules and
regulations of this Act.

An applicant who intends to possess a firearm owned by a juridical entity shall submit his/her duty detail
order to the FEO of the PNP.

SEC. 5. Ownership of Firearms and Ammunition by a Juridical Entity. – A juridical person maintaining its
own security force may be issued a regular license to own and possess firearms and ammunition under
the following conditions:

(a) It must be Filipino-owned and duly registered with the Securities and Exchange Commission (SEC);

(b) It is current, operational and a continuing concern;

(c) It has completed and submitted all its reportorial requirements to the SEC; and

(d) It has paid all its income taxes for the year, as duly certified by the Bureau of Internal Revenue.

The application shall be made in the name of the juridical person represented by its President or any of
its officers mentioned below as duly authorized in a board resolution to that effect: Provided, That the
officer applying for the juridical entity, shall possess all the qualifications required of a citizen applying for
a license to possess firearms.

Other corporate officers eligible to represent the juridical person are: the vice president, treasurer, and
board secretary.

Security agencies and LGUs shall be included in this category of licensed holders but shall be subject to
additional requirements as may be required by the Chief of the PNP.
SEC. 6. Ownership of Firearms by the National Government. – All firearms owned by the National
Government shall be registered with the FEO of the PNP in the name of the Republic of the Philippines.
Such registration shall be exempt from all duties and taxes that may otherwise be levied on other
authorized owners of firearms. For reason of national security, firearms of the Armed Forces of the
Philippines (AFP), Coast Guard and other law enforcement agencies shall only be reported to the FEO of
the PNP.

SEC. 7. Carrying of Firearms Outside of Residence or Place of Business. – A permit to carry firearms outside
of residence shall be issued by the Chief of the PNP or his/her duly authorized representative to any
qualified person whose life is under actual threat or his/her life is in imminent danger due to the nature
of his/her profession, occupation or business.

It shall be the burden of the applicant to prove that his/her life is under actual threat by submitting a
threat assessment certificate from the PNP.

For purposes of this Act, the following professionals are considered to be in imminent danger due to the
nature of their profession, occupation or business:

(a) Members of the Philippine Bar;

(b) Certified Public Accountants;

(c) Accredited Media Practitioners;

(d) Cashiers, Bank Tellers;

(e) Priests, Ministers, Rabbi, Imams;

(f) Physicians and Nurses;

(g) Engineers; and

(h) Businessmen, who by the nature of their business or undertaking, are exposed to high risk of being
targets of criminal elements.

ARTICLE III

REGISTRATION AND LICENSING

SEC. 8. Authority to Issue License. – The Chief of the PNP, through the FEO of the PNP, shall issue licenses
to qualified individuals and to cause the registration of firearms.

SEC. 9. Licenses Issued to Individuals. – Subject to the requirements set forth in this Act and payment of
required fees to be determined by the Chief of the PNP, a qualified individual may be issued the
appropriate license under the following categories;

Type 1 license – allows a citizen to own and possess a maximum of two (2) registered firearms;
Type 2 license – allows a citizen to own and possess a maximum of five (5) registered firearms;

Type 3 license – allows a citizen to own and possess a maximum of ten (10) registered firearms;

Type 4 license – allows a citizen to own and possess a maximum of fifteen (15) registered firearms; and

Type 5 license – allows a citizen, who is a certified gun collector, to own and possess more than fifteen
(15) registered firearms.

For Types 1 to 5 licenses, a vault or a container secured by lock and key or other security measures for the
safekeeping of firearms shall be required.

For Types 3 to 5 licenses, the citizen must comply with the inspection and bond requirements.

SEC. 10. Firearms That May Be Registered. – Only small arms may be registered by licensed citizens or
licensed juridical entities for ownership, possession and concealed carry. A light weapon shall be lawfully
acquired or possessed exclusively by the AFP, the PNP and other law enforcement agencies authorized by
the President in the performance of their duties: Provided, That private individuals who already have
licenses to possess Class-A light weapons upon the effectivity of this Act shall not be deprived of the
privilege to continue possessing the same and renewing the licenses therefor, for the sole reason that
these firearms are Class “A” light weapons, and shall be required to comply with other applicable
provisions of this Act.

SEC. 11. Registration of Firearms. – The licensed citizen or licensed juridical entity shall register his/her/its
firearms so purchased with the FEO of the PNP in accordance with the type of license such licensed citizen
or licensed juridical entity possesses. A certificate of registration of the firearm shall be issued upon
payment of reasonable fees.

For purposes of this Act, registration refers to the application, approval, record-keeping and monitoring
of firearms with the FEO of the PNP in accordance with the type of license issued to any person under
Section 9 of this Act.

SEC. 12. License to Possess Ammunition Necessarily Included. – The licenses granted to qualified citizens
or juridical entities as provided in Section 9 of this Act shall include the license to possess ammunition
with a maximum of fifty (50) rounds for each registered firearm: Provided; That the FEO of the PNP may
allow more ammunition to be possessed by licensed sports shooters.

SEC. 13. Issuance of License to Manufacture or Deal In Firearms and Ammunition. – Any person desiring
to manufacture or deal in firearms, parts of firearms or ammunition thereof, or instruments and
implements used or intended to be used in the manufacture of firearms, parts of firearms or ammunition,
shall make an application to:

(a) The Secretary of the Department of the Interior and Local Government (DILG) in the case of an
application for a license to manufacture; and

(b) The Chief of the PNP in the case of a license to deal in firearms and firearms parts, ammunition and
gun repair.
The applicant shall state the amount of capitalization for manufacture or cost of the purchase and sale of
said articles intended to be transacted by such applicant; and the types of firms, ammunition or
implements which the applicant intends to manufacture or purchase and sell under the license applied
for; and such additional information as may be especially requested by the Secretary of the DILG or the
Chief of the PNP.

The Secretary of the DILG or the Chief of the PNP may approve or disapprove such application based on
the prescribed guidelines. In the case of approval, the Secretary of the DILG or the Chief of the PNP shall
indicate the amount of the bond to be executed by the applicant before the issuance of the license and
the period of time by which said license shall be effective, unless sooner revoked by their authority.

Upon approval of the license to manufacture or otherwise deal in firearms by the Secretary of the DILG
or the Chief of the PNP as the case may be, the same shall be transmitted to the FEO of the PNP which
shall issue the license in accordance with the approved terms and conditions, upon the execution and
delivery by the applicant of the required bond conditioned upon the faithful compliance on the part of
the licensee to the laws and regulations relative to the business licensed.

SEC. 14. Scope of License to Manufacture Firearms and Ammunition. – The scope of the License to
Manufacture firearms and ammunition shall also include the following:

(a) The authority to manufacture and assemble firearms, ammunition, spare parts and accessories,
ammunition components, and reloading of ammunitions, within sites, areas, and factories stated therein.
The Secretary of the DILG shall approve such license;

(b) The license to deal in or sell all the items covered by the License to Manufacture, such as parts, firearms
or ammunition and components;

(c) The authority to subcontract the manufacturing of parts and accessories necessary for the firearms
which the manufacturer is licensed to manufacture: Provided, That the subcontractor of major parts or
major components is also licensed to manufacture firearms and ammunition; and

(d) The authority to import machinery, equipment, and firearm parts and ammunition components for
the manufacture thereof. Firearm parts and ammunition components to be imported shall, however, be
limited to those authorized to be manufactured as reflected in the approved License to Manufacture. The
Import Permit shall be under the administration of the PNP.

A licensed manufacturer of ammunition is also entitled to import various reference firearms needed to
test the ammunition manufactured under the License to Manufacture. A licensed manufacturer of
firearms, on the other hand, is entitled to import various firearms for reference, test and evaluation for
manufacture of similar, types of firearms covered by the License to Manufacture.

An export permit shall, however, be necessary to export manufactured parts or finished products of
firearms and ammunition. The Export Permit of firearms and ammunition shall be under the
administration of the PNP.

SEC. 15. Registration of Locally Manufactured and Imported Firearms. – Local manufacturers and
importers of firearms and major parts thereof shall register the same as follows:
(a) For locally manufactured firearms and major parts thereof, the initial registration shall be done at the
manufacturing facility: Provided, That firearms intended for export shall no longer be subjected to ballistic
identification procedures; and

(b) For imported firearms and major parts thereof, the registration shall be done upon arrival at the FEO
of the PNP storage facility.

SEC. 16. License and Scope of License to Deal. – The License to Deal authorizes the purchase, sale and
general business in handling firearms and ammunition, major and minor parts of firearms, accessories,
spare parts, components, and reloading machines, which shall be issued by the Chief of the PNP.

SEC. 17. License and Scope of License for Gunsmiths. – The license for gunsmiths shall allow the grantee
to repair registered firearms. The license shall include customization of firearms from finished or
manufactured parts thereof on per order basis and not in commercial quantities and making the minor
parts thereof, i.e. pins, triggers, trigger bows, sights and the like only for the purpose of repairing the
registered firearm. The license for gunsmiths shall be issued by the Chief of the PNP.

SEC. 18. Firearms for Use in Sports and Competitions. – A qualified individual shall apply for a permit to
transport his/her registered firearm/s from his/her residence to the firing range/s and competition sites
as may be warranted.

SEC. 19. Renewal of Licenses and Registration. – All types of licenses to possess a firearm shall be renewed
every two (2) years. Failure to renew the license on or before the date of its expiration shall cause the
revocation of the license and of the registration of the firearm/s under said licensee.

The registration of the firearm shall be renewed every four (4) years. Failure to renew the registration of
the firearm on or before the date of expiration shall cause the revocation of the license of the firearm.
The said firearm shall be confiscated or forfeited in favor of the government after due process.

The failure to renew a license or registration within the periods stated above on two (2) occasions shall
cause the holder of the firearm to be perpetually disqualified from applying for any firearm license. The
application for the renewal of the license or registration may be submitted to the FEO of the PNP, within
six (6) months before the date of the expiration of such license or registration.

SEC. 20. Inspection and Inventory. – The Chief of the PNP or his/her authorized representative shall require
the submission of reports, inspect or examine the inventory and records of a licensed manufacturer,
dealer or importer of firearms and ammunition during reasonable hours.

ARTICLE IV

ACQUISITION, DEPOSIT OF FIREARMS, ABANDONED,

DEMILITARIZED AND ANTIQUE FIREARMS

SEC. 21. Acquisition or Purchase and Sale of Firearms and Ammunition. – Firearms and ammunition may
only be acquired or purchased from authorized dealers, importers or local manufacturers and may be
transferred or sold only from a licensed citizen or licensed juridical entity to another licensed citizen or
licensed juridical entity: Provided, That, during election periods, the sale and registration of firearms and
ammunition and the issuance of the corresponding licenses to citizens shall be allowed on the condition
that the transport or delivery thereof shall strictly comply with the issuances, resolutions, rules and
regulations promulgated by the Commission on Elections.

SEC. 22. Deposit of Firearms by Persons Arriving From Abroad. – A person arriving in the Philippines who
is legally in possession of any firearm or ammunition in his/her country of origin and who has declared
the existence of the firearm upon embarkation and disembarkation but whose firearm is not registered
in the Philippines in accordance with this Act shall deposit the same upon written receipt with the
Collector of Customs for delivery to the FEO of the PNP for safekeeping, or for the issuance of a permit to
transport if the person is a competitor in a sports shooting competition. If the importation of the same is
allowed and the party in question desires to obtain a domestic firearm license, the same should be
undertaken in accordance with the provisions of this Act. If no license is desired or leave to import is not
granted, the firearm or ammunition in question shall remain in the custody of the FEO of the PNP until
otherwise disposed of in-accordance with law.

SEC. 23. Return of Firearms to Owner upon Departure from the Philippines. – Upon the departure from the
Philippines of any person whose firearm or ammunition is in the custody of the FEO of the PNP, the same
shall, upon timely request, be delivered to the person through the Collector of Customs. In the case of a
participant in a local sports shooting competition, the firearm must be presented to the Collector of
Customs before the same is allowed to be loaded on board the carrier on which the person is to board.

SEC. 24. Safekeeping of Firearms and Ammunition. – Any licensee may deposit a registered firearm to the
FEO of the PNP, or any Police Regional Office for safekeeping. Reasonable fees for storage shall be
imposed.

SEC. 25. Abandoned Firearms and Ammunition. – Any firearm or ammunition deposited in the custody of
the FEO of the PNP pursuant to the provisions of this Act, shall be deemed to have been abandoned by
the owner or his/her authorized representative if he/she failed to reclaim the same within five (5) years
or failed to advise the FEO of the PNP of the disposition to be made thereof. Thereafter, the FEO of the
PNP may dispose of the same after compliance with established procedures.

SEC. 26. Death or Disability of Licensee. – Upon the death or legal disability of the holder of a firearm
license, it shall be the duty of his/her next of kin, nearest relative, legal representative, or other person
who shall knowingly come into possession of such firearm or ammunition, to deliver the same to the FEO
of the PNP or Police Regional Office, and such firearm or ammunition shall be retained by the police
custodian pending the issuance of a license and its registration in accordance, with this Act. The failure to
deliver the firearm or ammunition within six (6) months after the death or legal disability of the licensee
shall render the possessor liable for illegal possession of the firearm.

SEC. 27. Antique Firearm. – Any person who possesses an antique firearm shall register the same and
secure a collector’s license from the FEO of the PNP. Proper storage of antique firearm shall be strictly
imposed. Noncompliance of this provision shall be considered as illegal possession of the firearm as
penalized in this Act.

ARTICLE V

PENAL PROVISIONS
SEC. 28. Unlawful Acquisition, or Possession of Firearms and Ammunition. – The unlawful acquisition,
possession of firearms and ammunition shall be penalized as follows:

(a) The penalty of prision mayor in its medium period shall be imposed upon any person who shall
unlawfully acquire or possess a small arm;

(b) The penalty of reclusion temporal to reclusion perpetua shall be imposed if three (3) or more small
arms or Class-A light weapons are unlawfully acquired or possessed by any person;

(c) The penalty of prision mayor in its maximum period shall be imposed upon any person who shall
unlawfully acquire or possess a Class-A light weapon;

(d) The penalty of reclusion perpetua shall be imposed upon any person who shall, unlawfully acquire or
possess a Class-B light weapon;

(e) The penalty of one (1) degree higher than that provided in paragraphs (a) to (c) in this section shall be
imposed upon any person who shall unlawfully possess any firearm under any or combination of the
following conditions:

(1) Loaded with ammunition or inserted with a loaded magazine;

(2) Fitted or mounted with laser or any gadget used to guide the shooter to hit the target such as thermal
weapon sight (TWS) and the like;

(3) Fitted or mounted with sniper scopes, firearm muffler or firearm silencer;

(4) Accompanied with an extra barrel; and

(5) Converted to be capable of firing full automatic bursts.

(f) The penalty of prision mayor in its minimum period shall be imposed upon any person who shall
unlawfully acquire or possess a major part of a small arm;

(g) The penalty of prision mayor in its minimum period shall be imposed upon any person who shall
unlawfully acquire or possess ammunition for a small arm or Class-A light weapon. If the violation of this
paragraph is committed by the same person charged with the unlawful acquisition or possession of a small
arm, the former violation shall be absorbed by the latter;

(h) The penalty of prision mayor in its medium period shall be imposed upon any person who shall
unlawfully acquire or possess a major part of a Class-A light weapon;

(i) The penalty of prision mayor in its medium period shall be imposed upon any person who shall
unlawfully acquire or possess ammunition for a Class-A light weapon. If the violation of this paragraph is
committed by the same person charged with the unlawful acquisition or possession of a Class-A light
weapon, the former violation shall be absorbed by the latter;
(j) The penalty of prision mayor in its maximum period shall be imposed upon any person who shall
unlawfully acquire or possess a major part of a Class-B light weapon; and

(k) The penalty of prision mayor in its maximum period shall be imposed upon any person who shall
unlawfully acquire or possess ammunition for a Class-B light weapon. If the violation of this paragraph is
committed by the same person charged with the unlawful acquisition or possession of a Class-B light
weapon, the former violation shall be absorbed by the latter.

SEC. 29. Use of Loose Firearm in the Commission of a Crime. – The use of a loose firearm, when inherent
in the commission of a crime punishable under the Revised Penal Code or other special laws, shall be
considered as an aggravating circumstance: Provided, That if the crime committed with the use of a loose
firearm is penalized by the law with a maximum penalty which is lower than that prescribed in the
preceding section for illegal possession of firearm, the penalty for illegal possession of firearm shall be
imposed in lieu of the penalty for the crime charged: Provided, further, That if the crime committed with
the use of a loose firearm is penalized by the law with a maximum penalty which is equal to that imposed
under the preceding section for illegal possession of firearms, the penalty of prision mayor in its minimum
period shall be imposed in addition to the penalty for the crime punishable under the Revised Penal Code
or other special laws of which he/she is found guilty.

If the violation of this Act is in furtherance of, or incident to, or in connection with the crime of rebellion
of insurrection, or attempted coup d’ etat, such violation shall be absorbed as an element of the crime of
rebellion or insurrection, or attempted coup d’ etat.

If the crime is committed by the person without using the loose firearm, the violation of this Act shall be
considered as a distinct and separate offense.

SEC. 30. Liability of Juridical Person. – The penalty of prision mayor in its minimum to prision mayor in its
medium period shall be imposed upon the owner, president, manager, director or other responsible
officer of/any public or private firm, company, corporation or entity who shall willfully or knowingly allow
any of the firearms owned by such firm, company, corporation or entity to be used by any person or
persons found guilty of violating the provisions of the preceding section, or willfully or knowingly allow
any of them to use unregistered firearm or firearms without any legal authority to be carried outside of
their residence in the course of their employment.

SEC. 31. Absence of Permit to Carry Outside of Residence. – The penalty of prision correccional and a fine
of Ten thousand pesos (P10,000.00) shall be imposed upon any person who is licensed to own a firearm
but who shall carry the registered firearm outside his/her residence without any legal authority therefor.

SEC. 32. Unlawful Manufacture, Importation, Sale or Disposition of Firearms or Ammunition or Parts
Thereof, Machinery, Tool or Instrument Used or Intended to be Used in the Manufacture of Firearms,
Ammunition or Parts Thereof. – The penalty of reclusion temporal to reclusion perpetua shall be imposed
upon any person who shall unlawfully engage in the manufacture, importation, sale or disposition of a
firearm or ammunition, or a major part of a firearm or ammunition, or machinery, tool or instrument used
or intended to be used by the same person in the manufacture of a firearm, ammunition, or a major part
thereof.
The possession of any machinery, tool or instrument used directly in the manufacture of firearms,
ammunition, or major parts thereof by any person whose business, employment or activity does not
lawfully deal with the possession of such article, shall be prima facie evidence that such article is intended
to be used in the unlawful or illegal manufacture of firearms, ammunition or parts thereof.

The penalty of prision mayor in its minimum period to prision mayor in its medium period shall be
imposed upon any laborer, worker or employee of a licensed firearms dealer who shall unlawfully take,
sell or otherwise dispose of parts of firearms or ammunition which the company manufactures and sells,
and other materials used by the company in the manufacture or sale of firearms or ammunition. The buyer
or possessor of such stolen part or material, who is aware that such part or material was stolen, shall
suffer the same penalty as the laborer, worker or employee.

If the violation or offense is committed by a corporation, partnership, association or other juridical entity,
the penalty provided for in this section shall be imposed upon the directors, officers, employees or other
officials or persons therein who knowingly and willingly participated in the unlawful act.

SEC. 33. Arms Smuggling. – The penalty of reclusion perpetua shall be imposed upon any person who shall
engage or participate in arms smuggling as defined in this Act.

SEC. 34. Tampering, Obliteration or Alteration of Firearms Identification. – The penalty of prision
correccional to prision mayor in its minimum period shall be imposed upon any person who shall tamper,
obliterate or alter without authority the barrel, slide, frame, receiver, cylinder, or bolt assembly, including
the name of the maker, model, or serial number of any firearm, or who shall replace without authority
the barrel, slide, frame, receiver, cylinder, or bolt assembly, including its individual or peculiar identifying
characteristics essential in forensic examination of a firearm or light weapon.

The PNP shall place this information, including its individual or peculiar identifying characteristics into the
database of integrated firearms identification system of the PNP Crime Laboratory for future use and
identification of a particular firearm.

SEC. 35. Use of an Imitation Firearm. – An imitation firearm used in the commission of a crime shall be
considered a real firearm as defined in this Act and the person who committed the crime shall be punished
in accordance with this Act: Provided, That injuries caused on the occasion of the conduct of competitions,
sports, games, or any recreation activities involving imitation firearms shall not be punishable under this
Act.

SEC. 36. In Custodia Legis. – During the pendency of any case filed in violation of this Act, seized firearm,
ammunition, or parts thereof, machinery, tools or instruments shall remain in the custody of the court. If
the court decides that it has no adequate means to safely keep the same, the court shall issue an order to
turn over to the PNP Crime Laboratory such firearm, ammunition, or parts thereof, machinery, tools or
instruments in its custody during the pendency of the case and to produce the same to the court when so
ordered. No bond shall be admitted for the release of the firearm, ammunition or parts thereof,
machinery, tool or instrument. Any violation of this paragraph shall be punishable by prision mayor in its
minimum period to prision mayor in its medium period.

SEC. 37. Confiscation and Forfeiture. – The imposition of penalty for any violation of this Act shall carry
with it the accessory penalty of confiscation and forfeiture of the firearm, ammunition, or parts thereof,
machinery, tool or instrument in favor of the government which shall be disposed of in accordance with
law.

SEC. 38. Liability for Planting Evidence. – The penalty of prision mayor in its maximum period shall be
imposed upon any person who shall willfully and maliciously insert; place, and/or attach, directly or
indirectly, through any overt or covert act, any firearm, or ammunition, or parts thereof in the person,
house, effects, or in the immediate vicinity of an innocent individual for the purpose of implicating or
incriminating the person, or imputing the commission of any violation of the provisions of this Act to said
individual. If the person found guilty under this paragraph is a public officer or employee, such person
shall suffer the penalty of reclusion perpetua.

SEC. 39. Grounds for Revocation, Cancellation or Suspension of License or Permit. – The Chief of the PNP
or his/her authorized representative may revoke, cancel or suspend a license or permit on the following
grounds:

(a) Commission of a crime or offense involving the firearm, ammunition, of major parts thereof;

(b) Conviction of a crime involving moral turpitude or any offense where the penalty carries an
imprisonment of more than six (6) years;

(c) Loss of the firearm, ammunition, or any parts thereof through negligence;

(d) Carrying of the firearm, ammunition, or major parts thereof outside of residence or workplace without,
the proper permit to carry the same;

(e) Carrying of the firearm, ammunition, or major parts thereof in prohibited places;

(f) Dismissal for cause from the service in case of government official and employee;

(g) Commission of any of the acts penalized under Republic Act No. 9165, otherwise known as the
“Comprehensive Dangerous Drugs Act of 2002”;

(h) Submission of falsified documents or misrepresentation in the application to obtain a license or permit;

(i) Noncompliance of reportorial requirements; and

(j) By virtue of a court order.

SEC. 40. Failure to Notify Lost or Stolen Firearm or Light Weapon. – A fine of Ten thousand pesos
(P10,000.00) shall be imposed upon any licensed firearm holder who fails to report to the FEO of the PNP
that the subject firearm has been lost or stolen within a period of thirty (30) days from the date of
discovery.

Likewise, a fine of Five thousand pesos (P5,000.00) shall be imposed upon any person holding a valid
firearm license who changes residence or office address other than that indicated in the license card and
fails within a period of thirty (30) days from said transfer to notify the FEO of the PNP of such change of
address.
SEC. 41. Illegal Transfer/Registration of Firearms. – It shall be unlawful to transfer possession of any
firearm to any person who has not yet obtained or secured the necessary license or permit thereof.

The penalty of prision correccional shall be imposed upon any person who shall violate the provision of
the preceding paragraph. In addition, he/she shall be disqualified to apply for a license to possess other
firearms and all his/her existing firearms licenses whether for purposes of commerce or possession, shall
be revoked. If government-issued firearms, ammunition or major parts of firearms or light weapons are
unlawfully disposed, sold or transferred by any law enforcement agent or public officer to private
individuals, the penalty of reclusion temporal shall be imposed.

Any public officer or employee or any person who shall facilitate the registration of a firearm through
fraud, deceit, misrepresentation or submission of falsified documents shall suffer the penalty of prision
correccional.

ARTICLE VI

FINAL PROVISIONS

SEC. 42. Firearms Repository. – The FEO of the PNP shall be the sole repository of all firearms records to
include imported and locally manufactured firearms and ammunition. Within one (1) year upon approval
of this Act, all military and law enforcement agencies, government agencies, LGUs and government-
owned or -controlled corporations shall submit an inventory of all their firearms and ammunition to the
PNP.

SEC. 43. Final Amnesty. – Persons in possession of unregistered firearms and holders of expired license or
unregistered firearms shall register and renew the same through the Final General Amnesty within six (6)
months from the promulgation of the implementing rules and regulations of this Act. During the interim
period of six (6) months, no person applying for license shall be charged of any delinquent payment
accruing to the firearm subject for registration. The PNP shall conduct an intensive nationwide campaign
to ensure that the general public is properly informed of the provisions of this Act.

SEC. 44. Implementing Rules and Regulations. – Within one hundred twenty (120) days from the effectivity
of this Act, the Chief of the PNP, after public hearings and consultation with concerned sectors of society
shall formulate the necessary rules and regulations for the effective implementation of this Act to be
published in at least two (2) national newspapers of general circulation.

SEC. 45. Repealing Clause. – This Act repeals Sections 1, 2, 5 and 7 of Presidential Decree No. 1866, as
amended, and Section 6 of Republic Act No. 8294 and all other laws, executive orders, letters of
instruction, issuances, circulars, administrative orders, rules or regulations that are inconsistent herewith.

SEC. 46. Separability Clause. – If any provision of this Act or any part hereof is held invalid or
unconstitutional, the remainder of the law or the provision not otherwise affected shall remain valid and
subsisting.

SEC. 47. Effectivity. – This Act shall take effect after fifteen (15) days from its publication in a newspaper
of nationwide circulation.
f. Sec. 25 of Republic Act No. 9165

Section 25. Qualifying Aggravating Circumstances in the Commission of a Crime by an Offender Under
the Influence of Dangerous Drugs. – Notwithstanding the provisions of any law to the contrary, a
positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the
commission of a crime by an offender, and the application of the penalty provided for in the Revised
Penal Code shall be applicable.

g. Sec. 6 of Republic Act No. 10175

SEC. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if
committed by, through and with the use of information and communications technologies shall be
covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1)
degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the
case may be.

1. People v. Legaspi, G.R. Nos. 136164-65, 20 April 2001

G.R. Nos. 136164-65 April 20, 2001

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EDGAR LEGASPI y LIBAO, accused-appellant.

MELO, J.:

On February 17, 1997, accused-appellant Edgar Legaspi y Libao was charged with the crimes of rape and
robbery in two separate Informations filed with Branch 170 of the Regional Trial Court National Capital
Judicial Region stationed in Malabon. The Informations respectively read as follows:

Criminal Case No. 17640-MN

That on or about the 11th day of February, 1997, in the Municipality of Malabon, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused while
armed with a bladed weapon, with lewd design and by means of force and intimidation, did,
then and there, wilfully, unlawfully and feloniously have sexual intercourse with HONORATA
ONG Y GUEVARRA, against her will and without her consent.

CONTRARY TO LAW.

Criminal Case No. 17641-MN

That on or about the 11th day of February, 1997, in the Municipality of Malabon, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused while
armed with bladed weapon, with intent to gain and by means of force, violation and
 intimidation, did, then and there, wilfully, unlawfully and feloniously take, rob and divest cash
money in the amount of P500.00 to the damage and prejudice of the said HONORATA ONG Y
GUEVARRA in the aforementioned amount of P500.00.

CONTRARY TO LAW.

(Rollo, pp. 4-5.)

Since the charges were related, the prosecution's motion that the two cases be jointly tried was granted.
For its part, the defense pointed out that accused-appellant had been previously treated at the National
Center for Mental Health from February 28 to March 2, 1996. It moved that the arraignment of accused-
appellant be deferred pending determination by the Center as to whether accused-appellant was
mentally fit to stand the rigors of trial. This motion was likewise granted.

Accused-appellant was finally arraigned on November 18, 1997, following submission of the report
dated September 1, 1997 of the National Center for Mental Health stating that accused-appellant could
stand trial. Upon his arraignment, accused-appellant pleaded not guilty and trial thereafter ensued, with
the prosecution presenting three witnesses, namely, the complainant Honorata Ong, NBI Medico-Legal
officer Dr. Ronaldo Mendez, and barangay tanod Gerardo Ocampo. The defense, on the other hand,
presented accused-appellant and SPO4 Salvador Ibo.

On November 6, 1998, the trial court rendered a decision, disposing:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. In Criminal Case No. 17640-MN, the Court finds accused Edgar Legaspi y Libao guilty beyond
reasonable doubt of the crime of RAPE, and considering the presence of the aggravating
circumstance of dwelling and nighttime, hereby sentences him to suffer the penalty of DEATH,
and to pay Honorata Ong the sum of P50,000.00 as moral damages and P30,000.00 as
exemplary damages plus cost of the suit;

2. In Criminal Case No. 17641-MN, the Court finds accused Edgar Legaspi y Libao guilty beyond
reasonable doubt of the crime of ROBBERY and there being the presence of the aggravating
circumstance of dwelling, hereby sentences him to suffer an indeterminate penalty of six (6)
months of arresto mayor, as minimum, to nine (9) years of prision mayor, as maximum and to
pay Honorata Ong the sum of P500.00 plus cost of suit;

SO ORDERED.

(Rollo, p. 18.)

The supreme penalty of death having been imposed for the rape, the case is now before this Court on
automatic review. As for accused-appellant's conviction for robbery, accused-appellant did not appeal
therefrom, thus, as to that portion of the judgment against him, the same has become final and
executory (Section 3[c], Rule 122).

The facts, as shown by the records, are as follows:

At around 2:00 in the morning of February 11, 1997, complainant Honorata Ong, who was then sleeping
inside her house with her three daughters, was awakened by the sound of their door opening. She
initially thought that it was her husband coming home from work. When Honorata opened her eyes,
however, she saw a man armed with a knife standing by her feet. More terrifying, the man already had
his pants and briefs down on his knees and he was pointing to her eldest daughter. Alarmed, Honorata
told the man not to touch her daughter. The man poked his knife at her and told her to stand up and
then was made to lie down on the adjacent sofa. Thereafter, the man removed Honorata's panties and
had sex with her. All this time, he had his knife at Honorata's neck. Honorata noticed that the man
reeked of alcohol. After slaking his lust, Honorata's assailant stood up then asked for money. Since the
man still had his knife pointed at her, Honorata could do nothing but comply. She gave him the only
money she had, several bills amounting to P500.00.

After threatening Honorata and her daughters with death if she reports the incident, the man left.
Honorata, out of fear, could do nothing but close the door. Later that day, however, Honorata mustered
enough courage to narrate her defilement to her sister-in-law and upon describing him, Honorata's
sister-in-law exclaimed that she knew a person living in Manapat Street fitting the description.

That afternoon, Honorata, together with her husband, reported the incident to the barangay captain.
Thereafter, the captain, along with two tanods patrolled the area and, on the next day, they managed to
nab a person who fits the description given by Honorata of her assailant. When the suspect was brought
to the barangay hall for confrontation, he was positively identified by Honorata as the rapist. This
person, later identified as accused-appellant Edgar Legaspi y Libao, was thus detained by the police.

The next day, Honorata had herself medically examined at the NBI but no evident signs of extra-genital
physical injuries were found on her body.

On the other hand, all that accused-appellant could interpose as defenses were denial and alibi, stating
that at the time of the alleged incident, he was at his home in Manapat Street sleeping. Accused-
appellant also testified that he had been previously convicted of homicide and Roberto Eugenio, the
victim therein, was a resident of the exact same address where complainant Honorata was living.
Accused-appellant hinted at the possibility that relatives of Roberto Eugenio had conspired with
complainant Honorata to get rid of him.

Incidentally, Rivera Street where the alleged crime occurred is only two streets away from Manapat.
Moreover, aside from Honorata's address, accused-appellant did not present proof that the relatives of
Roberto Eugenio knew complainant Honorata.

Given the above circumstances, the trial court, as earlier mentioned, found accused-appellant guilty of
rape aggravated by dwelling and nighttime, and of robbery aggravated by dwelling; and thereupon,
imposed upon him the supreme penalty of death for the rape, and an indeterminate penalty of six
months to nine years for the robbery.
Accused-appellant's plea for reversal is founded on the arguments that his guilt was not shown beyond
reasonable doubt, and that complainant Honorata's testimony is replete with inconsistencies. He also
insists on his alibi and alleged insanity.

We have carefully reviewed the record and we find the above contentions devoid of merit.

In support of his first, second, and third assigned errors, which accused-appellant discussed jointly, he
points to the discrepancies between Honorata's testimony in open court and the entry in the police
blotter. Accused-appellant harps on the fact that as described in the blotter, the alleged rapist had an
"ala Babalu face" (having an attenuated chin similar to that of the late comedian Babalu) and a mole on
the upper left part of his lips, while accused-appellant is not "Babalu" and his mole is located not on the
left but on the right side of his face.

That the facial features of accused-appellant differ from the description of Honorata's assailant as found
in the police blotter detracts not a whit from the credibility of Honorata's testimony. It must be kept in
mind that Honorata positively identified accused-appellant as her rapist, not only during the
investigation conducted by the police on the morning of January 15, but also during the trial. At the
Malabon Police Station, Honorata identified accused-appellant thus:

T: Bakit naman po kayo nandito ngayon sa aming himpilan at nagbigay ng malaya at

kusang loob na salaysay?

S: Para po ipagharap ng reklamo ang taong ito (affiant pointing/identifying person of

EDGAR LEGASPI y LIBAO, @ EGAY, 29 years old, single, jobless, and residing at No. 86 Manapat
Street, Barangay Tanong, Malabon, MM who is presently inside this room).

T: Ito po bang taong ito ay dati na ninyong kilala?

S: Hindi po.

T: Bakit naman po ninyo gustong ipagharap ng reklamo ang taong ito?

S: Ni rape niya ako.

(Original Record, p. 80.)

During the trial, Honorata likewise identified accused-appellant as the person who sexually violated her.
She testified that she was able to recognize accused-appellant because the fluorescent lamp inside her
house was lit at the time of the incident.

Q: It was dark. Why were you able to see that person?

A: Because the light inside the house is on, sir.

Q: And you saw that person?

 A: Yes, sir.

(tsn, August 18, 1998, p. 3.)

Likewise, we have heretofore held that a man and a woman cannot be physically closer to each other
than during the sexual act (People vs. Fuertes, 296 SCRA 602 [1998]). We thus have on record Honorata's
positive identification of accused-appellant as her assailant. Coupled with the oft-quoted doctrine that
entries in police blotters, though regularly done in the course of the performance of official duty, are not
conclusive proof of the truth stated in such entries since they are usually incomplete and inaccurate
(People vs. Padlan, 290 SCRA 388 [1998]), we hold that any discrepancy in the police blotter entry and
the open court testimony of Honorata does not affect her credibility.

It must also be remembered that the entry in the police blotter was made at 6:30 on the morning of
February 12, 1997, only a few hours after the rape and robbery. At that time, Honorata may not have
yet fully recovered from the traumatic ordeal she had gone through, resulting in an inaccurate entry in
the police blotter: Besides, minor lapses are to be expected when a person is recounting details of a
traumatic experience too painful to recall (People vs. Sta. Ana, 291 SCRA 188 [1998]).

On the other hand, accused-appellant claims that if Honorata were indeed raped on the sofa of her one-
room house, the creaking of the sofa and her moans would have awakened her three sleeping
daughters. He asserts that, strangely, this did not happen.

That Honorata's daughters, aged 3, 6, and 9 years, did not wake up during the assault is not as incredible
as accused-appellant would make it out. The failure of the three children to wake up during the
commission of the rape was probably due to the fact that they were sound asleep. It is not unusual for
children of tender ages to be moved from their sleeping mats and transferred to another bed without
eliciting the least protest from them, much less, awakening them (People vs. Mustacisa, 159 SCRA 227
[1988]). It is also to be noted that among poor couples with big families living in small quarters,
copulation does not seem to be a problem despite the presence of other persons around them. One
may also suppose that growing children sleep more soundly than grown-ups and are not easily
awakened by adult exertions and suspirations in the night (People vs. Ignacio, 233 SCRA 1 [1994]).

As to accused-appellant's submission that the absence of spermatozoa in Honorata's organ negates the
commission of rape, the same rings hollow, the presence or absence of spermatozoa being immaterial in
the prosecution of a rape case, as it is well-settled that it is penetration, however slight, and not
ejaculation, that constitutes rape (People vs. dela Paz, Jr., 299 SCRA 86 [1998]). That there was
penetration is shown by Honorata's testimony, thus:

Q: When he removed your panty what did he do next?

A: He inserted his organ in mine, sir.

Q: How did you come to know it was his penis that entered your private part?

A: I felt pain, sir.

 (tsn, August 18, 1998, p. 5.)

Finally, accused-appellant contends that Honorata lied when she claimed not having known accused-
appellant or his family prior to the incident. Accused-appellant takes this to be indicative that Honorata
plotted with the family of Roberto Eugenio to get rid of him. As proof of Honorata's alleged
prevarication, accused-appellant presented the voter's registration record of a certain Roberto Eugenio,
allegedly accused-appellant's victim in a homicide case four years prior to the incident in question,
indicating that Roberto's address was 27-D Rivera Street, Tañong, Malabon, Metro Manila, the exact
same address of Honorata.

Accused-appellant has not presented proof that Honorata knew Roberto Eugenio or his relatives.
Neither has he shown that any relative of Eugenio still resides at Honorata's address, 27-D Rivera Street.
Moreover, mere residence at the same address is not proof that Honorata conspired with the relatives
of Roberto Eugenio in an attempt to get rid of accused-appellant. False testimony or incriminatory
machinations must be proved by evidence more substantial than a voter's registration record.

In his defense, accused-appellant raises the defense of alibi, claiming that he was asleep at his house at
#86 Manapat Street, Tañong, Malabon at the time of the incident. Accused-appellant's defense of alibi
must, however, be looked upon with suspicion, not only because it is inherently weak and unreliable,
but also because it can be easily fabricated and concocted (People vs. Tulop, 289 SCRA 316 [1998]). For
alibi to prosper, the accused must prove not only that he was at some other place at the time of the
commission of the crime, but also that it was physically impossible for him to be at the locus delicti or
within its immediate vicinity (People vs. Ballesteros, 285 SCRA 438 [1998]).

In the case at bar, accused-appellant has failed to meet both requisites. Aside from his testimony that he
was asleep at the time of the incident, no other witness came forward to corroborate his version.
Moreover, Manapat Street is only two streets away from Rodriguez Street, the scene of the crime.
Accused-appellant even admitted during the trial that this was only a five-minute walk from his
residence. Counterbalanced against Honorata's conduct immediately after the incident and her positive
identification of accused-appellant as her assailant, accused-appellant's defense of alibi is unavailing. In
the words of the trial court:

Honorata did not know the accused before the incident. She immediately revealed the fate that
befell on her to her sister-in-law. They then reported the incident to the barangay and
thereafter to the police authorities; executed a sworn statement; submitted herself to a physical
examination by a Medico-Legal Officer of the NBI; and subscribed and swore to a complaint for
rape which would necessarily result in her exposure to the rigors of public trial. The spontaneity
of these acts clearly demonstrates her sincere desire to bring the accused to justice. Moreover,
no married woman in her right mind would subject herself to public scrutiny and humiliation in
order to perpetuate a falsehood. Neither would she take the risk of being alienated from her
husband and family had she not been violated and robbed of her money.

(RTC Decision, p. 4-5.)

In accused-appellant's last assignment of error, he claims that the court a quo erred in not ruling that he
is entitled to the exempting circumstance of insanity. For insanity to be considered, Paragraph 1, Article
12 of the Revised Penal Code requires a complete deprivation of rationality in committing the act, i.e.,
that the accused be deprived of reason, that there be no consciousness of responsibility for his acts, or
that there be complete absence of the power to discern. The defense of insanity or imbecility must be
clearly proved, however, for there is a presumption that acts penalized by law are voluntary (People vs.
Medina, 286 SCRA 44 [1998]).

To prove his insanity, accused-appellant's counsel points to his confinement at the National Center for
Mental Health prior to the incident in question. Likewise, his counsel claims that when Honorata saw
accused-appellant, the latter's pants and briefs were already down on his knees. He takes this to be
an indicium of insanity.

Mere prior confinement does not prove that accused-appellant was deprived of reason at the time of
the incident. Firstly, accused-appellant did not submit proof that he was adjudged insane by the
National Center for Mental Health, only that he had been confined therein. Note also that accused-
appellant had already been discharged from the Center prior to the incident. Even if accused-appellant
were adjudged insane prior to the incident, his discharge implies that he was already considered well. In
fact, the psychiatric evaluation report of accused-appellant states that his disorder "runs a chronic
course with periods of exacerbations and remissions." If the insanity is only occasional or intermittent in
nature, the presumption of its continuance does not arise. He who relies on such insanity proved at
another time must prove its existence also at the time of the commission of the offense (People vs.
Bonoan, 64 Phil. 87). This, accused-appellant has failed to do.

Neither does having one's pants and briefs on one's knees indicate deprivation of reason. If anything
else, it shows the lechery and depravity of accused-appellant. Mental depravity which results not from
any disease of the mind, but from a perverted condition of the moral system, where the person is
mentally sane, does not exempt one from responsibility for crimes committed under its influence
(People vs. Medina, supra). The Court cannot, therefore, appreciate the defense of insanity brought by
accused-appellant.

In sum, we find that the trial court did not err in finding Honorata's testimony to be clear,
straightforward, and worthy of credence, and consequently, in finding accused-appellant guilty beyond
reasonable doubt of the crime of rape.

We now come to the proper penalty. Under Article 335 (now Article 266-B) of the Revised Penal Code,
"whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons,
the penalty shall be reclusion perpetua to death."

According to the trial court:

The rape charge was committed in the victim's dwelling at nighttime. Dwelling and nighttime are
aggravating circumstances in rape (People vs. Padilla 242 SCRA 629). On the other hand, the
aggravating circumstance of nighttime cannot be appreciated in the robbery charge because of
(sic) the notion to commit the crime was conceived only shortly when the rape was committed
at darkness. However, the aggravating circumstance of dwelling is a different story and should
be considered. Dwelling is aggravating in robbery with violence against or intimidation of person
 because this class of robbery can be committed without the necessity of trespassing the sanctity
of the offended party's house. Entrance into the dwelling house of the offended party is not an
element of the offense (People vs. Cabato 160 SCRA 98). Finally, for sexually assaulting a
married woman thereby grievously wronged (sic) the institution of marriage, the imposition of
exemplary damages by way of example to deter others from committing the crime is just (sic)
warranted.

(RTC Decision, pp. 5-6.)

Considering the presence of the aggravating circumstances of nighttime and dwelling, the trial court
imposed the supreme penalty of death on accused-appellant for the crime of rape.

However, a cursory examination of the Information filed against accused-appellant would show that the
aggravating circumstances of nighttime and dwelling are not specified therein. Now, at the time the trial
court rendered its decision, the non-allegation of generic aggravating circumstances in the information
was immaterial, since the rule then prevailing was that generic aggravating circumstances duly proven in
the course of the trial could be taken into account by the trial court in determining the proper imposable
penalty even if such circumstances were not alleged in the information (People vs. Deberto, 205 SCRA
291 [1992]).

Nonetheless, it is to be noted that the appreciation by the trial court of the aggravating circumstances of
dwelling and nighttime, despite the non-allegation thereof in the Information, resulted in the imposition
of the supreme penalty of death upon accused-appellant. In People v. Gallego (G.R. No. 130603, August
15, 2000), We had occasion to rule, thus:

In People v. Albert (251 SCRA 136 [1995]), we admonished courts to proceed with more care
where the possible punishment is in its severest form — death — because the execution of such
a sentence is irrevocable. Any decision authorizing the State to take life must be as error-free as
possible, hence it is the bounden duty of the Court to exercise extreme caution in reviewing the
parties' evidence. Safeguards designed to reduce to a minimum, if not eliminate, the grain of
human fault ought not to be ignored in a case involving the imposition of capital punishment for
an erroneous conviction "will leave a lasting stain in our escutcheon of justice." The accused
must thence be afforded every opportunity to present his defense on an aggravating
circumstance that would spell the difference between life and death in order for the Court to
properly "exercise extreme caution in reviewing the parties' evidence." This, the accused can do
only if he is appraised of the aggravating circumstance raising the penalty imposable upon him
to death. Such aggravating circumstance must be alleged in the information, otherwise the Court
cannot appreciate it. The death sentence being irrevocable, we cannot allow the decision to
take away life to hinge on the inadvertence or keenness of the accused in predicting what
aggravating circumstance will be appreciated against him.

In a series of cases under the regime of Rep. Act No. 7659, the Court did not appreciate the
aggravating circumstance of dwelling which would have increased the imposable penalty to
death when such circumstance was not alleged in the information. In People v. Gaspar, et al.
(318 SCRA 649 [1999]), the Court found that apart from treachery, dwelling also attended the
killing of the victim. Despite this finding and the absence of any mitigating circumstance, the
 Court nonetheless did not appreciate dwelling and-imposed the penalty of reclusion
perpetua and not the greater penalty of death. Hence, in the case at bar, considering that the
aggravating circumstance of dwelling was not alleged in the information, we cannot appreciate
it and raise the penalty imposed upon Raul Gallego from reclusion perpetua to death.

(Emphasis supplied.)

The principle above-enunciated is applicable to the case at bar. Consequently, we hold that due to their
non-allegation in the Information for rape filed against accused-appellant, the aggravating
circumstances of nighttime and dwelling cannot be considered in raising the penalty imposable upon
accused-appellant from reclusion perpetua to death.

Parenthetically, the above rule is inapplicable for the crime of robbery committed by accused-appellant,
the same not involving the imposition of the death penalty. For said crime, what remains applicable is
the old rule that generic aggravating circumstances if duly proven in the course of the trial could be
taken into account by the trial court in determining the proper imposable penalty, even if such
circumstances were not alleged in the Information. Thus, for the crime of robbery, the trial court
correctly imposed an indeterminate penalty of six (6) months of arresto mayor, as minimum, to nine (9)
years of prision mayor, as maximum.

It is to be noted carefully that the rule on generic aggravating circumstances has now been formalized in
the Revised Rules of Criminal Procedure, which took effect on December 1, 2000. Section 8 of Rule 110
now provide that:

SECTION 8. Designation of the offense. — The complaint or information shall state the
designation of the offense given by the statute, aver the acts or omissions constituting the
offense, and specify its qualifying and aggravating circumstances. If there is no designation of
the offense, reference shall be made to the section or subsection of the statute punishing it.

(Emphasis supplied.)

Likewise, Section 9 of the same Rule provides:

SECTION 9. Cause of the accusation. — The acts or omissions complained of as constituting the
offense and the qualifying and aggravating circumstances must be stated in ordinary and
concise language and not necessarily in the language used in the statute but in terms sufficient
to enable a person of common understanding to know what offense is being charged as well as
its qualifying and aggravating circumstances and for the court to pronounce judgment.

(Emphasis supplied.)

Sections 8 and 9 were discussed by this Court En Banc on June 20, 2000. According to the minutes of
said session:
 Justice Puno then invited the attention of the Court to Sections 8 and 9 of Rule 110. He
explained that the proposal requiring the allegation of qualifying circumstances in the
information reflects the recent decisions of the Court, especially in heinous crimes. However,
the Court concerned itself with the proposed requirement of likewise alleging aggravating
circumstances in the information. Justice Panganiban raised the question of what to do with an
aggravating circumstance which was not alleged but was proved and not objected to during
trial. Justice Melo answered that it cannot be used to increase the penalty if it was not alleged
even if proved. Justice Puno explained that the proposal strengthens the right to due process of
an accused, part of which is to be shielded from surprises.

Chief Justice Davide and Justice Panganiban agreed and emphasized that the presence of
aggravating circumstances can make the difference between life and death where the
imposable penalty is reclusion temporal maximum to death or reclusion perpetua to death.
Justice Panganiban added that the prosecutors will now be compelled to prepare well-worded
information.

To make sure that the circumstances that need to be alleged are not missed out in the
information, Justice Mendoza suggested that the Court can prescribe an updated form in the
Rules of Court.

(Emphasis supplied.)

Thus, the Rules now require qualifying as well as aggravating circumstances to be expressly and
specifically alleged in the Complaint or Information, otherwise the same will not be considered by the
court even if proved during the trial. And this principle is applicable in all criminal cases, not only in
cases were the aggravating circumstance would increase the penalty to death. With this, the Court gives
fair warning to prosecutors that henceforth, they must prepare well-crafted information that allege the
circumstances qualifying and aggravating the crimes charged, otherwise the same will not be considered
by the court in determining the proper imposable penalty.

The Court further notes that while the trial court awarded the victim the sum of P50,000.00 as moral
damages and P30,000.00 as exemplary damages, it failed to award civil indemnity to the victim.
Prevailing jurisprudence holds that in rape cases, the victim should be awarded P50,000.00 as civil
indemnity and another P50,000.00 as moral damages for the injury evidently suffered. Moreover, the
fact that the victim was raped inside her house in the presence of her children justifies the trial court's
imposition of exemplary damages.

WHEREFORE, premises considered, the decision under review finding accused-appellant EDGAR LEGASPI
y LIBAO guilty beyond reasonable doubt of the crime of rape in Criminal Case No. 17640-MN is
AFFIRMED with the MODIFICATION that he is sentenced to suffer the reduced penalty of reclusion
perpetua and to pay Honorata Ong the sum of Fifty Thousand pesos as civil indemnity, another Fifty
Thousand Pesos (P50,000.00) as moral damages and Thirty Thousand Pesos (P30,000.00) as exemplary
damages.

No special pronouncement is made as to costs.

SO ORDERED.

2. People v. Capalac, G.R. No. L-38297, 23 October 1982

G.R. No. L-38297 October 23, 1982

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARIO CAPALAC, defendant-appellant.

FERNANDO, C.J.:

It was not unexpected, considering the close family ties so traditional among Filipinos. that the stabbing,
apparently without provocation, of one Moises Capalac by Jimmy Magaso, would be attended with
serious, if not tragic, consequences. It happened on September 20, 1970 at around 2:00 o'clock in the
afternoon, the scene of the gory incident being a duly licensed cockpit in the City of Iligan. The
aggressor, attempting to escape, was confronted by two brothers of Moises, Jesus Capalac, originally
included in the information but now deceased, and appellant Mario Capalac. The attempt of Magaso to
board a jeep was unsuccessful, he having alighted after two shots were fired in succession. Knowing that
he was completely at the mercy of the two brothers, he raised his hands as a sign of surrender, but they
were not to be appeased. He was pistol-whipped by appellant Mario Capalac, being dealt several blows
on the head and the face. After he had fallen to the ground, Jesus Capalac stabbed the deceased on the
chest three or tour times. He was brought to the hospital where he died, the cause, according to the
coroner's report, being "hemorrhagic shock due to a wound of the heart."

The above facts are not open to dispute, the decision of the lower court and the briefs for both
appellant and appellee being substantially in agreement. After trial duly held, Mario Capalac was
convicted of murder. The lower court found that the crime was committed with evident premeditation
and treachery. The lower court also held that appellant took advantage of his position as a police officer
and employed means or brought about circumstances which added ignominy to the natural effects of
his act. It sentenced him to suffer the death penalty. Hence, this case is before this Tribunal for
automatic review. 1

The brief for the appellant prays for the reversal of the judgment and assigns four errors as having been
committed by the lower court. The first error speaks of the absence of conspiracy. The second and the
third deny the existence of the qualifying as well as the aggravating circumstances, Lastly, the brief
imputes as error of the lower court what it referred to as "discarding the ante mortem statement of the
victim." As will be shown, there is no basis for reversal. The judgment, however, calls for modification.
Murder was committed, the qualifying circumstance of alevosia being quite evident. The aggravating
circumstances, however, were not proved. Moreover, the lower court did not take into consideration
the existence of the mitigating circumstance of the immediate vindication of a grave offense. Hence, the
imposition of the death penalty was not warranted.
1. The circumstances indicative of the manner by which the two brothers, as well as their two
companions, who apparently were not apprehended as they were not included in the information,
attacked the hapless victim, would suffice to show conspiracy. They apparently had one purpose in
mind, to avenge the stabbing of Moises Capalac. Such a reaction, as noted at the outset, is quite
understandable. It was not to be expected that they would even bother to inquire why their brother was
stabbed. It was enough that it was done. They were impelled by a common purpose. They acted in
concert. There is sufficient basis for the finding of conspiracy then. As far back as United States v.
Magcamot, 2 a 1909 decision, Justice Mapa stressed as the essential element for conspiracy to exist the
"concurrence of wills" and "unity of action and purpose." 3 A recent decision is partial to the phrase,
"tacit and spontaneous coordination," in the assault. 4 A careful analysis of the evidence by the lower
court can yield no other conclusion but that conspiracy was duly proved.

2. crime was one of murder, the qualifying circumstance of treachery being present. The specific
language of the Revised 'Penal Code calls for application: "There is treachery when the offender
commits any of the crimes against the person, employing means, methods, or forms in the execution
thereof which tend directly and specially to insure its execution, without risk to himself arising from the
defense which the offended party might make. 5 Magaso's situation was hopeless. Any defense he could
have put up would be futile and unavailing. His hands were raised in surrender. That notwithstanding,
he was pistol-whipped. When lying prostrate on the ground, he was stabbed. It must be remembered
that, according to the testimonial evidence, there were two other persons assisting the brothers
Capalac. If they were not included in the information, the explanation would appear to be that they
managed to elude capture. There was no risk, therefore, to the aggressors, no hope for the victim. 6 The
trial court committed no error then in appreciating the circumstance of treachery as being present.

3. The lower court erred, however, in finding the aggravating circumstances of evident premeditation, of
means being employed or circumstances brought about to add ignominy to the natural effects of the
act, and of the crime being committed with the offender taking advantage of his official position as
having attended the commission of the crime. As early as 1903, Justice Mapa, in United States v.
Alvares, 7 made clear that an aggravating circumstance must be "as fully proven as the crime itself. 8 He
added: "Without clear and evident proof of their presence, the penalty fixed by the law for the
punishment of the crime cannot be increased. 9 Moreover, insofar as evident premeditation is
concerned, there is this relevant excerpt from the same opinion: "The record contains no evidence
showing that the defendant had, prior to the moment of its execution, resolved to commit the crime,
nor is there proof that this resolution was the result of meditation, calculation and
persistence. 10 In People v. Mendova, 11 it was emphasized that it should not be "premeditation" merely;
it is "evident" premeditation. 12 A recent decision, People v. Anin, 13 ruled that the perpetration of a
criminal act "evidently made in the heat of anger" did not call for a finding that there was evident
premeditation. 14 What is required is that the offense was "the result of cool and serene
reflection." 15 What was done by the brothers of Capala, cannot be categorized as falling within the
norm of means being employed or circumstances being brought about to add ignominy to the natural
effects of the act. It is well to stress that they were prompted by their desire to avenge their brother,
They went after Magaso, the victim. They assaulted him, relying on the weapons they carried with them.
Jesus stabbed him and appellant Mario pistol-whipped him. They did what they felt they had to do to
redress a grievance. It cannot be said, therefore, that they deliberately employed means to add
ignominy to the natural effects of the act. It is quite apparent that all they were interested in was to
assure that there be retribution for what was done to their brother. The mere fact that appellant Mario
Capalac is a member of the police force certainly did not of itself justify that the aggravating
circumstance of advantage being taken by the offender of his public position be considered as present.
He acted like a brother, instinctively reacting to what was undoubtedly a vicious assault on his kin that
could cause the death of a loved one. It would be an affront to reason to state that at a time like that
and reacting as he did, he purposely relied on his being a policeman to commit the act. He pistol-
whipped the deceased because he had his pistol with him. It came in handy and he acted
accordingly. 16 That he was a policeman is of no relevance in assessing his criminal responsibility.

4. There is another aspect of the decision that calls for correction. The mitigating circumstance of
immediate vindication of a grave offense was not considered. There is no ambiguity in the language of
the Revised Penal Code: "That the act was committed in the immediate vindication of a grave offense to
the one committing the felony (delito), his spouse, ascendants, descendants, legitimate, natural, or
adopted brothers or sisters, or relatives by affinity within the same degree. 17 What was done was an
immediate vindication of the stabbing perpetrated by Magaso on appellant's brother Moises. For
relatively less serious crimes than this, this Court has taken into consideration this mitigating
circumstance. 18 Certainly it seems probable that the reason why, the lower court failed to do so was the
fact that appellant was a member of the police force. That is not conclusive. What is decisive is the fact
that the brothers Capalac, responsive to what is a traditional norm of conduct, reacted in a manner
which for them was necessary under the circumstances. That was a fulfillment of what family honor and
affection require. The aggressor who did them wrong should not go unpunished. This is not to justify
what was done. It offers though an explanation. At the same time, the rule of law, which frowns on an
individual taking matters into his own hands, requires that every circumstance in favor of an accused
should not be ignored. That is to render justice according to law. This mitigating circumstance calls for
application.

5. There is no point in discussing the fourth assigned error, namely, that the ante mortem statement of
the victim should have been given weight by the Court. Such exhibit, 19 even if considered a dying
declaration, would not call for a reversal. It consisted of seven questions and answers. The answers to
the second and the third questions referred to what happened to Magaso and who was responsible. His
answer was that he was stabbed, and that it was done by Jesus Capalac. The other questions dealt with
when and where it happened as well as whether or not he was in possession of his senses, and a rather
unnecessary question as to whether he was aggrieved.<äre||anº•1àw> This Court, as was the lower
court, is aware that the stabbing was by Jesus Capalac, not by appellant. It does not thereby mean that
no criminal liability was incurred by him. In the light of the foregoing, and following the case of People v.
Rosel 20 where the murder was qualified by the circumstance of treachery and there was likewise
considered the mitigating circumstance of immediate vindication of a grave offense, the penalty
imposed on the accused should be "ten years and one day of prision mayor to seventeen years, four
months and one day of reclusion temporal." 21

WHEREFORE, the accused is found guilty of murder, but the decision of the lower court is hereby
modified. The accused is sentenced to ten years and one day of prision mayor minimum to seventeen
years, four months and one day of reclusion temporal maximum. In all other respects, the lower court
decision stands affirmed.
3. People v. Gapasin, G.R. No. 73489, 25 April 1994

G.R. No. 73489 April 25, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CIC LORETO GAPASIN, PC NICANOR SALUDARES, LORENZO SORIANO, alias "Olit", AMOR SALUDARES,
FRANK SALUDARES, BEL SALUDARES, and NICK SALUDARES, accused, CIC LORETO GAPASIN, accused-
appellant.

The Solicitor General for plaintiff-appellee.

Silvestre Br. Bello for accused-appellant.

QUIASON, J.:

This is an appeal from the decision of the Regional Trial Court, Branch XVI, Isabela in Criminal Case No.
IV-781, finding appellant guilty beyond reasonable doubt of murder qualified by treachery, with the
attendance of the mitigating circumstance of voluntary surrender, and the aggravating circumstances of
taking advantage of public position and evident premeditation. The trial court sentenced him to suffer
the penalty of reclusion perpetua and to pay to the heirs of the late Jerry Calpito, Sr., the sum of
P88,596.00 as actual or compensatory damages; P30,000.00 as death indemnity; P20,000.00 as moral
damages; P30,000.00 as exemplary damages; and the costs.

The information in Criminal Case No. IV-781 reads as follows:

That on or about the 6th day of October, 1979, at Barangay San Jose, municipality of
Roxas, province of Isabela, Philippines, and within the jurisdiction of this Honorable
Court, the accused CIC LORETO GAPASIN, PC NICANOR SALUDARES, LORENZO SORIANO
alias Olit, AMOR SALUDARES, FRANK SALUDARES, BEL SALUDARES, and NICK
SALUDARES, conspiring and confederating together and all helping one another, with
evident premeditation and treachery, did then and there wilfully, unlawfully, criminally
and feloniously, with intent to kill, attack and shoot Jerry Calpito, with an Armalite rifle
SN No. 3267485
Cal. 5.56 duly issued to the accused PC soldier under Memorandum Receipt dated
September 17, 1979 by the 118th PC Company, inflicting multiple gunshot wounds on
the body of the latter, step and kick (sic) the victim several times, causing his
instantaneous death due to hemorrhage secondary to gunshot wounds, to the damage
and prejudice of the heirs of the deceased Jerry Calpito in the amount of P12,000.00,
Philippine Currency.

That the crime was committed with the aggravating circumstances of (1) ignominy, the
accused having stepped and kicked the body of the deceased; (2) abuse of superior
strength, and (3) taking advantage of public position, with respect to the accused CIC
Loreto Gapasin who is a PC soldier" (Rollo, pp. 35-36).
A warrant for the arrest of all the accused was issued on December 14, 1980. However, as of January 10,
1980, only Nicanor Saludares and appellant had been arrested. On January 17, 1980, the trial court
granted the petition for bail of the two accused and fixed the same at P20,000.00 each. Having posted
bail, Nicanor Saludares was ordered released on January 22, 1980. On the
other hand, appellant was ordered by the court to remain in the custody of
Capt. Alexander M. Bellen, commanding officer of the 118th Constabulary Company, in Roxas, Isabela.

On February 4, 1980, Frank, Bel and Amor, all surnamed Saludares, were arrested. Lorenzo
Soriano, alias Olit, was arrested the following day. They were all allowed to post bail bonds in the
amount of P20,000.00 each and thereafter they were released from custody.

On the strength of LOI No. 947, as amended by LOI No. 1011, vesting jurisdiction on the Military
Tribunals of all crimes against persons and property committed with the use of unlicensed firearms, the
provincial fiscal filed a motion praying that Criminal Case No. IV-781 be transferred to the Military
Tribunal and that the bail bonds posted be cancelled. The prosecution reiterated the motion in a
manifestation dated August 21, 1980.

Accordingly, on August 27, 1980, the trial court ordered: (a) the cancellation of the bail bonds of the
accused; (b) the issuance of the warrants of arrest for all the accused except for Nicanor Saludares, who
was reported to have died; (c) the turn over of appellant to the Provincial Warden of Isabela as he was
not entitled to technical rearrest under Executive Order No. 106; (d) the turn over to the said Provincial
Warden of all the other accused upon their rearrest; and (e) thereafter, the turn over of the case and
the accused to the Military Tribunal thru the Provincial Commander of the PC/INP, Ilagan, Isabela for
further proceedings.

Pursuant to the endorsement dated September 19, 1980 of Lt. Col. Oscar M. Florendo, Isabela Provincial
Commander, appellant, together with Lorenzo Soriano, Amor Saludares and Bel Saludares, was
rearrested; while Nick and Frank Saludares remained at-large. On September 29, 1980, the trial court
ordered the dismissal of the case against Nicanor Saludares on account of his death on June 7, 1980.

The accused, however, filed a motion for the reconsideration of the Order of August 27, 1980 on the
grounds that the case was not covered by LOI
No. 947, the crime having been committed on October 6, 1979 or several days before the issuance of
said LOI. The trial court denied their motion.

By virtue of General Order No. 69 dated January 12, 1981, the records of the case were transferred back
to the trial court from the Military Tribunal. On April 1, 1981, the prosecution moved for the
recommitment of the accused to the provincial jail. The defense opposed the motion fearing retaliation
from a provincial jail guard, who was a relative of the victim. On May 12, 1981, the trial court denied the
motion and set the arraignment of the accused on June 1, 1981.

On May 18, 1981, Col. Florendo informed the trial court that Bel and Amor Saludares have escaped from
the Rehabilitation Center of the Provincial Command on April 10, 1981.

On May 29, 1981, the provincial fiscal moved for the reconsideration of the Order of May 12, 1981,
alleging that the accused were not actually detained at the PC Headquarters and that, except for
appellant, the accused have absconded. Hence, to prevent a miscarriage of justice, the provincial fiscal
prayed for the recommitment of accused Soriano and appellant at the provincial jail and for the issuance
of the warrants of arrest for Amor, Bel and Frank Saludares.

The trial court granted the motion and issued warrants of arrest. Despite diligent efforts, however, the
other accused were not rearrested and hence, trial proceeded against accused Soriano and appellant
only. On June 1, 1981, they both pleaded not guilty.

Two years later, on June 1, 1983, the trial court denied appellant's application for bail but granted that
of accused Soriano, whose bail bond was fixed at P30,000.00. Being so persistent, appellant filed a
second motion for bail, which was denied by the trial court on June 1, 1984. He filed a third motion to fix
bail, which was likewise denied.

Relying on the provisions of Section 4 of P.D. No. 1850, appellant filed an urgent motion praying that he
be transferred to the custody of Col. Alfonso M. Mesa, then Provincial Commander of Isabela. The trial
court denied the motion. His motion for reconsideration having been denied, appellant filed a petition
for certiorari before the then Intermediate Appellate Court, alleging that the trial court acted with grave
abuse of discretion in refusing to apply Section 4 of P.D. No. 1850. The appellate court granted the
petition and ordered the immediate transfer of appellant to the custody of his military commander.

Meanwhile, accused Frank Saludares was arrested and he entered a plea of not guilty at his
arraignment. He was later allowed to post bail. Since Soriano and Frank Saludares were both out on bail,
the defense opted to present evidence on behalf of appellant only and to submit the case for decision as
soon as possible. Thus, after almost six years, trial on the case ensued.

II

According to prosecution witness Alberto Carrido, he and Rodrigo Ballad left the house of Enteng
Teppang at about 2:00 P.M. of October 6, 1979 after attending the "pamisa" for the deceased father of
Teppang. Jerry Calpito followed them. While they were walking along the barangay road, Calpito was
shot by appellant with an armalite rifle. When Calpito fell on the ground, appellant fired more shots at
him. Thereafter, accused Amor Saludares planted a .22 caliber revolver on the left hand of Calpito. Upon
hearing the shots, Faustina Calpito ran to succor her fallen husband.

Accused Nicanor Saludares pointed his gun at Faustina while accused Soriano fired his gun upwards.
Saludares warned that he would kill any relative of Jerry Calpito who would come near him. Faustina
and the other relatives of the victim scampered away as the Saludares' group chased them.

The body of Calpito was autopsied by Dr. Bernardo Layugan, who found that the victim sustained four
bullet wounds: (1) on the right lateral side of the arm fracturing the humerus; (2) on the right lateral side
of the thorax between the 7th and 8th ribs with exit wound at the sternum; (3) on the left side of the
thorax, anterior, between the 5th and 6th ribs; and (4) on the right fronto-parietal portion of the head
"severing the skull and brain tissues" (Exh. "F"). Dr. Layugan opined that the victim was in a standing
position when he was shot by someone positioned at his right.

Appellant invoked self-defense. He testified that he was issued a mission order on September 23, 1979
to investigate a report regarding the presence of unidentified armed men in Barrio San Jose, Roxas,
Isabela. The following day, he was instructed by Sgt. Dominador Ignacio to get in touch with Nicanor
Saludares who may be able to give him information on the identities of the persons with unlicensed
firearms in the place. When appellant met Nicanor Saludares on September 29, 1979, he was informed
that Jerry Calpito had an unlicensed firearm.

On October 5, 1979, Nicanor Saludares went to the P.C. Headquarters in Roxas and told appellant that it
would be best for him to see Jerry Calpito the following day as a relative of the latter would be buried.
The next day, appellant went to Barangay San Jose, arriving there at 12 noon. Instead of going to the
cemetery, he went to the house of Nicanor Saludares. From there, they went to the house of Enteng
Teppang to attend the "pamisa." While they were having lunch, Nick Saludares advised appellant against
confronting Calpito because it would create a disturbance at the "pamisa." He also told appellant that
Calpito would surely pass his (Saludares) house on his way home.

Appellant and Nicanor Saludares positioned themselves inside the yard of the latter. When appellant
saw Calpito, he went out of the yard into the barangay road. When Calpito was about three meters
away from him, appellant asked him what was bulging in his waist. Instead of answering, Calpito took a
step backward, drew his firearm from the waist and fired twice at appellant. He missed because
appellant dropped to the ground simultaneously firing his armalite.

After fifteen minutes, the police arrived and took the body of the victim to the morgue. Appellant was
brought to the P.C. Headquarters in Roxas, where he was investigated.

III

The appeal hinges primarily on the credibility of the prosecution witnesses. Appellant claims that the
prosecution witnesses, all of them being relatives of the victim, were naturally biased against him.

This Court has time and again reiterated the principle that it will not interfere with the findings of the
trial court on the issue of credibility of witnesses and their testimonies unless the trial court has plainly
overlooked undisputed facts of substance and value which would have altered the result of the case
(People v. Matrimonio, 215 SCRA 613 [1992]). Findings of the trial court are generally accorded great
respect by an appellate tribunal for the latter can only read in cold print the testimonies of the
witnesses.

In the trial before the lower court, the eye-witnesses testified in their local dialect and their testimonies
had to be translated to English. In the process of converting into written form the testimonies of the
witnesses, not only the fine nuances but a world of meaning apparent only to the trial judge, may
escape the reader of the translated words (People v. Baslot, 209 SCRA 537 [1992]).

The fact that the prosecution witnesses are relatives of the victim does not necessarily indicate that they
were biased as to impair their credibility. In the absence of proof of ill motive on the part of witnesses,
relationship between them and the victim does not undermine their credibility. On the contrary, it
would be unnatural for persons such as the relatives of the victim who themselves seek justice to
commit the injustice by imputing the crime on persons other than those who are actually responsible
(People v. De Paz, 212 SCRA 56 [1992]).

Appellant's claim of self-defense is belied by the finding of the trial court that the victim was shot by
someone who was standing on his right side. Appellant's version that he was in front of the victim when
the latter fired a shot at him and that he retaliated while dropping on the ground, crumbles in the face
of the physical evidence that the victim sustained two gunshot wounds which entered the right side of
his body and a gunshot wound on the right side of his head. The nature and number of wounds inflicted
by the appellant disprove the plea of self-defense (People v. Bigcas, 211 SCRA 631 [1992]).

Had appellant and Nicanor Saludares, Sr. not intended to harm the victim, they could have simply
apprehended him. Or, having verified that Calpito possessed an unlicensed firearm, appellant could
have reported the matter to his superiors so that warrants for Calpito's arrest and the seizure of his
unlicensed firearm could have been obtained.

Appellant contended that the crime committed is homicide. The trial court correctly ruled that the crime
of murder under Article 248 of the Revised Penal Code was indeed committed. Treachery attended the
commission of the crime. The two conditions to constitute treachery were present in the case at bench,
to wit: (a) the employment of means of execution that gives the person who is attacked no opportunity
to defend himself or to retaliate; and (b) the means of execution were deliberately or consciously
adopted (People v. Narit, 197 SCRA 334 [1991]).

Appellant deliberately executed the act in such a way that his quarry was unaware and helpless. This can
be gleaned from his act of waiting for the victim behind the hollow-block fence of Nicanor Saludares and
shooting the victim from his right side.

Evident premeditation was indubitably proven by the evidence showing that the execution of the
criminal case was preceded by cool thought and reflection. Appellant's resolution to carry out the
criminal intent during the space of time sufficient to arrive at a clear judgment was shown (People v.
Castor, 216 SCRA 410 [1992]).

In view of the presence of treachery which qualified the killing as murder, the evident premeditation
should be considered only as a generic aggravating circumstance (People v. Fabros, 214 SCRA 694
[1992]).

The information alleged three other generic aggravating circumstances: ignominy, abuse of superior
strength and taking advantage of public position. The trial court correctly ruled out ignominy on the
strength of the autopsy conducted by the doctor who failed to find any other injuries such as bruises
and contusions which may indicate that the victim was kicked by his assailants. It also correctly held that
treachery absorbed abuse of superior strength (People v. Moral, 132 SCRA 474 [1984]).

The trial court properly appreciated taking advantage of public position as an aggravating circumstance.
Appellant, a member of the Philippine Constabulary, committed the crime with an armalite which was
issued to him when he received the mission order (People v. Madrid, 88 Phil. 1 [1951]).

Voluntary surrender may be considered in appellant's favor but this is offset by the aggravating
circumstance of taking advantage of public position. Therefore, only the generic aggravating
circumstance of evident premeditation may be appreciated against appellant. As such, the correct
penalty would have been death in accordance with Articles 248 and 64(3) of the Revised Penal Code
Were it not for the fact that such penalty is constitutionally abhorrent. Hence, the proper penalty
is reclusion perpetua.
The trial court correctly exercised its discretion in imposing moral, compensatory and exemplary
damages (People v. Rabanes, 208 SCRA 768 [1992]; People v. Quilaton, 205 SCRA 279 [1992]).

WHEREFORE, the decision appealed from is AFFIRMED.

SO ORDERED.

4. People v. Tiongson, G.R. No. L-35123-24, 25 July 1984

[G.R. Nos. L-35123-24. July 25, 1984.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RUDY TIONGSON, Defendant-Appellant.

The Solicitor General for Plaintiff-Appellee.

Felipe L. Gozon, for Defendant-Appellant.

DECISION

CONCEPCION, JR., J.:

At about 5:30 o’clock in the afternoon of October 26, 1971, the accused Rudy Tiongson escaped from
the Municipal Jail of Bulalacao, Oriental Mindoro, together with George de la Cruz and Rolando
Santiago, where they were detained under the charge of Attempted Homicide. While in the act of
escaping, the said Rudy Tiongson killed Pat. Zosimo Gelera, a member of the police force of Bulalacao,
Oriental Mindoro, who was guarding the said accused, and PC Constable Aurelio Canela of the PC
Detachment stationed in Bulalacao, Oriental Mindoro, who went in pursuit of them.

By reason thereof, Rudy Tiongson was charged with Murder, in two separate informations, committed
as follows:

1. Crim. Case No. R-DJC-243:

"That on the 26th day of October, 1971, at 6:00 o’clock in the evening, more or less, at Rizal, of the
Municipality of Bulalacao, Province of Oriental Mindoro, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, RUDY TIONGSON, conspiring and confederating with
Rolando Santiago and George de la Cruz, who are both at large by reason of their forced escape, and
with treachery, wilfully, unlawfully and feloniously waited in ambush, waylaid and shot one C2C
AURELIO M. CANELA, a member of the local Philippine Constabulary Command, while the latter was in
hot pursuit of said accused who had earlier escaped from custody, thus fatefully resulting to the
instantaneous death of the victim.

That the commission of the offense was qualified by the circumstance of treachery, and aggravated by
the circumstances of evident premeditation, in contempt of or with insult to the public authorities,
nocturnity, committed in an uninhabited place and with abuse of superior strength."
2. Crim. Case No. R-DJC-244

"That on the 26th day of October, 1971, at 5:30 o’clock in the afternoon, more or less, inside of the
Municipal Building, of the Municipality of Bulalacao, Province of Oriental Mindoro, Philippines, and
within the jurisdiction of this Honorable Court, the abovenamed accused, RUDY TIONGSON, conspiring
and confederating with George de la Cruz and Rolando Santiago, and under the pretext that they would
answer the call of nature, convinced Police First Class Patrolman Zosimo Gelera to allow them to go out
from their being confined and detained in the Municipal Jail of same Municipality by virtue of a previous
offense, and while still hardly out of said jail, ganged up said Zosimo Gelera, took the latter’s service
pistol, and with it, with treachery, shot point blank said police officer at his right cheek, tragically
resulting to the victim’s instantaneous death, and thereafter, made good their escape.

That the offense is qualified by the circumstance of treachery, and aggravated by the circumstances of
evident premeditation, in contempt of or with insult to the public authorities and with abuse of superior
strength."

Upon arraignment, the said accused, assisted by counsel de oficio, pleaded guilty to both informations.
The trial court, however, did not render judgment outright, but ordered the prosecution to present its
evidence, after which, it sentenced the said accused to suffer the death penalty in each case, to
indemnify the heirs of the victims in the amount of P12,000.00 and to pay the costs.

The death penalty having been imposed, the cases are now before the Court for mandatory review.

1. Able counsel appointed for the accused first claims that the acceptance of the plea of guilty was
precipitate since the trial judge did not ascertain from the accused that the latter was aware of the
consequences of his plea of guilty and that he fully understood the significance and meaning thereof.
Wherefore, he prays that the cases be returned to the court below for proper proceedings.

The norm that should be followed where a plea of guilty is entered by the defendant, especially in cases
where the capital penalty may be imposed, is that the court should be sure that defendant fully
understands the nature of the charges preferred against him and the character of the punishment
provided by law before it is imposed. For this reason, the Court requires that in every case under a plea
of guilty, where the penalty may be death, the trial court should call witnesses for the purpose of
establishing the guilt and degree of culpability of the defendant and not only to satisfy the trial judge
but to aid the Supreme Court in determining whether accused really and truly understood and
comprehended the meaning, full significance and consequences of his plea. 1

In the instant case, the trial judge required the taking of testimony as to the circumstances under which
the crime was committed before passing judgment so that the resulting verdict cannot in any way be
branded as deficient.

2. Counsel also contends that the evidence presented by the prosecution does not warrant, nor support,
the finding that the killing of Pat. Zosimo Gelera was qualified by treachery since the prosecution failed
to present any eyewitness who directly saw the killing of Pat. Gelera. The Solicitor General agrees with
counsel for the accused.

According to the Revised Penal Code, 2 "there is treachery when the offender commits any of the crimes
against the person, employing means, methods, or forms in the execution thereof which tend directly
and specially to insure its execution, without risk to himself arising from the defense which the offended
party might make."

In the instant case, it does not appear how and in what position the victim was when he was killed so
that it cannot be said for certain that the accused had adopted a mode or means of attack tending
directly to insure or facilitate the commission of the offense without risk to himself arising from the
defense or retaliation which the victim might put up.

Pat. Nicandro Garcia of the Bulalacao police force merely declared that he was in his house, about 15
meters away from the municipal building when the accused Rudy Tiongson and his companions escaped
from prison, 3 and he did not see the accused shoot Pat. Gelera. 4

Police Chief Edwardo Borwangga did not also see the accused Rudy Tiongson shoot Pat. Gelera. He
declared that Pat. Gelera was already dead when he arrived at the municipal building in the afternoon of
October 26, 1971. 5

PC Sgt. Teotimo Saway, who led the pursuit of the escaped detainees, declared that he was in one of the
stores in front of the Bulalacao municipal building, about 60 meters away, when he heard two (2)
gunshots coming from the direction of the municipal building, 6 and Pat. Gelera was already dead when
he saw him. 7

The circumstances qualifying or aggravating the act of killing a human being must be proved in an
evident and incontestable manner, mere presumptions or deductions from hypothetical facts not being
sufficient to consider them justified. Thus, in the case of U.S. v. Barbosa, 8 the Court said that "since the
case does not furnish any evidence to the effect that Barbosa had formed the deliberate, premeditated
intention to take the life of his wife, and there was no eyewitness as to the manner in which the
deceased was strangled; consequently there is no provision of law under which we can hold that the
crime was committed with treachery, and it must be borne in mind that the qualifying circumstances of
a crime in its commission, in order to be considered, must be established by competent evidence as well
as the crime to which they relate."

In the case of U.S. v. Perdon, 9 the Court said that since "neither this witness nor any other gives any
particulars whatever as to the manner in which the aggression was made, nor how the act which
resulted in the death of the deceased began and developed; and this being the case, it can not be
established from mere suppositions, drawn from circumstances prior to the very moment of the
aggression, that the accused had employed means tending to insure its success without any danger to
his person, which constitutes treachery (alevosia) as defined by the Penal Code. The circumstances
specifying an offense or aggravating the penalty thereof must be proved as conclusively as the act itself,
mere suppositions or presumptions being insufficient to establish their presence according to law. No
matter how truthful these suppositions or presumptions may seem, they must not and can not produce
the effect of aggravating the condition of the defendant."

The Court, in U.S. v. Asilo, 10 also ruled that since it was not established "that the aggressors employed
any means which might have rendered all defenses impossible for the deceased, inasmuch as no one
witnessed the very act of aggression, there is not sufficient ground to establish the conclusion that the
attempt which deprived Anastacio Claridad of his life was made with treachery (alevosia). The treachery
can in no way be presumed, but must be fully proven in order to be appreciated for the effects of the
Penal Code."
In People v. Ramiscal, 11 the Court rejected the claim that treachery was present because "at the time
that the accused inflicted the wound upon the deceased there was not a single eyewitness, for when the
witnesses Umali and Chua Chuan entered the store the wound had already been inflicted."

The Solicitor General also agreed with the defendant’s counsel that treachery is not present in the killing
of PC Constable Aurelio M. Canela since the deceased was actually warned by PC Sgt. Saway not to
remain standing but seek cover because of the known presence of the accused in the vicinity, but that
the said deceased disregarded the warning. The pertinent portion of the testimony of PC Sgt. Saway
reads, as follows:

"FISCAL SADICON:

Q Were you alone while you were pursuing those three escaping prisoners?

A No, sir.

Q Who was your companion if there was any?

A Pat. Nicandro Garcia, sir.

Q While yon were pursuing these prisoners what happened next?

A When we were already along the mountain then watching for the appearance of the three escapees, I
saw C2C Aurelio Canela, sir.

Q What does this C2C mean?

A Constable Second Class, sir.

Q After seeing C2C Aurelio Canela approaching while you were waiting for the three escapees what did
you do?

A I signaled him to lie flat and indicated to him where the escapees seem to be moving, sir.

Q Then what did C2C Canela do upon your signal?

A He continued walking towards me and at the precise moment I signaled him again to lie down because
the escapees-prisoners were there, sir.

Q After that what happened?

A He did not heed my instruction and because of that I approached him and tried to hold him instructing
him to lie down but on that precise moment two shots were fired, sir.

Q From what direction those two shots came from?

A From my left approximately 4 meters away from me, sir.

Q What happened after hearing those two shots?

A I saw Canela already hit and shouting ‘aruy’, sir." 12

Considering that PC Constable Canela had been sufficiently forewarned of the presence of the appellant
in the vicinity and that he was not completely deprived of an opportunity to prepare and repel or avoid
the aggression, treachery cannot be appreciated.

Since treachery, which would qualify the killing of Pat. Gelera and PC Constable Canela to Murder, was
not present, the crimes may only be punished as Homicide. It may be true that a judicial confession of
guilt admits all the material facts alleged in the information, including the aggravating circumstances
listed therein, as stated by the trial judge, yet where there has been a hearing and such circumstances
are disproven by the evidence, they should be disallowed in the judgment. 13

3. We also agree with the parties that the aggravating circumstances of (1) evident premeditation, (2) in
contempt of or with insult to public authorities, (3) uninhabited place, and (4) abuse of superior strength
were not present in the commission of the crimes.

Evident premeditation must be ruled out in view of the absence of sufficient proof that a plan to kill the
victims existed, the execution of which was preceded by deliberate thought and reflection. Besides, with
respect to the killing of PC Constable Canela, only ten minutes passed from the time the accused
escaped from the Municipal Jail up to the time he shot PC Constable Canela near the cemetery, 14 so
that there was no lapse of time during which he could have deliberately planned the killing of the said
PC Constable and meditated on the consequences of his act.

The aggravating circumstance that the crimes were committed in contempt of or with insult to the
public authorities cannot also be appreciated since Pat. Gelera and PC Constable Canela were the very
ones against whom the crime were committed. Besides, Pat. Gelera and PC Constable Canela are not
persons in authority, but merely agents of a person in authority. 15

5. The lower court also found that the killing of PC Constable Canela was committed in an uninhabited
place, It has not been shown, however, that the offense was committed in an isolated place, far from
human habitation, In order that the aggravating circumstance of the commission of a crime in an
uninhabited place may be considered, it is necessary that the place of occurrence be where there are no
houses at all, a considerable distance from the village or town, or where the houses are a great distance
apart. 16 Here, PC Sgt. Saway merely declared that the place where PC Constable Canela was shot was
about 700 meters away from the Municipal Building of Bulalacao, Oriental Mindoro, 17 which does not
satisfy the requirement. Besides, the record does not show that the place was intentionally sought by
the accused to facilitate the commission of the crime. The accused was trying to evade his pursuers, PC
Constable Canela among them, and their encounter was purely by chance. The lower court, therefore,
erred in finding that the crime was committed in an uninhabited place.

6. Finally, the aggravating circumstance of abuse of superior strength must also be ruled out since there
is no direct evidence that the accused employed superior strength in the killing of Pat. Gelera. The
accused was then a detainee and was unarmed while Pat. Gelera had his service pistol with him. With
respect to PC Constable Canela, the accused was alone against three armed pursuers, namely: PC Sgt.
Saway, PC Constable Canela, and Pat Nicandro Garcia, and a civilian by the name of Fred Barcelona. 18
As heretofore stated, the accused is guilty only of the crime of Homicide in the killing of PC Constable
Canela and Pat. Gelera. The Solicitor General recommends that the accused should be sentenced to
suffer imprisonment of from 8 years and 1 day to 14 years and 8 months, with the accessory penalties,
for each homicide committed by him. The penalty recommended is within the range provided by law.

WHEREFORE, with the modification that the accused Rudy Tiongson should be sentenced to suffer
imprisonment of from eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14)
years and eight (8) months of reclusion temporal, as maximum, for each homicide committed by him,
the judgment appealed from should be, as it is hereby, AFFIRMED. The indemnity to be paid to the heirs
of the victims is hereby increased to P30,000.00 in each case.

SO ORDERED.

5. People v. Magdueño, G.R. No. L-68699, 22 September 1986

[G.R. No. L-68699. September 22, 1986.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. HERMOGENES MAGDUEÑO, Accused-Appellant.

The Solicitor General for Plaintiff-Appellee.

Donato T. Faylona for Accused-Appellant.

DECISION
PER CURIAM:

Before us for automatic review is the decision of the Regional Trial Court of Palawan and Puerto Princesa
City finding accused-appellant Hermogenes Magdueño guilty beyond reasonable doubt of the crime of
Murder qualified by treachery and evident premeditation and aggravated by price or reward and by the
crime being committed in contempt of/or with insult to public authority. The court sentenced
Magdueño to suffer the penalty of DEATH with all the accessory penalties provided by law and to pay
the costs; and to indemnify the heirs of the victim, Fernando M. Dilig in the sum of P130,000.00 as
actual damages and P20,000,00 as moral damages.

The amended information charged Hermogenes Magdueño, Apolinario Sison, Teodorico Ramirez,
Alejandro Guevarra, Alfredo Guevarra, and Edgardo Casabay with having committed the crime of
murder as follows:

"That on or about the 15th day of October, 1980, and for sometime prior and subsequent thereto, in the
City of Puerto Princesa, Philippines and in Aborlan, Province of Palawan and within the jurisdiction of
this Honorable Court, the said accused, conspiring and confederating together and mutually helping one
another, did then and there wilfully, unlawfully and feloniously have in their possession, custody and
control a firearm to wit: one (1) 9MM automatic pistol, without having secured the necessary license
and or permit to possess the same from the proper authorities; that at the aforementioned time and
place while the said accused were in possession of the afore-described firearm, conspiring and
confederating together and mutually helping one another, with treachery and evident premeditation,
with intent to kill and while armed with said firearm, did then and there wilfully, unlawfully and
feloniously attack, assault and shoot one FERNANDO M. DILIG, City Fiscal of Puerto Princesa City,
thereby inflicting upon the latter mortal wounds which were the direct and immediate cause of his
death, to the damage and prejudice of his death, (sic) to the damage and prejudice of his heirs in the
amount of TWO HUNDRED FIFTY THOUSAND (P250,000.00) PESOS, Philippine Currency.

"CONTRARY TO LAW and committed with the aggravating circumstance of treachery, evident
premeditation that the crime was committed in consideration of a price, reward or promise; and that
the crime was committed in contempt of or with insult to public authorities."

The facts established by the prosecution and accepted by the lower court as basis for the decision are
summarized as follows:

"On October 15, 1980, a few minutes past 8:00 o’clock in the morning, as soon as the late Fiscal
Fernando M. Dilig had placed himself at the driver’s seat inside his jeep parked near his house at the
corner Roxas and D. Mendoza Streets, Puerto Princesa City, all of a sudden, two successive gunshots
`burst into the air, as the gunman coming from his left side aimed and poured said shots into his body,
inflicting two fatal wounds (Exhibit N) that instantaneously caused his death. The autopsy report of Dr.
Rufino P. Yuzon, Puerto Princesa City Health Officer, described the wounds as follows:

"‘1. Wound, gunshot, (entrance), 0.7 cm. in diameter, surrounded by contusion collar, 0.3 cm. in width
almost evenly distributed around the gunshot wound, located at the lateral aspect, neck, left, lower
portion, directed medially, slightly anteriorly, and upwards penetrating the subcutaneous tissues and
muscles, involving the left lateral portion of the esophagus, then the right lateral portion of the hyroid
bone, the right common Carotid Artery, the right jugular vein, and piercing the sterno-cleido Mastoid
Muscle, then making a wound (exit), 1.3 cm. located at the lateral aspect, neck, right, about 1 1/2 inches
below the angle of the mandible.’

"‘2. Wound, gunshot, (entrance), 0.7 cm. in diameter, surrounded by Contusion Collar, 0.3 cm. in width
almost evenly distributed around the gunshot wound, located at the lumbar region, left about 2 inches
posteriorly from the Mid-axillary line directed medially, slight anteriorly and slightly upwards
penetrating the sub-cutaneous tissues and muscles, then to the abdominal cavity and involving the
upper portion of the descending colon, and the two loops of small intestines, then piercing the right
abdominal muscles, making a wound, (exit), 1.5 cm. located at the lumbar region, right, about 1 1/2
inches anterior to the mid-axillary line, right.’

"Three witnesses positively identified the assailant as accused Hermogenes Magdueño: (1) Elena Adion
Lim, while sitted (sic) at the gate of her fence, about 20 to 30 meters away from the house of Fiscal Dilig,
saw the gunman coming from where she heard two successive shots when he passed by her house,
bringing a short gun in his right hand and a clutch bag while hurriedly proceeding towards Liwanag
Street. On October 30, 1980, she identified accused Magdueño as the man she saw that early morning
of October 15, 1980; (2) Ernesto Mari Y Gonzales, a security guard of the Malaria Eradication Service,
this City, while on board a tricycle, passing in front of the house of Fiscal Dilig on his way home, likewise
heard the two gunshots coming from the direction of Fiscal Dilig’s house, prompting him to order the
driver to stop. He described the gunman as wearing a white polo shirt, blue pants and a hat, still holding
the gun pointed at Fiscal Dilig. When the gunman turned to his left side, Mari saw a scar on his left
temple below his left eyebrow. The man was still holding the gun in his right hand while walking in a
limping manner towards Mendoza Street. On the witness chamber, he positively identified accused
Hermogenes Magdueño as the gunman; (3) Cynthia Canto, a taxi dancer, residing at Jose Abad Santos,
this City, while in front of the store of Aling Charing near the house of Fiscal Dilig, waiting for a tricycle,
saw the gunman standing by for a quite time, then went nearer Fiscal Dilig who was then sitted (sic) on
the driver’s seat of his jeep and fired two successive shots to the latter, exiting towards Mendoza Street.
She could not be mistaken that accused Hermogenes Magdueño was the gunman and when she came
face to face with him at the invitation of the police in Plaridel, Aborlan, Palawan, the readily identified
Magdueño as the killer.

Magdueño also executed an extra-judicial confession wherein he admitted that he killed Fiscal Dilig for a
price or reward and implicated Leonardo Senas and Mauricio de Leon to the commission of the crime.
However, both Senas and de Leon were later dropped from the amended information for lack of a prima
facie case against them.

All the other accused were acquitted for insufficiency of evidence.

Gloria S. Dilig, the widow of the victim was presented as witness to prove the civil aspects of the case.
She testified on the actual damages the family incurred and the moral damages she suffered as a result
of the death of Fiscal Dilig.

The dispositive portion of the trial court’s decision states:

"WHEREFORE, judgment is hereby rendered finding:

"1) Accused Hermogenes Magdueño guilty beyond reasonable doubt of the crime of murder qualified by
treachery and evident premeditation and aggravated by price or reward and that the crime was
committed in contempt of/or with insult of public authority, and hereby sentences him to suffer the
SUPREME PENALTY OF DEATH, with all the accessory penalties provided for by law, and to pay the costs.
He is likewise ordered to indemnify the heirs of the late Fernando M. Dilig in the sum of P130,000.00, as
actual damages and P20,000.00, as moral damages.

"2) Accused Alejandro Guevarra, Teodorico Ramirez, Jr., Edgardo Caabay, Apolinario Sison and Abredo
Guevarra, not guilty of the crime of murder and hereby acquits them of the charge against them. The
bailbond posted for the provisional liberty of accused Alejandro Guevarra, Teodorico Ramirez, Jr.,
Edgardo Caabay and Alfredo Guevarra is hereby ordered cancelled and the immediate release of
accused Apolinario Sison is likewise ordered unless held for any other cause."

The appellant assigns the following errors allegedly committed by the lower court:

I THE COURT A QUO ERRED IN CONVICTING THE ACCUSED FOR MURDER.

II THE COURT A QUO ERRED IN ADMITTING IN EVIDENCE THE ACCUSED’S EXTRA-JUDICIAL CONFESSION.

We are convinced from the records that the appellant was the assailant of the late Fiscal Fernando Dilig.
The lower court did not err as alleged.

The appellant was a stranger in the town and was not known by the three eyewitnesses before the
incident. However, he was readily and positively identified by the three eyewitnesses upon
confrontation. They could not have mistaken the appellant’s identity because they had a clear view of
him at the time and the incident happened in broad daylight. Any doubt of his identity is erased by the
testimony of Ernesto Mari Gonzales, one of the eyewitnesses, to the effect that the man he saw pointing
a gun to the late Fiscal Dilig had a scar on his left temple below his left eyebrow. The appellant, as
observed by the lower court, has a scar below his left eye and above the left eye at the eyebrow in the
shape of a letter "J" and at the end of the left eye somewhat shaped like the letter "V", perpendicular to
the eyebrow.

The defense failed to show any motive on the part of these eyewitnesses to falsely accuse the appellant
as having committed the crime. The appellant’s accusation that Cynthia Canto, one of the eyewitnesses
testified against him "to claim a reward" is not supported by any evidence on record.

In the light of the positive identification of the appellant as the perpetrator of the crime, his defense of
alibi necessarily falls. His assertion that on the day of the incident, he was at the house of Leonardo
Senas in Plaridel, Aborlan, Palawan deserves no credit. The appellant has not shown that it was
impossible for him to have been at the place of the incident at the time the crime was committed.
Moreover, as the lower court observed a bus ride from Aborlan, Palawan, would take only a little more
than two hours to the city.

Treachery in the commission of the crime is clearly established by the record.

The appellant fired two successive shots at the defenseless Fiscal Dilig while the latter was still seated in
his jeep, hitting him at the neck and lumbar region. According to Dr. Rufino P. Yuzon, who performed
the autopsy, on the victim; both wounds were fatal and that "death will definitely occur." Immediately
after the shooting, the appellant fled still holding his firearm.

The manner of the execution was such that the appellant deliberately and consciously adopted means
and ways of committing the crime and insured its execution without risk to himself arising from any
defense Fiscal Dilig might make. The two conditions necessary for treachery to exist are present (People
v, Macariola, 120 SCRA 92; People v. Rhoda, 122 SCRA 909; People v. Mahusay, 138 SCRA 452; and
People v. Radomes, 141 SCRA 548).

The fact that the appellant called out, "Fiscal" before shooting the victim does not negate the presence
of treachery in the commission of the crime. Since the appellant was a hired killer, he wanted to insure
that he was shooting the correct person. When Dilig turned his face to find out who was calling him, the
appellant fired immediately rendering no opportunity for Dilig to defend himself.

The attendant circumstance of treachery qualifies the crime to murder. The first assigned error is
without merit.

The second assignment of error questions the trial court’s finding that the extra-judicial confession was
admissible.

The lower court quoted Section 20, Article IV of the Bill of Rights and took pains to explain why there
was compliance with its mandate. The court commented on the imbalance present during custodial
interrogations, the strange and unfamiliar surroundings where seasoned and well-trained investigators
do their work, and then rejected the appellant’s allegations that it was extracted through violence and
torture.

The trial court stated:

"But a cursory evaluation of the evidence shows that accused Magdueño was properly informed of his
constitutional rights to remain silent and to counsel, and that any statement he might make could be
used against him. He was allowed to communicate with, and was even given, a lawyer in the person of
Atty. Clarito A. Demaala, Jr. of the CLAO in this City. As certified to by Atty. Demaala, Jr., he assisted and
was present when the accused was placed under custodial investigation. Even before it started, Atty.
Demaala interviewed the accused and informed him of his constitutional rights. NBI Officer-in-Charge
Celso A. Castillo, affirmed this particular fact. He was allowed to converse with his counsel in his cell and
the statement thus obtained from him, signed and subscribed by him as true, whether inculpatory or
exculpatory, in whole and in part, shall be, as it is hereby, considered admissible in evidence. (Morales,
Et. Al. v. Ponce Enrile, Et. Al. L-61016; Moncupa, Jr. v. Ponce Enrile, Et. Al. L-61107, April 26, 1983.) It is
presumed voluntary and no contrary evidence was shown. (People v. Dorado, L-23464, 36 SCRA 452).
There is spontaneity and voluntariness in his extra-judicial confession which contains details that cannot
be furnished by the investigators on how the killing was planned, the reward to be received and the
scenario of the killing. (People v. Opiniano, 22 SCRA 177). Furthermore, it was corroborated by other
evidence which recites the true sequence of events. (People v. Pontanosa, 20 SCRA 249).

"With the admission of, and conformably to what the accused Hermogenes Magdueño alleged in, his
extra-judicial confession, the court finds that accused Magdueño was hired by a ‘mysterious
mastermind’ with whose representative he agreed to kill Fiscal Dilig for a fee of P80,000.00, of which he
will receive a clean bill of P30,000.00. Sometime during the last week of September, 1980, at his
residence in Divisoria, Metro Manila, he agreed to the proposition. The representative of the
mastermind,’ Leonardo Senas, gave him the advance payment of P5,000.00, with the balance of
P25,000.00 to be paid after he accomplished the mission. As to the gun he used, it was a 9mm.
automatic revolver. This confirms the finding of the NBI. . . ."

The records show that the CLAO lawyer, Atty. Clarito Demaala, entered his appearance as counsel for
the accused during the interrogation and was present from the start of the investigation until it was
finished.

The evidence showing that the appellant was a contract or hired killer especially contacted in Manila to
do a job in Puerto Princesa is strengthened by testimony.

Magdueño himself testified that he was formerly an inmate of Muntinlupa who was later transferred to
Sta. Lucia Sub-Colony and released in 1973. He stated that after his release, he lived with relatives in
Divisoria and worked with an aunt as sidewalk vendor. He explained his presence in Palawan on the day
of the killing by claiming that sometime in 1979 Leonardo Senas accidentally passed by their place in
Tabora and suggested that the appellant bring assorted merchandize to Aborlan, Palawan where Senas
resides. He, therefore, left for Palawan on board the M/V Leon on September 28, 1980 (or shortly
before the killing) and visited Mauricio de Leon at Quito, Puerto Princesa, saw head-nurse Mrs.
Fernandez at Sta. Lucia, spent a night with a Mr. Obid at the Inagawan Sub-Colony and proceeded to
Aborlan, Palawan He claims that at the time of the shooting, he was in the house of Senas in Aborlan
and learned only from the radio about the killing of Fiscal Dilig.

One of the prosecution witnesses, Andres Factora, testified that he was formerly an inmate in
Muntinlupa since October 26, 1955 and that while serving a sentence for triple death penalty, he met
Magdueño, a leader of the Sputnik Gang, also on death row. Magdueño was nicknamed "Mande" and
served as an attendant in the prison hospital. Factora stated that Magdueño was known as a TIRADOR
or killer while in prison. He further testified that while he was in Sta. Lucia Sub-Colony in 1980, he saw
Magdueño on October 12 or 13 at the gate of Palawan Apitong. The reason given by the appellant for
his being there was that he was in the business of bangus fry.

There is plenty of other testimony about the participation of the appellant and the other accused and
the defenses they presented. The trial court summarized in its decision the testimonies of sixteen (16)
prosecution witnesses and twenty-one (21) witnesses for the defense.

We have carefully examined the records and considering the testimony of the three eyewitnesses to the
shooting, their positive and categorical identification of the appellant as the assailant, the corroborative
evidence on the circumstances of the killing, and the more than coincidental presence of Magdueño in
Palawan when he should have been in Manila, we see no error in the lower court’s finding that the
appellant committed the crime of murder qualified by treachery and evident premeditation and
aggravated by price and reward. Magdueño, in effect, also admitted that he was a recidivist at the tune
of his trial. However, recidivism was not alleged in the information and makes no difference in the
determination of the penalty in this case.

However, the aggravating circumstance of commission of a crime with insult to public authority does not
seem to be borne by the records. For this aggravating circumstance to be considered it must not only be
shown that the crime was committed in the presence of the public authority but also that the crime was
not committed against the public authority himself. (U.S. v. Rodriguez, 19 Phil. 150; People v. Rizal, 103
SCRA 282). In the instant case Fiscal Dilig, the public authority involved in the crime, was the victim.
Hence, the lower court, erred in including commission of the crime with insult to public authority as an
aggravating circumstance.

Considering the presence of an aggravating circumstance and the absence of any mitigating
circumstance attending the offense, the lower court imposed the proper penalty on the appellant. The
crime in this case is a particularly heinous one. The appellant is shown by the records as a heartless
contract killer. Upon being paid for a job, he had no compunctions about traveling all the way to
Palawan from Manila, stalking and liquidating an unwary victim whose only fault was to perform his
duties faithfully.

WHEREFORE, the lower court’s judgment is hereby AFFIRMED.

SO ORDERED.

6. People v. Tac-an, G.R. Nos. 76338-89, 26 February 1990.

G.R. No. 76338-39 February 26, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RENATO TAC-AN Y HIPOS, accused-appellant.

The Office of the Solicitor General for plaintiff-appellee.

Amadeo D. Seno for accused-appellant.

FELICIANO, J.:

Accused Renato Tac-an appeals from the decision of the Regional Trial Court of Tagbilaran City,
convicting him of qualified illegal possession of a firearm and ammunition in Criminal Case No. 4007 and
of murder in Criminal Case No. 4012 and imposing upon him the penalty of death in both cases.

On 18 December 1984, appellant was charged with violation of Section 1, paragraph (2), of Presidential
Decree No. 1866, committed as follows:

That, on or about the 14th day of December 1984, in the City of Tagbilaran Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, while
acting under the influence of drugs and without any license or permit from the proper
authorities, did then and there willfully, unlawfully and feloniously have ill his
possession, custody and control an unlicensed firearm, a SMITH & WESSON Airweight
caliber .38 revolver with Serial Number 359323 with Five (5) spent shells and Five (5) live
ammunitions and without any justifiable cause and with intent to kill, used the said
firearm and ammunitions to shoot one Francis Ernest Escano III hitting and inflicting
upon the latter the following gunshot wounds or injuries, to wit:

MULTIPLE GUNSHOT WOUNDS — Head & Chest (through and through);

Head Entrance — 1.4 x 2.2 cm., Left Fronto-Temporal Area; Port — 1.3 x
0.3 cm.; Right Cheek. 3.5 cm. above the right external meatus;

Chest Entrance — 0.3 x 1 cm. — Right Infrascapular Area at the level of

the 7th Intercostal Rib (Back); Exist — 0.3 cm. dia; above the right
nipple;

Y-shape laceration, check at the right angle of the mouth, Right

Dimensions: 3 x 1.2 cm. x 1.8

which gunshot wounds or injuries directly caused his death, to the damage and
prejudice of the Republic of the Philippines.

Acts committed contrary to the provisions of Section 1, paragraph 2 of the Presidential

Decree No. 1866. 1
On 11 January 1985, an amended information 2 for murder was also filed against appellant reading as
follows:

That, on or about the 14th day of December, 1984 in the City of Tagbilaran, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, without
any justifiable cause and with intent to kill, evident pre-meditation treachery, while
acting under the influence of drugs, with cruelty and deliberately augmenting the
suffering of the victim, did then and there willfully, unlawfully and feloniously attack,
assault and shot one Francis Ernest Escano with the use of an unlicensed SMITH &
WESSON Airweight caliber .38 revolver with Serial Number 359323 hitting and inflicting
upon the latter the following gunshot wounds or injuries, to wit:

MULTIPLE GUNSHOT WOUNDS — Head and Chest (Through & Through);

Head Entrance — 14 x 2.2 cm., Left Fronto-temporal Area; Port — l.3 x

0.3 cm., Right Cheek, 3.5 cm., above the right external meatus;

Chest Entrance — 0.3 x 1 cm. — right Infrascapular Area at the level of

the 7th Inter-Costal Rib (back); exit — 0.3 cm. dia; above the right nipple

Y-shape laceration, cheek at the angle of the mouth, Right

Dimensions: 3 x 1.2 cm. x 1.8.

which gunshot wounds or injuries directly caused his death, to the damage and
prejudice of the heirs of the deceased namely: Judge & Mrs. Francisco Rey H. Escano, in
the amount to be proved during the trial of the case.

Acts committed contrary to the provisions of Article 248 of the Revised Penal Code, in
relation to Section 17 of Batas Pambansa Blg. 179, with the qualifying aggravating
circumstances of evident premeditation, treachery and acting under the influence of
dangerous drugs and cruelty.

Appellant entered a plea of not guilty in both cases. The two (2) criminal cases were consolidated upon
motion of the prosecution and tried jointly. On 31 July 1986, the trial court rendered a
decision 3 convicting appellant under both informations. The dispositive portion of the decision read as
follows:

WHEREFORE, all the foregoing premises considered, decision is hereby rendered in

Criminal Case No. 4007 finding the accused Renato Tac-an y Hipos GUILTY beyond
reasonable doubt of Illegal Possession of Firearms and Ammunitions qualified with
Murder under Section 1, paragraphs 1 and 2 of Presidential Decree No. 1866 and hereby
sentences said Renato Tac-an y Hipos to suffer the penalty of DEATH. Further, decision
is also rendered in Criminal Case No. 4012 finding the same accused Renato Tac-an y
Hipos GUILTY beyond reasonable doubt of Murder under Article 248 of the Revised
Penal Code, in relation to Batas Pambansa Blg. 179 and P.D. 1866. Appreciating the
aggravating circumstance of evident premeditation (treachery used to qualify the crime
 to murder) and the special aggravating circumstances of acting while under the
influence of dangerous drugs and with the use of an unlicensed firearm and with insult
to a person in authority and there being no mitigating circumstance to offset them, and
sentences the said Renato Tac-an y Hipos to suffer the penalty of DEATH. The accused is
likewise ordered to indemnify the heirs of the deceased Francis Ernest Escano in the
amount of THIRTY THOUSAND PESOS (P30,000.00); to pay actual compensatory
damages in the amount of ONE HUNDRED EIGHT THOUSAND THREE HUNDRED TEN
PESOS (P108,310.00); to pay moral damages to Judge Francisco Escano, Jr., the sum of
ONE HUNDRED THOUSAND PESOS (P100,000.00) and to Mrs. Lydia Escano the sum of
ONE HUNDRED THOUSAND PESOS (P100,000.00) for the mental anguish and suffering
each experienced because of the death of Francis Ernest. All such amount shall earn
legal interest from the time this decision shall become final and executory until fully
satisfied. The accused shall also pay the costs.

SO ORDERED.

Immediately after promulgation of the decision, appellant signified his intention to appeal to this Court,
although the same was subject to automatic review by this Court.

In his brief, appellant assigned the following as errors allegedly committed by the trial court:

I. The lower court erred in believing the prosecution's version of the case instead of
according full faith and credence to the defendant's version.

II. The trial court erred in not holding that Renato Tac-an was justified in shooting the
deceased.

III. The trial court erred in not holding that in (sic) the least the defendant acted in
incomplete self-defense in shooting the deceased.

IV. The trial court erred in not holding that P.D. 1866 is inapplicable to the defendant
inasmuch as said decree was enforceable only during the existence of the Martial Law
Regime.

V. The trial court erred in not holding that the defendant was placed twice in jeopardy
for having been prosecuted for violation of P.D. 1866 despite his being prosecuted for
murder in an information which alleges that the accused used an unlicensed firearm in
killing the deceased.

VI. The trial court erred in not adjudging the defendant innocent of murder.

From the record, the facts may be collated and summarized as follows:

Appellant Renato Tac-an, then eighteen (18) years and seven (7) months of age, and the deceased
Francis Ernest Escano III, fifteen (15) years old, were classmates in the third year of high school of the
Divine Word College in Tagbilaran City. They were close friends, being not only classmates but also
members of the same gang, the Bronx gang. Renato had been to the house where Francis and his
parents lived, on one or two occasions. On those occasions, Francis' mother noticed that Renato had a
handgun with him. Francis was then advised by his mother to distance himself from Renato. 4

Francis withdrew from the Bronx gang. The relationship between Renato and Francis turned sour.
Sometime in September 1984, Renato and Francis quarrelled with each other, on which occasion Francis
bodily lifted Arnold Romelde from the ground. Arnold was friend and companion to Renato. The quarrel
resulted in Renato and Francis being brought to the high school principal's office. The strained
relationship between the two (2) erstwhile friends was aggravated in late November 1984 when Francis
teamed that Renato, together with other members of the Bronx gang, was looking for him, apparently
with the intention of beating him up. Further deterioration of their relationship occurred sometime in
the first week of December 1984, when graffiti appeared on the wall of the third year high school
classroom and on the armrest of a chair in that classroom, deprecating the Bronx gang and describing
Renato as "bayot" (homosexual) 5 Renato attributed the graffiti to Francis.

At about 2:00 o'clock in the afternoon of 14 December 1984, Renato entered Room 15 of the high
school building to attend his English III class. Renato placed his scrapbook prepared for their
Mathematics class on his chair, and approached the teacher, Mrs. Liliosa Baluma, to raise a question.
Upon returning to his chair, he found Francis sitting there, on the scrapbook. Renato was angered by
what he saw and promptly kicked the chair on which Francis was seated. Francis, however, explained
that he had not intentionally sat down on Renato's scrapbook. A fistfight would have ensued but some
classmates and two (2) teachers, Mrs. Baluma and Mr. Damaso Pasilbas, intervened and prevented them
from assaulting each other. After the two (2) had quieted down and apparently shaken hands at the
instance of Mrs. Baluma, the latter resumed her English III class. Francis sat on the last row to the
extreme right of the teacher while Renato was seated on the same last row at the extreme left of the
teacher. While the English III class was still going on, Renato slipped out of the classroom and went
home to get a gun. He was back at the classroom approximately fifteen (15) minutes later. 6

The Mathematics class under Mr. Damaso Pasilbas scheduled for 3:00 p.m. had just started in Room 15
when Renato suddenly burst into the room, shut the door and with both hands raised, holding a
revolver, shouted "Where is Francis?" Upon sighting Francis seated behind and to the light of student
Ruel Ungab, Renato fired at Francis, hitting a notebook, a geometry book and the armrest of Ruel's
chair. Francis and Ruel jumped up and with several of their classmates rushed forward towards the
teacher's platform to seek protection from their teacher. Renato fired a second time, this time hitting
the blackboard in front of the class. Francis and the other students rushed back towards the rear of the
room. Renato walked towards the center of the classroom and fired a third time at Francis, hitting the
concrete wall of the classroom. Francis and a number of his classmates rushed towards the door, the
only door to and from Room 15. Renato proceeded to the teacher, s platform nearest the door and for
the fourth time fired at Francis as the latter was rushing towards the door. This time, Francis was hit on
the head and he fell on the back of Ruel and both fell to the floor. Ruel was pulled out of the room by a
friend; Francis remained sprawled on the floor bleeding profusely. 7

Renato then went out of Room 15, and paced between Rooms 14 and 15. A teacher, Mr. Pablo Baluma,
apparently unaware that it was Renato who had gunned down Francis, approached Renato and asked
him to help Francis as the latter was still alive inside the room. Renato thereupon re-entered Room 15,
closed the door behind him, saying: "So, he is still alive. Where is his chest?" Standing over Francis
sprawled face down on the classroom floor, Renato aimed at the chest of Francis and fired once more.
The bullet entered Francis' back below the right shoulder, and exited on his front chest just above the
right nipple. 8
Renato then left with two (2) remaining students and locked Francis alone inside Room 15. Renato
proceeded to the ground floor and entered the faculty room. There, he found some teachers and
students and ordered them to lock the door and close the windows, in effect holding them as hostages.
He also reloaded his gun with five (5) bullets. After some time, a team of Philippine Constabulary
troopers led by Capt. Larino Lazo arrived and surrounded the faculty room. With a hand-held public
address device, Capt. Lazo called upon Renato to surrender himself Renato did not respond to this call.
Renato's brother approached Capt. Lazo and volunteered to persuade his brother to give up. Renato's
father who, by this time had also arrived, pleaded with Renato to surrender himself Renato then turned
over his gun to his brother through an opening in the balustrade of the faculty room. Capt. Lazo took the
gun from Renato's brother, went to the door of the faculty room, entered and placed Renato under
arrest. 9

Meantime, as soon as Renato left Room 15, some teachers and students came to rescue Francis but
could not open the door which Renato had locked behind him. One of the students entered the room by
climbing up the second floor on the outside and through the window and opened the door from the
inside. The teachers and students brought Francis down to the ground floor from whence the PC soldiers
rushed him to the Celestino Gallares Memorial Hospital. 10 Francis died before reaching the hospital.

Capt. Lazo brought Renato to the PC Headquarters at Camp Dagohoy, Tagbilaran City. The officer
deposited the revolver recovered from Renato which was an Airweight Smith and Wesson .38 caliber
revolver, with Serial No. 359323, as well as the five (5) live bullets removed from the said revolver, and
the five (5) empty cartridges which Renato had turned over to him. Ballistic examination conducted by
Supervising Ballistician, Artemio Panganiban, National Bureau of Investigation, Cebu, showed that the
empty cartridge cases had been fired from the revolver recovered from Renato. 11

Appellant at the outset assails the trial court for having believed the prosecution's version of the facts
instead of the version offered by the appellant. The trial court took into account, inter alia, the positive
and direct testimony of:

1. Mrs. Liliosa Baluma who testified as to, among other things, the events which took
place inside her English III classroom immediately before the shooting;

2. Ruel Ungab — a fifteen (15) year old classmate of Renato and Francis, who had fallen
on the floor with Francis when the latter was finally hit by Renato;

3. Damaso Pasilbas — the Mathematics teacher who was holding his class when Renato
had burst into Room 15 and started firing at Francis; and

4. Napoleon Jumauan — another sixteen (16) year old, classmate of Renato and Francis
who was inside the classroom when Renato had started firing at Francis and who was
only about a foot away from the head of Francis when Renato, having re-entered Room
15, had fired at Francis as the latter was sprawled on the floor of the classroom.

After careful examination of the record, we find no reason to disagree with the conclusion of the trial
court that Renato had indeed shot and killed Francis under the circumstances and in the manner
described by these witnesses.
 1. The claim of self-defense.

Renato claimed that he was acting in self-defense, or at least in incomplete self-defense, when he shot
Francis. For a claim of self-defense to be sustained, the claimant must show by clear and convincing
evidence that the following requisites existed:

a) unlawful aggression on the part of the victim;

b) reasonable necessity of the means employed by the accused to repel the aggression;
and

c) lack of sufficient provocation on the part of the accused. 12

Testifying in his own behalf, Renato said that a few minutes before the end of Mrs. Baluma's English III
class, Francis had approached him:

(Atty. Seno, Defense Counsel)

Q: How did it happened (sic) that you had a conversation with Francis?

(Renato)

A: While the class was going on, Mrs. Baluma was writing on the
blackboard.

Q: Then what happened?

A: While our teacher was writing on the blackboard Francis suddenly got
near me.

Q: And what happened when Francis approached you?

A: He said, 'So you are brave now you had a (sic) guts to fight against
me.'

Q: And what else did he say?

A: He said, 'Go home, get your firearm because I will go home to get a
gun.'

Q: Was that all that he told you?

A: He further said, 'You go home get your firearm, if you won't go home
and get a gun, I will go to your place and kill you including your parents,
brothers and sisters.'

Q: And after that where did Francis go?

 A: Before the bell rang he went ahead. 13

(Emphasis supplied)

We note at the outset that there was no evidence before the Court, except Renato's own testimony,
that Francis had uttered the above statements attributed to him by Renato. Although there had been
about twenty-five (25) other students, and the teacher, in the classroom at the time, no corroborating
testimony was offered by the defense. In the second place, assuming (arguendo merely) that Francis had
indeed made those statements, such utterances cannot be regarded as the unlawful aggression which is
the first and most fundamental requirement of self-defense. Allegedly uttered in a high school
classroom by an obviously unarmed Francis, such statements could not reasonably inspire the "well
grounded and reasonable belief" claimed by Renato that "he was in imminent danger of death or bodily
harm." 14 Unlawful aggression refers to an attack that has actually broken out or materialized or at the
very least is clearly imminent: it cannot consist in oral threats or a merely threatening stance or
posture. 15 Further as pointed out by the Solicitor General, Francis was obviously without a firearm or
other weapon when Renato returned and burst into Room 15 demanding to know where Francis was
and forthwith firing at him repeatedly, without the slightest regard for the safety of his other classmates
and of the teacher. There being no unlawful aggression, there simply could not be self-defense whether
complete or incomplete, 16 and there is accordingly no need to refer to the other requirements of lawful
self-defense.

2. The claim that P.D. No. 1866 is inapplicable.

As pointed out at the outset, appellant was charged with unlawful possession of an unlicensed firearm, a
Smith and Wesson Airweight.38 caliber revolver with five (5) spent bullets and five (5) live ones and with
having used such firearm and ammunition to shoot to death Francis Ernest Escano III, in violation of
Section 1 of P.D. No. 1866.

Section 1 of P.D. No. 1866 provides, in relevant part, that:

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms

or Ammunition or Instruments Used or Intended to be Used in the Manufacture of
Firearms or Ammunition. — The penalty of reclusion temporal in its maximum period
to reclusion perpetua shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any 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. (Emphasis supplied)

Appellant urges that P.D. No. 1866 is inapplicable to him "considering that the reason for its [P.D. No.
1866] issuance no longer exists." He argues that P.D. No. 1866 was enforceable only during the
existence of martial law, and that when martial law was "lifted in 1979," the reason for the "existence"
of P.D. No. 1866 faded away, with the result that the "original law on firearms, that is, Section 2692 of
the [Revised] Administrative Code, together with its pre-martial law amendments, came into effect
again thereby replacing P.D. No. 1866." 17
There is nothing in P.D. No. 1866 (which was promulgated on 29 June 1983) which suggests that it was
intended to remain in effect only for the duration of the martial law imposed upon the country by
former President Marcos. Neither does the statute contain any provision that so prescribes its lapsing
into non-enforceability upon the termination of the state or period of martial law. On the contrary, P.D.
No. 1866 by its own terms purported to "consolidate, codify and integrate" all prior laws and decrees
penalizing illegal possession and manufacture of firearms, ammunition and explosives in order "to
harmonize their provisions as well as to update and revise certain provisions and prior statutes "in order
to more effectively deter violators of the law on firearms, ammunitions and explosives." 18 Appellant's
contention is thus without basis in fact.

3. The claim of double jeopardy.

It is also contended by appellant that because he had already been charged with illegal possession of a
firearm and ammunition in Criminal Case No. 4007, aggravated by the use of such unlicensed firearm to
commit a homicide or murder, he was unconstitutionally placed in jeopardy of punishment for the
second time when he was charged in Criminal Case No. 4012 with murder "with the use of an unlicensed
[firearm]," in violation of Article 248 of the Revised Penal Code in relation to Section 17 of B.P. Blg. 179.

It is elementary that the constitutional right against double jeopardy protects one against a second or
later prosecution for the same offense, and that when the subsequent information charges another and
different offense, although arising from the same act or set of acts, there is no prohibited double
jeopardy. In the case at bar, it appears to us quite clear that the offense charged in Criminal Case No.
4007 is that of unlawful possession of an unlicensed firearm penalized under a special statute, while the
offense charged in Criminal Case No. 4012 was that of murder punished under the Revised Penal Code.
It would appear self-evident that these two (2) offenses in themselves are quite different one from the
other, such that in principle, the subsequent filing of Criminal Case No. 4012 is not to be regarded as
having placed appellant in a prohibited second jeopardy.

We note that the information in Criminal Case No. 4007 after charging appellant with unlawful
possession of an unlicensed firearm and ammunition, went on to state that said firearm and
ammunition had been used to shoot to death Francis Ernest Escaño III. We note also that the amended
information in Criminal Case No. 4012 after charging appellant with the unlawful killing of Francis Ernest
Escaño III, stated that the killing had been done with the use of an unlicensed firearm. We believe these
additional allegations in the two (2) informations did not have the effect of charging appellant with
having committed the same offense more than once.

However, in sentencing Renato to suffer the penalty of death for the crime of murder, the trial court did
take into account as a "special aggravating circumstance" the fact that the killing of Francis had been
done "with the use of an unlicensed firearm." In so doing, we believe and so hold, the trial court
committed error. There is no law which renders the use of an unlicensed firearm as an aggravating
circumstance in homicide or murder. Under an information charging homicide or murder, the fact that
the death weapon was an unlicensed firearm cannot be used to increase the penalty for the second
offense of homicide or murder to death (or reclusion perpetua under the 1987 Constitution). The
essential point is that the unlicensed character or condition of the instrument used in destroying human
life or committing some other crime, is not included in the inventory of aggravating circumstances set
out in Article 14 of the Revised Penal Code. 19
In contrast, under an information for unlawful possession (or manufacture, dealing in, acquisition or
disposition) of a firearm or ammunition, P.D. No. 1866 authorizes the increase of the imposable penalty
for unlawful possession or manufacture, etc. of the unlicensed firearm where such firearm was used to
destroy human life. Although the circumstance that human life was destroyed with the use of the
unlicensed firearm is not an aggravating circumstance under Article 14 of the Revised Penal Code, it may
still be taken into account to increase the penalty to death (reclusion perpetua, under the 1987
Constitution) because of the explicit provisions of P.D. No. 1866. As noted earlier, the unlawful
possession of an unlicensed firearm or ammunition is an offense punished under a special law and not
under the Revised Penal Code.

4. The claim that there was no treachery.

Appellant contends that there was no treachery present because before any shot was fired, Renato had
shouted "where is Francis?" Appellant in effect suggests his opening statement was a warning to Francis
and that the first three (3) shots he had fired at Francis were merely warning shots. Moreover, building
upon his own testimony about the alleged threat that Francis had uttered before he (Renato) left his
English III class to go home and get a gun, appellant argues that Francis must have anticipated his return
and thus had sufficient time to prepare for the coming of the appellant. 20 Appellant's contention, while
ingenious, must be rejected. The trial court made a finding of treachery taking explicit account of the
following factors:

1. Room 15 of the Divine Word College High School Department Tagbilaran City, is
situated in the second floor of the building. It is a corner room and it has only one (1)
door which is the only means of entry and exit;

2. At the time of the attack, the deceased was seated on his chair inside his classroom
and was writing on the armrest of his chair and also talking to Ruel Ungab and while
their teacher, Mr. Damaso Pasilbas was checking the attendance. The deceased was not
aware of any impending assault neither did he have any means to defend himself;

3. The accused used an airweight Smith & Wesson .38 caliber revolver in shooting to
death the defenseless and helpless Francis Ernest Escaño;

4. The attack was so sudden and so unexpected. the accused consciously conceived that
mode of attack;

5. The accused fired at Francis again and again and did not give him a chance to defend
himself. After the deceased was hit on the head and fell to the floor while he was
already sprawled and completely defenseless the accused fired at him again and the
deceased was hit on the chest;

6. The deceased was not armed. He was totally defenseless. He was absolutely not
aware of any coming attack. 21

The Court also pointed out that Renato must have known that Francis while inside Room 15 had no
means of escape there being only one (1) door and Room 15 being on the second floor of the building.
Renato in effect blocked the only exit open to Francis as he stood on the teacher's platform closest to
the door and fired as Francis and Ruel sought to dash through the door. Renato's question "where is
Francis?" cannot reasonably be regarded as an effort to warn Francis for he shot at Francis the instant
he sighted the latter, seated and talking to Ruel Ungab. That Renato fired three (3) shots before hitting
Francis with the fourth shot, can only be ascribed to the indifferent markmanship of Renato and to the
fact that Francis and the other students were scurrying from one part of the room to the other in an
effort to evade the shots fired by Renato. The cumulative effect of the circumstances underscored by
the trial court was that the attack upon Francis had been carried out in a manner which disabled Francis
from defending himself or retaliating against Renato. Finally, the circumstance that Renato, having been
informed that Francis was still alive, re-entered Room 15 and fired again at Francis who lay on the floor
and bathed with his own blood, manifested Renato's conscious choice of means of execution which
directly and especially ensured the death of his victim without risk to himself. 22 We are compelled to
agree with the trial court that treachery was here present and that, therefore, the killing of Francis
Ernest Escaño III was murder.

5. The claim that there was no evident premeditation.

The trial court also found the presence of evident premeditation and appreciated the same as a generic
aggravating circumstance. Here, it is the urging of the appellant that the requisites of evident
premeditation had not been sufficiently shown. In order that evident premeditation may be taken into
account, there must be proof of (a) the time when the offender formed his intent to commit the crime;
(b) an action manifestly indicating that the offender had clung to his determination to commit the crime;
and (c) of the passage of a sufficient interval of time between the determination of the offender to
commit the crime and the actual execution thereof, to allow him to reflect upon the consequences of his
act. 23 The defense pointed out that barely fifteen (15) minutes had elapsed from the time Renato left
his English III class and the time he returned with a gun. While there was testimony to the fact that
before that fatal day of 14 December 1984, anger and resentment had welled up between Francis and
Renato, there was no evidence adequately showing when Renato had formed the intention and
determination to take the life of Francis. Accordingly, we must discard evident premeditation as an
aggravating circumstance.

6. The claim that the killing was not done under the influence of a dangerous drug.

Section 17 of B.P. Blg. 179 which was promulgated on 2 March 1982 provides as follows:

SEC. 17. The provisions of any law to the contrary notwithstanding, when a crime is
committed by an offender who is under the influence of dangerous drugs, such state
shall be considered as a qualifying aggravating circumstance in the definition of a crime
and the application of the penalty provided for in the Revised Penal Code.

The trial court found that Francis was killed by Renato while the later was under the influence of a
dangerous drug, specifically marijuana, and took that into account as a "special aggravating
circumstance". No medical evidence had been submitted by the prosecution to show that Renato had
smoked marijuana before gunning down Francis. Fourteen (14) days had elapsed after December 14,
1984 before Renato was medically examined for possible traces of marijuana; the results of the
examination were negative. Defense witness Dr. Rogelio Ascona testified that in order to have a
medically valid basis for determining the presence of marijuana in the human system, the patient must
be examined within twenty-four (24) hours from the time he is supposed to have smoked
marijuana. 24 The prosecution had presented Orlando Balaba, a student at the Divine Word College, High
School Department, who testified that he found Renato and one Jaime Racho inside the men's room of
the High School Department sucking smoke from a hand-rolled thing that look like a cigarette, that he
had asked Renato what that was and that Renato had replied damo (marijuana). 25 While the testimony
of Orlando Balaba was corroborated by two (2) other prosecution witnesses, we believe that Orlando
Balaba's testimony was incompetent to show that what Renato and Jaime Racho were smoking inside
the men's room was indeed marijuana. It was pointed out by apellant that Orlando Balaba had never
smoked nor smelled marijuana.

In the absence of medical evidence, the Court took into account certain detailed factors as
circumstantial evidence supporting the testimony of Orlando Balaba. These circumstances were:

The circumstance of place where the killing was committed, the circumstance of the
manner of the attack, the circumstance of holding hostage some teachers and students
inside the faculty room, the circumstance of terrifying an entire school, the
circumstance that sitting on a scrapbook is too insignificant as to arouse passion strong
enough to motivate a killing, are circumstantial evidences that gave the court no room
for doubt that prosecution witnesses Orlando Balaba, Benjamin Amper and Allan de la
Serna truthfully told the court that they saw the accused smoking marijuana inside the
comfort room at 1:45 in the afternoon of December 14, 1984. ... . 26

The above circumstances pointed to by the trial court may be indicative of passionate anger on the part
of Renato; we do not believe that they necessarily show that Renato had smoked marijuana before
entering his English III class. In the absence of competent medical or other direct evidence of ingestion
of a dangerous drug, courts may be wary and critical of indirect evidence, considering the severe
consequences for the accused of a finding that he had acted while under the influence of a prohibited
drug. The Court considers that the evidence presented on this point was simply inadequate to support
the ruling of the trial court that Renato had shot and killed Francis while under the influence of a
prohibited drug.

7. The claim that appellant had voluntarily surrendered.

Appellant contends that he had voluntarily surrendered and that the trial court should have considered
that mitigating circumstance in his favor. The trial court did not, and we consider that it correctly
refused to do so. Firstly, Renato surrendered his gun, not himself, 27 by handing over the weapon
through the balustrade of the faculty room. Secondly, he surrendered the gun to his brother, who was
not in any case a person in authority nor an agent of a person in authority. 28 Thirdly, Renato did not
surrender himself he was arrested by Capt. Lazo. The fact that he did not resist arrest, did not constitute
voluntary surrender. 29 Finally, if it be assumed that Renato had surrendered himself, such surrender
cannot be regarded as voluntary and spontaneous. Renato was holed up in the faculty room, in effect
holding some teachers and students as hostages. The faculty room was surrounded by Philippine
Constabulary soldiers and there was no escape open to him. He was not entitled to the mitigating
circumstance of voluntary surrender.

8. Whether or not the crime was committed in contempt of or with insult to the public
authorities.
The trial court held that the shooting to death of Francis had been done "in contempt of or with insult to
the public authorities:

Under Republic Act 1978, as amended, a teacher of a public or private school is

considered a person in authority. The fact that Mr. Damaso Pasilbas, the teacher in
mathematics, was already checking the attendance did not deter the accused from
pursuing his evil act, The accused ignored his teacher's presence and pleas. Not yet
satisfied with the crime and terror he had done to Francis and the entire school, the
accused entered the faculty room and held hostage the teachers and students who
were inside that room. To the court, this act of the accused was an insult to his teachers
and to the school, an act of callus disregard of other's feelings and safety and
completely reprehensible. 30

We believe the trial court erred in so finding the presence of a generic aggravating circumstance. Article
152 of the Revised Penal Code, as amended by Republic Act No. 1978 and Presidential Decree No. 299,
provides as follows:

Art. 152. Persons in authority and agents of persons in authority. — Who shall be
deemed as such. — In applying the provisions of the preceding and other articles of this
Code, any person directly vested with jurisdiction, whether as an individual or as a
member of some court or government corporation, board, or commission, shall be
deemed a person in authority. A barrio captain and a barangay chairman shall also be
deemed a person in authority.

A person who by direct provision of law or by election or by appointment by competent

authority, is charged with the maintenance of public order and the protection and
security of life and property, such as a barrio councilman, barrio policeman and
barangay leader and any person who comes to the aid of persons in authority, shall be
deemed an agent of a person in authority.

In applying the provisions of Articles 148 and 151 of this Code, teachers, professors and
persons charged with the supervision of public or duly recognized private
schools, colleges and universities, and lawyers in the actual performance of their
professional duties or on the occasion of such performance, shall be deemed persons in
authority. (As amended by P.D. No. 299, September 19, 1973 and Batas Pambansa Blg.
873, June 12, 1985).

Careful reading of the last paragraph of Article 152 will show that while a teacher or professor of a
public or recognized private school is deemed to be a "person in authority," such teacher or professor is
so deemed only for purposes of application of Articles 148 (direct assault upon a person in authority),
and 151 (resistance and disobedience to a person in authority or the agents of such person) of the
Revised Penal Code. In marked contrast, the first paragraph of Article 152 does not identify specific
articles of the Revised Penal Code for the application of which any person "directly vested with
jurisdiction, etc." is deemed "a person in authority." Because a penal statute is not to be given a longer
reach and broader scope than is called for by the ordinary meaning of the ordinary words used by such
statute, to the disadvantage of an accused, we do not believe that a teacher or professor of a public or
recognized private school may be regarded as a "public authority" within the meaning of paragraph 2 of
Article 14 of the Revised Penal Code, 31 the provision the trial court applied in the case at bar.
ACCORDINGLY, the decision of the trial court dated 31 July 1986 is hereby MODIFIED in the following
manner and to the following extent only:

1. In Criminal Case No. 4007, appellant shall suffer the penalty of reclusion perpetua;

2. In Criminal Case No. 4012 — (a) the aggravating circumstances of evident

premeditation and of having acted with contempt of or insult to the public authorities
shall be DELETED and not taken into account; and (b) the special aggravating
circumstances of acting while under the influence of dangerous drugs and with the use
of an unlicensed firearm shall similarly be DELETED and not taken into account. There
being no generic aggravating nor mitigating circumstances present, the appellant shall
suffer the penalty of reclusion perpetua.

The two (2) penalties of reclusion perpetua shall be served successively in accordance with the
provisions of Article 70 of the Revised Penal Code. As so modified, the decision of the trial court is
hereby AFFIRMED. Costs against appellant.

SO ORDERED.

7. People v. Diaz, G.R. No. L-24002, 21 January 1974.

SECOND DIVISION

[G.R. No. L-24002. January 21, 1974.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. FRANCISCO DIAZ and GERARDO

DIAZ, Defendants-Appellants.

Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro and Solicitor
Eduardo C . Abaya for Plaintiff-Appellee.

Jovito R. Salonga, for Defendants-Appellants.

DECISION

AQUINO, J.:

This is an appeal of defendants Francisco Diaz and Gerardo Diaz from the decision of the Court of First
Instance of Samar convicting them of murder.

Gerardo was sentenced to reclusion perpetua, while Francisco was sentenced to an indeterminate
penalty of ten (10) years and one (1) day of prision mayor to seventeen (17) years of reclusion temporal.
Both appellants were ordered to pay solidarily to the heirs of Quintin Tadia an indemnity in the sum of
six thousand pesos (P6,000) and to pay the costs proportionately. (Criminal Case No. 202-CC).
There should be no difficulty in resolving the appeal. The case is classic in its simplicity. The
prosecution’s evidence consists of eyewitness testimony or direct evidence, not deceptive
circumstantial evidence. Appellant Francisco Diaz admits that he killed Tadia. He justifies the killing on
the ground of self-defense. His younger brother Gerardo denies any participation in the killing. He has
set up the easily contrivable defense of alibi.

So, the main issue is whether credence can be accorded to Francisco Diaz’s plea of self-defense and
Gerardo’s alibi.

The alternative issues are whether the brothers conspired to kill the victim and whether treachery and
evident premeditation should qualify the killing as murder. The trial court did not pass upon those
ancillary issues.

The evidence for the prosecution shows that at about two o’clock in the afternoon of September 4, 1963
Remegia Carasos, a fourteen-year old girl, and her first cousin, Anita Pacaira (Pakaira), eleven years old,
were gathering camotes in a farm located at a place fittingly called Sitio Camotian, Barrio Perito,
municipality of Sta. Margarita, Western Samar.

In that peaceful, rustic scene, there suddenly appeared Francisco Diaz (Ansing or Francing), a twenty-
four year old unmarried farmer of that place, whom Remegia and Anita had known for many years.
Without any preliminaries, he embraced Remegia from behind and against her will and held her breast.
He knelt behind her while she was gathering camotes. She shouted for help, saying: "Anita (Aning), help
me because I am being embraced." Reacting to Remegia’s cry for help, Anita, with the a bolo, struck
Francisco on the head and hands. Francisco released Remegia and fled. He suffered some injuries in
consequence of those blows. The injuries were treated at the puericulture center by the sanitary
inspector (Exh. D and D-1).

The two girls left the camote farm and hastened to the house of Quintin Tadia (Tadya), their
grandfather, in Sitio Ilawod. They informed him that Francisco Diaz had embraced and abused Remegia.
Remegia had been brought up by her grandfather. She was then staying with him. Anita was living with
her parents in a house about six brazas from Tadia’s house.

Tadia immediately reported the incident to the barrio lieutenant. He gave Tadia a note for the municipal
authorities so that the proper complaint could be filed against Francisco Diaz.

At around seven o’clock in the morning of the following day, September 5th, Tadia, accompanied by his
teenage granddaughters, Remegia and Anita, was on his way to the poblacion of Sta. Margarita to file
complaint. He was unarmed. He was carrying on his back a catopis, an oblong basket about four by two
"palms’ length" containing provisions of boiled camotes. He was walking ahead, followed by Remegia
and Anita one braza behind him.

While they were ascending the hill or cliff (pangpang in Waray dialect) in Sitio Ilawod, Francisco Diaz and
his younger brother Gerardo (Adong), twenty-one years old, appeared on the crest of the hill. Both were
wearing denim pants and white shirts. Gerardo was armed with a locally made shotgun called bardog
(Exh. C), about fifty inches long. He immediately fired sidewise at Tadia while about four meters from
the latter, hitting him in the neck. The shot felled Tadia. He rolled down the lower part of the cliff near
the Alao Creek and lay there flat on his back with his catopis.
Then, the brothers jumped to the lower part of the cliff. Gerardo told his brother: "Go ahead, Francisco,
stab that fellow." Francisco placed his foot on the prostrate body of Quintin Tadia, bent over him and
repeatedly stabbed him in different parts of his body. Francisco was armed with a bolo commonly called
utak which is used in gathering firewood.

After witnessing the assault, Remegia Carasos ran in the direction of her house. Anita Pacairo hid herself
among the bushes or tall grasses "sitting, crouching and peeping" and "seeing all that was happening"
(78 tsn). Tadia died on the spot where he fell. Gerardo placed his bardog on a moss-covered stone called
palanas about three brazas from Tadia’s body. Remegia informed her father and the inhabitants of the
barrio about the ambuscade and the killing of her grandfather. Gerardo Diaz went home while Francisco
surrendered to the authorities.

Doctor Tecla Tagle Valley, the town’s municipal health officer, performed an autopsy on the body of the
deceased Quintin Tadia. Her medical findings indicate that the following injuries caused the death of the
sixty-two year old victim:

"1. Internal hemorrhage due to penetrating wounds on the chest about two and one-half inches long
and five inches in depth, penetrating the lower lobe of the right lung, superior vena cava and the right
ventricle of the heart.

2. Punctured wound, one inch long and one inch in depth, left mandibular region.

3. Stab wound, one inch long and one half inch in depth below left ear.

4. Penetrating wound, four inches in depth, about one centimeter in circumference, occipital region.

5. Penetrating wound, four inches and one half in depth, about one centimeter in circumference at the
nape.

6. Stab wound, one-half inch in depth and three inches long, left shoulder.

7. Punctured wound, left leg, about two inches long, penetrating thru the side portion." (Exh. A).

Doctor Valley found two pellets (perdigones or birdshot) in the two gunshot wounds. The pellet found in
the nape is Exhibit B.

On September 6, 1963 Gerardo Diaz was arrested in Barrio Perito by Policemen Venancio Melka and
Simplicio Calibo. He did not resist arrest. He was in good physical condition. On September 9, 1963, or
four days after the killing, Remegia and Anita executed before the municipal judge sworn statements
wherein they recounted the antecedents and details of the killing (pages 3 to 8 of the Record), On that
same date the chief of police filed in the municipal court a complaint for murder against the Diaz
brothers.

They waived the preliminary investigation. The case was remanded to the Court of First Instance at
Calbayog City where, on November 6, 1963, the fiscal filed against them an information for murder.

As already noted, appellant Francisco Diaz, while assuming sole responsibility for the killing, set up the
exculpatory plea of self-defense. His version was that he and Tadia were neighbors. Because he did not
accede to Tadia’s request for a pig, Tadia allegedly followed him to his abaca plantation near the Alao
River. When Francisco again refused to grant Tadia’s request for the pig, the latter allegedly hacked
Francisco with his bolo, wounding him in the hand between the middle and index fingers and in the left
side of his head. Francisco retreated, but when he was cornered, "he pulled the trigger of" his shotgun,
causing Tadia "to release his bolo." Francisco then picked up Tadia’s bolo (note that Francisco himself
had his own bolo). He threw away his gun and repeatedly stabbed Tadia. After the stabbing he
surrendered to the authorities.

The inveracity of Francisco’s version is quite apparent. The wounds, which according to Francisco were
inflicted by Tadia, were the injuries which were inflicted on him on the preceding day by Anita Pacairo
(Exh. D-1). The improbable facets of his story induce disbelief. A trivial cause may possibly provoke a
man to assault another person. But it was unlikely in this case that Tadia, a sexagenarian grandfather,
would have gone to the extent of assaulting the twenty-four year old Francisco Diaz who was armed
with a gun and a bolo, just because the latter refused to give him a pig.

The prosecution eyewitnesses, Remegia Carasos and Anita Pacaira, positively identified Gerardo Diaz as
the gunwielder who with his brother, Francisco, ambushed Tadia on the cliff. Such an unmistakable
identification cannot be negated by the alibi interposed by Gerardo Diaz. He claimed that on September
5, 1963 he was in his house "having a headache and his bones were aching" (p. 7, Appellant’s Brief). He
said that he was treated by Honorio Albite. His mother said that Gerardo was treated by Liloy Diaz.
Gerardo said that he was already sick on September 2, 1963. His mother, who does not know the
months of the year, said that he got sick on September 4th. These discrepancies weaken Gerardo’s alibi.
Modesto Diaz, the father of Gerardo, tried to corroborate his alibi. Modesto, a "hopelessly illiterate"
person, did not know the month and year when Gerardo was sick.

Gerardo’s supposed indisposition could not have prevented him from going to the cliff with Francisco
and waylaying the unsuspecting and unfortunate Tadia. To establish an alibi, the accused must show
that he was at another place for such a period of time that it was impossible for him to have been at the
place where the crime was committed at the time of its commission (People v. Resayaga, L-23234,
December 26, 1973; People v. Lumantas, L-28355, July 17, 1969, 28 SCRA 764, 768). The alibi of Gerardo
Diaz cannot be sustained. His counsel de oficio agrees "that the defense of alibi is inherently weak and is
generally received with caution." In this case, it was evidently a manufactured alibi.

The trial court carefully observed the demeanor of Remegia Carasos and Anita Pacaira while testifying. It
found them to be "candid and trustworthy" eyewitnesses. The killing was perpetrated in broad daylight.
Remegia was even able to recollect the garments worn by the Diaz brothers.

As appropriately observed by the trial court, the brothers conspired to kill Tadia to prevent him from
filing a charge of abusos deshonestos. Moreover, Francisco Diaz might have felt aggrieved because Anita
Pacaira had hit him with a bolo and wounded him in the head and hand (Exh. D-1).

The alternative contention of appellant Gerardo Diaz is that he did not conspire with his brother
Francisco in assaulting Tadia and that he should be held liable only for lesiones for shooting the victim.
That contention is belied by the record.

Doctor Valley found that two gunshots wounds were inflicted. One was a penetrating wound in the
occipital region and another was a penetrating wound in the nape (Nos. 4 and 5, Exh. A). She testified
that, because those wounds were not treated, they contributed to the victim’s death. Gerardo was the
one who inflicted those wounds. He used a deadly weapon. He fired at the vital parts of the victim’s
body. He desisted from firing further because the victim had fallen on the river bank below the cliff as a
result of the first shot and was beyond the range of his gun, which was intended for hunting birds.

The conspiracy between the brothers to kill Tadia may be inferred from the antecedents and
circumstances surrounding the killing. The lascivious or vexatious act committed by Francisco Diaz on
Remegia Carasos was reported to the barrio lieutenant. He advised Tadia to go to town and lodge a
complaint with the proper authorities. That fact must have been known to Francisco Diaz. He wanted to
forestall that eventuality. To accomplish that objective, he decided to liquidate Tadia. It was natural or
probable that he should seek the collaboration of his younger brother Gerardo.

The two brothers appeared together on the cliff on that fateful morning of September 5, 1963 to
ambush Tadia. Gerardo was armed with a deadly weapon that could be employed at a distance without
exposing himself to any immediate retaliatory act of the victim. He commenced the assault by firing at
Tadia. Then, when Tadia fell down the cliff, Gerardo maliciously induced or instructed Francisco to
continue the assault by stabbing the fallen Tadia. Francisco obeyed that injunction by inflicting five stab
wounds on the defenseless victim. These circumstances reveal that the brothers acted in concert,
impelled by their common design to kill Tadia. Their liability for the killing is collective, not individual or
separate.

The appellants’ defenses are untenable in their transparent flimsiness and fabricated character. It
results that the strong, clear and convincing evidence of the prosecution on the felonious killing
perpetrated by the appellants may be regarded as conclusive. Their guilt has been established beyond
reasonable doubt.

The crime committed by the appellants is murder qualified by treachery as alleged in the information.
There was treachery (alevosia) because the brothers made a deliberate surprise or unexpected assault
on Tadia. They literally ambushed him. They waited for him on the cliff, a high ground which rendered it
difficult for him to flee or maneuver in his defense. Tadia was shot sidewise while he was ascending the
hill or cliff burdened by his catopis or food basket. That was another circumstance which handicapped
him in resisting the assault. The initial attack was successful. Tadia fell and rolled down the cliff and
landed near the creek below. In that helpless state, he was ruthlessly stabbed by Francisco Diaz.

The appellants resorted to means of execution which directly and specially insured the killing without
any risk to themselves arising from any defense which the victim could have made. Actually, he was not
able to make any defense unarmed and attacked unawares as he was. The treacherous mode of attack is
incontrovertible (Par. 16, Art. 14 and Art. 248, Revised Penal Code).

The attack was also attended with abuse of superiority. Two armed young men unexpectedly assaulted
an unarmed sexagenarian. However, abuse of superior strength is merged with treachery.

The circumstance of old age cannot be considered aggravating. There was no evidence that the accused
deliberately intended to offend or insult the age of the victim. That circumstance may be absorbed in
treachery (People v. Gervacio, L-21565, August 30, 1968, 24 SCRA 960; People v. Mangsant, 65 Phil. 548;
People v. Limaco, 88 Phil. 35, 44).

The trial court did not make any finding as to the degree of instruction of the offenders. Hence, on
appeal, that alternative circumstance cannot be considered in fixing the penalty on the appellants
(People v. Casillar, L-28132, November 25, 1969, 30 SCRA 352, 358).

As to Francisco Diaz, evident premeditation should appreciated. It should be recalled that the embracing
incident was reported by Tadia to the barrio lieutenant after two o’clock in the afternoon of September
4, 1963. That functionary advised Tadia to file a complaint with the authorities in the town of Sta.
Margarita. It may reasonably be assumed that Francisco Diaz became aware that same afternoon that
Tadia, who was his neighbor, was going the poblacion to lodge a complaint against him. That would
explain why early in the morning of the next day, September 5th, at about seven o’clock, he and his
brother were already in the hill or cliff waiting for Tadia who was on his way to town. The trial court
said:

"Francisco having been boloed on the head, he and his younger brother must have decided to, and thus
conspired, to retaliate. For this purpose they armed themselves. Second, having come to know that the
deceased was going to the poblacion, in company with Remegia Carasos and Anita Pacaira to file the
corresponding complaint against Francisco Diaz for abusing Remegia Carasos, both accused must have
decided and, so deciding must have confabulated, to waylay the deceased so as to prevent him from
pursuing his plan."

Thus, there was a sufficient interval of time, more than one-half day, within which appellant Francisco
Diaz had full opportunity for meditation and reflection and to allow his conscience to overcome the
resolution of his will (vencer las determinaciones de la voluntad) had he desired to hearken to its
warnings (U.S. v. Gil, 13 Phil. 530, 547).

However, with respect to Gerardo Diaz, premeditacion conocida should not be appreciated. Obviously,
he participated in the assault in order to help his elder brother who exercised some moral ascendancy
over him and who was the one directly affected by the embracing incident which preceded the killing
(People v. Talok, 65 Phil. 696, 707; Art. 62, Revised Penal Code).

Premeditation, which was alleged in the information as a qualifying circumstance, should be considered
only as a generic aggravating circumstance with respect to Francisco Diaz since treachery has already
been used to qualify the killing as murder (See People v. Ubiña, 97 Phil. 515, 535). In his case, it is offset
by the mitigating circumstance of voluntary surrender to the authorities.

The penalty for murder, which is reclusion temporal maximum to death, should be imposed in its
medium period on Francisco Diaz. He should be sentenced to reclusion perpetua (Arts. 64[4] and 248,
Revised Penal Code).

With respect to Gerardo Diaz, as no generic aggravating and mitigating circumstances can be considered
in his case, he was properly sentenced by the trial court to reclusion perpetua (Arts. 64[1] and 248,
Revised Penal Code).

The indemnity which the appellants should pay to the heirs of Quintin Tadia should be raised to twelve
thousand pesos (P12,000).

The ironical twist in this case is that an old man paid with life for his attempt to abide by the law, that is,
to vindicate his granddaughter’s honor through lawful means. He lost his life because the appellants
chose to take the law into their own hands. For such flagitious lawlessness, full and condign retributory
punishment should be meted.
Accordingly, the judgment of the trial court should be modified. Francisco Diaz is sentenced to reclusion
perpetua with its accessory penalties. The appellants are ordered to pay solidarily to the heirs of Quintin
Tadia the sum of P12,000 as indemnity (Art. 110, Revised Penal Code). In other respects, the trial court’s
judgment is affirmed with costs against the appellants.

The benefits of article 29 of the Revised Penal Code, regarding preventive imprisonment, may be
extended to the appellants if the conditions laid down in Republic Act No. 6127 are satisfied. So ordered.

8. People v. Arizobal, G.R. No. 135051-52, 14 December 2000

G.R. Nos. 135051-52 December 14, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CLARITO ARIZOBAL (at large), ERLY LIGNES and TWO (2) JOHN DOES, accused-appellants.

DECISION

PER CURIAM:

Man in his inordinate pursuit of lucre oft equates human life with mere chattels and plunges himself
into the bottomless pit of his own folly. He is thus driven to plunder and kill, crimes which are most
reprehensible and ignominious as the criminal apparently leans towards material gains than to the
inestimable value of human life. Clarito Arizobal and Erly Lignes come to us to assert and prove, if they
must, that they are not cast of that mold.

The factual backdrop: On 12 August 1994 two (2) separate Informations were filed before the Regional
Trial Court of Cataingnan, Masbate, charging Clarito Arizobal, Erly Lignes, Rogelio Gemino and two (2)
John Does with Robbery in Band with Homicide for robbing and slaying Laurencio Gimenez1 , Original
Records.1 and his son Jimmy Gimenez.2

After arraignment, the two (2) cases were tried jointly. However, on 14 May 1997, upon motion of
accused Rogelio Gimeno, without objection from the prosecution, the two (2) Informations
were dismissed as against him for lack of evidence. But the same cases remained as against accused Erly
Lignes and Clarito Arizobal. Only accused Lignes appeared at the trial until its termination as Arizobal
escaped from detention and had to be tried in absentia.3 The two (2) John Does were never
apprehended as they were not sufficiently identified.

The prosecution presented, among others, Clementina Gimenez, wife of victim Laurencio Gimenez. She
testified that on 24 March 1994 she together with her husband Laurencio Gimenez and a grandchild
were sound asleep in their house in Tuybo, Cataingan, Masbate. At around 9:30 in the evening,
Laurencio roused her from sleep and told her to open the door because there were persons outside the
house. Since it was pitch-dark she lit a kerosene lamp and stood up to open the door. She was suddenly
confronted by three (3) armed men pointing their guns at her. She recognized two (2) of them as Clarito
Arizobal and Erly Lignes but failed to recognize the third person who was wearing a maskara. She readily
identified Clarito because she used to pass by his house in San Rafael while Erly was also a familiar face
as he was a regular habitue of the flea market.

According to Clementina, Clarito asked her husband, "Tay, where is your gun." But she promptly
interjected, "We have no gun, not even a bolo. If you want, you can look around for it."4 While the man
in maskara stood guard at the door, Clarito and Lignes barged into the master's bedroom and forcibly
opened the aparador. The terrified couple could not raise a finger in protest but had to leave their fate
to the whims of their assailants. The intruders ransacked their cabinet and scattered everything on the
floor until they found ₱8,000.00 among sheets of paper. Before leaving with their loot they ordered
Laurencio to go with them to Jimmy's house because "we have something to talk about."5 Against his
will, Laurencio went with them. Clementina recalled that shortly after the group left she heard a volley
of shots. Her grandchild, as if sensing what befell her grandfather, could only mutter in fear, "Lolo is
already dead!"

Erlinda Gimenez, wife of Jimmy Gimenez, narrated that on 24 March 1994, after she and her son had
taken supper, her husband Jimmy with one Francisco Gimenez arrived. Jimmy informed Erlinda that they
had already bought a carabao. After he handed her the certificate of large cattle, and while he was in
the process of skinning a chicken for their supper, three (3) men suddenly appeared and ordered them
to lie face down. One of them pushed her to the ground while the others tied Francisco and Jimmy as
they whipped the latter with an armalite rifle. She noticed one of them wearing a mask, another a hat,
and still another, a bonnet.6

Realizing the utter helplessness of their victims, the robbers took the liberty of consuming the food and
cigarettes Erlinda was selling in her sari-sari store. Finding no softdrinks to complete their snack, two (2)
of the intruders ordered Erlinda to buy coke for them at the neighboring store. But they warned her not
to make any noise, much less alert the vendor. When they returned to the house of Jimmy, the robbers
proceeded to ransack the household in search for valuables. They took around ₱1,000.00 from her sari-
sari store and told them to produce ₱100,000.00 in exchange for Jimmy's life. Since the couple could not
produce such a big amount in so short a time, Erlinda offered to give their certificate of large cattle. The
culprits however would not fall for the ruse and threw the document back to her. Three (3) masked men
then dragged Jimmy outside the house and together with Laurencio brought them some fifty (50)
meters away while leaving behind Clarito Arizobal and Erly Lignes to guard Francisco and Erlinda's son.
Moments later she heard a burst of gunfire which reverberated through the stillness of the night.

When the masked men returned to Jimmy's house, one of them informed Erlinda that her husband and
father-in-law had been killed for trying to escape. Upon hearing this, Erlinda, as if the heavens had fallen
on her, slowly lost consciousness.

The post-mortem examination report prepared by Dr. Allen Ching showed that Jimmy Gimenez
sustained injuries: (a) a gunshot wound located at the victim's zygomatic area (right side near the ear)
which may have caused brain hemorrhage; (b) a non-serious gunshot wound at the upper back right side
(armpit area); (c) a wound located at the middle side of the trunk - considered as exit of wound No. 2;
(d) gunshot wound at the right forearm; and, (e) a wound considered as a complication of the trajectory
point of wound No. 4 that caused the fracturing of a bone and exited as lacerated bone at the
posterior.7

The medico-legal examination conducted on Laurencio Gimenez also showed: (a) a chest wound
penetrating the pericardium; (b) gunshot wound at the right thigh exiting at the lumbar area, back; (c)
gunshot wound at the left thigh below the knee; and, (d) cause of death was respiratory arrest
secondary to gunshot wounds.8

Erly Lignes who testified in his defense explained that on 24 March 1994 at around 9:30 in the evening
he was at the house of a neighbor, one Noli Hermosa, attending a house blessing in San Pedro,
Cataingan, Masbate. He helped as cook and food server. The occasion was attended by around twenty
(20) well-wishers who feasted on fried chicken and tuba. In fact, two (2) of his friends, Andres Lapay and
Alberto Senelong, were among the group of drinkers. The celebration finally ended at 1:00 o'clock in the
morning. Early that morning he went home, which was only about a hundred meters away.9

Erly Lignes also presented Andres Lapay who confirmed his defense of alibi. Andres recounted that at
9:30 in the evening of 24 March 1994 he was at the house of Noli Hermosa for the latter's house
blessing. There he saw Erly in the kitchen preparing food and drinks for the visitors. He also attended to
Andres' group whenever they needed additional food and tuba. According to witness Andres, he was
certain that from the time of his arrival at 7:00 o'clock in the evening to 11:00 o'clock Erly never went
out of the house of Hermosa. When asked whether he knew where Tuybo was, Andres answered in the
affirmative. He also clarified that it would take a person about one and a-half (1-½) hours by foot and
about one hour (1) by horseback to travel from San Pedro to Tuybo.

On 30 March 1994 Erly Lignes was arrested in the house of Noli Hermosa and then detained at the
Cataingan Municipal Jail. Erlinda Gimenez, accompanied by three (3) policemen, later went to the
municipal jail and pointed to Clarito Arizobal as one of the suspects in the robbing and killing of
Laurencio and Jimmy Gimenez. Erly insisted that he was not implicated by Erlinda as a suspect in the
crime.

But the trial court gave full credence to the testimony of the prosecution witnesses and rejected the
alibi of accused-appellant Erly Lignes. On 7 July 1998 the court found both accused Clarito Arizobal and
Erly Lignes guilty of robbery with homicide, sentenced them to suffer the supreme penalty of Death and
to indemnify the legal heirs of Laurencio Gimenez ₱50,000.00 for his death and ₱20,000.00 for moral
damages, and the legal heirs of Jimmy Gimenez ₱50,000.00 also for his death and ₱20,000.00 for moral
damages, plus ₱30,000.00 for exemplary damages.10 Their cases are now before us on automatic review
in view of the penalty imposed.

As the lower court explained -

x x x x There is direct relation and intimate connection between the robbery and the killing. The accused
were positively identified as perpetrators of the crime by witnesses Clementina Gimenez and Erlinda
Gimenez who have no motive to falsely testify x x x x Inasmuch as no improper motive have (sic) been
ascribed to prosecution witnesses and no shadow of evidence appears on record to blacken their
credibility, their testimony is worthy of full faith and credit x x x x11

Going to the denial and alibi interposed by accused Erly Lignes that he was at San Pedro, Cataingnan,
Masbate, helping as cook and food server of his neighbor Noli Hermosa during a house blessing at the
time of the robbing and killing and his belief that he was not identified (Exh. "2") by witnesses (especially
Erlinda Gimenez), and that he did not know Clarito Arizobal, the same cannot be given any credence in
the face of the testimony of Clementina Gimenez and Erlinda Gimenez positively identifying him (Erly
Lignes) and his co-accused Clarito Arizobal as the culprits x x x x The place of the crime is only about six
kilometers and more or less one and a half hour travel by foot from the place where the accused Erly
Lignes was at the time of the commission of the crime.

The robbery with killing was aggravated: 1) By a band because the malefactors were more than three
armed robbers acting together; 2) With treachery because the robbers tied the hand of the victims
before killing them; 3) By nighttime (nocturnity) because the accused took advantage of the night; and,
4) By dwelling because the robbery is (sic) committed with violence against or intimidation of persons x
x x and the commission of the crime begun in the dwelling x x x x12

Accused-appellant Erly Lignes attempted to discredit the testimonies of the prosecution witnesses by
underscoring their alleged inconsistent, conflicting and incredible statements. He pointed out that: (a)
Clementina testified on direct examination that she saw Erly Lignes in the flea market four (4) times, but
on cross-examination she averred that she saw the accused at the flea market in only three (3)
occasions; (b) she stated that three (3) persons entered their house and recognized Arizobal and Lignes
because they lighted a kerosene lamp and that she did not recognize the third person because he was
wearing a mask thus implying that Arizobal and Lignes were not wearing masks, in utter disregard of the
risk of being identified; (c) she failed to witness the actual killing when she stated in her testimony that
she came to know of it only the following morning after she was informed by a neighbor thus implying
that accused-appellant Erly Lignes was not positively identified as the killer of the two (2) victims; and,
(d) Erlinda Gimenez stated that three (3) robbers were not wearing masks while two (2) were wearing
masks but later contradicted herself when she stated that three (3) of the masked robbers executed her
husband and father-in-law.13

In essence, the issues raised are factual and involve the credibility of the witnesses. It is doctrinally
settled that in the absence of any showing that the trial court's calibration of factual issues, particularly
on the matter of credibility, is flawed this Court is bound by its assessment. The rationale is the
presumption that the trial court is in a better position to decide the question, having heard the
witnesses and observed their deportment and manner of testifying during the trial.14 We find no
plausible reason to deviate therefrom.

Admittedly, the prosecution witnesses did not give a consistent account of the whole gut-wrenching
episode, particularly on the matter of the number of times Clementina allegedly saw the accused-
appellant at the flea market; the exact number of masked robbers and other minor details. These lapses
however are not so serious as to warrant the reversal of the verdict of conviction of accused-appellant
and his co-accused who, as the record shows, were categorically identified as two (2) of the perpetrators
of the crime.

Accused-appellant Erly Lignes asserts that the failure of Clementina Gimenez to actually witness the
killing of her son and her husband is adequate proof that she failed to identify him as the killer. We do
not agree. Accused-appellant seems to have overlooked the significance of conspiracy, as a rule for
collective criminal liability, where it is not necessary to show that all the conspirators actually hit and
killed the victim; what is important is that all participants performed specific acts with such closeness
and coordination as unmistakably to indicate a common purpose or design in bringing about the death
of the victim.15 The fact that accused-appellant conspired in the commission of the crime charged was
sufficiently and convincingly shown by his active participation in ransacking the belongings of the two (2)
Gimenez families, tying and holding Francisco and Erlinda's son immobile while the others led the two
(2) hapless victims to the threshold of their obliteration.
Alibi, as it has been repeatedly held, is one of the weakest defenses as it is easy to concoct although
difficult to prove. In the face of positive identification by credible prosecution witnesses, accused-
appellant's defense of alibi must necessarily crumble. For alibi to be believed, credible and tangible
proof of physical impossibility for the accused to be at the scene of the crime is indispensable.16

The trial court is correct in appreciating dwelling as an aggravating circumstance. Generally, dwelling is
considered inherent in the crimes which can only be committed in the abode of the victim, such as
trespass to dwelling and robbery in an inhabited place. However, in robbery with homicide the authors
thereof can commit the heinous crime without transgressing the sanctity of the victim's domicile.17 In
the case at bar, the robbers demonstrated an impudent disregard of the inviolability of the victims'
abode when they forced their way in, looted their houses, intimidated and coerced their inhabitants into
submission, disabled Laurencio and Jimmy by tying their hands before dragging them out of the house
to be killed.

But treachery was incorrectly considered by the trial court. The accused stand charged with, tried and
convicted of robbery with homicide. This special complex crime is primarily classified in this jurisdiction
as a crime against property, and not against persons, homicide being merely an incident of robbery with
the latter being the main purpose and object of the criminals. As such, treachery cannot be validly
appreciated as an aggravating circumstance under Art. 14 of The Revised Penal Code.18 This is completely
a reversal of the previous jurisprudence on the matter decided in a litany of cases before People v.
Bariquit.19

While it appears that at least five (5) malefactors took part in the commission of the crime, the evidence
on record does not disclose that "more than three" persons were armed, and robbery in "band" means
"more than three armed malefactors united in the commission of robbery." Nowhere in the records can
we gather that more than three (3) of the robbers were armed. Hence, "band" cannnot be aggravating
where no proof is adduced that at least four (4) of the five (5) perpetrators involved in this case were
armed. In this regard, we are quoting pertinent portions of Clementina Gimenez's testimony -

Q: While you were in your house do you still remember of any unusual incident that happened?

A: Yes, sir.

Q: What was that incident about?

A: Armed persons entered our house.

Q: How many?

A: Three (3).

Q: You said that these 3 persons were armed, will you tell this Honorable Court the kind of weapon or
arms they were bringing with them at that time?

A: One person carrying a long firearm.

Q: How about the other two?

A: One person standing at the door carrying a long firearm and the two went upstairs.

Q: Were they carrying weapons?

A: They have (sic) both of them were carrying short firearms.20

On cross examination she further clarified -

Q: Where were you when you saw that the two accused Clarito Arizobal and Erly Lignes got the money?

A: At the sala.

Q: When they ransacked your aparador you did not object?

A: They let us sit and warned us not to move.

Q: But you have not seen them armed with any firearm, is that correct?

A: They have.

Q: Who were armed with firearms?

A: Clarito Arizobal and Erly Lignes.

Q: What kind of firearm?

A: Short arm.

Q: And where was the third person who was wearing mask at the time these two accused Erly Lignes
and Clarito Arizobal ransacked your aparador and got the money?

A: At the door of our house.

Q: What was he doing?

A: On guard.

Q: Was he armed?

A: Bringing a long gun, masked.21

For her part, Erlinda Gimenez testified -

Q: Did you see who killed your husband?

A: My husband was brought towards a distance about 50 meters because it could be seen from where I
was and then I heard a burst of firearm thereafter the one who brought him told me that he ran so that
they have (sic) to kill him.

Q: Who told you?

A: The one wearing mask.

Q: Where were accused Clarito Arizobal and Erly Lignes at that time?

A: The two (2) took guard on Boboy Gimenez (referring to Francisco) and my son.

Q: Were they armed?

A: Yes sir, short gun, sir.

Q: When your husband was brought by three of these five (5) persons, your son and Francisco Gimenez
were left behind?

A: Yes sir, because they were tied.22

We likewise hold that the aggravating circumstance of nighttime did not attend the commission of the
crime. The fact that the offense was committed at 9:30 in the evening does not suffice to
sustain nocturnidad for, by itself, nighttime is not an aggavating circumstance.23 To be properly so
considered, it must be shown that nocturnidad was deliberately and intentionally sought by accused-
appellants to help them realize their evil intentions.24 Nowhere can we infer from the records that the
malefactors sought the cover of darkness to facilitate the accomplishment of their devious design. On
the contrary, the locus criminis was well lighted and nighttime was merely an incidental element to the
whole drama.

First. The houses of the victims were adequately lighted by kerosene lamps when the robbers entered
and went about their looting spree. In People v. Pallarco25 this Court clarified this modifying
circumstance thus -

Nor can the aggravating circumstance of nighttime be appreciated, for the prosecution failed to
demonstrate (a) that the malefactor particularly sought or took advantage of the darkness to commit
the offense, or (b) that nighttime facilitated the commission of the crime. In any event, the prosecution
presented no evidence to establish the fact that nocturnidad attended the killing. Nighttime cannot be
considered if it is shown that the place was adequately lighted. In this case, it was established that the
place was sufficiently illuminated by a kerosene lamp.

Second. The robbers, particularly referring to accused-appellant and his co-accused, lingered in the locus
criminis and even conversed with their intended victims for an appreciable period of time inside the
well-lit houses. As Erlinda Gimenez testified, the place where the victims were gunned down was
adequately illuminated by the moonlight, although for undisclosed reasons she did not see the actual
shooting.26
All these taken together belie the assumption that the culprits took advantage of the intrinsic impunity
afforded by the cover of darkness and made the same as an ally to accomplish their nefarious
plan. Nocturnity lures those who crave for blood to yield to their baser impulses with the false courage
borne out of the belief that their identity would not be brought in the open. We do not discern any such
intention in this case.

We also note with approval the view of the trial court that the offenders did not commit two (2)
separate counts of robbery with homicide but only a delito continuado, as the ransacking of the two (2)
houses and the killing of the victims were not entirely disconnected and distinct acts of depredation.
They arose from a single criminal impulse and intent, "there being unity of purpose and of right
violated."27

As to actual damages, it was proved that the robbers took the amount of ₱8,000.00 from the family of
the deceased Laurencio Gimenez and ₱1,000.00 from that of Jimmy Gimenez. Their legal heirs must
therefore be indemnified for these losses. However, the award of the trial court of ₱20,00.00 for moral
damages and ₱30,000.00 for exemplary damages must be modified to ₱50,000.00 and ₱20,000.00 for
moral damages and exemplary damages, respectively for the legal heirs of each victim.

The trial court correctly found accused-appellant and his co-accused Clarito Arizobal guilty of the crime
of robbery with homicide as defined in Art. 294, par. (1), of The Revised Penal Code. The prosecution has
established beyond any scintilla of doubt through the prosecution witnesses that Erly Lignes in
conspiracy with Clarito Arizobal and three (3) other unidentified persons used violence and intimidation
against the members of the two (2) Gimenez families in carrying out the robbery and on the occasion
thereof killed Laurencio and Jimmy Gimenez.1âwphi1

The special complex crime of robbery with homicide carries with it the penalty of reclusion perpetua to
death. In conformity with Art. 63, par. (1), of The Revised Penal Code, when the crime is attended by an
aggravating circumstance with no circumstance mitigating it, the higher penalty shall be imposed.

Four (4) members of the Court are steadfast in their adherence to the view that RA 7659 is
unconstitutional insofar as it prescribes the death penalty. However, they bow to the majority opinion
that the aforesaid law is constitutional and, therefore, the penalty prescribed thereunder has to be
imposed.

WHEREFORE, the Decision of the Regional Trial Court of Cataingan, Masbate, finding accused-appellant
ERLY LIGNES and accused CLARITO ARIZOBAL GUILTY of Robbery with Homicide and imposing upon both
of them the penalty of DEATH, is AFFIRMED with the MODIFICATION that accused-appellant ERLY
LIGNES and his co-accused CLARITO ARIZOBAL (who is still at large) are ordered in addition: (a) to pay
jointly and solidarily the legal heirs of Laurencio Gimenez and Jimmy Gimenez ₱50,000.00 for civil
indemnity, another ₱50,000.00 for moral damages, and ₱20,000.00 for exemplary damages, for each set
of heirs; and, (b) to pay jointly and solidarily the legal heirs of Laurencio Gimenez ₱8,000.00 and those of
Jimmy Gimenez ₱1,000.00 representing their respective actual damages.

In accordance with Sec. 25 of RA 7659 amending Art. 83 of The Revised Penal Code, upon the finality of
this Decision, let the records of the case be forwarded to His Excellency, the President of the Philippines,
for the possible exercise of his pardoning power. Costs against both accused.
SO ORDERED.

9. People v. Daniel, G.R. No. L-40330, 20 November 1978

G.R. No. L-40330 November 20, 1978

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
AMADO DANIEL alias "AMADO ATO", accused-appellant.

Eraulio D. Yaranon for appellant.

Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio G. Ibarra and Solicitor Rosalio A.
de Leon for appellee.

MUÑOZ PALMA, J:

This case originated from the Court of First Instance of Baguio City by virtue of a complaint filed by 13-
year old Margarita Paleng accusing Amado Daniel alias "Amado Ato" of rape alleged to have been
committed as follows:

That on or about the 20th day of September, 1965, in the City of Baguio, Philippines,
and within the jurisdiction of this Honorable Court, the herein accused, armed with a
sharp instrument and by means of force and intimidation, did then and there willfully,
unlawfully and feloniously have carnal knowledge of the undersignedcomplaint, against
her will, and in her own room situated at No. 25 Interior, Pinsao, Guisad, Baguio City.

That in the commission of the crime, the aggravating circumstance that it was
committed in the dwelling of the offended party, the latter not having givenprovocation
for it, is present. (p. 1, CFI record)

The trial court, presided then by Hon. Feliciano Belmonte, after due trial rendered its decision on May
30, 1966, finding the accused guilty and sentencing him to suffer "not more than TWELVE (12) YEARS
and ONE (1) DAY of reclusion temporal and not less than SIX (6) YEARS and ONE (1) DAY of prision
mayor, and to pay the costs." 1

His motion for reconsideration and new trial having been denied, accused filed a notice of appeal;
forthwith the case was forwarded to the Court of Appeals.

On September 23, 1974, the Court of Appeals through its Tenth Division rendered a decision the
dispositive portion of which follows:

PREMISES CONSIDERED, We find that the guilt of the accused Amado Daniel has been
proven beyond reasonable doubt, and he should accordingly suffer the penalty for the
crime herein charged.
 We find, however, that the sentence imposed the accused in the judgment appealed
from is not in accordance with law.

Republic Act No. 4111, which took effect on June 20, 1964, amended Article 335 of the
Revised Penal Code, providing that —

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly

weapon or by two or more persons, the penalty shall be reclusion
perpetua to death.

Under Section 17 of Chapter 11 of the Judiciary Act of 1948 (Republic Act No. 296, as
amended) —

The Supreme Court shall have exclusive jurisdiction to review, revise, reverse, modify or
affirm on appeal, as the law or rules of court may provide, final judgments and decrees
of inferior courts as herein provided, in —

(1) All criminal cases involving offenses for which the penalty imposed is death or life
imprisonment; ...

WHEREFORE, We hereby certify this case to the Supreme Court for appropriate further
proceedings pursuant to law. 2

By virtue of the foregoing decision of the Court of Appeals the case was certified to this Court and in a
Resolution of March 6, 1975, the same was ordered docketed. 3

Preliminary question —

The certification of the case to Us poses a preliminary question which strikes at the very root of a long
standing practice and procedure evoked for the last forty years or so since the creation of the Court of
Appeals. 4

Is the Supreme Court with jurisdiction to act on an appeal in a criminal case where the offense is
punishable by reclusion perpetua or death certified to it by the Court of Appeals with findings of facts
and of the guilt of the accused, but without imposing the penalty of reclusion perpetua or death on the
appellant pursuant to Rule 124, Section 12, paragraph 2, of the Rules of Court?5

Mr. Chief Justice Fred Ruiz Castro, joined by other ,Justices, expresses the view that for this Court to
acquire jurisdiction over the appeal, the decision before Us must have imposed on the appellant the
penalty either of reclusion perpetua or death as the facts warranted.

The rest of the Justices together with the writer of this Opinion, believe otherwise and hold the view
that the dispositive portion of the decision as written and rendered is in accordance with the
Constitution and the law, and vests jurisdiction on the Court to act on the appeal.
A. In People v. Ramos, decided on November 28, 1947, 6 a case was certified to this Court by the Court of
Appeals without findings of facts and simply on the ground that it was "on the opinion that the penalty
that should be imposed ill this case is reclusion perpetua, as recommended by the Solicitor-General, and
not reclusion temporal, as imposed by tile lower court." The question arose as to the proper procedure
to be followed by the appellate court in certifying cases to this Court under Section 145-K of the Revised
Administrative Code as amended by Republic Act No. 52 which read:

Whenever in any criminal cases submitted to a division the said division should be of the
opinion that the penalty of death or life imprisonment should be imposed, the said
Court shall refrain from entering judgment thereon and shall forthwith certify the case
to the Supreme Court for final determination, as if the case had been brought before it
on appeal.

In disposing of the issue several matters came up which evoked different, and We may say, strong
reactions from the Justices then composing the Court, but for brevity we shall not dwell on them. Simply
stated, it is was ruled that the Court of Appeals was duty bound to make its findings of facts to support
its opinion that the penalty to the imposed upon the appellant was either life imprisonment or death so
as to bring the case within the jurisdiction of this Court.

From the Resolution written for the Court by then Mr. Chief Justice Manuel V. Moran, We quoted the
following pertinent portions:

The jurisdiction of this Court predicated upon the opinion of the Court of Appeals, as
provided in the above-quoted provisions of the law, must of necessity defend upon the
correctness of that opi nion There is nothing in the law precluding this Court from
exercising ing its authority to pass upon such question which concerns its own
jurisdiction. And in order that this Court may exercise its power of review the Court of
appeals is bound to make in its order f certification such findings of facts as are
necessary to support its conclusion that either life imprisonment or death is the penalty
to be imposed. This is indeed covered by Rule 52, section 3, which provides th where a
court to which an appeal has been taken has no appellate jurisdiction over lic case and it
certifies the same to the proper court, it must do so "with a specific and clear statement
of grounds therefor." the requirement of with and specific grounds is precisely a device
to prevent erroneous transmissions of jurisdiction from a lower to a superior court.

Furthermore, the words "shall refrain from entering judgment thereon" appearing in the
provision above quoted, are sufficient indication that the Court of Appeals, at the time
of certifying the case to this Court, had already examined the evidence and was ready to
render judgment on the merits, but having found from the facts established by proof
that the penalty to be imposed is either death or life imprisonment, instead of entering
judgment thereon , it certifies the case to the Supreme Court for final determination.
Since the Certification is the only ground for determining our jurisdiction, it must
contain not only conclusions of law but also findings of fact, the latter being more
important than the former for they supply the real basis for determining jurisdiction ...

The instant case cannot be compared with cases coming directly from a Court of First
Instance wherein either life imprisonment or death penalty is imposed, for in such
cases, if we assume jurisdiction even where the judgment appears to be erroneous on
 its face, it is because the Court of First Instance has already exhausted its jurisdiction by
rendering judgment on the merits containing both findings of fact and conclusions of
law, and under such circumstance it is more practical for the administration of the law
that this Court should exercise its appellate jurisdiction by examining the evidence and
correcting all errors both of fact and of law that might have been committed by the trial
court. But here, the Court of Appeals is refraining from rendering judgment on the
merits and is refusing to complete the exercise of appellate jurisdiction because it
believes that such jurisdiction belongs to the Supreme Court and thus, it proceeds to
transfer the case to this Court. lt is in that transfer that we believe we may intervene in
order to prevent an erroneous transfer,

xxx xxx xxx

Section 145-K of the Administrative Code is merely a method designed to make effective
the appellate jurisdiction of both the Court of Appeals and this Court, as defined by law.
According to the law of jurisdiction (section 138, Revised Administrative Code, as
amended by Commonwealth Acts Nos. 3 and 259), offenses, for which the penalty
imposed is death or life imprisonment, including offenses arising from the same
occurrence or committed on the same occasion, come within the appellate jurisdiction
of the Supreme Court, and the remaining offenses fall within the appellate jurisdiction
of the Court of Appeals ...

We are of the opinion and so hold, therefore, that in a case like this, the Court of
Appeals, in certifying it to this Court, must state its findings of fact necessary to support
its conclusion that the penalty to be imposed is either life imprisonment or death. While
this Court will not review the findings of fact, it will pass upon the correctness of the
legal conclusions derived therefrom. And if this Court finds the conclusions to be
correct, it will assume jurisdiction. If it finds them to be wrong, the case will be returned
to the Court of Appeals. (pp. 613-616, supra, emphasis supplied)

In Ramos, the case was accepted because the Court considered that there was substantial compliance
with the law as the order of certification made reference to the opinion and recommendation of the
Solicitor General whose brief contained sufficient findings of fact to warrant the conclusion that life
imprisonment should be imposed upon the appellant. Justices Paras, Feria, Pablo, Hilado and Briones
concurred in the Resolution.

Justice Gregorio Perfecto in a separate opinion concurred with the principle that the Court of Appeals is
bound to make its findings of fact and study the evidence so as to determine whether the appellant is
guilty or not, but dissented from that portion of the Resolution which accepted the case as he was of the
opinion that the case should have been remanded to the Court of Appeals.7

Justice Pedro Tuason wrote a separate opinion and dissented from the majority insofar as it held that it
was necessary for the Court of Appeals or a division thereof to state the reasons for its opinion that
death penalty or life imprisonment should be imposed. He particularly dissented from statements that if
this Court found the conclusions of the Court of Appeals to be wrong, the case should be returned to the
Court of Appeals for further proceedings. According to Justice Tuason when a case is certified to this
Court it is placed, by force of the Court of Appeals' opinion, within the jurisdiction of the Supreme Court
for the latter to decide the appeal on the merits; findings of fact of the Court of Appeals are neither
essential nor necessary. Justice Tuason was joined in his dissent by Justice Cesar Bengzon who later
became Chief Justice of this Court and Justice Sabino Padilla.8

B. The theory is now advanced that We go one step further than that ruled in Ramos — that is, for the
Court of Appeals not only to make its findings of fact and finding of guilt, but also to impose the penalty
either of reclusion perpetua or death as the facts warrant in order that We may exercise Our appellate
jurisdiction.

We believe that such a judicial ruling will be violence to the letter and spirit of the law which confers on
the Supreme Court the exclusive prerogative to review on appeal and impose the corresponding penalty
in criminal cases where the offense is punishable by reclusion perpetua or death.

Both the 1935 and the 1973 Constitutions vest upon the Supreme Court appellate jurisdiction, in "(A)ll
criminal cases in which the penalty imposed is death or life imprisonment."9 This jurisdiction is
constitutional: the Supreme Court ma not be deprived thereof by, Congress then, now the National
Assembly. 10

Section 17 of the Judiciary Act 1948 as amended in turn provides that the foregoing appellate
jurisdiction of the Supreme Court is exclusive.

Basically therefore, the objection to this new theory is one of jurisdiction - the lack of jurisdiction of the
Court of Appeals to impose the penalty of reclusion perpetua or death.

The present controversy springs from the construction given to the second paragraph of Sec. 12, Rule
124, Rules of Court 11 more particularly to the use of the phrases "should be imposed" and "shall refrain
from entering judgment", viz:

xxx xxx xxx

Whenever in any criminal case submitted to a division the said division should be of the
opinion that the penalty of death or life imprisonment should be imposed, the said court
shall refrain from entering judgment thereon and shall forthwith certify the case to the
Supreme Court for final determination, as if the case had been brought before it on
appeal. (Emphasis supplied)

As we construe it, the Rule cited does not charge the appellate court with the duty of
imposing the penalty of reclusion perpetua or death. All that the Rule requires is
that should the Court of Appeals be of the opinion that death or life
imprisonment should be imposed, it "shall refrain from entering judgment thereon ...

The clause "entering judgment" means "rendering judgment". Thus, the Court of Appeals shall refrain
from rendering judgment if and when it is of the opinion that reclusion perpetua or death is the proper
penalty for the crime committed. This can be the only logical interpretation considering that the Court
of Appeals is without jurisdiction to impose the penalties concerned. The phrase "entering judgment" is
not to be equated with an "entry of judgment" as the latter is understood in Rule 36 in relation to
Section 8, Rule 121 and Section 16, Rule 124, Rules of Court. "Entry of judgment" presupposes a final
judgment — final in the sense that no appeal was taken from the decision of the trial or appellate court
within the reglementary period. A judgment in a criminal case becomes final after the lapse of the
period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or
the defendant has expressly waived in writing his right to appeal.12 It is only then that there is a
judgment which is to be entered or recorded in the book of entries of judgments. 13

It would be incongruous or absurd to state that Section 12, second paragraph, Rule 124 enjoins the
Court of Appeals from entering judgment" when there is no judgment to be entered .

But then the argument is advanced — what is there to be reviewed by the Supreme Court when the
decision being certified contains no penalty or sentence, as distinguished from appeals from the Court
of First Instance where there is a complete judgment to be passed upon. The answer is simple. Section
12 itself states that the case is for final determination by the Supreme Court as if the case had been
brought before it on appeal. Hence, based on the findings of facts of the appellate court which as a rule
are conclusive and binding on Us, this Court "will pass upon the correctness of the legal conclusions
derived therefrom" (People v. Ramos, supra) and impose the correct penalty for the offense committed.

We realize that had Section 12, Rule 124 used the phrase shall refrain from rendering judgment " there
would be no cause for any ambiguity. We can only assume that the intent of the Rule was so clear to the
Court when it drafted the Revised Rules of Court that it did not envision a possible contrary or adverse
interpretation or ambiguity in its implementation under the phraseology used. It is incumbent upon Us
to construe the Rule in the spirit and intent it was conceived and in harmony with pertinent laws and
jurisprudence.

On the merits of the appeal —

1. Generally in a case of this nature, the evidence of the prosecution consists solely of the testimony of
the offended party. Here We have the declaration of the victim, who at the time of the incident was a
little less than 13 years of age, on the basis of which the trial court found the charge of rape duly
established. The happenings are briefly summarized in the People's brief as follows:

The offended party in this case is Margarita Paleng who was born on November 20,
1952 (p. 3, t.s.n., Manipon). She is a native of Balangabang Tublay, Mountain Province
(pp. 3, 12, Id.) At the time of the incident in question on September 20, 1965,
complainant was temporarily boarding at a house located at Pinsao Guisad Baguio City,
as she was then a first year high school student at the Baguio Eastern High School (pp. 3,
12, 20, Id.; p. 36, Estigoy).

On September 20, 1965, at about three o'clock in the afternoon, she had just arrived in
the City from Tublay in a Dangwa bus (p. 3, Manipon). Because it was then raining and
the bus was parked several meters away from the bus station, she waited inside the bus
(pp. 3, 22, Id.). After about three minutes of waiting, the accused came and started
molesting her by inquiring her name and getting hold of her bag (pp. 4, 22-24, Id.). But
she did not allow him to hold her bag (p. 24, Id.). She called the attention of the bus
driver and the conductor about the actuation of the accused, but it seemed that the
former were also afraid of him (pp. 24-25, Id.).
 Despite the rain, she left the bus and went to ride in a jeep parked some 100 meters
away (pp. 4, 25, Id.). The accused closely followed her (p. 4, Id.). When the jeep started
to go, the accused also rode and sat beside her (p. 5, Id.).

When the jeep reached Guisad, she alighted on the road but she still had to negotiate a
distance of ten meters (p. 5, Id.). The accused also alighted and again he tried to carry
her bag (p. 5, Id.). Although he was not allowed to carry her bag, her was adamant in
following her (p. 5, Id.).

Reaching her boarding house, she opened the door and was about to close it when the
accused dashed in and closed the door behind him (pp. 31-32, Id.). When she entered
her room, the accused went in (p. 7, Id.). He pulled a dagger eight inches long and
threatened her: "If you will talk, 1 will kill you". (p. 7, Id.). Margarita was stunned into
silence because of her fear (p. i Id.). Thereupon, the accused held her hair with his left
hand and forced her Lo lie down in bed (p. 7, Id.) He also placed his left hand with a
handkerchief in Margarita's mouth, at the same time holding the dagger and her neck
with his right hand (pp. 7-8, Id.). She was forcibly made to the down and, at this
moment, the accused removed the buttons of his pants (p. 8, Id.). He then put down the
dagger on tile bed (p. 8, Id.). Her attempts to extricate herself from the accused was to
no avail assile was only 4 ft. and 8 inches tall and weighed about 95 to 100 pounds (p.
35, Id.) while the accused was 5 ft. and 7 inches tall and weighed about 126 pounds (pp.
8, 59, Id.). He then held his penis (pp. 8. 36, Id.), used his thigh to separate the legs of
Margarita (p. 38, Id.). tried, but failed. to remove her panty (p. 36, Id.). He nonetheless
guided his penis and inserted it inside the vagina of the complainant after prying open
the part of her panty covering her private parts (pp. 9, 36, Id.). Then he succeeded in
having carnal knowledge of the offended party (p. 9, Id.). Margarita lost consciousness.
When she recovered, he was already gone (p. 9, Id.).

The following morning, her father came to visit her. She confided to him the terrible
misfortune which befell her (pp. 9-10, Id.). She was immediately brought to the Baguio
General Hospital where she was examined (p. 10, Id.). Then they proceeded to the
Police Department. The Chief of Police accompanied them to the Health Center where
she was again examined by Dr. Perfecto O. Micu who thereafter submitted his medical
report (Exh. C; p. 3, rec.; pp. 11, 14-16, Id.). Margarita and her father gave their
respective statements before the police authorities (Exh. B, pp, 5-6, rec.; p. 11, t.s.n.).
She signed her criminal complaint prepared by the Fiscal's Office of Baguio (Exh. A; p. 1,
rec.; p. 11, t.s.n. (pp. 2-4, Brief at p. 83, rollo

The City Medico-Legal Officer, Dr. Perfecto Micu was called to the witness stand and he testified on the
physical examination conducted on the person of Margarita Paleng on September 23, 1965 and his
findings as contained in the report were as follows:

1. Hymen-circular-stellate type with healing lacerations at 6:00, 8:00, 9:00 and 11:00
o'clock positions in the face of a clock.

2. Contusions at the base of the hymen at 3:00 & 9:00 o'clock regions.
 3. Vaginal Orifice - tight and hardly admits 2 fingers.

4. Vaginal wall — tight and vaginal folds are prominent.

5. Vaginal smear — negative for spermatozoa and for gram negative intra or extra-
cellular diplococci. (Exh. "C", p. 3, CFI record)

Dr. Micu concluded that "defloration was recent". He further declared that the condition of the hymen
revealed that Margarita Paleng was a virgin before the incident complained of, and that the number of
lacerations and contusions at the base of the hymen indicated the degree of force exerted to effect the
sexual act. 14

For his defense, appellant claimed that he and Margarita were acquainted with each other since 1963,
and there were occasions when they rode together in a bus; that the incident of September 20, 1965
inside the room of Margarita was with the latter's consent, and in fact it was the second time he had
carnal knowledge with her, the first time having occurred inside a shack; that he promised Margarita
that he would marry her, but to his surprise, she filed the instant complaint against him. 15

2. The issue being one of credibility, We find no cogent reasons for discarding the findings of facts of the
trial court which were sustained by the Court of Appeals after the latter had examined the evidence as a
result of which it certified the case to this Court.

Appellant assails the veracity of the testimony of the complainant. But what possible motive could a
thirteen-year old girl barely in her teens have in fabricating a story that could only bring down on her
and her family shame and humiliation and make her an object of gossip and curiosity among her
classmates and the people of her hometown. It cannot be denied that a public trial involving a crime of
this nature subjects the victim to what can be a harrowing experience of submitting to a physical
examination of her body, an investigation by police authorities, appearance in court for the hearing
where she has to unravel lewd and hideous details of a painful event which she would prefer to forget
and leave it unknown to others. If Margarita did forego all these and preferred to face the cruel realities
of the situation it was due to her simple and natural instincts of speaking out the truth.

The insinuation that this complaint was filed because appellant had not married the girl although he
promised to marry her, is preposterous. On September 20, 1965, Margarita was only twelve years and
ten months old and was not of marriageable age, hence, marriage was a legal impossibility. And as
regards appellant's testimony that the complaint was instigated by the Chief of Police of Tublay who was
Margarita's uncle, the trial court did not give credit to such a declaration.

Counsel for appellant stresses that notwithstanding that Margarita had the opportunity to ask for help
or attract the attention of other people before she reached her boarding house, she failed to do so.
According to counsel there were people at the Dangwa station, in the busy streets, in the market place,
in the jeepney parking place where the girl took a jeep to proceed to the boarding house, and in the
neighboring houses the closest of which was about 5 meters away, but no attempt was ever made by
complainant to seek help so as to prevent appellant from molesting her. 16

Appellant's contention presupposes that Margarita was well aware all the time from the moment she
saw the appellate inside the bus that the latter had intentions of abusing or raping her. All that the
appellant did inside the bus was to hold her bag and she caged the attention of the driver and the
conductor to the impertinence of appellant but the two did not do anything about it. 17 And when
Margarita walked from the bus to the jeepney station, although she saw appellant walking behind her
she did not suspect that he was following her. To a question propounded by His Honor whether she
suspected that appellant was following her, Margarita answered: "No sir, I did not suspect." 18 All along
Margarita could not call the attention of the people in the street or shout for help inasmuch as at that
particular moment the appellant was not doing anything against her. And when Margarita reached the
boarding house there were no persons around 19 and in fact she went straight to her room and it was at
that particular moment when appellant barged into the room before she could close the door. In short,
the Poor girl was simply taken by surprise by the forced entrance of appellant who immediately took out
an 8-inch long dagger and said "If you will talk I will kill you."

Persons can have different reactions to a situation like that — some may manifest an aggressive or
violent attitude of confronting a molesting or impertinent fellow while others, like 12-year old
Margarita, may assume a silent. fearful attitude.

Appellant's counsel also claims that Margarita did not offer any resistance to the acts of the accused at
the time the latter was allegedly forcing himself on her as shown by the medical findings that there were
no signs of extra-genital injuries on the girl's body, and no blood stains on her dress and underwear.

The foregoing arguments are inadequate to weaken and destroy the veracity of Margarita's
straightforward and positive declaration as to how appellant, a 22-year old farmer in the prime of his
manhood, weighing 126 lbs and five feet 21 and six inches tall,20 overpowered her and succeeded in
accomplishing the sexual act despite her resistance. Margarita was less than 13 years of age, was 4' 8 "
in height, and weighed around 95 lbs.21

In a crime of rape, force need not be irresistible; "it need but be present, and so long as it brings about
the desired result, all consideration of whether it was more or less irresistible, is beside the point. 22

All that is necessary is that the force used by the accused is sufficient for him to consummate his evil
purpose. In U.S. v. Villarosa, 1905, there was a similar situation. A 12 year old girl was sexually abused in
the woods by a man of superior physical strength. In holding the accused Villarosa guilty of rape the
Court held:

It is a doctrine well established by the courts that in order to consider the existence of
the crime of rape it is not necessary that the force employed in accomplishing it be so
great or of such character as could not be resisted; it is only necessary that the force
used by the guilty party be sufficient to consummate the purpose which he had in view.
(4 Phil. 434, 437 citing Judgment May 14, 1878, Supreme Court of Spain. The Villarosa
doctrine has been followed in numerous cases involving the crime of rape and one of
the latest is People v. Equec, 1977, per Justice Enrique Fernando, 70 SCRA 665.)

And as stated in People v. Savellano, per Justice Ramon Aquino, the force or violence necessary in rape is
naturally a relative term, depending on the age, size, and strength of the parties and their relation to
each other. 23
Rape is likewise committed when intimidation is used on the victim and the latter submits herself
against her will because of fear for her life and personal safety. In this case of Margarita Paleng,
appellant was armed with a dagger and with it threatened to kill the girl if she would talk or scream for
help. Her fear naturally weakened whatever resistance Margarita could muster at the time and as a
result appellant was able to consummate his coitus on the victim. 24

One last point raised by the able counsel of appellant, Atty. Braulio D. Yaranon, who at the time of the
trial in 1965 was the Vice-Mayor of Baguio City, was that appellant voluntarily submitted to a lie
detector test with the National Bureau of Investigation and the report of the lie detector examiner is in
appellant's favor, that is, the latter was telling the truth on the questions propounded to him one of
which was whether he forced Margarita Paleng into having sexual intercourse with him and the reply
was "No". 25

On this matter We find the trial Judge's observations and conclusions meritorious and We quote from
his decision the following:

As to the N.B.I. lie detector test report, the Court does not put much faith and credit on
it. It is well known that the same is not conclusive. Its efficacy depends upon the time,
place and circumstances when taken and the nature of the subject. If subject is hard and
the circumstances, as in this instant, were not conducive to affect the subject
emotionally, the test will fail. The subject had nothing more to fear because the trial was
over. He was not confronted by the victim or other persons whom he had a reason to
fear. Naturally, his reaction to the questions propounded was normal and unaffected
and the apparatus could not detect it. (pp. 172-173, CFI record)

To conclude, the crime committed by the appellant is rape with the use of a deadly weapon with the
aggravating circumstance of having been committed in the dwelling of the offended party. Although
Margarita was merely renting a bedspace in a boarding house, her room constituted for all intents and
purposes a "dwelling" as the term is used in Article 14(3), Revised Penal Code. It is not necessary, under
the law, that the victim owns the place where he lives or dwells. Be he a lessee, a boarder, or a bed-
spacer, the place is his home the sanctity of which the law seeks to protect and uphold.

Hence, the correct penalty for the crime committed is death pursuant to Article 335 of the Revised Penal
Code as amended. However, for lack of the necessary number of votes, the penalty next lower in degree
is to be applied.

PREMISES CONSIDERED, We affirm the judgment of conviction of Amado Daniel for the crime of rape as
charged, and We sentence him to suffer the penalty of reclusion perpetua and order him to indemnify
Margarita Paleng by way of moral damages in the amount of Twelve Thousand Pesos (P12,000.00) and
pay the costs.

Decision Modified.

SO ORDERED.
10. People v. Apduhan, G.R. No. L-19491, 30 August 1968

G.R. No. L-19491 August 30, 1968

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
APOLONIO APDUHAN, JR. alias JUNIOR, ET AL., defendants,
APOLONIO APDUHAN, JR. alias JUNIOR, defendant-appellant.

Office of the Solicitor General for plaintiff-appellee.

Alberto M. Meer for defendant-appellant.

CASTRO, J.:

This is an automatic review of the judgment rendered on August 30, 1961 by the Court of First Instance
of Bohol (Judge Hipolito Alo presiding) convicting Apolonio Apduhan, Jr. of robbery with homicide and
sentencing him to death and "to idemnify the heirs of the deceased Geronimo Miano in the amount of
P6,000.00, to indemnify the heirs of the other deceased Norberto Aton in the same amount of
P6,000.00 ..."

On August 2, 1961 the accused Apduhan, then represented by Atty. David Ocangas, together with his co-
accused Rodulfo Huiso and Felipe Quimson, both represented by Atty. David Tirol, pleaded not guilty to
a second amended information which recites:.

The undersigned Provincial Fiscal accuses Apolonio Apduhan, Jr., alias Junior, Rodulfo Huiso and
Felipe Quimson of the crime of Robbery with Homicide, committed as follows:

That on or about the 23rd day of May, 1961, at about 7:00 o'clock in the evening, in the
Municipality of Mabini, Province of Bohol, Philippines, the above-named accused and five (5)
other persons whose true names are not yet known (they are presently known only with their
aliases of Bernabe Miano, Rudy, Angel-Angi, Romeo and Tony) and who are still at large (they
will be charged in separate information or informations as soon as they are arrested and
preliminary proceedings in Crim. Case No. 176 completed before the Justice of the Peace Court),
all of them armed with different unlicensed firearms, daggers, and other deadly weapons,
conspiring, confederating and helping one another, with intent of gain, did then and there
willfully, unlawfully and feloniously enter, by means of violence, the dwelling house of the
spouses Honorato Miano and Antonia Miano, which was also the dwelling house of their
children, the spouses Geronimo Miano and Herminigilda de Miano; and, once inside the said
dwelling house, the above-named accused with their five (5) other companions, did attack, hack
and shoot Geronimo Miano and another person by the name of Norberto Aton, who happened
to be also in the said dwelling house, thereby inflicting upon the said two (2) persons physical
injuries which caused their death; and thereafter the same accused and their five (5) other
companions, did take and carry way from said dwelling house cash money amounting to Three
Hundred Twenty-two Pesos (P322.00), Philippine Currency, belonging to Honorato Miano and
Geronimo Miano, to the damage and prejudice of the said Honorato Miano and the heirs of the
deceased Geronimo Miano in the sum of Three Hundred Twenty-two Pesos (P322.00) with
 respect to the amount robbed, and also to the damage and prejudice of the heirs of deceased
Geronimo Miano and Norberto Aton by reason of the death of these two persons.

Act committed contrary to the provisions of Art. 294, par. 1, of the Revised Penal Code with the
special aggravating circumstance that the crime was committed by a band with the use of
unlicensed firearms (Art. 296, Rev. Penal Code), and other aggravating circumstances, as
follows:

1. That the crime was committed in the dwelling of the offended parties without any
provocation from the latter;

2. That nighttime was purposely sought to facilitate the commission of the crime; and.

3. That advantage was taken of superior strength, accused and their companions, who were
fully armed, being numerically superior to the offended parties who were unarmed and
defenseless.

When the case was called for trial on August 9, 1961, Atty. Tirol informed the court a quo that he was
appearing also for Apduhan, but only as counsel de oficio. In view of this manifestation, the trial court
appointed Atty. Tirol as counsel de oficio for the said accused. Forthwith, Atty. Tirol manifested that
Apduhan would change his former plea of not guilty to a plea of guilty. The record discloses that after
the trial, judge had repeatedly apprised Apduhan of the severity of the offense for which he was
indicted and the strong possibility that the capital penalty might be imposed upon him despite a plea of
guilty, Apduhan persisted in his intention to plead guilty with the request, however, that the death
penalty be not imposed. Then after hearing the arguments of Provincial Fiscal Jesus N. Borromeo and
Atty. Tirol on the effect of articles 295 and 296 of the Revised Penal Code on the case at bar, the trial
judge advised the herein accused anew that he could be sentenced to death notwithstanding his
projected plea of guilty, but the latter reiterated his desire to confess his guilt on the specific condition
that he be sentenced to life imprisonment. Eventually, however, Apduhan desisted from pleading guilty
and let his previous plea stand on record after further warnings that he faced the grave danger of being
sentenced to death in view of the circumstances of his case. But the aforesaid desistance was merely
momentary as it did not end the accused's equivocation on the matter of his plea. After a five-minute
recess requested by Atty. Tirol in order to confer with the accused, the former informed the court a quo
that his client would insist on entering a plea of guilty. The following appears on record:

Atty. D. TIROL:

Your Honor, please, I had a conference with the accused and I apprised him with the situation of
the case and after hearing our apprisal he manifested that he will insist on his entering a plea of
guilty, Your Honor. I made it clear to him that we are not forcing him to enter the plea of guilty.

COURT (To accused Apolonio Apduhan, Jr.)

Q. Is it true that you are withdrawing your plea of not guilty?

A. I will just enter the plea of guilty.

 Q. Have you been forced to enter the plea of guilty by your lawyer?.

A. No, Sir.

Q. And why do you said "I will JUST enter the plea of not guilty"?

A. I have proposed to enter the plea of guilty even before.

Q. Now the Court warns you again. Are you conscious of the fact that notwithstanding your plea
of guilty the Court may impose upon you the penalty of death?

A. I will just enter the plea of guilty, at the discretion of the Court.

Q. Even with all those dangers mentioned by the Court to you? .

A. Yes, Sir. (t.s.n. pp. 23-25).

Subsequently the prosecuting fiscal and the counsel de oficio resumed their oral arguments regarding
the effect on the instant case of articles 295 and 296, particularly the use of unlicensed firearm as a
special aggravating circumstance under the latter article. Also discuss were the existence and effect of
the alleged mitigating and aggravating circumstances. All of these points will be later analyzed.

When the lower court subsequently reviewed the proceedings, it found that the accused's plea of guilty
was ambiguous. Hence, on August 30, 1961, the case was reopened with respect to Apduhan, and on
said date the latter entered a categorical plea of guilty, as evidenced by the record:

COURT (To Accused Apduhan, Jr.):

The Court reopened this case because after a review of the proceedings it found that your plea was not
definite. In answer to a question of the Court you simply said "I will just enter the plea of guilty". The
Court wants to know whether you enter the plea of guilty of the crime charged in the second amended
information.

ACCUSED APDUHAN:.

I enter the plea of guilty.

COURT (To same accused Apduhan):

Q. Therefore, you admit that you have committed the crime charged in the second information?

A. Yes, Your Honor.

Q. Is it necessary for you that the second amended information be read again?

A. No more; it is not necessary.

 Q. Do you want that the second amended information be read to you again?

A. No more, Your Honor. (t.s.n. pp. 50-51).

On the same day, the court a quo rendered its decision, the pertinent dispositive portion of which
reads:.

PREMISES CONSIDERED, the Court renders judgment finding accused Apolonio Apduhan, Jr.,
alias Junior guilty of the complex crime of robbery with homicide, punished by Article 294 of the
Revised Penal Code, in relation to Article 296 of the game Code, as amended, and sentences him
to suffer the penalty of death.

Considering that Apduhan had voluntarily confessed his guilt in open court, then the only aspect of the
case properly subject to review is the correctness of the penalty imposed by the court a quo. In this
respect, the appreciation of the use of unlicensed firearm as a special aggravating circumstance (art.
296) in fixing the appropriate penalty for robbery with homicide (Art, 294 [1]) committed by a band with
the use of unlicensed firearms, and the interplay and counter-balancing of the attendant mitigating and
aggravating circumstances, would determine the severity of the penalty imposable.

The disposition of the question at hand necessitates a discussion of the interrelation among articles 294,
295 and 296 of the Revised Penal Code. For this purpose the said articles are hereunder quoted:

ART. 294. Robbery with violence against or intimidation of persons — Penalties. — Any person
guilty of robbery with the use of violence against or intimidation of any person shall suffer:

1. The penalty of reclusion perpetua to death, when by reason or on occasion of the

robbery, the crime of homicide shall have been committed.

2. The penalty of reclusion temporal in its medium period to reclusion perpetua, when
the robbery shall have been accompanied by rape or intentional mutilation, or if by
reason or on occasion of such robbery, any of the physical injuries penalized in
subdivision 1 of article 263 shall have been inflicted.

3. The penalty of reclusion temporal, when by reason or on occasion of the robbery, any
of the physical injuries penalized in subdivision 2 of the article mentioned in the next
preceding paragraph, shall have been inflicted.

4. The penalty of prision mayor in its maximum period to reclusion temporal in its
medium period, if the violence or intimidation employed in the commission of the
robbery shall have been carried to a degree clearly unnecessary for the commission of
the crime, or when in the course of the execution, the offender shall have inflicted upon
any person not responsible for its commission any of the physical injuries covered by
subdivisions 3 and 4 of said article 263.

5. The penalty of prision correccional in its maximum period to prision mayor in its
medium period in other cases. (As amended by Rep. Act 18.).
 ART 295. Robbery with physical injuries, committed in an uninhabited place and by a band, or
with the use of firearm on a street, road or alley. — If the offenses mentioned in subdivisions
three, four, and five of the next preceding article shall have been committed in an uninhabited
place or by a band, or by attacking a moving train, street car, motor vehicle or airship, or by
entering the passengers' compartments in a train or, in any manner, taking the passengers
thereof by surprise in the respective conveyances, or on a street, road highway, or alley, and the
intimidation is made with the use of a firearm, the offender shall be punished by the maximum
period of the proper penalties. (As amended by Rep. Acts Nos. 12 and 373.) (Emphasis supplied) .

ART. 296. Definition of a band and penalty incurred by the members thereof.— When more than
three armed malefactors take part in the commission of a robbery, it shall be deemed to have
been committed by a band. When any of the arms used in the commission of the offense be an
unlicensed firearm the penalty to be imposed upon all the malefactors shall be the maximum of
the corresponding penalty provided by law, without prejudice to the criminal liability for illegal
possession of such unlicensed firearm.

Any member of a band who is present at the commission of a robbery by the band, shall be
punished as principal of any of the assaults committed by the band, unless it be shown that he
attempted to prevent the same. (As amended by Rep. Act No. 12). (Emphasis supplied).

The afore-quoted art. 294 enumerates five classes of robbery with violence against or
intimidation of persons and prescribes the corresponding penalties. The case at bar falls under
art. 294(1) which defines robbery with homicide and fixes the penalty from reclusion
perpetua to death.

Article 295 provides, inter alia, that when the offenses described in subdivisions 3, 4 and 5 of art. 294
are committed by a band, the proper penalties must be imposed in the maximum periods. The
circumstance of band is therefore qualifying only in robbery punished by subdivisions 3, 4, and 5 of art.
294. Consequently, art. 295 is inapplicable to robbery with homicide, rape, intentional mutilation,
and lesiones graves resulting in insanity, imbecility, impotency or blindness. If the foregoing classes of
robbery which are described in art. 294(1) and (2) are perpetrated by a band, they would not be
punishable under art. 295, but then cuadrilla would be a generic aggravating under Art. 14 of the
Code.1 Hence, with the present wording of art. 2952 there is no crime as "robbery with homicide in
band." If robbery with homicide is committed by a band, the indictable offense would still be
denominated as "robbery with homicide" under art. 294(1), but the element of band, as stated above,
would be appreciated as an ordinary aggravating circumstance.

Article 296, as quoted above, defines "band", creates the special aggravating circumstance of use of
unlicensed firearm, and provides the criminal liability incurred by the members of the band. The
ascertainment of the definite function and range of applicability of this article in relation to articles 294
and 295 is essential in the disposition of the case at bar.

In imposing the death penalty, the trial court appears to have accorded validity to the Provincial Fiscal's
contention that in robbery with homicide committed by a band, the use of unlicensed firearm must be
appreciated as a special aggravating circumstance pursuant to art. 296. Thus convinced, the trial judge
stressed in his decision that "under the express mandate of the law, we cannot escape the arduous task
of imposing the death penalty." Subscribing to the said position, the Solicitor General adds that the
"penalty for robbery under the circumstances mentioned in Articles 294, paragraph 1, and 296 of the
Code is the maximum of reclusion perpetua to death, or the supreme penalty of death. This is
mandatory." .

On the other hand, Atty. Alberto M. Meer, the accused's counsel de oficio in the present review,
contends that the use of unlicensed firearm, if ever appreciated in the case at bar, must be considered a
generic aggravating factor which "may be off-set by the existence of mitigating circumstances so that
the penalty to be imposed should be the penalty of reclusion perpetua." .

Both the foregoing contentions are untenable.

After a perceptive analysis of the provisions of art. 296, we reach the considered opinion that the said
article is exclusively linked and singularly applicable to the immediately antecedent provision of art. 295
on robbery in band, as the latter article, in turn, is explicitly limited in scope to subdivisions 3, 4, and 5 of
art. 294. Consequently, although the use of unlicensed firearm is a special aggravating circumstance
under art. 296, as amended by Rep. Act 12, 3 it cannot be appreciated as such in relation to robbery
with homicide, described and penalized under paragraph 1 of art. 294.

As previously stated, art. 295 provides that if any of the classes of robbery described in subdivisions 3, 4,
and 5 of art. 294 is committed by a band, the offender shall be punished by the maximum period of the
proper penalty. Correspondingly, the immediately following provisions of art. 296 define the term
"band", prescribe the collective liability of the members of the band, and state that "when any of the
arms used in the commission of the offense be in unlicensed firearm, the penalty to be imposed upon all
the malefactors shall be the maximum of the corresponding penalty provided by law." Viewed from the
contextual relation of articles 295 and 296, the word "offense" mentioned in the above-quoted portion
of the latter article logically means the crime of robbery committed by a band, as the phrase "all the
malefactors" indubitably refers to the members of the band and the phrase "the corresponding penalty
provided by law" relates to the offenses of robbery described in the last three subdivisions of art. 294
which are all encompassed within the ambit of art. 295. Evidently, therefore, art. 296 in its entirety is
designed to amplify and modify the provision on robbery in band which is nowhere to be found but in
art. 295 in relation to subdivisions 3, 4, and 5 of art. 294. Verily, in order that the aforesaid special
aggravating circumstance of use of unlicensed firearm may be appreciated to justify the imposition of
the maximum period of the proper penalty it is a condition sine qua non that the offense charged be
robbery committed by a band within the contemplation of art. 295. To reiterate, since art. 295, does not
apply to subdivision 1 and 2 of art. 294, then the special aggravating factor in question, which is solely
applicable to robbery in band under art. 295, cannot be considered in fixing the penalty imposable for
robbery with homicide under art. 294(1), even if the said crime was committed by a band with the use
of unlicensed firearms.

The legislative intent of making art. 296 corollary to art. 295 with respect to robbery in band was
unmistakably articulated by Congressman Albano in his sponsorship speech on H. B. No. 124
(subsequently enacted as Rep. Act No. 12, amending, among others, articles 295 and 296 of the Revised
Penal Code). Said Congressman Albano: "Article 296 as a corollary of Article 295 would change the
definition heretofore known of the term "band" under the law. The purpose of this amendment is to
inject therein the element of aggravation, when any member of the band carries an unlicensed firearm .
." 4.

The special aggravating circumstance of use of unlicensed firearm, however, was initially applicable to
all the subdivisions of art. 294 since the said Rep. Act No. 12 also amended art. 295 to include within its
scope all the classes of robbery described in art. 294. With the then enlarged coverage of art. 295, art.
296, being corollary to the former, was perforce made applicable to robbery with homicide (art. 294[1]).
Thus, in People vs. Bersamin, 5 this Court, in passing, opined: "The use of unlicensed firearm is a special
aggravating circumstanceapplicable only in cases of robbery in band (Art. 296, Revised Penal Code, as
amended by Section 3, Republic Act No. 12)." .

In the said case, this Court declared in effect that in robo con homicidio the use of unlicensed firearm is
not a special aggravating circumstance when the said offense is not committed by a band. Inferentially,
had the robbery with homicide in Bersamin been perpetrated by a band, the use of unlicensed firearm
would have been appreciated. This implied pronouncement would have been justified under art. 296 in
relation to art. 295, as amended by Rep. Act 12. But the aforesaid inference lost all legal moorings in
1949 with the enactment of Rep. Act 373 which excluded subdivisions 1 and 2 of art. 294 from the
coverage of art. 295. Since art. 296, as repeatedly emphasized above, is corollary to art. 295, the
diminution of the latter's scope correspondingly reduced the former's extent of applicability. In other
words, the passage of the foregoing amendment did not only jettison the first two subdivisions of art.
294 from the periphery of art. 295 but also removed the said subdivisions (which pertain, inter alia, to
the offense of robbery with homicide) from the effective range of art. 296.

Notwithstanding that the special aggravating circumstance of use of unlicensed firearm cannot be
appreciated in the instant case, we are constrained, in the final analysis, to observe that the imposition
of the death penalty on the accused Apduhan would appear to be a logical legal consequence, because
as against the attendant mitigating circumstances the aggravating circumstances numerically and
qualitatively preponderate.

After Apduhan had pleaded guilty, the defense counsel offered for consideration three mitigating
circumstances, namely, plea of guilty, intoxication, and lack of intent to commit so grave a wrong.
Subsequently, however, the defense withdrew the last mentioned mitigating circumstance after the
prosecution had withdrawn the aggravating circumstance of abuse of superior strength. The following
manifestations appear on record: .

"FISCAL BORROMEO: .

"In fairness to the accused, because the crime charged is robbery in band (the case at bar is
actually robbery with homicide), it is natural that in robbery in band there is already abuse of
superior strength, so we will just withdraw that superior strength.

"COURT (To Atty. D. Tirol): .

"What do you say now? .

"ATTY. D. TIROL: .

"Such being the case, we will not insist on presenting evidence in support of our contention that
the accused did not intend to commit so grave a wrong.

"COURT: .
"Moreover by the mere use of firearm the accused cannot claim that he did not intend to
commit so grave a wrong as that committed. So now you withdraw your petition that you be
allowed to present evidence to that effect? .

"ATTY. D. TIROL: .

"Yes, Your Honor." (t.s.n. pp. 47-48).

Thus, only two alleged mitigating circumstances remain for consideration.

Anent the plea of guilty, we believe that under art. 13 (7) its appreciation in the case at bar is
beyond controversion.

However, apropos the alternative circumstance of intoxication, we find no evidence on record

to support the defense's claim that it should be considered as a mitigating factor. This absence
of proof can be attributed to the defense's erroneous belief that it was not anymore its burden
to establish the state of intoxication of the accused when he committed the offense charged
since anyway the prosecution had already admitted the attendance of the said mitigating
circumstance on the ground that the State did not have strong evidence to overthrow the
accused's claim of non-habituality to drinking. The record discloses the following pertinent
discussion: .

"COURT (To Fiscal Borromeo):.

"Do you agree, Mr. Fiscal, that the non-habitual intoxication of the accused be also taken into
account in his favor as a mitigating circumstance? "FISCAL BORROMEO: .

"We have no evidence exactly to know at this time that the accused was intoxicated, but his
affidavit states that before the commission of the crime they took young coconuts and there is
no mention about the taking of any liquor, so that, as it is now, we are constrained to object.

"COURT (To the Fiscal): .

"But do you have evidence to counteract that allegation? .

"FISCAL BORROMEO: .

"We do not have any evidence to counteract that.

"COURT (To the Fiscal): .

"But do you not admit the attendance of that circumstance? .

"FISCAL BORROMEO: With that manifestation we submit because actually we do not have
evidence to counteract that he was a habitual drinker. "COURT (To the Fiscal): .
 "But do you prefer to admit that mitigating circumstance or you need that evidence be
presented to that effect? "FISCAL BORROMEO: .

"Inasmuch as we do not have strong evidence to contradict that circumstance in fairness to the
accused, we would rather submit.

"COURT (To the Fiscal): .

"The attendance of the mitigating circumstance of non-habitual intoxication? .

"FISCAL BORROMEO: .

"Yes, Your Honor." (t.s.n. pp. 7-9) (Emphasis supplied) .

From the above proceedings in the trial court, it would appear that what the prosecution actually
intended to admit was the non-habituality of the accused to drinking liquor, not as a matter of fact, but
due to the State's inability to disprove the same. The prosecution apparently did not concede the actual
intoxication of the accused. We are of the firm conviction that, under the environmental circumstances,
the defense was not relieved of its burden to prove the accused's actual state of intoxication. Otherwise,
to appreciate the attendance of a mitigating factor on the mere allegation of the accused, coupled with
the dubious acquiescence of the prosecution, would open wide the avenue for unscrupulous and
deceitful collusion between defense and prosecution in order to unduly and unjustly minimize the
penalty imposable upon the accused.

The last paragraph of art. 15 of the Code provides:.

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

Under the foregoing provision, intoxication is mitigating when it is not habitual or intentional, that is,
not subsequent to the plan to commit the crime. However, to be mitigating the accused's state of
intoxication must be proved. 6 Once intoxication is established by satisfactory evidence, 7 then in the
absence of proof to the contrary" it is presumed to be non-habitual or unintentional. 8 .

In People vs. Noble 9 the defendant testified that before the murder he took a bottle of wine and drank
little by little until he got drunk. The policeman who arrested the accused testified that the latter
smelled wine and vomited. The Court held that the evidence presented was not satisfactory to warrant a
mitigation of the penalty. Intoxication was likewise not competently proved in a case 10 where the only
evidence was that the defendant had a gallon of tuba with him at the time he committed the crime.

In the case at bar the accused merely alleged that when he committed the offense charged he was
intoxicated although he was "not used to be drunk," 11This self-serving statement stands
uncorroborated. Obviously, it is devoid of any probative value.
To recapitulate, the accused has in his favor only one mitigating circumstance: plea of guilty. As
aforementioned, the defense withdrew its claim of "lack of intent to commit so grave a wrong" and
failed to substantiate its contention that intoxication should be considered mitigating.

While an unqualified plea of guilty is mitigating, it at the same time constitutes an admission of all the
material facts alleged in the information, including the aggravating circumstances therein recited. 12
The four aggravating circumstances are (1) band; (2) dwelling; (3) nighttime; and (4) abuse of superior
strength. The circumstance of abuse of superiority was, however, withdrawn by the prosecution on the
ground that since the offense of robbery with homicide was committed by a band, the element of
cuadrilla necessarily absorbs the circumstance of abuse of superior strength. We believe that said
withdrawal was ill-advised since the circumstances of band and abuse of superiority are separate and
distinct legal concepts. The element of band is appreciated when the offense is committed by more than
three armed malefactors regardless of the comparative strength of the victim or victims. Hence, the
indispensable components of cuadrilla are (1) at least four malefactors and (2) all of the four
malefactors are armed. On the other hand, the gravamen of abuse of superiority is the taking advantage
by the culprits of their collective strength to overpower their relatively weaker victim or victims. Hence,
in the latter aggravating factor, what is taken into account is not the number of aggressors nor the fact
that they are armed, but their relative physical might vis-a-vis the offended party.

Granting, however, that the said withdrawal was valid, there still remain three aggravating
circumstances which render inutile the solitary extenuating circumstance of plea of guilty. The
prosecution does not need to prove the said three circumstances (all alleged in the second amended
information) since the accused by his plea of guilty, has supplied the requisite proof. 13 Hence, we will
not belabor our discussion of the attendance aggravating circumstances.

The settled rule is that dwelling is aggravating in robbery with violence or intimidation of persons, 14
like the offense at bar. The rationale behind this pronouncement is that this class of robbery could be
committed without the necessity of transgressing the sanctity of the home. Morada is inherent only in
crimes which could be committed in no other place than in the house of another, such as trespass and
robbery in an inhabited house. 15 This Court in People vs. Pinca, 16 citing People vs. Valdez, 17 ruled
that the "circumstances (of dwelling and scaling) were certainly not inherent in the crime committed,
because, the crime being robbery with violence or intimidation against persons (specifically, robbery
with homicide) the authors thereof could have committed it without the necessity of violating or scaling
the domicile of their victim." Cuello Calon opines that the commission of the crime in another's dwelling
shows greater perversity in the accused and produces greater alarm. 18.

Nocturnity is aggravating when it is purposely and deliberately sought by the accused to facilitate the
commission of the crime 19 or to prevent their being recognized or to insure unmolested escape. 20
Nocturnidad must concur with the intent and design of the offender to capitalize on the intrinsic
impunity afforded by the darkness of night. 21 In the case at bar, the affidavit (exh. I-1) of the accused
Apduhan shows that he and his co-malefactors took advantage of the nighttime in the perpetration of
the offense as they waited until it was dark before they came out of their hiding place to consummate
their criminal designs.

In his decision, the trial judge recommends to, the President of the Republic the commutation of the
death sentence which he imposed on the accused to life imprisonment. The Solicitor General supports
this recommendation for executive clemency.
We find no compelling reason to justify such recommendation. Contrary to the trial judge's observation,
the accused's plea of guilty was far from "spontaneous" and "insistent". It will be recalled that his initial
plea was one of not guilty. Later, he changed his plea but with the persistent condition that he be
sentenced to life imprisonment, not death. It was only after much equivocation that he finally decided
to "just" plead guilty. Because his plea was still ambiguous, the court a quo had to reopen the case to
ascertain its real nature. Conceding, however, that his plea was "spontaneous" and "insistent," such
manifestation of sincere repentance cannot serve to obliterate the attendant aggravating circumstances
which patently reveal the accused's criminal perversity.

It appears from a cursory reading of the decision under review that the trial judge also anchored his
recommendation on the ground that there is "the possibility that the firearm was used in order to
counteract the resistance of the deceased." This is no justification at all for executive clemency. Firstly,
the above observation is a mere conjecture - in the language of the presiding judge, a "possibility."
Secondly, even granting that the said observation relates to the actual happening, to employ a firearm in
subduing the lawful resistance of innocent persons is a criminal act by any standard.

Even as we purge the decision under review of its errors, we must hasten to commend the trial judge,
the Hon. Hipolito Alo, for his earnest and patient efforts to forestall the entry of an improvident plea of
guilty by the accused Apduhan, notwithstanding that the latter was already represented by a counsel de
oficio and hence presumed to have been advised properly. Judge Alo made sure that the accused clearly
and fully understood the seriousness of the offense charged and the severity of the penalty attached to
it. When the accused proposed to confess his guilt, Judge Alo repeatedly warned him that the death
penalty might be imposed despite his plea of guilty. As aforementioned, when it appeared that
Apduhan's plea of guilty was ambiguous, Judge Alo reopened the case to determine with definitiveness
the nature of his plea.

The virtue of Judge Alo's efforts in ascertaining whether Apduhan pleaded guilty with full knowledge of
the significance and consequences of his act, recommends itself to all trial judges who must refrain from
accepting with alacrity an accused's plea of guilty, for while justice demands a speedy administration,
judges are duty bound to be extra solicitous in seeing to it that when an accused pleads guilty he
understands fully the meaning of his plea and the import of an inevitable conviction.

As a final commentary on the criminal conduct of the accused herein, it must be emphasized that the
instant review was delayed for several years because he escaped from the New Bilibid Prisons on June
17, 1963, less than six months after he was committed to the said penitentiary. He was recommitted on
July 10, 1964 with a new mittimus from the Court of First Instance of Leyte for robbery in band in
criminal case 10099, for which he was sentenced to serve a prison term of from 8 years and 1 day to 12
years and 1 day commencing on October 31, 1963. 22 His recommitment was reported to this Court
only on July 5, 1966.

Notwithstanding the foregoing disquisition, for failure to secure the required number of votes, the
penalty of death cannot be legally imposed. The penalty next lower in degree - reclusion perpetua -
should consequently be imposed on the accused.

ACCORDINGLY, with the modification that the death sentence imposed upon Apolonio Apduhan, Jr. by
the court a quo is reduced to reclusion perpetua, the judgment a quo is affirmed in all other respects,
without pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Angeles and Fernando, JJ., concur.

11. People v. Mandolado, G.R. No. L-51304-05, 28 June 1983

G.R. No. L-51304-05 June 28, 1983

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARTIN MANDOLADO and JULIAN ORTILLANO, defendants-appellants.

The Solicitor General for plaintiff-appellee.

Basilio V. Lanoria for defendants-appellants.

GUERRERO, J.:

The judgment of conviction rendered by the Court of First Instance of Cotabato, Branch I I, Cotabato City
dated June 28, 1979 sentencing the accused Martin Mandolado to the supreme penalty of death in each
case and the accused Julian Ortillano to imprisonment of six (6) years of prision correccional as minimum
to seventeen (17) years of prision mayor as maximum, being merely an accessory, is before Us for
mandatory review.

Under two (2) separate criminal informations dated January 5, 1978 filed by First Assistant Provincial
Fiscal Ismael G. Bagundang, the two accused- appellants, Martin Mandolado and Julian Ortillano,
draftees assigned with the Alpha Company, 3rd Infantry Battalion, Second Infantry Division, Philippine
Army with station at Pikit, North Cotabato, together with Anacleto Simon and Conrado Erinada, trainees
attached to the Headquarters & Headquarters Company, 3rd Infantry Battalion, 2nd Infantry Division,
Philippine Army, stationed at the Army Detachment along Simuay Junction, Simuay, Sultan Kudarat,
Maguindanao, were accused of murder for the death of the victims Herminigildo Tenorio and his driver
Nolasco Mendoza with the use of their firearms in the afternoon of October 3. 1977 at Sultan Kudarat,
Maguindanao, qualified with the aggravating circumstances of treachery, evident premeditation and
abuse of superior strength.

Specifically, in Criminal Case No. 561, the information charged the accused as follows:

That on or about October 3, 1977 in the afternoon, in the Municipality of Sultan

Kudarat, Province of Maguindanao, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused with intent to kill, conspiring, confederating
and helping one another with treachery, evident premeditation and the use of superior
strength all armed with high powered weapons did then and there willfully, unlawfully,
and feloniously, and with the use of their guns shoot Mr. Nolasco Mendoza hitting the
latter on the different parts of his body causing his instantaneous death.

Contrary to law with the aggravating circumstances of treachery, evident premeditation,

and the use of superior strength.
Similarly, in Criminal Case No. 562, the information reads:

That on or about October 3, 1977, in the afternoon, in the Municipality of Sultan

Kudarat, Province of Maguindanao, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with intent to kill, conspiring,
confederating and helping one another with treachery, evident premeditation and the
use of superior strength all armed with high- powered weapons did then and there
willfully, unlawfully, and feloniously, and with the use of their guns shoot Mr.
Herminigildo Fajardo Tenorio hitting the latter on the different parts of his body causing
his instantaneous death.

Contrary to law with the aggravating circumstances of treachery, evident premeditation,

and the use of superior strength.

The charges having been allegedly committed at the same place and occasion and involving all the four
(4) accused in each instance were jointly tried per order of the trial court dated February 28, 1978 and
after completion thereof, the two herein accused-appellants were found guilty while the remaining two
accused, Anacleto Simon and Conrado Erinada were acquitted. We quote hereunder the dispositive
portion of the decision now under review, to wit:

WHEREFORE, Martin Mandolado is found guilty beyond reasonable doubt of the crime
of murder in Criminal Case No. 562 for the killing of Herminigildo Fajardo Tenorio, and
also in Criminal Case No. 561 for the killing of Nolasco Mendoza, with the aggravating
circumstances of (1) 'advantage was taken of his being a draftee in the Philippine Army,'
and (2) 'abuse of confidence or obvious ungratefulness' without the presence of any
mitigating circumstances and is meted the following penalty, to wit;

In Criminal Case No. 562, for the killing of Herminigildo Tenorio, he is sentenced to
suffer the penalty of the crime in its maximum degree which is death.

He shall pay the heirs of the deceased the amount of P12,000.00 for the death of this
victim, and the amount of P20,000.00 as moral and exemplary damages.

In Criminal Case No. 561 for the killing of the driver, Nolasco Mendoza, he is similarly
sentenced to death.

He is to pay the heirs of said deceased the amount of P50,000.00 for the death of said
victim, and the amount of P100,000.00 as moral and exemplary damages.

In both Criminal Cases Nos. 561 and 562, on the grounds of reasonable doubt, Anacleto
Simon and Conrado Erinada are both found not guilty. This case against them (Anacleto
Simon and Conrado Erinada) is hereby dismissed.

In Criminal Cases Nos. 561 and 562, Julian Ortillano was found guilty as an accessory. He
fired his M-16 armalite whenever Martin Mandolado fired his machine gun and this
could be for no other purpose than to conceal or destroy the body of the crime in
making it appear the victims were fighting them or running away or that somebody else
 like the MNLF, rebels, NPA or bandits committed the crime. Furthermore, in his own
admission, the purpose of their attempt to leave Mindanao for Bulacan after this
incident was to hide and wait for the time when Martin Mandolado could succeed in
settling this case which is evidence that he assisted in the escape of the principal of the
crime.

He is hereby sentenced in each of both cases to serve an imprisonment term of six (6)
years of Prision Correccional as the

minimum penalty, to seventeen (17) years of Prision Mayor as the maximum penalty.

Martin Mandolado and Julian Ortillano are to pay jointly and solidarily the cost of this
litigation.

SO ORDERED.

Given in the City of Cotabato, Philippines, the 28th day of June, 1979.

(SGD.)
ALEJAN
DRO R.
LEOPA
NDO
District
Judge

The facts are as stated in the People's Brief as follows:

In the morning of October 3, 1977, Julian Ortillano, Martin Mandolado, Conrado Erinada
and Anacleto Simon, trainees/draftees of the Armed Forces of the Philippines and
assigned to the 3rd Infantry Battalion of the Philippine Army, were passengers of a bus
bound for Midsayap, North Cotabato (p. 8, t.s.n., Feb. 21, 1979). They alighted at the
bus terminal in Midsayap. Being all in uniform, armed and belonging to the same
military outfit, they got acquainted and decided to drink ESQ rum, at the said bus
terminal (pp. 10-11, Supra).

While drinking, Conrado Erinada and Anacleto Simon decided to join appellants in going to Pikit, North
Cotabato, home base of appellants (p. 59, Id.). After drinking for about an hour, appellant Mandolado
got drunk and went inside the public market. Subsequently, he returned, grabbed his .30 caliber
machine gun and started firing. His companions tried to dissuade him but he nonetheless continued
firing his gun (pp. 11-12, Supra).

Sensing trouble, Conrado Erinada and Anacleto Simon ran away, hailed and boarded a passing Ford Fiera
with some passengers on board. Appellants followed and boarded also the vehicle (pp, 13-15, Supra).
The soldiers forced the driver of the Ford Fiera to bring them to the Midsayap crossing (p. 58, t.s.n., July
24,1978).
On their way, appellant Mandolado got his knife and tried to attack the driver (pp. 61-62, Supra). After
appellants alighted at said crossing, the Ford Fiera sped away. Appellant Mandolado fired his .30 caliber
machine gun at the speeding vehicle (p. 51, t.s.n., Jan. 17, 1979) hitting the right side of the back of the
driver's sister who was then on board said vehicle (p. 64, t.s.n., July 24, 1978).

While waiting for a ride at the Midsayap crossing a privately owned jeep, driven by Herminigildo
Tenorio, passed by. On board said jeep which was bound for Cotabato City were Nolasco Mendoza and
two (2) others, but the latter two alighted at said crossing. Conrado Erinada and Anacleto Simon
boarded the jeep. Thereafter, appellants ran after the jeep, shout at Herminigildo Tenorio the driver
thereof, to stop the vehicle and subsequently, both appellants Mandolado and Ortillano boarded the
jeep (p. 34, Supra). On the way, both appellants kept firing their guns (pp. 54-55, t.s.n., Jan. 17, 1979)
prompting Herminigildo Tenorio to remark, "Kung hindi kayo tatahimik, ibabangga ko itong jeep" (Sworn
Statement, Exh. Q., Mandolado) which literally means, "if you will not stop firing your guns, I will ram
this jeep into something. "

Upon learning that the jeep was bound for Cotabato City and not Pikit, North Cotabato, appellant
Mandolado got angry, "cocked" his gun and ordered the driver to stop (pp. 36-38, Supra). While the jeep
was coming to a full stop, Conrado Simon and Anacleto Erinada immediately jumped off the jeep and
ran towards their detachment camp located some two hundred fifty meters away. Appellants also got
off the jeep. Thereupon, appellant Mandolado fired his .30 caliber machine gun at and hit the occupants
of the jeep (Sworn Statement, Exh. Q, Mandolado). Appellant Ortillano likewise, fired his armalite, not at
the occupants of said jeep but downwards hitting the ground. These bursts of gunfire were heard by
both Conrado Erinada and Anacleto Simon who were then already about fifty meters away from the
jeep while running towards their detachment camp (pp. 38 and 42, t.s.n., Feb. 21, 1979). Although it was
then raining torrentially, Anacleto Simon recognized the bursts of gunfire as those of a machine gun (p.
43, Supra).

Appellants ran away from the scene and boarded another vehicle, alighting at Pinaring crossing.
Appellant Mandolado proceeded to a house where he left his belongings and changed his wet uniform
(p. 104, Supra). After about an hour, they rode in a "Hino" passenger bus bound for Midsayap. On board
said bus was a certain Mr. Leopoldo Jalandoni who was seated in front of the appellants.

Upon reaching a BPH building near Nuling, Sultan Kudarat, the passengers of said bus were ordered to
alight at the military check point but appellant Mandolado did not alight (pp. 10-13, t.s.n., Oct. 5, 1975).
As the bus was not proceeding to Pikit, North Cotabato and upon advice of Mr. Jalandoni, appellants
alighted at the Midsayap crossing and waited for a bus bound for Pikit (pp. 19-20, Supra).

Appellants were able to ride on a sand and gravel truck which took them to Pikit, North Cotabato,
arriving thereat at about 3:00 o'clock in the afternoon. At their camp, appellants returned their firearms,
but did not report the incident. In the evening, appellants attended a party at the Pikit Elementary
School (pp. 32-35, t.s.n., April 16, 1979). The following day, appellants proceeded to Davao City but
stopped at Kavocan where they stayed overnight.

Arriving at Davao City, the following morning, appellants went to see a movie and afterwards proceeded
to the Office of Doña Ana, a shipping firm (p. 40, Supra), where they saw a certain Sgt. Villanueva who
was then leaving for Luzon. Sgt. Villanueva informed the appellants that they were suspects in the
Tenorio and Mendoza killings. Immediately thereafter, appellant Mandolado purchased two passenger
tickets for Manila. The other ticket was for appellant Ortillano (pp. 120-123, Supra). However, before
appellants could board the ship bound for Manila, they were apprehended by a team led by Lt. Licas (p.
45, Supra). Appellants were brought to Pikit, North Cotabato where they were investigated by Lts. Licas
and Maburang about the aforesaid killings. The following day, appellants were brought to the
headquarters of the 2nd MP Battalion at P.C. Hill, Cotabato City where they were again investigated. In
said investigation, after appellants were duly apprised of their constitutional rights, they executed and
signed their respective sworn statements (Exhs. "O" and "R"). Appellant Mandolado admitted the killing
of Tenorio and Mendoza (Exh. "Q"); whereas appellant Ortillano admitted his presence at said killings
and of his having fired his armalite downwards after appellant Mandolado fired upon the killed the
afore-named victims (Exh. "R ").

Silverio Balderosa, on October 3, 1977, at about 12:30 p.m., was on board a "Pinoy" jeep. On his way
home to Midsayap, he passed a jeep parked along the highway towards the direction of Cotabato City
and about 250 meters away from the BPH building. The parked jeep was surrounded by several persons.
Alighting from the "pinoy" jeep, he went near the parked jeep to see what happened. He saw the lifeless
bodies of two persons, one sprawled along the highway whom he recognized as Nolasco Mendoza and
the other whom he recognized as Mr. Tenorio slumped on the wheel of the parked jeep (pp. 13-15,
t.s.n., July 24, 1978).

The postmortem examination conducted by Dr. Taeb Zailon, Municipal Health Officer of Sultan Kudarat,
Maguindanao, upon the bodies of Tenorio and Mendoza on October 3, 1977, were reduced into writing
and reads as follows:

POST-MORTEM EXAMINATION REPORT

Post-mortem examination was performed at the Rural Health Center, Sultan Kudarat, Maguindanao on
October 3, 1977 at around 3:30 p.m. in the presence of police officers of Sultan Kudarat, Maguindanao
and personnel of the Health Center and other persons in the vicinity.

PERTINENT PERSONAL DATA:

Name: HERMINIGILDO TENORIO

Sex: Male

Age: 55 yrs. old

Height: 5'5'

Weight: 145 lbs.

C.S.: Married

Residence: Midsayap, N. Cotabato

Place of Death: Sultan Kudarat, Maguindanao

POST-MORTEM EXAMINATION FINDINGS

1. Avulsed cranial content at the level of forehead including eyeballs;

2. Wound-circular lacerate 3 inches in diameter T-T at lateral side of right deltoie region;

3. Wound-1 in. circular wound at the right forearm T-T 4 inches below the elbow;

4. Comminuted fracture at right leg just below the knee cap;

5. Comminuted fracture at right leg just above ankle;

6. Wound-1 in. circular non-penetrating at lateral side left arm;

7. Wound-1/2in.circularnon-penetrating at left region.

PROBABLE CAUSE OF DEATH

Hemorrhage severe secondary to multiple gunshot wounds.

Respectfully submitted:

(SGD.) TAEB ZAILON, M.D.

Municipal Health Officer
Sultan Kudarat, Maguindanao (Exh. "N")

POST-MORTEM EXAMINATION REPORT

Post-mortem examination report was performed at the Rural Health Center, Sultan Kudarat,
Maguindanao on October 3, 1977 at 3:30 p.m. in the presence of police officers, personnel of the health
center and other civilians.

PERTINENT PERSONAL DATA:

Name: NOLASCO MENDOZA

Sex: Male

Age: 45 years old

Height: 5'4"

Weight: 135 lbs.

C.S.: Married

Residence: Midsayap, North Cotabato

Place of Death: Sultan Kudarat, Maguindanao

POST-MORTEM EXAMINATION FINDINGS

1. Wound -Circular, one inch wide, one inch above right eyebrow;

2. Wound-Circular, 1/2 inch wide, lateral part of left side of neck:

3. Wound-Circular, 3/4 inch wide, upper aspect of right deltoid muscle;

4. Wound-Circular, 1 1/2 inch wide, lateral aspect of right deltoid muscle; and

5. Wound-Circular, 1 1/2 inch wide, lateral aspect of right breast 3 inches below arm pit.

PROBABLE CAUSE OF DEATH

Wounds, gunshot, multiple shock, secondary hemorrhage, external-internal, extensive

Respectfully submitted:

(SGD.) TAEB A. ZAILON, M.D.

Municipal Health Officer
Sultan Kudarat, Maguindanao (Exh. "P")

Acting upon the letter request of the commanding officer, Lt. Rodolfo Villanueva, a ballistic test was
conducted by Sgt. Leon Platoon of the P.C. Crime Laboratory at Cotabato City, on the firearms issued to
appellant Mandolado, Anacleto Simon and Conrado Erinada. In said test, bullets were fired from said
guns and the empty shells, called test specimen (T05-1 to T-05-3), together with the empty shells
recovered from the scene of the crime called specimen evidence, and the 10 links of cal. 30 machine
gun, were forwarded to Camp Crame for Ballistic Examination (pp. 20-24, t.s.n., October 6, 1978). Sgt.
Platoon marked the 8 shells of .30 caliber recovered from the scene of the crime as HT-1 to HT-8 and the
armalite shells as CM-9 to CM-13.

In the ballistic examination conducted by Reynaldo Pasatiempo of the Camp Crame Criminal Laboratory,
it was found that the caliber .30 shells recovered from the scene of the crime (Exh. "HT-1" to "HT-8 ")
reveal Identical impressions as the test specimens of five empty shells ("T-05-1 to "T-05-3 ") fired from
appellant Mandolado's machine gun. Whereas the armalite shells recovered from the scene of the crime
reveal non-identical impressions with the shells fired from the armalites of Conrado Simon and Anacleto
Erinada. He then concluded that the .30 caliber shells recovered from the scene of the crime were fired
from the same machine gun issued to appellant Mandolado (pp. 60-62, t.s.n., October 6, 1978).

Appellants submit only one assigned error and that is, that the trial court erred in convicting appellants
Martin Mandolado and Julian Ortillano beyond reasonable doubt as principal and accessory,
respectively, of the crimes charged on the strength of the prosecution's evidence totally disregarding
the evidence of the defense. Appellants contend that their guilt was not proven beyond reasonable
doubt inasmuch as the circumstantial evidence of the prosecution merely proved the fact of the deaths
of Tenorio and Mendoza and not as to the actual perpetrators of the crime; that the evidence of the
prosecution being weak on its own, the only link of the appellant Mandolado to the killings is his extra-
judicial sworn confession, Exhibit "Q", which he stoutly repudiates for being unlawfully taken under
force and duress and in the failure of the investigator to apprise him of his constitutional right to remain
silent and to be assisted by counsel.

It is contended by the defense that although the ballistic expert and the firearm examiner testified that
they conducted ballistic and firearm examinations, respectively and that their finding was that the
caliber .30 empty shells were fired from the machine gun issued to Martin Mandolado, the prosecution
failed to prove that the "evidence specimen" (Exh. "HT-1" " to Exh. "HT-8") were the empty shells
recovered from the scene of the crime, the prosecution not having presented any witness who
recovered these empty shells. It was not shown that these empty shells were recovered from the scene
of the crime nor that the slugs of these empty shells caused the gunshot wounds which resulted in the
death of the victims, Hence, the only link of appellant Martin Mandolado with the empty caliber .30
shells was the fact that these shells were fired from his machine gun, yet the records disclose that
Mandolado accidentally fired his machine gun at the Mintranco Terminal in Midsayap, North Cotabato,
which is not the scene of the crime, when he threatened the person who tried to steal his bag.

Appellant Mandolado's claim that he was not previously apprised of his constitutional rights before he
executed his extra-judicial confession, Exh. "Q ", deserves scant consideration. His claim is clearly belied
by the opening statements appearing in his sworn statement, which reads, thus:

Preliminaries: Dft Martin Mandolado please be informed that you are now under
investigation by this unit in connection with the Shooting incident that happened at
National Highway particularly near the vicinity of the BPH Office at Sultan Kudarat,
Maguindanao on or about 031300H October 1977. Before I ask you any questions, you
must understand your legal rights to wit: You have the right to remain silent. Anything
you say maybe used for or against you as evidence. You have the right to the services of
a lawyer of your own choice. If you cannot afford a lawyer and you want one, a lawyer
will be appointed for you before I ask you any questions.

Question: Are these all clearly understood by you?

Answer: Yes, sir.

2. Q— Do you wish now to proceed with this investigation ever. in the

absence of a lawyer of your own choice?

A— Yes sir.

3. Q— Are you willing to give your statement without being forced,

coerced, intimidated or promised of any reward whatsoever?

A— Yes sir.

4. Q— Now that you are about to testify under oath, do you swear to
tell the truth?

A— Yes sir.
 WAIVER

I have been advised of my legal right to remain silent; that anything I say maybe used as
evidence against me, and that I have the right to a lawyer to be present with me while I
am being questioned.

I understand these rights and I am willing to make a statement and answer to questions.
I do not want the assistance of a counsel and I understand and know what I am doing.
No promises or threats have been made to me and no force or pressure of any kind
have been used against me.

(SGD.)
MARTI
N A.
MAND
OLADO
Dft
07A-
2853
PA
(Affiant
)

And with respect to the accused-appellant Julian Ortillano, the same preliminary questions were made
to him before his investigation and he answered similarly as his co-accused Mandolado which is shown
in Exhibit "R" and said Ortillano likewise executed the same waiver as that of his co- accused, which is
marked Exhibit "R-A".

The contention of both appellants that they signed their sworn statements (Exhibits Q and R) because
they were maltreated and forced, cannot be believed, not only for failure on their part to present any
evidence of compulsion, duress or violence but also because they even failed to Identify their
investigators who allegedly inflicted maltreatment to them, much less complained to the officials who
administered the oaths to their sworn statements of such maltreatment, if any. Moreover, the sworn
statements themselves contain significant and important details which the affiants alone could have
furnished, thereby clearly revealing the voluntariness of said statements and rendering the same
admissible as evidence. (People vs. Rosales, 108 SCRA 339; People vs. Regular, 108 SCRA 23, 39; People
vs. Tintero, 111 SCRA 714; People vs. Estero, 91 SCRA 93,99).

The conviction of appellant Mandolado for double murder appears to be based not only on his extra-
judicial confession (Exhibit Q) but also upon the following circumstances which proved that he did shot
and kill the victims, Tenorio and Mendoza, beyond peradventure of doubt. And these are listed in the
People's Brief, to wit: "(1) he repeatedly fired his .30 caliber machine gun while intoxicated at the bus
terminal in Midsayap (pp. 11-12, t.s.n., February 21, 1979); (2) that he fired at the Ford Fierra which took
them in the Midsayap junction (p. 51, Supra) hitting one of its passengers (p. 64, t.s.n., July 24, 1978); (3)
that Anacleto Simon while running away from the jeep driven by the deceased, heard a burst of machine
gun fire coming from the direction of the jeep (p. 42, t.s.n., February 21, 1979); (4) the result of the
Ballistic examination showing that the shells recovered from the scene of the crime were fired from the
gun issued to appellant Mandolado (pp. 60-62, t.s.n., October 16, 1978); (5) the attempted flight of both
appellants from justice (pp. 120-123, t.s.n., April 16, 1979) and which act clearly indicates guilt for the
'wicked teeth where no man pursueth but the righteous are as bold as the lion, and lastly (6) appellant's
own admission before the lower court that he killed Tenorio and Mendoza although he claims the same
to be accidental (pp. 7-8, t.s.n., October 6, 1978). "

The killing of the two victims in the case at bar is correctly qualified as murder, there being present the
qualifying circumstance of treachery which is alleged in the informations. There is treachery when the
offender commits any of the crimes against the person, employing means, methods or forms in the
execution thereof which tend directly and specially to insure its execution, without risk to himself arising
from the defense which the offended party might make. (Art. 14, paragraph 16, Revised Penal Code).
The prosecution evidence is quite clear and explicit that when appellants alighted from the jeep, the
accused Mandolado immediately fired his .30 caliber machine gun at the occupants of the jeep, the
victims Nolasco Mendoza and Herminigildo Tenorio, and both of them died instantaneously on the spot,
and from this sudden means or manner of attack, it can reasonably be concluded that it tended directly
to insure its execution without risk to the appellant-assailant and also deprive the victims of any chance
or opportunity to defend themselves. We also rule that the particular means or manner employed by
the appellant-assailant was consciously or deliberately sought and not a mere accidental circumstance
resorted to on the spur of the moment on the basis of the evidence that the appellant had previously
and repeatedly fired his .30 caliber machine gun at the bus terminal in Midsayap and had also fired the
machine gun at the Ford Fiera which took them to Midsayap junction and that appellants waited for
sometime riding on board the jeep driven by Tenorio before they ordered the jeep to stop, alight
therefrom and then shoot the occupants therein.

While the informations allege as aggravating circumstances that of evident premeditation and the use of
superior strength, aside from treachery, We cannot agree with the finding of the trial court that the
aggravating circumstances of (1) advantage was taken of his being a Draftee in the Philippine Army, and
(2) abuse of confidence or obvious ungratefulness were present in the commission of the crime.

While it may be true that a soldier in the Armed Forces of the Philippines is deemed as one who holds
public position (U.S. vs. Gimenea, 24 Phil. 464, where a constabulary soldier was held to be a public
officer), there is no persuasive showing that herein appellants being draftees of the Army, in full military
uniform and carrying their high-powered firearms, facilitated the commission of the crimes they were
charged. It may be conceded that as draftees, the accused could easily hitch hike with private vehicles,
as in the case of the deceased Tenorio's owner-type jeep, but there is no evidence that when they
stopped the jeep the accused already intended to shoot the occupants of the vehicle. As it was held in
People Pantoja, 25 SCRA 468, 471 which We reiterate that "There is nothing to show that the appellant
took advantage of his being a sergeant in the Philippine Army in order to commit the crimes. The mere
fact that he was in fatigue uniform and had an army rifle at the time is not sufficient to establish that he
misused his public position in the commission of the crimes ... "

There is also merit in appellants' contention that there could be no abuse of confidence as the evidence
on record showed the lack of confidence by the victims to the appellants, that this confidence was
abused, and that the abuse of the confidence facilitated the commission of the crimes. In order that
abuse of confidence be deemed as aggravating, it is necessary that "there exists a relation of trust and
confidence between the accused and one against whom the crime was committed and the accused
made use of such a relationship to commit the crime." (People vs. Comendador, 100 SCRA 155, 172). It is
also essential that the confidence between the parties must be immediate and personal such as would
give that accused some advantage or make it easier for him to commit the crime; that such confidence
was a means of facilitating the commission of the crime, the culprit taking advantage of the offended
party's belief that the former would not abuse said confidence (People vs. Hanasan, 29 SCRA 534). In the
instant case, there is absolutely no showing of any personal or immediate relationship upon which
confidence might rest between the victims and the assailants who had just met each other then.
Consequently, no confidence and abuse thereof could have facilitated the crimes.

Similarly, there could have been no obvious ungratefulness in the commission of the crime for the
simple reason that the requisite trust of the victims upon the accused prior to the criminal act and the
breach thereof as contemplated under Article 14, par. 4 of the Revised Penal Code are manifestly lacking
or non-existent. In all likelihood, the accused Army men in their uniforms and holding their high-
powered firearms cowed the victims into boarding their jeep for a ride at machine gun point which
certainly is no source of gratefulness or appreciation.

The finding of the trial court that: "There is no doubt about Martin Mandolado's state of intoxication. He
was so drunk that even his three (3) companions armed with M-16 armalite feared him. The same thing
was true with the MPs," should credit said accused with the mitigating circumstance of drunkenness but
which the trial court decision failed to appreciate in his favor. Accordingly, the penalty to be imposed
upon the accused-appellant Mandolado shall be reduced in the computation thereof.

With respect to the accused-appellant Julian Ortillano who was found guilty as an accessory in Criminal
Cases No. 561 and No. 562 for having fired his M-16 armalite whenever Martin Mandolado fired his
machine gun and, according to the court, this could be for no other purpose than to conceal or destroy
the body of the crime and making it appear that the victims were fighting them or running away or that
somebody else like the MNLF, rebels, NPA or bandits committed the crime, and for assisting in the
escape of the principal Martin Mandolado) of the crime and sentenced in each of both cases to serve
imprisonment for a term of six (6) years of prision correccional as minimum to seventeen (17) years
of prision mayor as maximum, We find and hold that the accused-appellant Julian Ortillano should be
convicted, not as an accessory, but as an accomplice.

An accomplice cooperates in the execution of the offense by previous or simultaneous acts, provided he
has no direct participation in its execution or does not force or induce others to commit it, or his
cooperation is not indispensable to its accomplishment (Art. 18, Revised Penal Code).

To hold him liable, upon the other hand, as an accomplice, it must be shown that he had
knowledge of the criminal intention of the principal, which may be demonstrated by
previous or simultaneous acts which contributes to the commission of the offense as aid
thereto whether physical or moral (People vs. Silvestre, et al., 56 Phil, 353, 356). As aptly
stated in People vs. Tamayo (44 Phil. 38, 49): 'It is an essential condition to the existence
of complicity, not only that there should be a relation between the acts done by the
principal and those attributed to the person charged as accomplice, but it is further
necessary that the latter, with knowledge of the criminal intent, should cooperate with
the intention of supplying material or moral aid in the execution of the crime in an
efficacious way. (People vs. Custodia, 47 SCRA 289,303 [19721).

In the case at bar, Ortillano, by his acts, showed knowledge of the criminal design of Mandolado. He was
present when Mandolado tried to attack the driver of the Ford Fierra with a knife and fired at the
vehicle hitting a female passenger (p. 4, Decision). When Mandolado got angry and "cocked" his gun and
ordered Tenorio to stop the jeep, their two other companions, Simon and Erinada, immediately jumped
off the jeep and ran away, but Ortillano stayed. In a display of unity with Mandolado, Ortillano fired his
armalite while they were riding in the jeep of the victim (p. 5, Decision). And Ortillano's act of firing his
gun towards the ground manifested his concurrence with the criminal intent. In other words, Ortillano's
simultaneous acts supplied, if not material, moral aid in the execution of the crime in an efficacious way.
Ortillano's presence served to encourage Mandolado, the principal, or to increase the odds against the
victims (U.S. vs. Guevara, 2 Phil. 528 [1903]; People vs. Silvestre and Atienza, 56 Phil. 353 [1931]).

In convicting the accused Ortillano as an accomplice, We, however, appreciate the mitigating
circumstance of drunkenness in his favor, the same as We did to his co-accused Martin Mandolado, the
principal defendant.

In resume, the crime committed by the accused-appellant Martin Mandolado is murder, qualified by
treachery. There being no aggravating circumstance but having found and appreciated drunkenness
which is not habitual as a mitigating circumstance, the penalty prescribed under Article 248 of the
Revised Penal Code which is reclusion temporal in its maximum period to death shall be imposed in its
minimum period. Applying the Indeterminate Sentence Law, the accused shall be sentenced to
imprisonment of ten (10) years and one (;) day of prision mayor as minimum to seventeen (17) years,
four (4) months and one (1) day of reclusion temporal as maximum in each case.

As to the accused-appellant Julian Ortillano, convicted as an accomplice to the crime of murder, and
appreciating in his favor the mitigating circumstance of drunkenness which is not habitual, the penalty
to be imposed upon him shall be one degree lower than that imposed for murder (Article 52, Revised
Penal Code), which will be in the minimum period. Applying the Indeterminate Sentence Law, the
accused Ortillano shall be sentenced to imprisonment of four (4) years, two (2) months of prision
correccional as minimum to ten (10) years and one (1) day of prision mayor as maximum in each case.

With respect to damages, for the death of Herminigildo Tenorio, the award of P12,000.00 as
compensatory damages and P 20,000.00 for moral damages is hereby affirmed.

For the death of Nolasco Mendoza, We reduce the award of P50,000.00 as compensatory damages to
P12,000.00 We also reduce the award of P100,000.00 as moral damages to P20,000.00.

The liability of the appellants for the above damages which shall be paid to the heirs of the victims shall
be in solidum (Article 110, par. 1, Revised Penal Code).

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of the trial court is hereby MODIFIED. The
accused-appellant Martin Mandolado is hereby found guilty beyond reasonable doubt of the crime of
murder in Criminal Case No. 561 for the killing of Nolasco Mendoza and in Criminal Case No. 562, for the
killing of Herminigildo Tenorio. There being no aggravating circumstance but having found and
appreciated drunkenness which is not habitual as a mitigating circumstance, said accused is hereby
sentenced to suffer imprisonment of ten (10) years and one (1) day of prision mayor as minimum to
seventeen (17) years, four (4) months and one (1) day of reclusion temporal as maximum in each of the
two cases.

The accused-appellant Julian Ortillano is hereby found guilty beyond reasonable doubt as accomplice in
the crime of murder in Criminal Case No. 561 for the killing of Nolasco Mendoza and in Criminal Case
No. 562 for the killing of Herminigildo Tenorio. Similarly, there being no aggravating circumstance but
having found and appreciated the mitigating circumstance of drunkenness which is not habitual in his
favor, said accused is hereby sentenced to suffer imprisonment of four (4) years, two (2) months
of prision correccional as minimum to ten (10) years and one (1) day of prision mayor as maximum in
each case.

In Criminal Case No. 561 for the killing of Nolasco Mendoza, We sentence both accused to pay the heirs
of the victim P12,000.00 as compensatory damages and P20,000.00 as moral damages. The liability of
the accused shall be in solidum.

In Criminal Case No. 562 for the killing of Herminigildo Tenorio, We sentence both accused to pay the
heirs of the victim P12,000.00 as compensatory damages and P20,000.00 for moral damages. The
liability of the accused shall also be in solidum.

Costs against the appellants. Judgment modified.

SO ORDERED.

12. People v. Garcia, G.R. No. L-30449, 31 October 1979

G.R. No. L-30449 October 31, 1979

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO GARCIA Y CABARSE alias "TONY MANOK" and REYNALDO ARVISO V REBELLEZA alias "RENE
BISUGO," defendants-appellants.

Wenceslao B. Trinidad for appellants.

Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and Solicitor Adolfo J.
Diaz for appellee.

ABAD SANTOS, J.:

This is an appeal from the decision of April 17, 1969 by the Circuit Criminal Court at Pasig, Rizal, which
found the accused guilty of murder and sentenced them to the death penalty.

The legal verdict hinges on the testimony of the lone eyewitness for the prosecution, Mrs. Corazon
Dioquino Paterno, sister of the deceased, Apolonio Dioquino, Jr. She testified that at the time of the
incident, she resided at Ventanilla Street, Pasay City. She lived at Pasay City for about five months before
moving to another dwelling at Timog Avenue, Quezon City. While residing at Pasay City, she conceived a
child and during this period, it was not unusual for her, accompanied by her husband, to step out of the
house in the wee hours of the morning. They set out on these irregular walks about five times.

During her residence at Pasay City, her brother Apolonio visited her family for about twenty times.
Sometimes her brother would stay instead at their parents' house at Muntinlupa, Rizal. He usually spent
his weekends in his residence at Bo. Balubad, Porac, Pampanga. Apolonio and her husband were very
close to each other; whenever Apolonio paid them a visit, he usually slept in the house and sought their
help on various problems.

Before the incident which gave rise to this case, Corazon's husband informed her that he saw Apolonio
engaged in a drinking spree with his gang in front of an establishment known as Bill's Place at M. de la
Cruz Street. Pasay City. In her sworn statement before the Pasay City Police executed on November 3,
1968, Corazon surmised that her husband must have been painting the town red ("nag good time") in
that same place. Upon learning this information from her husband, Corazon obtained permission to
leave the house at 3:00 a.m. so she could fetch her brother. At that time, she had not been aware that
Apolonio was in Pasay City; she had been of the belief that he was with his family in Pampanga. She
went to fetch him because she wanted him to escape the untoward influence of his gang. In explaining
the rationale for her noctural mission, she employed in her sworn statement the following language:
"Dahil itong si Junior ay meron na kaming nabalitaan na naaakay ng barkada niya sa paggawa ng hindi
mabuti."

On her way, as she rounded the corner of P.C. Santos Street, Corazon saw her brother fleeing a group of
about seven persons, including the two accused, Antonio Garcia and Reynaldo Arviso. She recognized
the two accused because they were former gangmates of her brother; in fact, she knew them before the
incident by their aliases of "Tony Manok" and "Rene Bisugo, " respectively.

Corazon saw that the chase was led by the two accused, with Antonio carrying a long sharp instrument.
Later, in the course of giving her sworn statement before the Pasay City Police on , November 3, 1968,
Corazon positively Identified Antonio and Reynaldo, who were then at the office of the General
Investigation Section, Secret Service Division, Pasay City Police Department. She also stated that if she
saw the other members of the group again, perhaps she could likewise Identify them. At the trial,
Corazon likewise pointed out the two accused. During the incident, she exerted efforts to Identify the
other group members, taking care to conceal herself as she did so. She heard a gunshot which caused
her to seek cover.

When she ventured to look from where she was hiding, about 20 meters away, she saw the group catch
up with her brother and maltreat him. Some beat him with pieces of wood, others boxed him.
Immediately afterwards, the group scampered away in different directions. Antonio was left behind. He
was sitting astride the prostrate figure of Apolonio, stabbing the latter in the back with his long knife.
Corazon was not able to observe where Antonio later fled, for she could hardly bear to witness the
scene.

When Corazon mustered the courage to approach her brother, she saw that he was bathed in a pool of
his own blood. The incident threw her in a state of nervous confusion, and she resolved to report the
incident to her younger sister, who lived at Lakandula Street, Pasay City. Her sister in turn decided to
break the news to their father at Muntinlupa.

Subsequently, Corazon learned that the police authorities were searching for her brother's gangmates
for having killed him. She also learned that the suspects were in hiding. On the same day — October 19,
1968 — accompanied by her family, she went at 2:00 p.m. to the Police Department to inquire about
her brother's corpse. They were directed to the Funeraria Popular, where an autopsy was held.
Sometime later, on November 1, 1968, she transferred residence to Quezon City.
Dr. Mariano Cueva, Jr. testified that he conducted a post-mortem examination on the cadaver of the
decedent Apolonio, and that he prepared the corresponding Necropsy Report. Dr. Cueva found that the
deceased suffered 22 stab wounds in the different portions of his hips; in the front portion of the chest
and neck; in the back portion of the torso; and in the right hand. He testified that the wounds sustained
by the deceased brought about a massive hemorrhage which caused death. He also testified that it is
possible that the instrument marked as Exhibit "B" could have been used in inflicting the multiple stab
wounds sustained by the deceased, except the stab wounds on the neck.

Both the accused took refuge in the defense of alibi. Antonio Garcia claimed that at that time of the
incident — starting with the chase and ending with the victim's death — in the morning of October 19,
1968, he was at a place called Pacita's Canteen which adjoins Bill's Place at M, de la Cruz Street.
Reynaldo Arviso claimed that in the evening of the preceding night (October 18, 1968) he went on a
drinking spree with his friends at Pacita's Canteen. He went home at 10:30 p.m. and slept up to 7:00
a.m. of October 19, 1968. From 7:00 a.m. of that day, he performed his duties as a bus conductor by
calling for passengers near Pacita's Canteen.

The trial court pinpointed the issue as revolving around the Identity of the persons who participated in
the killing of the deceased. it banked on the testimony of the witness, Corazon Dioquino, who positively
Identified the accused as participants in the attack. Noting that "the defense did not even attempt to
present any evil motive on the part of the witness," the court concluded that "the two accused took part
in the perpetuation of the crime charged." It gave short shrift to the defense of alibi presented by the
two accused, noting that, by their own admission, the two accused were residents of the vicinity of the
crime.

In respect of the circumstances attending the crime it said:

But considering the aggravating circumstances of nighttime; superior strength; and

treachery, which three aggravating circumstances had been sufficiently established by
the prosecution, the same cannot be offset by said voluntary surrender to a person in
authority of his agent, plus the uncontested fact that deceased, Apolonio Dioquino, Jr.
suffered no less than 22 stab wounds, convincing evidence of the apparent criminal
perversity of the accused, the court, therefore, has no alternative but to impose the
supreme penalty.

And rendered judgment as follows:

IN VIEW OF THE FOREGOING, the Court finds the accused, Antonio Garcia v Cabarse and
Reynaldo Arviso y Rebelleza, GUILTY, beyond reasonable doubt, of the crime of Murder
under Article 248, of the Revised Penal Code, as charged under Article 248, of the
Revised Penal Code, as charged in the information, and considering the aggravating
circumstances surrounding the commission of the crime, each one of them is hereby
sentenced to suffer the penalty of DEATH.

The two accused are further ordered to indemnify, the heirs of the deceased, Apolonio
Dioquino, Jr. in the amount of TWELVE 'THOUSAND (P12,000,00) PESOS, jointly and
severally and to pay their proportionate share of the costs.
In their Brief, the accused contended that the lower court erred: in not considering nighttime and
superior strength as absorbed in treachery: in finding nighttime as an aggravating circumstance despite
absolute absence of evidence that nighttime was purposely sought to insure the execution of the crime;
in finding superior strength as an aggravating circumstance despite absence of evidence to sustain such
a finding; in finding treachery as an aggravating circumstance despite absence of evidence to that effect;
in not stating the qualifying circumstance of the alleged crime; in holding that the accused Reynaldo
Arviso stabbed and hit the victim when there is no evidence as to the participation of the said accused
Arviso in the execution of the alleged crime; and in failing to consider the material inconsistencies,
prejudice and other circumstances in the uncorroborated testimony of the only eyewitness, rendering
said testimony not worthy of belief.

The assignment of errors by the accused is anchored on their attempt to discredit the lone eyewitness
for the prosecution, a function which, if successfully undertaken, would totally obliterate the nexus
between the accused and the crime. The defense vigorously maintained that the testimony of the only
eyewitness is a fabrication, and that she was in fact absent from the scene which she described in both
her sworn statement and in her testimony at the trial.

The defense asserted that Corazon Dioquino's testimony was riddled by material inconsistencies. The
defense sought to capitalize on the discrepancy of a sketch made by Corazon and the sketch made by
Pasay City Electrical Engineer Jaime Arriola. Corazon's sketch shows Juan Sumulong Elementary School
to be right in front of P.C. Santos Street; while Arriola's sketch shows that the school is about 135 meters
from the corner of the street. The defense contended that the discrepancy was a deliberate falsehood
on the part of the witness,

Corazon testified that she was near the corner of P.C. Santos Street when she saw her brother under
chase in front of the school, and that she met the group in front of the school in a matter of five
seconds, more or less. The defense assailed her testimony on this point as incredible on the ground that
the distance between the point where she saw her brother being chased, up to the point where she met
them, is 135 meters, and no human being can cover that distance in five seconds. Moreover, Corazon
testified that she was 20 meters away from the place where the accused caught up with her brother.
Again, the defense criticized her testimony in this respect by pointing out that the true distance is 175
meters.

The defense insisted that Corazon's sketch of the locale of the crime (Exhibit "1") constitutes "the high
point of falsity of her testimony." The defense sought to substantiate this claim by arguing that from her
sketch, it appears that she never crossed paths with her brother or his pursuers. The witness testified
that she saw her brother at the point which is four to five meters from the corner of P.C. Santos Street.
Yet she also testified that she saw the incident from 20 meters. The witness claimed she hid after
hearing the shot at a point which is 170 meters from the scene of the crime. The defense argued that
she could not have covered the distance in such a short time, and that this belies her claim that she was
only 20 meters from the scene of the crime. The defense pointed out that Arriola's sketch (Exhibit "2")
shows that the school is 135 meters from the scene of the crime, and the point where the witness
claimed she viewed the crime is 170 meters from the scene of the crime thus giving the lie to her claim
that she was 20 meters away.

The alleged inconsistencies in Corazon's testimony — which the defense makes much of — are not
irreconcilable with the physical facts, At the outset, it should not be overlooked that Corazon was
testifying as an eyewitness to the traumatic incident by which her brother met a violent death at the
hands of a mob. Naturally, Corazon can not be expected to deliver a testimony which passes microscopic
scrutiny and scrupulous armchair analysis of the facts, conducted under circumstances far removed
from the turbulence and emotional color of the event as it actually transpired. Al contrario, if Corazon's
testimony were meticulously accurate with respect to distance covered and the time taken to negotiate
it, an impartial observer would wonder whether such exactitude were not the product of previous
rehearsal, if not of fabrication. In times of stress, the human mind is frequently overpowered by the ebb
and flow of emotions in turmoil; and it is only judicious to take into consideration the natural
manifestations of human conduct, when the physical senses are subdued by the psychological state of
the individual.

Corazon was a resident of Pasay City for only about five months. She testified that she is not familiar
with the streets along M. de la Cruz Street. Moreover, Corazon did not categorically testify that she
covered the distance of 135 meters in five seconds. Mole accurately, she testified that she walked for a
period of from five to ten seconds, more or less. Put in this way, the period was sufficient to allow her to
negotiate the distance. Moreover, Corazon did not stay rooted to one spot while the incident was taking
place, but surreptitiously edged her way up to Magtibay Street, which is closer to the place of the killing.

The defense also claims that the delay which Corazon allowed to transpire, before reporting the crime to
the authorities and giving her sworn statement (on November 3, 1968), is indicative of fabrication. The
killing took place before dawn of October 19, 1968, In the afternoon of the same day, Corazon and her
family went to the Police Department to inquire about the remains of her brother. Corazon already
knew that the police were taking steps to round up the killers. She incurred no fault in waiting until the
culprits were arrested before confronting them and giving her statement. It would have been the better
part of legal procedure if she had given her statement earlier; but since she was only a 22-year old
housekeeper at that tune, she can not be held to a higher standard of discretion.

The defense further contends that the failure to present Corazon's husband in court indicates that
Corazon was not actually at the scene of the crime at 3:00 o'clock in the morning. It the defense felt that
the husband had a contribution to make in the cause of truth, there was nothing which prevented them
from compelling his process by summons. This they failed to do; and their omission should not be taken
to reflect adversely on the prosecution, who evidently believed that the husband's testimony was
unnecessary,

Finally, the defense claims that it was unnatural for Corazon, after viewing her brother's body, to
proceed to her sister's house one kilometer away, instead of returning to her own house, which was just
a block or so away. It is not unnatural for a witness to a gruesome event, to choose to confer with a
person bound to her by ties of consanguinity, even if such a conference necessitates that she traverse a
longer distance. The exercise of judgment, on the spot, should not be gauged by reason applied in
hindsight with a metrical yard stick.

The next major burden which the defense undertook to assume was to contend that the accused
Reynaldo Arviso is innocent because there is no evidence as to his participation in the execution of the
crime. It is claimed that there is absolute absence of evidence to show that Reynaldo was a direct
participant and that the only evidence against him is that he was seen pursuing the victim. However, the
finding of Reynaldo's guilt stems, not from his direct participation in the criminal execution, but from his
participation in the conspiracy to kill the deceased. His participation in the conspiracy is supported by
Corazon's testimony that he and Antonio were the leaders of the pack following closely at the heels of
the victim.
It is well established that conspiracy may be inferred from the acts of the accused themselves, when
such acts point to a joint purpose and design. A concerted assault upon the victim by the defendants
may indicate conspiracy. (PP v. Monroy & Idica, L-11177, Oct. 30, 1958, 104 Phil. 759). Conspiracy exists
if, at the time of the commission of the offense, the defendants had the same criminal purpose and
were united in its execution. (PP v. Datu Dima Binahasing, L-4837, April 28, 1956, 98 Phil. 902). Those
who are members of the band of malefactors by which a murder is committed and are present at the
time and place of the commission of the crime, thus contributing by their presence to augment the
power of the band and to aid in the successful realization of the crime, are guilty as principals even if
they took no part in the material act of killing the deceased. (US v. Abelinde, No. 945, Dec. 10, 1902, 1
Phil. 568; People v. Carunungan, L-13283, Sept. 30, 1960, 109 Phil. 534). To establish conspiracy, it is not
essential that there be proof as to previous agreement to commit a crime. It is sufficient that the
malefactors have acted in concert, pursuant to the same objective. (PP vs. San Luis, L-2365, May 29,
1950, 86 Phil. 485).

Conspiracy need not be established by direct evidence of acts charged, but may and generally must be
proven by a number of indefinite acts, conditions and circumstances which vary according to the
purpose to be accomplished. If it be proved that two or more persons aimed by their acts towards
accomplishment of the same unlawful object, each doing a part. so that their acts, though apparently
independent, were in fact connected and cooperative, indicating a closeness of personal association and
concurrence of sentiment, a conspiracy maybe inferred though no actual meeting among them to
concert is proven (PP v. Colman L-6652-54, Feb. 28, 1958, 103 Phil. 6). A conspiracy may be entered into
after the commencement of overt acts leading to the consummation of the crime. (PP v. Barredo, L-
2728, Dec. 29, 1950, 87 Phil. 800). Conspiracy implies concert of design and not participation in every
detail of execution (PP v. Carbonel, L-24177, March 15, 1926, 48 Phil. 868; PP v. Danan, L-1766, March
31, 1949, 83 Phil. 252).

When a group of seven men, more or less, give chase to a single unarmed individual running for his life,
and they overtake him and inflict wounds on his body by means of shooting, stabbing, and hitting with
pieces of wood, there is conspiracy to kill; and it does not detract from their status as conspirators that
there is no evidence of previous agreement, it being sufficient that their wills have concurred and they
labored to achieve the same end.

The defense submits that the failure of the lower court to specify the qualifying circumstance in the
crime of murder is violative of the Constitution and the Rules of Court. We find no such infirmity. Since
the principle concerned is "readily understood from the facts, the conclusion and the penalty posed., an
express specification of the statute or exposition of the law is not necessary." (People vs. Silo, L-7916,
May 25, 1956, 99 Phil. 216). In the absence of a specification by the trial court, the defense surmised
that the qualifying circumstance in this case is evident premeditation: but the defense argued that
evident premeditation was not shown. We agree. Under normal conditions, conspiracy generally
presupposes premeditation. But in the case of implied conspiracy, evident premeditation may not be
appreciated, in the absence of proof as to how and when the plan to kill the victim was hatched or what
time elapsed before it was carried out, so that it can not be determined if the accused had "sufficient
time between its inception and its fulfillment dispassionately to consider and accept the consequences."
There should be a showing that the accused had the opportunity for reflection and persisted in
executing his criminal design. (PP v. Custodia, L-7442, October 24,1955, 97 Phil. 698; PP v. Mendoza and
Sinu-ag, L-4146 and L-4147, March 28, 1952, 91 Phil. 58; PP v. Yturiaga, L-2816, May 31, 1950, 86 Phil.
534; PP v. Lozada, No. 46998, Nov. 16, 1940, 70 Phil. 525; PP v. Upao Moro, L-6771, May 28, 1957, Phil.
101 Phil. 1226; PP v. Sakam, No. 41566, Dec. 7, 1934, 61 Phil. 27: PP v. Peralta, L-19069, Oct. 29, 1968,
25 SCRA 759; PP v. Pareja, L-21937, Nov. 29, 1969, 30 SCRA 693).

Even in the absence of evident premeditation, the crime of murder in this case might still be qualified by
treachery, which is alleged in the information. But the defense argued that treachery was not present.
We are so convinced. It is an elementary axiom that treachery can in no way be presumed but must be
fully proven. (US v. Asilo, No. 1957, Jan. 30, 1905, 4 Phil, 175; US v. Arciga, No. 1129, April 6, 1903, 2 Phil.
110; PP v. Durante, No. 31101, Aug. 23, 1929, 53 Phil. 363; PP v. Pelago, L-24884, Aug. 31, 1968, 24 SCRA
1027), Where the manner of the attack was not proven, the defendant should be given the benefit of
the doubt, and the crime should be considered homicide only. (Carpio, 83 Phil. 509; Amansec, So Phil,
424).

In People vs. Metran (L-4205, July 27, 1951, 89 Phil. 543). the aggravating circumstances of aid of armed
men, abuse of superiority, and nocturnity, were considered as constituting treachery, which qualified
the crime as murder, since there was no direct evidence as to the manner of the attack. However, in this
case we believe that the correct qualifying circumstance is not treachery, but abuse of superiority. Here
we are confronted with a helpless victim killed by assailants superior to him in arms and in numbers. But
the attack was not sudden nor unexpected, and the element of surprise was lacking. The victim could
have made a defense; hence, the assault involved some risk to the assailants. There being no showing
when the intent to kill was formed, it can not be said that treachery has been proven. We believe the
correct rule is found in People vs. Proceso Bustos (No. 17763, July 23, 1923, 45 Phil. 9),
where alevosia was not appreciated because it was deemed included in abuse of superiority.

We find that abuse of superiority attended the offense, following a long line of cases which made this
finding on parallel facts Our jurisprudence is exemplified by the holding that where four persons
attacked an unarmed victim but there was no proof as to how the attack commenced and treachery was
not proven, the fact that there were four assailants would constitute abuse of superiority. (People vs.
Lasada, No. 6742, Jan. 26, 1912, 21 Phil. 287; US v. Banagale, No. 7870, Jan. 10, 1913, 24 Phil. 69).
However, the information does not allege the qualifying circumstance of abuse of superiority; hence,
this circumstance can only be Created as generic aggravating. (People v. Acusar, L-1798, Dee. 29, 1948,
82 Phil. 490; People v. Beje, L-8245, July 19, 1956, 99 Phil. 1052; People v. Bautista, L-23303, May 20,
1969, 28 SCRA 184).

The offense took place at 3:00 o'clock in the morning. It may therefore be said that it was committed at
night, which covers the period from sunset to sunrise, according to the New Civil Code, Article 13. Is this
basis for finding that nocturnity is aggravating? The Revised Penal Code, Article 14, provides that it is an
aggravating circumstance when the crime is committed in the nighttime, whenever nocturnity may
facilitate the commission of the offense. There are two tests for nocturnity as an aggravating
circumstance: the objective test, under which nocturnity is aggravating because it facilitates the
commission of the offense; and the subjective test, under which nocturnity is aggravating because it was
purposely sought by the offender. These two tests should be applied in the alternative.

In this case, the subjective test is not passed because there is no showing that the accused purposely
sought the cover of night time. Next, we proceed and apply the objective test, to determine whether
nocturnity facilitated the killing of the victim. A group of men were engaged in a drinking spree, in the
course of which one of them fled, chased by seven others. The criminal assault on the victim at 3:00 a.m.
was invited by nocturnal cover, which handicapped the view of eyewitnesses and encouraged impunity
by persuading the malefactors that it would be difficult to determine their Identity because of the
darkness and the relative scarcity of people in the streets. There circumstances combine to pass the
objective test, and e find that nocturnity is aggravating because it facilitated the commission of the
offense. Nocturnity enticed those with the lust to kill to follow their impulses with the false courage
born out of the belief that they could not be readily Identified.

The information alleges that the crime of murder was attended by the two qualifying circumstances of
treachery and evident premeditation. Neither of these qualifying circumstances was proved; hence, the
killing can not be qualified into murder, and constitutes instead the crime of homicide, which is
punished by reclusion temporal. It is not controverted that the accused voluntarily surrendered to the
authorities; they are therefore entitled to the mitigating circumstance of voluntary surrender. This lone
mitigating circumstance offset by the two generic aggravating circumstances of abuse of superiority and
nocturnity, produces the result that in the crime of homicide, one aggravating circumstance remains.

WHEREFORE, the judgment of the court a quo is hereby modified in that the two accused, Antonio
Garcia y Cabarse and Reynaldo Arviso y Rebelleza, are sentenced to undergo an indeterminate
imprisonment of 10 years as minimum to 18 years as maximum, but in all other respects affirmed.

SO ORDERED.

13. People v. Rodas, G.R. No. 175881, 28 August 2007

G.R. No. 175881 August 28, 2007

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ARMANDO RODAS1 and JOSE RODAS, SR.,2 Accused-Appellants.

DECISION

CHICO-NAZARIO, J.:

Assailed before Us is the Decision3 of the Court of Appeals in CA-G.R. CR-HC No. 00289 which affirmed in
toto the decision4 of the Regional Trial Court (RTC) of Sindangan, Zamboanga del Norte, Branch XI,
convicting accused-appellants Armando Rodas and Jose Rodas, Sr. of the crime of Murder.

For the death of one Titing Asenda, accused-appellant Jose Rodas, Sr., together with his sons Charlito,
Armando, and Jose Jr., all surnamed Rodas, were charged with murder in an information which reads:

That, in the evening, on or about the 9th day of August, 1996, in the municipality of Siayan, Zamboanga
del Norte, within the jurisdiction of this Honorable Court, the above-named accused, armed with a
hunting knife, firearm, chako and bolo, conspiring, confederating together and mutually helping one
another, with intent to kill, by means of treachery and evident premeditation, did then and there
willfully, unlawfully and feloniously attack, assault, beat, stab and hack one TITING ASENDA, thereby
inflicting upon him multiple wounds on the vital parts of his body which caused his death shortly
thereafter; that as a result of the commission of the said crime the heirs of the herein victim suffered
the following damages, viz:

a) Indemnity for victim’s death . . . ₱50,000.00

b) Loss of earning capacity . . . . . . . ₱30,000.00

₱80,000.00

CONTRARY TO LAW (Viol. of Art. 248, Revised Penal Code), with the aggravating circumstances of
nocturnity and abuse of superior strength.5

When arraigned on 22 November 1996, the four accused, assisted by counsel de oficio, pleaded not
guilty to the crime charged.6

By agreement of the parties, pre-trial conference was terminated on 6 December 1996.7 Thereafter, trial
on the merits commenced.

The prosecution presented five witnesses, namely: Alberto Asonda, Danilo Asenda, Ernie Anggot, Blessie
Antiquina and PO1 Pablo Yosores.

Before the prosecution could rest its case, accused Charlito Rodas8 and Jose Rodas, Jr. 9 withdrew their
previous pleas of "NOT GUILTY" and entered their respective pleas of "GUILTY" for the lesser crime of
Homicide. Both were sentenced to suffer the indeterminate penalty of 17 years, 4 months and 1 day to
20 years and were each ordered to indemnify the heirs of the victim in the amount of ₱12,500.00 as
damages.10

The prosecution formally offered Exhibits "A" to "H," inclusive, with sub-markings.11

From the evidence adduced, the prosecution’s version of the killing is as follows:

On 9 August 1996, Titing Asenda, a resident of Boyos, Sindangan, Zamboanga del Norte, was at Milaub,
Denoyan, Zamboanga del Norte, to help his brother, Danilo Asenda, in the harvesting of the latter’s
corn.

On the same day, at around 8:00 in the evening, a benefit dance at Milaub, which was sponsored by
Boboy Raquilme,12 was being held. Among those roaming in the vicinity of the dance hall were Alberto
Asonda and Ernie Anggot. They stopped and hung out near the fence to watch the affair. Titing Asenda
was standing near them. They saw Charlito Rodas, Armando Rodas, Jose Rodas, Jr., and Jose Rodas, Sr.
surround Titing Asenda. Suddenly, without a word, Charlito Rodas, armed with a hunting knife, stabbed
Titing at the back. Armando Rodas then clubbed Titing with a chako hitting him at the left side of the
nape causing him to fall. Thereafter, Jose Rodas, Sr. handed to Jose Rodas, Jr. a bolo which the latter
used in hacking Titing, hitting him on the left elbow. Alberto Asonda and Ernie Anggot tried to help
Titing but Armando Rodas prevented them by pointing a gun at them and firing it towards the sky.
After the assailants left, Alberto Asonda and Ernie Anggot approached Titing Asenda who was already
dead. They informed Danilo Asenda that his brother was killed. The police arrived the following day after
being informed of the incident.

On the part of the defense, accused-appellants Armando Rodas and Jose Rodas, Sr., and Vilma Rodas,
the former’s wife, took the witness stand. The defense rested its case without marking and offering any
documentary evidence.

Defense evidence showed that only Charlito Rodas and Jose Rodas, Jr. killed Titing Asenda. Appellant
Jose Rodas, Sr. denied any participation in the killing of Titing Asenda claiming he was not present in the
benefit dance and that he was in his home with his wife and infant granddaughter when the killing
happened. He revealed that on the night of the killing, his son, Charlito Rodas, who was carrying a
hunting knife, arrived and told him he killed somebody. He then brought his son to the municipal
building of Siayan to surrender him to the police authorities.

Appellant Armando Rodas likewise denied he was one of those who killed Titing Asenda. He claimed that
at the time of the killing, he was in his house sleeping with his children. He denied using a chako and
firing a gun. He insisted it was his brothers, Charlito and Jose Jr., who killed Titing Asenda because they
pleaded guilty.

To bolster the testimony of the appellants, Vilma Rodas testified that she was at the benefit dance when
the killing happened. Armando and Jose Sr., she claimed, did not participate in the killing. She said
Charlito stabbed Titing while Jose Jr. merely punched the victim.

On 9 July 1998, the trial court promulgated its decision finding accused-appellants Armando Rodas and
Jose Rodas, Sr. guilty of the crime of Murder. The decretal portion of the decision reads:

WHEREFORE, the Court finds the accused Jose Rodas, Sr. and Armando Rodas guilty beyond reasonable
doubt of MURDER as defined and penalized under the Revised Penal Code, as amended under Section 6
of Republic Act No. 7659 and hereby sentenced them to RECLUSION PERPETUA each and to indemnify
the heirs of the deceased, Titing Asenda, ₱12,500.00 each or a total of ₱25,000.00.

COST de oficio.13

In finding accused-appellants guilty, the trial court gave credence to the testimonies of eyewitnesses
Alberto Asonda and Ernie Anggot. It found accused-appellants and the other two accused conspired in
the killing of the victim and that treachery attended the same. It gave no weight to accused-appellants’
defense of alibi and denial arguing that they were positively identified as the perpetrators and that they
failed to adduce evidence that it was physically impossible for them to be present at the crime scene
when the killing happened. It added that their unsubstantiated denial will not be given greater
evidentiary value over the testimonies of credible witnesses who testified on affirmative matters.

With a Notice of Appeal14 filed by accused-appellants, the trial court forwarded the entire records of the
case to this Court.15 However, pursuant to our ruling in People v. Mateo,16 the case was remanded to the
Court of Appeals for appropriate action and disposition.

In its decision dated 28 July 2006, the Court of Appeals affirmed in toto the RTC’s decision.17
With the Court of Appeals’ affirmance of their convictions, accused-appellants are now before this Court
via a notice of appeal. With the appeal being timely filed, the records of the case were elevated to this
Court.

In our Resolution18 dated 19 February 2007, the parties were required to file their respective
supplemental briefs, if they so desired, within 30 days from notice. Accused-appellants manifested that
since they had already filed the Appellants’ Brief, as well as Reply and Supplemental Reply Brief, they are
dispensing with the filing of the Supplemental Brief because the latter will merely contain a reiteration
of the arguments substantially discussed in the former.19 On the part of the Office of the Solicitor
General, it manifested that considering that the guilt of the appellants had already been discussed in the
Appellee’s Brief, it was waiving its right to file a Supplemental Brief.20

Accused-Appellants assign as errors the following:

THE TRIAL COURT ERRED IN FINDING THAT ACCUSED-APPELLANTS WERE ALSO PRESENT AT THE
DANCE AND PARTICIPATED IN ATTACKING THE VICTIM.

II

ASSUMING ARGUENDO THAT THE ACCUSED ARE GUILTY, THEY ARE ONLY LIABLE FOR THE CRIME
OF HOMICIDE.

On the first assigned error, appellants contend that the testimonies of prosecution witnesses Alberto
Asonda and Ernie Anggot should not be believed because they did not see the start of the assault on
Titing, and all they saw was him injured and lying down on the floor. They insist that Asonda and Anggot
could not have seen the killing because only a Petromax lighted the place.

After a careful and meticulous review of the records of the case, we find no reason to reverse the
findings of the trial court, as affirmed by the Court of Appeals. We affirm appellants’ conviction.

We find the evidence of the prosecution to be more credible than that adduced by appellants. When it
comes to credibility, the trial court’s assessment deserves great weight, and is even conclusive and
binding, if not tainted with arbitrariness or oversight of some fact or circumstance of weight and
influence. The reason is obvious. Having the full opportunity to observe directly the witnesses’
deportment and manner of testifying, the trial court is in a better position than the appellate court to
evaluate properly testimonial evidence.21

It is to be noted that the Court of Appeals affirmed the findings of the RTC. In this regard, it is settled
that when the trial court’s findings have been affirmed by the appellate court, said findings are generally
conclusive and binding upon this Court.22 We find no compelling reason to deviate from their findings.

The Court finds that Alberto Asonda and Ernie Anggot witnessed the killing of Titing Asenda by Charlito
Rodas, Armando Rodas, Jose Rodas, Jr. and Jose Rodas, Sr. When Titing was killed, Asonda and Anggot
were near him. Contrary to the claim of the defense that the place where the killing occurred was not
lighted enough for the assailants to be identified, the place was sufficiently lighted by a Petromax as
testified to by Vilma Rodas.23

Appellants make a big issue about the absence of a medical examination. Should they be exonerated
because of this? The answer is no.

A medical examination or a medical certificate is not indispensable in the case at bar. Its absence will not
prove that appellants did not commit the cime charged. They can still be convicted by mere testimonial
evidence, if the same is convincing. In the case at bar, the testimonies of the two eyewitnesses, which
the Court found to be credible, are sufficient to prove the crime and its perpetrators.

Appellants’ defense of denial and alibi must likewise fail. Mere denial, if unsubstantiated by clear and
convincing evidence, has no weight in law and cannot be given greater evidentiary value than the
positive testimony of a victim.24 Denial is intrinsically weak, being a negative and self-serving assertion.25

Denial cannot prevail over the positive testimonies of prosecution witnesses who were not shown to
have any ill motive to testify against appellants. Absence of improper motive makes the testimony
worthy of full faith and credence.26 In this case, appellants, who were positively identified, testified that
Asonda and Anggot had no ill motive to testify against them.27 Moreover, ill motive has no bearing when
accused were positively identified by credible eyewitnesses. Motive gains importance only when the
identity of the culprit is doubtful.28

Appellants also interposed the defense of alibi. No jurisprudence in criminal law is more settled than
that alibi is the weakest of all defenses for it is easy to contrive and difficult to disprove, and for which
reason it is generally rejected.29 For the defense of alibi to prosper, it is imperative that the accused
establish two elements: (1) he was not at the locus criminis at the time the offense was committed; and
(2) it was physically impossible for him to be at the scene at the time of its commission.30 Appellants
failed to do so.

In the case at bar, both appellants claimed that on the night Titing Asenda was killed, they were one
kilometer away. Thus, it was not possible for them to have been at the scene of the crime when the
crime was committed. The defense witnesses, however, gave conflicting testimonies. Appellant
Armando said his residence was more or less one kilometer away from the crime scene31 but Jose Sr.
said it was only 50 meters away.32 Jose Sr.33 said the house of Charlito was only 50 meters away from the
crime scene but Armando said it was one kilometer away.34 Armando said his wife was in Dipolog City
when the killing happened,35 but his wife said she witnessed the killing.36 Armando said he and all the
other accused lived in separate houses,37 but his wife revealed that Charlito lives with Jose Sr.38 Vilma
Rodas said after the killing, she immediately went home and told Armando that his brothers killed
somebody39 but her husband said he only learned of it the next morning.40 What is more incredible is
the fact that despite the testimony of Vilma Rodas that she informed Armando of the killing, the latter
never testified to this effect. All these negate appellants’ claim that they were not at the crime scene
when the killing took place.

The information alleged that appellants, together with Charlito and Jose Jr., conspired in killing Titing
Asenda. Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons
agree to commit a crime and decide to commit it. It is hornbook doctrine that conspiracy must be
proved by positive and convincing evidence, the same quantum of evidence as the crime itself.41 Indeed,
proof of previous agreement among the malefactors to commit the crime is not essential to prove
conspiracy. It is not necessary to show that all the conspirators actually hit and killed the victim; what is
primordial is that all the participants performed specific acts with such closeness and coordination as to
indicate a common purpose or design to bring about the victim’s death.42 Once conspiracy is
established, all the conspirators are answerable as co-principals regardless of their degree of
participation. In the contemplation of the law, the act of one becomes the act of all, and it matters not
who among the accused inflicted the fatal blow on the victim.43

In this case, conspiracy was convincingly proven beyond reasonable doubt. All the accused had the same
purpose and acted in unison when they assaulted the victim. Surrounding the victim, Charlito stabbed
Titing Asenda at the back with a hunting knife. Armando next clubbed the victim with a chako, hitting
him on the left side of the nape, causing him to fall to the ground. Jose Sr. then handed a bolo to Jose Jr.
who used it in hacking the victim.

On the second assigned error, appellants argue that assuming arguendo they are guilty, they are liable
only for the crime of homicide, not murder. They contend that treachery was absent since they,
together with Charlito and Jose Jr., met the victim casually in the dance hall.

The qualifying circumstance of treachery attended the killing. The essence of treachery is the sudden
and unexpected attack by the aggressor on an unsuspecting victim, depriving the latter of any real
chance to defend himself, thereby ensuring its commission without risk to the aggressor, and without
the slightest provocation on the part of the victim.44 In People v. Villonez,45 we ruled that treachery may
still be appreciated even when the victim was forewarned of danger to his person. What is decisive is
that the execution of the attack made it impossible for the victim to defend himself or to retaliate.

In the case under review, the victim was completely unaware that he was going to be attacked.46 He was
not forewarned of any danger to himself as there was no altercation or disagreement between the
accused and the victim. If treachery may be appreciated even when the victim was forewarned, more so
should it be appreciated when the victim was not, as in the case at bar. The suddenness of the attack,
the number of the accused and their use of weapons against the unarmed victim prevent the possibility
of any defense or retaliation by the victim. The fact that the victim was already sprawled on the ground
and still Jose Jr. hacked him with a bolo clearly constitutes treachery.

The information also alleged that evident premeditation, nocturnity and abuse of superior strength
attended the killing.

For evident premeditation to be appreciated, the following elements must be established: (1) the time
when the accused decided to commit the crime; (2) an overt act manifestly indicating that he has clung
to his determination; and (3) sufficient lapse of time between decision and execution to allow the
accused to reflect upon the consequences of his act.47 Like any other circumstance that qualifies a killing
as murder, evident premeditation must be established by clear and positive proof; that is, by proof
beyond reasonable doubt.48 The essence of premeditation is that the execution of the criminal act was
preceded by cool thought and reflection upon the resolution to carry out the criminal intent during a
space of time sufficient to arrive at a calm judgment.49 In the case at bar, the prosecution failed to show
the presence of any of these elements.
The aggravating circumstance of nocturnity cannot be considered against appellants. This circumstance
is considered aggravating only when it facilitated the commission of the crime, or was especially sought
or taken advantage of by the accused for the purpose of impunity. The essence of this aggravating
circumstance is the obscuridad afforded by, and not merely the chronological onset of, nighttime.
Although the offense was committed at night, nocturnity does not become a modifying factor when the
place is adequately lighted and, thus, could no longer insure the offender’s immunity from identification
or capture.50 In the instant case, the prosecution failed to show that nighttime facilitated the
commission of the crime, or was especially sought or taken advantage of by the accused for the purpose
of impunity. The crime scene was sufficiently lighted by a Petromax which led to the identification of all
the accused.

The aggravating circumstance of abuse of superior strength attended the killing. There was glaring
disparity of strength between the victim and the four accused. The victim was unarmed while the
accused were armed with a hunting knife, chako and bolo. It is evident that the accused took advantage
of their combined strength to consummate the offense. This aggravating circumstance, though, cannot
be separately appreciated because it is absorbed in treachery. In People v. Parreno,51 we decreed:

As regards the aggravating circumstance of abuse of superior strength, what should be considered is not
that there were three, four, or more assailants as against one victim, but whether the aggressors took
advantage of their combined strength in order to consummate the offense. While it is true that
superiority in number does not per se mean superiority in strength, the appellants in this case did not
only enjoy superiority in number, but were armed with a weapon, while the victim had no means with
which to defend himself. Thus, there was obvious physical disparity between the protagonists and abuse
of superior strength on the part of the appellants. Abuse of superior strength attended the killing when
the offenders took advantage of their combined strength in order to consummate the offense. However,
the circumstance of abuse of superior strength cannot be appreciated separately, it being necessarily
absorbed in treachery.

As a final attempt to lower their conviction to Homicide, appellants, citing People v. Alba,52 argue that
although treachery was alleged in the Information and proven according to the trial court, the same was
not specified as a qualifying circumstance. Such argument fails.

In People v. Aquino,53 we have held that even after the recent amendments to the Rules of Criminal
Procedure, qualifying circumstances need not be preceded by descriptive words such as "qualifying" or
"qualified by" to properly qualify an offense. We explained:

Section 8 of Rule 110 requires that the Information shall "state the designation of the offense given by
the statute, aver the acts or omissions constituting the offense, and specify its qualifying and
aggravating circumstances." Section 8 merely requires the Information to specify the circumstances.
Section 8 does not require the use of the words "qualifying" or "qualified by" to refer to the
circumstances which raise the category of an offense. It is not the use of the words "qualifying" or
"qualified by" that raises a crime to a higher category, but the specific allegation of an attendant
circumstance which adds the essential element raising the crime to a higher category.

In the instant case, the attendant circumstances of minority and relationship were specifically alleged in
the Information precisely to qualify the offense of simple rape to qualified rape. The absence of the
words "qualifying" or "qualified by" cannot prevent the rape from qualifying as a heinous crime provided
these two circumstances are specifically alleged in the Information and proved beyond reasonable
doubt.

We therefore reiterate that Sections 8 and 9 of Rule 110 merely require that the Information allege,
specify or enumerate the attendant circumstances mentioned in the law to qualify the offense. These
circumstances need not be preceded by the words "aggravating/qualifying," "qualifying," or "qualified
by" to be considered as qualifying circumstances. It is sufficient that these circumstances be specified in
the Information to apprise the accused of the charges against him to enable him to prepare fully for his
defense, thus precluding surprises during the trial. When the prosecution specifically alleges in the
Information the circumstances mentioned in the law as qualifying the crime, and succeeds in proving
them beyond reasonable doubt, the Court is constrained to impose the higher penalty mandated by law.
This includes the death penalty in proper cases.

xxxx

To guide the bench and the bar, this Resolution clarifies and resolves the issue of how to allege or
specify qualifying or aggravating circumstances in the Information. The words "aggravating/qualifying,"
"qualifying," "qualified by," "aggravating," or "aggravated by" need not be expressly stated as long as
the particular attendant circumstances are specified in the Information.54

Under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659,55 murder is
punishable by reclusion perpetua to death. There being neither mitigating nor aggravating circumstance
in the commission of the felony, appellants should be sentenced to reclusion perpetua, conformably to
Article 63(2) of the Revised Penal Code.

We now go to the award of damages. When death occurs due to a crime, the following damages may be
awarded: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages;
(3) moral damages; (4) exemplary damages; and (5) temperate damages.56

Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the
commission of the crime.57 We affirm the award of civil indemnity given by the trial court and the Court
of Appeals. Under prevailing jurisprudence,58 the award of ₱50,000.00 to the heirs of the victim as civil
indemnity is in order. Both the trial court and the Court of Appeals awarded ₱25,000.00 as civil
indemnity because the two accused who pleaded guilty to the lower offense of homicide were ordered
to pay ₱25,000.00 or half of the ₱50,000.00 civil indemnity. Considering that half of the ₱50,000.00 was
already paid, appellants should therefore pay only the difference.

As to actual damages, the heirs of the victim are not entitled thereto because said damages were not
duly proved with reasonable degree of certainty.59 However, the award of ₱25,000.00 in temperate
damages in homicide or murder cases is proper when no evidence of burial and funeral expenses is
presented in the trial court.60 Under Article 2224 of the Civil Code, temperate damages may be
recovered as it cannot be denied that the heirs of the victim suffered pecuniary loss although the exact
amount was not proved.61

Anent moral damages, the same is mandatory in cases of murder and homicide, without need of
allegation and proof other than the death of the victim.62 The award of ₱50,000.00 as moral damages is
in order.
The heirs of the victim are likewise entitled to exemplary damages in the amount of ₱25,000.00 since
the qualifying circumstance of treachery was firmly established.63

WHEREFORE, all the foregoing considered, the decision of the Court of Appeals in CA-G.R. CR-HC No.
00289 is AFFIRMED WITH MODIFICATION. Appellants Armando Rodas and Jose Rodas, Sr. are found
GUILTY beyond reasonable doubt of murder as defined in Article 248 of the Revised Penal Code, as
amended by Republic Act No. 7659, qualified by treachery. There being no aggravating or mitigating
circumstance in the commission of the crime, they are hereby sentenced to suffer the penalty
of reclusion perpetua. The appellants are ORDERED to pay, jointly and severally, the heirs of Titing
Asenda the amount of ₱25,000.00 as civil indemnity, ₱50,000.00 as moral damages, ₱25,000.00 as
temperate damages and ₱25,000.00 as exemplary damages. Costs against the appellants.

SO ORDERED.

14. People v. Damaso, G.R. No. L-30116, 20 November 1978

G.R. No. L-30116 November 20, 1978

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FAUSTO DAMASO, VICTORIANO EUGENIO, alias TURING, ESTANISLAO GREGORIO alias ISLAO,
LORENZO ALVIAR alias ORING AND BONIFACIO ESPEJO alias MARCIA, defendants, FAUSTO DAMASO,
LORENZO ALVIAR, BONIFACIO ESPEJO AND VICTORIANO EUGENIO, defendants-appellants.

G.R. No. L-30117 November 20, 1978

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LORENZO ALVIAR alias ORING, defendant-appellant.

Carlos, Valdez, Ibarra & Caunan Law Offices for appellants.

Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Dominador L. Quiroz and Solicitor
Concepcion T. Agapinan for appellees.

PER CURIAM:

The penalty of death imposed on Fausto Damaso, Victoriano Eugenio Lorenzo Alviar and Bonifacio
Espejo by the Court of First Instance of Tarlac in its Criminal Case No. 2253 for "robbery with double
homicide" is now before this Court on automatic review together with a related case No. 2293 "for
illegal possession of firearm and ammunition" involving only the accused, Lorenzo Alviar.

The Information in Criminal Case No. 2253 charged the accused therein of "robbery with double
homicide" alleged to have been committed as follows:
That on or about the 21st day of November, 1959, at nighttime, in the Municipality of
Victoria, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable
Court, the above named accused, four of whom are armed with a scythe and firearms,
namely: Fausto Damaso with a rifle, springfield Cal. 30, Victoriano Eugenio with a paltik
Cal. 12 ga., Estanislao Gregorio with a scythe, and Lorenzo Alviar with a paltik Cal. 22,
confederating, conspiring, helping and aiding one another, by means of force, violence,
threats and intimidation upon the persons of Donata Rebolledo, Victoriano de la Cruz
and Susana Sabado, did then and there, willfully, unlawfully and feloniously, with intent
to gain, take, steal and carry away with them the following.

PROPERTY OF DONATA REBOLLEDO:

One jacket valued at P25.00

One necklace valued 50.00

at

One earring valued at 25.00

One ring valued at 15.00

One hat valued at. 5.00

Three scythes valued . 3.60

at

A document valued 2.30

at

Total. P125.90

PROPERTY OF VICTORIANO DE LA CRUZ

Cash money in the P15.00

amount of

PROPERTY OF SUSANA SABADO:

Cash money in the amount 15.00

of

Ten bottles of liquor

Bicolana;
 Six bottles of Cana Rum;

One dozen Ligo Sardines;

One dozen Eatwell Sardines;

Six packages of Golden Star

cigarettes;

three packages of cigarettes

(Inyog);

and four packages of

cigarettes

(La Ventaja) with a total P21.02

value of.

Total. P36.02

Grand Total P176.92

to the damage and prejudice of the said owners in the respective amounts of P125.90,
P15.00 and P36,02, Philippine currency; that the said accused, on the occasion of the
commission of the crime above-mentioned, held and brought Catalina Sabado and
Susana Sabado, daughters of the said Donata Rebolledo, to a sugarcane field which is a
secluded and uninhabited place, at Barrio Bangar, Victoria, Tarlac, and once there and
after tying together the respective forearms of the said Catatina Sabado and Susana
Sabado, in pursuance of their concerted conspiracy, by means of force and grave abuse
of superior strength, the said accused did then and there, willfully, unlawfully and
feloniously, stab the said Catalina Sabado and Susana Sabado on different parts of their
body and cut their necks with a sharp pointed instrument (scythe), as a result of which
the latter died instantly.

That in the commission of the crime above mentioned, there concurred the aggravating
circumstances of (1) abuse of superior strength, (2) nighttime, (3) uninhabited place, (4)
by a band, (5) treachery, and (6) disregard of sex. (pp. 116-117, rollo)

In Criminal Case No. 2293 Lorenzo Alviar was also charged of illegal possession of firearm and
ammunition, viz.—

That on or about November 24, 1959, in the Municipality of Victoria, Province of Tarlac,
Philippines, and within the jurisdiction of this Honorable Court, the above named
accused, without authority of law, did then and there, willfully, unlawfully and
feloniously have in his posssession and under his control a firearm, to wit; a paltik
 revolver caliber 22 with eight (8) rounds of ammunition, without first obtaining the
corresponding license or permit to keep and possess the same. (pp. 117-118, Ibid.)

The two cases were jointly heard by the trial court. In a joint decision rendered on December 10, 1968,
by then Presiding Judge, Hon. Arturo B. Santos, all the accused were found guilty as charged. In Criminal
Case No. 2253 (robbery with double homicide) the accused Fausto Damaso, Lorenzo Alviar, Bonifacio
Espejo and Victoriano Eugenio were each sentenced to suffer the "penalty of death, to indemnify the
legal heirs of the victims, Catalina Sabado and Susana Sabado, jointly and severally in the amount of
P12,000.00 for each of the victims, plus the sum of P15,00 which was the money taken by the accused,
and to pay the costs, share and share alike." One of the accused, Estanislao Gregorio, was no longer
included in the sentence because he died on April 6, 1967 while the cases were still undergoing trial.

In Criminal Case No. 2293, accused Lorenzo Alviar was sentenced "to three years imprisonment and to
pay the costs," 1

The evidence of the prosecution as found by the trial court establish the following incidents: 2

Donata Rebolledo and her son-in-law, Victoriano de la Cruz were residents of Barrio Bangar, municipality
of Victoria, province of Tarlac. At about 9 o'clock in the evening of November 21, 1959, Donata and
Victoriano heard the barkings of dogs outside their house. Shortly, two men armed with guns, entered,
pointed their weapons at them, tied up the hands of Victoriano, covered him with a blanket and asked
Donata for the wereabouts of her daughter Catalina Sabado. Stricken by fear, Donata kept silent and
blocked the door leading to her daughter's room but was promptly pushed aside. Donata was then
ordered to open an "aparador" from which the two men took valuables like jewelry, clothing,
documents, and cutting instruments. All the while, Donata and Victoriano could hear the movements
and voices of some three to four other persons beneath the house. The two men brought Catalina
Sabado down from the house and then asked where they could find Susana Sabado, Donata's other
daughter who was then in her store located about five meters away in the same house. Thereafter,
Donata heard the men opening the door to Susana's store. After several minutes, feeling that the
intruders had left, Donata untied the hands of Victoriano and asked him to go to the store to see if her
daughters were there. When the two women could not be found, Donata sent Victoriano to the barrio
lieutenant to report the incident. Accordingly, Victoriano went to the barrio lieutenant and the two later
went to town to inform the police of the occurrence.

On the same night, Chief of Police Pedro Valdez with the aid of several policemen and a handful of
civilians went out in search for the Sabado sisters. It was only the following morning when the two
women were found already dead with wounds in several parts of their bodies. They were found in a
sugar plantation belonging to one Ignacio Fabros, located about one hundred meters from Donata
Rebolledo's house.

Dr. Carlos Briones, Municipal Health Officer of Victoria performed the autopsy on the two bodies and
reported that the deaths were caused by profuse hemorrhage due to a fatal, big, wide, gaping and deep
lacerated wound just above the Adam's apple. He also testified in court that the death weapon must
have been a sharp instrument with a pointed tip, like a scythe.

A few days after the incident, Donata Rebolledo singled out the accused Fausto Damaso from a police
line-up as one of the men who went up to her house on that evening. She and Victoriano had recognized
Damaso because of the light coming from a kerosene lamp placed on a small table near the "aparador."
Damaso, however, initially denied ever having been to Donata's house that night. Later, the PC rounded
up four other suspects in the persons of co-accused Gregorio, Eugenio Alviar and Espejo.

As further evidence, the prosecution presented separate extrajudicial statements, sworn to before
Municipal Judge Conrado de Gracia of Paniqui, Tarlac, wherein au the five accused admitted having
participated in the crime.

In his sworm statement marked as Exhibit "J", Fausto Damaso stated that he was with his co-accused
Gregorio, Eugenio, Alviar and Espejo on the night the Sabado sisters were killed; that he never went into
the house of Donata Rebolledo as Eugenio and Gregorio were the ones who did; that it was Gregorio
and Eugenio who actually did the killing while he, Alviar and Espejo merely stood by; that the victims
were stabbed and their throats cut with a reaping knife (pangapas or lait); that the killing was motivated
by the failure of the older woman (Catalina) to pay for a carabao bought from Gregorio; and that on that
evening, Gregorio, Eugenio, Alviar and Espejo were carrying caliber .45 pistols while he was unarmed.

In a subsequent statement marked as Exhibit "P", Damaso reiterated his claim that it was Gregorio who
actually stabbed and cut the throats of the victims in the presence of all the accused; that Catalina was
killed ahead of Susana; that Gregorio killed Susana as she was being held by Eugenio; and that while still
in the house, they were able to get P15 from Susana's store. Contrary to what he confessed in his
previous sworn statements, he admitted that it was he and Eugenio who went up to Donata Rebolledo's
house and not Eugenio and Gregorio. He also changed his theory as to the motive for the killings,
declaring this time that the two women were killed because the latter had already recognized them. He
further stated that on that night, he was armed with a caliber .22 (paltik) revolver, Eugenio with a 12-
gauge paltik, Gregorio with two reaping knives (lait), Lorenzo with a long firearm and Espejo with two
stones.

In this sworn statement, Exhibit "O", Victoriano Eugenio likewise admitted that he was a party to the
commission of the offense: that it was Gregorio who conceived of the plot to commit the crime; that it
was also Gregorio who killed the two women with a reaping knife; that after Catalina was killed he held
Susana by the arms as Gregorio stabbed her and cut her throat; that Alviar, Damaso and Lorenzo were
also with them that night; that he did not know what motivated Gregorio to kill the victims; that he had
no previous agreement with his co-accused to kill the two women; that he and Damaso were the ones
who entered Donata's house, took P15 from the "aparador," brought down Catalina and also got Susana
from another portion of the house; that he was then armed with a 12- gauge paltik, Damaso with a
caliber.22 paltik revolver, Alviar with a Springfield caliber .30 rifle, Gregorio with a reaping knife and
Espejo with two stones; and that he was with the group that night because at about 7 o'clock in the
evening, Gregorio dropped by his house and invited him to Barrio Bangar where the crime was
committed.

In his separate statement (Exhibit "Q"), Estanislao Gregorio narrated that in the afternoon of November
21, 1959, his four co-accused came and informed him of a plan to rob the Sabado sisters, to which plan
he agreed; that Damaso and Eugenio went up Donata Rebolledo's house, got P15 in cash and brought
out Catalina and Susana by force; that he stabbed and cut the throats of the victims with all his co-
accused present; that Eugenio held Catalina while Damaso held Susana as he killed them both with a
reaping knife; that the two women were killed because they had recognized Eugenio and Damaso and
might testify against them in court; that during the commission of the crime, his only weapon was a
reaping knife while Alviar was carrying a caliber .22 paltik revolver, Damaso, a Springfield caliber .30
rifle, Eugenio a 12-gauge single shot paltik and Espejo was unarmed.

Exhibit "N" is Bonifacio Espejo's sworn statement. Here he declared that he happened to be with the
group because Damaso and Eugenio invited him to Barrio Bangar and they dropped by the houses of
Alviar and Gregorio before actually proceeding to the barrio; that they had a previous agreement to
commit the crime; that they planned the same in a lot owned by a certain Don Juan Garcia in Barrio
Bangar; that it was Damaso and Eugenio who entered Donata Rebolledo's house while he, Alviar and
Gregorio were left downstairs to keep watch; that they were able to get P15 from the house; that it was
Gregorio who actually killed the two women; and that Damaso and Eugenio were armed with a 12-
gauge paltik and another long arm the caliber of which he did not know; that Alviar had a caliber .22
paltik revolver, Gregorio a knife and he had two big stones.

Substantially similar were the admissions of Lorenzo Alviar in his sworn statement (Exhibit "R"). He
likewise declared that he and his co-accused took P15 from the house of the victims; that it was
Gregorio who stabbed and cut the throats of the victims with a reaping knife; that the killing was done in
a sugarcane plantation between 10:00 and 11:00 o'clock in the evening of November 21, 1959; that
Catalina was killed before Susana; that he was armed with a caliber .22 paltik revolver, Eugenio with a
single shot, 12-gauge paltik, Damaso with a Springfield caliber .30 rifle and Espejo with two stones. He
claimed, however, that he was only forced and intimidated by his co-accused to join the group.

At the trial, the five accused set up the defense of alibi and repudiated their respective sworn
statements alleging that these were obtained from them through duress, force and intimidation.
Instances of the use of third degree methods like boxing, pouring of "7-up" into the nostrils, stripping of
clothes, pricking of the penis, kicking and slapping of the ears were narrated by the accused on the
witness stand, all of which were not believed by the trial court.

The accused-appellants are here represented by a counsel de oficio, Atty. Clemente A. Madarang, Jr.,
who filed an exhaustive brief for the accused.

Taken as a whole, the assigned errors boil down to the question of credibility and sufficiency of the
evidence to sustain the conviction of appellants for the special complex crime of robbery with double
homicide. It is argued that (a) there is no evidence of the alleged robbery; (b) that the homicide was not
committed by reason or on occasion of the robbery; and (c) that the crime was not attended by the
aggravating circumstances of armed band, treachery and uninhabited place.

There is no merit to appellants' submittal.

1. That robbery was committed is evident from the declaration of prosecution witness Donata Rebolledo
who testified that the two men who barged into her house, one of whom she recognized as Fausto
Damaso, ordered her to open her "aparador" and then they took therefrom the following items with
their respective values a jacket-P25; a necklace P50; earrings — P25; a ring-P15; a hat-P5; scythes-P3.60;
and documents worth P2.30. 3 Moreover the appellants admitted in their separate statements that they
were able to get P15 from Donata's house. On this point, We agree with the Solicitor General that it
matters not from what part of the house the accused got the P15. What is important is that the culprits
carried away personal property belonging to another by the use of force, intimidation or violence. 4
2. Counsel points out that because there was a motive, at least on the part of Gregorio, for the killing of
the Sabado sisters, the double homicide could not have been "committed by reason or on occasion of
the robbery" as the law contemplates. He calls Our attention to the sworn statement wherein Fausto
Damaso declared that Gregorio killed Catalina and Susana because Catalina bought a carabao from him
and did not pay for it. Harping further on this motive theory, counsel mentions such circumstances as
why the accused specifically asked for Catalina and Susana upon entering Donata Rebolledo's house and
why Donata and Victoriano were not killed together with the sisters if the purpose was to remove all
opposition to the robbery or to eliminate witnesses thereto.

As to Damaso's declaration, it should be noted that Damaso himself, in his subsequent sworn statement,
changed his motive theory and stated that the victims were killed in order to eliminate witnesses to the
crime. This was corroborated by Gregorio in the latter's own written confession. Even assuming,
however, that such a motive for vengeance existed on the part of Gregorio, it does not necessarily
exclude the fact that he and co-accused also intended, when they went to Donata's house that night, to
rob the family. In a complex crime of robbery with homicide, while an intent to commit robbery must
precede the taking of human life, the fact that the intent of the culprit was tempered with a desire also
to avenge grievances against the person killed does not prevent the punishment of the accused for the
complex crime. 5

3. Counsel for appellants also argues that the trial court erred in its appreciation of the aggravating
circumstances of armed band, treachery and uninhabited place.

The aggravating circumstance of band exists whenever more than three armed malefactors act together
in the commission of an offense. 6 Counsel concedes that at least three of the accused-appellants,
namely Eugenio, Alviar, and Gregorio, ,were armed during the commission of the crime. He doubts,
however, whether accused Damaso carried any weapon and whether the "two stones" carried by
accused Espejo fall under the category of "arms." But even granting that Espejo's stones do not
constitute arms, the prosecution presented the following evidence to show that Damaso was also armed
and, as such, there were more than three of the accused who were armed: (1) that extrajudicial
confession of Damaso himself (Exhibit "P") that he was carrying a caliber .22 paltik revolver; (2) the
sworn statement of accused Eugenio (Exhibit "O") that Damaso had a caliber .22 paltik revolver; (3) the
separate written confessions of Alviar, Gregorio and Espejo (Exhibits R, Q, and "N") that Damaso had a
caliber .30 Springfield rifle; and (4) the testimonies of Donata Rebolledo and Victoriano de la Cruz that
both men who entered their house (one of whom they later Identified as Damaso) were carrying
firearms. It is clear from the above, that Damaso was armed during the night of the commission of the
crime, and it is immaterial what kind of firearm he carried, the only important thing being that he was
armed. In this case, the presence of an armed band is to be considered as a generic aggravating
circumstance under Article 14(6) of the Revised Penal Code inasmuch as the crime committed was that
provided for and penalized in Article 294, paragraph 1 and not under Article 295, Revised Penal Code
(see People v. Apduhan, Jr., per Justice, now Chief Justice Fred Ruiz Castro, 24 SCRA 798)

Treachery is present if the victim is killed while bound in such a manner as to be deprived of the
opportunity to repel the attack or escape with any possibility of success. 7 The fact that the bodies of
Catalina and Susana were found dead with their arms tied behind their backs as well as the admission of
Gregorio in his confession (Exhibit "Q") that he killed the sisters while their arms were held by Eugenio
and Damaso lead Us to conclude that the killing of the two women was done under treacherous
circumstances.
Anent the circumstances of uninhabited place, counsel disclaims its existence by pointing to the
proximity of the sugarcane field where the victims were killed to the national highway as well as to
certain houses in the barrio. The uninhabitedness of a place is determined not by the distance of the
nearest house to the scene of the crime, but whether or not in the place of commission, there was
reasonable possibility of the victim receiving some help. 8 Considering that the killing was done during
nighttime and the sugarcane in the field was tall enough to obstruct the view of neighbors and
passersby, there was no reasonable possibility for the victims to receive any assistance. That the
accused deliberately sought the solitude of the place is clearly shown by the fact that they brought the
victims to the sugarcane field although they could have disposed of them right in the house of Donata
Rebolledo where they were found. Thus, in People v. Saguing, the Court considered the crime as having
been committed in an uninhabited place because the killing was done in a secluded place at the foot of
a hill, forested, and uninhabited. 9

The trial court considered separately the three circumstances of armed band, treachery and uninhabited
place where under other situations one may be considered absorbed or inherent in the other. There is
ample justification for this. The elements of each circumstance subsist independently and can be
distinctly perceived thereby revealing a greater degree of perversity on the part of the accused.

4. In the third assignment of error, defense counsel assails the sufficiency of the evidence for the
prosecution. He urges that the extrajudicial confessions, having been repudiated during the trial, are
insufficient to sustain the trial court's judgment of conviction, specially so since no direct evidence was
introduced of any conspiracy or of the involvement of appellants in the crime in question.

Regarding this matter, the following are strongly persuasive. First, the appellants' separate extrajudicial
confessions were subscribed and sworn to before Municipal Judge Conrado de Gracia of Paniqui, Tarlac.
On the witness stand, Judge de Gracia testified as to the authenticity and due execution of the
statements. He declared that before the statements were sworn to before him, he had the appellants'
PC escorts excluded from the room. He then took pains in translating and explaining to the appellants
the contents of their written statements and got their assurance that such statements were freely and
voluntarily made. 10 If it were true that appellants were forced or intimidated into making the
confessions, they could have easily manifested before the judge that they did not voluntarily give the
same. Certainly, they could have then been afforded the necessary protection from any untoward
incident that could happen. Their failure there and then to air any injustice or misdeed committed upon
them belies their stories of maltreatment. Too, there is no credible proof of the alleged maltreatment
that they suffered in the hands of the police or other authorities as a result of which they executed the
confessions. Considering that repudiation of confessions comes very easily, the same must be taken
with a grain of salt. it occurs all too often that guilty persons, after confession to crime, experience a
change of heart and repudiate their confessions in the hope of escaping liability.

Secondly, there was the reenactment of the robbery and the killings. The movements reconstructed by
the appellants conform substantially with the details set forth in their individual sworn statements. The
reenactment was done in the presence of people, including a photographer who had no connection with
the police or the prosecution.

Fiscal Magin Tañedo who was present during the reenactment testified that the entire proceeding was
spontaneous and free from coercion. On several occasions, appellants, even corrected themselves in
certain details. Nobody directed the whole show except the appellants themselves. 11
Fiscal Tañedo's testimony was corroborated by photographer Manuel Gamalinda who also declared that
there was no dictation, violence, force or intimidation employed upon the appellants during the
reenactment. 12 Gamalinda also testified as to the authenticity of the pictures he took during the
reenactment, which the prosecution also submitted as evidence. 13

Again, concerning the confessions, other circumstances are equally significant. Some of the statements
made, specifically the one of accused Alviar, were exculpatory in nature and would not have been
included had the confessant been coerced into making his confession. Others cite plausible facts and
details which only actual participants in the crime could have known.

Also, partial corroboration of appellants' statements are found in the testimonies of Donata Rebolledo
and Victoriano de la Cruz, more particularly, as to the robbery. As such, the confessions, coupled by
evidence of the corpus delicti the human remains of Catalina and Susana Sabado, are sufficient bases for
the trial court's declaration of guilt.

5. With regards to the defense of alibi, We find no justifiable reason for discarding the findings of the
trial court on this matter. In People v. Berdida, et al., this Court held that the defense of alibi is an issue
of fact that hinges on credibility, which depends much on the credibility of the witnesses who seek to
establish it. In this respect the relative weight which the trial judge assigns to the testimony of the
witnesses must, unless patently and clearly inconsistent with the evidence on record, be accepted. The
defense of alibi is worthless in the face of positive Identification by prosecution witnesses, pointing to
the accused as participants in the crime. (17 SCRA 520, citing People v. Tansiangco,
L-19448, February 28,1964; People v. Rivera, L-14077, March 31, 1964)

6. As to conspiracy, the trial court's inference as to the existence of the same is well-founded and is
amply discussed in its decision. Said His Honor:

From the simultaneous and cooperative acts of the accused, the Court finds and so
holds that there was conspiracy among them. For conspiracy to exist, direct proof is not
essential The same may be inferred from the acts of the conspirators in the commission
of the offense. It is not essential that each conspirator takes part in every act or that he
should know the exact part to be performed by the others in the execution of the
conspiracy. Conspiracy merely implies concert of design and does not require
participation in every detail of execution. Neither is it necessary to show any previous
plan or that the parties should actually come together and agree in express terms in
pursuing a common design. It is sufficient if it is proved that the acts of the conspirators
were in fact connected and cooperative in accomplishing the unlawful object, thereby
indicating a closeness of personal association and concurrence of sentiments.

In the case of the accused herein, they got together and planned the criminal act shortly
before its execution; they proceeded together to the house of the victims and, while
Damaso and Eugenio went upstairs, the other accused stayed under the house as
lookout; once inside the house, the two asked and demanded for the victims, forcibly
dragged them downstairs, handed them to those waiting under the house and, together
as a group, they brought the victims to the sugarcane field and mercilessly stabbed
them to death. Clearly, there was a concert of acts among the accused aimed at one
common design, and each act was connected to and cooperative with the others.
The basic rule is that when conspiracy is established, like in the present case, the act of one conspirator
is imputable to the others and the criminal liability of each participant is the same as those of the
others.

7. On the matter of accused Lorenzo Alviar's conviction for illegal possession of firearms in Criminal Case
No. 2293, two errors are assigned. First, that the trial court had no jurisdiction over the case because the
same having been previously filed before the Justice of the Peace Court of Victoria, Tarlac, which also
acquired jurisdiction over the person of the accused, the latter court acquired jurisdiction to the
exclusion of all other courts.

This is untenable. That the Justice of the Peace Court has concurrent jurisdiction with the Court of First
Instance in this case is not questioned. It, however, appears from the order of the justice of the Peace
Court forwarding the records of the case to the Court of First Instance 14 that the case was brought
before the former court merely for purposes of a preliminary investigation. Where a Justice of the Peace
acquires jurisdiction for the purpose of preliminary investigation and not for trial on the merits, such
court does not necessarily acquire exclusive jurisdiction to try the case on the merits. 15

In the second assigned error, counsel attacks the flimsiness of the evidence for the prosecution. He
questions the sufficiency of a document (Exhibit "B"), purportedly a receipt issued to Alviar upon the
confiscation from him of the alleged firearm. It is argued that from the manner the receipt is worded as
well as from the fact that it is thumb marked by Alviar and not signed by the person confiscating, it
appears to be a confession rather than a receipt.

The controversial receipt, however, is not the only evidence presented by the prosecution. Sgt. Melencio
Fiesta of the Philippine Constabulary also declared on the witness stand that Alviar verbally confessed to
him his (Alviar's) possession of a caliber .22 paltik revolver. 16 He further stated that he properly
translated from English to Ilocano the contents of the receipt before Alviar affixed his thumbmark on the
same. 17 Whether Exhibit " B " is taken as a receipt or as a confession, it has its own weight as an
evidence against appellant Alviar.

Still on the illegal possession of firearm, the prosecution also presented as evidence Exhibit "C" properly
sworn to before Judge Conrado de Gracia, wherein Alviar confessed that he did own and possess a
caliber .22 paltik which he carried on the night the robbery and killings were committed. The
voluntariness of this confession has not been disproved.

8. In conclusion, the crime committed by appellants in Criminal Case No. 2253 is robbery with homicide
defined in Article 294, paragraph 1, Revised Penal Code, to wit:

Robbery with violence against or intimidation of persons Penalties - Any person guilty of
robbery with the use of violence against or intimidation of any person shall suffer:

1. The penalty of reclusion perpetua to death, when by reason or on occasion of the

robbery, the crime of homicide shall have been committed.

xxx xxx xxx

The penalty is to be imposed in its maximum period by reason of the presence of three aggravating
circumstances found by the trial court, to wit: that the robbery was committed by a band, 18 with
treachery, 19 and in an uninhabited place. 20 There is likewise the additional aggravating circumstance
that the robbery was committed in the dwelling of the victim. Donata Rebolledo which although not
alleged in the Information is however established by the evidence.

IN VIEW OF THE FOREGOING CONSIDERATIONS, We hereby affirm in toto the decision of the trial court
in the two cases.

Without pronouncement as to costs at this instance.

SO ORDERED.

15. People v. Baldera, G.R. No. L-2390, 24 April 1950

G.R. No. L-2390 April 24, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PEDRO BALDERA, MIGUEL BLAY, JOSE DE LA CRUZ, and FOUR OTHERS, defendants.
PEDRO BALDERA, appellant.

August Francisco for appellant.

Office of the Solicitor General Felix Bautista Angelo and Solicitor Florencio Villamor for appellee.

REYES, J.:

We are called upon to review the sentence of death passed upon the appellant Pedro Baldera, who was
found guilty of robbery in band with homicide and serious and less serious physical injuries by the Court
of First Instance of Batangas.

The evidence shows that at about 4 a.m. on December 23, 1947, a Casa Manila bus loaded with
passenger left Batangas, Batangas, bound for Manila. On the highway in barrio Calansayan, municipality
of San Jose, same province, it was held up by a group of five or six armed men. One of these, later
identified as herein appellant Pedro Baldera, who was then armed with a .45 caliber pistol, fired a shot,
and this was followed by a hail of bullets coming from different directions. As a result, several
passengers, among them Jose Cabrera, Jose Pastor and Francisco Mendoza, were wounded. After the
firing had ceased, appellant got on the bus and, threatening the passengers with his gun, took P90 from
Jose Pastor and P34 from Ponciana Villena. Another passenger named Francisco Mendoza was also
relieved of his P3. Appellant then alighted and ordered the bus to proceed, whereupon the driver
headed for the municipal building of San Jose and there reported the incident to the authorities. The
wounded were taken to the hospital, where Jose Cabrera died from his wounds on the following day.
Jose Pastor, who was wounded in the left leg, was cured in two months, while Francisco Mendoza's
gunshot wound in the right shoulder healed in 15 days.
For the above crime four persons were prosecuted and tried under an information charging "robo en
cuadrilla con homicidio y lesiones graves y lesiones menos graves." The case was dismissed as to two of
the accused due to insufficiency of evidence. But the other two, Pedro Baldera and Miguel Blay, were,
after trial, found guilty as charged and sentenced, the first to capital punishment, and the second to life
imprisonment, both to pay the corresponding indemnity and proportionate costs.

Only the case against Pedro Baldera is now before us.

There is no dispute as to the perpetration of the crime. The only question is as to the identification of
this appellant as one of the authors thereof. On this point the evidence for the prosecution shows that
shortly after the commission of this crime, appellant was arrested in the municipality of Batangas in
connection with the theft of a radio, and as his features tallied with the personal description of one of
the highway men given to the chief of police by some of the passengers of the held-up bus, he was also
investigated in connection with the hold-up, and he then made a confession, which was reduced to
writing and later subscribed by him before the justice of the peace, admitting his participation in the
crime as the one who, armed with a pistol, boarded the bus and though intimidation relieved Ponciana
Villena of her money.

At the trial, Ponciana also identified appellant as the one who relieved her of her money at gunpoint,
saying that she had a good look at his face for she was watching him closely for fear that he might fire at
her. She also declared that when she was sent for by the chief of police to identify appellant, the latter
approached her as she came into the office of said officer and asked her forgiveness. Two other
passengers of the bus declared at the trial that appellant resembles the one who stopped the bus and
robbed its passengers.

Testifying in his own defense, appellant denies participation in the crime charged, declaring that he
passed the night in question in a house of prostitution in Batangas, where he was employed by the
prostitutes for drawing water. But this alibi is without corroboration and can not stand up against the
clear and positive testimony of Ponciano Villena, who has not shown to have any motive for falsely
testifying against him.

Counsel de oficio impugns the admissibility of appellant's confession on the ground that the same was
made on a promise to render him protection from his co-accused and also to utilize him as a
government witness. But appellant himself denied that such a promise was ever made and the record
shows that, when the confession was offered in evidence, it was objected to the sole ground that "it was
taken through force and intimidation," which, however, was not proved. Moreover, this court has
already held that "where one of several codefendants turns state's evidence on a promise of immunity
... but later retracts and fails to keep his part of the agreement, his confession made under such promise
may then be used against him." (People vs. Panaligan and Andulan, 43 Phil., 131.) In any event, even
without the said confession, we find that appellant's participation in the crime herein charged has been
clearly and satisfactorily proved.

Counsel also contends that the lower court erred in holding that the crime committed is robbery in
band, alleging that there was no sufficient proof that the perpetrators thereof numbered more than
three armed men. The fact, however, that there were more than three armed men in the group that
held up the bus appears in appellant's own confession and is also established by the uncontradicted
testimony of one of the government witnesses. And the point is really not material because in the crime
of robbery with homicide it is not essential that the robbery be in band, although that circumstance may
be taken into account as an aggravation in the imposition of the penalty. And even if it be not be taken
into account as such in this case, there would still remain the other aggravating circumstance that the
robbery was perpetrated by attacking a vehicle (art. 295, R. P. C.), which is not offset by any mitigating
circumstance.

The lower court did, however, err in appreciating against the accused the circumstance of recidivism by
reason of his previous conviction for theft, it appearing that crime was committed on or about
December 30, 1947 (Exhibit E) while the offense now charged took place seven days before that date.

In conclusion, we find appellant guilty of the crime of robbery with homicide and serious and less
serious physical injuries with two aggravating circumstances. But there being no sufficient vote to
impose the extreme penalty, appellant can be sentenced to life imprisonment only.

Wherefore, reducing appellant's sentence to life imprisonment but increasing the indemnity to be paid
by him to the heirs of the deceased Jose Cabrera to P6,000, the judgement below as so modified is
affirmed, with costs against the appellant.

16. People v. Melendrez, G.R. No. 39913, 19 December 1933

[G.R. No. 39913. December 19, 1933.]

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. RICARDO MELENDREZ Y NIETO ET

AL., Defendants. RICARDO MELENDREZ Y NIETO, Appellant.

Consorcio Gallego for Appellant.

Solicitor-General Hilado for Appellee.

DECISION

AVANCEÑA, C.J. :

The text of the information filed against Ricardo Melendrez y Nieto and Elias Martinez in this case, reads
as follows:

"That on or about the 15th day of June, 1933, in the municipality of Pasay, Province of Rizal, Philippine
Islands, within two and one- half (2½) miles from the limits of the City of Manila and within the
jurisdiction of this court, the said accused conspiring together and helping each other wilfully, unlawfully
and feloniously forcibly broke open the door of the store located at No. 85 Cementina, Pasay, an
inhabited house belonging to and occupied by Tin Bun Boc, and once inside the said store, with intent of
gain and without the consent of the owner thereof, took, stole and carried away therefrom the
following personal properties of the said Tin Bun Boc:

Money amounting to P30.26

One (1) Elgin watch, gold plated and a gold-filled chain,

valued at 25.00

One (1) Chinese ring, signet solid gold, valued at 13.50

One (1) buntal hat, valued at 4.50

Nine (9) small packages of "Camel" cigarettes 1.35

Nine (9) small packages of "Chesterfield" cigarettes 1.26

Three (3) cans of Milkmaid, valued at .81

_____

Total 76.68

to the damage and prejudice of the said Tin Bun Boc in the total sum of seventy-six pesos and sixty-eight
centavos (P76.68), Philippine currency.

"That the accused Ricardo Melendrez y Nieto is a habitual delinquent, he having been previously
convicted by final judgment of competent courts twice of the crime of theft and once of the crime of
estafa and having been last convicted of the crime of estafa on September 3, 1932."

On the date of the trial of this case, Elias Martinez had not yet been apprehended, for which reason only
the other defendant Ricardo Melendrez y Nieto, who pleaded guilty to the charge, was arraigned.
Whereupon, the court found him guilty of the crime charged in the information and sentenced him to
eight years and one day of prision mayor, and to serve an additional penalty of six years and one day of
prision mayor for being a habitual delinquent. From this judgment Ricardo Melendrez y Nieto appealed.

In this instance, counsel for the appellant contends that lack of instruction on the part of the appellant
should be considered as a mitigating circumstance in the commission of the crime. However, aside from
the fact that this court has repeatedly held in various decisions that lack of instruction cannot be
considered as a mitigating circumstance in crimes of robbery, the records of the case do not afford any
basis on which to judge the degree of instruction of the appellant inasmuch as no evidence was taken
relative thereto, he having pleaded guilty.

However, the fact that the appellant pleaded guilty upon arraignment is a mitigating circumstance which
should be considered in his favor.

On the other hand, the fiscal contends that the aggravating circumstance of recidivism should be taken
into account against the appellant. This claim of the fiscal is in accordance with the judgment rendered
by this court in banc in the case of People v. Aguinaldo (47 Phil., 728) while the old Penal Code was in
force. But the enforcement of the Revised Penal Code has resulted in a difference of opinion regarding
this point on the part of the members of this court. For this reason, after reviewing all the decisions
affecting this matter, rendered by this court both in banc and in division, it is now held that the
aggravating circumstance of recidivism should be taken into account in imposing the principal penalty in
its corresponding degree, notwithstanding the fact that the defendant is also sentenced to suffer an
additional penalty as a habitual delinquent.

The facts alleged in the information constitute the crime of robbery committed without the use of arms
in an inhabited house, the value of the articles taken being less than P250. In accordance with article
299 of the Revised Penal Code, the penalty prescribed for said crime is prision correccional in its
medium degree. Inasmuch as there is a concurrence therein of one mitigating and one aggravating
circumstance, this penalty should be imposed in its medium degree.

Wherefore, it being understood that the principal penalty imposed upon the appellant is two years,
eleven months and eleven days, the judgment appealed from is hereby affirmed, in all other respects
with costs. So ordered.

17. US v. Manalinde, G.R. No. 5292, 28 August 1909

G.R. L-No. 5292 August 28, 1909

THE UNITED STATES, plaintiff,

vs.
THE MORO MANALINDE, defendant.

Office of the Solicitor-General Harvey for plaintiff.

Ramon Diokno for defendant.

TORRES, J.:

Between 2 and 3 o'clock on the afternoon of the 19th of January, 1909, while Juan Igual, a Spaniard, was
seated on a chair in the doorway of Sousa's store in Cotabato, Moro Province, he suddenly received a
wound on the head delivered from behind and inflicted with a kris. Ricardo Doroteo, a clerk in the said
store, who was standing behind the counter, upon hearing the noise and the cry of the wounded man,
ran to his assistance and found him lying on the ground. Meanwhile the aggressor, the Moro Manalinde,
approached a Chinaman named Choa, who was passing along the street, and just as the latter was
putting down his load in front of the door of a store and was about to enter, attacked him with the same
weapon, inflicting a severe wound in the left shoulder, on account of which he fell to the ground. The
Moro, who came from the rancheria of Dupit and had entered the town carrying his weapon wrapped
up in banana leaves, in the meantime escaped by running away from the town. Both wounded men, the
Chinaman and the Spaniard, were taken to the hospital, where the former died within an hour, the
record not stating the result of the wound inflicted on the Spaniard Juan Igual.

In view of the above a complaint was filed by the provincial fiscal with the district court charging
Manalinde with the crime of murder, and proceedings having been instituted, the trial judge, in view of
the evidence adduced, rendered judgment on the 5th of February of said year, sentencing the accused
to the penalty of death, to indemnify the heirs of the deceased in the sum of P1,000, and to pay the
costs. The case has been submitted to this court for review.

From the above facts fully substantiated in this case, it appears beyond doubt that the crime of murder,
defined and punished by article 403 of the Penal Code, was committed on the person of the Chinaman
Choa, in that the deceased was unexpectedly and suddenly attacked, receiving a deep cut on the left
shoulder at the moment when he had just put down the load that he was carrying and was about to
start for the door of the store in front of which he stopped for the purpose of entering therein. As a
result of the tremendous wound inflicted upon him by the heavy and unexpected blow, he was unable,
not only to defend himself, apart from the fact that he was unarmed, but even to flee from the danger,
and falling to the ground, died in an hour's time. It is unquestionable that by the means and form
employed in the attack the violent death of the said Chinaman was consummated with deceit and
treachery (alevosia), one of the five qualifying circumstances enumerated in the aforesaid article as
calling for the greatest punishment.

When Manalinde was arrested he pleaded guilty and confessed that he had perpetrated the crime
herein mentioned, stating that his wife had died about one hundred days before and that he had come
from his home in Catumaldu by order of the Datto Rajamudah Mupuck, who had directed him to
go juramentado in Cotabato in order to kill somebody, because the said Mupuck had certain grievances
to avenge against a lieutenant and a sergeant, the said datto further stating that if he, Manalinde, was
successful in the matter, he would give him a pretty woman on his return, but that in case he was
captured he was to say that he performed the killing by order of Maticayo, Datto Piang, Tambal and
Inug. In order to carry out his intention to kill two persons in the town of Cotabato he provided himself
with a kris, which he concealed in banana leaves, and, traveling for a day and a night from his home,
upon reaching the town, attacked from behind a Spaniard who was seated in front of a store and,
wounding him, immediately after attacked a Chinaman, who was close by, just as the latter was placing
a tin that he was carrying on the ground and he was about to enter a store near by, cutting him on the
left shoulder and fleeing at once; he further stated that he had no quarrel with the assaulted persons.

From the statements made by the accused his culpability as the sole-confessed and self-convicted
author of the crime in question has been unquestionably established, nor can his allegation that he
acted by order of Datto Mupuck and that therefore he was not responsible exculpate him, because it
was not a matter of proper obedience. The excuse that he went juramentado by order of the said datto
and on that account killed only two persons, whereas if he had taken the oath of his own volition he
would have killed many more, because it is the barbarous and savage custom of a juramentado to kill
anyone without any motive or reason whatever, can not under any consideration be accepted or
considered under the laws of civilized nations; such exhibitions of ferocity and savagery must be
restrained, especially as the very people who up to the present time have been practicing such acts are
well aware that the established authorities in this country can never allow them to go unpunished, and
as has happened a number of times in towns where juramentados are in the habit of appearing, the
punishment of the author has followed every crime so committed.

In the commission of the crime of murder the presence of aggravating circumstances 3 and 7 of article
10 of the Penal Code should be taken into consideration in that promise of reward and premeditation
are present, which in the present case are held to be generic, since the crime has already been qualified
as committed with the treachery, because the accused confessed that he voluntarily obeyed the order
given him by Datto Mupuck to go juramentado and kill some one in the town of Cotabato, with the
promise that if he escaped punishment he would be rewarded with a pretty woman. Upon complying
with the order the accused undoubtedly acted of his own volition and with the knowledge that he would
inflict irreparable injury on some of his fellow-beings, depriving them of life without any reason
whatever, well knowing that he was about to commit a most serious deed which the laws in force in this
country and the constituted authorities could by no means permit. Datto Mupuck, who ordered and
induced him to commit the crimes, as well as the accused knew perfectly well that he might be caught
and punished in the act of committing them.

As to the other circumstance it is also unquestionable that the accused, upon accepting the order and
undertaking the journey in order to comply therewith, deliberately considered and carefully and
thoughtfully meditated over the nature and the consequences of the acts which, under orders received
from the said datto, he was about to carry out, and to that end provided himself with a weapon,
concealing it by wrapping it up, and started on a journey of a day and a night for the sole purpose of
taking the life of two unfortunate persons whom he did not know, and with whom he had never had any
trouble; nor did there exist any reason which, to a certain extent, might warrant his perverse deed. The
fact that the arrangement between the instigator and the tool considered the killing of unknown
persons, the first encountered, does not bar the consideration of the circumstance of premeditation.
The nature and the circumstances which characterize the crime, the perversity of the culprit, and the
material and moral injury are the same, and the fact that the victim was not predetermined does not
affect nor alter the nature of the crime. The person having been deprived of his life by deeds executed
with deliberate intent, the crime is considered a premeditated one as the firm and persistent intention
of the accused from the moment, before said death, when he received the order until the crime was
committed in manifestly evident. Even though in a crime committed upon offer of money, reward or
promise, premeditation is sometimes present, the latter not being inherent in the former, and there
existing no incompatibility between the two, premeditation can not necessarily be considered as
included merely because an offer of money, reward or promise was made, for the latter might have
existed without the former, the one being independent of the other. In the present case there can be no
doubt that after the crime was agreed upon by means of a promise of reward, the criminal by his
subsequent conduct showed a persistency and firm intent in his plan to carry out the crime which he
intentionally agreed to execute, it being immaterial whether Datto Mupuck did or did not conceive the
crime, once Manalinde obeyed the inducement and voluntarily executed it.

The facts in this case are quite different from those in the proceedings instituted by the United States vs.
Caranto et al., wherein the decision on page 256 of Volume IV of the Philippine Reports was rendered,
as may be seen from the mere perusal of the statement of facts. It is also different from the case where
a criminal who has made up his mind to kill a certain individual kills a person other than the object of his
criminal intent. On going to Cotabato the Moro Manalinde intended to and did kill the first two persons
he encountered, and the fact that the victim was not predetermined does not alter the nature,
conditions, or circumstances of the crime, for the reason that to cause the violent death of a human
being without any reasonable motive is always punishable with a more or less grave penalty according
to the nature of the concurrent circumstances.

For the above reasons and in view of the fact that no mitigating circumstance is present to neutralize
the effects of the aggravating ones, it is our opinion that the judgment appealed from should be
affirmed with costs provided however, that the penalty imposed on the culprit shall be executed in
accordance with the provisions of Acts. Nos. 451 and 1577, and that in the event of a pardon being
granted he shall likewise be sentenced to suffer the accessory penalties imposed by article 53 of the
Penal Code. So ordered.

18. People v. Ilaoa, G.R. No. 94308, 16 June 1994

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
voter’s 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 o’clock 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 Ruben’s 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. 4 Nestor was crying all the while, "Pare, aray, aray!" Afterwards, Nestor, who
appeared drunk, was seen being "dragged" 5 into Ruben Ilaoa’s apartment. Nestor was heard saying,
"Pare, bakit ninyo ako ginaganito, hirap na hirap na ako!" 6

Three. Ruben Ilaoa and Julius Eliginio borrowed Alex Villamil’s tricycle at about two o’clock 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 Ruben’s shirt when he was asked to lift it during the investigation by the
police. 7 Moreover, Ruben’s hair near his right forehead was found partly burned and his shoes were
splattered with blood. 8 Susan Ocampo, Ruben’s 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 Ilaoa’s 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 Ruben’s 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 Ilaoa’s guilt, i.e., the alleged dragging of the deceased to
his brother’s 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 Rogelio’s conviction.

Ruben’s case, however, is a totally different matter. Unlike that of his brother, Ruben Ilaoa’s fate was
most definitely assured by the unbroken chain of circumstances which culminated in the discovery of
Nestor de Loyola’s 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 Ruben’s apartment. As the deceased cried "Aray! Aray!" and "Pare,
bakit n’yo ako ginaganito? Hirap na hirap na ako!" appellant dragged the deceased with the help of
Julius Eliginio to the apartment from where a man’s cries were continued to be heard later. To further
seal the case against him, Ruben borrowed Alex Villamil’s tricycle at two o’clock 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 o’clock 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 o’clock in the morning with the sack in the sidecar. However, he claims
that the sack contained buntot 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 latter’s resistance to consummate the offense. 17 The fact that Nestor
de Loyola’s decapitated body bearing forty-three (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 victim’s dead body was dismembered. 21 Evident 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 attorney’s 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.

19. People v. Bibat, G.R. No. 124319, 13 May 1998

G.R. No. 124319. May 13, 1998

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. GARI BIBAT Y DESCARGAR, defendant-appellant.

DECISION

PURISIMA, J.:

Appeal interposed by accused Gari Bibat y Descargar from the judgment rendered by Branch IV of the
Regional Trial Court of Manila, finding him guilty of the crime of Murder in Criminal Case No. 93-123648.

Filed on July 23, 1993 by Assistant Prosecutor Alfeo T. Siccuon, the Information indicting accused for
Murder, alleges:

That on or about October 14, 1992, in the City of Manila, Philippines, the said accused, conspiring and
confederating with others whose true names, identities and present whereabouts are still unknown and
helping one another did then and there willfully, unlawfully and feloniously, with intent to kill and with
treachery and evident premeditation, attack, assault and use personal violence upon the person of one
LLOYD DEL ROSARIO Y CABRERA, by then and there stabbing him with bladed weapon hitting him on the
chest and abdomen, thereby inflicting upon the latter mortal stab wounds, which are necessarily fatal
and which where the direct and immediate cause of his death thereafter.

Contrary to law.

With the accused entering a negative plea upon arraignment thereunder, with assistance of the counsel
de oficio, Atty. Alejandro G. Yrreborre, Jr., trial ensued with the prosecution presenting Nona Avila
Cinco, P03 Julian Bustamante, Florencio Castro and Rogelio Robles, as its witnesses.
Aside from accused, Marte Soriano, Lino Asuncion III, and Rogelio Robles (who was recalled to the stand
by the defense), testified for the defense.

As synthesized by the trial court of origin :

From the record and evidence presented, it appears that the accused Gari Bibat stabbed to death one
Lloyd del Rosario on October 12, 1992 at around 1:30 p.m. along G. Tuazon cor. Ma. Cristina Sts.,
Sampaloc, Manila. The victim was on his way to school waiting for a ride when he was stabbed.
Thereafter the suspect fled while the victim was brought to the United Doctors Medical Center (UDMC)
where he was pronounced dead on arrival.

The incident was witnessed by Nona Avila Cinco, a laundry woman, who testified that on October 14,
1992, while she was at Funeraria Gloria waiting for her bettor, she saw a person about one meter away
talking to the accused. Said person told the accused O pare, anduon na. Puntahan mo na. Siguruhin mo
lang na itumba mo na. to which the accused answered: Oo ba. Ganito ba, ganito ba? (as the witness was
speaking, she was demonstrating with her arms.)1

After hearing the accused, she (witness) left towards Honrades Street to see another bettor. She first
went inside a house and after a while, she went outside where she saw the accused along Honrades
Street, entering an alley. She walked along with the accused. She and the accused were even able to
look at each other.

While the victim was going out of a gate, the accused hurried towards the victim and took a
pointed object from a notebook, then stabbed the victim in the left chest twice.

She was only about 4 to 5 meters away from the scene of the crime.

Thereafter, the accused fled, the victim shouted for help. Upon hearing the shouts of the victim, the
accused returned and stabbed the victim again in the middle part of the chest. She (witness) then left
the scene of the crime after the accused ran away.

She reported the matter to the authorities only on July 20, 1993 because she was afraid.2

xxx

Florencio Castro testified among others that he saw the accused together with four others inside the
Gloria Memorial Homes along G. Tuason St. on October 14, 1992. One of them used the phone inside
said place to call somebody. The rest stayed beside the one calling. He saw one of them open a
notebook where a stainless knife was inserted. He heard the one using the phone, asking kung nasaan.
Thereafter, the group went out and left towards the direction of Balic-Balic.

Rogelio Robles, testified among others that the accused Gari Bibat had been going to his place at 424
Berdad St., Sampaloc, Manila, for a long time already because their Samahang Ilocano (SI) president,
Tonton Montero, is his (witness) neighbor. Before the incident occurred, Tonton Montero told him
(witness) about a rumble in school whereby somebody died. The group of the accused was planning to
take revenge against the victim, Lloyd del Rosario (see TSN, pp. 7-8, 6/30/94), thus:
PROS. EUGENIO:

Q - Now, do you know personally what this group of Gari Bibat and his companions plan to do regarding
that trouble related to you by your neighbor, Tonton Montero?

A -What I know, the person against whom they will take revenge is living from a far place. I did not know
that he is from our place.

Q -Did they ever mention, during that meeting the name of the person whom they will take revenge?

A -In the beginning, no, sir, but later they told me.

Q -What was the name, if they did mention to you the name?

A -The one who was killed, Lloyd, sir.

Q -The same Lloyd del Rosario, the victim in this case?

A -Yes, sir, Lloyd del Rosario.

He further testified that he (witness) only knows Lloyd del Rosario by the face because the latter is from
his place. He only knew what had happened to Lloyd after that fateful incident because 6 or 7 of the
members of the group arrived, all with a tusok and they even kept two (2) guns in his (witness) house.
Gari Bibat was one of the 6 or 7 people he saw on that day, with a tres-cantos or veinte nueve tucked in
his (Bibats) waistline. (see pp. 11-12, TSN, 6/30/94). He further narrated that he actually saw the killing
of the victim, (see pp. 22-24, Ibid). that even before the day Lloyd died, they (accused and companions)
already hid some guns and tusok in his house. (see pp. 20, TSN, Ibid.)

xxx xxx xxx

Accused Gari Bibat testified among others that on October 14, 1992, he was staying in his house at 629
Reten St., Sampaloc, Manila; at that time it was his mothers birthday; that he was reviewing his lessons
from 7:00 oclock to 10:00 oclock in the morning in preparation for his final oral exams on October 14,
1992; that Marte Soriano, a friend of his and a neighbor were in his house; that after lunch, they (he and
Marte Soriano) left for school at 12:35 noon; that they did not pass by Funeraria Gloria; that he and his
friend were able to reach the school; that he had a review of with his classmates up to 1:45 oclock in the
afternoon, afterwhich they proceeded to their room for the final exams; that their examination lasted
from 7:30 to 4:30 oclock in the afternoon; that he passed the subject with a grade of 2.25; that he does
not know Nona Cinco but only later in the precinct; that he saw Rogelio Robles who was also detained at
the Manila City Jail; that when he asked why Rogelio Robles testified against him, Robles told him that it
was merely concocted because the complainant is Robles neighbor whom he cannot refuse; that he
does not know Tonton Montero; that he did frequent Verdad St., near Rogelio Robles house, neither did
he go there on October 14, 1992 between 1:00 and 2:00 oclock in the afternoon; that he is not a
member of Samahang Ilocano fraternity but the United Ilocandia fraternity, a school fraternity; that he
could not remember of his fraternity being involved in any school rumble as the same is a very peaceful
group which promotes brotherhood; that they did not have a quarrel with the victim who is already
dead because the latter is not studying at Arellano University; that with respect to the death of Lloyd del
Rosario, the same is an added charge (ipinatong) to him and that he was just implicated therein; that he
knows nothing about it.

On cross examination, he testified that he neither saw the two prosecution witnesses before nor did he
know of any grudge which said witnesses have against him; and that he does not know of any reason
why they would testify against him and identify him as one of the killers of Lloyd del Rosario.

Marte Soriano, testified among others that he was at the house of Gari Bibat at Reten St., Sampaloc,
Manila, attending the birthday (party) of Garis mother on October 14, 1992; that Gari Bibat was
reviewing his studies at that time in preparation for an oral examination. After taking lunch, he, together
with Gari, went to school (Arellano University) at around 12:00 noon. There, he reviewed his lessons in
preparation for his exams while Gari Bibat had a group study with his classmates until 2:00 P.M. when
Gari went inside the classroom. He knew that Gari Bibat had an exam that day at 2:00 P.M. because he
(witness) is also studying at Arellano University. The next time he saw the accused was two (2) days after
October 14, 1992.

Lino Asuncion III, testified among others: that he is a classmate of Gari Bibat at Arellano University; that
their common subject on MWF is Math 2, English 2, Computer 2; that they had a last/final oral
examination in Computer 2 on October 14, 1992; that he saw Gari Bibat in school on that day at about
1:00 P.M.; that he and Gari Bibat took the said last final oral exam; that they both left the room at the
same time at 4:30 P.M.

Rogelio Robles - (was recalled to the stand to testify contrary to what he had previously stated in court).
He testified inter alia that he did not really see what transpired on October 14, 1992 at 1:30 oclock in
6the (sic) afternoon; that he only assisted the parents of the victim because they come from the same
place; that the father of the victim handed to him the handwritten statement which he (witness) based
his previous testimony; that he did not actually see the killing.

On December 27, 1995, the court a quo handed down its decision in question; disposing, thus:

Wherefore, with all the foregoing, the Court finds the accused GARI BIBAT Y Descargar, guilty beyond
reasonable doubt of the crime of MURDER and hereby sentences him to suffer the penalty of reclusion
perpetua; to indemnify the heirs of the victim in the amount of P49,786.14 as actual damages; and to
pay P50,000.00 as and for moral damages, with costs.

SO ORDERED.

Appellant places reliance on the assignment of errors, that:

THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDENCE TO THE TESTIMONIES OF THE
ALLEGED EYEWITNESSES NONA AVILA CINCO AND ROGELIO ROBLES.

II
 THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE VERSION OF ACCUSED-APPELLANT THAT HE
WAS NOT AT THE SCENE OF THE CRIME WHEN THE SAME HAPPENED.

III

THE TRIAL COURT ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCE OF EVIDENT

PREMEDITATION.

FIRST ISSUE:

CREDIBILITY OF PROSECUTION WITNESSES

The Court discerns no basis for disturbing the finding and conclusion arrived at below on the credibility
of the prosecution witnesses.

In the matter of credibility of witnesses, we reiterate the familiar and well-entrenched rule that the
factual findings of the trial court should be respected. The judge a quo was in a better position to pass
judgment on the credibility of witnesses, having personally heard them when they testified and
observed their deportment and manner of testifying. It is doctrinally settled that the evaluation of the
testimony of the witnesses by the trial court is received on appeal with the highest respect, because it
had the opportunity to observe the witnesses on the stand and detect if they were telling the truth. This
assessment is binding upon the appellate court in the absence of a clear showing that it was reached
arbitrarily or that the trial court had plainly overlooked certain facts of substance or value that if
considered might affect the result of the case.3

As well explained by the Solicitor General, Persons do not necessarily react uniformly to a given
situation, for what is natural to one may be strange to another.4 Verily, there is no standard form of
human behavioral response when one is confronted with a strange and startling experience.5

It was thus natural for Nona Cinco to just have stayed at the sidelines. She is a woman who could not
have prevented the armed appellant from stabbing the victim, anyway. The suddenness of the
happening and Nona Cincos fear for her own life must have prevented her from shouting for help.6

Delay in divulging the name of the perpetrator of the crime, if sufficiently reasoned out, does not impair
the credibility of a witness and his testimony nor destroy its probative value. It has become judicial
notice that fear of reprisal is a valid cause for the momentary silence of the prosecution witness.7

In the case at bench, witness Nona Avila Cinco gave an eyewitness account of the killing complained of
in a categorical and straightforward manner.

Appellant belittles the fact that Nona Cinco remembers the stabbing incident to the minutest details.
According to him, this is alright if the crime just happened, or after the happening of the crime, the
witness FORTHWITH reported the matter to the proper authorities. Unfortunately, the witness reported
the said incident after NINE (9) LONG MONTHS.

It does not appear that it was impossible for Nona Cinco to have a detailed recollection of the stabbing
sued upon. Even before the incident, she already saw the accused with some companions inside
Funeraria Gloria and overheard the plan to kill someone. At that time, she was only about one (1) meter
from the accused and his companions. And when she proceeded to Honrades Street, she and the
accused walked along with and even looked at each other.

At the time when the stabbing in question was taking place, Nona Cinco was only four to five meters
away. The possibility of her recalling even the minutest details cannot therefore be ruled out.

Appellant faults Nona Cinco for reporting the stabbing incident to the police authorities only after
nine (9) months, and for her apparent indifference during the incident, doing nothing even while
witnessing a cruel and gruesome crime.

Appellant also theorizes that Nona Cinco was lying when she testified that she was taking bets for a PBA
game on October 14,1992, a Wednesday. Claiming that PBA games are held only on Tuesdays, Thursdays
and Saturdays; appellant concludes that She lies on a simple or minor thing, all the more, she can lie on
a bigger scale.

On the other hand, the Solicitor General pointed out that: There are 100 combinations which bettors
can try their luck on the so-called PBA game ending and, therefore, 100 corresponding bets should be
collected for maximum profit. It was not farfetched, therefore, for Nona Cinco to collect bets a day or
two before the actual PBA games which would decide the winning bet.

Besides, the lie alluded pertains to an insignificant matter which does not affect the material details of
the stabbing incident, and the unequivocal eyewitness account of the killing of the victim, Lloyd del
Rosario. The maxim or rule falsus in unos, falsus in omnibus does not lay down a categorical test of
credibility. It is not a positive rule of law of universal application. It should not be applied to portions of
the testimony corroborated by other evidence particularly where the false portions could be innocent
mistakes. Moreover, the rule is not mandatory but merely sanctions a disregard of the testimony of the
witness if the circumstances so warrant. To completely disregard all the testimony of a witness on this
ground, his testimony must have been false as to a material point, and the witness must have a
conscious and deliberate intention to falsify a material point.8

SECOND ISSUE:

THE DEFENSE OF ALIBI

The accused relies on the defense of alibi, an inherently weak defense.9 In a long line of cases, this court
has held that alibi is generally considered a weak defense because of the facility with which it can be
fabricated. Thus, courts have always looked upon it with suspicion. Well-settled is the rule that for alibi
to prevail, it must be established by positive, clear and satisfactory proof that it was physically
impossible for the accused to have been at the scene of the crime at the time of its commission, and not
merely that he was somewhere else.10

Appellant failed to convince the court that it was physically impossible for him to be at the scene of the
crime at G. Tuazon cor. Ma. Cristina Sts. He claimed that during the stabbing incident at around 1:30
p.m., he was reviewing for an oral examination in his subject of Computer 2 at the Arellano University.
But as the trial court noted, the situs of the crime was not far from Arellano University such that
granting arguendo that the accused was initially at the Arellano University, he could have easily sneaked
back to the scene of the crime considering that the two places are just near each other.11

To buttress his theory that he was actually reviewing for his final oral examination in Computer 2 at the
very time the crime occurred, he alleged that he received a grade of 2.25 in said subject. But aside from
his testimony and that of Lino Asuncion, no other evidence was presented to substantiate this
submission. Appellant should have, at least, exhibited his class card or grading sheet to show that he did
really take an examination in that subject.

Furthermore, positive identification, where categorical and consistent and without any showing of ill
motive on the part of the eyewitness testifying on the matter, prevails over alibi and denial which, if not
substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving of
weight in law.12

In the instant case, prosecution witness Nona Cinco positively identified appellant as the culprit. Another
prosecution witness, Rogelio Robles, testified to the actual killing of the victim by appellant. Although
the latter recanted, the lower court correctly held that the later retraction made by Rogelio Robles does
not by itself render his previous testimony false or perjured because the same testimony appears to be
credible and worthy of belief.13 Then too, affidavits of recantation are considered as exceedingly
unreliable because they can be easily secured from poor and ignorant witnesses usually for monetary
consideration and most likely to be repudiated afterwards.14

THIRD ISSUE:

THE PRESENCE OR ABSENCE OF EVIDENT PREMEDITATION

Appellant argues that the trial court erroneously appreciated evident premeditation against him.
Assuming for the sake of argument that he is the felon, the crime he committed is not MURDER but
HOMICIDE,15 he maintains.

Appellant correctly states the rule that the circumstance which would qualify the killing to murder must
be proved as convincingly as the crime itself.16

Here, we are of the irresistible conclusion that the attendance of evident premeditation to qualify the
killing complained of to murder is borne out by the evidence.

There is evident premeditation when the following requisites are met:

1. The time when the offender determined (conceived) to commit the crime;
2. An act manifestly indicating that the culprit has clung to his determination; and
3. A sufficient lapse of time between the determination and execution to allow him
to reflect upon the consequences of his act.17

The essence of premeditation is that the execution of the criminal act is preceded by cool thought and
reflection upon the resolution to carry out the criminal intent during the space of time sufficient to
arrive at a calm judgment.18
The appellant, in his brief, implies that the first requisite of evident premeditation was not sufficiently
proven, contending, that:

xxx the aggravating circumstance of evident premeditation was appreciated by the trial court based
solely on the testimony of witness Rogelio Robles. The said witness testified that accused-appellant and
several others often met in his (Rogelio Robles) house. In one of their meetings, accused-appellant and
his companions hid some guns and tusok in the said witness house. Other than these testimonies, the
trial court proffered no other rationale to justify the application of evident premeditation.19

At first glance, it may seem that the first requisite of evident premeditation, [i.e. the time when the
offender determined (conceived) to commit the crime], was appreciated by the lower court solely on
the basis of the testimony of Rogelio Robles.

Appellant theorizes that the testimony of Robles is not believable; ratiocinating, thus :

xxx such testimonies which were retracted by Rogelio Robles cannot by any yardstick be considered
credible in itself. It simply defy human experience. For evidence to be believed, it is basic that it must
not only proceed from the mouth of a credible witness, but it must be CREDIBLE IN ITSELF. (Emphasis
supplied; Layug v. Sandiganbayan and People of the Phil., supra; Tuason v. C.A., supra; Lee Eng Hong v.
C.A., 241 SCRA 392) If it were true that accused-appellant and several others planned the subject killing,
they would not be crazy enough to have openly discussed the same in the presence of another person
(TSN, June 30, 1994, p. 9). They would be very discreet about it because even the most unlearned or
unschooled person would know that killing is against the law of man and of God. If indeed they have
planned it, they did it in complete secrecy. More, there is no explanation why of all places, accused-
appellant and his group met at Rogelio Robles house. The latter is only the neighbor of the alleged
president of the formers organization. Worse, accused-appellant and his group hid some guns (Ibid., p.
11) and tusoks (Ibid., p. 22), in Rogelio Robles house. Any person who is in his right frame of mind would
not allow anybody to use his house as an armory so to speak or for any illegal purposes.

Appellant faults Rogelio Robles for his utter lack of concern knowing fully well that the appellant and his
companions were planning to kill someone and even allowed them to hide guns and tusok in his house.
But the reason for the apparent indifference of Robles could be gleaned from the following revelation :

ATTY. CALIMAG:

Q - And when they left your house and took the tusok and left the guns, you know very well from
Tonton Montero that they are going to kill somebody, am I right?

A - In school. I did not know that the one they will kill is from my place.

Q - Now, my question you know that they are going to kill somebody, what did you do, if any as a
concerned citizen?

A - What if they turn their ire on me.

COURT:
Aside from that English translation, you put on record the Tagalog answer of the witness: a Eh, kung ako
naman ang pagbalingan.

ATTY. CALIMAG

Q - Now, Mr. Witness, why it took you so long to come out and testify, if you really know the truth about
this matter?

A - Because the parents of the victim were still mad or angry, what would happen to me if I tell them
early, what if they said that I am a part of it.

Q - Why, what do you think about yourself, are you not a part of it, Mr. Witness? Because you failed to
report this matter immediately to the police officer?

A - I kept it to myself for fear that my brother and sisters might be involved, what will happen to me.

Fully aware that the appellant and his companions were armed with guns and tusok, it was but natural
for Robles to just observe the protagonists and not get involved. Fear for his own life and that of his
family may have overcome whatever humanitarian inclination he had as a concerned citizen.

Besides, even without the testimony of Rogelio Robles, the presence of the first requisite of evident
premeditation appears to have been thoroughly and sufficiently established. The determination or
conception of the plan to kill the victim could be deduced from the outward circumstances that
happened on the fateful day of October 14, 1992. Records show that at 11:30 in the morning of October
14, 1992, prosecution witness Nona Cinco saw the accused with some companions at Funeraria Gloria.
She personally heard the plan to kill someone. Another prosecution witness, Florencio Castro, who
works at the Funeraria Gloria also saw the group of Gari Bibat in the said place. At around 1:30 in the
afternoon, Nona Cinco saw the appellant for the second time. She saw the appellant hurry towards the
victim, take a pointed thing from a notebook and with the use of such weapon, stabbed the victim on
the chest. These overt acts clearly evinced that the appellant clung to his resolution to kill the victim.

From the time Nona Cinco heard the plan to kill someone at 11:30 up to the killing incident at 1:30 in the
afternoon of the same day, there was a sufficient lapse of time for appellant to reflect on the
consequences of his dastardly act.

As held in the case of People v. Dumdum20 the killing of the deceased was aggravated by evident
premeditation, because the accused conceived of the assault at least one hour before its perpetration.
In the case under examination, two hours had elapsed from the time appellant clung to his
determination to kill the victim up to the actual perpetration of the crime.

WHEREFORE, the Decision appealed from is hereby AFFIRMED. Costs against accused-appellant.

SO ORDERED.
20. People v. Empacis, G.R. No. 95756, 14 May 1993

G.R. No. 95756 May 14, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CRISOLOGO EMPACIS, accused-appellant.

The Solicitor General for plaintiff-appellee.

Antonio A. Almirante, Jr. for accused-appellant.

NARVASA, C.J.:

In the Regional Trial Court of Cebu City,1 five men, namely: Crisologo Empacis, Romualdo Langomez,
Zacarias Solis, Carlito Antiga, and Bebe Antiga, were indicated for the crime of robbery with homicide
under Article 294 (1), in relation to Article 296, of the Revised Penal Code.2 The indictment reads as
follows:

That on the 16th day of September, 1986 at 9:00 o'clock in the evening, more or less, in
Barangay Kanguha, Municipality of dumanjug, Province of Debu . . . (said) accused, all
armed with carbines and bladed weapons, conspiring, confederating and mutually
helping one another, with evident premeditation and intent to kill, treacherously attack,
assault and use personal violence upon FIDEL SAROMINES by stabbing him on different
parts of his body and as a result of which FIDEL SAROMINES died; that on the occassion
of the said killing, in pursuance of their conspiracy, . . . (the) accused did then and there
wilfully, unlawfully and feloniously, and by means of violence, with intent to gain and
against the will of FIDEL SAROMINES, TAKE, STEAL AND CARRY AWAY the sum of
TWELVE THOUSAND (P12,000.00) PESOS, Philippine Currency, belonging to the latter.

That the crime was committed by a band, all the accused being armed with carbines and
bladed weapons (Article 296, RPC).

IN VIOLATION of and contrary to ARTICLE 294 paragraph 1 of the Revised Penal Code.

All the accused, except Romualdo Langomez, were thereafter taken into custody. Langomez
disappeared, and was never apprehended and brought to trial.3 In due course, the other accused were
arrainged and tried.

Sometime in December, 1987, during the trial, Carlito Antiga died from a gunshot wound.4

The trial eventuated in a verdict of conviction against Crisologo Empacis, and of acquittal as regards
Zacarias Solis and Bebe Antiga. The Trial Court's judgment, dated October 24, 1989, made the following
final disposition:5
 WHEREFORE, the Court finds the accused Crisologo Empacis guilty of robbery with
homicide as defined and penalized under Article 294 (1) of the Revised Penal Code, and
considering the attendance of the four generic aggravating circumstances of dwelling,
nighttime, craft or fraud and superior strength, not offset by any mitigating or
extenuating circumstance, hereby sentences the said accused Crisologo Empacis to the
supreme penalty of death. In view of the fact, however, that the death penalty has been
abolished by Section 19(1), Article III of the 1987 Constitution,6 the accused Crisologo
Empacis is hereby sentenced to reclusion perpetua, to suffer the accessory penalties
prescribed by law and to pay the heirs of Fidel Saromines the amount of THIRTY
THOUSAND PESOS (P30,000.00) by way of death indemnity, without subsidiary
imprisonment in case of insolvency in view of the principal penalty. He shall also pay the
costs of these proceedings.

The accused Crisologo Empacis is hereby immediately ordered arrested and held in the
custody of the law pending appeal or review of this decision, should the accused wish to
appeal from or take up on review this decision.

The other two accused Zacarias or Caring Solis and Bebe Antiga are hereby acquitted of
the charges against them, their guilt not having been proved beyond a reasonable
doubt.

Let a bench warrant issue against the fifth accused in this case, Romualdo a.k.a. Maldo
Langomez so that he can be brought to court to be dealt with accordingly.

The Trial Court accorded superior credit to the evidence of the prosecution in so far as it established
Empacis' direct participation in the felony charged, to wit: the testimony of the widow of victim, Camila
Saromines; of their son, Peter Saromines; and of a neighbor, Balbino Bulak, which the Court found to be
corroborated inter alia by the Post Mortem Report dated September 17, 1986 of the Rural Health
Physician at Dumanjug, Cebu (Dr. Octavio Ortiz), and even by the testimony of accused Crisologo
Empacis himself.7

Following is the story narrated to the Trail Court by the Government witnesses.

At about 9 o'clock on the night of September 16, 1986, as Fidel Saromines and his wife, Camila, were
about to close to their small store, located in their house at Kanguha, Dumanjug, Cebu, two men came
and asked to buy some sardines and rice. They were Romualdo (or Maldo) Langomez and Crisologo
Empacis. Camila served them and they proceeded to make a meal of the rice and sardines.

After they finished eating, Romualdo told Fidel to sell him cigarettes. As Fidel was handing over the
cigarettes, Romualdo announced a "hold-up" and commanded Fidel to give up his money. As it
happened, Fidel then had P12,000.00 in his house, wrapped in cellophane. This he started to give to
Romualdo but as the latter was taking hold of the packet, Fidel suddenly decided to fight to keep his
money. A struggle followed in the course of which Romualdo stabbed Fidel about three times. Crisologo
joined in and with his own knife also stabbed Fidel. At this time, gunshots were heard outside of the
house; and a neighbor of the Saromineses, Balbino Bulak, recognized one of those doing the shooting as
certain Carlito Antiga.8 A voice was heard from below saying, "Stab him!"9 to which Langomez replied, "I
already stabbed (him)."10
From his little sister's room, Fidel's thirteen-year odl son, Peter, saw his father fighting for his life with
Romualdo and Crisologo Empacis. Heeding his father's cry, "Peter, help me!" (Suportahe ko, Peter!),
Peter took hold of a "pinuti" (a long bolo), and rushed to his father's defense. He struck out at Crisologo
and inflicted two wounds on him, one at the right shoulder, and the other, in the neck. Romualdo and
Crisologo jumped out of the house and fled, with the sound of Peter's defiant shout trailing them,
"Come back, if you are brave!"

Peter then turned to his wounded father, but found him already dead from his injuries. The post-
mortem examination conducted by Dr. Octavio Ortiz, Rural Health Physician, disclosed four (4) stab
wounds on the deceased, all in the upper back. Two of these, which penetraded the lungs and heart,
were
fatal.11

Crisologo Empacis repaired to the clinic of Dr. Eustaquio Deiparine at the poblacion of Sibonga, Cebu, for
treatment of the wounds inflicted on him by Peter, arriving there between 10 and 11 o'clock that same
night. The doctor found Crisologo's wounds — described by him as a "(hacking) wound on the right side
of the neck and the right shoulder" — "so serious" as to require further treatment, even after they had
been sutured. Dr. Deiparine asked Crisologo how he had come by these wounds. Crisologo said that at
around 6 to 7 o'clock that evening, near the Papan Market, he was assaulted without warning by a
young man, who injured him with a bolo.

Police officers came to Dr. Deiparine's clinic the following morning, looking for a man might have been
treated for wounds from a bladed weapon. They were directed to the public market where they came
upon Crisologo, taking breakfast. They arrested him and brought him to the Dumanjug INP Station.
There, Crisologo was interrogated by the Station Commander, P/Pfc. Rogelio Abrea, and gave a sworn
statement.

Crisologo was later brought to Municipal Judge Gerardo Gestopa, before whom he took oath on his
affidavit. Before admnistering the oath, the Judge had a law graduate, one Victor Esguerra, called to
assist Crisologo and verify if he had voluntarily executed his sworn statement.

The three (3) accused all took the witness stand in their defense,12 and gave stories different from that
of the prosecution witnesses.

Empacis confirmed the facts established by the prosecution witnesses, up to a point. He admitted that
he and Romualdo Langomez had indeed gone to the store of Fidel Saromines on the night in question,
and had there partaken of a meal of sardines and rice. He also acknowledged that after taking their
supper, Romualdo Langomez had gone upstairs to buy some cigarettes from Fidel, and it was there the
moments later, he saw Romualdo and Fidel grappling with each other. He denies having joined
Romualdo in attacking Fidel. He claims that when he saw Romualdo pull out a knife, he tried to stop
Romualdo from using the knife on his adversary; that nonetheless, Romualdo succeeded in stabbing
Fidel twice; that a teen-age boy came with a bolo and lashed out at Romualdo but the latter was not hit
because he pulled him to one side, and instead it was he (Empacis) who was struck at the right side of
the neck; that he then ran away towards his barrio and from there he was brought by his neighbors to
the clinic of Dr. Deiparine; that he was arrested by the police the following morning; that while being
investigated at the municipal hall of Dumanjug, he told the investigator he wished to avail of the
assistance of counsel but his request went unheeded; and that while being interrogated, some
policemen were inflicting pain on him by squeezing his injured back in order to force him to admit his
participation in the robbery-homicide at Kanguha, Dumanjug.13

The other two accused, Zacarias Solis and Bebe Antiga, denied any participation whatever in the crime.
They were both absolved by the Trial Court, which agreed with them that the prosecution had indeed
failed to clearly and positively and their complicity in the offense.14

The Court a quo rejected (quite correctly, it may be said) the sworn statement purpotedly execute by
Empacis on September 17, 1986, offered by the prosecution, condemning it was "null and void, . . .
offensive to Art. III, Section 20, of the New Constitution and the teachings of the Supreme Court
. . . ."15 It ruled however that the other proofs of the prosecution overwhelmingly demonstrated
Crisologo Empacis' guilt of the crime charged, and accordingly entered a judgment of conviction against
him. It ruled that Empacis had committed the offense in conspiracy with Romualdo Langomez (who was
then and to this day remains at large); that both of them knew Fidel to be in possession of a sizable
amount of money at the time, and their concerted acts proved their agreement to rob Fidel and if
necessary, kill him. It also ruled that the crime was attended by several aggravating circumstances, i. e.,
having been perpetrated (a) "in the dwelling of the offended party . . . (the latter not having) given
provocation,"16 (b) "in the nighttime;"17 (c) with employment of "craft of fraud;"18 and (d) with
advantage being taken of superior strength.19

From this judgment Empacis has appealed to this Court. His basic thesis is that the evidence of the
prosecution does not actually prove his guilt of the felony of which he is accused beyond reasonable
doubt.

A painstaking review of the record fails to reveal to this Court any error on the part of the Trial Court of
sufficient gravity to justify reversal or modification of its verdict. This Court is unable to perceive any
reason to doubt the veracity of the testimony of the victim's widow and son respecting the identity of
Romualdo Langomez and Crisologo Empacis as the persons who attacked and killed Fidel Saromines in
their effort to make off with the latter's money amounting to P12,000.00, and the acts individually done
by Romualdo and Crisologo in pursuance of their common nefarious objective. Indeed, the narrative of
the widow and son is, as already pointed out, confirmed for the most part by the testimony of Crisologo
Empacis himself. The latter's attempt to exculpate himself, by portraying himself as a frustrated
protector of Fidel Saromines, cannot be taken at face value, as against the more credible declarations of
the victims widow and son, specially considering that Crisologo's credit as a witness has been gravely
enfeebled by his having obviously lied to the physician treating him, as regards the cause of his
injuries.20

The Court has been cited to no plausible cause for Fidel's widow and son to testify falsely against
Crisologo if it be true, as the latter insinuates, that either they had not seen the actual killing or, having
witnessed it, had seen Crisologo actually try to stop Romualdo from stabbing Fidel. No reason exists,
therefore, to disbelieve them.21 The fact that the victim's son, Peter, had to correct his statement on
direct examination that Romualdo Langomez stabbed his father five (5) times, declaring, on cross-
examination, that in truth Romualdo stabbed his father only about three times while Crisologo Empacis
stabbed the victim once — which the appellant seeks to make capital — is not sufficient warrant to
reject and discard Peter's evidence. The discrepacy is at best a minor one, not all destructive of Peter's
credibility as an unrehearsed witness. This Court agrees that the Trial Court has correctly assessed the
credit that should be accorded to the evidence of the prosecution witnesses.
This Court also agrees that conspiracy is adequately proven by the evidence. Langomez and Crisologo
Empacis came to Fidel's store late at night, acting as bona fide customers. Immediately after finishing
their supper, they demanded the delivery to them of Fidel's money, of which they evidently had prior
knowledge, Crisologo lending silent support to his companion's order for Fidel to turn over the money to
them; they helped each other wrest the money away from Fidel and subdue him by deadly knife thrusts;
Romualdo stabbing Fidel thrice, Crisologo, once; they had obviously arranged for shots to be fired from
outside Fidel's store as a means of frightening Fidel to submit to their command; and they fled from the
scene, together. They acted in concert, helping and cooperating with one another (and others) by
simultaneous acts, evidently in pursuit of a common objective.22

The aggravating circumstance of craft or fraud23 was properly appreciated against Empacis. He and
Romualdo pretended to be bona fide customers of the victim's store and on his pretext gained entry
into the latter's store and later, into another part of his dwelling. This Court has held stratagems and
ruses of this sort to constitute the aggravating circumstance of fraud or craft, e.g: where the accused —

a) pretended to be constabulary soldiers and by that ploy gained entry into the
residence of their prey whom they thereafter robbed and killed;24

b) pretended to be needful of medical treatment, and through this artifice, entered the
house of the victim whom they thereupon robbed and killed;25

c) pretended to be wayfarers who had lost their way and by this means gained entry
into a house, in which they then perpetrated the crime of robbery with homicide;26

d) pretended to be customer wanting to buy a bottle of wine;27

e) pretended to be co-passengers of the victim in a public utility vehicle;28

f) posed as customers wishing to buy cigarettes; and as being thristy, asking for drink of
water.29

The Court also agrees that nighttime was properly appreciated as an aggravating circumstance against
the accused. To be sure, nighttime is not per se aggravating.30 It must be shown that nocturnity was
deliberately and purposely sought to facilitate, or that it actually facilitated, the commission of the
crime.31 In the case at bar, the lateness of the hour no doubt precluded the presence of other customers
who could have deterred the felons, or come to the aid of the victim. All things considered, there is
adequate showing that nocturnity was deliberately sought by the robbers and did in reality facilitate the
perpetration of the felony.

For the aggravating circumstance of superior strength to be deemed present in a case, it does not suffice
to prove superiority in number on the part of the malefactors;32 it must appear that they purposely
employed excessive force, force out of proportion to the means of defense available to the person
attacked.33 In this case, the evidence shows that Empacis helped his co-accused by also stabbing the
victim; he and his companion took advantage of their combined strength and their bladed weapons to
overcome their unarmed victim and assure the success of their felonious design to make off with his
money.
That the crime was "committed in the dwelling of the offended party, . . . the latter . . . not (having)
given provacation," was also correctly appreciated as an aggravating circumstance.34

This Court thus sees no cause to deviate from the established axiom that the factual findings of the Trial
Court are accorded the highest respect on appeal, if not indeed regarded as conclusive, absent any
persuasive showing that material facts have been overlooked or ignored which might otherwise dictate
a different verdict.35

The Court a quo sentenced a Crisologo Empacis to pay the heirs of Fidel Saromines in the amount of
Thirty Thousand Pesos (P30,000.00) "by way of death indemnity." Pursuant to prevailing case law,36 this
indemnity must be increased to Fifty Thousand Pesos (P50,000.00). On the other hand, despite the
evidence given by Fidel Saromines' widow establishing the forcible taking from her husband of the
amount of P12,000.00 by Crisologo and Romualdo,37 the Trial Court somehow omitted to require the
return of said stolen money, as required by law.38

WHEREFORE, with the modification that the indemnity for death payable to the heirs of Saromines is
increased to P50.000.00 and restitution of the amount of P12,000.00 shall be made by the accused,
jointly and severally, the Decision of the Trial Court subject of this appeal is hereby AFFIRMED.

IT IS SO ORDERED.

21. People v. Bigcas, G.R. No. 94534, 2 July 1992

G.R. No. 94534 July 2, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

RODRIGO BIGCAS y AMUNCIO and QUILIANO BUTRON y PEROCHO, accused-appellants.

REGALADO, J.:

Finding accused-appellants Rodrigo Bigcas and Quiliano Butron guilty beyond reasonable doubt of killing
one Ambrocio Palapar, the Regional Trial Court of Bohol, Branch IV in Tagbilaran City 1 imposed on them
the penalty of "reclusion perpetua or life imprisonment" and to solidarily pay the heirs of the victim
"legal indemnity" of P30,000.00, actual damages in the amount of P11,150.00, loss of earnings of
P20,000.00 and the costs. 2

In an information dated October 13, 1988, appellants Butron and Bigcas were charged with murder
allegedly committed as follows:

That on or about the 25th day of July, 1988 at barangay Poblacion, municipality of Pilar,
province of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating together and mutually helping with
 (sic) each other, with intent to kill, abuse of superior strength, and with treachery, by
suddenly attacking the victim without giving him the opportunity to defend himself and
without justifiable cause, did then and there wilfully, unlawfully, and feloniously attack,
assault and stab one Ambrocio Palapar y Macarayan with the use of a sharp-pointed
bolo and a piece of wood thereby inflicting upon the vital parts of the body of the victim
mortal wounds or injuries which resulted directly to the immediate death of the victim
Ambrocio Palapar y Macarayan, to the damage and prejudice of the heirs of the said
victim.

Acts committed contrary to the provisions of Article 248 of the Revised Penal Code with
the aggravating circumstance of nighttime being purposely sought for (sic) or taken
advantage of by the accused to facilitate the commission of the crime. 3

Appellants pleaded not guilty when arraigned and, thereafter, trial on the merits ensued wherein,
predictably, the prosecution and the defense presented different versions of the circumstances which
gave rise to the alleged killing.

The version of the prosecution revolved basically around the testimonies of the two eyewitnesses,
Rosito Doydoy and Jesus Calape, with corroborative and supplementary testimonies on other aspects
furnished by Pfc. Ponciano Butron of the Integrated National Police Station at Pilar, Bohol and Dr.
Lourdes Atop-Tan, municipal health officer of the same town.

Rosito Doydoy testified that after attending the last prayers for his uncle which ended at 8:30 in the
evening of July 25, 1988, he went home with his son, Rodel, to his house some two kilometers away. On
the way and at a distance of about twelve meters, Doydoy saw three persons involved in a commotion.
It was not so dark then as the moon was shining brightly. From behind tall cogon grass, he saw appellant
Butron strike Ambrocio Palapar two times with a piece of wood on the latter's back. In his attempt to
flee from his aggressor, Palapar passed beside witness Doydoy who was then trying to hide himself and
his son behind the bushes. Palapar was chased by appellant Bigcas who, upon catching up with the
former stabbed him twice with a bolo at the back. The chase continued until Bigcas was able to stab the
victim again at the back of the latter's right knee. The victim fell on the ground, after which he uttered,
"Long, stop because I will die of these wounds." Butron shouted at him saying, "I will kill you, Boyax." He
then approached Palapar and hit him twice with a piece of wood on the right jaw. Bigcas, on his part,
stabbed the supine victim several times. Thereafter, both appellants left the victim, with Butron telling
Bigcas. "You own the killing and these two bolos and I will be with you anywhere." 4

Jesus Calape, testified on essentially the same facts. He declared that he left his house at 9:00 o'clock
that same night to go to the house of his "kumpadre Imo," whose real name is Maximo Tiro, to borrow
the latter's carabao as he wanted to haul posts for his house. He purposely went there that night
because Tiro is usually out of his house during daytime. While on his way, he saw the victim Palapar
being attacked by the two appellants. Butron hit Palapar twice with a piece of wood at his back. Bigcas
told the victim to fight but the latter refused. Palapar pleaded for his life but appellant Bigcas instead
stabbed him twice, also at the back. Due to his fear after seeing Bigcas stab the victim, Calape ran home
and told his wife what he witnessed. The next morning, he heard that the victim died. 5

The defense, as expected, presented a version based principally on the testimonies of the two
appellants, Butron and Bigcas, which are hereunder summarized.
It is claimed that on July 28, 1988, at around 2:30 in the afternoon, Rodrigo Bigcas was at the store of a
certain Efren Butron at Buyong, Pilar. At about 6:30 P.M., Quiliano Butron arrived at the same store. A
few minutes later, Ambrocio Palapar, who was apparently already intoxicated, arrived and drank 'tuba'
with the group of Bigcas and Butron. Palapar requested for more drinks but Quiliano Butron refused as
he had no more money. Palapar got angry and called Butron stingy. He challenged Butron to fight but
the latter remonstrated with him. Palapar then placed his hand on Butron's shoulders and told him not
to worry. He thereafter held the waist of Butron, grabbed the knife that was hanging from the latter's
waist and challenged everybody to fight. Someone reported the incident to the police and, later on, Pfc.
Ponciano Butron responded together with another policeman. Pfc. Butron took the knife from Palapar
and ordered the latter to go home, but he required Bigcas and Butron to stay a while and let Palapar
leave ahead. Around fifteen minutes after Palapar had left, Bigcas and Butron left together with some
other persons. Butron walked ahead as he was bringing something for his family. 6

Later, on their way, Bigcas and a certain Anasco met appellant Butron running and already wounded.
Out of fear, Anasco ran away. Bigcas brought Butron to surrender to the police at the municipal building
of Pilar, Bohol. Butron reported to the police that he was waylaid by Palapar on his way home. Bigcas
later accompanied Butron to the Simeon Toribio Hospital in Carmen, Bohol where Butron was
confined. 7 Butron complemented the foregoing testimony by narrating that, on his way home, he saw
Palapar standing in the middle of the road. He greeted Palapar by his nickname "Boyax" but received no
answer. As he was passing by Palapar, the latter suddenly stabbed him with a bolo, hitting his stomach.
He backtracked but the victim followed him and gave him three stab thrusts which he parried. He was
able to take hold of the victim's hand holding the bolo and wrestled the same from him. Butron then
repeatedly stabbed Palapar until the latter fell. When he went to the police, he also surrendered the
bolo used in the alleged killing. Butron was brought by Bigcas and the police to the hospital where he
was treated and confined for four days. 8

After trial, the trial court rendered the assailed judgment. Not satisfied therewith, Butron and Bigcas
interposed the present appeal wherein they filed separate briefs through their respective counsel.

Appellant Butron, for his part, argues that the court a quo erred (1) in failing to duly consider the
material evidence presented by the prosecution and the defense; (2) in disregarding the evidence of
self-defense which evidence constituted his defense; and (3) in finding him guilty of the crime of
murder. 9

Appellant Bigcas, on the other hand, contends that the trial court erred (1) in failing to give full credence
to the declaration of appellant Quiliano Butron, against his penal interest, that he alone killed the victim,
Ambrocio Palapar; (2) in convicting appellant Rodrigo Bigcas of murder despite the failure of the
prosecution to establish the presence of any of the qualifying circumstances; and (3) in appreciating the
aggravating circumstance of nocturnity. 10

The separate assignments of errors raised by both appellants are congruent in material points, hence
the same shall be jointly discussed in conjunction with each other.

A careful evaluation of the records of the case shows that appellants were correctly found guilty by the
court below for the death of Ambrosio Palapar and we see no reason for departing from the factual
findings of the trial court which resulted in its verdict of guilt.
We have perforce to state once again that this Court, in a long line of cases, has consistently held that
the findings of fact of a trial judge who has seen the witness testify and who has observed his demeanor
and conduct while on the witness stand are not disturbed on appeal, unless certain facts of substance
and value have been overlooked which, if considered, may affect the outcome of the case. 11 We do not
perceive any of such exceptive instances of oversight in the findings of fact of the lower court in this
case.

As found by said court and reflected by the transcripts of their testimonies, the witnesses for the
prosecution not only testified in a straightforward manner but the substance of their testimonies inspire
credence and are confirmed by the physical evidence. If there be some inconsistencies in their
declarations, the same refer only to minor matters which do not at all affect their credibility. As we ruled
in People vs. Mangalino, 12 minor inconsistencies in the testimonies of the witnesses are but natural and
even enhance their credibility, as these discrepancies indicate that the responses given were honest and
unrehearsed. This is especially true in the case at bar where said witnesses had no motive whatsoever to
prevaricate and enmesh appellants in a fabricated charge.

Appellant Butron interposed self-defense in order to disclaim criminal liability. He, however, disregarded
the rule that self-defense must he established by clear and convincing evidence. 13 Where an accused
claims self-defense, the burden of proof is shifted to him. He must rely on the strength of his own
evidence and not on the weakness of the prosecution. 14 This is both a logical and inevitable
consequence dictated by the fact that, having admitted the killing, he has to justify the taking of the
victim's life by the requisites and standards of the law for such absolution.

It is elementary that for self-defense to prosper the accused must prove that there was unlawful
aggression by the victim, that he employed reasonable means to prevent or repel such aggression, and
that there was lack of sufficient provocation on his part. 15 Just as fundamental is the overriding
necessity to prove unlawful aggression on the part of the victim, absent which there is no call to
expound upon any consideration of self-defense in a case where a life has been taken.

Now, even granting arguendo some degree of truth to appellant Butron's allegations that he was not
armed when he left the store and that it was the victim who had the opportunity to secure a
weapon, 16 the same does not necessarily relieve him of liability. Appellant Butron himself admitted that
he was able to wrench the alleged weapon away from Palapar. Thereafter, the victim fled, signifying
thereby his intention not to fight and, from that moment, any supposed unlawful aggression had already
ceased. But, instead of letting the victim go, as the prosecution witnesses testified and this is not
seriously contested by the defense, appellants pursued Palapar, immobilized him and stabbed him to
death.

The theory of self-defense is based on the necessity on the part of the person attacked to prevent or
repel the unlawful aggression. When said danger or risk ceased to exist, appellants had no justification in
law or in fact to attack the erstwhile aggressor. Thus, as early as the case of People vs. Alviar, 17 we held
that when the accused, who had been attacked by the deceased, succeeded in snatching the bolo away
from the latter, and the deceased already manifested a refusal to fight, the accused was definitely not
justified in killing him. As more recently reiterated, the claim of self-defense is not credible where the
accused narrated that he had succeeded in disarming the victim of the piece of wood (allegedly, a bolo
in the case at bar) which the latter was carrying, hence the act of the accused in thereafter stabbing the
victim with frequency, frenzy and force can no longer be considered as reasonably necessary. 18
Moreover, the results of the autopsy conducted by Dr. Lourdes Atop-Tan on the victim showed that the
latter sustained more or less thirteen wounds, as follows:

1. Stab wound on the anterior chest wall, 2 inches below the right nipple, 2 inches
diameter, 4 inches deep, sharp edge posteriorly, round edge anteriorly penetrating the
anterior chest wall, penetrating the heart.

2. Stab wound on the anterior chest wall 3 inches above the right nipple, 2 inches
diameter, 3 1/2 inches deep, sharp edge posteriorly, round edge anteriorly penetrating
the anterior chest wall, penetrating the heart.

3. Stab wound on the anterior abdomen at the epigastric region 2 inches diameter, 3
inches deep, posterior edge sharp, anterior edge round penetrating the anterior
abdomen, perforating the stomach.

4. Stab wound on the right lumbar region, 2 inches diameter, 3 inches deep, anterior
edge round, posterior edge sharp, penetrating the right kidney.

5. Stab wound on the anterior abdominal region 1 inch below the umbilicus — 2 inches
diameter, 1/2 inch deep, anterior edge round, posterior edge sharp, non-penetrating.

6. Stab wound on then right forearm 4 inches diameter, 1/2 inch deep.

7. Stab wound on the right arm 4 inches diameter, 1/2 inch deep.

8. Lacerated wound on the left arm, 4 inches diameter, 1 inch deep.

9. Lacerated wound on the left forearm 4 inches diameter, posteriorly.

10. Stab wound on the left palm, 2 inches diameter, 1 inch deep, round edge anteriorly,
sharp edge posteriorly.

11. Stab wound on the left lumbar region, 3 inches diameter, 1 inch anterior edge
round, posterior edge sharp and non-penetrating.

12. Stab wound on the posterior chest wall 3 inches diameter, 1/2 inch deep, 2 inches
below the left scapula.

13. Stab wound on the right foot, 2 inches diameter, 1/2 inch deep.

14. Hematoma and fracture of bone on the neck posterior 3 inches diameter reddish
bluish. 19

Appellant Butron claims that he himself was wounded while he was wresting the knife away from the
victim. His own doctor, however, testified that his wounds in the stomach and on his neck were merely
superficial and admit of the possibility of having been self-inflicted. 20 As the trial court observed, it is
incredible that the victim who was supposedly wielding a bolo could only inflict two small skin-deep
wounds on the allegedly defenseless Butron.

The foregoing incontrovertible physical evidence, and a comparison of the wounds sustained by
appellant Butron and those inflicted, on the victim, clearly and undoubtedly belie appellant's pretension
of self-defense. For, to be consistent with existing jurisprudence, the nature and number of wounds
inflicted by an assailant are constantly and unremittingly considered important indicia which disprove a
plea of self-defense. 21 It is an affront on credulity to yield acceptance to appellant's incredible theory
that he had to inflict such number of lethal wounds while acting in legitimate self-defense against an
ironically defenseless person.

Appellants further contend that the act of eyewitnesses Doydoy and Calape of immediately going home
after having seen such a horrible crime is contrary to the natural and logical course of things. We do not
agree. In People vs. Caringal, 22 we stressed that the natural reluctance of any, if not most, witnesses to
volunteer information to the police authorities in a criminal investigation is a matter of judicial notice.
Such reticence is not uncommon, especially when the same arises out of fear or apprehensions of
reprisal from the perpetrators of the crime being investigated. Also, the fact that a witness may have
given his account of the incident only at the trial below and not sooner neither necessarily impairs his
credibility nor discredits his testimony. Witness Doydoy's hesitancy, to inform his wife of the incident
was further justifiedly explained by the fact that his wife and appellant Bigcas' wife are sisters.

The trial court's holding that treachery cannot be appreciated as a qualifying circumstance against
appellants is correct, since there is no evidence that in the commission of the crime they deliberately
adopted means, methods or forms considered in law as treacherous. Its acceptance of nocturnity as an
aggravating circumstance, however, is erroneous. Even the prosecution witnesses testified that, during
the incident, the moon was shining brightly. The light was bright enough to see what was going on and
to recognize the assailants. Moreover, nocturnity neither facilitated the commission of the crime nor
was it purposely sought by appellants in order to afford impunity. It, therefore, does not qualify as an
aggravating circumstance under either the subjective or objective tests laid down by this Court for it to
be considered as such. 23

We are likewise not convinced that the crime was committed by appellants with abuse or by taking
advantage of superior strength. Regrettably, we can neither determine nor deduce from the
prosecution's sketchy evidence thereon what transpired before the "commotion" involving the victims
and appellants. The two eyewitnesses, Doydoy and Calape testified only on the fight when it was already
in progress but not as to the actuations of the parties proximately and immediately before the
altercation. On the other hand, following the version of the defense which was partly confirmed by Pfc.
Ponciano Butron, the victim was ordered by said policeman to leave the store of Efren Butron ahead of
the others, with appellants directed to stay behind for about fifteen minutes, so that the parties would
not encounter each other again shortly after the incident at said store.

It cannot, therefore, be said that when the fight took place more than fifteen minutes later, because the
victim instead of going straight home obviously waited for appellants to catch up with him, appellants
could have anticipated such an unexpected contingency and had accordingly conceived of taking
advantage of their combined strength and weapons.

For this qualifying circumstance to be considered, it is not sufficient that there be superiority in number
or strength; it is necessary that the accused must have cooperated and intended to use or secure
advantage from such superior strength. 24 As we also emphasized in People vs. Cabiling, 25 abuse of
superior strength may be considered not only when there is an inequality of force between the victim
and the aggressor but there must be a situation of superiority of strength notoriously selected or taken
advantage of by him in the commission of the crime. We find that the prosecution has fallen short of
proof that appellants bad specifically contrived or deliberately intended and prepared to take advantage
of superior strength in a projected assault against the victim. This requisite cannot be drawn from mere
assumptions or conjectures, for qualifying circumstances must be proved as conclusively as the crime
itself. 26

Appellant Bigcas' disclaimer of liability, on the other hand, is likewise unavailing. There were two
eyewitnesses to the incident who testified that appellants Bigcas and Butron did act in a concerted
manner in bringing about the death of victim Palapar. This indicates the existence of conspiracy
between them, although such concurrence of wills arose and was adopted by appellants just
momentarily before attacking the victim.

Conspiracy already exists the moment two or more persons come to an agreement concerning the
commission of a felony and decide to commit it, 27 unlike the qualifying circumstances of treachery and
taking advantage of superior strength which require at least some prior deliberation and adoption of a
specific mode of commission. To establish conspiracy, prior agreement between both accused to kill the
victim is not essential for the same may be inferred from their own acts showing a joint purpose or
design, which was illustrated in this case, by the concerted acts of appellants. 28

All told, it is our considered view that appellants have committed only the felony of homicide, since
treachery was not proved and abuse of superior strength cannot be considered against them. Neither is
the aggravating circumstance of nocturnity attendant in this case. On the contrary, what has been
completely overlooked is the fact that appellant Butron and, resolving the doubt in his favor, appellant
Bigcas are, as we hereby find them to be, entitled to the mitigating circumstance of voluntary surrender
which was established by their testimonies 29 and substantiated by Pfc. Ponciano Butron. 30

WHEREFORE, the judgment appealed from is MODIFIED, with accused-appellants being hereby
DECLARED guilty of homicide, with due extenuation by voluntary surrender, and each of them is hereby
SENTENCED to serve an indeterminate sentence of ten (10) years of prision mayor, as minimum, to
fourteen (14) years and eight (8) months of reclusion temporal, maximum. The death indemnity is
hereby increased to P50,000.00 in accordance with current case law. 31 In all other respects, the
judgment of the court a quo is AFFIRMED.

SO ORDERED.
22. People v. Sangalang, G.R. No. L-32914, 30 August 1974

[G.R. No. L-32914. August 30, 1974.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. LAUREANO SANGALANG, Accused-Appellant.

Solicitor General Felix Q. Antonio, Assistant Solicitor General Octavio R. Ramirez and Solicitor Ma.
Rosario QuetulioLosa for Plaintiff-Appellee.

Narciso V. Cruz, Jr. for Accused-Appellant.

DECISION

AQUINO, J.:

This is a murder case. The testimonies of the two prosecution eyewitnesses disclose that at around six
o’clock in the morning of June 9, 1968 Ricardo Cortez left his nipa hut located at Sitio Adlas, Barrio
Biluso, Silang, Cavite to gather tuba from a coconut tree nearby. Flora Sarno, his wife, was left inside the
hut. While he was on top of the tree gathering tuba, he was struck by a volley of shots. He fell to the
ground at the base of the coconut tree.

His wife Flora heard three successive shots coming south of the hut. She went outside the hut. From a
distance of about twenty-five meters, she saw five men, each armed with a long firearm, firing at her
husband. He was already wounded and was lying on the ground at the foot of the coconut tree. His
assailants were about five meters away from him.

She recognized Laureano Sangalang as one of the five armed men who were firing at her husband. She
and her brother Ricardo had known Sangalang since their childhood. She also recognized Conrado
Gonzales, Irineo Canuel, Perino Canuel and Eleuterio Cuyom as the other malefactors.

Flora ran towards the place where her husband had fallen. She shouted, "Bakit ninyo pinagbabaril ang
aking asawa." The five persons fired at her. She was then about twenty meters away from them. She
retreated to the hut for cover. She heard some more shots. After the lapse of about five minutes,
Laureano Sangalang and his companions left the place. When Flora returned to the spot where her
husband was prostrate, he was already dead.

On the occasion already described, Ricardo Sarno, twenty-seven years old, a brother of Flora, was inside
his own nipa hut which was about ten meters away from Flora’s hut. He was drinking coffee. His wife
and children were eating breakfast. He heard several shots. He came out of his hut. He saw his brother-
in-law being shot by Laureano Sangalang, Eleuterio Cuyom, Perino Canuel, Irineo Canuel and Conrado
Gonzales. He saw Sangalang using a Garand carbine in shooting his brother-in-law. The latter fell from
the top of the coconut tree after he was shot (10 tsn). His sister Flora was trying to approach her
husband but she had to flee to her hut when Sangalang and his companions fired at her. He wanted to
join her but he was likewise fired upon by the five men. So, he retired and took refuge in his own hut.
Later, Sarno saw his sister Flora, sitting inside her hut. He followed her after she left the hut and went to
see her dead husband, who was lying on the ground, face up, at the base of the coconut tree. When he
noticed that his brother-in-law was already dead, he gathered his children and brought them to Sitio
Biga, which was more or less thirty meters away from his hut in Sitio Adlas. Ricardo reported the killing
to the chief of police who went to the scene of the crime with some policemen and Constabularymen.

The necropsy report shows that the twenty-five-year-old Cortez sustained twenty-three gunshot
wounds on the different parts of the body, fourteen of which were entrance-wounds, and nine were
exit-wounds (Exh. A and B). He died due to the multiple gunshot wounds (Exh. C).

On June 10, 1968 or on the day following the killing, Flora and Ricardo were interrogated by the Silang
police. They executed sworn statements before the Municipal Judge pointing to Laureano Sangalang,
Conrado Gonzales, Irineo Canuel, Perino Canuel and Eleuterio Cuyom as the assassins of Ricardo Cortez.
Flora said in her statement that she knew those persons because from time to time they used to pass by
her place. They resided at Barrio Capdula, Dasmariñas, which is near Barrio Adlas. On the basis of those
statements, the police filed on June 10 in the Municipal Court a complaint for murder against the five
aforenamed persons. Sangalang was arrested. He posted bail in the sum of P50,000 on June 13. He
waived the second stage of the preliminary investigation. The other accused have not been
apprehended. On August 8, 1968 the Provincial Fiscal filed an information for murder against Sangalang.

After trial, the Court of First Instance of Cavite, Tagaytay City Branch, rendered a judgment convicting
Sangalang of murder, sentencing him to reclusion perpetua and ordering him to pay the heirs of Ricardo
Cortez an indemnity of twelve thousand pesos and to pay his widow moral damages in the sum of ten
thousand pesos (Criminal Case No. TG-162). Sangalang appealed.

The appellant, a fifty-six-year old farmer, admitted that he knew Cortez and that he knows his wife,
Flora Sarno. He pleaded an alibi. He declared that in the afternoon of June 8, 1968 he and Crispulo
Mendoza went to the house of Julian Gatdula at Dapitan Street, Sampaloc, Manila. He arrived at
Gatdula’s place at six o’clock. He wanted to borrow money from Gatdula to defray the matriculation
fees of his children.

As Gatdula had no money at that time, he advised Sangalang to wait until morning. He would try to raise
the sum of two hundred pesos which Sangalang desired to borrow. Sangalang and Mendoza agreed.
They allegedly slept in Gatdula’s house on the night of June 8th. The next morning, they breakfasted in
that house. At about ten o’clock on June 9, Gatdula delivered the two hundred pesos to Sangalang. He
and Mendoza then went to the Central Market in Manila and then to Quiapo. They returned to Cavite
and arrived at seven o’clock in the evening of June 5 in Barrio Capdula. Gatdula and Mendoza
corroborated Sangalang s alibi.

In this appeal Sangalang insists on his alibi and impugns the credibility of the prosecution eyewitnesses,
Mrs. Cortez and the victim’s brother-in-law, Ricardo Sarno. The basic issue is whether their eyewitness-
testimony that they saw appellant Sangalang as one of the five armed persons, who riddled Cortez with
fourteen gunshot wounds of entry, is sufficient to overcome his alibi. In essence, the case projects the
ever recurring conflict in criminal jurisprudence between positive identification and alibi.

The trial court rejected appellant’s alibi. It noted that although his witnesses, Mendoza and Gatdula,
learned of his arrest, and Mendoza even visited him in the municipal jail, Sangalang and his witnesses
did not interpose the defense of alibi when he was investigated by the police and when he was
summoned at the preliminary investigation.

Sangalang points to certain discrepancies in the declarations of Mrs. Cortez and her brother Ricardo
Sarno. Those inconsistencies, which are not glaring, strengthen their credibility and show that their
testimonies were not coached nor rehearsed. The discrepancies may be attributed to deficiencies in
observation and recollection, or misapprehension of the misleading and confusing questions during
cross-examination, or to the defective translation of the questions and answers but they do not
necessarily indicate a wilful attempt to commit falsehood (People v. Selfaison, 110 Phil. 839; People v.
Resayaga, L-23234, December 26, 1973, 54 SCRA 350).

The controlling fact is that Mrs. Cortez and Sarno clearly and consistently testified that they saw
Sangalang, a person already well-known to them, among the five armed persons who shot Ricardo
Cortez. That unwavering identification negates appellant’s alibi.

The prosecution did not prove the motive for the killing. On the other hand, Sangalang did not show that
Mrs. Cortez and Sarno were impelled by a malicious desire to falsely incriminate him.

Counsel de oficio meticulously examined the contradictions and deficiencies in the evidence for the
prosecution. He made a spirited defense of the appellant. However, his efforts failed to cast any
reasonable doubt on Sangalang’s complicity in the killing.

The victim was shot while he was gathering tuba on top of a coconut tree. He was unarmed and
defenseless. He was not expecting to be assaulted. He did not give any immediate provocation. The
deliberate, surprise attack shows that Sangalang and his companions employed a mode of execution
which insured the killing without any risk to them arising from any defense which the victim could have
made. The qualifying circumstance of treachery (alevosia), which was alleged in the information, was
duly established (See art. 14[16], Revised Penal Code). Hence, the killing can be categorized as murder
(See People v. Sedenio, 94 Phil. 1046). Treachery absorbs the aggravating circumstance of band (U. S. v.
Abelinde, 1 Phil. 568). Evident premeditation, which was alleged in the information, was not proven.

The trial court correctly imposed the penalty of reclusion perpetua on Sangalang (Arts. 64[1] and 248,
Revised Penal Code).

Finding no error in its judgment, the same is affirmed with costs against the Appellant.

SO ORDERED.

23. People v. San Pedro, G.R. No. L-44274, 22 January 1980

G.R. No. L-44274 January 22, 1980

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LUISITO SAN PEDRO, et al., accused, ARTEMIO BANASIHAN, defendant-appellant.

Haydee B. Yorac for appellant.

Office of the Solicitor General for appellee.

PER CURIAM:

Automatic review of the death penalty imposed on appellant by the Court of First Instance of Laguna,
for the crime of robbery with homicide, committed, according to the evidence, and as stated in the
appellant's brief, which We quote, as follows:

In the afternoon of June 2, 1970, the lifeless body of a person was found somewhere
between the barrios of Masaya and Paciano Rizal Municipality of Bay, Laguna. The body
was brought to the municipal building of Bay for autopsy. Dr. Fe Manansala-Pantas, in
her autopsy report, Exh. B, noted that the deceased died of profuse hemorrhage due to
23 lacerated and stab wounds and multiple abrasions found on the different parts of the
body of the deceased.

The deceased was identified to be Felimon Rivera, a driver of a passenger jeep

belonging to Pablito delos Reyes, a fruit vendor. Earlier in the day, Rivera was out driving
the jeep. But that was to be the last time for him to drive the jeep for on that same day,
he was killed, and his jeep was no longer found or recovered.

It was not until June 11, 1971, that the police authorities found a concrete lead to the
solution of the case. Rodrigo Esguerra, when apprehended and interviewed by the
police, admitted his participation and named his companions. He gave a written
statement, Exh. F. Soon the police began rounding up the other suspects.

Artemio Banasihan was apprehended sometime in 1972. On March 3 of said year, he

was investigated by Sgt. Juan Tolentino of the Philippine Constabulary. He gave a
statement which was sworn to before the Acting Municipal Judge of Los Baños, Laguna,
confessing his participation in the robbery and killing of Felimon Rivera (Exh. H). In said
statement, Banasihan recounted that four days before June 2, 1970, he and his co-
accused met and planned to get the jeep driven by the deceased. Carrying out their
plan, he and Luisito San Pedro approached Rivera in the afternoon of June 2, 1970 and
on the pretext of hiring Rivera's jeep to haul coconuts, they proceeded to Bo. Puypuy in
Bay, Laguna, where they were joined by Salvador Litan and Rodrigo Esguerra. Esguerra
was then carrying a water pipe wrapped in paper. Upon reaching a river between the
barrios of Mainit and Puypuy San Pedro ordered Rivera to stop. Whereupon, at
Esguerra's signal, Litan hit Rivera at the nape with the water pipe. Rivera jumped out of
the jeep but was chased by San Pedro and Litan who stabbed him at the back several
times with a dagger. Esguerra then drove the jeep and the group proceeded to Makati,
Rizal, He then joined Nelson Piso and Antonio Borja. The jeep was brought to Cavite City
where it was sold for P2,000.00. Four days later, Piso went to Los Baños and gave San
Pedro, Litan and Banasihan P50.00 each, with the promise that the balance would be
given later. However, the promised balance was not given them.

As synthesized above, the facts of the instant case are as also found by the trial court, which appellant,
through counsel de oficio, confesses inability to dispute. Admitting thus the accuracy of the factual
finding of the court a quo, appellant raises only questions of law, particularly in the appreciation of the
modifying circumstances proven by the evidence, with a view to reducing the penalty of death as
imposed, to reclusion perpetua as prayed for. This notwithstanding, We did not relieve ourselves of the
duty of reviewing the evidence, for the purpose of the proceedings before Us is to discover any possible
error, specifically in the appreciation of the evidence, that might have been committed by the trial court
that led to an improper imposition of the supreme penalty. After undertaking the task, We express
complete agreement that no reversible error has been committed by the trial court as to the culpable
participation of the appellant as one of the perpetrators of the capital offense charged.

Specifically, the legal questions raised affecting the degree of culpability of appellant is whether the
aggravating circumstance of craft is absorbed by treachery, and whether the resulting single aggravating
circumstance of treachery should be offset by the mitigating circumstance of lack of instruction, as
appellant claims should be appreciated in his favor, thereby calling for the reduction of the death
penalty to that of life imprisonment.

We cannot subscribe to the theory of craft being absorbed by treachery, as nighttime and abuse of
superior strength may be so absorbed, as held in numerous decisions of this Court.' In the instant case,
craft was employed not with a view to making treachery more effective as nighttime and abuse of
superior strength would in the killing of the victim. It was directed actually towards facilitating the taking
of the jeep in the robbery scheme as planned by the culprits. From the definition of treachery, it is
manifest that the element of defense against bodily injury makes treachery proper for consideration
only in crimes against person as so explicitly provided by the Revised Penal Code (Art. 14[16]).

Aside from the foregoing observation, decisional rulings argue against appellant's submission. Thus in
the case of U.S. vs. Gampona, et al., 36 Phil. 817 (1917) where the crime charged was murder, qualified
by treachery, craft was considered separately to aggravate the killing. Note that in this cited case, the
crime was killing alone, which has a weightier rationale. for, merging the two aggravating circumstances,
than when, as in crime of robbery with homicide, craft has a very distinct application to the crime of
robbery, separate and independent of the homicide. Yet, it was held that craft and treachery were
separate and distinct aggravating circumstances. The same ruling was announced in People vs. Sakam, et
al., 61 Phil. 27 (1934).

In People v. Malig, 83 Phil. 804, (1949) craft which consisted in luring the victim to another barrio, was
considered absorbed by treachery. This may be so because craft enhanced the effectiveness of the
means, method or form adopted in the execution of the crime, one against persons, "which tend directly
and specially to insure its execution, without risk to himself arising from the defense which the offended
party might make." Even so, the Court was divided in the inclusion or absorption of craft by treachery.
And again, the offense charged was one solely against persons.

With the presence of two aggravating circumstances, craft and treachery, it would make no difference
even if the mitigating circumstance of lack of instruction were appreciated in appellant's favor which is
even doubtful from the fact alone, as was allegedly proven by the testimony of appellant that he cannot
read and write but can only sign his name (P. 9, t. s. n. Sept. 1, 1975). This, apart from the fact that as
held categorically in the case of People vs. Enot, 6 SCRA 325 (1962) lack of instruction is not applicable
to crimes of theft and robbery, much less to the crime of homicide. The reason is that robbery and killing
are, by their nature, wrongful acts, and are manifestly so to the enlightened, equally as to the ignorant
(People vs. Salip Manla et al., 30 SCRA 389 [1969]).
As recently held by this Court, speaking through Justice Hermogenes Concepcion, Jr., the "criteria in
determining lack of instruction is not illiteracy alone, but rather lack of sufficient intelligence." It is
significant that neither to the trial court nor to the appellant's counsel has the mitigating circumstance
of lack of instruction entered the mind. No attempt was made to prove it, as direct proof, not mere
inference, is required, and must be invoked in the court below (People vs. Mongado, et al., 28 SCRA 642,
[1969]), the reason being that the trial court can best gauge a person's level of intelligence from his
manner of answering questions in court (People v. Manuel, 29 SCRA 337 [1969]). If the trial court did not
consider the mitigating circumstance invoked for the first time here on appeal, it must be because from
appellant's testimony, and even more so from his given occupation as a merchant (T.S.N., p. 3, Sept. 1,
1975), his alleged lack of intelligence never suggested itself to the trial court or to his lawyer, as entitling
him to the mitigating circumstance of lack of instruction.

WHEREFORE, there being no error committed by the trial court, its decision imposing the death penalty,
together with the indemnity awarded, has to be, as it is hereby, affirmed.

SO ORDERED.

24. People v. Castillo, G.R. No. 120282, 20 April 1998

G.R. No. 120282 April 20, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROBERT CASTILLO y MONES, accused-appellant.

PANGANIBAN, J.:

The trial court judge is not an idle arbiter during a trial. He can propound clarificatory questions to
witnesses in order to ferret out the truth. The impartiality of a judge cannot be assailed on the mere
ground that he asked such questions during the trial.

The Case

This is an appeal from the Decision1 dated December 23, 1994 of the Regional Trial Court of Quezon City,
Branch 88, in Criminal Case No. Q-93-45235 convicting Robert Castillo y Mones of murder and
sentencing him to reclusion perpetua.2

On July 23, 1993, an amended Information3 was filed by Assistant City Prosecutor Ralph S. Lee, charging
appellant with murder allegedly committed as follows:

That on or about the 25th day of May, 1993, in Quezon City, Philippines, the above-named
accused, with intent to kill[,] qualified by evident premeditation, use of superior strength and
treachery did then and there, willfully, unlawfully and feloniously assault, attack and employ
personal violence upon the person of one ANTONIO DOMETITA, by then and there stabbing him
 with a bladed weapon[,] hitting him on his chest thereby inflicting upon him serious and mortal
wounds, which were the direct and immediate cause of his untimely death, to the damage and
prejudice of the heirs of the said ANTONIO DOMETITA.

CONTRARY TO LAW.

Upon arraignment, Appellant Castillo, assisted by Counsel Salacnib Baterina, entered a plea of not
guilty.4 After trial in due course, appellant was convicted. The dispositive portion of the assailed Decision
reads:

WHEREFORE, premises considered, accused ROBERTO CASTILLO y MONES is found guilty beyond
reasonable doubt of the crime of Murder and [is] hereby sentenced to suffer [the] penalty
of reclusion perpetua. He is likewise ordered to pay the heirs of the deceased Antonio Dometita
actual damages in the sum of P60,000.00, the sum of P50,000.00 by way of indemnity for the
death of the victim and moral damages in the sum of P100,000.00. He is likewise ordered to pay
costs.

SO ORDERED.5

Hence, this appeal.6

The Facts

Evidence for the Prosecution

The Appellee's Brief7 presents the facts as follows:

On May 25, 1993, around one o'clock in the morning, Eulogio Velasco, floor manager of the Cola
Pubhouse along EDSA, Project 7, Veteran's Village, Quezon City, was sitting outside the
Pubhouse talking with his co-worker, Dorie. Soon, Antonio "Tony" Dometita, one of their
customers, came out of the pubhouse. As he passed by, he informed Eulogio that he was going
home. When Tony Dometita was about an armslength [sic] from Eulogio, however, appellant
Robert Castillo suddenly appeared and, without warning, stabbed Tony with a fan knife on his
left chest. As Tony pleaded for help, appellant stabbed him once more, hitting him on the left
hand.

Responding to Tony's cry for help, Eulogio placed a chair between Tony and appellant to stop
appellant from further attacking Tony. He also shouted at Tony to run away. Tony ran towards
the other side of EDSA, but appellant pursued him.

Eulogio came to know later that Tony had died. His body was found outside the fence of the
Iglesia ni Cristo Compound, EDSA, Quezon City.

Dr. Bienvenido Munoz, the medico-legal officer who autopsied Tony's cadaver, testified that the
proximate cause of Tony's death was the stab wound on his left chest. Tony also suffered
several incised wounds and abrasions, indicating that he tried to resist the attack.8
 Version of the Defense

On the other hand, the defense viewed the facts in this way:9

On May 25, 1993, the late Antonio Dometita was found dead by the police officers at the alley
on the right side of the Iglesia ni Cristo Church at EDSA in Bago Bantay.

It is the theory of the prosecution that the deceased Antonio Dometita was stabbed by the
accused Robert Castillo y Mones as testified to by Leo Velasco. The corroboration of Leo
Velasco's testimony is that of Melinda Mercado who (tsn Oct. 11, 1993) stated that Leo Velasco
informed her that Dometita was stabbed. Robert Castillo was walking away from the pubhouse
with the bladed weapon. Leo Velasco himself detailed the way Castillo stabbed the deceased
Antonio Dometita.

On the other hand the defense claims that the deceased died in the alley at the right side of the
church. That decedent Dometita was attacked by two malefactors as testified to by Edilberto
Marcelino, a tricycle driver who saw two people ganging up on a third. The same witness saw
the victim falling to the ground. (tsn January 5, 1994, page 8). A report of Edilberto Marcelino to
the Barangay Tanod's Office was made in the blotter of the Barangay and the extract (xerox of
the page) was marked as Exhibit "2"

The Trial Court's Ruling

The court a quo gave full credence to the testimonies of the two prosecution witnesses, who positively
identified the appellant as the killer. It explained:

From the testimonies of the witnesses of the prosecution and the defense, it can be gleaned
that the accused, to exculpate himself from the liability, clung to the defense of alibi[,] saying
that he was not at the place where the incident took place at the time of the killing. This was
supported by the testimony of his mother and his neighbor and guide Malikdem. This, however,
is contradicted by the testimonies of the two eyewitnesses of the prosecution who positively
identified accused as the person who stabbed the victim. While the testimony of Mercado is to
the effect that she did not actually see the accused hit the victim, she however, saw him walking
away and carrying a bladed weapon at the scene of the crime. Velasco on the other hand,
actually saw him lunged [sic] his fan knife at the victim. These were further strengthened by the
findings of the medico-legal officer that the weapon used in killing the victim [was] similar to a
balisong.10

The trial court also found that the killing was qualified by abuse of superior strength, because "the
accused used a deadly weapon in surprising the victim who [was] unarmed." Although treachery was
present, the trial court held that this was absorbed by abuse of superior strength.

The Issues

The appellant raises the following assignment of errors:11

I
 That the trial court failed to appreciate the evidence presented by the accused that there was a
stabbing/mauling incident at the side street near the Iglesia ni Cristo Church at Edsa-Bago
Bantay, Quezon City (at about the time of the alleged stabbing of victime [sic] Antonio Dometita
according to the prosecution version), the same evidence for the accused being buttressed and
supported by the barangay blotter, marked Exhibit "2."

II

That the trial court failed to appreciate the implications of: the medical finding that the heart
and the lungs of the victim were impaled; that according to the testimony of the prosecution
witness, PO3 Manolito Estacio, the victim was found at the side street near the Iglesia ni Cristo
Church; and that side street distant from the place the witnesses for the prosecution stated the
victim was stabbed. These matters create reasonable doubt as to the guilt of the accused and
cast distrust on the testimony of the witness Eulogio Velasco who allegedly witnessed the
stabbing of the victim.

III

That the trial court in many instances showed its prejudice against the accused and in several
instances asked questions that [were] well within the duty of the prosecution to explore and
ask; it never appreciated other matters favorable to the accused, like the frontal infliction of the
mortal wound and the presence [of] "defense wounds" which negate treachery and superiority.

IV

That the trial judge was bias[ed] against the accused hence the judgment of conviction.

In the main, appellant questions the trial judge's (1) assessment of the credibility of the witnesses and
their testimonies and (2) alleged partiality in favor of the prosecution as shown by his participation in
the examination of witnesses.

This Court's Ruling

The appeal is bereft of merit.

First Issue: Credibility of Witnesses

Time and again, this Court has adhered to the rule that the factual findings12 of the trial court, as well as
its assessment of the credibility of witnesses,13 are entitled to great weight and are even conclusive and
binding, barring arbitrariness and oversight of some fact or circumstance of weight and substance. The
evaluation of the credibility of witnesses is a matter that peculiarly falls within the power of the trial
court, as it has the opportunity to watch and observe the demeanor and behavior of the witnesses on
the stand.14 In this case, appellant failed to provide any substantial argument to warrant a departure
from this rule.

The testimony of Prosecution Witness Eulogio Velasco that he saw the appellant stab the victim is clear
and unequivocal. He was sitting outside the pub house when the victim came out. Dometita, who was
then only an arm's length away from him, turned around to say goodbye when, suddenly, the accused
came out of nowhere and stabbed the victim. Velasco narrated further that the victim asked him for
help, so he responded by placing a chair between the victim and the appellant to block the assault of the
accused.15 Thereafter, he told Dometita to run away. The accused then chased the victim towards the
other side of EDSA.16 The relevant portions of Velasco's testimony are reproduced hereunder:

Q Immediately thereafter, was there any unusual incident that happened?

A When Dorie went inside the pub house, that was the time Tony went out, sir.

COURT:

Q Who is this Tony?

A Antonio Dimatita alias Tony, Your Honor.

PROS. LEE:

Q When Antonio Dimatita [sic] alias Tony went out, what happened?

A Tony asked permission from me that he will go home, sir.

Q And what happened thereafter?

A When he ha[d] not gone far yet from me, Robert Castillo suddenly attacked
him and stabbed him, sir.

Q What happened to Antonio Dimatita [sic] alias Tony when he was stabbed by
accused Robert Castillo?

A He was taken aback. He was not able to cover up himself and he was hit by
the stab made by Robert Castillo, sir.

Q On what part of the body was he hit?

A On the left side of the chest, sir.

Q And did you see in what summer [sic] accused Robert Castillo stabbed
Antonio Dimatita [sic]?

A Like this, sir. (Witness demonstrating with his right arm above his shoulder
with downward stabbing position.)

Q As you stated, after Tony was hit on the left side of [his] chest, what
happened next?

A He was stabbed again and was hit on the arm, sir.

 Q What arm? Left or right?

A On the left arm, sir. (Witness is pointing to his left arm in between the 1st and
second finger.)

Q After he was hit on the left arm, what happened next?

A He went near me and asked for help, sir. I placed a bench on the middle to
block the way so that Robert Castillo [would] not be able to reach him and I told
Tony to run away, sir.

Q Did Tony run away thereafter?

A Yes, sir.

Q How about accused Robert Castillo, what was he doing the[n]?

A He chased, sir.

Q What happened next?

A I heard Tony was already dead, sir.

The testimony of Velasco that the accused stabbed the victim on the left side of the chest and then on
the left arm was confirmed by the medical findings,17 particularly the autopsy report of Dr. Muñoz, who
testified as follows:18

COURT

Q Can you tell the Court the relative position of the victim and the assailant
when the stab wound was inflicted?

TRIAL PROS. RALPH S. LEE

Based on the wound, doctor.

WITNESS

A If the victim and the assailant were in a standing position, the assailant and
the victim would be facing each other and the fatal wound was delivered from
upward to downward, your honor.

Witness Velasco further testified that the accused used a bladed weapon which looked like a fan
knife.19 This was also supported by Dr. Muñoz, viz.:20

Q Dr. Muñoz, in your learned medical knowledge, what could have caused this
stab wound marked as Exhibit "D"?
 A This was inflicted by a sharp pointed single bladed instrument like kitchen
knife or "balisong" or any similar instrument.

Melinda Mercado, the other prosecution witness, corroborated the story of Velasco. She testified that
when she was inside the pub, she heard Velasco shout that Antonio Dometita was stabbed.21 She went
out to verify and saw the accused walking away. What she saw was not the stabbing incident itself, but
the accused wrapping a bladed weapon in his shirt.22 This confirms the assertion of Velasco that the
accused was still holding the bladed instrument as he chased the victim.23

Clearly, the straightforward, detailed and consistent narrations of the government witnesses show that
the trial court did not err in giving credence to the account of the prosecution.

Appellant contends that the trial court failed to appreciate the testimony of Defense Witness Edilberto
Marcelino who narrated a "stabbing/mauling incident" on a side street that fateful night near the Iglesia
ni Cristo Church, where the victim's body was found. Said witness testified that he was driving his
tricycle, when he noticed a group ganging up on a man (pinagtutulungan).24 He then saw the person
fall. 25 He did not notice if the assailants had weapons, as he was a bit far from them, illumination
coming only from the headlight of his tricycle. He stated that the appellant, with whom he was familiar
because he often saw him selling cigarettes along EDSA,26 was not one of those he saw ganging up on
the person who fell to the ground. He described one of the malefactors as long-haired and lanky, and
the other one as fair-complexioned with medium build,27 descriptions which did not fit the accused.
Upon witnessing the incident, Marcelino immediately proceeded to the barangay hall to report the
matter.

The trial court did not accord weight to said testimony. We sustain this holding. Marcelino admitted that
he was about twenty-five meters away from the place of incident28 and that said place was not lighted.
Furthermore, his tricycle was then moving because he was in a hurry.29 Thus, we agree with this
statement of the trial court: "[C]onsidering that it was dark and the distance from where the witness
saw the incident [was] quite far, it could not have been possible for him to recognize the victim and his
attackers."30

Appellant also asserts that the trial court failed to appreciate the implications of the medical finding that
the heart and lungs of the victim were impaled. He argues that these wounds made it impossible for the
victim to traverse the distance from the pub house to the Iglesia ni Cristo Church area, where his body
was eventually found. However, the testimony of the medico-legal expert did not rule out this
possibility, as gleaned from the following:

Q And if the stab wound was fatal, how long could have he [sic] lived after the
infliction of the wound?

A It would be very very difficult to give the duration of survival because different
individual[s] would have different types of survival. Others would [live] for five
minutes and others would survive for at least . . . in shorter time.

Q But five minutes doctor would be a long time already. It could be the survival
time of a person who has a strong constitution. Do you agree with me?
 A No, sir. In this particular case considering that the involvement here of the
heart is the left ventricle which is a very thick portion of the heart, I don't think
he would die in less than five minutes because the thick portion of the heart
serves as sealer once the instrument is pulled out, the tendency of the thick
muscle is to close the injury so there is a much longer time for
survival.31 (Emphasis supplied.)

Second Issue: Partiality of the Trial Judge

Appellant declares that the trial judge was biased against him for propounding questions that were well
within the prerogative of the prosecution to explore and ask. More pointedly, appellant alleges that the
trial judge took over from the prosecution and asked questions in a leading manner,32 interrupted the
cross-examination to help the witness give answers favorable to the
prosecution,33 and asked questions which pertained to matters of opinion and allusions of bad moral
character, which would not be objected to by defense counsel, because they have been ventiliated by
the judge himself.34 To substantiate the alleged bias and prejudice of the judge, appellant in his brief
cited several pages from the transcript of stenographic notes.35

The allegation of bias and prejudice is not well-taken. It is a judge's prerogative and duty to ask
clarificatory questions to ferret out the truth.36 On the whole, the Court finds that the questions
propounded by the judge were merely clarificatory in nature. Questions which merely clear up dubious
points and bring out additional relevant evidence are within judicial prerogative. Moreover,
jurisprudence teaches that allegations of bias on the part of the trial court should be received with
caution, especially when the queries by the judge did not prejudice the accused. The propriety of a
judge's queries is determined not necessarily by their quantity but by their quality and, in any event, by
the test of whether the defendant was prejudiced by such questioning. In this case, appellant failed to
demonstrate that he was prejudiced by the questions propounded by the trial judge. In fact, even if all
such questions and the answers thereto were eliminated, appellant would still be convicted.

As correctly observed by the solicitor general, "there was no showing that the judge had an interest,
personal or otherwise, in the prosecution of the case at bar. He is therefore presumed to have acted
regularly and in the manner [that] preserve[s] the ideal of the 'cold neutrality of an impartial judge'
implicit in the guarantee of due process (Mateo, Jr. vs. Villaluz, 50 SCRA 18)."37 That the judge believed
the evidence of the prosecution more than that of the defense, does not indicate that he was biased. He
simply accorded greater credibility to the testimony of the prosecution witnesses than to that of the
accused.38

Alibi

Appellant's defense of alibi and denial is unavailing. For the defense of alibi to prosper, the accused
must prove not only that he was at some other place at the time the crime was committed, but that it
was likewise physically impossible for him to be at the locus criminis at the time of the alleged
crime.39 This the appellant miserably failed to do. Appellant contends that he was then asleep in his
house at the time of the incident. This was supported by his mother who stated that he was asleep from
9:00 p.m. to 6:00 a.m. the next day40 and by Rosemarie Malikdem who said the she visited the accused
on the night of May 24, 1993 to counsel him, which was her task in the Samahang Magkakapit-
bahay.41 Appellant failed to demonstrate, however, the distance between the crime scene and his
house. Indeed, he testified that his house was "near" the crime scene. In any event, this defense cannot
overturn the clear and positive testimony of the credible eyewitnesses who located appellant at
the locus criminis and identified him as the assailant.42

Aggravating Circumstances

The Court agrees with the trial court that appellant is guilty of murder for the death of Antonio
Dometita. We likewise agree that the prosecution was unable to prove the aggravating circumstance of
evident premeditation. For this circumstance to be appreciated, 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) a sufficient
lapse of time between determination and execution to allow himself time to reflect upon the
consequences of his act.43 These requisites were never established by the prosecution.

On the other hand, we disagree with the trial court that the killing was qualified by abuse of superior
strength. "To properly appreciate the aggravating circumstance of abuse of superior strength, the
prosecution must prove that the assailant purposely used excessive force out of proportion to the
means of defense available to the person attacked." 44 The prosecution did not demonstrate that there
was a marked difference in the stature and build of the victim and the appellant which would have
precluded an appropriate defense from the victim. Not even the use of a bladed instrument would
constitute abuse of superior strength if the victim was adequately prepared to face an attack, or if he
was obviously physically superior to the assailant.

Nonetheless, we hold that the killing was qualified by treachery. "Treachery is committed when two
conditions concur, namely, that the means, methods, and forms of execution employed gave the person
attacked no opportunity to defend himself or to retaliate[;] and that such means, methods, and forms of
execution were deliberately and consciously adopted by the accused without danger to his
person."45 These requisites were evidently present in this case when the accused appeared from
nowhere and swiftly and unexpectedly stabbed the victim just he was bidding goodbye to his friend,
Witness Velasco. Said action rendered it difficult for the victim to defend himself. The presence of
"defense wounds" does not negate treachery because, as testified to by Velasco, the first stab, fatal as it
was, was inflicted on the chest. The incised wounds in the arms were inflicted when the victim was
already rendered defenseless.

Damages

The trial court awarded indemnity and actual and moral damages to the heirs of the victim. We
sustained the award of indemnity in the amount of P50,000, but we cannot do the same for the actual
and moral damages which must be supported by proof. In this case, the trial court did not state any
evidentiary basis for this award. We have examined the records, but we failed to find any, either.

WHEREFORE, the appeal is hereby DENIED and the assailed Decision is AFFIRMED,46 but the award of
actual and moral damage is DELETED for lack of factual basis, Costs against appellant.

SO ORDERED.
25. People v. Arizobal, G.R. No. 135051-52, 14 December 2000

26. People v. Escote, G.R. No. 140756, 4 April 2003

G.R. No. 140756 April 4, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JUAN GONZALES ESCOTE, JR. @ Jun Mantika of Sta. Lucia, Angat, Bulacan and VICTOR ACUYAN y
OCHOVILLOS @ Vic Arroyo of Sto. Niño, Poblacion, Bustos, Bulacan, accused-appellants.

CALLEJO, SR., J.:

Robbery with homicide is classified as a crime against property. Nevertheless, treachery is a generic
aggravating circumstance in said crime if the victim of homicide is killed treacherously. The Supreme
Court of Spain so ruled. So does the Court rule in this case, as it had done for decades.

Before the Court on automatic review is the Decision1 of Branch 11 of the Regional Trial Court of
Bulacan in Criminal Case No. 443-M-97 convicting accused-appellants Juan Gonzales Escote, Jr. and
Victor Acuyan of the complex crime of robbery with homicide, meting on each of them the supreme
penalty of death, and ordering them to pay the heirs of the victim, SPO1 Jose C. Manio, Jr., the total
amount of P300,000.00 by way of actual and moral damages and to pay to Five Star Bus, Inc., the
amount of P6,000.00 by way of actual damages.

The Facts

The antecedent facts as established by the prosecution are as follows:

On September 28, 1996 at past midnight, Rodolfo Cacatian, the regular driver of Five Star Passenger Bus
bearing Plate No. ABS-793, drove the bus from its terminal at Pasay City to its destination in Bolinao,
Pangasinan. Also on board was Romulo Digap, the regular conductor of the bus, as well as some
passengers. At Camachile, Balintawak, six passengers boarded the bus, including Victor Acuyan and Juan
Gonzales Escote, Jr. who were wearing maong pants, rubber shoes, hats and jackets.2 Juan seated
himself on the third seat near the aisle, in the middle row of the passengers' seats, while Victor stood by
the door in the mid-portion of the bus beside Romulo. Another passenger, SPO1 Jose C. Manio, Jr., a
resident of Angeles City, was seated at the rear portion of the bus on his way home to Angeles City.
Tucked on his waist was his service gun bearing Serial Number 769806. Every now and then, Rodolfo
looked at the side view mirror as well as the rear view and center mirrors installed atop the driver's seat
to monitor any incoming and overtaking vehicles and to observe the passengers of the bus.

The lights of the bus were on even as some of the passengers slept. When the bus was travelling along
the highway in Plaridel, Bulacan, Juan and Victor suddenly stood up, whipped out their handguns and
announced a holdup. Petrified, Rodolfo glanced at the center mirror towards the passengers' seat and
saw Juan and Victor armed with handguns. Juan fired his gun upward to awaken and scare off the
passengers. Victor followed suit and fired his gun upward. Juan and Victor then accosted the passengers
and divested them of their money and valuables. Juan divested Romulo of the fares he had collected
from the passengers. The felons then went to the place Manio, Jr. was seated and demanded that he
show them his identification card and wallet. Manio, Jr. brought out his identification card bearing No.
00898.3 Juan and Victor took the identification card of the police officer as well as his service gun and
told him: "Pasensya ka na Pare, papatayin ka namin, baril mo rin and papatay sa iyo." The police officer
pleaded for mercy: "Pare maawa ka sa akin. May pamilya ako." However, Victor and Juan ignored the
plea of the police officer and shot him on the mouth, right ear, chest and right side of his body. Manio,
Jr. sustained six entrance wounds. He fell to the floor of the bus. Victor and Juan then moved towards
the driver Rodolfo, seated themselves beside him and ordered the latter to maintain the speed of the
bus. Rodolfo heard one of the felons saying: "Ganyan lang ang pumatay ng tao. Parang pumapatay ng
manok." The other said: "Ayos na naman tayo pare. Malaki-laki ito." Victor and Juan further told
Rodolfo that after they (Victor and Juan) shall have alighted from the bus, he (Rodolfo) should continue
driving the bus and not report the incident along the way. The robbers assured Rodolfo that if the latter
will follow their instructions, he will not be harmed. Victor and Juan ordered Rodolfo to stop the bus
along the overpass in Mexico, Pampanga where they alighted from the bus. The robbery was over in 25
minutes.

When the bus reached Dau, Mabalacat, Pampanga, Rodolfo and Romulo forthwith reported the incident
to the police authorities. The cadaver of SPO1 Manio, Jr. was brought to the funeral parlor where Dr.
Alejandro D. Tolentino, the Municipal Health Officer of Mabalacat, Pampanga, performed an autopsy on
the cadaver of the police officer. The doctor prepared and signed an autopsy report detailing the
wounds sustained by the police officer and the cause of his death:

"Body still flaccid (not in rigor mortis) bathed with his own blood. There were 6 entrance
wounds and 6 exit wounds. All the entrance were located on his right side. An entrance (0.5 cm
x 0.5 cm.) located infront of the right ear exited at the left side just below the ear lobe. Another
entrance through the mouth exited at the back of the head fracturing the occiput with an
opening of (1.5 cm x 2 cm). Blood CSF and brain tissues came out. Another fatal bullet entered
at the upper right cornea of the sternum, entered the chest cavity pierced the heart and left
lung and exited at the left axillary line. Severe hemorrhage in the chest cavity came from the
heart and left lung. The other 3 bullets entered the right side and exited on the same side. One
entrance at the top of the right shoulder exited at the medial side of the right arm. The other
entered above the right breast and exited at the right lateral abdominal wall travelling below
muscles and subcutaneous tissues without entering the cavities. Lastly another bullet entered
above the right iliac crest travelled superficially and exited above the right inguinal line.

Cause of Death:

Shock, massive internal and external hemorrhage, complete brain destruction and injury to the
heart and left lung caused by multiple gunshot wounds."4

Rodolfo and Romulo proceeded to the police station of Plaridel, Bulacan where they reported the
robbery and gave their respective sworn statements.5 SPO1 Manio, Jr. was survived by his wife Rosario
Manio and their four young children. Rosario spent P20,000.00 for the coffin and P10,000.00 for the
burial lot of the slain police officer.6 Manio, Jr. was 38 years old when he died and had a gross salary of
P8,085.00 a month.7
Barely a month thereafter, or on October 25, 1996, at about midnight, SPO3 Romeo Meneses, the team
leader of Alert Team No. 1 of Tarlac Police Station, and PO3 Florante S. Ferrer were at the police
checkpoint along the national highway in Tarlac, Tarlac. At the time, the Bambang-Concepcion bridge
was closed to traffic and the police officers were tasked to divert traffic to the Sta. Rosa road.
Momentarily, a white colored taxi cab without any plate number on its front fender came to view.
Meneses stopped the cab and asked the driver, who turned out to be the accused Juan Gonzales Escote,
Jr., for his identification card. Juan told Meneses that he was a policeman and handed over to Meneses
the identification card of SPO1 Manio, Jr. and the money which Juan and Victor took from Manio, Jr.
during the heist on September 28, 1996.8 Meneses became suspicious when he noted that the
identification card had already expired on March 16, 1995. He asked Juan if the latter had a new pay
slip. Juan could not produce any. He finally confessed to Meneses that he was not a policeman. Meneses
brought Juan to the police station. When police officers frisked Juan for any deadly weapon, they found
five live bullets of a 9 millimeter firearm in his pocket. The police officers confiscated the ammunition. In
the course of the investigation, Juan admitted to the police investigators that he and Victor, alias Victor
Arroyo, staged the robbery on board Five Star Bus and are responsible for the death of SPO1 Manio, Jr.
in Plaridel, Bulacan. Meneses and Ferrer executed their joint affiavit of arrest of Juan.9 Juan was
subsequently turned over to the Plaridel Police Station where Romulo identified him through the latter's
picture as one of those who robbed the passengers of the Five Star Bus with Plate No. ABS-793 and
killed SPO1 Manio, Jr. on September 28, 1996. In the course of their investigation, the Plaridel Police
Station Investigators learned that Victor was a native of Laoang, Northern Samar.10 On April 4, 1997, an
Information charging Juan Gonzales Escote, Jr. and Victor Acuyan with robbery with homicide was filed
with the Regional Trial Court of Bulacan. The Information reads:

That on or about the 28th day of September 1996, in the municipality of Plaridel, province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating together and mutually helping each other, armed with
firearms, did then and there wilfully, unlawfully and feloniously, with intent of (sic) gain and by
means of force, violence and intimidation, take, rob and carry away with one (1) necklace and
cash in [the] undetermine[d] amount of one SPO1 Jose C. Manio, Jr., to the damage and
prejudice of the said owner in the said undetermine[d] amount; that simultaneously or on the
occassion (sic) of said robbery, said accused by means of violence and intimidation and in
furtherance of their conspiracy attack, assault and shoot with the service firearm of the said
SPO1 Jose C. Manio, Jr., thereby inflicting serious physical injuries which resulted (sic) the death
of the said SPO1 Jose C. Manio, Jr.

Contrary to law.11

On the strength of a warrant of arrest, the police officers arrested Victor in Laoang, Northern Samar and
had him incarcerated in the Bulacan Provincial Jail. Assisted by Atty. Ramiro Osorio, their counsel de
parte, Juan and Victor were duly arraigned and entered their plea of not guilty to the charge. Trial
thereafter ensued. After the prosecution had rested its case on August 26, 1998, Juan escaped from the
provincial jail.12 The trial court issued a bench warrant on September 22, 1998 for the arrest of said
accused-appellant.13 In the meantime, Victor adduced his evidence.

Victor denied the charge and interposed the defense of alibi. He testified that in 1996, he worked as a
tire man in the vulcanizing shop located in Banga I, Plaridel, Bulacan owned by Tony Boy Negro. On one
occasion, Ilarde Victorino, a customer of Tony Boy Negro, ordered Victor to sell a tire. Victor sold the tire
but did not turn over the proceeds of the sale to Ilarde. The latter hated Victor for his misdeed. The shop
was later demolished and after two months of employment, Victor returned to Barangay Muwal-Buwal,
Laoang, Northern Samar. On September 26, 1996, at 9:30 p.m., Victor was at the town fiesta in Laoang.
Victor and his friends, Joseph Iringco and Rickey Lorcio were having a drinking spree in the house of
Barangay Captain Ike Baluya. At 11:30 p.m., the three left the house of the barangay captain and
attended the public dance at the town auditorium. Victor and his friends left the auditorium at 5:30 a.m.
of September 27, 1996. Victor likewise testified that he never met Juan until his arrest and detention at
the Bulacan Provincial Jail. One of the inmates in said provincial jail was Ilarde Victorino. Victor learned
that Ilarde implicated him for the robbery of the Five Star Bus and the killing of SPO1 Manio, Jr. to hit
back at him for his failure to turn over to Ilarde the proceeds of the sale of the latter's tire.

On January 14, 1999, Juan was rearrested in Daet, Camarines Norte.14 However, he no longer adduced
any evidence in his behalf.

The Verdict of the Trial Court

On March 11, 1999, the trial court rendered its Decision judgment finding Juan and Victor guilty beyond
reasonable doubt of the crime charged, meted on each of them the penalty of death and ordered them
to pay P300,000.00 as actual and moral damages to the heirs of the victim and to pay the Five Star Bus
Company the amount of P6,000.00 as actual damages. The decretal portion of the decision reads:

WHEREFORE, this Court finds both accused, Juan Gonzales Escote, Jr. and Victor Acuyan GUILTY
beyond reasonable doubt of Robbery with Homicide as penalized under Art. 294 of the Revised
Penal Code as amended and hereby sentences both to suffer the supreme penalty of Death and
to indemnify the heirs of the late SPO1 Jose C. Manio, Jr., the amount of P300,000.00 as actual
and moral damages and to pay the Five Star Bus P6,000.00 as actual damage.

SO ORDERED.15

Assignment of Errors

Juan and Victor assail the Decision of the trial court and contend that:

THE TRIAL COURT ERRED IN HOLDING THAT RODOLFO CACATIAN AND ROMULO DIGAP, DRIVER AND
CONDUCTOR OF THE FIVE STAR BUS, RESPECTIVELY, WERE ABLE TO POSITIVELY IDENTIFY THE TWO (2)
MEN WHO HELD-UP THEIR BUS AND KILLED ONE PASSENGER THEREOF AT AROUND 3:00 O'CLOCK IN
THE EARLY MORNING OF SEPTEMBER 28, 1996.

II

THE TRIAL COURT ERRED IN FINDING THE TWO (2) ACCUSED GUILTY BEYOND REASONABLE DOUBT OF
THE CRIME OF ROBBERY WITH HOMICIDE.16

The Court's Verdict

Anent the first assignment of error, Juan and Victor contend that the trial court committed a reversible
error in relying on the testimony of Rodolfo, the bus conductor, for convicting them of the crime
charged. They aver that although their counsel was able to initially cross-examine Rodolfo, the former
failed to continue with and terminate his cross-examination of the said witness through no fault of his as
the witness failed to appear in subsequent proceedings. They assert that even if the testimonies of
Rodolfo and Romulo were to be considered, the two witnesses were so petrified during the robbery that
they were not able to look at the felons and hence could not positively identify accused-appellants as
the perpetrators of the crime. They argue that the police investigators never conducted a police line-up
for the identification of the authors of the crime.

The contentions of Juan and Victor are not meritorious. There is no factual and legal basis for their claim
that they were illegally deprived of their constitutional and statutory right to fully cross-examine
Rodolfo. The Court agrees that the right to cross-examine is a constitutional right anchored on due
process.17 It is a statutory right found in Section 1(f), Rule 115 of the Revised Rules of Criminal Procedure
which provides that the accused has the right to confront and cross-examine the witnesses against him
at the trial. However, the right has always been understood as requiring not necessarily an actual cross-
examination but merely an opportunity to exercise the right to cross-examine if desired.18 What is
proscribed by statutory norm and jurisprudential precept is the absence of the opportunity to cross-
examine.19 The right is a personal one and may be waived expressly or impliedly. There is an implied
waiver when the party was given the opportunity to confront and cross-examine an opposing witness
but failed to take advantage of it for reasons attributable to himself alone.20 If by his actuations, the
accused lost his opportunity to cross-examine wholly or in part the witnesses against him, his right to
cross-examine is impliedly waived.21 The testimony given on direct examination of the witness will be
received or allowed to remain in the record.22

In this case, the original records show that after several resettings, the initial trial for the presentation by
the prosecution of its evidence-in-chief was set on November 18, 1997 and December 5, 1997, both at
9:00 a.m.23 Rodolfo testified on direct examination on November 18, 1997. The counsel of Juan and
Victor forthwith commenced his cross-examination of the witness but because of the manifestation of
said counsel that he cannot finish his cross-examination, the court ordered the continuation thereof to
December 5, 1997.24 On December 5, 1997, Rodolfo did not appear before the court for the
continuation of his cross-examination but Rosemarie Manio, the widow of the victim did. The
prosecution presented her as witness. Her testimony was terminated. The court ordered the
continuation of the trial for the cross-examination of Rodolfo on January 20, 1998 at 8:30 a.m.25 During
the trial on January 20, 1998, Rodolfo was present but accused-appellants' counsel was absent. The
court issued an order declaring that for failure of said counsel to appear before the court for his cross-
examination of Rodolfo, Victor and Juan waived their right to continue with the cross-examination of
said witness.26 During the trial set for February 3, 1998, the counsel of Juan and Victor appeared but did
not move for a reconsideration of the court's order dated January 20, 1998 and for the recall of Rodolfo
Cacatian for further cross-examination. It behooved counsel for Juan and Victor to file said motion and
pray that the trial court order the recall of Rodolfo on the witness stand. Juan and Victor cannot just fold
their arms and supinely wait for the prosecution or for the trial court to initiate the recall of said
witness. Indeed, the Court held in Fulgado vs. Court of Appeals, et al:

xxx

The task of recalling a witness for cross examination is, in law, imposed on the party who wishes
to exercise said right. This is so because the right, being personal and waivable, the intention to
 utilize it must be expressed. Silence or failure to assert it on time amounts to a renunciation
thereof. Thus, it should be the counsel for the opposing party who should move to cross-
examine plaintiff's witnesses. It is absurd for the plaintiff himself to ask the court to schedule
the cross-examination of his own witnesses because it is not his obligation to ensure that his
deponents are cross-examined. Having presented his witnesses, the burden shifts to his
opponent who must now make the appropriate move. Indeed, the rule of placing the burden of
the case on plaintiff's shoulders can be construed to extremes as what happened in the instant
proceedings. 27

The trial was reset to March 31, April 17 and 24, 1998, all at 8:30 a.m. because of the non-availability of
the other witnesses of the prosecution.28 On March 31, 1998, the prosecution presented Dr. Alejandro
Tolentino, PO2 Rene de la Cruz and Romulo Digap. During the trial on April 17, 1998, the counsel of Juan
and Victor failed to appear. The trial was reset to June 3, 19 and 26, 1998.29 The trial scheduled on June
3, 1998 was cancelled due to the absence of the counsel of Juan and Victor. The court issued an order
appointing Atty. Roberto Ramirez as counsel for accused-appellants.30

During the trial on August 26, 1998, Atty. Ramirez appeared in behalf of Juan and Victor. The
prosecution rested its case after the presentation of SPO2 Romeo Meneses and formally offered its
documentary evidence. The next trial was set on September 23, 1998 at 8:30 a.m.31 On November 11,
1998, Juan and Victor commenced the presentation of their evidence with the testimony of
Victor.32 They rested their case on January 27, 1999 without any evidence adduced by Juan.

Juan and Victor did not even file any motion to reopen the case before the trial court rendered its
decision to allow them to cross-examine Rodolfo. They remained mute after judgment was rendered
against them by the trial court. Neither did they file any petition for certiorari with the Court of Appeals
for the nullification of the Order of the trial court dated January 20, 1998 declaring that they had waived
their right to cross-examine Rodolfo. It was only on appeal to this Court that Juan and Victor averred for
the first time that they were deprived of their right to cross-examine Rodolfo. It is now too late in the
day for Juan and Victor to do so. The doctrine of estoppel states that if one maintains silence when in
conscience he ought to speak, equity will debar him from speaking when in conscience he ought to
remain silent. He who remains silent when he ought to speak cannot be heard to speak when he should
be silent.33

The contention of accused-appellants Juan and Victor that Rodolfo and Romulo failed to identify them
as the perpetrators of the crime charged is disbelieved by the trial court, thus:

As can be gathered from the testimonies of the witnesses for the prosecution, on September 28,
1996, the accused boarded at around 3:00 a.m. a Five Star Bus driven by Rodolfo Cacatian,
bound to Pangasinan, in Camachile, Balintawak, Quezon City. Twenty (20) minutes or so later,
when the bus reached the vicinity of Nabuag, Plaridel, Bulacan, along the North Espressway, the
accused with guns in hand suddenly stood up and announced a hold-up. Simultaneously with
the announcement of a hold-up, Escote fired his gun upwards. Acuyan, meanwhile, took the gun
of a man seated at the back. Both then went on to take the money and valuables of the
passengers, including the bus conductor's collections in the amount of P6,000.00. Thereafter,
the duo approached the man at the back telling him in the vernacular "Pasensiya ka na pare,
papatayin ka namin. Baril mo rin ang papatay sa iyo." They pointed their guns at him and fired
several shots oblivious of the plea for mercy of their victim. After the shooting, the latter
collapsed on the floor. The two (2) then went back at the front portion of the bus behind the
 driver's seat and were overheard by the bus driver, Cacatian, talking how easy it was to kill a
man. The robbery and the killing were over in 25 minutes. Upon reaching the Mexico overpass
of the Expressway in Pampanga, the two (2) got off the bus. The driver drove the bus to the
Mabalacat Police Station and reported the incident. During the investigation conducted by the
police, it was found out that the slain passenger was a policeman, SPO1 Jose C. Manio, Jr. of the
Caloocan City Police Department.

The above version came from Rodolfo Cacatian and Romulo Digap, bus driver and conductor,
respectively, of the ill-fated Five Star Bus.34

The Court agrees with the trial court. It may be true that Romulo was frightened when Juan and Victor
suddenly announced a holdup and fired their guns upward, but it does not follow that he and Rodolfo
failed to have a good look at Juan and Victor during the entire time the robbery was taking place. The
Court has held in a catena of cases that it is the most natural reaction of victims of violence to strive to
see the appearance of the perpetrators of the crime and to observe the manner in which the crime was
committed.35 Rodolfo and Romulo had a good look at both Juan and Victor before, during and after they
staged the robbery and before they alighted from the bus. The evidence on record shows that when
Juan and Victor boarded the bus and while the said vehicle was on its way to its destination, Romulo
stationed himself by the door of the bus located in the mid-section of the vehicle. The lights inside the
bus were on. Juan seated himself in the middle row of the passengers' seat near the center aisle while
Victor stood near the door of the bus about a meter or so from Romulo.36 Romulo, Juan and Victor were
near each other. Moreover, Juan divested Romulo of his collection of the fares from the
passengers.37 Romulo thus had a face-to-face encounter with Juan. After shooting SPO1 Manio, Jr. at the
rear portion of the bus, Juan and Victor passed by where Romulo was standing and gave their
instructions to him. Considering all the facts and circumstances, there is no iota of doubt that Romulo
saw and recognized Juan and Victor before, during and after the heist.38 Rodolfo looked many times on
the rear, side and center view mirrors to observe the center and rear portions of the bus before and
during the robbery. Rodolfo thus saw Juan and Victor stage the robbery and kill SPO1 Manio, Jr. with
impunity:

xxx

Q So, the announcement of hold-up was ahead of the firing of the gun?

A Yes, sir.

Q And before the actual firing of the gun it was even still said bad words before saying the
hold-up?

A After they fired the gun they uttered bad words, sir.

Q Mr. Witness before the announcement of the hold-up you do not have any idea that you
will encounter that nature which took place, is that correct?

A None, sir.
Q Within the two (2) year[s] period that you are plying the route of Manila to Bolinao that
was your first experience of hold-up?

A Yes, sir.

Q And the speed of above 70 kilometers per hour your total attention is focus in front of the
road, correct, Mr. witness?

A Once in a while the driver look at the side mirror and the rear view mirror, sir.

Q Before the announcement there was no reason for you to look at any at the rear mirror,
correct, Mr. witness?

Court:

Every now and then they usually look at the side mirror and on the rear, that was his
statement.

Atty. Osorio:

(to the witness)

Q I am asking him if there was no reason for him....

Fiscal:

Before the announcement of hold-up, there was no mention.

Court:

Every now and then.

Atty. Osorio:

(to the witness)

Q When you said every now and then, how often is it, Mr. witness?

A I cannot tell how often but I used to look at the mirror once in a while, sir.

Q How many mirror do you have, Mr. witness?

A Four (4), sir.

Q Where are these located?

A Two (2) on the side mirror, center mirror and rear view mirror, sir.
Q The two side mirror protruding outside the bus?

A Yes, sir, they are in the side of the bus, sir.

Q One of them is located on the left and the other on the right, correct?

A Yes, sir.

Q You only look at the side mirror when you are going to over take, Mr. witness?

A No, sir.

Q Where is this center mirror located, Mr. witness?

A In the center, sir.

Q What is the purpose of that?

A So that I can see the passengers if they are already settled so that I can start the engine,
sir.

Q What about the remaining mirror?

A Rear view mirror, sir.

Q What is the purpose and where is it located?

A The rear view is located just above my head just to check the passengers, sir.

Q So that the center mirror and the rear view mirror has the same purpose?

A They are different, sir.

Q How do you differentiate of (sic) one from the other?

A The center mirror is used to check the center aisle while the rear mirror is for the whole
view of the passengers, sir.

Q If you are going to look at any of your side mirrors, you will never see any passengers,
correct, Mr. witness?

A None, sir.

Q If you will look at your center mirror you will only see the aisle and you will never see any
portion of the body of your passengers?

A Yes, sir.
Q Seated passengers?

A It is only focus (sic) on the middle aisle sir.

Q If you look at your rear mirror, you will only see the top portion of the head of your
passengers, correct?

A Only the portion of their head because they have different hight (sic), sir.

Q You will never see any head of your passengers if they were seated from the rear mirror
portion, correct, Mr. witness?

A Yes, sir.

Q Before the announcement of hold-up, all of your passengers were actually sleeping?

A Some of my passengers were sleeping, some were not, sir.

Q But you will agree Mr. witness that when you said every now and then you are using your
mirror? It is only a glance, correct?

A Yes, sir.

Q And by mere glancing, Mr. witness you were not able to identify any person on the basis
of any of your mirror, correct?

A If only a glance but when I look at him I can recognize him, sir.

Q You agree a while ago by every now and then it is by glancing, as a driver, Mr. witness by
your side mirror?

A Not all glancing, there are times when you want to recognize a person you look at him
intently, sir.

Q The purposes of your mirror inside your Bus is mainly of the safety of your passengers on
board, Mr. witness?

A Yes, sir.

Q And as a driver, Mr. witness, you do not used (sic) your mirror to identify the person
particularly when you are crossing (sic) at a speed of 70 kilometers per hour?

A I do that, sir.

Q How long Mr. witness can you focus your eyes on any of these mirror before getting back
your eyes into the main road?
A Seconds only, sir.

Q When you said seconds, for how long the most Mr. witness that you can do to fix your
eyes on any of your mirrors and the return back of (sic) your eyes into the main road?

A Two seconds, sir.

Q At that time Mr. witness, that you were travelling at about 70 kilometers you were
glancing every now and then on any of your mirrors at about two seconds, correct?

A Yes, sir.

Q And when you heard the announcement of hold-up your natural reaction is to look either
at the center mirror or rear mirror for two seconds, correct?

A Yes, sir.

Q And you were instructed Mr. witness to even accelerate your speed upon the
announcement of hold-up?

A No sir, they just told me to continue my driving, sir.

Fiscal:

May I request the vernacular "alalay ka lang, steady ka lang.

Atty. Osorio:

(to the witness)

Q Steady at what speed?

A 70 to 80, sir.

Q What is the minimum speed, Mr. witness for Buses along North Expressway?

A 60 kilometers, sir.

Q Are you sure of that 60 kilometers, minimum? Are you sure of that?

A Yes, sir.

Q That is what you know within the two (2) years that you are driving? Along the North
Expressway?

A Yes, sir.
Q And while you were at the precise moment, Mr. witness, you were being instructed to
continue driving, you were not looking to anybody except focus yours eyes in front of the road?

Fiscal:

May I request the vernacular. Nakikiramdam ako.

Atty. Osorio:

(to the witness)

Q That's what you are doing?

A During the time they were gathering the money from my passengers, that is the time
when I look at them, sir.

Q For two seconds, correct?

A Yes, sir.

Q Which of the four (4) mirrors that you are looking at within two seconds, Mr. witness you
said you are nakikiramdam?

A The rear view mirror, sir.

Q The Bus that you were driving is not an air con bus?

A Ordinary bus, sir.

Q And at what time your passengers, most of your passengers were already sleep (sic), Mr.
witness?

A Most of my passengers, sir. Some of my passengers were still sleep (sic), sir.

Q And the lights inside the Bus are off, correct Mr. witness?

A The lights were on, sir.

Q While the passengers were sleep (sic) the light was still on, Mr. witness, at the time of the
trip.?

A Yes, sir.

Q Now, Mr. witness when the hold-up was announced and then when you look for two
seconds in the rear mirror you were not able to see any one, you were only sensing what is
happening inside your bus?
 A I saw something, sir.

Q You saw something in front of your Bus? You can only see inside when you are going to
look at the mirror?

A Yes, sir.

Q That is the only thing that you see every now and then, you said you were looking at the
mirror?

A Yes, sir.

Q How many times, Mr. witness did you look Mr. witness at the rear mirror during the
entire occurance (sic) of the alleged hold-up?

A There were many times, sir.

Q The most that you can remember, please inform the Honorable Court? During the
occurance (sic) of the alleged hold-up, Mr. witness?

A I cannot estimate, sir.

Q How long did the alleged hold-up took place?

A More or less 25 minutes, sir.39

When Rodolfo gave his sworn statement to the police investigators in Plaridel, Bulacan after the
robbery, he described the felons. When asked by the police investigators if he could identify the robbers
if he see them again, Rodolfo declared that he would be able to identify them:

8. T: Natatandaan mo ba kung ano ang itsura ng dalawang lalaki na nanghold-up sa

minamaneho mong bus?

S: Halos magkasing taas, 5'4" o 5'5" katam-taman ang pangangatawan, parehong

nakapantalon ng maong naka-suot ng jacket na maong, parehong naka rubber shoes at pareho
ring naka sumbrero.

9. T: Kung sakali bang makikita mo pa ang mga ito ay makikilala mo pa sila?

S: Makikilala ko po sila.40

When asked to identify the robbers during the trial, Rodolfo spontaneously pointed to and identified
Juan and Victor:

Q Fiscal:

(to the witness)

 xxx

Q Those two man (sic) who stated that it was a hold-up inside the bus and who fired the
gun are they inside the Court room (sic) today?

A Yes, ma'am.

Q Point to us?

Interpreter:

Witness pointing to a man wearing red T-shirt and when asked his name answered
Victor Acuyan and the man wearing green T-shirt and when asked his name answered
Juan Gonzales.41

For his part, Romulo likewise spontaneously pointed to and identified Juan and Victor as the culprits
when asked by the prosecutor to identify the robbers from among those in the courtroom:

xxx

Q You said that you were robbed inside the bus, how does (sic) the robbing took place?

A They announced a hold up ma'am, afterwards, they confiscated the money of the
passengers including my collections.

Q You said "they" who announced the hold up, whose (sic) these "they" you are referring
to?

A Those two (2), ma'am.

Interpreter:

Witness pointing to the two accused.

Public Pros.:

May we request that the accused be identified, Your Honor.

Court:

(to both accused)

What are your names?

A Juan Escote, Your Honor. Victor Acuyan, Your Honor.

Public Pros.:
 May we know from the accused if his name is Juan Escote Gonzales because he just said
Juan Escote. In the Information, it is one Juan Gonzales, Jr., so, we can change, Your
Honor.42

Moreover, when he was accosted by SPO3 Romeo Meneses on October 25, 1997 in Tarlac, Tarlac, Juan
was in possession of the identification card43 of the slain police officer. Juan failed to explain to the trial
court how and under what circumstances he came into possession of said identification card. Juan must
necessarily be considered the author of the robbery and the killing of SPO1 Manio, Jr. In People v.
Mantung,44 we held:

xxx [T]he recovery of part of the loot from Mantung or the time of his arrest gave rise to a legal
presumption of his guilt. As this Court has held, '[I]n the absence of an explanation of how one
has come into possession of stolen effects belonging to a person wounded and treacherously
killed, he must necessarily be considered the author of the aggression and death of the said
person and of the robbery committed on him.'

While police investigators did not place Juan and Victor in a police line-up for proper identification by
Rodolfo and Romulo, it cannot thereby be concluded that absent such line-up, their identification by
Romulo and Rodolfo as the authors of the robbery with homicide was unreliable. There is no law or
police regulation requiring a police line-up for proper identification in every case. Even if there was no
police line-up, there could still be proper and reliable identification as long as such identification was not
suggested or instigated to the witness by the police.45 In this case, there is no evidence that the police
officers had supplied or even suggested to Rodolfo and Romulo the identities of Juan and Victor as the
perpetrators of the robbery and the killing of SPO1 Manio, Jr.

The Felony Committed by Juan and Victor

The Court finds that the trial court committed no error in convicting Juan and Victor of robbery with
homicide. Article 294, paragraph 1 of the Revised Penal Code, as amended by Republic Act 7659, reads:

Art. 294. - Robbery with violence against or intimidation of persons. - Penalties. - Any person
guilty of robbery with the use of violence against or intimidation of any person shall suffer:

1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the
crime of homicide shall have been committed, or when the robbery shall have been
accompanied by rape or intentional mutilation or arson.

To warrant the conviction of Juan and Victor for the said charge, the prosecution was burdened to prove
the confluence of the following essential elements:

xxx (a) the taking of personal property with the use of violence or intimidation against a person;
(b) the property thus taken belongs to another; (c) the taking is characterized by intent to gain
or animus lucrandi and (d) on the occasion of the robbery or by reason thereof, the crime of
homicide, which is therein used in a generic sense, was committed. xxx46
The intent to rob must precede the taking of human life.47 In robbery with homicide, so long as the
intention of the felons was to rob, the killing may occur before, during or after the robbery. In People v.
Barut,48 the Court held that:

In the controlling Spanish version of article 294, it is provided that there is robbery with
homicide "cuando con motivo o con ocasión del robo resultare homicidio". "Basta que entre
aquel este exista una relación meramente ocasional. No se requiere que el homicidio se cometa
como medio de ejecución del robo, ni que el culpable tenga intención de matar, el delito existe
según constanta jurisprudencia, aun cuando no concurra animo homicida. Incluso si la muerte
sobreviniere por mero accidente, siempre que el homicidio se produzca con motivo con ocasión
del robo, siendo indiferente que la muerte sea anterior, coetánea o posterior a éste" (2 Cuello
Calon, Derecho Penal, 1975 14th Ed. P. 872).

Even if the victim of robbery is other than the victim of the homicide committed on the occasion of or by
reason of the robbery, nevertheless, there is only one single and indivisible felony of robbery with
homicide. All the crimes committed on the occasion or by reason of the robbery are merged and
integrated into a single and indivisible felony of robbery with homicide. This was the ruling of the
Supreme Court of Spain on September 9, 1886, et sequitur cited by this Court in People v. Mangulabnan,
et al.49

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 the
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).

Case law has it that whenever homicide has been committed by reason of or on the occasion of the
robbery, all those who took part as principals in the robbery will also be held guilty as principals of
robbery with homicide although they did not take part in the homicide, unless it appears that they
endeavored to prevent the homicide.50

In this case, the prosecution proved beyond reasonable doubt that Juan and Victor conspired and
confabulated together in robbing the passengers of the Five Star Bus of their money and valuables and
Romulo of his collections of the fares of the passengers and in killing SPO1 Manio, Jr. with impunity on
the occasion of the robbery. Hence, both Juan and Victor are guilty as principals by direct participation
of the felony of robbery with homicide under paragraph 1, Article 294 of the Revised Penal Code, as
amended by R.A. 7659, punishable by reclusion perpetua to death.

The Proper Penalty

The trial court imposed the supreme penalty of death on Juan and Victor for robbery with homicide,
defined in Article 294, paragraph 1 of the Revised Penal Code, punishable with reclusion perpetua.
Under Article 63, paragraph 1 of the Revised Penal Code, the felons should be meted the supreme
penalty of death when the crime is committed with an aggravating circumstance attendant in the
commission of the crime absent any mitigating circumstance. The trial court did not specify in the
decretal portion of its decision the aggravating circumstances attendant in the commission of the crime
mandating the imposition of the death penalty. However, it is evident from the findings of facts
contained in the body of the decision of the trial court that it imposed the death penalty on Juan and
Victor on its finding that they shot SPO1 Manio, Jr. treacherously on the occasion of or by reason of the
robbery:

xxx

The two (2) accused are incomparable in their ruthlessness and base regard for human life. After
stripping the passengers of their money and valuables, including the firearm of the victim, they
came to decide to execute the latter seemingly because he was a police officer. They lost no
time pouncing him at the rear section of the bus, aimed their firearms at him and, in a derisive
and humiliating tone, told him, before pulling the trigger, that they were rather sorry but they
are going to kill him with his own gun; and thereafter, they simultaneously fired point blank at
the hapless policeman who was practically on his knees begging for his life. Afterwhich, they
calmly positioned themselves at the front boasting for all to hear, that killing a man is like killing
a chicken ("Parang pumapatay ng manok"). Escote, in particular, is a class by himself in
callousness. xxx.51

The Court agrees with the trial court that treachery was attendant in the commission of the crime. There
is treachery when the following essential elements are present, viz: (a) at the time of the attack, the
victim was not in a position to defend himself; and (b) the accused consciously and deliberately adopted
the particular means, methods or forms of attack employed by him.52 The essence of treachery is the
sudden and unexpected attack by an aggressor on the unsuspecting victim, depriving the latter of any
chance to defend himself and thereby ensuring its commission without risk of himself. Treachery may
also be appreciated even if the victim was warned of the danger to his life where he was defenseless
and unable to flee at the time of the infliction of the coup de grace.53 In the case at bar, the victim
suffered six wounds, one on the mouth, another on the right ear, one on the shoulder, another on the
right breast, one on the upper right cornea of the sternum and one above the right iliac crest. Juan and
Victor were armed with handguns. They first disarmed SPO1 Manio, Jr. and then shot him even as he
pleaded for dear life. When the victim was shot, he was defenseless. He was shot at close range, thus
insuring his death. The victim was on his way to rejoin his family after a hard day's work. Instead, he was
mercilessly shot to death, leaving his family in grief for his untimely demise. The killing is a grim example
of the utter inhumanity of man to his fellowmen.

The issues that now come to fore are (1) whether or not treachery is a generic aggravating circumstance
in robbery with homicide; and if in the affirmative, (b) whether treachery may be appreciated against
Juan and Victor. On the first issue, we rule in the affirmative. This Court has ruled over the years54 that
treachery is a generic aggravating circumstance in the felony of robbery with homicide, a special
complex crime (un delito especial complejo) and at the same time a single and indivisible offense (uno
solo indivisible).55 However, this Court in two cases has held that robbery with homicide is a crime
against property and hence treachery which is appreciated only to crimes against persons should not be
appreciated as a generic aggravating circumstance.56 It held in another case that treachery is not
appreciated in robbery with rape precisely because robbery with rape is a crime against
property.57 These rulings of the Court find support in case law that in robbery with homicide or robbery
with rape, homicide or rape are merely incidents of the robbery, with robbery being the main purpose
and object of the criminal.58 Indeed, in People vs. Cando,59 two distinguished members of this Court
advocated a review of the doctrine that treachery is a generic aggravating circumstance in robbery with
homicide. They opined that treachery is applicable only to crimes against persons. After all, in People vs.
Bariquit,60 this Court in a per curiam decision promulgated in year 2000 declared that treachery is
applicable only to crimes against persons. However, this Court held in People vs. Cando that treachery is
a generic aggravating circumstance in robbery with homicide, citing its prior rulings that in robbery with
homicide, treachery is a generic aggravating circumstance when the victim of homicide is killed with
treachery. This Court opted not to apply its ruling earlier that year in People vs. Bariquit.

Legal Luminaries in criminal law and eminent commentators of the Revised Penal Code are not in full
accord either. Chief Justice Ramon C. Aquino (Retired) says that treachery is appreciated only in crimes
against persons as defined in Title 10, Book Two of the Code.61 Chief Justice Luis B. Reyes (Retired) also is
of the opinion that treachery is applicable only to crimes against persons.62 However, Justice Florenz D.
Regalado (Retired) is of a different view.63 He says that treachery cannot be considered in robbery but
can be appreciated insofar as the killing is concerned, citing the decisions of this Court in People vs.
Balagtas64 for the purpose of determining the penalty to be meted on the felon when the victim of
homicide is killed with treachery.

It must be recalled that by Royal Order of December 17, 1886 the 1850 Penal Code in force in Spain, as
amended by the Codigo Penal Reformado de 1870 was applied in the Philippines. The Penal Code of
1887 in the Philippines was amended by Act 3815, now known as the Revised Penal Code, which was
enacted and published in Spanish. In construing the Old Penal Code and the Revised Penal Code, this
Court had accorded respect and persuasive, if not conclusive effect to the decisions of the Supreme
Court of Spain interpreting and construing the 1850 Penal Code of Spain, as amended by Codigo Penal
Reformado de 1870.65

Article 14, paragraph 16 of the Revised Penal Code reads:

ART. 14. Aggravating circumstances. – The following are aggravating circumstances:

xxx

16. That the act be committed with treachery (alevosia). There is treachery when the offender
commits any of the crimes against the person, employing means, methods, or forms in the
execution thereof which tend directly and specially to insure its execution, without risk to
himself arising from the defense which the offended party might make.

The law was taken from Chapter IV, Article 10, paragraph 2 of the 1860 Penal Code and the Codigo Penal
Reformado de 1870 of Spain which reads:

Art. 10 ...2. Ejecutar el hecho con alevosia. Hay alevosia cuando el culpable comete cualquiera
de los delitos contra las personas empleando medios, modos o for mas en la ejecucion que
tiendan directa y especialmente a asegurarla sin riesgo para su persona, que proceda de la
defensa que pudiera hacer el ofendido. xxx
Article 14, paragraph 16 of the Revised Penal Code is a reproduction of the 1850 Penal Code of Spain
and the Codigo Penal Reformado de 1870 with a slight difference. In the latter law, the words "las
personas" (the persons) are used, whereas in Article 14, paragraph 6, of the Revised Penal Code, the
words "the person" are used.

Going by the letter of the law, treachery is applicable only to crimes against persons as enumerated in
Title Eight, Chapters One and Two, Book II of the Revised Penal Code. However, the Supreme Court of
Spain has consistently applied treachery to robbery with homicide, classified as a crime against property.
Citing decisions of the Supreme Court of Spain, Cuello Calon, a noted commentator of the Spanish Penal
Code says that despite the strict and express reference of the penal code to treachery being applicable
to persons, treachery also applies to other crimes such as robbery with homicide:66

Aun cuando el Codigo solo se refiere a los delitos contra las personas, cabe estimarla en los que
no perteneciendo a este titulo se determinan por muerte o lesiones, como, en el robo con
homicidio, y en el homicidio del Jefe del Estado que es un delito contra la seguridad interior del
Estado, y no obstante la referencia estricta del texto legal a los delitos contra las personas no es
la alevosia aplicable a la mayoria de ellos, no lo es en el homicidio, pues como su concurrencia lo
cualifica lo transforma en delito distinto, en asesinato, ni en el homicidio consentido (art. 409),
ni en la riña tumultuaria (art. 408) ni en el infanticidio (art. 410). xxx. 67

Viada also says that treachery is appreciated in crimes against persons (delitos contra personas) and also
in robbery with homicide (robo con homicidio).68

"Contra las personas. - Luego la circunstancia de alevosia solo puede apreciarse en los delitos
provistos desde el art. 417 al 447, y en algun otro, como el de robo con homicidio, atentario, a la
vez que contra la propriedad, contra la persona."

Thus, treachery is a generic aggravating circumstance to robbery with homicide although said crime is
classified as a crime against property and a single and indivisible crime. Treachery is not a qualifying
circumstance because as ruled by the Supreme Court of Spain in its decision dated September 11, 1878,
the word "homicide" is used in its broadest and most generic sense.69

Article 62, paragraph 1 of the Revised Penal Code provides that in diminishing or increasing the penalty
for a crime, aggravating circumstances shall be taken into account. However, aggravating circumstances
which in themselves constitute a crime specially punishable by law or which are included by the law in
defining a crime and prescribing a penalty therefor shall not be taken into account for the purpose of
increasing the penalty.70 Under paragraph 2 of the law, the same rule shall apply with respect to any
aggravating circumstances inherent in the crime to such a degree that it must of necessity accompany
the commission thereof.

1. Aggravating circumstances which in themselves constitute a crime specially punishable by law

or which are included by the law in defining a crime and prescribing the penalty therefor shall
not be taken into account for the purpose of increasing the penalty.

xxx
 2. The same rule shall apply with respect to any aggravating circumstances inherent in the crime
to such a degree that it must be of necessity accompany the commission thereof.

Treachery is not an element of robbery with homicide. Neither does it constitute a crime specially
punishable by law nor is it included by the law in defining the crime of robbery with homicide and
prescribing the penalty therefor. Treachery is likewise not inherent in the crime of robbery with
homicide. Hence, treachery should be considered as a generic aggravating circumstance in robbery with
homicide for the imposition of the proper penalty for the crime.

In its Sentencia dated March 14, 1877, the Supreme Court of Spain declared that treachery is a generic
aggravating circumstance not only in crimes against persons but also in robbery with homicide. The high
court of Spain applied Article 79 of the Spanish Penal Code (Article 62 of the Revised Penal Code) and
ruled that since treachery is not a constitutive element of the crime of robbery with homicide nor is it
inherent in said crime, without which it cannot be committed, treachery is an aggravating circumstance
to said crime. The high court of Spain was not impervious of the fact that robbery with homicide is
classified as a crime against property. Indeed, it specifically declared that the classification of robbery
with homicide as a crime against property is irrelevant and inconsequential in the application of
treachery. It further declared that it would be futile to argue that in crimes against property such as
robbery with homicide, treachery would have no application. This is so, the high tribunal ruled,
because when robbery is coupled with crimes committed against persons, the crime is not only an
assault (ataca) on the property of the victims but also of the victims themselves (ofende):

xxx que la circunstancia agravante de alevosia ni es constitutiva del delito complejo de robo y
homicidio, ni de tal modo inherente que sin ella no pueda cometerse, sin que quepa arguir que
en los delitos contra la propiedad no debe aquella tener aplicacion, porque cuando estos son
complejos de los que se cometen contra las personas, no solo se ataca a la propiedad, sino que
se ofende a estas. xxx71

In fine, in the application of treachery as a generic aggravating circumstance to robbery with homicide,
the law looks at the constituent crime of homicide which is a crime against persons and not at the
constituent crime of robbery which is a crime against property. Treachery is applied to the constituent
crime of "homicide" and not to the constituent crime of "robbery" of the special complex crime of
robbery with homicide.

The crime of robbery with homicide does not lose its classification as a crime against property or as a
special complex and single and indivisible crime simply because treachery is appreciated as a generic
aggravating circumstance. Treachery merely increases the penalty for the crime conformably with Article
63 of the Revised Penal Code absent any generic mitigating circumstance.

In its Sentencia, dated July 9, 1877, the high tribunal of Spain also ruled that when the victim of robbery
is killed with treachery, the said circumstance should be appreciated as a generic aggravating
circumstance in robbery with homicide:

xxx que si aparece probado que el procesado y su co-reo convinieron en matar a un conocido
suyo, compañero de viaje, para lo cual desviaron cautelosamente los carros que guiaban, en uno
de los cuales iba el interfecto, dirigiendolos por otro camino que conducia a un aljibon, y al
llegar a este, valiendose de engaño para hacer bajar a dicho interfecto, se lanzaron de improviso
 sobre el, tirandolo en tierra, robandole el dinero, la manta y los talegos que llevaba, y atandole
al pie una piedra de mucho peso, le arrojaron con ella a dicho aljibon, dados estos hechos, no
cabe duda que constituyen el delito complejo del art. 516, num. I, con la circunstancia agravante
de alevosia, puesto que los medios, forma y modos empleados en la ejecucion del crimen
tendieron directa y especialmente a asegurarla sin riesgo para sus autores, procedente de la
defensa del ofendido.72

In sum then, treachery is a generic aggravating circumstance in robbery with homicide when the victim
of homicide is killed by treachery.

On the second issue, we also rule in the affirmative. Article 62, paragraph 4 of the Revised Penal Code
which was taken from Article 80 of the Codigo Penal Reformado de 1870,73 provides that circumstances
which consist in the material execution of the act, or in the means employed to accomplish it, shall serve
to aggravate or mitigate the liability of those persons only who had knowledge of them at the time of
the execution of the act or their cooperation therein. The circumstances attending the commission of a
crime either relate to the persons participating in the crime or into its manner of execution or to the
means employed. The latter has a direct bearing upon the criminal liability of all the accused who have
knowledge thereof at the time of the commission of the crime or of their cooperation
thereon.74 Accordingly, the Spanish Supreme Court held in its Sentencia dated December 17, 1875 that
where two or more persons perpetrate the crime of robbery with homicide, the generic aggravating
circumstance of treachery shall be appreciated against all of the felons who had knowledge of the
manner of the killing of victims of homicide, with the ratiocination that:

xxx si por la Ley basta haberse ejecutado un homicidio simple con motivo ú ocasión del robo
para la imposicion de la pena del art. 516, num. I, no puede sere ni aun discutible que,
concurriendo la agravante de alevosia, se aumente la criminalidad de los delincuentes; siendo
aplicable a todos los autores del hecho indivisible, porque no es circunstancia que afecte a la
personalidad del delincuente, de las que habla el art. 80 del Codigo penal en su primera parte,
sino que consiste en la ejecusion material del hecho y en los medios empleados para llevarle a
cabo, cuando de ellos tuvieron conocimiento todos los participantes en el mismo por el
concierto previo y con las condiciones establecidad en la segunda parte del citado articulo.75

Be that as it may, treachery cannot be appreciated against Juan and Victor in the case at bar because the
same was not alleged in the Information as mandated by Section 8, Rule 110 of the Revised Rules on
Criminal Procedures which reads:

Sec. 8. Designation of the offense. - The complaint or information shall state the designation of
the offense given by the statute, aver the acts or omissions constituting the offense and specify
its qualifying and aggravating circumstances. If there is no designation of the offense, reference
shall be made to the section or subsection of the statute punishing it.

Although at the time the crime was committed, generic aggravating circumstance need not be alleged in
the Information, however, the general rule had been applied retroactively because if it is more favorable
to the accused.76 Even if treachery is proven but it is not alleged in the information, treachery cannot
aggravate the penalty for the crime.
There being no modifying circumstances in the commission of the felony of robbery with homicide, Juan
and Victor should each be meted the penalty of reclusion perpetua conformably with Article 63 of the
Revised Penal Code.

Civil Liability of Juan and Victor

The trial court awarded the total amount of P300,000.00 to the heirs of SPO1 Manio, Jr. The court did
not specify whether the said amounts included civil indemnity for the death of the victim, moral
damages and the lost earnings of the victim as a police officer of the PNP. The Court shall thus modify
the awards granted by the trial court.

Since the penalty imposed on Juan and Victor is reclusion perpetua, the heirs of the victim are entitled to
civil indemnity in the amount of P50,000.00. The heirs are also entitled to moral damages in the amount
of P50,000.00, Rosemarie Manio having testified on the factual basis thereof.77 Considering that
treachery aggravated the crime, the heirs are also entitled to exemplary damages in the amount of
P25,000.00. This Court held in People vs. Catubig78 that the retroactive application of Section 8, Rule 110
of the Revised Rules of Criminal Procedure should not impair the right of the heirs to exemplary
damages which had already accrued when the crime was committed prior to the effectivity of the said
rule. Juan and Victor are also jointly and severally liable to the said heirs in the total amount of
P30,000.00 as actual damages, the prosecution having adduced evidence receipts for said amounts. The
heirs are not entitled to expenses allegedly incurred by them during the wake as such expenses are not
supported by receipts.79 However, in lieu thereof, the heirs are entitled to temperate damages in the
amount of P20,000.00.80 The service firearm of the victim was turned over to the Evidence Custodian of
the Caloocan City Police Station per order of the trial court on October 22, 1997.81 The prosecution
failed to adduce documentary evidence to prove the claim of Five Star Bus, Inc. in the amount of
P6,000.00. Hence, the award should be deleted. However, in lieu of actual damages, the bus company is
entitled to temperate damages in the amount of P3,000.00.82

The heirs are likewise entitled to damages for the lost earnings of the victim. The evidence on record
shows that SPO1 Manio, Jr. was born on August 25, 1958. He was killed on September 28, 1996 at the
age of 38. He had a gross monthly salary as a member of the Philippine National Police of P8,065.00 or a
gross annual salary of P96,780.00. Hence, the heirs are entitled to the amount of P1,354,920.00 by way
of lost earnings of the victim computed, thus:

Age of the victim = 38 years old

Life expectancy = 2/3 x (80 – age of the victim at the time of death)
= 2/3 x (80-38)
= 2/3 x 42
= 28 years
Gross Annual Income = gross monthly income x 12 months
= P8,065.00 x 12
= P96,780.00
Living Expenses = 50% of Gross Annual Income
 = P96,780.00 x 0.5
= P48,390.00
Lost Earning Capacity = Life expectancy x [Gross Annual Income-Living expenses]
= 28 x [P96,780.00 – P48,390.00]
= 28 x P48,390.00
= P1,354,920.00

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Bulacan is hereby
AFFIRMED with MODIFICATIONS. Accused-appellants Juan Gonzales Escote, Jr. and Victor Acuyan are
hereby found guilty beyond reasonable doubt of the felony of robbery with homicide defined in Article
294, paragraph 1 of the Revised Penal Code and, there being no modifying circumstances in the
commission of the felony, hereby metes on each of them the penalty of RECLUSION PERPETUA. Said
accused-appellants are hereby ordered to pay jointly and severally the heirs of the victim SPO1 Jose C.
Manio, Jr. the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P1,349,920.00
for lost earnings, P30,000.00 as actual damages and P25,000.00 as exemplary damages. The award of
P6,000.00 to the Five Star Bus, Inc. is deleted. However, the said corporation is awarded the amount of
P3,000.00 as temperate damages.

Costs de oficio.

SO ORDERED.

27. People v. Villonez, G.R. Nos. 122976-77, 16 November 1998

G.R. Nos. 122976-77. November 16, 1998

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. REGANDO VILLONEZ y PASCASIO, RUEL SANTOS y

LAPADA, JOHN DOE, PETER DOE, ELMER DOE, and ROY DOE, accused, v. EDUARDO N. SANTOS @
"EDDIE," REYNALDO N. SANTOS @ "REY," FERNANDO N. SANTOS @ "DEDE," EMERLITO N. SANTOS @
"ELMER," and RUDY N. SANTOS @ "BUDDA," accused, REGANDO VILLONEZ y PASCASIO, EMERLITO N.
SANTOS, and RUEL SANTOS, Accused-Appellants.

DECISION

DAVIDE, JR., J.:

Accused-appellants REGANDO VILLONEZ,1 RUEL SANTOS,2 and EMERLITO SANTOS pray for a reversal of
their conviction for MURDER decreed in a Joint Decision3 rendered on 23 November 1995 by the
Regional Trial Court (RTC) of Malabon, Metro Manila, Branch 170, in Criminal Cases Nos. 14943-MN and
15506-MN.

The information4 in Criminal Case No. 14943-MN charged REGANDO and RUEL with the crime of murder
allegedly committed in the following manner:
That on or about the 3rd day of May 1994 in Malabon, Metro Manila, and within the jurisdiction of this
Honorable Court, the above-named accused [Regando Villonez y Pascasio, Ruel Santos y Lapada, John
Doe, Peter Doe, Elmer Doe and Roy Doe], conspiring together and mutually helping one another,
without any justifiable cause, with deliberate intent to kill, with treachery, taking advantage of superior
strength, and being armed with bladed weapons, did then and there wilfully, unlawfully and feloniously
attack, assault and stab one GERARDO LONGASA on the different parts of the body, thereby inflicting
upon the latter serious physical injuries, which caused his death.

CONTRARY TO LAW.

The case was assigned to Branch 170 of the RTC of Malabon, Metro Manila.

Upon arraignment, REGANDO and RUEL entered a plea of not guilty.5cräläwvirtualibräry

Meanwhile, accused-appellant EMERLITO, together with Eduardo, Reynaldo, Fernando, and Rudy, all
surnamed Santos, was likewise charged with murder in an information,6 which was later docketed as
Criminal Case No. 15506-MN. The crime was allegedly committed as follows:

That on or about the 3rd day of May, 1994, in the Municipality of Malabon, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused [Eduardo N. Santos @
Eddie, Reynaldo N. Santos @ Rey, Fernando N. Santos @ Dede, Emerlito N. Santos @ Elmer, and Rudy N.
Santos @ Budda], conspiring, confederating with Regando P. Villonez and Ruel Santos who were already
charged for the same crime under Criminal Case No. 14943 and without any justifiable cause, with
deliberate intent to kill, with treachery taking advantage of superior strength and being armed with a
[sic] bladed weapons, did then and there willfully, unlawfully and feloniously attack, assault and stab
one GERARDO LONGASA on the different parts of the body, thereby inflicting upon the latter serious
physical injuries, which caused his death.

CONTRARY TO LAW.

Only EMERLITO was arrested; his co-accused have remained at large.

Evidently, the killing involved in Criminal Case No. 14943-MN was the same as that in Criminal Case No.
15506-MN. Hence, the second case was transferred from Branch 72 to Branch 170 of the RTC of
Malabon, Metro Manila, and was consolidated and jointly tried with the first case pursuant to the
Order7 of 22 March 1995.

At his arraignment, EMERLITO entered a plea of not guilty.8cräläwvirtualibräry

The witnesses for the prosecution were Edgar Jimenez and Dr. Ronaldo Mendez, a Medico-Legal Officer
of the National Bureau of Investigation; and the witnesses for the defense were the accused-appellants,
as well as Arthur Aquino and Conrado Gungon.

Edgar Jimenez testified that on 3 May 1994, at around 9:00 p.m., while he was resting inside his store at
Hulo, Malabon, Metro Manila, a certain Tonton informed him that his close friend GERARDO LONGASA
had a fistfight with one Rudy, alias Dede,9 at Liwayway Street, Baritan, Malabon. Edgar proceeded to the
area to mediate, since LONGASA and Rudy were both his friends. Edgar passed through Javier II Street in
going to Liwayway Street. At Javier II Street, a group of seven armed men, including accused-appellants,
attacked Edgar. RUEL hit Edgar on his forehead and back with a bottle. Edgar was able to escape from
his attackers. While fleeing, he ran past LONGASA, who seemed drunk. When Edgar called LONGASA,
the attackers were already upon LONGASA.10cräläwvirtualibräry

While he was about eight arms length away from LONGASA, Edgar saw EMERLITO hit LONGASA with a 2
x 2 inches piece of wood. Simultaneously, REGANDO and RUEL struck LONGASA with bottles. Rudy
Santos and Eddie Santos then stabbed LONGASA seven and eight times, respectively, even as two other
persons named Rey and Budda held LONGASAs arms. LONGASA fell to the ground. Edgar saw all these
because the scene of the incident was illuminated by a big fluorescent lamp located about three arms
length away. Edgar rushed to LONGASAs house and reported the incident to the latters
parents.11cräläwvirtualibräry

Dr. Ronaldo Mendez conducted an autopsy on LONGASAs corpse. His findings are as follows:

Abrasions: 1.0 x 0.6 cms., forehead, left side; 6.0 x 4.0 cms., zygomatic area, left; 3.6 x 1.1 cms., nasal
area, right side; 4.0 x 2.0 cms., maxillary area, left; 2.0 x 0.6 cms., infranasal area, left side; 0.5 x 0.4
cms., mandibular area, left side; 6.6 x 4.2 cms., left upper quadrant, abdomen, 5.0 x 3.0 cms., anterior
aspect, upper third, arm, left; 2.5 x 1.3 cms., left lumbar area; 5.0 x 2.5 cms., elbow, left.

Contusions, purplish: 7.4 x 6.2 cms., anterior chest wall, left side; 4.4 x 2.3 cms., anterior aspect, upper
third, arm, right.

Lacerated wounds: 1.1 cms., supraorbital ridge, right; 1.2 cms., posterior aspect, upper third, forearm,
left.

Stab wounds:

1) 3 in number, sizes ranging from 0.5 to 1.6 cms., elliptical clean-cut edges, with one extremity sharp
and the other blunt, located at the anterior chest wall, left side, over an area of 15.0 cms., x 7.0 cms.,
the farthest is located 10.0 cms., from the anterior median line, while the nearest is located 3.0 cms.,
from the anterior median line, directed backwards, upwards, downwards and medially, involving the
soft tissues, perforating the right ventricle and penetrating the lower lobe of the left lung with an
average depth of approximately 7.5 cms.

2) 1.4 cms., elliptical, clean cut edges, with sharp medial extremity and blunt lateral extremity, located
at the posterior chest wall, left side, 7.0 cms., from the posterior median line, directed forwards,
upwards and laterally, involving the soft tissues only with an approximate depth of 3.0 cms.

3) 1.5 cms., elliptical, clean-cut with sharp medial extremity and blunt lateral extremity, located at the
posterior chest wall, left side, 9.0 cms., from the posterior median line, directed forwards, upwards and
medially, involving the soft tissues, from the 6th intercostal space, into the left thoracic cavity
penetrating the upper lobe of the left lung with an approximate depth 5.0 cms.

4) 1.6 cms., elliptical, clean cut edges, with sharp lateral extremity and blunt medial extremity, located
at the anterior chest wall, right side, 3.0 cms., from the posterior median line, directed forwards,
upwards and medially, involving the soft tissue only with an approximate depth of 2.0 cms.
Hemopericardum, 230 cc.

Hemothorax, left, 1095 cc.

Other visceral organs, pale.

Stomach is almost empty.

CAUSE OF DEATH:

STAB WOUNDS.12cräläwvirtualibräry

Dr. Mendez explained that the abrasions were caused by hard, rough surface, possibly cement or a piece
of wood. The contusions and lacerations were caused by a blunt object, which could have been a piece
of wood, a bottle, a pipe, or any other hard object. The incise wounds or stab wounds were caused by a
sharp-bladed or sharp-edged instrument. Of the six stab wounds suffered by LONGASA, stab wounds
numbered 1 and 3 on LONGASAs chest caused the latters death.13cräläwvirtualibräry

The testimony of LONGASAs mother was dispensed with after the State and the defense agreed that
Longasas family incurred P8,500 in funeral expenses.14cräläwvirtualibräry

REGANDO interposed alibi and denial. He claimed that on 3 May 1994, between 7:30 and 8:00 p.m., he
was having a conversation with Arthur Aquino at the premises of RUELs house. Someone passed by the
house and reported a slaying incident at Javier II Street. Curious, REGANDO and Aquino went to the
scene of the incident and there found LONGASA lying in a pool of his own blood. REGANDO recognized
LONGASA because the latter was a barber at REGANDOs neighborhood. He believed that the victim was
already dead, since the latter did not seem to be breathing. When policemen arrived, REGANDO moved
away from the scene; he did not want to be asked about the incident, as he knew nothing about it. On 7
May 1994, he was arrested by Malabon policemen after Edgar Jimenez identified him as one of the
assailants. He opined that Edgar implicated him in the crime because they had an altercation during a
basketball game, which altercation could have erupted into a fistfight had they not been
pacified.15cräläwvirtualibräry

Arthur Aquino, REGANDOs gangmate, corroborated the latters testimony and declared that it was
impossible for REGANDO to have taken part in the killing, since he was with REGANDO before and after
the incident. When they arrived at Javier II, they saw many people, none of whom were known to him.
He asked the people milling around LONGASAs body who the killer was, but no one could tell
him.16cräläwvirtualibräry

RUEL, who was 16 years old at the time the crime in question was committed, also put up the defense of
alibi. According to him, when the incident was taking place he was at his grandmothers house in Javier II
changing clothes, for he had just taken a bath. He heard screams from outside of the house reporting
that a killing had occurred at the corner of Javier II Street. Out of curiosity, he immediately went to the
reported scene of the incident. There he saw a bloodied body lying on the ground, which he later found
to be LONGASAs cadaver. RUEL was not questioned by the authorities during the investigation.
However, on 7 May 1994, while he and co-accused REGANDO were watching television at his
grandmothers house, they were arrested by the police on the basis of Edgars information that they were
among LONGASAs assailants.17cräläwvirtualibräry

EMERLITO also relied on alibi for his defense. He declared that at the time of the incident he was at
Javier II to borrow P500 from his mother. On his way to his mothers place, someone informed him that
his brother Fernando Santos, alias Dede, was involved in a fight at Liwayway Street. He rushed to the
scene of the reported fight. There, he found his brother being ganged up on by Edgar Jimenez and
another person. EMERLITO grabbed Edgar and boxed him, but the latter retaliated. They exchanged
punches until Edgar ran towards a nearby alley. EMERLITO gave chase but failed to catch Edgar, as the
latter jumped into a river. EMERLITO waited for Edgar to come up for air. After ten to fifteen minutes,
EMERLITO got impatient and went back to Liwayway Street. After seeing no one in the area, he went to
Javier II Street. Along the way he saw people running, and then someone shouted: Mang Emer, iyong
kapatid ninyo nakasaksak namatay (Mang Emer, your brother stabbed and killed a man). Another
person advised him not to proceed to the scene of the incident and to go home instead. EMERLITO
followed the advice. He did not take his brother to the authorities because not one of his brothers was
at home when he got there. Neither did he go to the police to explain the incident, as he did not know
much about it.18cräläwvirtualibräry

Conrado Gungon attempted to bolster EMERLITOs account by claiming that at the time of the incident,
he saw Fernando Santos and a certain Rey chasing LONGASA at Javier II. He followed the three to a
corner near General Luna Street. There he saw Fernando and Rey stab LONGASA; after which the
assailants ran towards General Luna Street. The two attackers had no other companion. Conrado went
home after the incident.19cräläwvirtualibräry

In its Joint Decision,20 the trial court found Jimenezs testimony to be credible and supportive of the
theory of conspiracy among the accused. It found the following circumstances to be more than sufficient
to prove that the accused-appellants and their co-accused had common design to kill LONGASA and
were united in its execution: (1) their simultaneous acts and concerted effort in surrounding the victim;
(2) all of them carried weapons, which they used against the victim; (3) they took turns in disabling the
victim with blows administered with a piece of wood and bottles; (4) the victims arms were restrained
when the death blows were inflicted; (6) none of the accused-appellants tried to dissuade their
companions from delivering fatal wounds on the victim; as a matter of fact, they continued attacking the
victim until the latter was already down and gasping for breath; and (7) the number of wounds inflicted
on the victim was a mute testimony of the vengeful fury and brutality of the deadly attack upon him.
Conspiracy having been established, the act of one was the act of all.

The trial court ruled against the presence of treachery, since LONGASA was engaged in a fight with the
accused before the fatal attack and was, therefore, sufficiently warned of the assault against him.
However, it appreciated against the accused the qualifying aggravating circumstance of taking
advantage of superior strength because of the superior number of the accused, most of whom were
armed with weapons; while the victim was alone, with his arms held behind him by two of the
assailants.

The trial court rejected the defense of alibi for failure of accused-appellants to prove that they were so
far away from the scene of the crime as to be physically impossible for them to be there when the crime
was committed.

The trial court thus ruled that the crime committed was murder and decreed; thus:
WHEREFORE, all considered, the Court finds all the three (3) accused GUILTY beyond reasonable doubt
of the crime of MURDER and sentences each of them as follows:

a) Accused REGANDO VILLONES y PASCASIO and EMERLITO N. SANTOS, there being no aggravating and
mitigating circumstance, to suffer the penalty of RECLUSION PERPETUA;

b) Accused RUEL N. SANTOS, appreciating the privileged mitigating circumstance of minority in his favor,
being 16 years old at the time of the commission of the offense, to suffer an indeterminate penalty of
TEN (10) YEARS of prision mayor as minimum, to SEVENTEEN (17) YEARS of reclusion temporal as
maximum.

Likewise, all the accused are hereby ordered to indemnify, jointly and severally, the heirs of GERARDO
LONGASA in the amount of P8,500.00 as actual damages, and the additional sum of P50,000.00, as civil
indemnity for the death of the said victim, and the costs of suit.

Accused-appellants REGANDO, RUEL, and EMERLITO seasonably appealed to us.21cräläwvirtualibräry

In their Brief, accused-appellants REGANDO and EMERLITO, represented by the Public Attorney's Office,
contend that the trial court committed the following errors:

... IN GIVING FULL WEIGHT AND CREDENCE TO THE OTHERWISE UNCORROBORATED, INCREDIBLE AND
FABRICATED TESTIMONY OF PROSECUTION WITNESS EDGARDO JIMENEZ.

II

IN FINDING ACCUSED-APPELLANT REGANDO VILLONES GUILTY BEYOND REASONABLE DOUBT OF THE

CRIME CHARGED.

III

IN FINDING THAT THERE EXISTS CONSPIRACY IN THE CASE AT BAR.

In his separate Brief, accused-appellant RUEL imputes upon the trial court the following errors:

I.

IN NOT HOLDING THAT EDGAR JIMENEZ IS NOT COMPETENT TO TESTIFY ON THE PARTICIPATION OF
RUEL SANTOS CONSIDERING HE WAS NOT AN EYEWITNESS AND HIS TESTIMONY IS, THEREFORE,
HEARSAY.

II

IN HOLDING THAT ACCUSED RUEL SANTOS WAS IN CONSPIRACY AMONG THE OTHER ACCUSED IN THE
KILLING OF GERARDO LONGASA.
 III.

... IN DISREGARDING THE TESTIMONY OF EMERLITO SANTOS.

IV.

IN DISREGARDING THE TESTIMONY OF CONRADO GUNGON.

All accused-appellants attack the credibility of lone eyewitness Edgar Jimenez. REGANDO and EMERLITO
wonder why Edgar took a longer route through Javier II Street to get to Liwayway Street instead of just
crossing the bridge that separated Duhat from Liwayway Street, which was shorter route. Another thing
which they find illogical was Edgars failure to shout for help and to do anything to save his friend
LONGASA. As to Edgars testimony that he was mauled by the accused, accused-appellants theorize that
Edgar could have been a participant in the rumble, which made him a biased and unreliable witness.
Moreover, Edgar could not have witnessed the crime, as he was then running away from the scene to
escape further injuries. Additionally, no one corroborated Edgars testimony; hence, it is self-serving.

RUEL claims that Edgar Jimenez committed inconsistencies on material points, especially on who
actually stabbed LONGASA and how many times he was so stabbed. Edgar was, likewise, unable to make
up his mind whether he was running away from the crime scene or staying at a safe distance from the
incident. RUEL finds illogical and incredible the story of Edgar that accused attacked him when he was
merely looking for LONGASA, and that while Edgar was originally the target of the accuseds aggression,
they inexplicably vented their ire on LONGASA and allowed Edgar to witness everything and walk away
untouched. RUEL also stresses that the prosecution did not disprove EMERLITOs testimony that Edgar
was in a river near Liwayway Street while the incident was taking place; hence, he could not have
witnessed the crime. Besides, Edgars testimony was disproved by Gungon, who testified that Reynaldo
and Fernando Santos were the ones who stabbed LONGASA, and that the said assailants had no other
companions.

Accused-appellants insist on the credibility of the testimony of the defense witnesses. They further claim
that they were able to explain their whereabouts during the perpetration of the offense, and that they
had other witnesses to corroborate their respective versions.

Finally, accused-appellants assert that there is no sufficient proof of conspiracy. The short interval
between the attack on Edgar and the attack on LONGASA precluded the existence of a preconceived
plan among the accused to so assault LONGASA. Additionally, if there was indeed conspiracy among the
accused, all should have stabbed LONGASA, not just that some of them hit the victim with bottles or a
piece of wood.

In the Consolidated Brief for the Appellee, the Office of the Solicitor General (OSG) maintains that the
alleged lapses in Edgar Jimenezs testimony were duly explained and the alleged inconsistencies were
too trivial to impair his straightforward account of the crime. His failure to help his friend while the
latter was under attack was understandable considering that the aggressors had the strength of
number. At any rate, the trial court found Edgar credible. It is well-settled that a trial courts assessment
of a witnesss testimony is entitled to great respect on appeal.
As to RUELs claim of lack of logic in the version of Edgar, the OSG argues that it is of judicial knowledge
that persons have been assaulted for no apparent reason whatsoever.22cräläwvirtualibräry

The OSG considers Gungons testimony undeserving of consideration. Gungon failed to explain why he
gave his account of the crime only on 1 August 1995 or fifteen months after the incident in question. His
long unexplained silence makes one suspicious of his motives; hence his testimony is unworthy of
belief.23cräläwvirtualibräry

Finally, the OSG agrees with the trial courts rejection of accused-appellants defense of alibi and with the
finding of conspiracy. It argues that there was no showing of physical impossibility for the accused to be
at the crime scene when the crime was committed; besides, they were positively identified by Edgar
Jimenez as among LONGASAs attackers. As to conspiracy, the same can easily be deduced from the
manner of the commission of the offense and from the concerted acts of the accused to obtain a
criminal objective.24cräläwvirtualibräry

As often happens in criminal cases on appeal, we are asked to disregard the testimony of a prosecution
witness for being incredible, and to give full credence to those of the defense and decree accused-
appellants acquittal. Among the discrepant accounts of the same incident, we choose to believe the one
certified by the trial judge to be credible, in this case, the testimony of Edgar Jimenez. The judge had the
distinct advantage of having personally heard the testimonies of Edgar and the witnesses for the
defense, and observed their deportment and manner of testifying during the trial. It is settled that the
trial judges findings on the credibility of witnesses will not generally be disturbed unless said findings are
arbitrary, or facts and circumstances of weight and influence have been overlooked, misunderstood, or
misapplied by the trial judge which, if considered, would have affected the result of the case.25 None of
the exceptions have been shown to exist in the instant case.

Indeed, our perusal of the transcript of the testimony of Edgar Jimenez confirms his trustworthiness. He
told a consistent story throughout his two turns at the witness stand. He corrected misimpressions by
the trial judge and examining counsel, and he satisfactorily explained the apparent lapses in his
testimony. He was frank about his dark history as a drug user who was once the subject of a criminal
case in court. It must be noted that a criminal record does not necessarily make one an incredible
witness.26 Edgars honesty in revealing his past without hesitation bolsters his credibility.

The inconsistencies between Edgars testimony and sworn statement given to the police were likewise
adequately explained. In any case, a sworn statement or affidavit, being taken ex parte by a person
other than the witness, is almost always incomplete and often inaccurate, sometimes from partial
suggestion or for want of suggestions and inquiries. Omissions and misunderstandings by the writer are
not infrequent, particularly under circumstances of hurry and impatience. The infirmity of affidavits as a
species of evidence is a matter of judicial experience. As such, an affidavit taken ex-parte is generally
considered to be inferior to testimonies made in open court.27cräläwvirtualibräry

Furthermore, as the OSG correctly opined, the findings of medico-legal officer Dr. Ronaldo Mendez
served to corroborate Edgars testimony. LONGASAs injuries, recorded in Dr. Mendezs report, reflected
the severe beatings LONGASA suffered at the hands of the accused as narrated by Edgar.

The bromidic defense of alibi cannot benefit accused-appellants. In the face of the positive identification
of the accused by Edgar, such defense is worth nothing.28 Besides, accused-appellants were unable to
prove that it was physically impossible for them to be at the crime scene at the time the crime was
committed. On the contrary, REGANDO and RUEL admitted that in just a short time they were able to
get to the crime scene by walking. For his part, EMERLITO acknowledged his involvement in a fight
which preceded LONGASAs killing, and he conceded that he was able to return to the crime scene, or
near the crime scene, at or about the time of the commission of the offense. The alibi which is sufficient
to acquit an accused of a criminal charge must be that which shows it was physically impossible for him
to be at the crime scene at the time of the commission of the crime.29cräläwvirtualibräry

As to the trial courts finding of conspiracy among the accused, we find the same to be supported by
evidence. For conspiracy to exist, it is not required that there be an agreement for an appreciable period
prior to the occurrence. It is sufficient that at the time of the commission of the offense, the accused
had the same purpose and were united in its execution. The agreement to commit a crime may be
gleaned from the mode and manner of the commission of the offense or inferred from the acts of the
accused which point to a joint purpose or design, concerted action, and community of intent.30 In this
case, the accused simultaneously attacked LONGASA, with two of them holding the victims hands or
arms. Some struck LONGASA with a piece of wood or bottles and two others stabbed him. The attack
continued until LONGASA fell dead. These acts clearly point to a joint purpose to accomplish the desired
end.

However, we do not share the assessment of the trial court that there was no treachery in this case
because the victim had engaged in a fight previous to the killing and was thus forewarned of an attack
against him. Treachery may still be appreciated even when the victim was forewarned of danger to his
person. What is decisive is that the execution of the attack made it impossible for the victim to defend
himself or to retaliate.31 The overwhelming number of the accused, their use of weapons against the
unarmed victim, and the fact that the victims hands were held behind him preclude the possibility of any
defense by the victim.

The other qualifying circumstance of abuse of superior strength, which the trial court appreciated, will
no longer be taken against accused-appellants, for it is absorbed in treachery.32cräläwvirtualibräry

The penalty for the murder is reclusion perpetua to death pursuant to Article 248 of the Revised Penal
Code as amended by R.A. No. 7659. There being no mitigating or aggravating circumstance proved in
favor of or against EMERLITO and REGANDO, the trial court correctly imposed the penalty of reclusion
perpetua.33cräläwvirtualibräry

As to RUEL, who was only 16 years old when the offense in question was committed, the trial court
correctly appreciated in his favor the privileged mitigating circumstance of minority. Pursuant to
paragraph 2 of Article 68 of the Revised Penal Code, the penalty next lower to that prescribed by law
shall be imposed; in this case the penalty shall be reclusion temporal.34 Again, there being no proof of
any modifying circumstance, said penalty shall be imposed in its medium period.35 Since RUEL is entitled
to the benefits of the Indeterminate Sentence Law, he shall be sentenced to suffer an indeterminate
penalty whose minimum shall be within the range of prision mayor and whose maximum shall be within
the range of reclusion temporal. The penalty imposed upon him by the trial court, i.e., ten years
of prision mayor as minimum to seventeen years of reclusion temporal as maximum, is therefore
correct.

The awards of P50,000 as indemnity for the death of LONGASA and of actual damages of P8,500 are in
conformity with current case law and with the agreement of the parties, respectively.
WHEREFORE, we DISMISS the appeal and AFFIRM the challenged Joint Decision of 23 November 1995 of
Branch 170 of the Regional Trial Court of Malabon, Metro Manila, in Criminal Cases Nos. 14943-MN and
15506-MN convicting accused-appellants REGANDO P. VILLONES, EMERLITO N. SANTOS, and RUEL L.
SANTOS of the crime of murder and sentencing the first two accused to suffer the penalty of reclusion
perpetua and the third accused, to an indeterminate penalty of ten (10) years of prision mayor as
minimum to seventeen (17) years of reclusion temporal as maximum; and ordering all accused-
appellants to pay the heirs of the victim GERARDO LONGASA P50,000 as death indemnity and P8,500 as
actual damages.

No pronouncement as to costs.

SO ORDERED.

28. People v. Guzman, G.R. No. 169246, 26 January 2007

G.R. No. 169246 January 26, 2007

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
NICOLAS GUZMAN y BOCBOSILA, Accused-Appellant.

DECISION

CHICO-NAZARIO, J.:

Man is subject to innumerable pains and sorrows by the very condition of humanity, and yet, as if nature
had not sown evils enough in life, we are adding grief to grief and aggravating the common calamity by
our cruel treatment of one another. – Joseph Addison.

The passage depicts the tragic fate of the deceased victim in the case at bar. His ultimate dream was to
become a pilot so that he would have enough money to shoulder the schooling and education expenses
of his younger siblings. Sadly, however, this dream will never become a reality as his young life was
brutally snuffed out by certain violent individuals. He was a minor at the time of his death. Now his
family is seeking justice for his untimely and senseless killing.

For review is the Decision of the Court of Appeals in CA-G.R. C.R.-H.C. No. 00095, dated 28 February
2005,1 affirming with modification the Decision of the Regional Trial Court (RTC) of Quezon City, Branch
69, in Criminal Case No. Q-99-88737, dated 12 November 2001,2 finding accused-appellant Nicolas
Guzman y Bocbosila guilty beyond reasonable doubt of the crime of murder, sentencing him to suffer
the penalty of reclusion perpetua, and ordering him to pay the heirs of Michael Balber (Michael) the
amount of P35,470.00 as actual damages, P50,000.00 as civil indemnity, and P50,000.00 as moral
damages.

On 29 November 1999, appellant was charged in an Information3 with Murder allegedly committed as
follows:
That on or about the 25th day of November 1999 in Quezon City, Philippines, the above-named accused,
conspiring and confederating with two other persons, whose true names/identities and whereabouts
are still unknown, and mutually helping one another with intent to kill, with treachery and evident
premeditation, did then and there willfully, unlawfully and feloniously attack, assault and employ
personal violence upon the person of one MICHAEL ANGELO BALBER Y CASTILLON, a minor, 17 years of
age, by then and there stabbing him on the trunk with the use of a bladed weapon, thereby inflicting
upon him serious and grave wound which was the direct and immediate cause of his untimely death to
the damage and prejudice of the heirs of Michael Angelo Balber y Castillon.

When arraigned on 21 January 2000,4 appellant pleaded "Not Guilty" to the charge therein. Trial on the
merits thereafter ensued.

In building its case against appellant, the prosecution relied on the testimonies of its witnesses, namely:
Ronald Santiago (Ronald), Edgardo Bauto (Edgardo), Danilo Balber (Danilo), Police Inspector Alberto
Malaza (Inspector Malaza), SPO3 Samuel Quinto (SPO3 Quinto), and Dr. Francisco Supe, Jr. (Dr. Supe).
Their testimonies are summarized as follows:

Ronald is a jeepney driver and resident of Barangay Commonwealth, Quezon City. He testified that on
25 November 1999, at about 9:00 in the evening, he stopped by and ate at a carinderia located at the
corner of Sto. Nino Street and Mactan Street, Brgy. Commonwealth, Quezon City. After eating, he sat on
a bench just beside the carinderia and rested. He noticed appellant and two other persons having a
drinking spree in a nearby grocery store. He also saw Michael walking towards the direction of the same
grocery store. When Michael was passing in front of the grocery store, appellant and his two
companions suddenly approached and surrounded Michael. Appellant positioned himself at the back of
Michael while his two companions stood in front of Michael. Suddenly, they grabbed the shoulders of
Michael and overpowered the latter. One of appellant’s companions, whom he described as a male with
long hair, drew out a knife and repeatedly stabbed Michael at the stomach. Afterwards, the appellant’s
other companion, whom he described as a male with flat top hair, took the knife from the companion
with long hair, and also stabbed Michael at the stomach. Later, appellant went in front of Michael, took
the knife from the companion with flat top hair, and likewise stabbed Michael at the stomach. Appellant
also kicked Michael when the latter was already lying on the ground. He witnessed this stabbing incident
at a distance of five arms’ length.5

Afraid and confused, he immediately went home. The next day, however, he went to the house of
Michael’s family and narrated the incident to Michael’s father, Danilo. Subsequently, he was
accompanied by Danilo to the Batasan Hills Police Station 6 where he gave a statement about the
incident.6

Edgardo Bauto (Edgardo) is also a tricycle driver and resident of Brgy. Commonwealth, Quezon City. He
narrated that on 25 November 1999, at around 9:00 in the evening, he was standing at the corner of
Sto. Nino Street and Mactan Street, Brgy. Commonwealth, Quezon City, when he heard a female voice
shouting "Sinasaksak!" When he glanced at the direction of the said shouts, he saw, at a distance of
about five arms’ length, appellant and the latter’s two companions taking turns in stabbing Michael. One
of the appellant’s companions, whom he described as a toothless male with a long hair, was the first
one to stab Michael. Afterwards, the appellant’s other companion, whom he described as a male with
flat top hair, took the knife from the toothless male with a long hair and stabbed Michael. Subsequently,
appellant also took the knife from his companion with flat top hair and stabbed Michael too.7
Thereafter, he immediately ran and proceeded to the house of Michael’s family and informed Michael’s
parents about the incident. Michael’s parents rushed to the crime scene and took Michael to a hospital.
The next day, he was accompanied by Danilo and a certain Ramiro Alfaro to Batasan Hills Police Station
6 where he gave a statement about the incident.8

Danilo, Michael’s father, testified that on 25 November 1999, at about 9:00 in the evening, he was
walking on his way home along the corner of Sto. Nino Street and Mactan Street, Brgy. Commonwealth,
Quezon City, when he saw Michael lying along Sto. Nino Street. He also saw appellant and the latter’s
two male companions near Michael’s body. When he was about to approach them, they immediately
ran away. He chased and threw stones at them. Appellant and his two companions proceeded to the
former’s house and locked the door. He tried to follow them all the way to the house but appellant’s
relatives blocked his way to the door and told him to leave. Thereafter, he went back to Michael and
took the latter to Fairview Hospital.9 He was later informed by the doctors that Michael was already
dead.

The next day, he went to Batasan Hills Police Station 6 and gave a statement about the incident. In an
effort to settle the instant case, appellant’s wife and daughter told Danilo that they would sell a bus
which they owned and would turn over to him the proceeds thereof. He also stated that Michael
wanted to become a pilot so that, as the eldest of the children, he would be the one to shoulder the
education of his siblings.10

Inspector Malaza is a member of the police force assigned at Police Community Precinct No. 1, Batasan
Hills, Quezon City. He testified that on 25 November 1999, at about 9:00 in the evening, he was on his
way home on board his owner type jeep. Upon reaching the corner of Sto. Nino Street and Mactan
Street, Brgy. Commonwealth, Quezon City, he noticed a commotion nearby. He slowed down his vehicle
and saw, at a distance of five to ten meters, appellant stabbing and kicking Michael. He also noticed that
the appellant’s two companions were armed with bladed weapons. He alighted from his vehicle and
approached appellant and his two companions. After introducing himself as a police officer, appellant
and his two companions scampered away. He ran after them but caught only appellant. The two other
companions of the appellant successfully escaped. Thereafter, he handcuffed appellant and brought him
to Batasan Hills Police Station 6. He turned him over to a police investigator therein and executed an
affidavit of arrest.11

SPO3 Quinto is a police investigator at the Batasan Hills Police Station 6. He was the one who
investigated the incident. After the incident was reported to his station on 26 November 1999, he
immediately went to the crime scene upon the advice of the desk officer. Since Michael was already
brought to Fairview Hospital at that time, he proceeded thereto. Upon arriving at the Fairview Hospital,
he was informed that Michael was already dead. He then went back to the station and took the
statements of the prosecution witnesses.12

Dr. Supe is a medico-legal officer of the PNP Crime Laboratory, Camp Crame, Quezon City. He conducted
the post mortem examination on Michael’s body. His testimony evolved on the matters stated in the
Medico-Legal Report No. M-3112-99,13 viz:

"POSTMORTEM FINDINGS:
Fairly developed, fairly nourished male cadaver in rigor mortis with postmortem lividity at the
dependent portions of the body. Conjunctivae are pale. Lips and nail beds are cyanotic. Needle puncture
mark is noted on the dorsum of the right hand. There is fungal infection covering the entire groin and
extending to the buttocks.

"HEAD AND NECK:

1.) Abrasion, left superior orbital region, measuring 0.2 x 0.7 cm, 3.7 cm, from the anterior
midline.

2.) Lacerated wound, left lateral orbital region, measuring 0.5 x 0.8 cm, 5 cm from the anterior
midline.

3.) Abrasion, right inferior orbital region, measuring 0.6 x 2 cm, 1 cm from the anterior midline.

"CHEST AND ABDOMEN:

1.) Abrasion, left inferior or mammary region, measuring 0.5 x 8.5 cm. along the anterior
midline.

2.) Stab wound, thru and thru, point of entry, left coastal region, measuring 1 x 4 cm, 8 cm from
the anterior midline, directed posteriorwards and medialwards making a point of exit at the left
inferior mammary region, measuring 0.7 x 2.5 cm, 5 cm from the anterior midline, superficial.

3.) Stab wound, left subcostal region, measuring 0.7 x 2.3 cm, 14.2 cm from the anterior midline,
9 cm deep, directed posteriorwards, slightly upwards and medialwards, lacerating the
mesentery, small intestine, left hemidiaphragm.

4.) Lacerated wound, thru and thru, point of entry, left inferior clavicular region, measuring 2 x 7
cm, 4.5 cm from the posterior midline, extending to the right inferior clavicular region and
making a point of exit thereat, measuring 1 x 3 cm, superficial.

5.) Two and a half liters of blood and blood clots were evacuated from the abdominal cavity.

6.) The stomach is 250 ml full of billous fluid.

"Extremity:

1.) Lacerated wound, distal third of the right arm, measuring 0.4 x 1 cm, 2.5 cm lateral to its anterior
midline.

"CONCLUSION:

Cause of death is hemorrhage and shock secondary to multiple stab wounds of the trunk."14

On the other hand, the defense presented the testimonies of appellant and Antonio Sulficiencia
(Antonio) to disprove the foregoing charges.
Appellant testified that on 25 November 1999, at about 9:00 in the evening, he was inside his store
located at No. 886 Mactan St. Brgy. Commonwealth, Quezon City, when he heard shouts outside. He
peeped through the window of his store and saw Danilo and Ronald pulling out a certain Jesus de
Guzman (Jesus) from the latter’s tricycle. Danilo and Ronald punched Jesus but the latter retaliated.
Thereafter, a rumble ensued. At the height of the brawl, he shouted ‘Hoy! ano ba yan? Tama na yan!
Itigil na ninyo yan! Awatin na ninyo yan." Minutes later, Michael passed by his store and inquired as to
what was happening. He told Michael "Yung tatay mo at si Santiago (Ronald) pinagtulungan si Rommel."
Michael rushed to Danilo and pacified the latter. Edgardo, one of the participants therein, threw stones
at Michael. At this point, a certain Lemuel Grans Querubin (Lemuel) arrived and tried to join the fracas.
Michael, however, blocked Lemuel’s way. The two wrestled and both of them fell to the ground.
Moments later, Lemuel stood up. Lemuel was holding a knife and his hands were bloodied. Michael, on
the other hand, was still lying on the ground. Lemuel then chased Danilo and Ronald but the two were
able to escape. Afterwards, Danilo, Ronald and five other persons returned to the scene. Danilo was
carrying a big bolo while the others were armed with stones and lead pipe. Lemuel and Jesus ran
towards the direction of Sto. Nino in order to escape.15

Appellant went outside his house to observe the situation. Five minutes later, the group of Danilo,
together with two policemen, proceeded to appellant’s house. The policemen forcibly entered
appellant’s house and pushed the latter against the wall. They inquired as to the whereabouts of Lemuel
and Jesus, who happened to be appellant’s bus conductor and driver, respectively. When they could not
find the two, the policemen invited him to the police station. Appellant told them "Bakit ninyo ako
dadalhin? wala naman akong kinalaman diyan." From then on, the policemen held appellant in
custody.16

Antonio was a former bus driver of appellant and a resident of Paranaque City. He narrated that on 25
November 1999, at about 9:00 in the evening, he parked a bus owned by appellant’s cousin named
Juanito Palmares (Juanito) just beside the appellant’s store. He went to appellant’s store and conversed
with the latter who was inside the same store. Thereafter, he saw a rumble nearby. He ran and hid
inside the parked bus while appellant stayed inside his store. Later, the participants of the rumble began
to stone them. He alighted from the bus and went inside Juanito’s house. He noticed that appellant was
still inside the store. Subsequently, he saw Lemuel running and carrying a knife. He also heard Lemuel
saying "Tapos na ang laban, manahimik na kayo." Thereupon, he saw appellant being apprehended by
policemen in civilian clothes.17

On 12 November 2001, the RTC rendered its Decision convicting appellant of murder.18 It sustained the
"clear, direct and positive" testimony of the prosecution witnesses who all declared that they saw
appellant stab Michael. It found no ill-motive on the part of the prosecution witnesses in testifying
against appellant. It also ruled that there was treachery in the killing of Michael since the latter was
unarmed, unsuspecting and very young at the time of the attack. In ending, the RTC held:

WHEREFORE, judgment is rendered finding accused Nicolas Guzman Y Bocbosila guilty beyond
reasonable doubt of the crime of murder qualified by treachery. Accordingly, he is sentenced to suffer
the penalty of reclusion perpetua to death and further ordered to pay the heirs of the late Michael
Angelo Balber the sum of Thirty-Five Thousand Four hundred Seventy Pesos (P35,470.00), Philippine
Currency, as actual damages, excluding the Six Thousand Pesos (P6,000.00) Bagbag Cemetery as there
was no evidence to justify the award of the same; Fifty Thousand Pesos (P50,000.00), as moral damages
and the additional civil indemnity of Fifty Thousand Pesos (P50,000.00).
Appellant filed a Notice of Appeal on 26 November 2001.19 On 28 February 2005, the Court Appeals
promulgated its Decision affirming with modification the RTC Decision.20 The modification pertains only
to the penalty imposed by the RTC, thus:

WHEREFORE, the Decision of the Regional Trial Court of Quezon City, Branch 89, in Criminal Case No. Q-
99-88737 is hereby AFFIRMED in all respects except that the sentence be RECLUSION PERPETUA only.

On automatic review before us, appellant assigned the following errors of the lower court:

I.

THE LOWER COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE
[DOUBT] OF THE CRIME OF MURDER DESPITE THE PALPABLE DISCREPANCIES AND INCONSISTENCIES IN
THE TESTIMONIES OF THE PROSECUTION WITNESSES.

II.

THE LOWER COURT ERRED IN NOT GIVING EXCULPATORY WEIGHT TO THE EVIDENCE PRESENTED BY THE
DEFENSE.

III.

THE LOWER COURT ERRED IN NOT ALLOWING THE ACCUSED-APPELLANT TO PRODUCE SUBSTITUTE OR
ADDITIONAL WITNESSES FOR HIS DEFENSE.

IV.

ASSUMING ARGUENDO THAT THE ACCUSED-APPELLANT CAN BE HELD LIABLE FOR THE DEATH OF THE
VICTIM, THE LOWER COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF
TREACHERY.21

Anent the first issue, appellant claims that the testimonies of the prosecution witnesses should not be
given any weight as the same are filled with discrepancies and inconsistencies. According to him, Ronald
and Edgardo testified that appellant and his two companions used only one knife in stabbing Michael.
Inspector Malaza, however, declared that appellant and his two companions were armed with separate
knives during the stabbing incident. He also avers that Inspector Malaza gave contradicting versions of
how the latter apprehended him after the incident. Further, Edgardo testified that after the incident, he
immediately went to the house of Michael and informed Danilo of what he witnessed. Danilo, however,
declared that while he was on his way home, he saw Michael lying at the corner of Sto. Nino St. and
Mactan St., and, that the malefactors were running away.

Appellant’s contention is bereft of merit.

A witness testifying about the same nerve-wracking incident can hardly be expected to be correct in
every detail and consistent with other witnesses in every respect, considering the inevitability of
differences in perception, recollection, viewpoint, or impressions, as well as in their physical, mental,
emotional, and psychological states at the time of the reception and recall of such impressions.22 Thus,
we have followed the rule in accord with human nature and experience that honest inconsistencies on
minor and trivial matters serve to strengthen, rather than destroy the credibility of a witness, especially
of witnesses to crimes shocking to conscience and numbing to senses.23

The inconsistencies cited by appellant refer to minor and unimportant details which do not adversely
affect the credibility of the prosecution witnesses. Although the testimony of Ronald and Edgardo as to
the number of knives used in the stabbing incident differs with that of Inspector Malaza, all of them
declared under oath during the trial that appellant stabbed Michael.

Thus, as aptly stated by the Court of Appeals, such inconsistency should not be considered as a "fatal
error," since what is important and decisive is that they had seen appellant stab Michael and that they
testified on the fact during the trial.

Besides, their testimonies on material and relevant points are substantially consistent with each other.
They testified that three persons, among whom was the appellant, had stabbed Michael. Their
descriptions of the faces, physical attributes, and respective positions of appellant and his two
companions during the attack are compatible. They also stated that appellant was the last person who
stabbed Michael.

As regards the alleged inconsistent testimony of Inspector Malaza as to how the latter apprehended the
appellant, it should be borne in mind that the weight of the eyewitness account should be on the fact
that the witness saw the accused commit the crime and was positive of the latter’s physical
identification.24 Inspector Malaza had seen appellant stab Michael, and, in fact, apprehended him right
after the incident. Hence, the details on the manner by which Inspector Malaza apprehended the
appellant would be immaterial and irrelevant.

Appellant asserts that the testimony of Danilo runs counter to the testimony of the other prosecution
witnesses. Even if we were to disregard as evidence for the prosecution the testimony of Danilo, the
categorical and credible testimonies of the other prosecution witnesses are sufficient to support the
finding of guilt on the part of appellant. It should be emphasized that the testimony of one eyewitness
would be enough to support a conviction provided it is positive, credible, clear and straightforward.25

Apropos the second issue, appellant denied any liability and invoked alibi. He argued that he was inside
his store when the stabbing incident occurred, and, that it was Lemuel who stabbed Michael. He also
presented Antonio to corroborate his testimony.

For alibi to prosper, it is not enough for the accused to prove that he was somewhere else when the
crime was committed. He must likewise prove that it is physically impossible for him to be present at the
crime scene or its immediate vicinity at the time of its commission.26 If appellant was, as he claimed,
inside his store at the time of the incident, then it was not physically impossible for him to be at the
crime scene or in its immediate vicinity. His store is located just beside Mactan Street,27 and that he
witnessed the incident at a distance of merely five arms’ length from his store.28 Therefore, his defense
of alibi must fail.

Antonio testified that he and appellant, who was inside his store, were having a conversation when the
incident occurred. A perusal of the records, however, shows that appellant did not mention anything
about such conversation. In fact, appellant did not even mention the name of Antonio in his entire
testimony. Given the foregoing, the testimony of Antonio cannot be considered as credible.

In arguing the third issue, appellant avers that his constitutional rights to produce evidence on his behalf
and to due process were violated when the trial court denied the motion of his counsel to present
substitute witnesses.

In the Pre-Trial Order of the RTC dated 29 February 2000, the defense named only four witnesses, to
wit: Antonio, Lizardo Dedase, Eduardo Bidia, and accused himself.29 In the same order, the RTC stated
the following:

All parties are informed that witnesses and documents which were not mentioned in this pre-trial order
shall not be entertained during the trial on the merits.30

During the trial, only appellant and Antonio were able to testify. When the two other witnesses in the
pre-trial order, namely, Lizardo Dedase and Eduardo Bidia, failed to appear and testify in court several
times, the defense counsel moved to substitute them explaining that they were hesitant to testify, and,
that one of them went home to his province.31

The RTC was correct in denying the defense counsel’s motion for substitution of witnesses since Section
4, Rule 118 of the Revised Rules on Criminal Procedure mandates that the matters agreed upon in the
pre-trial conference and as stated in the pre-trial order shall bind the parties, to wit:

SEC. 4. Pre-trial order. – After the pre-trial conference, the court shall issue an order reciting the actions
taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to
matters not disposed of, and control the course of the action during the trial, unless modified by the
court to prevent manifest injustice (Italics supplied).

The pre-trial order of the RTC dated 29 February 2000 clearly shows that the defense named only four
witnesses. The parties were also informed therein that witnesses who were not mentioned in the pre-
trial order will not be entertained during the trial on the merits. Thus, pursuant to the afore-stated
provision and its purpose of preventing undue delay in the disposition of criminal cases and ensuring fair
trial, the denial of the defense counsel’s motion for substitution of witnesses is justified. Moreover, if
appellant’s motion for substitution of witnesses is given due course, it will amount to an unreasonable
disregard of solemn agreements submitted to and approved by the court of justice and would make a
mockery of the judicial process.

This is not to say, however, that such provision is absolute. It can be relaxed in the greater interest of
justice. Nevertheless, the exception does not apply in favor of appellant as the RTC had observed that
his motion for substitution of witnesses appears to be a "fishing expedition" of evidence which is clearly
unfair to the case of the prosecution.32 Moreover, as aptly stated by the Solicitor General, if the two
other witnesses of appellant were indeed afraid or hesitant to testify, he should have moved the RTC to
subpoena the said witnesses to testify in court33 pursuant to his constitutional right to compulsory
process to secure the attendance of his witnesses.34 Unfortunately, appellant did not avail himself of this
remedy.
As to the fourth issue, appellant contends that even if he were held liable for the death of Michael,
there was no treachery which will qualify the killing as murder. According to him, there is no evidence to
show that appellant and his two companions had deliberately and consciously adopted their mode of
attack to ensure its execution without risk to themselves. The stabbing incident occurred in a place that
was properly lighted. There were many people in the area then walking in different directions. He claims
that if he and his two companions wanted to ensure that no risk would come to them, then they could
have chosen another time and place to attack Michael.

Treachery is a sudden and unexpected attack under the circumstances that renders the victim unable
and unprepared to defend himself by reason of the suddenness and severity of the attack.35 It is an
aggravating circumstance that qualifies the killing of a person to murder. Article 14, paragraph (16) of
the Revised Penal Code states the concept and essential elements of treachery as an aggravating
circumstance, thus:

ART. 14. The following are aggravating circumstances:

xxxx

16. That the act be committed with treachery (alevosia).

There is treachery when the offender commits any of the crimes against the person, employing means,
methods, or forms in the execution thereof which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended party might make.

As can be gleaned from the foregoing, two essential elements/conditions are required in order that
treachery may be appreciated: (1) The employment of means, methods or manner of execution that
would ensure the offender’s safety from any retaliatory act on the part of the offended party, who has,
thus no opportunity for self-defense or retaliation; (2) deliberate or conscious choice of means, methods
or manner of execution. Further, it must always be alleged in the information and proved in trial in order
that it may be validly considered.36

In the instant case, treachery was alleged in the Information against appellant.37 Moreover, all the
essential elements/conditions of treachery were established and proven during the trial.

After attending a worship service at the Iglesia ni Kristo church in his barangay, Michael proceeded
home. While Michael was casually walking along the corner of Sto. Nino Street and Mactan Street,
appellant and his two companions, who were drinking nearby, suddenly approached and surrounded
Michael. Appellant positioned himself at the back of Michael while his two companions stood in front of
Michael. In an instant, they grabbed the shoulders of Michael and overpowered the latter. One of the
appellant’s companions, whom the prosecution witnesses described as a male with long hair, drew out a
knife and repeatedly stabbed Michael on the stomach. Unsatisfied, the appellant’s other companion,
whom the prosecution witnesses described as a male with flat top hair, took the knife and stabbed
Michael on the stomach. As the finale, appellant went in front of Michael, took the knife and also
stabbed Michael on the stomach. When Michael fell on the ground, appellant kicked him at the body.
Upon noticing that the bloodied Michael was no longer moving, appellant and his two companions fled
the scene.
As viewed from the foregoing, the suddenness and unexpectedness of the attack of appellant and his
two companions rendered Michael defenseless, vulnerable and without means of escape. It appears
that Michael was unarmed and alone at the time of the attack. Further, he was merely seventeen years
of age then.38 In such a helpless situation, it was absolutely impossible for Michael to escape or to
defend himself against the assault of appellant and his two companions. Being young and weak, Michael
is certainly no match against adult persons like appellant and his two companions. Michael was also
outnumbered since he had three assailants, and, was unarmed when he was stabbed to death.
Appellant and his two companions took advantage of their size, number, and weapon in killing Michael.
They also deliberately adopted means and methods in exacting the cruel death of Michael by first
surrounding him, then grabbing his shoulders and overpowering him. Afterwards, each of them
repeatedly stabbed Michael with a knife at the stomach until the latter fell lifeless to the ground. The
stab wounds sustained by Michael proved to be fatal as they severely damaged the latter’s large
intestine.39

The fact that the place where the incident occurred was lighted and many people were walking then in
different directions does not negate treachery. It should be made clear that the essence of treachery is
the sudden and unexpected attack on an unsuspecting victim without the slightest provocation on his
part.40 This is even more true if the assailant is an adult and the victim is a minor. Minor children, who by
reason of their tender years, cannot be expected to put up a defense. Thus, when an adult person
illegally attacks a minor, treachery exists.41 As we earlier found, Michael was peacefully walking and not
provoking anyone to a fight when he was stabbed to death by appellant and his two companions.
Further, Michael was a minor at the time of his death while appellant and his two companions were
adult persons.

With regard to the allegation in the Information that the killing of Michael was attended by an
aggravating circumstance of evident premeditation, the RTC and the Court of Appeals were correct in
disregarding the same against appellant. The essence of evident premeditation as an aggravating
circumstance is that the execution of the criminal act was preceded by cool thought and reflection upon
the resolution to carry out the criminal intent during a space of time sufficient to arrive at a calm
judgment.42 It implies a deliberate planning of the crime before executing it. It must also be shown how
and when the plan to kill was hatched or what time elapsed before it was carried out.43 Further, there
must be proof that the accused meditated and reflected on his intention between the time when the
crime was conceived by him and the time it was actually perpetrated.44 In the case at bar, there is no
evidence to show that appellant and his two companions had previously planned and reflected in killing
Michael. When appellant and his two companions saw Michael on that fateful night, they immediately
pounced on him. The thought of killing Michael came into the minds of appellant and his two
companions only when they saw Michael walking on the road. Indeed, the killing of Michael was sudden
and unplanned.

On another point, we agree with the penalty imposed by the Court of Appeals. Article 248 of the Revised
Penal Code states that murder is punishable by reclusion perpetua to death. Article 63 of the same Code
provides that if the penalty is composed of two indivisible penalties, as in the instant case, and there are
no aggravating or mitigating circumstances, the lesser penalty shall be applied. Since there is no
mitigating or aggravating circumstance in the present case, and, treachery cannot be considered as an
aggravating circumstance as it was already taken as a qualifying circumstance, the lesser penalty of
reclusion perpetua should be imposed. As regards the damages awarded by the Court of Appeals, we
rule that the sum of P35,470.00 as actual damages should be reduced to P25,670.00 since the receipts
on record amounts only to P25,670.00.45 It is well-settled that only expenses supported by receipts will
be allowed for actual damages.46 Furthermore, exemplary damages should also be awarded to the heirs
of Michael since the qualifying circumstance of treachery was firmly established by the prosecution.47 If
a crime is committed with an aggravating circumstance, either qualifying or generic, an award
of P25,000.00 as exemplary damages is justified under Article 2230 of the New Civil Code.48 This kind of
damage is intended to serve as a deterrent to serious wrongdoings, and as a vindication of undue
sufferings and wanton invasion of the rights of an injured person or punishment for those guilty of
outrageous conduct.

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. C.R.-H.C. No. 00095 dated 28 February
2005 is hereby AFFIRMED with MODIFICATIONS. Appellant is hereby found guilty beyond reasonable
doubt of the crime of murder, for which, he is accordingly sentenced to suffer the penalty of reclusion
perpetua. Appellant is further ordered to pay the heirs of Michael P25,670.00 as actual
damages; P50,000.00 as moral damages; P50,000.00 as civil indemnity for Michael’s death;
and P25,000.00 as exemplary damages.

SO ORDERED.

29. People v. Torriefel CA-GR. No. 659-R, 29 November 1947

30. People v. Jose, G.R. No. L-28232, 6 February 1971

G.R. No. L-28232 February 6, 1971

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JAIME JOSE Y GOMEZ, ET AL., defendants. JAIME JOSE Y GOMEZ, BASILIO PINEDA, JR., alias "BOY,"
EDGARDO AQUINO Y PAYUMO and ROGELIO CAÑAL Y SEVILLA, defendants-appellants.

Office of the Solicitor General Antonio P. Barredo and Solicitor Augusto M. Amores for plaintiff-appellee.

Baizas, Alberto and Associates, Andreciano F. Caballero and Lota, Paraiso, Garcia and Dueñas for
defendant-appellant Jaime G. Jose.

Mabanag, Eliger and Associates for defendant-appellant Basilio Pineda, Jr.

Sycip, Salazar, Luna, Manalo and Feliciano for defendant-appellant Edgardo P. Aquino.

Antonio Coronel Law Office and Roberto J. Ignacio for defendant-appellant Rogelio S. Canial.

PER CURIAM:

The amended complaint filed in this case in the court below, reads as follows:
 The undersigned complainant accuses JAIME JOSE Y GOMEZ, BASILIO PINEDA, JR. Alias
"BOY," EDUARDO AQUINO Y PAYUMO alias "EDDIE" and ROGELIO CAÑAL Y SEVILLA alias
"ROGER," as principals, WONG LAY PUENG, SILVERIO GUANZON Y ROMERO and JESSIE
GUION Y ENVOLTARIO as accomplices, of the crime of Forcible Abduction with rape,
committed as follows:

That on or about the 26th day of June, 1967, in Quezon City, and within the jurisdiction
of this Honorable Court, the above-named principal accused, conspiring together,
confederating with and mutually helping one another, did, then and there, wilfully,
unlawfully and feloniously, with lewd design, forcibly abduct the undersigned
complainant against her will, and did, then and there take her, pursuant to their
common criminal design, to the Swanky Hotel in Pasay City, where each of the four (4)
accused, by means of force and intimidation, and with the use of a deadly weapon, have
carnal knowledge of the undersigned complainant against her will, to her damage and
prejudice in such amount as may be awarded to her under the provisions of the civil
code.

That WONG LAY PUENG, SILVERIO GUANZON y ROMERO, and JESSIE GUION y
ENVOLTARIO without taking a direct part in the execution of the offense either by
forcing, inducing the principal accused to execute, or cooperating in its execution by an
indispensable act, did, then and there cooperate in the execution of the offense by
previous or simultaneous acts, that is, by cooperating, aiding, abetting and permitting
the principal accused in sequestering the undersigned complainant in one of the rooms
of the Swanky Hotel then under the control of the accused Wong Lay Pueng, Silverio
Guanzon y Romero and Jessie Guion y Envoltario, thus supplying material and moral aid
in the consummation of the offense.

That the aforestated offense has been attended by the following aggravating
circumstances:

1. Use of a motor vehicle.

2. Night time sought purposely to facilitate the commission of the crime and to make its
discovery difficult;

3. Abuse of superior strength;

4. That means were employed or circumstances brought about which added ignominy
to the natural effects of the act; and

5. That the wrong done in the commission of the crime be deliberately augmented by
causing other wrong not necessary for the commission.

CONTRARY TO LAW.

Upon arraignment, Basilio Pineda, Jr. pleaded guilty to the charge imputed in the above-quoted
amended complaint; however, in an order dated July 11, 1967, the court reserved judgment "until such
time as the prosecution shall have concluded presenting all of its evidence to prove the aggravating
circumstances listed in the complaint." Upon the other hand, the rest of the defendants went to trial on
their respective pleas of not guilty. After the merits, the court below rendered its decision on October 2,
1967, the dispositive portion of which reads as follows:

WHEREFORE, the Court finds the accused Jaime Jose, Rogelio Cañal, Eduardo Aquino
and Basilio Pineda, Jr. guilty beyond reasonable doubt of the crime of forcible abduction
with rape as described under Art. 335 of the Revised Penal Code, as amended, and
hereby sentences each of them to the death penalty to be executed at a date to be set
and in the manner provided for by law; and each to indemnify the complainant in the
amount of ten thousand pesos. On the ground that the prosecution has failed to
establish a prima facie case against the accomplices Wong Lay Pueng, Silverio Guanzon y
Romero, and Jessie Guion y Envoltario, the Motion to Dismiss filed for and in their
behalf is hereby granted, and the case dismissed against the aforementioned accused.

Insofar as the car used in the abduction of the victim which Jaime Jose identified by
pointing to it from the window of the courtroom and pictures of which were submitted
and marked as Exhibits "M" and "M-1," and which Jaime Jose in his testimony admitted
belonged to him, pursuant to Art. 45 of the Revised Penal Code, which requires the
confiscation and forfeiture of the proceeds or instruments of the crime, the Court
hereby orders its confiscation.

This case is now before us by virtue of the appeal interposed by Basilio Pineda, Jr., Edgardo Aquino, and
Jaime Jose, and for automatic review as regards Rogelio Cañal. However, for practical purposes all of
them shall hereafter be referred to as appellants.

The complainant, Magdalena "Maggie" de la Riva, was, at the time of the incident, 25 years old and
single; she graduated from high school in 1958 at Maryknoll College and finished the secretarial course
in 1960 at St. Theresa's College. Movie actress by profession, she was receiving P8,000.00 per picture. It
was part of her work to perform in radio broadcasts and television shows, where she was paid P800.00
per month in permanent shows, P300.00 per month in live promotional shows, and from P100.00 to
P200.00 per appearance as guest in other shows.

So it was that at about 4:30 o'clock in the morning of June 26, 1967, Miss De la Riva, homeward bound
from the ABS Studio on Roxas Blvd., Pasay City, was driving her bantam car accompanied by her maid
Helen Calderon, who was also at the front seat. Her house was at No. 48, 12th Street, New Manila,
Quezon City. She was already near her destination when a Pontiac two-door convertible car with four
men aboard (later identified as the four appellants) came abreast of her car and tried to bump it. She
stepped on her brakes to avoid a collision, and then pressed on the gas and swerved her car to the left,
at which moment she was already in front of her house gate; but because the driver of the other car
(Basilio Pineda, Jr.) also accelerated his speed, the two cars almost collided for the second time. This
prompted Miss De la Riva, who was justifiably annoyed, to ask: "Ano ba?" Forthwith, Pineda stopped the
car which he was driving, jumped out of it and rushed towards her.

The girl became so frightened at this turn of events that she tooted the horn of her car continuously.
Undaunted, Pineda opened the door of Miss De la Riva's car and grabbed the lady's left
arm.lâwphî1.ñèt The girl held on tenaciously to her car's steering wheel and, together with her maid,
started to scream. Her strength, however, proved no match to that of Pineda, who succeeded in pulling
her out of her car. Seeing her mistress' predicament, the maid jumped out of the car and took hold of
Miss De la Riva's right arm in an effort to free her from Pineda's grip. The latter, however, was able to
drag Miss De la Riva toward the Pontiac convertible car, whose motor was all the while running.

When Miss De la Riva, who was being pulled by Pineda, was very near the Pontiac car, the three men
inside started to assist their friend: one of them held her by the neck, while the two others held her
arms and legs. All three were now pulling Miss De la Riva inside the car. Before she was completely in,
appellant Pineda jumped unto the driver's seat and sped away in the direction of Broadway Street. The
maid was left behind.

The complainant was made to sit between Jaime Jose and Edgardo Aquino at the back seat; Basilio
Pineda, Jr. was at the wheel, while Rogelio Cañal was seated beside him. Miss De la Riva entreated the
appellants to release her; but all she got in response were jeers, abusive and impolite language that the
appellants and threats that the appellants would finish her with their Thompson and throw acid at her
face if she did not keep quiet. In the meantime, the two men seated on each side of Miss De la Riva
started to get busy with her body: Jose put one arm around the complainant and forced his lips upon
hers, while Aquino placed his arms on her thighs and lifted her skirt. The girl tried to resist them. She
continuously implored her captors to release her, telling them that she was the only breadwinner in the
family and that her mother was alone at home and needed her company because her father was already
dead. Upon learning of the demise of Miss De la Riva's father, Aquino remarked that the situation was
much better than he thought since no one could take revenge against them. By now Miss De la Riva was
beginning to realize the futility of her pleas. She made the sign of the cross and started to pray. The
appellants became angry and cursed her. Every now and then Aquino would stand up and talk in
whispers with Pineda, after which the two would exchange knowing glances with Cañal and Jose.

The car reached a dead-end street. Pineda turned the car around and headed towards Victoria Street.
Then the car proceeded to Araneta Avenue, Sta. Mesa Street, Shaw Boulevard, thence to Epifanio de los
Santos Avenue. When the car reached Makati, Aquino took a handkerchief from his pocket and, with the
help of Jose, blindfolded Miss De la Riva. The latter was told not to shout or else she would be stabbed
or shot with a Thompson. Not long after, the car came to a stop at the Swanky Hotel in Pasay City The
blindfolded lady was led out of the car to one of the rooms on the second floor of the hotel.

Inside the room Miss De la Riva was made to sit on a bed. Her blindfold was removed. She saw Pineda
and Aquino standing in front of her, and Jose and Cañal sitting beside her, all of them smiling
meaningfully. Pineda told the complainant: "Magburlesque ka para sa amin." The other three expressed
their approval and ordered Miss De la Riva to disrobe. The complainant ignored the command. One of
the appellants suggested putting off the light so that the complainant would not be ashamed. The idea,
however, was rejected by the others, who said that it would be more pleasurable for them if the light
was on. Miss De la Riva was told to remove her stocking in order, according to them, to make the
proceedings more exciting. Reluctantly, she did as directed, but so slowly did she proceed with the
assigned task that the appellants cursed her and threatened her again with the Thompson and the
acid.lâwphî1.ñèt They started pushing Miss De la Riva around. One of them pulled down the zipper of
her dress; another unhooked her brassiere. She held on tightly to her dress to prevent it from being
pulled down, but her efforts were in vain: her dress, together with her brassiere, fell on the floor.

The complainant was now completely naked before the four men, who were kneeling in front of her and
feasting their eyes on her private parts. This ordeal lasted for about ten minutes, during which the
complainant, in all her nakedness, was asked twice or thrice to turn around. Then Pineda picked up her
clothes and left the room with his other companions. The complainant tried to look for a blanket with
which to cover herself, but she could not find one.

Very soon, Jose reentered the room and began undressing himself. Miss De la Riva, who was sitting on
the bed trying to cover her bareness with her hands, implored him to ask his friends to release her.
Instead of answering her, he pushed her backward and pinned her down on the bed. Miss De la Riva and
Jose struggled against each other; and because the complainant was putting up stiff resistance, Jose
cursed her and hit her several times on the stomach and other parts of the body. The complainant
crossed her legs tightly, but her attacker was able to force them open. Jose succeeded in having carnal
knowledge of the complainant. He then left the room.

The other three took their turns. Aquino entered the room next. A struggle ensued between him and
Miss De la Riva during which he hit, her on different parts of the body. Like Jose, Aquino succeeded in
abusing the complainant. The girl was now in a state of shock. Aquino called the others into the room.
They poured water on her face and slapped her to revive her. Afterwards, three of the accused left the
room, leaving Pineda and the complainant After some struggle during which Pineda hit her, the former
succeeded in forcing his carnal desire on the latter. When the complainant went into a state of shock for
the second time, the three other men went into the room again poured water on the complainant's face
and slapped her several times. The complainant heard them say that they had to revive her so she
would know what was happening. Jose, Aquino and Pineda then left the room. It was now appellant
Canal's turn. There was a struggle between him and Miss De la Riva. Like the other three appellants
before him, he hit the complainant on different parts of the body and succeeded in forcing his carnal
lust on her.

Mention must be made of the fact that while each of mention must be made the four appellants was
struggling with the complainant, the other three were outside the room, just behind the door,
threatening the complainant with acid and telling her to give in because she could not, after all, escape
what with their presence.

After the appellants had been through with the sexual carnage, they gave Miss De la Riva her clothes,
told her to get dressed and put on her stockings, and to wash her face and comb her hair, to give the
impression that nothing had happened to her. They told her to tell her mother that she was mistaken by
a group of men for a hostess, and that when the group found out that she was a movie actress, she was
released without being harmed. She was warned not to inform the police; for if she did and they were
apprehended, they would simply post bail and later hunt her up and disfigure her face with acid. The
appellants then blindfolded Miss De la Riva again and led her down from the hotel room. Because she
was stumbling, she had to be carried into the car. Inside the car, a appellant Jose held her head down on
his lap, and kept it in that position during the trip, to prevent her from being seen by others.

Meanwhile, the four appellants were discussing the question of where to drop Miss De la Riva. They
finally decided on a spot in front of the Free Press Building not far from Epifanio de los Santos Avenue
near Channel 5 to make it appear, according to them, that the complainant had just come from the
studio. Pineda asked Jose to alight and call a taxicab, but to choose one which did not come from a well-
known company. Jose did as requested, letting several taxicabs pass by before flagging a UBL taxicab.
After they warned again Miss De la Riva not to inform anyone of what had happened to her, appellant
Canal accompanied her to the taxicab. The time was a little past 6:00 o'clock. When Miss De la Riva was
already inside the cab and alone with the driver, Miguel F. Campos, she broke down and cried. She kept
asking the driver if a car was following them; and each time the driver answered her in the negative.
It was 6:30 o'clock — or some two hours after the abduction — when Miss De la Riva reached home. Her
mother, her brother-in-law Ben Suba, as well as several PC officers, policemen and reporters, were at
the house. Upon seeing her mother, the complainant ran toward her and said, "Mommy, Mommy, I
have been raped. All four of them raped me." The mother brought her daughter upstairs. Upon her
mother's instruction, the complainant immediately took a bath and a douche. The older woman also
instructed her daughter to douche himself two or three times daily with a strong solution to prevent
infection and pregnancy. The family doctor, who was afterwards summoned, treated the complainant
for external physical injuries. The doctor was not, however, told about the sexual assaults. Neither was
Pat. Pablo Pascual, the police officer who had been sent by the desk officer, Sgt. Dimla, to the De la Riva
residence when the latter received from a mobile patrol a report of the snatching. When Miss De la Riva
arrived home from her harrowing experience, Pat. Pascual attempted to question her, but Ben Suba
requested him to postpone the interrogation until she could be ready for it. At that time, mother and
daughter were still undecided on what to do.

On the afternoon of June 28, 1967, the complainant family gathered to discuss what steps, if any, should
be taken. After some agonizing moments, a decision was reached: the authorities had to be informed.
Thus, early on the morning of June 29, 1967, or on the fourth day after the incident, Miss De la Riva,
accompanied by her lawyer, Atty. Regina O. Benitez, and by some members of the family, went to the
Quezon City Police Department Headquarters, filed a complaint and executed a statement (Exh. "B")
wherein she narrated the incident and gave descriptions of the four men who abused her. In the
afternoon of the same day, the complainant submitted herself ito a medico-internal examination by Dr.
Ernesto Brion, NBI Chief Medico-Legal Officer.

During the physical examination of the complainant by Dr. Brion on June 29, 1967, Pat. Pascual was also
at the NBI office. There he received a telephone call from the police headquarters to the effect that one
of the suspects had been apprehended. That evening, the complainant and Pat. Pascual proceeded to
the headquarters where Miss De la Riva identified appellant Jaime Jose from among a group of persons
inside the Office of the Chief of Police of Quezon City as one of the four men he abducted and raped her.
She executed another statement (Exh. "B-1") wherein she made a formal identification of Jose and
related the role played by him.

At about 9:00 o'clock of the same evening, appellant Jose executed a statement (Exh. "I") before Pat.
Marcos G. Viñas. In his statement, which was duly sworn. Jose admitted that he knew about, and was
involved in, the June 26 incident. He named the other line appellants as his companions. Jose stated,
among other things, that upon the initiative of Pineda, he and the other three waited for Miss De la Riva
to come out of the ABS Studio; that his group gave chase to the complainant's car; that it was Pineda
who blindfolded her and that only Pineda and Aquino criminally assaulted the complainant.

After Exh, "I" was executed by Jose, an informant furnished Pat. Vinas with a picture of appellant
Edgardo Aquino. The picture was shown to Miss De la Riva, who declared in her sworn statement (Exh.
"B-3") that the man in the picture was one of her abductors and rapists. The same picture was shown to
Jose, who, in another sworn statement (Exh. "I-l"), identified the man in the picture as appellant Aquino.

After the apprehension of Jose, the other three soon fell into the hands of the authorities: Pineda and
Cañal on July 1, 1967, in Lipa City, and Aquino on July 5, 1967, in the province of Batangas. On the
evening of July 1, 1967. Miss De la Riva pointed to Pineda and Cañal as among the four persons who
abducted and raped her. She picked them out from among several person in the Office of the Chief of
Police of Quezon City. Later in the same evening, Miss De la Riva executed a sworn statement (Exh. B-
2)wherein she made the same identification of the two appellants from among a group of persons in the
Office of the Chief of the Detective Bureau, adding that appellant Cañal had tattoo marks on his right
hip. After the identification, one of the policemen took appellant Cañal downstairs and undressed him,
and he saw, imprinted on the said appellant's right hip, the words "Bahala na Gang."

Appellant Cañal and Pineda executed and swore to separate statements on the day of their arrest. In his
statement (Exh. "G"), appellant Cañal confirmed the information previously given by Jose that the four
of them waited for Miss De la Riva to come down from the ABS Studio, and that they had planned to
abduct and rape her. Appellant Cañal admitted that all four of them participated in the commission of
the crime, but he would make it appear that insofar as he was concerned the complainant yielded her
body to him on condition that he would release her. Pineda executed a statement (Exh. "J") stating that
he and his other three companions wept to the ABS Studio, and that, on learning that Miss De la Riva
was there, they made plans to wait for her and to follow her. He admitted that his group followed her
car and snatched her and took her to the Swanky Hotel. He would make it appear, however, that the
complainant voluntarily acceded to having sexual intercourse with him.

In his medical report (Exh. "K"), Dr. Brion noted the presence of multiple contusions and bruises on
different parts of the complainant's body, as well as of genital injuries. On the witness stand the doctor
was shown several photographs of the complainant taken in his presence and under his supervision.
With the aid of the photographs and the medical reports, the doctor explained to the court that he
found contusions or bruises on the complainant's chest, shoulders, arms and fore-arms, right arm index
finger, thighs, right knee and legs. He also declared that when he was examining her, Miss De la Riva
complained of slight tenderness around the neck, on the abdominal wall and at the sites of the
extragenital physical injuries, and that on pressing the said injuries, he elicited a sigh of pain or
tenderness on the part of the subject. The injuries, according to Dr. Brion, could have been caused blows
administered by a closed fist or by the palm of the hand, and could have been inflicted on the subject
while she was being raped. It was the doctor's opinion that they could have been sustained on or about
June 26, 1967. In connection with the genital examination, the doctor declared that he found injuries on
the subject's genitalia which could have been produced by sexual intercourse committed on June 26,
1967. He said that he failed to find spermatozoa. He explained, however, that spermatozoa are not
usually found in the vagina after the lapse of three days from the last intercourse, not to mention the
possibility that the subject might have douched herself.

The three appellants who pleaded not guilty (Jose, Aquino and Cañal) took the witness stand. We quote
hereunder the portions of the decision under review relative to the theory of the defense:

Their story is that they and their co-accused Pineda had gone to the Ulog Cocktail
Lounge somewhere in Mabini street in Manila, and there killed time from 9:30 in the
evening of June 25 until closing time, which was about 3:30 in the early morning of the
next day. At the cocktail lounge they had listened to the music while enjoying some
drinks. Between them they had consumed a whole bottle of whisky, so much so that at
least Aquino became drunk, according to his own testimony. They had been joined at
their table by a certain Frankie whom they met only that night. Come time to go home,
their new acquaintance asked to be dropped at his home in Cubao. The five men piled
into the red-bodied, black topped two-door convertible Plymouth (Pontiac) car of Jaime
Jose, and with Pineda at the wheel repaired to Cubao After dislodging their new friend,
Pineda steered the car to España Extension to bring Aquino to his home in Mayon
Street. But somewhere in España Extension before the Rotonda a small car whizzed to
them almost hitting them. They saw that the driver was a woman. Pineda gave chase
and coming abreast of the small car he shouted, "Putang ina mo, kamuntik na kaming
mamatay." The woman continued on her way. Now Pineda saying "let us teach her a
lesson," sped after her and when she swerved ostensibly to enter a gate, Pineda
stopped his car behind being hurriedly got down, striding to the small car, opened the
door and started dragging the girl out. Both Jose and Aquino confirm the presence of
another woman inside the girl's car, who helped the girl struggle to get free from
Pineda's grip; and that the struggle lasted about ten minutes before Pineda finally
succeeded in pushing the girl into the red convertible. All the three accused insist they
did nothing to aid Pineda: but they also admit that they did nothing to stop him.

Now the defense contends that Pineda cruised around and around the area just to scare
the girl who was in truth so scared that she begged them to let her be and return her to
her home. She turned to Jose in appeal, but this one told her he could net do anything
as the "boss" was Pineda. Aquino heard her plead with Jose "do you not have a sister
yourself?" but did not bear the other plea 'do you not have a mother?' Then Pineda
stopped at the corner of the street where he had forcibly snatched the girl presumably
to return her, but then suddenly changing his mind he said, 'why don't you do a strip
tease for us. I'll pay you P1,000.00 and the girl taunted, 'are you kidding?': that after a
little while she consented to do the performance as long as it would not last too long
and provided the spectators were limited to the four of them.

Pineda sped the car until they got to Swanky Hotel where he and Maggie alighted first,
but not before Maggie had borrowed a handkerchief from one of them to cover her face
as she went up the Hotel.lâwphî1.ñèt The three followed, and when they saw the pair
enter a room, they quickly caught up. All the three accused testify that as soon as they
got into the room, Maggie de la Riva asked the boys to close the windows before she.
undressed in front of them. They themselves also removed their clothing. Two of them
removed their pants retaining their briefs, while Boy Pineda and Cañal stripped to the
skin "because it was hot." The three accused declared that they saw Boy Pineda hand
P100.00 to Maggie and they heard him promise her that he would pay the balance of
P900.00 later. Whereupon, the show which lasted about 10 minutes began with the
naked girl walking back and forth the room about 4 to 5 times. This accomplished, all of
them dressed up once more and the three accused (Jaime Jose, Eduardo Aquino and
Rogelio Cañal) left the room to wait in the car for Boy Pineda and Maggie de la Riva who
were apparently still discussing the mode of payment of the balance. Three minutes
later Maggie de la Riva and Boy Pineda joined them. Now, the question of how and
where to drop Maggie came up and it is testified to by the accused that it was Maggie's
idea that they should drop her near the ABS Studio so that it would appear as if she had
just come from her work.

Jaime Jose was picked by the police on the morning of June 29 along Buendia Avenue.
Aquino testifies how, on June 29 Pineda went to him with a problem. He did not have
the P900.00 with which to pay Maggie the balance of her "show" and he was afraid that
if he did not pay, Maggie would have her goons after him. He wanted Aquino to go with
him to Lipa City where he had relatives and where he could help raise the money.
Aquino readily obliged, and to make the company complete they invited Cañal to join
them. They used another car of Jaime Jose, different from the one they had used the
 day before. At Lipa, Aquino detached himself from his compassions and proceeded
alone to the barrio allegedly to visit his relatives. In the meantime his two companions
had remained in the City and had, according to Canal, gone to live in a house very close
to the municipal hall building. They later moved to another house where the PC and
Quezon City police posse found and arrested them. Aquino was the last to be
apprehended, when having read in the newspapers that he was wanted, he surrendered
on July 5 to Mrs. Aurelia Leviste, wife of the governor of Batangas.

The striptease-act-for-a-fee story on which the defense theory is anchored, defies one's credulity and
reason, and had utterly to counteract the evidence for the prosecution, particularly the complainant's
testimony and Dr. Brion's medical report and testimony. We quote with approval the able dissertion of
the trial judge on this point:

As main defense in the charge of rape, the three accused advance the proposition that
nothing happened in Swanky Hotel except a strip-tease exhibition which the complaint
agreed to do for them for fee of P1,000.00, P100.00 down and the balance to be paid
"later." The flaw in this connection lies in its utter inverisimilitude. The Court cannot
believe that any woman exists, even one habitual engaged in this kind of entertainment
(which Maggie de la Riva has not been proven to be) who would consent (and as easily
and promptly as defense claims) to do a performance, not even for all money in the
worlds after the rough handling she experienced from these wolves in men's clothing
who now hungered for a show. There is no fury to match a woman stirred to
indignation. A woman's pride is far stronger than her yen for money, and her revenge
much more keen. The Court cannot believe that after the rudeness and meanness of
these men to her, Maggie would in so short an interval of time forget her indignation
and so readily consent to satisfy their immoral curiosity about her. The woman in her
would urge her to turn the men's hankering as a weapon of revenge by denying them
their pleasure.

Besides, the manner of payment offered for the performance is again something beyond
even the wildest expectations. Assuming that the woman whom the accused had
abducted was in this kind of trade assuming that the price offered was to her
satisfaction, whom woman would be willing to perform first and be paid later? It is
simply preposterous to believe that Maggie de la Riva should have consent to do a
striptease act for a measly down-payment of P100.00 and the balance to be paid God
knows when. Since when are exposition of the flesh paid on the installment basis? By
the very precautious nature of their pitiful calling, women who sell their attractions are
usually very shrewed and it is to be expected that they could demand full payment
before curtain call. How was Maggie to collect later when she did not even know who
these man were, where they lived, whether they could be trusted with a promise to pay
later (!) whether she could ever find them again? If there is anything that had struck the
Court about the complaint, it is her courage, her intelligence and her alertness. Only a
stupid woman, and a most stupid one that, could have been persuaded to do what the
defense want this Court to believe Maggie de la Riva consented to do.

Finally, it is odd that not one of these men should have mentioned this circumstances
during their interview with anyone, either the press, their police interrogator, the
person who negotiated their surrender (as in the case of Aquino) or even their counsel.
 One cannot escape the very strong suspicion that this story is a last ditch, desperate
attempt to save the day for the accused. It truly underscores the hopelessness of their
stand and projects all the more clearly their guilt.

Then there is the incident of the men's stripping themselves. Why was there need for
this? The Court realizes that in its desperate need of an explanation for Maggie's
positive identification of Cañal as the man with the tattoo mark on his right buttock, the
defense concocted the sickeningly incident story that the four men removed their
underclothing in the presence of a woman simply "because it was hot." What kind of
men were these who were so devoid of any sense of decency that they thought nothing
of adding insult to injury by not only inducing a woman a strip before them, but for
forcing her to perform before a naked audience? And then they have gall to argue that
"nothing" happened. For males of cold and phlegmatic blood and disposition it could be
credible, but not for men of torrid regions like ours where quick passions and hot
tempers are the rule rather than the exception!

All of these consideration set aside, notwithstanding, it is quite obvious that the version of the defense
has not been able to explain away a very vital piece of evidence of prosecution which, if unexplained,
cannot but reduce any defense unavailing. The result of the physical (external and internal) examination
conducted on the person of Maggie de la Riva in the afternoon of June 29, the pertinent findings of
which quoted earlier in this decision, establish beyond doubt that at the time that Maggie de la Riva was
examined she bore on her body traces of physical and sexual assault.

The only attempt to an explanation made by the defense is either one of the following:
(1) the insinuation that when Maggie de la Riva and Boy Pineda were left behind in the
hotel room the bruises and the sexual attack could have taken place then. But then, the
defense itself says that these two persons rejoined the three after three or
four minutes! It is physically impossible, in such a short time, for Boy Pineda to have
attacked the girl and inflicted on her all of these injuries; (2) it was suggested by the
defense that Maggie de la Riva could have inflicted all of those injuries upon herself just
to make out a case against the accused. The examining physician rules out this
preposterous proposition, verily it does not take much stretch of the imagination to see
how utterly impossible this would be, and for what purpose? Was P900.00 which she
had failed to collect worth that much self-torture? And what about all the shame,
embarrassment and publicity she would (as she eventually did) expose herself to? If she
really had not been raped would she have gone thru all of these tribulation?

A woman does not easily trump up rape charges for she has much more to lose in the
notoriety the case will reap her, her honor and that of her family, than in the redress
she demands (Canastre 82-480; Medina, C.A. 1943 O.G. 151; Medina y Puno, CA O.G.
338; CA 55 O.G. 7666; Galamito, L-6302, August 25, 1954); (3) it could also be argued
that the contusions and bruises could have been inflicted on Maggie during her struggle
with Pineda when the latter pulled and pushed her into the red convertible car. The
telltale injuries, however, discount this possibility, for the location in which many of the
bruises and traumas were located (particularly on the inner portion of her thighs) could
not have been cause by any struggle save by those of a woman trying to resists the
brutal and bestial attack on her honor.
 In their Memorandum the accused contend that Maggie's sole and uncorroborated
testimony should not be rated any credence at all as against the concerted declaration
of the the accused. In the first place, it is not correct to say that Maggie's declaration
was uncorroborated — she has for corroboration nothing less than the written extra-
judicial statements of Jose and Canal. But even assuming that Maggie stood alone in her
statements, the cases cited by the accused in their Memorandum notwithstanding
which the Court does not consider in point anyway, jurisprudence has confirmed the
ruling that numbers is the least vital element in gauging the weight of evidence. What is
more important is which of the declarations is the more credible, the more logical, the
more reasonable, the more prone to be biased or polluted. (Ricarte 44 OG 2234; Damian
CA-GR No. 25523, April 24, 1959). Besides, it should be borne in maid that in the most
detestable crime of rape in which a man is at his worst the testimony of the offended
party most often is the only one available to prove directly its commission and that
corroboration by other eyewitnesses would in certain cases place a serious doubt as to
the probability of its commission, so trial courts of justice are most often placed in a
position of having to accept such uncorroborated testimony if the same is in regards
conclusive, logical and probable (Landicho, VIII ACR 530).

We shall now consider the points raised by the appellants in their briefs.

1. Appellants Jose, Aquino and Cañal deny having had anything to do with the abduction of Miss De la
Riva. They point to Pineda (who entered a plea of guilty) as the sole author thereof, but they generously
contend that even as to him the act was purged at any taint of criminality by the complainant's
subsequent consent to perform a striptease show for a fee, a circumstance which, it is claimed, negated
the existence of the element of lewd design. This line of defense has evidently leg no to stand on. The
evidence is clear and overwhelming that all the appellants participated in the forcible abduction. Miss
De la Riva declared on the witness stand, as well as in her sworn statements, that they helped one
another in dragging her into the car against her will; that she did not know them personally; that while
inside the car, Jose and Aquino, between whom she was seated, toyed with her body, the former forcing
his lips on hers, and the latter touching her thighs and raising her skirt; that meaningful and knowing
glances were in the meanwhile being exchanged among the four; and that all of them later took turns in
ravishing her at the Swanky Hotel. This testimony, whose evidentiary weight has not in the least been
overthrown by the defense, more than suffices to establish the crimes charged in the amended
complaint. In the light thereof, appellants' protestation that they were not motivated by lewd designs
must be rejected as absolutely without factual basis.

2. The commission of rape by each of the appellants has, as held by the court below, likewise been
clearly established. Jose, Aquino and Canal contend that the absence of semen in the complainant's
vagina disproves the fact of rape. The contention is untenable. Dr. Brion of the NBI, who testified as an
expert, declared that semen is not usually found in the vagina after three days from the last intercourse,
especially if the subject has douched herself within that period. In the present case, the examination
was conducted on the fourth day after the incident, and the complainant had douched herself to avoid
infection and pregnancy. Furthermore, the absence of spermatozoa does not disprove the
consummation of rape, the important consideration being, not the emission of semen, but penetration
(People vs Hernandez, 49 Phil., 980). Aquino's suggestion that the abrasions on the cervix were caused
by the tough tip of a noozle deliberately used by the complainant to strengthen her alleged fabricated
tale of rape, is absurd, if not cruel. It is difficult to imagine that any sane woman, who is single and
earning as much Miss Dela Riva did, would inflict injuries on her genital organ by puncturing the same
with a sharply-pointed instrument in order to strike back at four strangers who allegedly would not pay
her the sum of P900.00 due her for a striptease act. Besides, Dr. Brion testified that the insertion of such
an instrument in the genital organ would not result in the kind of injuries he found in the mucosa of the
cervix.

3. Other evidence and considerations exist which indubitably establish the commission of successive
rapes by the four appellants. Upon Miss De la Riva's arrival at her house in the morning of June 26, 1967,
she immediately told her mother, " Mommy Mommy, I have been raped. All four of them raped me."
This utterance, which is part of the res gestae, commands strong probative value, considering that it was
made by the complainant to her mother who, in cases of this nature was the most logical person in
whom a daughter would confide the truth. Aquino and Canal would make capital of the fact that Miss
De la Riva stated to the reporters on the morning of June 26, that she was not abused. Her statement to
the press is understandable. At that time the complainant, who had not yet consulted her family on a
matter which concerned her reputation as well as that of her family, and her career, was not then in a
position to reveal publicly what had happened to her. This is one reason why the complainant did not
immediately inform the authorities of the tragedy that befell her. Another reason is that she was
threatened with disfiguration. And there were, of course, the traumas found by Dr. Brion on different
parts of the complainant's body. Could they, too, have been self-inflicted? Or, as suggested, could they
possibly have been inflicted by appellant Pineda alone, when the story given by the other three is that
Pineda and the complainant were left in the hotel room for only three or four minutes, and that they
came out to join them in what they would picture to be a cordial atmosphere, the complainant even
allegedly suggesting that she be dropped on a spot where people would reasonably presume her to
have come from a studio? Equally important is the complainant's public disclosure of her tragedy, which
led to the examination of her private parts and lay her open to risks of future public ridicule and
diminution of popularity and earnings as a movie actress.

4. Jose and Canal seek the exclusion of their extrajudicial statements from the mass of evidence on the
grounds that they were secured from them by force and intimidation, and that the incriminating details
therein were supplied by the police investigators. We are not convinced that the statements were
involuntarily given, or that the details recited therein were concocted by the authorities. The statements
were given in the presence of several people and subscribed and sworn to before the City Fiscal of
Quezon City, to whom neither of the aforesaid appellants intimated the use of inordinate methods by
the police. They are replete with details which could hardly be known to the police; and although it is
suggested that the authorities could have secured such details from their various informers, no evidence
at all was presented to establish the truth of such allegation. While in their statements Jose and Canal
admitted having waited — together with the two other appellants — for Miss De la Riva at the ABS
Studio, each of them attempted in the same statements to exculpate himself: appellant Jose stated that
only Pineda and Aquino criminally abused the complainant; while appellant Canal would make it appear
that the complainant willingly allowed him to have sexual intercourse with her. Had the statements
been prepared by the authorities, they would hardly have contained matters which were apparently
designed to exculpate the affiants. It is significant, too, that the said two appellants did not see it fit to
inform any of their friends or relatives of the alleged use of force and intimidation by the police. Dr.
Mariano Nario of the Quezon City Police Department, who examined appellant Canal after the latter
made his statement, found no trace of injury on any part of the said appellant's body in spite of the
claims that he was boxed on the stomach and that one of his arms was burned with a cigarette lighter.
In the circumstances, and considering, further, that the police officers who took down their statements
categorically denied on the witness stand that the two appellants were tortured, or that any detail in the
statements was supplied by them or by anyone other than the affiants themselves, We see no reason to
depart from the trial court's well-considered conclusion that the statements were voluntarily given.
However, even disregarding the in-custody statements of Jose and Canal, We find that the mass of
evidence for the prosecution on record will suffice to secure the conviction of the two.

The admissibility of his extrajudicial statements is likewise being questioned by Jose on the other ground
that he was not assisted by counsel during the custodial interrogations. He cites the decisions of the
Supreme Court of the United States in Messiah vs. U.S. (377 U.S. 201), Escobedo vs. Illinois (378 U.S.
478) and Miranda vs. Arizona (384 U.S. 436).

The provision of the Constitution of the Philippines in point is Article III (Bill of Rights), Section 1, par. 17
of which provides: "In all criminal prosecutions the accused shall ... enjoy the right to be heard by
himself and counsel ..." While the said provision is identical to that in the Constitution of the United
States, in this jurisdiction the term criminal prosecutions was interpreted by this Court, in U.S. vs.
Beecham, 23 Phil., 258 (1912), in connection with a similar provision in the Philippine Bill of Rights
(Section 5 of Act of Congress of July 1, 1902) to mean proceedings before the trial court from
arraignment to rendition of the judgment. Implementing the said constitutional provision, We have
provided in Section 1, Rule 115 of the Rules of Court that "In all criminal prosecutions the defendant
shall be entitled ... (b) to be present and defend in person and by attorney at every stage of the
proceedings, that is, from the arraignment to the promulgation of the judgment." The only instances
where an accused is entitled to counsel before arraignment, if he so requests, are during the second
stage of the preliminary investigation (Rule 112, Section 11) and after the arrest (Rule 113, Section 18).
The rule in the United States need not be unquestioningly adhered to in this jurisdiction, not only
because it has no binding effect here, but also because in interpreting a provision of the Constitution the
meaning attached thereto at the time of the adoption thereof should be considered. And even there the
said rule is not yet quite settled, as can be deduced from the absence of unanimity in the voting by the
members of the United States Supreme Court in all the three above-cited cases.

5. Appellant Pineda claims that insofar as he is concerned there was a mistrial resulting in gross
miscarriage of justice. He contends that because the charge against him and his co-appellants is a capital
offense and the amended complaint cited aggravating circumstances, which, if proved, would raise the
penalty to death, it was the duty of the court to insist on his presence during all stages of the trial. The
contention is untenable. While a plea of guilty is mitigating, at the same time it constitutes an admission
of all the material facts alleged in the information, including the aggravating circumstances, and it
matters not that the offense is capital, for the admission (plea of guilty) covers both the crime and its
attendant circumstances qualifying and/or aggravating the crime (People vs. Boyles, et al., L-15308, May
29, 1964, citing People vs. Ama, L-14783, April 29, 1961, and People vs. Parete, L-15515, April 29, 1961).
Because of the aforesaid legal effect of Pineda's plea of guilty, it was not incumbent upon the trial court
to receive his evidence, much less to require his presence in court. It would be different had appellant
Pineda requested the court to allow him to prove mitigating circumstances, for then it would be the
better part of discretion on the part of the trial court to grant his request. (Cf. People vs. Arconado, L-
16175, February 28, 1962.) The case of U.S. vs. Agcaoili (31 Phil., 91), cited by Pineda, is not in point, for
there this Court ordered a new trial because it found for a fact that the accused, who had pleaded guilty,
"did not intend to admit that he committed the offense with the aggravating circumstances" mentioned
in the information. We are not in a position to make a similar finding here. The transcript of the
proceedings during the arraignment shows that Pineda's counsel, Atty. Lota prefaced his client's plea of
guilty with the statement that .
 I have advised him (Pineda) about the technicalities in plain simple language of the
contents of aggravating circumstances and apprised him of the penalty he would get,
and we have given said accused time to think. After a while I consulted him — for three
times — and his decision was still the same.

Three days after the arraignment, the same counsel stated in court that he had always been averse to
Pineda's idea of pleading guilty, because "I know the circumstances called for the imposition of the
maximum penalty considering the aggravating circumstances," but that he acceded to his client's wish
only after the fiscal had stated that he would recommend to the court the imposition of life
imprisonment on his client. To be sure, any such recommendation does not bind the Court. The
situation here, therefore, is far different from that obtaining in U.S. vs. Agcaoili, supra.

6. Two of the appellants — Jose and Cañal — bewail the enormous publicity that attended the case from
the start of investigation to the trial. In spite of the said publicity, however, it appears that the court a
quo was able to give the appellants a fair hearing. For one thing, three of the seven (7) original accused
were acquitted. For another thing, Jose himself admits in his brief that the Trial Judge "had not been
influenced by adverse and unfair comments of the press, unmindful of the rights of the accused to a
presumption of innocence and to fair trial."

We are convinced that the herein four appellants have conspired together to commit the crimes
imputed to them in the amended information quoted at the beginning of this
decision.lâwphî1.ñèt There is no doubt at all that the forcible abduction of the complainant from in front
of her house in Quezon City, was a necessary if not indispensable means which enabled them to commit
the various and the successive acts of rape upon her person. It bears noting, however, that even while
the first act of rape was being performed, the crime of forcible abduction had already been
consummated, so that each of the three succeeding (crimes of the same nature can not legally be
considered as still connected with the abduction — in other words, they should be detached from, and
considered independently of, that of forcible abduction and, therefore, the former can no longer be
complexed with the latter.

What kind of rape was committed? Undoubtedly, it is that which is punishable by the penalty
of reclusion perpetua to death, under paragraph 3, Article 335, as amended by Republic Act No. 4111
which took effect on June 20, 1964, and which provides as follows:

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

1. By using force or intimidation;

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

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

The crime of rape shall be punished by reclusion perpetua.

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

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 likewise death.

When by reason or on the occasion of the rape, a homicide is committed, the penalty
shall be death.

As regards, therefore, the complex crime of forcible abduction with rape, the first of the crimes
committed, the latter is definitely the more serious; hence, pursuant the provision of Art. 48 of the
Revised Penal Code, the penalty prescribed shall be imposed in its maximum period. Consequently, the
appellants should suffer the extreme penalty of death. In this regard, there is hardly any necessity to
consider the attendance of aggravating circumstances, for the same would not alter the nature of the
penalty to be imposed.

Nevertheless, to put matters in their proper perspective and for the purpose of determining the proper
penalty to be imposed in each of the other three crimes of simple rape, it behooves Us to make a
definite finding in this connection to the effect that the commission of said crimes was attended with
the following aggravating circumstances: (a) nighttime, appellants having purposely sought such
circumstance to facilitate the commission of these crimes; (b) abuse of superior strength, the crime
having been committed by the four appellants in conspiracy with one another (Cf. People vs. De
Guzman, et al., 51 Phil., 105, 113); (c) ignominy, since the appellants in ordering the complainant to
exhibit to them her complete nakedness for about ten minutes, before raping her, brought about a
circumstance which tended to make the effects of the crime more humiliating; and (d) use of a motor
vehicle. With respect to appellants Jose, Aquino and Ca_¤_al, none of these aggravating circumstances
has been offset by any mitigating circumstance. Appellant Pineda should, however, be credited with the
mitigating circumstance of voluntary plea of guilty, a factor which does not in the least affect the nature
of the proper penalties to be imposed, for the reason that there would still be three aggravating
circumstances remaining. As a result, appellants should likewise be made to suffer the extreme penalty
of death in each of these three simple crimes of rape. (Art. 63, par. 2, Revised Penal Code.)

In refusing to impose as many death penalties as there are offenses committed, the trial court applied
by analogy Article 70 of the Revised Penal Code, which provides that "the maximum duration of all the
penalties therein imposed upon the appellant shall not be more than threefold the length of time
corresponding to the most severe of the penalties imposed upon the appellant, which should not
exceed forty years." The said court is of the opinion that since a man has only one life to pay for a
wrong, the ends of justice would be served, and society and the victim would be vindicated just as well,
if only one death penalty were imposed on each of the appellants.

We cannot agree with the trial court. Article 70 of the Revised Penal Code can only be taken into
account in connection with the service of the sentence imposed, not in the imposition of the penalty
(People vs. Escares, 55 Off. Gaz., 623). In holding that only one death penalty should be imposed
because man has only one life, the trial court ignored the principle enunciated in the very case it cited,
namely, U.S. vs. Balaba, 37 Phil., 260, where this Court, in affirming the judgment of the trial court,
found the accused guilty of two murders and one homicide and imposed upon him two death sentences
for the murders and a prison term for the homicide. In not applying the said principle, the court a
quo said that the case of Balaba is different from the present case, for while in the former case the
accused was found to have committed three distinct offenses, here only one offense is charged, even if
complex. As We have explained earlier herein, four crimes were committed, charged and proved. There
is, therefore, no substantial difference between the two cases insofar as the basic philosophy involved is
concerned, for the fact remains that in the case of Balaba this Court did not hesitate to affirm the two
death sentences imposed on the accused by the trial court. In People vs. Peralta, et al., L-19060, October
29, 1968, in which this Court imposed on each of the six accused three death penalties for three distinct
and separate crimes of murder, We said that "since it is the settled rule that once conspiracy is
established, the act of one conspirator is attributable to all, then each conspirator must be held liable
for each of the felonious acts committed as a result of the conspiracy, regardless of the nature and
severity of the appropriate penalties prescribed by law." In the said case (which was promulgated after
the decision of the court a quo had been handed down) We had occasion to discuss at length the legality
and practicality of imposing multiple death penalties, thus:

The imposition of multiple death penalties is decried by some as a useless formality, an

exercise in futility. It is contended, undeniably enough, that a death convict, like all
mortals, has only one life to forfeit. And because of this physiological and biological
attribute of man, it is reasoned that the imposition of multiple death penalties is
impractical and futile because after the service of one capital penalty, the execution of
the rest of the death penalties will naturally be rendered impossible. The foregoing
opposition to the multiple imposition of death penalties suffers from four basic flaws:
(1) it fails to consider the legality of imposing multiple capital penalties; (2) it fails to
distinguish between imposition of penalty and service of sentence; (3) it ignores the fact
that multiple death sentences could be served simultaneously; and (4) it overlooks the
practical merits of imposing multiple death penalties.

The imposition of a penalty and the service of a sentence are two distinct, though
related, concepts. The imposition of the proper penalty or penalties is determined by
the nature, gravity and number of offenses charged and proved, whereas service of
sentence is determined by the severity and character of the penalty or penalties
imposed. In the imposition of the proper penalty or penalties, the court does not
concern itself with the possibility or practicality of the service of the sentence, since
actual service is a contingency subject to varied factors like the successful escape of the
convict, grant of executive clemency or natural death of the prisoner. All that go into the
imposition of the proper penalty or penalties, to reiterate, are the nature, gravity and
number of the offenses charged and proved and the corresponding penalties prescribed
by law.

Multiple death penalties are not impossible to serve because they will have to be
executed simultaneously. A cursory reading of article 70 will show that there are only
two moves of serving two or more (multiple) penalties: simultaneously or successively.
The first rule is that two or more penalties shall be served simultaneously if the nature
of the penalties will so permit. In the case of multiple capital penalties, the nature of
said penal sanctions does not only permit but actually necessitates simultaneous
service.
 The imposition of multiple death penalties, far from being a useless formality, has
practical importance. The sentencing of an accused to several capital penalties is an
indelible badge of his extreme criminal perversity, which may not be accurately
projected by the imposition of only one death sentence irrespective of the number of
capital felonies for which he is liable. Showing thus the reprehensible character of the
convict in its real dimensions, the possibility of a grant of executive clemency is
justifiably reduced in no small measure. Hence, the imposition of multiple death
penalties could effectively serve as deterrent to an improvident grant of pardon or
commutation. Faced with the utter delinquency of such a convict, the proper
penitentiary authorities would exercise judicious restraint in recommending clemency
or leniency in his behalf.

Granting, however, that the Chief Executive, in the exercise of his constitutional power
to pardon (one of the presidential prerogatives which is almost absolute) deems it
proper to commute the multiple death penalties to multiple life imprisonments, then
the practical effect is that the convict has to serve the maximum forty (40) years of
multiple life sentences. If only one death penalty is imposed, and then is commuted to
life imprisonment, the convict will have to serve a maximum of only thirty years
corresponding to a single life sentence.

We are, therefore, of the opinion that in view of the existence of conspiracy among them and of our
finding as regards the nature and number of the crimes committed, as well as of the presence of
aggravating circumstances, four death penalties should be imposed in the premises.

————

Before Us is a petition for intervention filed by Filipinas Investment & Finance Corporation asking for
reversal of that portion of the judgment of the court below ordering the confiscation of the car used by
the appellants in abducting the complainant. The aforesaid car is a 1965 two-door Pontiac sedan with
Motor No. WT-222410, Serial No. 2376752110777, Plate No. H-33284, File No. 11584171, alleged by the
intervenor to be in the custody of Major Ernesto San Diego of the Quezon City Police Department. The
car is registered in the name of Mrs. Dolores Gomez.

On April 4, 1967, Mrs. Dolores Gomez, mother of an appellant Jaime G. Jose, bought the car from the
Malayan Motors Corporation and simultaneously executed a chattel mortgage thereon to secure
payment of the purchase price of P13,200, which was stipulated to be payable in 24 monthly
installments of P550 beginning May 4, 1967 up to April 4, 1969. The mortgage was duly registered with
the Land Transportation Commission and inscribed in the Chattel Mortgage Registry. The mortgage lien
was annotated on the motor registration certificate. On April 17, 1967, for value received and with
notice to Mrs. Gomez, the Malayan Motors Corporation assigned its credit against Mrs. Gomez, as well
as the chattel mortgage, to the intervenor. The assignment was duly registered with the Land
Transportation Commission and annotated on the registration certificate.

Mrs. Gomez failed to pay any of the installments due, in view of which the intervenor filed on July 5,
1967, an action for replevin against her (Civil Case No. 69993, Court of First Instance of Manila) as a
preliminary step to foreclosure of the chattel mortgage. On July 7, 1967, the court issued an order for
the seizure of the car. The sheriff, however, could not enforce the writ of replevin because the car was
not in Mrs. Gomez' possession, the same having been used by her son, appellant Jaime G. Jose, together
with the other appellants in this case, in the abduction of Miss De la Riva, as a result of which the car
was seized by the Quezon City police and placed in the custody of Major San Diego, who refused to
surrender it to the sheriff on the ground that it would be used as evidence in the trial of the criminal
case.

During the pendency of that criminal case in the court below, or on July 26, 1967, the intervenor filed
with the said court a petition for intervention. The said petition was not, however, acted upon. On
October 2, 1967, the trial court rendered its judgment in the present case ordering the car's confiscation
as an instrument of the crime. Although not notified of the said decision, the intervenor filed, on
October 17, 1967, a motion for reconsideration of the order of confiscation; but the same was denied on
October 31, 1967, on the ground that the trial court had lost jurisdiction over the case in view of the
automatic elevation thereof to this Court. The intervenor then filed a petition for relief from judgement,
but the same was also denied.

On February 5, 1968, judgement was rendered in the replevin case ordering Mrs. Gomez to deliver the
car to the intervenor so that the chattel mortgage thereon could be foreclosed, or, in the alternative, to
pay the intervenor the sum of P13,200 with interest thereon at 12% per annum from July 5, 1968, the
premium bond, attorney's fees, and the costs of suit. The judgment became final and executory.
Attempts to execute the judgment against the properties of Mrs. Gomez were unavailing; the writ of
execution was returned by the sheriff unsatisfied. On July 26, 1968, the present petition for intervention
was filed with this Court, which allowed the intervenor to file a brief. In his brief the Solicitor General
contends, among others, that the court a quo having found that appellant Jose is the owner of the car,
the order of confiscation is correct.

Considering that the car in question is registered in the name of Mrs. Dolores Gomez, who, in the
absence of strong evidence to the contrary, must be considered as the lawful owner thereof; that the
only basis of the court a quo in concluding that the said car belongs to appellant Jose were the latter's
statements during the trial of the criminal case to that effect; that the said statement were not,
however, intended to be, nor could constitute, a claim of ownership over the car adverse to his mother,
but were made simply in answer to questions propounded in court for the sole purpose of establishing
the identity of the defendant who furnished the car used by the appellants in the commission of the
crime; that the chattel mortgage on the car and its assignment in the favor of the intervenor were made
several months before the date of commission of the crimes charged, which circumstance forecloses the
possibility of collusion to prevent the State from confiscating the car; that the final judgement in the
replevin case can only be executed by delivering the possession of the car to the intervenor for
foreclosure of the chattel mortgage; and the Article 45 of the Revised Penal Code bars the confiscation
and forfeiture of an instrument or tool used in the commission of the crime if such "be the property of a
third person not liable for the offense," it is the sense of this Court that the order of the court below for
confiscation of the car in question should be set aside and that the said car should be ordered delivered
to the intervenor for foreclosure as decreed in the judgment of the Court of First Instance of Manila in
the replevin case, Civil Case No. 69993.

————

Before the actual promulgation of this decision, this Court received a formal manifestation on the part
of the Solicitor General to the effect that Rogelio Cañal, one of the herein appellants, died in prison on
December 28, 1970. As a result of this development, this case is hereby dismissed as to him alone, and
only insofar as his criminal liability is concerned, with one-fourth (1/4) of the costs declared de oficio.
WHEREFORE, the judgment under review is hereby modified as follows: appellants Jaime G. Jose, Basilio
Pineda, Jr., and Edgardo P. Aquino are pronounced guilty of the complex crime of forcible abduction
with rape, and each and every one of them is likewise convicted of three (3) other crimes of rape. As a
consequence thereof, each of them is hereby sentenced to four (4) death penalties; all of them shall,
jointly and severally, indemnify the complainant of the sum of P10,000.00 in each of the four crimes, or
a total of 40,000.00; and each shall pay one-fourth (1/4) of the costs.

Insofar as the car used in the commission of the crime is concerned, the order of the court a quo for its
confiscation is hereby set aside; and whoever is in custody thereof is hereby ordered to deliver its
possession to intervenor Filipinas Investment & Finance Corporation in accordance with the judgment of
the Court of First Instance of Manila in Civil Case No. 69993 thereof.

31. People v. Butler, G.R. No. L-50276, 27 January 1983

G.R. No. L-50276 January 27, 1983

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
MICHAEL J. BUTLER, accused-appellant.

The Solicitor General for plaintiff-appellee.

Manuel B. Tomacruz for accused-appellant.

GUERRERO, J.:

This is an automatic review of the Judgment of the Court of First Instance of Zambales, Third Judicial
District, Branch I, finding the accused Michael J. Butler in Criminal Case No. 2465 guilty beyond
reasonable doubt of the crime of murder qualified by abuse of superior strength, with the attendance of
aggravating circumstances of treachery and scoffing at the corpse of the deceased, without any
mitigating circumstance and sentencing the accused with the penalty of death, and ordering him to
indemnify the heirs of the victim with the sum of P24,000.00.

In an Information dated October 16, 1975, accused-appellant Michael J. Butler was charged with the
crime of murder committed as follows:

That on or about the 8th day of August, 1975, in the City of Olongapo, Philippines. and
within the jurisdiction of this Honorable Court the above-named accused, with intent to
kill and taking advantage o his superior strength, did then and there wilfully, unlawfully
and feloniosly assault, attack and hit with a statue of Jesus Christ oue Enriquita Alipo
alias 'Gina Barrios' and after said Enriquita Alipo fell flat on her fare the above-named,
accused again taking advantage of superior strength then and there apply force and
pressure on the back of the head of said Enriquita Alipo thereby forcing and sinking the
latter's mouth and nose against the mattress of the bed, and as a result thereof, the said
Enriquita Alipo was not able to breathe and was choked, thus directly causing the death
of said Enriquita Alipo alias 'Gina Barrios'.
Upon arraignment, accused-appellant pleaded not guilty, hence the trial was conducted and at the
termination of which, judgment of conviction was rendered.

It appears from the records of the case that on August 7, 1975, at about 10:30 p.m., accused-appellant
Michael Butler and the victim, Enriquita Alipo alias Gina Barrios were together at Colonial Restaurant in
Olongapo City. They were seen together by Lilia Paz, and entertainer and friend of the victim, who
claimed to have had a small conversation with the accused, and by one Rosemarie Juarez, also a friend
of the victim. At about 1:00 of the same evening, the accused and the victim left the said
restaurant, 1 after the latter invited Rosemarie Juarez to come to her house that night.

Emelita Pasco, the housemaid of the victim, testified that, at about 11:30 p.m. or so of August 7, 1975,
her mistress (Gina Barrios) came home with the accused-appellant. As soon as she opened the door for
them, the victim and accused-appellant immediately entered the victim's bedroom. Shortly thereafter,
the victim left her bedroom holding an Id card and a piece of paper, and on the piece of paper, the
victim purportedly wrote the following words: MICHAEL J. BUTLER, 44252-8519 USS HANCOCK. Said
words were copied from the ID Card.

Pasco testified that the victim said she was copying the name of the accused because she knew he
would not be going back to her. Then she rushed back to her bedroom after instructing Pasco to wake
her up the following morning. 2 Before retiring, however, the victim's friend, Rosemarie Juarez, came to
the former's house and after having a small conversation, also left.

The following day, August 8, 1975, at about 4:00 a.m., Pasco rose to wake her mistress as instructed. She
knocked at the door. She found that the victim was lying on her bed, facing downward, naked up to the
waist, with legs spread apart, with a broken figurine beside her head. Immediately, Pasco called the
landlord and they called the authorities. 3

Patrolman Rudyard de los Reyes of the Olongapo Police Department arrived together with Fiscal
Llamado and Corporal Sobrepeña at about 6.00 a.m. of August 8, 1975. Pasco informed Patrolman de los
Reyes that the accused Butler slept with the victim the previous night, and the former gave the latter
the piece of paper where the name of the accused was written.

Sergeant Galindo of the Olongapo Police Department handed over to Jesus Bensales, a fingerprint
technician of the Police Department, a piece of cellophane together with the broken figurine for latent
print examination. The latent print examination report (Exh. E4) showed that there were three (3)
fragmentary latent prints that were lifted from the cellophane wrapping of the figurine. But only one
print was clear and distinguishable. This particular print was found Identical with the accused's left
middle fingerprint on thirteen (13) points. Bensales later testified that the latent print developed from
the piece of cellophane belonged to the accused Butler. 4

On the same day, officers of the Olongapo Police Department informed the Naval Investigation Services
Resident Agency (NISRA) in Subic Bay that an American Negro by the name of Michael J. Butler on board
the USS Hancock- was a suspect in a murder case. Jerry Witt and Timothy Watrous both special agents
of NISRA went on board USS Hancock. They informed the legal officer that one of the crew members
was a suspect in a murder case. After being located, the accused was brought to the legal office of the
ship. Witt Identified himself, showed his credentials and informed the accused that he was a suspect in a
murder case. Then Witt informed the accused of his constitutional rights to remain silent and right to
counsel. Then the accused was searched, handcuffed, and was brought to NISRA office.

Arriving at NISRA office at about 11:00 a.m. of the. same day, the investigation and interrogation were
started . by James Cox NISRA investigator, at about 2:55 p.m. According to Cox's testimony, before he
started the interrogation, he identified himself, informed the accused of his constitutional rights. At the
cross-examination, he stated it took him about 1-1/2 hours to finish the investigation. The first 45
minutes was accordingly devoted to interrogation, and for the next 45 minutes, he called James Beaver
who reduced the oral investigation into writing.

James Cox also testified that after apprising the accused of his constitutional rights to remain silent and
right to counsel he asked the accused if he needed a lawyer and if he understood his rights
(constitutional rights and rights under the military code of justice). The accused accordingly said he
understood his rights and that he did not need a lawyer.

The result of that investigation was thus a document taken from the accused consisting of three (3)
pages, signed and initialed on all pages by him and containing a statement that he was aware of his
constitutional rights, and a narration of the facts that happened on August 7, 1975.

For purposes of clarity the entire text of the waiver of constitutional rights and the extra-judicial
confession containing the narration of facts by the accused appellant (Exhibit H) are reproduced as
follows:

Place- NISRA Subic Bay

I, SA MICHAEL JEROME BUTLER USN 142528519 have been advised by Special Agent(s)
JN COX and JJ CREATURO that I am suspected of MURDER OF GINA BARRIOS ALSO
KNOWN AS ENRIQUETA ALIPO FILIPINA NATIONAL AND THE USE DANGEROUS DRUGS. I
have also been advised:

MJB (1) That I have the right to remain silent and make no statement at all;

MJB (2) That any statement I do make may be used as against me in a trial by Court-
Martial;

MJB (3) That I have the right to consult with a lawyer prior to any questioning. This
lawyer may be a civilian lawyer retained by me at my own expense; or, if I wish,
Navy/Marine Corps authority will appoint a Military lawyer to act as my counsel without
cost to me;

MJB (4) That I have the right to have such retained civilian lawyer or appointed military
lawyer present during this interview;

MJB (5) That I have the right to terminate this interview at any time for any reason.

MJB I understand my rights as related to me and as set forth above. With that
understanding, I have decided that I do not desire to remain silent, that I do not desire
to consult with either a civilian or military lawyer at this time and I do not desire to have
such a lawyer present during this interview. I make this decision freely and voluntarily
and it is made with no threats having been made or promises extended to me.

(
S
g
d
)
.
S
i
g
n
a
t
u
r
e
:
M
I
C
H
A
E
L
J
.
B
U
T
L
E
R
D
a
t
e
a
n
d
T
i
m
e
:
1
 5
0
2
8
A
u
g
.
1
9
7
5
1
5
4
6
h
o
u
r
s

Witnessed JN COX SA NIS

JJ CREATURO S/A NIS

Date and Time: 8 August 1975

At this time, I, SA Michael Jerome Butler, 14258519, desire to make the following
voluntary statement. This statement is made with an understanding of my rights as
previously related to me and as set forth above, and it is made with no threats having
been made or promises extended to me. This statement is being typed by YNI James R.
BEAVER, USN as I discussed its contents with Mr. COX and Mr. CREATURO I was born 09-
04-57 at Orlando, Florida. I am a black, male American 6 foot tall and I weigh 155
pounds. I enlisted in the US Navy on 3 February 1975 for four years. Since 10 June 1975,
I have been assigned to the USS HANCOCK (CV-10).

During the evening hours of 7 August 1975, while on liberty, I went to Bob's Tailor Shop
in Olongapo City, R.P. While I was there I talked to a girl and drank some gin and beer
and got drunk. The girl's mm was Victoria PENA There was another girl in the tailor shop
and she was making eyes at me. I walked outside the tailor shop and she followed me
and we spoke to each other. This was sometime after 9 PM She asked me if I wanted to
go home with her and I said yes.

We caught a tricycle and went to her house. She paid the man one peso. When we got
to the house another girl let us in. After we got to the house the girl that I was with
showed me her health card, but I couldn't read the name on it. I went upstairs and the
girl that I was with showed me the bedroom which was just to the left at the top of the
stairs I went in and sat down on the bed. She came in and asked me for some money.
She told me she was going to screw me. (By this I understood we were going to engage
in sexual intercourse). I gave her approximately 27 pesos. She left the room and said
that she was going to get some cigarettes and would be right back. She came back later
and came into the room, walked out of the room and said something to the girl in the
next room. The two of them came into the bedroom where I was and they were
laughing about something. The other girl then left and the two of us were in the
bedroom alone. Both of us got undressed and I laid down on the bed and went to sleep.
I woke up sometime later and she was in bed with me. At this point I rolled the girl over
and made love to her. (By this I mean I engaged in sexual intercourse with her from the
rear ). My intention was to screw her in the vagina. If I screwed her in the rectum, I
didn't intend to. After we finished, I rolled over and went back to sleep again, Roosters
started crowing and I woke up and it was starting to get daylight. The girl was already
awake. I thought that it was time for me to go back to the ship so I told her that I had to
leave. I couldn't find my watch and asked her where it was and she said that the girl in
the next room had it. I was sitting on the bed and I reached down to pull up my sock and
I discovered that a five peso note that I had in my sock was missing. I asked her about it
and she said that she had gotten it. We started arguing about my five pesos and she
started saying something to me in the Filipino language and I told her to speak English. I
walked over and looked at her hard and she wanted to know what I was looking at and I
asked her why she took my money. I said 'Ah, fuck it,' and pushed her down onto the
bed. She got off the bed and smacked me and I smacked her back. She started tussling
and acting like she was going to hit me with a karate chop. I thought she was going to do
something dangerous to me so I grabbed her, and we started wrestling on the bed. She
grabbed me by the throat and I picked up a statue of Jesus Christ that was sitting on a
bedside stand and I hit her in the head. She fell flat on her face. I didn't intend to kill the
girl but I was mad and wanted to hurt her. She didn't say anything to me but she was
making some kind of groaning noise. I went in the next room and get my watch, came
back in the bedroom, got dressed and left. I started walking towards the base. I saw the
lights of a vehicle coming so I stepped inside of a building so I wouldn't be caught out
after the curfew. As it turned out it was a Marine in a military truck, I'm not sure if he
was with tile Armed Forces Police or the Shore Patrol. The Marine was white and bald
headed and wore a badge. He gave me a ride to the Armed Forces ]Police Station at the
Main Gate, Subic Bay, I then went from there to my ship. I was dressed in civilian
clothing and I had on a pair of burgandy trousers and a blue and white printed shirt. I
left these items of clothing on the top of my bunk located in the 2nd Division berthing
area.

When I was with the girl last night, I was drunk from drinking alcohol. I did not take any
narcotics or dangerous drugs because I do not use them. I never did know the girl's
name that I was with. She was a Filipino, approximately 4'11", black hair (long). She
wore glasses (tinted). When she and I engaged in sexual intercourse I reached a climax
while my penis was in her. Wen I met her she was wearing a two-piece fish net top and
skirt, they were both purple. This is all I can remember about what she looked like. I
don't know the exact location at which she lived except that it was somewhere in
Olongapo City, R.P. To my knowledge, the girl did not take any drugs while I was with
her.
I have read the above statement, consisting of three pages and it is true and correct to
the best of my knowledge. No threats or promises have been made to induce me to
make this statement.
James Beaver later testified that he typed the statement of the accused, that the accused gave his
statement in answer to the questions of James Cox and that the accused signed all the pages of the
statement, that he was apprised of his constitutional rights to remain silent and to counsel by James Cox
that the accused was aware of his constitutional rights and that he affixed his signature and initials on
the document which contained the warning regarding his rights. 5

In the meantime, Dr. Angeles Roxas, Medico Legal Officer of the Olongapo Police
Department who also came to the scene of the crime on August 8,1975, examined the
corpse of the victim and later issued an autopsy report (Exhibit D) with the following
findings:

NAME: - ENRIQUITA ALEPO y Apolinario

alias Enriquita Barrios

DATE & TIME: - 10:30 A.M., August 8, 1975

PLACE: - Funeraria Fernando Morgue

The body is that of a middle-aged woman Identified as Enriquita Alepo y Apolinario

about 26 years old, native of Bugasong, Antique and resident of 8 Fontaine Extension.
Olongapo City, found sprawling on her face with her legs widely spread far apart, with
no underwear and her house dress folded from below upwards up to her waistline, thus
exposing her private parts. There was starting rigidity of the extremeties and starting
lividity of the face, neck and abdomen which are the dependent portions of the body.
On top of the head are broken pieces of porce wares.

Close examination of the body showed fine, short, curly hairs numbering five in all,
found in the area of the anal region, with amount of blood in the between the anal
folds. There were also fine pieces of porcelain wares on her teeth and gums, upper and
lower, just behind the upper and lower lips. Further examination failed to show any sign
of external physical injuries, except for a slight abrasion, measuring 3 mm. in diameter,
posterior portion, junction of the anal mucous membrane and the skin.

The body was opened in the usual Y-shaped incision of the chest and abdomen to
expose the different, vital internal organs. The head was likewise opened by means of a
saggital incision of the scalp, then deflecting the anterior and posterior portions, and
then making a coronal incision of the skull to expose the brain substance. The following
are the significant findings:
 I. HEAD and NECK Fatted to find any fracture of the skull. Brain apparently normal No
sign of intra-cranial hemorrhage

II. CHEST:

1. Heart: apparently nor except that the right side of the heart is fully
filled with blood.

2. Lungs. Markedly congested but no sign of edema. No obstruction of

the trachea

III. ABDOMEN: all the internal abdominal organs are apparently normal.

NO OTHER SIGNIFICANT FINDING.

Specimens from the anal and vaginal smears were submitted to the OCGHI laboratory
for examinations.

CAUSE OF DEATH: Asphyxia due to suffocation.

(Sgd.)
Angeles S. Roxas, M.M.
Medico-Legal Officer
Olongapo Police Station 21

Dr. Roxas later testified that anal intercourse was had with the victim after her death as indicated by the
partly opened anus and the presence of spermatozoa in it. He testified that the anus would have
automatically and completely closed had the intercourse occurred, while the victim was still alive. He
also categorically testified that the victim died of asphyxia due to suffocation when extreme pressure
was exerted on her head pushing it downward, thereby pressing her nose and mouth against the
mattress.6

After trial, judgment was promulgated on December 3, 1976 finding the accused guilty beyond
reasonable doubt of the offense charged. The dispositive portion of the decision reads as follows:

WHEREFORE, judgment is hereby rendered:

(a) Finding the accused Michael J. Butler guilty beyond reasonable doubt of the crime of
murder by abuse of superior strength and there being proven the aggravating
circumstance of treachery and outraging or scoffing at the corpse of the deceased, not
offset by any mitigating circumstance, the Court hereby sentences him to DEATH;

(b) . Ordering the accused to indemnify the heirs of the deceased Enriquita Alipo alias
"Gina Barrios" the sum of TWENTY FOUR THOUSAND (P24,000.00) PESOS; and

(c) Ordering the accused to pay the litigation expenses and the costs of the proceedings.
 Let a copy of this decision be furnished His Excellency President Ferdinand E. Marcos
and the Honorable Secretary of Justice, Vicente Abad Santos, for their information
petition and guidance.

SO ORDERED.

On December 17, 1976, a motion for new trial was filed by the accused-appellant. Said motion assailed
the decision of the court a quo on the ground that a serious error of law was committed prejudicing his
substantial rights. The accused-appellant alleged in said motion that he was a minor at the time the
offense was allegedly committed, and having invoked his minority, he was entitled to the suspension of
the sentence pursuant to P.D. 603, Art. 192 before its amendment by P.D. 1179 on August 15, 1977.

The motion for new trial was denied on January 25, 1977. A motion for reconsideration was
subsequently filed which was also denied.

A petition for mandamus was thereafter filed with this Honorable Court praying, among other things,
that an order be issued commanding respondent judge to set aside the judgment dated December 3,
1976, to declare the proceedings suspended and to commit the accused-appellant to the custody of the
Department of Social Welfare (now Ministry of Social Services and Development) or any other training
institution licensed by the government or any other responsible person, in accordance with P.D. 603,
Art. 192 before its amendment by P.D. 1179 on August 15,1977.

On December 13, 1978, a minute resolution was issued by this Honorable Court dismissing the petition
for mandamus for lack of merit.

On May 26,1981, accused-appellant filed in the present appeal, a manifestation and motion dated May
19, 1981, praying that the certified certificate of live birth of the accused-appellant be admitted to form
part of the evidence. On June 4, 1981, this Honorable Court resolved to admit the same to form part of
the evidence.

The accused-appellant made six (6) assignments of errors in his brief, and seven (7) supplemental
assignments of errors in his supplemental brief. In essence. however, the issues can be reduced into the
following-

I. Whether or not the trial court erred in giving full credence to the testimony of the
prosecution witnesses;

II. Whether or not the trial court erred in admitting in evidence the alleged extrajudicial
admission of the accused (Exh. H) and appreciating it against him;

III. Whether or not the trial court erred in finding the accused guilty of the crime of
murder qualified by abuse of superior strength, with aggravating circumstances of
treachery and scoffing at the corpse of the victim;

IV. Whether or not the trial court erred in appreciating treachery and abuse of superior
strength simultaneously and separately;
 V. Whether or not the trial court erred in accepting the testimony of Dr. Angeles Roxas,
the Medico-legal Officer, that asphyxiation by suffocation was the cause of death of the
victim.

VI. Whether or not the trial court erred in denying the accused the benefits of Section
192 of P.D. 603 before its amendment by P.D. 1179 on August 15, 1977.

The first issue is whether or not the trial court erred in giving full credence to the testimony of the
prosecution witnesses.

Under the said issue, the accused-appellant contends that the court a quo erred in giving full credence
to the testimony of the prosecution witnesses.

The rule is well-established that the findings and conclusions of the trial court on the credibility of the
witnesses are matters that are left mainly to its discretion because it is the trial court which observed
the demeanor and the manner of testimony of the witness and, therefore, the trial court is in a better
position to assess the same than the appellate court. As a matter of established jurisprudence, the
findings of the trial court on the credibility of a witness are not disturbed on appeal unless there is a
showing that it failed to consider certain facts and circumstances which would change the same. 7

This Court rules that the court a quo did not err in giving credence to the testimony of the prosecution
witnesses. There were three (3) persons who Identified the accused as the person last seen with the
victim on the night in question, namely Emelita Pasco, the maid, Lilia de la Paz, the entertainer-friend of
the victim, and Rosemarie Juarez, another friend of the victim.

The finger print examination showed that one of the three fragmentary latent prints lifted from the
cellophane wrapping of the figurine used in striking the victim was Identical with the accused's left
middle finger print on thirteen (13) points.

As to the contention that the findings of the medico-legal officer were inadequate and inconclusive, We
rule that the accused-appellant failed to present clear and positive evidence to overcome the scientific
and specific finding and conclusion of said officer. The details of such findings and conclusion will be
discussed herein later.

The second issue is whether or not the trial court erred in admitting in evidence the alleged extra-
judicial admission of the accused (Exh. H) and appreciating it against him.

Counsel for the accused-appellant questions the regularity of how the arrest of the accused was made
and the regularity of how wanting of the accused-appellant's constitutional rights were given. Counsel
contents that Sec. 20, Art. IV (Bill of Rights) of the New Constitution which embodies the constitutional
rights of the person under custodial investigation against self-incrimination, and the doctrine laid down
in the classic case of Miranda vs. Arizona 8 have been violated..

Thus, accused-appellant maintains in his brief:

In the Miranda case, the accused was arrested by the and taken to a special
interrogation room where he signed a confession which contained a typed paragraph
 stating that the confession was made voluntarily with full knowledge of his legal rights
and with the understanding that any statement he made might be used against him. It
will be noted that the prosecution's EXHIBIT "H" and all the submarkings thereunder
was obtained from the accused-appellant under precisely similar conditions as in the
Miranda case. He was taken from his ship by Naval Intelligence Service special agents
and roughly handed from the very start. Before he could even get his bearings, he was
immediately handcuffed and told that he was a primary suspect in a very serious
offense-murder. And then, before giving him any of the warnings called for under the
above-quoted guidelines provided by the M case, was questioned about the alleged
offense which he was being suspected even while awaiting transportation to the Office
of Naval Intelligence. At the Office of Naval Intelligence, the accused-appellant was
placed in a special interrogation room and left alone for a little while. When he was
finally joined again by NIS Investigators, he was merely given the standard
mimeographed warning and told to sign the same without even so much as explaining
to him the contents and significance of the mimeographed form which he was being
asked to sign. The accused-appellant was never informed that whatever statements he
may given might be used against him in a trial before a Philippine Court and was never
really given the opportunity to consult with a lawyer, whether military or civilian. The
interrogation of the accused-appellant then proceeded and lasted all day without giving
him the opportunity to rest. And then, in the preparation of said statement (EXHIBIT
"H") a yeoman of the NIS investigator did the typing and typed only those portions of
the interrogation session which the NIS investigator told him and which turned out to be
in criminating to the accused-appellant.1äwphï1.ñët The NIS interrogation could be
easily characterized as a police-dominated incommunicado interrogation. This type of
interrogation is precisely the kind which was severely criticized by the Miranda
doctrine. 9

Accused-appellant further argues:

The evidence clearly shows that the Naval Intelligence agent who interrogated the
accused-appellant special Agent Cox employed precisely the police interrogation
procedures described by the U.S. Supreme Court in the Miranda case i.e. interrogation
in privacy of their special interrogation room questioning in unfamiliar surroundings,
employing deceptive stratagems and for inadequate warning of his rights to counsel and
to remain silent etc., thereby breaking down his will power by failing to allow him some
rest or respite. It is in this obviously police-dominated surrounding that the accused
finally succumbed to the oppressive atmosphere of the dogged and persistent
questioning of the Naval Intelligence interrogator and finally gave the questioned
statement (EXHIBIT "H") just to get it over with. 10

We reject accused-appellant's contention and argument. Contrary to what the counsel for the accused-
appellant contends, there is no evidence showing that the accused was roughly handed from the very
start. Neither is there any evidence to prove that he was first handcuffed and informed that he was a
suspect in a murder case before he was warned of his rights.

The manner of arrest as testified to by witness Jerry Witt which was not controverted, was as follows: 11

Q Will you tell how you make arrest of a serviceman on board a ship?
 A We went to the USS HANCOCK to contact the legal officer and told
him that one of his crew members is a suspect in a murder case and we
went to talk to him.

Q And what did legal officer do?

A They tried to locate him.

Q Were you with the group who located Michael Butler?

A Yes.

Q Who were with you?

A Watrous, the legal officer ship master whose name I do not know.

Q After you found Michael Butler, where was he brought?

xxx xxx xxx

Q When Michael Butler was brought to the legal office, what happened?

A I identified myself, showed my credentials and said he was a suspect

in a murder case, that it is his right to remain silent and his right to a
lawyer. He was informed of the crime and asked him to put up his arm
against the wall we made body search to look for possible weapon. He
had some kind of tools, handcuffed him and took him to our office.

Q Did he refuse?

A He was very submissive.

Q Why did you make him face the wall and search him?

A Normal procedure.

Q And did he ever resist?

A No.

Q How about being handcuffed?

A Not at all.

Q And this manner of searching and handcuffing, was it done in the

presence of the legal officer?
 A Yes.

It is clear that there was no mandhandling on the part of the accused. Neither could it be deduced from
the events which transpired on board the sip that there was any moral coercion exerted to break his
will. It should also be noted that as early as this time, the accused-appellant had already been informed
of his constitutional rights. On this point, NISRA investigator James Cox on direct examination said:

Q Prior to your interrogation being an investigator, what are the

requisites in your talking to the suspect?

A By Identifying myself to him, advising him of his rights, of his

constitutional rights.

Q And this advise of his rights are reduced to writing?

A Yes.

Q And is this done to Michael Butler?

A Yes.

Q And you said that prior to your interrogating Michael Butler you have
warned him of his constitutional rights and his rights under the Uniform
Code of Military Justice, and the same reduced to writing ... I will
withdraw.

Q You said that the interrogation on Mr. Butler has been reduced to
writing, I have here a three-page statement of Michael Butler, will you
tell what is the relation of this to the statement you have taken on
Michael Butler?

A This is the statement I took from Michael Butler, on AUGUST 8, 1975.

xxx xxx xxx

Q You said that you warned the accused of his rights under the military
code of justice, is this embodied in the statement?

A Yes.

Q Will you please point to the statement, where is it? (Witness pointing
to the first half upper portion of page one of Exh. "A" motion)

xxx xxx xxx

Q And do you know if the accused understood his rights as warned by

you?
 A He said he did.

Q Do you have evidence that he understood the warning you gave in

connection with his rights?

A I asked him if he understood, he said yes. I asked him if he needed a

lawyer, he said no, and put his initial in my presence. 12

On cross-examination, witness Jerry Witt declared:

Q You did not stay long in the office of the legal officer after he was
brought in?

A No.

Q In short, the only thing that happened in the legal office is that he was
searched, had his body to the wall and handcuffed him?

A He was warned.

Q A But at that time there was no interrogation?

A Right.

Q And he did not say anything

A I do not remember him saying anything.

Q Was the warning given before he was handcuffed?

A That was the very first thing.

Q Do I understand that you gave him the warning in the deck?

A Down in the legal office, I do not want to embarrass him I did it in

private.

Q In the presence of Watrous?

A Yes, and the legal officer.

Q How long after you said this warning before you handcuffed him?

A Two or three minutes.

Q And after you handcuffed him you did not reiterate your warning
anymore?
 A No more, just to come with us. 13

Neither are We convinced of the accused-appellant's assertion petition to the effect that the "police-
dominated' incommunicado interrogation" at NISRA office morally coerced him to sign the
"mimeographed warning" and to give the extra-judicial admission. While it may be true that a
considerable span of time elapsed from the moment the accused was brought to the NISRA office to the
time the interrogation was begun and reduced to writing, there is no competent evidence presented to
support the allegation that the statement made by the accused was a result of pressure and badgerings.
In the absence of such competent evidence, that argument remains to be a mere speculation which
cannot be made to prevail over what the prosecution witnesses have established and which have not
been successfully controverted.

We agree with the court a quo that the Miranda doctrine finds no application in this case. As the court a
quo observes:

The Miranda Doctrine does not apply in this case as the accused had already waived his
right to remain silent and to counsel after he was duly informed of said rights by his
investigators. The Court is not persuaded by the claim of the accused as there is no
reliable evidence to support it except his naked testimony that he was threatened and
coerced, which allegation was contradicted and negatived by the fact that he signed and
initialed each and every page of Exhibit H, showing no signs of tremor as a result of the
maltreatment, threats or coercion. The naked denial of the accused regarding the
preparation of Exhibit H cannot overwhelm the true and positive testimonies of the
prosecution witnesses James Robert Beaver and James Creatur, James Cox and Jerry
Witt as there appears no visible indication for his fellow Americans to fabricate their
declarations and testify falsely against the accused. Besides, it is a well-settled rule that
in weighing conflicting testimonies, greater weight must be generally given to the
positive testimonies of the witnesses, for the prosecution than the denials of the
accused.

The third issue is whether or not the trial court erred in finding the accused guilty of the crime of murder
qualified by abuse of superior strength, with aggravating circumstances of treachery and scoffing at the
corpse of the victim.

The prosecution maintains that there is abuse of superior strength as can be deduced from the fact that
the victim was slender, only 4'11" in height while the accused is about 6 feet tall and 155 lbs that the
accused took advantage of this unequal physical condition when he struck the victim with the figurine
which made the victim unconscious, after which he shoved and pressed the victim's mouth and nose
against the bed mattress. 14

On the other hand, it is the defense counsel's contention that the court a quo erred in appreciating the
qualifying circumstance of abuse of superior strength because like treachery, nocturnity and evident
premeditation, this circumstance has to be deliberately and purposely utilized to assure the
accomplishment of the criminal purpose without risk to the offender which might arise from the
defense that the victim might offer. The defense counsel further maintains that there is no evidence to
support that advantage was taken by the accused of his superior strength as contrary to what the
court a quo said in its decision, there was no evidence nor testimony on the part of the medico-legal
officer to the effect that when the victim was hit by a figurine, she went into a coma then her head was
pushed by a pillow, causing her nose and mouth to be pressured against the bed mattress. In addition to
this, the defense counsel further maintains that the instrument used by the accused, which was a brittle
porcelain statue of Jesus Christ, could not produce physical injury nor render the victim unconscious as
testified to at cross-examination by the medico-legal officer.

In People vs. Bustos, 15 this Court held that to be properly appreciated, it must be shown that the
accused is physically stronger than the victim or the relative strength of the parties must be proved.
In People vs. Casillar, 16 this Court said that the essence of this circumstance is that advantage is taken by
the offender of this physical strength which is relatively superior to that of the offended party. The fact
that the offender is strong does not of itself prove its existence. 17

Still, in People vs. Cabiling, a guideline to determine whether or not there is abuse of superior strength
has been laid down. In that case this Court ruled:

To take advantage of superior strength means to purposely use excessive force out of
proportion to the means of defense available to the person attached. This circumstance
should always be considered whenever there is notorious inequality of forces between
aggressor, assuming a situation of superiority of strength notoriously advantageous for
the aggressor selected or taken advantage of by him in the commission of the crime. To
properly appreciate it, not only is it necessary to evaluate the physical conditions of the
protagonists or opposing forces and the arms or objects employed by both sides, but it
is also necessary to analyze the incidents and episodes constituting the total
development of the event. 18

In the light of the above legal precepts and considering the evidence adduced, this Court holds that
there was an abuse of superior strength attending the commission of the crime. It is not only the
notorious advantage of height that the accused had over his hapless victim, he being 6 feet tall and
weighing 155 lbs. while the girl was only 4 ft 11 inches tall, but also fits strength which he wielded in
striking her with the figurine on the head and in shoving her head and pressing her mouth and nose
against the bed mattress, which pressure must have been very strong and powerful to suffocate her to
death and without risk to himself in any manner or mode whatsoever that she may have taken to
defend herself or retaliate since she was already struck and helpless on the bed, that convinced us to
find and rule that the crime committed is murder with the qualifying circumstance of abuse of superior
strength.

The evidence on record, however, is not sufficient to show clearly and prove distinctly that treachery
attended the commission of the crime since there was no eyewitness account of the killing. The extra-
judicial confession of the accused merely stated, thus: "I thought she was going to do something
dangerous to me so I grabbed her, and we started wrestling on the bed. She grabbed me by the throat
and I picked up a statue of Jesus Christ that was sitting on the bedside stand and I hit her in the head.
She fell flat on her face." Although the figurine was found broken beside her head, the medical report,
however, do not show any injury or fracture of the skull and no sign of intracranial hemorrhage.

While We reject the presence of treachery, We, however, find and sustain the finding of the lower court
that the aggravating circumstance of outraging or scoffing at the corpse of the deceased applies against
the accused since it is established that he mocked or outraged at the person or corpse of his victim by
having an anal intercourse with her after she was already dead. The fact that the muscles of the anus did
not close and also the presence of spermatozoa in the anal region as testified to by Dr. Angeles Roxas,
the medico-legal officer, and confirmed to be positive in the Laboratory Report, Exhibit "B1 ", clearly
established the coitus after death. This act of the accused in having anal intercourse with the woman
after killing her is, undoubtedly, an outrage at her corpse.

It is true as maintained by the defense that the aggravating circumstance of outraging at the corpse of
the victim is not alleged in the information and that the lower court found it had been proved but its
contention that the said aggravating circumstance should not have been appreciated against the
accused is without merit. And this is so because the rule is that a generic aggravating circumstance not
alleged in the information may be proven during the trial over the objection of the defense and may be
appreciated in imposing the, penalty (People vs. Martinez Godinez, 106 Phil. 597). Aggravating
circumstances not alleged in the information but proven during the trial serve only to aid the court in
fixing the limits of the penalty but do not change the character of the offense. (People vs. Collado 60
Phil. 610, 614; People vs. Campo, 23 Phil. 368; People vs. Vega, 31 Phil. 450; People vs. Domondon, 64
Phil. 729).

On the claim of the defense that the accused is entitled to the benefits of Section 192 of P.D. 603 before
its amendment by P.D. 1179 on August 15, 1977, the records disclose that at the time of the commission
of the crime on August 8, 1975, said accused was seventeen (1 7) years, eleven (11) months and four (4)
days old, he having been born on September 4, 1957 in Orlando, Florida, U.S.A. The records further
disclose that during the consideration of the defense's motion to suppress the extra-judicial confession
(Exhibit "H") the accused declared that he was eighteen (18) years old as evidenced by the certification
issued by Vice Consul Leovigildo Anolin of the Consul General of the Philippines in New York City dated
November 14, 1975 (Exhibit "1"-Motion). According to the trial court, notwithstanding the presentation
of Exhibit "1"-Motion, the accused did not make any serious effort to invoke Article 192 of Presidential
Decree 603 and further, since the accused was found guilty of a capital offense, the suspension of
sentence and the commitment of the accused to the custody of any institution or person recommended
by the Department of Social Welfare cannot be carried out.

On December 17, 1976, an Urgent Motion for New Trial was filed by the defense on the ground that a
serious error of law was committed during the trial prejudicial to the substantial right of the accused
and newly discovered evidence which would probably change the judgment of the court. The trial court
denied the motion for lack of merit as well as the subsequent Motion for Reconsideration and Second
Motion for Reconsideration. Thereupon, the records of the case were ordered immediately forwarded
to the Supreme Court for automatic review pursuant to law.

At the time of the commission of the offense, trial and rendition of judgment, the applicable law was
P.D. 603 otherwise known as Child and Youth Welfare Code. The relevant provisions of the said law to
the instant case are Articles 189 and 192 which provide the following:

Art. 189. Youthful Offender. Defined —A youthful offender is one who is over nine years
but under twenty-one years of age at the time of the commission of the offense.

A child nine years of age or under at the time of the offense shall be exempt from
criminal liability and shall be committed to the care of Ws or her father or mother, or
nearest relative or family friend in the discretion of the court and subject to its
supervision. The same shall be done for a child over nine years and under fifteen years
of age at the time of the commission of the offense, unless he acted with discernment,
in which case he shall be proceeded against in accordance -,with Article 192.
 The provisions of Article 80 of the Revised Penal Code shall be deemed modified by the
provisions of tills Chapter.

Art. 192. Suspension of Sentence and Commitment of Youthful Offender.— If after

hearing and the evidence in the proper proceedings, the court should find that the
youthful offender has committed the acts charged against him the court shall determine
the imposable penalty, including any civil liability chargeable against him. However,
instead of pronouncing judgment of conviction, the court, upon application of the
youthful offender, if it finds that the best interest of the public as well as that of the
offender will be served thereby, may suspend an further proceedings.

The trial court refused to consider and appreciate the minority of the accused because the proof
submitted by the defense was not duly authenticated as required by the Rules of Court under Section 25
of Rule 132, said proof being merely a certification issued by Consul Leovigildo Anolin of the Consulate
General of the Philippines in New York City, U.S.A. that the attached document is a xerox copy of the
original birth certificate of Michael Jerome Butler issued by the Department of Health and Rehabilitation
Service, State of Florida, U.S.A. shown by Mr. Butler's mother, Mrs. Ethel Butler. (Exhibit "l ", "1-A")

After the lower court had ordered the records of the case forwarded to the Supreme Court for
automatic review on January 25, 1977, as stated earlier accused-appellant filed on August 25, 1978 a
petition for mandamus in G.R. No. L-48786 entitled "Michael J. Butler, minor, assisted by Lt. Commander
Charles T. Riedel, U.S. Navy (guardian ad litem) vs. Hon. Regino T. Veridiano, et al." praying that
respondent judge be ordered and commanded to set aside the judgment of conviction, to declare the
proceedings suspended and order the commitment of the accused pursuant to Article 193, P.D. 603. The
petition was denied by Us for lack of merit in Our Resolution of December 13, 1978.

Subsequently, however, the required proof was submitted as annexes to the defense' Manifestation and
Motion to Admit (Certified Copy of Certificate of Live Birth) filed May 26, 1981 in the instant proceedings
(See Records, pp. 137-141). In Our Resolution of June 4, 1981, We admitted the certified copy of the
Certificate of Live Birth of accused-appellant to form part of the evidence.

We do not agree with the reasoning of the trial court that the accused had not invoked the privilege
granted under Article 192 of P.D. 603 before its amendment because the records manifestly show the
vigorous plea of the accused for it's application not only in the Motion for New Trial but also in the
Motion for Reconsideration filed by the accused (See pp. 237 248, 261-271, Records of Criminal Case No.
2465, People vs. Michael J. Butler, CFI of Zambales, Branch 1, Olongapo City). We hold and rule that the
lower court erred in not applying the provisions of Article 192 of P.D. 603 suspending all further
proceedings after the court had found that the accused had committed the acts charged against him,
determined the imposable penalty including any civil liability chargeable against him. The trial court
should not have pronounced judgment convicting the accused, imposing upon the penalty of death.

We likewise hold that the penalty of death was not justified. Since murder was committed by the
accused, under Article 248 of the Revised Penal Code, the crime is punishable by reclusion temporal in
its maximum period to death. The accused is a minor and he is entitled to the privileged mitigating
circumstance of minority which reduces the penalty one degree lower and that is prision mayor in its
maximum period to reclusion temporal in its medium period, or ten (10) years and one (1) day to
seventeen (17) years and four (4) months. (Article 68, Revised Penal Code) With one aggravating
circumstance, that of outraging at the corpse of the victim, the penalty imposable is the maximum
period which is reclusion temporal medium or fourteen (14) years, eight (8) months and one (1) day to
seventeen (17) years and four (4) months. Imposing the Indeterminate Sentence Law, the imposable
penalty is eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8)
months and one (1) day of reclusion temporal as maximum.

We find in the records the Order of the Honorable Regino T. Veridiano II, Presiding Judge of the Court of
First Instance of Zambales, Branch I at Olongapo City, committing the accused in the custody of the
Commander, U.S. Naval Base, Subic Bay, Philippines dated December 3, 1976, "(p)ending the finality of
judgment rendered in the above-entitled case, pursuant to the provisions of Para. 5, Article 13 of the
Revised Base Military Agreement. " (p. 190, original records).

After the appeal had been submitted for decision pursuant to Our Resolution of November 20, 1980, the
accused-appellant, through counsel, filed a Verified Motion to Dismiss Case Under P.D. 603 praying that
an order be issued "l) Dismissing the case against accused-appellant; (2) Ordering the immediate
discharge of accused-appellant; (3) Granting accused-appellant such other relief as may be deemed just
and equitable in the premises, " alleging:

IV

8) During his entire period of continued imprisonment in the BRIG from August 11, 1975
to the present, accused-appellant has behaved properly and has shown his capability to
be a useful member of the community. Documentary proofs of these are as follows:

(a) Official Report of the BRIG Commander, USN Subic Naval Base, attached hereto as
Annex "A" and made an integral part hereof-,

(b) Progress Report filed with this Honorable Court on November 6, 1980, by the
Ministry of Social Services and Development, Olongapo City Branch, found on pp. 113-
114, of the Rollo, and attached hereto as Annex "B" and made an integral part hereof
Thus:

Based on the informations we gathered thru interviews and

observations, we would like to recommend to the Hon. Supreme Court,
that Michael Butler be given a chance to enjoy his life fully outside the
jail, thus promoting his best interest and welfare.'

(c) Progress Report with annexes, dated February 18, 1981, filed on March 4,1981, by
the Ministry of Social Services and Development, Olongapo City Branch, found on pp.
128-131 of the Rollo, a xerox copy of which is hereto attached as Annex "C " and made
an integral part hereof Thus:

In view of the fact that Mr. Michael Butler is now fully rehabilitated, it is
our recommendation that he be given an opportunity to have happily
and prove himself outside the Brig.'

(d) Diploma awarded by the University of La Verne California, U.S.A., to accused-

appellant as evidence of his having completed a course in Behavioral Science, on
 January 24, 1981, while he was a prisoner in the BRIG. A xerox copy of said Diploma and
that of the accompanying group photograph showing a picture of accused-appellant
taken on the occasion of the commencement exercises, are hereto attached as Annexes
"D" and "D-1 ", respectively, and made integral parts hereof. The originals are found on
p. 133 of the Rollo. (The original of his transcript of record is also hereto attached as
Annex "E ").

(9) Under the foregoing facts and circumstances, and while it is now a legal and physical
impossibility to place accused-appellant under the care and custody of the Ministry of
Social Services and Development which was what should have been done in the
beginning under P.D. 603, it is submitted that accused-appellant's unfortunate situation
could still be remedied and salvaged . . . as justice now demands . . . and that is, by
treating accused-appellant's imprisonment in the BRIG as equivalent to what should
have been his full period of commitment under the care and custody of the Ministry of
Social Services and Development. After all, and as said Ministry has reported, it has been
regularly visiting accused- appellant at his cell in the BRIG and, is therefore, in a position
to attest to the exceptional behavior of accused-appellant.

Counsel for the People opposes the Motion to Dismiss on the following grounds: 1 —That the dismiss for
lack of merit by this Court of the petition for mandamus earlier filed and docketed as G.R.L-48788
barred the accused from raising or litigating anew the issue of his minority; 2-That an offender is not
entitled to the benefit of suspension of sentence if at the time of trial he could no longer qualify as a
minor offender for purposes of the rule on suspension of sentence because of his age, citing the cases of
People vs. Capistrano, 92 Phil. 127 and People vs. Estefa, 86 Phil. 104; and 3-That under Section 192,
P.D. 603, as amended, accused-appellant is not entitled to the benefit of suspension because he was
convicted of an offense punishable by death, considering that the retroactive application to him of
Articles 189 and 192, P.D. 603 as amended by P.D. 1179 may not be assailed because said articles are
procedural in nature and there is no vested right in rules of procedure.

We find no merit' to the opposition of the People. Our dismissal of the mandamus petition in G.R. L-
48788 which was for lack of merit due to the insufficient proof of minority of the accused is no bar to
raising the same issue in the instant automatic review of the case after We had admitted the proper
authentication of the accused's birth certificate "to form part of the evidence." (See Resolution of June
4, 1981, rollo). The second ground is likewise without merit for the accused was below 21 years at the
time of his trial and even at the time judgment was promulgated to him on December 3, 1976 (he was
then 19 years, 3 months and 3 days old). Neither does the third ground hold water because P.D. 603 was
amended on May 15, 1977, which was after the trial and conviction already of the accused. The
amendment passed during the pendency of the appeal and it cannot adversely affect the right, privilege
or benefit accorded to the minor for suspension of the sentence under the original provision of Article
192 of P.D. 603, which reads as follows:

Art. 192. Suspension of Sentence and Commitment of Youthful Offender.— If after

hearing the evidence in the proper proceedings, the court should find that the youthful
offender has committed the acts charged against him the court shall determine the
imposable penalty, including any civil liability chargeable against him. However, instead
of pronouncing judgment of conviction, the court shall suspend all further proceedings
 and shall commit such minor to the custody or care of the Department of Social
Welfare, or to any training institution operated by the government, or duly licensed
agencies or any other responsible person, until he shall have reached twenty-one years
of age or, for a shorter period as the court may deem proper, after considering the
reports and recommendations of the Department of Social Welfare or the agency or
responsible individual under whose care he has been committed.

The youthful offender shall be subject to visitation and supervision by a representative

of the Department of Social Welfare or any duly licensed agency or such other officer as
the Court may designate subject to such conditions as it may prescribe.

P.D. 1179, Section 2 and made effective August 15, 1977 amended Articles 192 and 193 of P.D. 603 by
adding as its penultimate paragraph the following:

The benefits of this article shall not apply to a youthful offender who has once enjoyed
suspension of sentence under its provisions or to one who is convicted of an
offense punishable by death or life imprisonment. (emphasis supplied)

The lower court having erred in not suspending the sentence of conviction against the accused-appellant
who is entitled thereto under the original provisions of Article 192 of P.D. 603, We agree with the
defense plea that the "accused-appellant's imprisonment in the BRIG (be treated) as equivalent to what
should have been his full period of commitment under the care and custody of the Ministry of Social
Services and Development. After all, and as said Ministry has reported, it has been regularly visiting
accused-appellant at his cell in the BRIG and is, therefore, in a position to attest to the exceptional
behavior of accused-appellant."

We have examined carefully the documentary proofs attached to the appellant's Motion to Dismiss
showing that from August 11, 1975 to the present, accused-appellant has behaved properly and has
shown his capability to be a useful member of the community, and these are (a) Official Report of the
BRIG Commander, USN Subic Naval Base; (b) Progress Report filed with this Court on November 6, 1980
by the Ministry of Social Services and Development, Olongapo City Branch; and (c) Progress Report with
annexes dated February 18, 1981 filed on March 4, 1981 by the Ministry of Social Services and
Development; and (d) Diploma awarded by the University of La Verne California, U.S.A. showing
completion of a course in Behavioral Science, on January 24, 1981, while he was a prisoner in the BRIG.
The Final Report prepared and submitted by the Supervising Social Worker of the Ministry of Social
Services and Development Dated September 14, 1981 was subsequently filed with Us and it states as
follows:

FINAL REPORT

In compliance with the request of the Legal Office, U.S. Naval Base, the Ministry of
Social Services and Development, Olongapo City Branch Office respectfully submits this
final report on the progress of the behavior of the above-mentioned youth.

Michael Jerome Butler has been detained at the Naval Station Brig of the U.S. Naval
Base for a period of six years now. Since his detention, he has been visited and was
given counselling by the Social Worker.
While in confinement, he was assigned to the Brig's Library, Coffee Mess and at present
at the Administrative Office. At the Administrative Office, he is responsible in keeping
the records on file, typing various forms and correspondence and forms reproduction.
The present Brig Officer said that Prisoner Butler works well requiring limited
supervision as he sets and pursues goals in an organized manner. He can be relief upon
to complete an assigned task in a timely manner. He also performs all janitorial work
required for the above-mentioned spaces.

He gets along very well with the Brig's Staff and other confines and he goes out of his
way to help other confines adjust to confinement and to rehabilitate themselves.

He made use of his time in the Brig constructively and on January 29, 1981, he
graduated at the LA Verne Co with the degree m Behavioral Science. This was made
possible thru his self-determination, diligence, courage and interest. He also takes an
active part in promoting health and physical fitness to all cofinees as well as staff.

Confines Butler is not only involved in assisting and helping his co- confines but also
gives financial support to a disabled person in the person of Benjamin dela Cruz and to
his (Butler) mother who is in United States.

Mr. Butler has been incharge of the complete operation of the Brig's Library and he kept
it well stocked and completely clean and neat. He also taken the duties of a Coffee Mess
and had accomplished the job expertly.

He was given a task within the compound that only trusted confinee would be given and
had carried them with zest. His personal appearance and uniforms are always in accord
with the Navy standard. With the above findings and Mr. Butler's desire to start life
anew, this Final Report is submitted. /

Prepare
d and
Submitt
ed by:

(
S
G
D
.
)
E
L
O
I
S
A
A
 .
G
A
R
C
I
A
S
u
p
e
r
v
i
s
i
n
g
S
o
c
i
a
l
W
o
r
k
e
r
1
4
S
e
p
t
.
1
9
8
1

Noted by:

(SGD.) JUANITA B. LAFORTEZA

City Social Welfare Officer
From these reports, We are fully satisfied that the accused. appellant has behaved properly and has
shown his capability to be a useful member of the community. It is of no moment that the accused had
not been specifically committed by the court to the custody or care of the Department of Social Welfare
then, now the Ministry of Social Services and Development, or to any training institution operated by
the government or duly-licensed agencies as directed under Article 192 of P.D. 603. At any rate, the
Commander of the U.S. Naval Base in Subic Bay to whom the accused was committed in the Order of
December 3, 1976 pending the finality of judgment rendered in the case pursuant to the provisions of
paragraph 5, Article 13 of the Revised Base Military Agreement, may be considered a responsible person
to whom the accused may be committed for custody or care under the said Article 192 of P.D. 603.
What is important is the result of such custody and care showing his conduct as well as the intellectual,
physical, moral, social and emotional progress made by the accused as shown in the favorable
recommendation of the Supervising Social Worker of the Ministry of Social Services and Development
who had visited him regularly and given counselling. We hereby approve the recommendation of the
Ministry that "Michael Butler be given a chance to enjoy his life fully outside the jail, thus promoting Ms
best interest and welfare" (Progress Report dated October 27, 1980); "that Mr. Michael Butler is now
fully rehabilitated, it is our recommendation that he be given an opportunity to live happily and prove
himself outside the Brig" (Progress Reported dated February 18, 1981); "with the above findings and Mr.
Butler's desire to start life anew, this Final Report is submitted." (Final Report dated September 14,
1981).

The dismissal of the case against the accussed Michael Butler is, therefore, meritorious and justifiable.
We hereby order his final discharge therefrom. His final release, however, shall not obliterate his civil
liability for damages in the amount of P24.000.00 to the heirs of the victim which We hereby affirm.
Such release shall be without prejudice to the right for a writ of execution for the recovery of civil
damages. (Article 198, P.D. 603).

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the case against the accused-appellant Michael J. Butler
is hereby DISMISSED and We hereby order his final discharge from commitment and custody. The civil
liability imposed upon him by the lower court shall remain.

Costs de oficio.

Motion To Dismiss granted.

SO ORDERED.
32. People v. Saylan, G.R. No. L-36941, 29 June 1984

G.R. No. L-36941 June 29, 1984

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RAFAEL SAYLAN alias PAEL, accused-appellant.

The Solicitor General for plaintiff-appellee.

Federico Y. Alikpala, Jr., for accused-appellant.

ABAD SANTOS, J.:

This is an automatic review of the decision of the defunct Court of First Instance of Misamis Oriental in
Criminal Case No. 52-M which imposed the death penalty.

RAFAEL SAYLAN was accused of the crime of rape in the sworn complaint of Eutropia Agno said to have
been committed as follows:

That on or about the 23rd day of January, 1972, at more or less 7:00 o'clock in the
evening, at Sitio Craser, Malinao, Jingo City, Philippines and within the jurisdiction of this
Honorable Court, the abovenamed accused, with deliberate intent to have sexual
intercourse, did then and there wilfully, unlawfully and criminally with the use of a
dagger, force and intimidate Eutropia Agno y Arcay, to remove her pantie and to lay
down on the ground and with the use of a dagger, force and intimidation succeeded in
having sexual intercourse with Eutropia Agno y Arcay, a woman of good reputation and
against her will. That the commission of the foregoing offense was attended by the
aggravating circumstances of: abuse of superior strength, nighttime, uninhabited place,
ignominy and reiteracion. (Expediente, p. 27.)

The accused entered a plea of "not guilty" and after trial the court rendered the following judgment:

WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime
of rape, penalized under Article 335 of the Revised Penal Code as amended by Republic
Act No. 4111, and the commission of the offense having been attended by three
aggravating without any mitigating circumstance, hereby sentences him to suffer the
supreme penalty of death, to indemnify the offended party in the amount of Six
Thousand Pesos (P6,000.00), and to pay the costs. In view of the fact that the offended
party is a married woman, aside from the fact that she has not become pregnant as a
result of the commission of the rape, the Court makes no pronouncement as to
acknowledgment and support of offspring. (Id., p. 64.)

The factual version of the prosecution is summarized in the People's brief as follows:
The complaining witness, Eutropia A. Agno, a married woman and a resident of Barrio
Malinao, Gingoog City, was a classroom teacher of the Malinao Elementary School (pp.
2, 3, tsn., Feb. 22, 1973).

In the afternoon of January 23, 1971, Eutropia went to the public market in Gingoog City
to buy foodstuffs for her family and thereafter, she proceeded to the store of her
mother to fetch her five-year old daughter Nilsonita (p. 4, tsn., Id.). On their way home,
Eutropia and Nilsonita boarded a passenger jeepney and while inside the vehicle she
(Eutropia) noticed that the other passengers were Rudy Gonzales, a grade I pupil of the
Malinao Elementary School, the appellant, Rafael Saylan, and a couple whom she did
not know (pp, 5, 6, tsn., Id.). The jeepney went only as far as Malinas citrus farm
because the road to Barrio Malinao was not passable by vehicles (p. 5, tsn., Id.). It was
almost 6:30 o'clock in the evening when the jeepney arrived at the Malinas citrus farm
and so all the passengers alighted and had to walk all the way to Barrio Malinao which
was about three and a half kilometers away (p. 5, tsn., Id.). After walking some distance
and upon reaching a junction, the couple separated from the group and took the road
leading to their house while Eutropia's group took the opposite road (p. 9, tsn.,
Id.).lwphl@itç The appellant, however, joined the group of Eutropia and when they
reached the place where the road was plain, appellant who was then walking side by
side with Eutropia suddenly pulled out a dagger about eight inches long and pointing it
at the latter said, "Do not shout, Nang, I will kill you!" (pp. 11, 12, tsn., Id.). At this
juncture, appellant placed his right arm around the neck of Eutropia with the dagger
pointed at her left breast (p. 12, tsn., Id.), after which he dragged Eutropia at some
distance. When they reached the junction of the trail for men and a trail for carabaos,
he ordered everybody to stop and told the children (Nilsonita and Rudy Gonzales) to
stay behind and threatened to kill them if they persisted in following them (pp. 17, 18,
tsn., Id.). Thereafter, appellant again dragged Eutropia by her hand and brought her
towards a creek near a coconut tree which was about five meters away from where
Nilsonita and Rudy Gonzales were (pp. 14, 15, 16, tsn., Id.).lwphl@itç The appellant then
ordered Eutropia to remove her panty which she refused at first, but appellant
threatened to kill her, so she removed her panty after which appellant ordered her to lie
down (pp. 18, 19, tsn., Id.). Subsequently, appellant placed himself on top of the victim
and inserted his penis into her vagina and succeeded in having sexual intercourse with
her by moving his buttocks up and down (pp. 20,21, tsn., Id.).

After the first sexual act, appellant ordered Eutropia to standup which the latter
helplessly and grudgingly followed (p. 23, tsn., Id.). Appellant again inserted his penis
into her vagina and then performed a push and puli movement (pp. 23, 24, 25, tsn., Id.).
Not satisfied with the second intercourse, appellant ordered Eutropia to lie down again
preparatory to a third intercourse (p. 26, tsn., Id.). Appellant again performed the sexual
act with her (pp. 26, 27, tsn., Id.).

After the third intercourse, appellant ordered Eutropia to stand up and then he bent her
body downwards with her hands and knees resting on the ground (p. 28, tsn., Id.). When
the latter was already in this position, appellant then placed himself behind her,
inserted his penis into her vagina and executed a push and puli movement in the dog's
way of sexual intercourse (pp. 27, 28, tsn., Id.)
After performing this uncommon way of sexual intercourse, appellant ordered Eutropia
to he down again which the latter reluctantly obeyed because appellant's dagger was
always pointed at her and thereafter he had carnal knowledge of her for the fifth time
(pp. 29, 30, tsn., Id.).

After the fifth intercourse, and after satisfying his sexual lust, appellant asked Eutropia if
she will tell her husband what he did to her and the latter answered, "I will not tell" (p.
31, tsn., Id.). But she only said this so that appellant would let her go home (p. 33,
tsn., Id.).

Afterwards, Eutropia and appellant returned to the place where the children were left
and upon arriving thereat, they found Nilsonita (Eutropia's daughter) asleep with Rudy
seated dozing beside her (pp. 32, 33, tsn., Id.). Nilsonita who was sleeping was carried
by the appellant and then they all proceeded to Malinao (pp. 33, 34, tsn., Id.).

After walking some distance, Eutropia saw the house of her friend "Ben" and upon
approaching the said house, she shouted, "Ben, Ben, please give me hot water" (p. 34,
tsn., Id.). Upon hearing her voice, Ben, who was still awake at the time, opened the door
of his house and allowed Eutropia to come up (p. 34, tsn., Id.). Eutropia immediately
went upstairs and went straight to the room of Ben as she was feeling very bad (p. 34,
tsn., Id.). Appellant, who was then carrying Nilsonita and Rudy Gonzales, were also
allowed to go upstairs (p. 35, tsn., Id.). Meanwhile, Eutropia requested Ben to fetch her
husband (p. 35, tsn., Id.).

When Eutropia woke up between 9:00 and 10:00 o'clock that evening, her husband was
already there (p. 36, tsn., Id.). She then asked him whether the appellant was stin
around, and in reply, he told her that appellant had already left (p. 37, tsn., Id.). Eutropia
then told her husband that she was raped by the appellant (p. 37, tsn., Id.). Upon
learning of the dastardly act committed by the appellant, he advised his wife to submit
herself to a medical examination (p. 37, tsn., Id.).

The following morning, the offended party was brought to the office of the City Health
Department of Gingoog City where she was examined by Dr. Ireneo O. Pascual who after
conducting a thorough physical examination, issued a medical certificate with the
following findings, to wit:

(1) Multiparous.

(2) Presence of viscid whitish secretions at vaginal fornix

(3) Microscopic examination of secretions reveals epithelial cells, but no

spermatozoa Identified.

(pp. 10, 11, 12, t.s.n., Feb. 24, 1973; Exh. "A").

Rudy Gonzales, a grade I pupil of the Malinao Elementary School and one of the
witnesses for the prosecution, testified that he met Mrs. Eutropia Agno in the afternoon
 of January 23, 1972 at the public market of Gingoog City buying foodstuffs for her family
(pp. 2, 3, tsn., Feb. 26, 1973). On their way back to Barrio Malinao, they boarded a
passenger jeepney and while he was inside the vehicle, he noticed that the other
passengers aside from Mrs. Agno, her daughter, and himself were the appellant and a
couple whose names he did not know ( p. 4, tsn., Id.). The jeepney, however, could only
travel up to the Marinas Citrus farm and so they had to walk all the way to Barrio
Malinao (p. 4, tsn., Id.) After was some distance and upon reaching a trail for carabaos,
the appellant suddenly pulled a dagger and placed his arms around the neck of Mrs.
Agno and then dragged her towards the carabao trail (pp. 4, 5, tsn., Id.). Meanwhile, he
and Nilsonita were left behind and they fell asleep because it took a long time for the
appellant and Mrs. Agno to come back for them (p. 5, tsn., Id.). When Mrs. Agno and the
appellant returned, he was already awake while Nilsonita was still asleep and so
appellant had to carry her in going home to Man (p. 6, tsn., Id.).lwphl@itç After was
some distance, Mrs. Agno saw the house of Mang Ben and because she was feeling bad,
they all went to the house of Mang Ben where Mrs. Agno spent the night (p. 7, tsn., Id.).
Afterwards, he and the appellant left the house of Mang Ben and then they proceeded
to his house at Malinao where both of them slept (pp. 7, 21, tsn., Id.). (At pp. 2-8.)

The accused did not deny having had sexual intercourse with Mrs. Agno; in fact he admitted that he
copulated with her for three successive times in the early evening of January 23, 1972, but he claimed
that it was with her consent. Accordingly, he now claims that:

I. THE COURT A QUO ERRED IN FINDING THAT THE SEXUAL INTERCOURSE HAD BEEN
COMMITTED AGAINST THE WILL AND CONSENT OF THE COMPLAINANT.

II. THE COURT A QUO ERRED IN FINDING THAT AGGRAVATING CIRCUMSTANCES HAD
ACCOMPANIED THE COMMISSION OF THE OFFENSE. (Brief, p. 5.)

The appeal must fail for the reasons stated hereunder.

This is a typical rape case. Only the participants could directly testify on the alleged sexual abuse and the
accused alleges consent on the part of the complainant. The question of credibility arises and under the
circumstances We have to rely heavily on the determination made by the trial judge who observed the
demeanor of the witnesses while before Us is only the cold transcript of what they said.

We accept the conclusions and findings of fact of the trial court that the complainant was in fact raped
by the appellant. There is no fact or circumstance in the record which will justify a different action.

The claim of the appellant that the sexual intercourse was mutually agreed is utterly incredible. If it
were true that Mrs. Agno consented to have coitus with the appellant, her conduct thereafter defies
understanding because it is contrary to reason and it has not been shown that Mrs. Agno, a school
teacher, was bereft of common sense. For if it was true that the sexual act was indeed mutually desired
and performed why did she complain not only to her husband but also to the authorities? An affair such
as that claimed by the appellant is carried out in a discreet manier. On the other hand, the version of the
complainant has indicia of credibility. For her version bared her shame to a small community and her
exposure was necessary only because she had to reveal the truth. No, We simply cannot believe the
appellant's version.
We have said above that the findings and conclusions of the trial court are entitled to great respect. In
finding the appellant guilty, this is what the court a quo said in part:

The testimony of the accused is incredible. When he told his love to the offended party
for the first time, they were only two in the latter's house. He had more time with her
then. She refuse him because she is married. He tried for the second time. He was again
refused because she is married. It is unthinkable and highly improbable that on the
evening of January 23, 1972, after only three minutes, the offended party would rush to
accept his love and go to the extent of thanking him for his considering her daughter as
his own, unless she was coerced, threatened, forced and intimidated.

It is highly improbable for a school teacher with several children to exchange her
husband only 40 years old and with a good means of livelihood for one whom she does
not know and whom she has observed as doing nothing except to play basketball. It is
subversive of the traits, character and nature of Filipino women to say that the offended
party, a school teacher and a girl scout accepted the love of a man who is good for
nothing and surrendered her whole body and virtue to him after an accidental courtship
of only three minutes. The offended party is an unsophisticated and conservative
woman, fixing her hair the old fashion way. She does not apply make-up on her face,
and her dress is up to her knees. This makes the pretensions of the accused all the more
incredible. (Expediente, p. 59.)

The complaint alleges the following aggravating circumstances: abuse of superior strength,
nocturnity, despoblado, ignominy, and reiteracion.

The trial court disregarded superiority because it "is inherent in the crime of rape or is absorbed in the
element of force." It also did not consider nocturnity "there being no evidence that the accused
purposely sought it to facilitate the commission of this rape." (Id, p. 63.)

Despoblado was present according to the trial court because: "The accused dragged the offended party,
at the point of a dagger, to the carabao trail, about 10 meters from the junction, but 40 to 50 meters
below to better attain his purpose without interference, and to better secure himself from detection
and punishment (U.S. vs. Vitug, 17 Phil. 1). Even the junction where the two children were left is already
400 meters from the nearest house. While there maybe occasional passersby, this does not destroy its
being an uninhabited place. (People vs. Bangug, 52 Phil. 87)." (Id, p. 62.) We hold that the trial court for
the reasons stated correctly held that the crime was committed in an uninhabited place.

The trial court held that there was ignominy because the appellant used not only the missionary
position, i.e. male supenor female inferior, but also "The same position as dogs do" i.e., entry from
behind. The appellant claims there was no ignominy because "The studies of many experts in the matter
have shown that this 'position' is not novel and has repeatedly and often been resorted to by couples in
the act of copulation. (Brief, p. 24.) This may well be if the sexual act is performed by consenting
partners but not otherwise.

The trial court also held that "there is no reiteracion because one of the offenses, namely Robbery in
Band, for which the accused has been penal was committed after the commission of this rape case, and
the penalty imposed on the other offense of Frustrated Homicide, is lighter than the penalty for rape."
(Id, P. 63.)

Although not alleged in the complaint, the trial court stated that the offense was aggravated by
disregard of rank because it was a fact knowm to the appellant that Mrs. Agno was a school teacher. The
appellant claims that this circumstance cannot be assigned to him because there was no deliberate
intent to offend or insult the rank of Mrs. Agno. The Solicitor General agrees with the appellant for the
same reason.

The judgment of the trial court is in accordance with the facts and the law but it cannot be affirmed
completely because of the lack of the necessary number of votes.

WHEREFORE, the judgment under review is modified in the sense that the appellant shall suffer the
penalty of reclusion perpetua instead of death and the indemnity to be paid to the offended party is
increased to P20,000.00. Costs against the appellant.

SO ORDERED.

33. People v. Sultan, G.R. No. 132470, 27 April 2000,

G.R. No. 132470. April 27, 2000

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. FERNANDO SULTAN y LATO, Accused-Appellant.

DECISION

BELLOSILLO, J.:

FERNANDO SULTAN y LATO appeals from the Decision of the trial court finding him guilty of the special
complex crime of robbery with rape, sentencing him to reclusion perpetua and ordering him to return to
his victim one (1) wrist watch, one (1) ring, one (1) pair of earrings, and one (1) necklace valued
at P1,600.00, P850.00, P500.00, and P2,100.00, respectively, and cash of P130.00; otherwise, to
pay P5,180.00 if restitution be no longer feasible. He was further ordered to pay P50,000.00 for moral
damages.1cräläwvirtualibräry

The evidence for the prosecution was based principally on the testimony of complaining witness Juditha
M. Bautista. According to her, on 2 June 1997 at 9:00 oclock in the evening she was on her way home
from a visit to her cousin Cristina Mansilongan in Novaliches, Quezon City; when she passed the dark
alley in her cousin's compound she was accosted by someone, later identified as accused-appellant
Fernando L. Sultan, who pointed a sharp instrument at her neck and announcing it was a "hold-up." He
grabbed her and brought her to a house along the alley which turned out to be his. Once inside the
house, he made her sit down. He offered her a drink; she refused it. Then he started divesting her of her
watch, ring, earrings, and necklace the values of which are now reflected in the Decision of the court a
quo, and her cash of P130.00. After taking her valuables, he started kissing her on the lips and cheeks. As
if to discourage him from making further sexual advances, she told him that she was married with two
(2) children but accused-appellant was not dissuaded from pursuing his intentions. While pointing an ice
pick at her he ordered her to undress. She acceded for fear that he would kill her as she was under
constant threat. After she had completely undressed, accused-appellant ordered her to lie down on the
floor. He then kissed her again from head down. Still she could not resist him because of fear. He went
on top of her, held her two (2) hands on the level of her head, spread her thighs and inserted his penis
into her vagina. The coital encounter lasted for ten (10) to fifteen (15) minutes.2cräläwvirtualibräry

After satisfying his lust, he ordered her to put on her bra and panty, tied her hands and went out of the
room to smoke. After ten (10) to fifteen (15) minutes, he came back, untied her, and once again with
threat and intimidation sexually abused her. Thereafter, he tied her hands to a protruding piece of wood
in the room and held her in his arms. She cried. He told her that he loved her and that he would answer
for what he had done to her. They talked until noon the following day without
sleeping.3cräläwvirtualibräry

In her effort to release herself from his clutches she "agreed" to elope with him. Perhaps convinced that
she was going to run away with him, he allowed her to go home at noon to get her things. She was then
staying with her cousin Nita del Rosario, at No. 9 Sta. Eleuteria Street, Gulod, Novaliches, Quezon City.
He even accompanied her to the highway to get a ride home.4cräläwvirtualibräry

When Juditha arrived home she saw her sister Antonette in the house. She was not actually residing
there but went there only that day. Juditha lost no time in narrating her harrowing experience to her
sister. Immediately Antonette called her brother SPO1 Fernando M. Bautista who resides in
Bulacan.5 SPO1 Bautista arrived at around 3:00 or 4:00 oclock in the afternoon and was told about what
happened.6 He then advised Juditha to go back to the house of accused-appellant for the "planned
elopement" so that he and his two (2) companions7 could stage an arrest.8cräläwvirtualibräry

On their way to the house of accused-appellant, Juditha rode in a passenger jeep with her sister
Antonette and cousin Nita while her brother and his two (2) companions followed them on board an XLT
Van. Juditha alighted near the house of accused-appellant while her companions waited for her and
accused-appellant along the highway. When she arrived at accused-appellants place, he was already
waiting for her outside the store nearby. They went inside his house and came out twenty (20) minutes
later. They boarded a passenger bus while SPO1 Bautista and his companions trailed them. When the
bus reached the corner of Forest Hill Subdivision, Gulod, Novaliches, it slowed down because of the
traffic thus making it easier for SPO1 Bautista and his companions to board the bus. Upon seeing her
brother and his companions, Juditha motioned to them. They immediately approached accused-
appellant and boxed him before they could arrest him. The other passengers of the busined in hitting
accused-appellant. This caused a commotion in the bus. Some policemen who were in the barangay hall
across the street saw the disturbance. They boarded the bus to find out what happened. Then they
assisted in facilitating the arrest of accused-appellant and brought him to the barangay hall. He was later
on transferred to the police headquarters for further interrogation.

At the police station the authorities investigated Juditha who readily identified accused-appellant as her
robber and rapist. The police then requested for physical examination to find signs of sexual abuse.
Medico-Legal Inspector Dr. Dennis G. Bellin found no external signs of violence although there was a
deep fresh laceration at 5 oclock position in Judithas hymen. He also discovered other lacerations, deep
healed, at 3, 7 and 9 oclock positions. Dr. Bellin also observed that Judithas external vaginal orifice
offered moderate resistance to his examining index finger and virgin-sized vaginal speculum. She was no
longer a virgin when the alleged rape transpired.9cräläwvirtualibräry
On 5 June 1997 an Information10 for the special complex crime of robbery with rape was filed against
accused-appellant Fernando Sultan y Lato, docketed as Crim. Case No. Q-97-71353. But accused-
appellant brushed aside the charge and claimed that it was simply a sexual congress of consenting
adults.

Finding the complaining witness version more credible, the trial court, on 5 June 1998, found accused-
appellant guilty as charged and sentenced him to reclusion perpetua. He was ordered to return to
Juditha Bautista one (1) wrist watch valued at P1,600.00, one (1) ring worth P850.00, one (1) pair of
earrings worth P500.00, one (1) necklace worth P2,100.00 and cash in the amount of P130.00, or the
payment of P5,180.00 if return was not possible. Accused-appellant was further directed to pay his
victim P50,000.00 for moral damages.11cräläwvirtualibräry

In this appeal, accused-appellant submits that there is no convincing proof that he is guilty of the crime
charged.

As to the robbery, he contends that the testimony of complainant that she was robbed of her personal
valuables should not be given weight and credence as (a) no evidence was presented in court to prove
her claim and that (b) if he had really robbed her, why did she not ask him for restitution of her
valuables after the alleged threat had ceased, i.e., when there was already an agreement between them
to elope?

These arguments fail to persuade us. The testimony of complainant as to the taking of her cash and
valuables is evidence enough to sustain a conviction for robbery considering that we find no fault in the
pronouncement of the trial court that her testimony is credible. The persuasive value of the declaration
of credibility is bolstered by our own scrutiny of the testimony of complainant showing her answers to
the incisive questions propounded to her to be firm and straightforward.

While there may have been no effort on the part of complainant to retrieve her personal belongings
from accused-appellant even after all threats had ceased, her failure to do so does not under the
circumstances necessarily dispute the commission of robbery. Article 293 of the Revised Penal Code
provides that "[a]ny person who, with intent to gain, shall take any personal property belonging to
another, by means of violence against or intimidation of person, or using force upon anything, shall be
guilty of robbery." When accused-appellant divested complaining witness of her personal belongings he
committed the crime of robbery. All the elements necessary for its execution and accomplishment were
present, i.e., (a) personal property belonging to another, (b) unlawful taking, (c) intent to gain, and (d)
violence or intimidation. It is therefore immaterial that she failed to ask for the return of her personal
things. Moreover, her actuation could only be fairly interpreted to mean that she did not want accused-
appellant to be suspicious of her moves.

As for the charge of rape, accused-appellant maintains that the requisite force or intimidation was not
proved by the prosecution beyond reasonable doubt; that there was some form of consent to the sexual
intercourse as complainant did not put up tenacious resistance despite lack of threat on her life during
the alleged rape; and, that complainant on cross-examination was not certain whether accused-
appellant was armed at the commencement of the rape.

We likewise find these contentions of accused-appellant unconvincing. The prosecution for rape in the
instant case is based solely on the testimony of complaining witness. Thus, the basic issue that must be
addressed is her credibility. Doctrinally, the trial courts assessment of the credibility of witnesses is
accorded the highest respect and weight by the appellate courts. It is normally sustained unless material
facts and circumstances have been overlooked, misunderstood or misapplied.12 There is no such
showing in this case.

Accused-appellant might not have employed force in committing the rape but he definitely used
intimidation which was sufficient to make complainant submit herself to him against her will for fear of
life and personal safety. Accused-appellant grabbed her and dragged her to his house. He was armed
with an ice pick and threatened to kill her with it if she did not follow his wishes. She was naturally
intimidated and her intimidation started from that moment on, and subsisted in her mind when the
rape was started until its consummation. Intimidation is subjective so it must be viewed in the light of
the victims perception and judgment at the time of the commission of the crime, and not by any hard
and fast rule. It is enough that it produces fear, as in the present case, fear that if the complainant does
not yield to the bestial demands of accused-appellant something would happen to her at that moment
or even thereafter. Thus, it is irrelevant that she was not certain when cross-examined that accused-
appellant was armed with an ice pick when the rape commenced; it was enough that he was holding
something that looked like an ice pick which engendered fear in her. With fear instilled in her mind, it is
understandable that she did not offer any resistance since any attempt to do so would only be futile.
Such failure on her part should not be taken to mean consent so as to make her a willing participant in
the sexual confrontation.

The Information charges accused-appellant with the special complex crime of robbery with rape. The
record shows that the prosecution has established that he committed both robbery and rape with the
intent to take personal property of another preceding the rape. Under Art. 294, par. (1), of the Revised
Penal Code, "x x x [a]ny person guilty of robbery with the use of violence against or intimidation of
persons shall suffer: 1. The penalty of reclusion perpetua to death, x x x when the robbery shall have
been accompanied by rape x x x x" Complaining witness Juditha Bautista was raped twice on the
occasion of the robbery. In this regard, this Court had declared in some cases that the additional rapes
committed on the same occasion of robbery would not increase the penalty.13 There were also cases,
however, where this Court ruled that the multiplicity of rapes committed could be appreciated as an
aggravating circumstance.14 Finally, in the recent case of People v. Regala,[15 the Court held that the
additional rapes committed should not be appreciated as an aggravating circumstance despite a
resultant "anomalous situation" wherein robbery with rape would be on the same level as robbery with
multiple rapes in terms of gravity.16 The Court realized that there was no law providing for the additional
rape/s or homicide/s for that matter to be considered as aggravating circumstance. It further observed
that the enumeration of aggravating circumstances under Art. 14 of the Revised Penal Code is exclusive,
unlike in Art. 13 of the same Code which enumerates the mitigating circumstances where analogous
circumstances may be considered, hence, the remedy lies with the legislature. Consequently, unless and
until a law is passed providing that the additional rape/s or homicide/s may be considered aggravating,
the Court must construe the penal law in favor of the offender as no person may be brought within its
terms if he is not clearly made so by the statute. Under this view, the additional rape committed by
accused-appellant is not considered an aggravating circumstance. Applying Art. 63, par. (2), of the
Revised Penal Code which provides that "(i)n all cases in which the law prescribes a penalty composed of
two indivisible penalties, the following rules shall be observed in the application thereof x x x x 2. (w)hen
there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser
penalty shall be applied," the lower penalty of reclusion perpetua should be imposed on accused-
appellant.
As to the award of damages to the complaining witness, an additional amount of P50,000.00 may be
given as damages ex delicto in line with recent jurisprudence.17cräläwvirtualibräry

WHEREFORE , the Decision of the court a quo finding accused-appellant FERNANDO SULTAN Y LATO
GUILTY of the special complex crime of robbery with rape and sentencing him to reclusion perpetua, to
pay Juditha M. Bautista P50,000.00 for moral damages, P5,180.00 for actual damages representing the
value of the personal properties plus the cash amount of P130.00 taken from her is AFFIRMED with the
MODIFICATION that the amount of P50,000.00 be added as civil indemnity in conformity with prevailing
jurisprudence. Costs against accused-appellant.

SO ORDERED.

34. People v. Ladjaalam, G.R. Nos. 136149-51, 19 September 2000

G.R. Nos. 136149-51 September 19, 2000

PEOPLE OF THE PHILIPPINES, appellee,

vs.
WALPAN LADJAALAM y MIHAJIL alias "WARPAN," appellant.

DECISION

PANGANIBAN, J.:

Republic Act No. 8294 penalizes simple illegal possession of firearms, provided that the person arrested
committed "no other crime." Furthermore, if the person is held liable for murder or homicide, illegal
possession of firearms is an aggravating circumstance, but not a separate offense. Hence, where an
accused was convicted of direct assault with multiple attempted homicide for firing an unlicensed M-14
rifle at several policemen who were about to serve a search warrant, he cannot be held guilty of the
separate offense of illegal possession of firearms. Neither can such unlawful act be considered to have
aggravated the direct assault.

The Case

Walpan Ladjaalam y Mihajil, also known as "Warpan," appeals before us the September 17, 1998
Decision1 of the Regional Trial Court (RTC) of Zamboanga City (Branch 16), which found him guilty of
three out of the four charges lodged against him.

Filed against appellant were four Informations,2 all signed by Assistant Regional State Prosecutor Ricardo
G. Cabaron and dated September 25, 1997. The first Information3 was for maintaining a den for the use
of regulated drugs. It reads as follows:

"That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, Walpan Ladjaalam being then the owner of a
residential house located at Rio Hondo,4 this City, conspiring and confederating together, mutually
aiding and assisting x x x his co-accused wife Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini, did then
and there wilfully, unlawfully and feloniously, maintain said house as a den, where regulated drug [was]
used in any form."5

The second Information6 charged appellant with illegal possession of firearms and ammunition. We
quote it below:

"That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, conspiring and confederating together, mutually
aiding and assisting with one another, without any justifiable reason or purpose other than to use it in
the commission of crime, did then and there, wilfully, unlawfully, and feloniously have in their
possession and under their custody and control, the following weapons, to wit: one (1) M14 rifle with SN
1555225 with magazines and seven (7) rounds of live ammunition; two (2) magazines with twenty (20)
and twenty[-one] (21) rounds of live [ammunition]; one (1) homemade caliber .38 revolver with five (5)
live ammunition; one (1) M-79 (single) rifle with pouch and with five (5) empty shell[s]; one (1) home
made caliber .38 with SN-311092 with five live ammunition and one empty shell of [a] cal. 38 x x x Smith
and Wesson; two (2) .38 Caliber paltik revolver with Serial Number 311092 and one defaced M79
grenade launcher paltik, without first having obtained the necessary license and or permit therefor from
authorities concerned, in flagrant violation of the aforementioned law."7

The third Information,8 for multiple attempted murder with direct assault, was worded thus:

"That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused being then armed with M-14 Armalite Rifles, M-16
Armalite Rifles and other assorted firearms and explosives, conspiring and confederating together,
mutually aiding and assisting x x x one another and with intent to kill, did then and there wilfully,
unlawfully and feloniously try and attempt to kill SPO1 WILLIAM B. JONES, JR., PO3 ENRIQUE C.
RIVERA[,] SPO1 AMADO A. MIRASOL, JR., and SPO1 RICARDO J. LACASTESANTOS, in the following
manner, to wit: by then and there firing their M-14 x x x Armalite Rifles, M-16 Armalite Rifles and other
assorted firearms and explosives, aimed and directed at the fatal parts of the bodies of the above-
named police officers, well known to the accused as members of the Philippine National Police,
Zamboanga City Police Office, and as such, agents of a person in authority, who at the time of the attack
were engaged in the performance of their duties, that is, on the occasion when said officers were about
to serve the Search Warrant legally issued by the Regional Trial Court, this City, to the person of the
accused thus commencing the commission of crime of multiple murder directly by overt acts, and if the
accused did not accomplish their unlawful purpose, that is, to kill the above-named Police Officers, it
was not by reason of their own voluntary desistance but rather because of the fact that all the above-
named police officers were able to seek cover during the firing and were not hit by the bullets and
explosives fired by the accused and also by the fact said police officers were able to wrestle with two (2)
of the accused namely: Walpan Ladjaalam y Mihajil a.k.a. ‘Warpan’ and Ahmad Sailabbi y Hajairani, who
were subdued and subsequently placed under arrest; whereas accused PO2 Nurhakim T. Hadjula was
able to make good his escape and has remained at-large."9

In the fourth Information, appellant was charged with illegal possession of drugs.10

On December 21, 1997, the cases against Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini were
dismissed upon motion of the Office of the City Prosecutor, which had conducted a reinvestigation of
the cases as ordered by the lower court. The accused were consequently released from jail.
The arraignment of appellant on all four (4) charges took place on January 6, 1998, during which he
entered a plea of not guilty.11 After pretrial, the assailed Decision was rendered, the dispositive part of
which reads:

"WHEREFORE, the Court finds accused WALPAN LADJAALAM y MIHAJIL a.k.a. ‘WARPAN’ -

"1. in Criminal Case No. 14636, GUILTY BEYOND REASONABLE DOUBT of Violation of Section
15-A, Article III, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972,
as amended, and SENTENCES said accused to the penalty of RECLUSION PERPETUA and to pay a
fine of FIVE HUNDRED THOUSAND (₱500,000.00) and to pay the costs;

"2. In Criminal Case No. 14637, NOT GUILTY of Violation of Section 16, Article III, in relation to
Section 21, Article IV, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of
1972, as amended, and ACQUITS him of said crime with costs de oficio;

"3. in Criminal Case No. 14638, GUILTY BEYOND REASONABLE DOUBT of the crime of Illegal
Possession of Firearm and Ammunition penalized under Presidential Decree No. 1866, as
amended by Republic Act. No. 8294, and SENTENCES said accused to suffer an indeterminate
penalty of SIX (6) YEARS of prision correccional as minimum to EIGHT (8) YEARS of prision
mayor as maximum and to pay a fine [of] THIRTY THOUSAND (P30,000.00) and pay the costs;

"4. in Criminal Case No. 14639, GUILTY BEYOND REASONABLE DOUBT of the crime of Direct
Assault with Multiple Attempted Homicide and SENTENCES said accused to an indeterminate
penalty of TWO (2) YEARS and FOUR (4) MONTHS of prision correccional as minimum to SIX (6)
YEARS of prision correccional as maximum and to pay a fine of ONE THOUSAND (P1,000.00) and
to pay the costs." (emphasis in the original)

Hence, this appeal.12

The Facts

Prosecution’s Version

In its Brief,13 the Office of the Solicitor General presents the facts in this wise:

"At 1:45 p.m. of September 24, 1997, PO3 Allan Marcos Obut filed an application for the issuance of a
search warrant against appellant, his wife and some John Does (Exh. C). After the search warrant was
issued about 2:30 p.m. of the same day, a briefing was conducted inside the office of the Anti-
Vice/Narcotics Unit of the Zamboanga City Police Office in connection with the service of the search
warrant. The briefing was conducted by SPO2 Felipe Gaganting, Chief of the Anti-Vice/Narcotics Unit.
During the briefing, PO3 Renato Dela Peña was assigned as presentor of the warrant. SPO1 Ricardo
Lacastesantos and PO3 Enrique Rivera were designated to conduct the search. Other policemen were
assigned as perimeter guards (TSN, March 3, 1998, pp. 33-36).

"After the briefing, more than thirty (30) policemen headed by Police Superintendent Edwin Soledad
proceeded to the house of appellant and his wife at Rio Hondo on board several police vehicles (TSN,
March 4, 1998, p. 32; April 22, 1998, p. 54). Before they could reach appellant’s house, three (3) persons
sitting at a nearby store ran towards the house shouting, ‘[P]olice, raid, raid’ (Ibid., March 3, 1998, pp.
41, 43-44; April 23, 1998, p. 4). When the policemen were about ten (10) meters from the main gate of
the house, they were met by a rapid burst of gunfire coming from the second floor of the house. There
was also gunfire at the back of the house (Ibid., March 5, 1998, pp. 14-16).

"SPO1 Mirasol, SPO2 Lacastesantos, PO3 Rivera, and PO3 Dela Peña who were with the first group of
policemen saw appellant fire an M14 rifle towards them. They all knew appellant. When they were fired
upon, the group, together with SPO2 Gaganting, PO3 Obut and Superintendent Soledad, sought cover at
the concrete fence to observe the movements at the second floor of the house while other policemen
surrounded the house (Ibid., March 4, 1998, pp. 50-51).

"In front of the house was an extension building connected to the concrete fence (Ibid., pp. 45-46, 57-
59, 73-76). Gaganting, Mirasol, Lacastesantos, Gregorio, and Obut entered the door of the extension
building. Gaganting opened the main (steel) gate of the house. The other members of the team then
entered. Lacastesantos and Mirasol entered the house through the main door and went inside the sala
of the ground floor while other policemen surrounded the house. Two (2) old women were in the sala
together with a young girl and three (3) children. One of the old women took the children to the second
floor while the young girl remained seated at the corner (Ibid., pp. 19-21).

"Lacastesantos and Mirasol proceeded to the second floor where they earlier saw appellant firing an
M14 rifle at them through the window. While they were going upstairs, appellant noticed their
presence. He went inside the bedroom and, after breaking and removing the jalousies, jumped from the
window to the roof of a neighboring house. Seeing this, Mirasol rushed downstairs and asked help from
the other members of the raiding team to arrest appellant. Lacastesantos went to the second floor and
shouted to the policemen outside not to fire in the direction of the second floor because there were
children. Mirasol and SPO1 Cesar Rabuya arrested appellant at the back of his house after a brief chase
(Ibid., pp. 21-23).

"At the second floor, Lacastesantos saw an M14 rifle (Exh. B-3) with magazine on top of the sofa at the
sala on the second floor (Ibid., P. 27). The rifle bore Serial No. 1555225. He removed the magazine from
the rifle and the bullet inside the chamber of the rifle. He counted seventeen (17) live ammunition
inside the magazine. He saw two (2) more M14 rifle magazines on the sofa, one with twenty (20) live
ammunition (Exh. G-3) and another with twenty-one (21) live ammunition (Exh. G-4). He likewise saw
three (3) M16 rifle magazines (Exh. G-2) in a corner at the second floor (TSN, March 5, 1998, pp. 23-32,
53-57).

"After Lacastesantos and Mirasol entered appellant’s house, Rivera, Dela Peña, Gregorio and Obut
followed and entered the house. After identifying themselves as members of the PNP Anti-
Vice/Narcotics Unit, Obut presented to the old women a copy of the search warrant. Dela Peña and
Rivera then searched appellant’s room on the ground floor in the presence of Punong Barangay Elhano
(TSN, March 3, 1998, pp. 41-43). On top of a table was a pencil case (Exh. J) with fifty (50) folded
aluminum foils inside (Exhs. J-1 to J-50), each containing methamphetamine hydrochloride or ‘shabu’.

"Other items were found during the search, namely, assorted coins in different denominations (Exh. W;
TSN, April 28, 1998, pp. 23-25), one (1) homemade .38 caliber revolver (Exh. B-2) with five (5) live
[ammunition], one (1) M79 single rifle with [a] pouch containing five (5) empty shells of an M79 rifle
(Exh. B-4), and one (1) empty shell of an M14 rifle (TSN, April 23, 1998, pp. 30-32).
"Rino Bartolome Locson was an informer of the Anti-Vice/Narcotics Unit of the Zamboanga Police. [O]n
the morning of September 24, 1997, he was instructed by SPO2 Gaganting to go to appellant’s house to
buy ‘shabu.’ Locson knew appellant as a seller of ‘shabu’ (TSN, April 22, 1998, p. 5) and had been to
appellant’s house about fifteen (15) times before. He went to Rio Hondo and arrived at appellant’s
house at 3:20 p.m. He bought P300.00 worth of ‘shabu’ from appellant. The latter got three (3) decks of
shabu from his waist bag. Appellant instructed Locson to go behind the curtain where there was a table.
There were six (6) persons already smoking. There was a lighted kerosene lamp made of a medicine
bottle placed on the table. They asked Locson to smoke ‘shabu’ and Locson obliged. He placed the three
(3) decks of ‘shabu’ he bought on the table (Ibid., pp. 8-15).

"While they were smoking ‘shabu,’ Locson heard gunfire coming from appellant’s house. They all stood
and entered appellant’s compound but were instructed to pass [through] the other side. They met
appellant at the back of his house. Appellant told them to escape ‘because the police are already here.’
They scampered and ‘ran away because there were already shots.’ Locson jumped over the fence and
ran towards the seashore. Upon reaching a place near the Fisheries School, he took a tricycle and went
home (Ibid., pp. 17-19).

"The following day, September 25, 1997, he went to the police station and executed an affidavit (Exh.
M) narrating what transpired at appellant’s house [o]n the afternoon of September 24, 1997.

"After the search and before returning to the police station, P03 Dela Peña prepared a ‘Receipt for
Property Seized’ (Exh. P & 3) listing the properties seized during the search. The receipt was signed by
Dela Peña as the seizure officer, and by Punong Barangay Hadji Hussin Elhano and radio reporter Jun
Cayona as witnesses. A copy of the receipt was given to appellant but he refused to acknowledge the
properties seized (TSN, April 23, 1998, pp. 11-12).

"An examination conducted by Police Inspector Mercedes D. Diestro, Forensic Chemist of the PNP Crime
Laboratory Service Office 9, on the paraffin casts taken from both hands of appellant yielded positive for
gunpowder nitrates (Exh. A-3), giving rise to the possibility that appellant had fired a gun before the
examination (TSN, March 3, 1998, p. 11). Gunpowder residue examinations conducted on September
26, 1997 showed that the following firearms ‘were fired’ (Exh. B-5): a .38 caliber revolver (homemade)
with Serial No. 311092 (Exh. B-1), another .38 caliber revolver (homemade) without a serial number
(Exh. B-2), a Cal. 7.62 mm M14 U.S. rifle with Serial No. 1555225 (Exh. B-3), and an M79 rifle without a
serial number (Exh. B-4). They were fired within five (5) days prior to the examination (TSN, March 3,
1998, pp. 16-21).

"With respect to the crystalline substances, an examination conducted by Police Inspector Susan M.
Cayabyab, likewise a Forensic Chemist of the PNP Crime Laboratory Service Office 9, on the fifty (50)
pieces of folded aluminum foils each containing white crystalline granules with a total weight of 1.7426
grams (Exh. J-1 to J-50) yielded positive results for the presence of methamphetamine hydrochloride
(shabu) (Exh. L). However, the examination of one (1) crystalline stone weighing 83.2674 grams (Exh. K)
yielded negative results for the presence of methamphetamine hydrochloride (Exh. L).

"The records of the Regional Operation and Plans Division of the PNP Firearm and Explosive Section
show that appellant ‘had not applied/filed any application for license to possess firearm and
ammunition or x x x been given authority to carry [a] firearm outside of his residence’ (Exh. X)"14
Defense’s Version

Appellant Ladjaalam agrees with the narration of facts given by the lower court.15 Hence, we quote the
pertinent parts of the assailed Decision:

"Accused Walpan Ladjaalam y Mihajil a.k.a. ‘Warpan’, 30 years old, married, gave his occupation as
‘smuggling’ (tsn, p. 2, May 4, 1998). He used to go to Labuan in Malaysia and bring cigarettes to the
Philippines without paying taxes (tsn, pp. 40-41, id). He said that his true name [was] Abdul Nasser
Abdurakman and that Warpan or Walpan Ladjaalam [was] only his ‘alias’. However, he admitted that
more people kn[e]w him as Walpan Ladjaalam rather than Abdul Nasser Abdurakman (tsn. pp. 39-40;
46-47, id). He testified that [o]n the afternoon of September 24, 1997, when he was arrested by the
police, he was sleeping in the house of Dandao, a relative of his wife. He was alone. He slept in Dandao’s
house and not in his house because they ha[d] ‘a sort of a conference’ as Dandao’s daughter was leaving
for Saudi Arabia. He noticed the presence of policemen in his neighborhood at Aplaya, Rio Hondo when
he heard shots. He woke up and went out of the house and that was the time that he was arrested. He
said he was arrested ‘xxx [at] the other side of my house; at the other side of the fence where I was
sleeping. xxx. At the back of my house’ (tsn, p. 7, id.). He does not know who arrested him ‘considering
that the one who arrested me does not have nameplate.’ He was arrested by four (4) persons. Not one
of those who arrested him testified in Court. He was handcuffed and placed inside a jeep parked at Rio
Hondo Elementary School. According to him, he did not fire a gun at the policemen from [t]he second
floor of his house. He said the ‘policemen’ [were] ‘the one[s] who fire[d] at us’ (tsn, p. 5, id.). If he fired a
gun at the policemen for sure they [would] die ‘[b]ecause the door is very near x x x the vicinity of my
house’. He does not own the M14 rifle (Exh. ‘B-3’) which according to policemen, he used in firing at
them. The gun does not belong to him. He does not have a gun like that (tsn, p. 15, id.). A policeman also
owns an M14 rifle but he does not know the policeman (tsn, pp. 16-17, id). He said that the M79 rifle
(Exh. ‘B-4’), the three (3) empty M16 rifle magazines (Exh. ‘G’; ‘G-1’ to ‘G-2’), the two (2) M14 magazines
with live ammunition (Exh. ‘G-3’; ‘G-4’); the two (2) caliber .38 revolvers (Exhs. ‘B-1’; ‘B-2’), the fifty (50)
aluminum foils each containing shabu (Exhs. ‘J-1’ to ‘J-50’) placed inside a pencil case (Exh. ‘J’, the
assorted coins placed inside a blue bag (Exh. ‘W’) and the white crystalline stone (Exh. ‘K’) all do not
belong to him. He said that the policemen just produced those things as their evidence. The firearms do
not belong to him. They were brought by the policemen (tsn, p. 43, May 4, 1998). Regarding the blue
bag containing assorted coins, he said: ‘that is not ours, I think this (is) theirs, xxx they just brought that
as their evidence’ (tsn, pp. 15-24, id.)

"Walpan Ladjaalam declared there were occupants who were renting his extension house. He affirmed
that he owns that house. Four (4) persons were staying in the extension house. He could only recognize
the husband whose name is Momoy. They are from Jolo. They left the place already because they were
afraid when the police raided the place. (tsn, pp. 8-10, May 4, 1998). He does not know prosecution
witness Rino Locson y Bartolome. Although Locson recognized him, in his case he does not know Locson
and he does not recognize him (tsn, p.11, id). He did not sell anything to Locson and did not entertain
him. He is not selling shabu but he knows ‘for a fact that there are plenty of person who are engaged in
selling shabu in that place’, in that area known as Aplaya, Rio Hondo. One of them is Hadji Agbi (tsn,
pp.11-14, id).

"After his arrest Walpan Ladjaalam was brought to the police station where he stayed for one day and
one night before he was transferred to the City jail. While at the police station, he was not able to take a
bath. He smokes two packs of cigarette a day. While he was at the police station, he smoked [a]
cigarette given to him by his younger sister. He lighted the cigarettes with [a] match. From the police
station, he was brought to the PNP Regional Office at R.T. Lim Boulevard where he was subject to
paraffin examination (tsn, pp. 24-26, May 4, 1998).

"During the raid conducted on his house, his cousin Boy Ladjaalam, Ating Sapadi, and Jecar (Sikkal)
Usman, the younger brother of his wife were killed. Walpan Ladjaalam said that he saw that ‘it was the
policeman who shot them[,] only I do not know his name." They were killed at the back of his house. He
said that no charges were filed against the one responsible for their death (tsn, pp. 30-33- May 4, 1998).

"Anilhawa Ahamad, more or less 80 years old, a widow was in the house of Walpan Ladjaalam whom he
calls ‘Hadji Id’ at the time the police raided the house. She is the mother of Ahma Sailabbi. She was
together with Babo Dandan, two small children and a helper when ‘soldiers’ entered the house. ‘(W)hen
they arrived, they kept on firing (their guns) even inside the house’ (tsn, p.5, May 5, 1998). They were
armed with short and long firearms. They searched the house and scattered things and got what they
wanted. They entered the room of Walpan Ladjaalam. They tried to open a bag containing jewelry.
When Anilhawa tried to bring the bag outside the room, they grabbed the bag from her and poked a gun
at her. At that time Walpan Ladjaalam was not in the house. Ahamad Sailabbi was also not in the house.
A Search Warrant was shown to Anilhawa after the search was conducted and just before the policemen
left the place. Anilhawa Ahamad said that ‘it was already late in the afternoon[;] before they left that
was the time the Search Warrant (was) given to us by xxx Barangay Captain Hussin Elhano’ (tsn, pp.6-8,
May 5, 1998). Barangay Chairman Elhano arrived ‘already late in the afternoon, almost sundown’ (tsn, p.
9, id). Anilhaw declared that aside from a bag containing jewelry and a bag full of money, she had not
seen anything else that was taken from Walpan Ladjaalam’s house (tsn, pp. 9-12, id).

"Akmad (Ahmad) Sailabbi, 37 years old, married testified that about 4:00 o’clock [o]n the afternoon of
September 24, 1997, ha was standing in front of his house when policemen arrived and immediately
arrested him. He was about to go to the City Proper to buy articles he was intending to bring to Sabah.
He had ‘around P50,000.00’ placed inside a waist bag tied around his waist. The policemen told him to
lie down in prone position and a policeman searched his back. They pulled his waist bag and took his
DiaStar wrist watch. He was shot three times and was hit on the forehead leaving a scar. His injury was
not treated. He was taken to the police station where he was detained for one day and one night. He
was detained at the City Jail for three months and five days after which he was released (tsn, pp. 25-29,
May 5, 1998).

"Melba Usma, 20 years old, a widow, testified that [o]n the afternoon of September 24, 1997, she was in
the house of her parents lying together with her husband Sikkal Usma. There is only one house between
her parents’ house and the house of Walpan Ladjaalam. Her husband Sikkal Usman is the brother of
Nur-in Ladjaalam, Walpan’s wife. When Melba heard shots, she went downstairs. A policeman was
looking for her husband. The policeman called her husband. When her husband went down, he was
instructed by the policeman to lie down in prone position. Then the policeman shot her husband. The
policeman had two other companions who also shot her husband while he was lying down in prone
position (tsn, pp.2-7, May 5, 1998).

"Murkisa Usman, 30 years old, married, declared that [o]n the afternoon of September 24, 1997, she
was sitting at the door of her house watching her children playing when a motorcyle, driven by a person,
stopped near her house. The driver was Gaganting whom she called a soldier. He went down from his
motorcycle, pulled a gun and poked it at Murkisa. Murkisa stood up and raised her hands. She got her
children and when she was about to enter the room of her house, Gaganting again poked a gun at her
and ‘there was a shot.’ As a result of firing, three persons died, namely, Sikkal Usman, Boy Ladjaalam
and Atip Sapali Sali (tsn, pp. 8-10, May 5, 1998).

"Barangay Captain Hadji Hussin Elhano, 51 years old, testified that about 4:00 o ‘clock [o]n the
afternoon of September 24, 1997, he was fetched by two policemen at Catabangan where he was
attending a seminar. Because of traffic along the way, they arrived at the Rio Hondo already late in the
afternoon. He saw policemen were already inside the house. Upon entering the gate, he saw Walpan at
the gate already handcuffed. Walpan called him but the police advised him not to approach Walpan. The
search was already over and things were already taken inside the house. When he went inside the
house, he saw ‘the things that they (policemen) searched, the firearms and the shabu‘ (tsn, p. 17. May 8,
1998). He did not see the Search Warrant. What was shown to him were the things recovered during the
search which were being listed. They were being counted and placed on a table. ‘Upon seeing the things
that were recovered during the search, I just signed the receipt (Exh. "P"; "P-1") of the things x x x taken
during the search" (tsn, pp. 17-18. May 8, 1998). He saw three dead bodies at the side of the fence when
he went to the other side of the house. The three persons were killed outside the fence of Walpan
Ladjaalam (tsn, p. 18, id)."16

The Trial Court’s Ruling

The trial court observed that the house of appellant was raided on September 24, 1997 by virtue of
Search Warrant No. 20 issued on the same day. However, the lower court nullified the said Warrant
because it had been issued for more than one specific offense,17 in violation of Section 3, Rule 126 of the
Rules of Court.18 The court a quo ruled:

"It should be stated at the outset that Search Warrant No. 20 is totally ‘null and void’ because it was
issued for more than one specific offense x x x contrary to Section 3, Rule 1[2]6 of the Rules of Court
which provides that ‘A search warrant shall not issue but upon probable cause in connection with one
specific offense xxx’. In Tambasan vs. People, 246 SCRA 184 (1995), the Supreme Court ruled that a
search warrant for more than one offense - a ‘scatter shot warrant’ - violates Section 3, Rule 126 of the
[R]evised Rules of Court and is ‘totally null and void.’"19 (emphasis in the original)

Nevertheless, the trial court deemed appellant’s arrest as valid. It emphasized that he had shot at the
officers who were trying to serve the void search warrant. This fact was established by the testimonies
of several police officers,20 who were participants in the raid, and confirmed by the laboratory report on
the paraffin tests conducted on the firearms and appellant.21 Additionally, the judge noted that
Appellant Ladjaalam, based on his statements in his Counter Affidavit, impliedly contradicted his
assertions in open court that there had been no exchange of gunfire during the raid.22 The trial court
concluded that the testimonies of these officers must prevail over appellant’s narration that he was not
in his house when the raid was conducted.

Prescinding from this point, the court a quo validated the arrest of appellant, reasoning thus:

"Under the circumstances, the policemen ‘had authority to pursue and arrest Walpan Ladjaalam and
confiscate the firearm he used in shooting at the policemen and to enter his house to effect said arrest
and confiscation of the firearm.’ Under Rule 113, Section 5 (a), of the Rules of Court, ‘A peace officer or a
private person may, without a warrant, arrest a person xxx (w)hen in his presence, the person to be
arrested has committed, is actually committing, or is attempting to commit an offense.’ An offense is
committed in the presence or within the view of an officer, within the meaning of the rule authorizing
an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the
disturbances created thereby and proceeds at once to the scene thereof. At the time the policemen
entered the house of accused Walpan Ladjaalam after he had fired shots at the policemen who intended
to serve the Search Warrant to him, the accused was engaged in the commission of a crime, and was
pursued and arrested after he committed the crime of shooting at the policemen who were about to
serve the Search Warrant."23

As a consequence of the legal arrest, the seizure of the following was also deemed valid: the M14 rifle
(with a magazine containing seventeen live ammunition)24 used by appellant against the police
elements, two M14 magazines, and three other M16 rifle magazines.25 The trial court observed that
these items were in "plain view" of the pursuing police officers. Moreover, it added that these same
items were "evidence [of] the commission of a crime and/or contraband and therefore, subject to
seizure"26 since appellant "had not applied for a license to possess firearm and had not been given
authority to carry firearm outside his residence."27

For being incredible and unsupported by evidence, appellant’s claim that the items that were seized by
the police officers had been planted was disbelieved by the trial court. It ruled that if the police officers
wanted to plant evidence to incriminate him, they could have done so during the previous raids or those
conducted after his arrest. To its mind, it was unbelievable that they would choose to plant evidence,
when they were accompanied by the barangay chairman and a radio reporter who might testify against
them. It then dismissed these allegations, saying that frame-up, like alibi, was an inherently weak
defense.28

The trial court also convicted the accused of the crime of maintaining a drug den. It reasoned as follows:

"The testimony of Rino Bartolome Locson, corroborated by SPO1 Ricardo Lacastesantos and SPO1
Amado Mirasol, Jr. clearly established that Walpan Ladjaalam operated and maintained a drug den in his
extension house where shabu or methamphetamine hydrochloride, a regulated drug, was sold, and
where persons or customers bought and used shabu or methamphetamine hydrochloride by burning
the said regulated drug and sniffing its smoke with the use of an aluminum foil tooter. A drug den is a
lair or hideaway where prohibited or regulated drugs are used in any form or are found. Its existence
[may be] proved not only by direct evidence but may also be established by proof of facts and
circumstances, including evidence of the general reputation of the house, or its general reputation
among police officers. The uncorroborated testimony of accused Walpan Ladjaalam a.k.a. Warpan’ that
he did not maintain an extension house or a room where drug users who allegedly buy shabu from him
inhales or smokes shabu cannot prevail over the testimonies of Locson, SPO1 Lacastesantos, and SPO1
Mirasol. He admitted that he is the owner of the extension house but he alleged that there were four (4)
occupants who rented that extension house. He knew the name of only one of the four occupants who
are allegedly from Jolo, a certain Momoy, the husband. Aside from being uncorroborated, Walpan’s
testimony was not elaborated by evidence as to when or for how long was the extension house rented,
the amount of rental paid, or by any other document showing that the extension house was in fact
rented. The defense of denial put up by accused Walpan Ladjaalam a.k.a. 'Warpan’ is a weak defense.
Denial is the weakest defense and cannot prevail over the positive and categorical testimonies of the
prosecution witnesses. Denials, if unsubstantiated by clear and convincing evidence, are negative and
self-serving evidence which deserve no weight in law and cannot be given evidentiary weight over the
testimony of credible witnesses who testify on affirmative matters. As between the positive declaration
of the prosecution witnesses and the negative statements of the accused, the former deserve more
credence."29

In conclusion, the trial court explained appellant’s liability in this manner:

"x x x. The act of the accused in firing an M14 rifle to the policemen who were about to enter his house
to serve a search warrant constitutes the crime of direct assault with multiple attempted homicide[,] not
multiple attempted murder with direct assault[,] considering that no policeman was hit and injured by
the accused and no circumstance was proved to qualify the attempted killing to attempted murder.

"The accused Walpan Ladjaalam a.k.a. ‘Warpan’ cannot be held liable [for] the crime of Violation of
Section 16, Article III, in relation to Section 21, Article IV, of Republic Act 6425 otherwise known as the
Dangerous Drugs Act of 1992, as amended, because the fifty (50) pieces of folded aluminum foils having
a total weight of 1.7426 grams all containing methamphetamine hydrochloride or shabu allegedly found
in his house are inadmissible as evidence against him considering that they were seized after [a] search
conducted by virtue of Search Warrant No. 20 which is totally null and void as it was issued for more
than one offense, and were not found in ‘plain view’ of the police officers who seized them. Neither
could the accused be held liable for illegal possession of firearms and ammunition except for the (1)
M14 rifle with Serial Number 1555225 and with magazine containing fifteen (15) live ammunition and
two more M14 rifle magazines with twenty (20) and twenty-one (21) live ammunition respectively
considering that the policemen who recovered or seized the other firearms and ammunition did not
testify in court. The blue bag containing assorted coins cannot be returned to the accused Walpan
Ladjaalam a.k.a. ‘Warpan’ because according to the accused the blue bag and assorted coins do not
belong to him[;] instead the said assorted coins should be turned over to the National Treasury."30

The Issues

In his Brief, appellant submits the following Assignment of Errors:

"The trial court erred when it concluded that appellant Walpan Ladjaalam y Mihajil [had] fired first at
the police officers who went to his house to serve a search warrant upon him which led to an exchange
of fire between Ladjaalam and the police officer.

II

"The trial court erred when it denied the appellant the right and opportunity for an ocular inspection of
the scene of the firefight and where the house of the appellant [was] located.

III

"The trial court erred when it ruled that the presumption of regularity in the performance of their duties
[excluded] the claim of the appellant that the firearms and methamphetamine hydrochloride (i.e. shabu)
were planted by the police."31
In the interest of simplicity, we shall take up these issues seriatim: (a) denial of the request for ocular
inspection, (b) credibility of the prosecution witnesses, and (c) the defense of frame-up. In addition, we
shall also discuss the proper crimes and penalties to be imposed on appellant.

The Court’s Ruling

The appeal has no merit.

First Issue: Denial of Request for Ocular Inspection

Appellant insists that the trial court erred in denying his request for an ocular inspection of the
Ladjaalam residence. He argues that an ocular inspection would have afforded the lower court "a better
perspective and an idea with respect to the scene of the crime."32 We do not agree.

We fail to see the need for an ocular inspection in this case, especially in the light of the clear
testimonies of the prosecution witnesses.33 We note in particular that the defense had even requested
SPO1 Amado Mirasol Jr. to sketch the subject premises to give the lower court a fairly good idea of
appellant’s house.34 Viewing the site of the raid would have only delayed the proceedings.35 Moreover,
the question whether to view the setting of a relevant event has long been recognized to be within the
discretion of the trial judge.36 Here, there is no reason to disturb the exercise of that discretion.37

Second Issue: Credibility of Prosecution Witnesses

Appellant, in essence, questions the credibility of the prosecution witnesses.38 Suffice it to state that the
trial court’s assessment of their credibility is generally accorded respect, even finality.39 After carefully
examining the records and finding no material inconsistencies to support appellant’s claim, we cannot
exempt this case from the general rule.40 Quite the contrary, the testimonies of these witnesses
positively showed that appellant had fired upon the approaching police elements, and that he had
subsequently attempted to escape. SPO1 Amado Mirasol Jr.41 testified thus:

"PROSECUTOR NUVAL:

Q: And, this trail is towards the front of the house of the accused?

A: Yes.

Q: And it’s there where you were met by a volley of fire?

A: Yes, Your Honor.

COURT:

Q: How far were you from the concrete fen[c]e when you were met by a volley of fire? ... You said you
were fired upon?

A: More or less, five (5) meters.

 xxx xxx xxx

PROSECUTOR NUVAL:

Q: Now, you said you were able to enter the house after the gate was opened by your colleague Felipe
Gaganting ... I will reform that question.

Q: Who opened the gate Mr. Witness?

A: SPO2 Felipe Gaganting, Efren Gregorio and Allan Marcos Obut.

Q: And, at that time you were hiding at the concrete fence?

A: Yes.

Q: Now, when this gate was opened, you said you went inside the house, right?

A: Yes.

Q: What did you see inside the house?

A: I, together with SPO1 Ricardo Lacastesantos, entered the main door of the house of Walfran [sic]
Ladjaalam at the ground floor. We went inside the sala on the ground floor of his house[;] I saw two old
woman.

xxx xxx xxx

PROSECUTOR NUVAL:

Q: Now, what did you do with these two old women?

A: I did not mind those two old women because those two women were sitting on the ground floor. I
was concentrating on the second floor because Ladjaalam was firing towards our group so, I, together
with Ricardo Lacastesantos, went upstairs to the second floor of the house.

Q: Were you able to go to the second floor of the house?

A: Yes.

Q: What happened when you were already on the second floor?

A: While we were proceeding to the second floor, Walfan [sic] Ladjaalam, noticed our presence and
immediately went inside the bedroom [o]n the second floor and he went immediately and jumped from
the window of his house x x x leading to the roof of the neighbor’s house.

xxx xxx xxx

COURT:

Reform. That is leading

Q: What happened when you entered and he jumped to the roofing of the neighbor’s house?

A: Immediately, I myself, we immediately went downstairs and asked the assistance of the members of
the raiding team to arrest Walfan Ladjaalam.

xxx xxx xxx

PROSECUTOR NUVAL:

Q: Were you able to go down?

A: Yes.

Q: What happened when you were there?

A: We immediately went out and I asked the assistance of the members of the raiding team and the
investigator of the unit especially SPO1 Cesar Rabuya. I was able to manage to arrest Walfan
Ladjaalam."42

What happened thereafter was narrated by Senior Police Officer Ricardo Lacastesantos,43 as follows:

"Q: What did you notice [o]n the second floor?

A: I went where the firing came from, so, I saw [an] M14 rifle and I shouted from the outside, ‘do not fire
at the second floor because there [are] a lot of children here.’

Q: Now, that rifle you said [was an] M14, where did you find this?

A: At the sala set.

Q: This sala set where is this located?

A: Located [on] the second floor of the house.

Q: Is there a sala [o]n the second floor?

A: Yes.

Q: Can you still identify that M14 rifle which you said you recovered from the sale set?

A: Yes.

Q: Why can you identify that?

A: The Serial No. of M14 is 1555225 and I marked it with my initial.

Q: Now, I have here M14 rifle[;] will you please tell us where is the Serial No. of this?

A: 1555225 and I put my initial, RJL.

FISCAL NUVAL:

This is already marked as our Exhibit ‘B-3’ with magazine, one magazine and seven round [ammunition].

Q: After recovering this, what did you do with this firearm?

A: When I recovered it I removed the bullets inside the chamber[.] I removed the magazine and I turned
it over to the investigator.

Q: Where did you turn it over?

A: At the crime scene.

Q: Now, that magazine, can you still identify this?

A: Yes.

Q: Why?

A: I put x x x markings.

xxx xxx xxx

COURT:

So, a[si]de from the magazine attached to the M14 rifle you found six more magazines?

A: Yes, so, all in all six magazines, three empty M16 rifle magazines and three M14.

Q: The M16 magazines [were] empty?

A: Empty.

Q: How about the M14?

A: Found with [ammunition].

xxx xxx xxx

Q: So, where are the three M16 magazines?

A: In the corner.

Q: What did you do with [these] three magazines of M16?

A: I turned [them] over to the investigator.

Q: Can you identify them?

A: Yes, because of my initials[.]

Q: Where are your initials?

A: On the magazines.

Q: RJL?

A: RJL."44

These were confirmed by the results of the paraffin tests conducted on appellant and on the weapons
seized during the raid. Both of his hands as well as the weapons, particularly the M-14 which he had
used, were positive for gunpowder nitrate. Police Inspector Mercedes Delfin-Diestro explained in open
court:

"Q: Okay. Now, what was the result of your examination, Madam Witness?

A: The result of the examination [was] that both hands of the subject person, ha[d] presence of gun
powder nitrates.

Q: What do you mean Madam Witness, what does that indicate?

A: It indicates there is presence of powder nitrates.

Q: Can we conclude that he fired a gun?

A: I cannot conclude that he fired a gun because there are so many circumstances [why] a person [would
be] positive on his hands for gun powder nitrates.

Q: But, most likely, he fired a gun?

A: Yes.

xxx xxx xxx

PROSECUTOR NUVAL:

Q: What about, Madam Witness this Exhibit ‘B-3’, which is the M14 rifle. What did you do with this?
A: SPO3 Abu did the swabbing both in the chamber and the barrel wherein I observed there [were] black
and traces of brown residue on the bolt, chamber and in the barrel.

Q: And, that indicates Madam Witness...?

A: It indicates that the gun was fired.

Q: Recently?

A: Because of the traces of brown residue, it could be possible that the gun was fired before the incident
x x x.

COURT:

Q: There is also black residue?

A: Yes.

Q: What does it indicate?

A: It indicates that the firearm was recently fired.

Q: And, where is this swab used at the time of the swabbing of this Exhibit?

A: This one.

PROSECUTOR NUVAL:

May we ask that this be marked as Exhibit ‘B-3-A’.

COURT:

Q: The firing there indicates that the gun was recently fired, during the incident?

A: Yes.

Q: And also before the incident it was fired because of the brown residue?

A: Yes, Your Honor."45 (emphasis supplied)

Duly proven from the foregoing were the two elements46 of the crime of illegal possession of firearms.
Undoubtedly, the established fact that appellant had fired an M-14 rifle upon the approaching police
officers clearly showed the existence of the firearm or weapon and his possession thereof. Sufficing to
satisfy the second element was the prosecution’s Certification47 stating that he had not filed any
application for license to possess a firearm, and that he had not been given authority to carry any
outside his residence.48 Further, it should be pointed out that his possession and use of an M-14 rifle
were obviously unauthorized because this weapon could not be licensed in favor of, or carried by, a
private individual.49

Third Issue: Defense of Frame-up

From the convoluted arguments strewn before us by appellant, we gather that the main defense he
raises is frame-up. He claims that the items seized from his house were "planted," and that the entire
Zamboanga police force was out to get him at all cost.

This Court has invariably held that the defense of frame-up is inherently weak, since it is easy to
fabricate, but terribly difficult to disprove.50 Absent any showing of an improper motive on the part of
the police officers,51 coupled with the presumption of regularity in the performance of their duty, such
defense cannot be given much credence.52 Indeed, after examining the records of this case, we conclude
that appellant has failed to substantiate his claim. On the contrary, his statements in his Counter
Affidavit are inconsistent with his testimony during the trial.53 He testified thus:

"Q Now, Mr. Witness, do you remember having executed an Affidavit/ a Counter-Affidavit?

A I could not remember.

Q I have here a Counter-Affidavit and it was signed before this representation on the 8th day of
December 1997[;] tell us whose signature is this appearing above the typewritten name

FISCAL NUVAL:

Q . . . . Walpan Ladjaalam, whose signature is this?

(Showing)

A Yes, Sir. This is mine.

Q Now, in paragraph[s] 1,2,3,4,5,6,7 and 8; you stated in this Counter-Affidavit which I quote: ‘that I was
resting and sleeping when I heard the gunshots and I noticed that the shots were directed towards our
house.. and I inspected and x x x we were attacked by armed persons.. and I was apprehended by the
persons who attacked x x x our house’; [the] house you are referring to [in] this paragraph, whose house
[are you] referring to, is this [what] you are referring to [as] your house or the house of your neighbors
[from] which you said you heard gunshots?

A Our house.

Q Now, in paragraph 6 of your Counter-Affidavit you stated and I quote: ‘that [o]n that afternoon of
September 24, 1997, I was at home in my house Aplaya, Riohondo, Bo. Campo Muslim, my companions
in my house [were] the two old women and my children, is this correct?

A They were not there.

Q Now, in that statement Mr. Witness, you said that you were at home in [your] house at Aplaya,
Riohondo, Bo. Campo Muslim[;] which is which now, you were in your house or you were in your
neighbors[‘] house at that time when you heard gunshots?

A I was in the house near my house.

Q So, your statement particularly paragraph 6 of your Counter-Affidavit that you were at home in [your]
house at Aplaya Riohondo Bo. Campo Muslim, is x x x not correct?

A Yes, Sir. This is not correct."54

Crime and Punishment

The trial court convicted appellant of three crimes: (1) maintenance of a drug den, (2) direct assault with
attempted homicide, and (3) illegal possession of firearms. We will discuss each of these.

Maintenance of a Drug Den

We agree with the trial court that appellant was guilty of maintenance of a drug den, an offense for
which he was correctly sentenced to reclusion perpetua. His guilt was clearly established by the
testimony of Prosecution Witness Rino Bartolome Locson, who himself had used the extension house of
appellant as a drug den on several occasions, including the time of the raid. The former’s testimony was
corroborated by all the raiding police officers who testified before the court. That appellant did not deny
ownership of the house and its extension lent credence to the prosecution’s story.

Direct Assault with Multiple Attempted Homicide

The trial court was also correct in convicting appellant of direct assault55 with multiple counts of
attempted homicide. It found that "[t]he act of the accused [of] firing an M14 rifle [at] the policemen[,]
who were about to enter his house to serve a search warrant x x x" constituted such complex crime.56

We note that direct assault with the use of a weapon carries the penalty of prision correccional in its
medium and maximum periods, while attempted homicide carries the penalty of prision
correccional.57 Hence, for the present complex crime, the penalty for direct assault, which constitutes
the "most serious crime," should be imposed and applied in its maximum period.58

Illegal Possession of Firearms

Aside from finding appellant guilty of direct assault with multiple attempted homicide, the trial court
convicted him also of the separate offense of illegal possession of firearms under PD 1866, as amended
by RA 8294, and sentenced him to 6 years of prision correccional to 8 years of prision mayor.

The Office of the Solicitor General (OSG) disagrees, on the ground that the trial court should not have
applied the new law. It contends that under the facts of the case, the applicable law should have been
PD 1866, as worded prior to its amendment by RA 8294.
The trial court’s ruling and the OSG’s submission exemplify the legal community’s difficulty in grappling
with the changes brought about by RA 8294. Hence, before us now are opposing views on how to
interpret Section 1 of the new law, which provides as follows:

"SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read
as follows:

"Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or

Ammunition Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. --
The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand
pesos (₱15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire,
dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of
similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be
used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed.

"The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (₱30,000) shall
be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in
diameter than .30 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered
firearms but considered powerful such as caliber .357 and caliber .22 centerfire magnum and other
firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no
other crime was committed by the person arrested.

"If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed
firearm shall be considered as an aggravating circumstance.

"If the violation of this Section is in furtherance of or incident to, or in connection with the crime of
rebellion or insurrection, sedition, or attempted coup d’etat, such violation shall be absorbed as an
element of the crime of rebellion or insurrection, sedition, or attempted coup d’etat.

"The same penalty shall be imposed upon the owner, president, manager, director or other responsible
officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly
allow any of the firearms owned by such firm, company, corporation or entity to be used by any person
or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly
allow any of them to use unlicensed firearms or firearms without any legal authority to be carried
outside of their residence in the course of their employment.

"The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm
outside his residence without legal authority therefor."

Citing People v. Jayson,59 the OSG argues that the foregoing provision does not cover the specific facts of
this case. Since another crime -- direct assault with multiple unlawful homicide -- was committed,
appellant cannot be convicted of simple illegal possession of firearms under the second paragraph of the
aforecited provision. Furthermore, since there was no killing in this case, illegal possession cannot be
deemed as an aggravating circumstance under the third paragraph of the provision. Based on these
premises, the OSG concludes that the applicable law is not RA 8294, but PD 1866 which, as worded prior
the new law, penalizes simple illegal possession of firearms even if another crime is committed at the
same time.60
Applying a different interpretation, the trial court posits that appellant should be convicted of illegal
possession of firearms, in addition to direct assault with multiple attempted homicide. It did not explain
its ruling, however. Considering that it could not have been ignorant of the proviso61 in the second
paragraph, it seemed to have construed "no other crime" as referring only to homicide and murder, in
both of which illegal possession of firearms is an aggravating circumstance. In other words, if a crime
other than murder or homicide is committed, a person may still be convicted of illegal possession of
firearms. In this case, the other crime committed was direct assault with multiple attempted homicide;
hence, the trial court found appellant guilty of illegal possession of firearms.

We cannot accept either of these interpretations because they ignore the plain language of the statute.
A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime,
there can be no separate offense of simple illegal possession of firearms. Hence, if the "other crime" is
murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a
separate offense. Since direct assault with multiple attempted homicide was committed in this case,
appellant can no longer be held liable for illegal possession of firearms.

Moreover, penal laws are construed liberally in favor of the accused.62 In this case, the plain meaning of
RA 8294’s simple language is most favorable to herein appellant. Verily, no other interpretation is
justified, for the language of the new law demonstrates the legislative intent to favor the
accused.63 Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of
firearms and direct assault with attempted homicide. Moreover, since the crime committed was direct
assault and not homicide or murder, illegal possession of firearms cannot be deemed an aggravating
circumstance.

We reject the OSG’s contention that PD 1866, as worded prior to its amendment by RA 8294, should be
applied in this case.1âwphi1 When the crime was committed on September 24, 1997, the original
language of PD 1866 had already been expressly superseded by RA 8294 which took effect on July 6,
1997.64 In other words, no longer in existence was the earlier provision of PD 1866, which justified a
conviction for illegal possession of firearms separate from any other crime. It was replaced by RA 8294
which, among other amendments to PD 1866, contained the specific proviso that "no other crime was
committed."

Furthermore, the OSG’s reliance on People v. Jayson65 is misplaced. True, this Court sustained the
conviction of appellant for illegal possession of firearms, although he had also committed homicide. We
explained, however, that "the criminal case for homicide [was] not before us for consideration."

Just as unacceptable is the interpretation of the trial court. We find no justification for limiting
the proviso in the second paragraph to murder and homicide. The law is clear: the accused can be
convicted of simple illegal possession of firearms, provided that "no other crime was committed by the
person arrested." If the intention of the law in the second paragraph were to refer only to homicide and
murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not
distinguish, neither should we.

The Court is aware that this ruling effectively exonerates appellant of illegal possession of an M-14 rifle,
an offense which normally carries a penalty heavier than that for direct assault. While the penalty for
the first is prision mayor, for the second it is only prision correccional. Indeed, the accused may evade
conviction for illegal possession of firearms by using such weapons in committing an even lighter
offense,66 like alarm and scandal67 or slight physical injuries,68 both of which are punishable by arresto
menor.69 This consequence, however, necessarily arises from the language of RA 8294, whose wisdom is
not subject to the Court’s review. Any perception that the result reached here appears unwise should be
addressed to Congress. Indeed, the Court has no discretion to give statutes a new meaning detached
from the manifest intendment and language of the legislature. Our task is constitutionally confined only
to applying the law and jurisprudence70 to the proven facts, and we have done so in this case.

WHEREFORE, the appealed Decision is hereby AFFIRMED with the MODIFICATION that appellant is
found guilty only of two offenses: (1) direct assault and multiple attempted homicide with the use of a
weapon, for which he is sentenced to 2 years and 4 months to 6 years of prision correccional; and (2)
maintaining a drug den, for which he was correctly sentenced by the trial court to reclusion perpetua.
Costs against appellant.

Let a copy of this Decision be furnished the Congress of the Philippines for a possible review, at its sound
discretion, of RA 8294.

SO ORDERED.

35. Celino v. Court of Appeals, G.R. No. 170562, 29 June 2007

G.R. No. 170562 June 29, 2007

ANGEL CELINO, SR., petitioner,

vs.
COURT OF APPEALS, CEBU CITY, HON. DELANO F. VILLARUZ, Presiding Judge, Branch 16, Regional Trial
Court, Capiz, Roxas City, and PEOPLE OF THE PHILIPPINES, respondents.

DECISION

CARPIO MORALES, J.:

This petition for certiorari under Rule 65 of the Rules of Court assails the Court of Appeals’ Decision
dated April 18, 20051 affirming the trial court’s denial of petitioner Angel Celino, Sr.’s Motion to Quash;
and Resolution dated September 26, 20052 denying petitioner’s Motion for Reconsideration of the said
Decision.

The following facts are not disputed:

Two separate informations were filed before the Regional Trial Court of Roxas City charging petitioner
with violation of Section 2(a) of COMELEC Resolution No. 6446 (gun ban),3 and Section 1, Paragraph 2 of
Republic Act No. (R.A.) 82944 (illegal possession of firearm), as follows:

Criminal Case No. C-137-04

That on or about the 12th day of May, 2004, in the City of Roxas, Philippines, and within the jurisdiction
of this Honorable Court, the said accused, did then and there willfully, unlawfully and knowingly carry
 outside of his residence an armalite rifle colt M16 with serial number 3210606 with two (2) long
magazines each loaded with thirty (30) live ammunitions of the same caliber during the election period –
December 15, 2005 to June 9, 2004 – without first having obtained the proper authority in writing from
the Commission on Elections, Manila, Philippines.

CONTRARY TO LAW. 5

Criminal Case No. C-138-04

That on or about the 12th day of May, 2004, in the City of Roxas, Philippines, and within the jurisdiction
of this Honorable Court, the said accused, did then and there willfully, unlawfully and knowingly have in
his possession and control one (1) armalite rifle colt M16 with serial number 3210606 with two (2) long
magazines each loaded with thirty (30) live ammunitions of the same caliber without first having
obtained the proper license or necessary permit to possess the said firearm.

CONTRARY TO LAW.6

Upon arraignment in Criminal Case No. C-138-04, petitioner pleaded not guilty to the gun ban violation
charge.7

Prior to his arraignment in Criminal Case No. C-137-04, petitioner filed a Motion to Quash8 contending
that he "cannot be prosecuted for illegal possession of firearms x x x if he was also charged of having
committed another crime of [sic] violating the Comelec gun ban under the same set of facts x x x."9

By Order of July 29, 2004,10 the trial court denied the Motion to Quash on the basis of this
Court’s11 affirmation in Margarejo v. Hon. Escoses12 of therein respondent judge’s denial of a similar
motion to quash on the ground that "the other offense charged x x x is not one of those enumerated
under R.A. 8294 x x x." 13 Petitioner’s Motion for Reconsideration was likewise denied by September 22,
2004 Resolution,14 hence, petitioner filed a Petition for Certiorari15 before the Court of Appeals.

By Decision dated April 18, 2005,16 the appellate court affirmed the trial court’s denial of the Motion to
Quash. Petitioner’s May 9, 2005 Motion for Reconsideration17 having been denied by Resolution of
September 26, 2005,18 petitioner filed the present petition.

The petition fails.

Petitioner’s remedy to challenge the appellate court’s decision and resolution was to file a petition for
review on certiorari under Rule 45 on or before October 20, 2005 or 15 days after he received a copy of
the appellate court's resolution on October 5, 200519 denying his motion for reconsideration. Instead,
petitioner chose to file the present petition under Rule 65 only on December 2, 2005,20 a good 58 days
after he received the said resolution.

Certiorari cannot be used as a substitute for lost appeal. Certiorari lies only when there is no appeal nor
any plain, speedy, and adequate remedy in the ordinary course of law. Why the question being raised by
petitioner, i.e., whether the appellate court committed grave abuse of discretion, could not have been
raised on appeal, no reason therefor has been advanced.21
While this Court, in accordance with the liberal spirit pervading the Rules of Court and in the interest of
justice, has the discretion to treat a petition for certiorari as having been filed under Rule 45, especially
if filed within the reglementary period under said Rule, it finds nothing in the present case to warrant a
liberal application of the Rules, no justification having been proffered, as just stated, why the petition
was filed beyond the reglementary period,22 especially considering that it is substantially just a
replication of the petition earlier filed before the appellate court.

Technicality aside, the petition fails just the same.

The relevant provision of R.A. 8294 reads:

SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read
as follows:

"SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or

Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. — x x x.

"The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall
be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in
diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered
firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other
firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no
other crime was committed by the person arrested.

"If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed
firearm shall be considered as an aggravating circumstance.

"If the violation of this Section is in furtherance of or incident to, or in connection with the crime of
rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as an
element of the crime of rebellion, or insurrection, sedition, or attempted coup d'etat.

xxxx

(Underscoring supplied)

The crux of the controversy lies in the interpretation of the underscored proviso. Petitioner, citing Agote
v. Lorenzo,23 People v. Ladjaalam,24 and other similar cases,25 contends that the mere filing of an
information for gun ban violation against him necessarily bars his prosecution for illegal possession of
firearm. The Solicitor General contends otherwise on the basis of Margarejo v. Hon. Escoses 26 and
People v. Valdez.27

In Agote,28 this Court affirmed the accused’s conviction for gun ban violation but exonerated him of the
illegal possession of firearm charge because it "cannot but set aside petitioner’s conviction in Criminal
Case No. 96-149820 for illegal possession of firearm since another crime was committed at the same
time, i.e., violation of COMELEC Resolution No. 2826 or the Gun Ban."29 Agote is based on
Ladjaalam30 where this Court held:
x x x A simple reading [of RA 8294] shows that if an unlicensed firearm is used in the commission of any
crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the "other
crime" is murder or homicide, illegal possession of firearms becomes merely an aggravating
circumstance, not a separate offense. Since direct assault with multiple attempted homicide was
committed in this case, appellant can no longer be held liable for illegal possession of firearms.

Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of
RA 8294's simple language is most favorable to herein appellant. Verily, no other interpretation is
justified, for the language of the new law demonstrates the legislative intent to favor the accused.
Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and
direct assault with attempted homicide. x x x

xxxx

x x x The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that
"no other crime was committed by the person arrested." If the intention of the law in the second
paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the
third paragraph. Verily, where the law does not distinguish, neither should we.31

The law is indeed clear. The accused can be convicted of illegal possession of firearms, provided no
other crime was committed by the person arrested. The word "committed" taken in its ordinary sense,
and in light of the Constitutional presumption of innocence,32 necessarily implies a prior determination
of guilt by final conviction resulting from successful prosecution or voluntary admission.33

Petitioner’s reliance on Agote, Ladjaalam, Evangelista, Garcia, Pangilinan, Almeida, and Bernal is,
therefore, misplaced. In each one of these cases, the accused were exonerated of illegal possession of
firearms because of their commission, as shown by their conviction, of some other crime.34 In the
present case, however, petitioner has only been accused of committing a violation of the COMELEC gun
ban. As accusation is not synonymous with guilt, there is yet no showing that petitioner did in fact
commit the other crime charged.35 Consequently, the proviso does not yet apply.

More applicable is Margarejo36 where, as stated earlier, this Court affirmed the denial of a motion to
quash an information for illegal possession of firearm on the ground that "the other offense charged
[i.e., violation of gun ban] x x x is not one of those enumerated under R.A. 8294 x x x."37 in consonance
with the earlier pronouncement in Valdez38 that "all pending cases involving illegal possession of firearm
should continue to be prosecuted and tried if no other crimes expressly indicated in Republic Act No.
8294 are involved x x x."39

In sum, when the other offense involved is one of those enumerated under R.A. 8294, any information
for illegal possession of firearm should be quashed because the illegal possession of firearm would have
to be tried together with such other offense, either considered as an aggravating circumstance in
murder or homicide,40 or absorbed as an element of rebellion, insurrection, sedition or attempted coup
d’etat.41 Conversely, when the other offense involved is not one of those enumerated under R.A. 8294,
then the separate case for illegal possession of firearm should continue to be prosecuted.

Finally, as a general rule, the remedy of an accused from the denial of his motion to quash is for him to
go to trial on the merits, and if an adverse decision is rendered, to appeal therefrom in the manner
authorized by law.42 Although the special civil action for certiorari may be availed of in case there is a
grave abuse of discretion,43 the appellate court correctly dismissed the petition as that vitiating error is
not attendant in the present case.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.