EN BANC

[G.R. No. 60100. March 20, 1985.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAIME RODRIGUEZ alias JIMMY alias WILFRED DE LARA y MEDRANO and RICO LOPEZ, accused-appellants. [G.R. No. 60768. March 20, 1985.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DAVIO DE REYES alias DARIO DECE RAYMUNDO y ELAUSA, accusedappellants. [G.R. No. 61069. March 20, 1985.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PETER PONCE y BULAYBULAY alias PETER POWE, accused-appellants. SYLLABUS 1.CRIMINAL LAW; PIRACY; PENALTY. Clearly under Sec. 3 (a) of Presidential Decree No. 532, otherwise known as the Anti-Piracy Law, amending Article 134 of the Revised Penal Code and which took effect on August 8, 1974, the penalty imposable upon persons found guilty of the crime of piracy where rape, murder or homicide is committed is mandatory death penalty. Thus, the lower court committed no error in not considering the plea of the three (3) defendants as a mitigating circumstance. 2.CONSTITUTIONAL LAW; RIGHTS OF AN ACCUSED TO COUNSEL AND TO REMAIN SILENT NOT VIOLATED IN CASE AT BAR. The statement of Ponce (Exhibit "I") contains the questions and answers pertinent to Section 20 of the 1973 Constitution, to wit: "1. QUESTION: Mr. Peter Ponce, we are informing you that you are under investigation here in connection with the robbery committed on the M/V Noria last August 31, 1981, where you are an Assistant Engineer. You have a right to remain silent and to refuse to answer any of our questions here. You have the right to be represented by counsel of your choice in this investigation. Should you decide to be represented by a lawyer but cannot afford one we will provide a lawyer for you free. Should you decide to give a sworn statement, the same shall be voluntary and free from force or intimidation or promise of reward or leniency and anything that you saw here maybe used for or against you in any court in the Philippines. Now do you understand all these rights of yours? ANSWER: Yes, sir. "2. Q: Do you need the services of a lawyer? A: No, sir. "3. Q: Are you willing to affix your signature hereinbelow to signify that you so understand all your rights as above stated and that you do not need the services of a lawyer? A: Yes, sir." (p. 116, Rollo) Thus, it is clear that Peter Ponce was fully advised of his constitutional right to remain silent and his right to counsel. 3.CRIMINAL LAW; CRIMINAL LIABILITY; CONSPIRACY; ATTENDANT IN CASE AT BAR. Considering the written statements of all the appellants, (Exhibits

"E", "F", "G", "H", "J" and "E"), interlocking as they are with each other as each admits his participation and those of the other co-accused, there is no room for doubt that conspiracy existed among them. The conduct of appellant Peter Ponce before, during and after the commission of the crime is a circumstance showing the presence of conspiracy in the commission of the crime. As a consequence, every one is responsible for the crime committed. TEEHANKEE, J., concurring: 1.CONSTITUTIONAL LAW; RIGHTS OF THE ACCUSED; RIGHT TO REMAIN SILENT AND TO COUNSEL; MONOSYLLABIC ANSWERS UNACCEPTABLE AS A VOLUNTARY AND INTELLIGENT WAIVER OF RIGHT. Justice Teehankee takes exception, however, to the statement therein that accused Peter Ponce "was fully advised of his constitutional right to remain silent and his right to counsel." The monosyllabic answers of "Yes" and "No" have been stricken down by the Court as utterly unacceptable as a voluntary and intelligent waiver of the constitutional right to silence and to counsel in People vs. Caguioa (95 SCRA 2), in line with my separate concurring and dissenting opinion in the recent case of People vs. Itlanas (G.R. No. 60118, prom. February 28, 1985). As therein stated, I subscribe to the Court's requirement in Morales, Jr. vs. Ponce Enrile (121 SCRA 538) that "the right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel" in order to assure that it is knowingly, voluntarily and intelligently given.

DECISION

PER CURIAM :
p

Appellants Jaime Rodriguez alias Jimmy alias Wilfred de Lara y Medrano, Rico Lopez, Davio Reyes alias Dario Dece Raymundo y Elausa and Peter Ponce y Bulaybulay alias Peter Powe were charged of the crime of piracy in an information filed before the then Court of First Instance of Sulu and Tawi-Tawi, which reads:
"That on or about 3:15 in the morning of August 31, 1981, at the vicinity of Muligin Island and within the territorial waters of the Municipality of Cagayan de Tawi-Tawi, Province of Tawi-Tawi, and within the jurisdiction of this Honorable Court, the above-named accused Wilfred de Lara y Medrano, alias Jaime Rodriguez (Jimmy); Dario Dece Raymundo y Elausa; Rico Lopez y Fernandez and Peter Ponce y Bulaybulay alias Peter Powe, being crew members of the M/V Noria 767, a barter trade vessel of Philippine registry, conspiring and confederating together and mutually helping one another and armed with bladed weapons and high caliber firearms, to wit: three (3) daggers, two (2) M14, one (1) garand and one (1) Browning Automatic Rifle, with intent of gain and by means of violence and intimidation upon persons, did then and there willfully and unlawfully, and feloniously take, steal and carry away against the consent of the owners thereof, the equipments and other personal properties belonging to the crew members and passengers of the said M/V Noria 767, consisting of cash money amounting to Three Million Five Hundred Seventeen Thousand Three Hundred Pesos (P3,517,300.00), personal belongings of passengers and crew amounting to One Hundred Thirty Thousand Pesos (P130,000.00), the vessel's compass, navigational charts and instruments amounting to Forty Thousand Pesos (P40,000.00) to the damage and prejudice of the aforementioned owners in the total amount of THREE MILLION SIX

HUNDRED EIGHTY SEVEN THOUSAND THREE HUNDRED PESOS (P3,687,300.00) Philippine Currency; that by reason of and on the occasion of the said privacy and for the purpose of enabling the abovenamed accused to take, steal and carry away the properties abovementioned, the herein accused in pursuance to their conspiracy, did then and there willfully, unlawfully and feloniously with intent to kill and with evident premeditation, treacherously attack, assault, stab, shot and, taking advantage of superior strength, use personal violence upon the persons of Abdusador Sumihag, Vicente America, Perhan Tan, Marcos Que, Ismael Turabin, Mabar Abdurahman, Wadi Aduk, Rasdi, Alfad, Kasmir Tan, Peter Paul Chiong, Juaini Husini, Ismael Ombra, Sabturani Ulag, Mutalib Sarahadil, Bajubar Adam, Quillermo Wee, Reuben Segovia Ho, Michael Lao, Yusop Abubakar, Hahji Hussin Kulavan, Amjad Quezon, Rebuan Majid, Edgar Tan, Abdurasul Alialam, Federico Canizares, Omar Tahil, Gilbert Que, Arajul Salialam, Masihul Bandahala, Asola Mohammaddin, Batoto Sulpicio, Sakirani Bassal, Ibrahim Jamil, Saupi Malang and Gulam Sahiddan, thereby inflicting upon them multiple gunshot wounds which caused their instantaneous death and likewise causing physical injuries upon the persons of Inggal Issao, Abduhasan Indasan, Hadji Yusop H. Alfad and Hadji Mahalail Alfad, the performing all acts of execution which could have produced the death of said persons, but nevertheless did not produce it by reason or cause independent of the will of said accused, that is, by the timely and able medical assistance rendered to said victims which prevented death. "CONTRARY TO LAW, with the aggravating circumstances of treachery, evident premeditation, night time and the use of superior strength." (pp. 97-98, Rollo of L-61069)

Upon arraignment on February 25, 1982, Jaime Rodriguez and Rico Lopez, assisted by their counsel, pleaded guilty to the charge, were convicted on March 5, 1982 and sentenced each "to suffer the extreme penalty of death." Dario Dece Raymundo, upon arraignment, interposed a plea of not guilty. However, he withdrew his plea and substituted it with that of guilty. On March 10, 1982 he was convicted of the crime charged and sentenced "to suffer the extreme penalty of death." Peter Ponce y Bulaybulay entered the plea of not guilty. After trial, he was found guilty and was also sentenced "to suffer the extreme penalty of death." No pronouncement was made with respect to the civil liabilities of the four defendants because "there was a separate civil action for breach of contract and damages filed with the same trial court in Civil Case No. N-85 against the several defendants, including the four accused aforementioned." (p. 26, L-61069) The case of the four convicted defendants is now before Us on automatic review. Evidence shows that on August 29, 1981, at about 7:30 in the evening, the vessel M/V Noria 767, owned and registered in the name of Hadji Noria Indasan, left Jolo wharf for Cagayan de Tawi-Tawi. It arrived at the port of Cagayan de Tawi-Tawi the following day, August 30, 1981, at around 2:00 in the afternoon. In the evening of the same date, the vessel left for Labuan. On board the vessel were several traders and crew members. Two or three hours after its departure, while sailing about 25 miles from Cagayan de Tawi-Tawi, a commotion occurred in one of the cabins of the vessel. The witnesses testified on what they saw and heard.

Mr. Clyde Que, a passenger, heard noises inside a cabin and, after awhile, he heard shots being hired. He rushed to the motor launch to hide and on his way through the engine room, he saw appellant Peter Ponce. Then appellants Jaime Rodriguez, Dario Dece and Rico Lopez, all armed with rifles, started firing towards Que's companions after which they brought Que to the pilot's house to handle the steering wheel. He was substituted by Usman, another passenger, while Que and the other crew members were ordered to threw overboard sacks of copra and the dead bodies of Peter Chiong, Michael Lao, Casmin Tan and Vicente America. At the time, appellant Peter Ponce, armed with a M-14 rifle, stood guard. Hadji Mahalail Alfad, another passenger, heard commotions from the motor launch, followed by gunfire. He hid by laying down among the sacks of copra. He saw appellants Peter Ponce, Jaime Rodriguez, Rico Lopez and Dario Dece coming down the stairs as they were firing shots until Fred Canizares and Guilbert Que were hit, their bodies falling upon him. When he tried to move, he realized that he was also hit on the right side of his stomach. Thereafter, he pretended to be dead till daytime. Emil Macasaet, Jr., the skipper of the vessel heard the commotion from one of the cabins. He ordered his men to open the door but it could not be opened. After awhile, the door opened and he saw a gun pointed at them. Whereupon, he hid behind the bags of copra until appellant Jaime Rodriguez came and fired at him. Luckily, he was not hit. He and some of his men crawled and they took cover in the bodega of copra. While in hiding there were gunfires coming from Dario Dece and Peter Ponce. About four (4) hours later, his Chief Mate Usman persuaded him to come out otherwise something worse would happen. He saw Jaime Rodriguez who ordered him to direct his men to throw the copras as well as the dead bodies overboard. About ten o'clock in the morning of the same day, the vessel reached an island where the four appellants were able to secure pumpboats. Macasaet was ordered to load in one of the pumpboats nine (9) attache cases which were full of money. Rico Lopez and Jaime Rodriguez boarded one pumpboat, while Peter Ponce and Dario Dece boarded another, bringing with them: dressed chicken, softdrinks, durian, boxes of ammunitions, gallons of water and some meat, as well as rifles. Municipal Health Officer Leopoldo Lao went aboard the vessel M/V Noria when it arrived at Cagayan de Tawi-Tawi on September 2, 1981 and saw at the wharf ten dead bodies, all victims of the sea-jacking, namely: Gulam Sahiddan, Arajul Naran Salialam, Mallang Saupi, Guilbert Que, Frederico Canizares, Masihul Bandahala, Ribowan Majid, Edgar Tan, Omar Sabdani Tahir and Abdurasul Salialam. In their brief, appellants Jaime Rodriguez, Rico Lopez and Dario Dece claim that the trial court erred (1) in imposing the death penalty to the accused-appellants Jaime Rodriguez alias Wilfred de Lara, Rico Lopez y Fernandez and Davio de Reyes, alias Dario Dece Raymundo y Elausa despite their plea of guilty; (2) in giving weight to the alleged sworn statements of Peter Ponce y Bulaybulay, identified as Exhibits "C" to "C-10" and Exhibits "I to I-5", as evidence against Peter Ponce y Bulaybulay; (3) in holding that accused-appellant Peter Ponce y Bulaybulay is guilty of the crime of piracy; (4) in holding that the defense of Peter Ponce y Bulaybulay was merely a denial; and, (5) in holding that Peter Ponce y Bulaybulay entrusted the P1,700.00 which was his personal money to Atty. Efren Capulong of the National Bureau of Investigation. There is no merit in this appeal of the three named defendants, namely: Jaime Rodriguez and Rico Lopez in G.R. No. L-60100, and Dario Dece in G.R. No. L-60768.
LLjur

Anent the first assigned error, suffice it to say that Presidential Decree No. 532, otherwise known as the Anti-Piracy Law, amending Article 134 of the Revised Penal Code and which took effect on August 8, 1974, provides:
"SEC. 3.Penalties. Any person who commits piracy or highway robbery/brigandage as herein defined, shall, upon conviction by competent court be punished by: "a)Piracy. The penalty of reclusion temporal in its medium and maximum periods shall be imposed. If physical injuries or other crimes are committed as a result or on the occasion thereof, the penalty of reclusion perpetua shall be imposed. If rape, murder or homicide is committed as a result or on the occasion of piracy, or when the offenders abandoned the victims without means of saving themselves, or when the seizure is accomplished by firing upon or boarding a vessel, the mandatory penalty of death shall be imposed." (Emphasis supplied)

Clearly, the penalty imposable upon persons found guilty of the crime of piracy where rape, murder or homicide is committed is mandatory death penalty. Thus, the lower court committed no error in not considering the plea of the three (3) defendants as a mitigating circumstance. Article 63 of the Revised Penal Code states that:
"ART. 63.Rules for the application of indivisible penalties. In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed."

With respect to the other assigned errors, We also find them to be devoid of merit. Appellants Peter Ponce gave a statement (Exhibits "C" to "C-11") to the Malaysian authorities and another statement (Exhibits "I" to "I-15") before the National Bureau of Investigation of Manila. When said statement (Exhibits "C" to "C-11") was offered in evidence by the prosecution, the same was not objected to by the defense, aside from the fact that Peter Ponce, on cross examination, admitted the truthfulness of said declarations, thus:
"QAnd the investigation was reduced into writing is that correct? AYes, sir. QAnd you were investigated by the police authority of Kudat and Kota Kinabalo, is that right? AYes, sir. Only in Kudat. QAnd that statement you gave to the authority at Kudat, you have signed that statement, is that correct? AYes, sir. QAnd what you stated is all the truth before the authority in Kudat? AYes, sir." (pp. 33-34, tsn, May 28, 1982)

Relative to the appeal of appellant Peter Ponce (G.R. No. L-61069), which We likewise declare to be without merit, evidence shows that his participation in the commission of the offense was positively testified to by the master of the vessel, Emil Macasaet, Jr., and

a passenger, Hadji Mahalail Alfad. Another witness, passenger Clyde Que also pointed to have seen him (Peter Ponce) armed with an M-14 rifle. Considering the testimonies of Clyde Que and Emil Macasaet, Jr. who actually saw appellant Peter Ponce firing his weapon indiscriminately at the passengers and crew members in wanton disregard of human lives and the fact that after the looting and killing, appellant Peter Ponce, still armed, joined Dario Dece in one pumpboat, there can be no question that he was in conspiracy with the three other defendants. After his arrest, Ponce gave a statement to the authorities stating therein his participation as well as those of his companions (Exhibits "I" to "I-1").
LLphil

The four (4) appellants were arrested and detained by the Malaysian authorities. On January 8, 1982, the National Bureau of Investigation authorities fetched and brought them to Manila where they executed their respective statements after Rico Lopez and Peter Ponce delivered to the NBI, P3,700.00 and P1,700.00, respectively, aside from the P527,595.00 and one Rolex watch which the Malaysian authorities also turned over to the Acting In-Charge of the NBI in Jolo. The statement of Ponce (Exhibit "I") contains the questions and answers pertinent to Section 20 of the 1973 Constitution, to wit:
"1.QUESTION: Mr.Peter Ponce, we are informing you that you are under investigation here in connection with the robbery committed on the M/V Noria last August 31, 1981, where you are an Assistant Engineer. You have a right to remain silent and to refuse to answer any of our questions here. You have the right to be represented by counsel of your choice in this investigation. Should you decide to be represented by a lawyer but cannot afford one we will provide a lawyer for you free. Should you decide to give a sworn statement, the same shall be voluntary and free from force or intimidation or promise of reward or leniency and anything that you saw here maybe used for or against you in any court in the Philippines. Now do you understand all these rights of yours? ANSWER:Yes, sir. "2.Q:Do you need the services of a lawyer? A:No, sir. "3.Q:Are you willing to affix your signature hereinbelow to signify that you so understand all your rights as above stated and that you do not need the services of a lawyer? A:Yes, sir." (p. 116, Rollo)

Thus, it is clear that Peter Ponce was fully advised of his constitutional right to remain silent and his right to counsel. Considering the written statements of all the appellants, (Exhibits "E", "F", "G", "H", "J" and "E"), interlocking as they are with each other as each admits his participation and those of the other co-accused, there is no room for doubt that conspiracy existed among them. The conduct of appellant Peter Ponce before, during and after the commission of the crime is a circumstance showing the presence of conspiracy in the commission of the crime. As a consequence, every one is responsible for the crime committed.

WHEREFORE, the decision appealed from is hereby AFFIRMED. SO ORDERED. Makasiar, Aquino, Concepcion, Jr., Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., De la Fuente, Cuevas and Alampay, JJ., concur. Fernando, C.J., took no part.

Separate Opinions
TEEHANKEE, J., concurring: I concur with the judgment of conviction, there being sufficient direct evidence and positive identification by eyewitnesses. I take exception, however, to the statement therein that accused Peter Ponce "was fully advised of his constitutional right to remain silent and his right to counsel." The monosyllabic answers of "Yes" and "No" have been stricken down by the Court as utterly unacceptable as a voluntary and intelligent waiver of the constitutional right to silence and to counsel in People vs. Caguioa (95 SCRA 2), in line with my separate concurring and dissenting opinion in the recent case of People vs. Itlanas (G.R. No. 60118, prom. February 28, 1985). As therein stated, I subscribe to the Court's requirement in Morales, Jr. vs. Ponce Enrile (121 SCRA 538) that "the right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel" in order to assure that it is knowingly, voluntarily and intelligently given.

THIRD DIVISION
[G.R. No. 111709. August 30, 2001.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGER P. TULIN, VIRGILIO I. LOYOLA, CECILIO O. CHANGCO, ANDRES C. INFANTE, CHEONG SAN HIONG, and JOHN DOES, accused-appellants. The Solicitor General for plaintiff-appellee.

Britanico Consunji & Sarmiento Law Offices for Cheong San Hiong. Rodrigo Berenguer & Guno for R. Tulin, V.I. Loyola, C.O. Changco and A.C. Infante. SYNOPSIS Appellants were charged with qualified piracy in connection with the seizure of M/T Tabangao in Batangas where the officers and crew were forced to sail to Singapore and transfer its loaded petroleum products to another Vessel Navi Pride off the coast of Singapore. Appellants pleaded not guilty with appellant Hiong claiming that he merely followed the orders of his superiors to buy bunker fuel. However, it was disclosed that he connived, through falsification of documents, to prevent the Singapore ports authority to detect the sale, the amount of the sale was less than one-half of the amount of the cargo transferred, that there was no evidence of the sale, with receipts not issued and the sale was made 66 nautical miles away in the dead of the night. The officers and crew of M/T Tabangao with whom the appellants were with for more than a month, positively identified appellants as the seajackers. Appellants, except Hiong, were represented by Tomas Posadas who was later found to be a non-lawyer. They were, however, assisted by Atty. Abdul Basar who manifested that they were adopting the evidence adduced by Posadas. Their extrajudicial statements obtained without assistance of counsel were introduced as evidence for the prosecution. The trial court found all appellants except Hiong to have acted in conspiracy. According to the trial court, Hiong's act was not indispensable in the attack and seizure of the vessel. He was found guilty as a mere accomplice. Hence, this appeal. An accused is entitled to be present and to defend himself in person and by counsel at every stage of the proceedings since an ordinary layman is not versed on the technicalities of trial. In this case, appellants' representative, Mr. Posadas, knew the technical rules of procedure, coupled with their manifestation that they adopted the evidence adduced by him constitute waiver, and with the full assistance of a bonafide lawyer, Atty. Basar and cannot serve as a basis for a claim of denial of due process. The extrajudicial confessions made without assistance of counsel are inadmissible in evidence. Piracy is an exception to the rule on territoriality in criminal law. If there is lack of complete evidence of conspiracy, the liability is that of an accomplice and not as principal. An individual is justified in performing an act in obedience to an order issued by a superior, if such order is for some lawful purpose and that the means used by the subordinate to carry out said order is lawful. SYLLABUS 1.CONSTITUTIONAL LAW; RIGHT TO COUNSEL AT EVERY STAGE OF PROCEEDING; RIGHT WAIVED IN CASE AT BAR. On the first issue, the record reveals that a manifestation (Exhibit "20", Record) was executed by accused-appellants Tulin, Loyola, Changco, and Infante, Jr. on February 11, 1991, stating that they were adopting the evidence adduced when they were represented by a non-lawyer. Such

waiver of the right to sufficient representation during the trial as covered by the due process clause shall only be valid if made with the full assistance of a bona fide lawyer. During the trial, accused-appellants, as represented by Atty. Abdul Basar, made a categorical manifestation that said accused-appellants were apprised of the nature and legal consequences of the subject manifestation, and that they voluntarily and intelligently executed the same. They also affirmed the truthfulness of its contents when asked in open court. It is true that an accused person shall be entitled to be present and to defend himself in person and by counsel at every stage of the proceedings, from arraignment to promulgation of judgment (Section 1, Rule 115, Revised Rules of Criminal Procedure). This is hinged on the fact that a layman is not versed on the technicalities of trial. However, it is also provided by law that "[r]ights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs or prejudicial to a third person with right recognized by law. (Article 6, Civil Code of the Philippines). Thus, the same section of Rule 115 adds that "[u]pon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel." By analogy, but without prejudice to the sanctions imposed by law for the illegal practice of law, it is amply shown that the rights of accused-appellants were sufficiently and properly protected by the appearance of Mr. Tomas Posadas. An examination of the record will show that he knew the technical rules of procedure. Hence, we rule that there was a valid waiver of the right to sufficient representation during the trial, considering that it was unequivocally, and intelligently made and with the full assistance of a bona fide lawyer, Atty. Abdul Basar. Accordingly, denial of due process cannot be successfully invoked where a valid waiver of rights has been made (People vs. Serzo, 274 SCRA 553 [1997]; Sayson vs. People, 166 SCRA 680 [1988]). 2.ID.; RIGHT TO COUNSEL DURING CUSTODIAL INVESTIGATION; MIRANDA DOCTRINE; CONSTRUED. [T]he right to counsel during custodial investigation may not be waived except in writing and in the presence of counsel. Such rights originated from Miranda v. Arizona (384 U.S. 436 [1966]) which gave birth to the socalled Miranda doctrine which is to the effect that prior to any questioning during custodial investigation, the person must be warned that he has a right to remain silent, that any statement he gives may be used as evidence against him, and that he has the right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently. The Constitution even adds the more stringent requirement that the waiver must be in writing and made in the presence of counsel. 3.REMEDIAL LAW; EVIDENCE; UNCOUNSELLED EXTRAJUDICIAL CONFESSION WITHOUT VALID WAIVER OF RIGHT TO COUNSEL, INADMISSIBLE; CASE AT BAR. [T]he absence of counsel during the execution of the so-called confessions of the accused-appellants make them invalid. In fact, the very basic reading of the Miranda rights was not even shown in the case at bar. Paragraph [3] of the aforestated Section 12 sets forth the so-called "fruit from the poisonous tree doctrine," a phrase minted by Mr. Justice Felix Frankfurter in the celebrated case of Nardone vs. United States (308 U.S. 388 [1939]). According to this rule, once the primary source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the "fruit") derived from it is also inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegally obtained evidence taints all evidence subsequently obtained (People vs. Alicando, 251 SCRA 293 [1995]). Thus, in this case, the uncounselled extrajudicial confessions of accused-appellants, without a valid waiver

of the right to counsel, are inadmissible and whatever information is derived therefrom shall be regarded as likewise inadmissible in evidence against them. 4.ID.; ID.; DENIAL; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION OF ACCUSED. We also agree with the trial court's finding that accused-appellants' defense of denial is not supported by any hard evidence but their bare testimony. Greater weight is given to the categorical identification of the accused by the prosecution witnesses than to the accused's plain denial of participation in the commission of the crime (People v. Baccay, 284 SCRA 296 [1998]). 5.ID.; ID.; ALIBI; REQUISITE FOR DEFENSE TO PROSPER; CASE AT BAR. Anent accused-appellant Changco's defense of denial with the alibi that on May 14 and 17, he was at his place of work and that on April 10, he was in his house in Bacoor, Cavite, sleeping, suffice it to state that alibi is fundamentally and inherently a weak defense, much more so when uncorroborated by other witnesses (People v. Adora, 275 SCRA 441 [1997]) considering that it is easy to fabricate and concoct, and difficult to disprove. Accused-appellant must adduce clear and convincing evidence that, at about midnight on April 10, 1991, it was physically impossible for him to have been in Calatagan, Batangas. Changco not only failed to do this, he was likewise unable to prove that he was in his place of work on the dates aforestated. 6.ID.; ID.; CREDIBILITY OF WITNESSES; TRIAL COURT'S EVALUATION OF CREDIBILITY OF TESTIMONY, ACCORDED HIGHEST RESPECT. It is doctrinal that the trial court's evaluation of the credibility of a testimony is accorded the highest respect, for trial courts have an untrammeled opportunity to observe directly the demeanor of witnesses and, thus, to determine whether a certain witness is telling the truth (People v. Obello, 284 SCRA 79 [1998]). 7.CRIMINAL LAW; CONSPIRACY; WHEN PRESENT. We likewise uphold the trial court's finding of conspiracy. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it (Article 8, Revised Penal Code). To be a conspirator, one need not participate in every detail of execution; he need not even take part in every act or need not even know the exact part to be performed by the others in the execution of the conspiracy. As noted by the trial court, there are times when conspirators are assigned separate and different tasks which may appear unrelated to one another, but in fact, constitute a whole and collective effort to achieve a common criminal design. 8.ID.; ID.; CASE AT BAR. We affirm the trial court's finding that Emilio Changco, accused-appellants Tulin, Loyola, and Infante, Jr. and others, were the ones assigned to attack and seize the "M/T Tabangao" off Lubang, Mindoro, while accused-appellant Cecilio Changco was to fetch the master and the members of the crew from the shoreline of Calatagan, Batangas after the transfer, and bring them to Imus, Cavite, and to provide the crew and the officers of the vessel with money for their fare and food provisions on their way home. These acts had to be well-coordinated. Accused-appellant Cecilio Changco need not be present at the time of the attack and seizure of "M/T Tabangao" since he performed his task in view of an objective common to all other accusedappellants. 9.ID.; PIRACY; COVERAGE WIDENED BY R.A. NO. 7659. Article 122 of the Revised Penal Code, before its amendment, provided that piracy must be committed on the high seas by any person not a member of its complement nor a passenger thereof. Upon its amendment by Republic Act No. 7659, the coverage of the pertinent provision

was widened to include offenses committed "in Philippine waters." On the other hand, under Presidential Decree No. 532 (issued in 1974), the coverage of the law on piracy embraces any person including "a passenger or member of the complement of said vessel in Philippine waters." Hence, passenger or not, a member of the complement or not, any person is covered by the law. Republic Act No. 7659 neither superseded nor amended the provisions on piracy under Presidential Decree No. 532. There is no contradiction between the two laws. There is likewise no ambiguity and hence, there is no need to construe or interpret the law. All the presidential decree did was to widen the coverage of the law, in keeping with the intent to protect the citizenry as well as neighboring states from crimes against the law of nations. As expressed in one of the "whereas" clauses of Presidential Decree No. 532, piracy is "among the highest forms of lawlessness condemned by the penal statutes of all countries." For this reason, piracy under the Article 122, as amended, and piracy under Presidential Decree No. 532 exist harmoniously as separate laws. 10.ID.; ID.; AN EXCEPTION TO THE RULE ON TERRITORIALITY IN CRIMINAL LAW. Moreover, piracy falls under Title One of Book Two of the Revised Penal Code. As such, it is an exception to the rule on territoriality in criminal law. The same principle applies even if Hiong, in the instant case, were charged, not with a violation of qualified piracy under the penal code but under a special law, Presidential Decree No. 532 which penalizes piracy in Philippine waters. Verily, Presidential Decree No. 532 should be applied with more force here since its purpose is precisely to discourage and prevent piracy in Philippine waters (People v. Catantan, 278 SCRA 761 [1997]). It is likewise, well-settled that regardless of the law penalizing the same, piracy is a reprehensible crime against the whole world (People v. Lollo, 43 Phil. 19 [1922]). 11.ID.; CRIMINAL LIABILITY; WHEN THERE IS LACK OF COMPLETE EVIDENCE OF CONSPIRACY, LIABILITY IS THAT OF AN ACCOMPLICE. Nevertheless, the trial court found that accused-appellant Hiong's participation was indisputably one which aided or abetted Emilio Changco and his band of pirates in the disposition of the stolen cargo under Section 4 of Presidential Decree No. 532. The ruling of the trial court is within well-settled jurisprudence that if there is lack of complete evidence of conspiracy, the liability is that of an accomplice and not as principal (People v. Tolentino, 40 SCRA 514 [1971]). Any doubt as to the participation of an individual in the commission of the crime is always resolved in favor of lesser responsibility (People v. Corbes, 270 SCRA 465 [1997]; People vs. Elfano, Jr., 125 SCRA 792 [1983]; People v. Pastores, 40 SCRA 498 [1971]). 12.ID.; JUSTIFYING CIRCUMSTANCES; OBEDIENCE TO AN ORDER ISSUED BY SUPERIOR; ORDER AND MEANS TO CARRY OUT ORDER MUST BE LAWFUL; CASE AT BAR. [I]t cannot be correctly said that accused-appellant was "merely following the orders of his superiors." An individual is justified in performing an act in obedience to an order issued by a superior if such order, is for some lawful purpose and that the means used by the subordinate to carry out said order is lawful (Reyes, Revised Penal Code, Vol. 1, 1981 ed., p. 212). Notably, the alleged order of Hiong's superior Chua Kim Leng Timothy, is a patent violation not only of Philippine, but of international law. Such violation was committed on board a Philippine-operated vessel. Moreover, the means used by Hiong in carrying out said order was equally unlawful. He misled port and immigration authorities, falsified records, using a mere clerk, Frankie Loh, to consummate said acts. During the trial, Hiong presented himself, and the trial court was convinced, that he was an intelligent and articulate Port Captain. These circumstances show that he must have realized the nature and the implications of the order of Chua Kim Leng Timothy. Thereafter, he could have refused to follow orders to conclude the deal

and to effect the transfer of the cargo to the "Navi Pride." He did not do so, for which reason, he must now suffer the consequences of his actions.

DECISION

MELO, J :
p

This is one of the older cases which unfortunately has remained in docket of the Court for sometime. It was reassigned, together with other similar cases, to undersigned ponente in pursuance of A.M. No. 00-9-03-SC dated February 27, 2001. In the evening of March 2, 1991, "M/T Tabangao," a cargo vessel owned by the PNOC Shipping and Transport Corporation, loaded with 2,000 barrels of kerosene, 2,600 barrels of regular gasoline, and 40,000 barrels of diesel oil, with a total value of P40,426,793,87, was sailing off the coast of Mindoro near Silonay Island. The vessel, manned by 21 crew members, including Captain Edilberto Libo-on, Second Mate Christian Torralba, and Operator Isaias Ervas, was suddenly boarded, with the use of an aluminum ladder, by seven fully armed pirates led by Emilio Changco, older brother of accused-appellant Cecilio Changco. The pirates, including accused-appellants Tulin, Loyola, and Infante, Jr. were armed with M-16 rifles, .45 and .38 caliber handguns, and bolos. They detained the crew and took complete control of the vessel. Thereafter, accused-appellant Loyola ordered three crew members to paint over, using black paint, the name "M/T Tabangao" on the front and rear portions of the vessel, as well as the PNOC logo on the chimney of the vessel. The vessel was then painted with the name "Galilee," with registry at San Lorenzo, Honduras. The crew was forced to sail to Singapore, all the while sending misleading radio messages to PNOC that the ship was undergoing repairs. PNOC, after losing radio contact with the vessel, reported the disappearance of the vessel to the Philippine Coast Guard and secured the assistance of the Philippine Air Force and the Philippine Navy. However, search and rescue operations yielded negative results. On March 9, 1991, the ship arrived in the vicinity of Singapore and cruised around the area presumably to await another vessel which, however, failed to arrive. The pirates were thus forced to return to the Philippines on March 14, 1991, arriving at Calatagan, Batangas on March 20, 1991 where it remained at sea. On March 28, 1991, the "M/T Tabangao" again sailed to and anchored about 10 to 18 nautical miles from Singapore's shoreline where another vessel called "Navi Pride" anchored beside it. Emilio Changco ordered the crew of "M/T Tabangao" to transfer the vessel's cargo to the hold of "Navi Pride". Accused-appellant Cheong San Hiong supervised the crew of "Navi Pride" in receiving the cargo. The transfer, after an interruption, with both vessels leaving the area, was completed on March 30, 1991.
TEDHaA

On March 30, 1991, "M/T Tabangao" returned to the same area and completed the transfer of cargo to "Navi Pride." On April 8, 1991, "M/T Tabangao" arrived at Calatagan, Batangas, but the vessel remained at sea. On April 10, 1991, the members of the crew were released in three batches with the stern warning not to report the incident to government authorities for a period of two days or until April 12, 1991, otherwise they would be killed. The first batch

was fetched from the shoreline by a newly painted passenger jeep driven by accusedappellant Cecilio Changco, brother of Emilio Changco, who brought them to Imus, Cavite and gave P20,000.00 to Captain Libo-on for fare of the crew in proceeding to their respective homes. The second batch was fetched by accused-appellant Changco at midnight of April 10, 1991 and were brought to different places in Metro Manila.
SCcHIE

On April 12, 1991, the Chief Engineer, accompanied by the members of the crew, called the PNOC Shipping and Transport Corporation office to report the incident. The crew members were brought to the Coast Guard Office for investigation. The incident was also reported to the National Bureau of Investigation where the officers and members of the crew executed sworn statements regarding the incident. A series of arrests was thereafter effected as follows: a.On May 19, 1991, the NBI received verified information that the pirates were present at U.K. Beach, Balibago, Calatagan, Batangas. After three days of surveillance, accusedappellant Tulin was arrested and brought to the NBI headquarters in Manila. b.Accused-appellants Infante, Jr. and Loyola were arrested by chance at Aguinaldo Hiway by NBI agents as the latter were pursuing the mastermind, who managed to evade arrest. c.On May 20, 1991, accused-appellants Hiong and Changco were arrested at the lobby of Alpha Hotel in Batangas City. On October 24, 1991, an Information charging qualified piracy or violation of Presidential Decree No. 532 (Piracy in Philippine Waters) was filed against accusedappellants, as follows:
The undersigned State Prosecutor accuses ROGER P. TULIN, VIRGILIO I. LOYOLA, CECILIO O. CHANGCO, ANDRES C. INFANTE, and CHEONG SAN HIONG, and nine (9) other JOHN DOES of qualified piracy (Violation of P.D. No. 532), committed as follows: That on or about and during the period from March 2 to April 10, 1991, both dates inclusive, and for sometime prior and subsequent thereto, and within the jurisdiction of this Honorable Court, the said accused, then manning a motor launch and armed with high powered guns, conspiring and confederating together and mutually helping one another, did then and there, wilfully, unlawfully and feloniously fire upon, board and seize while in the Philippine waters M/T PNOC TABANGCO loaded with petroleum products, together with the complement and crew members, employing violence against or intimidation of persons or force upon things, then direct the vessel to proceed to Singapore where the cargoes were unloaded and thereafter returned to the Philippines on April 10, 1991, in violation of the aforesaid law. CONTRARY TO LAW. (pp. 119-20, Rollo.)

This was docketed as Criminal Case No. 91-94896 before Branch 49 of the Regional Trial Court of the National Capital Judicial Region stationed in Manila. Upon arraignment, accused-appellants pleaded not guilty to the charge. Trial thereupon ensued.

Accused-appellants Tulin, Infante, Jr., and Loyola, notwithstanding some inconsistencies in their testimony as to where they were on March 1, 1991, maintained the defense of denial, and disputed the charge, as well as the transfer of any cargo from "M/T Tabangao" to the "Navi Pride." All of them claimed having their own respective sources of livelihood. Their story is to the effect that on March 2, 1991, while they were conversing by the beach, a red speedboat with Captain Edilberto Liboon and Second Mate Christian Torralba on board, approached the seashore. Captain Liboon inquired from the three if they wanted to work in a vessel. They were told that the work was light and that each worker was to be paid P3,000.00 a month with additional compensation if they worked beyond that period. They agreed even though they had no sea-going experience. On board, they cooked, cleaned the vessel, prepared coffee, and ran errands for the officers. They denied having gone to Singapore, claiming that the vessel only went to Batangas. Upon arrival thereat in the morning of March 21, 1991, they were paid P1,000.00 each as salary for nineteen days of work, and were told that the balance would be remitted to their addresses. There was neither receipt nor contracts of employment signed by the parties. Accused-appellant Changco categorically denied the charge, averring that he was at home sleeping on April 10, 1991. He testified that he is the younger brother of Emilio Changco, Jr. Accused-appellant Cheong San Hiong, also known as Ramzan Ali, adduced evidence that he studied in Sydney, Australia, obtaining the "Certificate" as Chief Officer, and later completed the course as a "Master" of a vessel, working as such for two years on board a vessel. He was employed at Navi Marine Services, Pte., Ltd. as Port Captain. The company was engaged in the business of trading petroleum, including shipoil, bunker lube oil, and petroleum to domestic and international markets. It owned four vessels, one of which was "Navi Pride." On March 2, 1991, the day before "M/T Tabangao" was seized by Emilio Changco and his cohorts, Hiong's name was listed in the company's letter to the Mercantile Section of the Maritime Department of the Singapore government as the radio telephone operator on board the vessel "Ching Ma." The company was then dealing for the first time with Paul Gan, a Singaporean broker, who offered to sell to the former bunker oil for the amount of 300,000.00 Singapore dollars. After the company paid over one-half of the aforesaid amount to Paul Gan, the latter, together with Joseph Ng, Operations Superintendent of the firm, proceeded to the high seas on board "Navi Pride" but failed to locate the contact vessel. The transaction with Paul Gan finally pushed through on March 27, 1991. Hiong, upon his return on board the vessel "Ching Ma," was assigned to supervise a ship-to-ship transfer of diesel oil off the port of Singapore, the contact vessel to be designated by Paul Gan. Hiong was ordered to ascertain the quantity and quality of the oil and was given the amount of 300,000.00 Singapore Dollars for the purchase. Hiong, together with Paul Gan, and the surveyor William Yao, on board "Navi Pride" sailed toward a vessel called "M/T Galilee". Hiong was told that "M/T Galilee" would be making the transfer. Although no inspection of "Navi Pride" was made by the port authorities before departure, Navi Marine Services, Pte., Ltd. was able to procure a port clearance upon submission of General Declaration and crew list. Hiong, Paul Gan, and the brokers were not in the crew list submitted and did not pass through the immigration. The General Declaration falsely reflected that the vessel carried 11,900 tons.

On March 28, 1991, "Navi Pride" reached the location of "M/T Galilee". The brokers then told the Captain of the vessel to ship-side with "M/T Galilee" and then transfer of the oil transpired. Hiong and the surveyor William Yao met the Captain of "M/T Galilee," called "Captain Bobby" (who later turned out to be Emilio Changco). Hiong claimed that he did not ask for the full name of Changco nor did he ask for the latter's personal card. Upon completion of the transfer, Hiong took the soundings of the tanks in the "Navi Pride" and took samples of the cargo. The surveyor prepared the survey report which "Captain Bobby" signed under the name "Roberto Castillo." Hiong then handed the payment to Paul Gan and William Yao. Upon arrival at Singapore in the morning of March 29, 1991, Hiong reported the quantity and quality of the cargo to the company. Thereafter, Hiong was again asked to supervise another transfer of oil purchased by the firm " from "M/T Galilee" to "Navi Pride." The same procedure as in the first transfer was observed. This time, Hiong was told that that there were food and drinks, including beer, purchased by the company for the crew of "M/T Galilee. The transfer took ten hours and was completed on March 30, 1991. Paul Gan was paid in full for the transfer.
IaHCAD

On April 29 or 30, 1991, Emilio Changco intimated to Hiong that he had four vessels and wanted to offer its cargo to cargo operators. Hiong was asked to act as a broker or ship agent for the sale of the cargo in Singapore. Hiong went to the Philippines to discuss the matter with Emilio Changco, who laid out the details of the new transfer, this time with "M/T Polaris" as contact vessel. Hiong was told that the vessel was scheduled to arrive at the port of Batangas that weekend. After being billeted at Alpha Hotel in Batangas City, where Hiong checked in under the name "SONNY CSH." A person by the name of "KEVIN OCAMPO," who later turned out to be Emilio Changco himself, also checked in at Alpha Hotel. From accused-appellant Cecilio Changco, Hiong found out that the vessel was not arriving. Hiong was thereafter arrested by NBI agents. After trial, a 95-page decision was rendered convicting accused-appellants of the crime charged. The dispositive portion of said decision reads:
WHEREFORE, in the light of the foregoing considerations, judgment is hereby rendered by this Court finding the accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and Cecilio Changco guilty beyond reasonable doubt, as principals, of the crime of piracy in Philippine Waters defined in Section 2(d) of Presidential Decree No. 532 and the accused Cheong San Hiong, as accomplice, to said crime. Under Section 3(a) of the said law, the penalty for the principals of said crime is mandatory death. However, considering that, under the 1987 Constitution, the Court cannot impose the death penalty, the accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr., and Cecilio Changco are hereby each meted the penalty of RECLUSION PERPETUA, with all the accessory penalties of the law. The accused Cheong San Hiong is hereby meted the penalty of RECLUSION PERPETUA, pursuant to Article 52 of the Revised Penal Code in relation to Section 5 of PD 532. The accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and Cecilio Changco are hereby ordered to return to the PNOC Shipping and Transport Corporation the "M/T Tabangao" or if the accused can no longer return the same, the said accused are hereby ordered to remit, jointly and severally, to said corporation the value thereof in the amount of P11,240,000.00, Philippine Currency, with interests thereon, at the rate of 6% per annum from March 2, 1991 until the said amount is paid in full. All the accused including Cheong San Hiong are hereby ordered to return to the Caltex Philippines, Inc. the cargo of the "M/T Tabangao", or if the

accused can no longer return the said cargo to said corporation, all the accused are hereby condemned to pay, jointly and severally, to the Caltex Refinery, Inc., the value of said cargo in the amount of P40,426,793.87, Philippine Currency plus interests until said amount is paid in full. After the accused Cheong San Hiong has served his sentence, he shall be deported to Singapore. All the accused shall be credited for the full period of their detention at the National Bureau of Investigation and the City Jail of Manila during the pendency of this case provided that they agreed in writing to abide by and comply strictly with the rules and regulations of the City Jail of Manila and the National Bureau of Investigation. With costs against all the accused. SO ORDERED. (pp. 149-150, Rollo.)

The matter was then elevated to this Court. The arguments of accused-appellants may be summarized as follows: Roger P. Tulin, Virgilio I. Loyola, Andres C. Infante, Jr., and Cecilio O. Changco Accused-appellants Tulin, Loyola, Infante, Jr., and Cecilio Changco assert that the trial court erred in allowing them to adopt the proceedings taken during the time they were being represented by Mr. Tomas Posadas, a non-lawyer, thereby depriving them of their constitutional right to procedural due process.
cDTACE

In this regard, said accused-appellants narrate that Mr. Posadas entered his appearance as counsel for all of them. However, in the course of the proceedings, or on February 11, 1992, the trial court discovered that Mr. Posadas was not a member of the Philippine Bar. This was after Mr. Posadas had presented and examined seven witnesses for the accused. Further, accused-appellants Tulin, Loyola, Infante, Cecilio, Changco uniformly contend that during the custodial investigation, they were subjected to physical violence; were forced to sign statements without being given the opportunity to read the contents of the same; were denied assistance of counsel, and were not informed of their rights, in violation of their constitutional rights. Said accused-appellants also argue that the trial court erred in finding that the prosecution proved beyond reasonable doubt that they committed the crime of qualified piracy. They allege that the pirates were outnumbered by the crew who totaled 22 and who were not guarded at all times. The crew, so these accused-appellants conclude, could have overpowered the alleged pirates.
EAHcCT

Cheong San Hiong In his brief, Cheong argues that: (1) Republic Act No. 7659 in effect obliterated the crime committed by him; (2) the trial court erred in declaring that the burden is lodged on him to prove by clear and convincing evidence that he had no knowledge that Emilio Changco and his cohorts attacked and seized the "M/T Tabangao" and/or that the cargo of the vessel was stolen or the subject of theft or robbery or piracy; (3) the trial court erred in finding him guilty as an accomplice to the crime of qualified piracy under Section 4 of Presidential Decree No. 532 (Anti-Piracy and Anti-Robbery Law of 1974); (4) the trial court erred in convicting and punishing him as an accomplice when the acts allegedly committed by him were done or executed outside of Philippine waters and territory,

stripping the Philippine courts of jurisdiction to hold him for trial, to convict, and sentence; (5) the trial court erred in making factual conclusions without evidence on record to prove the same and which in fact are contrary to the evidence adduced during trial; (6) the trial court erred in convicting him as an accomplice under Section 4 of Presidential Decree No. 532 when he was charged as a principal by direct participation under said decree, thus violating his constitutional right to be informed of the nature and cause of the accusation against him. Cheong also posits that the evidence against the other accused-appellants do not prove any participation on his part in the commission of the crime of qualified piracy. He further argues that he had not in any way participated in the seajacking of "M/T Tabangao" and in committing the crime of qualified piracy, and that he was not aware that the vessel and its cargo were pirated. As legal basis for his appeal, he explains that he was charged under the information with qualified piracy as principal under Section 2 of Presidential Decree No. 532 which refers to Philippine waters. In the case at bar, he argues that he was convicted for acts done outside Philippine waters or territory. For the State to have criminal jurisdiction, the act must have been committed within its territory. We affirm the conviction of all the accused-appellants. The issues of the instant case may be summarized as follows: (1) what are the legal effects and implications of the fact that a non-lawyer represented accused-appellants during the trial?; (2) what are the legal effects and implications of the absence of counsel during the custodial investigation?; (3) did the trial court err in finding that the prosecution was able to prove beyond reasonable doubt that accused-appellants committed the crime of qualified piracy?; (4) did Republic Act No. 7659 obliterate the crime committed by accused-appellant Cheong?; and (5) can accused-appellant Cheong be convicted as accomplice when he was not charged as such and when the acts allegedly committed by him were done or executed outside Philippine waters and territory? On the first issue, the record reveals that a manifestation (Exhibit "20", Record) was executed by accused-appellants Tulin, Loyola, Changco, and Infante, Jr. on February 11, 1991, stating that they were adopting the evidence adduced when they were represented by a non-lawyer. Such waiver of the right to sufficient representation during the trial as covered by the due process clause shall only be valid if made with the full assistance of a bona fide lawyer. During the trial, accused-appellants, as represented by Atty. Abdul Basar, made a categorical manifestation that said accused-appellants were apprised of the nature and legal consequences of the subject manifestation, and that they voluntarily and intelligently executed the same. They also affirmed the truthfulness of its contents when asked in open court (tsn, February 11, 1992, pp. 7-59).
cHCIEA

It is true that an accused person shall be entitled to be present and to defend himself in person and by counsel at every stage of the proceedings, from arraignment to promulgation of judgment (Section 1, Rule 115, Revised Rules of Criminal Procedure). This is hinged on the fact that a layman is not versed on the technicalities of trial. However, it is also provided by law that "[r]ights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs or prejudicial to a third person with right recognized by law." (Article 6, Civil Code of the Philippines). Thus, the same section of Rule 115 adds that "[u]pon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel." By analogy, but without

prejudice to the sanctions imposed by law for the illegal practice of law, it is amply shown that the rights of accused-appellants were sufficiently and properly protected by the appearance of Mr. Tomas Posadas. An examination of the record will show that he knew the technical rules of procedure. Hence, we rule that there was a valid waiver of the right to sufficient representation during the trial, considering that it was unequivocally, knowingly, and intelligently made and with the full assistance of a bona fide lawyer, Atty. Abdul Basar. Accordingly, denial of due process cannot be successfully invoked where a valid waiver of rights has been made (People vs. Serzo, 274 SCRA 553 [1997]; Sayson vs. People, 166 SCRA 680 [1988]). However, we must quickly add that the right to counsel during custodial investigation may not be waived except in writing and in the presence of counsel. Section 12, Article III of the Constitution reads:
SECTION 12.(1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2)No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3)Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4)The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families.

Such rights originated from Miranda v. Arizona (384 U.S. 436 [1966]) which gave birth to the so-called Miranda doctrine which is to the effect that prior to any questioning during custodial investigation, the person must be warned that he has a right to remain silent, that any statement he gives may be used as evidence against him, and that he has the right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently. The Constitution even adds the more stringent requirement that the waiver must be in writing and made in the presence of counsel. Saliently, the absence of counsel during the execution of the so-called confessions of the accused-appellants make them invalid. In fact, the very basic reading of the Miranda rights was not even shown in the case at bar. Paragraph [3] of the aforestated Section 12 sets forth the so-called "fruit from the poisonous tree doctrine," a phrase minted by Mr. Justice Felix Frankfurter in the celebrated case of Nardone vs. United States (308 U.S. 388 [1939]). According to this rule, once the primary source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the "fruit") derived from it is also inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegally obtained evidence taints all evidence subsequently obtained (People vs. Alicando, 251 SCRA 293 [1995]). Thus, in this case, the uncounselled extrajudicial confessions of accused-appellants, without a valid waiver of the right to counsel, are inadmissible and

whatever information is derived therefrom shall be regarded as likewise inadmissible in evidence against them. However, regardless of the inadmissibility of the subject confessions, there is sufficient evidence to convict accused-appellants with moral certainty. We agree with the sound deduction of the trial court that indeed, Emilio Changco (Exhibits "U" and "UU") and accused-appellants Tulin, Loyola, and Infante, Jr. did conspire and confederate to commit the crime charged. In the words of then trial judge, now Justice Romeo J. Callejo of the Court of Appeals
. . . The Prosecution presented to the Court an array of witnesses, officers and members of the crew of the "M/T Tabangao" no less, who identified and pointed to the said Accused as among those who attacked and seized, the "M/T Tabangao" on March 2, 1991, at about 6:30 o'clock in the afternoon, off Lubang Island, Mindoro, with its cargo, and brought the said vessel, with its cargo, and the officers and crew of the vessel, in the vicinity of Horsebough Lighthouse, about sixty-six nautical miles off the shoreline of Singapore and sold its cargo to the Accused Cheong San Hiong upon which the cargo was discharged from the "M/T Tabangao" to the "Navi Pride" for the price of about $500,000.00 (American Dollars) on March 29, and 30, 1991. . . xxx xxx xxx The Master, the officers and members of the crew of the "M/T Tabangao" were on board the vessel with the Accused and their cohorts from March 2, 1991 up to April 10, 1991 or for more than one (1) month. There can be no scintilla of doubt in the mind of the Court that the officers and crew of the vessel could and did see and identify the seajackers and their leader. In fact, immediately after the Accused were taken into custody by the operatives of the National Bureau of Investigation, Benjamin Suyo, Norberto Senosa, Christian Torralba and Isaias Wervas executed their "Joint Affidavit" (Exhibit "B") and pointed to and identified the said Accused as some of the pirates. xxx xxx xxx Indeed, when they testified before this Court on their defense, the three (3) Accused admitted to the Court that they, in fact, boarded the said vessel in the evening of March 2, 1991 and remained on board when the vessel sailed to its destination, which turned out to be off the port of Singapore. (pp. 106-112, Rollo.)

We also agree with the trial court's finding that accused-appellants' defense of denial is not supported by any hard evidence but their bare testimony. Greater weight is given to the categorical identification of the accused by the prosecution witnesses than to the accused's plain denial of participation in the commission of the crime (People v. Baccay, 284 SCRA 296 [1998]). Instead, accused-appellants Tulin, Loyola, and Infante, Jr. narrated a patently desperate tale that they were hired by three complete strangers (allegedly Captain Edilberto Liboon, Second Mate Christian Torralba, and their companion) while said accused-appellants were conversing with one another along the seashore at Aplaya, Balibago, Calatagan, Batangas, to work on board the "M/T Tabangao" which was then anchored off-shore. And readily, said accused-appellants agreed to work as cooks and handymen for an indefinite period of time without even saying goodbye to their families, without even knowing their destination or the details of their voyage, without the personal effects needed for a long voyage at sea. Such evidence

is incredible and clearly not in accord with human experience. As pointed out by the trial court, it is incredible that Captain Liboon, Second Mate Torralba, and their companion "had to leave the vessel at 9:30 o'clock in the evening and venture in a completely unfamiliar place merely to recruit five (5) cooks or handymen (p. 113, Rollo)."
aSATHE

Anent accused-appellant Changco's defense of denial with the alibi that on May 14 and 17, he was at his place of work and that on April 10, 1991, he was in his house in Bacoor, Cavite, sleeping, suffice it to state that alibi is fundamentally and inherently a weak defense, much more so when uncorroborated by other witnesses (People v. Adora, 275 SCRA 441 [1997]) considering that it is easy to fabricate and concoct, and difficult to disprove. Accused-appellant must adduce clear and convincing evidence that, at about midnight on April 10, 1991, it was physically impossible for him to have been in Calatagan, Batangas. Changco not only failed to do this, he was likewise unable to prove that he was in his place of work on the dates aforestated. It is doctrinal that the trial court's evaluation of the credibility of a testimony is accorded the highest respect, for trial courts have an untrammeled opportunity to observe directly the demeanor of witnesses and, thus, to determine whether a certain witness is telling the truth (People v. Obello, 284 SCRA 79 [1998]). We likewise uphold the trial court's finding of conspiracy. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it (Article 8, Revised Penal Code). To be a conspirator, one need not participate in every detail of execution; he need not even take part in every act or need not even know the exact part to be performed by the others in the execution of the conspiracy. As noted by the trial court, there are times when conspirators are assigned separate and different tasks which may appear unrelated to one another, but in fact, constitute a whole and collective effort to achieve a common criminal design. We affirm the trial court's finding that Emilio Changco, accused-appellants Tulin, Loyola, and Infante, Jr. and others, were the ones assigned to attack and seize the "M/T Tabangao" off Lubang, Mindoro, while accused-appellant Cecilio Changco was to fetch the master and the members of the crew from the shoreline of Calatagan, Batangas after the transfer, and bring them to Imus, Cavite, and to provide the crew and the officers of the vessel with money for their fare and food provisions on their way home. These acts had to be well-coordinated. Accused-appellant Cecilio Changco need not be present at the time of the attack and seizure of "M/T Tabangao" since he performed his task in view of an objective common to all other accused-appellants. Of notable importance is the connection of accused-appellants to one another. Accusedappellant Cecilio Changco is the younger brother of Emilio Changco (aka Captain Bobby/Captain Roberto Castillo/Kevin Ocampo), owner of Phil-Asia Shipping Lines. Cecilio worked for his brother in said corporation. Their residences are approximately six or seven kilometers away from each other. Their families are close. Accused-appellant Tulin, on the other hand, has known Cecilio since their parents were neighbors in Aplaya, Balibago, Calatagan, Batangas. Accused-appellant Loyola's wife is a relative of the Changco brothers by affinity. Besides, Loyola and Emilio Changco had both been accused in a seajacking case regarding "M/T Isla Luzon" and its cargo of steel coils and plates off Cebu and Bohol in 1989. Emilio Changco (aka Kevin Ocampo) was convicted of the crime while Loyola at that time remained at large. As for accused-appellant Hiong, he ratiocinates that he can no longer be convicted of piracy in Philippine waters as defined and penalized in Sections 2[d] and 3[a],

respectively of Presidential Decree No. 532 because Republic Act No. 7659 (effective January 1, 1994), which amended Article 122 of the Revised Penal Code, has impliedly superseded Presidential Decree No. 532. He reasons out that Presidential Decree No. 532 has been rendered "superfluous or duplicitous" because both Article 122 of the Revised Penal Code, as amended, and Presidential Decree No. 532 punish piracy committed in Philippine waters. He maintains that in order to reconcile the two laws, the word "any person" mentioned in Section 1 [d] of Presidential Decree No. 532 must be omitted such that Presidential Decree No. 532 shall only apply to offenders who are members of the complement or to passengers of the vessel, whereas Republic Act No. 7659 shall apply to offenders who are neither members of the complement or passengers of the vessel, hence, excluding him from the coverage of the law. Article 122 of the Revised Penal Code, used to provide:
ARTICLE 122.Piracy in general and mutiny on the high seas. The penalty of reclusion temporal shall be inflicted upon any person who, on the high seas, shall attack or seize a vessel or, not being a member of its complement nor a passenger, shall seize the whole or part of the cargo of said vessel, its equipment, or personal belongings of its complement or passengers. (Italics supplied.)

Article 122, as amended by Republic Act No. 7659 (January 1, 1994), reads:
ARTICLE 122.Piracy in general and mutiny on the high seas or in Philippine waters. The penalty of reclusion perpetua shall be inflicted upon any person who, on the high seas, or in Philippine waters, shall attack or seize a vessel or, not being a member of its complement nor a passenger, shall seize the whole or part of the cargo of said vessel, its equipment, or personal belongings of its complement or passengers.
EacHCD

(Italics ours)

On the other hand, Section 2 of Presidential Decree No. 532 provides:

SECTION 2. Definition of Terms. The following shall mean and be understood, as follows: d.Piracy. Any attack upon or seizure of any vessel or the taking away of the whole or part thereof or its cargo, equipment, or the personal belongings of its complement or passengers, irrespective of the value thereof, by means of violence against or intimidation of persons or force upon things, committed by any person, including a passenger or member of the complement of said vessel in Philippine waters, shall be considered as piracy. The offenders shall be considered as pirates and punished as hereinafter provided (italics supplied).

To summarize, Article 122 of the Revised Penal Code, before its amendment, provided that piracy must be committed on the high seas by any person not a member of its complement nor a passenger thereof. Upon its amendment by Republic Act No. 7659, the coverage of the pertinent provision was widened to include offenses committed "in Philippine waters." On the other hand, under Presidential Decree No. 532 (issued in 1974), the coverage of the law on piracy embraces any person including "a passenger or member of the complement of said vessel in Philippine waters." Hence, passenger or not, a member of the complement or not, any person is covered by the law.

Republic Act No. 7659 neither superseded nor amended the provisions on piracy under Presidential Decree No. 532. There is no contradiction between the two laws. There is likewise no ambiguity and hence, there is no need to construe or interpret the law. All the presidential decree did was to widen the coverage of the law, in keeping with the intent to protect the citizenry as well as neighboring states from crimes against the law of nations. As expressed in one of the "whereas" clauses of Presidential Decree No. 532, piracy is "among the highest forms of lawlessness condemned by the penal statutes of all countries." For this reason, piracy under the Article 122, as amended, and piracy under Presidential Decree No. 532 exist harmoniously as separate laws. As regards the contention that the trial court did not acquire jurisdiction over the person of accused-appellant Hiong since the crime was committed outside Philippine waters, suffice it to state that unquestionably, the attack on and seizure of "M/T Tabangao" (renamed "M/T Galilee" by the pirates) and its cargo were committed in Philippine waters, although the captive vessel was later brought by the pirates to Singapore where its cargo was off-loaded, transferred, and sold. And such transfer was done under accusedappellant Hiong's direct supervision. Although Presidential Decree No. 532 requires that the attack and seizure of the vessel and its cargo be committed in Philippine waters, the disposition by the pirates of the vessel and its cargo is still deemed part of the act of piracy, hence, the same need not be committed in Philippine waters. Moreover, piracy falls under Title One of Book Two of the Revised Penal Code. As such, it is an exception to the rule on territoriality in criminal law. The same principle applies even if Hiong, in the instant case, were charged, not with a violation of qualified piracy under the penal code but under a special law, Presidential Decree No. 532 which penalizes piracy in Philippine waters. Verily, Presidential Decree No. 532 should be applied with more force here since its purpose is precisely to discourage and prevent piracy in Philippine waters (People v. Catantan, 278 SCRA 761 [1997]). It is likewise, well-settled that regardless of the law penalizing the same, piracy is a reprehensible crime against the whole world (People v. Lol-lo, 43 Phil. 19 [1922]). However, does this constitute a violation of accused-appellant's constitutional right to be informed of the nature and cause of the accusation against him on the ground that he was convicted as an accomplice under Section 4 of Presidential Decree No. 532 even though he was charged as a principal by direct participation under Section 2 of said law? The trial court found that there was insufficiency of evidence showing: (a) that accused-appellant Hiong directly participated in the attack and seizure of "M/T Tabangao" and its cargo; (b) that he induced Emilio Changco and his group in the attack and seizure of "M/T Tabangao" and its cargo; (c) and that his act was indispensable in the attack on and seizure of "M/T Tabangao" and its cargo. Nevertheless, the trial court found that accused-appellant Hiong's participation was indisputably one which aided or abetted Emilio Changco and his band of pirates in the disposition of the stolen cargo under Section 4 of Presidential Decree No. 532 which provides:
SECTION 4. Aiding pirates or highway robbers/brigands or abetting piracy or highway robbery brigandage. Any person who knowingly and in any manner aids or protects pirates or highway robbers/brigands, such as giving them information about the movement of police or other peace officers of the government, or acquires or receives property taken by such pirates or brigands or in any manner derives any benefit therefrom; or any person who directly or indirectly abets the commission of piracy or highway robbery or brigandage,

shall be considered as an accomplice of the principal officers and be punished in accordance with Rules prescribed by the Revised Penal Code.
ITDSAE

It shall be presumed that any person who does any of the acts provided in this Section has performed them knowingly, unless the contrary is proven.

The ruling of the trial court is within well-settled jurisprudence that if there is lack of complete evidence of conspiracy, the liability is that of an accomplice and not as principal (People v. Tolentino, 40 SCRA 514 [1971]). Any doubt as to the participation of an individual in the commission of the crime is always resolved in favor of lesser responsibility (People v. Corbes, 270 SCRA 465 [1997]; People vs. Elfano, Jr., 125 SCRA 792 [1983]; People v. Pastores, 40 SCRA 498 [1971]). Emphasis must also be placed on the last paragraph of Section 4 of Presidential Decree No. 532 which presumes that any person who does any of the acts provided in said section has performed them knowingly, unless the contrary is proven. In the case at bar, accused-appellant Hiong had failed to overcome the legal presumption that he knowingly abetted or aided in the commission of piracy, received property taken by such pirates and derived benefit therefrom. The record discloses that accused-appellant Hiong aided the pirates in disposing of the stolen cargo by personally directing its transfer from "M/T Galilee" to "M/T Navi Pride". He profited therefrom by buying the hijacked cargo for Navi Marine Services, Pte., Ltd. (tsn, June 3, 1992, pp. 15-23). He even tested the quality and verified the quantity of the petroleum products, connived with Navi Marine Services personnel in falsifying the General Declarations and Crew List to ensure that the illegal transfer went through, undetected by Singapore Port Authorities, and supplied the pirates with food, beer, and other provisions for their maintenance while in port (tsn, June 3, 1992, pp. 133-134). We believe that the falsification of the General Declaration (Arrival and Departure) and Crew List was accomplished and utilized by accused-appellant Hiong and Navi Marine Services personnel in the execution of their scheme to avert detection by Singapore Port Authorities. Hence, had accused-appellant Hiong not falsified said entries, the Singapore Port Authorities could have easily discovered the illegal activities that took place and this would have resulted in his arrest and prosecution in Singapore. Moreover, the transfer of the stolen cargo from "M/T Galilee" to "Navi Pride" could not have been effected. We completely uphold the factual findings of the trial court showing in detail accusedappellant Hiong's role in the disposition of the pirated goods summarized as follows: that on March 27, 1991, Hiong with Captain Biddy Santos boarded the "Navi Pride," one of the vessels of the Navi Marine, to rendezvous with the "M/T Galilee"; that the firm submitted the crew list of the vessel (Exhibit "8-CSH", Record) to the port authorities, excluding the name of Hiong; that the "General Declaration" (for departure) of the "Navi Pride" for its voyage off port of Singapore (Exhibits "HH" and "8-A CSH", Record) falsely stated that the vessel was scheduled to depart at 2200 (10 o'clock in the evening), that there were no passengers on board, and the purpose of the voyage was for "cargo operation" and that the vessel was to unload and transfer 1,900 tons of cargo; that after the transfer of the fuel from "M/T Galilee" with Emilio Changco a. k. a. Captain Bobby a. k. a. Roberto Castillo at the helm, the surveyor prepared the "Quantity Certificate" (Exhibit "11-C CSH, Record) stating that the cargo transferred to the "Navi Pride" was 2,406 gross cubic meters; that although Hiong was not the Master of the vessel, he affixed his signature on the "Certificate" above the word "Master" (Exhibit "11-C-2 CSH", Record); that he then paid $150,000.00 but did not require any receipt for the

amount; that Emilio Changco also did not issue one; and that in the requisite "General Declaration" upon its arrival at Singapore on March 29, 1991, at 7 o'clock in the evening, (Exhibits "JJ" and "13-A CSH", Record), it was made to falsely appear that the "Navi Pride" unloaded 1,700 tons of cargo on the high seas during said voyage when in fact it acquired from the "M/T Galilee" 2,000 metric tons of diesel oil. The second transfer transpired with the same irregularities as discussed above. It was likewise supervised by accused-appellant Cheong from his end while Emilio Changco supervised the transfer from his end.
EcHIAC

Accused-appellant Hiong maintains that he was merely following the orders of his superiors and that he has no knowledge of the illegality of the source of the cargo. First and foremost, accused-appellant Hiong cannot deny knowledge of the source and nature of the cargo since he himself received the same from "M/T Tabangao". Second, considering that he is a highly educated mariner, he should have avoided any participation in the cargo transfer given the very suspicious circumstances under which it was acquired. He failed to show a single piece of deed or bill of sale or even a purchase order or any contract of sale for the purchase by the firm; he never bothered to ask for and scrutinize the papers and documentation relative to the "M/T Galilee"; he did not even verify the identity of Captain Robert Castillo whom he met for the first time nor did he check the source of the cargo; he knew that the transfer took place 66 nautical miles off Singapore in the dead of the night which a marine vessel of his firm did not ordinarily do; it was also the first time Navi Marine transacted with Paul Gan involving a large sum of money without any receipt issued therefor; he was not even aware if Paul Gan was a Singaporean national and thus safe to deal with. It should also be noted that the value of the cargo was P40,426,793.87 or roughly more than US$1,000,000.00 (computed at P30.00 to $1, the exchange rate at that time). Manifestly, the cargo was sold for less than one-half of its value. Accused-appellant Hiong should have been aware of this irregularity. Nobody in his right mind would go to far away Singapore, spend much time and money for transportation only to sell at the aforestated price if it were legitimate sale involved. This, in addition to the act of falsifying records, clearly shows that accused-appellant Hiong was well aware that the cargo that his firm was acquiring was purloined. Lastly, it cannot be correctly said that accused-appellant was "merely following the orders of his superiors." An individual is justified in performing an act in obedience to an order issued by a superior if such order, is for some lawful purpose and that the means used by the subordinate to carry out said order is lawful (Reyes, Revised Penal Code, Vol. 1, 1981 ed., p. 212). Notably, the alleged order of Hiong's superior Chua Kim Leng Timothy, is a patent violation not only of Philippine, but of international law. Such violation was committed on board a Philippine-operated vessel. Moreover, the means used by Hiong in carrying out said order was equally unlawful. He misled port and immigration authorities, falsified records, using a mere clerk, Frankie Loh, to consummate said acts. During the trial, Hiong presented himself, and the trial court was convinced, that he was an intelligent and articulate Port Captain. These circumstances show that he must have realized the nature and the implications of the order of Chua Kim Leng Timothy. Thereafter, he could have refused to follow orders to conclude the deal and to effect the transfer of the cargo to the "Navi Pride." He did not do so, for which reason, he must now suffer the consequences of his actions. WHEREFORE, finding the conviction of accused-appellants justified by the evidence on record, the Court hereby AFFIRMS the judgment of the trial court in toto.

SO ORDERED. Vitug, Panganiban, Gonzaga-Reyes and Sandoval-Gutierrez, JJ., concur.

SECOND DIVISION
[G.R. No. 123101. November 22, 2000.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TITING ARANAS @ TINGARDS/RONNIE, ANGELO PARACUELES, JUAN VILLA @ JUANTOY, ELMER MANALILI, ET AL., accused. ELMER MANALILI, accused-appellant. The Solicitor General for plaintiff-appellee. Eladio W. Arcales for accused-appellant. SYNOPSIS Elmer Manalili, along with several other malefactors, boarded a passenger sea vessel and seized its radio. Subsequently, it demanded and divested the crewmembers and passengers of the vessel of their cash and valuables, including the equipments of the vessel, in the total amount of P550,000.00. On the same occasion, physical injuries on the person of the vessel's quartermaster, Ernesto Magalona, were committed. The other five accused remained at large, hence, the case of qualified piracy proceeded only against accused Manalili. When arraigned, Manalili pleaded not guilty. He also waived his right to pre-trial. Thereafter trial ensued. The trial court found that prosecution witnesses Gervacio Uy and Ernesto Magalona identified accused Manalili as one of the pirates; therefore, the alibi of the accused could not prevail over his positive identification. The trial court found Manalili guilty of qualified piracy and sentenced him to reclusion perpetua. Hence, this appeal. Appellant contended that the trial court erred in appreciating the testimonial evidence of both the prosecution and defense that led to his conviction. The prosecution failed to prove his guilt beyond reasonable doubt that he was one of the pirates. According to the Supreme Court, where the eyewitnesses contradict themselves on a vital question, such as the identity of the offender, the element of reasonable doubt is injected and cannot be lightly disregarded. In this case, there was no positive identification of the appellant, as prosecution witness Uy and Magalona contradicted themselves on the identity of the alleged offender. The Court ruled that the prosecution failed to prove beyond reasonable doubt that the appellant was one of the pirates who committed the crime charged, hence, he must be acquitted. The decision of the trial court was reversed and set aside.

SYLLABUS 1.REMEDIAL LAW; EVIDENCE; PROOF BEYOND REASONABLE DOUBT; QUANTUM OF EVIDENCE REQUIRED FOR CONVICTION; NOT PRESENT WHERE EYEWITNESSES CONTRADICT THEMSELVES AS TO IDENTITY OF THE OFFENDER; CASE AT BAR. Where eyewitnesses contradict themselves on a vital question, such as the identity of the offender, the element of reasonable doubt is injected and cannot be lightly disregarded. The identity of the offender, like the crime itself must be proven beyond a reasonable doubt. In the case at bench, there is no positive identification of the appellant inasmuch as prosecution eyewitnesses Uy and Magalona contradicted themselves on the identity of the alleged offender. Moreover, although prosecution witness Gervacio Uy stated that one of the pirates who opened the locker of Ernesto Magalona had a tattoo on his left hand with the initials "GV," the trial court did not see any tattoo mark on the appellant's left hand. Further, witness Uy declared that he saw appellant for the first time during the investigation before the municipal judge of Ubay. He told the municipal judge that appellant's face was 'familiar among the eight seajackers," but Magalona identified appellant as one of the pirates. Compared with the identification made by Magalona, Uy's statement that appellant's face was familiar among the pirates is characterized by uncertainty. His identification of appellant in the trial court based on the aforementioned statement retained its doubtful tenor. Significantly, the passenger named Boiser who allegedly identified the appellant as one of the pirates before the municipal judge of Ubay was significantly not presented as a witness by the prosecution. From the foregoing, it appears that the prosecution failed to prove beyond reasonable doubt that appellant was one of the eight men who committed qualified piracy in the instant case.
SECcIH

2.ID.; ID.; DEFENSE OF ALIBI; DESERVES MERIT WHEN THE PROSECUTION FAILED TO ESTABLISH GUILT OF THE ACCUSED; CASE AT BAR. Appellant's defense of alibi is generally considered a weak defense. However, it assumes importance when his identification as an alleged offender in the crime charged is inconclusive or unreliable. Appellant asserted that at the time of the piracy in the seawaters of Ubay, Bohol, he was in his residence in Cebu City, and which alibi was corroborated by Jeffrey Perandos, Reynaldo Cardona and his wife, Cherry Mae Manalili. Although alibi can be fabricated, it is not always false and without merit, and when coupled with the improbabilities and uncertainties of the prosecution evidence, the defense of alibi deserves merit. Besides, the prosecution has the burden of proof in establishing the guilt of the accused. When the prosecution fails to discharge its burden, an accused need not even offer evidence in his behalf. In every criminal prosecution, the identity of the offender or offenders must be established by proof beyond reasonable doubt. There must be moral certainty in an unprejudiced mind that it was accused-appellant who committed the crime. Absent this required quantum of evidence would mean exoneration for accused-appellant.
caTIDE

DECISION

DE LEON, JR., J :
p

Before us is an appeal from the decision 1 of the Regional Trial Court of Bohol, 7th Judicial Region, Branch 3, Tagbilaran City finding accused-appellant Elmer Manalili

guilty beyond reasonable doubt of the crime of qualified piracy and sentencing him to suffer the penalty of reclusion perpetua and to indemnify certain individuals. The Information indicting appellant reads:
That on or about the 15th day of December, 1992 in the seawaters of the municipality of Ubay, Province of Bohol, Philippines, which is part of the Philippine waters and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating and mutually helping one another, with intent to gain, and by means of violence against or intimidation of persons, did then and there willfully, unlawfully and feloniously seize by boarding a passenger sea vessel M/V J & N Princess, owned by one Nelson Uy and under the complement of Gervacio Uy and Saturnino Gaudicos with 19 officers and crow members and while on board said vessel, seized its radio and subsequently demanded and divested them and its passengers cash in the amount of P200,000.00, Philippine Currency and valuables and equipments worth P350,000.00, Philippine currency or in the total amount of Five Hundred Fifty Thousand Pesos (P550,000.00), Philippine Currency, and on the occasion of said piracy, accused committed the crime of physical injuries on the person of Ernesto Magalona, the quarter master; to the damage and prejudice of the offended parties in the above stated total amount. Acts committed contrary to the provisions of Art. 123 of the Revised Penal Code, as amended by PD 532. 2

Accused Titing Aranas alias Tingards, Angelo Paracueles, Juan Villa alias Juantoy, Gaudencio Tolsidas and Rodrigo Salas remain at large. Hence, this case proceeded only against appellant Elmer Manalili who was arrested on January 21, 1993 in Cebu City. When arraigned on August 23, 1993, appellant Manalili pleaded not guilty. 3 He also waived his right to pre-trial. Thereafter, trial ensued. The prosecution presented the following testimonial evidence: Prosecution witness Gervacio Ong Uy, 62, operations manager of the cargo-passenger vessel M/V J & N Princess, testified that at 9:40 in the evening of December 15, 1992, Tuesday, he boarded said vessel. The vessel plies the route between Ubay, Bohol and Cebu (and vice-versa) every other day or every Sunday, Tuesday and Thursday. It leaves the port of Ubay, Bohol at 10:00 o' clock in the evening. About twenty minutes after departure on said date, he went down to urinate at the lower deck. After urinating, two persons were standing behind him; one was pointing a gun at his back and the other was holding his collar. They ordered him to go upstairs to the third or upper deck. Arriving there, they told him to open the radio room, and they destroyed the radio. They also ordered that all lockers of the room be opened. They told him that they were military men looking for firearms and shabu. He opened all lockers except that of quartermaster Ernesto Magalona, who was not around as he was hiding. The crew members looked for him, and when he appeared, the pirates scolded and hit him with an armalite. He was about 3 meters away from Magalona. Magalona opened his locker but the pirates were not able find anything inside. When the locker was opened, he saw that the left hand of one pirate had a tattoo with the initials "G. V." 4 The pirates took from Gervacio Uy P30,500.00 in cash and his wristwatch worth P1,500.00. From an inventory made by the purser, the pirates divested from the

passengers P200,000.00 in cash, and P300,000.00 worth of personal belongings including radio and jewelry. 5 After the robbery, the leader of the pirates told the quartermaster to stop the engine of the vessel, then there was a gunshot, which was apparently a signal for the get-away pumpboat. Before the pirates left, they told Uy's group not to go back to Ubay, but to proceed to Cebu, otherwise the boat would be strafed. Nevertheless, they proceeded to Talibon, Bohol in order to report the incident to the police. They arrived in Cebu at 5:00 o' clock in the morning of December 16, 1992. 6 Gervacio Uy declared that he identified the two persons who initially pointed a gun at him through pictures. The one who pointed an armalite at him was about 5'6" in height, regular in built, brown complexion, with straight hair and between 25 to 28 years old. The second man was older, about 42 years old, 5'3" or 5'4" in height, medium built with brown complexion and black hair; he was carrying what looked like an uzi gun. From pictures presented by the Central Intelligence Service (CIS) when he was investigated, he identified the two as Titing Aranas and Paracueles, all at large. When appellant Elmer Manalili was presented during the preliminary investigation before the municipal Judge of Ubay, he told Municipal Judge Napuli that his face was familiar among the eight pirates. However, quartermaster Magalona and Boiser, a passenger, identified him as one of the pirates. 7 On cross-examination, Gervacio Uy said that out of the 20 pictures presented to him for identification by the CIS, he only positively identified Titing Aranas and Angelo Paracueles. He saw Elmer Manalili for the first time when he was presented before Judge Napuli for investigation. 8 Prosecution witness Ernesto Magalona, 39, quartermaster of M/V J & N Princess since 1991 to the present, testified that on December 15, 1992, he was on board the said vessel which left the port of Ubay, Bohol bound for Cebu at 10:00 o' clock in the evening. He was off-duty then. At the time of the robbery, he was on the second deck of the boat. He was lying on his cot near the passage way leading to the upper deck when someone shouted, "Ayaw paglihok kay duna miy pangitaon nga shabu ug armas nga uzi," meaning, "Do not move, we are searching for shabu and uzi gun." Then he saw their manager Gervacio Uy being escorted by two armed men. One was armed with an armalite pointed at Uy. The other man was also armed because something was bulging at his waist, but he did not see the kind of firearm he was carrying. He could identify the two armed men who escorted Uy, because he was about three to four meters away from them and the place was well illuminated with fluorescent lights. He identified one of the said armed men by pointing to a person inside the court room who, when asked his name, answered that he was Elmer Manalili. He declared that the other man carried a long firearm. Describing the manner Uy was escorted, he said that the man holding the armalite was also holding the collar of Uy and pushing him while appellant followed. Uy and the two armed men eventually reached the third deck where the armed men destroyed the radio. He came to know that the radio was destroyed because the purser who came from the third deck looking for him told him so. He tried to cover his face with his malong, but ultimately a pirate saw him and struck him with his gun hitting his right ear so he was forced to stand up and go with them to the third deck. When he was at the third or upper deck, Uy was on his way down to the second deck escorted by appellant. Immediately after his locker was opened, he was instructed to return to his cot and ordered to lie down. 9

Magalona said that there were about eight (8) pirates. He could only remember and identify the two armed men who escorted Gervacio Uy because the movements of the pirates were so fast and coordinated. He could remember Elmer Manalili because he was facing him and he saw him frontally. The pirates divested the passengers of their belongings. His wallet containing P1,000.00 was taken. 10 On cross-examination, Magalona stated that when the robbers announced a hold-up, he was lying down. They were ordered to remain lying down, face down for less than an hour. The robbers were in pairs stationed at the lower deck, second deck and third deck while the other two made rounds of these decks. When the passengers were divested of their belongings, operations manager Uy was at the third or upper deck escorted by the two armed men, one of whom was the appellant. He was positive that from the start, the two armed men escorted Uy from the comfort room at the lower deck to the second deck and then the third or upper deck where the radio room was located. They did not separate from Uy but always followed him, and he had a good look at them when they passed by the second deck. 11 After the incident, Magalona saw the appellant at the office of the chief of police in Ubay, Bohol and then during the investigation at the office of the municipal judge. He also saw the appellant from pictures of suspects shown to him at the office of the chief of police. 12 Prosecution witness SPO2 Alex Henson Reyes, a member of the Philippine National Police (PNP), Ubay, Bohol, testified that on December 15, 1992 he was a passenger of M/V J & N Princess bound for Cebu. He was asleep when the boat left the port of Ubay, but was awakened by a gunfire. Then he saw a pirate aiming an armalite rifle, and another one, about 16 years old, aiming his carbine rifle, at him. Another pirate got his bag, and taken therefrom was his service revolver, a caliber .38 Smith and Wesson, issued by the Chief of Police. The gun had twelve (12) rounds of ammunition. After the incident, he went to the PNP in Bohol, and from pictures that were shown to him, he identified the pirate who got his bag as Angelo Paracueles. He did not see the appellant during the incident. 13 Due to fright suffered at the time of the incident, SPO2 Reyes asked for moral damages of P50,000.00, and actual damages of P50,000.00 for the loss of the gun, and P288.00 for the 12 rounds of ammunition. 14
SDTIHA

Prosecution witness PO3 Saul Pino Cuyno, 15 a member of the PNP Ubay, Bohol, testified that in the evening of December 15, 1992, he was also a passenger of M/V J & N Princess. The pirates took from him P80.00 in cash and his watch worth P4,000.00. The armed men mentioned by SPO2 Reyes were the same men who aimed their guns at him. From pictures that were shown to him after the incident, he identified one of the armed men as Angelo Paracueles. 16 On the other hand, appellant Elmer Manalili denied that he was involved in the piracy committed on board M/V J & N Princess in the evening of December 15, 1992 in the seawaters of Ubay, Bohol inasmuch as he was in his residence in Cebu City at that time. Defense witness Jeffrey Dadula Perandos, 26, single, third year high school, industrial painter, testified that he knew appellant since they were neighbors at Cabantan St., Mabolo, Cebu City. Appellant started to live there when he was eight (8) years old and stayed with his elder brother Junior Manalili. He does not know appellant's father because the latter died in Camotes Island before appellant transferred to Mabolo, Cebu

City. In 1989, appellant married Cherry Mae Elimino from Lutopan, Cebu. After their marriage, they stayed in Lutopan for a while, and resided in Nivel, Lahug, Cebu City in October or November 1992. 17 Perandos said that he has been working as an industrial painter since he was 15 years old. In December 1992, he was hired to paint the house of Mr. Chua in La Guardia, Lahug, Cebu City. His companions were appellant, Reynaldo Cardona, Ernesto Dadula and master painter Nicomedes Baguio who was the head of their group. They started painting the house of Mr. Chua sometime during the first week of December, but he did not finish painting the house because he transferred to another painting job at Basak, Mandaue and stopped working with Mr. Chua about the end of January 1993. 18 According to Perandos, when they started working at La Guardia, he and Reynaldo Cardona slept at appellant's house. On December 14, 1992, he, appellant and Reynaldo Cardona started painting the house of Mr. Chua at 8:00 o' clock in the morning and stopped working at 5:00 o' clock in the afternoon. Then they proceeded to the house of appellant together with Reynaldo Cardona and ate supper there at 8:00 o' clock in the evening. Appellant's wife was not around because she was working as an entertainer in a karaoke bar. Thereafter, they had a drinking spree, and then slept in appellant's house. The next day, December 15, 1992, they went to work at the Chua's residence early in the morning and stopped working at 5:00 o' clock in the afternoon. They proceeded to appellant's house and arrived there at 6:00 o' clock in the evening. Appellant's wife was still around and they ate supper with her. She left for work at 6:30 in the evening. Appellant was left to take care of their child. After supper, he, Reynaldo Cardona and appellant were drinking until 10:00 o'clock in the evening. Appellant slept ahead of them at 11:00 o' clock that night. 19 Perandos stated that appellant was working continuously at the Chua's residence from the first week of December until his arrest at about 7:00 o' clock in the evening of January 21, 1993. He knew of the arrest because appellant was arrested at the side of his house. At that time, appellant went to his house in order for them to borrow money from a close friend, money lender Cecilia Cupta. After the arrest, he visited appellant at Camp Sotero Cabahug, Cebu City and asked why he was arrested. Appellant said he was only a suspect. 20 On cross-examination, Perandos said that he was asked to testify by appellant's wife, Cherry Mae, and appellant himself in a letter handcarried by Cherry Mae. In said letter, appellant also asked Reynaldo Cardona, his neighbor, to testify for him. Appellant's wife paid for his fare. 21 Defense witness Reynaldo Cupta Cardona, 21, single, elementary graduate, painter, and a resident of 55-B Cabantan Street, Barangay Mabolo, Cebu City, testified that appellant resided in Nivel, Lahug, Cebu City. He knew appellant since they worked together in painting the house of Alfonso Chua at La Guardia, Lahug, Cebu City. Aside from appellant, his other companions were Jeffrey Perandos, Ernesto Dadula and Nicolas Baguio. They started painting in December 1992 and finished the work in February 1993. However, appellant was arrested on January 21, 1993 so only four of them finished the painting job. 22 Cardona stated that on December 14, 1992, he, appellant and Jeffrey Perandos started painting the house of Mr. Chua at 7:00 o' clock in the morning, and stopped working at 5:00 o' clock in the afternoon. Then they proceeded to the house of appellant where they slept to save on fare. They ate supper at 6:00 o' clock in the evening together with

appellant's wife Cherry Mae, who did not work as it was her day-off. Appellant went to bed at past 7:00 o' clock in the evening, and slept with his child. He and Cherry Mae talked about her work, while Jeffrey Perandos listened. They all slept at 10:00 to 11:00 o' clock that night. The following day, December 15, 1992, they went to work at Mr. Chua's residence at 7:00 o' clock in the morning. They stopped working at 5:00 o' clock in the afternoon, then proceeded to appellant's house. They ate supper at 6:00 o' clock in the evening with Cherry Mae as it was still her day-off. Appellant slept ahead because he had to make his child sleep. They conversed with Cherry Mae after they cleaned the house, and slept at past 10:00 o' clock that night. The following day, December 16, 1992, he woke up ahead and prepared his "baon" at 5:50 in the morning. Appellant and Jeffrey Perandos woke up at the same time. Appellant played ball with his child. They left for work at past 6:00 o' clock in the morning, and started working at 7:00 o' clock. His companions were appellant, Jeffrey Perandos, Nicolas Baguio and Ernesto Dadula. 23 On cross-examination, Cardona said that appellant's wife requested him to testify in this case, and gave him P70.00 for fare. On December 3, 1993, she gave him and Jeffrey Perandos more than P200.00. 24 On re-direct examination, Cardona clarified that while they were staying at appellant's house when they were then painting the house of Mr. Chua, they contributed money for their food. 25 Defense witness Cherry Mae Manalili declared that she was appellant's wife. In December 1992, her husband was a painter. She knew Jeffrey Perandos and Reynaldo Cardona since the time they had a painting job together with her husband at the Chua's residence in La Guardia, Lahug, Cebu City. At that time, her family consisting of her husband and one-year-old child, was residing at Nivel, Lahug, Cebu City. They rented a room and kitchen from one Nang Ason in the middle of November. She was then working at the X-O Karaoke Bar. Her work was from 7:30 in the evening to 2:00 o' clock in the morning. In June 1993, she transferred to Steve's Karaoke Bar where she is presently employed. 26 Cherry Mae said that while working with her husband at the Chua's residence, Perandos and Cardona lived with her family at Nivel, Lahug, Cebu City since December 7, 1992 to minimize travel expenses. They contributed money for their food. 27 She stated that on December 14, 1992, Perandos and Cardona were still staying with them. When she left for work at 7:30 in the evening, her husband was at home taking care of their child. On December 15, 1992, she left for work at about 8:00 o' clock in the evening. Her husband, their son, Perandos and Cardona were left at home. She arrived home at about 1:20 in the morning after their Christmas party. It was her husband who opened the door of their house; their child, Perandos and Cardona were still sleeping. 28 According to Cherry Mae, Perandos and Cardona stayed in their house from December 7, 1992 to January 21, 1993. They left when her husband was arrested. At the time of his arrest, she was in Lutopan, Toledo City as she attended the burial of her grandmother on January 20, 1993. It was Perandos who informed her that her husband was arrested at 7:00 o' clock in the evening of January 21, 1993 in Mabolo, Cebu City. He was in Mabolo at that time because he wanted to borrow money. 29 Appellant Elmer Manalili y Pogio, 24 years old, testified that he was a painter by profession. He does not know the co-accused Titing Aranas, Angelo Paracueles, Juan

Villa, Gaudencio Tolsidas and Rodrigo Salas. He denied that in the evening of December 15, 1992, he was at the wharf of Ubay, Bohol. 30 He is married to Cherry Mae Elemino who is employed as a disco karaoke entertainer in Cebu City. They got married in 1989, and then lived with his in-laws in Lutopan for about a year in 1990 before transferring to Lahug, Cebu City. 31 Appellant stated that in December 1992, they resided in Nivel, Lahug, Cebu City. In the morning and afternoon of December 15, 1992, he was working as a painter in the house of Mr. Chua in La Guardia, Lahug. In the evening, he was at home with his wife and child, Reynaldo Cardona and Jeffrey Perandos. That night, his wife left after 7:00 o' clock in the evening and attended a party given by her employer at the X-O Karaoke Bar. 32 He was arrested at 7:00 o' clock in the evening of January 21, 1993, at Cabantan Street, Mabolo, Cebu City by policemen without a warrant of arrest. He was in Mabolo to borrow money from the spouses Cupta, who were neighbors of Jeffrey Perandos. At that time, his wife was in Lutopan as she attended the burial of her grandmother. After his arrest, he was brought to Camp Cabahug, Cebu City and then brought to Bohol on January 24, 1993 and detained at Camp Dagohoy in Tagbilaran City until September 10, 1993. He was later transferred to the Bohol Detention and Rehabilitation Center. 33 According to appellant, while he was in the municipal jail of Ubay, Bohol, about 30 people, whom he did not know, came to see him at his prison cell. Two of them were prosecution witnesses Gervacio Uy and Ernesto Magalona. It was Magalona who asked him, "Who is Elmer Manalili?" He answered that he was the one. There were four inmates then inside the prison cell. Uy did not talk to him, but just took a good look at him. Magalona pointed at him as one of the pirates and said "mao mao," which means, "looked like" one of the pirates. 34 Appellant denied that he was in the vicinity of Ubay, Bohol in the evening of December 15, 1992. He went to Bohol for the first time when he was brought to Tagbilaran City after he was arrested by the police in Cebu City. 35 Although prosecution witness Gervacio Uy testified that one of the pirates who opened the locker of the quartermaster had a tattoo with the initials "GV" on his left hand, the court found no such tattoo mark on appellant's left hand. Moreover, appellant's height is 5 feet 7 and 1/2 inches. 36 The trial court found that prosecution witnesses Gervacio Uy and Ernesto Magalona identified appellant as one of the pirates. It held that the defense of alibi could not prevail over said positive identification. 37 On September 2, 1994, the trial court rendered judgment against appellant, the dispositive portion of which reads:
WHEREFORE, in the light of the foregoing premises, this Court finds accused ELMER MANALILI GUILTY of Qualified Piracy beyond reasonable doubt and hereby sentences him to a penalty of imprisonment of RECLUSION PERPETUA. Further, accused Elmer Manalili is ordered to reimburse and pay complaining witnesses the following: A.Complaining witness Gervacio Ong Uy: 1.P30,500.00representing cash taken from him by the pirates:

2.P1,500.00value of his Seiko watch; 3.P4,000.00value of his diamond ring; 4.P10,000.00representing actual, exemplary, and moral damages. B.Complaining witness Ernesto Rodriguez Magalona: 1.P1,000.00representing cash taken from him together with his wallet; 2.P10,000.00representing cash taken from him together with his wallet; C.Complaining witness SPO2 Alex Henson Reyes: 1.P200.00cash taken from him together with his wallet; 2.P15,288.00value of the government issued firearm and live bullets taken by the pirates; 3.P10,000.00representing actual, exemplary, and moral damages. D.Complaining witness PO3 Saul Cuyno Pino: 1.P80.00representing cash taken from him together with his wallet; 2.P4,000.00value of his Seiko watch; 3.P10,000.00representing actual, exemplary, and moral damages.

But without subsidiary imprisonment in case of insolvency.

Without pronouncement as to Costs. SO ORDERED. 38

Appellant Elmer Manalili ascribes to the trial court the following errors: I.THE COURT A QUO GRAVELY ERRED IN THE APPRECIATION OF THE TESTIMONIAL EVIDENCES BOTH FOR THE PROSECUTION AND THE DEFENSE; II.THE COURT A QUO COMMITTED GRAVE ERROR IN THE APPRECIATION OF THE EVIDENCES FOR THE DEFENSE REGARDING THE IDENTITY OF ACCUSED ELMER MANALILI, RESULTING TO GRAVE ABUSE OF DISCRETION. 39

The appeal is meritorious. Appellant contends that the trial court erred in appreciating the testimonial evidence of both the prosecution and defense which led to his conviction. He argues that the prosecution failed to prove beyond reasonable doubt that he was one of the pirates in this case.
cTEICD

We agree. A careful review of the records shows that about twenty minutes after the vessel M/V J & N Princess left the port of Ubay, Bohol bound for Cebu on December 15, 1992, prosecution witness Gervacio Uy, the operations manager of the vessel, urinated at the lower deck. After urinating, two persons were standing behind him; one pointed a gun at his back, while the other held his collar. He was ordered to go upstairs with them to the third or upper deck where the radio room was located, and they then destroyed the radio. 40 When asked whether he could identify the two armed men who initially pointed a gun at him, Uy replied in the affirmative, and stated that he had identified them through pictures presented by the CIS as Titing Aranas and Angelo Paracueles. This is reflected in the records thus:
FISCAL: Q.You said that initially there were two persons after they pointed a gun at you, if you can see these persons, can you still identify them? A.Yes, I identified them thru the pictures. Q.Could you describe to this Honorable Court the description of these two persons? A.The one who pointed an armalite he was about 5'6" in height, regular in built, brown complexion and his age is between 25 and 28 years old. The second suspect is older, I think about 42 years old, 5'3" or 5'4" in height , medium built, brown complexion. Q.How about the hair? A.The hair is straight. Q.How about the second? A.Black hair and he was carrying like an uzi gun. Q.You said a while ago that you were showed pictures, where? A.There were pictures presented by the CIS when I was investigated. Q.And did you identify those pictures? A.I positively identified two, one is Titing Aranas and the other Paracuellos, all at large. 41

On the other hand, prosecution witness Ernesto Magalona, quartermaster of the same vessel, testified that while he was lying on his cot at the second deck near the passage way to the upper deck, someone shouted, "Do not move, we are searching for shabu and uzi gun." Then he saw their manager, Gervacio Uy, being escorted by two armed men.

One was armed with an armalite pointed at Uy; the other was also armed but he did not see the kind of firearm he was carrying at his waist. He could identify the two armed men who escorted Uy because he was three to four meters away from them and the place was well illuminated with fluorescent lights. He identified one of the armed men as appellant. He said that the other man holding the armalite was also holding the collar of Uy while pushing him, while appellant "followed fast." Uy and the two armed men eventually reached the third or upper deck where the armed men destroyed the radio as reported to him by the purser who came down looking for him from the upper deck. 42 Of the eight pirates, he could only remember and identify the two armed men who escorted Uy, because their movements were so fast and coordinated. 43 He stated that from the start the two armed men, one of whom he identified as the appellant, escorted Uy from the comfort room at the lower deck to the second deck and then proceeded to the third or upper deck where the radio room was located. They did always followed Uy, and he had a good look at them when they passed by the second deck. 44 From the foregoing, prosecution witness Gervacio Uy identified the two armed men, who initially pointed a gun at him in the comfort room at the lower deck, and who ordered him to go with them to the radio room at the third or upper deck, as Titing Aranas and Angelo Paracueles. On the other hand, prosecution witness Ernesto Magalona who saw Gervacio Uy and the two armed men as they passed by the second deck on their way to the third deck, identified one of those two armed men as appellant Elmer Manalili. Where eyewitnesses contradict themselves on a vital question, such as the identity of the offender, the element of reasonable doubt is injected and cannot be lightly disregarded. 45 The identity of the offender, like the crime itself must be proven beyond a reasonable doubt. 46 In the case at bench, there is no positive identification of the appellant inasmuch as prosecution eyewitnesses Uy and Magalona contradicted themselves on the identity of the alleged offender. Moreover, although prosecution witness Gervacio Uy stated that one of the pirates who opened the locker of Ernesto Magalona had a tattoo on his left hand with the initials "GV," the trial court did not see any tattoo mark on the appellant's left hand. 47 Further, witness Uy declared that he saw appellant for the first time during the investigation before the municipal judge of Ubay. 48 He told the municipal judge that appellant's face was "familiar among the eight seajackers," but Magalona identified appellant as one of the pirates. 49 Compared with the identification made by Magalona, Uy's statement that appellant's face was familiar among the pirates is characterized by uncertainty. His identification of appellant in the trial court based on the aforementioned statement retained its doubtful tenor. Significantly, the passenger named Boiser who allegedly identified the appellant as one of the pirates before the municipal judge of Ubay was significantly not presented as a witness by the prosecution. The records show thus:
FISCAL LIGASON: I would like to made (sic) manifestation, Your Honor, that I did not present Ms. Alma Casil and Melecio Boiser, they were listed, but after I confronted them that they did not identify this accused, so that I did not present them, because there are others who can identify. 50

From the foregoing, it appears that the prosecution failed to prove beyond reasonable doubt that appellant was one of the eight men who committed qualified piracy in the instant case. Appellant's defense of alibi is generally considered a weak defense. However, it assumes importance when his identification as an alleged offender in the crime charged is inconclusive or unreliable. 51 Appellant asserted that at the time of the piracy in the seawaters of Ubay, Bohol, he was in his residence in Cebu City, and which alibi was corroborated by Jeffrey Perandos, Reynaldo Cardona and his wife, Cherry Mae Manalili. Although alibi can be fabricated, it is not always false and without merit, and when coupled with the improbabilities and uncertainties of the prosecution evidence, the defense of alibi deserves merit. 52 Besides, the prosecution has the burden of proof in establishing the guilt of the accused. 53 When the prosecution fails to discharge its burden, an accused need not even offer evidence in his behalf. 54 In every criminal prosecution, the identity of the offender or offenders must be established by proof beyond reasonable doubt. 55 There must be moral certainty in an unprejudiced mind that it was accused-appellant who committed the crime. Absent this required quantum of evidence would mean exoneration for accusedappellant. 56 It is our view, therefore, and we hold that the prosecution failed to prove beyond reasonable doubt that appellant was one of the pirates who committed the crime charged. Hence, the appellant must be acquitted. WHEREFORE, the assailed decision of the trial court is REVERSED and SET ASIDE, and appellant Elmer Manalili is hereby ACQUITTED on the ground of reasonable doubt. The Director of Prisons is hereby directed to cause the immediate release of appellant unless the latter is being lawfully held for another cause, and to inform the Court accordingly within ten (10) days from notice hereof. SO ORDERED. Bellosillo, Mendoza, Quisumbing, and Buena, JJ., concur.

FIRST DIVISION
[G.R. No. 118075. September 5, 1997.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EMILIANO CATANTAN y TAYONG, accused-appellant.

The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant. SYNOPSIS Accused-appellant, together with one Jose Macver Ursal, were charged with violation of PD 532, otherwise known as the Anti-Piracy and Highway Robbery Law of 1974. The Regional Trial Court of Cebu, after trial, found both accused guilty of the crime charged and sentenced them to reclusion perpetua. Only accused-appellant appealed. In his appeal, accused-appellant contends that the trial court erred in convicting him of piracy as the facts proved only constitute the crime of grave coercion, and not piracy. Accusedappellant argues that in order that piracy may be committed it is essential that there be an attack on or seizure of a vessel. He claims that he and his companion did not attack or seize the fishing boat of the Pilapil brothers by using force and intimidation but merely boarded the boat, and it was only when they were already on board that they used force to compel the Pilapils to take them to some other place.
LLpr

The Supreme Court ruled that the case at bar falls squarely within the purview of piracy. While it may be true that the Pilapils were compelled to go elsewhere other than their place of destination, such compulsion was obviously part of seizing their boat. The Court said that to sustain the defense and convert the case of piracy to grave coercion would be to ignore the fact that a fishing vessel cruising in Philippine waters was seized by the accused by means of violence against or intimidation of persons, the very act punished by PD 532. Judgment of conviction affirmed.
SCDaET

SYLLABUS CRIMINAL LAW; PRESIDENTIAL DECREE NO. 532; CASE AT BAR FALLS SQUARELY WITHIN THE PURVIEW OF PIRACY, NOT GRAVE COERCION. Under the definition of piracy in P.D. No. 532 as well as grave coercion as penalized in Art. 286 of the Revised Penal Code, this case falls squarely within the purview of piracy. While it may be true that Eugene and Juan, Jr. were compelled to go elsewhere other than their place of destination, such compulsion was obviously part of the act of seizing their boat. The testimony of Eugene, one of the victims, shows that the appellant actually seized the vessel through force and intimidation. To sustain the defense and convert this case of piracy into one of grave coercion would be to ignore the fact that a fishing vessel cruising in Philippine waters was seized by the accused by means of violence against or intimidation of persons. As Eugene Pilapil testified, the accused suddenly approached them and boarded their pumpboat and Catantan aimed his revolver at them as he ordered complaining witness Eugene Pilapil to "dapa" or lie down with face downwards, and then struck his face with a revolver, hitting the lower portion of his left eye, after which, Catantan told his victims at gun point to take them to Daan Tabogon. The incident happened at 3:00 o'clock in the morning. The sudden appearance of another pumpboat with four passengers, all strangers to them, easily intimidated the Pilapil brothers that they were impelled to submit in complete surrender to the marauders. The moment Catantan jumped into the other pumpboat he had full control of his victims. The sight of a drawn revolver in his hand drove them to submission. Hence the issuance of PD No. 532

designed to avert situations like the case at bar and discourage and prevent piracy in Philippine waters.
LLphil

DECISION

BELLOSILLO, J :
p

EMILIANO CATANTAN and JOSE MACVEN URSAL alias "Bimbo" were charged with violation of PD No. 532 otherwise known as the Anti-Piracy and Highway Robbery Law of 1974 for having on 27 June 1993, while armed with a firearm and a bladed weapon, acting in conspiracy with one another, by means of violence and intimidation, wilfully and feloniously attacked, assaulted and inflicted physical injuries on Eugene Pilapil and Juan Pilapil, Jr. who were then fishing in the seawaters of Tabogon, Cebu, and seized their fishing boat, to their damage and prejudice. 1 The Regional Trial Court of Cebu, after trial, found both accused Emiliano Catantan y Tayong and Jose Macven Ursal alias "Bimbo" guilty of the crime charged and sentenced them to reclusion perpetua. 2 Of the duo only Emiliano Catantan appealed.
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In his appeal, accused Catantan contends that the trial court erred in convicting him of piracy as the facts proved only constitute grave coercion defined in Art. 286 of the Revised Penal Code and not piracy under PD No. 532. The evidence for the prosecution is that at 3:00 o'clock in the morning of 27 June 1993, the Pilapil brothers Eugene, 21, and Juan Jr., 18, were fishing in the sea some 3 kilometers away from the shores of Tabogon, Cebu. Suddenly, another boat caught up with them. One of them, later identified as the accused Emiliano Catantan, boarded the pumpboat of the Pilapils and leveled his gun at Eugene. With his gun, Catantan struck Eugene on the left cheekbone and ordered him and Juan Jr. to "dapa." 3 Then Catantan told Ursal to follow him to the pumpboat of the Pilapils. There they hog-tied Eugene, forced him to lie down at the bottom of the boat, covered him with a tarpaulin up to his neck, stepped on him and ordered Juan Jr. to ferry them to Daan Tabogon. They left behind the other pumpboat which the accused had earlier used together with its passengers one of whom was visibly tied. Noting that they were already far out into the sea, Eugene reminded Catantan that they were now off-course but Catantan told Eugene to keep quiet or he would be killed. Later, the engine conked out and Juan Jr. was directed to row the boat. Eugene asked to be set free so he could help but was not allowed; he was threatened with bodily harm instead. Meanwhile Juan Jr. managed to fix the engine, but as they went farther out into the open sea the engine stalled again. This time Eugene was allowed to assist his brother. Eugene's hands were set free but his legs were tied to the outrigger. At the point of a tres cantos4 held by Ursal, Eugene helped row the boat. As they passed the shoreline of Nipa, they saw another boat. Catantan asked whose boat that was and the Pilapils told him that it was operated by a certain Juanito and that its engine was new. Upon learning this, Catantan ordered the Pilapil brothers to approach the boat cautioning them however not to move or say anything.

On the pretext that they were buying fish Catantan boarded the "new" pumpboat. Once aboard he ordered the operator Juanito to take them to Mungaz, another town of Cebu. When Juanito tried to beg-off by saying that he would still pull up his net and harvest his catch, Catantan drew his revolver and said, "You choose between the two, or I will kill you." 5 Juanito, obviously terrified, immediately obeyed and Ursal hopped in from the other pumpboat and joined Catantan. But, as Ursal was transferring to the "new" pumpboat, its outrigger caught the front part of the pumpboat of the Pilapils so he kicked hard its prow; it broke. The jolt threw Eugene into the sea and he landed on the water headlong. Juan Jr. then untied his brother's legs and the two swam together clinging to their boat. Fortunately, another pumpboat passed by and towed them safely ashore. Section 2, par. (d), of PD No. 532, defines piracy as "any attack upon or seizure of any vessel, or the taking away of the whole or part thereof or its cargo, equipment, or the personal belongings of the complement or passengers, irrespective of the value thereof, by means of violence against or intimidation of persons or force upon things, committed by any person, including a passenger or member of the complement of said vessel, in Philippine waters, shall be considered as piracy. The offenders shall be considered as pirates and punished as hereinafter provided." And a vessel is construed in Sec. 2, par. (b), of the same decree as "any vessel or watercraft used for transport of passengers and cargo from one place to another through Philippine waters. It shall include all kinds and types of vessels or boats used in fishing (emphasis supplied). On the other hand, grave coercion as defined in Art. 286 of the Revised Penal Code is committed by "any person who, without authority of law, shall, by means of violence, prevent another from doing something not prohibited by law, or compel him to do something against his will, whether it be right or wrong." Accused-appellant argues that in order that piracy may be committed it is essential that there be an attack on or seizure of a vessel. He claims that he and his companion did not attack or seize the fishing boat of the Pilapil brothers by using force or intimidation but merely boarded the boat, and it was only when they were already on board that they used force to compel the Pilapils to take them to some other place. Appellant also insists that he and Ursal had no intention of permanently taking possession or depriving complainants of their boat. As a matter of fact, when they saw another pumpboat they ordered the brothers right away to approach that boat so they could leave the Pilapils behind in their boat. Accordingly, appellant claims, he simply committed grave coercion and not piracy. We do not agree. Under the definition of piracy in PD No. 532 as well as grave coercion as penalized in Art. 286 of the Revised Penal Code, this case falls squarely within the purview of piracy. While it may be true that Eugene and Juan Jr. were compelled to go elsewhere other than their place of destination, such compulsion was obviously part of the act of seizing their boat. The testimony of Eugene, one of the victims, shows that the appellant actually seized the vessel through force and intimidation. The direct testimony of Eugene is significant and enlightening
Q:Now, while you and your younger brother were fishing at the seawaters of Tabogon at that time, was there anything unusual that happened? A:Yes.

Q:Will you please tell the Court what that was? A:While we were fishing at Tabogon another pumpboat arrived and the passengers of that pumpboat boarded our pumpboat. Q:Now, that pumpboat which you said approached you, how many were riding in that pumpboat? A:Four. Q:When you said the passengers of that pumpboat boarded your pumpboat, how did they do that? A:They approached somewhat suddenly and came aboard the pumpboat (emphasis supplied). Q:How many suddenly came aboard your pumpboat? A:Only one. Q:What did that person do when he came aboard your pumpboat? A:When he boarded our pumpboat he aimed his revolver at us (emphasis supplied). Q:By the way, when he aimed his revolver to you, did he say anything to you? xxx xxx xxx A:He said, "dapa," which means lie down (emphasis supplied). COURT: Q:To whom did he aim that revolver? A:He aimed the revolver on me. TRIAL PROS. ECHAVEZ: Q:What else did he do? A:Then he ordered his companion to come aboard the pumpboat. Q:What did he do with his revolver? A:He struck my face with the revolver, hitting the lower portion of my left eye. Q:Now, after you were struck with the revolver, what did these persons do? A:We were ordered to take them to a certain place. Q:To what place did he order you to go? A:To Daan Tabogon. 6

To sustain the defense and convert this case of piracy into one of grave coercion would be to ignore the fact that a fishing vessel cruising in Philippine waters was seized by the accused by means of violence against or intimidation of persons. As Eugene Pilapil testified, the accused suddenly approached them and boarded their pumpboat and Catantan aimed his revolver at them as he ordered complaining witness Eugene Pilapil to "dapa" or lie down with face downwards, and then struck his face with a revolver, hitting the lower portion of his left eye, after which, Catantan told his victims at gun point to take them to Daan Tabogon. The incident happened at 3:00 o'clock in the morning. The sudden appearance of another pumpboat with four passengers, all strangers to them, easily intimidated the Pilapil brothers that they were impelled to submit in complete surrender to the marauders. The moment Catantan jumped into the other pumpboat he had full control of his victims. The sight of a drawn revolver in his hand drove them to submission. Hence, the issuance of PD No. 532 designed to avert situations like the case at bar and discourage and prevent piracy in Philippine waters. Thus, we cite the succeeding "whereas" clauses of the decree
Whereas, reports from law-enforcement agencies reveal that lawless elements are still committing acts of depredations upon the persons and properties of innocent and defenseless inhabitants who travel from one place to another, thereby disturbing the peace, order and tranquillity of the nation and stunting the economic and social progress of the people; Whereas, such acts of depredations constitute either piracy or highway robbery/brigandage which are among the highest forms of lawlessness condemned by the penal statutes of all countries; and, Whereas, it is imperative that said lawless elements be discouraged from perpetrating such acts of depredations by imposing heavy penalty on the offenders, with the end in view of eliminating all obstacles to the economic, social, educational and community progress of the people.

The Pilapil brothers are mere fisherfolk whose only means of livelihood is fishing in sea waters. They brave the natural elements and contend with the unknown forces of the sea to bring home a bountiful harvest. It is on these small fishermen that the townspeople depend for the daily bread. To impede their livelihood would be to deprive them of their very subsistence, and the likes of the accused within the purview of PD No. 532 are the obstacle to the "economic, social, educational and community progress of the people." Had it not been for the chance passing of another pumpboat, the fate of the Pilapil brothers, left alone helpless in a floundering, meandering outrigger with a broken prow and a conked-out engine in open sea, could not be ascertained. While appellant insists that he and Ursal had no intention of depriving the Pilapils permanently of their boat, proof of which they left behind the brothers with their boat, the truth is, Catantan and Ursal abandoned the Pilapils only because their pumpboat broke down and it was necessary to transfer to another pumpboat that would take them back to their lair. Unfortunately for the pirates their "new" pumpboat ran out of gas so they were apprehended by the police soon after the Pilapils reported the matter to the local authorities. The fact that the revolver used by the appellant to seize the boat was not produced in evidence cannot exculpate him from the crime. The fact remains, and we state it again,

that Catantan and his co-accused Ursal seized through force and intimidation the pumpboat of the Pilapils while the latter were fishing in Philippine waters. WHEREFORE, finding no reversible error in the decision appealed from, the conviction of accused-appellant EMILIANO CATANTAN y TAYONG for the crime of piracy penalized under PD No. 532 and sentencing him accordingly to reclusion perpetua, is AFFIRMED. Costs against accused-appellant.
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SO ORDERED. Vitug, Kapunan and Hermosisima, Jr., JJ ., concur.

EN BANC
[G.R. No. 60100. March 20, 1985.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAIME RODRIGUEZ alias JIMMY alias WILFRED DE LARA y MEDRANO and RICO LOPEZ, accused-appellants. [G.R. No. 60768. March 20, 1985.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DAVIO DE REYES alias DARIO DECE RAYMUNDO y ELAUSA, accusedappellants. [G.R. No. 61069. March 20, 1985.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PETER PONCE y BULAYBULAY alias PETER POWE, accused-appellants. SYLLABUS 1.CRIMINAL LAW; PIRACY; PENALTY. Clearly under Sec. 3 (a) of Presidential Decree No. 532, otherwise known as the Anti-Piracy Law, amending Article 134 of the Revised Penal Code and which took effect on August 8, 1974, the penalty imposable upon persons found guilty of the crime of piracy where rape, murder or homicide is committed is mandatory death penalty. Thus, the lower court committed no error in not considering the plea of the three (3) defendants as a mitigating circumstance. 2.CONSTITUTIONAL LAW; RIGHTS OF AN ACCUSED TO COUNSEL AND TO REMAIN SILENT NOT VIOLATED IN CASE AT BAR. The statement of Ponce (Exhibit "I") contains the questions and answers pertinent to Section 20 of the 1973 Constitution, to wit: "1. QUESTION: Mr. Peter Ponce, we are informing you that you are under investigation here in connection with the robbery committed on the M/V Noria last August 31, 1981, where you are an Assistant Engineer. You have a right to remain silent and to refuse to answer any of our questions here. You have the right to be represented by

counsel of your choice in this investigation. Should you decide to be represented by a lawyer but cannot afford one we will provide a lawyer for you free. Should you decide to give a sworn statement, the same shall be voluntary and free from force or intimidation or promise of reward or leniency and anything that you saw here maybe used for or against you in any court in the Philippines. Now do you understand all these rights of yours? ANSWER: Yes, sir. "2. Q: Do you need the services of a lawyer? A: No, sir. "3. Q: Are you willing to affix your signature hereinbelow to signify that you so understand all your rights as above stated and that you do not need the services of a lawyer? A: Yes, sir." (p. 116, Rollo) Thus, it is clear that Peter Ponce was fully advised of his constitutional right to remain silent and his right to counsel. 3.CRIMINAL LAW; CRIMINAL LIABILITY; CONSPIRACY; ATTENDANT IN CASE AT BAR. Considering the written statements of all the appellants, (Exhibits "E", "F", "G", "H", "J" and "E"), interlocking as they are with each other as each admits his participation and those of the other co-accused, there is no room for doubt that conspiracy existed among them. The conduct of appellant Peter Ponce before, during and after the commission of the crime is a circumstance showing the presence of conspiracy in the commission of the crime. As a consequence, every one is responsible for the crime committed. TEEHANKEE, J., concurring: 1.CONSTITUTIONAL LAW; RIGHTS OF THE ACCUSED; RIGHT TO REMAIN SILENT AND TO COUNSEL; MONOSYLLABIC ANSWERS UNACCEPTABLE AS A VOLUNTARY AND INTELLIGENT WAIVER OF RIGHT. Justice Teehankee takes exception, however, to the statement therein that accused Peter Ponce "was fully advised of his constitutional right to remain silent and his right to counsel." The monosyllabic answers of "Yes" and "No" have been stricken down by the Court as utterly unacceptable as a voluntary and intelligent waiver of the constitutional right to silence and to counsel in People vs. Caguioa (95 SCRA 2), in line with my separate concurring and dissenting opinion in the recent case of People vs. Itlanas (G.R. No. 60118, prom. February 28, 1985). As therein stated, I subscribe to the Court's requirement in Morales, Jr. vs. Ponce Enrile (121 SCRA 538) that "the right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel" in order to assure that it is knowingly, voluntarily and intelligently given.

DECISION

PER CURIAM :
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Appellants Jaime Rodriguez alias Jimmy alias Wilfred de Lara y Medrano, Rico Lopez, Davio Reyes alias Dario Dece Raymundo y Elausa and Peter Ponce y Bulaybulay alias Peter Powe were charged of the crime of piracy in an information filed before the then Court of First Instance of Sulu and Tawi-Tawi, which reads:
"That on or about 3:15 in the morning of August 31, 1981, at the vicinity of Muligin Island and within the territorial waters of the Municipality of Cagayan de Tawi-Tawi, Province of Tawi-Tawi, and within the jurisdiction of this Honorable Court, the above-named accused Wilfred de Lara y Medrano, alias Jaime Rodriguez (Jimmy); Dario Dece Raymundo y Elausa; Rico Lopez y Fernandez and Peter Ponce y Bulaybulay alias Peter Powe, being crew members

of the M/V Noria 767, a barter trade vessel of Philippine registry, conspiring and confederating together and mutually helping one another and armed with bladed weapons and high caliber firearms, to wit: three (3) daggers, two (2) M14, one (1) garand and one (1) Browning Automatic Rifle, with intent of gain and by means of violence and intimidation upon persons, did then and there willfully and unlawfully, and feloniously take, steal and carry away against the consent of the owners thereof, the equipments and other personal properties belonging to the crew members and passengers of the said M/V Noria 767, consisting of cash money amounting to Three Million Five Hundred Seventeen Thousand Three Hundred Pesos (P3,517,300.00), personal belongings of passengers and crew amounting to One Hundred Thirty Thousand Pesos (P130,000.00), the vessel's compass, navigational charts and instruments amounting to Forty Thousand Pesos (P40,000.00) to the damage and prejudice of the aforementioned owners in the total amount of THREE MILLION SIX HUNDRED EIGHTY SEVEN THOUSAND THREE HUNDRED PESOS (P3,687,300.00) Philippine Currency; that by reason of and on the occasion of the said privacy and for the purpose of enabling the abovenamed accused to take, steal and carry away the properties abovementioned, the herein accused in pursuance to their conspiracy, did then and there willfully, unlawfully and feloniously with intent to kill and with evident premeditation, treacherously attack, assault, stab, shot and, taking advantage of superior strength, use personal violence upon the persons of Abdusador Sumihag, Vicente America, Perhan Tan, Marcos Que, Ismael Turabin, Mabar Abdurahman, Wadi Aduk, Rasdi, Alfad, Kasmir Tan, Peter Paul Chiong, Juaini Husini, Ismael Ombra, Sabturani Ulag, Mutalib Sarahadil, Bajubar Adam, Quillermo Wee, Reuben Segovia Ho, Michael Lao, Yusop Abubakar, Hahji Hussin Kulavan, Amjad Quezon, Rebuan Majid, Edgar Tan, Abdurasul Alialam, Federico Canizares, Omar Tahil, Gilbert Que, Arajul Salialam, Masihul Bandahala, Asola Mohammaddin, Batoto Sulpicio, Sakirani Bassal, Ibrahim Jamil, Saupi Malang and Gulam Sahiddan, thereby inflicting upon them multiple gunshot wounds which caused their instantaneous death and likewise causing physical injuries upon the persons of Inggal Issao, Abduhasan Indasan, Hadji Yusop H. Alfad and Hadji Mahalail Alfad, the performing all acts of execution which could have produced the death of said persons, but nevertheless did not produce it by reason or cause independent of the will of said accused, that is, by the timely and able medical assistance rendered to said victims which prevented death. "CONTRARY TO LAW, with the aggravating circumstances of treachery, evident premeditation, night time and the use of superior strength." (pp. 97-98, Rollo of L-61069)

Upon arraignment on February 25, 1982, Jaime Rodriguez and Rico Lopez, assisted by their counsel, pleaded guilty to the charge, were convicted on March 5, 1982 and sentenced each "to suffer the extreme penalty of death." Dario Dece Raymundo, upon arraignment, interposed a plea of not guilty. However, he withdrew his plea and substituted it with that of guilty. On March 10, 1982 he was convicted of the crime charged and sentenced "to suffer the extreme penalty of death." Peter Ponce y Bulaybulay entered the plea of not guilty. After trial, he was found guilty and was also sentenced "to suffer the extreme penalty of death." No pronouncement was made with respect to the civil liabilities of the four defendants because "there was a separate civil action for breach of contract and damages filed with the same trial court in Civil Case No. N-85 against the several defendants, including the four accused aforementioned." (p. 26, L-61069)

The case of the four convicted defendants is now before Us on automatic review. Evidence shows that on August 29, 1981, at about 7:30 in the evening, the vessel M/V Noria 767, owned and registered in the name of Hadji Noria Indasan, left Jolo wharf for Cagayan de Tawi-Tawi. It arrived at the port of Cagayan de Tawi-Tawi the following day, August 30, 1981, at around 2:00 in the afternoon. In the evening of the same date, the vessel left for Labuan. On board the vessel were several traders and crew members. Two or three hours after its departure, while sailing about 25 miles from Cagayan de Tawi-Tawi, a commotion occurred in one of the cabins of the vessel. The witnesses testified on what they saw and heard. Mr. Clyde Que, a passenger, heard noises inside a cabin and, after awhile, he heard shots being hired. He rushed to the motor launch to hide and on his way through the engine room, he saw appellant Peter Ponce. Then appellants Jaime Rodriguez, Dario Dece and Rico Lopez, all armed with rifles, started firing towards Que's companions after which they brought Que to the pilot's house to handle the steering wheel. He was substituted by Usman, another passenger, while Que and the other crew members were ordered to threw overboard sacks of copra and the dead bodies of Peter Chiong, Michael Lao, Casmin Tan and Vicente America. At the time, appellant Peter Ponce, armed with a M-14 rifle, stood guard. Hadji Mahalail Alfad, another passenger, heard commotions from the motor launch, followed by gunfire. He hid by laying down among the sacks of copra. He saw appellants Peter Ponce, Jaime Rodriguez, Rico Lopez and Dario Dece coming down the stairs as they were firing shots until Fred Canizares and Guilbert Que were hit, their bodies falling upon him. When he tried to move, he realized that he was also hit on the right side of his stomach. Thereafter, he pretended to be dead till daytime. Emil Macasaet, Jr., the skipper of the vessel heard the commotion from one of the cabins. He ordered his men to open the door but it could not be opened. After awhile, the door opened and he saw a gun pointed at them. Whereupon, he hid behind the bags of copra until appellant Jaime Rodriguez came and fired at him. Luckily, he was not hit. He and some of his men crawled and they took cover in the bodega of copra. While in hiding there were gunfires coming from Dario Dece and Peter Ponce. About four (4) hours later, his Chief Mate Usman persuaded him to come out otherwise something worse would happen. He saw Jaime Rodriguez who ordered him to direct his men to throw the copras as well as the dead bodies overboard. About ten o'clock in the morning of the same day, the vessel reached an island where the four appellants were able to secure pumpboats. Macasaet was ordered to load in one of the pumpboats nine (9) attache cases which were full of money. Rico Lopez and Jaime Rodriguez boarded one pumpboat, while Peter Ponce and Dario Dece boarded another, bringing with them: dressed chicken, softdrinks, durian, boxes of ammunitions, gallons of water and some meat, as well as rifles. Municipal Health Officer Leopoldo Lao went aboard the vessel M/V Noria when it arrived at Cagayan de Tawi-Tawi on September 2, 1981 and saw at the wharf ten dead bodies, all victims of the sea-jacking, namely: Gulam Sahiddan, Arajul Naran Salialam, Mallang Saupi, Guilbert Que, Frederico Canizares, Masihul Bandahala, Ribowan Majid, Edgar Tan, Omar Sabdani Tahir and Abdurasul Salialam.

In their brief, appellants Jaime Rodriguez, Rico Lopez and Dario Dece claim that the trial court erred (1) in imposing the death penalty to the accused-appellants Jaime Rodriguez alias Wilfred de Lara, Rico Lopez y Fernandez and Davio de Reyes, alias Dario Dece Raymundo y Elausa despite their plea of guilty; (2) in giving weight to the alleged sworn statements of Peter Ponce y Bulaybulay, identified as Exhibits "C" to "C-10" and Exhibits "I to I-5", as evidence against Peter Ponce y Bulaybulay; (3) in holding that accused-appellant Peter Ponce y Bulaybulay is guilty of the crime of piracy; (4) in holding that the defense of Peter Ponce y Bulaybulay was merely a denial; and, (5) in holding that Peter Ponce y Bulaybulay entrusted the P1,700.00 which was his personal money to Atty. Efren Capulong of the National Bureau of Investigation. There is no merit in this appeal of the three named defendants, namely: Jaime Rodriguez and Rico Lopez in G.R. No. L-60100, and Dario Dece in G.R. No. L-60768.
LLjur

Anent the first assigned error, suffice it to say that Presidential Decree No. 532, otherwise known as the Anti-Piracy Law, amending Article 134 of the Revised Penal Code and which took effect on August 8, 1974, provides:
"SEC. 3.Penalties. Any person who commits piracy or highway robbery/brigandage as herein defined, shall, upon conviction by competent court be punished by: "a)Piracy. The penalty of reclusion temporal in its medium and maximum periods shall be imposed. If physical injuries or other crimes are committed as a result or on the occasion thereof, the penalty of reclusion perpetua shall be imposed. If rape, murder or homicide is committed as a result or on the occasion of piracy, or when the offenders abandoned the victims without means of saving themselves, or when the seizure is accomplished by firing upon or boarding a vessel, the mandatory penalty of death shall be imposed." (Emphasis supplied)

Clearly, the penalty imposable upon persons found guilty of the crime of piracy where rape, murder or homicide is committed is mandatory death penalty. Thus, the lower court committed no error in not considering the plea of the three (3) defendants as a mitigating circumstance. Article 63 of the Revised Penal Code states that:
"ART. 63.Rules for the application of indivisible penalties. In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed."

With respect to the other assigned errors, We also find them to be devoid of merit. Appellants Peter Ponce gave a statement (Exhibits "C" to "C-11") to the Malaysian authorities and another statement (Exhibits "I" to "I-15") before the National Bureau of Investigation of Manila. When said statement (Exhibits "C" to "C-11") was offered in evidence by the prosecution, the same was not objected to by the defense, aside from the fact that Peter Ponce, on cross examination, admitted the truthfulness of said declarations, thus:
"QAnd the investigation was reduced into writing is that correct? AYes, sir. QAnd you were investigated by the police authority of Kudat and Kota Kinabalo, is that right?

AYes, sir. Only in Kudat. QAnd that statement you gave to the authority at Kudat, you have signed that statement, is that correct? AYes, sir. QAnd what you stated is all the truth before the authority in Kudat? AYes, sir." (pp. 33-34, tsn, May 28, 1982)

Relative to the appeal of appellant Peter Ponce (G.R. No. L-61069), which We likewise declare to be without merit, evidence shows that his participation in the commission of the offense was positively testified to by the master of the vessel, Emil Macasaet, Jr., and a passenger, Hadji Mahalail Alfad. Another witness, passenger Clyde Que also pointed to have seen him (Peter Ponce) armed with an M-14 rifle. Considering the testimonies of Clyde Que and Emil Macasaet, Jr. who actually saw appellant Peter Ponce firing his weapon indiscriminately at the passengers and crew members in wanton disregard of human lives and the fact that after the looting and killing, appellant Peter Ponce, still armed, joined Dario Dece in one pumpboat, there can be no question that he was in conspiracy with the three other defendants. After his arrest, Ponce gave a statement to the authorities stating therein his participation as well as those of his companions (Exhibits "I" to "I-1").
LLphil

The four (4) appellants were arrested and detained by the Malaysian authorities. On January 8, 1982, the National Bureau of Investigation authorities fetched and brought them to Manila where they executed their respective statements after Rico Lopez and Peter Ponce delivered to the NBI, P3,700.00 and P1,700.00, respectively, aside from the P527,595.00 and one Rolex watch which the Malaysian authorities also turned over to the Acting In-Charge of the NBI in Jolo. The statement of Ponce (Exhibit "I") contains the questions and answers pertinent to Section 20 of the 1973 Constitution, to wit:
"1.QUESTION: Mr.Peter Ponce, we are informing you that you are under investigation here in connection with the robbery committed on the M/V Noria last August 31, 1981, where you are an Assistant Engineer. You have a right to remain silent and to refuse to answer any of our questions here. You have the right to be represented by counsel of your choice in this investigation. Should you decide to be represented by a lawyer but cannot afford one we will provide a lawyer for you free. Should you decide to give a sworn statement, the same shall be voluntary and free from force or intimidation or promise of reward or leniency and anything that you saw here maybe used for or against you in any court in the Philippines. Now do you understand all these rights of yours? ANSWER:Yes, sir. "2.Q:Do you need the services of a lawyer? A:No, sir.

"3.Q:Are you willing to affix your signature hereinbelow to signify that you so understand all your rights as above stated and that you do not need the services of a lawyer? A:Yes, sir." (p. 116, Rollo)

Thus, it is clear that Peter Ponce was fully advised of his constitutional right to remain silent and his right to counsel. Considering the written statements of all the appellants, (Exhibits "E", "F", "G", "H", "J" and "E"), interlocking as they are with each other as each admits his participation and those of the other co-accused, there is no room for doubt that conspiracy existed among them. The conduct of appellant Peter Ponce before, during and after the commission of the crime is a circumstance showing the presence of conspiracy in the commission of the crime. As a consequence, every one is responsible for the crime committed. WHEREFORE, the decision appealed from is hereby AFFIRMED. SO ORDERED. Makasiar, Aquino, Concepcion, Jr., Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., De la Fuente, Cuevas and Alampay, JJ., concur. Fernando, C.J., took no part.

Separate Opinions
TEEHANKEE, J., concurring: I concur with the judgment of conviction, there being sufficient direct evidence and positive identification by eyewitnesses. I take exception, however, to the statement therein that accused Peter Ponce "was fully advised of his constitutional right to remain silent and his right to counsel." The monosyllabic answers of "Yes" and "No" have been stricken down by the Court as utterly unacceptable as a voluntary and intelligent waiver of the constitutional right to silence and to counsel in People vs. Caguioa (95 SCRA 2), in line with my separate concurring and dissenting opinion in the recent case of People vs. Itlanas (G.R. No. 60118, prom. February 28, 1985). As therein stated, I subscribe to the Court's requirement in Morales, Jr. vs. Ponce Enrile (121 SCRA 538) that "the right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel" in order to assure that it is knowingly, voluntarily and intelligently given.

THIRD DIVISION
[G.R. Nos. 89418-19. November 21, 1990.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODOLFO ASPILI, ERNESTO MAGBANUA, EDUARDO MENDOZA, RODOLFO SALES, ROBERT AGUIRRE and PACIFICO REBUTIDO, accused-appellants.

The Solicitor General for plaintiff-appellee. Enrique A. Javier, Sr. counsel de oficio for accused-appellants. SYLLABUS 1.CRIMINAL LAW; COMPLEX CRIMES; SPECIAL COMPLEX CRIME OF ROBBERY WITH HOMICIDE AGGRAVATED WITH RAPE, COMMITTED IN THE CASE AT BAR; PENALTY THEREOF; SAID CRIME NOW DESIGNATED AS PIRACY IN PHILIPPINE WATERS. The Court finds, at the outset, that the trial judge erred in designating the offense committed by the appellants as rape with homicide aggravated by robbery in band. For one, neither in law nor in jurisprudence is there an aggravating circumstance as robbery in band. More importantly, the evidence shows that what was committed is the special complex crime of robbery with homicide aggravated by rape. The overwhelming evidence reveals that the original design of the malefactors was to commit robbery in order to facilitate their escape from the penal colony. Their original intent did not comprehend the commission of rape. Hence, the crime of rape cannot be regarded as the principal offense. In this case, since it attended the commission of robbery with homicide, the rape is deemed to aggravate the crime but damages or indemnification for the victim may be awarded. (See People vs. Bacsa, 104 Phil. 136 [1958]; People v. Tapales, 93 SCRA 134 [1979]). Instead of ignominy, it is the rape itself that aggravates the crime (People v. Mongado, 28 SCRA 642 [1969]). With respect to the deaths of Daisy Gonzales and Yolanda Arque, the appellants are clearly liable therefor since, as held by this Court in People v. Mangulabnan, (99 Phil. 992 [1956]) it is immaterial that the death of a person supervened by mere accident, provided that the homicide is produced by reason or on occasion of the robbery. Since rape and homicide co-exist in the commission of robbery, the offense committed by the appellants is the special complex crime of robbery with homicide, aggravated by rape, punishable under Paragraph 1 of Article 294 of the Revised Penal Code (RPC). It does not matter if the technical name assigned to the offense is rape with homicide and with robbery in band, for the real nature of the crime charged is determined not by the title of the complaint, nor by the specification of the provision of the law alleged to have been violated, but by the facts recited in the complaint or information. (See People v. Oliviera, 67 Phil. 427 [1939]) As the acts constituting robbery with homicide were clearly set forth in the complaint and proven during trial, then the appellants may be held liable for such crime, regardless of the erroneous designation of the offense. In passing, it may be mentioned that the crimes committed by appellants are now denominated as piracy in Philippine waters, punishable under Presidential Decree No. 532. We find it unnecessary to retroactively apply the provisions thereof in favor of the appellants because the acts committed by them are likewise punishable therein by reclusion perpetua. 2.ID.; AGGRAVATING CIRCUMSTANCES; RECIDIVISM, IN BAND AND ABUSE OF SUPERIOR STRENGTH, ALSO ESTABLISHED IN THE CASE AT BAR; NOCTURNITY AND CRAFT, NOT CONSIDERED. We find no merit in the appellants' contention that the lower court erred in considering recidivism as an aggravating circumstance. All the appellants are recidivists. They were serving sentence at the Sta. Lucia Penal Colony by virtue of a final judgment of conviction when they committed the above-mentioned offenses. Rodolfo Aspili, Ernesto Magbanua, Eduardo Mendoza and Pacifico Rebutido have previously been convicted of the crimes of frustrated homicide, serious physical injuries, theft, and murder and trespass to dwelling, respectively. Both Rodolfo Sales and Roberto Aguirre have previously been convicted of robbery in band. We likewise uphold the trial court's finding that the crime was

aggravated because it was committed by a band. All the six appellants were armed when they boarded the vessel and perpetrated their dastardly acts. There is also abuse of superior strength, since most of the victims were women and children ranging from 2 to 9 years old. However, the aggravating circumstances of nocturnity and craft should not have been considered by the lower court. There was no showing that the appellants purposely sought the cover of night when they committed the special complex crime of robbery with homicide. Neither did the appellants employ craft, since they had already boarded the vessel when they pretended to buy Tanduay Rum in exchange for the dried fish and chicken they were carrying. Even without such pretense, they could nonetheless have carried out their unlawful scheme. 3.REMEDIAL LAW; EVIDENCE; EXTRAJUDICIAL CONFESSIONS; REQUIREMENTS AND RESTRICTIONS ON THE CONSTITUTIONAL GUARANTEE OF RIGHT TO COUNSEL HAVE NO RETROACTIVE EFFECT AND DO NOT APPLY TO CONFESSIONS TAKEN BEFORE JANUARY 17, 1973. The interlocking extrajudicial confessions executed by the appellants are admissible even if they were not informed of their right to counsel. These confessions were all taken in January 1970, long before the 1973 Constitution took effect. Article III Section 20 of the 1973 Constitution, for the first time, concretized the present right of persons under custodial investigation to counsel, how to be informed of such right and the effect of noncompliance. The requirements and restrictions surrounding this constitutional guarantee, however, have no retroactive effect and do not apply to confessions taken before January 17, 1973, the date of effectivity of the 1973 Constitution. (See Magtoto v. Manguera, 63 SCRA 4 [1975])

DECISION

GUTIERREZ, JR., J :
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The appellants seek a reversal of the decision of the Regional Trial Court (RTC) of Palawan, 4th Judicial Region, Branch 48, finding them guilty of the crime of rape with homicide, with the aggravating circumstances of robbery in band, taking advantage of nighttime, recidivism, abuse of superior strength and craft. The facts for the prosecution are summarized by the Solicitor General, as follows:
"On December 28, 1969, the M/L Elsa left Puerto Princesa City for Dumaran, Palawan. On board were Catalino Nadayao, the patron of the vessel; Pepito Severino and two other crew members; and thirteen (13) passengers among whom were Narcisa Batayola, Daisy Gonzales, Josie Gonzales, Yolanda Arque, Wenifredo Magallanes, a certain Bunag and several children ranging from two (2) to nine (9) years of age. All in all, 17 persons were on board M/L Elsa with some cargoes consisting of liquor like tanduay, beer, coke, etc. The vessel left Puerto Princesa at 3:00 o'clock in the morning, navigating towards the lighthouse but due to big waves and strong winds, the launch was forced to seek shelter at Balon, Sta. Lucia, Puerto Princesa City, arriving thereat about 6 to 7:00 o'clock in the morning where they were stranded because of the bad weather and the damaged rudder of the launch (TSN, 2-18-70, pp. 169-176). While at the aforementioned place, near the site of the Sta. Lucia Penal Colony, in the afternoon between one and three o'clock, two persons went aboard the M/L Elsa. They were identified by Josie Gonzales as Pacifico Rebutido and

Rodolfo Aspili, and after Pepito Severino handed to them the liquor they left the launch (TSN, 8-26-70, pp. 437-442). It was later established that said two accused together with the other four, namely: Ernesto Magbanua, Rodolfo Sales, Roberto Aguirre and Eduardo Mendoza, all convicts colonists of Sta. Lucia Penal Colony, had been drinking liquor (tanduay) since the morning of December 28, 1969 even as they hatched the plan to escape from the Penal Colony with the use of M/L Elsa. The buying of the tanduay served also the purpose of acquainting the herein accused that the crew and passengers of M/L Elsa were innocent, peaceful and unarmed (TSN, 11-26-40, pp. 307-312). Between 7 and 8 o'clock in the evening of the same day, the six accused carried out their agreed plan to escape and, fully armed with pistols and boloes, they boarded the launch bringing with them chicken and dried fish. Upon boarding the launch, they placed themselves in strategic positions. Magbanua talked to the patron of the launch who ordered the engine operator, Pepito Severino, to fetch four bottles of tanduay. While in the act of handing the tanduay to Magbanua, the latter suddenly thrust his bolo at Severino's abdomen, at the same time pointing a pistol at him shouting 'walang kikilos' (nobody moves). This prompted Severino to jump into the sea, after seeing also the rest of the accused draw their bolos. Witnessing all these hostile acts and having evaded a stab by Rodolfo Sales who nevertheless chased him, Catalino Nadayao was constrained to jump overboard. Some passengers and the rest of the crew who were frightened by the shouting of Magbanua and the ensuing commotion likewise jumped into the sea (TSN 2-20-70, pp. 183-193; 3-17-70, pp. 196-197). Among the passengers who jumped overboard were Daisy Gonzales and Yolanda Arque. Only five persons were left in the launch who did not jump overboard. Josie Gonzales tried to jump overboard but Ernesto Magbanua, one of the accused, prevented her by holding both arms. Magbanua pulled and dragged her. Josie struggled to free herself but to no avail. Magbanua succeeded in dragging her over the cargoes where he pinned her down. While in that lying position he forcibly raped her for about five to ten minutes. At that time, Magbanua was pointing a gun at Josie's head. After Magbanua was through, Rodolfo Sales approached her, took off his pants and laid on top of her for about 3 to 5 minutes. At the time Sales was raping Josie, Magbanua was still holding her and pointing a gun at her. After Sales, Pacifico Rebutido approached her and likewise raped her. Josie tried to evade but she was already weak and only felt pain (TSN, 8-26-70, pp. 458-463; 8-27-90, pp. 1-23). On the other hand, Narcisa Batayola likewise attempted to jump but Magbanua also held her at the back portion of her dress and told her to return to the place where she and the other children were originally hiding. She saw the accused ransacking the cargoes and taking the contents thereof. Moments later, Roberto Aguirre then with a pistol held Narcisa on the shoulders while Eduardo Mendoza held her legs and wrestled her down. Aguirre had sexual intercourse with her followed by Mendoza. Thereafter, Rodolfo Aspili brought her out toward a sawali and right there and then made her lay down in a slanting position. When Aspili was having sexual intercourse with her, nobody was holding her but she could no longer resist as she was already exhausted and weak (TSN, 11-16-70, pp. 147-167). Subsequently, the six accused left the launch and boarded their banca. Thereafter, Josie and Narcisa together with the children jumped into the water and swam to the bakawan to hide. They were rescued by the 'Baracuda Launch.'

In the process, the dead bodies of Daisy Gonzales and Yolanda Arque were found. Necropsy examination on the cadavers of Daisy and Yolanda showed that both died of suffocation by drowning as blood was coming out from their nose, mouth and opening of both ears due to rapture of tempanic membrane (TSN, 217-70, pp. 109-124). Dr. Dueas, the examining physician, likewise found that Josie Gonzales and Narcisa Batayola both had undergone sexual penetration recently. Subsequently, both Josie Gonzales and Narcisa Batayola filed separate complaints charging the herein, six accused with the crimes of Rape with Homicide and Robbery in Band." (Brief for the plaintiff-appellee, pp, 2-8, Rollo, p. 334)

On the basis of the above-mentioned alleged acts committed by the accused, the following criminal cases were filed:
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1.Criminal Case No. 3 for Rape with Homicide and with Robbery in Band COMPLAINT "The undersigned complainants, after having been duly sworn to oath in accordance with law, accuse RODOLFO ASPILI, ERNESTO MAGBANUA, EDUARDO MENDOZA, RODOLFO SALES, ROBERTO AGUIRRE and PACIFICO REBUTIDO, of the crime of RAPE WITH HOMICIDE AND WITH ROBBERY IN BAND, committed as follows: "'That on or about the 28th day of December, 1969, in Sitio Balon, Sta. Lucia Sub-Colony, Municipality of Puerto Princesa, Province of Palawan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused who are all serving sentence by virtue of a final judgment in the Iwahig Penal Colony, Puerto Princesa, Palawan, conspiring and confederating together and helping one another, forcibly boarded the motor launch named 'M/L ELSA' which was then at anchor seeking shelter in the vicinity due to bad weather and while on board the said vessel the accused Ernesto Magbanua, Rodolfo Sales, and Pacifico Rebutido, did then and there wilfully, unlawfully and feloniously and with deliberate intent and lewd designs and by means of force, violence and intimidations using guns and boloes for the purpose, had sexual intercourse one after the other with the herein complainant JOSIE GONZALES, a minor 13 years of age, against her will, she being one of the 17 passengers aboard the said vessel while the rest of the accused were either having carnal knowledge with another victim NARCISA BATAYOLA, likewise a minor 15 years of age, by means of force and intimidation and against her will; while the others were ransacking the baggages of the passengers and on the occasion of such acts of the accused, panic took place aboard the said vessel thus forcing the other passengers to jump overboard for fear of bodily harm, and as a consequence thereof, DAISY GONZALES age 15, and YOLANDA ARQUE, age 9, both passengers of the said vessel were drowned; and further on the occasion thereof, all the accused took and carried away, unlawfully and feloniously and against the will of the owners thereof, cash amount of money, personal belongings and

cargoes aboard the vessel amounting to no less than TWO THOUSAND (P2,000.00) PESOS, Philippine Currency.' " CONTRARY TO LAW and with the aggravating circumstances of nighttime, by an armed band, in an uninhabited place, recidivism and or reiteration, with evident premeditation, superior strength and with the use of craft, fraud or disguise, and penalized under Article 335 of the Revised Penal Code, as amended by Republic Act No. 4111 in relation to Article 160 of the same Code."
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SGD. PABLO GONZALESSGD. JOSIE GONZALES Father-ComplainantComplainant (Rollo, pp. 15-16) 2.Criminal Case No. 4 for Rape with Homicide and with Robbery in Band COMPLAINT "That on or about the 28th day of December, 1969, in Sitio Balon, Sta. Lucia Sub-Colony, Municipality of Puerto Princesa, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who are all serving sentence by virtue of a final judgment in the Iwahig Penal Colony, Puerto Princesa, Palawan, conspiring, confederating together and helping one another, forcibly boarded the motor launch named 'M/L ELSA' which was then at anchor seeking shelter in the vicinity due to bad weather and while on board the said vessel, the accused Roberto Aguirre, Eduardo Mendoza and Rodolfo Aspili, did then and there wilfully, unlawfully and feloniously and with deliberate intent and lewd designs and by means of force, violence and intimidation, using guns and boloes for the purpose had sexual intercourse, one after the other, with herein complainant, Narcisa Batayola, a minor 15 years of age, against her will, she being one of the 17 passengers aboard the same vessel while the rest of the accused were either having carnal knowledge with another victim, Josie Gonzales, likewise a minor 13 years of age, by means of force and intimidation and against her will; while the others were ransacking the baggages of the passengers and on the occasion of such acts of the accused, panic took place aboard the said vessel, thus forcing the other passengers to jump over board for fear of bodily harm, and as a consequence thereof, Daisy Gonzales age 15 and Yolanda Arque, age 9, both passengers of the said vessel were drowned; and further on the occasion thereof, all the accused took and carried away unlawfully and feloniously and against the will of the owners thereof, cash amount of money, personal belongings and cargoes of the vessel amounting to no less than P2,000.00, Philippine Currency. "Contrary to law and with the aggravating circumstances of night time, by an armed band in an uninhabited place, recidivism and/or reiteration, with evident premeditation, superior strength and with the use of craft, fraud or disguise, and penalized under Art. 335 of the Revised Penal Code, as amended by R.A. No. 4111 in relation to Art. 160 of the same Code. Puerto Princesa, Palawan, Philippines, January 7, 1970 (SGD.) CRISTITO ARQUE(SGD.) NARCISA BATAYOLA Y ARQUE Guardian-Uncle-ComplainantComplainant"

(Rollo, pp. 179-180)

The facts for the defense are summarized by their counsel as follows:
"The true facts of the cases are those testified to by Ernesto Magbanua, Eduardo Mendoza, Roberto Aguirre, Rodolfo Sales and Manolo Espino stated briefly hereunder as follows: At about 9:00 o'clock in the morning of December 28, 1969, Ernesto Magbanua and Roberto Aguirre left their nipa hut at Santa Lucia Penal Colony and went to the Prison Brigade of the said colony to get their dirty clothes. At the brigade they met three (3) private persons, passengers or crews of Motor Launch 'Elsa'. They were eating 'Camote Cassava' with the Capataz of the colony on duty, a certain person called Rudy. From the brigade, Magbanua and Aguirre proceeded to the hut of Pacifico Rebutido. There they saw Pacifico Rebutido, Rodolfo Aspili, Rodolfo Sales and Eduardo Mendoza drinking tanduay which were brought to Rebutido's hut by the three (3) private persons from the Motor Launch 'Elsa'. At about 6:00 o'clock in the afternoon of the same date, Ernesto Magbanua and his companions returned to the colony brigade for the usual daily checking and counting of prisoners. After the checking-up, the group returned to the nipa hut of Pacifico Rebutido and there planned to escape from the Sta. Lucia Penal Colony situated in Puerto Princesa, Palawan. They agreed to hire the Motor Launch 'Elsa' anchored about ten (10) arms length from the wharf of Sta. Lucia Penal Colony in Balon, Puerto Princesa, Palawan with money, chickens and dried fish. At about 7:00 o'clock in the evening of that date the group, defendantsappellants herein, went to the Motor Launch 'Elsa' using the banca of the colony and bringing with them money, chickens and dried fish. Ernesto Magbanua boarded the launch ahead of the rest, talked to the patron of the launch to bring them to liberty and offered money, chickens and dried fish for their fares. His companions likewise boarded the motor launch, Rebutido being the last to board the same at the time when the patron of the launch was still thinking and considering the offer of Magbanua. But when Rebutido reached the deck of the launch, he stepped on a loose board and fell inside the engine room. The impact of his fall was so loud that the patron jumped overboard into the sea shouting to his crews and passengers to likewise jump into the sea. Only two women, a man and small children remained in the launch. Magbanua told the remaining persons on board the launch not to jump overboard because they did not have bad intentions. Magbanua and his companions then searched for those who jumped into the sea for anyone who may not know how to swim in order to save him. And they found a small boy about nine (9) years of age struggling to swim. They saved him by using a pole and pulling him towards the launch. When asked why he jumped overboard, the boy said that he jumped because he heard the Captain of the launch shouting to them to jump into the sea. When the herein appellants found no more persons on the sea around the launch, Rodolfo Aspili and Eduardo Mendoza went down to the engine room with one male passenger of the launch and tried to start the engine. It was at that moment when Magbanua who remained on the deck saw Josie Gonzales at the prow of the launch. He asked her to accommodate him for a sexual intercourse, but Josie pointed him instead to Narcisa Batayola saying that Batayola is the

one having experience on the matter. When told that he (Magbanua) did not like Batayola, Josie agreed to a sexual intercourse if Magbanua will not harm her. She undressed herself when told to undress. Then Magbanua opened the zipper of his pants and let Josie hold his penis. While Josie was holding his penis, Magbanua made her lie down. He inserted his penis inside the vagina of Josie who complained of pains. It took Magbanua about five (5) minutes to insert only two inches of his penis inside the vagina of Josie Gonzales. At that same moment, Rodolfo Sales and Pacifico Rebutido pulled Magbanua up from Josie Gonzales reminding Magbanua that their agreement was only to escape and what he was doing to Josie Gonzales was not part of their agreement. At about the same time that Magbanua was having sexual intercourse with Josie Gonzales, Roberto Aguirre was also having sexual intercourse with Narcisa Batayola. Before the intercourse, Aguirre saw Batayola about to jump into the sea. He prevented her from jumping overboard by holding her. Then he went around the deck of the launch to see if there were still persons swimming on the water, leaving Batayola at the prow of the launch. Seeing none, he returned to Batayola and asked her to have sexual intercourse with him. At first Batayola refused. But later she undressed herself when told to undress. Aguirre made her lie down and he inserted his penis inside the vagina of Narcisa Batayola without any difficulty. He made two successive sexual intercourse with Narcisa Batayola, after which they both dressed up. They were in that situation when Rodolfo Sales and Pacifico Rebotido arrived, pulled Aguirre away and they boarded their banca because they saw someone flashlighting the premises at the shore. Magbanua also called Aspili and Eduardo Mendoza at the engine room and they likewise boarded their banca and proceeded to the mangrove swamp to escape. On the way, they noticed that Aspili was left behind." (Appellant's Brief, pp. 3-6)

The two cases were consolidated and, after hearing, the lower court rendered judgment finding the accused guilty of the crime of rape with homicide. The dispositive portion of the decision is set forth below:
"WHEREFORE, haloed by the illuminating light of all aforegoing facts, laws, jurisprudence and arguments, this Court finds all the herein accused, namely: Rodolfo Aspili, Ernesto Magbanua, Eduardo Mendoza, Jr., Rodolfo Sales, Roberto Aguirre and Pacifico Rebutido guilty of the crimes of Rape with Homicide, with the aggravating circumstances of Robbery in Band, taking advantage of nighttime, recidivism, abuse of superior strength and craft, in the above-entitled Criminal Case No. 3, beyond reasonable doubt, and sentences all of them to Reclusion Perpetua, and all, likewise, guilty of the same but separate crime with all the same aforementioned aggravating circumstances, in the above-entitled Criminal Case No. 4, beyond reasonable doubt and imposes upon all of them, another separate penalty of Reclusion Perpetua, both penalties to be served successively, with all its accessory penalties too in both cases, further, all same six (6) herein accused are sentenced and ordered to pay actual damages jointly and solidarily as follows: 1.P265.00 to Josie Gonzales; 2.24.00 to Narcisa Batayola; 3.36.00 to Pepito Severino and 4.P1,675.00 to Catalino Nadayao, for and the other passengers, named by him to have suffered losses, in an amount corresponding to each, respectively,

and furthermore, the same six (6) aforenamed accused are sentenced and ordered to pay, jointly and solidarily, moral damages, in the amount of P25,000.00 to each of Josie Gonzales and Narcisa Batayola, their heirs and assigns respectively, as moral damages, and ultimately to indemnify in the same manner, the parents, their heirs and assigns of deceased Daisy Gonzales and Yolanda Arque, the amount of P30,000.00 for each and every death of the said two (2) deceased, without subsidiary imprisonment in case of insolvency in all the aforecited civil liabilities. It is further directed that an alias warrant of arrest be issued against Rodolfo Sales and Pacifico Rebutido and not to be returned until they were in the custody of the law." (Rollo, pp. 290-291)

We agree with the trial court that the prosecution correctly presented the facts of the case. The appellants raise the following assignments of errors:
I "THE TRIAL COURT ERRED IN HOLDING THAT THE CRIMES COMMITTED BY THE DEFENDANTS-APPELLANTS HEREIN ARE RAPE WITH HOMICIDE WITH THE AGGRAVATING CIRCUMSTANCES OF ROBBERY IN BAND, NIGHTTIME, SUPERIOR STRENGTH, RECIDIVISM, AND CRAFT. II THE TRIAL COURT ERRED IN HOLDING THAT THE DEFENDANTSAPPELLANTS HEREIN CONSPIRED TO COMMIT THE OFFENSES OF RAPE WITH HOMICIDE AND CONVICTING ALL OF THEM OF THE SAID CRIMES." (Rollo, pp. 326-327)

The Court finds, at the outset, that the trial judge erred in designating the offense committed by the appellants as rape with homicide aggravated by robbery in band. For one, neither in law nor in jurisprudence is there an aggravating circumstance as robbery in band. More importantly, the evidence shows that what was committed is the special complex crime of robbery with homicide aggravated by rape. The records disclose that the appellants took control of the vessel M/L Elsa by threatening the crew and passengers with their boloes and pistols. (TSN, pp. 452-459, August 26, 1970; pp. 137-148, November 16, 1970) Narcisa Batayola, a prosecution witness, testified that after the commotion that ensued when appellants wielded their weapons, some of the appellants immediately started ransacking the cargoes and taking the contents thereof (TSN, p. 148, November 16, 1970) These acts of the appellants therefore manifest an unlawful intent to gain, through violence and intimidation of persons, by taking the vessel and personal property of the crew and passengers, which comprises the crime of robbery. The overwhelming evidence reveals that the original design of the malefactors was to commit robbery in order to facilitate their escape from the penal colony. Their original intent did not comprehend the commission of rape. Hence, the crime of rape cannot be regarded as the principal offense. In this case, since it attended the commission of robbery with homicide, the rape is deemed to aggravate the crime but damages or indemnification for the victim may be awarded. (See People vs. Bacsa, 104 Phil. 136 [1958]; People v. Tapales, 93 SCRA 134 [1979]). Instead of ignominy, it is the rape itself that aggravates the crime (People v. Mongado, 28 SCRA 642 [1969]).

With respect to the deaths of Daisy Gonzales and Yolanda Arque, the appellants are clearly liable therefor since, as held by this Court in People v. Mangulabnan, (99 Phil. 992 [1956]) it is immaterial that the death of a person supervened by mere accident, provided that the homicide is produced by reason or on occasion of the robbery.
Cdpr

Since rape and homicide co-exist in the commission of robbery, the offense committed by the appellants is the special complex crime of robbery with homicide, aggravated by rape, punishable under Paragraph 1 of Article 294 of the Revised Penal Code (RPC). It does not matter if the technical name assigned to the offense is rape with homicide and with robbery in band, for the real nature of the crime charged is determined not by the title of the complaint, nor by the specification of the provision of the law alleged to have been violated, but by the facts recited in the complaint or information. (See People v. Oliviera, 67 Phil. 427 [1939]) As the acts constituting robbery with homicide were clearly set forth in the complaint and proven during trial, then the appellants may be held liable for such crime, regardless of the erroneous designation of the offense. With the foregoing pronouncements, the Court no longer deems it necessary to deal with the appellants' argument in their first assignment of error that assuming arguendo that they are guilty of committing rape, the crimes of rape and homicide should be viewed as separate and distinct offenses. We have already ruled that the crime committed is the special complex crime of robbery with homicide, the rape being considered merely as an aggravating circumstance. We find no merit in the appellants' contention that the lower court erred in considering recidivism as an aggravating circumstance. All the appellants are recidivists. They were serving sentence at the Sta. Lucia Penal Colony by virtue of a final judgment of conviction when they committed the above-mentioned offenses. Rodolfo Aspili, Ernesto Magbanua, Eduardo Mendoza and Pacifico Rebutido have previously been convicted of the crimes of frustrated homicide, serious physical injuries, theft, and murder and trespass to dwelling, respectively. Both Rodolfo Sales and Roberto Aguirre have previously been convicted of robbery in band. We likewise uphold the trial court's finding that the crime was aggravated because it was committed by a band. All the six appellants were armed when they boarded the vessel and perpetrated their dastardly acts. There is also abuse of superior strength, since most of the victims were women and children ranging from 2 to 9 years old.
LLjur

However, the aggravating circumstances of nocturnity and craft should not have been considered by the lower court. There was no showing that the appellants purposely sought the cover of night when they committed the special complex crime of robbery with homicide. Neither did the appellants employ craft, since they had already boarded the vessel when they pretended to buy Tanduay Rum in exchange for the dried fish and chicken they were carrying. Even without such pretense, they could nonetheless have carried out their unlawful scheme. With respect to the second assignment of error, the appellants' contention that there was no conspiracy in the commission of rape becomes immaterial in view of the fact that all of them directly participated in its commission. Appellants Magbanua, Sales and Rebutido took turns in raping Josie Gonzales, while appellants Aguirre, Mendoza and Aspili ravished Narcisa Batayola. The Court accords more weight and credence to the testimonies of complainants Gonzales and Batayola. These two girls, 13 and 15 years old respectively, would not subject themselves to the rigors of a public trial if they were not motivated by an honest desire to punish their assailants. Moreover, their narrations were

corroborated by the testimony of Dr. Juanito Duenas who physically examined Gonzales and Batayola and found that both indeed had just undergone sexual penetration. The interlocking extrajudicial confessions executed by the appellants are admissible even if they were not informed of their right to counsel. These confessions were all taken in January 1970, long before the 1973 Constitution took effect. Article III Section 20 of the 1973 Constitution, for the first time, concretized the present right of persons under custodial investigation to counsel, how to be informed of such right and the effect of noncompliance. The requirements and restrictions surrounding this constitutional guarantee, however, have no retroactive effect and do not apply to confessions taken before January 17, 1973, the date of effectivity of the 1973 Constitution. (See Magtoto v. Manguera, 63 SCRA 4 [1975]) At any rate, even without considering these extrajudicial confessions, the Court is convinced that the guilt of appellants has been incontrovertibly established beyond reasonable doubt by the prosecution. The Court, however, finds that the trial judge erred in imposing upon the appellants two separate penalties of reclusion perpetua, both penalties to be served successively. The basis for this imposition by the lower court is its finding that the appellants are guilty of two crimes of rape with homicide, one for the rape of Josie Gonzales and the other for the rape of Narcisa Batayola. We have already pronounced, though, that the rape committed is merely an aggravating circumstance. Since the appellants are found guilty of the special complex crime of robbery with homicide aggravated by rape, recidivism, in band and abuse of superior strength, then, applying Article 294, paragraph 1 of the Revised Penal Code, only one penalty of reclusion perpetua should have been imposed.
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In passing, it may be mentioned that the crimes committed by appellants are now denominated as piracy in Philippine waters, punishable under Presidential Decree No. 532. We find it unnecessary to retroactively apply the provisions thereof in favor of the appellants because the acts committed by them are likewise punishable therein by reclusion perpetua. Considering the perversity accompanying the crime, the heinous nature not only of the offense but its manner of commission, and the refusal of the accused to learn from their earlier convictions, the Court strongly feels that the sentences herein imposed must be fully served. Any official who goes over any applications for pardon or parole is urged to read the records of the case before acting on the applications. WHEREFORE, the appealed decision in Criminal Cases Nos. 3 and 4 is AFFIRMED but MODIFIED. The appellants are found guilty of the special complex crime of robbery with homicide with the aggravating circumstances of rape, recidivism, in band and abuse of superior strength and are hereby sentenced to suffer the penalty of reclusion perpetua. The award of actual damages is hereby affirmed. The awards representing indemnity for the deaths are increased to P50,000.00 for each victim while the moral damages for the rapes are increased to P30,000.00 for each victim. SO ORDERED. Fernan, C.J. and Bidin, J., concur. Feliciano, J., is on leave.

THIRD DIVISION
[G.R. Nos. 89418-19. November 21, 1990.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODOLFO ASPILI, ERNESTO MAGBANUA, EDUARDO MENDOZA, RODOLFO SALES, ROBERT AGUIRRE and PACIFICO REBUTIDO, accused-appellants. The Solicitor General for plaintiff-appellee. Enrique A. Javier, Sr. counsel de oficio for accused-appellants. SYLLABUS 1.CRIMINAL LAW; COMPLEX CRIMES; SPECIAL COMPLEX CRIME OF ROBBERY WITH HOMICIDE AGGRAVATED WITH RAPE, COMMITTED IN THE CASE AT BAR; PENALTY THEREOF; SAID CRIME NOW DESIGNATED AS PIRACY IN PHILIPPINE WATERS. The Court finds, at the outset, that the trial judge erred in designating the offense committed by the appellants as rape with homicide aggravated by robbery in band. For one, neither in law nor in jurisprudence is there an aggravating circumstance as robbery in band. More importantly, the evidence shows that what was committed is the special complex crime of robbery with homicide aggravated by rape. The overwhelming evidence reveals that the original design of the malefactors was to commit robbery in order to facilitate their escape from the penal colony. Their original intent did not comprehend the commission of rape. Hence, the crime of rape cannot be regarded as the principal offense. In this case, since it attended the commission of robbery with homicide, the rape is deemed to aggravate the crime but damages or indemnification for the victim may be awarded. (See People vs. Bacsa, 104 Phil. 136 [1958]; People v. Tapales, 93 SCRA 134 [1979]). Instead of ignominy, it is the rape itself that aggravates the crime (People v. Mongado, 28 SCRA 642 [1969]). With respect to the deaths of Daisy Gonzales and Yolanda Arque, the appellants are clearly liable therefor since, as held by this Court in People v. Mangulabnan, (99 Phil. 992 [1956]) it is immaterial that the death of a person supervened by mere accident, provided that the homicide is produced by reason or on occasion of the robbery. Since rape and homicide co-exist in the commission of robbery, the offense committed by the appellants is the special complex crime of robbery with homicide, aggravated by rape, punishable under Paragraph 1 of Article 294 of the Revised Penal Code (RPC). It does not matter if the technical name assigned to the offense is rape with homicide and with robbery in band, for the real nature of the crime charged is determined not by the title of the complaint, nor by the specification of the provision of the law alleged to have been violated, but by the facts recited in the complaint or information. (See People v. Oliviera, 67 Phil. 427 [1939]) As the acts constituting robbery with homicide were clearly set forth in the complaint and proven during trial, then the appellants may be held liable for such crime, regardless of the erroneous designation of the offense. In passing, it may be mentioned

that the crimes committed by appellants are now denominated as piracy in Philippine waters, punishable under Presidential Decree No. 532. We find it unnecessary to retroactively apply the provisions thereof in favor of the appellants because the acts committed by them are likewise punishable therein by reclusion perpetua. 2.ID.; AGGRAVATING CIRCUMSTANCES; RECIDIVISM, IN BAND AND ABUSE OF SUPERIOR STRENGTH, ALSO ESTABLISHED IN THE CASE AT BAR; NOCTURNITY AND CRAFT, NOT CONSIDERED. We find no merit in the appellants' contention that the lower court erred in considering recidivism as an aggravating circumstance. All the appellants are recidivists. They were serving sentence at the Sta. Lucia Penal Colony by virtue of a final judgment of conviction when they committed the above-mentioned offenses. Rodolfo Aspili, Ernesto Magbanua, Eduardo Mendoza and Pacifico Rebutido have previously been convicted of the crimes of frustrated homicide, serious physical injuries, theft, and murder and trespass to dwelling, respectively. Both Rodolfo Sales and Roberto Aguirre have previously been convicted of robbery in band. We likewise uphold the trial court's finding that the crime was aggravated because it was committed by a band. All the six appellants were armed when they boarded the vessel and perpetrated their dastardly acts. There is also abuse of superior strength, since most of the victims were women and children ranging from 2 to 9 years old. However, the aggravating circumstances of nocturnity and craft should not have been considered by the lower court. There was no showing that the appellants purposely sought the cover of night when they committed the special complex crime of robbery with homicide. Neither did the appellants employ craft, since they had already boarded the vessel when they pretended to buy Tanduay Rum in exchange for the dried fish and chicken they were carrying. Even without such pretense, they could nonetheless have carried out their unlawful scheme. 3.REMEDIAL LAW; EVIDENCE; EXTRAJUDICIAL CONFESSIONS; REQUIREMENTS AND RESTRICTIONS ON THE CONSTITUTIONAL GUARANTEE OF RIGHT TO COUNSEL HAVE NO RETROACTIVE EFFECT AND DO NOT APPLY TO CONFESSIONS TAKEN BEFORE JANUARY 17, 1973. The interlocking extrajudicial confessions executed by the appellants are admissible even if they were not informed of their right to counsel. These confessions were all taken in January 1970, long before the 1973 Constitution took effect. Article III Section 20 of the 1973 Constitution, for the first time, concretized the present right of persons under custodial investigation to counsel, how to be informed of such right and the effect of noncompliance. The requirements and restrictions surrounding this constitutional guarantee, however, have no retroactive effect and do not apply to confessions taken before January 17, 1973, the date of effectivity of the 1973 Constitution. (See Magtoto v. Manguera, 63 SCRA 4 [1975])

DECISION

GUTIERREZ, JR., J :
p

The appellants seek a reversal of the decision of the Regional Trial Court (RTC) of Palawan, 4th Judicial Region, Branch 48, finding them guilty of the crime of rape with homicide, with the aggravating circumstances of robbery in band, taking advantage of nighttime, recidivism, abuse of superior strength and craft.

The facts for the prosecution are summarized by the Solicitor General, as follows:
"On December 28, 1969, the M/L Elsa left Puerto Princesa City for Dumaran, Palawan. On board were Catalino Nadayao, the patron of the vessel; Pepito Severino and two other crew members; and thirteen (13) passengers among whom were Narcisa Batayola, Daisy Gonzales, Josie Gonzales, Yolanda Arque, Wenifredo Magallanes, a certain Bunag and several children ranging from two (2) to nine (9) years of age. All in all, 17 persons were on board M/L Elsa with some cargoes consisting of liquor like tanduay, beer, coke, etc. The vessel left Puerto Princesa at 3:00 o'clock in the morning, navigating towards the lighthouse but due to big waves and strong winds, the launch was forced to seek shelter at Balon, Sta. Lucia, Puerto Princesa City, arriving thereat about 6 to 7:00 o'clock in the morning where they were stranded because of the bad weather and the damaged rudder of the launch (TSN, 2-18-70, pp. 169-176). While at the aforementioned place, near the site of the Sta. Lucia Penal Colony, in the afternoon between one and three o'clock, two persons went aboard the M/L Elsa. They were identified by Josie Gonzales as Pacifico Rebutido and Rodolfo Aspili, and after Pepito Severino handed to them the liquor they left the launch (TSN, 8-26-70, pp. 437-442). It was later established that said two accused together with the other four, namely: Ernesto Magbanua, Rodolfo Sales, Roberto Aguirre and Eduardo Mendoza, all convicts colonists of Sta. Lucia Penal Colony, had been drinking liquor (tanduay) since the morning of December 28, 1969 even as they hatched the plan to escape from the Penal Colony with the use of M/L Elsa. The buying of the tanduay served also the purpose of acquainting the herein accused that the crew and passengers of M/L Elsa were innocent, peaceful and unarmed (TSN, 11-26-40, pp. 307-312). Between 7 and 8 o'clock in the evening of the same day, the six accused carried out their agreed plan to escape and, fully armed with pistols and boloes, they boarded the launch bringing with them chicken and dried fish. Upon boarding the launch, they placed themselves in strategic positions. Magbanua talked to the patron of the launch who ordered the engine operator, Pepito Severino, to fetch four bottles of tanduay. While in the act of handing the tanduay to Magbanua, the latter suddenly thrust his bolo at Severino's abdomen, at the same time pointing a pistol at him shouting 'walang kikilos' (nobody moves). This prompted Severino to jump into the sea, after seeing also the rest of the accused draw their bolos. Witnessing all these hostile acts and having evaded a stab by Rodolfo Sales who nevertheless chased him, Catalino Nadayao was constrained to jump overboard. Some passengers and the rest of the crew who were frightened by the shouting of Magbanua and the ensuing commotion likewise jumped into the sea (TSN 2-20-70, pp. 183-193; 3-17-70, pp. 196-197). Among the passengers who jumped overboard were Daisy Gonzales and Yolanda Arque. Only five persons were left in the launch who did not jump overboard. Josie Gonzales tried to jump overboard but Ernesto Magbanua, one of the accused, prevented her by holding both arms. Magbanua pulled and dragged her. Josie struggled to free herself but to no avail. Magbanua succeeded in dragging her over the cargoes where he pinned her down. While in that lying position he forcibly raped her for about five to ten minutes. At that time, Magbanua was pointing a gun at Josie's head. After Magbanua was through, Rodolfo Sales approached her, took off his pants and laid on top of her for about 3 to 5 minutes. At the time Sales was raping Josie, Magbanua was still holding her and pointing a gun at her. After Sales, Pacifico Rebutido approached her and

likewise raped her. Josie tried to evade but she was already weak and only felt pain (TSN, 8-26-70, pp. 458-463; 8-27-90, pp. 1-23). On the other hand, Narcisa Batayola likewise attempted to jump but Magbanua also held her at the back portion of her dress and told her to return to the place where she and the other children were originally hiding. She saw the accused ransacking the cargoes and taking the contents thereof. Moments later, Roberto Aguirre then with a pistol held Narcisa on the shoulders while Eduardo Mendoza held her legs and wrestled her down. Aguirre had sexual intercourse with her followed by Mendoza. Thereafter, Rodolfo Aspili brought her out toward a sawali and right there and then made her lay down in a slanting position. When Aspili was having sexual intercourse with her, nobody was holding her but she could no longer resist as she was already exhausted and weak (TSN, 11-16-70, pp. 147-167). Subsequently, the six accused left the launch and boarded their banca. Thereafter, Josie and Narcisa together with the children jumped into the water and swam to the bakawan to hide. They were rescued by the 'Baracuda Launch.' In the process, the dead bodies of Daisy Gonzales and Yolanda Arque were found. Necropsy examination on the cadavers of Daisy and Yolanda showed that both died of suffocation by drowning as blood was coming out from their nose, mouth and opening of both ears due to rapture of tempanic membrane (TSN, 217-70, pp. 109-124). Dr. Dueas, the examining physician, likewise found that Josie Gonzales and Narcisa Batayola both had undergone sexual penetration recently. Subsequently, both Josie Gonzales and Narcisa Batayola filed separate complaints charging the herein, six accused with the crimes of Rape with Homicide and Robbery in Band." (Brief for the plaintiff-appellee, pp, 2-8, Rollo, p. 334)

On the basis of the above-mentioned alleged acts committed by the accused, the following criminal cases were filed:
LexLib

1.Criminal Case No. 3 for Rape with Homicide and with Robbery in Band COMPLAINT "The undersigned complainants, after having been duly sworn to oath in accordance with law, accuse RODOLFO ASPILI, ERNESTO MAGBANUA, EDUARDO MENDOZA, RODOLFO SALES, ROBERTO AGUIRRE and PACIFICO REBUTIDO, of the crime of RAPE WITH HOMICIDE AND WITH ROBBERY IN BAND, committed as follows: "'That on or about the 28th day of December, 1969, in Sitio Balon, Sta. Lucia Sub-Colony, Municipality of Puerto Princesa, Province of Palawan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused who are all serving sentence by virtue of a final judgment in the Iwahig Penal Colony, Puerto Princesa, Palawan, conspiring and confederating together and helping one another, forcibly boarded the motor launch named 'M/L ELSA'

which was then at anchor seeking shelter in the vicinity due to bad weather and while on board the said vessel the accused Ernesto Magbanua, Rodolfo Sales, and Pacifico Rebutido, did then and there wilfully, unlawfully and feloniously and with deliberate intent and lewd designs and by means of force, violence and intimidations using guns and boloes for the purpose, had sexual intercourse one after the other with the herein complainant JOSIE GONZALES, a minor 13 years of age, against her will, she being one of the 17 passengers aboard the said vessel while the rest of the accused were either having carnal knowledge with another victim NARCISA BATAYOLA, likewise a minor 15 years of age, by means of force and intimidation and against her will; while the others were ransacking the baggages of the passengers and on the occasion of such acts of the accused, panic took place aboard the said vessel thus forcing the other passengers to jump overboard for fear of bodily harm, and as a consequence thereof, DAISY GONZALES age 15, and YOLANDA ARQUE, age 9, both passengers of the said vessel were drowned; and further on the occasion thereof, all the accused took and carried away, unlawfully and feloniously and against the will of the owners thereof, cash amount of money, personal belongings and cargoes aboard the vessel amounting to no less than TWO THOUSAND (P2,000.00) PESOS, Philippine Currency.' " CONTRARY TO LAW and with the aggravating circumstances of nighttime, by an armed band, in an uninhabited place, recidivism and or reiteration, with evident premeditation, superior strength and with the use of craft, fraud or disguise, and penalized under Article 335 of the Revised Penal Code, as amended by Republic Act No. 4111 in relation to Article 160 of the same Code."
prLL

SGD. PABLO GONZALESSGD. JOSIE GONZALES Father-ComplainantComplainant (Rollo, pp. 15-16) 2.Criminal Case No. 4 for Rape with Homicide and with Robbery in Band COMPLAINT "That on or about the 28th day of December, 1969, in Sitio Balon, Sta. Lucia Sub-Colony, Municipality of Puerto Princesa, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who are all serving sentence by virtue of a final judgment in the Iwahig Penal Colony, Puerto Princesa, Palawan, conspiring, confederating together and helping one another, forcibly boarded the motor launch named 'M/L ELSA' which was then at anchor seeking shelter in the vicinity due to bad weather and while on board the said vessel, the accused Roberto Aguirre, Eduardo Mendoza and Rodolfo Aspili, did then and there wilfully, unlawfully and feloniously and with deliberate intent and lewd designs and by means of force, violence and intimidation, using guns and boloes for the purpose had sexual intercourse, one after the other, with herein complainant, Narcisa Batayola, a minor 15 years of age, against her will, she being one of the 17 passengers aboard the same vessel while the rest of the accused were either having carnal knowledge with another victim, Josie Gonzales, likewise a minor 13 years of age, by means of force and intimidation and against her will; while the others were ransacking the baggages of the passengers and on the occasion of such acts of the accused, panic took place aboard the said vessel, thus forcing the other passengers to jump over board for fear of bodily harm, and as a consequence thereof, Daisy Gonzales

age 15 and Yolanda Arque, age 9, both passengers of the said vessel were drowned; and further on the occasion thereof, all the accused took and carried away unlawfully and feloniously and against the will of the owners thereof, cash amount of money, personal belongings and cargoes of the vessel amounting to no less than P2,000.00, Philippine Currency. "Contrary to law and with the aggravating circumstances of night time, by an armed band in an uninhabited place, recidivism and/or reiteration, with evident premeditation, superior strength and with the use of craft, fraud or disguise, and penalized under Art. 335 of the Revised Penal Code, as amended by R.A. No. 4111 in relation to Art. 160 of the same Code. Puerto Princesa, Palawan, Philippines, January 7, 1970 (SGD.) CRISTITO ARQUE(SGD.) NARCISA BATAYOLA Y ARQUE Guardian-Uncle-ComplainantComplainant" (Rollo, pp. 179-180)

The facts for the defense are summarized by their counsel as follows:
"The true facts of the cases are those testified to by Ernesto Magbanua, Eduardo Mendoza, Roberto Aguirre, Rodolfo Sales and Manolo Espino stated briefly hereunder as follows: At about 9:00 o'clock in the morning of December 28, 1969, Ernesto Magbanua and Roberto Aguirre left their nipa hut at Santa Lucia Penal Colony and went to the Prison Brigade of the said colony to get their dirty clothes. At the brigade they met three (3) private persons, passengers or crews of Motor Launch 'Elsa'. They were eating 'Camote Cassava' with the Capataz of the colony on duty, a certain person called Rudy. From the brigade, Magbanua and Aguirre proceeded to the hut of Pacifico Rebutido. There they saw Pacifico Rebutido, Rodolfo Aspili, Rodolfo Sales and Eduardo Mendoza drinking tanduay which were brought to Rebutido's hut by the three (3) private persons from the Motor Launch 'Elsa'. At about 6:00 o'clock in the afternoon of the same date, Ernesto Magbanua and his companions returned to the colony brigade for the usual daily checking and counting of prisoners. After the checking-up, the group returned to the nipa hut of Pacifico Rebutido and there planned to escape from the Sta. Lucia Penal Colony situated in Puerto Princesa, Palawan. They agreed to hire the Motor Launch 'Elsa' anchored about ten (10) arms length from the wharf of Sta. Lucia Penal Colony in Balon, Puerto Princesa, Palawan with money, chickens and dried fish. At about 7:00 o'clock in the evening of that date the group, defendantsappellants herein, went to the Motor Launch 'Elsa' using the banca of the colony and bringing with them money, chickens and dried fish. Ernesto Magbanua boarded the launch ahead of the rest, talked to the patron of the launch to bring them to liberty and offered money, chickens and dried fish for their fares. His companions likewise boarded the motor launch, Rebutido being the last to board the same at the time when the patron of the launch was still thinking and considering the offer of Magbanua. But when Rebutido reached the deck of the launch, he stepped on a loose board and fell inside the engine room. The impact of his fall was so loud that the patron jumped overboard into the sea shouting to his crews and passengers to likewise jump into the sea. Only two women, a man

and small children remained in the launch. Magbanua told the remaining persons on board the launch not to jump overboard because they did not have bad intentions. Magbanua and his companions then searched for those who jumped into the sea for anyone who may not know how to swim in order to save him. And they found a small boy about nine (9) years of age struggling to swim. They saved him by using a pole and pulling him towards the launch. When asked why he jumped overboard, the boy said that he jumped because he heard the Captain of the launch shouting to them to jump into the sea. When the herein appellants found no more persons on the sea around the launch, Rodolfo Aspili and Eduardo Mendoza went down to the engine room with one male passenger of the launch and tried to start the engine. It was at that moment when Magbanua who remained on the deck saw Josie Gonzales at the prow of the launch. He asked her to accommodate him for a sexual intercourse, but Josie pointed him instead to Narcisa Batayola saying that Batayola is the one having experience on the matter. When told that he (Magbanua) did not like Batayola, Josie agreed to a sexual intercourse if Magbanua will not harm her. She undressed herself when told to undress. Then Magbanua opened the zipper of his pants and let Josie hold his penis. While Josie was holding his penis, Magbanua made her lie down. He inserted his penis inside the vagina of Josie who complained of pains. It took Magbanua about five (5) minutes to insert only two inches of his penis inside the vagina of Josie Gonzales. At that same moment, Rodolfo Sales and Pacifico Rebutido pulled Magbanua up from Josie Gonzales reminding Magbanua that their agreement was only to escape and what he was doing to Josie Gonzales was not part of their agreement. At about the same time that Magbanua was having sexual intercourse with Josie Gonzales, Roberto Aguirre was also having sexual intercourse with Narcisa Batayola. Before the intercourse, Aguirre saw Batayola about to jump into the sea. He prevented her from jumping overboard by holding her. Then he went around the deck of the launch to see if there were still persons swimming on the water, leaving Batayola at the prow of the launch. Seeing none, he returned to Batayola and asked her to have sexual intercourse with him. At first Batayola refused. But later she undressed herself when told to undress. Aguirre made her lie down and he inserted his penis inside the vagina of Narcisa Batayola without any difficulty. He made two successive sexual intercourse with Narcisa Batayola, after which they both dressed up. They were in that situation when Rodolfo Sales and Pacifico Rebotido arrived, pulled Aguirre away and they boarded their banca because they saw someone flashlighting the premises at the shore. Magbanua also called Aspili and Eduardo Mendoza at the engine room and they likewise boarded their banca and proceeded to the mangrove swamp to escape. On the way, they noticed that Aspili was left behind." (Appellant's Brief, pp. 3-6)

The two cases were consolidated and, after hearing, the lower court rendered judgment finding the accused guilty of the crime of rape with homicide. The dispositive portion of the decision is set forth below:
"WHEREFORE, haloed by the illuminating light of all aforegoing facts, laws, jurisprudence and arguments, this Court finds all the herein accused, namely: Rodolfo Aspili, Ernesto Magbanua, Eduardo Mendoza, Jr., Rodolfo Sales, Roberto Aguirre and Pacifico Rebutido guilty of the crimes of Rape with Homicide, with the aggravating circumstances of Robbery in Band, taking advantage of nighttime, recidivism, abuse of superior strength and craft, in the above-entitled Criminal Case No. 3, beyond reasonable doubt, and sentences all

of them to Reclusion Perpetua, and all, likewise, guilty of the same but separate crime with all the same aforementioned aggravating circumstances, in the above-entitled Criminal Case No. 4, beyond reasonable doubt and imposes upon all of them, another separate penalty of Reclusion Perpetua, both penalties to be served successively, with all its accessory penalties too in both cases, further, all same six (6) herein accused are sentenced and ordered to pay actual damages jointly and solidarily as follows: 1.P265.00 to Josie Gonzales; 2.24.00 to Narcisa Batayola; 3.36.00 to Pepito Severino and 4.P1,675.00 to Catalino Nadayao, for and the other passengers, named by him to have suffered losses, in an amount corresponding to each, respectively, and furthermore, the same six (6) aforenamed accused are sentenced and ordered to pay, jointly and solidarily, moral damages, in the amount of P25,000.00 to each of Josie Gonzales and Narcisa Batayola, their heirs and assigns respectively, as moral damages, and ultimately to indemnify in the same manner, the parents, their heirs and assigns of deceased Daisy Gonzales and Yolanda Arque, the amount of P30,000.00 for each and every death of the said two (2) deceased, without subsidiary imprisonment in case of insolvency in all the aforecited civil liabilities. It is further directed that an alias warrant of arrest be issued against Rodolfo Sales and Pacifico Rebutido and not to be returned until they were in the custody of the law." (Rollo, pp. 290-291)

We agree with the trial court that the prosecution correctly presented the facts of the case. The appellants raise the following assignments of errors:
I "THE TRIAL COURT ERRED IN HOLDING THAT THE CRIMES COMMITTED BY THE DEFENDANTS-APPELLANTS HEREIN ARE RAPE WITH HOMICIDE WITH THE AGGRAVATING CIRCUMSTANCES OF ROBBERY IN BAND, NIGHTTIME, SUPERIOR STRENGTH, RECIDIVISM, AND CRAFT. II THE TRIAL COURT ERRED IN HOLDING THAT THE DEFENDANTSAPPELLANTS HEREIN CONSPIRED TO COMMIT THE OFFENSES OF RAPE WITH HOMICIDE AND CONVICTING ALL OF THEM OF THE SAID CRIMES." (Rollo, pp. 326-327)

The Court finds, at the outset, that the trial judge erred in designating the offense committed by the appellants as rape with homicide aggravated by robbery in band. For one, neither in law nor in jurisprudence is there an aggravating circumstance as robbery in band. More importantly, the evidence shows that what was committed is the special complex crime of robbery with homicide aggravated by rape.

The records disclose that the appellants took control of the vessel M/L Elsa by threatening the crew and passengers with their boloes and pistols. (TSN, pp. 452-459, August 26, 1970; pp. 137-148, November 16, 1970) Narcisa Batayola, a prosecution witness, testified that after the commotion that ensued when appellants wielded their weapons, some of the appellants immediately started ransacking the cargoes and taking the contents thereof (TSN, p. 148, November 16, 1970) These acts of the appellants therefore manifest an unlawful intent to gain, through violence and intimidation of persons, by taking the vessel and personal property of the crew and passengers, which comprises the crime of robbery. The overwhelming evidence reveals that the original design of the malefactors was to commit robbery in order to facilitate their escape from the penal colony. Their original intent did not comprehend the commission of rape. Hence, the crime of rape cannot be regarded as the principal offense. In this case, since it attended the commission of robbery with homicide, the rape is deemed to aggravate the crime but damages or indemnification for the victim may be awarded. (See People vs. Bacsa, 104 Phil. 136 [1958]; People v. Tapales, 93 SCRA 134 [1979]). Instead of ignominy, it is the rape itself that aggravates the crime (People v. Mongado, 28 SCRA 642 [1969]). With respect to the deaths of Daisy Gonzales and Yolanda Arque, the appellants are clearly liable therefor since, as held by this Court in People v. Mangulabnan, (99 Phil. 992 [1956]) it is immaterial that the death of a person supervened by mere accident, provided that the homicide is produced by reason or on occasion of the robbery.
Cdpr

Since rape and homicide co-exist in the commission of robbery, the offense committed by the appellants is the special complex crime of robbery with homicide, aggravated by rape, punishable under Paragraph 1 of Article 294 of the Revised Penal Code (RPC). It does not matter if the technical name assigned to the offense is rape with homicide and with robbery in band, for the real nature of the crime charged is determined not by the title of the complaint, nor by the specification of the provision of the law alleged to have been violated, but by the facts recited in the complaint or information. (See People v. Oliviera, 67 Phil. 427 [1939]) As the acts constituting robbery with homicide were clearly set forth in the complaint and proven during trial, then the appellants may be held liable for such crime, regardless of the erroneous designation of the offense. With the foregoing pronouncements, the Court no longer deems it necessary to deal with the appellants' argument in their first assignment of error that assuming arguendo that they are guilty of committing rape, the crimes of rape and homicide should be viewed as separate and distinct offenses. We have already ruled that the crime committed is the special complex crime of robbery with homicide, the rape being considered merely as an aggravating circumstance. We find no merit in the appellants' contention that the lower court erred in considering recidivism as an aggravating circumstance. All the appellants are recidivists. They were serving sentence at the Sta. Lucia Penal Colony by virtue of a final judgment of conviction when they committed the above-mentioned offenses. Rodolfo Aspili, Ernesto Magbanua, Eduardo Mendoza and Pacifico Rebutido have previously been convicted of the crimes of frustrated homicide, serious physical injuries, theft, and murder and trespass to dwelling, respectively. Both Rodolfo Sales and Roberto Aguirre have previously been convicted of robbery in band. We likewise uphold the trial court's finding that the crime was aggravated because it was committed by a band. All the six appellants were armed when they boarded the vessel

and perpetrated their dastardly acts. There is also abuse of superior strength, since most of the victims were women and children ranging from 2 to 9 years old.
LLjur

However, the aggravating circumstances of nocturnity and craft should not have been considered by the lower court. There was no showing that the appellants purposely sought the cover of night when they committed the special complex crime of robbery with homicide. Neither did the appellants employ craft, since they had already boarded the vessel when they pretended to buy Tanduay Rum in exchange for the dried fish and chicken they were carrying. Even without such pretense, they could nonetheless have carried out their unlawful scheme. With respect to the second assignment of error, the appellants' contention that there was no conspiracy in the commission of rape becomes immaterial in view of the fact that all of them directly participated in its commission. Appellants Magbanua, Sales and Rebutido took turns in raping Josie Gonzales, while appellants Aguirre, Mendoza and Aspili ravished Narcisa Batayola. The Court accords more weight and credence to the testimonies of complainants Gonzales and Batayola. These two girls, 13 and 15 years old respectively, would not subject themselves to the rigors of a public trial if they were not motivated by an honest desire to punish their assailants. Moreover, their narrations were corroborated by the testimony of Dr. Juanito Duenas who physically examined Gonzales and Batayola and found that both indeed had just undergone sexual penetration. The interlocking extrajudicial confessions executed by the appellants are admissible even if they were not informed of their right to counsel. These confessions were all taken in January 1970, long before the 1973 Constitution took effect. Article III Section 20 of the 1973 Constitution, for the first time, concretized the present right of persons under custodial investigation to counsel, how to be informed of such right and the effect of noncompliance. The requirements and restrictions surrounding this constitutional guarantee, however, have no retroactive effect and do not apply to confessions taken before January 17, 1973, the date of effectivity of the 1973 Constitution. (See Magtoto v. Manguera, 63 SCRA 4 [1975]) At any rate, even without considering these extrajudicial confessions, the Court is convinced that the guilt of appellants has been incontrovertibly established beyond reasonable doubt by the prosecution. The Court, however, finds that the trial judge erred in imposing upon the appellants two separate penalties of reclusion perpetua, both penalties to be served successively. The basis for this imposition by the lower court is its finding that the appellants are guilty of two crimes of rape with homicide, one for the rape of Josie Gonzales and the other for the rape of Narcisa Batayola. We have already pronounced, though, that the rape committed is merely an aggravating circumstance. Since the appellants are found guilty of the special complex crime of robbery with homicide aggravated by rape, recidivism, in band and abuse of superior strength, then, applying Article 294, paragraph 1 of the Revised Penal Code, only one penalty of reclusion perpetua should have been imposed.
LexLib

In passing, it may be mentioned that the crimes committed by appellants are now denominated as piracy in Philippine waters, punishable under Presidential Decree No. 532. We find it unnecessary to retroactively apply the provisions thereof in favor of the appellants because the acts committed by them are likewise punishable therein by reclusion perpetua.

Considering the perversity accompanying the crime, the heinous nature not only of the offense but its manner of commission, and the refusal of the accused to learn from their earlier convictions, the Court strongly feels that the sentences herein imposed must be fully served. Any official who goes over any applications for pardon or parole is urged to read the records of the case before acting on the applications. WHEREFORE, the appealed decision in Criminal Cases Nos. 3 and 4 is AFFIRMED but MODIFIED. The appellants are found guilty of the special complex crime of robbery with homicide with the aggravating circumstances of rape, recidivism, in band and abuse of superior strength and are hereby sentenced to suffer the penalty of reclusion perpetua. The award of actual damages is hereby affirmed. The awards representing indemnity for the deaths are increased to P50,000.00 for each victim while the moral damages for the rapes are increased to P30,000.00 for each victim. SO ORDERED. Fernan, C.J. and Bidin, J., concur. Feliciano, J., is on leave.