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G.R. No.

May 29, 1968
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
SIMPLICIO ANIEL, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
Jose V. Santos for defendant-appellant.
Pelagio Condemena, Casamero Patino, Ricarido Causing and Simplicio Aniel were charged with the crime of robbery in band with
homicide in the Court of First Instance of Leyte, with the qualifying circumstance of treachery, and aggravating circumstances of
nocturnity, abuse of superior strength and dwelling.
After trial, the court found all the accused guilty beyond reasonable doubt of the crime of robbery in band with homicide without, however,
making a finding on any of the aggravating circumstances alleged in the information, instead it took into consideration the lack of
instruction and education in mitigation of their criminal liability, and sentenced each to a penalty of reclusion perpetua, to pay P6,000.00
to the heirs of the victim, without subsidiary imprisonment in case of insolvency, and to pay the proportionate costs.
Pending their appeal in this Court, Pelagio Condemena, Ricarido Causing and Casamero Patino withdrew their appeal which was
granted in a resolution of the Court of June 5, 1954. As the record now stands, only Simplicio Aniel remained as the appellant.
The evidence for the prosecution has established that on October 6, 1962, at about 6 o'clock in the afternoon, Barcelisa Lamoste was
sitting by the side of the cradle of her child facing her husband Fermin Lamoste who was on the yard of the house. Their eldest daughter,
Esmeralda Lamoste, 14 years old at that time, was at the door of their house together with her younger brothers and sisters.
Suddenly, four men arrived at their house. Of these four, Barcelisa Lamoste recognized Pelagio Condemena who had been living in
Mambajao, Villaba, Leyte, for quite a long time as their neighbor. Barcelisa Lamoste did not know the names of the companions of
Pelagio Condemena, but she recognized them by their faces. On the witness stand, Barcelisa Lamoste pointed and identified Pelagio
Condemena to be one of the four men who were in their house on October 6, 1962, at about 6 o'clock in the afternoon, the date and
approximate time of the commission of the crime. In the words of the trial judge, "Barcelisa Lamoste also unhesitantly and unmistakenly,
in open court, pointed to the three companions of Pelagio Condemena on that fateful day and time above-mentioned who turned out to
bear the names of Ricarido Causing @ Garido Casamero Patino and Simplicio Aniel." (p. 2, Rec.)
She further testified that Simplicio Aniel and Casamero Patino were armed with guns, and Pelagio Condemena and Ricarido Causing
were armed with bolos when these four men arrived in their house on October 6, 1962, at about 6 o'clock in the afternoon. That upon
their arrival, Simplicio Aniel rushed towards her and pointed the gun, about one foot long, at her face, telling her the following words: "Do
not shout. If you shout. I will kill you." Barcelisa Lamoste, out of fear, did not in fact shout. While Simplicio Aniel was thus pointing the gun
at her, the three other men went directly towards where her husband was. Two of them, Casamero Patino and Ricarido Causing, each
held the hands of her husband and when resistance from Fermin Lamoste was already impossible, Pelagio Condemena, with the use of
his bolo, stabbed her husband on the right side of the breast. Upon being hit with the bolo-stab, she heard her husband said: "Dong, why

did you stab me when I did not commit any wrong?" After Fermin Lamoste was stabbed, Pelagio Condemena, Ricarido Causing and
Casamero Patino dragged her husband towards the kitchen of the house. Pelagio Condemena stayed outside while Casamero Patino
and Ricarido Causing went up the house through the kitchen.1vvphi1.nt
Esmeralda Lamoste, who was at the door of the house together with her young brothers and sisters, saw Ricarido Causing stab her
father with a bolo on the right breast below the nipple. Then Casamero Patino and Ricarido Causing approached Simplicio Aniel, at the
time still pointing his gun towards her mother, and demanded from Barcelisa their money. Her mother, out of fear, pointed to Ricarido
Causing their trunk. Ricarido Causing opened the trunk and took the amount of P200.00 from it.
Barcelisa Lamoste explained that the money was the proceeds of the sale of their carabao on October 5, 1962, the day previous to the
incident. After taking the money, the four men, Pelagio Condemena, Ricarido Causing, Simplicio Aniel and Casamero Patino fled towards
the same direction where they had come from. After they were gone, Barcelisa Lamoste shouted for help. Crispen Bactol was the first
person who responded to the call for help.
Crispin Bactol testified that at about 6 o'clock in the afternoon of October 6, 1962, he saw four men going to the house of Fermin
Lamoste. He recognized Pelagio Condemena to be one of the group. Later on, he heard a woman's voice from the house of Fermin
Lamoste calling for help. On his arrival at the house of Fermin Lamoste in answer to the call for help, he saw Fermin Lamoste dead. He
asked Barcelisa Lamoste who were the persons who killed her husband. Barcelisa Lamoste answered that of the four men, he only knew
Pelagio Condemena.
Jose P. Burgos, municipal judge of Villaba, Leyte, testified that on December 3, 1962, Pelagio Condemena, accompanied by a certain
P.C. soldier, appeared before him and sworn to the truth and veracity of his confession, Exhibit "B", the pertinent portions of which are:
9. Q. What are the names of your four (4) companions in going to the house of Fermin Lamoste?
A. I know their names but I do not know their surnames.
10. Q. Who are they and where are they residing at present?
A. ... @ Simplicio Aniel, from bo. Oson, ....
11. Q. What arms are you carrying and your companions in going to the house of Fermin Lamoste?
A ... @ Simplicio Aniel is carrying a shorten Japanese Rifle, ....
Judge Burgos further testified that on December 11, 1962, in the presence of Felix Araez, Chief of Police of Villaba, Leyte, accused
Casamero Patino appeared before him and sworn to the truth and veracity of his statement. Exhibit "C", its translation is Exhibit "C-1",
with the following pertinent portions:
5. Q. Why are you detained here, what crime are you charged?
A. Because I was with the robbery and to the murder of Fermin Lamoste.
6. Q. Do you know the robbers and those who murdered Fermin Lamoste?
A. Yes, sir. They ... and Simplicio Aniel.
As evidenced by the medical certificate, Exhibit A and A-1, the victim suffered the following injuries:
1. Incised wound on right hypochondrium 3/6" x cm. x 1 cm. obliquely directed.

2. Incised wound in the anterior auxillary line on the right hypochondrium 1-" from the first wound obliquely directed 3/4" x cm. up to
the abdominal cavity.
Appellant Simplicio Aniel, in exculpation, interposed the defense of alibi. He presented Benjamin (Benigno) Corpin, a 73-year old man,
who testified that on October 6, 1962, he was in the market fair of Celso Muertigue in Wague, Leyte, selling salted fish. His companion on
that date was Simplicio Aniel whom he hired to help him. The two of them left Considra (or Consuegra), Leyte, at 7:00 o'clock in the
morning and returned home to Considra from the market fair at 5:00 o'clock in the afternoon of the same day. They arrived together in his
house at Considra where the two of them took their meals. Then after that, Simplicio Aniel went to his house. Aniel's house was only
about 10 to 15 meters away from his home.
Felix Araez, Chief of Police of Villaba, Leyte, also testified for the defense. He testified that on October 7, 1962, a day after the robbery
and the killing occurred, he went to the house of Fermin Lamoste in Sitio Mambajao, Villaba, Leyte. His purpose was to investigate the
incident which was reported to him by the Barrio Lieutenant of Cagnocot. During his investigation, Barcelisa Lamoste, wife of the
deceased, informed him that at about 6:00 o'clock in the afternoon of October 6, 1962, there were unidentified persons who went up their
house while she was holding her baby in the cradle; that Fermin Lamoste was outside the house and when he was brought up the house,
he was already stabbed; that one of them pointed his gun at her; that she was not able to identify the robbers, not even one, because it
was already dark; that Barcelisa Lamoste pointed to the two sons of Segundo Mesa as the persons she suspected to be responsible for
the robbery because on the day of the incident, these two went to their house to buy corn and they promised to come back the following
afternoon; that he investigated the two sons of Segundo Mesa but he had to release them for lack of evidence; that when he further
asked Barcelisa Lamoste whether there were other persons who were responsible for the commission of the crime aside from the two
sons of Mesa, she said that she and Pelagio Condemena had a misunderstanding a week before the crime was committed; that when he
found out later on that this Pelagio Condemena did not go inside the house, he abandoned the investigation of Pelagio Condemena
because he had received information that before the commission of the crime, Pelagio Condemena had already abandoned his house in
On the basis of these facts, the question before the Court hinges on whether or not appellant Simplicio Aniel has been sufficiently
identified as one of the four men who participated in the commission of the crime charged.
The defense argued that the identification in open court made by Barcelisa Lamoste and her daughter, Esmeralda Lamoste, should not
have been considered by the that court as a "positive identification" which could sustain the conviction of Simplicio Aniel for the crime
charged. It is contended that the testimony of Barcelisa Lamoste that Simplicio Aniel was the person who pointed the gun at her, while his
three other companions killed her husband and, thereafter, robbed their house, was more than sufficiently contradicted, rebutted and
destroyed by the testimony of Felix Araez, the Chief of Police of Villaba, Leyte, who investigated the crime the day following the
commission of the offense; that the court should have given credence to the testimony of Benjamin Corpin with whom Simplicio Aniel was
together on October 6, 1962, from 7:00 o'clock in the morning up to 5:00 o'clock in the afternoon, selling salted fish in the market fair of
Celso Muertigue in Wague, Leyte, at the time the robbery and killing of Fermin Lamoste took place; that while it may be true that this
witness was not able to recall the other dates when he hired Simplicio Aniel to carry salted fish to Wague, Leyte, aside from October 6,
1962, Benjamin Corpin had given the reason why he particularly remember the hiring of Simplicio Aniel on that day, because on that

same day, he was reminded by his son-in-law who for the first time went fishing in Gotosan and this being the first time his son-in-law
fished in Gotosan, it is not strange that that date made a deep impression in his memory.
The lower court, however, did not believe the testimony of Benjamin Corpin because he was not able to account the whereabout of
Simplicio Aniel after 5:00 o'clock in the afternoon of October 6, 1962, the time they returned home to Considra from Wague, Leyte.
According to the trial court, Corpin was sure that they arrived in Consuegra (or Considra), Leyte, at 5:00 o'clock in the afternoon of
October 6, 1962, because Juan Delanta told them that it was exactly 5:00 o'clock in the afternoon when asked by Benjamin Corpin. On
cross-examination, however, Corpin admitted that he treated Simplicio Aniel as his son, because Simplicio Aniel is the nephew of
Corpin's son-in-law. He also admitted that he did not remember the other dates, not even the last time, when he hired Simplicio Aniel to
carry his salted fish to Wague, Leyte. Thus, the court who had personally seen and observed the behavior and manner of the witness
while testifying, concluded that his testimony is not worthy of belief because it is tainted with bias and interest of the witness to obtain a
judgment of acquittal. His memory is also faulty. The fact that a person has reached the "twilight of his age" is not always a guaranty that
he would tell the truth, the trial court further added.
With respect to the testimony of the chief of police Araez, We are more impressed into believing that he had attempted to tailor his
testimony in an effort to bolster the validity of the defense of alibi. We are not persuaded to accord credence to the testimony of the chief
of police that Barcelisa Lamoste told him that she was not able to identify the robbers, because he himself swore to the truth of the
information after he had gathered evidence pointing to Simplicio Aniel and his companions as the perpetrators of the crime.
He declared thus:
Q. Is it your purpose or intention to impress the Court that you do not believe that Pelagio Condemena, et al., have been charged
A. No, sir.
Q. What do you mean by that?
A. I mean that these persons now who are accused are the ones responsible of the crime committed.
Q. That is why you were the one who actually signed the criminal complaint in this case, is that right?
A. Yes, sir, when the complaint was amended.
Q. The incident took place on October 6, 1962 and the filing of the complaint took place on October 24, 1962, can you explain why the
filing of the complaint was delayed?
A. Because we were searching for more evidence, and when we were able to gather sufficient evidence, we filed this case. (tsn, pp.
56-57, Pareja).
Well settled is the rule that the defense of alibi is weak where the prosecution witnesses positively identified the accused. To prosper
such a defense, it must be established by clear and convincing evidence and not merely supported by witnesses who bear close ties of
relationship to the accused. The degree of the evidence trust be such as to preclude any doubt that the accused could not have been
physically present at the place of the crime or its immediate vicinity, at the time of its commission.
Barcelisa Lamoste, in the words of the trial judge who had personally seen and observed her behavior and manner of testifying on the
witness stand, "unhesitantly and unmistakenly" pointed to Simplicio Aniel as the person who rushed towards her and pointed his gun,

about one foot long, at her face, warning her at the same time not to shout or else she will be killed. Esmeralda Lamoste substantially
corroborated the testimony of her mother. And Crispin Bactol's testimony has demonstrated a circumstance of strong persuasion when
he recognized Condemena and his companions when they were passing in front of his house. The credibility of their testimony was never
successfully impugned by the defense whom they were cross-examined on the witness stand. No motive was shown by the defense why
these witnesses should impute so grave a crime to Simplicio Aniel who they did not even know before the crime was committed.
The positive identification of appellant Simplicio Aniel was further bolstered when Pelagio Condemena and Casamero Patino, in their
sworn statements Exhibits "B" and "C", named Simplicio Aniel as one of them in the group when they killed Fermin Lamoste and robbed
the house of P200.00 on October 6, 1962, at about 6:00 o'clock in the afternoon.
Extrajudicial confessions, independently made without collusion, which are identical with each other in their essential details and are
corroborated by other evidence on record, are admissible as circumstantial evidence against the person implicated to show the
probability of the latter's actual participation in the commission of the crime. As this Court has said:
While confession of a co-conspirator are not ordinarily admissible as evidence against another co-conspirator, the fact that they implicate
the latter and were made soon after the commission of the crime, is circumstantial evidence to show the probability of their co-conspirator
having actually participated therein. (People vs. Lumahang et al., L-6357, May 7, 1954.)
The commission of the crime was attended by treachery. The act of the accused in suddenly rushing towards the victim, then two of
them, each holding the hands of the victim, and the third of them stabbed the victim, is characterized by treachery insuring the
accomplishment of their purpose without risk to themselves from any defense or retaliation the victim might offer.
The conspiracy among the accused is evident and equally proven. Their acts collectively and individually executed have clearly
demonstrated the existence of a common design towards the accomplishments of the same unlawful purpose and objective to rob the
house of Lamoste. Altho the killing of Fermin Lamoste was accomplished by only three of the intruders without any physical participation
thereof by the appellant Simplicio Aniel, however, as conspiracy has been established, the crime committed is robbery in band, and the
homicide was committed on the occasion thereof, all the members of the band are liable for robbery with homicide (People vs.
Evangelista, et al., L-2489, April 12, 1950). And
... any member of a band who is present at the commission of a robbery by the band, shall be punished as principal of any of the assaults
committed by the band, unless it be shown that he attempted to prevent the same. (Art. 296, Revised Penal Code.)
the appellant Simplicio Aniel is liable as principal because the evidence does not show that he had attempted to prevent the assault and
the killing of Fermin Lamoste. (People vs. Garduque, et al., L-10133, July 31, 1958.)
The information charging appellant Simplicio Aniel, and the three other accused, of the crime of robbery in band with homicide alleged
three aggravating circumstances, namely, nocturnity, use of superior strength, and commission of the crime in the dwelling of the
offended party. The lower court, however, after finding all the four accused guilty of the crime charged, did not consider the above
aggravating circumstances when it imposed the penalty, instead took into account lack of instruction and education in mitigation of their
liability. In this respect, the trial court was in error. Existing jurisprudence has settled that lack of instruction and education a mitigating
circumstance in the crime of theft or robbery is not recognized, 1 although it might he under certain situations in cases of homicide. 2 As to
the aggravating circumstances of dwelling and superior strength, the evidence has clearly established the presence thereof in the

commission of the crime. Two of the four accused each held the hands of Fermin Lamoste, who was at the time unarmed, before he was
stabbed, while Simplicio Aniel, the appellant herein, guarded the wife, Barcelisa Lamoste, with the gun pointed at her face, and the crime
was committed in the dwelling of the victim. The trial court, therefore, should have considered dwelling and superior strength as
aggravating circumstances. (People vs. Sina-on, L-15631, May 27, 1966.)
The aggravating circumstance of nocturnity, however, cannot be appreciated. The record does not show that the peculiar advantages of
nighttime was purposely sought by the accused in the commission of the deed.
As this Court has pointed out:
... in default of any showing or evidence that the peculiar advantages of nighttime was purposely and deliberately sought by the accused,
the fact that the offense was committed at night will not suffice to sustain nocturnidad. It must concur with the intent or design of the
offender to capitalize on the intrinsic impunity afforded by darkness of night. (People vs. Boyles, et al., L-15308, May 29, 1964.)
The penalty imposable on persons found guilty of the crime of robbery in band with homicide, under Article 294, paragraph 1, Revised
Penal Code, is reclusion perpetua to death. Considering that appellant Simplicio Aniel acted in conspiracy with his co-accused, and there
is no evidence that said appellant attempted to prevent the commission of the offense charged, and taking into account the two
aggravating circumstances of dwelling and superior strength, without any mitigating circumstance to offset the same, in the opinion of the
writer, the appellant Simplicio Aniel should be made to suffer the extreme penalty of death. However, in view of the lack of the requisite
vote, the sentence imposed on him by the trial court is hereby affirmed. Costs against said appellant.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.
Fernando, J., is on leave.


[G.R. No. L-28347. January 20, 1971.]


THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. PAN PROVO, ET AL., Defendants, JOSE MESINA, Defendant-Appellant.
Solicitor General Antonio P. Barredo, Assistant Solicitor General Frine C. Zaballero and Solicitor Jaime M. Lantin for PlaintiffAppellee.

Conrado T. Quiaoit, Conrado C. Genilo, Jr. & Pedro de Jesus for, Defendant-Appellant.



Defendant Jose Mesina seeks the reversal of a decision of the Court of First Instance of Tarlac, the dispositive part of which
"WHEREFORE, on reasonable doubt, the accused PAN PROVO and LEONARDO DAVID are ACQUITTED of the crime charged, with
costs de officio. However, PAN PROVO should be released from detention because of the pendency of Criminal Case No. 2190 of this
Court wherein the said accused is one of those charged for Murder. With reference to LEONARDO DAVID, his immediate release is
ordered unless his confinement is warranted by some other legal cause.

"As for the accused JOSE MESINA, the Court finds him GUILTY of the crime of Murder punishable under Article 248 of the Revised
Penal Code, and he is hereby sentenced to suffer the penalty of reclusion perpetua; to indemnify the heirs of the victim Matignas Serrano
in the amount of TEN THOUSAND PESOS (P10,000.00); and to pay the costs. The Court has imposed the penalty in its medium period
instead of the maximum penalty of death because the aggravating circumstance of nighttime and use of superior strength alleged in the
information have already been absorbed in the qualifying circumstance of treachery."cralaw virtua1aw library

On October 9, 1958, shortly after dusk, Matignas Serrano, a security guard of the Clark Field Air Base, was forcibly taken away by five
men from his guard post at Fish Hawk No. 1, locally known as "Pisok," at Bamban, Tarlac, where there is a cement vault, about 1-1/2
meters by 2 meters at its base and about 2-1/2 meters in height, with an iron door which is padlocked. There are electric wires, on top of
the vault, connected with the wirings running southward from wooden transmission posts on both sides of said vault. 1 His dead body

was found, on October 11, 1958, in a sugarcane plantation near a wooded area, known as Sapang Bituka, not far away from said post,
with fractured "cervical vertebrae, right mandible, and right basofrontal bones." On December 2, 1958, a complaint was filed accusing
herein appellant Jose Mesina, together with John Doe, Peter Doe, Richard Doe and William Doe, of kidnapping with murder. Soon
thereafter, the corresponding information was filed with the Court of First Instance of Tarlac charging Jose Mesina and Leonardo David,
alias Benaring, with the afore said crime. Still later, the information was amended include Pan Provo as one of the accused.

The main evidence for the prosecution against Mesina consisted of the testimonies of Benita Mayuyu, Anastacio Serrano, Apolonio
Gilbert, Kudiaru Laxamana and Emilio Provo, and Exhibits C and E. The prosecution, likewise, introduced the testimony, among others,
of Robert Armstrong, superintendent of the police at the Air Base, which is partly in Camp ODonnell, province of Pampanga, and partly in
Bamban, Tarlac.

Armstrong testified that, in addition to a private road therein, the Air Base used to maintain its communications with Camp ODonnell by
radio, as well as thru underground cables, about two (2) inches in diameter, containing around 900 wires, for the protection of which and
other property within the base the U.S. Government had engaged as sentries the services of former members of the Philippine Scouts
and members of the Non-Christian tribe known as "Baluga," among whom was the deceased Matignas Serrano, whose guard post was
on a small plateau, on top of a hill, about 600 feet high. Early in 1958, the communication officer of the Air Base had reported difficulty in
communication, which was found to be due to the disappearance of a portion of said cables, about 3 miles in length apart from the
disappearance of bridges and culverts owing, presumably, to pilferage. In the evening of October 9, 1958, Anastacio Serrano, another
Baluga sentry, reported that his brother Matignas Serrano had been missing from his post at "Pisok," with his carbine, since 6:00 oclock
that evening. The next day, a posse searched in vain the vicinity of "Pisok." On October 11, 1958, the body of Matignas was found in a
state of decay at Sapang Bituka, not far away from Pisok. The carbine, and ammunition issued to him were missing. Armstrong further
said that Pan Provo is another Baluga chief the region; that he (Armstrong) had seen Pan Provo and Mesina together on several
occasions; that Pan Provo Mesina are related to each other; and that once Pan Provo asked him (Armstrong) to engage the services of
Mesina as security guard.

It appears from the testimonies of Anastacio Serrano Benita Mayuyu, Apolonio Gilbert and Kudiaru Laxamana, that, on October 9, 1958,
at about 9 :00 a.m., Mesina went to the house of Anastacio Serrano, at Baluga Village, accompanied by a man whose face was partly
covered; that, presently, Apolonio Gilbert arrived, also, at said house of Anastacio Serrano, to ask for some rice; that the three (3) visitors
took their lunch in that house; that, soon thereafter, Mesina urged Anastacio to let him get some "pipes," referring to the electric cable
lines, guarded by Matignas Serrano near Pisok, within the Air Base; that Anastacio answered that he could not grant Mesinas request
because the "pipes" (cables) belonged to the Americans; that, thereupon, Mesina remarked: "If you do not know how to get along with
people, you will not live long" ; that, later, at about 3:00 p.m., Mesina and the unknown man, who came with him, departed stating that
they were in a hurry because they had companions waiting for them at Pisok; that, just after sunset that evening, Benita Mayuyu went to
the post of her husband at Pisok and gave him a flashlight he had bade her to bring; that, soon after, five (5) men, four (4) of them

masked, came; that the unmasked man was Mesina, whom she knew long before, and who asked a cigarette from Matignas; that, as the
latter extended his hand holding the cigarette, Mesina grabbed the rifle slang on his (Matignas) shoulder, whereas the four (4) masked
men held him, and, with the help of Mesina, dragged him down the hill, and disappeared in the darkness at the foot thereof; that she,
thereupon, screamed for help; that as her nephew Berting Sibal, whose house was not far away, came, she bade him to inform her
brother-in-law, Anastacio Serrano, that Matignas had been kidnapped; that when Anastacio Serrano came, later that evening, he found
Benita crying miserably; that he gathered from her that Matignas had been taken away by several men, and since, in view of her
condition, he could not get from her the details of the occurrence, he proceeded to the Air Base and reported the matter; that the officer
then on duty therein told him (Anastacio) to go home and come back the next day with a search team, which he did; that upon learning of
the disappearance of Matignas, on October 10, 1958, Kudiaru Laxamana, another security guard of the Air Base, went, with several
persons, to Pisok, where Benita Mayuyu confirmed the news that Matignas had been kidnapped by several persons and told him that one
of them was Jose Mesina; that, as Laxamana and others proceeded down the hill to search for Matignas, following the footprints visible
on the ground, Mesina came and joined the search; that the aforementioned footprints led to a sugarcane field, at a given point of which
the footprints were divided into two (2) sets, one leading to the left and another to the right; that when the search team way about to take
the latter direction, Mesina persuaded the members of the Team to follow the footprints leading to the left; that, heeding Mesinas advice,
the search team followed this lead but failed to locate Matignas; that when the team, together with Mesina, returned to Pisok Anastacio
Serrano was there; that Benita Mayuyu then said that Mesina should not be allowed to go free "because he was the one who kidnapped
my husband" ; that, thereafter, Anastacio brought Mesina and the others to the office of the Provost Marshal; and that, one Lt. Ocampo,
an officer therein, referred them to Camp Olivas, upon the ground that the event had taken place beyond his territorial jurisdiction.

In an affidavit, Exhibit C, subscribed and sworn to before the Justice of the Peace of Angeles, Pampanga, Leonardo David stated that,
when he was about to fetch his carabao in the vicinity of Pisok, early in the evening of October 9, 1958, he met his brother, Federico
David alias "Pedring," who was accompanied by Jose Mesina and Manuel Zamora, alias "Maning" ; that "Pedring" bade him to join the
group, which he did, in going to Pisok; that as Matignas Serrano refused to allow them passage therein, "Pedring" held Matignas,
snatched his carbine and, with the assistance of his companions, dragged him away from his guard post; that Matignas was brought to a
place in Sapang Bituka, under a big tree, where Pedring" gave him fist blows and then hit him on the head with the butt of the carbine
taken away from him; and that Matignas then fell down unconscious.

Exhibit E is the transcript of the testimony given by Emilio Provo before Fiscal Fernando M. Bartolome of Tarlac, at the preliminary
investigation conducted by the latter, on July 16, 1959. Emilio Provo then testified, among other things, that Mesina is well known to him,
Mesina having visited frequently Emilios father, Pan Provo; that in 1958, his father was engaged in supervising the digging of cable lines
and culverts and the dismantling of bridges in the Clark Air Force Base with the assistance of many persons, among them Emilio
Provo and Jose Mesina; that the cables, culverts and I-Beams thus obtained were sold to Domingo de Vera and a Chinaman in
Mabalacat, Pampanga; that on October 9, 1958, just after twilight, Emilio and Pan Provo went to the house of Jose Mesina, whom the
latter invited to go to, Pisok; that on the way thereto, Federico David, alias "Pedring," and Leonardo David, alias "Benaring," joined them;

that before reaching Pisok, Emilios companions said that they would get Matignas Serrano, the guard in that place, "because of the
tubes" they were taking "and that one that was enclosed in a tank which were being guarded by Matignas Serrano" ; that as they reached
Pisok, Pan Provo called Matignas Serrano; that as Matignas stepped out of his guard post, Mesina wrested the carbine slung on the
formers shoulder; that Pan Provo and Federico and Leonardo David helped Mesina drag Matignas down the hill; that, as Matignas
offered resistance, Mesina, Pan Provo and Federico David boloed him at Sapang Bituka, where Matignas was left, already dead; and
that when they learned that the body of Matignas Serrano was found subsequently, Emilio Provo and Par Provo fled to Pulong Calara, in
the mountains.

Although Emilio Provo admitted having given this testimony, he denied, before the lower court, any knowledge about the truth thereof and
affirmed that he gave said testimony upon instructions of Angel Manipon and one Panolapi, who had assured him that he would,
thereafter, be free.

Appellant denied having performed any of the acts imputed to him by the prosecution. The defense would, also, have the Court believe
that on October 9, 1958, Mesina was in his house at Barrio San Nicolas, Bamban, Tarlac, up to 5:00 oclock p.m.; that, after taking an
early dinner, he attended the religious service, which lasted up to 8:00 p.m., at the Iglesia ni Cristo, to which he is affiliated, in that barrio;
that, at about 8:30 p.m., he and Ruben Villas attended a barrio meeting called by barrio lieutenant Remigio Ocampo; that, upon
adjournment of the meeting, around 10:00 p.m., they returned to the house of Mesina and then went to bed.

As indicated above, the trial court acquitted Pan Provo and Leonardo David, upon the ground of reasonable doubt, but convicted Mesina
of the crime of murder, and sentenced him accordingly, whereupon Mesina interposed the present appeal, contending that the trial court
erred: (1) in relying upon the testimony of Benita Mayuyu; (2) in giving credence to the testimony of Anastacio Serrano, Apolonio Gilbert
and Kudiaru Laxamana; (3) in admitting Exhibits C and E as evidence; and (4) in not believing the evidence for the defense.

Under the first assignment of error, the defense assails the credibility of Benita Mayuyus testimony, upon the ground that she had given
conflicting versions, in that at one time she said it was dark, between 8:00 and 8:30 p.m., when her husband was taken away by several
men. one of whom was Mesina, and, at another time, stated that the occurrence took place just after twilight, in seeming effort to explain
how she could recognize said appellant; that in the evening of October 9, 1958, she did not tell either her nephew Berting Sibal or her
brother-in law Anastacio Serrano, that she had recognized appellant among the kidnappers of Matiguas; that she, likewise failed to
convey such information to Anastacio Serrano as soon as he arrived at Pisok the next morning, not even when Mesina then showed up in
that place; and that neither had she revealed his participation in the commission of the crime charged, while they were going to the office
of the Provost Marshal on October 10, 1958:chanrob1es virtual 1aw library

At the outset, it should be noted that Benita Mayuyu is a member of the Non-Christian tribe known as Baluga. As such, she had grown up
and lived in a primitive condition, devoid of any education whatever. She is illiterate and cannot read, not even a time-piece. Although

Matignas had been snatched by his kidnappers at 8:00 or 8:30 p.m., she explained that this was a mere estimate of the time, which may
be mistaken, and that the event had happened "just after twilight." It is well to remember, in this connection, that, in response to her
screams for help, her nephew Berting Sibal came; that she bade Berting Sibal to forthwith inform her brother-in-law, Anastacio Serrano,
of the kidnapping of Matignas; and that, after verifying this fact, Anastacio Serrano immediately reported to the authorities that Matignas
"had been missing with his carbine since 1800 hours . . . 9 Oct.58," as recorded in the "Daily Journal SPL Police Operation" of the Air
Base. In other words, Anastacio Serrano had estimated the time of the disappearance of Matignas to be about 6 p.m. Considering that
Anastacio is more enlightened than Benita Mayuyu and that Matignas had been snatched from his post "just after twilight," there is every
reason to believe that Anastacios estimate of the time of the occurrence is more accurate than that of his sister-in-law. In fact, Benita
testified that, at 5 p.m., she brought the dinner of Matignas, who, after taking the same, bade her to bring his flashlight, whereupon she
picked it up at their hut, barely 70 meters away from Pisok, and then brought the flashlight thereto, at about 6 p.m. The occurrence took
place, shortly thereafter. 2

Then, too, "Pisok" is in a small plateau, then cleared of grass, on a hill about 600 feet in height. Although, for lack of electric lights in the
vicinity, it was already dark, particularly at the foot of the hill, it is a fact that Pisok was at the top thereof; that twilight had been over only
shortly before; that the hut of Matignas and Benita was barely 70 meters away from Pisok, 3 that Benitas eyesight had already been
adjusted to the existing conditions when she went to Pisok bringing a flashlight to Matignas; that her ability to see and recognize persons
and objects was enhanced by the circumstance that she had been with Matignas several minutes before the arrival of his kidnappers;
that the slow of the light at the Air Base proper, although 5 to 6 kilometers or miles away, rendered the top of the hill, where Pisok was,
less dark than the area at the foot thereof; and that she was beside her husband when the malefactors snatched him. We are satisfied
that the surrounding circumstances were not such as to render it impossible, or even improbable, for Benita to identify a person whom
she knew well, like Mesina, had he been with the kidnappers, unmasked. Indeed, Kudiaru Laxamana learned from Benita, on October 10,
1958, that she had recognized Mesina among the offenders, the night before. What is more, Mesina testified that, in a conversation he
had with her on October 10, 1958, Benita said she had recognized one of the kidnappers. Benita had no possible reason to inculpate him
if he were not really the unmasked kidnapper and thereby exculpate the true culprit.

Let us now consider appellants argument based upon Benitas failure to forthwith reveal the participation of Mesina in the commission of
the crime. It will be recalled that, as soon as Matignas and his kidnappers had disappeared in the darkness at the foot of the hill, Benita
hurried down another part of the hill, screaming for help. When, soon thereafter, her nephew Berting Sibal appeared, she bade him to
inform Anastacio Serrano that Matignas had been kidnapped. She did not tell Berting Sibal the details of the occurrence, for there was
vital urgency of rescuing Matignas and, hence, she did not wait for Berting to approach her, but conveyed her message to him as soon as
he was within shouting distance.

When Anastacio Serrano came, it was sometime later. Meanwhile, there was nothing she could do to save Matiguas. It is not unusual for
female members of our masses, particularly those least enlightened, to express their sorrow or desperation by crying loudly and

otherwise acting in a frenzied or hysterical manner. An intense lamentation and expression of grief for a misfortune, when unchecked
soon enough, is bound to result in a condition of numbness, under which the mind becomes somewhat dull. Under these circumstances,
it is not difficult to picture Benitas plight on October 10, 1958. When Anastacio Serrano eventually arrived, she was in no condition to
explain the occurrence or to do anything except lament the loss of her husband. She was in a daze, and did not clearly perceive or
remember what she did, or what transpired about her. She did not converse with Anastacio Serrano when he arrived, or notice the
presence of Jose Mesina, either when he first showed up that morning, or when she went to Clark Field and later to Camp Olivas. When
Kudiaru Laxamana arrived later in the morning of October 10, 1958, she, however, confided to him that Jose Mesina was one of the
culprits. And still later, when the search team headed by Laxamana came back empty handed, she said: "do not let this man (referring to
Mesina) go free, for he was the one who kidnapped" her husband.

The first assignment of error is, therefore, untenable.

Appellant assails the testimony of Anastacio Serrano and Apolonio Gilbert upon the ground that neither had inquired about the identity of
the companion of Mesina, or conversed with him (Mesinas companion) when they (Mesina and his companion) allegedly went to the
house of Anastacio Serrano in the morning of October 9, 1958, and stayed there up to 3:00 p.m., and that the remark of Mesina, about
the short life of those who do not know how to, get along with others, does not have the import the prosecution attaches thereto.

The significance of said remark is, however, irrelevant to the veracity of said witnesses for the prosecution, who corroborated each other
in connection therewith. Moreover, in the light of the fact that Mesina and the unknown person, who came with him, left the house of
Anastacio Serrano, at 3:00 p.m., stating that their companions were waiting for them at Pisok; that, at about 6 :00 p.m., that same day,
Mesina and four (4) masked men went to Pisok, snatched the carbine of Matignas and dragged him away; and that, thereafter, Matignas
was found dead, it is clear that the remark in question, made after the refusal of Anastacio Serrano to allow further pilferage of electric
cables within the Air Base, was meant to be a threat to those who might obstruct said pilferage. Upon the other hand, since the man who
accompanied Mesina to the house of Anastacio Serrano had his face covered with a towel, it was obvious that Mesina and he did not
want his identity to be known. It was, therefore, indiscreet and useless to converse with him or to otherwise ask who he was or where he
came from.

It is argued that the act of Mesina of dissuading the posse headed by Kudiaru Laxamana from following the set of footprints going to the
right of the sugarcane plantation near Pisok, and of persuading the posse to track the footprints leading to the left of said plantation is
"too insignificant" to implicate said appellant. This argument is manifestly devoid of merit, aside from being immaterial to the issue of
credibility of Laxamanas testimony. Indeed, considering that the posse had thereby failed to locate the body of Matignas, which it would
have found had it (the posse) turned right, which was the logical course to take as Laxamana wanted to for there were small
footprints in that direction and Matignas is small, the aforementioned act of Mesina tends to show that he knew where the body was and

corroborates the testimony of Benita Mayuyu to the effect that he was one of those who snatched Matignas in the evening of October 9,

It is next urged that Kudiaru Laxamana, Anastacio Serrano and Benita Mayuyu had contradicted each other, in that according to the
defense the first said that Benita "told the search party not to allow Mesina to go free because he was the one who kidnapped her
husband," whereas Anastacio Serrano affirmed that Benita "told him about Jose Mesina only the day after they came from the Office of
the Provost Marshal and when they were already at Camp Olivas," and Benita declared that "it was only when they were at Clark Field
when she told Anastacio Serrano about Jose Mesina and she did not tell the same to other members of the search party." 4

The statement of Benita Mayuyu, testified to by Laxamana, was made to him, not to the search party or to Anastacio Serrano, so that no
inconsistency exists between the latters testimony and that of Laxamana. Besides, Benita did not testify that the participation of Mesina in
the commission of the offense had been revealed by her to no other person than Anastacio Serrano. What she said is that no other
person heard her or was present when she conveyed the aforementioned information to Anastacio Serrano. Then, too, after the ordeal of
the night before, Benita did not feel well ,on October 10, 1958. The apprehension and the tension resulting from the failure to locate the
body of Matignas on that date did not certainly help improve the situation. Hence, when she was, thereafter, brought, first to Clark Field
and, then - after the usual period of waiting during the preliminary inquiries therein made - referred to Camp Olivas, she was literally and
understandably groggy. When we add to this the fact that she was kept on the witness star, for five (5) days, and that she was so
extensively cross-examined by several lawyers for the defense that the transcript of her testimony covered one hundred and five (105)
pages, some of which are single space, it is not in the least strange that this simple, illiterate member of one of our tribes of aborigines,
found herself uncertain or confused on whether her conversation with Anastacio Serrano took place at Clark Field or at Camp Olivas.
Well settled is the rule that inconsistencies and contradictions incurred by an illiterate witness in the course of a length by examination
will not affect the credibility of her testimony. 5

One fact stands in bold relief, and that is that Benita Mayuyu had positively recognized one of the culprits and that she had so stated,
from the very first moment she explained the circumstances under which her husband had been "kidnapped." This was established, not
only by her testimony and that of Kudiaru Laxamana and Anastacio Serrano, but, also, by the appellant himself. 6 In the light of the
foregoing, and considering that neither Laxamana, nor Anastacio Serrano, nor Benita Mayuyu had possible motive to falsely incriminate
appellant Jose Mesina, We do not find sufficient grounds to doubt the veracity of said witnesses for the prosecution.

Referring now to Exhibits C and E, Leonardo David testified that he had acted under duress in subscribing to the first and swearing to the
truth of its contents, whereas Emilio Provo affirmed that he knew nothing about the truth his statements in Exhibit E, he having made the
same upon instructions of Angel Manipon and one Panolapi, who assured him that he would thereby be set free. Furthermore, appellant
maintains that, being in the Datu of extrajudicial admissions or confessions, the same a admissible in evidence against its makers only,
not against him.

The testimony of Leonardo David about his alleged maltreatment by the police has all the earmarks of artificiality, for he did not reveal
said maltreatment, either to his own father, when the latter visited him at Camp Olivas, or to the Justice of the Peace of Angeles City,
before whom he subscribed and swore to the truth of the contents of Exhibit C. Besides, his signatures on each and everyone of the
three, (3) pages thereof appear to have been written with a firm hand. More important still, apart from, in effect, exculpating himself
therein, Leonardo David points in Exhibit C to his brother Federico David, alias "Pedring" as the sole killer of Matignas Serrano. The
participation of Jose Mesina, as one of those who helped "Pedring" drag Matignas away from his guard post, was merely an incident in
the description of the crime, as committed principally by "Pedring." Likewise significant is the fact that the latter Federico David, alias
"Pedring" had already been killed, In an encounter with peace officers, shortly after October 9, 1958. 7 In short, there was no reason
why the agents of the law who investigated Leonardo David would resort to duress in order to secure a statement substantially favorable
to him.

Exhibit E is the transcript of the questions propounded by Fiscal Bartolome of Tarlac and of the answers given by Emilio Provo at the
preliminary investigation conducted by said official. Angel Manipon and Panolapi who, according to Emilio Provo, induced him to give
said answers did not, take part in said investigation. It does not even appear that they were present when it was held. There is,
likewise, nothing in the record to indicate the interest, if any of Manipon and Pandapi in the case at bar, or that Emilio Provo had
reasonable grounds to believe that they could order his release or cause to take place.

Again, unlike Exhibit C, which depicts Federico David alias "Pedring" as the main culprit, the testimony of Emilio Provo in Exhibit E
tends to show that his father Pan Provo, was the mastermind, for it was he (Pan Provo) who invited Mesina to go to Pisok, and it was he
(Pan Provo) who called Matignas and persuaded him to step out of his guard post. Moreover, Pan Provo took part in the act of hacking
Matignas to death. As in Exhibit C, the reference to Mesina in Exhibit E was merely incidental to the main role played by Pan Provo. Had
it been concocted by the prosecution in this case, the story given by Emilio Provo in Exhibit E would have, in all probability, followed a
pattern identical to that of Exhibit C, made prior thereto, or to that resulting from the testimony of Benita Mayuyu, Anastacio Serrano and
Kudiaru Laxamana. Although all are unanimous on the participation of Mesina, and Exhibits C and E are in accord that Pan Provo and
Federico David had taken part, also, in the commission of the crime, these two (2) documents do not agree as regards the details of their
participation therein. In short, the explanation given by Emilio Provo, for his statement contained in Exhibit E, is manifestly unworthy of

As regards the admissibility of Exhibits C and E as evidence against Mesina, it should be noted that, although extrajudicial confessions
are in general admissible only against those who made the same, this rule is subject an exception. As pointed out and applied in People
v. Condemena: 8

"Extra-judicial confessions independently made without collusion, which are identical with each other in their essential details and are
corroborated by other evidence on record are admissible as circumstantial evidence against the person implicated to show the probability
of the latters actual participation in the commission of the crime." 9

Indeed, as early as November 5, 1915, this Court occasion to state: 10

". . . The truth of the incriminating statements of Miguela Sibug, Damaso Valencias widow, in connection with one of the said three
defendants, is proved by those made by the other witness for the prosecution, Lorenzo Reyes, and by the confession, although extra
judicial, made by Faustino Maago himself in the municipality of Hagonoy to the lieutenant of the Constabulary, Cristobal Cerquella, and
to the municipal president and a policeman of the said pueblo; and this confession is worthy of credence and is admissible against him,
as it is likewise credible and admissible against co-defendants, Abdon de Leon and Severino Perez" his accusation of their participation
in the crime, inasmuch as the confession is corroborated both by the testimony of Miguela Sibug herself and by that of Lorenzo Reyes
and confirmed by the other evidence related thereto and found in the record." 11

The applicability of the foregoing exception which has been repeatedly acknowledged and applied by this Court 12 to the case at
bar becomes apparent when we bear in mind that the statements contained in Exhibits C and E were made obviously without collusion
and independently of each other for the purpose of establishing the guilt of Federico David and Pan Provo, respectively, and that they
corroborate one another and the testimony of Benita Mayuyu, Anastacio Serrano and Kudiaru Laxamana with respect to the fact that
Matignas Serrano was dragged away from his guard post in the evening of October 9, 1958, by Mesina and several other persons
apparently for not allowing them to steal and take away electric cables from Clark Field Air Base and then killed. Hence, said Exhibits
C and E were properly admitted as circumstantial evidence tending to show the probability of the participation of appellant in the
commission of said offense, as testified to by said witnesses for the prosecution.

Needless to say, as one of the weakest defenses available in criminal cases, the alibi set up by appellant herein cannot offset the
testimony of Benita Mayuyu, who positively identified him as one of those who seized Matignas Serrano, at Pisok, in the evening of
October 9, 1958, corroborated by the testimony of the aforementioned witnesses for the prosecution and by the aforementioned Exhibits
C and E. It may not be amiss to add that Lazaro David, whose testimony was introduced by Mesina to corroborate his alibi, could not
explain why he allegedly remembered distinctly the presence of Mesina at the religious service in the Iglesia ni Cristo and the barrio
meeting he subsequently thereto, in the evening of October 9, 1958, but could not remember other events of similar nature, at about that
period of time. Upon the other hand, Remigio Ocampo would have Us believe that Mesina arrived at said meeting in the barrio of San
Nicolas around 9:00 p.m., which does not negate Mesinas presence at Pisok, at about 6:00 p.m., the latter being less than 1/2 kilometer
from the barrio of Camatsili, which, in turn, is about one-hours walk from San Nicolas. 13

The acts proven constitute the crime of murder, qualified by abuse of superior strength, with the aggravating circumstances of nocturnity
and evident premeditation, which would warrant the imposition of the extreme penalty, were it not for the lack of the number of votes
necessary therefor. Except as to the indemnity, which should be increased from P10,000 to P12,000, 14 We find, therefore, no reason to
disturb the decision appealed from, which, as thus modified as to the indemnity, is hereby affirmed, in all other respects, with the costs of
this instance against appellant Jose Mesina. It is so ordered.


G.R. No. L-27909 December 5, 1978

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
JOSE GUSTILO alias "Peping" and RICARDO DAIRO alias 'Carding" defendants-appellants.
Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio A. Torres and Solicitor Jaime M. Lantin for appellee.
Castor M. Baltazar for appellants.
Automatic review of the judgment of the Davao Court of First Instance in Criminal Case No. 6813, finding appellants Arcadio Puesca alias
"Big Boy", Jose Gustilo alias "Peping", Magno Montao alias "Edol", Filomeno Macalinao, Jr. alias "White", Walter Apa and Ricardo Dairo
alias "Carding" guilty beyond reasonable doubt of the crime of Robbery in Band with Homicide, attended by the aggravating circumstance
of nocturnity, and imposing upon them the penalty of DEATH, ordering them to indemnify jointly and severally the heirs of the deceased
Candido Macias in the amount of P6,000.00 and P20,000.00, the latter sum representing the money robbed, and to pay the costs.
The following facts were the basis of the trial court's judgment: On the early evening of November 27, 1960, Candido Macias and his
wife, Marcela Macias, were taking supper in their house located in Barrio Sinayawan. Sinayawan is a barrio of Hagonoy, Davao del Sur
and lies near the road to Digos. Under the house were their son, Fortunato Macias, and son-in-law, Anacleto Delfino. Fortunato Macias
was repairing a jeep, assisted by Anacleto Delfino who was holding a lighted "Petromax" lamp.
Suddenly, strangers with firearms unceremoniously entered the house. Three of them went upstairs. Marcela Macias and Candido
Macias heard the voice of one of them emanating from the sala, ordering the occupants of the house to lie down on the floor. Candido
Macias left the table and went out to the sala. Two gun reports were heard and Candido Macias instantly slumped to the floor. Marcela
Macias stood up and walked towards her husband but before she could reach him, she was met by one of the intruders who ordered her
to lie flat on the floor, otherwise all of them would die.
Someone under the house also directed Fortunato Macias and Anacleto Delfino not to move. Turning to his left, Fortunato Macias saw
two armed men. He immediately ran towards the coconut plantation near the house where he took refuge. Anacleto Delfino also turned
around to see who those persons were. When he held his lamp up, he saw two gunmen, one tall and the other short. He Identified one of
them as appellant Arcadio Puesca and the other as appellant Magno Montao. According to Delfino, appellant Puesca fired at him and he
was hit between the elbow and the armpit. Delfino brought down the lamp and lay flat on his belly. When he was brought to the sala
which was then lighted by a "Petromax" lamp, Delfino saw his father-in-law, Candido Macias, lying on the floor near the door. He was
already dead. He also noticed two persons with firearms whom he Identified as appellants Jose Gustilo and Filomeno Macalinao, Jr.. At
that time, Marcela Macias noticed that the intruders were ransacking the house. The trunk in the master's bedroom was forcibly opened,
and the sum of P20,000.00 was taken. This sum represented the proceeds from the sale of a parcel of land for P17,000.00 together with
their income from a twenty-four-hectare riceland and their three jeeps for hire. They also took the gun of Candido Macias which was lying

on the bed, as well as his new pair of pants and other clothes. The aparador in the sala was toppled down by appellants Gustilo and
When Francisco Macias, another son of Candido Macias, heard the gun reports he rushed to his father's house which was about eighty
(80) meters away from his home. As he approached the house, two persons with carbines who were in the kitchen fired upon him. He
was ordered to crawl to the sala and to lie flat on his stomach on the floor. He observed that the house was being ransacked. When
Francisco Macias tried to look around, two men kicked him on the head. Later, Francisco was told to go downstairs and to get the key of
one of the jeeps from his house. As he went down, he was followed by two other armed men.
The gun reports in the house of Candido Macias were also heard by the spouses Marietta Macias-Olarte and Epifanio Olarte, daughter
and son-in-law, respectively, of Candido Macias. They immediately left their house to find out what was happening in Candido Macias'
house. On their way thereto, they heard bullets whistling over their heads. They sought shelter in the house of Anacleto Delfino, whose
wife, Antonia Macias, was the sister of Marietta Macias-Olarte. Francisco Urbano, a tenant of Candido Macias, happened to reside at that
time in said house. When the firing subsided, Marietta Macias-Olarte, Epifanio Olarte, Antonia Macias and Francisco Urbano went to the
backyard of Delfino's house. The distance from the house of Anacleto Delfino to the house of Candido Macias was some forty (40)
meters. The group of Marietta Macias-Olarte then saw three men coming from the house of Candido Macias. As the three men neared
their place, Epifanio Olarte tried to talk to Francisco Macias, but he was immediately pushed back and one of the escorts of Macias fired
at him. Marietta Macias-Olarte and Francisco Urbano testified that they recognized the tall, stoop-shouldered gunwielder as Walter Apa
because of the light of the moon and his proximity to them. They also recognized the shorter fellow as appellant Ricardo Dairo, when
they saw was carrying a gun. Appellant Ricardo Dairo remained with the group of Marietta, while Francisco Macias and appellant Walter
Apa continued on their way. Francisco Macias was not allowed by appellant Apa to turn his face sideways. After they secured the key
from his house, Francisco Macias and appellant Walter Apa returned to the house of Candido Macias, passing through the backyard of
the house of Delfino where they were joined by appellant Ricardo Dairo.
Under the house of Candido Macias, Francisco Macias started the motor of one of the jeeps, and thereafter, eight of the men boarded the
jeep. Apparently to prevent pursuit, the tires of the other jeep were fired upon. The jeep which was driven by Francisco proceeded
towards Barrio Liling on the way to Davao City. After a while Francisco Macias was ordered to stop the vehicle and someone alighted
from the rear, and Francisco Macias was ordered to move over to the center of the front seat, According to Francisco Macias, he was
able to recognize fully the man who took over the steering wheel. He Identified him as appellant Jose Gustilo. When Francisco tried to
look sideways, one of them hit him on the head with a pistol. After the jeep had run for more than one hour, it was stopped. Francisco
Macias went down the jeep and one of the men said that he should be shot. Francisco Macias pleaded for his life. Appellant Jose Gustilo
intervened and suggested to his companions that they spare Francisco's life. Francisco Macias was then hogtied and stripped of his
clothes. The men then fled away in the jeep. After their departure, Francisco was able to untie his feet, and he walked about two
kilometers to a friend's house, where he borrowed a pair of pants and shirts. Later, he boarded a passenger bus for Digos, a municipality
adjacent to Hagonoy.
The robbery and killing in the house of Candido Macias were reported that same night, November 27, 1960, by Francisco Macias to
Antonio Viran, Chief of Police of Hagonoy, Davao. Accompanied by police officers, Chief Viran went to the house of Candido Macias in

Barrio Sinayawan and found Candido Macias dead. The furniture in the house were in topsyturvy condition. The officer interviewed
persons in the house and the latter assured him that they could recognize the culprits. The get-away jeep was recovered near a bridge
on the road to Davao City. The following morning, Chief Viran returned to the house of Candido Macias, accompanied by Mayor Llanos of
Digos, Zosimo Melendez, Chief of Police of Digos, Sgt. Bano and Lt. Javier of the Digos Police Force. Chief Viran found P17.00 in onepeso bills, while Chief Melendez found empty shells in the sleeping room of Candido Macias, and a bullet slug on the floor of the sala.
They also saw downstairs a jeep with flat tires and a "Petromax" lamp destroyed by bullets.
Chief Viran reported the incident to the Provincial Governor if Davao. Col. Jacinto Romero, Chief of Police Affairs Unit in the Office of the
Provincial Governor, then joined hands with the police to solve the robbery killing incident.
On December 1, 1960, Sgt. Lucio Bano met one Roger Cahilog who informed him that appellants Arcadio Puesca alias "Big Boy" and
Jose Gustilo alias "Peping", slept in his house on the night of November 26, 1960 and that he overheard the two talking about robbery.
He thus became suspicious of the two.
On December 2, 1960, appellants Puesca and Jose Gustilo were apprehended by Sgt. Bano and Lt. Javier in Davao City. On December
10, 1960, appellant Puesca, who was detained in the municipal jail of Digos, told Sgt. Bano and Chief Melendez that he would like to see
Mayor Llanos in order to confess his participation in the crime. In the evening of that date, Mayor Llanos met appellant Puesca in his
office on the second floor of the municipal building. Appellant Puesca was questioned by the Mayor on his participation. Present were
Chief Melendez, Chief Viran, Lt. Javier and Lei Hong, owner of a tape recording machine. Appellant Puesca's investigation was tape
recorded by Lei Hong. Puesca confessed that he was one of the gang who entered the house of Macias and committed the robbery and
killing therein. He mentioned as his companions Jose Gustilo alias "Peping", Magno Montao alias "Edol", Felimon. Carding and
Mariano. He said that there were others who were 'with them whose names he did not know but whom he could Identify if he saw again.
The confession of appellant Puesca was taken down in writing (Exhibit "L").
Appellant Jose Gustilo, like Puesca, admitted to Mayor Llanos his participation in the commission of the crime and mentioned as his
companions Arcadio Puesca alias "Big Boy", Magno Montao alias "Edol", Filomeno Macalinao, Carding, Mariano and others. The
questioning of appellant Gustilo was tape recorded by Lei Hong, and was taken down in writing (Exhibits "R", "R-1", "R-2": "U", "U-1"; "V",
"V-1", "V-2"; "W", "W-1" and "W-2").
Following the confession of appellants Puesca and Gustilo, appellant Magno Montao alias "Edol" was arrested by Chief Viran. In his
own handwriting (Exhibits "Q", "Q-1" to "Q-3"), appellant Montao confessed his guilt and names as his confederates in the crime Arcadio
Puesca alias "Big Boy", Jose Gustilo alias "Peping" and Felimon Macalinao. Appellant Montao confession was tape recorded by Lei
Hong in the presence of Mayor Llanos and the police officers.
The confessions of appellants Puesca and Montao (Exhibits "L" and "Q".) were subsequently subscribed and sworn to by the declarants
before Augusto H. Fernandez, Justice of the Peace of Digos. Appellant Gustilo, on the other hand, refused to sign his confession (Exhibit
"R") and did not give any reason for his refusal.
On December 15, 1960, appellant Filomeno Macalinao, Jr. was arrested at the Sasa Airport, Davao City, as he was about to board a
plane for Cebu. In a confrontation with appellant Puesca and later with appellant Gustilo, he was Identified by the two as the person they
had mentioned in their confessions as their companion in the commission of the crime.

In order to Identify all the culprits, Chief Viran showed to Francisco Urbano and Marietta Macias-Olarte the pictures of some police
characters, from which the two picked out the pictures of appellant Walter Apa (Exhibit "S") and Ricardo Dairo (Exhibit "T"), They told the
officer that Apa and Dairo were among those whom they saw on the night of the incident. Appellants Apa and Dairo were picked up by
the police and confined in jail.
Sometime in December 1960, Marietta Macias-Olarte, Anacleto Delfino, Francisco Macias and Francisco Urbano were invited to the
municipal jail of Digos, where, from a group of detained prisoners, they pointed to appellants Arcadio Puesca, Jose Gustilo and Magno
Montao as three of the men who had participated in the robbery and killing of Candido Macias. Subsequently, in January 1961,
Francisco Urbano was called to the municipal building of Hagonoy, and from among a group of persons he pointed to appellant Ricardo
Dairo as one of the culprits he recognized.
The Cadaver of Candido Macias was autopsied by Dr. Julio M. Layug, Municipal Health Officer of Digos, Davao, as the Municipal Health
Officer of Hagonoy was away. The result of his autopsy examination is found in the report, Exhibit "A", and read as follows:
1. Gunshot wound 3 inches above the left mammary gland more on the left side of the manubrium measuring 1 cm. in diameter,
penetrating the skin, muscle, aorta of the heart, lung and the slug was lodged between the right 8th and 9th ribs at the back and between
the muscle and the skin between the spinal column and the right scapula. The slug found was caliber 38.
2. Gunshot wound 3 inches below the left mammary gland externally at the left axillary line measuring 1 cm. in diameter, penetrating the
skin, muscle, lung, liver, and the right lumbar region. The gunshot wound at this place of exit measures 1- cms. in diameter and in
overted position.
Dr. Layug testified that the second shot was fired while the victim was falling down, and that death supervened in only three or four
minutes. The cause of death was due to "shock with internal hemorrhage caused by the gunshot wounds".
Counsel de oficio for all of the appellants maintains that the court a quo erred: (1) in giving more weight and credence to the "biased and
unbelievable declarations of relatives of the deceased"; (2) in admitting and believing the confessions of some of the appellants which
"were extracted through third degree"; and (3) in denying the motion of appellants for new trial. In a supplemental brief, counsel for
appellant Filomeno Macalinao, Jr. argues that the evidence on record, outside of the confessions, is inadequate to prove conspiracy; that
there, is no evidence that appellants took and carried away the money, pistol and clothes of Candido Macias; that none of the witnesses
saw the slaying of Candido Macias; that the Identification of Macalinao by Anacleto Delfino is "shaky and indecisive"; and that nocturnity
should not have been considered as an aggravating circumstance.
To begin with, appellants can no longer raise in issue the denial of their motion for new trial. They have previously challenged before this
Court by certiorari the correctness of the order of the court a quo denying their motion for new trial. 1 This Court found the petition devoid
of merit, hence, the same was dismissed on July 28, 1967. Entry of judgment was made on September 20, 1967.
On the question of sufficiency of the evidence as basis for the conviction of appellants, the Court finds that the evidence clearly shows
that appellants were positively Identified by the prosecution witnesses as participants in the crime. Thus, Anacleto Delfino declared that
appellants Arcadio Puesca and Magno Montao were the persons he saw under the house of Candido Macias, his father-in-law; that he
recognized them because he raised the lamp higher to find out who they were; and that it was appellant Arcadio Puesca who fired at him,
hitting him between the elbow and the armpit. He further stated that when he placed the lamp down on the ground, Puesca shot the lamp

and ordered Anacleto to go upstairs. Puesca admitted in his confession that he fired at a man holding a "Petromax" "with the intention of
hitting the light and to scare the man ..." (Exhibit "L"). Anacleto Delfino also testified that upon reaching the second floor of the house, he
saw two armed men whom he Identified as appellants Jose Gustilo and Filomeno Macalinao, Jr.. After he was made to lie on the floor, he
heard sounds in the room of something being broken. According to Puesca, a certain Felimon and Jose Gustilo were the first to go up the
house followed by Magno Montao, then he heard two shots fired inside the second floor of the house. This was confirmed by Magno
Montao (Exhibit "Q-1") who stated that Jose Gustilo and Felimon Macalinao went up the house and that after he heard those shots he
asked Jose Gustilo why he shot the victim, and Gustilo replied that he "wanted to challenge me" (Exhibit "Q-2").
Marietta Macias-Olarte and Francisco Urbano testified that appellants Walter Apa and Ricardo Dairo were the ones who escorted
Francisco Macias when they came from the house of Candido Macias, passing through the backyard; that when they talked with
Francisco Macias and Olarte tried to place his hands on the shoulders of Francisco, Walter Apa pushed him; that Apa fired at Olarte who
fell to the ground. Marietta and Francisco testified that they recognized Walter Apa as the tall stoop-shouldered person holding a gun and
that the shorter fellow, also armed with a carbine, was Ricardo Dairo. After Francisco Macias and Walter Apa had proceeded to the
former's house, it was Ricardo Dairo who guarded Olarte, Antonio Macias, Delfino and Francisco Urbano. After a few minutes, Francisco
Macias returned to the house of Candido Macias.
Francisco Macias declared that two persons armed with carbines fired at him; that while lying face downwards on the floor, he heard
"sounds as if something have (sic) been ransacked ... persons going down ... The aparador was (sic) tumbled down ..." He further
testified that when he drove the jeep of the deceased with the appellants aboard, it was appellant Jose Gustilo who took over the wheel
from him. In their attempt to impugn the credibility of the testimony of Anacleto Delfino, appellants contended that this witness could not
have recognized appellants Arcadio Puesca and Magno Montao, much less Jose Gustilo and Filomeno Macalinao, Jr.. It is claimed that
it would have been difficult for Anacleto Delfino to recognize Arcadio Puesca and Magno Montao because when Delfino turned around
and put up the lamp, the lamp blocked Delfino's face, preventing him from getting a clear view of the two. This contention, however, is not
borne by the facts. When the witness, Anacleto Delfino, held the lighted lamp, he did not hold it directly in front of his face. He held the
lamp at the right side of his face in such a manner that his view of the appellants who were just three meters away should not in the least
be impeded. Moreover, because of the bright fight of the "Petromax" lamp, Identification of the culprits was not an improbability.
Appellants further argued that it was improbable for Delfino to have recognized Jose Gustilo and Filomeno Macalinao, Jr., since he saw
them for the first time under the light of a kerosene lamp, and he was gripped by fear and lying on the floor with his face downward.
Contrary to appellants' contentions, fear does not necessarily detract from a person's physical ability to observe. It should be borne in
mind that a person will easily remember another who does him harm, because consciously or unconsciously he turns his attention to the
offender. 2
At any rate, according to Delfino, he was looking straight at the appellants whose faces were clearly visible to him under the bright light of
the kerosene lamp in the sala.
Q. Those persons looked at you squarely and plainly, without any attempt of hiding their Identities, is that not correct?
A. I do not know whether they were looking at me, but I was looking at them. Maybe they were looking at me also.
Q. The robbers did not shoot at this small lamp or put out its light?

A. No, this lamp was placed at the center of the sala.

Q. The two men nonchalantly were carrying their arms under the brightness of the light of this lamp, this kerosene lamp, correct?
A Yes, they were lighted by that lamp. (pp. 364-365, t.s.n., Emphasis supplied).
Appellants further argued that it is doubtful for Marietta Macias-Olarte to have recognized appellants Walter Apa and Ricardo Dairo
because she only saw the illumination of the moon but did not see the moon itself. This argument ignores the possibility that a person
may be aware of the presence of the moon in the sky not necessarily because he looks at it directly but because of its manifestations,
such as its effulgence on the structures on the ground. Moreover, Olarte recognized Walter Apa and Ricardo Dairo because of their
proximity to her.
Neither can Francisco Urbano's Identification of Walter Apa and Ricardo Dairo be successfully impugned. Urbano Identified the two on
the basis of distinct physical characteristics which have not been denied, such as the fact that Walter Apa was the taller one and stoopshouldered, while Ricardo Dairo was the shorter one. Urbano clearly saw the two when they were only a meter from him, under bright
moonlight. To find out the Identities of the perpetrators of the offense, Chief of Police Viran took to Sinayawan pictures which were
provided by Col. Romero. These pictures were shown to the witnesses. The witnesses Francisco Urbano and Marietta Macias-Olarte,
picked out the pictures of Walter Apa (Exhibit "S") and Ricardo Dairo (Exhibit "T") and told Chief Viran that the two were among those
who had robbed and killed Candido Macias. On this basis, Apa and Dairo were arrested.
Nor can the circumstance that Francisco Macias could only Identify Jose Gustilo, although he was with the other perpetrators of the
crime, render the Identification of appellants made by the other witnesses incredible. It should be recalled that there were circumstances
which could have prevented Francisco Macias from recognizing the others. Thus, the moment Francisco Macias set foot on the house of
the deceased he was fired upon, then ordered to lie flat, face downwards, on the floor. When he tried to move his head, he was
immediately kicked by two of the assailants. When he was ordered to get the key, he was not even allowed to turn his head to look at the
men behind him. When he got the key from his house, he noticed that his escort concealed himself behind the coconut trees. It was only
appellant Jose Gustilo whom he had the best opportunity to recognize because Gustilo sat by his side in the jeep and took over the
steering wheel from him. Even while he was in the jeep, whenever he attempted to look at the other people in the back of the jeep, he
was immediately hit with the butt of a pistol. He was hogtied and left on the road. He remembered that Gustilo had a moustache and had
a light complexion.
Nor are We persuaded that the prosecution eyewitnesses should be disbelieved because they are related to the victim. It is true that
except for Francisco Urbano, who was a tenant of the deceased, the rest are related to the victim, either by affinity or consanguinity. But
relationship to the victim, standing by itself, does not prove that they are prejudiced and biased, considering that their testimonies are
clear and convincing and corroborated by other facts and circumstances. 3
As the then Solicitor General Felix V. Makasiar (now Associate Justice of this Court) aptly observed: "... it does not appear that the
prosecution eyewitnesses had some grievances or ill feelings against any of the appellants; the record does not disclose any untoward or
wicked motive which could have induced them to twist the truth or perjure themselves in a prosecution for a heinous crime as the present
case. The prosecution witnesses were subjected to extreme cross-examination by defense counsel, and the falsity of their declaration, if
indeed there were, could have been ferreted and exposed."

The contention that there could not be robbery with homicide in this case, because there is "no evidence that appellants took and carried
away the money" and the personal properties of Candido Macias, overlooks the fact that the taking and carrying away of the money and
the personal properties of the deceased has been sufficiently established by testimony of the witnesses, confirmed and corroborated by
the admissions of appellants Puesca, Gustilo and Montao. Francisco Macias distinctly heard "sounds as if something have (sic) been
ransacked" and that "the aparador which was in the sala, fell with a loud thud on the floor." Marcela Macias also declared that the
intruders were ransacking the things inside their room. After the departure of the perpetrators of the offense, she saw that things were
scattered in their room, the trunk containing their money appeared to have been forcibly opened and the P20,000 kept there, which was
part of the proceeds of the sale of their land, was gone. So were the deceased's pistol and a pair of new pants. When the Chief of Police
went to the crime scene, he found many things in disarray in the sala. The aparador was lying on the floor broken, and papers and other
things were scattered. This robbery was further confirmed by the recitals contained in the confessions of Puesca, Gustilo and Montao
(Exhibits "L", "R" and "Q"), wherein they stated that when they met in the Holiday Canteen at Sta. Ana, Davao City on November 25,
1960 at about 7:00 o'clock in the evening, they planned originally to raid and rob the Christensen Plantation, but upon seeing the
plantation well-guarded, they changed their plans and decided to rob the Macias family in Sinayawan; that they proceeded to Sinayawan
in a jeep, alighting from the jeep at a distance of about 200 meters; that they walked to the house of Candido Macias; and that therein
they committed the crime in a manner confirmatory to that testified to by the prosecution witnesses. According to Puesca, Felimon and
Carding were the ones who took the cash from the Macias' house. Regarding the killing of Candido Macias, his wife testified that when
the robbers came up the sala, she and her husband and two grandchildren were sitting by the dining table; that she was ordered to lie flat
on the floor; that she saw her husband stand up then walk around the table: and that suddenly she heard two gun reports and saw her
husband fall down.
The evidence clearly and convincingly demonstrate that the appellants were engaged in a conspiracy to effect the object of their criminal
purpose. Since conspiracy by its very nature is formed in utmost secrecy, it can seldom be proved by direct evidence. 4 Conspiracy is
"generally proved by a number of indefinite acts, conditions and circumstances which vary according to the purposes to be
accomplished. If it be proved that the defendants pursued by their acts the same object, one performing one part and another a part of
the same, so as to complete it, with a view to the attainment of the same object, one will be justified in the conclusion that they were
engaged in a conspiracy to effect the object ..." 5 In contrast with evidence premeditation, which requires as an essential condition that a
sufficient period of time must elapse to afford full opportunity for premeditation and reflection on the possible consequences of the
intended criminal act, conspiracy arises on the very moment the plotters agree, expressly or impliedly, to commit the felony and forthwith
decide to accomplish it. Once this is established, each and everyone of the conspirators is made criminally liable for the crime committed
by any member of the conspiracy. 6
The Solicitor General cites the following facts to show the existence of conspiracy; First, upon breaking into the premises of the house of
the victim, Candido Macias, three men went upstairs into the house, two of them being appellants Jose Gustilo and Filomeno Macalinao,
Jr., both with drawn guns, surprising the inmates Candido Macias and his wife Marcela Macias, who were then having supper (pp. 489,
330, 321-322, t.s.n.). Candido Macias was ordered to lie down on the floor but he did not obey and walked towards the sala instead (p.

490, t.s.n.), whereupon he was shot. Thereafter, appellants ransacked the room of the victim, forced open the trunk and got therefrom
P20,000.00 in cash (pp. 492, 502, t.s.n.). They also took the victim's new pants and clothes and his gun from his bed (p. 501, t.s.n.).
Two others, appellants Arcadio Puesca and Magno Montao, went under the house and immobilized Anacleto Delfino and Fortunato
Macias who were then repairing a jeep (pp. 315317, t.s.n.). They pointed their guns at them and ordered them not to move (pp. 314-315,
t.s.n.). Fortunato, however, succeeded in running away towards the coconut plantation (p. 362, t.s.n.). Anacleto Delfino was told to go
upstairs where he was made to lie flat on the floor (p. 320, t.s.n.).
While all this was going on in the house, appellants Walter Apa and Ricardo Dairo, who were armed with carbines, were standing outside
apparently on guard (pp. 417, 418, 131-134, t.s.n.). When Francisco Macias came to the house, he was ordered to get the key to the
jeep from his house, and appellants Apa and Dairo followed Francisco from behind (pp. 419, 421, t.s.n.), passing through the backyard of
the house of Anacleto Delfino, on their return to the place where the jeep was parked (pp. 135-137, t.s.n.).
Francisco Macias having gotten the ignition key of the jeep, all of the appellants boarded the jeep, and with Francisco Macias driving it,
the appellants left the scene of the crime (pp. 421-423, t.s.n.).
Second, the confessions of appellant Arcadio Puesca (Exhibit "L"), appellant Magno Montao (Exhibit "Q") and appellant Jose Gustilo
(Exhibit "R") admit their participation in the commission of the crime at the house of Macias (pp. 924992, 988-1133, t.s.n.). The
confession of Jose Gustilo, however, was the only one which was unsigned as he afterwards refused to affix his signature thereto; but his
confession was tape recorded and from the replay of the recording made during the trial, it may be seen that his confession was freely
and voluntarily given (pp. 732, 748-749, 782, 791, 816-817, 828-836, 924992, t.s.n.). Towards the end of his tape recorded confession,
the following questions and answers were given:
In your confession now given to me, Peng, the incident of the hold-up in Makilala, the hold-up in Sinayawan, Hagonoy, Davao, in the
house of the late Candido Macias, were you able to relate everything which you think you would tell me before you offered to make that
Yes, sir, because I narrated all the things what I have already in mind.
You would like to tell me now that all the things which you just narrated are the truth and nothing but the truth?
Yes, sir.
Are you going to confirm the truth of the statement, which you told me now?
Yes, sir.
Are you going to affirm your confession even though these statements which you have narrated to me will be used against you?
Yes sir. (pp. 990-991, t.s.n.).
The confessions of Arcadio Puesca, Magno Montao and Jose Gustilo are admissible against them. Their confessions could be
considered as corroborative evidence of the testimonies of prosecution eyewitnesses pointing to them as the culprits who participated in
the commission of the crime.
Third, the testimonies of prosecution eyewitnesses find corroboration in the extrajudicial confessions of appellants Puesca alias "Big
Boy", Gustilo alias "Peping", and Montao alias "Edol", insofar as said confessions tell about the participation of their other companions
in the commission of the crime. Thus, Arcadio Puesca, in his extrajudicial confession, named Jose Gustilo alias "Peping", Magno

Montao alias "Edol", Felimon, Carding, Mariano and two others whose names he did not know, as his companions in the perpetration of
the crime (Exhibit "L", folder of exhibits; pp. 774-775, t.s.n.). He narrated how the plan to rob the Macias family was conceived, as well as
the manner in which they implemented the plan. The person referred to as "Felimon", he said, was appellant Filomeno Macalinao, Jr. (p.
731, t.s.n.). Thus, in the tape recorded confession of appellant Jose Gustilo, he declared that his confederates in the crime were Arcadio
Puesca alias "Big Boy", Magno Montao alias "Edol", Filomeno Macalinao, Mariano, Carding and others (Exhibits "R", folder of exhibits;
pp. 927-928, 930-931, 935, 940, 942-945, 946-952, 958-960, 963-965, 966, 968-969, 970-981, t.s.n.). And thus, in the confession of
Magno Montao alias "Edol", which was in his own handwriting and which was also tape recorded, he mentioned Arcadio Puesca alias
"Big Boy", Jose Gustilo alias "Peping" and Felimon Macalinao as his confederates in staging the hold up (pp. 999-1005, 1119-1120, 1122,
t.s.n.; Exhibit "Q", folder of exhibits). According to his confession, it was Gustilo who shot to death the late Candido Macias (pp. 1002,
1122-1123, t.s.n.), and that it was Macalinao who got the 38 caliber pistol of the deceased (p. 1128, t.s.n.). Both declarants corroborated
the narration given by Puesca.
It is true that an extrajudicial confession is admissible only against the person who made it, but it is also settled that such confession is
admissible as corroborative evidence of other facts that tend to establish the guilt of his co-defendants. 7 This Court has also allowed its
admission against a co-accused as circumstantial evidence to show the probability of the co-conspirator having actually participated in
the commission of the crime. 8
Fourth, the claim of the defense that the confessions of appellants Puesca, Gustilo and Montao were extracted from them through force
and violence is not supported by the evidence. No motive on the part of the investigating officials or officers has been proven that could
have impelled- them to concoct the facts narrated in the extrajudicial confessions. Judging from the details of the narration given therein,
only the appellants could have supplied the facts. With respect to the extrajudicial confessions of appellants Puesca and Montao, Judge
Augusto Fernandez, before whom the confessions had been signed and sworn to, declared that the affiants read the contents thereof,
and confirmed the said contents as true and correct, after which they freely affixed their signatures on the documents (pp. 828-831, t.s.n.)
With respect to the extrajudicial confession of appellant Gustilo, it was first orally given and tape recorded after which it was put down in
writing (pp. 782, 791, 815, t.s.n.) However, appellant Gustilo refused to sign his confession before the justice of the peace without giving
any reason for such refusal (p. 834, t.s.n.). The circumstance that he was able to refuse, without having been punished or maltreated for
such refusal, is a strong indication that his confession was not extracted from him by force or intimidation. As a matter of fact, the tape
recording of his confession shows that it was voluntarily given. The trial judge who heard the replay of Gustilo's confession could have
surely noted from the manner in which appellant gave his answers if he had been maltreated (pp. 924-992, t.s.n.) The trial judge was
positive that the verbal confession had all the indicia of voluntariness.
The killing of Candido Macias was committed "by reason or on occasion of the robbery". 9 The original design of the perpetrators of the
offense comprehended robbery in the dwelling of the victim. There is robbery with homicide if the homicide resulted by reason or on the
occasion of the robbery. Thus, in Mangulabnan, 10 this Court stated that in order to determine the existence of the crime of robbery with
homicide, the rule is that it is enough that a homicide resulted by reason or on the occasion of the robbery, and it is immaterial that the
death supervened by mere accident. It is sufficient that the homicide was produced by reason or on occasion of the robbery, inasmuch as

it is only the result obtained, without reference or distinction as to the circumstances, causes, modes or persons intervening in the
commission of the crime, that has to be taken into consideration.
There is homicide by reason of the robbery when there is a direct relation, an intimate connection, between the robbery and the killing,
whether the killing be prior or subsequent to the robbery or whether both crimes be committed.
Finally, counsel for appellant Filomeno Macalinao, Jr. poses the query-if by the ruling in People vs. Apduhan 11 robbery with homicide
(subdivision 1, Article 294, Revised Penal Code) is not comprehended in Article 295, how would the circumstance of "band" be
appreciated? The term "band" is defined both in paragraph 6, Article 14 and Article 296 of the Revised Penal Code. "Band" is a generic
aggravating circumstance in robbery with homicide or robbery with rape, intentional mutilation or with physical injuries, resulting in
insanity, impotency and blindness (subdivision 2, Article 263, Revised Penal Code), which means that it can be offset by a generic
mitigating circumstance. But if "band" is present in the other kinds of robbery with violence mentioned in paragraphs 3, 4 and 5 of Article
294, then it is a qualifying or inherent circumstance which raises the penalty to the maximum period and cannot be offset by any generic
mitigating circumstance. This qualifying circumstance should be expressly alleged in the information.
In the case at bar, the crime committed is robbery with homicide. Considering that the crime was committed by six armed men, the
circumstance of "band" should be considered merely as a generic aggravating circumstance. It is also obvious that the perpetrators of the
offense waited for the night before committing the robbery to better accomplish their purpose. The trial court, therefore, correctly found
the existence of "band" and "nocturnity". These two aggravating circumstances, when occurring jointly in the commission of a crime, are
generally treated only as one aggravating circumstance. Nevertheless, they may be considered separately when their elements are
distinctly perceived and can subsist independently, revealing a greater degree of perversity. 12 In the instant case, it is not necessary to
decide whether or not the two should be treated distinctly from each other, since the existence of one is sufficient for the imposition of the
maximum penalty, and the concurrence of an additional circumstance will not alter the same. 13 However, the indemnity of P6,000.00 due
the heirs of the deceased should be increased to P12,000.00.
On July 13, 1977, during the pendency of this appeal, appellant Jose Gustilo alias "Peping" died at the New Bilibid Prisons Hospital. In
view thereof, on September 8, 1977, this Court issued a Resolution, which states:
... Considering the letter dated August 2, 1977 of Gerardo N. San Pedro, Administrative Officer IV, Bureau of Prisons, informing the Court
of the death of appellant Jose Gustilo alias Peping last July 13, 1977, as wen as the comment of the Solicitor General thereon, the Court
Resolved to DISMISS the case as to appellant Jose Gustilo (p. 580, rollo).
WHEREFORE, except for the dismissal of the case as against Jose Gustilo alias "Peping" and with the foregoing modification as to the
amount of indemnity, the decision appealed from is hereby AFFIRMED.