G.R. No.

131636 March 5, 2003

PEOPLE OF THE PHILIPPINES, appellee,
vs.
ARTEMIO INVENCION Y
SORIANO, appellant.
DAVIDE, JR., C.J.:

Before us for automatic review
1
is the
Decision
2
dated 22 September 1997 of the
Regional Trial Court of Tarlac, Tarlac, Branch
65, in Criminal Case No. 9375, finding
accused-appellant Artemio Invencion y
Soriano guilty beyond reasonable doubt of
the crime of rape committed against his 16-
year-old daughter Cynthia P. Invencion, and
sentencing him to suffer the penalty of
death and to pay Cynthia the sum of
P50,000 as moral damages and P25,000 as
exemplary damages, as well as the costs of
suit.

Artemio was charged before the Regional
Trial Court of Tarlac with thirteen counts of
rape in separate complaints docketed as
Criminal Cases Nos. 9363 to 9375, all dated
17 October 1996. The cases were
consolidated and jointly tried. At his
arraignment Artemio entered a plea of not
guilty in each case.

The witnesses presented by the prosecution
in its evidence in chief were Elven
Invencion, Eddie Sicat, Gloria Pagala, Dr.
Rosario Fider, and Atty. Florencio Canlas.
Presented as rebuttal witnesses were Gloria
Pagala and Celestino Navarro.

Elven Invencion, an 8-year-old grade two
pupil of Sapang Tagalog Elementary School
in Tarlac, Tarlac, testified that he is a half-
brother of Cynthia and son of Artemio with
his second common-law wife. Sometime
before the end of the school year in 1996,
while he was sleeping in one room with his
father Artemio, Cynthia, and two other
younger brothers, he was awakened by
Cynthias loud cries. Looking towards her,
he saw his father on top of Cynthia, doing a
pumping motion. After about two minutes,
his father put on his short pants.
3

Elven further declared that Artemio was a
very strict and cruel father and a drunkard.
He angrily prohibited Cynthia from
entertaining any of her suitors. Whenever
he was drunk, he would maul Elven and
quarrel with his stepfather, Celestino
Navarro.
4

Eddie Sicat, a 40-year-old farmer and
neighbor of Artemio in Barangay Sapang
Tagalog, Tarlac, Tarlac, testified that on the
second week of March 1996, between 6:00
and 7:00 a.m., while he was passing by the
house of Artemio on his way to the field to
catch fish, he heard somebody crying. He
then peeped through a small opening in the
destroyed portion of the sawali wall of
Artemios house. He saw Cynthia lying on
her back and crying, while her father was on
top of her, doing a pumping motion. Eddie
observed them for about fifteen seconds,
and then he left and proceeded to the field
to catch fish.
5
He reported what he had
witnessed to Artemios stepfather,
Celestino, later that morning.
6

Gloria Pagala, the mother of Cynthia and
former common-law wife of Artemio,
testified that she and Artemio started living
together in Guimba, Nueva Ecija, in
February 1969. Out of their common-law
relationship, they had six children, one of
whom was Cynthia. In March 1982, she and
Artemio parted ways permanently. Later,
Gloria and her children lived in Pura, Tarlac.
When Artemios mother died sometime in
1996, Cynthia lived with Artemio in a small
one-room dwelling owned by Celestino and
located in Barangay Sapang Tagalog, Tarlac,
Tarlac.
7
On 30 August 1996, her son
Novelito told her that Cynthia was
pregnant. Gloria then went to the house of
Artemio and asked Cynthia about her
condition. The latter confessed that she had
been sexually abused by her father. Gloria
then went to the office of the National
Bureau of Investigation (NBI) in Tarlac and
reported what Artemio had done to their
daughter Cynthia.
8

Dr. Rosario Fider of Tarlac Provincial
Hospital testified that she examined Cynthia
on 16 September 1996. She found Cynthia
to be five to six months pregnant and to
have incomplete, healed hymenal
lacerations at 3, 5, 8 oclock positions,
which could have been caused by sexual
intercourse or any foreign body inserted in
her private part.
9

Atty. Florencio Canlas, an NBI agent,
testified that on 18 September 1996,
Cynthia, accompanied by her mother,
complained before him and NBI Supervising
Agent Rolando Vergara that she was raped
by her father Artemio. She then executed a
written statement,
10
which she subscribed
and sworn to before Atty. Canlas.
11

The defense did not present Artemio as a
witness. Instead, his counsel de parte, Atty.
Isabelo Salamida, took the witness stand
and testified for the defense. He declared
that on 24 June 1997 (the same day when
he testified before the court), between
10:45 and 11:00 a.m., he and his secretary
went to the house of Artemio in Barangay
Sapang Tagalog. The hut was made of
sawali. Its door was padlocked, and its
windows were shut. When he went around
the house and tried to peep through the old
sawali walls on the front and left and right
sides of the hut, he could not see anything
inside the room where Artemio and his
children used to sleep. Although it was then
about noontime, it was dark inside.
12
Atty.
Salamida then concluded that prosecution
witness Eddie Sicat was not telling the truth
when he declared having seen what
Artemio did to Cynthia when he peeped
through a small opening in the sawali wall
of the house in the early morning sometime
on the second week of March 1996.

On rebuttal, Gloria Pagala testified that the
house where Artemio used to live was a
small hut with some destroyed portions in
its sawali walls. When she went there to
visit her children sometime in December
1995, there was a hole in front and at the
sidewall of the hut facing a vacant lot where
people passed by to fish in a nearby
brook.
13
When she went to the place again
sometime in September 1996 after she was
informed of Cynthias pregnancy, she
noticed that the destroyed portions of the
huts sawali walls were not yet repaired.
14

The second rebuttal witness Celestino
Navarro, stepfather of Artemio, testified
that he is the owner of the small house
where Artemio and his children used to
reside. At the time that Artemio and his
children, including Cynthia, were living in
that house, the huts old sawali walls had
some small holes in them, thus confirming
the testimony of Eddie Sicat. After Artemio
was arrested on the basis of Cynthias
complaint before the NBI, Celestino made
some repairs in the hut by, among other
things, placing galvanized iron sheets to
cover the holes at the destroyed portions of
the sawali walls. Thereafter, a person
named Alvin occupied the house.
15

In its Decision of 22 September 1997, the
trial court convicted Artemio in Criminal
Case No. 9375. It, however, acquitted him
in all the other twelve cases for lack of
evidence.

In his Appellants Brief, Artemio contends
that the trial court erred in
I
x x x BELIEVING THE TESTIMONIES OF
THE PROSECUTION WITNESSES;
II
x x xNOT DISMISSING THIS CASE FOR
FAILURE OF THE PROSECUTION TO
PROVE [HIS] GUILT x x x BEYOND
REASONABLE DOUBT.

Artemio attacks the competency and
credibility of Elven as a witness. He argues
that Elven, as his son, should have been
disqualified as a witness against him under
Section 20(c), Rule 130 of the Rules of
Court.
16
Besides, Elvens testimony appears
not to be his but what the prosecution
wanted him to say, as the questions asked
were mostly leading questions. Moreover,
Elven had ill-motive in testifying against
him, as he (Artemio) was cruel to him.

In another attempt to cast doubt on the
credibility of the prosecution witnesses,
Artemio points to the following
inconsistencies in their testimonies: (1) as
to the time of the commission of the crime,
Elven testified having seen Artemio on top
of his sister one night in March 1996, while
Eddie Sicat testified having seen them in the
same position between 6:00 and 7:00 a.m.
in the second week of March 1996; (2) as to
the residence of Cynthia in 1996, Gloria
testified that the former was living with her
in Guimba from November 1995 to
September 1996, while Elven and Eddie
declared that she was in Sapang Tagalog in
March 1996; and (3) as to the residence of
Artemio, Jr., Gloria stated that he was living
with the appellant, but later she declared
that he was living with her in Pura.

Artemio also argues that since his house
had no electricity and was dark even at
daytime, it was impossible for Elven and
Eddie to see him allegedly doing pumping
motion on top of Cynthia. In his Reply Brief,
he likewise urges us to disregard the
testimonies of rebuttal witnesses Celestino
and Gloria. According to him, Celestino had
an ax to grind against him (Artemio)
because he had been badgering Celestino
for his share of the lot where the hut
stands, which was owned by Artemios
deceased mother. On the other hand,
Gloria wanted to get rid of Artemio because
she was already cohabiting with another
man.

In the Appellees Brief, the Office of the
Solicitor General (OSG) prays for the
affirmation of Artemios conviction and
sentence, but recommends that a civil
indemnity in the amount of P75,000 be
awarded in addition to the awards of moral
and exemplary damages.

We find no cogent reason to overturn the
findings of the trial court on the culpability
of Artemio.

It is doctrinally settled that the factual
findings of the trial court, especially on the
credibility of the witnesses, are accorded
great weight and respect and will not be
disturbed on appeal. This is so because the
trial court has the advantage of observing
the witnesses through the different
indicators of truthfulness or falsehood, such
as the angry flush of an insisted assertion,
the sudden pallor of a discovered lie, the
tremulous mutter of a reluctant answer, the
forthright tone of a ready reply, the furtive
glance, the blush of conscious shame, the
hesitation, the yawn, the sigh, the candor or
lack of it, the scant or full realization of the
solemnity of an oath, or the carriage and
mien.
17
This rule, however, admits of
exceptions, as where there exists a fact or
circumstance of weight and influence that
has been ignored or misconstrued by the
court, or where the trial court has acted
arbitrarily in its appreciation of the
facts.
18
We do not find any of these
exceptions in the case at bar.

As to the competency of Elven to testify, we
rule that such is not affected by Section 25,
Rule 130 of the Rules of Court,
19
otherwise
known as the rule on "filial privilege." This
rule is not strictly a rule on disqualification
because a descendant is not incompetent
or disqualified to testify against an
ascendant.
20
The rule refers to a privilege
not to testify, which can be invoked or
waived like other privileges. As correctly
observed by the lower court, Elven was not
compelled to testify against his father; he
chose to waive that filial privilege when he
voluntarily testified against Artemio. Elven
declared that he was testifying as a witness
against his father of his own accord and
only "to tell the truth."
21

Neither can Artemio challenge the
prosecutions act of propounding leading
questions on Elven. Section 10(c) of Rule
132 of the Rules of Court
22
expressly allows
leading questions when the witness is a
child of tender years like Elven.

The alleged ulterior motive of Elven in
testifying against his father also deserves
scant consideration. Such insinuation of ill-
motive is too lame and flimsy. As observed
by the OSG, Elven, who was of tender age,
could not have subjected himself to the
ordeal of a public trial had he not been
compelled by a motive other than to bring
to justice the despoiler of his sisters virtue.
There is no indication that Elven testified
because of anger or any ill-motive against
his father, nor is there any showing that he
was unduly pressured or influenced by his
mother or by anyone to testify against his
father. The rule is that where there is no
evidence that the principal witness for the
prosecution was actuated by improper
motive, the presumption is that he was not
so actuated and his testimony is entitled to
full credence.
23

We find as inconsequential the alleged
variance or difference in the time that the
rape was committed, i.e., during the night
as testified to by Elven, or between 6:00
and 7:00 a.m. per the testimony of Eddie.
The exact time or date of the commission of
rape is not an element of the crime. What is
decisive in a rape charge is that the
commission of the rape by the accused has
been sufficiently proved. Inconsistencies
and discrepancies as to minor matters
irrelevant to the elements of the crime
cannot be considered grounds for
acquittal.
24
In this case, we believe that the
crime of rape was, indeed, committed as
testified to by Elven and Eddie.

The alleged inconsistencies in the
testimonies of both Elven and Gloria do not
impair the credibility of these witnesses.
We agree with the trial court that they are
minor inconsistencies, which do not affect
the credibility of the witnesses. We have
held in a number of cases that
inconsistencies in the testimonies of
witnesses that refer to minor and
insignificant details do not destroy the
witnesses credibility.
25
On the contrary,
they may even be considered badges of
veracity or manifestations of truthfulness
on the material points in the testimonies.
What is important is that the testimonies
agree on essential facts and substantially
corroborate a consistent and coherent
whole.
26

Artemios allegation that it was impossible
for both Elven and Eddie to have seen and
witnessed the crime because the room was
dark even at daytime was convincingly
disputed by rebuttal witnesses Gloria
Pagala and Celestino Navarro. Furthermore,
as observed by the OSG, even if the hut was
without electricity, Elven could not have
been mistaken in his identification of
Artemio because he had known the latter
for a long time. Moreover, Elven was at the
time only two meters away from Cynthia
and Artemio. Even without sufficient
illumination, Elven, who was jostled out of
his sleep by Cynthias loud cry, could
observe the pumping motion made by his
father.
27

The alleged ill-motives on the part of Gloria
and Celestino were not sufficiently proved.
Nothing in the records suggests any reason
that would motivate Gloria to testify falsely
against Artemio, who is the father of her
other children. Moreover, we have
repeatedly held that no mother would
subject her child to the humiliation,
disgrace, and trauma attendant to the
prosecution for rape if she were not
motivated solely by the desire to have the
person responsible for her childs
defilement incarcerated.
28
As for Celestino,
he testified that the lot where the hut
stands is owned by his daughter Erlinda,
and not by Artemios mother.
29
At any rate,
even without Celestinos testimony,
Artemios conviction would stand.

The remaining issue for our resolution is the
correctness of the penalty of death imposed
by the trial court. The death penalty was
imposed because of the trial courts
appreciation of the special qualifying
circumstances that Artemio is the father of
the victim and the latter was less than 18
years old at the time the crime was
committed.

Article 335 of the Revised Penal Code, as
amended by R.A. No. 7659, which is the
governing law in this case, pertinently
reads:

Article 335. When and how rape is
committed.
The crime of rape shall be punished
by reclusion perpetua.
x x x
The death penalty shall also be
imposed if the crime of rape is
committed with any of the following
circumstances:
1. when the victim is under
eighteen (18) years of age
and the offender is a
parent, ascendant, step-
parent, guardian, relative by
consanguinity or affinity
within the third civil degree,
or the common-law spouse
of the parent of the victim.

To justify the imposition of the death
penalty in a rape committed by a father on
a daughter, the minority of the victim and
her relationship with the offender, which
are special qualifying circumstances, must
be alleged in the complaint or information
and proved by the prosecution during the
trial by the quantum of proof required for
conviction. The accusatory portion of the
complaint in Criminal Case No. 9375 reads
as follows:

That on or about the month of March
1996 at Sapang Tagalog, Municipality
of Tarlac, Province of Tarlac,
Philippines, and within the
jurisdiction of this Honorable Court,
the said accused Artemio S. Invencion
did then and there willfully,
unlawfully and feloniously by using
force and intimidation have carnal
knowledge of his daughter Cynthia P.
Invencion who was sixteen (16) years
old, in their house.

CONTRARY TO LAW.
30

Although the relationship of Cynthia with
her father Artemio was alleged in the
complaint and duly established by evidence
during trial, the allegation in the complaint
regarding her age was not clearly proved.

In the very recent case of People v.
Pruna,
31
we set the guidelines in
appreciating age either as an element of the
crime or as a qualifying circumstance:
1. The best evidence to prove the age
of the offended party is an original or
certified true copy of the certificate
of live birth of such party.
2. In the absence of a certificate of
live birth, similar authentic
documents such as baptismal
certificate and school records which
show the date of birth of the victim
would suffice to prove age.
3. If the certificate of live birth or
authentic document is shown to have
been lost or destroyed or otherwise
unavailable, the testimony, if clear
and credible, of the victims mother
or a member of the family either by
affinity or consanguinity who is
qualified to testify on matters
respecting pedigree such as the exact
age or date of birth of the offended
party pursuant to Section 40, Rule
130 of the Rules on Evidence shall be
sufficient under the following
circumstances:
a. If the victim is alleged to be
below 3 years of age and what
is sought to be proved is that
she is less than 7 years old;
b. If the victim is alleged to be
below 7 years of age and what
is sought to be proved is that
she is less than 12 years old;
c. If the victim is alleged to be
below 12 years of age and
what is sought to be proved is
that she is less than 18 years
old.
4. In the absence of a certificate of
live birth, authentic document, or the
testimony of the victims mother or
relatives concerning the victims age,
the complainants testimony will
suffice provided that it is expressly
and clearly admitted by the accused.
5. It is the prosecution that has the
burden of proving the age of the
offended party. The failure of the
accused to object to the testimonial
evidence regarding age shall not be
taken against him.
6. The trial court should always make
a categorical finding as to the age of
the victim.

In the present case, no birth certificate or
any similar authentic document was
presented and offered in evidence to prove
Cynthias age. The statement in the medical
certificate showing Cynthias age is not
proof thereof, since a medical certificate
does not authenticate the date of birth of
the victim. Moreover, pursuant to Pruna,
Glorias testimony regarding Cynthias age
was insufficient, since Cynthia was alleged
to be 16 years old already at the time of the
rape and what is sought to be proved is that
she was then 18 years old. Moreover, the
trial court did not even make a categorical
finding on Cynthias minority. Finally, the
silence of Artemio or his failure to object to
the testimonial evidence regarding
Cynthias age could not be taken against
him.

It must be stressed that the severity of
death penalty, especially its irreversible and
final nature once carried out, makes the
decision-making process in capital offenses
aptly subject to the most exacting rules of
procedure and evidence.
32
Accordingly, in
the absence of sufficient proof of Cynthias
minority, Artemio cannot be convicted of
qualified rape and sentenced to suffer the
death penalty. He should only be convicted
of simple rape and meted the penalty
of reclusion perpetua.

As regards the civil liability of Artemio, the
awards of moral damages in the amount of
P50,000 and exemplary damages in the
amount of P25,000 are insufficient. Civil
indemnity, which is mandatory upon the
finding of the fact of rape,
33
should also be
awarded. In simple rape, the civil indemnity
for the victim shall not be less than
P50,000.

WHEREFORE, the decision of the Regional
Trial Court, Branch 65, Tarlac, Tarlac, in
Criminal Case No. 9375 is hereby AFFIRMED
with the modification that that accused
Artemio Invencion y Soriano is held guilty
beyond reasonable doubt as principal of the
crime of simple rape, and is sentenced to
suffer the penalty of reclusion perpetua and
to pay the victim Cynthia Invencion the
sums of P50,000 as indemnity; P50,000 as
moral damages; and P25,000 as exemplary
damages.
Costs de oficio.
SO ORDERED.





G.R. No. 177861 July 13, 2010
IN RE: PETITION FOR CANCELLATION AND
CORRECTION OF ENTRIES IN THE RECORD
OF BIRTH,
EMMA K. LEE, Petitioner,
vs.
COURT OF APPEALS, RITA K. LEE, LEONCIO
K. LEE, LUCIA K. LEE-ONG, JULIAN K. LEE,
MARTIN K. LEE, ROSA LEE-VANDERLEK,
MELODY LEE-CHIN, HENRY K. LEE,
NATIVIDAD LEE-MIGUEL, VICTORIANO K.
LEE, and THOMAS K. LEE, represented by
RITA K. LEE, as Attorney-in-
Fact, Respondents.

D E C I S I O N
ABAD, J.:
This case is about the grounds for quashing
a subpoena ad testificandum and a parents
right not to testify in a case against his
children.

The Facts and the Case
Spouses Lee Tek Sheng (Lee) and Keh Shiok
Cheng (Keh) entered the Philippines in the
1930s as immigrants from China. They had
11 children, namely, Rita K. Lee, Leoncio K.
Lee, Lucia K. Lee-Ong, Julian K. Lee, Martin
K. Lee, Rosa Lee-Vanderlek, Melody Lee-
Chin, Henry K. Lee, Natividad Lee-Miguel,
Victoriano K. Lee, and Thomas K. Lee
(collectively, the Lee-Keh children).

In 1948, Lee brought from China a young
woman named Tiu Chuan (Tiu), supposedly
to serve as housemaid. The respondent Lee-
Keh children believe that Tiu left the Lee-
Keh household, moved into another
property of Lee nearby, and had a relation
with him.

Shortly after Keh died in 1989, the Lee-Keh
children learned that Tius children with Lee
(collectively, the Lees other children)
claimed that they, too, were children of Lee
and Keh. This prompted the Lee-Keh
children to request the National Bureau of
Investigation (NBI) to investigate the
matter. After conducting such an
investigation, the NBI concluded in its
report:

[I]t is very obvious that the mother of these
8 children is certainly not KEH SHIOK
CHENG, but a much younger woman, most
probably TIU CHUAN. Upon further
evaluation and analysis by these Agents,
LEE TEK SHENG is in a quandary in fixing the
age of KEH SHIOK CHENG possibly to
conform with his grand design of making his
8 children as their own legitimate children,
consequently elevating the status of his
second family and secure their future. The
doctor lamented that this complaint would
not have been necessary had not the father
and his second family kept on insisting that
the 8 children are the legitimate children of
KEH SHIOK CHENG.
1


The NBI found, for example, that in the
hospital records, the eldest of the Lees
other children, Marcelo Lee (who was
recorded as the 12th child of Lee and Keh),
was born of a 17-year-old mother, when
Keh was already 38 years old at the time.
Another of the Lees other children,
Mariano Lee, was born of a 23-year-old
mother, when Keh was then already 40
years old, and so forth. In other words, by
the hospital records of the Lees other
children, Kehs declared age did not
coincide with her actual age when she
supposedly gave birth to such other
children, numbering eight.

On the basis of this report, the respondent
Lee-Keh children filed two separate
petitions, one of them before the Regional
Trial Court (RTC) of Caloocan City
2
in Special
Proceeding C-1674 for the deletion from
the certificate of live birth of the petitioner
Emma Lee, one of Lees other children, the
name Keh and replace the same with the
name Tiu to indicate her true mothers
name.
In April 2005 the Lee-Keh children filed with
the RTC an ex parte request for the issuance
of a subpoena ad testificandum to compel
Tiu, Emma Lees presumed mother, to
testify in the case. The RTC granted the
motion but Tiu moved to quash the
subpoena, claiming that it was oppressive
and violated Section 25, Rule 130 of the
Rules of Court, the rule on parental
privilege, she being Emma Lees
stepmother.
3
On August 5, 2005 the RTC
quashed the subpoena it issued for being
unreasonable and oppressive considering
that Tiu was already very old and that the
obvious object of the subpoena was to
badger her into admitting that she was
Emma Lees mother.

Because the RTC denied the Lee-Keh
childrens motion for reconsideration, they
filed a special civil action of certiorari
before the Court of Appeals (CA) in CA-G.R.
SP 92555. On December 29, 2006 the CA
rendered a decision,
4
setting aside the RTCs
August 5, 2005 Order. The CA ruled that
only a subpoena duces tecum, not a
subpoena ad testificandum, may be
quashed for being oppressive or
unreasonable under Section 4, Rule 21 of
the Rules of Civil Procedure. The CA also
held that Tius advanced age alone does not
render her incapable of testifying. The party
seeking to quash the subpoena for that
reason must prove that she would be
unable to withstand the rigors of trial,
something that petitioner Emma Lee failed
to do.

Since the CA denied Emma Lees motion for
reconsideration by resolution of May 8,
2007,
5
she filed the present petition with
this Court.

The Question Presented
The only question presented in this case is
whether or not the CA erred in ruling that
the trial court may compel Tiu to testify in
the correction of entry case that
respondent Lee-Keh children filed for the
correction of the certificate of birth of
petitioner Emma Lee to show that she is not
Kehs daughter.

The Ruling of the Court
Petitioner Emma Lee claims that the RTC
correctly quashed the subpoena ad
testificandum it issued against Tiu on the
ground that it was unreasonable and
oppressive, given the likelihood that the
latter would be badgered on oral
examination concerning the Lee-Keh
childrens theory that she had illicit relation
with Lee and gave birth to the other Lee
children.

But, as the CA correctly ruled, the grounds
citedunreasonable and oppressiveare
proper for subpoena ad duces tecum or for
the production of documents and things in
the possession of the witness, a command
that has a tendency to infringe on the right
against invasion of privacy. Section 4, Rule
21 of the Rules of Civil Procedure, thus
provides:

SECTION 4. Quashing a subpoena. The
court may quash a subpoena duces tecum
upon motion promptly made and, in any
event, at or before the time specified
therein if it is unreasonable and oppressive,
or the relevancy of the books, documents
or things does not appear, or if the person
in whose behalf the subpoena is issued fails
to advance the reasonable cost of the
production thereof.

Notably, the Court previously decided in the
related case of Lee v. Court of Appeals
6
that
the Lee-Keh children have the right to file
the action for correction of entries in the
certificates of birth of Lees other children,
Emma Lee included. The Court recognized
that the ultimate object of the suit was to
establish the fact that Lees other children
were not children of Keh. Thus:
It is precisely the province of a special
proceeding such as the one outlined under
Rule 108 of the Revised Rules of Court to
establish the status or right of a party, or a
particular fact. The petitions filed by
private respondents for the correction of
entries in the petitioners' records of birth
were intended to establish that for
physical and/or biological reasons it was
impossible for Keh Shiok Cheng to have
conceived and given birth to the
petitioners as shown in their birth records.
Contrary to petitioners' contention that
the petitions before the lower courts were
actually actions to impugn legitimacy, the
prayer therein is not to declare that
petitioners are illegitimate children of Keh
Shiok Cheng, but to establish that the
former are not the latter's children. There
is nothing to impugn as there is no blood
relation at all between Keh Shiok Cheng
and petitioners.
7
(Underscoring supplied)

Taking in mind the ultimate purpose of the
Lee-Keh childrens action, obviously, they
would want Tiu to testify or admit that she
is the mother of Lees other children,
including petitioner Emma Lee. Keh had
died and so could not give testimony that
Lees other children were not hers. The Lee-
Keh children have, therefore, a legitimate
reason for seeking Tius testimony and,
normally, the RTC cannot deprive them of
their right to compel the attendance of such
a material witness.

But petitioner Emma Lee raises two other
objections to requiring Tiu to come to court
and testify: a) considering her advance age,
testifying in court would subject her to
harsh physical and emotional stresses; and
b) it would violate her parental right not to
be compelled to testify against her
stepdaughter.
1. Regarding the physical and
emotional punishment that would be
inflicted on Tiu if she were compelled
at her age and condition to come to
court to testify, petitioner Emma Lee
must establish this claim to the
satisfaction of the trial court. About
five years have passed from the time
the Lee-Keh children sought the
issuance of a subpoena for Tiu to
appear before the trial court. The RTC
would have to update itself and
determine if Tius current physical
condition makes her fit to undergo
the ordeal of coming to court and
being questioned. If she is fit, she
must obey the subpoena issued to
her.

Tiu has no need to worry that the oral
examination might subject her to
badgering by adverse counsel. The
trial courts duty is to protect every
witness against oppressive behavior
of an examiner and this is especially
true where the witness is of
advanced age.
8


2. Tiu claimed before the trial court
the right not to testify against her
stepdaughter, petitioner Emma Lee,
invoking Section 25, Rule 130 of the
Rules of Evidence, which reads:

SECTION 25. Parental and filial privilege.-
No person may be compelled to testify
against his parents, other direct ascendants,
children or other direct descendants.

The above is an adaptation from a similar
provision in Article 315 of the Civil Code
that applies only in criminal cases. But
those who revised the Rules of Civil
Procedure chose to extend the prohibition
to all kinds of actions, whether civil,
criminal, or administrative, filed against
parents and other direct ascendants or
descendants.

But here Tiu, who invokes the filial privilege,
claims that she is the stepmother of
petitioner Emma Lee. The privilege cannot
apply to them because the rule applies only
to "direct" ascendants and descendants, a
family tie connected by a common
ancestry.1avvphi1

A stepdaughter has no common ancestry by
her stepmother. Article 965 thus provides:

Art. 965. The direct line is either descending
or ascending. The former unites the head of
the family with those who descend from
him. The latter binds a person with those
from whom he descends.

Consequently, Tiu can be compelled to
testify against petitioner Emma Lee.

WHEREFORE, the Court DENIES the petition
and AFFIRMS the decision and resolution of
the Court of Appeals in CA-G.R. SP 92555.
SO ORDERED.






G.R. No. 157984 July 8, 2004
MOISES SIMANGAN, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O N

CALLEJO, SR., J.:
Before us is a petition for review of the
Decision
1
of the Court of Appeals in CA-G.R.
CR No. 11971 and its Resolution denying
the petitioners motion for reconsideration
of the said decision.

The Antecedents
The petitioner Moises Simangan and Loreto
Bergado were charged with murder in an
Information filed with the Circuit Criminal
Court in Cagayan, the accusatory portion of
which reads:
That on or about February 10, 1980,
in the municipality of Solana,
province of Cagayan, and within the
jurisdiction of this Honorable Court,
the said accused, Moises Simangan y
Trinidad and Loreto Bergado y Rigor
alias Boy, together with Bening
Gomabong (sic), who is still at large
and not yet apprehended, and two
(2) John Does, who were not
identified, armed with guns and
knives, conspiring together and
helping one another, with intent to
kill; with evident premeditation and
with treachery, did then and there
willfully, unlawfully and feloniously
attack, assault and stab one Ernesto
Flores, inflicting upon him several
wounds on his body which caused his
death.
Contrary to law.
2


The accused, assisted by counsel, were duly
arraigned, and pleaded not guilty to the
charge.

The Case for the Prosecution
At 8:00 p.m. on February 10, 1980, the
petitioner, Loreto Bergado, Bening
Gumabong and two other male persons
arrived at the store of the spouses Ernesto
Flores and Sofronia Saquing in Barangay
Maasin, Solana, Cagayan. The Flores
Spouses, along with fifteen-year-old Lorna
Saquing, Sofronias niece, were then having
dinner. The five men were in fatigue
uniforms and were armed with long
firearms. When they knocked on the door,
Lorna responded and inquired what they
wanted, and she was told that they wanted
to buy cigarettes. Ernesto and Sofronia
entertained the men, two of whom were
their neighbors, Loreto Bergado and Bening
Gumabong.
Momentarily, the petitioner asked Ernesto
to go with them to serve as a guide. In
response, Ernesto invited the men to sleep
at their house, but the latter refused.
Ernesto then agreed to accompany the
visitors. The petitioner warned Ernesto and
Sofronia not to tell anyone that they had
been to the store. As they were leaving,
Romeo Galano, the couples helper at the
store, arrived. Ernesto ordered Romeo to go
with him, and the latter did as he was told.
However, at about 9:00 p.m., Romeo
returned to the store and told Sofronia that
Ernesto had sent him back to get money,
matches and cigarettes. He also told
Sofronia that he and Ernesto were seated as
they conversed with each other. Sofronia
gave P50.00, a box of matches and a ream
of Hope cigarettes. Romeo left the store at
about 9:30 p.m.
3
Ernesto did not return that
evening.
4


The next morning, Romeo Balunggaya
arrived at Sofronias house and told her that
Ernesto was dead, and that his body had
been found about three hundred (300)
meters away. Sofronia and Lorna rushed to
the place, and found Ernestos body near
the creek.
5
Ernesto was lying on the ground,
face down, with his hands tied behind his
back. Police investigators Pagulayan and
Caronan arrived, along with a
photographer. Pictures of the victim were
taken.
6


Dr. Anastacia Taguba, the Municipal Health
Officer, performed an autopsy of the
cadaver and found that the victim sustained
multiple stabwounds. She concluded that
the victim died because of shock due to
massive internal and external hemorrhage
from multiple stab wounds.
7
She also signed
the Certificate of Death of Ernesto.
8


On February 18, 1980, Fernando Saquing
attended his classes in civil engineering at
the St. Louis University in Tuguegarao,
Cagayan. He noticed his seatmate and close
friend, petitioner Moises Simangan, writing
on a piece of paper. He grabbed the paper,
read it, and saw that the petitioner had
written the following: "Andres Buena alias
Ka Ren, Cely Pea alias Ka Laarni, Moises
Simangan alias Ka Ronie Ledesma." The
petitioner warned Fernando not to divulge
his secret to anybody.
9


On February 24, 1980, Fernando and the
petitioner were on their way home from
their ROTC classes at the St. Louis
University. The petitioner then narrated to
Fernando that at about 7:00 p.m. on
February 10, 1980, after buying cigarettes
from a store, the store-owner agreed to go
with him and his four companions. The
petitioner revealed that they brought the
victim over to the place where twenty of his
other comrades were waiting. He also told
Fernando that he and his companions
stabbed the victim over and over again, and
tasted the latters blood so that "they
would not get sick." The petitioner warned
that if Fernando divulged to anyone what
he had just revealed, he (the petitioner),
would drink his blood, too.
10


The petitioner did not know that Fernando
was the first cousin of Sofronia, the widow
of Ernesto Flores, who was, in turn, the
store-owner referred to by
Moises.
11
Fernando immediately told
Sofronia what the petitioner had told him.

On March 21, 24 and 25, 1980, Sofronia,
Fernando and Lorna gave their respective
statements
12
to Sgt. Quirino Espiritu of the
Philippine Constabulary in Tuguegarao,
Cagayan, in which they identified Moises as
one of Ernestos assailants.

The Case for the Defense
The petitioner denied any involvement in
the killing of Ernesto. He testified that on
the day that Ernesto was killed, he was in
his boarding house in Tuguegarao. He was
the classmate of Fernando at the St. Louis
University in Tuguegarao, Cagayan, where
they were enrolled in the civil engineering
course.
13
Sometime in February 1980,
Fernando asked him about Andres Balbuena
who was from Solana, Cagayan. A week
later, he was arrested on suspicions that he
had something to do with the death of
Ernesto.
14
Fernando, who was in the PC
barracks, pointed to him as one of the
assailants of Ernesto. He was surprised at
Fernandos accusation.
15


The petitioner also denied knowing Loreto
Bergado, claiming that he only met the
latter at the provincial jail.
16
He had not
been to Barangay Maasin, Solana.

The accused Loreto Bergado also denied
killing Ernesto. He testified that he did not
know Ernesto and the latters wife,
Sofronia. On February 10, 1980, he was in
his house at Nangalasauan, Amulung,
Cagayan. After waking up the next day, he
went to his farm.
17


To corroborate his testimony, Bergado
presented his neighbor, Feliciano Trinidad,
who testified that after his classes on
February 10, 1980, he went out of their
house at Barangay Nangalasauan, Amulung,
Cagayan, to get a breath of fresh air. He
then saw Bergado and spoke with him until
9:00 p.m.
18


Cornelia Trinidad corroborated the
testimony of the petitioner that she
boarded in the house of Rosendo Tuddao in
February 1980.

The defense also presented Leona
Balunggaya, who testified that between
4:00 and 5:00 a.m. on February 11, 1980,
Sofronia and Leon Rigor arrived at their
house, crying. Sofronia inquired if Ernesto
had passed by, because her husband had
not slept in their house. Balunggaya replied
in the negative. When Balunggaya asked
Sofronia if she recognized the armed men
who were with her husband, Sofronia
replied that she did not because their faces
were new to her.
19
Aside from their house,
there were no other houses in the vicinity
of Sofronias place. Right after Sofronia and
Leon had left, she and her husband Romeo
went to their farm to drive away the birds
and saw the cadaver of Ernesto, about
three hundred (300) meters away.

After trial, the court rendered judgment
finding the accused guilty beyond
reasonable doubt of homicide. The decretal
portion of the decision reads:
WHEREFORE, the accused Moises
Simangan y Trinidad and Loreto
Bergado y Rigor having been found
by the Court guilty beyond
reasonable doubt of the crime of
Homicide defined and penalized
under Art. 249 of the Revised Penal
code, and considering the presence
of two aggravating circumstances, are
hereby sentenced each to an
indeterminate penalty of ten (10)
years and one (1) day of prision
mayor, as minimum, to seventeen
(17) years, four (4) months and one
(1) day of reclusion temporal, as
maximum, to indemnify the heirs of
the victim Ernesto Flores the sum
of P30,000.00, proportionately and to
pay costs pro rata.
SO ORDERED.
20


On appeal to the Court of Appeals, it
rendered judgment, affirming with
modification, the decision of the trial court.
It found the testimonies of Sofronia, Lorna,
and Fernando, credible and entitled to full
probative weight.

The Present Petition
Petitioner Moises Simangan filed the instant
petition for review on certiorari, asserting
that:
I
THE TRIAL COURT ERRED IN
BELIEVING THE PROSECUTION
WITNESSES AND DISREGARDING THE
EVIDENCE FOR THE DEFENSE.
II
THE TRIAL COURT ERRED IN FINDING
THE ACCUSED GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME
OF HOMICIDE.
21


The petitioner contends that the
prosecution failed to adduce circumstantial
evidence sufficient to prove his guilt of the
crime of homicide beyond reasonable
doubt. He asserts that Sofronia and Lorna
pointed to and identified him only upon the
prodding of Fernando, who told Sofronia
that he (the petitioner) had admitted to
stabbing and killing the victim together with
twenty of his other companions. The
petitioner contends that the testimony of
Fernando is hearsay, as he had no personal
knowledge that he was one of those who
killed the victim.

On the other hand, the Court of Appeals
declared in its assailed decision that the
array of circumstantial evidence adduced by
the prosecution constitutes proof beyond
cavil that the petitioner was one of those
who killed the victim. As catalogued by the
appellate court:
(1) at about 8:00 oclock in the
evening of February 10, 1980,
accused Moises Simangan, Loreto
Bergado, Bening Gumabong and two
unidentified companions each of
whom were armed with long rifles,
went to the store of the victim
Ernesto Flores at Sitio Masin (sic),
Iraga, Solana and bought cigarettes;
(2) that Moises Simangan asked
Ernesto Flores to guide Simangan,
Bergado, Gumabong and their two
companions on their way to the road;
(3) that Simangan, Bergado and their
two companions, together with
Ernesto Flores and Romeo Galano,
were out of the house;
(4) that Simangan warned Sofronia
and Lorna not to tell anybody that he
and his companions went to the
house;
(5) that five days after the death of
Ernesto, Simangan became worried
when told by his classmate Fernando
Saquing that several persons were
arrested at Nangalasauan, Amulung,
for the death of Ernesto;
(6) that two weeks after the death of
the victim, Simangan admitted to
Fernando that he and twenty others
had just killed a person in Masin, (sic)
Iraga, Solana, after the victim
accompanied them to show them the
way;
(7) and that Fernando was warned
not to relate it to any other person
with the threat that if it will be
known by others, Simangan will drink
his blood.
22


The Ruling of the Court
We find the contention of the petitioner to
be unmeritorious. Sofronia narrated in
detail how the petitioner and his
companions, armed with long firearms,
managed to convince Ernesto to go with
them and be their guide on the road.
Sofronia pointed to and identified the
petitioner in open court. Thus:
Q On February 10, 1980, at 8:00, do
you recall where you were?
A Yes, Sir.
Q Where were you?
A We were at home, Sir.
Q And you mentioned . . . and who
were your companions at that time?
A My husband, my sister Lorna
Saquing, my daughter, Sir.
Q What is the name of your
daughter?
A Jannet, Sir.
Q How old was she at that time?
A Two (2) years old, Sir.
Q What is the name of your sister?
A Lorna, Sir.
Q And your husband?
A Ernesto Flores, Sir.
Q What were you doing at that time?
A Eating, Sir.
Q Where is your house located?
A Masim (sic), Solana, Cagayan, Sir.
Q Do you recall of anything unusual
that happened on February 10, 1980,
when you were actually eating with
your family, if any?
A On February 10, 1980, while we
were actually taking our supper,
there was a person who went to buy
cigarette in our store and it was my
sister Lorna who went to open the
store and saw five persons holding
gun (sic), Sir.
Q Where is your store located?
A In Masim (sic), Solana, Cagayan, Sir.
Q Is your store also a part of your
house where you live-in (sic)?
A Yes, Sir.
Q When these five persons came to
your house and Lorna Saquing, your
sister, was the one who opened the
door, what happened next?
A When those five persons entered
our store, Lorna came to us in the
kitchen and called for us and the
three of us proceeded to the store
and looked to those five persons, Sir.
Q And what happened next when you
went to see those five persons?
A We saw five persons with long
firearms, Sir.
Q Do you know the names of those
five persons whom you saw?
A I know the three of them only, Sir.
Q What are the names of these three
persons whom you know?
A Moises Simangan, Boy Bergado and
Bening Bungabong (sic), Sir.
Q This Bening Bungabong (sic), if he is
in court, can you point him out?
A No, he is not here in court, Sir.
Q Yes, but this Loreto Bergado, if you
can see him in the courtroom, can
you point him out?
A Yes, Sir.
INTERPRETER:
Witness pointing to that person in
brown t-shirt who identified himself
to be Loreto Bergado y Rigor when he
was pointed to by the witness.
Q How about this person by the
name of Moises Simangan, will you
look around the courtroom and see if
he is here?
A He is there, Sir.
INTERPRETER:
Witness pointing to a person seated
in the courtroom who stood up when
he was pointed to by the witness and
identified himself to be Moises
Simangan y Trinidad.
23


The petitioner even warned Sofronia and
Ernesto not to tell anyone that he and his
companions had been in their house:
Q And when Moises Simangan came
to know that your barangay captain
in Iraga was Mr. Mario Marsan, what
happened next, if any?
A Then Moises Simangan requested
my husband to accompany them to
the road because Moises Simangan is
new in our place, Sir.
Q And what did your husband say, if
any?
A Then my husband told them if it
will be alright for them, they may
sleep in the house, Sir.
Q And what did he say?
A Then Moises Simangan answered
my husband that: "we cannot sleep in
your place because we might be late
tomorrow," Sir.
Q And what happened next?
A And then Moises Simangan told us
not to tell anybody about their going
to our store, Sir.
Q And when Moises Simangan
warned you not to tell anybody about
their presence in your place, what
happened next, if any?
A Then my husband told me that he
would accompany them to the road,
Sir.
Q And when your husband told you
that he would bring them to the road,
what happened next, if any?
A And then Moises Simangan and his
companions took my husband to the
road and not long afterwards, my boy
by the name of Romeo Galano, went
back to the store and told me that my
husband told him to go back to get
money and cigarette and also [a]
match, Sir.
Q And what time did they take away
your husband from your house?
A 8:00 oclock in the evening, Sir.
Q Was it exactly 8:00 oclock or past
8:00?
A Past 8:00, it could be past 8:00
oclock already, Sir.
24


Lorna also testified that when she attended
to the petitioner and his companions, she
saw their faces:
Q Now, while at about that time on
February 10, 1980, do you remember
any unusual incident that happened
in the house of your sister?
A Yes, Sir.
Q What was that incident that
happened?
A On that evening, Sir, while we were
eating I heard a voice calling outside
or I heard someone calling outside
with the word "Diyos Apo" and when
I finished eating, I went inside the
house and asked who was that, and
nobody answered, and so, what I did
was to open the door and I was
surprised there were five armed men
at our door who went inside our
house.
Q You said that these five men who
entered the house were armed, will
you please tell this Honorable Court
what were their arms?
A All the five men who entered our
house were armed with long rifle
each of them (sic).
Q Now, do you know the identity of
these five armed men who entered
the house where you were staying?
ATTY. VELASCO:
The question is vague, Your Honor.

Whether he refers to the present or at that
time of the incident.
COURT:
Reformed. (sic)
FISCAL HERNANDO:
Q At the time of the incident, of these
five armed men who entered the
house of your sister upon your
opening the door, do you know the
identity of these five armed men or
any of them?
A Yes, Sir, I know them.
Q Will you please tell this Honorable
Court who were they?
A Moises Simangan, Boy Bergado,
Bening Gumabong and two others
whom I do not know.
Q You said that at the time you
opened the door and these five men
entered, you already knew three of
them, namely Moises Simangan,
Bening Gumabong and Boy Bergado,
why do you know them?
A I was able to recognize them, Sir,
through their faces.
Q Why were they familiar to you?
A When I opened the door, Sir, and
the five armed men entered our
house, I stared at their faces.
Q Will you please answer my
question, why were you able or why
were you familiar with the faces of
these men when they entered the
house of your sister that evening of
February 10, 1980?
ATTY. SORIANO:
She answered, "I saw their faces."
COURT:
Witness may answer.
A These Boy Bergado and Bening
Gumabong were my barcada in
Maasim, Solana, Cagayan.
FISCAL HERNANDO:
Q What do you mean by saying that
Gumabong and Bergado were
your barcada?
A They were my companions, Sir.
Q For how long were they
your barcada before the incident?
A Three years, Sir.
Q Now, with respect to Moises
Simangan, why do you say that his
face is familiar to you at the time of
the incident?
A I stared at his face because he was
new in our place.
25


It was only when Fernando told his cousin
Sofronia that the petitioner had admitted to
being one of those who inveigled Ernesto
into going with them, and thereafter killed
the victim, that she and Lorna heard the
petitioners name for the first time.
Q Now, do you know, I withdraw that
question, Your Honor. How about
Moises Simangan, did you know him
already before February 10, 1980?
A No, Sir.
Q Why do you know his name then?
A I came to know his name when
Moises Simangan informed
Fernando, my cousin, about those
things that they have done to my
husband, but Fernando did not
mention to him that I am his cousin
and it was Fernando, my cousin, who
informed me about his name, Sir.
26


The testimony of Fernando, that the
petitioner admitted to him that he was one
of the victims killers, is not hearsay. The
testimony of Fernando was offered to prove
the petitioners extrajudicial admission of
his involvement in the killing of Ernesto.
Such admission is an admission against
personal interest, and is admissible against
the petitioner.
27


We note that the petitioner admitted
during trial that he and Fernando were
classmates in a civil engineering subject at
St. Louis University, and in the ROTC
training. The petitioner also admitted that
he and Fernando were friends. Hence, it
was not impossible for the petitioner to
have revealed his involvement in the killing
to Fernando. The petitioner did not hesitate
to inform Fernando that he and his
companions had killed Ernesto because an
informer had told them that Ernesto was
"bad." The testimony of Fernando reads,
viz:
Q What else did he tell you?
ATTY. SORIANO:
May we ask the witness that he be
directed to speak louder.
COURT:
You speak louder.
A There, Sir.
FISCAL HERNANDO:
Q And what was that?
A He informed me that they had just
killed a person in Maasim (sic),
Solana, Cagayan and we threw him
beside a creek. And I asked Moises
Simangan, "How come that that
person is bad," and he answered me,
"We had an informer who is their
neighbor."
FISCAL HERNANDO:
Q Now, you said that there were
some companions of Moises
Simangan because he used the word
"WE," were you able to find out from
him how many persons were those
who perpetrated the crime in
Maasim (sic),Solana, Cagayan, as you
stated recently?
ATTY. SORIANO:
May we request that witness should
stop.
FISCAL HERNANDO:
That is the narration, Your Honor.
ATTY. SORIANO:
May we request that the narration
should be in a question and
answer (sic).
COURT:
Continue.
A What Moises Simangan narrated to
me, Sir, is "We were five persons who
went to the store of that person
and (sic) to buy cigarette. At the time
the persons were waiting in the store
and after we bought the cigarette, we
let the person accompany us on our
way because we do not know the
way and then Moises Simangan
brought the person to the place
where there were twenty persons
waiting who were their companions
and then they stabbed the person
and in stabbing, each person tasted
the blood (sic) that, according to
Moises Simangan, they will not get
sick.
FISCAL HERNANDO:
Q Did you or did you not ask him
what time of the day or night was
that?
A No, Sir. When they visited the
house of the victim to buy cigarette I
was informed by Moises Simangan
that it was 7:30 in the evening.
Q Now, after having revealed to you
all these things, do you remember if
Moises Simangan told you anything
else?
A Yes, Sir.
Q What did he tell you?
A He told me that Nanding, I now
warn you, and you know me, "once
they know these, I am going to drink
your blood."
28


The petitioners alibi and denial of the crime
charged cannot prevail over the positive
and straightforward identification made by
Lorna and Sofronia that he was one of the
armed men who left with Ernesto, coupled
with the petitioners own admission that he
was one of the victims assailants. We note
that there is no evidence, nor any showing
of any ill-motive on the part of Lorna,
Sofronia and Fernando to prevaricate. In
fact, the petitioner and Fernando were
close friends. Thus, the presumption is that
the said witness acted in good faith; hence,
their testimonies must be accorded
credence and full probative weight.

The three witnesses cannot be faulted, and
their credibility denigrated for giving their
statements to Sgt. Espiritu of the Philippine
Constabulary only on March 21 to 25, 1980.
As copiously explained by the Court of
Appeals:
Appellants attempt to cast doubt on
the credibility of [the] positive
identification made by Sofronia and
Lorna that they were among those
five (5) armed persons who took
along the victim Ernesto Flores on the
pretext that appellant Simangan
being new to the place would need
said victim to guide him on the road.
Both Lorna and Sofronia knew
personally appellant Bergado and
Gumabong being Lornas former
friends and Sofronias neighbors. On
the other hand, the delay in revealing
the identities of appellants Bergado
and Simangan had been sufficiently
explained. It must be recalled that
appellant Simangan had made a stern
warning before they left that Sofronia
and Lorna should not tell anybody
about their presence in the place that
night. Those men being then armed
and determined to take along with
them the victim out on the road,
even threatening Sofronia and Lorna
not to divulge the incident to others,
there was strong reason for said
witnesses to keep mum on the
identities of appellants even when
the police investigators arrived the
following morning and asked them
about the names of the five (5)
persons or at least any of them they
had recognized. It is understandable
when a witness does not immediately
report the identity of the offender
after a startling occurrence, more so
when he is related to the victim as
this makes it all the more traumatic.
It is, likewise, understandable for a
witness to fear for his safety
especially when town mates are
involved in the commission of the
crime. Even if the principal witnesses,
Lorna and Sofronia, did not witness
the actual killing of Ernesto Flores,
the circumstances that the latter was
last seen alive together with the
appellants and Gumabong, along with
two (2) other unidentified
companions that night who were
armed with guns, that he was never
to return home that night, and his
dead body discovered in a nearby
field, lying face down on the ground,
both his arms tied at his back with
multiple stab wounds on his neck and
back the combination of these
circumstances leave no doubt on
their minds that those five (5)
persons were responsible for
Ernestos gruesome death and such
conviction was enough to temporarily
silence them from revealing
immediately to the police
investigators the identities of
appellant Bergado and Gumabong,
and subsequently, Simangan.
29


In sum, then, we find and so rule that the
appellate court correctly affirmed the
decision of the trial court convicting the
petitioner of homicide. However, the
appellate court erred in appreciating
against the petitioner the aggravating
circumstances of cruelty and nighttime. In
the first place, such circumstances were not
alleged in the Information as mandated by
Section 8, Rule 110 of the Revised Rules of
Criminal Procedure.
30
Although the
petitioner committed the crime before the
effectivity date of said Rules, the same
should be applied retroactively as it is
favorable to him.
31


Moreover, the crime is not aggravated by
cruelty simply because the victim sustained
ten stab wounds, three of which were fatal.
For cruelty to be considered as an
aggravating circumstance, there must be
proof that, in inflicting several stab wounds
on the victim, the perpetrator intended to
exacerbate the pain and suffering of the
victim.
32
The number of wounds inflicted on
the victim is not proof of cruelty.

Consequently, then, the penalty imposed by
the trial court on the petitioner must be
modified. There being no modifying
circumstances attendant to the crime, the
maximum of the indeterminate penalty
shall be taken from the medium period of
the imposable penalty of homicide which
is reclusion temporal. The minimum of the
indeterminate penalty shall be taken from
the full range of the penalty lower by one
degree for reclusion temporal, which
is prision mayor.

IN LIGHT OF THE FOREGOING, the petition
is PARTIALLY GRANTED. The assailed
decision of the Court of Appeals in CA-G.R.
CR No. 11971 is AFFIRMED with
MODIFICATION. The petitioner is hereby
sentenced an indeterminate penalty of
from Ten (10) Years and One (1) Day
of prision mayor in its maximum period, as
minimum, to Sixteen (16) Years of reclusion
temporal in its medium period, as
maximum.
No costs.
SO ORDERED.





GR. No. 146111 February 23, 2004
PEOPLE OF THE PHILIPPINES, appellee
vs.
ROLENDO GAUDIA @ "LENDOY" or
"DODO", appellant.

D E C I S I O N
PUNO, J.:
There can be no greater violation of a
persons right to feel safe and secure than
the crime of rape. When one commits such
a horrible act on another, he degrades not
only that persons body; more importantly,
he defiles that persons mind. When the
victim is a little child, the act and the
perpetrator himself assume a bestiality
beyond the comprehension of normal
human beings. Yet, the law must apply
equally upon saints and sinners alike, even
to the most salacious ruffian.

Before us is the Decision
1
dated 10 July
2000 of Branch 19 of the Regional Trial
Court of Digos, Davao del Sur, finding
appellant Rolendo Gaudia
2
guilty of the
crime of rape, meting upon him the penalty
of death, and ordering him to pay to private
complainant Remelyn Loyola the amounts
of fifty thousand pesos (P50,000.00) as
moral damages, thirty thousand pesos
(P30,000.00) as exemplary damages, and
costs of suit.

The Information filed against the accused-
appellant reads as follows:
That on or about March 24, 1997 at about
6:30 oclock in the evening, in the
Municipality of Hagonoy, Province of Davao
del Sur, Philippines, and within the
jurisdiction of this Honorable Court, the
above-named accused, by means of force
and intimidation, did, then and there
willfully, unlawfully and feloniously have
carnal knowledge with Remelyn Loyola, a
minor, against her will to her damage and
prejudice.

The prosecution presented Remelyns
mother, Amalia Loyola, as its primary
witness. Amalia testified that on 24 March
1997, she left her two children Remelyn (3
1/2 years old)
3
and Kimberly (1 year old)
4
at
their house in Clib, Hagonoy, Davao del Sur
to gather pigs food at Bulatukan. At the
time, her husband was working in Tulunan,
South Cotabato. At about 4:00 in the
afternoon, Amalia returned home and could
not find Remelyn. She went to fetch water
and proceeded to a neighbor to ask about
the whereabouts of Remelyn. Nobody could
provide her any information. On her way
home, she shouted and called out
Remelyns name. At about 6:00 p.m.,
Amalia heard Remelyn calling out to her,
"Ma, I am here," from a grove of ipil-
ipil trees.
5
Amalia rushed toward the place,
but was met by Remelyn at the mango
trees, some thirty (30) meters from their
house.
6
She found Remelyn crying,
naked, nagbakaang (walking with her legs
spread apart) and with fresh and dried
blood on her body. Ipil-ipil leaves clung to
her forehead. Blood was oozing from her
private organ. Amalia brought Remelyn
home and washed her. Upon closer
inspection, she found a whitish mucus-like
substance coming from Remelyns private
organ.
7

The following day, 2 March 1997, Amalia
brought Remelyn to the house of a certain
Tiya Coring, a quack doctor, for treatment.
Among the people present in the premises
were the relatives and parents of the
appellant.
8
The quack doctor found both
dried blood and fresh blood oozing in
Remelyns vagina, and told Amalia,
"Hoy! Amalia, your daughter was being
(sic) raped."
9
At about 10:00 a.m., Tulon
Mik, a neighbor, came and informed Amalia
that he had seen the appellant pass by her
house and take Remelyn.
10
At this point, the
parents of appellant told Amalia, "Mal, let
us talk about this matter, we will just settle
this, we are willing to pay the amount
of P15,000.00, for the crime that my son
committed."
11
Police officers came and
brought Amalia, Remelyn and two barangay
officials (kagawads) to the police precinct
of Hagonoy for investigation. Amalias
statement was taken.
12

On 25 March 1997, Amalia brought
Remelyn to the Hagonoy Health Center in
Davao del Sur. Dr. Patricio Hernane, the
municipal health officer,
13
conducted a
genital examination of Remelyn, and made
the following findings:

GENITAL EXAMINATION:
Absence of Pubic Hair (Tanner Stage I). No
contusions are noted on the external
genitalia. Dried blood are (sic)noted on the
labia minora. Fresh hymenal lacerations are
noted at 12, 3, 6, 10 oclock (sic) are noted
with fresh vaginal laceration noted at the
posterior commissure but not extending to
the perineum. No lacerations were noted at
the anal opening.

Speculum examination is not done because
even exposure of the labia minora make the
child cry. (sic)

CONCLUSION: Physical virginity lost.
14

The doctor opined that the lacerations
could have been caused by the insertion of
a foreign object, such as the penis of a
man.
15

On 26 March 1997, Amalia executed her
affidavit complaint.
16
Amalia stated therein
that Remelyn had told her "Buang Lendoy
iya kong lugos."
17
(Meaning "crazy lendoy
he forced me" in the Visayan dialect.)
Amalia confirmed in her testimony that two
weeks after the incident, Remelyn told her,
"Ma, Lendoy is crazy, she (sic) brought me
to the ipil-ipil trees."
18

The prosecution also presented Tulon Mik,
Remelyns neighbor and a barangay
kagawad in their area. Mik testified that on
24 March 1997, at about 4:00 p.m., he and
his wife were on their way home after
registering at the COMELEC office. They
were in a hurry as their child was running a
fever. Mik saw appellant carrying a small
girl in his arms.
19
He identified the little girl
as Remelyn Loyola, daughter of Amalia
Loyola. Appellant and Remelyn were on
their way toward the ipil-ipil trees.
20

The next morning, 25 March 1997, at about
7:00 a.m., a neighbor informed Mik that
Remelyn had been raped. He proceeded to
the house of the quack doctor where
Amalia brought Remelyn for examination.
Amalia confirmed to Mik that Remelyn had
been raped. Mik told Amalia that appellant
committed the crime. Mik then informed
Barangay Official Rodrigo Malud
21
and the
other tanods of the incident. They were
instructed to locate the appellant. They
passed to the police the information that
appellant was in Barangay Mahayahay. The
policemen came and took appellant for
investigation.
22

The appellant, ROLENDO GAUDIA,
interposed the defense of alibi. He averred
that on 24 March 1997, at about 4:00 p.m.,
he went to the Barangay Center to register
at the COMELEC for the National Elections.
With him was Totong Loyola, the brother-
in-law of Amalia Loyola. They finished at
5:00 p.m., left and repaired to the house of
Catalina Cabano, appellants aunt, to ask for
vinegar for their kinilaw (a dish composed
of raw fish steeped in vinegar). They found
Daylen Cabano, the small grandchild of
Catalina, alone at her house. Daylen was
crying, hence, they brought her with them
as they proceeded to the place where
Catalina was collecting tuba (fermented
coconut wine). It was appellant who carried
Daylen.
23
They reached Catalinas place
after 5:00 p.m. Thereafter, they went to the
house of appellant. Dodo Malon and
appellants parents were in the house. At
around 9:00 p.m., Totong and Dodo Malon
left, after partaking of the kinilaw.
Appellant stayed home. The following
morning (25 March 1997), appellant and
Dodo Malon went to the river to fish. At
about 12:00 noon, appellant repaired to the
house of his aunt, Victoria Gayod, in
Mahayahay to drink tuba. He was located
by the police and investigated.
24
He claimed
that it was Daylen and not the victim
Remelyn whom he was carrying.

As corroborative witness, appellant
presented Alex "Totong" Loyola. Totong
testified that on 24 March 1997, at about
4:00 p.m., they registered as voters in the
barangay. After registering, they went
home to appellants house, but again left to
get vinegar from his aunt Catalina Cabano,
for their kinilaw. In Catalinas house, they
found her drunk husband, her 10-year old
daughter, and her 3-year old grandchild
Daylen.
25
Catalinas daughter directed them
to the place where she was gathering tuba.
As Daylen was crying, appellant carried her
on their way to Catalina. It was then about
4:00 p.m. After Catalina finished gathering
tuba, the four of them appellant, Totong,
Catalina and Daylen, left together and
repaired to Catalinas house for the vinegar.
Appellant and Totong returned to
appellants house where they spent the
night.
26
Totong woke up at 6:00 a.m. the
following day, and left appellants house.
Totong came to know of appellants arrest
the following day.
27

Catalina Cabano also corroborated
appellants story. She relates that on 24
March 1997, she was gathering tuba, at a
place around 2 kilometers from her house.
She left Maritess, her youngest child and
Daylen, her grandchild, at her house.
28
At
about 5:30 p.m., appellant and Totong
arrived. Appellant was carrying Daylen.
They waited for Catalina to finish
gathering tuba until 6:00 p.m. Appellant
and Totong went to the formers house, had
a drinking spree, and then parted ways at
about 6:30 p.m. That night, according to
Catalina, she talked to Tulon Mik at the
premises near the house. Mik was looking
for Remelyn. At that time, appellant was
already at the house of Catalinas younger
sister, which is located across the river,
about 4 kilometers away.
29

After trial, the trial court found that there
was sufficient circumstantial evidence to
convict appellant for the crime of rape with
the qualifying circumstance that the victim
was below seven years of age. Appellant
was sentenced to death and ordered to
indemnify the victim the sums of fifty
thousand pesos (P50,000.00) as moral
damages, thirty thousand pesos
(P30,000.00) as exemplary damages, and to
pay the costs of suit.

In his Brief
30
to the Court, appellant
assigned the following errors in the
judgment of the trial court:
I.
THE TRIAL COURT ERRED IN CONVICTING
THE ACCUSED-APPELLANT, ROLANDO (sic)
GAUDIA DESPITE THE FACT THAT HIS GUILT
WAS NOT PROVEN BEYOND REASONABLE
DOUBT.
II.
EVEN GRANTING WITHOUT ADMITTING
THAT ACCUSED-APPELLANT IS GUILTY OF
THE CRIME CHARGED, THE TRIAL COURT
STILL ERRED IN IMPOSING THE SUPREME
PENALTY OF DEATH DESPITE THE FAILURE
OF THE PROSECUTION TO STATE WITH
CERTAINTY THE QUALIFYING
CIRCUMSTANCE OF AGE IN THE
INFORMATION.

We convict appellant for simple rape, and
not for qualified rape.

Under Rule 133, Section 4 of the Revised
Rules of Court, conviction may be based on
circumstantial evidence provided three
requisites concur: (a) there is more than
one circumstance; (b) the facts from which
the inferences are derived are proven; and
(c) the combination of all the circumstances
is such as to produce a conviction beyond
reasonable doubt. The ruling case law is
that for circumstantial evidence to be
sufficient to support a conviction, all
circumstances must be consistent with each
other, consistent with the hypothesis that
the accused is guilty, and at the same time
inconsistent with the hypothesis that he is
innocent and with every other rational
hypothesis except that of guilt.
31

The first circumstantial evidence against the
appellant is the testimony of prosecution
witness Tulon Mik that at 4:00 p.m. on 24
March 1997, he saw him carrying Remelyn
toward the direction of the ipil-ipil grove,
some 130 meters from her house.
32
As a
neighbor and relative of Remelyns
stepfather, Mik had sufficient familiarity
with the child Remelyn. The possibility that
he could have been mistaken in identifying
the victim is nil.

The second circumstantial evidence against
the appellant is Amalias testimony that
Remelyn emerged naked from the same
ipil-ipil grove, with ipil-ipil leaves clinging to
her forehead. Remelyn was crying and
walking with her legs spread far apart.
Remelyns private organ was bleeding and
excreting a white mucus-like substance.
33

The third circumstantial evidence against
appellant is Remelyns statement to her
mother that it was appellant who had
brought her to the ipil-ipil grove
34
and
forced her to do something against her
will.
35

There is no question that Remelyn was
violated. After examining Remelyn, Dr.
Patricio Hernane, the Municipal Health
Officer of Hagonoy, found her to have a
broken hymen, as well as fresh vaginal
lacerations.

From these, the culpability of the appellant
can be inferred with moral certainty. All the
aforementioned circumstances have been
indubitably proven, both by the testimonial
and documentary evidence presented by
the prosecution, and by the inability of the
appellant to discredit their veracity.

The attempt of appellant to discredit the
circumstantial evidence against him is futile.
Appellant contends, first, that Tulon Miks
testimony is weak, on the ground that Mik
is a relative of the husband of Amalia.
36
He
also questions the credibility of Mik
because of his failure to confront appellant
when he saw him carrying Remelyn. Neither
did Mik inform Amalia about what he saw
when Amalia was looking for Remelyn.
Appellant insists that it was Daylen whom
he carried and not Remelyn. Second, he
stresses the fact that Remelyn did not make
any categorical statement that he sexually
molested her. Third, he maintains that the
accusation of flight against him is false.
Fourth, he avers that the offer of
compromise by his parents as tendered to
Amalia Loyola should not be taken against
him,
37
while the offer of compromise he
allegedly made to Amalias husband, as
relayed by Amalia in her testimony, should
be excluded as evidence for being
hearsay.
38
Finally, he submits that
inconsistencies in the testimony of Alex
Loyola and Cabano should not be counted
against him on the ground that any finding
of guilt must rest on the strength of the
prosecutions evidence.

We reject appellants arguments.

First, appellants attempt to discredit the
testimony of Mik cannot succeed. It is true
that Mik is a relative by affinity of Amalia
Loyola. It is hoary jurisprudence, however,
that mere relationship to one of the parties,
without a showing of any other improper
motive, is not sufficient basis to impair the
credibility of the witness.
39
In the case at
bar, appellant cannot impute any ill motive
for Mik to testify adversely against him.
Appellant questions the failure of Mik to
challenge him why he was carrying
Remelyn. Also, he assails Mik for failing to
inform Amalia Loyola of such a sight. Mik
had an explanation for the inadvertence. He
said his own child was down with a fever,
and he and his wife were hurrying
home.
40
For this same reason, he revealed
the fact that he saw appellant carrying
Remelyn toward the ipil-ipil grove only
when he learned of Remelyns fate. But
thereafter, he lost no time in reporting the
matter to the barangay chairman.
41
As a
barangay kagawad, he also assisted in the
pursuit and arrest of appellant at Barangay
Mahayahay.
42
These subsequent actions
strengthen Miks credibility.

The trial court accorded more credence to
Miks narration of the events over the
testimonies of Cabano and Loyola. It is a
cornerstone of our jurisprudence that the
trial judge's evaluation of the testimony of a
witness and its factual findings are accorded
not only the highest respect, but also
finality, unless some weighty circumstance
has been ignored or misunderstood which
could alter the result of the judgment
rendered. In the case at bar, there is no
irregularity in the assessment of evidence
by the lower court. It granted utmost
credibility to Miks testimony. Given the
direct opportunity to observe the witness
on the stand, the trial judge was in a
vantage position to assess his demeanor
and determine if he was telling the truth or
not.
43
The trial court found Miks testimony
more worthy of credence over those of
Catalina and Loyola. We have no reason to
reverse its findings.

Next, appellant tried to capitalize on the
fact that Remelyn never made any
statement that he sexually molested her.
This is a specious argument. Remelyn had
told her mother, "Crazy Lendoy forced
me."
44
Remelyn was 3 1/2 years old at the
time. At such an infantile age, she could not
be expected to have a comprehension of
the concept of rape. Studies show that
children, particularly very young children,
make the "perfect victims". They naturally
follow the authority of adults as the
socialization process teaches children that
adults are to be respected. The childs age
and developmental level will govern how
much she comprehends about the abuse
and therefore how much it affects her. If
the child is too young to understand what
has happened to her, the effects will be
minimized because she has no
comprehension of the consequences.
Certainly, children have more problems in
providing accounts of events because they
do not understand everything they
experience. They do not have enough life
experiences from which to draw upon in
making sense of what they see, hear, taste,
smell and feel. Moreover, they have a
limited vocabulary.
45
The fact that Remelyn
called appellant "Buang" or crazy shows
that he did something which she knew was
not right or proper. By saying "iya kong
lugos," Remelyn clearly conveyed that he
forced her to do something bad. With her
limited comprehension, the child could not
have a perfect way of relating that she had
been sexually abused. Finally, it must also
be considered that there is no actual
counterpart for the word "rape" in Visayan
parlance.

Appellants charge that the trial court erred
when it ruled that he fled arrest, even if
correct, is not pivotal to his guilt. There are
enough pieces of circumstantial evidence to
convict him. Neither will it affect the
penalty or the award of damages rendered
against him.
Similarly, appellants charge that the offers
of compromise allegedly made by the
parents of the appellant to Amalia, and by
the appellant himself to Amalias husband
should not have been taken against him by
the trial court, even if sustained, will not
exculpate him. To be sure, the offer of
compromise allegedly made by appellant to
Amalia Loyolas husband is hearsay
evidence, and of no probative value. It was
only Amalia who testified as to the alleged
offer,
46
and she was not a party to the
conversation which allegedly transpired at
the Hagonoy Municipal Jail. A witness can
only testify on facts which are based on his
personal knowledge or perception.
47
The
offer of compromise allegedly made by the
appellants parents to Amalia may have
been the subject of testimony
48
of Amalia.
However, following the principle of res inter
alios acta alteri nocere non debet,
49
the
actions of his parents cannot prejudice the
appellant, since he was not a party to the
said conversation, nor was it shown that he
was privy to the offer of compromise made
by them to the mother of the victim. They
cannot be considered as evidence against
appellant but we reiterate that these errors
are not enough to reverse the conviction of
the appellant.

Appellants defense hardly impresses. It is
interesting to note that appellant and his
witnesses claim that it was at around 5:00
p.m. when appellant carried the child
Daylen toward her grandmother Catalina at
the place where she was
gathering tuba. Mik testified that it was
around 4:00 p.m. when he saw appellant
carrying Remelyn toward theipil-ipil grove.
Given the 130-meter distance between
the ipil-ipil grove and the houses of
appellant and of Amalia Loyola, appellant
could have easily taken Remelyn from her
house, raped her at the ipil-ipil grove, and
left her there, all in a matter of a few
minutes. Sometime past 4:00 p.m., he could
then have returned to his house, and
together with Alex Loyola, proceeded to the
COMELEC office to register, and did all the
subsequent acts he claims to have done.

The Court also notes the inconsistencies in
the testimonies of Catalina and Loyola. The
discrepancies in the witnesses narration as
to the time of arrival of appellant at the
place where Catalina was gathering tuba,
his time of arrival at his own house, and the
time when Loyola and appellant actually
parted ways, are not mere trivial details
which could be forgotten by witnesses
because of the passage of time. To make
matters worse, the appellants testimony
was, at times, contradicted by his own
witnesses. Particularly telling was the
conflict between appellants statement that
Totong had already left his house on the
night of 24 March 1997 and Totong and
Catalinas own averments that Totong had
stayed the night at appellants house. These
contradictory testimonies only made more
incredulous appellants tale.

We now review the penalty of death
imposed upon appellant. In the case at bar,
the Information states that appellant, "by
means of force and intimidationwillfully,
unlawfully and feloniously (had) carnal
knowledge with Remelyn Loyola,
a minor, against her will to her damage and
prejudice."
50
(emphasis ours) The
Information did not allege that Remelyn
was below seven years old when she was
violated. Appellant was therefore charged
with simple rape, under Section 335 of the
Revised Penal Code, as amended by
Republic Act No. 7659 (the Death Penalty
Law). Upon its passage, R.A. No. 7659
introduced seven new attendant
circumstances, which when present, will
transform the crime to qualified rape,
punishable by death. We again stress that
these new attendant circumstances must
be properly pleaded in the information to
justify the imposition of the death penalty.
The facts stated in the body of the
information determine the crime for which
the accused stands charged and for which
he must be tried.
51
The main purpose of
requiring all the elements of a crime to be
set out in the information is to enable the
accused to suitably prepare his defense. It
would be a denial of the right of the
accused to be informed of the charges
against him and, consequently, a denial of
due process, if he is charged with simple
rape and be convicted of its qualified form
punishable with death, although the
attendant circumstance qualifying the
offense and resulting in capital punishment
was not alleged in the indictment on which
he was arraigned.
52

We now review the damages awarded by
the trial court. Time and again, we have
ruled that when there is a finding that rape
had been committed, the award of civil
indemnity ex delicto is mandatory.
53
If the
death penalty has been imposed, the
indemnity should be P75,000.00; otherwise
the victim is entitled to P50,000.00 for each
count of rape.
54
Thus, the appellant is
ordered to pay the amount of P50,000.00 as
civil indemnity to Remelyn Loyola.
55

We affirm the award of moral damages.
This is automatically awarded in rape cases
without need of further proof other than
the commission of the crime, as it is
assumed that a rape victim has suffered
moral injuries entitling her to such an
award.
56

We also find the award of exemplary
damages made by the lower court in favor
of complainant as proper because
complainant has been correctly granted
moral damages and the offense against her
was committed with the aggravating
circumstance
57
of age. However, the
amount awarded must be reduced
to P25,000.00 in line with prevailing
jurisprudence.
58

WHEREFORE, the judgment of conviction of
the Regional Trial Court, Branch 19, of
Digos, Davao del Sur in Criminal Case No.
213(97) is hereby MODIFIED. Appellant is
found guilty of the crime of simple rape,
and is sentenced to suffer the penalty of
reclusion perpetua. He is ordered to pay to
complainant Remelyn Loyola the amounts
of P50,000.00 as civil indemnity ex
delicto, P50,000.00 as moral damages,
and P25,000.00 as exemplary damages.
Costs against the appellant.

SO ORDERED.







G.R. No. 144621 May 9, 2003

PEOPLE OF THE PHILIPPINES, appellee,
vs.
ISAGANI GUITTAP y PENGSON (Acquitted),
WILFREDO MORELOS y CRUZ (Acquitted),
CESAR OSABEL @ DANILO MURILLO @
DANNY @ SONNY VISAYA @ BENJIE
CANETE, ARIEL DADOR y DE CHAVEZ
(Discharge), DECENA MASINAG VDA. DE
RAMOS, LUISITO GUILLING @ LUISITO
(Acquitted), and JOHN DOE @
PURCINO, accused.

DECENA MASINAG VDA. DE
RAMOS, appellant.

YNARES-SANTIAGO, J.:

Appellant Decena Masinag Vda. de Ramos
assails the decision
1
of the Regional Trial
Court of Lucena City, Branch 60, in Criminal
Case No. 92-387, finding her and accused
Cesar Osabel guilty beyond reasonable
doubt of the crime of Robbery with
Homicide and sentencing each of them to
suffer the penalty of reclusion perpetua,
with all the accessory penalties provided by
law, and to indemnify the heirs of the
victims the amounts of P100,000.00 as civil
indemnity and P67,800.00 as actual
damages.

On September 1, 1992, an Amended
Information for Robbery with Double
Homicide was filed against appellant
Masinag, Isagani Guittap y Pengson,
Wilfredo Morelos y Cruz, Cesar
Osabel,
2
Ariel Dador y De Chavez, Luisito
Guilling and John Doe @ "Purcino". The
accusatory portion of the information
reads:

That on or about the 17th day of July 1992,
in the City of Lucena, Province of Quezon,
Philippines, and within the jurisdiction of
this Honorable Court, the said accused,
conspiring and confederating with one
another, armed with bladed weapons, by
means of violence, and with intent to gain,
did then and there willfully, unlawfully and
feloniously take, steal and carry away
certain personal items, to wit:
one
(1)
solid gold ring valued at
P8,000.00
one
(1)
diamond ring valued at
P40,000.00
one
(1)
necklace with pendant
valued at P2,000.00
cash money in the
amount of P4,500.00
one
(1)
samsonite bag valued at
P650.00
one
(1)
.22 Cal. Squibbman with
SN 64130 valued at
P5,000.00
one
(1)
pair of sandal valued at
P650.00
one
(1)
music mate (karaoke)
valued at P5,000.00
one
(1)
jacket (adidas) valued at
P1,000.00; and
one
(1)
pair of shoes valued at
P1,000.00
with a total value of P67,800.00, owned by
and belonging to spouses Romualdo Jael
and Lionela
3
Caringal, without the consent
and against the will of the latter, to the
damage and prejudice of the
aforementioned offended parties in the
aforestated sum of P67,800.00, Philippine
Currency, and, on the same occasion of
such robbery, the said accused, conspiring
and confederating with one another, armed
with the same bladed weapons, taking
advantage of superior strength, and
employing means to weaken the defense or
of means or persons to insure or afford
impunity, and with intent to kill, did then
and there willfully, unlawfully and
feloniously stab both of said spouses
Romualdo Jael and Lionela Caringal thereby
inflicting upon the latter several fatal
wounds which directly caused the death of
the aforenamed spouses.
Contrary to law.
4

Upon arraignment, appellant Masinag
pleaded "not guilty." Trial on the merits
thereafter ensued. Accused Ariel Dador was
discharged as a state witness while accused
Purcino remained at large.

On February 15, 2000, the trial court
rendered its decision, the dispositive
portion of which states:

WHEREFORE, premises considered, this
court finds Cesar Osabel and Decena
Masinag GUILTY beyond reasonable doubt
of the crime of robbery with homicide and
they are sentenced to RECLUSION
PERPETUAwith all the accessory penalties
provided by law. For insufficiency of
evidence, the accused Isagani Guittap,
Wilfrido Morelos and Luisito Guilling are
hereby ACQUITTED.

The accused Cesar Osabel and Decena
Masinag are also ordered to indemnify the
heirs of the deceased Romualdo Jael and
Leonila Caringal Jael in the amount of
(P100,000.00) One Hundred Thousand
Pesos plus actual damages of (P67,800.00)
Sixty Thousand and Eight Hundred Pesos,
Philippine Currency.
SO ORDERED.
5

During the trial, state witness Ariel Dador
testified that in the evening of July 15,
1992, Cesar Osabel asked him and a certain
Purcino to go with him to see appellant
Masinag at her house in Isabang, Lucena
City. When they got there, Osabel and
Masinag entered a room while Dador and
Purcino waited outside the house. On their
way home, Osabel explained to Dador and
Purcino that he and Masinag planned to rob
the spouses Romualdo and Leonila Jael. He
further told them that according to
Masinag, the spouses were old and rich,
and they were easy to rob because only
their daughter lived with them in their
house.

The following day, at 7:00 p.m., Dador,
Osabel, and Purcino went to the house of
the Jael spouses to execute the plan. Osabel
and Purcino went inside while Dador stayed
outside and positioned himself
approximately 30 meters away from the
house. Moments later, he heard a woman
shouting for help from inside the house.
After two hours, Osabel and Purcino came
out, carrying with them one karaoke
machine and one rifle. Osabel's hands were
bloodied. He explained that he had to tie
both the victims' hands with the power cord
of a television set before he repeatedly
stabbed them, He killed the spouses so they
can not report the robbery to the
authorities.

Osabel ordered Dador to hire a tricycle
while he and Purcino waited inside the
garage of a bus line. However, when Dador
returned with the tricycle, the two were no
longer there. He proceeded to the house of
Osabel and found him there with Purcino.
They were counting the money they got
from the victims. They gave him P300.00.
Later, when Dador accompanied the two to
Sta. Cruz, Manila to dispose of the karaoke
machine, he received another P500.00.
Osabel had the rifle repaired in Gulang-
Gulang, Lucena City.

Dador and Osabel were subsequently
arrested for the killing of a certain Cesar M.
Sante. During the investigation, Dador
executed an extrajudicial confession
admitting complicity in the robbery and
killing of the Jael spouses and implicating
appellant and Osabel in said crime. The
confession was given with the assistance of
Atty. Rey Oliver Alejandrino, a former
Regional Director of the Human Rights
Commission Office. Thereafter, Osabel
likewise executed an extrajudicial
confession of his and appellant's
involvement in the robbery and killing of
the Jaels, also with the assistance of Atty.
Alejandrino.

Simeon Tabor, a neighbor of the Jaels,
testified that at 8:00 in the morning of July
17, 1992, he noticed that the victims, who
were known to be early risers, had not
come out of their house. He started calling
them but there was no response. He
instructed his son to fetch the victims' son,
SPO1 Lamberto Jael. When the latter
arrived, they all went inside the house and
found bloodstains on the floor leading to
the bathroom. Tabor opened the bathroom
door and found the lifeless bodies of the
victims.

Dr. Vicente F. Martinez performed the post-
mortem examination on the bodies of the
victims and testified that since rigor mortis
had set in at the back of the neck of the
victims, Romualdo Jael died between six to
eight hours before the examination while
Leonila Jael died before midnight of July 16,
1992. The cause of death of the victims was
massive shock secondary to massive
hemorrhage and multiple stab wounds.

Appellant Masinag, for her part, denied
involvement in the robbery and homicide.
She testified that she knew the victims
because their houses were about a
kilometer apart. She and Osabel were
friends because he courted her, but they
never had a romantic relationship. She
further claimed that the last time she saw
Osabel was six months prior to the incident.
She did not know Dador and Guilling at the
time of the incident. According to her, it is
not true that she harbored resentment
against the victims because they berated
her son for stealing their daughter's
handbag. On the whole, she denied any
participation in a conspiracy to rob and kill
the victims.

From the decision convicting appellant
Masinag and Osabel, only the former
appealed, based on the lone assigned error:
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR IN FINDING ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF
CONSPIRING WITH HER CO-ACCUSED TO
COMMIT THE CRIME OF ROBBERY WITH
HOMICIDE DESPITE THE ABSENCE OF HER
ACTUAL PARTICIPATION IN THE
COMMISSION OF THE SAID CRIME.

The appeal is meritorious.

While it is our policy to accord proper
deference to the factual findings of the trial
court,
6
owing to their unique opportunity to
observe the witnesses firsthand and note
their demeanor, conduct, and attitude
under grueling examination,
7
where there
exist facts or circumstances of weight and
influence which have been ignored or
misconstrued, or where the trial court acted
arbitrarily in its appreciation of facts,
8
we
may disregard its findings.

Appellant contends that the extrajudicial
confessions of Osabel and Dador were
insufficient to establish with moral certainty
her participation in the conspiracy. Firstly,
Dador was not present to hear appellant
instigate the group to rob the Jael spouses.
He only came to know about the plan when
Osabel told him on their way home. Thus,
Dador had no personal knowledge of how
the plan to rob was actually made and of
appellant's participation thereof. Secondly,
while Osabel initially implicated her in his
extrajudicial confession as one of the
conspirators, he repudiated this later in
open court when he testified that he was
forced to execute his statements by means
of violence.

On direct examination, Dador narrated
what transpired in the house of appellant
on July 15, 1992, to wit:
PROSECUTOR GARCIA:
Q. And do you remember the subject or
subjects of that conversation that
transpired among you?
A. Yes, sir.
Q. Please tell us what was the
subject or subjects of the
conversation that transpired among
you on July 15, 1992 at the house of
Decena Masinag?
A. The subject of our
conversation there was the robbing
of Sps. Jael, sir.
Q. How did that conversation
begin with respect to the proposed
robbery of Sps. Jael?
A. It was only the two (2) who
planned that supposed robbery,
Daniel Murillo and Decena Masinag,
sir.
Q. And why were you able to say
that it was Danilo Murillo and Decena
Masinag who planned the robbery?
A. Because they were the only
ones who were inside the house and
far from us and they were inside the
room, sir.
xxx xxx xxx
Q. On that night, July 15, 1992
did you ever have any occasion to
talk with Decena Masinag together
with your companions Danilo
Murillo and Purcino?
A. No, sir.
Q. Was there any occasion on
the same date that Decena Masinag
talk to you?
ATTY. FLORES:
Already answered, your Honor.
COURT:
Witness, may answer.
WITNESS:
None, sir. (emphasis ours)
9

We find that the foregoing testimony of
Dador was not based on his own personal
knowledge but from what Osabel told him.
He admitted that he was never near
appellant and that he did not talk to her
about the plan when they were at her
house on July 15, 1992. Thus, his
statements are hearsay and does not prove
appellant's participation in the conspiracy.

Under Rule 130, Section 36 of the Rules of
Court, a witness can testify only to those
facts which he knows of his own personal
knowledge, i.e., which are derived from his
own perception; otherwise, such testimony
would be hearsay. Hearsay evidence is
defined as "evidence not of what the
witness knows himself but of what he has
heard from others."
10
The hearsay rule bars
the testimony of a witness who merely
recites what someone else has told him,
whether orally or in writing.
11
In Sanvicente
v. People,"
12
we held that when evidence is
based on what was supposedly told the
witness, the same is without any
evidentiary weight for being patently
hearsay. Familiar and fundamental is the
rule that hearsay testimony is inadmissible
as evidence.
13

Osabel's extrajudicial confession is likewise
inadmissible against appellant. The res inter
allos acta rule provides that the rights of a
party cannot be prejudiced by an act,
declaration, or omission of
another.
14
Consequently, an extrajudicial
confession is binding only upon the
confessant and is not admissible against his
co-accused. The reason for the rule is that,
on a principle of good faith and mutual
convenience, a man's own acts are binding
upon himself, and are evidence against him.
So are his conduct and declarations. Yet it
would not only be rightly inconvenient, but
also manifestly unjust, that a man should be
bound by the acts of mere unauthorized
strangers; and if a party ought not to be
bound by the acts of strangers, neither
ought their acts or conduct be used as
evidence against him.
15

The rule on admissions made by a
conspirator, while an exception to the
foregoing, does not apply in this case. In
order for such admission to be admissible
against a co-accused, Section 30, Rule 130
of the Rules of Court requires that there
must be independent evidence aside from
the extrajudicial confession to prove
conspiracy. In the case at bar, apart from
Osabel's extrajudicial confession, no other
evidence of appellant's alleged participation
in the conspiracy was presented by the
prosecution. There being no independent
evidence to prove it, her culpability was not
sufficiently established.

Unavailing also is rule that an extrajudicial
confession may be admissible when it is
used as a corroborative evidence of other
facts that tend to establish the guilt of his
co-accused. The implication of this rule is
that there must be a finding of other
circumstantial evidence which, when taken
together with the confession, establishes
the guilt of a co-accused beyond reasonable
doubt.
16
As earlier stated, there is no other
prosecution evidence, direct or
circumstantial, which the extrajudicial
confession may corroborate.
In People v. Berroya,
17
we held that to hold
an accused liable as co-principal by reason
of conspiracy, he must be shown to have
performed an overt act in pursuance or
furtherance of the conspiracy. That overt
act may consist of active participation in the
actual commission of the crime itself, or it
may consist of moral assistance to his co-
conspirators by being present at the time of
the commission of the crime, or by exerting
moral ascendancy over the other co-
conspirators by moving them to execute or
implement the conspiracy.

In the case at bar, no overt act was
established to prove that appellant shared
with and concurred in the criminal design of
Osabel, Dador and Purcino. Assuming that
she had knowledge of the conspiracy or she
acquiesced in or agreed to it, still, absent
any active participation in the commission
of the crime in furtherance of the
conspiracy, mere knowledge, acquiescence
in or agreement to cooperate is not
sufficient to constitute one as a party to a
conspiracy.
18
Conspiracy transcends mere
companionship.
19

Conspiracy must be proved as convincingly
as the criminal act itself. Like any element
of the offense charged, conspiracy must be
established by proof beyond reasonable
doubt.
20
Direct proof of a previous
agreement need not be established, for
conspiracy may be deduced from the acts of
appellant pointing to a joint purpose,
concerted action and community of
interest. Nevertheless, except in the case of
the mastermind of a crime, it must also be
shown that appellant performed an overt
act in furtherance of the conspiracy.
21

All told, the prosecution failed to establish
the guilt of appellant with moral certainty.
Its evidence falls short of the quantum of
proof required for conviction. Accordingly,
the constitutional presumption of
appellant's innocence must be upheld and
she must be acquitted.
WHEREFORE, in view of the foregoing, the
appealed decision of the Regional Trial
Court of Lucena City, Branch 60 in Criminal
Case No. 92-487, insofar only as it finds
appellant guilty beyond reasonable doubt
of the crime of Robbery with Homicide, is
REVERSED and SET ASIDE. Appellant Decena
Masinag Vda. De Ramos is ACQUITTED of
the crime of Robbery with Homicide. She is
ORDERED RELEASED unless there are other
lawful causes for her continued detention.
The Director of Prisons is DIRECTED to
inform this Court, within five (5) days from
notice, of the date and time when appellant
is released pursuant to this Decision.

SO ORDERED.


G.R. No. 121982 September 10, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
LEONILO CUI y BALADJAY, BEVERLY CUI y
CANTUBA, EDUARDO BASINGAN y
SABELLO, WILFREDO
GARCIA, alias "TOTO", JOSELITO
GARCIA, alias "TATA GARCIA", EMMANUEL
GARCIA, alias "MAWI", a certain SADAM,
BEINVENIDO NACARIO y
PARDILLO, alias "REY NACARIO", a certain
EDGAR, a certain BENJIE, LUIS
OBESO, alias "LEOS", HILARIA
SARTE, alias "LARING", and YUL ALVAREZ,
accused, LEONILO CUI y BALADJAY,
BEVERLY CUI y CANTUBA, LUIS
OBESO, alias "LEOS", and HILARIA
SARTE, alias "LARING", accused-appellants.

PUNO, J.:
In the evening of December 5, 1990, some
ten (10) armed robbers raided the
compound of Johnny and Rose Lim on
Edison Street, Lahug, Cebu City. The Lims,
their three (3) children, and the employees
of the family-owned business, William's
Educational Supply, were able to see the
faces of the leader Wilfredo alias "Toto"
Garcia and two of his men, Mawe Garcia
and a certain Edgar. The other robbers
could not be identified as they had flour
sacks over their heads.
The robbers carted away cash and jewelries
worth twenty thousand pesos (P20,000.00).
They also blindfolded and forcibly abducted
seventeen (17) year old Stephanie, the
youngest daughter of the Lims. They
demanded a ransom of one million pesos
(P1,000,000.00) for her release.
Johnny Lim turned over to Toto Garcia the
ransom amount in the afternoon of the
next day at an arranged meeting place.
Stephanie, in turn, was released to her
father.
Initially, the Lims kept the crime a secret.
But on the third day, they reported the
kidnapping to the Philippine National Police
Cebu Metropolitan District Command (Cebu
Metrodiscom) at Camp Sotero, Cabahug,
Cebu City. The Metrodiscom Intelligence
Security Team (MIST)
1
conducted an
investigation and Johnny Lim was shown
photographs of criminal elements to
identify the suspects. From around ninety
(90) photographs, Lim picked that of Toto
Garcia.
The identification of Toto Garcia gave MIST
a valuable lead. Toto Garcia was known as
the leader of a group of armed robbers
called the Baong Gang. The gang's base of
operation was pinpointed at Quiot, Pardo,
Cebu. When the police learned from Lim
that his house guard, Eduardo Basingan,
hailed from Quiot, Pardo, Cebu City, they
decided to interrogate him.1wphi1.nt
Basingan's interrogation broke the case
wide open. He identified Toto Garcia, Mawe
Garcia and Edgar as the three (3) who did
not wear masks, Sadam and Rey as the two
(2) who held him and the Lims at gunpoint,
and Tata Garcia, Yul Alvarez, a certain
Benjie, a certain Leos and a certain Laring as
the look-outs who stayed outside the Lim
compound. He named Toto Garcia as the
chief plotter of the crime at bar, and
revealed that his neighbor and close family
friends, the spouses Leonilo and Beverly
Cui, participated in the plan. Basingan said
he was asked to join the plot and was
assured that he would not be under
suspicion because he would be placed at
gun point together with the other members
of the Lim household when the crime is
committed. However, he refused to join the
plot during the December 2, 1990 meeting
of the group at the residence of the Cuis in
Quiot, Pardo, Cebu City. Leonilo Cui even
invoked their close ties as godfathers of
each other's children but he was unmoved.
At the meeting were Toto Garcia, Mawi
Garcia, Edgar, Rey, Sadam and the Cuis.
On December 18, 1990, Basingan executed
a sworn statement
2
reiterating these
revelations in writing. Johnny and Rose Lim
then formalized their complaint by
executing a Joint Affidavit.
3
The members
of the Metrodiscom Intelligence Security
Team also executed a Joint
Affidavit
4
relating their investigation. With
these as bases, Assistant Prosecutor
Bienvenido N. Mabanto, Jr. filed an
information
5
for Kidnapping with Ransom
against Basingan, the Cuis, and the
members of the group of Toto Garcia as
identified by Basingan in his sworn
statement.
On the same day, December 18, 1990,
Basingan and Leonilo Cui were
arrested.
6
Beverly Cui was also taken into
custody on January 17, 1991.
7
The Cuis,
however, were later granted bail and their
plea for preliminary investigation was given
due course.
8

On March 14, 1991, Joselito "Tata" Garcia,
Hilaria Sarte and her live-in partner, Luis
Obeso, referred to by Basingan as "Laring"
and "Leos", respectively, were arrested in
the neighboring Negros Island. The next
day, however, Tata Garcia died due to
"hemorrhage, severe, secondary to gunshot
wounds"
9
. Upon presentation of his death
certificate, the trial court ordered his name
deleted from the information.
On March 22, 1991, Obeso and Sarte filed
their own motions for preliminary
investigation.
10
Their motions were granted
in an Order dated April 2, 1991.
11

On April 1, 1991, Basingan executed a
second sworn statement
12
reiterating his
first. In addition he detailed the role of the
Cuis in the planning of the crime at bar.
After preliminary investigation, Prosecutor
Manuel J. Adlawan found that the
participation of the Cuis was only that of
accomplices. Thus, on May 13, 1991, an
Amended Information was filed
downgrading the charge against the Cuis as
mere accomplices in the kidnapping with
ransom of Stephanie Lim. It reads:

That on or about the 5th day of December,
1990, at about 9:00 P.M. more or less and
for sometime subsequent thereto, in the
City of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, the said
accuse, all private individuals, conniving and
confederating together, and mutually
helping with one another, armed with
unlicensed firearms, with deliberate intent,
with intent of gain, enter the dwelling
house of spouses Johnny and Rose Lim and
while inside therein with violence and
intimidation, take and carry away cash and
jewelries in the amount of P20,000.00 from
the possession of and belonging to spouses
Johnny and Rose Lim and that on the
occasion thereof, and in connection
therewith and for the purpose of extorting
ransom from said spouses Johnny and Rose
Lim, herein accused, in pursuance of their
superior strength did then and there kidnap
and detain Stephanie Lim 17 years old [sic]
daughter of spouses Johnny and Rose Lim
and while Stephanie Lim was under
detention in the place other than the
latter's dwelling place, the said accused
demanded the amount of P1,000,000.00 for
the release of Stephanie Lim to which
demands and for fear of the latter's life
spouses Johnny and Rose Lim delivered and
caused to be delivered the amount of
P1,000,000.00 to said accused; and accused

(1) Leonilo Cui y Baladjay and
(2) Beverly Cui y Cantuba
who are hereby charged for the same
offense as accomplices cooperate in its
execution by previous acts and
subsequently profiting in the effects of the
crime by receiving the amount of
P10,000.00 from the principal accused as
their share of the loot, to the damage and
prejudice of Johnny, Rose and Stephanie
Lim in the total amount of P1,020,000.00.
CONTRARY TO LAW.
13

On May 15, 1991, Basingan, the Cuis, Obeso
and Sarte were arraigned and they all
pleaded not guilty.
14
On June 27, 1991,
Basinga escaped from the prison.
15

Trial on the merit ensued against the Cuis,
Obeso and Sarte. Basingan was tried
in absentia.
On February 13, 1992, Beinvenido
Nacario, alias "Rey Nacario", was arrested.
On arraignment on April 13, 1992, he
pleaded not guilty. However, on May 5,
1991, he, too, escaped from detention and
remains at large to this date.
On August 18, 1992, the prosecuting fiscal
manifested before the trial court that, per
newspaper report, Toto Garcia had been
killed in Davao.
On December 6, 1993, the trial court
convicted the Cuis, Obeso, Sarte, Basingan
and Nacario.
16
It held:

In the light of the totality of the evidence
adduced in the case at bar and the law and
aforementioned jurisprudence, the Court is
convinced that a conspiracy was hatched by
all the accused in perpetrating the crime
charged. For instance, as borne out by the
testimony of Sgt. Narciso Ouano, Jr., police
investigator of the Cebu Metrodicim [sic],
accused Eduardo Basingan declared during
his investigation that the plan was indeed
carried out and he knew all the persons
who participated in that robbery, naming
Toto Garcia, Tata Garcia, Mawi Garcia, Rey,
Edgar, Sadam, Yul Alvarez, Benjie, Leo and
Laring. When the named robbers entered
the residence of his master Johnny Lim, the
robbers were wearing masks except Toto
Garcia, Mawi Garcia and Edgar. The others,
Rey, Sadam, Laring, Leo, Benjie and Yul
Alvarez were wearing masks but Basingan
was still able to identify them in spite of the
fact that they were wearing masks because
these persons were familiar to him already
as they used to frequent the house of
Leonilo and Beverly Cui. At the time of the
robbery, only Toto Garcia, Mawi Garcia and
Edgar, Rey and Sadam went inside the
house of his master while Yul Alvarez,
Benjie, Leos and Laring were guarding
outside the building. On December 7, 1990,
two days after the robbery, he was called
by his Comadre Beverly Cui and the latter
handed to him the amount of P40,000.00 in
her house, saying that Toto Garcia left the
said amount to be given to him. During the
talk, Basingan verbally told them about the
incident relative to the kidnapping and his
having received P40,000.00 from Toto
Garcia as his share of the ransom. A Formal
investigation was conducted by Sgt.
Armando Ballon in the presence of Atty.
Elias Espinosa who assisted Eduardo
Basingan.

. . . The denial of accused Luis Obeso and
Hilaria Sarte as to their participation in the
commission of the crime does not hold
water for they were duly identified even
during the initial phase of the commission
of the crime. They were the renters of the
house where Stephanie, the kidnapped
victim, was placed. Stephanie had identified
the house. The flight of these two accused
to Bacong, Dumaguete City is indicative of
their guilt. . . .

The prosecution has indeed established the
guilt of the accused beyond reasonable
doubt as against accused Eduardo Basingan,
Bienvenido Nacario y Pardillo, @ "Rey
Nacario," Luis Obeso, @ "Leos", Hilaria
Sarte, @ "Laring", Leonilo Cui y Baladjay
and Beverly Cui y Cantuba, the latter two
are only as accomplices, to the crime of
kidnapping with
ransom. . . .
17


They were sentenced to suffer the following
penalties:

WHEREFORE, in view of all the foregoing
considerations, JUDGMENT is hereby
rendered convicting the accused Eduardo
Basingan, Bienvenido Nacario y Pardillo @
"Rey Nacario," Luis Obeso, @ "Leos", Hilaria
Sarte, @ "Laring", as principals for the crime
of KIDNAPPING WITH RANSOM and shall
suffer the penalty of reclusion perpetua and
the accused Leonilo Cui and Beverly Cui
being accomplices, to suffer an
imprisonment of eight (8) years and one (1)
day ofprision mayor, as minimum, to
fourteen (14) years, eight (8) months and
one (1) day of reclusion temporal, as
maximum. They are further ordered to
jointly restitute to the victim the ransom
money less the amount recovered. Accused
Hilaria Sarte and Luis Obeso, being
detention prisoners are credited in full
during the whole period of their detention
provided that they signify in writing that
they will abide with the rules and
regulations of the penitentiary.
xxx xxx xxx
SO ORDERED.
8

Obeso and Sarte filed their Notice of
Appeal
19
on May 19, 1994. The Cuis filed
theirs
20
on May 31, 1994.

In their Brief dated April 21, 1997, Obeso
and Sarte prayed for their acquittal on the
following grounds:
I
THE TRIAL COURT GRAVELY ERRED IN
CONVICTING THE ACCUSED-APPELLANTS
ON THE BASIS OF THE EXTRA-JUDICIAL
STATEMENT MADE BY EDUARDO BASINGAN
AND THE TESTIMONY OF SGT. NARCISO
OUANO JR. THEREON, WHICH ARE HEARSAY
EVIDENCE.
II
THE TRIAL COURT ERRED IN FINDING THE
TWO ACCUSED-APPELLANTS AS PRINCIPALS
BY CONSPIRACY DESPITE THE ABSENCE OF
ANY COMPETENT AND CONVINCING PROOF
OF THEIR CULPABILITY
21

On June 25, 1997, the Cuis also filed their
Brief. They contended:
I. THE TRIAL COURT ERRED IN NOT FINDING
THAT THE CONSTITUTIONAL RIGHTS OF
APPELLANTS-SPOUSES LEONILO CUI AND
BEVERLY CUI TO REMAIN SILENT, TO
COUNSEL AND AGAINST SELF-
INCRIMINATION HAD BEEN GROSSLY
VIOLATED DURING THEIR CUSTODIAL
INVESTIGATION.
II. THE TRIAL COURT ERRED IN NOT
EXCLUDING HEARSAY EVIDENCE OFFERED
TO PROVE ALLEGED CONSPIRACY AND
PARTICIPATION OF APPELLANTS-SPOUSES
LEONILO CUI AND BEVERLY CUI, AS
ACCOMPLICES IN THE CRIME CHARGED.
22

On August 13, 1998, the Office of the
Solicitor General filed, in lieu of an
Appellee's Brief, a
Manifestation
23
recommending the
acquittal of the Cuis, Obeso and Sarte on
the ground that the prosecution failed to
present adequate proof of their guilt
beyond reasonable doubt. It was
postulated:

It is clear that the only piece of evidence
that would link appellants directly to the
kidnapping of Stephanie Lim is the Sworn
Statement executed by Eduardo Basingan
(Exhibit "C") implicating appellants and
describing their participation in detail.
Basingan's extra-judicial confession,
however, is inadmissible for being hearsay
as he was not presented by the prosecution
as its witness, he having escaped after
arraignment. Hence, appellants were not
afforded the opportunity to cross-examine
him. Cross-examination is an indispensable
instrument of criminal justice to give
substance and meaning to the
constitutional right of the accused to
confront the witnesses against him and to
show that the presumption of innocence
has remained steadfast and firm . . . . It was
intended to prevent the conviction of the
accused upon depositions or ex-
parte affidavits, and particularly to preserve
the right of the accused to test the
recollection of the witness in the exercise of
his right of cross-examination . . . .

Perhaps realizing the futility of relying solely
on Basingan's extra-judicial (sic) confession
in order to secure appellants' conviction,
the prosecution presented Sgt. [O]uano
who testified on the informal investigation
he conducted on Basingan. Part of his
testimony was the same extra-judicial
confession made by Basingan which was
strongly objected to by appellants. It cannot
be overemphasized that Sgt. [O]uano's
testimony is not based on his own personal
knowledge but on other evidence. He has
no personal knowledge of the participation
of the appellants in the kidnapping of the
victim. Hence, his testimony is purely
hearsay evidence and has no probative
value, whether objected to or not . . . .
24

There is no question that Basingan escaped
and never testified in court to affirm his
accusation against the Cuis, Obeso and
Sarte. Thus, the trial court committed
reversible error in admitting and giving
weight to the sworn statements of
Basingan. In the same vein, the testimony
of Sgt. Ouano confirming the content of
Basingan's sworn statements is not proof of
its truth and by itself cannot justify the
conviction of appellants. Both the
extrajudicial sworn statement of Basingan
and the testimony of Sgt. Ouano are clear
hearsay. Indeed, the records show that the
trial court itself admitted Basingan's
statements merely as part of the
investigation of Sgt. Ouano, thus:
Q: What else did Mr. Basingan tell you?
A That it was the group of Toto Garcia who
barged into the residence of Mr. Lim and
that it was that group of Toto Garcia who
kidnapped the daughter of Mr. Lim and also
it was that group that gave him P40,000.00
out of the ransom money.
COURT:
xxx xxx xxx
Q Were you able to determine who
composed that group?
A According to Basingan the group was
composed of Wilfredo Garcia as he leader,
Joselito Tata Garcia, Mawi Garcia, Edgar, a
certain Rey, a certain Leon and a certain
Laring.
ATTY. GONZALEZ:
We move to strike out the answer of this
witness. It is hearsey [sic]. The answer['s]
premise [is] according to.
FISCAL ADLAWAN:
That independence are relevant question
which took action [sic].
COURT:
Overruled.
xxx xxx xxx
FISCAL ADLAWAN:
Q Was there any inquiries [sic] made by you
on Eduardo Basingan how did he happen to
know this group of Toto Garcia?
ATTY. GONZALEZ:
We object. I understand there are two
investigations. He conducted his own
investigation.
ATTY. GONZALEZ: (Con't)
Which investigation is he referring to.
COURT:
As preliminary investigation.
ATTY. GONZALEZ:
Before the formal investigation he
conducted his own investigation?
COURT:
Answer. A Yes, I did inquire from him and
that he told me Toto Garcia is frequently in
the house of Leonilo and Beverly Cui and
that he was introduced by the couple to
Toto Garcia in one of those visits of Toto
Garcia in the house and that subsequently
thereafter he knew of the persons of [sic]
Toto Garcia is associationg [sic] with
because Toto Garcia went to the house of
Leonilo Cui.
ATTY. GONZALEZ:
May we move to strike out from the records
for being that he has no personal
knowledge as to that information.
COURT:
Objection overruled.
ATTY. GONZALEZ:
In that case, your Honor may we make it of
record that I am interposing a continuing
objection as to the series of questioning
considering that we strongly believe [sic]
that what was given by this witness is
hearsay.
COURT:
The objection is noted. The witness is only
testifying regarding his investigation.
25


Despite its ruling, the trial court used the
statements of Basingan, as testified to by
Sgt. Ouano, as proofs of the guilt of the
Cuis, Obeso and Sarte. Undeniably, they are
hearsay for any oral or documentary
evidence is hearsay by nature if its
probative value is not based on the
personal knowledge of the witnesses but on
the knowledge of some other person who
was never presented on the witness
stand.
26


Conviction cannot be based on hearsay
evidence. In the 1996 case of People
v. Raquel,
27
we squarely addressed the
issue of whether or not the extra-judicial
statements of an escaped accused
implicating his co-accused may be utilized
against the latter. There we ordered an
acquittal and held:

A thorough review of the records of this
case readily revealed that the identification
of herein appellants as the culprits was
based chiefly on the extrajudicial statement
of accused Amado Ponce pointing to them
as his co-perpetrators of the crime. As
earlier stated, the said accused escaped
from jail before he could testify in court and
he has been at large since then.

The extra-judicial statements of an accused
implicating a co-accused may not be utilized
against the latter, unless these are repeated
in open court. If the accused never had the
opportunity to cross-examine his co-
accused on the extra-judicial statements, it
is elementary that the same are hearsay as
against said accused. That is exactly the
situation, and the disadvantaged plight of
appellants, in the case at bar.

Extreme caution should be exercised by the
courts in dealing with the confession of an
accused which implicates his co-accused. A
distinction, obviously, should be made
between extra-judicial and judicial
confessions. The former deprives the other
accused of the opportunity to cross-
examine the confessant, while in the latter
his confession is thrown wide open for
cross-examination and rebuttal.

The res inter alios rule ordains that the
rights of a party cannot be prejudiced by an
act, declaration, or omission of another. An
extra-judicial confession is binding only
upon the confessant and is not admissible
against his co-accused. The reason for the
rule is that, on a principle of good faith and
mutual convenience, a man's own acts are
binding upon himself, and are evidence
against him. So are his conduct and
declarations. Yet it would not only be rightly
inconvenient, but also manifestly unjust,
that a man should be bound by the acts of
mere unauthorized strangers; and if a party
ought not to be bound by the acts of
strangers, neither ought their acts or
conduct be used as evidence against him.
28


The res inter alios has exceptions. Thus,
Section 30 of Rule 130 provides:

The act or declaration of a conspirator
relating to the conspiracy and during its
existence, may be given in evidence against
the co-conspirator after the conspiracy is
shown by evidence other than such act or
declaration.

For this provision to apply, the following
requisites must be satisfied:

a. That the conspiracy be first proved by
evidence other than the admission itself;
b. that the admission relates to the
common objects; and
c. that it has been made while the declarant
was engaged in carrying out the
conspiracy.
29


The general rule is that extra-
judicial declarations of a co-conspirator
made before the formation of the
conspiracy or after the accomplishment of
its object are inadmissible in evidence as
against the other co-conspirators, on the
ground that the accused in a criminal case
has the constitutional right to be
confronted with the witnesses against him
and to cross-examine them.
30

In the case at bar, the alleged conspiracy
among the accused was not priorly
established by independent evidence. Nor
was it was shown that the extra-judicial
statements of Basingan were made while
they were engaged in carrying out the
conspiracy. In truth, the statements were
made after the conspiracy has ended and
after the consummation of the crime. They
were not acts or declarations made during
the conspiracy's existence. Since the extra-
judicial admissions were made after the
supposed conspiracy, they are binding only
upon the confessant and are not admissible
against his co-accused; as against the latter,
the confession is hearsay.
31
In fine, the
extra-judicial statements of Basingan
cannot be used against the Cuis, Obese and
Sarte without doing violence against their
constitutional right to confront Basingan
and to cross-examine him.
32

Be that as it may, we hold that on the basis
of other evidence on record, the Cuis are
guilty beyond reasonable doubt of being
accessories, not accomplices as held by the
trial court, in the kidnapping of Stephanie
Lim.

Art. 8 of the Revised Penal Code, as
amended, penalizes as accomplices those
persons who cooperate in the execution of
the offense by previous or simultaneous
acts not indispensable to the
consummation of the offense. Accomplices
cooperate in the execution of the crime by
previous or simultaneous acts, by means of
which they aid, facilitate or protect the
execution of the crime, without, however,
taking any direct part in such execution, or
forcing or inducing others to execute it, or
contributing to its accomplishment by any
indispensable act.
33
Had Basingan been
able to testify on his affidavit detailing the
role of the Cuis in the planning of the
robbery of the Lim household, the trial
court would have had sufficient basis to
convict them as accomplices therein. As
discussed above, however, Basingan
escaped before taking the witness stand.
This Court, however, holds that the Cuis
profited from the kidnapping of Stephanie
Lim and are liable as accessories.

Art. 19 of the Revised Penal Code, as
amended, penalizes as accessories to the
crime those who, subsequent to its
commission, take part therein by profiting
themselves or assisting the offenders to
profit by the effects of the crime, without
having participated therein, either as
principals or accomplices. Conviction of an
accused as an accessory requires the
following elements: (1) that he has
knowledge of the commission of the crime;
and (2) that he took part in it subsequent to
its commission by any of the three modes
enumerated in Article 19 of the Revised
Penal Code, as amended.
34
These twin
elements are present in the case of the
Cuis, and indubitable proof thereof is extant
in the records of the case.

The members of the Metrodiscom
Intelligence Security Team (MIST), namely,
Lt. John P. Campos, Lt. Michael Ray B.
Aquino, Sgt. Narciso L. Ouano, Jr., Sgt.
Felipe Honoridez, Sgt. Armando Ballon, Sgt.
Oscar Dadula, Cpl. Jeremias Canares, and
Sgt. Catalino Ybanez, executed a Joint
Affidavit dated December 18, 1990 stating,
among other things, that "the couple
Leonilo and Beverly Cui, although denying
knowledge of the kidnapping revealed that
Toto Garcia is their Compadre" and that
"they also turned over to us the amount of
P10,000.00 representing that given to them
by Toto Garcia out of the ransom
money".
35

This statement charging the Cuis with
having partaken of the ransom money was
not denied either in the Counter-Affidavit of
Leonilo Cui dated February 15, 1991 or in
the Counter-Affidavit of Beverly Cui of the
same date. In his Counter-Affidavit, Leonilo
Cui even admitted that he knew that Toto
Garcia and Basingan had held secret
meetings in his house and that he had
already become suspicious of their acts, but
he did not confront them because they
treated each other as special friends, they
being godfather of each other's children.

In their defense, the Cuis submitted an
Affidavit dated February 15, 1991 executed
by Myrna M. Limbagan, a niece of Beverly
Cui who lived with them in their house in
Pardo, Cebu City. But instead of exonerating
the Cuis, this Affidavit inculpates them as it
states in paragraph 10 that "on December
7, 1990, Toto Garcia, Eduardo Basingan and
other persons visited the residence of the
Spouse[s] Cui[s] and handed some amounts
of money to the couple".
36
Significantly, it
is Limbagan, a witness for the defense, who
corroborates the incriminating statements
made by the members of the Metrodiscom
Intelligence Security Team in their Joint
Affidavit.1wphi1.nt

Realizing the aggravation caused them by
the affidavits of Limbagan and the members
of the Metrodiscom Intelligence Security
Team, the Cuis jointly executed a
Supplement Counter-Affidavit
37
dated April
24, 1991 this time denying that they
profited in any way from the kidnapping of
Stephanie Lim. They explained that they
turned over the sum of P10,000.00 to Lt.
Michael Ray Aquino not as their share in the
ransom money but as a "bribe" to prevent
the members of the Metrodiscom
Intelligence Security Team from further
inflicting physical harm on the person of
Leonilo Cui. In her testimony in open court,
Beverly Cui claimed that she and her
husband were arrested on December 14,
1990 at their residence in Pardo, Cebu City
but that she was later released by the
members of the Metrodiscom Intelligence
Security Team so that she could withdraw
money from the bank to them in exchange
for her husband's freedom.

Two of the members of the Metrodiscom
Intelligence Security Team, Sgt. Narciso
Ouano and Sgt. Catalino Ybanez, testified
rebutting the claim of Beverly Cui. Sgt.
Ouano testified as follows:
FISCAL ADLAWAN:
xxx xxx xxx
Q How about this P10,000.00 which
according to you was recovered from the
accused Cui couple?
xxx xxx xxx
Q How did you come into possession which
according to you came from the Cui couple?
A The P10,000.00 was turned over to us by
Beverly Cui.
Q Did Beverly Cui say anything when this
P10,000.00 was handed to you?
A She told us that the P10,000.00
represents the money given to her and her
husband by Toto Garcia.
Q And did you inquire from Beverly Cui why
did Toto Garcia gave [sic] them P10,000.00?
A They told us that Toto Garcia gave it to
them sometime on December 7 and that
was the share from the loot in the
kidnapping.
COURT:
Q Was it given to them?
A The couple told us it was given by Toto
Garcia as their share of the ransom money
as a result of the kidnapping of Stephanie
Lim.
xxx xxx xxx
FISCAL ADLAWAN:
Q Was Beverly Cui already under arrest
when she gave you this information?
A No, Sir. It was her husband who was held
then. She was free.
38


For his part, Sgt. Catalino B. Ybanez testified
in the following manner.
COURT: Are you familiar with the
P10,000.00?
A Yes, sir.
COURT: You mean the money given?
A The money was turned over by Beverly
Cui to Lt. Aquino, sir.
COURT: In your presence?
A Yes, sir.
COURT: What did she tell Lt. Aquino?
A She told Lt. Aquino that the money was
for the ransom money which was given to
him by Toto Garcia.
COURT: Now, what was the remark of Lt.
Aquino?
A He accepted the money, sir. He
accepted the money and he told the couple
if he could execute an affidavit regarding
their participation in the involvement of the
kidnapping.
COURT: What was the answer?
A Actually, the couple denied the
involvement, sir, but he was given the
money.
COURT: What was the answer of Beverly Cui
to Lt. Aquino when it was mentioned that
the P10,000.00 was a part of the stolen
money? The answer of Beverly Cui to Lt.
Aquino, what else did Beverly Cui say, did
he tell Lt. Aquino?
A The money was given to her.
Q Was he made to execute an affidavit?
A Actually he denied the involvement.
COURT: But as you said, now, why did Lt.
Aquino ask Beverly Cui to execute an
affidavit that the P10,000.00 was a part of
the ransom money?
A Lt. Aquino told the couple go execute
an affidavit.
COURT: What was the answer of Beverly
Cui?
A They denied the[ir] involvement.
xxx xxx xxx
COURT: What is the remark of Beverly Cui?
A According to Beverly Cui and Leonilo B.
Cui, that they were not involved in the
kidnapping, sir.
xxx xxx xxx
FISCAL ADLAWAN:
xxx xxx xxx
Q Now, Beverly Cui and Leonilo Cui
testified in court that Beverly Cui was
released on the same evening that she was
arrested by your team, what do you say to
this?
COURT: Was she released?
A She was released, your Honor.
COURT: Beverly Cui?
A On assurance that she will help in
looking [for] the group of Toto Garcia, your
Honor.
Q What was the result, or was she able
to locate the group?
A She pointed to us to the house of the
wife of Toto Garcia, but during the raid,
unfortunately, Toto Garcia was not in their
house.
Q Who guided you to the house of Toto
Garcia?
A Beverly Cui, sir.
Q Where is this house located?
A Basak, sir.
Q Was this the same house where those
articles were raided and confiscated or
recovered including the firearm owned by
the complaining witness Johnny Lim already
marked as Exhbit "A", a .22 caliber for the
prosecution, is this the house?
A Yes, sir.
Q Had it not been for Beverly Cui, you
would not be able to locate the house of
Toto Garcia?
A No, sir.
Q Now, did Beverly Cui show to you any
bank book?
A Yes, sir.
Q How many bank books were shown?
A At first about 5 bank books, sir.
xxx xxx xxx
COURT: You stated that this P10,000.00
received by Cui was a part of the ransom
money lifted only from the admission of the
Cuis or the Cuis plus other parties?
A By the Cuis, sir.
COURT: No proof that the Cuis are
beneficiaries of Lt. Aquino?
A Only the couple, your Honor.
COURT: In other words, you learned the
P10,000.00 only when the money was
returned by Beverly Cui?
A During the confrontation the couple
admitted that they have that other
passbook, the P10,000.00, sir.
COURT: I'm referring of (sic) the admission
that the P10,000.00 was a part of the
ransom money?
A Yes, sir.
COURT: When did you learn that it was a
ransom-money? At the time the money was
returned or before the return?
A At the time when there was a
confrontation, sir.
COURT: What do you mean by
confrontation?
A When we confronted the accused, sir.
COURT: The Cuis?
A Yes, and she admitted she has with her
in the bank, the P10,000.00.
xxx xxx xxx
COURT: You mean an interrogation not a
confrontation by you?
A Not by me, but by the investigator, sir.
COURT: Who was doing the interrogation?
A Ouano, sir.
COURT: You mean Ouano interrogating the
Cuis? Then you were listening?
A Yes, sir.
COURT: You heard the Cuis that they were
given money by Toto Garcia and the money
is in the bank.
A Yes, sir.
39


Significantly, it is again the Cuis themselves,
in their Motion for Reconsideration dated
December 2, 1993, who corroborated Sgt.
Ybanez's claim that Beverly Cui was
temporarily released for the particular
purpose of accompanying the police to the
hideout of Toto Garcia and his men. Thus, in
par. 5 of their Motion for Reconsideration,
they allege that ". . . Beverly Cui was
temporarily released from custody in order
for her to lead the police to the hideouts of
the other suspects of the crime".
40

As accessories to the consummated crime
of kidnapping for ransom, the penalty
imposable upon Leonilo and Beverly Cui is
two degrees lower than that prescribed by
law.
41
Under Article 267 of the Revised
Penal Code, as amended, the penalty shall
be death where the kidnapping was
committed for the purpose of extorting
ransom. However, when the crime was
perpetrated in December 1990, the death
penalty has been suspended by the 1987
Constitution and commuted to reclusion
perpetua. Since no modifying circumstance
is appreciated for or against the Cuis, the
imposable penalty should be in the medium
period of the indeterminate sentence
applicable under Republic Act No. 4103, as
amended.
42

Finally, while we affirm the conviction of
the Cui spouses, we acquit Obeso and Sarte.

The only evidence linking Obeso and Sarte
to the kidnapping of Stephanie Lim is
Basingan's sworn statements that a certain
Leos and a certain Laring were among the
lookouts who stood as guards outside the
house of the Lims while Toto Garcia and his
group were inside. Basingan's sworn
statements are hearsay, hence,
inadmissible in evidence against his co-
accused because he escaped before he
could take the witness stand.

Except for Basingan who could not even
give the real names of Obeso and Sarte and
just referred to them as Leos and Laring,
respectively, no one really knew them. And
significantly, no prosecution witness
identified them, not even Stephanie Lim.
She never saw any of them during the
robbery or in the house where she was
detained. Her testimony runs, viz.:

DIRECT EX. BY FISCAL ADLAWAN
xxx xxx xxx
Q What else took place?
A The blindfolded me and handcuffed me
and brought me out, sir.
Q What do you mean when you said you
brought out, out of your residence?
A That is correct, sir. They brought me to
another place.
Q By what means?
A Our Fiera, sir.
Q You owned the vehicle?
A Yes, sir.
Q While you were brought to (sic)
outside, were you able to recognize one of
them?
A No, sir, because I was blindfolded.
Q Was there an instance when your
blindfold was taken off?
A When I was placed in a room.
xxx xxx xxx
Q And how long did you stay in that
house where you were brought by those
persons known as Toto Garcia and others?
A From dawn until afternoon.
xxx xxx xxx
COURT: What happened when you were
brought back to your house?
A Few days after I was asked to identify
the house and the room where I stayed.
Q You were brought to that place [a] few
days after?
A Yes, sir.
Q Who were with you when you were
brought to that place?
A Members of the Metro Discom, sir.
Q When you were brought to the place
again [a] few days after you were released,
did you come to know who occupied that
room?
ATTY. GONZALES: Hearsay, your Honor, she
has no personal knowledge, whatever
information given to her that's not of her
own, your Honor.
COURT: Let us find out, if she knows.
A Laring, sir.
xxx xxx xxx
COURT: Cross?
CROSS BY ATTY. GONZALES
xxx xxx xxx
Q And you mentioned of a certain Laring,
you agree with me that this Laring was
identified to you by people of the Metro
Discom?
A Yes, sir.
Q And the people at the Metro Discom
meaning the police officers, told you that it
was Laring who occupied the place where
you were allegedly brought, right?
A Yes, sir.
COURT: I can not hear.
WITNESS: Yes, sir, occupied by Laring.
Q You have not seen Laring?
A Yes, sir.
Q You have not seen Laring, you mean
no?
A Yes, sir.
xxx xxx xxx
Q Now, you mention, no. Now, in your
house where this incident allegedly took
place, you only saw Toto Garcia?
A Yes, sir.
Q You could not identify anybody there?
A No, sir.
xxx xxx xxx
43


Obeso and Sarte interposed the defense of
alibi. They asseverated that in late
November, 1990, they left the house they
were renting in Linao, Minglanilla, Cebu and
went to Banilad, Bacong, Dumaguete City
where the parents of Sarte reside. It was
there, in March 1991, that they were
arrested.

The prosecution never rebutted the claim of
live-in partners Obeso and Sarte that they
were in Bacong, Dumaguete City as early as
November, 1990. No direct evidence has
been proffered by the prosecution to place
Obeso and Sarte at the scene of the crime.
Their alibi has to be given credence.

WHEREFORE, the Decision of the Regional
Trial Court of Cebu City, Branch 18, dated
December 6, 1993, in Criminal Case No.
CBU-20464, is MODIFIED. Appellants
Leonilo and Beverly Cui are CONVICTED as
ACCESSORIES and are ORDERED to serve
the indeterminate sentence of two (2)
years, four (4) months and one day
of prision correccional, as minimum, to
eight (8) years and one day of prision
mayor, as maximum. Appellants LUIS
OBESO alias "LEOS", and HILARIA.
SARTE, alias "LARING" are ACQUITTED and
if presently detained, they are ordered
immediately released from detention unless
other legal reasons exist to detain them.
The Director of Prisons is ordered to inform
this Court within ten (10) days from receipt
of this Decision his compliance. No
costs.1wphi1.nt
SO ORDERED.







G.R. Nos. 106210-11 January 30,
1998
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
ROBERTO "RAMBO" LISING, RODOLFO
MANALILI, FELIMON GARCIA, ENRICO
DIZON, and ROBIN MANGA,accused-
appellants.

KAPUNAN, J.:
The parents of Cochise and Beebom must
have lifted their sorrowful faces
heavenward and blurted out an anguished
cry: "Oh God! Why must it be they, so
young, so loving, so beautiful and so
promising, to be brutally snatched from our
embrace and never to be seen again?"

Cochise, whose full name was Ernesto
Bernabe II, was 26 years old on the fateful
day of April 26, 1990 and Ana Lourdes
Castaos, or Beebom to her family friends,
was 22. Cochise had just graduated from
the University of the Philippines with a
degree of Bachelor of Laws and was
reviewing for the bar examinations, while
Beebom was a graduating student at the
College of Mass Communications from the
same university. Both excelled in academic
and extra-curricular activities.

The senseless and gruesome killing of the
young man and woman, both full of
promise, horrifies us. But what makes this
crime more despicable in our eyes is the
involvement of people sworn to uphold the
law.

For the crimes for which they were charged
and sentenced, appellants now come to this
Court asking us to give their case a second
look, insisting on their innocence.

Sometime in March, 1990, Rodolfo Manalili,
a businessman asked Felimon Garcia, his
townmate, if he knew somebody who could
allegedly effect the arrest of one Robert
Herrera, the suspect in the killing of his
brother, Delfin Manalili.

Felimon Garcia said he knew one and
arranged a meeting with him.

On April 21, 1990, Felimon Garcia called up
Manalili and informed him that he already
contacted a policeman to help him and said
that the policeman wanted to talk to him.
So an appointment was set at 12:00 p.m. of
April 22, 1990 at Dau Exit, North
Expressway, Mabalacat, Pampanga.

On said date Manalili, together with his son
Richard, arrived at the Dau Exit at about
12:30 p.m. of April 22, 1990. Felimon Garcia
was already there waiting for Manalili.

They proceeded to the Golden Palace
Chinese Restaurant where they would meet
Roberto Lising. They, however, had to
change venue because Roberto Lising's live-
in-partner, Ligaya Fausto and other
companions were in the restaurant. So they
went instead to a nearby carinderia and
instructed Felimon Garcia to follow them
there.

Shortly, Felimon Garcia arrived and
introduced Roberto Lising, Enrico Dizon and
another man armed with a service pistol to
Manalili. During the meeting, Manalili
offered to pay them P50,000.00 for the job.
Initially, Manalili gave them P2,000.00 and
instructed them to go and see Vic
Nabua,* his employee who will point them
the person to be arrested.

On April 23-24, Lising's group went to
Quezon City and met with Vic Lisboa. They
conducted a surveillance on the Castaos
residence in the hope of seeing Herrera.
Failing to do so, the group was asked to
come back the next day.

On April 25, the same group arrived at the
vicinity of the Castaos residence at around
5:00 p.m. to resume their surveillance. Two
hours later, Lisboa alerted the group after
allegedly spotting Herrera entering the
Castaos residence.

Later, the group saw a man and a woman
who happened to be Cochise and Beebom
leave to the Castaos residence in a green
box type Lancer car. The group followed the
Lancer car with Lising, Dizon and Manga
riding in a black car and Lisboa and Garcia in
a motorcycle.

The Lancer car went to Dayrit's Ham and
Burger House on Timog Circle, Quezon City
where the couple intended to have dinner.
Alighting from the car, they were accosted
by Dizon and Manga who were both
carrying firearms. Amidst protestations,
Dizon poked his gun at Cochise, handcuffed
him, and shoved him into the car. Beebom
protested loudly at the arrest and was also
shoved into the back of the car.

The young couple's failure to go home that
night and the next day alarmed their
parents, so a search was then initiated by
close friends and relatives inquiring from
hospitals, restaurants, friends' houses and
possible places where the couple would go.

One group chanced upon Dayrit's Ham and
Burger House where they were told that a
couple who fitted their descriptions were
taken by three (3) men believed to be from
the military in the evening of April 25, 1990.

The abduction of Cochise and Beebom hit
the front pages. Appeals by the parents to
locate them reached the authorities where
all possible angles of their disappearance
were explored but there were no significant
leads. After about two (2) months of futile
search for their whereabouts, a break came
on June 21, 1990 when two (2) security
guards working in a Shellane Warehouse in
San Fernando, Pampanga went to see Ms.
Rosie Bernabe at her Pasay City Hall office
and had information concerning her son,
Cochise. Mrs. Bernabe referred the two
guards to the CAPCOM who interviewed
them.

The two guards told the CAPCOM that their
friends Raul Morales and Jun Medrano,
both employees of Roberto Lising, informed
them that Lising killed a mestisuhin man
and a woman in their warehouse.

On June 23, 1990, Raul Morales was picked
up and told his story. In a sworn statement
executed on even date, he stated that he
was a pahinante residing in the warehouse
where LPG cylinders are stored, located
near Valle Verde Drive-In Lodge in San
Fernando, Pampanga, owned by Ligaya
Fausto, common-law wife of Roberto
Lising alias "Rambo." In the main, he said:

21. T: Sa ikaliliwanag ng pagsisiyasat na
ito, maaari bang isalaysay mo ang sinasabi
mong hindi pangkaraniwang pangyayari?

S: Nangyari yan alas 2:00 ng madaling
araw ng 26 April 1990 natutulog ako, nang
mayron kumatok sa pinto ng bodega at
nagising ako. Tinawag ko si Aida Morales
para buksan ang gate tapos sabi ni Aida
"Ikaw na lang ang magbukas" pagkatapos
kinuha ko yung susi sa kanya para buksan
yong gate. Noong binubuksan ko yong gate
sabi sa akin ni Roberto Lising, "Bakit ang
tagal mo" tapos pakabukas ko ng gate
pumasok yong dalawang kotse, una yong
itim pagkatapos yong green na kotse na
Lancer, tapos unang bumaba sa kotse na
itim si Rambo, pangalawa si Felimon
bumaba sa kotse na Lancer may dala na
pala. Pagkatapos lumabas ng gate si
Felimon may dala na pala. Si Rambo naman
binuksan yong dalawang pinto ng kotseng
itim bumaba yong babae at saka yong lalaki
hinila palabas ni Rambo. Pagkatapos
tinalian niya ng alambre bukod pa sa pagtali
ng alambre pati pa yong mukha tinalian ng
damit. Pagkatapos pagtali ni Rambo, biglang
dumating si Felimon dala pa yong pala
pagkatapos sininyasan si Rambo na ilabas
na iyong lalaki. Dinala ulit ni Rambo ang
pala noong palabas na sila noong lalaki.
Pagkatapos ayaw nga lumabas ng lalaki,
itinulak ni Rambo papunta sa labas, sabi
naman ng babae maawa naman po kayo sa
amin dahil wala kaming kasalanan"
pagkatapos tinutukan ni Rambo yong babae
at sabi "Putang ina mo, wag kang maingay,
papatayin rin kita". Noong dinala na ni
Rambo, umiiyak na lang yong babae. Mga
kalahating oras bago bumalik si Rambo sa
bodega na hindi na kasama yong lalaki.
Nakahubad siya at pinapawisan, bukod pa
yan, naghugas pa ng kamay siya.
Pagkatapos nag-usap-usap silang tatlo, si
Rambo, si Felimon at yong kasama ni
Rambo. Pagkatapos nagsabi si Rambo sa
akin na buksan na ang gate at aalis na sila.
Binuksan ko ang gate at nagsakayan sila sa
kotse, si Rambo sa itim at saka yong babae,
sa Lancer naman ang nakasakay yong
kasama niya at si Felimon, at pagkatapos
lumabas na sila, tuloy tuloy na umalis.
1

On June 25, 1990, the body of Cochise was
exhumed. An autopsy was conducted
where the finding was: Cause of Death:
"Multiple Stab Wounds"

The next day, Beebom's body, which was in
an advanced decomposing stage was
exhumed from a shallow grave, two (2)
kilometers from where Cochise's body was
found.

After evading arrest the previous days,
Roberto Lising was finally apprehended on
June 30, 1990. In a Sworn Statement
executed on the same day at Camp Bagong
Diwa, Bicutan, he implicated Felimon Garcia
and Rodolfo Manalili. According to him, this
is what happened:

. . . at about 11:00 o'clock in the evening of
April 25, 1990, he received a telephone call
from FELIMON GARCIA informing that he
and his companions were at Valle Verde
Lodge at San Fernando, Pampanga and that
they have a problem. He immediately went
to that place and saw FELIMON GARCIA
who introduced to him RUDY MANALILI
who was then accompanied by six (6) other
men; that he saw a yellow Mercedez Benz,
a black Torana and a green Lancer; that on
board the Lancer were a man and a woman
who were blindfolded and were introduced
to him by RUDY MANALILI as ROBERTO
HERRERA and JOY MANALILI; that they
proceeded to one of the rooms of the motel
where MANALILI told him that the two
persons should die because they killed his
brother DELFIN MANALILI; that afterwards
RUDY MANALILI paid the chit and they
proceeded to the warehouse at Villa
Victoria, San Fernando, Pampanga, owned
by LIGAYA FAUSTO where he bound
COCHISE and led him to the back of the
warehouse; that MANALILI stabbed
COCHISE and he acted only as a look-out;
that FELIMON GARCIA and another person
brought the blindfolded woman to Brgy.
San Agustin where she was killed; that
before he, FELIMON GARCIA and RUDY
MANALILI parted ways, MANALILI told him
to take care of the Lancer, change its color
and later he will get it and after that he was
given P40,000.00 in check which he
encashed at the UCPB Diliman Branch,
Quezon City on April 26, 1990; that he gave
P15,000.00 to FELIMON GARCIA and kept
the rest; that he had the Lancer repainted
and used it.
2


Thereafter, the manhunt for Felimon Garcia
and Rodolfo Manalili began. One by one,
the men responsible for the killing of
Cochise and Beebom fell into the hands of
the authorities.

On January 4, 1991, Garcia surrendered and
was brought to the NBI. He named Pat.
Enrico Dizon as the companion of Lising
when Cochise and Beebom were kidnapped
and brought to Valle Verde Lodge. He
refused to make a statement or give further
information until Rodolfo Manalili was
arrested.

On January 16, 1991, Enrico Dizon was
turned over by his superiors to the NBI. He
named a certain CIC Robin Manga as one of
their companions and owner of the car they
used when Cochise and Beebom were
kidnapped. Thus, Manga was also picked
up.

Meanwhile, Rodolfo Manalili, who was in
Australia at that time was fetched by then
NBI Director Alfredo Lim and Atty. Diego
Gutierrez after proper representations were
made with the Australian police.

On January 17, 1991 Felimon Garcia, with
the assistance of his counsel, Atty.
Redemberto Villanueva, executed a
statement revealing that:

. . . he met RODOLFO MANALILI sometime
in April 1987 in his office at No. 71 Mapang-
akit Street corner V. Luna, Quezon City
while soliciting contribution for the
Barangay fiesta of San Isidro, Minalin. The
relationship continued until he was
requested by MANALILI to look for persons
who could help in arresting ROBERTO
HERRERA, the suspect in the killing of his
brother DELFIN MANALILI. He contacted
ROBERTO LISING alias RAMBO, a policemen
assigned with Pampanga PC Intelligence
Unit, thru LIGAYA FAUSTO, his relative and
live-in-partner of LISING, to help in the
arrest of HERRERA, and on April 21, 1990,
while in the residence of LISING, he placed a
long-distance call to MANALILI to inform
him that LISING is willing to help. They
talked over the phone and agreed to meet
the following day in Dao.

He met MANALILI at the Dao-Mabalacat exit
and accompanied the latter to LISING,
ENRICO DIZON AND ANOTHER MAN ARMED
WITH SERVICE PISTOL (.45 CALIBER) AND
Armalite. MANALILI, during the meeting,
said that VIC NABUA, his employee, will act
as pointer of the persons to be arrested and
LISING agreed and asked from MANALILI
P50,000.00 for the job to which MANALILI
agreed. Initially MANALILI gave P2,000.00 to
LISING as expenses.

He together with LISING, ENRICO DIZON
and the driver of a Tamaraw went to
Quezon City on April 23 and 24, 1990, but
VIC NABUA failed to spot HERRERA. On April
25, 1990, LISING and DIZON returned on
board a black car, Colt Galant (sic) driven by
ROBIN MANGA and NABUA finally told
them that HERRERA was at a house near the
Camelot. After a few minutes of
surveillance NABUA approached them and
told them to follow the car driven by a man
with a woman companion. Said car
proceeded to Timog Circle and parked in
front of Dayrit Hamburger House, followed
by the Colt Galant which they likewise
followed on board a motor and handcuffed
the man and the woman. Then LISING
instructed him to contact MANALILI and to
follow them to Pampanga. He, MANALILI
and VIC NABUA proceeded to Pampanga PC
where they were instructed by the military
on duty to proceed to Valle Verde Lodge,
San Fernando, Pampanga. There they saw
LISING and ERNESTO COCHISE BERNABE
and BEEBOM CASTAOS. MANALILI
identified them and instructed him and
LISING to release COCHISE and BEEBOM
and assured that whatever MANALILI
promised to LISING WILL BE PAID. Lising
AGREED. However, after MANALILI left,
LISING told him to bring COCHISE and
BEEBOM to a warehouse owned by LIGAYA
FAUSTO where COCHISE was killed by
LISING. Thereafter BEEBOM was forced by
ENRICO DIZON and ROBIN MANGA top
board the Galant car which left the
warehouse towards Barangay San Agustin.

He and LISING were left in the warehouse
and proceeded to the house of LIGAYA
FAUSTO at MALIGAYA Village in San
Fernando. At about 9:00 a.m. he and LISING
went to the warehouse of MANALILI at
Xavierville Subdivision, Quezon City and
there a check of P40,000.00 was given to
LISING who encashed it with Fareast Bank
and went to Pampanga. He alighted at Sto.
Domingo, Minalin, Pampanga after LISING
gave him P500.00.
3


Rodolfo Manalili, on the other hand, with
the assistance of Atty. Rodolfo Jimenez
manifested on January 18, 1991:

that he met LISING through FELIMON
GARCIA whom he requested to look for
some police officers who could help in the
arrest of ROBERTO HERRERA, the accused in
the killing of his brother DELFIN MANALILI.

He met LISING together with a certain Pat.
ENRICO DIZON of the Guagua police and
another police officer in Dau, Pampanga on
April 22, 1990, and gave them a sketch of
HERRERA. On April 24, 1990, he told
GARCIA to postpone their plan against
HERRERA due to his forthcoming travel to
Germany on April 25. However, at about
10:00 p.m. of April 25, GARCIA came to his
office at No. 71 Mapangakit, Diliman,
Quezon City and informed that they have
already arrested HERRERA with a lady
companion and that he was instructed to go
to Pampanga, which he did. He was
accompanied in his car by GARCIA and
VICTOR LISBOA. They proceeded to Valle
Verde Hotel in San Fernando, Pampanga,
and brought him to Room 213 where he
saw a man slumped on the floor with his
eyes and mouth covered with tape. The
lady companions sitting on the bed had her
eyes also taped. He told LISING that the
man is not HERRERA. He was forced to peek
(sic) inside the room anew, and this time
recognized the woman to be BEEBOM
CASTAOS. He pleaded LISING and his
companions to release them and would give
them whatever amount he promised them.

After he was told that BEEBOM and
COCHISE would be released he instructed
GARCIA to stay behind and see to it that his
instructions were complied with. Then, he
returned with VICTOR LISBOA. The
following day, at about 8:00 a.m., LISING
and GARCIA came to his house and told him
that the man and BEEBOM were already
released and in turn gave them a Far East
Bank check in the amount of P40,000.00.

On April 26, he left for Germany and
returned on May 28, 1990. While still in
Germany his wife and househelps have
been receiving threatening telephone calls
and on the first week of June he received a
call from GARCIA who gave the telephone
to LISING who asked for P60,000.00,
otherwise he will kill him or implicate him in
the crime.

On June 21, 1990 he left for Hongkong then
to Melbourne for fear of his life and that of
his family.

He claimed that the police officers he saw in
Valle Verde Hotel were Pampanga
policemen and not Quezon City policemen.
4


Consequently, two (2) Amended
Informations were filed in court against
Roberto "Rambo" Lising, Rodolfo Manalili,
Felimon Garcia, Enrico Dizon, Robin Manga,
and Ligaya Fausto.

Criminal Case No. Q-90-15239

For Carnapping (Violation of Republic Act
No. 6539)
5


That on or about the 25th day of April 1990,
in Quezon City, Philippines, and within the
jurisdiction of this Honorable Court, the said
accused, P/Pfc. Roberto Lising y Canlas,
Enrico Dizon, Robin Manga y Quimzon,
being then members of the Integrated
National Police with Presidential waiver,
and Rodolfo Manalili, Felimon Garcia and
Ligaya Fausto, private individuals and
several Does, conspiring together,
confederating with and mutually helping
one another, with intent to gain, and
without the knowledge and consent of the
owner thereof, by means of violence and
intimidation against persons, did, then and
there, willfully, unlawfully and feloniously
take, rob and carry away one G.T. Lancer,
with Plate No. PER 942 in an undetermined
value and belonging to Ernesto Bernabe II,
to the damage and prejudice of the
offended party in such amount as may be
awarded under the provisions of the Civil
Code.
6

Criminal Case No. Q-90-15240
For: Kidnapping with Double Murder
7

That on or about the 25th day of April,
1990, in Quezon City, Philippines, and
within the jurisdiction of this Honorable
Court, the said accused, P/Pcf. Roberto
"Rambo" Lising y Canlas, Enrico Dizon,
Roberto (sic) Manga y Quimzon, being then
members of the Integrated National Police
with Presidential waiver, and Rodolfo
Manalili, Felimon Garcia, both private
individuals, and several Does, conspiring
together, confederating with and mutually
helping one another, did, then and there,
willfully, unlawfully and feloniously and for
the purpose of detaining Ernesto Bernabe II
y Blanco @ "Cochise" and Ana Lourdes
Castaos y Jis de Ortega @ "Beebom,"
kidnap or in any manner deprive them of
their liberty and thereafter, pursuant to
their conspiracy, took them to San
Fernando, Pampanga, and with intent to
kill, with treachery, evident premeditation
and cruelty, did, then and there stab them
several times in the chest and slit open their
necks, augmenting their sufferings which
were the direct and immediate cause of
their deaths and thereafter burying them to
prevent discovery, and Ligaya Fausto, also a
private individual, knowing the criminal
intent of the above-named principal
accused cooperated in the execution of the
crime by supplying material and/or moral
aid, to the damage and prejudice of the
Heirs of said victims in such amounts as
may be awarded to them under the
provisions of the New Civil Code.
8


Upon arraignment, all the accused pleaded
not guilty.

In building up their case, the prosecution
presented two vital witnesses: Froilan
Olimpia, who witnessed the abduction of
the young couple at Dayrit's Ham and
Burger House; and Raul Morales,
the pahinantewho testified on the killing of
Cochise.

On May 27, 1991, Froilan Olimpia testified
in court and stated that he was 31 years old
and was formerly a security guard of
Nationwide Security and Investigation
Agency. He was assigned at the Rotonda
Wine Station, the establishment beside
Dayrit's Ham and Burger House along Timog
Circle, Quezon City. His tour of duty on April
25, 1990 was from 12:00 noon to 12:00
midnight.

At about 7:00 to 7:30 in the evening,
Olimpia was at his post in front of the Wine
Station. There was a green box type Lancer
car which parked in front of the Dayrit's
Ham and Burger House carrying a man and
a woman. Then a black car with no license
plate parked behind the green car and two
men alighted from it carrying guns. They
announced that they were policemen, one
was carrying a .45 caliber firearm in his
holster and the other was carrying a long
firearm. These men went towards the green
box type Lancer car and handcuffed its
driver. He only heard the man being
handcuffed retort "Bakit?" When asked
about the female companion, he said that
his attention was more focused on the
handcuffing incident and just later noticed
that the woman was already seated at the
back of the car. He did not even see the
other man driving the black car.

Olimpia further explained that the security
guard of Dayrit's Ham and Burger House,
Anastacio dela Cruz, was not really able to
witness the whole incident since he was
busy buying a cigarette stick from a nearby
vendor. Just when the latter was returning
to his post, the cars were already backing
up ready to leave.

He did not tell anyone about the incident
nor bothered to report to the authorities
since he was aware that the perpetrators
were policemen. He came to know about
the identities of the man and woman and
their disappearance when two female
persons were making inquiries about them
on April 27, 1990. The next time, another
group of people asked him about what he
witnessed until he was picked up by the NBI
for further questioning about the whole
incident.

Raul Morales was presented in court on
April 17, 1991. He stated that since March
1988, he had been working for Ligaya
Fausto and Roberto Lising as a pahinante or
truck helper of Crown Gas Commercial, a
dealer of LPG, located in Valle Victoria
Village, San Fernando, Pampanga. He knew
Roberto Lising to be a policeman and is
known by the name "Rambo" Lising. He
works as a policeman in the morning and
when he returns home after work, helps in
delivering gas. During his testimony,
Morales was given a clean sheet of paper
and a pen where he was asked to make a
sketch of his place of work.

At about 2:00 in the morning of April 26,
1990, he was awakened by a knock at the
gate of the warehouse. When he opened
the gate, two cars came in: a green box-
type Lancer car driven by Lising, with
Felimon Garcia seated in front, a man and a
woman at the back seat of the car; and a
black car with Dizon and Manga. After the
two cars entered the premises, he saw
Lising go behind their sleeping quarters and
get a wire. Lising and Dizon then brought
Cochise to an area in the middle of the
warehouse while Manga led Beebom to
another end. After alighting from the car,
Felimon Garcia got a spade from the back
compartment of the car and went out of
the warehouse. Lising and Dizon then
removed the handcuffs of Cochise, tied his
hands with the wire and blindfolded him
with a tape and torn cloth.

Morales further testified that it was Lising
who closed the gate but left it ajar. In a little
while, he noticed another man enter the
gate and walked towards Beebom. He
heard the woman plead: "Uncle, maawa po
kayo sa amin," while Manga was tying
Beebom's hands with the wire. Garcia, after
going inside the warehouse, was handed a
knife by Lising which he used to stab
Cochise on the chest. Lising then retrieved
his knife from Garcia and continued to stab
Cochise. When Cochise was already dead,
the four men, namely Lising, Garcia, Dizon
and Manga carried Cochise out of the
warehouse. They were away for about half
an hour and when they came back, the four
men directly went to the well and washed
their hands. The four walked towards
Manalili and talked with each other. He
could not hear the conversation but saw
that they grouped themselves together.

Before leaving, Lising called on Morales and
told him to close the gate and keep the
shoes of Cochise. Lising boarded the green
box type Lancer car with Garcia and the
woman. He noticed Rudy Manalili walk out
of the gate.

On April 26, 1991, the court conducted an
ocular inspection of the scene of the crime.
Witness Morales pointed to the court how
the events transpired from where he was
seated.

On the basis of the testimonies of the above
witnesses, plus the confessions made in the
extrajudicial statements executed by
Roberto Lising, Felimon Garcia, and Rodolfo
Manalili, the prosecution presented their
version of the incident as quoted from the
trial court's decision, to wit:

1. The conspiracy to abduct and
subsequently kill Ernesto "Cochise" Bernabe
II and Ana Lourdes "Beebom" Castaos was
hatched sometime in March 1990 when
accused Rodolfo Manalili secured the
services of accused Felimon Garcia to look
for men who would be willing to commit
the dastardly deed for a fee. (Exhibits "HH"
and "MM")

2. Accused Garcia then set about on his task
and contacted accused Roberto Lising and
Enrico Dizon for the "job." (Ibid.)

3. At a meeting arranged by Garcia on 22
April 1990, accused Manalili talked with
Lising and Dizon at Mabalacat, Pampanga
about the details of the conspiracy. (Ibid.)

4. Accused Manalili promised Lising, Dizon
and their companions the amount of
P50,000.00 for the "job." (Ibid.)

5. Lising and Dizon readily accepted
Manalili's using a total of P10,000.00 as
downpayment, the balance of P40,000.00
payable after the victims have been
kidnapped and killed. (Ibid.)

6. Accused Lising and Dizon then recruited
accused Robin Manga to help implement
the orders of Manalili. (Ibid.)

7. On 25 April 1990, at around 5:00 o'clock
in the afternoon, accused Lising, Dizon,
Garcia and Manga, on board Manga's black
car, went to the vicinity of the Camelot
Hotel at Quezon City. They positioned
themselves about 60 meters away from the
Castaos residence and waited for the
victims. (Exhibit "MM")

8. At around 6:30 o'clock in the evening of
the same day, Cochise and Beebom went
out of the Castaos residence, boarded
Cochise's green colored 1985 Lancer car
with plate No. PER 942. (Ibid.) This Lancer
car is owned by, and registered under the
name of Cochise's father, Fiscal Ernesto
Bernabe. (Exhibit "DD")

9. Cochise and Beebom then proceeded
toward Dayrit's Ham & Burger House at
Timog Avenue, Quezon City. (Ibid.)

10. Accused Lising, Dizon, Garcia and Manga
immediately boarded Manga's black car and
tailed the green Lancer. (Ibid.)

11. Upon reaching Dayrit's Hamburger
House, Cochise parked the green Lancer in
front of the restaurant. (T.S.N, 7 May 1991,
p. 6)

12. Immediately thereafter, Manga's black
car was parked behind the green Lancer.
(Ibid.)

13. Accused Dizon, armed with a .45 caliber
pistol, and accused Manga, carrying a long
firearm, alighted from the black car,
proceeded towards the green Lancer and
announced that they are policemen. (Id., at
7)

14. While Cochise and Beebom were
alighting from the green Lancer, Dizon
approached, pointed the .45 caliber pistol
at Cochise and handcuffed Cochise's hands
behind his back. (Id., at 8)

15. Cochise, visibly surprised and confused,
asked Dizon, "Bakit?" (Id., at 14)

16. Accused Dizon ignored the question and
rudely pushed Cochise into the back seat of
the green Lancer. (Id., at 7-9)

17. Similarly, accused Manga approached
Beebom at the other side of the green
Lancer, and pushed her into the other back
seat of the green Lancer. (Ibid.)

18. Accused Dizon and Manga then boarded
the front of the green Lancer, backed the
car out of the parking area of Dayrit's Ham
& Burger House and drove away towards
EDSA. (Id., at 11)

19. Accused Lising and Garcia, on board
Manga's black car, immediately followed.
(Ibid.)

20. After the forcible abduction of Cochise
and Beebom, Garcia informed Manalili of
the success of the operation. Garcia further
told Manalili to go to a designated place in
San Fernando, Pampanga, where Cochise
and Beebom will be taken. (Exhibit "MM")

21. Manalili then proceeded to San
Fernando, Pampanga on board his gray
Mercedes Benz. (Ibid)

22. At around 2:00 o'clock in the morning of
26 April 1990, accused Lising, Dizon, Garcia
and Manga brought Cochise and Beebom to
a bodega in San Fernando, Pampanga
owned by accused Ligaya Fausto. (T.S.N., 18
April 1991, p. 6)

23. At this time, Lising was driving the green
Lancer with Garcia at the front seat. At the
rear of the car were Cochise and Beebom.
(Id., at 8).

24. Manga, on the other hand, was driving
the black car, with Dizon beside him. (Id., at
8).

25. After the green Lancer and the black car
were parked inside the bodega, Cochise,
blind-folded, handcuffed and gagged with
several strips of masking tape, was dragged
out of the green Lancer by Lising and Dizon
towards an area near the toilet. (Id., at 9-
10; T.S.N., 26 April 1991, p. 3).

26. Beebom, on the other hand, was taken
by Manga to another area of the bodega
where she could not see Cochise or hear
what was being done to him. (Ibid.)

27. At this point in time, Manalili arrived,
parked the car on the road outside the
bodega and walked inside towards Beebom.
(T.S.N., 18 April 1991, p. 11).

28. Beebom, seeing Manalili, pleaded,
"Uncle, parang awa mo na. Wala kaming
kasalanan." (Ibid)

29. Manalili simply ignored Beebom's plea
for mercy. (Ibid)

30. Meanwhile, Garcia went to the back of
the green Lancer, got a spade from the
truck compartment, and went out of the
bodega (Ibid.). Garcia walked towards the
back of the bodega and there, dug a shallow
grave. (Exhibit "HH")

31. Lising went to the clothesline area of
the bodega, got a length of a laundry wire
and some clothes which he tore apart and
made into makeshift ropes. (T.S.N., 18 April
1991, p. 12)

33. Garcia then returned to the bodega with
the spade still in his hands and approached
Cochise. (Id., at 14)

34. Lising handed a knife to Garcia, who
then stabbed Cochise in the chest. (Ibid.)

35. Lising, appearing dissatisfied, grabbed
the knife from Garcia and stabbed Cochise
several times in the chest and stomach
area, as if telling Garcia how to do it. All this
time; Dizon was holding Cochise. (Id., at 14-
15)

36. Cochise then fell to the ground, mortally
wounded. (Ibid)

37. Thereupon, Dizon motioned to Manga
to help carry the body of Cochise. Manalili
then was left to keep watch over Beebom.
(Id., at 16)

38. Lising, Dizon, Garcia and Manga brought
to the back of the bodega, into the shallow
grave dug by Garcia. The four then covered
Cochise with soil. (T.S.N., 26 April 1991, p.
6; Exhibit "MM")

39. They then reported to Manalili for final
instructions. The order was for all of them
to leave. (T.S.N., 26 April 1991, p.18)

40. Beebom inquired about Cochise, Lising
and Dizon answered that they had released
Cochise, and that they would likewise
release her. (T.S.N., 18 April 1991, p. 18;
Exhibit "MM")

41. Thus, the five accused left the bodega,
Dizon and Manga on board the black car,
Manalili in his own car, and Lising, Garcia
and Beebom in the green Lancer. (T.S.N., 18
April 1991, p. 18)

42. Later, upon the instructions of Lising,
Dizon and Manga took Beebom with them
on the black car. (Exhibit "MM") This was
the last time that Beebom was seen alive.

43. At around 5:00 o'clock in the morning of
the same day, Fausto arrived at her bodega
and waited for Lising to arrive. (T.S.N., 18
April 1991, p. 20)

44. About an hour later, Lising arrived on
board the Lancer car taken from Cochise.
Lising alighted from the Lancer car,
proceeded to one of the huts in the bodega
where Fausto was staying, and informed
Fausto about the taking of the Lancer car.
(Id., at 21).

45. After a few minutes, Fausto emerged
from the hut and instructed a certain Jun
Medrano, one of Fausto's helpers in the
bodega, to drive the Lancer car to her
house in Maligaya Village, San Fernando,
Pampanga, and hide it there. (Id., at 22)

46. Pursuant to Fausto's instruction, Jun
Medrano, together with two other helpers
of Fausto, Raul Morales, and a certain
Nonoy, drove the Lancer car to Fausto's
house and hid it in the "barbelan" area of
the house. (Id., at 23-24; Exhibit "Y")

47. Meanwhile, satisfied that his orders had
been fully implemented, Manalili paid Lising
the P40,000.00 balance of the "contract",
by issuing a Far East Bank check for the said
amount to Lising at around 8:00 o'clock in
the morning of 26 April 1990. (Exhibits "K"
and "HH")

48. Lising immediately encashed the check
and distributed the proceeds among himself
and the other accused, Exhibits "K-2" and
"MM")
49. The Lancer car taken from Cochise, on
the other hand, remained hidden for
sometime at the residence of Fausto in
Maligaya Village where it was repainted to a
light gray color upon the instruction of
Fausto. (T.S.N., 18 April 1991, pp. 26-27;
Exhibits "CC", "CC-1" to "CC-6")

50. After the Lancer car was repainted to
light gray, Fausto's helpers in the bodega,
namely, Jun Medrano, Raul Morales, Rudy,
Bebot and Arnold, upon Fausto's
instructions, pushed the Lancer car for
about fifteen minutes to have its engine
started. Thereafter, the Lancer car was
driven to Fausto's bodega. (T.S.N., 18 April
1991, pp. 28-29)

51. Lising and Fausto thereafter started
using the Lancer car in going to the bank
and other places in San Fernando,
Pampanga. (Ibid.)

52. The Lancer car was subsequently
recovered by the PC/CAPCOM and turned
over to the custody of Fiscal Ernesto
Bernabe. (Exhibits "CC", "CC-1" to "CC-6"
and "EE")

53. On 25 June 1990, after two months of
frantic and exhaustive search made by the
Bernabe family, the body of Cochise was
found and exhumed from the grave where
Cochise was buried by Lising, Garcia, Dizon
and Manga at the back of Fausto's bodega
in San Fernando, Pampanga. It was
determined during an autopsy that Cochise
died to multiple stab wounds in his chest
and upper stomach. (T.S.N., 10 April 1991,
p. 33; Exhibits "D", "D-1", "E" and "E-1")

54. The next day, also after two months of
frantic and exhaustive search made by the
Castaos family, the body of Beebom was
found and exhumed from a shallow grave
about two kilometers from the bodega of
Fausto. It was determined during the
autopsy that Beebom died of severe
hemorrhage, secondary to two stab wounds
in the chest. (T.S.N., 10 April 1991, p. 40;
Exhibits "1" and "J")

55. Cochise was 26 years old and Beebom
was 22 years old when their lives were
untimely ended by the accused. Cochise
had just finished his Bachelor of Laws
degree from the University of the
Philippines and was then reviewing for his
bar examinations when he was abducted on
25 April 1990. Beebom, on the other hand,
was a graduating Mass Communication
student of the University of the Philippines
when she was abducted on 25 April 1990.
Both Cochise and Beebom excelled in
academic and extra-curricular activities,
their written works having been published
in periodicals and other publications.
Cochise and Beebom were in the best of
their youth and health at the time of their
untimely death. (T.S.N., 9 August 1991, pp.
4-7; T.S.N., 23 July 1991, pp. 24-26; Exhibit
"II")

56. The Bernabe family, in their attempt to
locate Cochise spent a total of P380,000.00.
In laying Cochise to his final rest, the
Bernabe family spent a total of P632,222.00
for funeral and other expenses. (T.S.N., 9
August 1991, p. 12; Exhibits "LL", "LL-1 to
"LL-3")

57. The Castaos family, on the other hand,
spent a total of P350,000.00 for the funeral
services for Beebom. (T.S.N., 23 July 1991,
p. 39)
9


In their defense, the accused policemen
claimed that there was insufficient evidence
to sustain their conviction. At the same
time, each one had an alibi.

Roberto Lising asserted that on April
25, 1990, he took a leave of absence
from the office to be able to
celebrate his father's birthday in
Arayat, Pampanga and stayed there
for the night. His father was
presented to corroborate his
assertion.

Enrico Dizon testified that April 25, 1990
was an ordinary working day for him. He
left the office at 5:00 p.m. and headed for
home at No. 107 Kamia St., Bgy. Sindalen,
San Fernando, Pampanga. In fact, two of his
neighbors recounted in court the verbal
exchange they had when they saw each
other in their neighborhood.

Roberto Manga, meanwhile, averred that it
was impossible for him to participate in the
commission of the crime since he was still
nursing his gunshot wounds sustained in an
encounter with lawless elements for about
a year already.

Garcia and Manalili did not take the witness
stand. They opted to rely on their
extrajudicial statements executed the
previous days manifesting the absence of
criminal intent.

On July 1, 1992, the trial court
rendered a decision with the
following dispositive portion:

WHEREFORE, premises considered, this
Court finds accused RODOLFO MANALILI,
ROBERTO LISING y CANLAS, FELIMON
GARCIA, ROBIN MANGA y QUIMZON and
ENRICO DIZON y ESCARIO, GUILTY beyond
reasonable doubt of the crime of Double
Murder qualified with treachery and
aggravated by evidence premeditation and
abuse of public position by Lising, Manga
and Dizon, and hereby sentences each one
of them to suffer a penalty of
double Reclusion Perpetua with all its
accessory penalties provided by law (the
death penalty having been abolished by the
1987 Constitution); to pay jointly and
severally the heirs of Ernesto Bernabe II;

(a) P1,000,000.00 as funeral and other
expenses;
(b) P50,000.00 as compensatory damages;
(c) P500,000.00 as moral damages;
(d) P2,000,000.00 for Cochise's loss of
earning capacity;

the heirs of Ana Lourdes Castaos:
(a) P350,000.00 for funeral and other
expenses;
(b) P50,000.00 as compensatory damages;
(c) P500,000.00 as moral damages;

The Court also finds accused Roberto Lising,
Enrico Dizon and Robin Manga GUILTY
beyond reasonable doubt of the crime of
Slight Illegal Detention aggravated by use of
a motor vehicle and hereby sentences each
one of them to suffer the maximum penalty
of Reclusion Temporal with imprisonment
from Seventeen (17) years, Four (4) months
and one (1) day to Twenty years, and to pay
the cost.

Accused LIGAYA FAUSTO who is charged as
an accessory after the fact (not accomplice
as alleged by the Prosecution), is hereby
acquitted for insufficiency of evidence.

Accused RODOLFO MANALILI, ROBERTO
LISING, ENRICO DIZON, ROBIN MANGA and
FELIMON GARCIA are given full credit of
their respective periods of detention in the
service of their respective sentences in this
case.

With respect to Criminal Case No. Q-15239
for carnapping, all the accused are hereby
ACQUITTED of the crime charged, it
appearing that the use of the car was done
only to facilitate the commission of the
crime of Slight Illegal Detention.
10

In this appeal, the following assignment of
errors were made:
Roberto Lising contends that:

I. THAT THE HONORABLE TRIAL COURT
ERRED IN ADMITTING AND CONSIDERING
THE STATEMENTS OF RODOLFO MANALILI
(EXHS. "HH", "HH-1" TO HH-25") AND THAT
OF FELIMON GARCIA ("MM", "MM-1" TO
"MM-14") ADMISSIBLE AS AGAINST
ROBERTO "RAMBO" LISING;

II. THAT THE HONORABLE TRIAL COURT
ERRED IN DECLARING RAUL MORALES AS A
CREDIBLE WITNESS, ALSO AS AGAINST
ROBERTO "RAMBO" LISING;

III. THE HONORABLE TRIAL COURT ERRED,
LIKEWISE, IN STATING THAT HEREIN
APPELLANT IMMEDIATELY ENCASHED THE
CHECK AND DISTRIBUTED THE PROCEEDS
AMONG HIMSELF AND THE OTHER (EXHS.
"K-2" AND "MM");

IV. THE HONORABLE COURT ERRED IN
DECLARING THE STATEMENT OF THE
HEREIN APPELLANT AS ADMISSIBLE IN
EVIDENCE AS AGAINST HIM;

V. THE HONORABLE COURT ERRED IN
DECLARING THAT HEREIN APPELLANT
(LISING IS EQUALLY LIABLE FOR
KIDNAPPING THUS, JIVING (SIC) THE
PLACE FOR PURPOSES OF JURISDICTION;
AND

VI. THAT THE HON. COURT ERRED IN
CONVICTING THE HEREIN APPELLANT
(ROBERTO LISING) AS ONE OF ALL THE
ACCUSED FOR THE CRIMES OF DOUBLE
MURDER AND WITH ENRICO DIZON AND
ROBIN MANGA FOR SLIGHT ILLEGAL
DETENTION BEYOND REASONABLE
DOUBT.
11


Enrico Dizon argues that:

1. THE LOWER COURT ERRED IN GRANTING
THE MOTION TO DROP THE NAMES OF
ROLANDO KHO, ROLANDO FERNANDEZ,
NOEMI PANGAN AND JESUS REMOLACIO
FROM THE INFORMATION AND ADMIT
AMENDED INFORMATION IMPLICATING
ACCUSED-APPELLANT ENRICO DIZON
DESPITE CLEAR EVIDENCE OF THE
PARTICIPATION OF KHO, FERNANDEZ,
PANGAN AND REMOLACIO;

2. THE LOWER COURT ERRED IN ADOPTING
THE PROSECUTION'S VERSION OF
STATEMENT OF THE FACTS ALTHOUGH
THERE WERE MISLEADING STATEMENTS AS
PROVED BY THEIR CONTRADICTIONS TO
THE TRANSCRIPTS OF STENOGRAPHIC
NOTES, AND AFFIDAVITS PRESENTED;

3. THE LOWER COURT GRAVELY ERRED IN
NOT CONSIDERING THE PRESUMPTION OF
INNOCENCE FOR IT RELIED IN THE
WEAKNESS OF THE DEFENSE OF ALIBI,
WITHOUT REGARDING THE
INCONSISTENCIES IN THE TESTIMONY OF
PROSECUTION WITNESSES RAUL, MORALES
AND FROILAN OLIMPIA;

4. THE LOWER COURT COMMITTED ERROR
WHEN IT GAVE CREDENCE TO THE
AFFIDAVITS EXECUTED BY LISING, MANALILI
AND GARCIA DESPITE THE FACT THAT THEY
WERE NOT PRESENTED AS WITNESSES
BEFORE THE LOWER COURT;

5. THAT THE LOWER COURT GRAVELY
ERRED IN ADJUDGING THE ACCUSED-
APPELLANT GUILTY OF THE CRIMINAL ACTS
BASED ON THE DECLARATION OF FELIMON
GARCIA'S EXTRAJUDICIAL CONFESSION
WITHOUT ESTABLISHING FIRST THE
CONSPIRACY TO WHICH ACCUSED-
APPELLANT DIZON WAS A PART.
12


Robin Manga asserts that:

I. THE LOWER COURT ERRED IN GIVING
FULL WEIGHT AND CREDIT ON THE
EXTRAJUDICIAL STATEMENT OF CO-
ACCUSED RODOLFO MANALILI AND
FELIMON GARCIA DESPITE THE FACT THAT
THE TWO DID NOT TAKE THE WITNESS
STAND NOR THEIR STATEMENTS OFFERED
IN EVIDENCE;

II. THE LOWER COURT ERRED IN HOLDING
THAT THE EXTRAJUDICIAL STATEMENTS OF
RODOLFO MANALILI AND FELIMON GARCIA
"AFFIRMED CONSPIRACY" AMONG THE
ACCUSED-APPELLANTS DESPITE ITS UTTER
LACK OF EVIDENTIARY VALUE;

III. THE LOWER COURT ERRED IN GIVING
FULL WEIGHT AND CREDIT ON THE
TESTIMONIES OF RAUL MORALES AND
FROILAN OLIMPIA DESPITE THE FACT THAT
THE STATEMENTS OF THE TWO ARE
REPLETE WITH INCONSISTENCIES, SELF-
CONTRADICTIONS AND ARE HIGHLY
IMPROBABLE;

IV. THE LOWER COURT ERRED IN FINDING
THAT FELIMON GARCIA'S NARRATION OF
THE ABDUCTION WAS CONSISTENT WITH
THE TESTIMONY OF FROILAN OLIMPIA
WITH RESPECT TO THE PARTICIPATION OF
ACCUSED-APPELLANT ROBIN MANGA
DESPITE STATEMENTS BY OLIMPIA THAT HE
SAW QUEZON CITY POLICEMEN ROLANDO
KHO AND ROLANDO FERNANDEZ AS THE
PERSONS WHO ABDUCTED "COCHISE" AND
"BEEBOM" IN THE EARLY EVENING OF APRIL
25, 1990 AND DESPITE THE FACT THAT THE
EXTRAJUDICIAL STATEMENT OF FELIMON
GARCIA WAS NOT EVEN IDENTIFIED BY THE
LATTER DURING THE TRIAL OF THESE
CASES;

V. THE LOWER COURT ERRED IN
CONSIDERING AS EVIDENCE MATTERS
OBTAINED IN VIOLATION OF THE
CONSTITUTIONAL RIGHT OF THE ACCUSED-
APPELLANT MANGA;

VI. THE LOWER COURT ERRED IN FAILING
TO OBSERVE THE PHYSICAL IMPOSSIBILITY
OF ACCUSED-APPELLANT MANGA BEING
INVOLVED IN THE OFFENSES CHARGED;

VII. THE LOWER COURT ERRED IN NOT
ACQUITTING ACCUSED-APPELLANT
MANGA.
13


Rodolfo Manalili avers that:

I. THE TRIAL COURT GRAVELY ERRED IN
GIVING TOTAL CREDIBILITY TO RAUL
MORALES AND IN NOT FINDING THAT RAUL
MORALES WAS A REHEARSED AND
PERJURED WITNESS INSOFAR AS
IMPLICATING ACCUSED RODOLFO MANALILI
IN THE COMMISSION OF THE CRIME OF
DOUBLE MURDER IS CONCERNED;

II. THE TRIAL COURT GRAVELY ERRED IN
NOT FINDING THAT ACCUSED RODOLFO
MANALILI DID NOT HAVE ANY CRIMINAL
INTENT OF DOING AWAY WITH THE LIVES
OF ERNESTO BERNABE II AND ANA
LOURDES CASTAOS AND THAT HE
LIKEWISE DID NOT HAVE ANY MOTIVE
WHATSOEVER IN CONSPIRING TO DO SO;

III. THE TRIAL COURT GRAVELY ERRED IN
NOT CONCLUDING THAT ACCUSED
RODOLFO MANALILI NEVER ENTERED INTO
A CONSPIRACY TO COMMIT THE CRIME OF
DOUBLE MURDER NOR DID HE COMMIT
ANY ACT/S ON THE BASIS OF WHICH IT CAN
BE INFERRED THAT HE ENTERED INTO SUCH
A CONSPIRACY TO COMMIT THE CRIME
IMPUTED TO HIM;

IV. SINCE THERE WAS IN EFFECT SEPARATE
TRIAL OF THE SEVERAL ACCUSED WHO
WERE EACH REPRESENTED BY SEPARATE
LAWYERS AND CONSIDERING THAT
CONSPIRACY BETWEEN MANALILI AND HIS
CO-ACCUSED HAS NOT BEEN SHOWN BY
ANY ACT OR DECLARATIONDURING ITS
EXISTENCE, THE TRIAL COURT GRAVELY
ERRED IN TAKING INTO ACCOUNT THE
SWORN STATEMENT OF ROBERTO LISING
AS EVIDENCE AGAINST RODOLFO MANALILI
TO THE EXTENT THAT IT PURPORTS TO
ATTEST TO MANALILI'S INVOLVEMENT IN
THE CRIME;

V. THE TRIAL COURT GRAVELY ERRED IN
NOT CONSIDERING SPECIAL
CIRCUMSTANCES OF THE CASE ON THE
BASIS OF WHICH IT CAN BE INFERRED THAT
ANOTHER PARTY WHO WOULD BE MOST
BENEFITED BY DOING AWAY WITH THE
LIVES OF THE VICTIMS, WAS BEHIND THE
COMMISSION OF DOUBLE MURDER;

VI. THE TRIAL COURT GRAVELY ERRED IN
NOT APPLYING THE WELL-ESTABLISHED
PRINCIPLE IN CRIMINAL LAW THAT WHEN
THE FACTS AND CIRCUMSTANCES OF THE
CASE ARE SUSCEPTIBLE TO TWO
REASONABLE INTERPRETATIONS: ONE
REASONABLE INTERPRETATION LEADING TO
A DECISION OF CONVICTION, AND, THE
OTHER REASONABLE INTERPRETATION
LEADING TO A FINDING OF ACQUITTAL,
THEN THE EVIDENCE OF THE PROSECUTION
HAS NOT FULFILLED THE STRINGENT
REQUIREMENT OF THE LAW OF PROVING
THE GUILT OF ACCUSED RODOLFO
MANALILI BEYOND DOUBT AND THEREFORE
SAID ACCUSED MANALILI IS ENTITLED TO
AN ACQUITTAL; AND

VII. THE LOWER COURT GRAVELY ERRED IN
AWARDING INFLATED, UNSUBSTANTIATED,
AND SPECULATIVE DAMAGES WHICH ARE
NOT RECOVERABLE UNDER EXISTING
JURISPRUDENCE.
14


Felimon Garcia contends that:

I. THE TRIAL COURT GRAVELY ERRED IN NOT
FINDING THAT RAUL MORALES WAS A
REHEARSED AND PERJURED WITNESS TO
MAKE FALSE ASSERTIONS IMPLICATING
APPELLANT FELIMON GARCIA IN THE
COMMISSION OF THE CRIME OF DOUBLE
MURDER;

II. SINCE THERE WAS IN EFFECT SEPARATE
TRIALS OF THE SEVERAL ACCUSED WHO
WERE EACH REPRESENTED BY SEPARATE
LAWYERS AND CONSIDERING THAT
CONSPIRACY BETWEEN APPELLANT
FELIMON GARCIA AND HIS CO-ACCUSED
HAS NOT BEEN SHOWN BY ANY ACT OR
DECLARATION DURING ITS EXPERIENCE,
THE TRIAL COURT GRAVELY ERRED IN
TAKING INTO ACCOUNT THE SWORN
STATEMENT OF ROBERTO LISING AS
EVIDENCE AGAINST APPELLANT FELIMON
GARCIA;

III. THE TRIAL COURT GRAVELY ERRED IN
NOT FINDING THAT APPELLANT FELIMON
GARCIA DID NOT HAVE ANY CRIMINAL
INTENT NOR MOTIVE WHATSOEVER TO
CONSPIRE WITH APPELLANT LISING ET AL
TO KILL ERNESTO BERNABE II AND ANA
LOURDES CASTAOS BOTH OF WHOM
APPELLANT GARCIA HAS NEVER KNOWN OR
MET BEFORE APRIL 25, 1990;

IV. THE TRIAL COURT GRAVELY ERRED IN
NOT CONCLUDING THAT APPELLANT
FELIMON GARCIA PERFORMED THE ACTS
ADMITTED BY HIM UNDER THE
COMPULSION OF AN IRRESISTIBLE FORCE
AND/OR UNDER THE IMPULSE OF AN
UNCONTROLLABLE FEAR OF AN EQUAL OR
GREATER INJURY AND THEREFORE EXEMPT
FROM CRIMINAL LIABILITY; AND

V. EVEN ASSUMING ARGUENDO THAT
APPELLANT FELIMON GARCIA IS NOT
EXEMPT FROM CRIMINAL LIABILITY, THE
LOWER COURT GRAVELY ERRED IN NOT
FINDING HIM GUILTY MERELY AS AN
ACCOMPLICE OF THE CRIME OF DOUBLE
MURDER AND THEREFORE ENTITLED TO A
LOWER PENALTY IN VIEW OF THE PRESENCE
OF VOLUNTARY SURRENDER,
OBFUSCATION, AND LACK OF INTENTION
TO COMMIT SO GRAVE A WRONG, AS
MITIGATING CIRCUMSTANCES.
15


Basically the present appeal is anchored on
three issues: (a) the admissibility of the
extrajudicial statements of appellants
Manalili, Garcia and Lising; (b) the
credibility of prosecution witnesses Froilan
Olimpia and Raul Morales and the (c)
finding of conspiracy among the appellants.

Extrajudicial statements are as a rule,
admissible as against their respective
declarants, pursuant to the rule that the
act, declaration or omission of a party as to
a relevant fact may be given in evidence
against him. This is based upon the
presumption that no man would declare
anything against himself, unless such
declarations were true. A man's act,
conduct and declarations wherever made,
provided they be voluntary, are admissible
against him, for the reason that it is fair to
presume that they correspond with the
truth and it is his fault if they are not.
16


There is no question that their respective
extrajudicial statement of Manalili and
Garcia were executed voluntarily. They
were assisted by their counsel and properly
sworn to before a duly authorized officer.
They merely relied on their extra-judicial
statements and did not take the witness
stand during the trial.

Lising, on the other hand, claims that he
was coerced and tortured into executing
the extrajudicial statement but nothing
appears on record that such extrajudicial
statement was made under compulsion,
duress or violence on his person. Lising did
not present himself for physical
examination, nor did he file administrative
charges against his alleged tormentors
which would necessarily buttress the claim
of torture in the absence of such evidence.
There are in fact indicia of voluntariness in
the execution of his extra-judicial
statements, to wit: (a) it contains many
details and facts which the investigating
officer could not have known and could not
have supplied, without the knowledge and
information given by Lising himself; (b) it
bears corrections duly initialed by him; (c) it
tends to explain or justify his conduct and
shift the blame to his co-accused Manalili.
Moreover, the claim that Lising was not
assisted by counsel is belied by the fact that
the signature of his counsel Atty. Yabut
appears in all the pages of his extrajudicial
statements.

The rule that an extrajudicial statement is
evidence only against the person making it,
also recognizes various exceptions. One
such exception worth noting is the rule that
where several extrajudicial statements had
been made by several persons charged with
an offense and there could have been no
collusion with reference to said several
confessions, the facts that the statements
are in all material respects identical, is
confirmatory of the confession of the co-
defendants and is admissible against other
persons implicated therein.
17
They are also
admissible as circumstantial evidence
against the person implicated therein to
show the probability of the latter's actual
participation in the commission of the crime
and may likewise serve as corroborative
evidence if it is clear from other facts and
circumstances that other persons had
participated in the perpetration of the
crime charged and proved.
18
These are
known as "interlocking confessions."

No doubt that the statements were
independently executed and rather
identical with each other in their material
details. There are also distinct similarities in
the narration of events leading to the
killings of Cochise and Beebom.

Manalili and Garcia's statements reveal that
Manalili wanted to effect the arrest of
Robert Herrera; that he asked help from
Garcia if the latter knew of policemen who
could do the job; that Garcia arranged the
meeting with Lising who volunteered to
take the job for the promised consideration
of P50,000.00; that a downpayment of
P2,000.00 was made; that Manalili was
informed that Robert Herrera and Joy
Ortega were arrested; that Manalili
together with Garcia and Nabua proceeded
to the PC-INP Headquarters in Pampanga
where they were told to proceed to Valle
Verde Motel; that they were met by Dizon
and Manga at the motel and were told that
Herrera was inside the room; that upon
discovery that Lising's group had taken the
wrong person and recognized Beebom's
voice, Manalili pleaded to the group that
the victim be released, assuring Lising that
the balance P40,000.00 would still be paid;
that Lising and his group refused but
relented upon Manalili's persistence; that
Manalili left for Manila but instructed
Garcia to stay behind and ensure the
release of the victims; and that the next day
Lising went to his office and claimed the
balance to which Manalili issued the
corresponding check.

Garcia added that after Manalili had left,
Lising told him to bring Cochise and
Beebom to the warehouse owned by Ligaya
where Cochise was killed. Thereafter, they
forcibly took Beebom into the car and
proceeded to Brgy. San Agustin.

Likewise, we find Lising's statement as
corroborative evidence against the others.
Except as to that portion where he
exculpates himself from any liability stating
that it was Manalili and Garcia who actually
stabbed Cochise in the warehouse and that
he was merely a lookout, Lising's statement
is identical as to the other material facts,
namely, that Cochise and Beebom were
brought to the Valle Verde Motel,
blindfolded where he met Manalili and
Garcia; that they were brought to the
warehouse on board a green box type
Lancer car, where Cochise was killed; that
Beebom was brought to Brgy. San Agustin
where she was eventually killed; that he
should take care of the green box type
Lancer car and was given P40,000.00 in
check.

Nonetheless, the trial court's decision, in
convicting all the accused was based not on
the aforesaid extrajudicial statements of
the accused alone but mainly on the
eyewitness account of the two witnesses,
Froilan Olimpia and Raul Morales, which the
trial court gave weight and credence as
bearing the "chime of truth and honesty."
Well-established is the rule that the trial
court's evaluation of the credit-worthiness
of the testimony given before it by
witnesses should be accorded great
respect.
19
Froilan Olimpia, a security guard
of the Rotonda Wine Station, an
establishment adjacent to the Dayrit's Ham
and Burger House witnessed the abduction
of Cochise and Beebom in front of the said
restaurant.

He testified that he saw three men in a
black car without a license plate drive to
Dayrit's Ham and Burger House and park
behind the green Lancer car. When the two
men alighted from the car, they introduced
themselves as policemen to the by-
standers, one carrying a .45 caliber firearm
in his holster and the other carrying a long
firearm. The two men approached the
green Lancer car and handcuffed its driver.
Olimpia only heard the man say: "Bakit"?
He later noticed that the woman was
already seated at the back of the car. These
two men drove the green Lancer car which
was followed by the black car When asked
to identify the three me, Olimpia
unhesitatingly identified Dizon and Manga.

Q Mr. Witness, on April 25, 1990, where
were you employed?
A Security Guard of Nationwide Security &
Investigation Agency.
Q You said you were employed with
Nationwide Security & Investigation
Agency, as Security Guard on said date
where, were you assigned as security
guard?
A At Rotonda Wine Station, sir.
Q Where is this Rotonda Wine Station
located?
A At Timog Ave., sir.
Q What city?
A Quezon City, sir.
Q You said you were employed as security
guard of Rotonda Wine Station, Timog Ave.,
Quezon City, do you have proof to show
that you were a security guard of said
Rotonda Wine Station on April 25, 1990?
A I have, sir, but it is filed with the agency.
Q This Rotonda Wine Station, what
establishments are beside this
establishment, and let us talk first on the
left and then right?
A The left side of Rotonda Wine Station is
the Dayrit Hamburger house and the right is
a drugstore.
Q What was your tour of duty on April 25,
1990?
A 12:00 noon to 12:00 midnight, sir:
Q And did you report for duty on said date?
A Yes, sir.
Q On or about 7:00 to 7:30 o'clock in the
evening of April 25, 1990, what particular
portion or Rotonda Wine Station were you
posted?
A I was at the door, sir.
Q Door of what, front or back?
A Front door of the Rotonda Wine Station,
sir.
Q When you said you were at the front
door, inside the building or outside?
A Outside of the door, sir.
Q You mentioned a while ago that on the
left side of the Rotonda Wine Station where
were posted is the Dayrit Hamburger
House, was there a security guard there?
A Yes, sir.
Q And do you know him?
A Yes, sir.
Q What is his name?
A Anastacio dela Cruz, sir.
Q You stated that at 7:00 to 7:30 in the
evening of April 25, 1990, you positioned
yourself in front or outside the door of
Rotonda Wine Station, did you notice
anything unusual while you were posting
there?
A Yes, sir, there was.
Q What was that unusual incident that took
place, if any?
A There was a vehicle parking in front of
Dayrit Hamburger house.
Q What kind of a vehicle parked there?
A Green Lancer, car, box type.
Q Where was it parked particularly?
A In front of Dayrit Hamburger house, at
the side of the street.
Q Did you notice the passenger of that
green Lancer car?
A No, I did not know them, sir.
Q But did you have the occasion to look and
see them?
A Yes, sir.
Q How many were they?
A Two, sir.
Q Were they male and female?
A Yes, sir, one man and one woman.
Q You said you noticed the car with two
persons boarding it, what happened after
the vehicle parked on the side of the street
in front of the Dayrit Hamburger house?
A After they had parked their vehicle, I
noticed that another car parked behind that
green Lancer car without any plate number.
Q Did you notice what kind of a car was that
which parked behind the seen Lancer car?
A I noticed it was a black car without plate
number but I did not notice the make.
Q What happened after the black car
parked behind the green Lancer car?
A Two men from the black car alighted.
Q What did the two men do after they
alighted?
A After they alighted they announced and
introduced themselves that they were
policemen and they went towards the
green Lancer car.
Q You said they introduced themselves as
policemen, to whom?
A To the people around the vicinity, to the
by-standers.
Q When the two men who introduced
themselves as policemen, did you notice if
they were armed?
A Yes, sir.
Q Please tell us what arm or weapon did
they carry?
A The other one was carrying a 45 firearm
on his holster and the other one was
carrying a long firearm, I do not know what
kind of firearm that long firearm was.
Q This person carrying 45 firearm, could you
still recall him or his figure or feature?
A If I see him again, I could recognize him.
Q But can you describe him before this
Court?
A Yes, sir, he is tall, a little bit dark
complexion and with a little mustache.
Q You said that if you see that person again,
you can recognize him. Will you please look
around the courtroom and point to him if
he is now inside?
A Yes, he is here, sir.
Q If he is here, will you please point to him?
A Yes, I can point to him.
Q Will you please go down from the witness
stand, go to him and tap him on his
shoulder?
A (Witness went down from the witness
stand, went to the person and tap the
shoulder, who when asked of his name
answered as ENRICO DIZON).
Q Go back to the witness stand.
ATTY. CRESCINI:
May we make it of record, Your Honor, that
at the time the witness was asked to
identify Enrico Dizon, there are many
people, at least one hundred in number,
standing inside the courtroom closely to
each other.
FISCAL:
I would like to adopt the same
manifestation, Your Honor.
Q You have identified the person with 45
caliber firearm, the person who was
carrying a long firearm, can you still
recognize him or can you remember his
feature?
A If I could see him again, I can recognize
him.
Q You said that you can see that person
with long firearm again, you can recognize
him, will you look around the courtroom
and tell us if that person you are referring
to is here?
A Yes, he is here.
Q Will you please point to him?
A (Witness pointing to a person inside the
courtroom who when asked of his name
answered as ROBIN MANGA).
Q Now, that you identified the two armed
men who alighted from the black car and
introduced themselves as policemen, what
did these two men do after that?
A They went towards the parked green
Lancer car.
Q And what did they do when they went
towards the green Lancer car?
A They immediately handcuffed the man
driving the green Lancer car.
Q This person who was handcuffed, were
you able to look and see him?
A Yes, sir.
Q Can you still recognize him if you see him
again?
A Yes, sir, I can recognize him if I see him
again.
Q What about a picture, if you are shown a
picture of that man who was handcuffed,
could you still be able to identify him?
A Yes, sir, I can.
Q I am showing to you a picture marked as
Exh. "X-4" please look at this picture and
tell us if you could recognize this picture?
A Yes, sir, I know this person.
Q Who is this person?
A He is Ernesto Bernabe II, sir.
Q What relation has this person in this
picture and the person who was handcuffed
in the evening of April 25, 1990 at the time
you saw him?
A I know, sir, this person in the picture and
the one who was handcuffed refer to one
and the same person.
Q You said that Ernesto Bernabe was
handcuffed, you know where was his
companion at the time, who was a woman?
A I noticed she was already inside the car.
Q What car are you referring, the green
Lancer car or the black car without plate
number?
A The green Lancer car, sir.
Q You said you saw the woman, were you
able to look and see her that evening?
A Yes, sir.
Q Would you still be able to identify her if
you see her again?
A Yes, sir.
Q I am showing to Exh. "X-4" will you look
at this picture, and tell us what relation has
this person in this picture to the one who
was together with the man who was
handcuffed?
A She is the woman I am referring to, sir,
whom I saw inside the green Lancer, they
are one and the same.
Q You said you saw the man whom you
identified as Ernesto Bernabe being
handcuffed by the two policeman, how far
were you from them?
A Five armslength (sic), sir.
Q By the way, this front of Dayrit
Hamburger house and this Rotonda Wine
Store, are they lighted at night?
A Yes, sir.
Q What kind of light illuminates the area?
A Mercury lamp, sir.
Q How many lights are there?
A Many, sir.
Q You said there were lights, in the area
during nighttime, can you describe to us
from your point of comparison in daytime
whether it is bright or not more particularly
at the time of the incident in question?
A It was bright just like daytime, sir.
20


As to the killing of the two victims, Raul
Morales' testimony about what transpired
in the warehouse in the morning of April 26,
1990 satisfied the trial court beyond
reasonable doubt, as being consistent and
credible, sufficient to convict all the accused
for the crime of murder. He testified
positively, that on that fateful morning, two
cars entered the warehouse after he
opened the gate. Lising and Garcia alighted
from the green Lancer car and brought out
from the backseat Cochise and Beebom.
The other black car carried Dizon and
Manga. Soon after, Manalili entered the
gate which was left open by Lising, and
stood beside Beebom. Cochise, whose
hands were tied with a wire was brought to
an area far from Beebom's view. He was
stabbed by Garcia, and then by Lising. After
killing Cochise, the four men carried him
out of the warehouse while Manalili stayed
with Beebom.

The trial court was even more convinced
about the witnesses' credibility after
conducting an ocular inspection of the
scene of the crime.

ATTY. LLORENTE:
Q Now, Mr. Morales, from yesterday's
hearing, you mentioned that at about
2:090, April 26, you were awakened by a
sound of a motor vehicle and somebody
was knocking. Do you recall having stated
that yesterday?
A Yes, I remember that, sir.
Q Now, apart from the sound of the motor
vehicle and the knock at the door, what else
do you recall?
A Somebody called for Aida, Sir.
Q What else?
A I heard somebody said "Aida you open
the door" and she told me "just open the
door, Sir.
Q And what did you do?
A I opened the door, Sir.
xxx xxx xxx
Q After the gate was opened, what
happened?
A Two (2) cars got inside, Sir.
Q Can you describe the first car that
entered the gate.
A The first one that got inside was colored
green, Sir.
Q Do you know the make model or kind of
vehicle that is colored green?
A It was a Lancer car, Sir.
Q Did you notice also who was driving?
A Yes, I saw, Sir.
Q Who?
A It was Roberto Lising, Sir.
Q Was there anybody else inside the car?
A There was, Sir.
Q Who were inside that car?
A One was in front and two were at the
back seat, Sir.
Q The one in front, do you know who was
that?
A Yes, Sir.
Q Who?
A Felimon Garcia, Sir.
Q Was that the first time that you met this
person?
A Felimon Garcia?
ATTY. LLORENTE:
Yes.
A That was the third time, Sir.
Q Why do you know Felimon Garcia?
A Because he is a cousin of Ligaya Fausto,
Sir.
Q Can you please look around the
Courtroom and tell us if you can point to
this Felimon Garcia and if you can, please
do.
That man, Sir.
(Witness pointing to a man in white t-shirt
who when asked answered by the name of
Felimon Garcia).
Q What about the two (2) passengers at the
back of the Lancer car, who were they?
A There was one woman and one man but I
don't know their names, Sir.
Q Let's go to the man. Did you see his
condition? Physical condition, his
appearance?
A Tall, medium built, good-looking and hairy
on the arms. He was wearing white t-shirt
and was in shorts, Sir.
Q What about the condition under which
this person was seated at the back of the
car, can you describe that?
A I was not able to observe how he was
seated, all I know is that I saw him when he
went out of the car, Sir.
Q What about the other passengers, the
woman passenger. Can you describe her.
A She was medium built, she was beautiful
and fair-complexioned "puti".
Q Now, let's go to the second car. Did you
notice the driver of the second car?
A Yes, Sir.
Q Did you recognize this person?
A Yes, Sir.
Q Would you be able to identify, him?
A Yes, Sir.
Q Can you please look around if this person
driving the second car is in this Courtroom
and if so, please point to him.
(witness pointing to a man in white shirt
who when asked answered by the name of
Robin Manga).
Q Was there anybody else inside the second
car aside from the driver?
A There was, Sir.
Q Would you be able to identify that
person?
A Yes, Sir.
Q Can you again look around the Courtroom
and tell us if that person is present and if so,
please point to him.
A (witness pointing to a man in stripe shirt
who when asked answered by the name of
Enrico Dizon).
Q Now, the two (2) cars having entered the
premises, could you please tell us what
happened with these two (2) cars after
entering the premises?
A I saw Roberto Lising went behind the
place of our sleeping quarters and got a
wire, Sir.
xxx xxx xxx
Q How did that woman reach that portion
of the Lancer car? Can you describe that?
A She was brought to that portion by the
companion of Rambo, Sir.
Q Who in particular?
A That man, Sir, (witness pointing to
accused Robin Manga).
Q What about the man, how was he
brought to that portion which you have
identified from the Lancer car?
A It was Roberto Lising who brought him
there, Sir.
Q All by himself?
A They were two (2), Sir.
Q Who's the second aside from Mr. Lising?
A (witness pointing to accused Enrico
Dizon).
Q After the man and the woman were
placed in that position as you described,
what happened?
A Felimon Garcia came out and he was
bringing with him a spade (pala), Sir.
Q Did you notice where Felimon Garcia got
that spade or pala?
A Yes, Sir.
Q Where?
A They got it from the Lancer car, Sir.
Q In what particular portion of the Lancer
car?
A At the back compartment of the car, Sir.
Q Incidentally, Mr. Morales, what happened
to the gate?
Who closed the gate?
A It was they who closed the gate, Sir.
Q Did anybody else arrive?
A Yes, there were, Sir.
Q Who?
(witness pointing to accused Rodolfo
Manalili) witness pointed to a man in
eyeglasses who when asked answered by
the name of Rodolfo Manalili.
Q Now, this person that you said arrived,
how did he arrive?
A When he arrive, he went direct to the
woman and talked with the woman, Sir.
Q Did you hear any conversation between
that man as you identified as accused
Manalili to the woman that you pointed to
here in the sketch?
A I only heard "Don't harm us. We have
done no wrong".
COURT:
Who said that?
A It was the woman, Your Honor.
Q Did you hear how the woman address
this man that you have identified as
accused Manalili?
A Yes, Sir.
Q How?
A Uncle, please pity us. We have done no
wrong.
ATTY. LLORENTE:
Your Honor please, we heard the witness
stating this time in tagalog and could be
corrected by the counsels for the accused.
May we respectfully request, Your Honor,
that that particular portion stated by the
witness in tagalog be placed on record also
in tagalog.
COURT: Place that on record.
A Uncle, parang awa mo naman, wala
naman kaming kasalanan.
Q Did you hear Mr. Manalili say anything
when you heard this plea by the woman?
A I heard nothing, Sir.
Q At that time when this plea was being
made, what happened to the person beside
the woman? I am referring to the accused
that you have identified as Manga. What
happened to him?
A He was tying her with a wire, Sir.
Q Now, let's go back to the man. What
happened to him?
A Also, he was tied with a wire, Sir.
Q Let's talk about accused Lising. Before,
this man that you have identified was being
tied with the wire, what did Mr. Lising do?
A He got wire, Sir.
Q Where?
A From here, Sir.
ATTY. LLORENTE:
For the record, Your Honor, witness pointed
to the clothesline wire that he previously
drew that were attached to hut no. 1.
Q What else did Mr. Lising do apart from
getting . . . securing those laundry wires?
A They got the handcuff and then tied them
with the wire, Sir.
Q From this area where Mr. Lising got these
laundry wires, where did he go?
A He went towards the man, Sir.
Q And when he was beside the man, what
did he do?
A He took off the handcuff of the man and
tied the man with the wire, Sir.
Q Did he remove the handcuff, tied the man
with the wire all by himself?
A They were two (2), Sir.
Q Who is the other person helping Lising?
A (witness pointed to Enrico Dizon)
Q Could you demonstrate to us how were
the hands of this man tied with the laundry
wire?
A Yes, Sir.
Q Please show us, Mr. Morales.
(witness placing his two arms behind his
waist with crossed wrists)
Q Mr. Morales, for clarification. In the event
that you know subsequently, much, much
later, did you ever come to know who was
that man tied with his hands at the back
that you have just demonstrated? Did you
ever come to know his name later?
A Yes, Sir.
Q Who?
A Cochise and Beebom, Sir.
Q What about Beebom? You mentioned
Beebom. Who is this Beebom? Who is that
Beebom in relation to the person that you
have described in that area present at that
time?
A They were sweethearts, Sir.
Q Let me just refer you to the woman that
was brought out of the green car, Lancer
car. Did you ever come to know his name
later on?
A When I read it from the newspaper, Sir.
Q And what was the name that you were
able to read from the paper that made you
identified that woman from the Lancer car?
A Beebom, Sir.
Q What is the complete name?
A Beebom Castaos, Sir.
Q What about the man. Did you also get her
complete name?
A Yes, Sir.
Q What is his complete name?
A Cochise Bernabe, Sir.
Q Now, after this man that you have just
identified as Cochise Bernabe, after his
hands were tied at the back, what else did
Mr. Lising and Mr. Dizon do with this man?
A Felimon went inside the bodega, Sir.
Q And what did Felimon do?
A After that, he went towards Lising, Sir.
Q And when Felimon approached Lising,
what happened?
A Felimon was given a knife, Sir. (witness in
the vernacular said "kutsilyo").
Q What did Felimon do with the knife?
A They went towards the man, Sir.
Q And what happened?
A Then he stabbed the man once, Sir.
Q How? Can you demonstrate?
A Yes, Sir.
ATTY. LLORENTE:
Please do.
(witness demonstrating by placing his left
hand on the height of his shoulder and
making a thrust by his left hand forward).
Q What else happened after what you had
demonstrated happened?
A Rambo grabbed and took the knife from
Felimon, Sir.
Q And what did Rambo do with the knife?
A He also stabbed the man, Sir.
ATTY. LLORENTE:
Can you demonstrate to us how did he do
this?
A Yes, Sir. (witness demonstrating by
putting his left hand forward at the height
of his shoulder and making a forward thrust
by his right hand several times).
Q Did you notice what portion of Cochise
was stabbed when Lising was doing this?
A Yes, Sir.
Q Where?
A Inside the bodega, Sir. "Sa may bodega".
xxx xxx xxx
21


The defense, however, would discredit the
testimony of Raul Morales alleging that he
was not a credible witness considering that
there were inconsistencies and
improbabilities in his testimony. To them,
he was a rehearsed witness, since he was
taken from the NBI to the residence of
Governor Remulla's son, a good friend of
Cochise, as sanctuary during the trial of this
case.

Some of the inconsistencies pointed out are
as follows: (1) in the sworn statement,
Morales claimed that the black car driven
by Lising entered the compound ahead
followed by the green Lancer car driven by
Garcia while he stated in his testimony in
court that the green Lancer car was first to
enter, driven by Lising with Garcia in the
passenger seat followed by the black car
with Manga and Dizon on board; (2) in his
statement, Morales indicated that he did
not see the actual killing of Cochise since
the victim was brought out, while he
testified in court that Garcia and Lising
stabbed the victim inside the compound; (3)
Morales made mention of a total of five
persons, including the two victims, in the
early morning of April 26, while in court, he
identified the five accused seen with the
two victims.

It has been held that inconsistencies and
discrepancies in the testimony referring to
minor details and not upon the basic aspect
of the crime do not impair the witnesses'
credibility.
22
These inconsistencies even
tend to strengthen, rather than weaken, the
credibility of witnesses as they negate any
suspicion of a rehearsed testimony.
23


The defense finds it also improbable for
Morales to have witnessed the events at
such a vantage point from the steps of the
hut, since the perpetrators of a crime would
not unnecessarily expose themselves in
committing the act to prevent possible
identification.

Obviously, it never occurred to Lising at the
time that Morales, who was under his
control and who was afraid of him, would
ever testify against him.

Manalili makes capital of the fact that
Morales did not mention him at all in his
prior sworn statement as being present at
the scene of the crime. For Manalili, the
omission of his name was a significant
development as it appeared improbable
that a vital witness will miss out an alleged
perpetrator if indeed he was present at the
scene of the crime.

Raul Morales himself admitted later on that
there were omissions in his sworn
statement made before the CAPCOM
because he was afraid of his employer
Lising and his companions. Understandably,
he was reluctant to volunteer all the
information about the killing for fear that
he would suffer the same fate of Cochise
and Beebom. The initial reluctance of
witnesses to volunteer information about a
criminal case and their unwillingness to be
involved in the criminal investigation is of
common knowledge and has been judicially
declared as insufficient to affect
credibility.
24
Besides, at that time, Raul
Morales was merely concerned with
bringing out his story without really paying
particular attention to the details. He
related the his employer Lising and
companions brought a man and a woman to
their warehouse and killed them both. He
saw Cochise's face on the papers and
recognized him to be the man whom
Lising's group killed. Morales only
mentioned Lising and Garcia's names in his
sworn statement because they were the
only ones known to him. Such omission and
discrepancies should not be taken against
him. It bears emphasis that a sworn
statement or an affidavit does not purport
to be a complete compendium of the
details of the event narrated by the
affiant.
25
It is a matter of judicial experience
that a sworn statement being taken ex
parte is almost always incomplete and often
inaccurate. Thus, discrepancies between
the statements of the affiant in his sworn
statement and those made on the witness
stand do not necessarily discredit
him.
26
There is no rule of evidence to the
effect that omission of certain particulars in
an affidavit or sworn statement would
estop an affiant in making an elaboration
thereof during the trial.
27
Whenever there
is an inconsistency between the affidavit
and testimony of the witness, the latter
commands greater weight.
28

Roberto Lising discredits Raul Morales as
having a motive in implicating him to the
crime since "he quelled a rally staged by
Morales who was the most arrogant and
stubborn of Fausto's employees, seeking an
increase in pay". As pahinante in their LPG
business, Morales, according to Lising, was
oftentimes reprimanded for not doing his
job well and held responsible for lost gas
tanks.

The motive imputed to Morales is as far-
fetched as it is unsubstantiated. It is highly
unlikely that Morales, a mere pahinante, if
he were arrogant and stubborn, would be
tolerated by Lising, the live-in partner of
Fausto.

By and large, the defenses raised by the
accused do not persuade us. When it comes
to the issue of credibility of the witnesses,
appellate courts give much weight and
respect to the findings of the trial court
since the trial court is in the better position
to examine real evidence as well as observe
the demeanor of the witnesses.
29
With the
eyewitnesses' account of Froilan Olimpia
and Raul Morales, the culpability of the
accused for the crimes charged have been
established.

This brings us to the third issue of whether
or not there was conspiracy.

Conspiracy is a unity of purpose and
intention in the commission of a
crime.
30
Where two or more persons come
to an agreement concerning the
commission of a felony and decide to
commit it then conspiracy exists. While
direct evidence is not necessary, conspiracy
may be inferred from and proven by acts of
the accused themselves when during and
after said acts point to a joint purpose and
design, concerted action and community of
interest.
31


Undoubtedly, the trial court did not err in
finding the existence of conspiracy in this
case. With the interlocking confessions of
Manalili, Garcia and Lising, the group came
to an agreement to effect the arrest of
Robert Herrera for a considerable sum of
P50,000.00. The stake-out at the Castaos
residence, the tailing of the car, the
abduction at Dayrit's Ham and Burger
Restaurant and the detention in the Valle
Verde Motel and the subsequent killing of
the two victims all show that all the accused
acted in unison and cooperated with each
other towards the accomplishment of a
common criminal design. Where conspiracy
is established, the act of one is the act of all.

Garcia, for his part, prays that his liability be
mitigated on grounds of lack of intent or
motive, acts made under the compulsion of
an irresistible force, and voluntary
surrender, which if considered would make
him merely an accomplice to the crime.
Unfortunately, these defenses are
unavailing.

To be exempt from criminal liability, a
person invoking irresistible force or
uncontrollable fear must show that the
force exerted was such that it reduced him
to a mere instrument who acted not only
without will but against his will.
32
That
compulsion must be of some character as to
leave the accused no opportunity for self-
defense in equal combat or for escape.
33


Garcia's participation and presence from
the time the abduction was hatched, up to
the killing of the victims is undisputed. He
was very well aware of Manalili's plans. He
was instrumental in introducing Lising to
Manalili. Likewise, Lising's intentions to
silence both Cochise and Beebom at the
end upon realizing an alleged mistake was
known to him. He did not do anything to
deter the commission or to report the
crimes immediately thereafter. In fact, he
stated that he and Lising saw each other
after the incident but never mentioned
anything about it, which only goes to show
their intention of concealing the crime. Only
after several months of being hunted, did
he send feelers for his surrender.

Where conspiracy is established, the precise
modality or extent of participation of each
individual conspirator becomes secondary
since the act of one is the act of all.
34
The
degree of actual participation in the
commission of crime is immaterial.
In People v. Degoma, the Court explained:

. . . One who joins a criminal conspiracy in
effect adopts as his own the criminal
designs of his co-conspirators; he merges
his will into the common felonious intent. A
person who embraces a criminal conspiracy
is properly held to have cast his lot with his
fellow conspirators and to have taken his
chances that things may go awry and that
the offended party may resist or third
persons may get killed in the course of
implementing the basic criminal design. To
free himself from such criminal liability, the
law requires some overt act on the part of
the conspirator, to seek to prevent
commission of the second or related felony
or to abandon or dissociate himself from the
conspiracy to commit the initial felony.
(People v. Salvador, 163 SCRA 574, 580-582
[1988]; People vs. Bazar, 162 SCRA 609, 617
[1988]; People v. Escober, 157 SCRA 541,
567 [1988]; People v. Pelagio, 20 SCRA 153,
159-160 [1967] (Emphasis supplied).
35


For the same reasons, Manalili can not
likewise be exonerated from the crime. We
have examined carefully the arguments of
the Solicitor General in urging Manalili's
acquittal, but the facts and circumstances
surrounding the case do not support his
stand.

We find it difficult to accept Manalili's
contention that he had contracted the
services of policemen to effect the "legal
arrest" of Robert Herrera, the main suspect
in the killing of his brother, Delfin Manalili.
Equally preposterous is his assertion that
upon arriving at the Valle Verde Hotel in
San Fernando, Pampanga, he realized there
was a mistake in the identities of the
persons arrested, so he insisted that they
be released. Neither is there factual basis to
his claim that he had every reason to
protect the life of Beebom, in particular,
since the latter is a principal witness against
Robert Herrera, the suspect in the shooting
of his brother.

In the first place, why did he take it upon
himself to employ persons unknown to him
to effect the "arrest" of Herrera? The
warrant of arrest of Herrera, if one was
really issued, was never presented in
evidence. In the second place, the
surreptitious meeting of Manalili with Lising
arranged by Garcia, the surveillance or
stake out of the Castaos' residence, the
manner of abduction where the victims
were blindfolded, handcuffed and gagged at
Valle Verde Motel, cannot certainly be
considered as acts in the regular
performance of their duties as policemen.
Thirdly, if it was true that Manalili just
wanted the arrest of Robert Herrera, why
did he have to seek the assistance of
Pampanga policemen? It would have been
more logical and expedient to have utilized
the NBI or Quezon City Police especially
when the alleged warrant of arrest was
issued by a Quezon City court. After all, it
was not difficult to locate Robert Herrera as
he was reportedly frequenting the
Castaos' residence in Quezon City.
Fourthly, it does not stand to reason why
the victims were taken to Pampanga after
allegedly being arrested in Quezon City. It
would have been more cogent for the
appellants to have delivered the victims to
the nearest station of the Quezon City
Police Department considering that the
warrant of arrest was allegedly issued by a
Quezon City court. If arrest was really in the
minds of the accused, why did they hole-up
with the victims in a motel when they
arrived in Pampanga? Finally, if they were
bent on legally arresting one Roberto
Herrera, it was not necessary for them to
also take into custody the woman
companion of the person they mistook as
Herrera.

All these only show that Manalili has
premeditated in his mind a more sinister
plot than merely effecting a "legal arrest."

It is an unmitigated absurdity for Manalili to
pretend that upon his realization of the
mistake in their "arrest," he insisted upon
the release of the victims since he had
every reason to keep Beebom alive. If he
had just a bit of concern for Beebom's
safety, why did Manalili leave for Manila
without bringing her and Cochise with him
to make sure that no harm would befall
them, knowing fully well of Lising's resolve
just revealed to him to silence both victims?
What should be nearer the truth is that
Beebom and Cochise became aware of
Manalili's presence at the motel together
with the other accused and this was the
added reason why the two had to be
eliminated, to do away with having to
explain why he was at the scene. His
pretension that he wanted to keep Beebom
from harm's way because she was to have
testified in the prosecution of his brother
rings hollow. It cannot be assumed that had
she lived she would have testified in court
and pointed to Robert Herrera as the killer
of Manalili's brother.

In any case, assuming the remote
possibility, the mistake in the identity of the
victims does not exonerate Manalili
pursuant to the rule that one who performs
a criminal act should be held liable for the
act and for all its consequences although
the victim was not the person whom the
fellow intended to injure.
36


We are reminded of the rule that the
conviction must not rest on the weakness of
the defense but on the strength of the
prosecution's evidence. In the instant case,
apart from its interlocking sworn
statements of appellants, Raul Morales'
positive testimony that he saw Manalili
enter the bodega, and stand beside
Beebom, while Cochise was being killed,
convinces us with moral certainty that
Manalili is equally guilty of the crimes
charged. His presence in the warehouse
clearly belies his claim that from the motel,
he left for Manila already. As against the
positive testimony and identification, mere
denials of the accused cannot prevail to
overcome conviction by the court.
37
The
inaction of Manalili where he could have
prevented the killings only reveal his
complicity to the crime. Manalili is certainly
part of a complete whole without whom
there would be no Cochise-Beebom double
murder case.

Furthermore, the decision of the trial court
exonerating Manalili and Garcia for the
crime of Kidnapping and finding the rest of
the accused guilty for the crime of Slight
Illegal Detention only does not escape us.
There being conspiracy, all the accused
should be equally guilty for the crimes as
charged. Unfortunately, we can no longer
convict Manalili and Garcia for Kidnapping
in consonance with the constitutional right
against double jeopardy. Nonetheless, they
stand to suffer the penalty of Reclusion
Perpetua for the double murder. The crime
of Slight Illegal Detention should be
qualified to Serious Illegal detention under
Article 267 of the Revised Penal Code
considering that a female victim was
involved.

WHEREFORE, this Court hereby renders
judgment as follows:
1. The decision of the lower court
finding accused Rodolfo Manalili,
Roberto "Rambo" Lising, Felimon
Garcia, Robin Q. Manga and Enrico
Dizon guilty beyond reasonable
doubt of the crime of double murder,
including their civil liability is hereby
AFFIRMED in toto, and
2. The decision of the lower court
finding accused Roberto "Rambo"
Lising, Enrico Dizon, and Robin Manga
guilty of the crime of slight illegal
detention aggravated by the use of
motor vehicle is hereby MODIFIED, in
that the said accused are hereby
declared guilty of the crime of
Kidnapping under Article 267(4) of
the Revised Penal Code, and are
hereby sentenced to suffer the
penalty of reclusion perpetua.
SO ORDERED.








G.R. No. L-30423 November 7, 1979

THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
RAMIRO ALEGRE y CERDONCILLO, MARIO
COMAYAS y CUDILLAN, MELECIO
CUDILLAN y ARCILLAS, and JESUS MEDALLA
y CUDILLAN, defendants-appellants.

ANTONIO, J.:
This is an automatic review of a decision of
the court of First Instance of Rizal, Seventh
Judicial District, Branch VII, Pasay City
finding all the accused, namely, Ramiro
Alegre y Cerdoncillo, Mario Comayas y
Cudillan, Melecio Cudillan y Arcillas and
Jesus Medalla y Cudillan, guilty of the crime
of Robbery with Homicide and sentencing
them as follows:

WHEREFORE, this Court finds accused
Melecio Cudillan, ,Jesus Medalla, Ramiro
Alegre, and Mario Comayas guilty beyond
reasonable doubt of ROBBERY WITH
HOMICIDE, committed with four (4)
aggravating circumstances, not offset by
any mitigating circumstance, and hereby
sentences all of them to suffer the penalty
of death, to be carried out pursuant to the
applicable provisions of law, to indemnify
jointly and severally the heirs of Adlina Sajo
in the amount of P350,000.00, representing
the value of the pieces of jewelry
unrecovered, to pay jointly and severally
also the heirs of Adelina Sajo the amount of
P12,000.00. and to pay the costs.

With or without appeal, let this case be
elevated to the Supreme Court for review,
pursuant to law.

During the pendency of this appeal, Melecio
Cudillan died on arrival at the New Bilibid
Prison Hospital on August 16, 1970, and the
case as against the said accused, insofar as
his criminal liability is concerned, was
dismissed on August 29, 1974. This decision,
therefore, is limited to appellants Ramiro
Alegre, Mario Comayas and Jesus Medalla.

This case arose from the death of Adelina
Sajo y Maravilla, Spinster, 57 years old,
whose body was found in her bathroom
inside her house at the Maravilla
compound, Ignacio Street, Pasay City, in the
early morning of July 26, 1966. According to
the Necropsy Report, she died of asphyxia
by manual strangulation, and the time of
her death was placed between eighteen to
twenty-two hours before 12:30 p.m. of July
26, 1966.

Her bedroom was in "shambles," evidently
indicating that it was ransacked. The
drawers and several cabinets were open,
and some personal garments, hadbags and
papers were scattered on the floor. No
witness saw the commission of the crime.
Appellant Ramiro Alegre, who was then
living with relatives in one of the rented
rooms on the ground floor of the victim's
house, was taken to the Pasay City police
headquarters for investigation in
connection with the case, but was later
released that same day for lack of any
evidence implicating him in the crime.

During the latter part of July, 1966, Melecio
Cudillan was apprehended in Tacloban City,
Leyte, in the act of pawning a bracelet, one
of the pieces of jewelry taken from the
victim. In explaining how he came into
possession of the stolen pieces of jewelry,
he admitted his participation in the killing
and robbery of Adlina Sajo. This appears in
his extrajudicial confession before the
police authorities of Tacloban City on July
29, 1966 (Exhibits "F", "F-1" and "F-2"). In
this statement, which was written in the
English language, Melecio Cudillan
implicated a certain "Esok" of Villalon,
Calubian, Leyte; Jesus Medalla, of
Villahermosa, Calubian, Leyte; Mario
Cudillan, also of Villahermosa, Calubian,
Leyte; one "Danny" Fernandez, of Balaquid,
Cabucgayan, Biliran Sub-province; and one
"Rammy, " another Leyteno. When brought
to Metro Manila and while he was inside
the Pasay City police headquarters, Melecio
Cudillan again executed an extrajudicial
confession (Exhibits "A ", "A-1 " to "A-6" on
July 31, 1966. This was sworn to before the
Assistant City Fiscal of Pasay City on August
1, 1966. In this second statement, he
narrated in detail the participation in the
commission of the crime of Jesus Medalla,
"Celso" Fernandez, "Rami" and "Mario."
According to said statement, the declarant
went near the cell within the Office of the
Investigation Section, Secret Service
Division, and Identified Ramiro Alegre, Jesus
Medalla and Mario Comayas as the persons
he referred to as Jesus Medalla, "Rami" and
"Mario" in his declaration. On the basis of
the aforementioned extrajudicial confession
of Melecio Cudillan, an Information for
Robbery with Homicide was filed by the
Special Counsel of Pasay City against Celso
Fernandez, alias "Esok," Jesus Medalla y
Cudillan, Ramiro Alegre y Cerdoncillo, Mario
Comayas y Cudillan, Melecio Cudillan y
Arcillas, and one John Doe."

When arraigned on August 10, 1966, Mario
Comayas, Melecio Cudillan, Jesus Medalla
and Ramiro Alegre entered a plea of not
guilty. The prosecution presented nine (9)
witnesses. None of them, however, testified
on the actual commission of the crime. The
recital of facts contained in the decision
under review was based principally and
mainly on the extrajudicial confessions of
Melecio Cudillan. Thus, the details of the
planning and the execution of the crime
were taken from the "Pasay Sworn
Statement" (Exhibits "A", "A-1" to "A-6").
The only evidence, therefore, presented by
the prosecution to prove the guilt of
appellants are the testimonies of Sgt.
Mariano Isla and Hernando Carillo.

The testimony of Sgt. Mariano Isla of the
Pasay City police is to the effect that when
he was investigating Melecio Cudillan, the
latter pointed to Ramiro Alegre, Mario
Comayas and Jesus Medalla as his
companions in the commission of the
crime. According to him, said appellants
"just stared at him (Melecio Cudilla) and
said nothing."

Q. In what particular place in the Police
Department did you have to confront the
accused Melecio Cudillan with the other
suspects'?
A. In the office of the Secret Service
Division.
Q. When you said there was a confrontation
between the accused Melecio Cudillan and
other suspects whom do you refer to as
other suspects?
A. Jesus Medalla, Celso Fernandez, Rosario
Dejere and Mario. There was another
person Eduardo Comayas. He was also one
of those suspects but Melecio Cudillan
failed to point to him as his companion.
Q. Who were those persons or suspects
pointed to by Melecio Cudillan in the Police
Department of Pasay City as his
companions?
A. To Jesus Medalla, Ramiro Alegre and
Mario Comayas.
Q. When Melecio Cudilla pointed to these
persons what did these three persons do?
A. They just stared at him and said nothing.
(t.s.n., pp. 15-16, Hearing of October 28,
1966).
According to the trial court, had the
appellants "really been innocent (they)
should have protested vigorously and not
merely kept their silence."
Hernando Carillo, a detention prisoner in
the Pasay City jail, declared that the three
(3) appellants admitted to him that they
took part in the robbery and homicide
committed in the residence of the
deceased, viz.:
ATTY. DEPASUCAT:
Q. Do you know the other accused Ramiro
Alegre?
A. Yes, sir.
Q. If he is inside the court room, will you
please point him out?
INTERPRETER:
Witness points to the fellow in the second
row, fourth from the left who, upon being
asked, gave his name as Ramiro Alegre.
ATTY. DEPASUCAT:
Q. Did you have any occasion to talk to
Ramiro Alegre?
A. Yes, sir.
Q. Where?
A. In the city jail because our cells are also
near each other.
Q. And what did you and Ramiro Alegre talk
about?
A. Concerning his case and he told me that
he has also anticipated in the commission of
the killing of Adelina Sajo.
Q. By the way, when did you talk with
Ramiro Alegre, more or less?
A. About the middle of June.
Q. And what else did Ramiro Alegre tell you,
if any?
A. That he was also inside the room when
they killed Adelina Sajo.
Q. Now, regarding that conversation you
had with the accused Jesus Medalla, when
did that take place, more or less?
A. About that month also of June, about the
middle of June.
Q. What year?
A. 1967.
Q. Do you know the other accused Mario
Comayas?
A. Yes, sir.
Q. Why do you know him?
A. He is also one of the prisoners and our
cells are near each other. Q. If he is inside
the courtroom, will you please point him
out?
INTERPRETER:
Witness indicating to the fellow who gave
his name as Mario Comayas.
ATTY. DEPASUCAT:
Q. Did you have any occasion to talk with
the accused Mario Comayas?
A. Yes, sir.
Q. When was that, more or less?
A. In the month of June, about the middle
part also of June.
Q. And what did you talk about?
A. Regarding this case of Adelina Sajo and
he admitted to me that he was one of those
who planned and killed Adelina Sajo.
Q. I see! And what, else did he tell you, if
any?
A. That while the killing was being
perpetrated upstairs he was told to by the
door.
Q. How about the other accused Melencio
Cudillan, do you know him?
A. Yes, sir.
Q. If he is in court, will you please point him
out?
INTERPRETER:
Witness pointing to the accused who gave
his name as Melecio Cudillan.
ATTY. DEPASUCAT:
Q. Why do you know Melecio Cudillan?
A. Because he is with me in one cell.
Q. Were you able also to talk with Melecio
Cudillan?
A. Most of the time because we used to talk
about our case.
Q. When have you talked with Melecio
Cudillan, more or less?
A. Three days after my confinement and
subsequently thereafter up to about the
first week of June, 1967.
Q. And what did the accused Melecio
Cudillan tell you about this case?
ATTY. RAMIREZ:
Objection, Your Honor, leading.
COURT:
Witness may answer, there is already a
basis.
A. That they were the ones who planned
and killed Adelina Sajo. (t.s.n., pp. 286-289,
Hearing of July 21, 1967).
However, during the trial, Melecio Cudillan
repudiated both the Tacloban City and
Pasay City sworn statements as the product
of compulsion and duress. He claimed that
he was not assisted by counsel when he
was investigated by the police. Appellants
Jesus Medalla and Mario Comayas denied
any involvement in the crime. They testified
that at the time of the incident in question.
they were attending the internment of the
deceased child of Ciriaco Abobote.
According to Jesus Medalla, he and his
companions left the Maravilla compound at
10:00 o'clock in the morning of July 25,
1966 to attend the internment. 'They left
the cemetery at about 5:00 o'clock in the
afternoon and proceeded directly to his
house at Leveriza Street where he stayed
the whole night. Mario Comayas confirmed
that he and Jesus Medalla were at the
house of Ciriaco Abobote in the morning of
July 25, 1966, until after 5:00 o'clock in the
afternoon when he returned to the bakery
where he was employed to resume his
work.

Appellant Ramiro Alegre did not testify but
presented three (3) witnesses to support his
defense. Thus, Urbano Villanueva testified
that he was a sub-contractor of Jose Inton
for the welding project of David M. Consunji
at the Sheraton Hotel construction; that
Ramiro Alegre began working at the
construction as a welder on July 13, 1966,
and that from 7:00 o'clock in the morning to
4:00 o'clock in the afternoon, Alegre
worked in the project and that he knew this
because he is the foreman and timekeeper
in the project. He Identified the Time
Record of Ramiro Alegre (Exhibit "1").
Rodolfo Villanueva and Romeo Origenes
testified that from 7:00 o'clock in the
morning up to 4:00 o'clock in the afternoon
of July 25, 1966, appellant Ramiro Alegre
was at the Sheraton Hotel construction at
Roxas Boulevard. Their testimony is
confirmed by the Time Record of Ramiro
Alegre (Exhibit "1") which contained the
number of hours he actually worked at the
Sheraton Hotel construction project.

Appellants now contend that the lower
court erred in utilizing the extrajudicial
confessions of Melecio Cudillan (now
deceased) as evidence against herein
appellants; in concluding from the alleged
"Silence" of appellants when allegedly
pointed to by Melecio Cudillan as "his
companions" in the commission of the
crime, an admission of guilt; and in giving
undue weight and credence to the
testimony of an inmate of the Pasay City Jail
that appellants admitted to him their
participation in the crime.

I
The extrajudicial confessions of Melecio
Cudillan (Exhibits "A", "A- I " to "A-6" and
"F", "F-1" and "F-2"), on the basis of which
the trial court was able to reconstruct how
Melecio Cudillan committed the crime in
question, cannot be used as evidence and
are not competent proof against appellants
Ramiro Alegre and Jesus Medalla, under the
principle of "res inter alios acta alteri nocere
non debet"
1
there being no independent
evidence of conspiracy.
2
As a general rule,
the extrajudicial declaration of an accused,
although deliberately made, is not
admissible and does not have probative
value against his co- accused. It is merely
hearsay evidence as far as the other
accused are concerned.
3
While there are
recognized exceptions to this rule, the facts
and circumstances attendant in the case at
bar do not bring it within the purview of
such exceptions. The only evidence,
therefore, linking the appellants to the
crime would be their purported tacit
admissions and/or failure to deny their
implications of the crime made by Melecio
Cudillan, and/or their purported verbal
confessions to Hernando Carillo, an inmate
of the Pasay City jail.

II
The next question to be resolved is whether
or not the silence of appellants while under
police custody, in the face of statements of
Melecio Cudillan implicating them as his
companions in the commission of the
crime, could be considered as tacit
admission on their part of their
participation therein.

The settled rule is that the silence of an
accused in criminal cases, meaning his
failure or refusal to testify, may not be
taken as evidence against him,
4
and that he
may refuse to answer an incriminating
question.
5
It has also been held that while
an accused is under custody, his silence may
not be taken as evidence against him as he
has a right to remain silent; his silence
when in custody may not be used as
evidence against him, otherwise, his right of
silence would be illusory.
6
The leading case
of Miranda v. Arizona
7
held that the
prosecution may not use at trial the fact
that an individual stood mute, or claimed
his privilege against self-incrimination, in
the face of an accusation made at a police
custodial interrogation. Prior to Miranda, it
was the view of many authorities that a
man to whom a statement implicating him
in a crime is directed may fail to reply if he
is in custody under a charge of the
commission of that crime, not because he
acquiesces in the truth of the statement,
but because he stands on his constitutional
right to remain silent, as being the safest
course for him to pursue and the best way
out of his predicament.
8
Other courts have
held that the circumstance that one is
under arrest by itself does not render the
evidence inadmissible, and that an
accusation of a crime calls for a reply even
from a person under arrest or in the
custody of an officer, where the
circumstances surrounding him indicate
that he is free to answer if he chooses.
9

We hold that the better rule is that the
silence of an accused under custody, or his
failure to deny statements by another
implicating him in a crime, especially when
such accused is neither asked to comment
or reply to such implications or accusations,
cannot be considered as a tacit confession
of his participation in the commission of the
crime. Such an inference of acquiescence
drawn from his silence or failure to deny
the statement would appear incompatible
with the right of an accused against self-
incrimination.

The right or privilege of a person accused of
a crime against self- incrimination is a
fundamental right. It is a personal right of
great importance and is given absolutely
and unequivocably. The privilege against
self-incrimination is an important
development in man's struggle for liberty. It
reflects man's fundamental values and his
most noble of aspirations, the unwillingness
of civilized men to subject those' suspected
of crime to the cruel trilemma of self-
accusation, perjury or contempt; the fear
that self-incriminating statements may be
obtained by inhumane treatment and
abuses, and the respect for the inviolability
of the human personality and of the right of
each individual "to a private enclave where
he may lead a private life."
10

In the words of Chavez v. Court of
Appeals:
11

... this right is 'not merely a formal technical
rule the enforcement of which is left to the
discretion of the court;' it is mandatory; it
secures to a defendant a valuable and
substantive right; it is fundamental to our
scheme of justice ...

Therefore, the court may not extract from a
defendant's own lips and against his will an
admission of his guilt. Nor may a court as
much as resort to compulsory disclosure,
directly or indirectly, of facts usable against
him as a confession of the crime or the
tendency of which is to prove the
commission of a crime. Because, it is his
right to forego testimony, to remain silent,
unless he chooses to take the witness stand
with undiluted, unfettered exercise of his
own free, genuine will.
It must be stressed here that even under a
regime of martial law, the operations of our
laws governing the rights of an accused
person are not open to doubt. Under the
code for the administration of detainees, all
officers, civilian and military personnel are
sworn to uphold the rights of detainees.
Among such fundamental rights are the
right against compulsory testimonial self-
incrimination, the right, when under
investigation for the commission of an
offense, to remain silent, to have counsel,
and to be informed of his rights; the right
not to be subjected to force, violence,
threats, intimidation and degrading
punishment or torture in the course of
one's detention, and the safeguard that any
confession obtained in violation of the
foregoing rights shall be inadmissible in
evidence.
12
The 1973 Constitution gives
explicit constitutional sanction to the right
to silence. Thus, in Section 20 of Article IV
of the Constitution, there is this categorical
mandate: "Any person under investigation
for the commission of an offense shall have
the right to remain silent and to counsel,
and to be informed of such right. No force,
violence, threat, intimidation, or any other
means which vitiates the free will shall be
used against him. Any confession obtained
in violation of this section shall be
inadmissible in evidence."

This privilege against self-incrimination
guaranteed by the Constitution protects,
therefore, the right of a person to remain
silent unless he chooses to speak in the
unfettered exercise of his own will, and to
suffer no penalty for such silence.
13

This aspect of the right has been
comprehensively explained by then
Associate Justice Enrique M. Fernando, now
Chief justice, in Pascual Jr. v. Board of
Medical Examiners,
14
thus

The constitutional guarantee protects as
well the right to silence. As far back as
1905, we had occasion to declare: 'The
accused has a perfect right to remain silent
and his silence cannot be used as a
presumption of his guilt.' Only last year, in
Chavez v. Court of Appeals, speaking
through Justice Sanchez, we reaffirmed the
doctrine anew that it is the right of a
defendant 'to forego testimony, to remain
silent, unless he chooses to take the witness
stand with undiluted, unfettered exercise
of his own free, genuine will.'

Identifying the right of an accused to
remain silent with right to privacy, this
Court, in Pascual explained that the
privilege against self-incrimination "enables
the citizen to create a zone of privacy which
government may not force to surrender to
its detriment."

We hold, therefore, that it was error for the
trial court to draw from appellants' silence
while under police custody, in the face of
the incriminatory statements of Melecio
Cudillan, the conclusion that the aforesaid
appellants had tacitly admitted their guilt.
We hold, further, that in view of the
inadmissibility of the extrajudicial
confession of Melecio Cudillan implicating
herein appellants, the remaining evidence
against them, consisting in the testimonies
of Sgt. Mariano Isla and Hernando Carillo, is
insufficient to sustain the judgment of
conviction. Indeed, it is inherently
improbable that herein appellants would
have readily confessed their participation in
the commission of a heinous crime to a
casual acquaintance in a prison detention
cell, considering that on the same occasion
they strongly denied any involvement in
such crime before the police authorities.

WHEREFORE, the judgement appealed from
is reversed, and appellants Ramiro Alegre y
Cerdoncillo, Mario Comayas y Cudillan and
Jesus Medalla y Cudillan are hereby
ACQUITTED of the crime with which they
are charged. Their immediate release from
detention is ordered, unless they or any one
of them is otherwise held for some other
lawful cause.
SO ORDERED.




G.R. No. 120093 November 6, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
DAVID GARCIA y QUITORIO, accused-
appellant.

REGALADO, J.:
Accused-appellant David Garcia was found
guilty beyond reasonable doubt of having
raped herein complainant Jackielyn Ong,
1
a
minor, one hundred eighty-three (183)
times during the period from November,
1990 up to July 21, 1994, and was
correspondingly sentenced to suffer one
hundred eighty-three (183) penalties
ofreclusion perpetua and to indemnify
complainant in the amount of P50,000.00
as moral damages.

In an information dated July 25, 1994,
appellant Garcia was charged with the
crime of multiple rape allegedly committed
as follows:

That from November 1990 up to July 21,
1994, in the City of Olongapo, Philippines,
and within the jurisdiction of this Honorable
Court, the above-named accused, did then
and there wilfully, unlawfully and
feloniously have multiple carnal knowledge
of one Jackielyn Ong, a minor about twelve
(12) years old, to the damage and prejudice
of the latter.

Complainant Jackielyn Ong and her younger
brother, Darwin, had been abandoned by
their mother since birth and when their
father Danilo Ong died, the latter's sister,
Elizabeth Ong, took them under her care
and custody. Jackielyn, who was born on
June 3, 1982, was only eight years old when
she, together with Darwin and a
stepbrother, Allan, were left to the care of
herein appellant Garcia, who was then the
live-in partner of the victim's aforesaid
aunt, when the latter left for the United
States sometime in November, 1990.
Appellant Garcia stayed with the children in
the house of Elizabeth Ong at Fontaine
Street, East Bajac-Bajac, Olongapo City.
2

On that fateful day of November 1990, after
Elizabeth Garcia had left for the airport,
complainant, who was then playing with
Darwin outside the house, was called by
appellant Garcia who told her to go
upstairs. Once there, Garcia ordered her to
remove her shirt and panty and, when she
refused, the former was the one who
removed them. He made her lie on the bed
and he then removed his pants and brief.
Thereafter, he climbed into the bed with
her, spread her legs apart and inserted his
private organ into hers. She felt pain when
he forced himself upon her and he was
moving up and down. Jackielyn narrated
that Garcia pulled out his organ when a
whitish substance was discharged
therefrom. Then he ordered her to put back
her shirt and panty. Later, complainant
went back to play with her brother.

According to Jackielyn, from November,
1990 up to July 21, 1994, appellant Garcia
raped her almost weekly.
3
These incidents
happened in all the three places where they
lived, that is, at Fontaine Street, East Bajac-
Bajac, at 12th Street, Pag-asa, and at #40
14th Street, East Tapinac, all in Olongapo
City.
4


On July 21, 1994. Jacqueline was sleeping in
bed beside her brother, Darwin, when
appellant woke her up, asked her to lie
down beside him on the cushion inside the
same room where he slept, and had
intercourse with her.

Prosecution witness Angelito Ong testified
that sometime in May, 1994. his sister
Elizabeth Ong called to inform him that
their brother in the States met an accident,
and he was requested to support and take
care of the children because she would not
be able to send them money in the
meantime. Thenceforth, the children would
go to Angelito Ong's house for their food
and other needs.

In the evening of July 22, 1994, Angelito
was already becoming apprehensive
because the children had not yet arrived to
get their food. He decided to go to the
house where the children were staying but
he only saw the children's bags there. The
door of the house was locked, and he found
Jackielyn and Darwin at a nearby store.
When he asked them why they did not get
their food, they answered that the house
was locked and the key was with appellant
Garcia. They likewise told him that Garcia
scolded them and would not allow them to
go out of the house without the former's
permission. Angelito told the children that
just because they were getting their food
from him, appellant had no right to be
angry at them.

Thereafter, Angelito asked Jackielyn if she
was having an affair with appellant or if she
had been abused by him. When Jackielyn
refused to answer and merely kept silent,
Angelito took it as an admission that what
he was asking her was true, so he brought
Jackielyn to the Perpetual Help Clinic for
checkup.

It appears that Angelito had already
harbored suspicion because sometime in
June, 1994, Darwin told him that several
times in the past, although Jackielyn slept
beside Darwin at night, the latter would
wake up in the morning and see her
sleeping beside appellant Garcia. At that
time, Angelito merely warned Jackielyn that
it was not proper for her to be sleeping
beside appellant because she was already a
big girl. He did not bother to confront
appellant about it then because he did not
want to appear invidious. Yet even before
that, Angelito already thought it odd and
suspicious why appellant would not allow
the children's relatives to go to their house.

Since the doctor at the Perpetual Help Clinic
was not available, Angelito decided to bring
the children home. Along the way, Angelito
kept on asking Jackielyn if she had been
raped by appellant Garcia. At first, Jackielyn
refused to answer, but due to Angelito's
persistence and after threatening her that
he would eventually know once she is
examined by a doctor, she finally admitted
that she had been raped several times by
appellant. He then brought her to the
Olongapo City General Hospital where
Jackielyn was examined by Dr. Laila Patricio
who thereafter issued a medicolegal
certificate.


According to Dr. Patricio, the hymen of
Jackielyn was no longer intact and,
considering that there was no laceration, it
was possible that there had been sexual
contact for more than five times. She
discounted the probability that there had
been only one or two contacts, or that the
loss of virginity was caused by biking,
because otherwise there should have been
a laceration. She likewise conducted a
"spermatozoa determination" to see if
there had been sexual intercourse during
the past 24 hours, but the result was
negative, although she clarified that the
sperm normally stays in the vagina for 24
hours unless the woman washes herself
very well. Jackielyn told her, during the
medical examination, that she had been
raped by the husband of her aunt who was
in the States.

From the hospital, Angelito and Jackielyn
proceeded to the police station where they
filed a complaint for rape
6
against Garcia
and later executed their sworn
statements.
7
On the strength thereof,
Garcia was apprehended in his house at 32
Jones Street, Olongapo City. At the time of
his arrest, no formal complaint had as yet
been filed in court nor had a warrant of
arrest been
issued.
8

Appellant Garcia could only offer bare
denials to the inculpatory testimonies of
the victim and the prosecution witnesses
that he raped Jackielyn. He contends,
however, that probably the reason why he
was being falsely charged was because
Elizabeth Ong's family was not satisfied with
the way he managed the house entrusted
to him and the money being sent by
Elizabeth for the support of the children. He
rationalizes that as the supposed guardian
of the children and with the trust reposed in
him by Elizabeth, he could not and would
never do such a thing to Jackielyn.
In his cross-examination, however,
appellant Garcia admitted having sent a
letter addressed to Elizabeth Ong and
several others, dated August 24,
1994,
9
wherein he disclosed that he and
Jackielyn were having a relationship and
that he was asking for forgiveness from
Elizabeth for what happened between him
and Jackielyn.

The conviction of herein appellant is now
being controverted and assailed essentially
on two grounds, namely, that the
information is defective and that the trial
court erred in relying on the credibility of
the testimony of the victim.
10

I. Appellant avers that the information for
multiple rape filed against him is defective
for failure to state the exact dates and time
when the alleged acts of rape were
committed since it was merely stated
therein that the offense was committed
"from November 1990 up to July 21, 1994."
He asserts that each sexual act is a separate
crime and, hence, must be proven to have
been committed on a precise date and
time.

The defense, in support of this argument,
relies mainly on Section 11, Rule 110 of the
Rules of Court, as revised, which provides:
Sec. 11. Time of the commission of
the offense. It is not necessary to
state in the complaint or information
the precise time at which the offense
was committed except when time is a
material ingredient of the offense,
but the act may be alleged to have
been committed at any time as near
to the actual date at which the
offense was committed as the
information or complaint will permit.

It invokes the early case
of U. S. vs. Dichao
11
wherein an order
sustaining a demurrer to an information for
failure to conform to the subscribed form
was upheld by the Court, in
effect authorizing the outright dismissal of
the case, on the ground that:
. . . The allegations of an information
should, if possible, be sufficiently explicit
and certain as to time to inform the
defendant of the date on which the criminal
act is alleged to have been committed.
Unless the accused is informed of the day,
or about the day, he may be, to an extent,
deprived of the opportunity to defend
himself.

While Section 7 of the Code of Criminal
Procedure provides that "except when time
is a material ingredient of an offense, the
precise time of commission need not be
stated in a complaint or information, but
the act may be alleged to have been
committed at any time before the filing
thereof," this does not mean that the
prosecuting officer may be careless about
fixing the date of the alleged crime, or that
he may omit the date altogether, or that he
may make the allegation so indefinite as to
amount to the same thing. Where the exact
date cannot be fixed, or where the
prosecuting officer is not thoroughly
satisfied that he can prove a precise date,
he should allege in the information that the
crime was committed on or about a date
named. Under such an allegation he is not
required to prove any precise date but may
prove any date which is not so remote as to
surprise and prejudice the defendant. In
case of surprise the court may allow an
amendment of the information as to time
and an adjournment to the accused, if
necessary, to meet the amendment.

In the case before us the statement of the
time when the crime is alleged to have been
committed is so indefinite and uncertain
that it does not give the accused the
information required by law. To allege in an
information that the accused committed
rape on a certain girl between October
1910 and August 1912, is too indefinite to
give the accused an opportunity to prepare
his defense . . . Section 7 of the Code of
Criminal Procedure does not warrant such
pleading. Its purpose is to permit the
allegation of a date of the commission of
the crime as near to the actual date as the
information of the prosecuting officer will
permit, and when that has been done any
date may be proved which does not
surprise and substantially prejudice the
defense. It does not authorize the total
omission of a date or such an indefinite
allegation with reference thereto as
amounts to the same thing.

Assuming that this is still good case law,
reliance cannot be placed thereon by
appellant since the dicta are not squarely
applicable to the present case due to
factual differences. Taking into
consideration the circumstances obtaining
herein vis-a-vis the Dichao case, the
distinguishing factor which is immediately
apparent is the existence of a motion to
quash in that case as pointed out in the
aforequoted decision. There is no such
motion in the case at bar, and this spells the
big differences.

The rule is that at any time before entering
his plea, the accused may move to quash
the information
12
on the ground that it
does not conform substantially to the
prescribed form.
13
The failure of the
accused to assert any ground for a motion
to quash before he pleads to the
information, either because he did not file a
motion to quash or failed to allege the same
in said motion, shall be deemed a waiver of
the grounds for a motion to quash, except
the grounds of no offense charged, lack of
jurisdiction over the offense charged,
extinction of the offense or penalty, and
jeopardy.
14

Perforce, a formal defect in the information
not being one of the exceptions to the rule,
appellant's failure to invoke the same
through a motion to quash is deemed to be
a waiver of such objection and he cannot
now be heard to seek affirmative relief on
that ground. Moreover, objections as to
matters of form or substance in the
information cannot be made for the first
time on appeal.
15

At any rate, even laying aside procedural
technicalities and assuming arguendo that
appellant Garcia could validly raise this legal
question before us, we are still not inclined
to apply the ruling in Dichao to the case
now before us.

It may readily be inferred from the decision
in Dichao that where there is such
an indefinite allegation in the information
as to the time of the commission of the
offense which would substantially prejudice
the defense, a motion to quash the
information may be granted and the case
dismissed without the benefit of an
amendment. On the other hand, where
there is a variance between the date of the
commission of the crime alleged in the
information and that proved at the trial,
and it is shown to the trial court that the
accused is surprised thereby, and that by
reason thereof, he is unable to properly
defend himself, the court may, in the
exercise of sound discretion based on all
the circumstances, order the information
amended so as to set forth the correct date.
It may further grant an adjournment for
such a length of time as will enable the
accused to prepare himself to meet the
variance in date which was the cause of his
surprise.

Apparently, that distinction was premised
on the theory that the question on whether
the allegations of the information are
sufficiently definite as to time, and the
question which arises from a variance
between the particulars of the indictment
and the proof, are different in nature and
legal effect, and are decided on different
principles.
It would then result that, on the basis of the
foregoing disquisition in Dichao, an
amendment will not be allowed, and the
motion to quash should instead be granted,
where the information is, on its face,
defective for failure to state with certainty
when the offense was committed, and such
ambiguity is so gross as to deprive the
accused of the opportunity to defend
himself. For all intents and purposes,
however, a strict adherence thereto would
no longer be a sound procedural practice,
especially in criminal proceedings which
bears the mandate on speedy trial and
wherein the availability of bills of particulars
have over time been adopted and
recognized.

We believe that the principle laid down in
the more recent case of Rocaberte
vs. People, et al.
16
involving exactly the
same issue, presents the more logical and
realistic interpretation of the rules. While
the Court there adverted to
the Dichao case, it nevertheless resorted to
a less restrictive application of the rules by
disposing of the case in this wise:

A defect in the averment as to the time of
the commission of the crime charged is not,
however, a ground for a motion to quash
under Rule 116 of the Rules of Court. Even
if it were, a motion for quashal on that
account will be denied since the defect is
one that can be cured by amendment;
instead, the court shall order the
amendment to be made by stating the time
with particularity.

The remedy against an indictment that fails
to allege the time of the commission of the
offense with sufficient definiteness is a
motion for a bill of particulars, provided for
in Section 6, Rule 116 of the Rules of Court
of 1964.
xxx xxx xxx

From all that has been said, the conclusion
should be clear. The information against
petitioner Rocaberte is indeed seriously
defective. It places on him and his co-
accused the unfair and unreasonable
burden of having to recall their activities
over a span of more than 2,500 days. It is a
burden nobody should be made to bear.
The public prosecutor must make more
definite and particular the time of the
commission of the crime of theft attributed
to Rocaberte and his co-defendants. If he
cannot, the prosecution cannot be
maintained, the case must be dismissed.

WHEREFORE, the petition is GRANTED, and
the writ of certiorari prayed for is ISSUED
ANNULLING AND SETTING ASIDE the
challenged Orders of respondent Judge . . . ,
and DIRECTING the amendment of the
information in said case by the prosecution
within such time as the respondent Judge
may deem proper, failing which the criminal
prosecution against the petitioner and his
co-defendants shall be dismissed (Emphasis
supplied).

Conformably thereto, where the allegation
in the information as to the date or time of
the commission of the offense is so
uncertain, indefinite or ambiguous as to
constitute a violation of the right of the
accused to be informed of the nature and
cause of the accusation against him, the
proper disposition where a motion to quash
is filed on that ground, is for the trial court
to overrule the motion and order the
prosecution to amend the information by
stating the date or time with particularity,
within such period as the trial court may
deem proper under the circumstances.

This rule finds support in Section 4 of Rule
117 which provides that "if the motion to
quash is based on an alleged defect in the
complaint or information which can be
cured by amendment, the court shall order
the amendment to be made." Corollarily,
Section 14 of Rule 110 states that "the
information or complaint may be amended,
in substance or form, without leave of
court, at any time before the accused
pleads; and thereafter and during the trial
as to all matters of form, by leave and at
the discretion of the court, when the same
can be done without prejudice to the rights
of the accused."

In the event that the public prosecutor still
fails to make the necessary amendment
within the time allowed therefor by the
court, only then may the court order the
dismissal of the case. Hence, if herein
appellant Garcia had filed a motion to
quash, the case would not require an
outright dismissal.

Furthermore, it bears stressing that Section
11 of Rule 110 does not require that the
precise time when the offense was
committed be stated in the information,
except when time is a material ingredient of
the offense. In rape cases, the date or time
is not an essential element of the crime
and, therefore, need not be accurately
stated.
17

II. The second issue hinges on the credibility
of complainant's testimony. Appellant
contends that the prosecution failed to
prove multiple rape and that the trial court
erred in accepting in full complainant's
testimony that she was raped every week
during the period earlier stated. It is
averred that while complainant
remembered the details of the first and last
acts of rape, she failed to narrate with
similar clarity the other acts that allegedly
transpired in the interim.

We are strongly convinced that, based on
the testimonies of complainant and the
prosecution witnesses, appellant Garcia is
guilty as charged. Absolute certainty of guilt
is not demanded by the law for conviction
of any criminal charge; only moral certainty
is required as to every proposition of proof
requisite to constitute the offense.
18
Such
requirement has been complied with in the
case at bar with respect to the criminal acts
hereinafter specified. Besides, a prima
facie case affords sufficient basis for
conviction if not overcome by the evidence
of the accused.
19

We have thoroughly examined the
testimony of complainant Jackielyn Ong and
we cannot but conclude that complainant,
in spite of her youth at the time she
testified, was very candid, spontaneous and
consistent in her testimony in court, both in
the direct and cross-examination. Her
testimony is forthright, clear and free from
serious contradictions. It is a basic rule,
founded on reason and experience, that
when the victim testifies that she has been
raped, she says in effect all that is necessary
to show that rape was committed.
20
Thus, if
her testimony meets the test of credibility,
the accused may be convicted on the basis
thereof. On this aspect, it is an accepted
precept that testimonies of rape victims
who are young and of tender age are
credible. Hence, the revelation of an
innocent child whose chastity was abused
deserves full credence.
21

Nor have we chosen to merely rely on such
doctrinal rules. Our conclusion further
resulted from a painstaking analysis of the
evidence on record. The alleged
inconsistency pointed out by appellant, to
the effect that complainant remembered
the details of the first and last acts of rape
but failed to expound on the other
violations committed against her, is not
sufficient to render her testimony doubtful.
Such failure does not necessarily detract
from her credibility nor negate the
commission of the rape. The testimony of a
witness must be considered and calibrated
in its entirety and not by truncated portions
thereof or isolated passages therein.
22

Rape, as a harrowing experience, is usually
not remembered in detail. For, such an
offense is not something which enhances
one's life experience as to be worth
recalling or reliving but, rather, something
which causes deep psychological wounds
and casts a stigma upon the victim for the
rest of her life, which her conscious or
subconscious mind would prefer to forget.
Thus, a rape victim is not and cannot be
expected to keep an accurate account of
her traumatic experience.
23
With more
reason must we have greater
compassionate understanding of herein
complainant's plight who, at a very tender
age, was mercilessly corrupted by a
conscienceless human being with bestial
desires.

The failure of complainant to immediately
disclose the violations committed against
her, and the fact that she went on to play
with her brother after the first rape
incident, cannot be considered as
absolutely unnatural and contrary to
normal human behavior. It must be
remembered that the subject of appellant's
lust is an innocent, naive and frail little girl
of eight years, extremely ignorant of the
ways of the world and of men. One cannot
and should not expect such a wisp of a girl
to act like an adult or like a mature and
experienced woman who would know what
to do under such difficult
circumstances.
24
In fact, her subsequent
action is confirmatory of the unreasoning
innocence of childhood which in this case
was mercilessly betrayed.

The alleged absence of resistance cannot
likewise alter the condemnatory verdict
against appellant. This Court has
consistently held that rape is committed
when intimidation is used on the victim and
this includes the moral kind of intimidation
or coercion. Intimidation is a relative term,
depending on the age, size and strength of
the parties, and their relationship with each
other.
25
It can be addressed to the mind as
well.
26
Moreover, the intimidation must be
viewed in the light of the victim's
perception and judgment at the time of the
rape and not by any hard and fast rule. It is
therefore enough that it produces fear
fear that if the victim does not yield to the
lustful demands of the accused, something
would happen to her at the moment or
thereafter.
27

In the instant case, a clear situation
bespeaking abuse of transient authority is
established by the records. There can be no
doubt that appellant Garcia had a sort of
moral dominance and influence over
Jackielyn such that he could easily
intimidate and force her to submit to his
satyric desires, considering that she was
very young at that time and under his
custody.
28
Jackielyn was only eight years
old when Garcia started molesting her
sexually. Appellant himself admitted that he
was expected to take care of complainant
and her brother, and to give them guidance
and advice. Hence, the victim could hardly
be expected to use any discretion and
discernment as to how she could resist the
coercive power of appellant.
29

Jackielyn disclosed during her direct
examination that she was afraid of
appellant because sometimes he would get
mad at her and beat her.
30
On cross-
examination, she declared that she never
confided to her older brother about the
rape incidents because she feared that if
she did so, appellant might get angry and
beat her.
31
Her fear of appellant is vividly
illustrated by the testimony of her uncle.
Angelito Ong, about that incident when the
victim and her younger brother failed to get
their food from his house and he found
them in a nearby store because they were
locked out of the house by appellant.
32
So
great was the fear instilled by appellant in
the victim's mind that she would rather go
hungry, which is an ordeal for young
children, than incur his ire.

In sum, complainant's tender age and
appellant's custodial control and
domination over her, had rendered her so
meek and subservient to his needs and
desires, thus becoming an easy prey to
appellant's lecherous advances.
33
This
psychological predicament, in the mind of
the Court, explains why the offended girl
did not give any outcry or offer any
resistance when she was being
raped,
34
especially when she became
inured to the outrage repeatedly
committed over a period of time and which
sexual assaults were corroborated by
medicolegal evidence.

Perhaps, though, the most convincing
evidence that appellant Garcia committed
the acts charged is his very own admission
of having had repeated carnal knowledge of
the victim in a letter which he sent on
August 24, 1994 from his place of detention
to Elizabeth Ong, his live-in partner and
aunt of the victim, wherein he pleaded that
he be given another chance and promised
to change for the better.
35
The following
excerpts therefrom, to quote just a few, are
indeed revealing and revolting:

. . . OO, tutuong may ng yari sa amin ni
Jackylyn, Yon ay alam niya. Kayo mismo ang
kumausap. Nitong May at June hanggang
July 16, 1994. Yan ay inaamin ko pero hindi
ko siya tinakot at ni rape. Alam ni Jackylyn
yon . . . Una halikan lang muna siya panga
ang nag-umpisa. Ng umabot ng June bago
magpasukan nitong 1994 lang kami lumag-
pas sa hindi dapat. At siya pa nga ang
nagsabi sa akin dinadatnan na siya kaya
mag-ingat kami at baka raw mabuntis ko
siya. Di kako bahala ka ikaw ang babae. Mga
7 o 8 beses kami naulit. Mula May, June,
July 16, 1994. Tapos kako nga pa sa kanya
bakit gustong-gusto mo na ginaganoon ko
siya at anong dahilan. Ang sabi niya ay wala.
Kako hindi mo ba alam maraming magagalit
at masasaktan. At saka kako hindi ka
papayag ipaubaya ang pinakamahalagang
bagay na iniingatan ng babae. Bakit kako
mahal mo ba ako sabi naman OO. . .
Humihingi ako sa inyo ng isang pagkakataon
na ibalato na lang ninyo ang buhay ko kay
Jackylyn . . . at Beth kung talagang mahal
mo rin ako ay pabayaan mo na ang kalayaan
ko at sarili kay Jackylyn. . . Kaya humihingi
ako sa inyong lima ng isa pang pagkakataon
na panagutan si Jackylyn. . . At yong ng yari
samin ni Jackylyn ay kapwa namin
kagustuhan. . . At hindi kunaman talaga ni
rape. . . Handa kunaman panagutan. . . Kayo
ang pag-asa ko para sa kaligtasan ng buhay
ko dahil sa paratang nayan. . . Kaya
nakikiusap ako at humihingi ng awa ninyo at
isang pag-kakataon. . . .

If what appellant claims in his letter that he
and Jackielyn were lovers is true, it is
paradoxical that he never mentioned that in
his testimony nor did he present any
evidence to prove such supposed
relationship. His silence on the matter
becomes highly suspect, considering that
such a defense was undeniably intended to
possibly save the day for him. An
elementary knowledge of human nature
would expose his pretensions as merely an
afterthought on the part of appellant, in a
desperate and vain attempt to exculpate
himself from his shameless and heinous
acts.

Besides, it is the height of incredibility that,
as appellant would want to suggest in his
aforestated letter, the initiative came from
the victim herself, this despite her age and
the inbred modesty of a provincial lass. That
would be stretching the imagination too far
and insulting to the intelligence and
credulity of even an ordinary layman. It has
never been shown, nor has an insinuation
been made, that Jackielyn was a girl of
loose morals with the capacity to lure a
much older man into such indiscretions
over an incredible period of time.

In contrast, the defense relied solely on the
testimony of appellant which, as earlier
observed, leaves very much to be desired as
it consists mainly of bare and pharisaical
denials. Time and again we have said that
denial, like alibi, is a weak defense which
becomes even weaker in the face of the
positive identification of the accused by
prosecution witnesses. Appellant's denial
constituted self-serving negative evidence
which can hardly be considered as
overcoming a straightforward and
creditworthy eyewitness account. As
between positive and categorical testimony
which has the ring of truth on one hand,
and a bare denial on the other, the former
is generally held to prevail,
36
especially
given the facts obtaining in this case.

III. Be that as it may, however, on the bases
of the evidence adduced by the
prosecution, appellant can be convicted
only of the two rapes committed in
November, 1990 and on July 21, 1994 as
testified to by complainant, and for the
eight counts of rape committed in May and
June and on July 16, 1994 as admitted in
appellants aforementioned letter of August
24, 1994. We cannot agree with the trial
court that appellant is guilty of 183 counts
of rape because, as correctly asserted by
the defense, each and every charge of rape
is a separate and distinct crime so that each
of them should be proven beyond
reasonable doubt. On that score alone, the
indefinite testimonial evidence that
complainant was raped every week is
decidedly inadequate and grossly
insufficient to establish the guilt of
appellant therefor with the required
quantum of evidence. So much of such
indefinite imputations of rape, which
are uncorroborated by any other evidence,
fall within this category.

We are fully convinced, however, that
appellant is guilty of statutory rape for the
sexual act committed in November, 1990
when Jackielyn was only eight years old.
Sexual congress with a girl under twelve
years of age is always rape although there
might have been consent to the sexual act.
Being of such tender age, she is presumed
not to have a will of her own. The law does
not consider any kind of consent given by
her as voluntary.
37

It has likewise been sufficiently established
beyond reasonable doubt that Jackielyn was
raped by appellant on July 21, 1994. The
evidence is well-nigh conclusive that she
was intimidated into submitting to
appellant's libidinous craving and
loathsome assault by reason of his authority
and predominance over her. Jackielyn may
well have been over twelve years of age at
that time, but what is the difference in
mental fitness and attitude between a
twelve-year old girl and one who is twelve
years and one month old?
38

Finally, appellant's admission in his letter of
August 24, 1994 that "it happened 7 or 8
times in May, June until July 16, 1994,"
which was never explained away nor
successfully refuted by the defense, should
definitely be taken into consideration. It is
said that although written admissions have
sometimes been treated as competent
evidence under the head of one of the
exceptions to hearsay evidence, yet they
are open to but few of the objections which
may be urged against hearsay testimony.
They are, it is true, declarations made out of
court and without sanction of an oath, yet
they are statements, not of third persons,
but of a party to the litigation; and, where
they are offered against him, it is only fair
to presume, until the contrary is shown,
that they are correct. Whatever a party
voluntarily admits to be true, though the
admission be contrary to his interest, may
reasonably be taken for the truth.
39

No compelling reason exists in the case at
bar to warrant the exclusion or disregard of
these admissions of appellant. These are
admissions against his own interest which
no sane or reasonable man would make if
they were not true. He voluntarily and
intelligently made and even put them down
in single-spaced handwriting on four full
pages of legal size ruled pad. On top of that,
he identified the same and testified
thereon, without any repudiation, in open
court on January 13, 1995, thus converting
such extrajudicial admissions into judicial
admissions.
One might ask why, having been burned the
first time, the offended girl did not
thereafter stay away from appellant,
thereby giving him other opportunities to
inflict his lust on her. The obvious
explanation is that we are dealing here not
with a worldly-wise woman but with a
young and innocent child of tender age
whose acts were dominated more by fear
than by reason.
40
This is especially
understandable in this case where the
victim is practically an orphan abandoned in
the care of a stranger masquerading in the
guise of a guardian, and who never felt a
sense of belonging except to such a
stranger whom she wrongly believed had a
familial concern for her, but whom she
realized too late was devilishly unworthy of
her trust and respect.

IV. We now proceed to consider the proper
imposable penalty on appellant in light of
his proven criminal misdeeds consisting of
ten acts of rape. Having been charged with
the simple crime of rape, each of which
warrants the imposition of the penalty
of reclusion perpetua, both the trial court
and the People's Tribune agree on that
penalty to be imposed for each crime,
although both contend that such penalty
should be imposed on 183 acts of rape. We
have already explained that appellant can
be convicted of only ten crimes of rape, but
we have not answered the unspoken
question, since both the trial court and the
Solicitor General have passed sub
silentio thereover, on whether the ten
convictions we sustain should be for simple
rape or for its qualified form under the
circumstances stated in Republic Act No.
7659 which amended Article 335 of the
Revised Penal Code.

It is true that the appellant has been
charged with simple rape, that the court
below found him guilty only of simple rape
as charged, and that no issue over the
effect of the amendatory law has been
raised. However, it is a long-settled rule in
criminal procedure, which is now enshrined
in the Rules of Court,
41
that an appeal
throws the criminal case open for review by
the appellate court which may thereafter
reverse the decision a quo, or modify the
same by reducing or increasing the penalty
upon a concomitant modification of the
findings on the nature of the crime
committed or the computation of the
penalty therefor. Here, we are further
confronted by the situation wherein the
first crime of rape in 1990 of which we find
appellant guilty is covered by the original
provisions of the Revised Penal Code, while
the other nine crimes of rape committed in
1994 are governed by the amendatory
provisions of Republic Act No. 7659, with
circumstances necessitating higher
penalties, and which took effect on
December 31, 1993.
42

Section 11 of Republic Act No. 7659
provides that where the victim of the crime
of rape is under eighteen years of age and
the offender is, inter alia, a guardian of the
victim, the death penalty shall be imposed.
The inevitable query, since the fact is
mentioned in passing in the records, is
whether or not appellant is a guardian in
the contemplation of this amendment to
the law on rape such that, the victim being
a minor, he should be punished with the
higher penalty of death for the nine crimes
of rape committed by him in May and June,
1994 and on July 16 and July 21, 1994.

In the law on rape, the role of a guardian is
provided for in Article 344 of the Revised
Penal Code, specifically as one who, aside
from the offended party, her parents or
grandparents, is authorized to file the
sworn written complaint to commence the
prosecution for that crime. In People vs. De
la Cruz,
43
it was held that the guardian
referred to in the law is either a legal or
judicial guardian as understood in the rules
on civil procedure.

That holding was rationalized as follows:

Article 344 of the Revised Penal Code,
paragraph 3, is as follows:

"Tampoco puede procederse por causa de
estupro, rapto, violacion o abusos
deshonestos, sino en virtud de denuncia de
la parte agraviada, o de sus padres, o
abuelos or tutor, ni despues de haberse
otorgado al ofensor perdon expreso por
dichas partes, segun los casos." Without
passing at this time on the question
whether the tutor (legal guardian) may file
a complaint in the temporary absence of
the parents or grandparents of the
offended party, it suffices to say that we
cannot accept the view of the Government
that an aunt who has the temporary
custody of a minor in the absence of her
father occupies the position of a tutor (legal
guardian). The word "tutor" (guardian)
appearing in article 344,supra, must be
given the same meaning as in section 551 of
the Code of Civil Procedure, that is to say, a
guardian legally appointed in accordance
with the provisions of Chapter XXVII of the
Code of Civil Procedure.

It would not be logical to say that the word
"guardian" in the third paragraph of Article
344 which is mentioned together with
parents and grandparents of the offended
party would have a concept different from
the "guardian" in the recent amendment of
Article 335 where he is also mentioned in
the company of parents and ascendants of
the victim. In Article 344, the inclusion of
the guardian is only to invest him with the
power to sign a sworn written complaint to
initiate the prosecution of four crimes
against chastity, while his inclusion in the
enumeration of the offenders in Article 335
is to authorize the imposition of the death
penalty on him. With much more reason,
therefore, should the restrictive concept
announced in De la Cruz, that is, that he be
a legal or judicial guardian, be required in
the latter article.

The Court notes from the transcripts of the
proceedings in Congress on this particular
point
44
that the formulators were not
definitive on the concept of "guardian" as it
now appears in the attendant
circumstances added to the original
provisions of Article 335 of the Code. They
took note of the status of a guardian as
contemplated in the law on rape but,
apparently on pragmatic considerations to
be determined by the courts on an ad
hoc basis, they agreed to just state
"guardian" without the qualification that he
should be a legal or judicial guardian. It was
assumed, however, that he should at the
very least be a de facto guardian. Indeed,
they must have been aware of
jurisprudence that the guardian envisaged
in Article 335 of the Code, even after its
amendments by Republic Act No. 4111,
would either be a natural guardian,
sometimes referred to as a legal or
statutory guardian, or a judicial guardian
appointed by the court over the person of
the ward

They did agree, however, that the
additional attendant circumstances
introduced by Republic Act No. 7659 should
be considered as special qualifying
circumstances specifically applicable to the
crime of rape and, accordingly, cannot be
offset by mitigating circumstances. The
obvious ratiocination is that, just like the
effect of the attendant circumstances
therefore added by Republic Act No. 4111,
although the crime is still denominated as
rape such circumstances have changed the
nature of simple rape by producing a
qualified form thereof punishable by the
higher penalty of death.
45

Coming back to the categorization of the
functions of appellant in relation to private
complainant and her brother, we are not
prepared to say that, under the particular
and peculiar facts obtaining in this case, the
former sustained the relation of guardian to
the latter, whether as a natural or legal, or
even de facto and, much less, judicial
guardian. He cannot be a legal or natural
guardian as that refers to parents, nor even
a guardian de son tort (sometimes referred
to as a quasi-guardian or guardian by
estoppel) since he did not on his own
assume to act as a guardian of, say, a
foundling.
46
The fact is that he is not
related to and he did not even support the
children as it was Elizabeth Ong, then later
her brother who provided the food, other
necessities and instructions for the care of
the children, and they have been living in
Elizabeth's house wherein appellant was in
that respect merely a hanger-on and a
freeloader. He was merely expected to
carry out Elizabeth's directions, and
Elizabeth continued to be the guardian de
facto of the children.

Appellant has not been proven to have
exercised any valid act of patria
potestas over complainant and her brother,
unless we consider beating and abusing
them as within that concept. In fine, at the
very most, appellant was only an unwilling
custodian and caretaker, not unlike a
domestic majordomo or steward of the
house and the children, and for which
services he obtained free board and
lodging. Ironically, that amorphous role that
he played in the lives of the children, and
which enabled him to abuse them, offers
him salvation from the death penalty which
he deserves. This is because the Court
proceeds only under the dictates of the law
and never under errant emotionalism or
maudlin sentimentality.

The law requires a legal or judicial guardian
since it is the consanguineous relation of
the solemnity of judicial appointment which
impresses upon the guardian the lofty
purpose of his office and normally deters
him from violating its objectives. Such
considerations do not obtain in appellant's
case or, for that matter, any person
similarly circumstanced as a mere custodian
of a ward or another's property. The
fiduciary powers granted to a real guardian
warrant the exacting sanctions should he
betray the trust.

In results, therefore, that appellant cannot
be considered as the guardian falling within
the ambit of the amendatory provision
introduced by Republic Act No. 7659. He
would not fall either in the category of the
"common-law spouse of the parent of the
victim" in the same enumeration, since his
liaison is with respect to the aunt of
Jackielyn. Since both logic and fact
conjointly demonstrate that he is actually
only a custodian, that is, a mere caretaker
of the children over whom he exercises a
limited degree of authority for a temporary
period, we cannot impose the death
penalty contemplated for a real guardian
under the amendments introduced by
Republic Act No. 7659, since he does not fit
into that category.

One further observation, Article 335
originally provided only for simple rape
punishable by reclusion perpetua, but
Republic Act No. 4111 introduced
amendments thereto by providing for
qualified forms of rape carrying the death
penalty, that is, when committed with the
use of deadly weapon or by two or more
persons, when by reason or on the occasion
of the rape the victim becomes insane, or,
under the same circumstances, a homicide
is committed. The homicide in the last two
instances in effect created a special
complex crime of rape with homicide. The
first two attendant circumstances are
considered as equivalent to qualifying
circumstances since they increase the
penalties by degrees, and not merely as
aggravating circumstances which effect only
the period of the penalty but do not
increase it to a higher degree. The original
provisions of Article 335 and the
amendments of Republic Act No. 4111 are
still maintained.

As earlier observed, Republic Act No. 7659
thereafter introduced seven more
attendant circumstances the presence of
any of which takes the case out of the
purview of simple rape, and effectively
qualifies the same by increasing the penalty
one degree higher through the imposition
of the death penalty. All these new
attendant circumstances, just like those
introduced by Republic Act No. 4111,
partake of the nature of qualifying
circumstances, and not merely aggravating
circumstances, on the same rationale
already explained.

Now, it has long been the rule that
qualifying circumstances must be properly
pleaded in the indictment. If the same are
not pleaded but proved, they shall be
considered only as aggravating
circumstance,
47
since the latter admit of
proof even if not pleaded.
48
Indeed, it
would be a denial of the right of the
accused to be informed of the charges
against him and, consequently, a denial of
due process, if he is charged with a simple
rape and be convicted of its qualified form
punishable with death, although the
attendant circumstance qualifying the
offense and resulting in capital punishment
was not alleged in the indictment on which
he was arraigned.

Recapitulating, the information filed against
appellant charged only the felony of simple
rape and no attendant qualifying
circumstance, specifically that of his being
supposedly a guardian of the victim, was
alleged. On this additional consideration, he
cannot, therefore, be punished with the
penalty of death even
assuming arguendothat he is such a
guardian. Neither can that fact be
considered to aggravate his liability as the
penalty for simple rape is the single
indivisible penalty of reclusion perpetua.
49

The end result, therefore, is that for the ten
crimes of rape of which we declare him
guilty, only the penalty ofreclusion
perpetua can be imposed. He must,
however, be further held liable for the
corresponding indemnity to the victim, as
well as exemplary damages for each count
of rape.
50

WHEREFORE, the challenged judgment of
the court a quo is MODIFIED. Accused-
appellant David Garcia y Quintorio is hereby
declared guilty of ten (10) felonies of simple
rape and ordered to serve the penalty
ofreclusion perpetua for each felony,
subject to the provisions of Article 70 of the
Revised Penal Code. He is further ordered
to indemnify Jackielyn Ong in the sum of
P50,000.00 for each of the ten (10) felonies
of rape, to pay her exemplary damages of
P25,000.00 likewise for each of the ten (10)
felonies of rape, and to pay the costs in all
instances of this criminal proceeding.
SO ORDERED.
G.R. No. 144293 December 4, 2002
JOSUE R. LADIANA, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O N
PANGANIBAN, J.:
The Constitution bars the admission in
evidence of any statement extracted by the
police from the accused without the
assistance of competent and independent
counsel during a custodial investigation.
However, a counter-affidavit voluntarily
presented by the accused during the
preliminary investigation, even if made
without the assistance of counsel, may be
used as evidence against the affiant.

The Case
Before us is a Petition for Review under
Rule 45 of the Rules of Court, assailing the
April 10, 2000 Decision
1
and August 4, 2000
Resolution
2
of the Sandiganbayan (First
Division) in Criminal Case No. 16988. The
dispositive portion of the assailed Decision
reads as follows:
"WHEREFORE, judgment is hereby rendered
finding accused JOSUE R. LADIANA GUILTY
beyond reasonable doubt of the crime of
homicide and, in the absence of any
modifying circumstance, sentencing the
said accused to: (a) suffer an indeterminate
sentence of imprisonment of ten (10) years
of prision mayor, as minimum, to seventeen
(17) years and four (4) months of reclusion
temporal, as maximum[;] (b) suffer all the
appropriate accessory penalties consequent
thereto; (c) indemnify the heirs of the
victim, Francisco San Juan, in the total
amount of Fifty Six Thousand Five Hundred
Pesos (P56,500.00); and (d) pay the costs."
3

The assailed Resolution denied petitioners
Motion for Reconsideration.

Petitioner was originally charged with
murder before the Sandiganbayan in an
Information
4
dated August 5, 1991.
However, the anti-graft court issued an
Order
5
dated October 14, 1991, noting that
"besides the allegation that the crime was
allegedly committed by the accused while
he was taking advantage of his official
position, nothing else is in the Information
to indicate this fact so that, as the
Information stands, nothing except a
conclusion of fact exists to vest jurisdiction
[in] this Court over the accused and over
the crime for which he is charged."

Further, the Order gave the government
sufficient time to amend the Information to
show adequate facts to vest the
Sandiganbayan with jurisdiction over the
case. Subsequently, an Amended
Information,
6
still charging petitioner with
murder, was filed on April 1, 1992. The
accusatory portion reads as follows:
"That on or about the 29th day of
December 1989, in the Municipality of
Lumban, Laguna, Philippines, and within the
jurisdiction of this Honorable Court, the
above-named accused, a public officer,
being then a member of the Integrated
National Police (INP now PNP) assigned at
the Lumban Police Station, Lumban, Laguna,
acting in relation to his duty which is
primarily to enforce peace and order within
his jurisdiction, taking advantage of his
official position confronted Francisco San
Juan why the latter was removing the steel
pipes which were previously placed to serve
as barricade to prevent the entry of vehicles
along P. Jacinto Street, Barangay Salac,
Lumban, Laguna, purposely to insure the
safety of persons passing along the said
street and when Francisco San Juan told the
accused that the latter has no business in
stopping him, said accused who was armed
with a firearm, with intent to kill and with
treachery, did then and there willfully,
unlawfully and feloniously attack and
sho[o]t Francisco San Juan with the firearm
hitting Francisco San Juan at his head and
neck inflicting upon him fatal wounds
thereby causing the death of Francisco San
Juan."
7

During his arraignment on May 8, 1992,
petitioner, assisted by his counsel de
parte,
8
pled not guilty.
9
After due trial, the
Sandiganbayan found him guilty of
homicide, not murder.

The Facts
In their Memoranda, both the prosecution
and the defense substantially relied upon
the Sandiganbayans narration of the facts
as follows:
"The prosecution presented five (5)
witnesses, namely: Caridad M. San Juan,
PO2 Leopoldo Cacalda, Dr. Rogelio M.
Javan, SPO2 Percival A. Gabinete, and Maria
T. Cortez. Their respective testimonies, in
essence are as follows, to wit:
"1. CARIDAD MARGALLO SAN JUAN
(hereinafter, Caridad) declared that she is
the wife of Francisco San Juan (hereinafter
Francisco), the victim in the case at bar.
Caridad testified that Francisco was the
Barangay Captain of Barangay Salac,
Lumban, Laguna, until he was shot and
killed by accused Ladiana, who happens to
be also a distant relative of the decedent.

"Caridad recounted that, on December 29,
1989, she was in her house when an
unidentified woman came and told her that
her husband was killed by accused Ladiana.
She immediately called up her sister-in-law
before rushing to Jacinto Street where the
gruesome incident allegedly transpired.
Thereat, many people were milling around,
and Caridad saw the lifeless body of
Francisco lying in the middle of the road
and being examined by [SPO2] Percival A.
Gabinete.

"Caridad recalled that it was around 11:00
oclock a.m. when she reached the place of
the subject incident. At that point in time,
she was not even allowed by the police to
touch, much less get near to, the cadaver of
Francisco. Caridad, expectedly, was crying
and one of her aunts advised her to go
home.

"Caridad maintained that she was aware
that her husband was killed by accused
Ladiana because this was what the woman
actually told her. Moreover, accused
Ladiana had given himself up to the police
authorities.

"Caridad went on to narrate that, on
December 30, 1989, she was at the police
station, where she gave her written
statement before police investigator PFC
Virgilio Halili (hereinafter, Halili).

"Additionally, Caridad presented the Death
Certificate of her husband and testified that
he was eventually buried at the Lumban
Cemetery. She declared that she had
incurred about Twenty Thousand Pesos
(P20,000.00) for the funeral, burial and
other incidental expenses by reason of the
death of Francisco.

"On cross-examination, Caridad testified
that, on December 29, 1989, she was in her
house and that she did not hear any
gunshot between 10:30 and 11:00 oclock
a.m. Caridad also admitted she did not
witness the killing of her husband.

"On questions propounded by the Court,
Caridad narrated that her husband suffered
two gunshot wounds - one on the upper
right temple and the other on the left
cheek. However, Caridad stated that she
was told that the wounds were the entry
and the exit points. She also told the Court
that her husband was wearing short pants
at the time of his death and that she found
some bruises on his knees.

"Finally, Caridad recalled that, on the date
of the incident, her husband was with his
close friend, a certain Rodolfo Cabrera, and
some other persons, and that they went to
Jacinto Street to repair the steel humps
which were used to block the street during
school days for the protection and safety of
the school children.

"2. PO2 LEOPOLDO DE RAMOS CACALDA,
JR. (hereinafter, CACALDA) declared that
he is a policeman assigned at the Lumban
Police Station in Lumban, Laguna. He has
been designated as the radio operator of
the station since 1989.

"Cacalda recounted that, on December 29,
1989, at around 11:00 oclock a.m.,
somebody, whose name he could no longer
recall, reported to him about an existing
trouble along Jacinto Street in Barangay
Salac Cacalda responded by going to the
scene, where he was accompanied by
Alberto Mercado, a member of the CAGFIL.
Thereat, Cacalda saw the lifeless body of
Francisco lying face up on the road. Cacalda
did not examine the body of Francisco. He
left the place of the incident when [SPO2]
Percival A. Gabinete and other policemen
subsequently arrived.

"Cacalda had gathered from the people
milling around the body of Francisco that it
was accused Ladiana who shot and killed
Francisco. Cacalda immediately left to look
for accused Ladiana. However, he
eventually saw accused Ladiana already
inside the jail of the police station and
thereafter learned that said accused had
surrendered to the police authority.

"Cacalda recalled that he was later on
investigated by Halili because he was the
responding policeman who went to the
scene of the incident. Consequently,
Cacalda executed a written statement in
relation to the subject incident.

"On cross-examination, Cacalda testified
that he was a radio operator and not an
investigator of the police station. He also
testified that he did not witness the
incident subject matter of the case at bar.

"Cacalda went on to testify that the people
milling around the place of the incident told
him that accused Ladiana had already left.
Because of this development, Cacalda
proceeded to accused Ladianaa house but
was told that he had already gone to the
police station. Cacalda accordingly went to
the police station where he saw accused
Ladiana already locked inside the jail. He
also saw a stab wound on accused Ladianas
right bicep but he did not anymore ask him
how he sustained the said injury.

"3. DR. ROGELIO JAVAN y MAGRACIA
(hereinafter, Javan) declared that he is a
physician and the Municipal Health Officer
of Lumban, Laguna.

"Javan recounted that he was the one who
performed the necropsy on the cadaver of
Francisco and that he had prepared the
corresponding reports and/or documents
relating thereto. Javan made a sketch
representing the anterior and posterior
views of the body of Francisco, and labeled
and placed red markings on the gunshot
wounds found on the said cadaver. The
marking Gunshot wound A is the point of
entry, which is one (1) centimeter in
diameter and situated two (2) inches
behind the left ear. The marking Gunshot
wound B is the point of exit of Gunshot
wound A, which is two (2) centimeters in
diameter and found above the right
cheekbone and one (1) inch below the right
eye. Javan also testified that there is
another gunshot wound and the point of
entry and exit are labeled as Gunshot
wound C and Gunshot wound D,
respectively. Gunshot wound D is one and
one-half (1-1/2) centimeters in diameter
and located at the left cheek, three and
one-half (3-1/2) centimeters below the left
eye, while Gunshot wound C is one (1)
centimeter in diameter and found at the
right lateral aspect of the neck, at the level
of the adams apple.

"According to Javan, the assailant must be
behind the victim when he inflicted
Gunshot wound A. As regards Gunshot
wound C, the assailant likewise must be
behind the victim, at a distance of more
than twenty-four (24) inches away.

"Lastly, Javan testified that he was not able
to retrieve any bullet during the
examination. However, judging from the
size of the wound and the point of entry,
Javan opined that the firearm used was
probably a caliber 38.

"On questions propounded by the Court,
Javan testified that Gunshot wound A
could have been fired first because the
trajectory is on the same level so much so
that the assailant and the victim could have
been both standing. Javan inferred that
Gunshot wound C could have been
inflicted while the victim was already falling
down. Javan then stressed that both
wounds are fatal in nature.

"4. SPO2 PERCIVAL AMBROSIO GABINETE
(hereinafter, Gabinete) declared that he is
a police officer and a resident of No. 4055
Villa Josefina Subdivision, Sta. Cruz, Laguna.

"The testimony of Gabinete was
subsequently dispensed with, upon the
admission of the defense that he was part
of the group of policemen who proceeded
to the place of the subject incident and that
he found the body of Francisco lying along
the road. Additionally, the defense
admitted the existence of the receipt issued
by Funeraria de Mesa dated January 3, 1990
in the sum of Six Thousand Five Hundred
Pesos (P6,500.00).

"5. MARIO TALAVERA CORTEZ (hereinafter,
Cortez) declared that he is a retired
Assistant Prosecutor of Laguna.

"Prior to the conduct of the examination-in-
chief on Cortez, the defense counsel made
an admission as to the authorship,
authenticity, and voluntariness of the
execution of the counter-affidavit of
accused Ladiana, which was subscribed and
sworn to before Cortez. In said counter-
affidavit, accused Ladiana allegedly
admitted to making the fatal shots on
Francisco. However, accused Ladiana
allegedly did so in self-defense as Francisco
was then purportedly attacking accused
Ladiana and had, in fact, already inflicted a
stab wound on the arm of accused Ladiana.

"However, Cortez emphasized that he was
not the one who conducted the preliminary
investigation of the complaint which led to
the filing of the subject case. Additionally,
Cortez testified that he would not be able
to anymore recognize the face of the affiant
in the said counter-affidavit, but maintained
that there was a person who appeared and
identified himself as Josue Ladiana before
he affixed his signature on the counter-
affidavit.

"After the presentation of Cortez, the
prosecution filed its formal offer of
evidence and rested its case.

"On May 31, 1995, this Court issued a
resolution admitting all the documentary
evidence submitted by the prosecution.

"On August 20, 1996, accused Ladiana filed
a Motion for Leave of Court to File
Demurrer to Evidence dated August 16,
1995, claiming that: (i) a review of the
documentary and testimonial evidence
adduced by the prosecution allegedly failed
to show that the accused is guilty of the
offense charged; (ii) at best, the evidence
submitted by the prosecution are allegedly
hearsay in character, considering that the
supposed eyewitness in the person of
Rodolfo Cabrera was never presented in
court; and (iii) the prosecution was
allegedly merely able to prove the fact of
death of the victim, but not the identity of
the person who caused said death.

"On August 23, 1996, this Court issued an
Order of even date holding that the filing of
a demurrer to evidence is no longer
appropriate considering that accused
Ladiana received a copy of this Courts
resolution dated May 31, 1995 on the
admission of the prosecutions
documentary exhibits as early as May 25,
1995.

"On September 2, 1996, in view of his
perception that the evidence submitted by
the prosecution is allegedly inadequate to
sustain a conviction, accused Ladiana,
through counsel, waived his right to present
controverting evidence. Instead, he asked
for time to file a written memorandum.
Thus, both parties were given time within
which to do so, after which the case shall be
deemed submitted for resolution.

"Thereafter, this Court received on October
25, 1996 by mail the Memorandum for the
defense. As for the prosecution, it opted
not to file any."
10
(Citations omitted)

Ruling of the Sandiganbayan
The Sandiganbayan ruled that the
prosecution had been able to establish the
guilt of petitioner beyond reasonable
doubt. The court a quo held that his
Counter-Affidavit,
11
in which he had
admitted to having fired the fatal shots that
caused the victims death,
12
may be used as
evidence against him. It underscored the
admission made by the defense as to the
authorship, the authenticity and the
voluntariness of the execution of the
Counter-Affidavit.
13
In short, it ruled that
the document had sufficiently established
his responsibility for the death of the victim.
However, it found no evidence of treachery;
thus, it convicted him of homicide only.
14

Hence, this Petition.
15

Issues

In his Memorandum, petitioner raises the
following issues for this Courts
consideration:

"I. Whether or not the Sandiganbayan may
convict the accused-petitioner beyond
reasonable doubt of the crime of homicide
even in the absence of any eyewitness who
personally saw the sho[o]ting of the victim
by the accused, basing it only on the
testimony of the prosecutor who had
administered the oath on the Counter-
affidavit filed by petitioner-accused.

"II. Whether or not the prosecution has
presented proof beyond reasonable doubt
to overcome the constitutional
presumption of innocence of the accused
and his right against self-incrimination on
the basis of the Counter-affidavit whose
execution was admitted by the counsel of
the petitioner, but not by the accused
personally.

"III. Whether or not the Counter-affidavit of
the accused-petitioner which was
considered by the Sandiganbayan in its
decision as similar to an extrajudicial
confession may [be] admitted against him
as evidenc[e] of guilt beyond reasonable
doubt even if he was not assi[s]ted then by
counsel and while he was under custodial
investigation.

"IV. Whether or not the Sandiganbayan is
constitutionally and legally correct in issuing
the Order of August 23, 1996 denying the
Motion for Leave of Court to File Demurrer
to Evidence dated August 16, 1995 filed by
the accused in accordance with Sec. 15 of
Rule 120 of the 1985 Rules on Criminal
Procedure in relation to Rule XXI of the
Revised Rules of Sandiganbayan.

"V. Whether or not accused is entitled to
the mitigating circumstance of voluntary
surrender which fact was admitted by the
prosecution as it even used the same as
proof of the guilt of the accused."
16


In short, petitioner raises the following
questions in this appeal: (1) whether the
Counter-Affidavit he executed during the
preliminary investigation of this case is
admissible proof showing his complicity in
the crime, (2) whether the Sandiganbayan
erred in denying his Motion for Leave to File
a Demurrer to Evidence, and (3) whether he
is entitled to the mitigating circumstance of
voluntary surrender.

This Courts Ruling
The Petition is not meritorious.

First Issue:
Admissibility of Counter-Affidavit
Undeniably, the resolution of this case
hinges mainly on the admissibility of the
Counter-Affidavit
17
submitted by petitioner
during the preliminary investigation. He
argues that no counsel was present when
the Affidavit was executed. In support of his
argument, he cites the Constitution thus:

"SEC. 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.

x x x x x x x x x
(3) Any confession or admission obtained in
violation of this or Section 17 hereof shall
be inadmissible in evidence against him."
18

It is well-settled that the foregoing legal
formalities required by the fundamental law
of the land apply only to extra-judicial
confessions or admissions obtained during
custodial investigations.
19
Indeed, the rights
enumerated in the constitutional provision
"exist only in custodial interrogations, or in-
custody interrogation of accused
persons."
20

Custodial interrogation is the questioning
initiated by law enforcement officers after a
person has been taken into custody or
otherwise deprived of his freedom of action
in any significant way.
21

In the present case, petitioner admits that
the questioned statements were made
during the preliminary investigation, not
during the custodial investigation. However,
he argues that the right to competent and
independent counsel also applies during
preliminary investigations.

We disagree. A preliminary investigation is
an inquiry or a proceeding to determine
whether there is sufficient ground to
engender a well-founded belief that a crime
has been committed, and that the
respondent is probably guilty thereof and
should be held for trial.
22

Evidently, a person undergoing preliminary
investigation before the public prosecutor
cannot be considered as being under
custodial investigation. In fact, this Court
has unequivocally declared that a
defendant on trial or under preliminary
investigation is not under custodial
interrogation.
23
It explained as follows:

"His [accused] interrogation by the police, if
any there had been would already have
been ended at the time of the filing of the
criminal case in court (or the public
prosecutors office). Hence, with respect to
a defendant in a criminal case already
pending in court (or the public prosecutors
office), there is no occasion to speak of his
right while under custodial interrogation
laid down by the second and subsequent
sentences of Section 20, Article IV of the
1973 Constitution [now Section 12, Article
III of the 1987 Constitution], for the obvious
reason that he is no longer under custodial
interrogation."
24

There is no question that even in the
absence of counsel, the admissions made
by petitioner in his Counter-Affidavit are
not violative of his constitutional rights. It is
clear from the undisputed facts that it was
not exacted by the police while he was
under custody or interrogation. Hence, the
constitutional rights of a person under
custodial investigation as embodied in
Article III, Section 12 of the 1987
Constitution, are not at issue in this case.

However, the accused -- whether in court or
undergoing preliminary investigation before
the public prosecutor -- unquestionably
possess rights that must be safeguarded.
These include: 1) the right to refuse to be
made witnesses; 2) the right not to have
any prejudice whatsoever imputed to them
by such refusal; 3) the right to testify on
their own behalf, subject to cross-
examination by the prosecution; and 4)
while testifying, the right to refuse to
answer a specific question that tends to
incriminate them for some crime other than
that for which they are being prosecuted.
25

We do not, however, agree with the
Sandiganbayans characterization of
petitioners Counter-Affidavit as an
extrajudicial confession. It is only an
admission. Sections 26 and 33 of Rule 130
of the Revised Rules on Evidence distinguish
one from the other as follows:

"SEC. 26. Admissions of a party. The act,
declaration or omission of a party as to a
relevant fact may be given in evidence
against him.

"SEC. 33. Confession. The declaration of
an accused acknowledging his guilt of the
offense charged, or of any offense
necessarily included therein, may be given
in evidence against him."

In a confession, there is an
acknowledgment of guilt; in an admission,
there is merely a statement of fact not
directly involving an acknowledgment of
guilt or of the criminal intent to commit the
offense with which one is charged.
26
Thus,
in the case at bar, a statement by the
accused admitting the commission of the
act charged against him but denying that it
was done with criminal intent is an
admission, not a confession.
27

The Counter-Affidavit in question contains
an admission that petitioner actually shot
the victim when the latter was attacking
him. We quote the pertinent portion:

"[K]aya itong si Kapitan San Juan ay
sumugod at hinawakan ako sa may leeg ng
aking suot na T-shirt upang ako ay muling
saksakin; sa dahilang hindi ako makatakbo o
makaiwas sa kabila ng aking pananalag
hanggang magpaputok ako ng pasumala sa
kanya; sa bilis ng pangyayari ay hindi ko
alam na siya ay tinamaan;"
28

Through the above statement, petitioner
admits shooting the victim -- which
eventually led to the latters death -- but
denies having done it with any criminal
intent. In fact, he claims he did it in self-
defense. Nevertheless, whether categorized
as a confession or as an admission, it is
admissible in evidence against him.

Further, we do not doubt the voluntariness
of the Counter-Affidavit. Petitioner himself
submitted it to the public prosecutor to
justify his actions in relation to the charges
hurled against him. It escapes this Court
how he can cavalierly deny a document that
he has voluntarily submitted and originally
relied upon in his defense.

In general, admissions may be rebutted by
confessing their untruth or by showing they
were made by mistake. The party may also
establish that the response that formed the
admission was made in a jocular, not a
serious, manner; or that the admission was
made in ignorance of the true state of
facts.
29
Yet, petitioner never offered any
rationalization why such admissions had
been made, thus, leaving them unrebutted.
In addition, admissions made under oath, as
in the case at bar, are evidence of great
weight against the declarant. They throw on
him the burden of showing a mistake.
30

Petitioner contends that nowhere in the
transcripts of this case can it be found that
he has admitted to the authorship, the
authenticity or the voluntariness of the
Counter-Affidavit. We quote verbatim the
proceedings in the Sandiganbayan:
"PJ GARCHITORENA
Well, he will identify the person who
took the oath before him. Will you
deny that it was your client who took
the oath before the Fiscal at the
preliminary investigation?
ATTY. ILAGAN
We will admit that, your Honor.
PJ GARCHITORENA
So in that case we will have no
question about the authorship,
authenticity and the voluntariness of
the execution of the counter-affidavit
dated July 31, 1990? Companiero?
ATTY ILAGAN
Admitted, your Honor."
31

The admissions of petitioner made through
his counsel cannot be any clearer. To be
sure, the unbroken stream of judicial dicta
is that, in the conduct of their case, clients
are bound by the actions of their counsels,
save when the latters negligence is so
gross, reckless and inexcusable that the
former are deprived of their day in
court.
32
Also, clients, being bound by the
actions of their counsels, cannot complain
that the result of the litigation might have
been different had their lawyers proceeded
differently.
33
A counsel may err as to the
competency of witnesses, the sufficiency
and the relevance of evidence, the proper
defense, the burden of proof, the
introduction or the withholding of
witnesses or pieces of evidence, or the
manner of arguing the case. This Court,
however, has ruled several times that those
are not even proper grounds for a new trial,
unless the counsels incompetence is so
gross that the clients are prevented from
fairly presenting their case.
34

Having admitted that he had fatally shot the
victim, petitioner had the duty of showing
that the killing was justified, and that the
latter incurred no criminal liability
therefor.
35
Petitioner should have relied on
the strength of his own evidence and not on
the weakness of that for the prosecution.
Even if his evidence be weak, it cannot be
disbelieved after the accused has admitted
the killing.
36

Petitioner argues that it was the
prosecution that indirectly raised the issue
of self-defense. Hence, he could not be
bound by it. This argument deserves scant
consideration. As discussed earlier, the
declarations contained in his Counter-
Affidavit are admissions that may be used
as evidence against him.
37
The
Sandiganbayan did not unfairly presume
that he had indeed raised the theory of self-
defense, because this argument had already
been laid out in his Counter-Affidavit. No
presumption was necessary, because the
admission was clear and unequivocal.

Neither do we believe petitioners claim
that the anti-graft court "miserably failed to
give equal effect or treatment to all the
allegations found therein (Counter-
Affidavit) choosing deliberately and without
reasonable basis the parts which are
incriminating in character, and ignoring
without sufficient legal basis the
exculpatory assertions of the accused."
38

The unsubstantiated and uncorroborated
statements of petitioner in his Counter-
Affidavit are utterly insufficient to discharge
his burden of proving that the act of killing
was justified. It is hornbook doctrine that
self-defense must be proved with certainty
by sufficient, satisfactory and convincing
evidence that excludes any vestige of
criminal aggression on the part of the
person invoking it.
39
It cannot be
entertained if it is uncorroborated by any
separate and competent evidence, and it is
also doubtful.
40
The question whether the
accused acted in self-defense is essentially a
question of fact properly evaluated by the
lower court; in this case, the
Sandiganbayan.
41

By itself, the Counter-Affidavit miserably
fails to establish the requisites of self-
defense enumerated in the law.
42
Had
petitioner been more vigilant in protecting
his rights, he could have presented clear
and cogent evidence to prove those
elements. But, as found by the court a quo,
he not only failed to discharge the burden
of proving the existence of the justifying
circumstance of self-defense; he did not
even bother to present any evidence at
all.
43
So, we do not see how the
Sandiganbayan could have been selective in
its treatment of his Counter-Affidavit.

Verily, if the accused fails to discharge the
burden of proving the existence of self-
defense or of any other circumstance that
eliminates criminal liability, his conviction
shall of necessity follow, on the basis of his
admission of the killing.
44
Upholding this
principle does not in any way violate his
right to be presumed innocent until proven
guilty. When he admitted to having killed
the victim, the burden of proving his
innocence fell on him. It became his duty to
establish by clear and convincing evidence
the lawful justification for the killing.

Therefore, petitioner can no longer invoke
his constitutional right to be presumed
innocent of the crime charged.
45
As far as
he is concerned, homicide has already been
established. The fact of death and its cause
were established by his admissions coupled
with the other prosecution evidence
including the Certificate of Death,
46
the
Certificate of Post-Mortem
Examination
47
and the Medico-Legal
Findings.
48
The intent to kill is likewise
presumed from the fact of death.
49

Second Issue:
Denial of Motion for Leave to File Demurrer
Petitioner then argues that the
Sandiganbayan erred in not giving due
course to his Motion for Leave to File
Demurrer to Evidence. He brands this denial
as legally and constitutionally wrong.
50

We disagree. Prior leave to file a demurrer
to evidence is discretionary upon the trial
court.
51
And, unless there is grave abuse
amounting to lack or excess of jurisdiction
in its denial, the trial courts resolution may
not be disturbed.
52

Final Issue:
Voluntary Surrender
After vigorously arguing against his own
Counter-Affidavit, petitioner, in a surprising
change of tenor, implores this Court to
consider his voluntary surrender to the
police authorities as a mitigating
circumstance. He argues that two of the
prosecution witnesses testified that he had
surrendered to the police authorities after
the shooting incident.
53
To buttress his
argument, he contends that the "main
reason for his voluntary surrender is that he
sincerely believe[d] that he was legally
justified in defending himself as a
policeman when he fought the victim after
he was attacked by the latter."
54
It goes
without saying that this statement only
reaffirms the admissions contained in his
Counter-Affidavit, which he so vehemently
tried to discredit.

For voluntary surrender to mitigate criminal
liability, the following elements must
concur: 1) the offender has not been
actually arrested, 2) the offender
surrenders himself to a person in authority
or to the latters agent, and 3) the
surrender is voluntary.
55
To be sufficient,
the surrender must be spontaneous and
made in a manner clearly indicating the
intent of the accused to surrender
unconditionally, either because they
acknowledge their guilt or wish to save the
authorities the trouble and the expense
that will necessarily be incurred in searching
for and capturing them.
56

The only pieces of evidence in support of
the plea of voluntary surrender made by
petitioner are statements made by two (2)
prosecution witnesses that they were
allegedly told by other people that he had
already gone to the police station. There is
no showing that he was not actually
arrested; or that when he went to the
police station, he surrendered himself to a
person in authority. Neither is there any
finding that he has evinced a desire to own
to any complicity in the killing.1wphi1

We have ruled in the past that the accused
who had gone to the police headquarters
merely to report the shooting incident did
not evince any desire to admit responsibility
for the killing. Thus, he could not be
deemed to have voluntarily
surrendered.
57
In the absence of sufficient
and convincing proof showing the existence
of indispensable circumstances, we cannot
appreciate voluntary surrender to mitigate
petitioners penalty.

WHEREFORE, the Petition is DENIED and the
assailed Decision and Resolution AFFIRMED.
Costs against petitioner.
SO ORDERED.















GR. No. L-26282 November 29, 1976
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
BENITO SATORRE and PAULINO
RONDINA accused-appellants.

CONCEPCION JR., J:
Appeal from the decision of the Court of
First Instance of Leyte (Carigara), Branch VI,
in Criminal Case No. 2641, finding the
accused Benito Satorre and Paulino Rondina
guilty beyond reasonable doubt of the
crime of double murder, the dispositive
portion of which reads as follows:

WHEREFORE, the Court finds the accused
Benito Satorre and Paulino Rondina guilty
beyond reasonable doubt of the crime of
double murder which is punished under
Article 248 of the Revised Penal Code,
without any aggravating or mitigating
circumstances present in the Commission of
the offense. Taking into consideration the
provisions of said Article in relation to
Article 64, paragraph 1, of the same Code,
the court hereby sentences each of the
defendants Benito Satorre and Paulino
Rondina to suffer reclusion perpetua for
each the two murders, and jointly and
severally to indemnify the heirs of each of
the deceased Carlos Espina and Loreto Silva
the sum of Six Thousand pesos (P6,000.00)
without subsidiary imprisonment in case of
insolvency, the principal penalty being
higher than prision correccional, and to pay
the costs of the proceedings. However, the
duration of the aggregate penalties herein
imposed shall not exceed forty (40) years
for each of the accused in accordance with
the provision of Article 70 of the Revised
Penal Code.
1

During the pendency of the appeal, the
appellant Paulino Rondina died on
December 11, 1975 in the New Bilibid
Prison Hospital, Muntinglupa, Rizal,
2
and
the case against him was dismissed per
Resolution
3
of this Court, dated August
27,1976.

Hence, only the appeal of appellant Benito
Satorre remains to be resolved.

From the evidence of record, the trial court
found the facts as follows:

On May 2, 1962, the appellants Benito
Satorre and Paulino Rondina, both
members of the municipal police force of
Leyte, Leyte, were sent by the Chief of
Police to Bo. Toctoc to maintain peace and
order on the occasion of the celebration of
its barrio fiesta on the third of the same
month.
4

On the eve of the barrio fiesta, the
appellants together with Gavino Delantar,
Domingo Espina, Santiago Dagandan, and
Carlos Espina, were drinking "tuba" in the
house of Juan Lucero.
5
Thereafter, the
group went to the dance at the basketball
court.
6

After the dance at about 2:00 o'clock in the
morning of May 3, 1962, Carlos Espina,
Gavino Delantar, Dodong Delima, and the
appellants went to the place of Carlos
Espina and stayed in front of his house.
Thereupon, Gavino Delantar and the
appellants invited Carlos Espina for more
drinks, but the latter was advised by his
brother, Domingo Espina, not to accept the
invitation because he (Carlos) was already
drunk. Carlos Espina answered him saying:
"Do not be afraid, my brother, anyway the
persons taking me are agents of the law."
7

Thereafter, the appellants placed their arms
around the shoulder of Carlos Espina and
pulled him away saying, "Come, Ling, let us
go and drink a little more."Thereupon, his
brother Domingo Espina held Carlos by the
waist and drew him back. Carlos Espina
resisted facing the appellants while
Domingo Espina was dragged behind. Then,
the appellants pointed their guns at Carlos
Espina. Benito Satorre's gun exploded first,
followed by the gunfire of Paulino Rondina.
Immediately thereafter, Carlos Espina
shouted, "I am hit", while Loreto Silva was
also hit by the gunfire.
8
Thereupon,
Domingo Espina sought cover inside the
house of Carlos Espina and, while inside, he
heard another shot.
9

Immediately after the shooting, Domingo
Espina came out of the house and found
Carlos lying on the ground, face down,
already dead, while Loreto Silva was on the
floor near the door with his breast bleeding.
Domingo Espina sent Alfredo Silva to fetch
the Barrio Lieutenant,
10
a certain Baltazar
Montecillo.
11
Upon his arrival, Baltazar
Montecillo immediately took the ante-
mortem statement
12
of Loreto Silva to the
effect that Benito Satorre shot him after
shooting Carlos Espina with Paulino
Rondina as his companion. Loreto Silva died
after affixing his thumbmark to his dying
declaration, aided by the Barrio
Lieutenant.
13

The foregoing facts are not disputed in his
appeal. The appellant merely assails the
trial court in holding that there was
treachery in the commission of the crime,
and in convicting him of two separate
crimes of murder.

The Solicitor General concedes that
treachery did not attend the commission of
the crime. We agree and adopt the well-
reasoned observation of the Solicitor
General in the following tenor:

It is generally conceded that there is no
alevosia or treachery where attack is frontal
(People vs. Matbagon, 60 Phil. 887) or
where the assault is made face to face
(People vs. Luna, 76 Phil. 101). But it is also
true that although an assault is made face
to face, yet it may also constitute treachery
if the attack was sudden and unexpected to
the point of incapacitating the victim to
repel and/or escape from it (People vs.
Noble, 77 Phil. 93). The doctrine deducible
is that if the slayer makes a sudden and
unexpected attack with a deadly weapon on
an unarmed and unsuspecting victim under
conditions which makes it impossible for
the party assailed to flee or make defense
before the fatal blow is delivered, the act
should be considered qualified
by alevosia (People v. Pengson, 44 Phil,
0224; People v. Felipe, G.R. No. L-4617,
prom. Jan. 25, 1952). Be that as it may, it
was held that an attack which was sudden
and unexpected to the person assaulted
would not constitute the element
of alevosia necessary to raise a homicide to
murder where it did not appear that the
aggressor had consciously adopted a mode
of attack intended to facilitate the
perpetration of homicide without risk to
himself. (People vs. Tumaob, 46 O.G. (Supp.
11) 190; U.F. vs. Namit, 33 Phil. 926).

The records in this case are berett on any
evidence to indicate that appellants
reflected, much less planned, on the means,
method and form of killing the victims. The
firing came immediately after the brother
of the victim Carlos Espina was trying to
wrest him away from appellants, and the
latter were seen pointing the gun at said
victim before the actual firing commenced.
As to motive, the evidence is not clear,
although it could be surmised, to be
consistent with the legal presumption
favoring an accused, that the latter killed
the victims as a result of an impulsive
decision brought about because of the
alleged slight or insult, real or imagined, on
appellants proximately caused by the act of
the brother of Carlos Espina of taking him
away from the former. It is to be noted that
appellants were then intoxicated to the
extent that their senses might have been
blurred. In any event, a reasonable doubt
appears as to the existence of the qualifying
circumstance of treachery.
14

In the absence of treachery as a qualifying
circumstance, the crime committed is only
homicide and not murder.

This brings us to the question as to whether
the herein appellant should be held liable
for two separate crimes of homicide or for
only one.

From the evidence, it appears that
appellant Benito Satorre was the first one
who fired his gun at Carlos Espina, followed
immediately by the shot fired by Paulino
Rondina. The two gunshot wounds suffered
by the deceased Espina were therefore
inflicted by Satorre and Rondina, in that
order.
15
The lone gunshot wound suffered
by the deceased Loreto Silva was inflicted
also by appellant Satorre. This is clearly
established in Silva's dying declaration
taken by Barrio Lieutenant Baltazar
Montecillo of Barrio Toctoc, Leyte, Leyte. In
the said dying declaration, Silva
categorically stated that he was shot by
Benito Satorre.
16

Appellant Benito Satorre should therefore
be held liable for two separate offenses of
homicide. Under Article 249 of the Revised
Penal Code, homicide is punishable
by reclusion temporal. There being no
mitigating or aggravating circumstances,
the penalty imposed by law for the crime
committed should be imposed in its
medium period.
17

WHEREFORE, the appealed judgment is
hereby modified. Appellant Benito Satorre
is declared guilty of two separate offenses
of homicide, without any mitigating or
aggravating circumstances, and applying
the Indeterminate Sentence Law, sentenced
to imprisonment of not less than ten (10)
years of prision mayor, as minimum, to
seventeen (17) years of reclusion
temporal, as maximum, for each offense.
The indemnity awarded by the trial court to
the heirs of Carlos Espina and Loreto Silva in
the sum of P6,000.00 should be increased
to P12,000.00, for each set of heirs.
Thus modified, the judgment of the lower
court is affirmed in all other respects, with
costs.
SO ORDERED.



G.R. No. L-25769 December 10, 1974
FRANCISCO FLORES and FRANCISCO
ANGEL, petitioners,
vs.
PEOPLE OF THE PHILIPPINES, respondent.

FERNANDO, J.:p
A plea based on the constitutional right to a
speedy trial
1
led this Court to act
affirmatively on a certiorariproceeding for
the dismissal of a case then pending in the
Court of Appeals. Considering the length of
time that had elapsed, it is readily
discernible why an inquiry into the matter is
well-nigh unavoidable. The accusation for
robbery against petitioners Francisco Flores
and Francisco Angel was filed as far back as
December 31, 1951. The decision rendered
on November 29, 1955 found them guilty of
the crime charged. The notice of appeal was
filed on December 8, 1955.
2
For a period of
three years, until February 10, 1958, no
action was taken by the Court of Appeals.
On that day, there was a resolution
remanding the records of the case to the
lower court for a rehearing of the testimony
of a certain witness deemed material for
the disposition of the case.
3
Such a
resolution was amended by a second
resolution dated August 5, 1959, which
granted the motion for counsel of
appellants, now petitioners, to set aside the
decision so that evidence for the defense
on certain new facts or matters may be
received and that a new decision in lieu of
the old one may be rendered in accordance
with the facts as found.
4

Accordingly, the case was returned to the
lower court with the former decision set
aside so that the trial could be had, but
nothing was done for about a year because
the offended party failed to appear
notwithstanding the six or seven dates set
for such hearing.
5
It was further alleged
that when thereafter he did take the
witness stand, his testimony was far from
satisfactory, characterized as a mere
"fiasco" as he could no longer remember
the details of the alleged crime; there was
even a failure to identify the two
accused.
6
Instead of rendering a new
decision, the former one having been set
aside as required by the Court of Appeals,
the lower court merely sent back the
records to the appellate tribunal.
7
At that
stage, five more years having elapsed
without anything being done, petitioners
sought the dismissal of the cases against
them due to such inordinate delay in their
disposition, which covered the period of
December 8, 1955 to May 10, 1965, a
period of almost a decade; thus did they
invoke their constitutional right to a speedy
trial.
8


Respondent Court of Appeals was
unresponsive, notwithstanding the vigorous
plea on the part of counsel for petitioners,
its last order being a denial of a second
motion for reconsideration dated January
28, 1966. In the answer on behalf of the
People of the Philippines, the facts as above
set forth were substantially admitted.
However, a special and affirmative defense
raised was that the case was not properly
captioned, as the People of the Philippines,
against whom it is filed, is not a tribunal or
an office exercising judicial functions and
that without the Court of Appeals being
made a party to the petition, it cannot be
said that it stated facts sufficient to
constitute a cause of action. Moreover, on
the merits, the view was expressed that
under the circumstances, it was not
adequately shown that the right to a speedy
trial had been violated, as the Court of
Appeals had taken all the steps necessary to
complete the transcript of stenographic
notes of the original trial.

On the above undisputed facts, there is
more than sufficient warrant for the
conclusion that the right to a speedy trial,
so zealously guarded in both the 1935 and
the present Constitutions, had not been
accorded due respect. There is thus merit in
the petition.
1. The constitutional right to a speedy
trial, as was noted in a rece
2. nt decision, Acebedo v.
Sarmiento,
9
"means one free from
vexatious, capricious and oppressive
delays, ... ."
10
Thus, if the person
accused were innocent, he may
within the shortest time possible be
spared from anxiety and
apprehension arising from a
prosecution, and if culpable, he will
not be kept long in suspense as to the
fate in store for him, within a period
of course compatible with his
opportunity to present any valid
defense. As was also pointed out in
Sarmiento: "The remedy in the event
of a non-observance of this right is by
habeas corpus if the accused were
restrained of his liberty, or
by certiorari, prohibition, or
mandamus for the final dismissal of
the case."
11
The above ruling is a
reiteration of the doctrine
announced, even before the 1935
Constitution, in Conde v. Rivera,
12
a
1924 decision. In that case, Justice
Malcolm announced categorically
that the trial, to comply with the
requirement of the then organic law,
the Philippine Autonomy Act, must
be "free from vexatious, capricious,
and oppressive delays."
13
Further:
"We lay down the legal proposition
that, where a prosecuting officer,
without good cause, secures
postponements of the trial of a
defendant against his protest beyond
a reasonable period of time, as in this
instance for more than a year, the
accused is entitled to relief by a
proceeding in mandamus to compel a
dismissal of the information, or if he
be restrained of his liberty, by habeas
corpus to obtain his freedom."
14


In the first Supreme Court decision after the
1935 Constitution took effect, People v.
Castaeda,
15
where it was shown that the
criminal case had been dragging on for
almost five years and that when the trial did
finally take place, it was tainted by
irregularities, this Court set aside the
appealed decision of conviction and
acquitted the accused. As was pointed out
by the ponente, Justice Laurel: "The
Government should be the last to set an
example of delay and oppression in the
administration of justice and it is the moral
and legal obligation of this court to see that
the criminal proceedings against the
accused come to an end and that they be
immediately discharged from the custody of
the law."
16
It was on the basis of the above
judgment that the dismissal of a second
information for frustrated homicide was
ordered by this Court, where the evidence
disclosed that the first information had
been dismissed after a lapse of one year
and seven months from the time the
original complaint was filed during which
time on the three occasions the case was
set for trial, the private prosecutor twice
asked for postponements and once the trial
court itself cancelled the entire calendar for
the month it was supposed to have been
heard.
17
The same result followed
in Esguerra v. De la Costa,
18
where the first
complaint was filed on August 29, 1936, the
accused having been criminally prosecuted
for an alleged abuse of chastity in a justice
of the peace court but after over a year and
three months, with the lower court twice
dismissing the case, he still had to face trial
for the same offense on a new information,
thus compelling him to resort to a
mandamus suit to compel the lower court
to terminate the case was his right to a
speedy trial was violated, a remedy deemed
appropriate by this Court.

There was another occasion where Justice
Laurel spoke for this Court on this specific
issue. That was inMercado v.
Santos.
19
Here, for a period of about
twenty months, the accused was arrested
four times on the charge of falsifying his
deceased wife's will. Twice, the complaints
were subsequently withdrawn. The third
time he was prosecuted on the same
charge, he was able to obtain a dismissal.
Then came on the part of the provincial
fiscal, a motion for reinvestigation. The
lower court was in a receptive mood. It
ordered that the case be heard on the
merits. The accused moved to dismiss, but
he did not succeed. He tried the Court of
Appeals, but he failed again. He elevated
the matter to this Court; he prevailed. It
was stressed in Justice Laurel's opinion: "An
accused person is entitled to a trial at the
earliest opportunity. ... He cannot be
oppressed by delaying the commencement
of trial for an unreasonable length of time.
If the proceedings pending trial are
deferred, the trial itself is necessarily
delayed."
20
The opinion likewise considered
as not decisive the fact that the provincial
fiscal did not intervene until an information
was filed charging the accused with the
crime of falsification the third time. Thus:
"The Constitution does not say that the
right to a speedy trial may be availed of
only where the prosecution for crime is
commenced and undertaken by the fiscal. It
does not exclude from its operation cases
commenced by private individuals. Where
once a person is prosecuted criminally, he is
entitled to a speedy trial, irrespective of the
nature of the offense or the manner in
which it is authorized to be
commenced."
21
The latest decision in
point, Acebedo v. Sarmiento,
22
presented
an even clearer case. The information for
damage to property was filed on August 3,
1959. There the matter rested until May 19,
1965, when the accused moved to dismiss.
The lower court denied the motion in his
order of July 10, 1965. Two more years
elapsed, the period now covering almost
eight years, when the trial was commenced.
When one of the witnesses for the
prosecution failed to appear, the provincial
fiscal sought the postponement, but the
accused countered with a motion for
dismissal. The lower court acceded, and this
Court sustained him, even if thereafter it
changed its mind and reinstated the case.

Petitioners can thus invoke the
constitutional guarantee that the trial
should be speedy. In the absence of any
valid decision, the stage of trial has not
been completed. In this case then, as of
May 10, 1965, when they moved to dismiss
in the Court of Appeals, petitioners could
validly contend that they had not been
accorded their right to be tried as promptly
as circumstances permit. It was not the
pendency in the Court of Appeals of their
cases that should be deemed material. It is
at times unavoidable that appellate
tribunals cannot, even with due diligence,
put an end to suits elevated to them. What
is decisive is that with the setting aside of
the previous decision in the resolution of
August 5, 1959, petitioners could validly
premise their plea for dismissal on this
constitutional safeguard. That is the sole
basis for the conclusion reached by us
considering the controlling doctrine
announced with such emphasis by this
Court time and time again.

2. That is about all that needs be said. The
crucial issue has been met. The decisive
question has been answered. There is an
affirmation of the worth of the
constitutional right to a speedy trial. Not
too much significance should be attached to
the procedural defect pointed out in the
answer of the People of the Philippines that
the Court of Appeals should have been
made the party respondent. What cannot
be sanctioned was its failure to accord
respect to this particular constitutional
right. It did amount at the very least to a
grave abuse of discretion. Whatever
deficiency in the pleading may then be
singled out, it cannot obscure the obvious
disregard of one of the most important
safeguards granted an accused. To deny
petitioners the remedy sought would be to
exalt form over substance. At any rate, the
petition could be considered, and rightly so,
as being directed at the Court of Appeals.
Moreover, the defenses that could have
interposed to justify the action taken were
invoked by the People of the Philippines.
They certainly did not avail. Our decisions
on the right to a speedy rial speak too
categorically to be misread. This is one of
those situations then where, in the apt
language of the then Justice, now Chief
Justice, Makalintal, "technicalities should
give way to the realities of the situation."
23

WHEREFORE, the petition for certiorari is
granted, and the order of the Court of
Appeals in CA-GR No. 16641-R entitled,
People v. Francisco Flores, et al., of
September 28, 1965 denying the motion to
dismiss as well as its order of January 8,
1966 denying the motion for
reconsideration, and the order of January
28, 1966 denying the second motion for
reconsideration are hereby set aside,
nullified, and considered of no force and
effect. The criminal case against petitioners
in the aforesaid CA-GR No. 16641-R are
ordered dismissed. Costs de oficio.