1.

P v sumaoy, GR 105961 OCT 22 ,1996

SECOND DIVISION
G.R. No. 105961 October 22, 1996
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PACIFICO SUMAOY, JOHN DOE, PETER DOE and RICHARD DOE, accused appellant.

MENDOZA, J.:p
This is an appeal from the decision 1 of the Regional Trial Court, Branch 2, Tagum, Davao in Criminal
Case No. 7245, finding accused-appellant Pacifico Sumaoy guilty of murder and sentencing him to suffer
the penalty of reclusion perpetua, to indemnify the heirs of the deceased, Zandro Vargas, in the sum of
P30,000.00 and to pay the costs.
Accused-appellant was convicted for the killing on July 9, 1988 of Zandro Vargas, a boy 16 years of
age, in Tagum, Davao. Wilbert Vargas, the victim's brother, and Patricio Jacobe, Jr. identified
accused-appellant Pacifico Sumaoy as the assailant, together with three others who have remained
unidentified and at large.
The prosecution presented four witnesses: Wilbert Vargas, Patricio Jacobe, Jr., Enriqueta Vargas
and Dr. Jose Lopez.
Patricio Jacobe, Jr. testified that he worked as a pin boy in a billiard hall on Roxas Street, Tagum,
Davao. At 5:45 p.m. of July 9, 1988, he left the billiard hall to have some beer at the Pacing's
Carinderia on Sobrecary Street. Afterward, he went back to the billiard hall, passing by the J Spot
Carinderia at the corner of Roxas and Sobrecary Streets, where he saw the deceased Zandro
Vargas talking to accused-appellant Pacifico Sumaoy. Three other men were with them but Jacobe
did not recognize the three.
Upon reaching the billiard hall, Patricio Jacobe, Jr. piled some billiard balls, then went out and stood
on the sidewalk. He was startled by the sound of a gunshot. When he turned to find out where the
sound came from, he saw Zandro Vargas running towards Roxas Street with his right arm bleeding.
Zandro Vargas tried to seek refuge at the Try Me beauty parlor, but he was overtaken by accusedappellant who dragged him towards a waiting tricycle. Accused-appellant had a gun. The accusedappellant and three other men then boarded the tricycle taking Zandro Vargas with them. Jacobe
Allegedly heard one of accused-appellant's companion say that they were taking Zandro to the
hospital. Later that evening Jacobe learned that Zandro was found dead in a kangkong field near the
Davao Visayan Village.
The other prosecution witness, Wilbert Vargas, is the brother of the deceased. Wilbert testified that
at 6:00 p.m., on July 9, 1988, while he was talking to a friend on Roxas Street near the public
market, he was told that his brother Zandro was being beaten up in a carinderia at the corner of

Roxas and Sobrecary Streets. Wilbert immediately proceeded to the J Spot Carinderia. He saw
accused-appellant aiming his gun at Zandro as the latter was running away. Accused-appellant shot
Zandro Vargas, hitting the latter in the forearm, and causing him to fall on his knees. Zandro Vargas
was then dragged by accused-appellant and three unidentified men towards a tricycle. Wilbert
Vargas saw his brother loaded onto the tricycle "like a pig," with Zandro's feet hanging out. Wilbert
tried to come to the aid of his brother but accused-appellant pointed his gun at him, causing him to
run home in fear.
Wilbert Vargas told his parents what had happened to his brother. They searched for Zandro. They
went to Mangga, Davao and there learned from Jose Montilla, the driver of the tricycle which
accused-appellant Sumaoy and his companions hailed, that Zandro had been killed and that his
body had been dumped in a kangkong field in Visayan Village, Tagum, Davao. Wilbert and his
parents proceeded to the place indicated and there found Zandro's dead body.
Wilbert Vargas identified Pacifico Sumaoy as one of the assailants. Wilbert testified that he
recognized Sumaoy because the latter was assigned to the military detachment in the Diwalwal
mining area where Wilbert used to work. Dr. Jose Lopez, Municipal Health Officer of Tagum, who
examined the body of Zandro Vargas, issued a death certificate. Under questioning by the
prosecutor, Dr. Lopez testified as follows:
Q You said you placed your findings in the certificate of death, please
read the findings, Doctor.
A (Reading) "I hereby certify that I have this 10th day of July 1988
performed an autopsy upon the body of the deceased Zandro Rinia
Vargas and that the cause of death was as follows: Shock,
irreversible, due to gunshot wounds located at (1) right frontal into
cranial cavity exiting at right upper occipital; (2) right eyebrow exiting
at left lower occipital; (3) left temporal (no exit); (4) right arm lateral
going out at medial and going into right axillary into thoracic cavity
(no exit)".
Q Will you explain your findings to us, Doctor?
A There were four (4) gunshot wounds found on the body of the
victim No. 1 was at the right frontal (witness pointing at his middle
forehead) going into the cranial cavity going outside (witness pointing
at the back of his head); No. 2, at the right eyebrow (witness pointing
at the middle of right eyebrow) going out to the left lower occipital
(witness pointing at the back of his head, left side near the ear); No. 3
wound is found at the temporal without exit (witness pointing at the
left side of his head, a little above the left ear); and the No. 4 wound
is found at the right arm lateral (witness pointing at his right-upper
arm, outside) going at medial aspect then same bullet passed into the
axillary region into the thoracic cavity, no more exit, the right-upper
arm as entrance and exit inside of the right-upper arm and then going

into the right chest (witness pointing at the right side of his body just
about 3 inches below the armpit). 2
Accused-appellant denies participation in the killing of Zandro Vargas. He claims that the whole day
of July 9, 1988 he was on duty as an enlisted personnel of the 1103rd Criminal Investigation Service
(CIS) in Tagum, Davao. Accused-appellant identified a document signed by Technical Sergeant
Ricardo Go called "Duty Detail" showing that accused-appellant was on duty from 8:00 a.m. of July
9, 1988 to 8:00 a.m. of July 10, 1988. Ricardo Go, Technical Sergeant, Philippine Constabulary and
Team Leader of the Criminal Investigation Service Command, Tagum, Davao, and Patrolman
Narciso Vismanos, corroborated the accused-appellant's alibi.
On June 6, 1991, the Regional Trial Court of Tagum, Davao rendered a decision finding accusedappellant guilty of murder qualified by treachery. The trial court noted that accused-appellant
Sumaoy shot Zandro while the latter was running away and held that the three bullet wounds
sustained by Zandro in the head showed that he was shot while in a helpless and defenseless
condition. The trial court appreciated the ordinary aggravating circumstance of taking advantage of
public position against accused-appellant Sumaoy.
Accused-appellant Sumaoy has appealed from this decision of the trial court. He contends that the
prosecution evidence does not fulfill the test of moral certainty necessary to support a judgment of
conviction. He points out that no proof was presented as to the type of weapon used in the shooting
of Zandro Vargas, and he challenges the testimony and credibility of witnesses Wilbert Vargas and
Patricio Jacobe, Jr.
On the other hand, the Solicitor General, in representation of the prosecution, argues that the
circumstances established by the prosecution, when taken together, constitute an unbroken chain
leading to the inevitable conclusion that accused-appellant shot and killed Zandro Vargas. While
there is no direct evidence showing that it was indeed accused-appellant who shot Zandro in the
head, the Solicitor General claims that the testimonies of Wilbert Vargas and Patricio Jacobe that
Zandro was last seen alive with accused-appellant and three other men clearly prove that no other
person could have shot and killed Zandro Vargas than accused-appellant Pacifico Sumaoy.
We agree with the Solicitor General that the circumstantial evidence in this case establishes beyond
reasonable doubt that accused-appellant shot and killed Zandro Vargas. These circumstances, as
pointed out by the Solicitor General, are the following:
(a) Zandro was being mauled by appellant and his companions (p. 5 TSN, June 28,
1990);
(b) As Zandro was attempting to run, appellant drew his pistol and shot Zandro (pp.
5-6, Ibid);
(c) Zandro was hit on the arm (p. 6, TSN, Ibid. and p. 8, TSN, July 13, 1990);
(d) Zandro fell on his knees (p. 6, TSN, June 28, 1990);

(e) Zandro was dragged towards a motorized pedicab by appellant (p. 6, TSN, June
28, 1990 and p. 8, TSN, July 13, 1990);
(f) Zandro was loaded on the motorized pedicab and appellant and his companions
boarded the same pedicab (pp. 6-7, TSN, June 28, 1990 and pp. 8-10, TSN, July 13,
1990);
(g) Zandro was found dead (p. 11, TSN, June 28, 1990). 3
Together these circumstances constitute an unbroken chain which leads to only one fair and
reasonable conclusion that the accused is guilty of the killing of Zandro Vargas.
It was established by positive testimony that accused-appellant Sumaoy shot the deceased in the
arm and thereafter took the victim with him to an undisclosed location with the help of three other
men. Only the accused-appellant was seen with a firearm. Less than 24 hours later, the victim was
found dead. Not only was accused-appellant identified as the person with whom Zandro Vargas was
last seen alive, he was also positively identified as the person who shot Zandro Vargas in the arm.
There is thus proof of aggression on the part of the accused which, taken with the other
circumstances, shows he had the intent to inflict injury upon the victim.
In the case of People v. Fulinara, 4 the accused were convicted of kidnapping with murder based upon
positive testimony that the victim was last seen alive when he was forcibly abducted by two armed men in
army fatigues who were later identified as the accused. After the victim was abducted by the accused he
was later found dead. As in the case before us, there was no eyewitness at the precise moment the victim
was killed.
Accused-appellant contends that he cannot be convicted without the presentation of the gun in
evidence. He alleges that the prosecution's failure to match the slugs recovered from the body of
Zandro Vargas with accused-appellant's own firearm precludes his conviction. This contention has
no merit. The presentation and identification of the weapon used are not indispensable to prove the
guilt of the accused. 5 The time which elapsed from the moment the victim was last seen alive and the
moment his body was found narrows the possibility that another agent caused his death, 6 especially
where an aggression was established against the victim before he disappeared with the accused.
The accused-appellant tries to discredit the testimonies of the principal prosecution witnesses. He
point out that Patricio Jacobe, Jr. testified that Zandro was shot in the right arm, while Wilbert Vargas
said Zandro was shot in the left. This is, however, an inconsistency concerning a minor matter which
does not impair credibility of the witnesses. The inconsistency negates any suspicion that the
testimonies were perjured or rehearsed. 7 Moreover, findings of fact of trial courts, particularly with
respect to the credibility of witnesses who personally appeared and testified before them, must be
respected on appeal. 8
Accused-appellant's defense of alibi is of no moment. Not only was accused-appellant positively
identified as the person who had shot and taken Zandro Vargas to an undisclosed placed. It is also
settled that for alibi to prosper, it is not enough that accused-appellant prove that he was somewhere
else when the crime was committed. He must demonstrate that he could not have been physically
present at the place of the crime or in its immediate vicinity at the time of its commission. The

testimony of accused-appellant, T/Sgt. Go and Pat. Narciso Vismanos failed to show that it was
impossible for the accused to be at the scene of the crime. The CIS office was only one kilometer
away from the scene of the crime. In addition, Vismanos admitted that he was so absorbed in his
work that he did not really know whether accused-appellant was in the office premises the entire day
of the latter's duty.9
While the evidence in this case sufficiently establishes the guilt of the accused-appellant for the
killing of victim Zandro Vargas, we think he cannot be held liable for murder because of the absence
of evidence as to the manner of the actual killing. Where no particulars are known as to the manner
in which the aggression was made or how the act which resulted in the death of the victim began
and developed, it cannot be established from mere suppositions that the accused perpetrated the
killing with treachery. 10 The evidence shows that the aggression against the victim began when he was
still at the J Spot Carinderia. As a matter of fact, according to Patricio Jacobe, Jr., the deceased was
trying to flee from the accused-appellant when the latter shot him, thus indicating that the victim had been
forewarned of a greater aggression against him. The assault on the victim cannot be said to have been
made in a sudden or unexpected manner so as to justify a finding of treachery. 11
The trial court also erred in finding the aggravating circumstance of taking advantage of official
position in the commission of the offense. This circumstance requires that the accused, as a public
officer, used the influence or reputation of his position for the purpose of committing the crime. If the
accused could have perpetrated the crime without occupying his position, then there is no abuse of
public position. In the case before us, no evidence was adduced to show that the killing of Zandro
Vargas was in any way facilitated by the accused-appellant's public position. It was not even shown
whether the accused-appellant wore his uniform or used his service firearm when he committed the
crime. 12
WHEREFORE, the decision of the Regional Trial Court is MODIFIED, finding accused-appellant
Pacifico Sumaoy guilty of homicide, and SENTENCING him to suffer an indeterminate penalty of 12
years of prision mayor, as minimum, to 17 years of reclusion temporal, as maximum, to indemnify
the heirs of the deceased Zandro Vargas in the increased sum of P50,000.00 and to pay the costs.
SO ORDERED.
Regalado, Romero, Puno and Torres, Jr., JJ., concur.
Footnotes
1 Per Judge Pedro T. Casia.
2 Testimony of Dr. Jose Lopez, TSN, p. 6, June 22, 1990.
3 Appellee's Brief, Rollo, pp. 95-96.
4 247 SCRA 28 (1995).

5 See People v. Fulinara, 247 SCRA 28; People v. De Guzman, 231 SCRA 737
(1994).
6 People v. Ruelan, 231 SCRA 650 (1994); People v. Cabuang, 217 SCRA 675
(1993).
7 People v. Ledesma, 250 SCRA 166 (1995).
8 People v. Soan, 243 SCRA 627 (1995).
9 Testimony of Pat. Narciso Vismanos, TSN, pp. 7-8, December 20, 1995.
10 People v. Alba, G.R. No. 107715, April 25, 1996.
11 People v. Padilla, 233 SCRA 46 (1994).
12 People v. Padilla, 233 SCRA 46; people v. Gapasin, 231 SCRA 728 (1994).

2. P v Rubio ,257 scra 528

THIRD DIVISION

[G.R. No. 118315. June 20, 1996]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALLAN

RUBIO, accused-appellant.
DECISION
FRANCISCO, J.:

Appellant ALLAN RUBIO, charged with and convicted of the crime of Robbery with
Homicide, was sentenced "to suffer reclusion perpetua" and to "indemnify the heirs of
Silvina Cuyos in the amount of P50,000.00, without any subsidiary penalty in case of
incapacity to pay." He is now before us on appeal.
[1]

[2]

The facts of this case as found by the trial court and duly substantiated by the
evidence on record are as follows:

"x x x. On May 17, 1992, at about 7:00 o'clock in the evening, witness Anastacio
Garbo, whose house is located in Bagay, Daanbantayan, Cebu, heard shouts for help
coming from the house of the victim, Silvina Cuyos.The victim and witness Garbo are

neighbors, their houses being about 25 to 30 meters from each other. Upon hearing the
shouts for help, witness Garbo went out of his house and approached the house of the
victim.When he was about seven (7) meters away from the house of the victim, he
saw the accused wrestle with the victim. His impression is that the victim and the
accused are quarelling or fighting each other. Upon seeing this, he heard his parents
and sisters shouting at him telling him not to approach any closer to the house of the
victim because it may be a robbery and the perpetrator or perpetrators may have
firearms. So witness Garbo went to the neighboring houses to seek for
assistance. Shortly thereafter, witness Garbo, together with four companions,
namely: Paulino Ygot, Alfonso Rosello, Bimbo Colina and Randy Ygot proceeded to
the house of the victim. Garbo walked ahead of his companions. When he reached the
back portion of the house, he saw the accused wearing a black tee-shirt walking away
from the house of the victim. Witness Garbo was about five (5) meters away when he
saw accused. Witness Garbo did not make any sound and instead, together with his
companions, they proceeded to the kitchen of the house of the victim where they saw
the victim lying on the ground. He noticed that the victim sustained injuries at the
neck just below the jaw about three (3) inches from the right ear. The cheek of the
victim was bleeding. An old water jar (banga) was broken. The victim was still alive
although not conscious. Witness Garbo did not go up the house of the victim anymore
instead he proceeded to the town to secure transportation. He came back in a fire truck
together with some policemen.Thereupon, the victim was brought to the
Daanbantayan Community Hospital. The victim was later transferred to Verallo
Memorial Hospital at Bogo, Cebu. Upon the advice of the doctor in said hospital, the
victim was transferred to Cebu City, first, at the Southern Islands Hospital and then to
the Cebu Doctor's Hospital where the victim died in the afternoon of the next day."
[3]

At the trial, the prosecution presented four (4) witnesses, to wit: (1) Anastacio
Garbo, the lone witness who testified to have actually seen Allan Rubio wrestle with
Silvina Cuyos in the kitchen of the latter's house in the evening of May 17, 1992; 4 (2)
Paulino Ygot, one of the persons from whom Anastacio Garbo sought assistance after
witnessing the incident in the evening of May 17, 1992 and whose testimony
corroborated that of Anastacio Garbo in all material aspects; (3) Maximo Cuyos, the
nephew of Silvina Cuyos who testified to have discovered that her pillows were ripped
open and her jewelries were all gone, when he made a check on her house in the
evening immediately following the happening of the incident; and (4) Dr. Benigno
Aldana, the attending physician of Silvina Cuyos who testified on the cause of the
latter's death. On the other hand, the defense presented the accused himself who
admitted his presence outside the house of Silvina Cuyos on that fateful night but
named one Lucio Arsenal as the person who wrestled with the victim.
[4]

[5]

[6]

[7]

[8]

Finding the prosecution's version to be more credible, the trial court, thus, convicted
the appellant of the crime of robbery with homicide.

In this appeal, appellant faults the trial court for giving full credence to the
testimonies of the prosecution witnesses. He likewise assails their testimonies for being
incredible, unreliable and unable to sustain his conviction beyond reasonable doubt.
[9]

As in most criminal cases, the principal issue raised herein pertains to the matter of
credibility of witnesses. We shall now discuss appellant's contentions in seriatim.
First, appellant argues that the trial court erred in giving full credence to the
testimony of the prosecution's eyewitness Anastacio Garbo which testimony, according
to the appellant, is fraught with inconsistencies. Except for this general averment,
however, appellant did not cite which parts of Anastacio Garbo's testimony are
inconsistent with each other. At any rate, our careful review of Garbo's testimony
reveals no such inconsistencies claimed. Furthermore, the consistent teaching of our
jurisprudence is that the findings of the trial court are given weight and the highest
degree of respect by the appellate court. This is the established rule of evidence in
view of the fact that the matter of assigning values to the testimony of witnesses is a
function best performed by the trial court. It can weigh the testimony of witnesses in the
light ofthe latter's demeanor, conduct and attitude at the trial. This rule of course
admits of certain exceptions, which we find absent in this case, to wit: (1) when patent
inconsistencies in the statements of witnesses are ignored by the trial court, or (2) when
the conclusions arrived at are clearly unsupported by the evidence.
[10]

[11]

[12]

Next, appellant contends that if indeed Anastacio Garbo saw him assaulting Silvina
Cuyos, it would have been more in accord with human experience for Garbo to
immediately shout at the appellant to desist from further hurting the victim or to alert his
neighbors by a cry of alarm. Instead, Garbo went directly to his neighbors' houses, an
act which appellant decries as unlikely if not unbelievable. We are not persuaded.
We concede that for a man who witnessed an ongoing crime, an outcry for
assistance would have been sufficient if only to arouse the attention of sympathetic
neighbors. We do not agree, however, with the appellant's contention that the act of
Anastacio Garbo in this case in directly going to his neighbors' houses to seek for
assistance is less normal under the circumstances.Witnessing a crime is an unusual
experience which elicits different reactions from the witnesses and for which no clearcut standard form of behavior can be drawn. Thus, as correctly averred by the Solicitor
General, Anastacio Garbo cannot be faulted for reacting the way he did, especially in
the midst of a startling and unusual circumstance.
[13]

[14]

Finally, in a desperate attempt to destroy the credibility of Anastacio Garbo,

appellant questions his alleged failure to reveal appellant's identity to the police officers
who investigated the incident on that same night. This argument is specious as it
erroneously assumed that Anastacio Garbo was questioned by the police officers on
that night, a fact not duly supported by the records. But even if it were true, his nondisclosure of the identity of the appellant to the police officers immediately after the
occurrence of the crime is not entirely against human experience. It is not uncommon
for a witness to a crime to show some reluctance about getting involved in a criminal
case, as in fact the natural reticence of most people to get involved is of judicial notice.
This is especially true in this case where the parties involved are not just townmates
but immediate neighbors.
[15]

[16]

[17]

We hold, therefore, that Anastacio Garbo's categorical identification of the appellant

as the person he saw wrestling with Silvina Cuyos in the evening of May 17,1992,
leaves nothing more to be desired. He could not have been mistaken as to the identity
of the appellant his long time neighbor. Moreover, the kitchen of Silvina Cuyos' house,
the area where the incident happened, was then illuminated by a kerosene lamp and
by a fluorescent lamp located ten (10) meters away from the scene of the crime. On
top of that, appellant was then just seven (7) meters away from the house of the victim
when he saw the incident. These facts, in addition to the failure of the defense to prove
that Anastacio Garbo was prompted by any improper motive in testifying against the
appellant, bespeak of his credibility.
[18]

[19]

[20]

On the other hand, the defense offered by the appellant merits scant
consideration. We quote with approval the following observations of the trial court in this
regard:

"x x x. The claim by (sic) accused that he was forced to walk with the brother's
Arsenal from 5:30 in the afternoon up to 7:30 in the evening is rather incredible. The
actuations of the accused after the incident is likewise seriously open to question and
lend doubt as to the truthfulness of his testimony. For instance, he said that soon after
hearing the shouts for help by the victim he ran away towards his sister's house which
was about 100 to 150 meters from the house of the victim. The reason is that he was
afraid that somebody might hear the shouts of the victim and that he was afraid of
being discovered. This statement is pregnant with incriminating evidence."
We agree, however, with the appellant that he should have been convicted only of
the crime of homicide, and not of robbery with homicide. Our settled rule is that in order
to sustain a conviction for robbery with homicide, robbery must be proven as
conclusively as the killing itself, otherwise, the crime would only be homicide or murder
as the case may be. A perusal of the entire records of this case convinces us that
robbery was not duly established. The Information mentioned of gold earrings, gold ring
and cash money being taken by the appellant from Silvina Cuyos. Yet no conclusive
evidence proving the physical act of asportation thereof by the appellant has been
presented by the prosecution. Anastacio Garbo himself, the principal witness for the
prosecution, never claimed to have seen any of these items being taken from Silvina
Cuyos. Neither did he affirm that appellant was carrying anything when the latter left the
house of the victim on that night. We quote hereunder excerpts of his testimony on
cross-examination:
[21]

"xxx xxx xxx

Q: Were you able to see any item being taken from the alleged victim?
A: I did not notice.
Q: When you came back and you made mention that you allegedly saw a man
immediately leaving, did you see that man bringing anything?
A: I did not notice him bringing anything.

Q: After that man walked briskly, did you or any of your companions went (sic) inside
the house of the victim?
A: None of us went inside"[22]

The trial court relied heavily on the testimony of Maximo Cuyos who testified to
have discovered the loss of these items when he made a check on the victim's house.
He admitted, however, that such discovery was made only at about eleven o'clock in
the evening of the following day and not on the same night the incident
happened. There is a probability, therefore, that during the interim other persons could
have surreptitiously entered into the victim's house, now uninhabited, and could have
taken therefrom these valuable items. As such, the trial court was in grave error when it
conveniently ascribed to the appellant the commission of robbery in this case. Thus,
while we are not disputing that robbery has in fact taken place, we are not convinced
that it was appellant who committed the same. Neither will our finding of Allan Rubio's
guilt with respect to the killing of Silvina Cuyos necessarily raises an inference of his
guilt with respect to the element of robbery in the indictment. For to convict the appellant
of the special complex crime of robbery with homicide, there must be proof beyond
reasonable doubt of both robbery and homicide.
[23]

[24]

[25]

Considering the fact that Silvina Cuyos was already sixty (60) years old at the time
she was killed by the appellant, who was then only twenty three (23), the aggravating
circumstance of disrespect due the offended party on account of her age must be
appreciated.
WHEREFORE, in view of the foregoing, the decision appealed from is hereby
MODIFIED. We find accused-appellant guilty of the crime of HOMICIDE only. In view of
the aggravating circumstance of disregard of the respect to the victim on account of her
age and applying in his favor the benefits of the Indeterminate Sentence Law, he is
hereby sentenced to an indeterminate penalty of imprisonment ranging from ten (10)
years and one (1) day of prision mayor, as minimum to seventeen (17) years, four (4)
months and one (1) day of reclusion temporal, as maximum. The award of P50,000.00
as indemnity for the death of Silvina Cuyos is affirmed.
SO ORDERED.
Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Panganiban, JJ., concur.

[1]

Information dated May 27, 1992; Records, pp. 1-2.

[2]

RTC-Cebu, Branch IX, Decision dated April 27, 1994, p. 5; Rollo, pp. 18-19.

[3]

Id., pp. 2-3; Rollo, pp. 13-14.

[4]

TSN., Anastacio Garbo, March 23, 1993, pp. 3-6

[5]

TSN., Paulino Ygot, April 13, 1993, pp. 2-5.

[6]

TSN., Maximo Cuyos, March 24, 1993, pp. 4, 16.

[7]

TSN., Benigno Aldana, Jr., April 20, 1993, p. 3.

[8]

TSN., Allan Rubio, February 2, 1994, p. 5.

[9]

Appellant's Brief, p. 1; Rollo, p. 32.

[10]

People v. Bondoc, 232 SCRA 478 (1994); People v. Nimo, 227 SCRA 69 (1993); People v. de la
Cruz, 217 SCRA 283 (1993); People v. Dominguez, 217 SCRA 170 (1993); People v. Caraig, 202
SCRA 357 (1991); People v. Sarol, 139 SCRA 125 (1985).

[11]

See People v. Bondoc, 232

SCRA
478
(1994);
People v. Ocampo, 226
SCRA
1
(1993); People v. Juma, 220 SCRA 432 (1993); People v. Baez, 214 SCRA 109 (1992) citing
People v. Abrogar, 73 SCRA 466 (1979).

[12]

See People v. Gumahin, 21 SCRA 729 (1967); People v. Secapuri, et al, 16 SCRA 199 (1966).

[13]

[14]

[15]

[16]

See People v. Radomes, 141 SCRA 548 (1986), citing People v. Amoncio, 122 SCRA 686 (1983).
Appellee's Brief, p. 26; Rollo, p. 98.
See People v. Danico, 208 SCRA 472 (1992).
People v. Caraig, 202 SCRA 357, 367 (1991), citing People v. Pacabes, 137 SCRA 158 (1985).

[17]

TSN., Anastacio Garbo, March 23, 1993, p. 4; See People v. Sabellano, 198 SCRA 196 (1991).

[18]

See People v. Penillos, 205 SCRA 546, 556 (1992), citing People v. Almenario, 172 SCRA 268 (1989);
See also People v. Reana, 120 SCRA 583 (1983).

[19]

TSN., Anastacio Garbo, March 23, 1993, p. 5.

[20]

Id., p. 4.

[21]

People v. Nimo, 227 SCRA 69 (1993); People v. Martinado, 214 SCRA 712 (1992); People v. Lapan,
211 SCRA 337 (1992).

[22]

[23]

[24]

[25]

TSN., Anastacio Garbo, March 23, 1993, pp. 14-15.

TSN., Maximo Cuyos, March 24, 1993, pp. 15-16.
Id.
Art. 294, Revised Penal Code.

3. P v lacanieta 330 scra 519

THIRD DIVISION
G.R. No. 124299

April 12, 2000

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CESAR LACANIETA alias "Boy Alog", JERRY BALLENAS alias "Marlon Marquez" and Carlito
Gamad, accused, JERRY BALLENAS, accused-appellant.

GONZAGA-REYES, J.:
Consorcia Tayo (Consorcia) claims that her daughter, 19-year-old WILMA TAYO (WILMA) was
abducted at gunpoint on March 20, 1987. WILMA was found dead the next day, her body bore signs
that she was first raped then brutally stabbed ten times. Four persons were suspected as

perpetrators of the crime: JERRY BALLENAS (BALLENAS) alias MARLON MARQUEZ, CESAR
LACANIETA (LACANIETA) alias BOY ALOG, ALBERTO SALVADOR (SALVADOR) and CARLITO
GAMAD (GAMAD). SALVADOR was shot dead during the police investigation and GAMAD was also
shot dead after the re-investigation conducted by the Office of the Provincial Fiscal of San Jose,
Antique.
Based on the records of this case, LACANIETA and BALLENAS were already charged with murder
at the Regional Trial Court, Branch 12 of San Jose, Antique. Since BALLENAS had already been
arraigned for murder, an Information for Forcible Abduction with Rape was filed on October 12, 1987
against BALLENAS and LACANIETA before the same court. LACANIETA thereafter posted bail, but
he eventually absconded. The Information was then amended on June 19, 1989 to read as follows:
At the instance of the mother of the deceased offended party, Wilma Tayo, who has
subscribed and sworn to a complaint attached to the records of the above-entitled
cases, the undersigned Assistant Provincial Prosecutor accuses JERRY
BALLENAS alias "MARLON MARQUEZ" of the crime of forcible abduction with rape
committed as follows:
That on or about the 20th day of March, 1987 in the Municipality of Sibalom,
Province of Antique, Republic of the Philippines and within the jurisdiction of this
Honorable Court, the above-named accused together with Cesar Lacanieta who is
still at large and Alberto Salvador and Carlito Gamad, both deceased, being then
armed with gun and knife and by means of force and intimidation and with lewd
designs, conspiring, confederating together and mutually helping one another, did,
then and there willfully, unlawfully and feloniously abduct and carry away Wilma Tayo
at a gun point (sic) to an uninhabited place and while there, by means of force and
intimidation, have carnal knowledge of the said Wilma Tayo against the latter's will.
Contrary to the provisions of article 335 of the Revised Penal Code in relation to
Article 342 of the same Code.1
Trial fiscal Juan C. Mission, Jr. was of the opinion that the proper charge against BALLENAS is
forcible abduction with rape "because an independent act of forcible abduction preceded the rape
and murder of the deceased Wilma Tayo," and not the special complex crime of rape with homicide. 2
The arraignment of BALLENAS for forcible abduction with rape came belatedly because it was only
after the case was already submitted for decision when the trial court discovered that BALLENAS
had not yet been arraigned. Both the prosecution and defense then agreed to arraign BALLENAS
and to consider all the evidence earlier presented as reproduced. BALLENAS was accordingly
arraigned on the Amended Information on February 18, 1992; he pleaded not guilty. The evidence
for the prosecution consisted of the testimonies of Consorcia and Florencio Millones (Florencio) and
Exhibits "A", "B", "C", and "D" as documentary evidence, while the defense presented BALLENAS as
its lone witness.
The version of the prosecution as summarized by the trial court is as follows:
On March 20, 1987 about 7 o'clock in the evening, the Wilma Tayo (sic) and her
mother Mrs. Consorcia Tayo were in their house at Sitio Bulho, Cubay-Sermon,
Sibalom, Antique. They were about to eat supper when someone called to them
asking to light a cigarette. Wilma Tayo asked who was calling and the answer was "I
am Junior, let me light my cigarette". Wiima Tayo opened the door slightly and there
stood accused Jerry Ballenas alias Marlon Marquez. Accused did not light his

cigarette but instead blew the gas lamp and put out the light. He held Wilma Tayo by
the wrist.
Accused Jerry Ballenas pointed a short firearm to Wilma Tayo and Consorcia Tayo.
Accused told Wilma Tayo to accompany him to Maria Leong-on, his girlfriend. Wilma
Tayo refused as they were about to eat supper. Consorcia Tayo also told her
daughter, Wilma Tayo not go out (sic) because it was already dark. Accused Jerry
Ballenas forced Wilma Tayo to go out with him and struck the hand of Consorcia
Tayo and pointed the handgun at her. Accused held Wilma Tayo tightly and took her
away.
Because of the abduction, Consorcia Tayo sought the help of a neighbor, Andres
Mallorca, whose house is about 20 meters away from her house but to no avail,
Andres Mallorca shut the door on her for fear of Jerry Ballenas as the letter is known
as a member of the dreaded Sparrow Unit of the New People's Army.
The following morning, Consorcia Tayo reported the abduction of Wilma Tayo to her
son-in-law who is a member of the Integrated National Police. She learned from
Aurelio Gamad that her daughter Wilma Tayo was already dead. The police then
proceeded to the scene of the incident.
At the time Wilma Tayo was abducted, she was 19 years old. She was single and a
third year student in the Polytechnic State College of Antique, Sibalom, Antique.
Consorcia Tayo spent P30,000.00 for the funeral of Wilma Tayo. Consorcia was shocked and she felt
pain with the death of her only daughter Wilma Tayo. To Consorcia Tayo no amount of money could
compensate the death of her daughter Wilma Tayo whom they loved so much.
BALLENAS disavows any participation in the abduction, rape and killing of WILMA and offered this
version, viz:
In the afternoon of March 20, 1987, at about past 4:00 p.m., he was in the house of
CARLITO GAMAD. When darkness came, CARLITO asked him to accompany
CEZAR LACANIETA (a boarder of the GAMAD's), to the house of victim WILMA
TAYO. Victim was the girlfriend of LACANIETA. On the way, LACANIETA told him of
his plan to elope with victim, and asked him to talk to her. He proceeded to the house
of victim, while LACANIETA was left behind near the irrigation canal. Upon reaching
the house of victim, he called out and the mother answered his call and then victim
came out of the house. He told victim that LACANIETA had something to tell her and
that he was waiting for her at the irrigation canal. Both of them proceeded to where
LACANIETA was waiting and after he led victim to LACANIETA, he went home
(T.S.N., pp. 7-10, August 9, 1990).3
On May 29, 1992, the Regional Trial Court, Branch 12 of San Jose, Antique rendered its
Decision4 finding BALLENAS guilty of forcible abduction with rape, the judgment declares:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered finding the
accused Jerry Ballenasalias Marlon Marquez GUILTY beyond reasonable doubt of
the crime of Forcible Abduction with Rape punished under Article 335 of the Revised
Penal Code in relation to Article 342 and Article 48 of the same Code with reclusion
perpetua to death by reason of the use of a firearm by accused Jerry Ballenas in the
abduction of Wilma Tayo. And applying Article 63 of the Revised Penal Code, the

penalty that should be imposed should be the greater penalty of death there being
two aggravating circumstances but because the present Constitution prohibits the
imposition of the death penalty accused Jerry Ballenas is hereby sentenced to suffer
a prison term of reclusion perpetua or life imprisonment and to suffer the accessory
penalty provided for by law and he is ordered to indemnify the heirs of the deceased
Wilma Tayo the sum of P50,000.00 and to pay Consorcia Tayo, the sum of
P30,000.00 for the funeral expenses incurred by her for the funeral of the deceased
Wilma Tayo and to pay the cost.
SO ORDERED.5
In this appeal, BALLENAS questions the quoted decision on these grounds:
I.
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF FORCIBLE
ABDUCTION WITH RAPE.
II.
THE COURT A QUO ERRED IN ORDERING ACCUSED-APPELLANT TO
INDEMNIFY THE HEIRS OF VICTIM IN THE AMOUNT OF P50,000.00, THE SUM
OF P30,000.00 FOR FUNERAL EXPENSES AND TO PAY THE COSTS. 6
This Court is convinced that the trial court did not err in concluding that BALLENAS is guilty beyond
reasonable doubt of the forcible abduction and rape of WILMA. In asserting his innocence,
BALLENAS foists the defense of alibi, a defense that has long been considered as intrinsically the
weakest of all defenses.7 Basic is the rule that the defense of alibi should be rejected when the
identity of the accused has been sufficiently and positively established by eyewitnesses to the crime
because alibi cannot prevail over the positive identification of the accused by the prosecution
witnesses.8
In this case, Consorcia, the mother of WILMA, positively identified BALLENAS as the person who
went to her house and abducted her daughter at gunpoint that fateful night. Moreover, the testimony
of Florencio fortifies the theory of the prosecution that after the abduction of WILMA, BALLENAS
together with LACANIETA, SALVADOR and GAMAD raped and stabbed WILMA. According to
Florencio, he was passing through the street of Barangay Catmon, Sibalom, antique when he saw
"Boy Alog" (LACANIETA) lying on top of WILMA.9 The hands of WILMA were then held down by
BALLENAS and SALVADOR. 10 Surprised by the presence of Florencio, LACANIETA stood up and
told the former that they were just having a "happy-happy". 11 Florencio then left and after reaching
three brazas, he hid to see what the group was up to. 12 Florencio testified that he thereafter saw four
men take turns in ravishing and stabbing WILMA. 13 The following testimony of Florencio establishes
the participation of BALLENAS in the crime charged:
Q: Mr. Millones, you said that you are a resident of Barangay Catmon, Sibalom,
Antique, how long have you been a resident of that plade?
A: I was born there.
Q: Are you still a resident in that place?

A: Yes, sir.
Q: On March 20, 1987, were you still a resident of that place?
A: Yes, sir.
Q: On that day, about 7:00 o'clock in the evening can you recall where you were?
A: Yes, sir, I was walking on the street of Barangay Catmon, Sibalom, Antique and it
was already past 7:00 o'clock in the evening.
Q: Where did you come from?
A: I came from Durog leading to Catmon.
Q: Where were you going then?
A: I was intending to go to the house of my deceased mother whose wake falls on
that night.
Q: While walking from Durog towards your house, can you recall if you were able to
observe any unusual incident?
A: Yes, sir.
Q: What was that about?
A: While I was in the street of Brgy. Catmon, Sibalom Antique, I saw four persons,
three are squatting, while the other one is lying flat on his stomach and I thought
there (sic) were all drinking.
Q: As you pass by these four persons, did you start any conversation with them?
A: While I was approaching them and when I reach that place, the fellow who was
lying flat on his stomach, stood up and told me that they were just having a happy
happy so I will just pass by my way.
Q: What else did you see when he stood up?
A: When he stood up, he told me I will proceed on my way and I saw that the three
persons were holding a girl.
Q: You said they were holding a girl, do you know that girl?
A: Yes, sir, Wilma Tayo, daughter of Consorcia Tayo.
Q: Aside from Marlon, do you know that three other persons?
A: Yes, sir.

Q: Who were they?

A: They were Alberto Salvador, Carlito Gamad, Marlon and Boy Alog.
Q: And who was that person who was lying flat on his stomach?
A: Boy Alog.
Q: If these three persons are inside the courtroom, could you please point to them?
A: Only one is here inside the courtroom.
Q: And who was that?
A: Jerry Ballenas.
INTERPRETER:
At this juncture, the witness pointed to a man seated inside the courtroom and when
asked by the Interpreter what his name is, identified himself as Jerry Ballenas.
Q You said that three persons were holding on to Wilma Tayo, will you please tell us
who among these three persons were holding Wilma Tayo and on what part of the
body?
A: Carlito Gamad was holding the hands of Wilma Tayo and the hands of the girl are
both stretched above his head.
Q: How about the two other persons?
A: While Jerry Ballenas and Alberto Salvador, Jr. were holding on each of the leg of
the girl.
Q: How did these Jerry Ballenas and Alberto Salvador, how were they holding the
legs of Wilma Tayo.
A: Wilma was lying flat on his (sic) back on the street and each of these persons
were holding on each of the leg of Wilma Tayo.
Q: Are the legs of Wilma Tayo held fell (sic) to the ground or raised up?
A: The legs are joined to the ground in V-position.
Q: Do you know if Wilma Tayo saw you pass by?
ATTY. ABIERA:
Incompetent, your Honor.
COURT:

Sustained.
FISCAL MISSION:
After you were told that they were just there for a happy happy, what did you do?
A: I told them I will pass my way.
Q: After that, what did you do?
A: I walk farther and observe.
Q: How far did you walk and observe these persons?
A: I walk from the place about three brazas so that I could observe what they were
doing.
Q: Will you please demonstrate to the court by pointing inside the courtroom how far
more or less is three brazas?
INTERPRETER:
Witness is pointing to the wall of the other courtroom of Branch 11 which is more or
less 8 to 9 brazas.
FISCAL MISSION:
Q: Now, upon reaching that place about 8 brazas to make some observation, what
did you do?
A: I hid and observe what they were doing.
Q: Did you observe anything else?
A: Yes, sir.
Q: What did you observe?
A: I saw them. These four took turns in raping the girl.
Q: Then what else did you see?
A: After raping Wilma Tayo, they also took turns in stabbing her.
Q: How long did you observe the group?
A: I could not determine the length of time I stayed in that place because I do not
have a watch.
Q: After making such observation, what did you do?

A: After I have witnessed that horrifying incident, I just proceed to the house of my
deceased mother. 14
The autopsy report made by Dr. Julito V. Osunero, Chief of the Ramon Maza Memorial District
Hospital, Sibalom, Antique confirms the testimony of Florencio. The report contains these findings:
1. Stab wound, 1 inch long left side Neck, point of entrance and point of exit, Right
side neck thru and thru.
2. Stab wound, 1 inch long left side Neck, point of entrance and point of exit, Right
side neck thru and thru.
3. Stab wound, 1 inch long Left side neck and point of exit Right side Neck thru and
thru, cutting carotid and jugular vessels.
4. Stab wound, 1 inch long, Epigastric Area perforating Abdominal Cavity perforating
Liver.
5. Stab wound, 1 inch diameter perforating Abdominal Cavity perforating Stomach.
6. Stab wound, 1 inch long, Right anterior Chest perforating thoracic Cavity
penetrating Right Lung.
7. Stab wound, 1 inch long, Right Lumber Area perforating Abdominal Cavity
penetrating Kidney.
8. Stab wound, 1 inch long, Lumbar Area Right, perforating Abdominal Cavity.
9. Stab wound, Inter-scapular, 1 inch long, muscle depth.
10. Stab wound, Inter-scapular, 1 inch long, muscle depth.
11. Contusion both thigh, 2 inches diameter, left and 3 inches diameter, right.
12. Hymen Lacerations 3:00 o'clock and 9:00 o'clock, Fresh.

15

The cause of the death of WILMA is reported as due to hemorrhage secondary to wounds on the
neck, chest, abdomen and back. 16
The trial court opined that the contusions on the thighs of WILMA show that her legs were forcibly
set apart to facilitate the rape of WILMA. That WILMA was raped is evidenced by hymenal
lacerations, still found fresh on March 21, 1987, the day the autopsy was conducted. We agree with
the trial court that based on the evidence, it could readily be concluded that the perpetrators stabbed
WILMA several times after the commission of the rape.17
In a desperate attempt to reverse the decision of the trial court, BALLENAS impresses upon this
Court his theory that if he indeed committed the crime charged, he would not have exposed himself
to Consorcia at the time that WILMA was abducted. 18 BALLENAS also points out that his return to
Catmon the following Monday after the death of WILMA and on which date he was arrested, belies
his participation in the despicable crime. 19BALLENAS argues that if he was guilty of the crime, he

would not have returned to Catmon to face the possibility of being arrested since the victim was with
him on the night of March 20, 1987. 20
We are not persuaded. A telling detail in this case is the fact that the mother of the victim witnessed
first hand the abduction of her daughter at gunpoint. Consorcia has no reason to wrongfully implicate
BALLENAS. As the mother of the deceased victim, Consorcia would want nothing short of justice for
her dead daughter. BALLENAS does not deny the fact that he went to see WILMA to fetch her that
evening of March 20, 1987. In professing his innocence, BALLENAS merely denies the allegations
of Consorcia that he took away WILMA at gunpoint and offers the defense that he merely talked to
WILMA to convince her to meet with LACANIETA. Well-settled is the rule that denial is an intrinsically
weak defense which must be buttressed by strong evidence of non-culpability to merit
credence. 21 An affirmative testimony is far stronger than negative testimony, especially so when it
comes from the mouth of a credible witness. 22 The fact that BALLENAS exposed himself to
Consorcia all the more indicates his brazenness in abducting WILMA. The return of BALLENAS to
Catmon after the death of WILMA cannot be also taken as a badge of his innocence. It is the
credible and unwavering testimony of Consorcia that stands as solid proof of the guilt of
BALLENAS.
1wphi1.nt

BALLENAS assails the testimony of Florencio on the ground that it "abounds in

inconsistencies" 23 and is not credible. The alleged inconsistencies are however not clearly
established. Notably, Florencio unequivocally said that he saw LACANIETA, BALLENAS,
SALVADOR and GAMAD rape and stab WILMA. We have no reason to doubt the credibility of
Florencio in light of the doctrine that where there is no evidence to show any dubious reason or
improper motive why a prosecution witness should testify falsely against the accused or implicate
him in a serious offense, the testimony deserves full faith and credit. 24 The initial reluctance of
Florencio to get involved in this case is understandable and does not cast doubt on his credibility as
a witness. Whenever the issue boils down to credibility, we have always maintained that the
credibility of witnesses and their testimonies is a matter best undertaken by the trial court, because
of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and
attitude. 25 Findings of the trial court on such matters are binding and conclusive on the appellate
court, unless some facts or circumstances of weight and substance have been overlooked,
misapprehended or misinterpreted. 26
We therefore see no cogent reason to reverse the judgment of the trial court convicting BALLENAS
of the crime of forcible abduction with rape. The trial court ruled that there are two aggravating
circumstances in this case, nighttime 27 and that the wrong done in the commission of the crime was
deliberately augmented by causing other wrong not necessary for its commission 28 . We however
digress from the finding of the trial court that the aggravating circumstances of nighttime and that the
wrong done in the commission of the crime was deliberately augmented by causing other wrong not
necessary for its commission are present in the case at bar.
Based on the records, BALLENAS abducted WILMA around 7 o'clock in the evening of March 20,
1987 and that BALLENAS blew off the lighted kerosene lamp offered by WILMA to BALLENAS to
light his cigarette. 29 However, Consorcia testified that there was some light coming from another
kerosene lamp upstairs that "reflected (sic) the door" and that Consorcia also had a kerosene lamp
with her that BALLENAS also put off. 30 In the case of People vs. Pallarco, 31 the scene of the crime
was sufficiently illuminated by a kerosene lamp, hence we ruled in that case that nocturnity cannot
be appreciated if it can be shown that the place was adequately lighted. 32 The prosecution also
failed to prove that nighttime was specially sought by the accused or taken advantage of by him or
that nighttime facilitated the commission of the crime, circumstances which must be present before
the aggravating circumstance of nighttime can be appreciated. We also do not agree with the trial
court that the aggravating circumstance of cruelty attended the commission of the crime charged.

The aggravating circumstance of cruelty is present when "the wrong done in the commission of the
crime is deliberately augmented by causing other wrong not necessary for its commission". 33 There
is cruelty when the culprit enjoys and delights in making his victim suffer slowly and gradually,
causing him unnecessary physical pain in the consummation of the criminal act. 34 In People
vs. Ferrer 35 , the aggravating circumstance of cruelty was not appreciated in the absence of positive
proof that the appellants inflicted the thirteen (13) wounds upon the victim in such a way that he was
made to agonize before they rendered any of the blows which snuffed out his life. In this case,
WILMA sustained ten (10) stab wounds, but these multiple wounds alone do not prove that the
accused deliberately inflicted the injuries to prolong unnecessarily her physical suffering. Thus, the
trial court improperly considered the aggravating circumstance of cruelty in the case at bar.
What is present in this case is the aggravating circumstance of dwelling. Consorcia testified that her
house has a ladder that leads to the main door; that BALLENAS was at the main door when he
called WILMA; and that when WILMA refused to go with BALLENAS, it was there that BALLENAS
forced WILMA to go with him. 36 Without a doubt, WILMA was abducted while she was still in her
house. Thus, dwelling may be appreciated as an aggravating circumstance considering that it is not
necessary that the accused should have entered the dwelling of the victim. 37
BALLENAS committed the crime of forcible abduction with rape punished under Article 335 of the
Revised Penal Code in relation to Article 342 and 48 of the same Code. The two elements of forcible
abduction are (1) the taking of a woman against her will and (2) with lewd designs 38 . The crime of
forcible abduction with rape is a complex crime that occurs when there is carnal knowledge with the
abducted woman under the following circumstances: (1) by using force or intimidation; (2) when the
woman is deprived of reason or otherwise unconscious; and (3) when the woman is under twelve
years of age or is demented. 39 BALLENAS committed the crime of forcible abduction with rape on
March 20, 1987, before the passage of Republic Act 7659 or the Heinous Crimes Law that took
effect on December 31, 1993. At the time that BALLENAS committed the crime of forcible abduction
with rape, the penalty then applicable was reclusion perpetua to death. The use by BALLENAS of a
firearm in committing the crime, a fact duly alleged in the information and proven in court, should
have warranted the imposition of the death penalty. However, since the crime took place prior to the
implementation of RA 7659, the trial court correctfully ruled that the penalty that can be imposed on
BALLENAS is reclusion perpetua. Hence, despite the presence of the aggravating circumstance of
dwelling, the penalty herein of reclusion perpetua would not be affected. Under Article 63 of the
Revised Penal Code, the penalty of reclusion perpetua should be applied regardless of any
mitigating or aggravating circumstance that may have attended the commission of a crime. 40
This Court is however constrained to disallow the amount of P30,000.00 for the burial expenses
incurred by Consorcia. We can only give credit for actual damages such as burial expenses if there
are receipts that can support the claim. 41 The records in the case at bench do not substantiate the
P30,000.00 burial expenses sought by Consorcia, except for her lone assertion.
The P50,000.00 indemnity awarded by the trial court must be modified. Instead of the sum of
P50,000.00 as indemnity, we award P75,000.00 as civil indemnity considering that the crime was
committed with the use of a weapon as alleged in the information and proven in court. In
consonance with jurisprudence, the increase of the civil indemnity to P75,000.00 is justified if the
crime was committed under circumstances that justify the imposition of the death
penalty. 42 In People vs. Baago 43 , the accused committed the crime of rape with the use of a gun
on October 15, 1993, before the passage of RA 7659. This Court was thus precluded from meting
out the death penalty, but nevertheless the accused was ordered to pay civil indemnity in the amount
of P75,000.00. 44

In spite of the death of the victim in this case, we cannot award the higher amount of P100,000.00,
the civil indemnity awarded in cases of rape with homicide. 45 The information in the case at bar is
merely for forcible abduction with rape and not for rape with homicide.
Moral damages in the amount of P50,000.00 are also hereby granted to the heirs of the victim. The
award of moral damages may be made to the heirs of the victim in a criminal proceeding without the
need for pleading or proof of the basis thereof. The fact that they suffered the trauma of mental or
physical and psychological sufferings which constitute the bases for moral damages under the Civil
Code are too obvious to still require recital thereof at trial. 46 Here, Consorcia testified as to the
inconsolable loss that she felt when her only daughter was abducted, ravished and killed. 47
Exemplary damages may be awarded in criminal cases as part of the civil liability if the crime was
committed with one or more aggravating circumstances. 48 Since dwelling is appreciated in this case
as an aggravating circumstance under Article 14 (6) of the Revised Penal Code, the award of
P20,000.00 as exemplary damages is therefore in order.
1wphi1

WHEREFORE, the decision of the Regional Trial Court, Branch 12, San Jose, antique is AFFIRMED
with the MODIFICATION that the accused-appellant Jerry Ballenas alias Marlon Marquez is ordered
to pay the heirs of the victim in the amount of P75,000.00 as civil indemnity, P50,000.00 as moral
damages and P20,000.00 as exemplary damages. The award of actual damages of P30,000.00 is
deleted.
1wphi1.nt

SO ORDERED.
Melo, Panganiban and Purisima, JJ., concur.
Vitug, J., abroad, on official business.
Footnotes
1

Rollo, p. 7.

Records, p. 73.

Rollo, p. 156.

Per Judge Bonifacio Sanz Maceda.

Rollo, p. 23.

Ibid., p. 157.

People vs. Barellano, G.R. No. 121204, December 2, 1999.

Ibid.

TSN, July 14, 1989, p. 9.

10

Ibid., pp. 6-9.

11

Ibid., p. 3.

12

Ibid., p. 4.

13

Ibid., p. 5.

14

TSN, July 14, 1989, pp. 96-99.

15

Records, p. 12.

16

Ibid.

17

Rollo, p. 22.

18

Ibid. p. 156.

19

Ibid.

20

Ibid., p. 157.

People vs. Sagun, G.R. No. 110554, February 19, 1999 citing People vs. Burce,
269 SCRA 293 (1997).
21

22

Ibid., citing People vs. Antonio, 233 SCRA 283 (1994).

23

Ibid.

People vs. Quianola, G.R. No. 126148, May 5, 1999 citing People vs. Benguis,
G.R. No. 121626, June 28, 1996.
24

25

People vs. Tabones, G.R. No. 129695, March 17, 1999.

26

Ibid.

27

Art. 14 (6), Revised Penal Code.

28

Art. 14 (21), Revised Penal Code.

29

TSN, July 13, 1989, p. 6.

30

Ibid., p. 19.

31

288 SCRA 151 (1998).

32

Ibid., p. 170.

33

People vs. Ferrer, 255 SCRA 19 (1996), p. 36.

34

LUIS B. REYES, THE REVISED PENAL CODE, 14th Ed., Vol. I, p. 454.

35

Supra.

36

TSN, July 13, 1989, pp. 4-5.

THE REVISED PENAL CODE, RAMON C. AQUINO and CAROLINA C. GRIOAQUINO, 1997 ED., VOL. I., p. 329.
37

RAMON C. AQUlNO and CAROLINA C. GRIO-AQUINO, THE REVISED PENAL

CODE, 1997 Ed., Vol. III, p. 464.
38

39

Art. 335, Revised Penal Code.

40

People vs. Perez, 270 SCRA 526 (1997), p. 536.

41

People vs. Robles, G.R. No. 124300, March 25, 1999.

42

People vs. Padil, G.R. No. 127566, November 22, 1999.

43

G.R. No. 128384, June 29, 1999.

44

Ibid.

45

People vs. Robles, supra.

46

Ibid.

47

TSN, pp. 10-11, July 13, 1989.

48

People vs. Batton, G.R. No. 134194, October 26, 1999.

4. P v balansi 187 scra 566

SECOND DIVISION
G.R. No. 77284 July 19, 1990
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BONIFACIO BALANSI alias "BAN-OS", defendant-appellant.
The Solicitor General for plaintiff-appellee.
Balgos & Perez for defendant-appellant.

SARMIENTO, J.:

The accused-appellant stands charged with the murder of Elpidio Dalsen on January 30, 1982 at
Balinciagao, Pasil, Kalinga-Apayao. The Information alleged that he, armed with a Garand rifle, went
inside the house of the victim, then allegedly fast asleep, where he shot him twice and killed him.
Treachery was held to be present, and so were evident premeditation and employment of means to
weaken the defense of the victim. 1
The accused-appellant was then the Barangay Captain of Balinciagao Norte, Pasil, Kalinga-Apayao,
and a member of the Civilian Home Defense Force (CHDF), while the victim was the Provincial
Development Officer of Kalinga-Apayao. 2 The incident took place during a wedding celebration at
Balinciagao Sur, Pasil, at or about 5:30 or 6:00 o'clock in the afternoon. The prosecution presented eight
witnesses. The defense placed two on the stand.
The trial court found the accused guilty as charged and sentenced him to die and to pay a total of
P590,000.00 in actual (P540,000.00 for loss of the victim's earning capacity) and moral damages,
plus costs. 3
It appears that the victim, a nephew of the appellant, was then sleeping at the house of his parents
located opposite the house where the wedding celebration was being held. At or about 5:00 o'clock
in the afternoon, Beatrice Canao, a Balinciagao resident, saw the accused, her uncle, standing at
the door of the house of the victim's parents, also her relatives, armed with a gun. She inquired what
he was doing there and he allegedly replied that he was waiting for the victim. She then entered the
premises to locate an old newspaper with which to wrap food, a rice cake, when she saw the victim
asleep. When she left, she saw the accused at the doorway. After disposing of her rice cake (which
she gave to a certain Fr. Medina), she heard two gunshots, fired at an interval of two or three
seconds, emanating apparently from the house, to which she shortly rushed. She allegedly met the
accused at the steps leading to the second floor, brandishing his rifle. 4
She allegedly shouted "putok, putok!" 5 She then reported the matter to the police.
Yulo Asbok a fellow CHDF member of the accused and likewise a Balinciagao resident, also heard
two gunshots ring that afternoon. He said that he was three meters from the house where the
gunshot sounds seemed to have originated. He allegedly proceeded there but was met by the
accused at the steps. They allegedly grappled for possession of the rifle, which, he alleged, was still
warm and reeked of gunpowder. He was able to wrest possession, after which, the accused
allegedly ran away and fled to Pogon, also in Balinciagao. He later learned that the victim had been
shot and that he died at Lubuagan Hospital. 6
Rosalina Dalsen, the victim's wife was enjoying the wedding celebration when she heard two
gunshots. She made inquiries subsequently and was informed that the victim was her husband. She
claimed that she saw the accused standing at the entrance of her parents- in-law's house prior
thereto. 7
Dr. Nicolas Balais, a dentist by profession, was also at that celebration when he heard the shots. He
then went to the victim's parent's house where they, the shots, rang out from. He did not allegedly
have in mind that somebody had actually been fired upon but thought that may be there had been a
burglary. He ascended the steps of the house where the accused earlier met Beatrice Candao and

Yulo Asbok, and entered the second floor. He saw the victim lying in his room, whom he initially
believed to be merely sleeping, but who was, in fact, dead. 8
The prosecution also presented Simeon Valera, principal of Pasil Central School, and Artemio
Dalsen the victim's brother, who sought to establish a motive for the killing of the victim, a motive
they imputed to the accused. Valera testified that revenge was supposedly a tradition among
Kalingas (of which both the accused and victim were members), which, however, could be prevented
by the dusa, meaning, apparently, intervention and mediation by community elders. 9 Meanwhile,
Dalsen claimed that the accused had nursed along- standing grudge against the victim, whom he
accused of delaying on alleged award for the construction of a bridge in Balinciagao in 1979. 10
After the prosecution rested, the defense presented its evidence. It presented two witnesses, the
accused himself and Masadao Jose, who lived in Samangana, Balinciagao.
The accused claimed that he was also at the wedding celebration on that fateful afternoon when he
too heard two gunshots break in the air. As a member of the CHDF, he allegedly took it upon himself
to investigate the matter. He said that he went to the direction where the shots came from and was
on his way to the entrance of the house when Yulo Asbok allegedly prevented him from doing so,
who grabbed the firearm he was carrying. He did not allegedly know at that time that the victim had
been shot and allegedly learned of it only on the following day. He admitted having ran away but
allegedly because he had been implicated. Four days later, he voluntarily turned himself in to the
police. Masadao Jose corroborated his statement. 11
In returning a verdict of guilty, the trial judge observed: "While there is no eye witness who testified to
having seen the accused Bonifacio Balansi shoot the victim, yet all the circumstances pointed to him
as the perpetrator of the crime." 12
The circumstantial evidence referred to came primarily from the lips of Yulo Asbok and Beatrice
Candao as well as the accused himself, who admitted having been at the scene of the crime.
Obviously, the judge did not lend credence to the accused's defense.
The accused-appellant now contends that the judge erred, first, in appreciating circumstantial
evidence, second, in appreciating treachery, and third, in rejecting his defense of alibi.
We affirm, with modification, the decision appealed from.
While there was no eyewitness account, the web of circumstantial evidence points to no other
conclusion than that the accused was guilty of shooting the victim, Elpidio Dalsen to death in the
afternoon of January 30, 1982. These circumstances are as follows: (1) He was seen standing by
the entrance of the house where the victim had sojourned, armed with a long rifle, minutes before
gunshots were heard. Three witnesses saw him: Beatrice Canao, Yulo Asbok, and Rosalina Dalsen.
(2) Moments later, two shots rang out, one after the other. Four witnesses heard them: Canao,
Asbok, Dalsen and Nicolas Balais. (3) Thereafter, Canao saw him descending from the steps of the
house. Asbok also saw him there, whom he wrestled for the possession of the rifle. (4) He fled and
hid for four days.

Under Rule 133, Section 5, of the Rules of Court:

SEC. 4. Circumstantial evidence, when sufficient. Circumstantial evidence is
sufficient for conviction if.
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt. 13
As we glean from the evidence, there is no one, other than the accused-appellant, who could have
perpetrated the offense.
The accused-appellant, as we said, disagrees. He insists that he was there, precisely, to investigate
the matter, and armed himself for the purpose, but was stopped by Yulo Asbok. His protests
notwithstanding, we too must reject this defense. Two reasons persuade us. First, he has not
ascribed any motive to Yulo Asbok as to why he, Asbok should testify falsely against him. Second,
he admits having fled immediately thereafter. If he were truly innocent, he would not have done so.
We have held time and again that flight is a silent admission of guilt. 14 As aptly put "The righteous is
brave as a lion, but the wicked man fleeth." 15
If he were moreover truly innocent, and that it was Yulo Asbok who had something to do with the
killing and who had meanwhile tried to stop him from conducting an inquiry, it would have been he,
the accused, to be the first to make a report to the authorities so that Asbok could be brought to the
bar of justice. If the latter did try to prevent him from performing his duties, as he claimed, 16 he
should have gone to lengths to implicate Asbok because that too was his duty.
We also reject his claims of inconsistency on the part of the prosecution's witnesses, notably Asbok
who stated that he was the first to be in the victim's house after the shooting (aside from the
accused), in the face of Canao's testimony that she also had been there. The Court is not convinced
that an inconsistency exists. For obviously, Asbok had been mistaken. Canao had earlier been there.
The Court sees no need to make an inquiry on the admissibility of testimonies attributing motive to
the accused-appellant. We are sufficiently persuaded that even without any successful showing of a
motive, the circumstantial evidence on hand nevertheless suffices to warrant a conviction beyond
reasonable doubt.
The Court, however, is not convinced that the accused-appellant had committed murder arising from
treachery, evident premeditation, and means employed to weaken the defense of the victim. As to
treachery, jurisprudence is ample that the manner of attack must be shown. While there are
testimonies to the effect that the victim was "fast asleep", we can not safely presume that he was still
in that condition when the accused sprung his attack. And since nobody saw the actual shooting, we
can not justifiably say that the victim was still actually still asleep at that time. 17

Neither is evident premeditation a qualifying circumstance. In appreciating evident premeditation, it

is necessary to show: (1) the time when the offender determined to commit the offense; (2) an act
manifestly indicating that the culprit had clung to his determination; and (3) a sufficient interval of
time between the determination and execution. 18 The prior determination of the accused to do away
with the victim has not been sufficiently demonstrated by the prosecution.
That the accused also employed means to weaken the victim's defenses is likewise missing in this
case. As we said, there was no actual eyewitness to the killing and hence, we can not say for sure,
based on the evidence before us, that the appellant did employ means to weaken the defense of the
victim.
We, however, affirm the trial court insofar as it appreciated dwelling. Although the victim was not shot
in his house (his parents owned it) it has been held that the dwelling place need not be owned by the
victim. 19 In that case, it was held:
La circunstancia agravante de morada, aunque no fuese la casa propia de los
occisos, debe estimarse porque segun el Tribunal Supremo de Espaa " no
solo por el respeto que el domicilio ajeno merece, como especie de complements de
la personalidad, y por el que es debido al hogar de la familia, sino por el no menor
de que es digna la residencia privada de cualquier ciudadano, y por el mayor grado
de malicia que revela quien busca a su victima alli en donde se encuentra con la
confianza y abandono propios del lugar elegido para el descanso y las intimidades
de la vida: razon por la cual habla el Codigo penal en el art. 10, no de domicillo en
sentido legal, sino de morada en su acepcion real, que no es otra que la del paraje
en donde una persona hace estancia de asiento. ... a titulo de nuesped, o por otro
cualquiera. (S. de 25 de Junio de 1886, 2 Viada., 5 ed., 329.) 20
itc-asl

In the Basa case, the victims were killed while sleeping as guests in the house of another. Dwelling
there was held to be aggravating.
According to earlier cases, including U.S. v. Bredejo, 21 our ruling was that the dwelling place must be
owned by the offended party. In another decision, People v. Celespara, 22 dwelling was not appreciated as
an aggravating circumstance in the absence of proof that the victim owned the dwelling place where he
was killed. In People v. Guhiting, 23 morada was not likewise considered for the same reasons.
However, more recent cases have since followed the lead of Basa, notably People v.
Galapia 24 and People v. Sto. Tomas. 25
"Dwelling" is considered an aggravating circumstance because primarily of the sanctity of privacy the
law accords to human abode. According to one commentator, one's dwelling place is a "sanctuary
worthy of respect" 26 and that one who slanders another in the latter's house is more guilty than if he who
offends him elsewhere. However, one does not lose his right of privacy where he is offended in the house
of another because as his invited guest, he, the stranger, is sheltered by the same roof and protected by
the same intimacy of life it affords. It may not be his house, but it is, even for a brief moment, "home" to
him. He is entitled to respect even for that short moment.

It is with more reason in this case. The late Elpidio Dalsen died in the house of his very parents. who
raised him until he could be on his own.
Under the circumstances, we affirm the lower court, but only insofar as it held the accused-appellant
responsible for taking the life of Elpidio Dalsen. We hold him liable for simple homicide aggravated
by dwelling. Under the Revised Penal Code, he must suffer reclusion temporal in its maximum
period, there being no mitigating circumstances and one aggravating circumstance. 27
WHEREFORE, the appeal is DISMISSED. The accused-appellant is sentenced to an indeterminate
penalty of eight (8) years and one (1) day of prision mayor to seventeen (17) years, four (4) months,
and one (1) day ofreclusion temporal. The grant of damages is affirmed.
SO ORDERED.
Melencio-Herrera (Chairman), Paras, Padilla and Regalado, JJ., concur.

Footnotes
1 Original Records, 1.
2 Rollo, 64.
3 Id., 79-80.
4 Id., 67-68.
5 Original Records, Id., 9.
6 Rollo, Id., 66-67.
7 Id., 64.
8 Id., 65-66.
9 Id., 68-70.
10 Id., 71-72.
11 Id., 74-76.
12 Id., 76.
13 RULES OF COURT, Rule 133, sec. 5, now sec . 4 of the REVISED RULES ON
EVIDENCE.

14 See People v. Espinosa, No. 62613, January 17, 1986, 141 SCRA 110.
15 See People v. Guevarra, G.R. No. 65017, November 13, 1989.
16 T.s.n., Session of July 18, 1985, 177.
17 People v. Antugop, 94 Phil. 1046 (1954), (Unrep.).
18 1 AQUINO, THE REVISED PENAL CODE 352 (1987 ed.).
19 People vs. Basa, 83 Phil. 622 (1949).
20 Supra, 624-625.
21 21 Phil. 23 (1911).
22 82 Phil. 399 (1948).
23 88 Phil. 672 (1951).
24 Nos. L-39303-05, August 1, 1978, 84 SCRA 526.
25 Nos. L-40367-69, August 22, 1985, 138 SCRA 306.
26 AQUINO, Id., 315.
27 REV. PEN. CODE, art. 64, par. 3.

5. P v pareja, 265 scra 429

THIRD DIVISION
G.R. No. 88043 December 9, 1996
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO PAREJA, JOSE TOLEDO and JOHN DOE, accused-appellants.

PANGANIBAN, J.:p
Senseless killing takes on an almost blase signification in the instant case, where the accused tried
but failed to asport a TV set and 'betamax' machine, and instead ended up killing a defenseless
person. Attempted robbery with homicide, committed in the name of a few mundane material goods.

Unfortunately, this is no longer unusual or shocking nowadays, as it seems that life has become
cheap. And that's precisely what is so painfully tragic for all of us.
Together with Antonio Pareja and one John Doe, herein accused-appellant Jose Toledo was charged
before the Regional Trial Court of Legazpi City, Branch 8, with the crime of attempted robbery with
homicide in an Information 1 which reads as follows:
That on or about the 22nd day of November, 1986, in the City of Legazpi, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and helping one another, with intent of gain, being then
armed with a knife and by means of violence and intimidation, did then and there
wilfully, unlawfully and feloniously enter the house of HENEROSO (should be
"Generoso") JACOB, by forcibly detaching the bamboo wall of the kitchen and once
inside, threatened the occupants thereof and demanded for the video machine trade
mark "betacord", however Sabina Jacob grabbed the cloth covering the face of
accused Antonio Pareja which caused the latter to scamper away together with the
two other accused and on the occasion of said attempted robbery the accused
Antonio Pareja, with intent to kill, wilfully, unlawfully and feloniously stab (sic) said
HENEROSO JACOB several times consequently inflicting injuries which directly
caused his death; thus said accused commencing the commission of the crime of
Robbery directly by overt acts and was (sic) not able to perform all the acts of
execution which would have produced the felony by reason of some cause or
accident other than their own spontaneous desistance. That there is present in the
commission of the offense the aggravating circumstance of night time.
CONTRARY TO LAW
At his arraignment on June 23, 1987, appellant Toledo pleaded not guilty to the charge. 2 His two coaccused have remained at large.
The Facts
According to the Prosecution
The family of 54-year-old Generoso Jacob 3 resided in a one-bed-room house in Pawa, Legazpi City. At
around 2:00 o'clock in the morning of November 22, 1986, Generoso was asleep on a folding bed in the
kitchen, three steps below the living room where his wife Amada, and their children Shirley, Alberto,
Marlene and Sabina were sleeping.
A six-and-a-half feet high partition separated the living room from the
2 x 3 meters bedroom which was lighted by a 50-watt bulb. Asleep in the bedroom, about four
meters away from the kitchen, were Generoso's daughter Emelita, her husband Romeo Ramirez,
and their baby Marlon.
Kept in the said bedroom was a 14" Sanyo color TV which had been brought from Saudi Arabia by
Generoso's son, Rafael. In the living room was a 'betamax' with three components.

The family was roused from sleep by shouts of "Gising kayo, huwag sumigaw!" Three masked
intruders had gained entry into the house. Amada saw one of them asking Sabina for the betamax.
The same fellow tried to lift and carry off the machine but it proved to be too heavy for him. Almost
without thought, Sabina snatched off his mask and recognized him to be Antonio Pareja, who used
to frequent their house and take lunch at Emelita's store, as he was even one of Emelita's
gangmates. 4 The latter tried to stab Sabina but she evaded the thrust and swiftly jumped out the
window. 5
Emelita was awakened by her father's cries of "tabangi ako nindo" ('please help me'). Instinctively,
Emelita also screamed for help from their neighbors, but one of the robbers poked a white-and-gold
colored gun at her "sentido" (temple), and neither she nor her husband could lift a finger. The
gunwielder's face was covered by a t-shirt, except for his nose. Incidentally, Emelita recognized the
T-shirt to be hers, which she had left hanging on the clothesline outside the house. The man uttered,
"Huwag kayong sisigaw kung ayaw ninyong mamatay, nasaan yung TV?" When she answered,
"diyan," the man tried to lift the television set. Failing to do so, he called out, "Ger, tulungan mo ako."
But no one responded to his call. While he was thus distracted, Emelita grabbed at the T-shirt and
unmasked him, thus recognizing him to be herein appellant Toledo. She thus confirmed her earlier
suspicion about his identity based on his body build and voice. 6 As the neighbors were starting to
respond to her cries for help, the trio fled empty-handed.
Hearing her husband's moans, Amada went to the kitchen, where she saw Generoso lying in a pool
of blood on the cemented floor. She embraced him but be merely looked at her, tried to open his
mouth and expired. 7 He had bled profusely from the wound on his chest.
Generoso was autopsied at the Funeraria Oro by Dr. Cesar Chua of the Albay Provincial Hospital,
who found that the victim sustained a 2-cm. penetrating stab wound at the level of the nipple, left
parasternal line; a 2-cm. incised wound at the pulmonary arterial trunk; another 1 cm. incised wound
at the outlet of the right ventricle, and hemoperitoneum. 8 Dr. Chua opined that Generoso's wounds
could have been caused by only one sharp, pointed and long instrument. 9
A police photographer took pictures of the damaged bamboo portion of the kitchen used for drying
dishes, 10which the robbers detached in order to gain entry into the house.
The Defense's Version
In his own defense, appellant interposed alibi. He swore that in the "evening of November 22, 1986,"
he attended the wake of Nerry Armario in Bogtong, Legazpi City, and he stayed there until "past 3:00
o'clock early morning of the following day." 11 Santos Armario testified that his wife Nerry died on
November 22, 1986 and that at around 9:00 o'clock that evening, appellant arrived at his house where he
stayed until "early morning of November 23, 1986." 12Armando Armario and Eduardo Armario both testified
that appellant arrived for the wake "more or less nine in the evening of the same day." 13
The defense also presented the victim's daughter Sabina as their witness. She swore that of the
three robbers, she was able to recognize only Antonio Pareja. She failed to see the other two culprits
because one was in the bedroom and the other was in the kitchen while she was in the sala being
held at knifepoint by Antonio Pareja. She affirmed that Pareja indeed had two companions during
that incident.

The Trial Court's Ruling

On March 6, 1989, the trial court 14 rendered its Decision 15 holding that appellant's denial and alibi could
not prevail over the positive identification by Emelita of appellant himself and Antonio Pareja as the
malefactors, adding that there was no reason at all for Emelita to unjustly and falsely finger appellant as
one of the culprits. The court a quo opined that, although it may have been true that appellant did attend
the wake in Bogtong, it was however not impossible for him to have left the wake with two companions to
commit the crime in nearby Pawa. While pointing out that it was Antonio Pareja "who was responsible for
inflicting the fatal injuries" upon the victim, the trial court ruled that appellant "should likewise be held
equally liable" for the death. It thus disposed of the case as follows:
WHEREFORE, the prosecution having proved the guilt of accused beyond
reasonable doubt, accused Jose Toledo is hereby convicted of the offense charged,
and is sentenced to reclusion perpetua, with all the accessory penalties provided by
law and to pay the costs. Accused Jose Toledo is moreover ordered to indemnify the
heirs of the late Heneroso Jacob in the amount of P30,000.00.
Accused Jose Toledo, who has been under detention since April 29, 1987, is given
full credit for his preventive imprisonment.
SO ORDERED.
Errors Assigned
In this appeal, appellant assigned the following errors:
The trial court erred in holding that there was a clear and positive identification of
Jose Toledo by the prosecution witnesses as one of the authors of the crime.
The lower court erred in not acquitting the accused-appellant Jose Taledo reasonable
doubt.
Appellant contends that prosecution witness Amada Jacob failed to place him at the scene of the
crime on account of her admission to the police that she could not identify the two companions of
Antonio Pareja. Neither could she have seen appellant inside the bedroom where he was supposed
to have threatened Emelita, because of the partition between the bedroom and the living room.
Moreover, appellant highlights that variance in the testimonies of Emelita and her mother regarding
the weapon used by appellant in threatening the former, with Emelita swearing that it was a knife
and Amada affirming that it was a gun. Appellant also claims that it was highly unlikely that Emelita
would have the courage to suddenly remove the mask from his face, on account of the gun pointed
at her head, and considering that her husband could not even do anything under the circumstances.
Lastly, appellant emphasizes the fact that Sabina, one of the victim's daughters, failed to identify the
other assailants apart from Antonio Pareja.
The Court's Ruling
Positive Identification

Very telling is the fact that appellant does not even discuss Emelita's testimony establishing his
presence at the crime scene, notwithstanding that it was Emelita whom he confronted and
threatened and who pulled off his mask inside the well-lighted bedroom. Appellant was no stranger
to the Jacob family; in fact, they were familiar with his build and his voice, since he frequented their
home when peddling fruit juices and homemade chocolates in Pawa. 16 Considering these
circumstances, in the absence of proof that she had any bias or ill-motive against appellant, Emelita's
sole identification of appellant as one of the three intruders in the Jacob residence stands completely
unscathed. Consequently, such identification suffices to obtain conviction even in the absence of
corroboration. 17 Besides, it would be unnatural for the relatives of the victim who seek justice to commit
an injustice by imputing the crime to innocent persons and not those who were actually responsible
therefor. 18
As regards the variance in the testimonies of Emelita and her mother Amada concerning the type of
weapon used by appellant in threatening the former, such alleged inconsistency is insignificant as it
refers only to a minor detail. Rather than eroding the credibility of their testimonies, such difference
in fact constitutes a sign of veracity. 19 It is a well-recognized fact that witnesses testifying about the
same nerve-wracking event can hardly be expected to be correct in every detail nor consistent with other
witnesses in every aspect, considering the inevitability of differences in their perception, recollection,
viewpoint or impressions, as well as in their physical, mental, emotional and psychological states at the
time of reception and recall of such impressions. After all, to begin with, no two individuals are alike in
term of powers of observation and of recall. Total recall or perfect symmetry is not required as long as
witnesses concur on material points. 20
We are also unpersuaded by appellant's contention that it would have been well nigh impossible for
Emelita to have the courage to snatch the mask off his face when she was being held at gunpoint,
and considering that her husband did not even dare lift a finger. While it is true that people faced with
danger usually become passive and submissive, it is equally true that there are some people who
are emboldened in sudden or impulsive reaction to a frightening experience. Different persons have
different reactions to similar situations. Man's behavior and reactions can never be stereotyped. 21 In
the same vein, it is not improbable or unusual for victims of or witnesses to crimes or startling events to
strive to recognize the culprits and observe the manner of commission of the crime. 22
Appellant also relies on the testimony of Sabina Jacob that she could not identify the two associates
of Antonio Pareja. This contention cannot be taken seriously. A careful reading of Sabina's testimony
shows why she was able to identify only Antonio Pareja she focused her full attention on him as
he was the one with her in the living room. 23 Moreover, her statement that she was not able to identify
the other two intruders one of whom was in the bedroom and the other in the kitchen in no way
implied that he (Jose Toledo) was not among the three malefactors.
Alibi
As regards appellant's alibi, the Court has time and again ruled that alibi is the weakest of defenses
because it is easy to fabricate but difficult to prove. It cannot prevail over the positive identification of
the accused by witnesses. For the defense to prosper, the requirements of time and place (or
distance) must be strictly met: It is not enough to prove that the accused was somewhere else when
the crime was committed; he must also demonstrate by clear and convincing evidence that it was
physically impossible for him to have been at the scene of the crime during its commission. 24

In the case before us, such physical impossibility had not been proven, and in fact, quite the
opposite was shown. According to Fiscal Fidel Sarmiento, the distance between Pawa and Botong,
which are adjacent barangays, could be negotiated in ten to twenty minutes by crossing the river;
and appellant admitted that in travelling between Bogtong and Pawa to peddle his wares, he would
usually cross the river instead of passing through San Joaquin. 25 Even the corroborative testimonies of
appellant's drinking partners at the wake 26 are rendered valueless on account of the ease of going back
and forth between the two barangays, as well as in light of appellant's positive identification by
prosecution witnesses as one of the interlopers in the Jacob abode.
Non-Flight?
Moreover, the mere fact that, according to his companions at the wake, appellant did not flee the
crime scene, may not be deemed as indicative of his innocence. 27 There is no law or dictum holding
that non-flight of an accused is conclusive proof of innocence. 28
Credibility of Witnesses
On the whole therefore, appellant's guilt hinges on the issue of credibility. This Court has repeatedly
said that the task of assigning values to declarations on the witness stand is best and most
competently performed by the trial judge who, unlike appellate magistrates, can weigh such
testimonies in light of the declarant's demeanor, conduct and attitude at the trial and is thereby
placed in a more competent position to discriminate between the true and the false. The rule holds
firmly especially where, as in this case, the appellant failed to show any fact of substance which the
trial court might have overlooked that, when considered, may affect the result of the case. 29 No such
fact obtains in this case.
It is beyond dispute that the trial court correctly found appellant guilty beyond reasonable doubt of
the crime of attempted robbery with homicide as defined in Art. 297 of the Revised Penal Code.
Robbery was the intended purpose of the intruders' trespass into the residence of the Jacobs.
Generoso Jacob's killing was on the occasion of a robbery which, however, was not consummated.
The failure to cart away the goods due to their weight (something the culprits had not taken into
account) may not be considered as voluntary desistance from the commission of the crime so as to
remove the element of asportation from the complex crime charged. Such failure to consummate the
robbery was not caused solely by their own volition and inabilities. It was likewise brought about by
factors such as their unmasking and the arrival of neighbors who responded to Emelita's shouts for
help. These circumstances forced them to flee, leaving behind the objects.
Appellant is liable for attempted robbery with homicide even if he was not himself the author of the
killing of Generoso Jacob, for lack of evidence showing that he endeavored to prevent such slaying.
Thus, the general rule applies that whenever homicide is committed on the occasion or as a
consequence of robbery, all those who took part as principals in the robbery shall be held guilty of
the special complex crime of robbery with homicide although they did not actually take part in the
homicide. 30 The same principle applies even if the crime committed is attempted robbery with homicide. 31

Pursuant to Art. 297 of the Revised Penal Code, the crime charged and proven in this case carries
the penalty ofreclusion temporal in its maximum period to reclusion perpetua "unless the homicide
committed shall deserve a higher penalty." Said penalty is imposable in this case, there being no
ground to apply the exception mentioned in the article.
The aggravating circumstance of nighttime alleged in the Information was not conclusively proven.
For nocturnity to be considered as such circumstance, it must have been particularly sought by the
accused or taken advantage of by him to facilitate the commission of the crime or to ensure his
immunity from capture, 32 or otherwise to facilitate his getaway.
Nonetheless, we find that the aggravating circumstance of dwelling had been duly proven. Although
dwelling (morada) is considered as inherent in crimes which can only be committed in the abode of
the victim, such as tresspass to dwelling and robbery in an inhabited house, it has been held as
aggravating in robbery with homicide because the author thereof could have accomplished the
heinous deed of snuffing out the victim's life without having to violate his domicile. 33 Hence, in view of
this aggravating circumstance, the penalty imposable upon appellant shall be reclusion perpetua. 34 In
conformity with prevailing jurisprudential law, 35 indemnity for the death of Generoso Jacob shall be
increased to P50,000.00.
WHEREFORE, the challenged Decision finding appellant Jose Toledo guilty beyond reasonable
doubt of the crime of attempted robbery with homicide is hereby AFFIRMED, subject to the
modification that he shall indemnify the heirs of Generoso Jacob in the sum of fifty thousand pesos
(P50,000.00).
Let a copy of this Decision be furnished the Philippine National Police and the National Bureau of
Investigation which are herewith instructed to effect with dispatch the arrest of Antonio Pareja in
order that he too may stand trial for the crime charged and duly proven here.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.
Footnotes
1 Record, p. 1.
2 Record, p. 26.
3 Exhs. A & B.
4 TSN, October 22, 1987, p. 18.
5 TSN, September 29, 1987, p. 19, and TSN, January 11, 1989, p. 4.
6 TSN, October 22, 1987, p. 12.

7 TSN, September 29, 1987, p. 20.

8 Exh. A.
9 TSN, July 18, 1988, pp. 10-11.
10 TSN, October 22, 1987, p. 19; Exh. F-1.
11 TSN, November 10, 1988, pp. 2-3.
12 TSN, November 22, 1988, pp. 3-5.
13 Ibid., p. 9; TSN, December 16, 1988, p. 4.
14 Presided by Judge Emmanuel S. Flores.
15 In Criminal Case No. 3827; rollo, pp. 22-26.
16 TSN, October 22, 1987, p. 12, and TSN, August 18, 1988, pp. 9-10.
17 People vs. Torres, 232 SCRA 32, April 28, 1994.
18 People vs. Estrellanes, Jr., 239 SCRA 235, December 15, 1994.
19 People vs. Mendoza, 236 SCRA 666, September 22, 1994.
20 People vs. Cruza, 237 SCRA 410, October 7, 1994.
21 People vs. Pandiano, 232 SCRA 619, May 30, 1994; People vs. Balisteros, 237
SCRA 499, October 7, 1994.
22 People vs. Dolar, 231 SCRA 414, March 24, 1994.
23 TSN, January 11, 1989, p. 3.
24 People vs. De Leon, 248 SCRA 609, September 28, 1995; People vs. Escoto, 244
SCRA 87, May 11, 1995; People vs. Cabresos, 244 SCRA 362, May 26, 1995.
25 TSN, November 10, 1988, p. 8.
26 They all testified that appellant was in the Armario residence for the wake from
9:00 o'clock in the evening of November 22, 1986 until the wee hours of the morning
of November 23, 1986. It should be noted that the information charges that the crime
was committed "on or about the 22nd day of November, 1986." This is supported by
the testimonies of Amada Jacob (TSN, September 29, 1987, p. 8), Emelita JacobRamirez (TSN, October 22, 1987, p. 4) and Sabina Jacob (TSN, January 11, 1989, p.

2) that the crime transpired at around 2:00 o'clock in the morning of November 22,
1986. However, the autopsy report dated November 24, 1986 (Exh. A) states that the
autopsy was conducted at 11:00 a.m. November 23, 1986 while the death certificate
indicates the date of death of victim as November 23, 1986 (Exh. B-3).
27 People vs. Inocencio, 229 SCRA 517, January 27, 1994.
28 People vs. Desalisa, 229 SCRA 35, January 4, 1994.
29 People vs. Federico, 247 SCRA 247, August 14, 1995; People vs. Gomez, 229
SCRA 138, January 6, 1994; People vs. Lase, 219 SCRA 584, March 5, 1993;
People vs. Camaddo, 217 SCRA 162, January 18, 1993.
30 People vs. Cobre, 239 SCRA 159, December 13, 1994; People vs. Calegan, 233
SCRA 537, June 30, 1994; People vs. Yabut, 226 SCRA 715, September 27, 1993.
31 See: People vs. Dalanon, 237 SCRA 607, October 14, 1994, where two of the
four persons charged with attempted robbery with homicide were at large while one
of the two who were tried did not appeal his conviction. The Court affirmed the
judgment of conviction as to the appellant therein.
32 People vs. Marra, 236 SCRA 565, September 20, 1994.
33 People vs. Mesias, 199 SCRA 20, 27 July 9, 1991, citing People vs. Pecato, 151
SCRA 14, June 18, 1987; People vs. Capillas, 108 SCRA 173, October 23, 1981;
People vs. Mercado, 97 SCRA 232, April 28, 1980; People vs. Apduhan, Jr., 24
SCRA 798, August 30, 1968.
34 See Arts. 65 & 64 (3), Revised Penal Code.
35 People vs. Adonis, 240 SCRA 773, January 31, 1995; People vs. Logronio, 214
SCRA 519, October 13, 1992; People vs. Serdan, 213 SCRA 329, September 2,
1992.

6. P v luchico49 Phil 689

EN BANC
G.R. No. L-26170

December 6, 1926

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
TEODORO LUCHICO, defendant-appellant.
M. H. de Joya for appellant.
Attorney-General Jaranilla for appellee.

VILLA-REAL, J.:
Teodoro Luchico appeals to this court from the judgment of the Court of First Instance of Rizal,
convicting him of the crime of rape, and sentencing him, without taking into consideration any
circumstance modifying his criminal liability, to suffer fourteen years, eight months and one
day reclusion temporal, with the accessories of the law, and to pay the costs.
In support of his appeal the appellant assigns the following supposed errors as committed by the trial
court in its judgment, to wit: (1) The trial court erred in giving more weight to the testimony of the
witnesses for the prosecution than that given by the accused and appellant and the other witnesses
for the defense; (2) the lower court erred in finding the herein accused and appellant guilty beyond a
reasonable doubt of the crime of rape.
The prosecution attempted to prove the following facts:
That at about 6 o'clock in the evening of March 3, 1923, the offended party, Inocencia Salva, a girl of
13 years of age, being in the kitchen of the house of the herein accused, Teodoro Luchicho, as a
servant of the latter, preparing a decoction of senna leaves, her master approached her and said:
"Inocencia, do not make an outcry when I am in the place where you are lying down;" "Why?" asked
the girl, and the accused replied: "Because I love you very much." "That cannot be," answered
Inocencia, "because I look upon you as my father while I am here." The accused then caught her by
her face and imprinted a kiss upon her left cheek. Inocencia Salva ran to the parlor, secured a pen
knife and opened it. Upon seeing the knife in her hand, the accused snatched it and went into the
room where his wife, Catalina de Jesus, was. The offended party went downstairs pursued by the
accused. Upon reaching the municipal president's pharmacy, she saw Benito Bugnay seated at the
gate of a house and addressing him, inquired: "Listen, will you permit me to step in here for a
moment?" "Why, are you tired? " asked the man. "Because Teodoro Luchico has pursued me,"
replied the girl. The man further asked her: "And now what do you want?" and the girl replied: "I want
to go to the municipal building to make a complaint against Teodoro Luchico for what he did to me."
"You need not do anything more," answered the man, "the president is over there on the opposite
side and you can go over there and present your complaint." She then went to the pharmacy, which
was on the opposite side, and there she met the accused Teodoro Luchico who called her: "Come
here I want to treat your wounded hand." She replied: "I don't want you to treat it; first of all I want to
complain of what you did to me." While she was telling the president what had occurred, the accused
interrupted and said: "do not believe that, my friend, because she is every young and had been ill
with typhoid fever." The municipal president paid no attention to her and after having applied some
medicine to her wound, said to her: "You can go home." The accused told the girl to come along with
him and upon relying that she would not, he said to her: "If you don't go with me I will break your
feet," and taking hold of her right arm, led her towards his house. Upon passing by a place where the
houses are somewhat distant and upon reaching a "camachile" tree, he threw her to the ground,
caught hold of her knees, covered her mouth and mounted her, and taking out his genital organ, wet
it with saliva and introduced it, with difficulty and great suffering of the girl, into her private parts, and
although, on account of the pain, she attempted to call for help, she could not do so because her
mouth was covered by the accused. After consummating the carnal act the accused picked the girl

up in his arms and carried her to Placida Javier's house, which was close by. This happened at
about 7 o'clock at night, and although it was moonlight the place was dark as there was a pathway
shaded by many trees. Upon arriving at Placida Javier's house, the accused sent her niece Maria to
his house to get a chemise for Inocencia because the one she was wearing was soiled with blood
which oozed from the girl's genital organ as a result of rape. After the accused had changed her
dress, he took the stained one. Upon orders from the accused the girl went from Placida Javier's
house to the house of Isidro Luchico, the accused brother, where she spent the night. At dawn on
the following day Inocencia Salva made an effort to reach the accused's house under the pretext that
she was going to mass. Instead of going to mass she went to the house of the ex-municipal
president, Mr. Arsenio Roldan, to present her complaint as the present municipal president would not
listen to her. After hearing her story, Mr. Arsenio Roldan sent her to the house of Lieutenant Selga of
the Constabulary in Caloocan. When Lieutenant Selga arrived at the barracks in the afternoon of the
same day, which was Sunday, he accompanied her to the accused's house where she secured her
blood-stained dress and torn chemise from underneath an aparador.
On the morning of March 5, 1923, Dr. Emiliano Panis of the Constabulary made a physical
examination of the girl and found an inflammation or congestion of the small and large lips of the
genital organ, an irritation of the vaginal canal with small hemorrhages under the mucose membrane
and inflammation, pus and a bloody excretion of a foul odor, and a disappearance of the hymen. The
inflammation or congestion was due to the introduction of a hard body out of proportion with the girl's
vaginal cavity, which produced a traumatism in the vaginal canal. Dr. Emiliano Panis also found a
small wound about 2 or 3 inches long on the thumb of her left hand and another superficial wound
on the left leg.
The defense attempted to prove that the offended party, Inocencia Salva, had been ill with typhoid
fever before she entered the service of Teodoro Luchico in January, 1923, being brought by Natalia
de Jesus for whom she had been working before; and as a result of said illness the girl's hair was
short and she at times would cry without any cause and would wonder about; that in February of the
same year, the girl had some difficulty in micturating; that Dr. Lucio Santos was consulted and he
advised the use of a catheter the nurse, who was attending the accused's wife, to look after her, and
who applied a rubber catheter once, and at another time a metal catheter; that on March 3, 1923,
Inocencia Salva spoke to the herein accused and his wife Catalina de Jesus asking permission to
work in a candy factory in the same municipality in company with some other women; that as she
was not permitted to leave, she became angry and said she would go to another house so that she
might go with her companion; that Catalina de Jesus then told her to wait until the following day
inasmuch as she wanted to communicate with Natalia de Jesus in Manila to find out who would be
responsible for her debt; hat on the afternoon of the same day Inocencia Salva said that she had
found another employer and that she wanted to go to the latter's house and requested that they say
nothing to Natalia de Jesus; that Catalina de Jesus replied that she had to inform the said Natalia de
Jesus; that from then on the girl was angry and asked for her penknife which was in the possession
of her employers; that the accused handed her the penknife; that while talking with some people who
were visiting him, Teodoro Luchico heard some children, who were in the yard, say that Inocencia
Salva's hand was bleeding; that he asked her how she had wounded her hand and she replied: "If
you advise Manila before I leave, I prefer to die;" that after saying this the girl ran downstairs with the
open penknife in her hand; that while Teodor Luchico was holding his little baby in his arms he
requested some of his visitors to pursue, the girl; that not having over taken her, his wife told him to

leave the baby, go to the municipal president and ask the police to catch her; that it was then
between 5 and 6 o'clock in the afternoon, and at the moment when the accused was leaving the
president's pharmacy with a policeman, he saw Inocencia Salva running and pointed her out to the
president, saying: "There is the girl whom I intended to ask the police to catch." The municipal
president said to him: "You had better call her; let us see if the girl will come; " that the accused did
so and when the girl approached they saw that the front of her dress was stained with blood; that the
accused ordered the persons who were there to search her in order to see if she still carried the
penknife; the girl replied that wasn't necessary because she had lost it while running; that when the
girl said she had a wound in her thumb, the accused asked the municipal president, who was a
physician, to treat it; that she did not want to let him treat it saying that she wanted to die; as the
municipal president was very busy, he told the accused that he might take the girl, who was
disposed, to go with him; that while on the road to his house, she asked permission of the accused
to look for her penknife and handkerchief which contained some money; that upon arriving near
Placida Javier's house she complained of pain in her wound and the accuse took her to said house
where they bathed it in sublimate and water; that between 6 and 7 o'clock in the evening the
accused and the offended party left Placida Javier's house and returned to the said accused's
house, passing through a vegetable garden; that when they arrived at the accused's house the
mother of the latter told her that she should eat supper and sleep in the house of her other son
named Isidro Luchico, for fear that the accused's wife might suffer a relapse; that at midnight Isidro
Luchico went to the accused's house to tell him that the girl had disappeared; that the girl returned to
the house very early the following morning to change her dress and said that she would go to mass;
that she afterwards appeared accompanied by Lieut. Selga and a sergeant of the Constabulary that
after the investigation of the accused the Constabulary officers left taking the girl with them, and in a
few days presented a complaint against him for rape; that on April 6, 1923, while the accused was
going on board a banca to return to his house he saw the girl, who called to him; that he then
brought the banca to the river bank and asked her what she wanted; that she replied that she tried to
find him the day before in order to ask him to accompany her to the house of the justice of the
peace, as she wished to withdraw her complaint; that the accused asked her why and she answered
that the complaint did not state the truth and that one Bartolome Sianjo had induced her to present it;
that Bartolome Sianjo was angry with the accused because the latter, with other associates, had filed
a complaint with a petition for an attachment against him; that Attorney Roldan was angry with the
accused on account of politics; that when they reached the house of the justice of the peace the girl
said that she wanted to be at peace with her master and for that reason she wished to withdraw her
complaint; that the girl was later operated upon in the General Hospital for bladder trouble; that when
she had already been discharged, they transferred her to San Lazaro Hospital, because she was
suffering from constitutional hysteria, making her very impressionable and forgetful and in a mental
state bordering on insanity.
The accused, testifying as a witness in his own behalf, denied everything that the offended party had
testified to against him.
The offended party, upon cross-examination by the attorney for the defense, testified that she had
not been induced by anyone to present the complaint against the accused; that on April 6, 1923, the
accused arrived in abanca at Jose Dimla's house where she lived, and said: "Inocencia, the judge
orders me to take you to him, because he wishes to know if you are agreeable to the arrangement,"
that she replied: "I cannot go with you because my master Jose is not here:" that the accused then

took hold of her hand and pushed her and she fell on the floor near the wall; that she wept and
intended to scream, but the accused said to her: "Don't scream, because if you do I will kill you; If
you attempt to scream, this will be your last day;" that he afterwards took hold of her hand and
carried her by force to his banca where he made her lie down, covering her with a basket which he
carried; that when they reached the house of the justice of the peace, Teodoro Luchico said to him;
"Your Honor, Inocencia is agreeable to the withdrawal of the complaint;" that the justice of the peace
asked her; "What do you say Inocencia, are you agreeable to the withdrawal of the complaint?" that
she answered in the negative.
The result of the physical examination to which the offended party submitted two days after the
outrage, which gave rise to the complaint presented to Lieutenant Selga of the Constabulary against
the herein accused, leaves no room for doubt that she has been raped.
As will be seen, the evidence of the defense tends to establish the theory that Inocencia Salva being
impressionable due to suffering from constitutional hysteria, his enemies took advantage of the
trouble she had with her former masters and used her as an instrument for their revenge, and to that
end induced her to file a complaint against the herein accused in order that she might be able to
leave their services without having to pay her debt.
While the evidence of the prosecution leaves much to be desired and certain testimony of the
witnesses for the defense has not been contradicted, yet with all the evidence of the defense it has
not been able to destroy the probatory value of the testimony of the offended party, corroborated by
her physical examination. Admitting for the moment although it was denied by the offended party
that Bartolome Sianjo and Attorney Arsenio Roldan did induce her to present the complaint
against the accused, it is not possible to believe that they would go to the extreme of advising her to
irritate her genital organ until it bled to give her the appearance of having been raped. It has not
been proven that at the time of presenting her complaint to Lieutenant Selga of the Constabulary
which was the day after the outrage, any abnormal mental symptoms were noticed. While eminent
medical criminologists have verified from experience that some hysterics, tormented by the genital
instinct, have filed a false accusations for crimes against chastity, yet, not a single case has been
found in which the hysteric accuser has gone to the extreme of causing herself traumatism and
injuries in the sexual organ in order to lend the appearance of truth to her false accusation.
In view of the above, we think that the evidence of the prosecution has established beyond a
reasonable doubt the guilt of the accused.
1awphil.net

The Attorney-General is of the opinion that in imposing the penalty the aggravating circumstances of
nocturnity and abuse of confidence should be taken into consideration.
The crime of the rape committed by the accused upon the offended party was the result of a
succession of acts which took place within the period of two hours, commencing at 5 o'clock in the
afternoon and ending at 7 o'clock in the evening, without a moment's interruption in which it can be
said that nighttime, being the most favorable occasion for committing the crime, occurred to the
accused. In order that the aggravating circumstance of nocturnity may be taken into consideration, it
is necessary that the same be sought and that it be taken advantage of, which does not appear to be
clearly proven in the present case.

In order to take into consideration the aggravating circumstance of abuse of confidence, it is

essential that the confidence be a means of facilitating the commission of a crime, the culprit taking
advantage of the offended party's belief that the former would not abuse said confidence. When the
accused raped the offended party she had already lost confidence in him from the moment that he
took the liberty of making an indecent proposal to her and of offending her with a kiss, which
compelled her to arm herself with a penknife; and in the present case it cannot be said that the fact
of the accused being the offended party's master facilitated the attainment of his lustful purpose.
The crime of rape committed by the accused carries with it the obligations to indemnify the offended
party when the latter is a widow or single, to acknowledge the offspring if the character of its origin
does not prevent it and to support the same. In the present case, it is only necessary to sentence the
accused, by way of indemnity to endow the offended party she being single. He cannot be ordered
to support and acknowledge the offspring which she might have, because it has been proven that
she did not conceive, and even though she might have conceived, the character of its origin would
have prevented it on account of the accused being married.
In view of the foregoing and with the sole modification that the accused is further sentenced to
endow the offended party in the sum of P500, the judgment appealed from is affirmed, with the costs
against the appellant. So ordered.
Avancea, C. J., Johnson, Street, Malcolm, Ostrand, Johns and Romualdez, JJ., concur.

7. P v lumbos GR 57293, June 21, 1988

FIRST DIVISION
G.R. No. L-57293 June 21, 1988
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JACKARIYA LUNGBOS alias "NASSER"; ROMEO NARIDO y REMIGIO and Two Other JOHN
DOES,defendants-appellants.
The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for defendants-appellants.

GRIO-AQUINO, J.:
In Criminal Case No. 4556 (317-III-80) of the Court of First Instance (now Regional Trial Court) of
Zamboanga City, Jackariya Lungbos alias "Nasser" and three John Does were charged with robbery
in band with homicide for the fatal shooting of Julian Legarde. One of the John Does was later
ascertained to be Romeo Narido y Remigio, hence the following amended information was filed:

That on or about the 12th day of July, 1980, in the City of Zamboanga, Philippines,
and within the jurisdiction of this Honorable Court , said accused Jackariya Lungbos
alias "Nasser," Romeo Narido y Remigio and their two companions Identified therein
as John Does, armed with.45 caliber pistols, thus forming themselves a band,
conspiring and confederating together, mutually aiding and assisting one another,
taking advantage of their superior strength and of the night to better accomplish their
purpose, by means of force and intimidation of persons and with intent of gain did
then and there, willfully, unlawfully and feloniously take, steal, and carry away from
the ANGELS" GARDEN owned by one ANDRES ENRIQUEZ y FERNANDEZ cash
money in the amount of EIGHT RED PESOS (P800.00), a wallet containing also
cash money in the amount of P40.00 and wrist watch worth P500.00 belonging to
JULIAN LEGARDE, all of which were taken without the knowledge and against the
will of the owners thereof; that on the occasion of the commission of the robbery
above-mentioned, the above-mentioned accused by virtue of their conspiracy and in
order to enable them to take, steal and carry away the articles above-described, with
treachery and evident premeditation and with intent to kill, did then and there willfully,
unlawfully and feloniously assault, attack and shoot with the said weapons that they
were then armed with at the person of said JULIAN LEGARDE, thereby inflicting
upon the latter's person mortal gunshot wound which directly caused his death.
CONTRARY TO LAW.
Upon arraignment on October 2, 1980, Lungbos and Narido pleaded not guilty. The two John Does
remained at large.
Trial commenced on December 18,1980, with the presentation of two prosecution witnesses Shirley
Dayanan and Elizabeth Mahinay. Meanwhile, Narido escaped from the Zamboanga City Jail in April
1981. He was recaptured a month later. When presented in court during the May 27,1981 hearing,
Narido, through counsel de oficio, asked that he be re-arraigned as he was changing his plea of "not
guilty" to "guilty."
At his re-arraignment, the amended information was translated in chavacano, the dialect which he
speaks and understands. Thereafter, he voluntarily and spontaneously pleaded guilty. As the
information charged a capital offense, the trial judge himself as well as the defense counsel
explained to him the meaning and effect of his plea of guilty. Notwithstanding said explanation,
Narido openly admitted to the court that he committed the crime charged and that he was truly
repentant for it.
The court a quo rendered a partial decision on May 28,1981 finding him guilty beyond reasonable
doubt of the crime of robbery in band with homicide and sentenced him to suffer the penalty of
death. The dispositive portion of the judgment reads:
WHEREFORE, premises considered, after finding the accused Romeo Narido y
Remegio GUILTY beyond reasonable doubt of the crime charged in the Amended
Information, this Court hereby sentences him to suffer the maximum penalty of
DEATH with the recommendation to His Excellency, President Ferdinand E. Marcos,

through the Honorable Supreme Court to grant appropriate commutation of his death
sentence to life imprisonment considering the reasons heretofore stated; that, if
commutation is granted in the premises, for him to indemnify the heirs of the
deceased Julian Legarde the sum of P12,000 as damages, and the sum of P500.00
for the value of the wrist watch taken from and belonging to the deceased, to pay
Andres Enriquez y Fernandez the sum of P840.00 representing the unrecovered
stolen cash money from him; and to pay the costs, without subsidiary imprisonment
in case of insolvency.
Pursuant to Section 7 (last paragraph) in relation to Section 9, Rule 122 of the
Revised Rules of Court, let the records of the above entitled case, as far as the
accused Romeo Narido y Remegio is concerned, be forwarded to the Honorable
Supreme Court for automatic review and judgment as law and justice shall dictate,
within the reglementary period provided therein. The immediate transcription of the
stenographic notes pertinent to the case of the herein accused Romeo Narido y
Remigio, without unnecessary delay, is hereby ordered for transmittal to the
Honorable Supreme Court.
Meanwhile, the above-entitled case against the co-accused Jackariya Lungbos alias
"Nasser" who pleaded "NOT GUILTY" to the offense charged is hereby ordered set
for trial on June 8, 1981 at 8:30 o'clock in the morning.
On July 12, 1980 at about 7:30 in the evening, Narido and Jackariya Lungbos alias "Nasser," with
two unidentified companions, entered the Sweet Angel Gardens Restaurant in Sta. Cruz, Tetuan
Highway, Zamboanga City. They occupied table No. 21 and ordered beer, cigarettes and some
"pulutan." At about 10:00 P.M., Lungbos went out of the restaurant. After closing the door, Narido
proceeded to table No. 16 and collared the customer Rolando Chiong who was seated there. When
the latter attempted to stand up, Narido shot him with a pistol. His two companions proceeded to the
counter and poked a gun at the cashier, Elizabeth Mahinay, and at Julian Legarde, father-in-law of
the restaurant owner, who was seated behind the counter. They demanded money from Mahinay
and Legarde. They divested Legarde of his wrist watch and wallet containing P40 and took the day's
earnings of P800. A burst of gunshots rang from the counter, then the malefactors fled with their loot.
Chiong, Legarde and the restaurant's cook, Flaviano Gonzales, were hit. Legarde was rushed to the
Doctor's Hospital where he succumbed to a gunshot wound in the abdomen. Chiong and Gonzales
were brought to the Zamboanga General Hospital. They survived.
The decision of the trial court is before Us for mandatory review.
Narido alleges that the court a quo erred:
1. In considering the aggravating circumstance of "robbery in band" despite the
absence of proof that more than three of the accused were armed;
2. In considering nocturnity as an aggravating circumstance despite lack of evidence
that the accused purposely sought it to commit the crime;

3. In holding that the appellant admitted the crime charged in the amended
information without mental reservation, including the aggravating circumstances
alleged therein; and
4. In imposing the supreme penalty of death upon the appellant.
The first assignment of error is well-taken. There is a band whenever more than three malefactors
acted together in the commission of the offense (Art. 14, subpar. 6, Revised Penal Code). The crime
was not committed by a band because the prosecution failed to establish that all four of the
malefactors were armed. Only Narido and the two John Does were armed. Nowhere in the record
can We find evidence that Lungbos was also armed. Band is not aggravating when only three
malefactors are armed. (People vs. Maalihan, 130 SCRA 583).
The trial court properly considered nocturnity as an aggravating circumstance, even if there was no
direct evidence showing that the conspirators sought the nighttime to commit the robbery for it
cannot be gainsaid that nocturnity facilitated the successful commission of the crime. The fact that
they lingered in the restaurant close to three hours before carrying out their plan to rob it indicates
that they waited for darkness to deepen to better pursue their evil scheme and to ensure their
escape under cover of the night. Nocturnity, even though not specially sought, if it facilitated the
commission of the crime and the accused took advantage thereof to commit it, may be considered
as an aggravating circumstance (People vs. Galapia, 84 SCRA 530).
The trial court did not err in holding Narido bound by his judicial confession of guilt under the
amended information. There is no higher evidence of guilt than the accused's own confession.
Unless nullified by evidence of duress a voluntary plea of guilty is admissible as evidence of guilt of
a high quality (People vs. Zea, 130 SCRA 77).
The records of this case show that the trial on the merits had commenced and the prosecution had
already presented evidence proving the appellant's guilt when he manifested, through counsel, that
he would change his plea of not guilty to a plea of guilty. He was properly re-arraigned and there
were no abbreviated proceedings. Full opportunity was given to him to present his evidence. This
Court ruled in People vs. Kayanan (83 SCRA 437) that a plea of guilty made after arraignment and
after trial had begun does not entitle the accused to have such plea considered as a mitigating
circumstance.
The last assignment of error has become moot in view of the abolition of the death penalty under the
1987 Constitution.
WHEREFORE, the judgment finding the accused Romeo Narido y Remigio guilty beyond
reasonable doubt of the crime of robbery with homicide as defined and penalized under Article 294,
paragraph 1 of the Revised Penal Code is affirmed, except his penalty which is reduced to reclusion
perpetua with all the accessories provided by law, in consonance with Section 19 (1), Article III of the
1987 Constitution. He is further ordered:

1. To indemnify the heirs of the deceased Julian Legarde in the amount of P30,000 plus the sum of
P540 representing the value of the wrist watch and money that he and his companions took from the
deceased, and
2. To pay the restaurant-owner Andres Enriquez y Fernandez the sum of P800 that was taken from
the restaurant's receipts.
Costs de oficio.
SO ORDERED.
Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

8. P vs cabresos GR 109776, May 26 1995

THIRD DIVISION

G.R. No. 109776 May 26, 1995

PEOPLE OF THE PHILIPPINES, plaintiff appellee,
vs.
ROQUE CABRESOS, accused-appellant.

FELICIANO, J.:
Roque Cabresos was charged with the crime of rape before the Regional Trial Court ("RTC"),
Branch 26 of Medina, Misamis Oriental, in an information which alleged:
That on or about 29th day of June 1988 at about 2:00 early dawn, more or less, at
Sitio Upper Anoling, Barangay Kabulakan, Municipality of Balingoan, Province of
Misamis Oriental, Republic of the Philippines and within the jurisdiction of this
Honorable Court, the above-named accused did then and there, willfully, unlawfully
and feloniously, by means of force and intimidation and with the use of a knife, have
sexual intercourse with the offended party, Editha Pesidas, against her will and
without her consent.
The crime was committed with the attendance of aggravating circumstance of abuse
of confidence and obvious ungratefulness as accused was accommodated to live
with the complainant's family.
Contrary to and in violation of Article 335, paragraph 1, in relation to Article 14,
paragraph 4, all of the Revised Penal Code. 1

At arraignment, he entered a plea of not guilty. After trial, he was found guilty and sentenced in a
decision rendered in November 19, 1992. The dispositive portion of the decision reads:
WHEREFORE, premises considered, this court finds Roque Cabresos guilty beyond
reasonable doubt of the crime of rape with the use of deadly weapon as defined and
penalized under Article 335 of the Revised Penal Code with aggravating
circumstances of abuse of confidence, obvious ungratefulness, blood relationship
and with the use of deadly weapon; and, thereby sentences him to suffer an
imprisonment under reclusion perpetua or thirty (30) years imprisonment, with full
credit of the entire period of his detention from February 17, 1989 to the present or
finality of this judgment. Accused Roque C. Cabresos is hereby declared as the
father of the child Anthea Q. Pesidas and he is ordered to recognize and support said
child in accordance with the provisions of the Family Code.
Accused Roque Cabresos is likewise ordered to pay Editha Pesidas the sum of
P30,000.00 by way of moral damages and P20,000.00 by way of exemplary
damages and to pay the costs. 2
Roque Cabresos appeals from his conviction assigning the following as errors allegedly committed
by the trial court:
I
The trial court gravely erred in giving full credence to the testimony of the prosecution
witness which is highly incredible, inconsistent and unreliable.
II
The trial court gravely erred in not giving credence to the defense interposed by
accused-appellant.
III
The trial court gravely erred in convicting the accused-appellant despite failure of the
prosecution to prove his guilt beyond reasonable doubt. 3
The trial court found that the evidence of the prosecution showed the relevant facts to be the
following:
Complainant Editha Pesidas testified that she is 18 years old (at the time she
testified), but she was 16 years old when she was raped by accused. She is single,
housekeeper and a resident of Kabulakan, Balingoan, Misamis Oriental and has
studied up to second year high school. She personally knows the accused Roque
Cabresos whom she considers as her uncle because he is a cousin of her mother.
She identified the accused in the courtroom by touching his shoulder.

Editha Pesidas declared that last June 28, and June 29, 1988, her mother and father
were in Talisayan District Hospital. She was left in the house together with her
brother and sister, who are 12 and 10 years old respectively. She slept alone in her
room, while her brother and sister slept in the adjoining room. Roque Cabresos lived
with them and in that particular night of June 29, 1988, Roque Cabresos slept in the
sala. Then, at dawn, which was 2:00 o'clock in the morning, more or less, already
June 29, 1988, she was awakened by accused Roque Cabresos who pointed a
sharp pointed knife to her neck, squeezed her mouth and boxed her abdomen that
she lost her strength.
There and then, Roque Cabresos took off her panty by tearing it. Then, accused
placed himself on top of her and made a push and pull movement (kiyo-kiyo).
Accused inserted his penis to her vagina that she felt severe pain which lasted about
half an hour. The left hand of accused was holding the knife and was always pointing
to her neck. She struggled, but accused is bigger and stronger that she lost her
strength. Ultimately, accused succeeded in raping her. Something sticky came out
from his penis; thereafter, Roque Cabresos threatened her; that, she would be killed
if she would tell her parents. He uttered this threat about five (5) times. Then, Roque
Cabresos left her room and returned to sleep in the sala.
After three days from the commission of the crime, her parents returned home from
the hospital. She did not tell them about what happened because Roque Cabresos
threatened to kill her.
Complainant testified that at the time accused raped her, she was fertile. In the
succeeding months, she did not have monthly menstruation. When her pregnancy
was noticeable, her parents inquired about it, and she told them the truth. She told
also her grandfather Eufrocino Quejada some time last February 1989. She was
accompanied to the house of a midwife for examination. Thereafter, accompanied by
her parents and grandfather, they went to the police station of Balingoan, Misamis
Oriental, and there, her affidavit was taken on February 14, 1989 which she
subscribed on the following day before the prosecutor. 4
Appellant Cabresos' version of the facts was summarized by the trial court as follows:
On June 28, 1988 at 2:00 o'clock in the afternoon, accused appellant was at the
house of Mr. Trapal in Upper Lapinig, Balingoan, Misamis Oriental together with his
companions, namely: Anastacio Cabresos alias "Baloloy", Eddie Aragon, Rene
Magallon, Dobby Magallon and Oloy Cabresos drinking one pocket size of Tanduay
rhum. While they were drinking, they were conversing about their works, especially
the gathering of coconuts. After staying there for an hour, they proceeded to the
municipal building of Balingoan, Misamis Oriental. In the said store, they again drank
one pocket size of Tanduay rhum. From the store of Beboy Pebular, at about 5:00
o'clock in the afternoon of the same day, they went to the house of Alding Itom. At
Alding Itom's house, they butchered a dog, cooked the meat and ate the same as
their sumsuman. After eating, at around 6:00 o'clock in the evening of the same day

they proceeded to the house of his uncle Anastacio Cabresos. When they were
already at the house of his uncle, they once more drank another one pocket size of
Tanduay rhum. The accused went to sleep at around 11:30 o'clock in the evening of
the same date at the latter's house and woke up at about 5:00 o'clock in the morning
of the following day. That was June 29, 1988. 5
We are once again faced with the task of deciding who as between two (2) persons is worthy of
belief and who is not. Private complainant Editha Pesidas claims that she was raped by the accused.
The accused denies the accusation and interposes the defense of alibi contending that he could not
have committed the rape because he was somewhere else at the time the alleged rape occurred. In
support of his claim, Cabresos presented witnesses who vouched that he was with them on the night
and hour in question, carousing on cheap rum and on dog-meat with great abandon.
After much consideration and upon careful examination of the record, we find no reason to overturn
the findings of the trial court.
The issue to be resolved is, of course, whether or not the prosecution was able to establish from the
testimony of the complainant the guilt of the accused beyond reasonable doubt.
We answer in the affirmative.
The question is essentially one of credibility and it is a well-settled rule reiterated in a long and still
growing line of cases, that appellate courts will generally not disturb the factual findings of the trial
court since the latter are in a better position to weigh conflicting testimonies, having heard the
witnesses themselves and observed their deportment and manner of testifying, unless it is
convincingly shown that the trial court had plainly overlooked certain facts of substance and value
that, if considered, might affect the result of the case. 6
In his appeal, appellant highlights certain points in complainant's testimony which he contends
constitute inconsistencies or improbabilities which weaken the force of her accusation. However,
going over those same points we come to a different conclusion.
On the night of the rape, the victim's parents were not at home. They were at a hospital in Talisayan
where the victim's mother had to be brought 7 and they returned from the hospital only three (3) days
later. 8 Complainant positively identified the accused as her assailant. There was a kerosene vigil lamp in
the altar which illuminated her bedroom. 9Moreover, as found by the trial court, she was familiar (with) the
persona of the accused being a relative who resided in their house. 10
Complainant was only able to cry out for help once because the accused threatened her with a knife
which he pointed at her neck; 11 he also squeezed her mouth and boxed her stomach, as a result of
which her strength and vitality fled her. 12
The fact that her young brother (12 years of age) and sister (10 years old) who were sleeping in an
adjoining room did not hear her outcry does not necessarily mean that the rape never occurred.

Appellant stresses the fact that after the alleged rape, the complainant testified that she continued
going to school and not once did she report the incident to her parents or the police although she
passed by the police station everyday on her way to school. 13 Furthermore, the complainant did not
report the outrage on her person to a relative of hers who is a policewoman. 14
We have previously held in earlier cases that delay in prosecuting the rape is not an indication of
fabricated charges. 15 In at least one case, we observed that "if the complainant did not become
pregnant, she probably would never have revealed that she was raped by her uncle. Many victims of rape
never complain or file criminal charges against their rapists. They prefer to bear the ignominy and pain
rather than reveal their shame to the world or risk the rapists' making good their threats to kill or hurt their
victims." 16 This in fact was what happened here where the victim reported the incident to her parents only
eight (8) months after she had been raped when her pregnancy became noticeable. Similarly, in the case
of People v. Soterol, 17 where the appellant had contended that complainant's 6-month delay in filing the
complaint and her silence after the alleged rape render her charge incredible, we ruled that the
complainant's failure to report the rape incident earlier had been fully and satisfactorily explained. There,
the complainant testified that she did not report the incident immediately because she believed her
uncle's threat to kill her.
Editha's inaction for eight (8) months was sufficiently explained by her in open court. Thus:
(Direct Examination of Editha Pesidas)
Q: And when your father arrived in your house, did he know about the
incident?
A: No, sir.
Q: Why?
A: I did not say anything because I was afraid of the warning of
Roque Cabresos.
xxx xxx xxx
Q: What was the warning or threat of the accused during the
incident?
A: He said that if I tell my parents he would kill me.
Q: How many times did he utter these words?
A: Five times. 18
xxx xxx xxx

(Cross-examination of Editha Pesidas)

Q: When Roque Cabresos left your house, and your parents (were)
already there, of course, your fear no longer existed because your
parents were already there?
A: I was still afraid of him.
xxx xxx xxx
A: I was still afraid for he might come back. 19
xxx xxx xxx

Q: Did it not occur to your mind to tell your parents that you were
already pregnant?
A: No, because of fear and shame.
Q: Did it not occur to your mind that your parents would eventually
discover you were pregnant and it was better to tell them earlier so
that if there is a person answerable for that they would run after him?
A: No, because of my fear.
Q: Did it not occur to your mind that your fear of being discovered will
be useless because eventually your parents will discover it?
A: No, because of my fear and shame.
Q: Did it not occur to your mind your shame will be useless because
eventually your parents will know of your pregnancy?
A: No.
Q: Why?
A: Because of my fear. 20
xxx xxx xxx

(Emphasis supplied)
While a mature woman would probably have acted differently, we are unable to conclude that
Editha's continued fear of her violator and her failure to inform her parents of the rape meant that it
had not occurred at all.

Appellant Cabresos also assails the findings of the trial court concerning the delayed delivery of the
child as not supported by evidence. The trial court found that the complainant Editha Pesidas "gave
birth within 300 days or 10 months allowable in medical science from conception or fertilization,
implantation, gestation and to birth of the child," 21 as a result of the sexual assault inflicted upon her by
appellant. The trial court said on this point:
. . . this court has taken note of the testimony of Editha Pesidas; that the onset of her
monthly menstruation was June 9, 1988 and ended after five days. So, it must be
June 14, 1988. Medical science has shown that from the first day of menstruation,
the first ten days thereafter is considered a safe period, meaning the woman is not
fertile. This corresponds to June 10 to 19, 1988. Then, the period from the 11th day
to 20th day from the first day of menstruation is fertility period where the ovum in
matured and any time may be fertilized by a sperm. In the case of Editha Pesidas,
[the] fertility period corresponds from June 20 to June 29, 1988, that is why, Editha
Pesidas said that from the day she was raped, she did not have any monthly
menstruation thereafter, except a little blood spotting on July 20, 1988.
Medical science has taught us the basics of fertilization, conception, gestation and
delivery of a child. First, the basics: a baby is formed when the sperm cell from the
man meets (or fertilizes) the woman's egg or ovum. An ovum, which is released by
the woman's ovary only once in about 28 days, has a maximum life of 24 to 72 hours
(3 days only). The sperm cell, on the other hand, may live for up to 6 days under very
hospitable conditions, but usually lives for only about 24 hours. When the ovum is not
fertilized, it dies, and the absence of fertilization is normally indicated by the arrival of
menstruation. On the other hand when the ovum is fertilized, it attaches itself on the
inner wall of the womb. This is sometimes known as implantation of fertilized ovum.
The inner wall does not shed off, so menstruation does not occur during the entire
period of pregnancy.
Somewhere in July 20, 1988 is the attachment of the fertilized ovum in the womb of
Editha Pesidas. It is the date of the implantation of said fertilized ovum. That is why
on said date, she had little blood spotting which is not considered as
menstruation. Counting therefrom, the birth of Anthea Q. Pesidas on May 1, 1988,
the child's coming to this world was within the 300 days or ten months, allowable in
medical science from conception or fertilization, plantation, gestation, and to birth of
the child. 22
In computing the duration of pregnancy, "we should note that time is computed from the date of three
different occurrences in the life of the mother: one is the first day of the last menstrual period, one is
the time of intercourse, and one is the time of the fertilization of the ovum . . . . . " 23 We find that the
trial judge's computation in this case of the duration of complainant's pregnancy counted from the time of
the fertilization of the ovum, is medically accepted and recognized.
Moreover, from complainant's testimony, the uncontroverted fact is that the complainant gave birth to
a baby girl 307 days or 10 months after the date of her alleged rape. While the ordinary period of
gestation is approximately 9 calendar months or 280 days, calculated from the first day of the last

menstrual period, 24 there is nevertheless an abundance of medical authorities recording exceptions to

this general rule. 25 In fact, it has been held that length of pregnancy varies from 220 to 330 days from
date of fruitful coitus. 26 Thus, the 280-day rule is not a hard and fast one. 27
On the other hand, as against the complainant's positive identification, the accused-appellant offers
the defense of alibi. However, we have many times held that alibi is a weak defense and cannot
prevail over the complainant's positive and clear identification of the accused as the perpetrator of
the crime. 28 Moreover, the defense of alibi in this case must be rejected because aside from a clear and
positive identification made by the complainant, the possibility of the accused having gone to the scene of
the crime at the time of its commission was not at all remote. Note the following statements of defense
witnesses:
(Cross-examination of Rene Magallon)
Q: And this place of Balodoy to Kabulakan, Balingoan, Misamis
Oriental is how many kilometers, according to your own estimate?
A: Three kilometers.
Q: And ordinarily hiking we can negotiate three kilometers in less
than one hour?
A: Yes, sir. 29
xxx xxx xxx

(Cross-examination of Anastacio Cabresos)

Q: A healthy person like the accused can reach Barangay Kabulakan
which is three kilometers only one hour because he is healthy?
A: Of course, if he is healthy.
Q: Or maybe less than an hour?
A: Depending upon his speed in walking. 30
xxx xxx xxx

(Cross-examination of accused Roque Cabresos)

Q: Anastacio Cabresos alias Baludo is living in what place?
A: At Upper Lapinig.

Q: What is the distance from Upper Lapinig to Kabulakan, particularly

the place of Pesidas?
A: Three kilometer, more or less.
Q: By ordinary hiking you can negotiate three kilometers with an hour
hike?
A: It depends how you walk.
Q: But natural walking?
A: More than an hour, more or less. 31
xxx xxx xxx

Q: You mean, by ordinary hike, you can negotiate one kilometer by

one hour?
A: Less than (an) hour.
Q: Even in thirty minutes?
A: Yes sir. 32
xxx xxx xxx

The settled rule is that, for alibi to be given credence, "an accused must not only prove satisfactorily
that he was at another place at the time the crime happened; but more importantly, that it was
physically impossible for him to be at the scene of the crime at the time of its commission." 33
Of equal significance is the fact that the accused had the opportunity to commit the crime
considering that none of his witnesses actually saw him at the hour in question because they were
all already asleep at that time.
(Direct Examination of Rene Magallon)
Q: What time did Roque Cabresos go to sleep on June 29, 1988?
A: 1:20 in the morning
Q: About you, what time did you go to sleep?
A: 2:00 o'clock. 34
xxx xxx xxx

(Cross-examination of Anastacio Cabresos)

Q: So that at 9:00 o'clock you were already lying down and at 10:00
o'clock you were already sound asleep?
A: About that hour.
Q: And you woke up the next morning at about 4:40?
A: 4:30 dawn.
Q: And the accused who was sleeping in your house was not
sleeping with you in the same room that night?
A: He slept in another room.
Q: So that you cannot determine if Roque Cabresos was still in his
room because you could not see him?
A: My house has three rooms and the room where they were
sleeping I could pass by it.
Q: But you had no time to pass by the room where they were
sleeping because you were sleeping at that time?
A: I woke up at 4:30.
Q: It was only at 4:30 when you passed by the room where the
accused (was) sleeping?
A: Yes, sir.
Q: At 12:00 midnight you did not wake up?
A: No, sir
Q: You did not wake up at 1:00 o'clock?
A: I woke up to urinate in my bedpan.
Q: At 2:00 o'clock did you wake up?
A: No, sir.
Q: It was only 4:30 when you woke up again?

A: Yes, sir. 35
xxx xxx xxx

(Emphasis supplied)
Although we affirm the findings of the lower court with regard to the guilt of the accused and its
appreciation of the aggravating circumstances of use of a deadly weapon, 36 abuse of confidence and
obvious ungratefulness, 37 we must take exception to its appreciation of blood relationship as an
aggravating circumstance in this case. We have held in earlier cases 38 that the relationship between uncle
and niece is not covered by any of the relationships mentioned in Article 15 of the Revised Penal Code.
Nevertheless, the penalty imposed by the trial court need not be disturbed considering the presence of
other aggravating circumstances.
WHEREFORE, the decision of the trial court finding appellant Roque Cabresos guilty of rape and
sentencing him to reclusion perpetua and declaring him as the father of the child Anthea Q. Pesidas,
ordering him to recognize and support said child, is hereby AFFIRMED. The award to the
complainant of civil indemnity in the total amount of P50,000.00 (P30,000.00 as moral damages and
P20,000.00 as exemplary damages) is likewise AFFIRMED.
SO ORDERED.
Romero, Melo, Vitug and Francisco, JJ., concur.

Footnotes
1 Rollo, p. 4.
2 Judgment, p. 17; Rollo, p. 28.
3 Appellant's Brief, p. 1; Rollo, p. 66.
4 Judgment, pp. 2-3; Rollo, pp. 15-16.
5 Appellant's Brief, pp. 4-5; Rollo, pp. 69-70.
6 People v. Tismo, 204 SCRA 535, 552 (1991).
7 TSN, 4 July 1990, p. 3.
8 Id., p. 12.
9 Id., p. 9.

10 Judgment, p. 11; Rollo, p; 22.

11 TSN, 4 July, 1990, pp. 4 & 10.
12 Id., p. 4.
13 Id., p. 10.
14 Id., pp. 12-13.
15 People v. Silfavan, 151 SCRA 617, 629 (1987).
16 Id.
17 140 SCRA 401, 404-405 (1985).
18 TSN, 4 July 1990, pp. 5-6.
19 Id., p. 13.
20 TSN, 5 July 1990, p. 5.
21 Judgment, p. 14; Rollo, p. 25.
22 Judgment, p. 13; Rollo, p. 24.
23 S.B. Schatkin, Disputed Paternity Proceedings, 4th Ed. XXII, pp. 567-585 as cited
in Leonard v. Couse, 372 N.Y.S. 2d 527, 568-569 [1975].
24 People v. Pamor G.R. No. 108599, 7 October 1994, p. 12 citing Danforth's
Obstetrics and Gynecology, 161 (6th ed. 1990).
25 S.B. Schatkin, Disputed Paternity Proceedings, 350 (1947 ed.).
26 People v. Pamor, G.R. No. 108599, 7 October 1994, p. 12.
27 Id., p. 12.
28 E.g., People v. Rendoque, 205 SCRA 783, 789 (1992).
29 TSN, 10 October 1990, p. 16.
30 TSN, 3 September 1991, p. 8.
31 TSN, 24 October 1991, p. 20.

32 Id., p. 22.
33 People v. Dalanon, G.R. No. 107458, 14 October 1994, p. 14 citing People v.
Dolar, G.R. No. 100805, 24 March 1994.
34 TSN, 10 October 1990, p. 7.
35 TSN, 3 September 1991, p. 8.
36 Article 335, Revised Penal Code.
37 Article 14(4), id.
38 U.S. v. Incierto, 15 Phil. 358, 360-361 (1910); People v. Balondo 30 SCRA 155,
161 (1969).

9. P vs aguinaldp GR 33843, FEB 11, 1931

EN BANC
G.R. No. L-33843

February 11, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
JUAN AGUINALDO, defendant-appellee.
Manuel N. Aguilar for appellant.
Attorney-General Jaranilla for appellee.
VILLAMOR, J.:
The accused was tried for the crime of murder by the Court of First Instance of Ilocos Norte on the
following information:
That on or about the 29th of April, 1930, in the municipality of Bacarra, Province of Ilocos
Norte, Philippine Islands, the above-named accused did wilfully, unlawfully, and feloniously
kill one named Anselmo Oao, with a bolo, the crime being committed in an uninhabited
place, with evident premeditation, treachery, and cruelty.
Contrary to law.
At the preliminary investigation the defendant pleaded guilty before the justice of the peace of
Bacarra, but in the Court First Instance he pleaded not guilty.
After both parties had submitted their evidence, the court found the defendant guilty of murder with
the qualifying circumstance of cruelty and uninhabited place, and sentenced him to life

imprisonment, with the accessories of law, to indemnify the heirs of the deceased in the sum of
P1,000 and to pay the costs.
The defendant has appealed to this court, and his counsel contends that the trial court erred in
convicting him of murder, when the evidence of record only supports a conviction of homicide.
The record shows that the deceased Anselmo Oao and his wife, Geronima Lacar, lived at the place
called Rango, in the municipality of Bacarra; that on the morning of April 29, 1930, husband and wife
went to a hill in Rango to dig up some roots to be used as medicine for Geronima's toothache. While
the deceased was in a sort of gully at the hillside, stooping down and digging up the roots, the
defendant appeared and suddenly rushed at him, stabbing him in the neck with his bolo from behind.
When he felt the blow, the victim tried to raise his head saying, "Apo, what are you going to do to
me?" Geronima, in turn, demanded of the defendant: "What have you done to my husband?" But the
defendant continued attacking the deceased, who was unarmed, and threatened to kill Geronima if
she reported him. She fled terrified to her house. Still in fear of the defendant, Geronima told no one
what had happened until the next day, when she hinted to her father and a neighbor that they might
look for the deceased on that hill. .
The body was found, and the authorities of Bacarra notified; and on the night of the 30th of that
month, April, the justice of the peace, the chief of police, and the president of the sanitary division
including said municipality of Bacarra went to the place. The last named official, Dr. Mauricio Paz,
made an autopsy and mentioned the following wounds in the certificate he issued:
(a) One on the back of the right wrist, four inches long, cutting all the muscles, bones, and
vessels of that region, and leaving only the flesh of the palm unsevered from the body.
(b) Two wounds in the chest for inches long parallel to each other and to the sternum (bone),
situated on the borders of said bone, and taking in the flesh, muscles, ribs, vessels, and both
lungs.
(c) One wound on the right side of the neck, ten inches long, from the right border of the
sternum near the nape of the neck; four inches deep and three inches wide, raking in all the
muscles, vessels, and nerves of that region and a part of the occiput.
(d) Another wound on the right cheek from the chin back behind the right ear, taking in the
muscles, vessels, and bones of the region; the right ear has not been found, for it was
severed from the head.
(e) Another wound on the head eight inches long from the forehead to the nape of the neck,
dividing the cranium in two, taking in the scalp, the cranial bones, and the brain.
( f ) Another wound underneath the right eye, two and a half inches long, taking in the soft
parts and bones of the region.
(g) The forehead shows a surface wound, round and about two and a half inches in diameter,
only skin-deep; the frontal bone is exposed.

4. The wounds designated by letters (a), (b), (c), (d) and (e) are necessarily mortal.
5. These wounds were produced by a sharp instrument.
6. Death was due to the excitement and hemorrhage caused by these wounds.
The defendant voluntarily made the sworn statement, Exhibit B, before the justice of the peace of
Bacarra and in the presence of the municipal president and the chief of police, declaring in
substance that he had illicit relating with Geronima Lacar, the wife of the deceased, for a month
before the incident; that the day before the 29th of April, Geronima urged him to kill Anselmo Oao;
that he therefore killed Anselmo on that morning, while the latter was stooping, digging up roots in
Rango; that on receiving the first slash, Anselmo confronted him, but fell upon being stabbed again;
that no one witnessed the act except Geronima, who, after seeing her husband stabbed twice, ran
away to her house. The defendant further admitted that the bolo Exhibit C was the weapon he had
used upon the deceased, and that the shirt Exhibit D and the drawers, Exhibit D-1, were the dead
man's clothing on the occasion in question.
The justice of the peace testified in the case, identifying Exhibit B, which is the sworn statement
made by the defendant before him, as already stated, and in the presence of the municipal president
and the chief of police. The municipal president fully corroborates the testimony of the justice of the
peace.
The trial court, by an order dated May 5, 1930, delegated the justice of the peace of Laoag, capital of
the Province of Ilocos Norte, to conduct the preliminary investigation in each of the two informations
against Geronima Lacar and against Juan Aguinaldo, respectively. And this justice of the peace
testified, identifying Exhibit E, where defendant Juan Aguinaldo also pleads guilty.
In testifying, Dr. Mauricio Paz, president of the second sanitary division, after describing the wounds
he found upon Anselmo Oao's body, said that they found the body o n the hillside, in a hole about 1
meter deep. The body was placed face downward, with the head a little inclined to the left. The left
hand was under the head, and the right hand on the abdomen. It was dressed in a shirt and short
drawers, and was beginning to decompose.
The defendant testified in his own behalf that he came upon the deceased that morning as he was
looking for the cattle he pastured. Without even knowing him, the deceased said to him: "You come
here to look for something to rob." The accused answered that he was only looking for his cattle, but
the deceased ran after him with a drawn bolo. In view of the deceased's aggressive attitude, he was
compelled to fight, for he had reached an impassable place and could not flee. He then stabbed the
deceased, who was more robust than he, wounding him in the neck. Without realizing what he was
doing, he continued to stab the deceased, who fought back until he sank down seriously wounded.
He denies that he has threatened the dead man's wife, saying that she was not present on that
occasion.
The defendant also testifies that the constabulary men arrested him in his house, tied his hands, and
bound him because he refused to confess; that during the investigation which they conducted he
only admitted that he had caused the deceased's death; that this admission of his was reported by

the constabulary men to the justice of the peace of Bacarra, who reduced it to writing, later on
making him sign Exhibit B in the presence of the constabulary men; and that some time later he was
also taken by the constabulary men before the justice of the peace of Laoag, who drew up a
document and made him sign it, without giving him an opportunity to secure counsel. But the
defendant admitted on cross-examination, that the justice of the peace of Bacarra investigated him
and reduced to writing what he had testified, and he signed it, declaring at the same time that it was
true; that later on, when already in the provincial jail, the provincial fiscal read out to him in Ilocano
the sworn statement he had made before the justice of the peace of Bacarra, and he again affirmed
under oath that it was true; and that he did not tell the fiscal that he had been maltreated by the
constabulary men, because the latter were then present.
After examining the record, we are fully convinced that the defendant is guilty beyond a reasonable
doubt. It will be noted that the accused, in testifying before the trial court, makes no mention of the
alleged instigation of the deceased's wife to commit the crime; but even supposing that such
instigation existed, there is absolutely no reason why the defendant should be exempted from
criminal liability for the treacherous killing of Anselmo Oao. The dead man's position when he
received the first blow, with his back to the defendant and bent down, because he was digging up
medical roots in a gully, entirely unprepared and unable to defend himself from his assailant, clearly
shows the defendant's treachery in attacking his victim, thereby qualifying the crime as murder,
defined and penalized in article 403 of the Penal Code.
The defendant's allegation that he was pursued by the deceased and being unable to flee, he turned
to bay bolo in hand, is, to our way of thinking, an invention pure and simple on the part of the
defendant, which the trial court did not believe, and neither do we. .
The trial court accepted as aggravating circumstances, cruelty and uninhabited place. The AttorneyGeneral holds that the number of wounds found upon the corpse does not, by itself alone, justify the
acceptance of the circumstance of cruelty, it being necessary to show that he deliberately and
inhumanly increased the sufferings of the victim, and this has not been proved in the present case.
The Attorney-General also alleges that the circumstance of uninhabited place cannot properly be
accepted, for lack of evidence to show that the appellant sought the solitude of the place where the
crime was committed in order the better to attain his purpose. We agree with the Attorney-General.
The evidence does not clearly show that the place was about 1 kilometer away form the nearest
house. .
Considering all the circumstances of the present case, we are of opinion that the judgment appealed
from, imposing the penalty of life imprisonment on the defendant, which penalty is the medium
degree of that fixed in article 403 of the Penal Code for the crime of murder, is in accordance with
law. It must therefore be affirmed, as we do hereby affirm it, with costs against the appellant. So
ordered. .
Avancea, C.J., Johnson, Street, Malcolm, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

10. P vs egot, 130 scra 134

EN BANC

G.R. No. L-35775

August 14, 1931

TELESFORO SORIANO and LEON M. SANTOS, petitioners,

vs.
M. V. DEL ROSARIO, Associate Public Service Commissioner, and RURAL TRANSIT
CO., respondents.
Sisenando Palarca, Barrera and Reyes and Quintin Paredes for petitioners.
Juan Nabong, Mariano Espeleta and L. D. Lockwood for respondents.
STREET, J.:
This is an application for a writ of certiorari whereby the petitioners, Telesforo Soriano and Leon M.
Santos, seek to secure the annulment of a resolution of the Public Service Commission, dated June
16, 1931, entered by the respondent judge upon motion of the Rural Transit Co., whereby certain
restrictions were introduced into the terms of the franchise previously granted to the petitioners for
the operation of a passenger line from San Jose, Nueva Ecija, to Manila, over two routes, one
coming through San Fernando, Pampanga, and the other through the Province of Bulacan, the two
lines separating from each other in Nueva Ecija. The application is now before us upon the separate
answers of the two respondents.
It appears that on April 14, 1928, the petitioners, Soriano and Santos, presented an application to
the Public Service Commission for a certificate of public convenience in conformity with Act No.
3108, as amended, allowing them to operate a passenger bus service from San Jose to Manila with
two branches through the Provinces of Pampanga and Bulacan respectively. Other operators over
the same lines, or parts thereof, including the Rural Transit Co., were notified of this application, and
the same was set for hearing on April 27, 1928. Upon hearing the petition the respondent
commissioner, on June 4, 1928, entered a decision favorable to the applicants, over the opposition
of such of the persons and entities concerned as had seen fit to oppose. One of the features of this
decision was that it did not contain a statement of the exact times of arrival and departure of the
petitioners' buses to and from the town of Cabanatuan, and another was that the order did not
contain any restriction upon the right of the petitioners to take up and disembark local passengers on
the line from San Jose to Gapan or on the line from Gapan to Cabiao. Notice of the grant of the
franchise as above stated appears to have been served upon various opposing entities, but not upon
the Rural Transit Co.
After the application had been granted, the petitioners entered upon the exercise of their franchise;
and on July 2, 1930, or more than two years thereafter, the Rural Transit Co. presented a motion in
the same proceeding asking for a revision or modification of the terms upon which the certificate of
convenience had been granted. This motion came on to be heard before R. A. Cruz, Assistant Public
Service Commissioner, on October 4, 1930, in the presence of the respective attorneys for the
petitioners and the Rural Transit Co. This hearing was had upon the record as it stood, without the
introduction of additional proof by either party. In the motion itself it was asked that the terms of the
certificate be so amended as to prohibit the holders of the certificate from picking up or dropping
local passengers between San Jose and Gapan and between Gapan and Cabiao, on the ground
that the Rural Transit Co., was the prior operator between those places and that other operators who

had been granted similar certificates prior to that of Soriano and Santos had been subjected to this
restriction. It was also requested by the attorney for the motioner that the petitioners should be
assigned fixed hours for arrival to and departure from the town of Cabanatuan.
After brief discussion, the commissioner indicated that, in his opinion, the petitioners could not be
deprived of the privilege of taking up and letting off passengers between the places indicated but
that hours would be fixed for the arrival and departure of their buses over the line.
This hearing occurred on October 4, 1930. Nevertheless, some eight months passed without any
order being entered by Commissioner Cruz; and, on June 13, 1931, he transferred the matter to the
Sala of his associate, M. V. del Rosario, for the resolution of the motion, the reason given being that
the order of June 4, 1928, against which the motion was directed had been entered by
Commissioner del Rosario. On June 16 thereafter, Commissioner del Rosario entered the resolution,
which is the subject of the present proceeding. By this order the certificate of the petitioners was so
modified as to prevent them from taking up and disembarking passengers from points, and between
San Jose and Gapan, and intermediate points, and between Cabiao and Gapan, and intermediate
points. This order was entered by the respondent judge upon the record as it stood when it was
transferred to him without notice to either of the parties concerned. However, after notification of the
resolution to the present petitioners a motion for reconsideration was filed in their behalf, but this
motion was promptly overruled. Thereafter the present application was filed in this court for a writ of
certiorari to abrogate said resolution, as already stated.
In the petition it is asserted that the entry of the order of June 13, 1931, was beyond the jurisdiction
of the respondent commissioner, for the reason that the order which was the subject of modification
in said order had been entered about three years before the entry of the resolution complained of
and more than two years before the motion for amendment had been filed. For this reason it was
insisted that the original order of June 4, 1928, had long been final and not subject to correction.
This contention is clearly not well founded. In section 28 of Act No. 3108 it is provided that the
commission may at any time order a rehearing to extend, revoke, or modify any order made by it.
Furthermore, in section 6 of Order No. 1 of the Public Service Commission itself, it is declared that
the commission reserves the right to cancel or modify, on its initiative or at the request of an
interested party, for good cause and upon the proper proceedings prescribed by law, any certificate
of public convenience issued by it. The reservation expressed in this order is in conformity with
section 28 of Act No. 3108; and no reasonable doubt can be entertained as to the jurisdiction of the
Public Service Commissioner to entertain a motion such as that presented in this case by the Rural
Transit Co. for the amendment of the petitioners' certificate.
But it is further contended that, even supposing that it was competent for the Public Service
Commission to entertain said motion, the order complained of was beyond the jurisdiction of the
commissioner, for the reason that said order was entered without giving the petitioners an
opportunity to be heard. We are of the opinion that this contention is well founded. The hearing
contemplated in our law, and which our rules of practice intend to secure to litigants, is a hearing
before the judge who decides the case. In the matter before us the hearing was before
Commissioner Cruz, who in fact, upon hearing the motion, announced the conclusion to which he
had come and the nature of the order which he intended to enter. After this stage of the proceedings

had been reached, we are of the opinion that it was improper for Commissioner del Rosario to
decide the motion differently without at least conceding to the parties interested an opportunity to be
heard. And if there cannot properly be said to have been an absolute want of jurisdiction on the part
of the respondent commissioner to enter the order which is the subject of this application, there was
at least an irregular exercise of judicial power by him, in excess of his lawful jurisdiction, such as
supplies a basis for the writ of certiorari. (Leung Ben vs. O'Brien, 38 Phil., 182, 186.).
It results that the application in this case must be granted; and the resolution or order of June 16,
1931, will be abrogated with directions to the respondent commissioner to set the motion for further
hearing, and otherwise to proceed therewith as may be proper. So ordered, with costs against the
respondent Rural Transit Co.
Avancea, C.J., Johnson, Villamor, Romualdez, Villa-Real and Imperial, JJ., concur.
Malcolm, J., concurs in the result.

11. P vs Lee GR 66848, Dec 20, 1991

THIRD DIVISION
G.R. No. L-66848 December 20, 1991
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RUBEN LEE y AMOSO, QUIRINO VIRAY, JR. y COLLADO, and JUAN LAROSA y
GONZALES, defendants-appellants.
The Solicitor General for plaintiff-appellee.
Blesila O. Quintillan for defendants-appellants.

DAVIDE, JR., J.:

In an Information filed with the then Criminal Circuit Court of Manila on 8 July 1981, accused Ruben
Lee y Amoso, Quirino Viray, Jr. y Collado, and Juan Larosa y Gonzales, were charged with the crime
of Robbery in Band with Homicide and Multiple Physical Injuries, committed as follows:
That on or about June 22, 1981, in the City of Manila, Philippines, the said accused,
conspiring and confederating together with one GERONIMO GERDAD (deceased)
and others whose whereabouts and identities are still unknown, and helping one
another, all armed with unknown caliber firearms and bladed weapons, by
employment of craft, that is, pretending to be bonifide (sic) passengers of a jeepney,
bearing plate No. 632 CS, PUJ, driven by BERNABE POYUAON, and at nighttime

purposely sought to better accomplish their objectives, with intent of (sic) gain and by
means of force, violence and intimidation upon persons, to wit: by then and there
simultaneously announcing it was a hold-up and pointing their respective weapons,
guns and knives, to the driver and other passengers of the said jeepney, did then and
there willfully, unlawfully and feloniously take, rob, and carry away the following, to
wit:
From:
RODRIGO CONDE One (1) wallet, black, valued
at P35.00 with 1 -dollar bill;
BERNABE POYUAON Cash money of P50.00;
ANNABELE JAVIER Wallet, wristwatch and
necklace valued not less than
P5.00;
WONG NGAW Seiko Wallet, valued at
P25.00; with SSS ID card and
other papers and cash money
of P200.00 and
PERPETUO AQUINO Cash Money of Pl0.00.
or all in the total amount of P325.00, more or less, belonging to the aforesaid driver
and passengers of the said jeepney, against their will, to the damage and prejudice
of the said owners, in the aforesaid amount of P325.00, more or less, Philippine
Currency; that by reason or on the occasion of the said robbery and for the purpose
of enabling the said accused to take, rob, and carry away the said amount, in
pursuance of their conspiracy, the said accused with intent to kill, willfully, unlawfully,
and feloniously attacked, assaulted and used personal violence upon the passengers
of the said jeepney, by then and there taking possession of the steering wheel and
driving the vehicle away, firing shots at the crew of the mobile patrol car who (sic)
gave chase of the said accused, and hitting, as a consequence, the following hold-up
victims, to wit: LEOPOLDO ESPELLEGO, who sustained mortal gunshot wounds
which were the direct and immediate cause of his death thereafter; GINA
SALVADOR, who sustained a gunshot wound at the back, thereby inflicting upon her
serious physical injuries which required and will require medical attendance for a
period of more than thirty days and incapacitated and will incapacitate the said Gina
Salvador from performing her customary labor during the said period of time; and
WONG NGAW and PERPETUO AQUINO, both of whom sustained physical injuries
which have (sic) required medical attendance for a period of not less than one day
but not more than nine days and incapacitated the said Wong Ngaw and Perpetuo
Aquino from performing their customary labor during the same period of time.
CONTRARY TO LAW. 1
The case was docketed as Criminal Case No. CCC-VI-49 (81).

Each of the accused entered a plea of not guilty at the arraignment on 7 September 1981. 2
At the trial on the merits, the prosecution presented the following witnesses: Gina Salvador and
Rodrigo Conde, two (2) of the jeepney passengers; Pfc. Florentino Bagallon, the investigating
policeman; and Drs. Marcial C. Cenido and Narciso Adraneda, Jr., the examining physicians. The
defense presented the three (3) accused. Thereafter, on 26 August 1983, the trial court (now Branch
XLVI, Regional Trial Court of Manila) promulgated its decision 3 finding the accused guilty of the crime charged and
sentencing them to suffer the penalty of death. The dispositive portion of the decision reads in full as follows:

WHEREFORE, the Court finds the accused, Ruben Lee y Amoso, Quirino Viray, Jr. y
Collado and Juan Larosa y Gonzales, guilty beyond reasonable doubt of the crime of
robbery in band with homicide and multiple physical injuries which is aggravated
further by craft and nighttime and herebysentences them to suffer the Penalty of
DEATH; to pay, jointly and severally, the heirs of the deceased Leopoldo Espellego
the sum of P12,000.00 for the death of the latter, and to the robbery victims, the
following sums: Rodrigo Conde, P35.00; Wong Ngaw, P225.00; and Perpetuo
Aquino, P10.00 all of which were not recovered. They are also ordered to pay their
proportionate shares of the costs of suit.
The .45 caliber paltik, Exhibit W, and the .32 caliber Sentinel revolver, Exhibit W-1,
which bears Serial No. P 5803, are hereby confiscated in favor of the government
and the Clerk of Court is hereby directed to cause delivery of the same to the
Firearms and Explosives Section, Philippine Constabulary, Camp Crame, Quezon
City.
Atty. Fernando Mangubat is hereby awarded the sum of P500.00 as attorney's fees.
Pursuant to the governing law then in force, 4 the case was elevated to this Court for automatic review.
The conviction is based on the following findings of fact of the trial court:
June 22, 1981, at about 2:30 o'clock a.m., a passenger jeepney with Plate No. 632
CS, PUJ, driven by Bernabe Poyuaon, was on its way from Rizal Avenue, Manila to
Baclaran, Metro Manila. In the jeepney as passengers while it was already nearing
the Philippine General Hospital along Taft Avenue were some 13 persons who were
seated as follows: On the left seat (which is directly behind the driver) were a male
passenger immediately behind the driver, Leopoldo Espellego, Annabele Javier, Gina
Salvador, and a male passenger who was seated just at the entrance of the jeepney,
in that order. On the right seat beginning from the entrance of the jeepney were a
male passenger, Maria Lourdes Javier, Rodrigo Conde, Perpetuo Aquino and Wong
Ngaw, also in that order. Beside the driver were two male passengers.
xxx xxx xxx
The jeepney was travelling southward along Taft Avenue when the passenger seated
last on the left seated near the entrance of the jeepney and who turned out to be the
accused, Ruben Lee, drew out a gun and first poked it at Gina Salvador who was to

his left and then waived (sic) said gun at the other passengers, at the same time
announcing a hold-up as follows: "Mga putang ina ninyo, huag kayong sisigaw, holdup ito" (Sons of bitches, don't shout. This is a hold-up). Simultaneously, the
passenger seated in front of Ruben Lee who turned out to be Quirino Viray, Jr. drew
out a knife and poked it at Maria Lourdes Javier who was to his right; the passenger
seated just behind the driver who turned out to be Geronimo Gerdad drew out a gun
and pointed it at the driver; and the passenger seated further from the driver drew out
and poked a knife at the driver.
The announcement of the hold-up frightened the passengers and Ruben Lee ordered
them to hand over their wallets, watches and other valuables. He ordered Geronimo
Gerdad to collect the things of the passengers near him. Gina Salvador gave the
following to Ruben Lee: her Seiko 5 Men's watch worth P500.00; her Chinese gold
necklace worth P200.00; cash amounting to P800.00; and her handbag worth
P15.00. From Rodrigo Conde was taken a wallet worth P35.00 and containing one
Australian dollar, From the others, including that of the driver, were taken cash which
were (sic) handed over to Geronimo Gerdad.
When approaching Pedro Gil Street, Ruben Lee ordered the driver to turn right
towards Roxas Boulevard and upon reaching Mabini Street, the jeepney was noticed
by the crew of Police Mobile Patrol Car No. 221 as Pedro Gil is a one-way street
Patrol Car No. 221 tailed the jeepney and signalled it to a stop. Upon orders of
Ruben Lee, the jeepney driver stepped down to talk nicely to the policemen (who
stopped their car about seven meters behind) by telling the latter that they entered
the street by accident. At the same time, Ruben Lee warned the passengers to keep
quiet, otherwise he will shoot them.
Once the jeepney driver left to talk to the policemen, Ruben Lee also stepped down,
placed his gun on his seat and ordered Quirino Viray, Jr. to take hold of it, and
proceeded to the driver's seat, started the jeepney and drove off towards Roxas
Boulevard, turned left and sped towards Baclaran. Mobile Patrol Car No. 221 (with
the jeepney driver on board) followed suit with its sirens blowing and at the same
time alerting other patrol cars through its radio. The jeepney, with Ruben Lee on the
wheels, turned left towards the airport and on reaching a dark roard, turned back. At
this juncture, Ruben Lee ordered one of the passengers thrown out in order to
distract the attention of the pursuers. So that the passenger beside him was thrown
out. However, said passenger was not hurt; instead he ran away after hitting (sic)
ground. With the mobile patrol car in pursuit, the jeepney sped back to Roxas
Boulevard and towards the Luneta with the holduppers taking potshots at the
pursuers. And because the passengers heard shots coming from behind, they were
either down on the floor or were stooping from their seats, for fear that the policemen
might shot (sic) directly at them. The jeepney finally stopped at Marvex Drive in
Balintawak, Quezon City. The hold-uppers jumped out of the jeepney and engaged
the pursuing policemen in a shoot out. Ruben Lee pointed a gun at Gina Salvador's
back and fired. When the firing subsided, one of the hold-uppers, Geronimo Gerdad,
was found seriously wounded and a .22 caliber revolver (Exhibit W-1) was found

near his body. One of the passenger victims, Leopoldo Espellego, was seriously
wounded while three others were wounded, namely: Gina Salvador who suffered a
gunshot wound; Wong Ngaw, with lacerations and abrasions (see Exhibit F); and
Perpetuo Aquino, with a lacerated wound (See Exhibit G). One patrol car brought
Gerdad and Espellego to the Chinese Memorial Hospital where both were
pronounced dead on arrival. Gina Salvador, Wong Ngaw and Perpetuo Aquino were
brought to the Jose Reyes Memorial Hospital where they were treated. 5
Through their counsel de oficio appointed by this Court, accused-appellants filed their Brief

6 on 22

March 1985.

The People, through the Solicitor General, filed the Appellee's Brief

7 on 12 September 1985.

Pursuant to Section 19(l), Article III of the 1987 Constitution of the Republic of the Philippines which
provides that any death penalty already imposed shall be reduced to reclusion perpetua, this Court,
in a letter to the accused dated 20 April 1988, asked them whether they still wished to continue with
their case considering that the death penalty is no longer imposable and their death sentences had
been automatically commuted to reclusion perpetua. 8
In their letter to this Court dated 2 May 1988, accused Ruben Lee and Quirino Viray manifested their
willingness to accept the sentence of Reclusion Perpetua. 9 Accused Juan Larosa, however, in a letter to this Court
dated 29 April 1988, manifested that he wanted to continue with his appeal. 10

In view of the foregoing, this Court promulgated on 25 May 1988 the following resolution:
G.R. No. 66848 (People vs. Ruben Lee, et. al.)Considering the pleadings filed in
this case, the Court Resolved to NOTE: (a) the letter of compliance filed by accusedappellants Ruben Lee and Quirino Viray signed in the presence of witnesses, dated
May 2, 1 988, stating that they are willing to accept the sentence of reclusion
perpetua in consonance with the provision of Section 19 (1), Article III of the 1987
Constitution; and (b) the letter of compliance filed by accused-appellant Juan Larosa
dated April 29, 1988 stating that he wants to continue his case as an appealed case.
Said resolution became final on 17 June 1988 and Entry of Judgment was correspondingly made.
This review should then be limited to the case of accused Juan Larosa.
In the Appellant's Brief, accused Juan Larosa assigns the following errors:

11

I
THE TRIAL COURT ERRED IN HOLDING THAT ACCUSED LAROSA IS GUILTY OF
THE CRIME CHARGED BEYOND REASONABLE DOUBT WHEN HE WAS NOT
PROPERLY AND CREDIBLY IDENTIFIED AS PARTICIPANT (SIC) IN THE CRIME;
II

THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE DEFENSE OF ALIBI

OF THE ACCUSED;
III
THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE MITIGATING
CIRCUMSTANCE OF VOLUNTARY SURRENDER BY ACCUSED.
We shall take them up in the order they are presented.
A. In support of the first assigned error, Larosa claims that the two (2) alleged eyewitnesses
presented by the prosecution, namely, Gina Salvador and Rodrigo Conde, were not able to identify
him.
Indeed, as correctly pointed out by Larosa, Gina failed to mention him. While she was very specific
as to the role and participation of accused Ruben Lee and Quirino Viray, she candidly admitted that
she "could no longer recall the hold-upper who was sitted (sic) in front (sic) of the jeep." 12 However,
prosecution witness Conde positively identified Larosa as the holdupper sitting on the front seat of the jeep. On direct examination, he
testified as follows:

Fiscal Belmonte:
Q When you boarded the jeep, were there passengers?
A Yes, Sir.
Q When you boarded the jeep, were these three already there?
A Yes, Sir.
Q What happened next?
A When the jeep reached at the PGH, the three drew guns, Sir.
Q Did thev say anything?
A Yes, Sir, they said, this is a hold-up.
Court:
Q Who among the three drew a gun?
A Ruben Lee, Your Honor.
Q Who else?
A The other one sitting near the driver, Sir.

Fiscal Belmonte:
Q Is that other one in this Courtroom?
A Yes, Sir.
Court:
Q Point to him?
A Larosa, Your Honor. 13
xxx xxx xxx

Fiscal Belmonte:
Q Do you know if there was any passenger of that jeep fell (sic)
down?
A Yes, Sir.
Q Where was that passenger sitted (sic) at the time that he was fell
(sic) down?
A We were on our way to MIA when that passenger fell down, Sir.
Q Why did he fall down?
A Because he was pushed by one of the holduper (sic), Sir.
Q Do you know who was that holduper?
A Larosa, Sir. 14
On cross-examination, this witness immediately aborted the defense counsel's attempt to show that
the light of the jeep was put off, hence, it was impossible for him to see the holduppers clearly. Thus:
Atty. Mangubat:
Q By the way when these holduper (sic) announced that it was holdup, did they order the driver to put out the light?
A No, Sir. 15
xxx xxx xxx

Subsequent attempts on the part of the cross-examiner to discredit Conde proved futile. His
testimony was given full faith and credit by the trial court and We find no reason to overturn such a
finding. Well-entrenched is the rule that appellate courts will generally not disturb the factual findings
of the trial court since the latter are in a better position to weigh conflicting testimonies, having heard
the witnesses themselves and observed their deportment and manner of testifying, unless it is found
that the trial courts have plainly overlooked certain facts of substance and value that, if considered,
might affect the result of the case. 16
Equally settled is the rule that conviction may be based on the lone testimony of an eyewitness,
when the testimony is credible. 17
B. In respect to his second assigned error, Larosa would have Us believe that at 2:00 a.m. of 22
June 1981, he was at his house sleeping with his family. 18 However, accused relies merely on his own testimony and
his alibi is not corroborated by anybody else.

We have ruled time and again that alibi is a weak defense for it is easy to concoct and
fabricate. 19 Alibi cannot prevail over and is worthless in the face of the positive identification by credible witnesses that the accused
perpetrated the crime. 20 In the case at bar, We find no reason to depart from this doctrine for the prosecution has sufficiently established the
guilt of the accused Larosa.

C. In his last assigned error, Larosa claims that he voluntarily submitted to the custody of the police
and offered no resistance when the police accosted him. We agree with the Appellee that this
contention has no basis. Before Larosa and the other holduppers could even be apprehended, they
engaged the pursuing police authorities in a shootout and only gave up upon realizing that they were
already surrounded by residents and tanod members in the vicinity. 21
For a surrender to be voluntary, it must be spontaneous and should show the intent of the accused
to submit himself unconditionally to the authorities, either: (1) because he acknowledges his guilt, or
(2) because he wishes to save them the trouble and expense necessarily included for his search and
capture. 22 In the absence of these two (2) reasons, and in the event that the only reason for accused's supposed surrender is to insure
his safety, his arrest being inevitable, the surrender is not spontaneous and hence, not voluntary. 23

The trial court correctly appreciated against the accused the generic aggravating circumstances of
band and craft. Nighttime, however, was erroneously taken against him.
A crime is committed by a band whenever more than three (3) armed malefactors shall have acted
together in the commission of an offense. 24 In the case at bar, commission by a band was properly appreciated as it has
been shown that when the holdup was staged, Ruben Lee, Quirino Viray, Geronimo Gerdad (deceased), and accused Larosa were all armed
with guns and knives.

Craft is likewise present herein since the accused and his cohorts pretended to be bona
fide passengers of the jeep in order not to arouse suspicion. However, once inside the jeep, they
robbed the driver and the other passengers. 25
As to nighttime, there is no showing that it was purposely sought for or taken advantage of to
facilitate the commission of the offense or for the purpose of impunity. 26 There's no proof that they waited for
the night to commit the crime. Besides, as testified to by Rodrigo Conde, the light of the jeep was not put off. Obviously, they did not seek the
darkness of the night and were not afraid of the light.

The robbery and the resulting deaths of Leopoldo Espellego and Geronimo Gerdad (holdupper) and
physical injuries of Gina Salvador, Wong Ngaw, and Perpetuo Aquino are included in one (1) special
complex crime of robbery with homicide and physical injuries, defined and penalized under Article
294 of the Revised Penal Code, it being evident that the deaths and injuries occurred by reason of or
on occasion of the robbery. 27 The penalty provided for therein is reclusion perpetua to death. Considering the presence of the
aggravating circumstances of band and craft or disguise, the greater penalty, which is death, shall be applied. 28 However, in view of the
provisions of the 1987 Constitution abolishing the death penalty, 29 accused Larosa is entitled to the reduced penalty of reclusion perpetua.

Finally, conformably with the new policy of this Court,

30 the civil indemnity of P12,000.00 is increased to P50,000.00.

However, considering that the judgment against Ruben Lee and Quirino Viray, the other convicted holduppers herein, had become final and
executory as of 7 June 1988, they are solidarily liable with Juan Larosa up to the amount of P12,000.00 only. Anything in excess of said
amount is the sole liability of accused Larosa.

WHEREFORE, the judgment of the trial court in Criminal Case No. CCC-VI-49 (81) finding the
accused, Juan Larosa and his co-accused guilty beyond reasonable doubt of the crime of Robbery
with Homicide and Physical Injuries, as defined and penalized under Article 294 of the Revised
Penal Code, is hereby AFFIRMED in all respects, except as above modified. As modified, he is
hereby sentenced to suffer the penalty of RECLUSION PERPETUA, and the civil indemnity for the
death of Leopoldo Espellego is hereby increased to P50,000.00, the first P12,000.00 of which the
accused Juan Larosa shall be jointly and severally liable with his co-accused, and for the remaining
P38,000.00 he shall be solely liable.
No pronouncement as to costs.
IT IS SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Romero, JJ., concur.

# Footnotes
1 Rollo, 5-6.
2 Original records, 10.
3 Op. cit., 19.
4 Sections 7 and 9, Rule 122, Rules of Court, in relation to Section 5 (e) of the 1973
Constitution.
5 Rollo, 8-11.
6 Id., 86, et seq.
7 Id., 134, et seq.
8 Rollo, 141.

9 Id., 142.
10 Id., 143.
11 Rollo, 93-94.
12 TSN, 8 December 1981, 4.
13 TSN, 14 July 1982, 63-64.
14 TSN, 14 July 1982, 67.
15 Id., 72.
16 People vs. Beringuel, 192 SCRA 561; People vs. Montante, 192 SCRA 483;
People vs. Maiago, 191 SCRA 552; People vs. Felipe, 191. SCRA 176; People vs.
Toring, 191 SCRA 38; People vs. Sorio, 190 SCRA 548; People vs. Manzon, 190
SCRA 378; People vs.Gupo, 190 SCRA 7; People vs. Manalansan, 189 SCRA 619.
17 People vs. Catubig, 195 SCRA 505; People vs. Dela Cruz, 148 SCRA 582;
People vs. Romero, 119 SCRA 234; People vs. Rabang, 187 SCRA 682; People vs.
Argana, 10 SCRA 311; People vs. Salazar, 58 SCRA 467.
18 Rollo, 16.
19 People vs. Loveria, 187 SCRA 47; People vs. Ampo-an, 187 SCRA 173; People
vs. Bicog, 187 SCRA 556; People vs. Rabang, supra.; People vs. Badilla, 48 Phil.
718; People vs. Lumantas, 5 SCRA 157; People vs. Genoguin, 56 SCRA 181.
20 People vs. Ferrera, 151 SCRA 113; People vs. Omoza, 151 SCRA 495; People
vs. Masangkay, 155 SCRA 113; People vs. Lopez, 157 SCRA 304; People vs.
Guevarra, 179 SRA 325; People vs. Bustarde, 182 SCRA 554; People vs. Palino,
183 SCRA 680; People vs. Clores, 184 SCRA 638; People vs. Tenebro, 191 SCRA
363; and People vs. Kyamko, 192 SCRA 374.
21 Appellee's Brief, 18; Rollo, 134.
22 People vs. Lingatong, 181 SRA 424: People vs. Ablao, 183 SCRA 658.
23 People vs. Salvilla, 184 SCRA 671; People vs. Sigayan, 16 SCRA 829; People vs.
Mationg, 11 3 SCRA 167; People vs. Dimdim, 106 Phil. 301.
24 Paragraph 6, Article 14, Revised Penal Code.
25 People vs. Daos, 60 Phil. 143

26 People vs. Balagtas, 19 Phil. 164; People vs. Flores, 40 SCRA 230: People vs.
Moral, 132 SCRA 474; People vs. Rebullar, 188 SCRA 838; People vs.
Toring, supra.; People vs. Aspili, 191 SCRA 530.
27 People vs. Genoguin, supra; People vs. Madrid, 88 Phil 1.
28 Article 63 (1), Revised Penal Code.
29 Section 19 (1), Article III.
30 People vs. Sison, 189 SCRA 643; People vs. Sazon, 189 SCRA 700.

12. P vs aspili , GR 89428-9 nov.21, 1990

THIRD DIVISION
[G.R. Nos. 89418-19. November 21, 1990.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RODOLFO ASPILI, ERNESTO MAGBANUA,
EDUARDO MENDOZA, RODOLFO SALES, ROBERT AGUIRRE and PACIFICO REBUTIDO, AccusedAppellants.
The Solicitor General for Plaintiff-Appellee.
Enrique A. Javier, Sr. counsel de oficio for Accused-Appellants.

SYLLABUS

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

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

DECISION

GUTIERREZ, JR., J.:

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

jgc:chanroble s.com.ph

"On December 28, 1969, the M/L Elsa left Puerto Princesa City for Dumaran, Palawan. On board were
Catalino Nadayao, the patron of the vessel; Pepito Severino and two other crew members; and thirteen (13)
passengers among whom were Narcisa Batayola, Daisy Gonzales, Josie Gonzales, Yolanda Arque, Wenifredo
Magallanes, a certain Bunag and several children ranging from two (2) to nine (9) years of age. All in all, 17
persons were on board M/L Elsa with some cargoes consisting of liquor like tanduay, beer, coke, etc. The
vessel left Puerto Princesa at 3:00 oclock in the morning, navigating towards the lighthouse but due to big
waves and strong winds, the launch was forced to seek shelter at Balon, Sta. Lucia, Puerto Princesa City,
arriving thereat about 6 to 7:00 oclock in the morning where they were stranded because of the bad
weather and the damaged rudder of the launch (TSN, 2-18-70, pp. 169-176).
While at the aforementioned place, near the site of the Sta. Lucia Penal Colony, in the afternoon between
one and three oclock, two persons went aboard the M/L Elsa. They were identified by Josie Gonzales as
Pacifico Rebutido and Rodolfo Aspili, and after Pepito Severino handed to them the liquor they left the launch

(TSN, 8-26-70, pp. 437-442).

It was later established that said two accused together with the other four, namely: Ernesto Magbanua,
Rodolfo Sales, Roberto Aguirre and Eduardo Mendoza, all convicts colonists of Sta. Lucia Penal Colony,
had been drinking liquor (tanduay) since the morning of December 28, 1969 even as they hatched the plan
to escape from the Penal Colony with the use of M/L Elsa. The buying of the tanduay served also the
purpose of acquainting the herein accused that the crew and passengers of M/L Elsa were innocent, peaceful
and unarmed (TSN, 11-26-40, pp. 307-312).
Between 7 and 8 oclock in the evening of the same day, the six accused carried out their agreed plan to
escape and, fully armed with pistols and boloes, they boarded the launch bringing with them chicken and
dried fish. Upon boarding the launch, they placed themselves in strategic positions. Magbanua talked to the
patron of the launch who ordered the engine operator, Pepito Severino, to fetch four bottles of tanduay.
While in the act of handing the tanduay to Magbanua, the latter suddenly thrust his bolo at Severinos
abdomen, at the same time pointing a pistol at him shouting walang kikilos (nobody moves). This
prompted Severino to jump into the sea, after seeing also the rest of the accused draw their bolos.
Witnessing all these hostile acts and having evaded a stab by Rodolfo Sales who nevertheless chased him,
Catalino Nadayao was constrained to jump overboard. Some passengers and the rest of the crew who were
frightened by the shouting of Magbanua and the ensuing commotion likewise jumped into the sea (TSN 220-70, pp. 183-193; 3-17-70, pp. 196-197). Among the passengers who jumped overboard were Daisy
Gonzales and Yolanda Arque.
Only five persons were left in the launch who did not jump overboard. Josie Gonzales tried to jump
overboard but Ernesto Magbanua, one of the accused, prevented her by holding both arms. Magbanua
pulled and dragged her. Josie struggled to free herself but to no avail. Magbanua succeeded in dragging her
over the cargoes where he pinned her down. While in that lying position he forcibly raped her for about five
to ten minutes. At that time, Magbanua was pointing a gun at Josies head. After Magbanua was through,
Rodolfo Sales approached her, took off his pants and laid on top of her for about 3 to 5 minutes. At the time
Sales was raping Josie, Magbanua was still holding her and pointing a gun at her. After Sales, Pacifico
Rebutido approached her and likewise raped her. Josie tried to evade but she was already weak and only felt
pain (TSN, 8-26-70, pp. 458-463; 8-27-90, pp. 1-23).
On the other hand, Narcisa Batayola likewise attempted to jump but Magbanua also held her at the back
portion of her dress and told her to return to the place where she and the other children were originally
hiding. She saw the accused ransacking the cargoes and taking the contents thereof. Moments later, Roberto
Aguirre then with a pistol held Narcisa on the shoulders while Eduardo Mendoza held her legs and wrestled
her down. Aguirre had sexual intercourse with her followed by Mendoza. Thereafter, Rodolfo Aspili brought
her out toward a sawali and right there and then made her lay down in a slanting position. When Aspili was
having sexual intercourse with her, nobody was holding her but she could no longer resist as she was
already exhausted and weak (TSN, 11-16-70, pp. 147-167).
Subsequently, the six accused left the launch and boarded their banca. Thereafter, Josie and Narcisa
together with the children jumped into the water and swam to the bakawan to hide. They were rescued by
the Baracuda Launch. In the process, the dead bodies of Daisy Gonzales and Yolanda Arque were found.
Necropsy examination on the cadavers of Daisy and Yolanda showed that both died of suffocation by
drowning as blood was coming out from their nose, mouth and opening of both ears due to rapture of
tempanic membrane (TSN, 2-17-70, pp. 109-124).
Dr. Dueas, the examining physician, likewise found that Josie Gonzales and Narcisa Batayola both had
undergone sexual penetration recently.
Subsequently, both Josie Gonzales and Narcisa Batayola filed separate complaints charging the herein, six
accused with the crimes of Rape with Homicide and Robbery in Band." (Brief for the plaintiff-appellee, pp, 28, Rollo, p. 334)
On the basis of the above-mentioned alleged acts committed by the accused, the following criminal cases
were filed:
cralawnad

1. Criminal Case No. 3

for

Rape with Homicide and with Robbery in Band

COMPLAINT
"The undersigned complainants, after having been duly sworn to oath in accordance with law, accuse
RODOLFO ASPILI, ERNESTO MAGBANUA, EDUARDO MENDOZA, RODOLFO SALES, ROBERTO AGUIRRE and
PACIFICO REBUTIDO, of the crime of RAPE WITH HOMICIDE AND WITH ROBBERY IN BAND, committed as
follows:
jgc:chanroble s.com.ph

"That on or about the 28th day of December, 1969, in Sitio Balon, Sta. Lucia Sub-Colony, Municipality of
Puerto Princesa, Province of Palawan, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused who are all serving sentence by virtue of a final judgment in the Iwahig Penal Colony,
Puerto Princesa, Palawan, conspiring and confederating together and helping one another, forcibly boarded
the motor launch named M/L ELSA which was then at anchor seeking shelter in the vicinity due to bad
weather and while on board the said vessel the accused Ernesto Magbanua, Rodolfo Sales, and Pacifico
Rebutido, did then and there wilfully, unlawfully and feloniously and with deliberate intent and lewd designs
and by means of force, violence and intimidations using guns and boloes for the purpose, had sexual
intercourse one after the other with the herein complainant JOSIE GONZALES, a minor 13 years of age,
against her will, she being one of the 17 passengers aboard the said vessel while the rest of the accused
were either having carnal knowledge with another victim NARCISA BATAYOLA, likewise a minor 15 years of
age, by means of force and intimidation and against her will; while the others were ransacking the baggages
of the passengers and on the occasion of such acts of the accused, panic took place aboard the said vessel
thus forcing the other passengers to jump overboard for fear of bodily harm, and as a consequence thereof,
DAISY GONZALES age 15, and YOLANDA ARQUE, age 9, both passengers of the said vessel were drowned;
and further on the occasion thereof, all the accused took and carried away, unlawfully and feloniously and
against the will of the owners thereof, cash amount of money, personal belongings and cargoes aboard the
vessel amounting to no less than TWO THOUSAND (P2,000.00) PESOS, Philippine Currency."
CONTRARY TO LAW and with the aggravating circumstances of nighttime, by an armed band, in an
uninhabited place, recidivism and or reiteration, with evident premeditation, superior strength and with the
use of craft, fraud or disguise, and penalized under Article 335 of the Revised Penal Code, as amended by
Republic Act No. 4111 in relation to Article 160 of the same Code."
chanrobles.com .ph : virtual law library

SGD. PABLO GONZALES SGD. JOSIE GONZALES

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

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

jgc:chanrobles.com .ph

"The true facts of the cases are those testified to by Ernesto Magbanua, Eduardo Mendoza, Roberto Aguirre,
Rodolfo Sales and Manolo Espino stated briefly hereunder as follows:
chanrob1es virtual 1aw library

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

vagina of Josie who complained of pains. It took Magbanua about five (5) minutes to insert only two inches
of his penis inside the vagina of Josie Gonzales. At that same moment, Rodolfo Sales and Pacifico Rebutido
pulled Magbanua up from Josie Gonzales reminding Magbanua that their agreement was only to escape and
what he was doing to Josie Gonzales was not part of their agreement.
At about the same time that Magbanua was having sexual intercourse with Josie Gonzales, Roberto Aguirre
was also having sexual intercourse with Narcisa Batayola. Before the intercourse, Aguirre saw Batayola
about to jump into the sea. He prevented her from jumping overboard by holding her. Then he went around
the deck of the launch to see if there were still persons swimming on the water, leaving Batayola at the prow
of the launch. Seeing none, he returned to Batayola and asked her to have sexual intercourse with him. At
first Batayola refused. But later she undressed herself when told to undress. Aguirre made her lie down and
he inserted his penis inside the vagina of Narcisa Batayola without any difficulty. He made two successive
sexual intercourse with Narcisa Batayola, after which they both dressed up. They were in that situation when
Rodolfo Sales and Pacifico Rebotido arrived, pulled Aguirre away and they boarded their banca because they
saw someone flashlighting the premises at the shore. Magbanua also called Aspili and Eduardo Mendoza at
the engine room and they likewise boarded their banca and proceeded to the mangrove swamp to escape.
On the way, they noticed that Aspili was left behind." (Appellants Brief, pp. 3-6)
The two cases were consolidated and, after hearing, the lower court rendered judgment finding the accused
guilty of the crime of rape with homicide. The dispositive portion of the decision is set forth below:
jgc:chanroble s.com.ph

"WHEREFORE, haloed by the illuminating light of all aforegoing facts, laws, jurisprudence and arguments,
this Court finds all the herein accused, namely: Rodolfo Aspili, Ernesto Magbanua, Eduardo Mendoza, Jr.,
Rodolfo Sales, Roberto Aguirre and Pacifico Rebutido guilty of the crimes of Rape with Homicide, with the
aggravating circumstances of Robbery in Band, taking advantage of nighttime, recidivism, abuse of superior
strength and craft, in the above-entitled Criminal Case No. 3, beyond reasonable doubt, and sentences all of
them to Reclusion Perpetua, and all, likewise, guilty of the same but separate crime with all the same
aforementioned aggravating circumstances, in the above-entitled Criminal Case No. 4, beyond reasonable
doubt and imposes upon all of them, another separate penalty of Reclusion Perpetua, both penalties to be
served successively, with all its accessory penalties too in both cases, further, all same six (6) herein
accused are sentenced and ordered to pay actual damages jointly and solidarily as follows:
chanrob1es virtual 1aw library

1. P265.00 to Josie Gonzales;

2. 24.00 to Narcisa Batayola;
3. 36.00 to Pepito Severino and
4. P1,675.00 to Catalino Nadayao, for and the other passengers, named by him to have suffered losses,
in an amount corresponding to each, respectively,
and furthermore, the same six (6) aforenamed accused are sentenced and ordered to pay, jointly and
solidarily, moral damages, in the amount of P25,000.00 to each of Josie Gonzales and Narcisa Batayola,
their heirs and assigns respectively, as moral damages, and ultimately to indemnify in the same manner, the
parents, their heirs and assigns of deceased Daisy Gonzales and Yolanda Arque, the amount of P30,000.00
for each and every death of the said two (2) deceased, without subsidiary imprisonment in case of
insolvency in all the aforecited civil liabilities. It is further directed that an alias warrant of arrest be issued
against Rodolfo Sales and Pacifico Rebutido and not to be returned until they were in the custody of the
law." (Rollo, pp. 290-291)
We agree with the trial court that the prosecution correctly presented the facts of the case.
The appellants raise the following assignments of errors:

chanrob1es virtual 1aw library

I
"THE TRIAL COURT ERRED IN HOLDING THAT THE CRIMES COMMITTED BY THE DEFENDANTS-APPELLANTS
HEREIN ARE RAPE WITH HOMICIDE WITH THE AGGRAVATING CIRCUMSTANCES OF ROBBERY IN BAND,
NIGHTTIME, SUPERIOR STRENGTH, RECIDIVISM, AND CRAFT.
II

THE TRIAL COURT ERRED IN HOLDING THAT THE DEFENDANTS-APPELLANTS HEREIN CONSPIRED TO
COMMIT THE OFFENSES OF RAPE WITH HOMICIDE AND CONVICTING ALL OF THEM OF THE SAID CRIMES."
(Rollo, pp. 326-327)
The Court finds, at the outset, that the trial judge erred in designating the offense committed by the
appellants as rape with homicide aggravated by robbery in band. For one, neither in law nor in jurisprudence
is there an aggravating circumstance as robbery in band. More importantly, the evidence shows that what
was committed is the special complex crime of robbery with homicide aggravated by rape.
The records disclose that the appellants took control of the vessel M/L Elsa by threatening the crew and
passengers with their boloes and pistols. (TSN, pp. 452-459, August 26, 1970; pp. 137-148, November 16,
1970) Narcisa Batayola, a prosecution witness, testified that after the commotion that ensued when
appellants wielded their weapons, some of the appellants immediately started ransacking the cargoes and
taking the contents thereof (TSN, p. 148, November 16, 1970) These acts of the appellants therefore
manifest an unlawful intent to gain, through violence and intimidation of persons, by taking the vessel and
personal property of the crew and passengers, which comprises the crime of robbery.
The overwhelming evidence reveals that the original design of the malefactors was to commit robbery in
order to facilitate their escape from the penal colony. Their original intent did not comprehend the
commission of rape. Hence, the crime of rape cannot be regarded as the principal offense. In this case, since
it attended the commission of robbery with homicide, the rape is deemed to aggravate the crime but
damages or indemnification for the victim may be awarded. (See People v. Bacsa, 104 Phil. 136 [1958];
People v. Tapales, 93 SCRA 134 [1979]). Instead of ignominy, it is the rape itself that aggravates the crime
(People v. Mongado, 28 SCRA 642 [1969]).
With respect to the deaths of Daisy Gonzales and Yolanda Arque, the appellants are clearly liable therefor
since, as held by this Court in People v. Mangulabnan, (99 Phil. 992 [1956]) it is immaterial that the death of
a person supervened by mere accident, provided that the homicide is produced by reason or on occasion of
the robbery.
chanrobles virtual lawlibrary

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

However, the aggravating circumstances of nocturnity and craft should not have been considered by the

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

In passing, it may be mentioned that the crimes committed by appellants are now denominated as piracy in
Philippine waters, punishable under Presidential Decree No. 532. We find it unnecessary to retroactively
apply the provisions thereof in favor of the appellants because the acts committed by them are likewise
punishable therein by reclusion perpetua.
Considering the perversity accompanying the crime, the heinous nature not only of the offense but its
manner of commission, and the refusal of the accused to learn from their earlier convictions, the Court
strongly feels that the sentences herein imposed must be fully served. Any official who goes over any
applications for pardon or parole is urged to read the records of the case before acting on the applications.
WHEREFORE, the appealed decision in Criminal Cases Nos. 3 and 4 is AFFIRMED but MODIFIED. The
appellants are found guilty of the special complex crime of robbery with homicide with the aggravating
circumstances of rape, recidivism, in band and abuse of superior strength and are hereby sentenced to
suffer the penalty of reclusion perpetua. The award of actual damages is hereby affirmed. The awards
representing indemnity for the deaths are increased to P50,000.00 for each victim while the moral damages
for the rapes are increased to P30,000.00 for each victim.
SO ORDERED.
Fernan, C.J. and Bidin, J., concur.
Feliciano, J., is on leave.

13. P vs barrios, GR L-34785, July 30, 1979

EN BANC

G.R. No. L-34785 July 30, 1979

THE PEOPLE OF THE PHILIPPINES, plaintiff,
vs.
RENATO BARRIOS Y ALMOGUERA and RICO NAZARIO Y IBA;EZ, accused.
Renato L. Ramos, for accused Renato Barrios.
Cristobal A. Cantor (Counsel de Oficio) for accused Rico Nazario.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Conrado T. Limcaoco and Solicitor
Carlos N. Orrega for appellee.

FERNANDEZ, J.:

1wph1.t

This is an automatic review of the amended decision dated January 13, 1972 of the Circuit Criminal
Court of Manila in CCC-VI-733 (71) entitled "The People of the Philippines versus Renato Barrios
and Rico Nazario" finding the two accused guilty of the crime of robbery with homicide and
sentencing each one of them to death and to jointly and severally pay the heirs of the victim Teodoro
Castillo y Molina the sum of P12,000.00 for the death of said victim and the sums of P10,000.00 as
moral damages, P10,000.00 as exemplary damages and P7.00 representing the amount taken from
the deceased and to pay the costs. 1
The two accused, Renato Barrios y Almoguera and Rico Nazario v Iba;ez were charged in
September 1971 with the crime of robbery with homicide in the following.
t.hqw

INFORMATION
The undersigned accuses Renato Barrios y Almoguera and Rico Nazario y Iba;ez of
the crime of robbery with homicide, committed as follows:
That on or about August 28, 1971, in the City of Manila, Philippines, the said
accused, conspiring and confederating with one another whose Identity and
whereabouts are still unknown and helping one another. did then and there wilfully,
unlawfully and feloniously, by means of force and violence, and with intent to gain,
take away from Teodoro Castillo y Molina, a taxi driver, the latter's earnings of
undetermined amount, to the damage and prejudice of the said Teodoro Castillo y
Molina in the said undetermined amount; that on the occasion of the said robbery
and for the purpose of enabling them to take, steal and carry away the aforesaid
earning of Teodoro Castillo y Molina, the herein accused, in pursuance of their
conspiracy, did then and there wilfully, unlawfully and feloniously, with intent to kill,
attack, assault and use personal violence upon the said Teodoro Castillo y Molina, by
then and there stabbing him with a bladed instrument, thereby inflicting upon him
physical injuries which were the direct cause of his death thereafter.

Contrary to law.

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(SGD.) RODOLFO C.
CASAS
Assistant Fiscal
I hereby certify that an ex-parte investigation in this case has been conducted by me
in accordance with law; that there is reasonable ground to believe that the offense
charged has been committed, and that the accused is probably guilty thereof.
Manila, Sept. 13, 1971. 2
The facts, as found by the trial court, are:

A careful study of the evidence presented, shows the fact that victim Teodoro Castillo
y Molina, a taxi driver, was killed and robbed of his earnings has never been
disputed. The only issue in this case, therefore, is the criminal participation of the
accused.
The corroborating statements of both accused (Exhibit "F", statement of Nazario and
Exhibit "G", statement of Barrios) indubitably show that said accused, together with
one Arthur, who is still at large, conspired, confederated with and helped one another
in killing and robbing the victim. Nazario admitted in his statement (Exhibit "F") that
he invited Barrios to stage a hold-up in Perlita Street. Thereupon, a taxi passed by
and he stopped it. They boarded the same and he sat in the front seat while Barrios
and Arthur sat at the back with Arthur immediately behind the driver of the taxi.
Thereafter, Barrios poked the balisong on the taxi driver. Then they pulled said taxi
driver to the rear seat in order to frisk him but the driver shouted for help. Fearing
that they might be heard and the driver would create a scandal, Barrios immediately
stabbed the driver 3 times. Thereafter, he and his companions filed. Nazario further
declared that Barrios also stabbed the taxi driver because he fought back.
Barrios likewise admitted in his statement (Exhibit "G") that they actually stopped the taxi at the
corner of Perlita and Estrada Streets and got the money of the driver but the driver fought back and
for which reason he stabbed him with a kitchen knife. After that, he and his two companions fled. He
cannot remember the number of times he stabbed the taxi driver because he was then drunk.
t.hqw

The fact that both accused confessed to the truth is strongly .shown by the
corroborating testimony of Generoso Quimpo, Jr., who Testified in a spontaneous,
categorical, logical and straightforward manner with marked fluency and ease that
between 2:00 and 2:30 a.m. of August 28, 1971, while he was still half-awake, he
heard a commotion consisting of a sound of a sound of a car, a radio and the
struggle of some men. He even heard a shout "iwanan mo na iyan" and the
slamming of tile door of the taxi. He looked out of the window and saw a taxi at
standstill, around 9 to 10 meters away, but with the engine on. Inside the taxi, he saw
two men at the rear seat struggling. Then the driver (he said he is the driver because

he was the one who shouted "magnanakaw") came out and started running towards
Perlita Street shouting "magnanakaw, magnanakaw" The man who was inside, at the
rear of the taxi, also went out and ran on the opposite direction towards Estrada. In
other words, the testimony of Quimpo, Jr. that he saw two men struggling in the rear
seat of the taxi, one of whom he believes to be the taxi driver because he was the
one shouting "magnanakaw," corroborates the admission of Nazario that they pulled
the taxi driver from the front to the rear seat in order to frisk him of his money (Exhibit
"F", answer to question No. 6): the testimony of Quimpo, Jr. that the taxi driver went
out of his Taxi and shouted corroborates also a portion of the answer of Nazario to
question No. 6 (Exhibit "F") that the taxi driver got out of his taxi and shouted; and
the testimony of Quimpo, Jr. that he saw two men struggling at the back of the taxi
also corroborates the statements of Nazario and Barrios that Barrios stabbed the taxi
driver because the latter fought back. The crediblity of Quimpo, Jr. Cannot be
doubted for in the absence of evidence showing improper motive actuating the
principal prosecution witnesses tends to sustain the conclusion that no such
improper motive existed and their testimonies are worthy of full faith and credit
(People versus Amiscua, L-31238, February 27, 1971). 3
The two accused maintained that they were maltreated into giving their statements admitting their
participation in the commission of the crime charged in the information. This ,contention has no
merit.
The statements in question were subscribed and sworn to before Assistant Fiscal Avelino
Concepcion of Manila. There is no showing that the two accused refused or even hesitated to sign
and swear to said statements. They did not complain to his fiscal that they were maltreated by the
police officers. these circumstances, the statements are considered to have been voluntarily given.

The assertion of the accused Rico Nazario that he did not to the fiscal before whom he subscribed
and swore to, the statement because he was afraid of the police officers is not Considering the
gravity of the offense, it. is logical to ;assume that the fiscal examined thoroughly the two accused on
the voluntariness of their statements. if the two accuses were really maltreated they should have
complained because he probable penalty of death for the crime charged is more awesome than the
feared reprisal of the police. Moreover, there is no evidence of the alleged maltreatment other than
the bare assertion of the accused.
The statements of the two accused contain details of which could only have been furnished by them.
The allegation of Nazario that they drink first beer or liquor in the railroad track in Perlita Street; that
he was the one who sat in front of the taxicab while the other accused sat on the rear seat: that
Barrios was the one who poked a knife at the taxi driver: that the driver was pulled to the rear seat of
the taxicab so that he could be frisked of his money: that the driver shouted "saklolo, tulungan ninyo
ako"; and that the driver was stabbed because he fought back are details that could not have been
concocted by the police investigators,
The accused, Renato Barrios, narrated in his statement that the driver fought back when the former
took his money; that q-aid accused stabbed the driver with a kitchen knife; that before the robbery,
he and the other accused first drank liquor by the bridge going to the railroad track; that he knows

Col. Quimpo who lives at the corner of Estrada and Perlita Streets; that it is true that he went to Col.
Quimpo three (3) days after the incident and asked what said accused should do as he is one of
those being suspected in the killing and robbing of the driver as reported in a newspaper; and that
he read in the Daily Star that he is a suspect and Col. Quimpo is a witness. These details could not
having been known to the police investigators.
It is a settled rule that where the statement of the accused mentions details which only the declarant
could have furnished and could not have been concocted by the investigator, the confession is
considered to have been voluntarily given. 5
Moreover, in the absence of evidence to the contrary, the presumption is that the police officers who
investigated the accused performed their official duties regularly. 6
The defense interposed by the accused that on August 28, 1971 they were narrating stories in the
house at 2473 Perlita Street, the residence of Renato Barrios, is not credible, Alibi is a defense that
can very easily be concocted. For this reason, alibi to be sustained as a defense must be supported
by strong evidence. The evidence of the accused in support of their alibi is weak. It is strange that
the accused and their companions should be conversing up to 2:30 o'clock in the morning. This is
contrary to the ordinary course of things. Besides, Virginia Siscon, a witness of the accused,
declared that she conversed with the accused and other persons only up to 10:00 o'clock in the
evening of that date. The place where the accused and other persons allegedly told stories was at
2473 Perlita Street which was near the scene of the crime. The crime was committed on the same
street. There was every possibility for the two accused to have been present at the scene of the
crime although earlier that evening they were conversing with other people in the house at 2473
Perlita Street.
It has been held that for alibi to prosper, the evidence must show that the accused was so far away
that he could not have been physically present at the place of the crime or its immediate vicinity at
the time of its commission. 7
The evidence of the prosecution has established beyond reasonable doubt that the two accused
committed the crime charged in the information.
The trial court imposed the death penalty on both accused because of the finding that the
commission of the crime was attended by the aggravating circumstances of craft and abuse of
superior strength without any mitigating circumstance. The evidence of the prosecution has not
established the aggravating circumstances of craft and abuse of superior strength.
Craft is a circumstance characterized by trickery or cunning resorted to by the accused to carry out
his design.
The trial court found that craft was present because the two accused stopped the taxicab by
pretending to be passengers. There is no evidence that the two accused pretended to be
passengers. In fact, it is not clear how the taxicab was stopped. The only eyewitness for the
prosecution, Generoso M. Quimpo, Jr., declared that between 2:00 and 2:30 o'clock in the morning
of August 28, 1971, he was half-awake when there occurred a commotion outside his house

consisting of a sound of a car, radio and the struggling of some men; that upon looking out of the
window, he saw a taxicab at a standstill about 9 or 10 feet away from the window; that he was in the
second floor of the house; that the engine of the car was running; that before looking outside, the
witness heard a man shouting "Iwanan mo na yan."; that when he heard the slamming of the door of
the taxicab and he peeped out immediately, he saw the taxicab already parked outside; that he saw
two men struggling inside the taxicab at the rear seat; that the taxi driver came out and ran towards
Perlita Street shouting "magnanakaw, magnanakaw.": that a few seconds after the taxi driver had
run out, the man inside the taxicab at the rear also ran towards the opposite direction going to
Estrada Street; and that the two persons struggling at the rear of the taxicab were the taxi driver and
a man.
It is clear from the foregoing testimony that when Generoso M. Quimpo, Jr. looked out of the window
from his house, the taxicab was already at a standstill and that only two men were struggling at the
rear seat of the taxicab, the driver of the taxicab and one man. This testimony of the prosecution
witness also rules out the existence of the aggravating circumstance of abuse of superior strength.
Only one man was struggling with 'The taxi driver at the rear seat of the taxicab and the witness saw
only one man coming out of the rear of the taxicab running towards the opposite direction going to
Estrada Street.
It is settled that an aggravating circumstance should be proven as fully as the crime itself in order to
aggravate the, penalty. 8
In view of the foregoing, the trial court erred in imposing the penalty of death. The crime was
committed without the presence of any aggravating and mitigating circumstances.
WHEREFORE, the decision under automatic- review is hereby affirmed, with the sole modification
that the penalty imposed on the two accused is reclusion perpetua, with costs against said accused.
SO ORDERED.
Fernando C.J., Teehankee, Barredo, Makasiar, Antonio, Concepcion, Jr., Guerrero, De Castro and
Melencio-Herrera, JJ., concur.
1wph1.t

Aquino, J., concur in the result.

Santos * and Abad Santos, * JJ., is on leave.

#Footnotes

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1 Rollo, pp. 8-42.

2 Rollo pp. 3-4.
3 Rollo, pp. 31-34.

4 People vs. Dorado, L-23464, October 31, 1969, 30 SCRA 53.

5 People vs. Dorado, L-23464, October 31, 1969, 30 SCRA 53, 58.
6 Section 5 [m], Rule 131, Revised Rules of Court.
7 People vs. Condemena, L-22426, May 29, 1968, 23 SCRA 910, 918.
8 People vs. Marcina, 77 SCRA 238, 246.
* Mr. Justice Guillermo S. Santos and Mr. Justice Vicente Abad Santos are on official
trips abroad.

14. P vs lagarto, GR 65833, May 6,1991

SECOND DIVISION
G.R. No. 65833

May 6, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EUGENIO LAGARTO y GETALADO, JR., accused-appellant.
The Solicitor General for plaintiff-appellee.
Dakila F. Castro & Associates for accused-appellant.
PARAS, J.:
This is an automatic review of the judgment * of the Regional Trial Court, 8th Judicial Region, Branch
XXII, Laoang, Northern Samar, in Criminal Case No. 1566, finding the accused EUGENIO
LAGARTO y GETALADO, JR. guilty beyond reasonable doubt of the crime of MURDER.
The pertinent facts of the case are:
In the early evening of May 25, 1983, Reynaldo Aducal, who was buying fish in the public market,
Poblacion Laoang, Northern Samar, was fatally stabbed. Right after the stabbing, the assailant was
apprehended by Pfc. Wenefredo Laguitan whose commendable act thwarted the assailant's escape.
For the killing of Reynaldo Aducal, accused Eugenio Lagarto y Getalado, Jr. was charged in an
amended information with the crime of Murder as defined and penalized under Article 248 of the
Revised Penal Code, allegedly committed as follows:
That on or about the 25th day of May, 1983, at about 6:00 o'clock in the evening more or
less, inside the public market Bgy. Little Venice, Municipality of Laoang, Province of Northern
Samar, Philippines and within the jurisdiction of this Honorable Court, the above named
accused with deliberate intent to kill with the qualifying circumstances of treachery and

evident premeditation did then and there willfully, unlawfully and feloniously attack, assault
and stab one REYNALDO ADUCAL y LURA with the use of a Batangas fan knife or Balisong
which the above-named accused had provided himself for the purpose, thereby inflicting
upon said victim fatal wounds on his chest, which wounds caused the instantaneous death of
the victim.
Accused is a recidivist, having been previously convicted by final judgment of another came
embraced IN THE SAME TITLE OF THE REVISED PENAL CODE, THAT OF MURDER IN
CRIMINAL CASE NO. 1473.
CONTRARY TO LAW.
(Record, "Amended Information", p. 35)
Upon arraignment, appellant entered a plea of guilty.
The records disclose that the trial court had asked appellant whether or not he understood the
consequences of his plea. Following the rulings of this Court, however, the trial court still directed the
prosecution to present its evidence for the purpose of establishing with certainty the guilt and the
degree of culpability of the accused.
Two witnesses were presented by the prosecution: they were Zosimo Aducal, father of the victim,
and Pfc. Wenefredo Laguitan.
1. Zasimo Aducal testified that in the evening of May 25, 1983 while he was attending to his
farm, three (3) kilometers away from the poblacion of Little Venice, Laoang, Northern Samar,
his grandson Artemio Aducal, son of Reynaldo, informed him that Reynaldo Aducal had been
stabbed dead; he was not able to see his deceased son that night because he could not see
his way during night time; it was only in the following morning when he saw his deceased
son with two stab wounds on the right and left breast. (TSN, October 18, 1983, pp. 14-20).
2. Pfc. Wenefredo Laguitan testified that on May 25, 1983, around 6:00 in the evening, while
he and Pat. Manuel Sevillana were passing the market place, his attention was called by a
certain Armando Baluyot to a commotion; he observed that the people were scampering for
safety and a man was escaping; when somebody shouted that the man was the assailant,
he immediately followed the man and apprehended him right then and there; at the police
headquarters the man admitted to him that he had long planned to kill the victim and that, the
plotter was Eugenio Lagarto, Jr., herein appellant. (TSN, October 18, 1983, pp. 22-28,).
The prosecution likewise presented the following evidence:
(a) Case Record of Criminal Case No. 1473 entitled "People vs. Eugenio Lagarto, Jr."
showing that appellant had been convicted by final judgment of homicide. (Exhibit "A" to "A-1
a");
(b) Death Certificate of deceased Reynaldo Aducal (Exhibit "B");

(c) Fan knife (Exhibit "D");

(d) Extra-judicial confession of appellant (Exhibit "C" to "C-4"), which discloses the following:
07. Question: Do you know Reynaldo Aducal personally?
Answer: Not so much, sir, but he was the one who stabbed my brother Pablito last
1980.
08. Question: What was the result when Reynaldo Aducal stabbed your brother
Pablito?
Answer: As a result, my brother Pablito was hospitalized.
09. Question: Why did you stab to death Reynaldo Aducal?
Answer: I stabbed him to death sir, as a revenge or retaliation for his stabbing of my
brother Pablito.
10. Question: According to what you have said Reynaldo Aducal had stabbed your
brother Pablito in 1980. Do you mean to say that since 1980 up to May 25, 1983 you
had been planning to avenge your brother by killing Reynaldo?
Answer: Yes, sir.
(p. 2, Exhibit "C")
Based on the appellant's plea of guilty and the evidence adduced, the trial court rendered judgment,
the dispositive portion of which reads:
WHEREFORE, the Court accepts his plea and declares accused, Eugenio Lagarto y
Getalado guilty beyond reasonable doubt as principal of the crime of Murder defined and
penalized in Article 248 of the Revised Penal Code, as charged in the information,
appreciating in his favor the mitigating circumstance of spontaneous plea of guilty which is
offset by the aggravating circumstance of evident premeditation, the Court hereby sentences
said accused to suffer the extreme penalty of DEATH with all the accessories provided for in
Art. 40 of the Revised Penal Code.
The accused is hereby ordered to indemnify the heirs of Reynaldo Aducal in the amount of
P12,000.00 and to pay the costs.
SO ORDERED.
(Decision, p. 5; Rollo, p. 20)

The imposition of the supreme penalty of death warrants an automatic review by this Court.
However, the penalty of Death had been changed to reclusion perpetua in accordance with the
provision of Section 19(l), Article III of the 1987 Constitution.
The counsel de oficio recommends that the sentence be modified, contending that:
I. THE LOWER COURT ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCE
OF EVIDENT PREMEDITATION AGAINST THE ACCUSED.
II. THE LOWER COURT LIKEWISE ERRED IN APPRECIATING THE AGGRAVATING
CIRCUMSTANCE OF TREACHERY AGAINST THE ACCUSED; AND
III. CONSEQUENTLY, THE LOWER COURT ERRED IN SENTENCING THE ACCUSED TO
SUFFER THE EXTREME PENALTY OF DEATH."
(Brief for Accused-Appellant, p. 4; Rollo, p. 1 1 8)
It is a well-established rule that a plea of guilty, besides being a mitigating circumstance, is a
judicial confession of guiltan admission of all the material facts alleged in the information,
including the aggravating circumstances. (People vs. Ariola, 100 SCRA, 523) To be
considered a true plea of guilty, it must be made by the accused freely, voluntarily and with
full knowledge of the consequences and meaning of his act. It must be made unconditionally.
(People vs. Comendador, 100 SCRA 155).
In the case at bar, the trial court exerted its utmost effort to be extra solicitous in seeing to it
that the accused understood, the meaning and importance of his plea. Thus,
Q Do you realize the import and consequences of your having entered the plea of
guilty?
A Yes, your Honor.
xxx

xxx

xxx

Q Now, the Court would repeat to you that you have entered the plea of guilty to a
most grievous offense?
A Yes, your Honor.
Q For having entered a plea of guilty to the present crime of murder for the killing of
Reynaldo Aducal you are therefore submitting the case without presenting your own
evidence, do you realize that?
A Yes, your Honor.

Q And despite this advise and admonition to you by the court, do you still insist on
entering a plea of guilty to the crime as charged?
A Yes, your Honor.
Q The Court will advise you that in this kind of offense which is a crime of murder
there is only one possible penalty and the court has no other recourse but to impose
it, that of death, do you realize that?
A Yes, your Honor.
(Translated in the dialect known to the accused)
(TSN, October 11, 1983, pp. 2-4).
The trial court was not remiss in its obligation to warn the accused of the important consequences of
his plea. The possibility that death might be imposed should have warned the accused to protect his
interest: even an ordinary unlettered man fears death. And despite the thought of losing his life, the
accused pleaded guilty. We are convinced that the guilt of the accused has been proved beyond
reasonable doubt in the light of overwhelming evidence presented by the prosecution, fully
corroborated and substantiated by the plea of guilty of the accused.
The only issue before Us is whether or not the trial court correctly appreciated the existence of
recidivism and the qualifying circumstances of evident premeditation and treachery.
Section 5, Rule 118 of the old Rules of Court provides that "Where the defendant pleads guilty to a
complaint or information, if the trial court accepts the plea and has discretion as to the punishment
for the offense, it may hear witnesses to determine what punishment shall be imposed." (emphasis
supplied). The trial court in a criminal case may sentence a defendant who pleads guilty to the
offense charged in the information, without the necessity of taking testimony. (US vs. Talbanos, 6
Phil. 541). Yet, it is advisable for the trial court to call witnesses for the purpose of establishing the
guilt and the degree of culpability of the defendant. (People vs. Comendador, supra) The present
Revised Rules of Court, however, decrees that where the accused pleads guilty to a capital offense,
it is now mandatory for the court to require the prosecution to prove the guilt of the accused and his
precise degree of culpability, with the accused being likewise entitled to present evidence to
prove, inter alia, mitigating circumstances (See People vs. Camay, 152 SCRA 401; Section 3, Rule
116 of Rules of Court).
In the case at bar, the trial court directed the prosecution to present evidence for the purpose of
establishing the guilt and degree of culpability of the defendant.
We find, as the trial court found, that the accused is a recidivist. A recidivist is one who, at the time of
his trial for one crime, shall have been previously convicted by final judgment of another crime
embraced in the same title of the Revised Penal Code. Herein accused had been convicted of the
crime of homicide in Criminal Case No. 1473 before the trial of the present Criminal Case No. 1566.
The former counsel de oficio of herein accused alleged that the judgment in Criminal Case No. 1473

was rendered on September 15, 1983, hence when the accused was arraigned on October 11, 1983
for Criminal Case No. 1566 he was not a recidivist.
The former counsel de oficio is of the opinion that "the time of trial" is to be reckoned with the date of
the arraignment. The phrase "at the time of his trial" should not be restrictively construed as to mean
the date of arraignment.
We declared in People vs. Enriquez, 90 Phil. 428, that the phrase "at the time of his trial for an
offense" is employed in its general sense, including the rendering of the judgment. In US vs.
Karelsen, 3 Phil. 23, We held that the phrase "at the trial" is meant to include everything that is done
in the course of the trial, from arraignment until after sentence is announced by the judge in open
court. In the case at bar, the accused was convicted of homicide in Criminal Case No. 1473 on
September 15, 1983. There being no appeal, the judgment therein became final on October 11,
1983. The second conviction was rendered on October 26, 1983 for Murder. Hence, it is crystal clear
that the accused is a recidivist: the accused had been convicted by final judgment at the time of the
rendition of the judgment for the second offense.
We find no merit in the finding of the trial court that evident premeditation and treachery existed in
the commission of the crime. It is a rule that a plea of guilty cannot be held to include evident
premeditation and treachery where the evidence adduced does not adequately disclose the
existence of these qualifying circumstances (People vs. Gravino, 122 SCRA 123).
Evident premeditation requires proof of the following requisites: (a) the time when the offender
determined to commit the crime; (b) an act manifestly indicating that he had clung to his
determination; and (c) a sufficient lapse of time between the determination and the execution of the
crime to allow him to reflect upon the consequences of his act and to allow his conscience to
overcome the resolution of his will. (People vs. Cafe, 166 SCRA 704; People vs. Montejo, 167 SCRA
506).
The statement of the accused, that he had long planned to kill Reynaldo Aducal in retaliation for the
act of Reynaldo Aducal in stabbing his brother, does not adequately prove the existence of evident
premeditation. It is necessary to establish that the accused meditated on his intention between the
time it was conceived and the time the crime was actually perpetrated. Defendant's proposition was
nothing but an expression of his own determination to commit the crime which is entirely different
from premeditation. (People vs. Carillo 77 Phil. 572). In People vs. Alde, 64 SCRA 224, We ruled
that there is no evident premeditation where the only evidence to support it is the statement of the
accused that he planned to kill the victim in 1964 when actual stabbing was 1969.
To show premeditation, it is required that the criminal intent be evidenced by notorious acts evincing
the determination to commit the same. (People vs. Guiyab, 139 SCRA 446). It must be evident and
not merely suspected (People vs. Iturriaga, 88 Phil. 534) or merely thought of or contemplated
mentally, without externalized acts. The finding of the trial court, that the accused had clandestinely
concealed the knife in his body away from the searching eye of the prison guards which showed the
deliberate intent of the accused, is not borne out by the records. Perusal of the records does not
show that the accused deliberately planned the killing through external acts. The finding of facts by
the trial court should not be based on mere assumptions; there must be proof that such facts exist.

In order that treachery may be appreciated, it is necessary to prove the manner in which the victim
was attacked. Treachery can in no way be presumed but must be fully proved. Where there are
merely indications that the attack was sudden and unexpected, but there are no precise data on this
point, the circumstance of treachery can not be taken into account. (People vs. Ariola, supra)
1wphi1

In the case at bar, there is no evidence to show that the mode of attack was consciously adopted as
to insure the perpetration of the crime and safety from the defense that the victim might put up.
There is an absence of evidence to show the means employed by assailant and the mode of attack.
Treachery may not be simply deduced from assumptions; it must be as clearly proved as the crime
itself in order to qualify the crime into murder.
WHEREFORE, the that court's judgment is MODIFIED. Accused-appellant EUGENIO LAGARTO y
GETALADO is hereby CONVICTED of homicide; appreciating in his favor the mitigating
circumstance of spontaneous plea of guilty which is offset by the aggravating circumstance of
recidivism, the Court hereby sentences said accused to an indeterminate penalty of ten (10) years
of prision mayor as minimum, to seventeen (17) years and four (4) months of reclusion temporal as
maximum, and to pay the heirs of Reynaldo Aducal an indemnity of fifty thousand pesos
(P50,000.00). Costs de oficio.
SO ORDERED.
Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.
Footnotes
* Penned by Judge Justo M. Sultan.

15. P vs real, GR 93436, March 24,1995

FIRST DIVISION

G.R. No. 93436 March 24, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MELCHOR REAL y BARTOLAY, accused-appellant.

QUIASON, J.:
This is an appeal from the decision of the Regional Trial Court, Branch 44, Masbate, Masbate, in
Criminal Case No. 1606 finding appellant guilty of murder.

We affirm with modification, the appealed decision.

I
The information against appellant reads as follows:
That on or about March 11, 1978, in the morning thereof, at the Poblacion of the
Municipality of Aroroy, Province of Masbate, Philippines, within the jurisdiction of this
Court, the said accused with intent to kill, evident premeditation and treachery, did
then and there willfully, unlawfully, feloniously and criminally attack, assault and hack
with a sharp bolo one Edgardo Corpus y Rapsing, hitting the latter on the nape,
causing an injury which caused the death of the said Edgardo Corpus y Rapsing
several days thereafter.
That the accused is a recidivist having been convicted by the Municipal Court of
Aroroy, in the following cases:
Crime Date of Conviction
1. Ill treatment by Deed July 6, 1965
2. Grave Threats November 25, 1968
(Rollo, p. 14).
Upon being arraigned, appellant pleaded not guilty.
After trial, the court convicted appellant and sentenced him to suffer the penalty of reclusion
perpetua and to pay the heirs of the victim the sum of P30,000.00 and costs.
Hence, this appeal.
II
At about 9:00 A.M. on March 17, 1978, in the public market of Aroroy, Masbate, appellant and
Edgardo Corpus, both vendors, engaged in a heated argument over the right to use the market table
to display their fish.
Moreno de la Rosa, the Municipal Mayor, who happened to be at the public market, tried to pacify
them, saying that they were arguing over trivial matters.
The two protagonists momentarily kept their peace but after awhile Corpus raised his voice again
and said something to appellant. The latter, in a soft voice, uttered "SOBRA NA INA NA IMO
PAGDAOGDAOG" (You are being too oppressive).

When Corpus kept on walking to and fro near the disputed fish table, appellant started to sharpen
his bolo while murmuring to himself. Once Corpus turned around with his back towards appellant,
the latter hacked him on the nape. The blow caused Corpus to collapse. He was rushed to a medical
clinic. When asked by his wife as to who hacked him, he answered "Melchor Real."
A police investigator went to the clinic to take the dying declaration of Corpus, who said that it was
appellant who stabbed him. Corpus died two days later.
Appellant admitted hacking Corpus but claimed that he did so out of humiliation and anger when the
victim threw his fish in the presence of so many people.
He testified as follows:
Q. When Edgardo Corpus was lambasting you in the presence of the
public, what did you do, how did you feel?
A. I got angry.
Q. And what did you do?
A. So I hacked him.
Q. Was he hit?
A. Yes, Sir.
Q. In what part of his body was he hit?
A. At the right neck.
Q. Did you admit to the authorities that it was you who hacked
Edgardo Corpus?
A. Yes, sir.
On cross-examination, he again admitted his guilt.
Q. And when this Edgardo Corpus turn (sic) his back, you
immediately hacked him on his neck?
A. Yes, sir ( TSN, July 9, 1986, pp. 6-8; Emphasis supplied).
III

Before us, appellant argues that the crime committed was only homicide and not murder and that he
is entitled to two mitigating circumstances: namely, passion and obfuscation and vindication of a
grave offense.
We agree with appellant that the offense committed was homicide. He is entitled to the benefit of the
doubt as to whether he acted with alevosia when he attacked the victim. As a rule, a sudden attack
by the assailant, whether frontally or from behind, is treachery if such mode of attack was cooly and
deliberately adopted by him with the purpose of depriving the victim of a chance to either fight or
retreat. The rule does not apply, however, where the attack was not preconceived and deliberately
adopted but was just triggered by the sudden infuriation on the part of the accused because of the
provocative act of the victim (People v. Aguiluz, 207 SCRA 187 [1992]). This is more so, where the
assault upon the victim was preceded by a heated exchange of words between him and the accused
(People v. Rillorta, 180 SCRA 102 [1989]). In the case at bench, the assault came in the course of an
altercation and after appellant had sharpened his bolo in full view of the victim. Appellant's act of
sharpening his bolo can be interpreted as an attempt to frighten the victim so the latter would leave
him alone. It was simply foolhardy for the victim to continue walking to and fro near appellant in a
taunting manner while the latter was sharpening his bolo.
The suddenness of the attack does not, by itself, suffice to support a finding of alevosia where the
decision to attack was made peremptorily and the victim's helpless position was accidental (People
v. Ardisa, 55 SCRA 245 [1974]).
Appellant also claims that he is entitled to two mitigating circumstances: namely, vindication of a
grave offense and passion and obfuscation. The peculiarity of these two mitigating circumstances is
that they cannot be applied at the same time if they arise from the same facts or motive.
If appellant attacked his victim in the proximate vindication of a grave offense, he cannot
successfully claim in the same breath that he was also blinded by passion and obfuscation. At most,
only one of two circumstances could be considered in favor of appellant (People v. Yaon, Court of
Appeals, 43 O.G. 4142 cited in I Reyes, Revised Penal Code [1981]).
The act of the victim in berating and humiliating appellant was enough to produce passion and
obfuscation, considering that the incident happened in a market place within full view and within
hearing distance of many people.
The trial court held, and the Solicitor General agreed, that the attendant aggravating circumstance
was reiteracionand not reincidencia as alleged in the information. The trial court and the Solicitor
General are in error.
According to the information charging appellant of murder and the evidence, the accused was
previously convicted of ill-treatment by deed on July 6, 1965 and grave threats on November 25,
1968.
In recidivism or reincidencia, the offender shall have been previously convicted by final judgment of
another crime embraced in the same title of the Revised Penal Code (Revised Penal Code, Art.
14[g]). In reiteracion, the offender shall have been punished previously for an offense to which the

law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter
penalty (Revised Penal Code, Art. 14[10]). Unlike inreincidencia, the offender in reiteracion commits
a crime different in kind from that for which he was previously tried and convicted (Guevarra, Penal
Sciences and Philippine Criminal Law 129 [1974]).
Appellant was previously convicted of ill-treatment by deed (Revised Penal Code, Art. 266, Title
Eight) and grave threats (Revised Penal Code, Art. 282, Title Nine). He was convicted of homicide in
the instant criminal case (Revised Penal Code, Art. 249, Title Eight). Inasmuch as homicide and illtreatment by deed fall under Title Eight, the aggravating circumstance to be appreciated against him
is recidivism under Article 14[g] rather thanreiteracion under Article 14(10) of the Revised Penal
Code.
There is no reiteracion because that circumstance requires that the previous offenses should not be
embraced in the same title of the Code. While grave threats fall in title (Title Nine) different from
homicide (Title Eight), stillreiteracion cannot be appreciated because such aggravating circumstance
requires that if there is only one prior offense, that offense must be punishable by an equal or greater
penalty than the one for which the accused has been convicted. Likewise, the prosecution has to
prove that the offender has been punished for the previous offense. There is no evidence presented
by the prosecution to that effect.
Appellant is convicted of homicide, appreciating in his favor the mitigating circumstance of passion
and obfuscation, which is offset by the aggravating circumstance of recidivism.
WHEREFORE, the judgment of the trial court is AFFIRMED with the MODIFICATION that appellant
is convicted of the crime of homicide and sentenced to an indeterminate penalty of TEN (10) YEARS
of prision mayor as minimum to SEVENTEEN (17) YEARS and FOUR (4) MONTHS of reclusion
temporal as maximum. The indemnity to be paid to the heirs of the victim is increased to
P50,000.00.
SO ORDERED.
Padilla, Davide, Jr., Bellosillo and Kapunan, JJ., concur.

16. US vs sotelo, GR 9791, OCT 3, 1914

EN BANC
G.R. No. L-9791

October 3, 1914

THE UNITED STATES, plaintiff-appellee,

vs.
VICENTE F. SOTELO, defendant-appellant.
J. C. Hixson for appellant.
Office of the Solicitor-General Corpus for appellee.

JOHNSON, J.:
On the 5th day of January, 1914, the prosecuting attorney of the city of Manila presented a complaint
against the said defendant, charging him with the crime of estafa. The complaint alleged: "That on or
about January 2, 1914, in the city of Manila, Philippine Islands, the said Vicente F. Sotelo, having
received from one Manuel Araneta for safe-keeping, on commission or for administration, a plain
gold ring set with three diamonds, valued at P250, the property of the said Manuel Araneta, for the
purpose of selling it and delivering the proceeds thereby derived to the said Manuel Araneta within a
period of two hours or of returning the said ring to the latter in case he should be unable to sell it,
said accused, Vicente F. Sotelo,did, then and there, willfully, unlawfully, and criminally misapply,
misappropriate, and covert the said ring or its value in the sum of P250, Philippine currency, to his
own benefit, to the damage and prejudice of the said Manuel Araneta in the sum of P250, equivalent
to 1,250 pesetas; that the accused is a recidivist; all contrary to law."
Upon said complaint the defendant was duly arrested, arraigned, tried, found guilty, and sentenced,
by the Honorable Richard Campbell, judge, to be imprisoned for a period of four months and one
day of arresto mayor, and to pay the costs. From that sentence the defendant appealed to this court
and made the following assignments of error: "First. The trial court erred in finding that Manuel
Araneta or Alejandra Dormir testified that Manuel Araneta delivered the ring to the defendant, upon
an agreement that the defendant should sell the same for not less than P250. Second. The trial court
erred in finding that the defendant was guilty, beyond a reasonable doubt."
With reference to the first assignment of error, the lower court said: "He [Manuel Araneta] states
positively that he delivered the ring to the defendant, with the distinct understanding that the latter
should sell it and return with the money to him, the agreement being that he should sell it for not less
than P250."
An examination of the record, however, shows that Manuel Araneta testified with reference to the
price for which the defendant was to sell the ring, as follows: "On the morning of the 2nd day of
January (1914) this year, I met Mr. Sotelo, the accused in this case. He asked me where I was going
and I told him I was going to sell a diamond ring. I asked him if he could find a purchaser for me,
because, I told him, the best offer I had received was P120. About 12:30 that same day Mr. Sotelo
appeared at my house; at that time we were eating; my brother-in-law, my sister, and the owner of
the ring (Alejandra Dormir) were there eating. He stated he had at last found a purchaser who was
willing to pay P180 or P190, I do not remember exactly, for the ring; that at 1.30 he would return and
bring with him the proceeds of the sale of the ring. Then I told the owner of the ring to turn it over to
Mr. Sotelo for its sale, stating at the same time that I knew Mr. Sotelo. Then, as 2 and 3 o'clock
passed without the defendant appearing in the house, and because I assumed the responsibility for
the ring because I had assured the owner of it of my confidence in Mr. Sotelo I started to find
Mr. Sotelo."
In answer to the question "Why did you [Manuel Araneta] tell Sotelo to find a purchaser for you?"
he said: "In order to find out whether there was some one who would offer more than P120 for the
ring, because the owner wanted P180 or more."

The foregoing is all the testimony found in the record concerning the price at which the defendant
was to sell the ring.
Alejandro Dormir, the owner of the ring, testified that she had paid P250 for it, but there is nothing in
the record which justifies the finding of the lower court that the defendant agreed to take the ring and
to sell it for not less than P250. While the finding of the lower court as to the amount for which the
defendant agreed to sell the ring is not in accordance with the evidence, it was not a finding which in
any way exculpates the defendant, provided the record shows that he did receive from the owner the
ring in question, under an agreement to sell it at some price and to return the money which he
should receive to the owner.
With reference to the second assignment of error, the lower court said, in his summary of the proof:
"The testimony of Manuel Araneta is to the effect that the ring in question is the property of one
Alejandra Dormir, who delivered it to him (Manuel Araneta) to sell; that he in turn delivered it to the
defendant herein, Vicente Sotelo, after some conversation in which Sotelo said he could find a
customer for it, and an agreement was made whereby Sotelo should return during the day and
deliver the proceeds of the sale to the said Manuel Araneta. This testimony is corroborated by the
woman, Alejandra Dormir, the owner of the ring in question. She testified that being in need of
money, she turned the ring in question over to Manuel Araneta, who was a friend of her family, in
order that he might sell it and deliver the proceeds of the sale to her.
The accused does not deny that the ring was delivered to him, nor that he pawned the ring in
the pawnshop of one Guillermo Ruiz, at 1810 Calle Azcarraga. He states, however, that it
was pawned with the knowledge and consent of Manuel Araneta, who told him (the accused)
that he was in need of P20, and asked him if he would not take the ring and pawn it for him
and bring the money; that, later, after he had pawned the ring for P20, and had given the
money to Manuel Araneta, the latter asked him to obtain for him P50 additional on the ring,
which the accused did, delivering to Araneta the second time the sum of P49,40, 60
centavos being deducted by the pawnbroker as interest; whereupon, says the accused,
Manuel Araneta gave him the sum of P4.40 as his commission on the transaction.
The court is of the opinion that the evidence demonstrates the guilt of the accused, beyond a
reasonable doubt. He has a bad reputation, having been convicted of theft in 1902, and
sentenced to three years six months and twenty-one days. Moreover, it is the opinion of the
court that the declaration of the accused, with respect to the consent of Araneta in the
pawning of the ring is false and, therefore, can not be taken into consideration as a defense
in this case.
With reference to the second assignment of error, the guilt or innocence of the accused depends
wholly upon the proof a question of fact only. The prosecution alleged and tried to prove that the
accused was given the ring for the purpose of selling it a price not less than P180 or P190. and to
return the money or purchase price to the owner within a period of about one hour. The accused
admits that he received the ring at the time and place when and where the owner alleges that he
gave it to him. He denies, however, that he received the rings for the purpose of selling it on
commission. He alleges that he received it for the purpose of pawning it. He admits that he pawned
it, at first for P20, but took no pawn ticket at that time, and that the P20 were delivered to the owner

(or Manuel Araneta) and that later he returned to the same pawn-broker and received the further
sum of P50 (P49.40), which was also delivered to the owner (or Manuel Araneta). He alleges that
when he received the P50 (P49.40) he took a pawn broker's ticket for the same.
We have, then, the only difference between the prosecution and the accused a question of fact,
whether or not the ring was delivered to the accused to be sold or to be pawned. If it was delivered
to the accused to be pawned, and he did pawn it, in accordance with his instructions, and did return
the money to the owner, then, in that case, there is no breach of trust and he is not guilty of the
crime charged. If, upon the other hand, the ring was delivered to the accused to be sold, and he
neither sold the ring nor returned it to its owner, then he is guilty as charged in the complaint. The
lower court, after a careful analysis of the proof adduced during the trial of the cause, reached the
conclusion that the evidence showed, beyond a reasonable doubt, that the ring was delivered to the
accused to be sold and that he neither returned the ring nor its purchase price to the owner.
There were but four witnesses examined during the trial of the cause, two for the prosecution and
two for the defense. The first witness for the prosecution was Manuel Araneta. He testified that had
known the defendant for about two years; that at the request of Alejandra Dormir he delivered the
ring in question to the defendant to be sold; that he told the defendant that he had received an offer
of P120 for the ring; that the defendant represented that he had a purchaser who was willing to pay
P180 or P190 for the ring; that the ring was given to the accused to be sold at that price (P180 or
P190); that the defendant promised to return with the purchase price within about an hour; that the
ring was given to the defendant at about 12.30 noon p.m.; that he (Manuel Araneta) waited until
between 3 and 4 o'clock p.m. for the return of the defendant; that the defendant did not return up to
that time nor at any other time, with the ring; that between 3 and 4 o'clock he (Manuel Araneta) went
to the office of the prosecuting attorney of the city of Manila, and made a complaint against the said
defendant.
He further testified that the ring had been pawned several times and that the owner had redeemed it
from a pawnbroker on the morning of the day (January 2, 1914) on which it had been delivered to
the defendant.
Alejandra Dormir, the other witness presented for the prosecution, testified that she was the owner of
the ring; that she had paid P250 for it; that the ring had been pawned; that she had redeemed it on
the same day that it was delivered to the defendant, because she wanted to sell it; that she wanted
to sell and asked him whether or not he could sell it; that Mr. Araneta and told he knew a man who
wanted to buy a ring; that the defendant arrived at the house where she was in company with Mr.
Araneta and others, while they were eating; that the ring was upon her finger at that time; that the
ring was taken off of her finger and delivered to the defendant; that she did not authorize the
defendant to pawn the ring.
The defendant testified in his own behalf and said that at about 8 o'clock or 8.30 on the morning of
January 2, 1914, he was driving in a carromata from his house in Rizal avenue; that as he was
passing near the house of Mr. Araneta he saw his and bade him good morning; that Mr. Araneta
asked him whether he knew any person who wanted to buy a ring and he showed him the ring on his
finger; that he told Mr. Araneta that he was not devoting himself to such small things, but that,
notwithstanding that fact, he knew a person, one Vicenta Zialcita, who was engaged in the business

of selling and buying jewelry; that Mr. Araneta asked him to accompany him to this woman's house;
that he refused, saying that he was very busy but would come back about twelve o'clock that same
day to accompany him; that he did return to the house of Mr. Araneta at about 12 o'clock that same
day; that when he came to the house of Mr. Araneta he saw that the people of the house were eating
their meal; that Mr. Araneta invited him into the house; that once insides of the house, I asked him
whether he was really to go to the house of Vicenta Zialcita, but he said no; Mr. Araneta then asked
me if I had P20, because he was in need of the money; that Mr. Araneta then asked him if he could
not pawn the ring, and I told him that I would see what I could do and he then gave the ring to me;
that he went to the house of Juan Bebing, who was then appraiser of the pawnshop of Guillermo
Ruiz; that he told Juan Bebing that he wanted to pawn the ring for P20, because a friend of his was
in need of that money; that he was going to redeem it to-morrow because it was going to be sold;
that he received the P20; that no pawn ticket was issued for it; that he returned to Rizal Avenue and
left the carromata at the corner and from there walked to the house of Mr. Araneta asked him if he
could not get P50 more on the ring; that he said he was not sure; that it was then 12 o'clock and that
he was hungry; that, notwithstanding that, he told him (Araneta) that he would come back between 2
and 3 o'clock; that after giving MR. Araneta the P20 he returned at about 2.30 in pawnshop and saw
Mr. Bebing and his (Mr. Bebing's) wife needed P20 for market purposes, and he (Bebing) had
pawned the ring for the same amount; that he told him (Bebing) that the owner of the ring wanted
another P50; that he (Bebing) said that it was all right; that we could fix it up by putting on the ticket
P70, with 3 per cent interest on the P20; that Bebing made out a ticket for P70, deducting sixty
centavos, and that he (Bebing) gave him P49.40; that he also saw in the report which is sent by the
pawnshops to the police where his name appeared as Vicente Sotelo and that he changed the name
with his own hands and made it Vicente F. Sotelo; that later he took Mr. Cruz to the house of Manuel
Araneta and delivered the P49.40 to Manuel Araneta; that Manuel Araneta gave him P4.40 as his
commission.
lawphil.net

The said Hipolito Cruz testified in part confirmed the declarations of the accused. His testimony is of
little value, however, upon the particular question presented, for the reason that he was not present
at either of the times the accused alleges that he received the two sums of money from the
pawnbroker and neither was he present at the time the accused alleges he delivered the money to
Manuel Araneta.
An examination of the declaration of the accused shows that he admitted that he took the ring and
that he knew a person, Vicenta Zialcita, who was engaged in the business of selling and buying
jewelry. He does not, however, at any time in his declaration, attempt to show that he took the ring to
the said Vicenta Zialcita, for the purpose of attempting to sell it to her. Another peculiar facts also
appears in his declaration. It id the fact that the said Juan Bebing, who was supposed to have been
the appraiser of the pawnshop of Guillermo Ruiz, did not place the ring with Ruiz, but pawned it
himself, whether to some other pawnbroker or not, does not appear. Bebing was not called as a
witness. His declaration might have thrown some light upon the conduct of the defendant. The
prosecution alleges that the ring was delivered to the defendant to be sold by him. The defendant
admits, while alleging that it was given to him to pawn, that he told the owner that he knew a person
(Vicenta Zialcita) who wanted to buy a ring. The defendant says that he offered to accompany the
owner to said person (Vicenta Zialcita). If the ring was given to him to pawn, why did he offer to take
the owner to a person who desired to buy it? That fact seems to contradict his statement that he
received the ring only for the purpose of pawning it.

We think the proof shows, beyond a reasonable doubt, not only by the witnesses for the prosecution
but also by the admissions of the defendant, the following facts:
That on the 2nd day of January, 1914, at about 12.30 p.m., the owner of the ring delivered it to the
defendant, to be sold by him, at a practice not less than P180 or P190, under the obligation to return
the same, of the purchase price, within about one hour thereafter; that the defendant did not return
either the ring or the purchase price within said time nor at any other time; that his failure to return
either the ring or the purchase price has resulted in great prejudice and damage to the owner.
This court has held in numerous cases that such facts show clearly that the defendant is guilty of the
crime of estafa and should be punished under paragraph 5 of article 535, in relation with paragraph
2 of article 534 of the Penal Code. (U. S. De Guzman, 1 Phil. Rep., 138; U. S. vs. Zamora, 2 Phil.
Rep., 582 U. S. Anacleto, 3 Phil., Rep., 172; U. S. vs. Singuimuto, 3 Phil., 176; U. S. vs. Ner, 4 Phil.
Rep., 131; U. S. vs. Ongtengco, 4 Phil. Rep., 144; U. S. vs. Aquino, 4 Phil., Rep., 402; U. S. vs.
Berry, 5 Phil., Rep., 370; U. S. vs. Leao, 6 Phil. Rep., 368; U. S. vs. Solis, 7 Phil. Rep., 195; U.
S. vs. Goyenechea, 8 Phil. Rep., 117; U. S. vs. Celis, 8 Phil. Rep., 378; U. S. vs. Rodriquez, 9 Phil.,
Rep., 153; U. S. vs. Da Silva, 10 Phil. Rep., 39; U.S. vs. Leyva, 10 Phil. Rep., 43; U. S. vs. Meez,
11 Phil. Rep., 430; U. S vs. Alabanza, 11 Phil. Rep., 475; U. S. vs. Perello, G. R. No. 5133 1; U.
S. vs. Melad, 27 Phil. Rep., 488.)
In the crime of estafa, as well as that of larceny, the punishment depends upon the amount or the
value of the article misappropriated or stolen. In the present case the owner asserted that she paid
P250 for the ring. There is no proof to the contrary. She offered to sell it, in the present case, for
P180 or P190. The ring may have been worth P250 at the time she purchased it. The value which
she placed upon it at the time she gave it to the defendant, we think should be considered its value
at that time, in the absence of other evidence, for the purpose of fixing the punishment.
The appellant makes an effort to show, inasmuch as Mr. Araneta, who gave the ring to him, was not
its owner, that he was not guilty of the crime of estafa, even though he misappropriated it. The crime
of estafa is committed, although the victim was not the owner of the property, but the holder or
broker simply, when it appears that the real owner was prejudiced by the disappearance of the
property. The fact is more particularly true when the person committing the illegal act knew that the
property did not belong to the holder but to some other person. U. S. vs. Almazan, 20 Phil. Rep.,
225.) In the present case the proof shows that while the ring was delivered to him by Manuel
Araneta, he knew that the owner was Alejandra Dormir.
The record does not show whether or not the ring was returned to its owner, in accordance with the
provisions of article 120 of the Penal Code. It is a general principle that no man can be divested of
his property without his own consent or voluntary act. In the case of Varela vs. Finnick (9 Phil. Rep.,
482) this court said, speaking through Mr. Justice Torres: "Whoever may have been deprived of his
property in consequence of a crime, is entitled to the recovery thereof, even if such property is in the
possession of a third party who acquired it by legal means other than those expressly stated in
article 464 of the Civil Code."
The only exception made by article 464 of the Civil Code seems to be where the property has been
pledged in a "monte de pieded" established under authority of the government. In such a case the

owner cannot recover the property without previously refunding to said institution the amount of the
pledge and the interest due. (Varela vs. Matute, 9 Phil. Rep., 479; U. S. vs. Meez, 11 Phil. Rep.,
430; U. S. vs. Perello, R. G. No. 5133; Arenas vs. Raymundo, 19 Phil. Rep., 46; Reyes vs. Ruiz, 27
Phil. Rep., 458.)
Whoever claims to have acquired title to property, real or personal, through some agent or person
not the real owner, must be prepared to show that the person of whom he purchased such property
had authority to transfer the same. (Manning vs. Keenan, 73 N.Y., 45; Meiggs vs. Meiggs, 15 Hun,
N.Y., 453; McGoldrick vs. Willits, 52 N.Y., 612; Succession of Boisblanc, 32 La. Ann., 109;
Loomis vs. Barker, 69 Ill., 360; Berthholf vs. Quinlan, 68 Ill., 297; Thompson vs. Barnum, 49 Iowa,
392; Bercich vs. Marye, 9 Nevada, 312; Voss vs. Robertson, 46 Ala., 483; Wheeler & Wilson vs.
Givan, 65 Mo., 89; Switzer vs. Wilvers, 24 Kansas, 383; 36 Am. Rep., 259.)
To the foregoing general rule, that no man can be divested of his property without his own consent or
voluntary act, there seem to be two owner has entrusted or delivered to an agent, money or
negotiable promissory notes have been delivered or transferred to some third innocent party.
This exception is apparently based upon the exigencies of commerce and trade. Money bears no
earmarks of peculiar ownership ownership. Its primary purpose is to pass from hand to hand as a
medium of exchange, without other evidence of its title. Negotiable promissory notes, so far as it is
possible, are intended to represent money, and, like it, to be a means of commercial intercourse,
unfettered by any qualifications or conditions not appearing on its face. (Banco Espaol-Filipino vs.
Tan-Tangco, 13 Phil. Rep., 628; Daniel on Negotiable Instruments, sections 769, 862; McMabon vs.
Sloan, 12 Pa. St., 229; 51 Am. Dec., 601.)
It is a fundamental principle of our law of personal property that no man can be divested of it without
his own consent; consequently, even an honest purchase, under a defective title, cannot resist the
claim of the true owner. The maxim that "No man can transfer to another a better title than he has
himself" obtains in the civil as well as the common law. (Pothier, Trite du Contrat de Vente, 1 N., 7;
Ersk. Inst., 418.) And hence it is now recognized everywhere in the United States, as well as in
civilized Europe, that a sale "ex vi termini" imports nothing more than that a bona fide purchaser
succeeds only to the rights of the vendor. (2 Kent's Commentaries, 324; Saltusvs. Everett, 20 Wend.,
N.Y., 267; 32 Am. Dec., 541; Gibson vs. Miller, 29 Mich., 355; Lancaster National Bank vs. Taylor,
100 Mass., 18; 97 Am. Dec., 70.).
1awphil.net

Second. Another exception to the general rule is based upon the doctrine of estoppel. An illustration
of this second exception would be where an man voluntarily placed property in the possession of
one whose ordinary business it is to sell similar property as an agent for the owners, In such a case
it is warrantable inference, in the absence of anything to indicate a contrary intent, that he intends
the property to be sold. For example, where the owner sends his goods to an auction room, where
goods of a like kind are constantly being sold, he would be estopped from recovering them in case
they were actually sold. (Pickering vs. Busk, 15 East., 38.) In all such cases, however, under this
exception, there must be some act or conduct on the part of the real owner, whereby the party
selling is clothed with the apparent ownership or authority to sell, which the real owner will not be
heard to deny or question, to the prejudice of an innocent third party, dealing on the faith of such
appearance. If the rule were otherwise, people would not be secure in sending their watches or

jewelry to a jewelry establishment to be repaired, or clothing to a clothing establishment to be made

into garments. (Wilkinson vs. King, 2 Campbell, 335; Pickering vs. Busk, 15 East., 38; Levi vs.
Booth, 58 Md., 305; 42 Am. Rep., 332.)
During the trial proof was presented to show that the defendant, in the year 1902, had been
sentenced to be imprisoned for a period of three years six months and twenty-one days, for the
crime of larceny, and that he had been conditionally pardoned by the then Governor-General, Mr.
Taft, on the 27th day of July, 1903. That proof was presented for the purpose of fixing the penalty to
be imposed upon the defendant. In view of the pardon, may the fact that the defendant was
sentenced be considered as a circumstance, for the purpose of increasing the penalty, in
accordance with the provisions of paragraph 17 of article 10, of the Penal Code? Article 130 of the
Penal Code provides that criminal liability is extinguished in several different ways: "(a) By the death
of the offender; (b) by service of the sentence; (c) by amnesty; (d) by pardon; (e) by pardon of the
offended party (repealed by section 2 of Act No. 1773); (f) by prescription of the crime; (g) by
prescription of the penalty."
In reading said article 130, we find in paragraph 3 that the liability which is extinguished by
amnesty, completely extinguishes the penalty and all its effects, while extinguishment by pardon,
during the period which the sentence would have lasted, except for the pardon, does not altogether
extinguish the penalty. There is a condition imposed by law, to the effect that the pardoned person
shall not live in the place of residence of the offended party, without the latter's consent, and that a
violation of that provision would work a revocation of the pardon. While we have been unable to find
any decisions of the supreme court of Spain upon the question which we are discussing, we find that
Viada (vol. 1, p. 315) says: "A pardon should not be an impediment to the consideration of
recidivation as an aggravating circumstance, for, according to article 130, paragraph 4, of the code,
a pardon only produces the extinction of the penalty, but not of its effects."
After due consideration of the provisions of article 130, together with the views of Viada, we are
inclined to the view that the pardon does not operate to defeat the consideration of the former
conviction as an aggravating circumstance.
The lower court imposed the penalty in the medium degree. Considering the aggravating
circumstance of recidivation, the penalty should be imposed in the maximum degree. Therefore, the
sentence of the lower court is hereby modified, and the defendant is hereby sentenced to be
imprisoned for a period of six months and one day of prision correccional and to pay the costs.
Arellano, C.J., Torres and Araullo, JJ., concur.
Carson and Moreland, JJ., dissent.

17. P vs gerolaga 263 scra 143

THIRD DIVISION
G.R. No. 89075 October 15, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROBERTO GEROLAGA, EFREN ATIVO and REMEDIOS RUADO, accused-appellants.

PANGANIBAN, J.:p
In this Decision, this Court emphasizes the need to review the facts and details of appealed
cases with meticulous, laser-like precision. While, as a rule, the findings of fact of trial courts
are accorded great respect by appellate tribunals, still, the latter must wade through the
mass of evidence in order to ensure that the trial court did not overlook or misapprehend little
details that could spell the innocence of the accused, or at least mitigate their guilt. This is
but consistent with the doctrine that all doubts must be resolved in their favor. Indeed, it is far
better to set free a thousand guilty persons than to unjustly punish an innocent one.
Realizing that this direct appeal did not have the benefit of the usual "filtering" layer of the
Court of Appeals and noting that the assailed judgment of conviction for murder was based
purely on circumstantial evidence as well as on an uncounselled confession of guilt, we
pored over the evidence, particularly the voluminous transcripts of stenographic notes, and
came to the ineludible conclusion that indeed the court a quooverlooked and/or
misapprehended some crucial bits of evidence and circumstances which when properly
considered led to the acquittal of two of the appellants, and the conviction of the third for the
less damning crime of homicide instead of murder.
The Antecedents
The twists and turns of this case are absorbing enough to the mistaken as the plot of a
storybook thriller or a movie script. They are not. Rather, they are the flesh and blood drama
of real life.
For the bizarre fatal stabbing of Antonio Sy on March 21, 1987, appellant Remedios RuadoSy, the deceased's sister-in-law, along with her former employee, Roberto Gerolaga and her
houseboy, Efren Ativo were charged with murder under Article 248 of the Revised Penal
Code. The Information 1 lodged with the Regional Trial Court of Masbate, Masbate on June 15,
1987 and docketed as Criminal Case No. 5247 reads as follows:
That on or about March 21, 1987, in the morning thereof, at the poblacion of the
municipality of Aroroy, Province of Masbate, Philippines, within the jurisdiction of this
court, the above-named accused conspiring and helping one another, with intent to
kill, evident premeditation, treachery and in consideration of a price or reward, did
then and there willfully, unlawfully and feloniously attack, assault and stab one
Antonio Sy y Tan with a double bladed dagger, hitting the latter on the chest,
abdomen and other parts of the body, thereby inflicting wounds which directly caused
his instantaneous death.

Contrary to law.
All the accused pleaded "not guilty" during the arraignment on August 4, 1987. The
prosecution presented seven (7) witnesses:
(1) Dr. Emilio Quemi who testified and submitted a post-mortem examination (Exh. "A")
and certificate of death (Exh. "C"), which showed that the victim sustained seven (7) wounds,
five (5) of them fatal, to wit: 2
1. Stab wound penetrating, measuring about 3 inches wide located at the epigastric
region.

2. Stab wound, penetrating the abdominal cavity, measuring about 1 1/2 inches,
located at the left abdominal wall, a little above and lateral to the navel.
3. Stab wound, measuring about 2 inches wide, penetrating located at level of left
costal arch, at its lateral side.
4. Stab wound, measuring about two inches, penetrating the thoracic cavity, located
just below the right clavicle.
5. Stab wound, about one inch wide, penetrating, located at little anterior to the right
axillary fossa.
6. Incised wound, measuring about 1/3 inch wide located at the left side of the
thoracic vertebrae at the level of the 6th.
7. Incised wounds, located at the palmar surface of the fingers of the right and left
hand.
(2) Pfc. Estercacias (sometimes spelled "Estercasio") Pimentel, Jr., who was the first police
officer to arrive at the scene of the crime.
(3) Police Sgt. Felix Alonzo
(4) Pat. Tagumpay Mendoza
(5) Mrs. Conchita Sy Chua, younger sister of the victim
(6) Mrs. Benedicta Castillo Sy, and
(7) P/Sgt. Edgardo Tugbo.
On the other hand, testimonial evidence for the defense was given by six (6) persons:
(1) Pfc. Pimentel who was called back to the stand

(2) Accused Roberto Gerolaga

(3) Co-accused Efren Ativo
(4) Co-accused Remedios Ruado-Sy
(5) M/Sgt. Noli Cabug, and
(6) Emilio Sy, the victim's brother and husband of the accused Remedios R. Sy.
On December 28, 1988, the trial court 3 rendered a Decision finding the three defendants guilty
beyond reasonable doubt of the crime charged and imposing on each of them the penalty
of reclusion perpetua and the payment in solidum of an indemnity in the amount of P30,000.00 to
the heirs of Antonio Sy without subsidiary imprisonment in case of insolvency.
The Facts
Thirty-one-year-old Antonio Sy was the youngest brother of Emilio, Arturo, Jose, Teddy,
Anita, Teresita, Norma, Lourdes and Conchita Sy. 4 Antonio was married to Benedicta Castillo.
Childless, the couple lived apart from each other. Benedicta stayed in Cabangcalan, Aroroy,
Masbate where she was assigned as a teacher while Antonio lived with his eldest brother, Emilio
and the latter's wife, Remedios Ruado, who was also called Remy. While Benedicta claimed that
Antonio was a businessman engaged in buying and selling men's and ladies' wear for which he
earned a net income of around P3,000 a month, 5 his brother Emilio and the latter's wife Remy
swore that Antonio was jobless and that he was dependent on them and given an allowance of
P25.00 a day. Antonio had an insatiable hunger for vices gambling, illegal drugs, women.
Hence, his allowance was always insufficient for his needs. 6
At around 6:00 o'clock in the morning of March 4, 1987, as Remy was arranging her
merchandise in her store on the ground floor of her residence in Aroroy, Masbate, a boy
around fifteen years of age approached her, handed her a letter and then hurriedly left. As
translated by the court stenographer, the letter in Masbateo reads: 7
MARC
H 4,
1987
COMM
ANDER
NPA
HELEN
LIPANT
O
REMY:
(MEL)

WE WILL ASK HELP FROM YOU WORTH P3,000 PESOS WE WILL EXPECT IN
TWO DAYS.
I AM ONLY ASKING YOU NO ONE MUST KNOW OR INFORM ANYBODY FOR IF
IT HAPPENS MANY LIVES WILL BE LOST? ESPECIALLY THE MILITARY. THEY
WILL BE PITIFUL? AND WE WILL GET YOU IF YOU FAIL? THEN YOU PLACE
THE MONEY IN ENVELOPE IN YOUR GARBAGE CAN AT 9:00 AT NIGHT ON
SATURDAY.
THANKS
GOD BLESS YOU = ALL
DON'T BE AFRAID (YOU) WILL NOT BE HURT IF YOU FOLLOW THE ORDER? 8
After reading the letter, Remy gave it to her husband. Emilio decided that (a) it should
be presented secretly to the authorities for entry in the police blotter, (b) their house
should be guarded, and (c) the amount of P3,000 should be given to anyone who
could apprehend Helen Lepanto. 9
Accordingly, the couple called the police. When Pfc. Estercasio Pimentel, Jr. arrived,
he was shown the letter. In the presence of Emilio, Remy asked Pfc. Pimentel's help in
having their house guarded and placing their premises under surveillance. She also
asked him "to apprehend and identify" Helen Lepanto and to bring the letter to the
municipal building in order that it could be officially recorded in the blotter.
Fear gripped the couple. Emilio asked Remy to tell their houseboy, Efren Ativo, to be
vigilant especially at night and to arm himself with a 2" x 2" piece of wood as a club or
weapon. The couple closed their store at 6:00 p.m. instead of the usual 8:00 p.m. Upon
her husband's prodding, Remy set aside P3,000 in one-hundred-peso bills. 10
Following the instructions in the aforesaid letter, Emilio instructed Remy to place the
P3,000, which was in an envelope, inside the garbage can at about 6:30 p.m. on March
6, 1987. Emilio told one of their sales-girls to inform Pfc. Pimentel that the money had
been placed in the garbage can and that he should guard it. However, the following
day, Pfc. Pimentel returned the money to them with the information that nobody went
near the garbage can that night. Emilio then told Remy to verify this information with
the station commander. The latter confirmed that their surveillance yielded negative
results. When Emilio was informed of this, he asked Remy to go back to the station
commander and to retrieve the letter in order that it could be machine-copied in
Masbate.
Thus, Remy got back the letter on March 9, 1987, and proceeded to Masbate to have
the letter machine-copied. She returned to Aroroy at around 11:00 p.m. The following
day, she met Sgt. Noly Cabug, a member of the 270th Philippine Constabulary
Command in Aroroy, 11 who assured her that he would uncover the identity of Helen
Lepanto. However, in spite of two days' sleuthing, the intelligence personnel could not

produce any result from their

surveillance. 12

While the Sy couple was officially informed that the police had no leads, the latter in
fact harbored some suspicions. In the evening of March 6, 1987, Pfc. Pimentel and Pat.
Cadiz kept watch in the house across from the Sy residence while Patrolmen Maglente
and Tugbo secretly stationed themselves at a street corner near the Sy residence. At
around 9:00 o'clock that evening, Pfc. Pimentel saw Antonio Sy coming from the
house of Benny Tuason. Just before entering the Sy residence, Antonio approached
the garbage can and looked at it for about five to ten seconds. He peered at the
garbage can for two more times at 9:30 p.m. and then at around 10:00 p.m. when
the electric light was switched off. The police stopped their surveillance at 2:00 a.m.
but Antonio Sy did not return to the garbage can for the fourth time. 13
When Pfc. Pimentel reported this to his chief on March 7, 1987, the latter concluded
that Antonio Sy must have been "Commander Helen Lepanto." But Pfc. Pimentel
himself did not share the same belief otherwise he would have apprehended Antonio
Sy the moment he went near the trash can. That same day, when Pfc. Pimentel
returned the P3,000.00 to Remy, he did not reveal to her the conversation he had with
his chief. 14
At 8:00 o'clock in the morning of March 15, 1987, another boy approached Remy in her
store. The child conveyed the message that she was to prepare the amount to P3,000
which "they" had not taken on the 6th of March, and to drop the money on the 20th.
The boy hastily left after warning Remy not to inform the authorities about this new
arrangement. As before, Remy related to her husband what had transpired. Emilio
asked her to follow the new orders, but he insisted that, instead of placing the money
in the garbage can, she should give it to their houseboy, accused Efren Ativo, because
he "slept in the kitchen". Emilio added that anyone who could "identify or apprehend"
Helen Lepanto should be given the money as a reward. 15
At around 4:00 o'clock in the afternoon of that same day, accused Roberto Gerolaga
entered the store to buy a t-shirt and some "spare parts." Having been Gerolaga's
former employer, Remy felt free to tell him that she had received a "threat." She
begged him to help "apprehend or identify" Helen Lepanto.
Gerolaga told Remy that she was asking something dangerous because Lepanto
might be a member of the NPA Sparrow Unit. However, she managed to convince
Gerolaga to help watch over their house. She intimated to him that whoever could
"apprehend or identify" Helen Lepanto, be he a PC soldier, a policeman or a civilian,
would be given a P3,000 reward. Remy further informed Gerolaga that the money
would be placed in the garbage can on the 20th of March and hence, whoever would
pick up the envelope in the said container could be Helen Lepanto or his/her
companions. 16

Gerolaga, a 25-year-old minibus conductor who was also known as Edgar, 17 testified
that at around 7:00 o'clock in the evening of March 20, 1987, he went for a walk at the pier,
drank beer for about an hour at a little store and then went to a street corner near the Sy
residence. Because he saw no one approach the garbage can, Gerolaga went back to the
pier where there was a dance. He left the dance at midnight and went back to the bus
terminal. Thence, he returned to the corner to watch the Sy house.
It was then that he saw someone approach the garbage can. The man had a flashlight
which he beamed at the container. Then, as the stranger entered the gate of the Sy
residence, Gerolaga followed silently. The person went to the well, fetched water and
washed his feet. From a distance of about three (3) meters, Gerolaga greeted him,
"Good evening, Commander Helen Lepanto." Surprised, the man turned his head and
exclaimed, "Why do you know me?" Gerolaga retorted that he knew him very well
that he was Antonio Sy. Immediately, Antonio pulled out a double-bladed knife and
tried to stab Gerolaga but the latter evaded the thrust. He caught Antonio's hand and
held him in a bear hug. Antonio kept on shouting, "I will really kill you, I will really kill
you." Sensing that Antonio was strong, Gerolaga shouted for help. He twisted
Antonio's hands and pushed the one holding the weapon upon Antonio's chest
several times. When Gerolaga felt Antonio weakening, he released him, and the latter
fell on the ground face down.
Gerolaga pulled out the bladed weapon and walked towards the gate. It was there that
he met Efren Ativo. The latter angrily demanded to know what he was doing inside the
premises. Gerolaga told him that he had already "identified" Helen Lepanto. Gerolaga
asked Ativo for the P3,000, but Ativo was incredulous. So Gerolaga led Ativo to the
well near which Antonio lay dead. It was only then that Ativo went inside the house,
took the money and handed it to Gerolaga.
Gerolaga went to the bus terminal where he took off his bloodied shirt and pants and
placed them together with the weapon in a plastic bag. At 2:00 a.m., he boarded the
San Agustin minibus which promptly departed. Arriving in Luy-a, Gerolaga entrusted
the plastic bag to a co-worker, Rafael Francisco, who alighted there, with instructions
that the clothing in the bag should be washed by Francisco's mother. 18
After Gerolaga left, Ativo, still trembling, closed the gate. At 5:00 o'clock that morning,
he knocked "at the stairs near the door" of Remy's room. He informed her, her
husband and his sister Norma, that Antonio Sy was dead. Emilio instructed everyone
not to touch the body until the authorities arrived. Ativo summoned Pfc. Pimentel but
did not tell him about Gerolaga's participation. 19
The police officer found the body of Antonio sprawled on the floor. The victim, lying
about a meter away from the well, was still holding a flashlight in one hand. Pfc.
Pimentel examined the body to determine the number of wounds it sustained. Ten (10)
meters from the body, he found a scabbard.

The body of the victim was in a state of rigor mortis and inside a coffin when Dr.
Emilio Quemi, medical specialist at the provincial health office, arrived to conduct the
post-mortem examination.20 In his report, 21 Dr. Quemi indicated that Antonio Sy sustained
five (5) stab wounds in the epigastric region, above the navel, at the lateral side of the
costal arch, below the right clavicle and the right axillary fossa, and incised wounds at the
left side of the thoracic vertebrae and at the "palmar surface of the fingers of the right and
left hand(s)." He established the cause of death as "shock due to massive external
hemorrhage, caused by multiple wounds."
On March 23, 1987, the Aroroy police received information that Gerolaga had been
looking for Antonio Sy at around 11:00 o'clock "on the night of March 21 (sic)." 22 The
police searched for Gerolaga and learned that he had hied off to Barangay Luy-a. Upon
reaching that place at 4:00 o'clock in the afternoon, the police were told that Gerolaga had
proceeded to Crossing, Mandaon, where he was finally apprehended by Pat. Maglente.
At the police station, the authorities learned from Gerolaga that the double-bladed
weapon used in the assault was in the possession of Juanita Amaro, mother of Rafael
Francisco. Juanita Amaro subsequently turned over the 8-inch long weapon as well as
the pants and shirt of Gerolaga to Pat. Edgardo Tugbo and Pat. Mendoza. 23
Gerolaga was investigated by Sgt. Felix Alonzo. He readily admitted killing Antonio Sy,
and also implicated Mrs. Remedios Ruado-Sy, saying that she gave him through Efren
Ativo the P3,000 after he killed Antonio Sy. However, Gerolaga surrendered only
P600 24 to Sgt. Alonzo as the rest of the money had been spent. 25
Before taking Gerolaga's statement, 26 Sgt. Alonzo informed him of his constitutional
rights to counsel and against self-incrimination. However, Gerolaga told him that he did
not as yet need a lawyer. The statement he made was signed in the presence of his mother
Encarnacion Letada Gerolaga and his cousin Ermila Gerolaga Manlangit, who affixed their
thumbmark and signature, respectively, on the certification appended to the statement. 27
Also on March 23, 1987, at around 8:00 o'clock in the morning, a fifteen-year-old boy
approached Remy in her store. They boy told her that their "head" had ordered that
Remy should write a letter to her in-laws "admitting the killing" of Antonio Sy. Remy
protested, telling the boy that it was her husband's idea that the P3,000 be given to
whoever could "apprehend and identify" Helen Lepanto, but the boy left immediately.
Distraught, Remy told her husband about the boy's message. Enraged, Emilio asked
whether she caused the killing of his brother. Remy denied the accusation and
reminded Emilio of their agreement to "find ways to identify" Helen Lepanto and to
give the P3,000 to whoever could identify him.
Emilio ordered her to prepare the letter and to follow the instructions of the NPA as it
was the only way by which their entire family could be spared. Remy went upstairs,
prepared the letter and showed it to her husband. The boy came for the letter at 4:00
p.m. of the same day.

At 5:30 p.m., the boy was back. He told Remy that their head was "not convinced" by
her short letter and that she should make it longer. She should also include the letter
of Helen Lepanto and "state what had happened in our family." The boy warned her
once again that she should not report to the authorities and that, should be refuse to
follow their instructions, "they" would "get" her and her family.
Again Remy relayed the instructions to her husband. Emilio, expressing pity for her,
told her to follow the NPA instructions, reiterating that this was the only way to save
the family. She went upstairs and prepared the letter on three sheets of yellow pad
paper written back-to-back. 28 As translated by the court interpreter, it reads:
March 24, 1987
Dear Teresing, Tuache, Ting, Long,
I write you this letter, because I want you to know the truth of Tony's death. You
know, on March 4, Tony sent me a letter. Here you may read, because he
planned to kill me. Good, he was able to tell that to my "Comadre" that during
the Juniors Ball of Chong (daughter of Remy) he would stab me. If luck was
against me I should have been the object of your vigil instead of him. I have
been asking help from "Sto. Nio" to save me because I have still many
obligations yet to my children. I prayed to God that if I am wrong, He should
punish me, but if he is wrong, he should be punished instead.
You know this fellow was used to "Barkadas", gambling, disco and he had also
a girlfriend in Joan's. He was always worried on how to acquire a large amount
of money because of his vices, such was the reason why I prepared myself to
kill or be killed, I told him that if my life was what he was after, it was up to him
to find out who would reach the base first(.) I told your "Manoy" to settle this
case before we repent it. Well in the afternoon of that day Tony and Baby had
an altercation in connection with the construction of his house because he did
not agree to give 1 meter allowance to his elder brother's piece of lot. But I told
them, "It's up to you." Then Baby said, "Mama, get Tony because this is again a
big problem. Manoy, I have prayed to all the Gods in order that Tony should
reform, but there was no good result." I told Norma, you have given him
P50,00. He would go to the disco house, he might be stabbed there thus all his
problems will be finished. The thorns in your heart will also be pulled. So, God
heard our prayer. He met an adversary.
The truth is that last March 4, Tony wrote me a letter, that a person who was
working under me before, would come here to buy spare parts. I did not know
why I was able to tell Edgar that I had a problem because I received a letter
from the NPA Commander, Helen Lepanto. I let him read the letter. "Sus, Manay
Remy, this letter is asking for the amount of P3,000.00, I'm going to put that
person down." "Yes", I answered, "because anyway I am going to be killed is a
matter of who will be the first (sic). "My bayaw" was the one who sent this to

me," said I. "Sus, its difficult, because he is like a snake, a dangerous one.
What do you say? Aba, Manay Remy, what a pity on you! You are like a cock
who is induced to fight but has no chance to win." So, he sided with me and
killed Tony. When he came from the disco house, I handed to him the reward of
P3,000.0 in order that he would not be angry with me. So, it appears that I am
the mastermind, but it was only a matter of who got ahead if it was a game.
Thanks
You know, Tony had many plans. He wanted to kill Baby. He wanted to kill
Doctor, because according to him, he is the one keeping the papers. Baby, he
said, is tight handed when it comes to money. He got angry with me, because
when I gave him his P20.00 allowance, he wanted P50.00 and later on P100.00. I
told him, "Tony, Baby might be angry with me, because you are given the
amount more than you are allowed," The following morning, I gave him P300.00
and I said, "This is the last time that I will give you. You ask from my other inlaws (brother and sisters of Tony). As for me, I don't like to give you anymore."
Aba, by March 4, there was a letter that I would be kidnapped and somebody
was told that I would be killed before the end of March. I was determined then
to kill or be killed for your own good, for my children's good, and mine. I have
many problems yet for my children, that is why I choose to finish him for he
had no problems yet but make trouble to me and to all of us. It is said that
Teresing's worries may last until her death. So, all of us have threats. We are
all in a pitiful situation.
Understand me. I'm writing you this so that you will know.
Thanks
R
e
m
y
T
.
R
u
a
d
o
Even if your younger brother was like a snake in your family, I did not do
anything because he is your blood, I am a different person. Ruado, you know.
But when it come to service I did my best. I sent for Teresing in order to

explain to each an(d) every one of you, but you did not like because you are
only thinking of what I have done. You know, what Tony said, that he would kill
me before the end of March. We competed only as to who would reach the
base first.
Here is his letter on March 4.
NPA
Comm
ander
Helen
Lepant
o
Remy:
Mil:
We are asking from you as a help for us the amount of P3,000.00. You send it
within two days.
I want you not to reveal this to anybody or else many lives will be lost
especially the military. It would be a pity to them and we will get you if you can
not produce this. Then you put the money inside an envelope and placed it in a
trash container, at 9:00 o'clock on Saturday night.
Salamat,
God
bless
you all.
Don't be afraid. You will not be hurt if you follow my order.
This is the letter that was sent in duplicate.
I have no ill-feeling if you want me to be imprisoned (sic). Just okey. If you
accuse me, just okey also. I'll face you in the government in whatever action
you may take against me. I'm alone, but I think God will not forsake me. But I
tell you that I am like this, because I have given you too much pity. In truth,
Tony has brothers and sisters, but you did not do anything to correct his
mistake, grave or not. Like when he held up your elder brother. You kept that in
secret for he is your blood your surname and you will be put in shame. Now,
it's too late to repent, because he was able to meet somebody to stop his
wrong deeds.

I enclosed you in my two arms. Even if you will not be asked, something is
loosen in your hearts, beginning now. I know that you have an ill-feeling
against me, but if it were in your place, you would find out a remedy.
God will judge us all and God knows how much I loved Tony. Even when Pa
had a letter and telegram not to allow him in the house, I still admitted him,
because I took pity on him. But at the end, I was still bad. Well, my brothers
and sisters I hope you understood me already. We just played chess and I won.
To all of you, forgive me. Okey, if you don't want to see me, God is responsible
to all of you.
Thanks
S
i
s
t
e
r
i
n
l
a
w
2
9

After reading the letter, Emilio asked Remy to give it to his younger sisters. Remy
prepared an envelope and was about to deliver it to her sisters-in-law when, at 9:00
a.m., another unnamed boy came back, asking for the letter. He returned it to Remy at
10:00 a.m. with the information that his chief considered the letter to be "alright".
Emilio then ordered their daughter Haydee to deliver the letter to his sisters. 30
In the afternoon of March 24, 1987, as Remy and others were going over the personal
belongings of Antonio Sy which, in accordance with Chinese traditions and belief,
should be burned during his burial, they found a wallet. Inside it was a letter to a Miss
Mecenario which was written in the same handwriting as the letter sent to Remy by
"Helen Lepanto". From Gerolaga's revelation and this letter, Remy concluded that
Helen Lepanto was none other than Antonio Sy. 31
As earlier stated, the trial court convicted the defendants-appellants of murder. It
discredited Gerolaga's claim of self-defense, hold that Antonio Sy "was found dead by
the police authorities sprawled face upward a meter from the well holding a flashlight
in his right hand." 32 To the trial court, such fact belied Gerolaga's claim of self-defense

because Antonio Sy could not have pulled the dagger from its scabbard with his right
hand holding the flashlight. The scabbard was found ten (10) meters away from the body
of the victim and not tucked into his waist or near his body, which would have been the
case if the weapon indeed belonged to the victim. Moreover, the court opined that Antonio
Sy, a Chinese businessman, could not have kept a "locally made dagger and scabbard."

The trial court also faulted Gerolaga for not surrendering to the authorities
immediately. Furthermore, his plea of self-defense "does not square with the
commission of the crime induced by reward or prize." 33
In holding that the three defendants conspired in the killing of Antonio Sy, the trial
court indicted Remy for providing the monetary reward which Ativo delivered to
Gerolaga, the actual assailant. The trial court was convinced of Remy's culpability by
the tenor of the letter she wrote admitting participation in the crime. As to Ativo, the
court a quo emphasized his failure to report the incident immediately to his employers
and to the police authorities.
The defendants filed a motion for new trial on the ground of newly discovered
evidence. 34 They wanted to present on the witness stand one Frankie Escarlan, Jr. who
allegedly witnessed the killing of Antonio Sy. On May 19, 1989, the trial court denied the
motion on the ground that the claimed newly discovered evidence would be merely
corroborative of Gerolaga's self-defense. 35 Hence, the instant appeal.
The Issues
In their well-presented and convincing brief consisting of 166 pages, appellants
specified the following alleged errors of the trial court: 36
(1) The trial court erred by, in, and for, rejecting the valid and clearly tenable claim
of self-defense, and thus, and with patent partiality, it erroneously rendered its
judgment convicting all of the accused in this case, despite the insufficiency of the
evidence for the purpose;

(2) The trial court erred by, in, and for, finding and ruling that conspiracy
obtains in this case, without clear and sufficient factual and legal basis, and
thus, with manifest bias and in grave error, it held all of the accused criminally
liable as co-principals; on the contrary, upon the entire and purely admissible
evidence, the applicable laws and jurisprudence on the matter, conspiracy
does not lie in the case at bar;
(3) The trial court erred by, in, and for, not finding and ruling that each, and all
of the accused acted without freedom, then being under the impulse of an
uncontrollable fear of an equal or greater injury, in their case, respectively, or
probable death;

(4) The trial court erred by, in, and for, not finding and ruling that accused Efren
Ativo, more so, Remedios Ruado-Sy, acted in obedience to lawful orders for
some lawful purpose in this case at bar;
(5) The trial court erred, consequently, in its decision by, in, and for, having
convicted all the accused for murder through conspiracy, or by, in, and for, not
having acquitted all of the accused herein, upon the ground of reasonable
doubt, it having failed or refused to consider exclusively, only the purely
admissible factual and more credible circumstantial evidence obtaining in this
case, and to observe with liberality, consistent with the proper dispensation of
criminal or penal justice, the law, jurisprudence, and the fundamental precepts,
as are applicable to, or in the case at bar.
In fine, the issues could be condensed into three :
(1) Is Gerolaga's theory of self-defense sufficient, credible and valid?
(2) If not, was the crime committed murder or homicide? More specifically, were
evident premeditation, treachery and/or price and reward amply proven by the
prosecution?
(3) Are appellants Remedios Ruado-Sy and Efren Ativo, who were unquestionably
absent from the crime scene, equally as guilty as appellant Roberto Gerolaga who
while admitting the killing of the victim proffers self-defense as a justifying
circumstances?
The Court's Ruling
First Issue: Gerolaga's Theory of Self-Defense
At the outset, it should be pointed out that the prosecution did not (could not?)
present any eyewitnesses to the crime. The circumstances prior to and those
obtaining during the actual commission of the felony were established mostly by the
defense. This happened because of appellants' theory that the killing was justified by
self-defense. As such, the resolution of this case hinges to a large extent on the
credibility of the appellant's witnesses. However, while the determination of the issue
of credibility has always depended on trial courts and appellate courts are, as a rule,
bound by such findings, we realize that in the present case, the conviction of the
accused was based on pure circumstantial evidence and on an uncounselled
confession of guilt. On account thereof, we were constrained to pore over the
evidence, and arrived at the conclusion that the trial court misapprehended critical
bits of evidence and circumstances which when considered correctly leads to a
modification of the judgment of conviction. We thus emphasize the need for all courts
to scrutinize every bit of evidence with meticulous care and analyze each case with
deliberate precision and thoroughness to spare the innocent and/or mitigate the
penalty of the guilty.

With the foregoing caveat, we shall first pass upon appellant Gerolaga's theory of selfdefense. When such defense is invoked, the burden of evidence shifts to the accused.
He must rely on the strength of his own evidence and not on the weakness of the
prosecution's. Even if the latter were weak, it could not be disbelieved after his open
admission of responsibility for the killing. 37
In the present case, it was duly proven that Gerolaga was unarmed when he entered
the Sy residence to confront the victim. 38 It was also clearly established, through Emilio
Sy, that Antonio owned the double-bladed knife, its scabbard and the flashlight found at
the crime scene. 39 Because Gerolaga surprised Antonio by disclosing the latter's
sobriquet as he was washing his feet, and because such disclosure came from an intruder
in the Sy residence, it is indeed not improbable that Antonio initially attacked Gerolaga.
However, to appreciate self-defense in favor of an accused, the following requisites
must be concurrently and clearly proven: (1) unlawful aggression on the part of the
victim; (2) reasonable necessity of the means employed to prevent or repel it, and (3)
lack of sufficient provocation on the part of the person defending himself. 40 In this
case, even if the first and third requisites were to be appreciated in favor of appellant
Gerolaga, the second requisite had not been met. There was no reasonable necessity to
inflict upon Antonio Sy numerous wounds, five of them fatal. 41 Because Gerolaga himself
was unscathed, the wounds sustained by Antonio Sy certainly negates the former's claim
of self-defense. 42Moreover, the justifying circumstance of self-defense may not survive in
the face of Gerolaga's flight from the crime scene, his concealment of the weapon and his
failure to inform the authorities of the incident. 43
Second Issue: Murder or Homicide?
The sole key to appellant Gerolaga's exoneration having been disposed off,
appellants' exact criminal responsibility must now be determined.
As defined by Art. 248 of the Revised Penal Code, murder is the crime committed by a
person who kills another "in consideration of a price, reward, or promise." Said
qualifying circumstance of price or reward equally affects both the offeror and the
offeree 44 the former becomes a principal by inducement and the latter, a principal by
direct participation.
In this case, the prosecution attempted to establish that Gerolaga killed Antonio Sy for
the reward. In his brief, the Solicitor General even quoted the following portion of
Gerolaga's testimony to support the theory:
Q And when you said that you are going to help, the help that
you are going to do is to kill Helen Lepanto?
A Yes, sir.

Q And it was also your desire to kill Commander Helen Lepanto

because you will received (sic) the Three thousand (P3,000.00)
pesos, is it not?
A Yes, sir. 45
However, that portion of Gerolaga's testimony should have been considered in the
context of his entire testimony as well as all the pieces of evidence presented at the
trial, in the same manner that it should have been considered under the basic
principle in criminal law that all doubts shall be resolved in favor of the accused.
Gerolaga knew the purpose for which Remy and her husband offered the P3,000.00
reward. Thus, after testifying that he expressed to Remy his fears about looking for
and identifying NPA Commander Helen Lepanto as the latter might be a member of the
dreaded Sparrow Unit, Gerolaga said:
Q So what did Remedios Ruado say if she said anything?
A Mrs. Ruado answered that she must be helped because this
amount asked by NPA will be given to whoever who (sic) can
apprehend that Helen Lepanto. (Emphasis supplied) 46
Pressed by the prosecution to admit that he "desired" to kill Commander Helen
Lepanto for the reward of P3,000, appellant Gerolaga demurred as follows:
Q When you entered the gate following that person, you were
thinking that the person you were following was Commander
Helen Lepanto? Is that what you want the Court to understand?
A Yes, sir.
Q And in following him with the intention of killing, you want to
tell us that you do not have any weapon?
A I have no intention to kill him. What I have in mind is to
recognize him and identify him and to report to the policemen.
ATTY. BRAVO (continuing)
Q You mean you were not afraid to follow up (sic) Commander
Helen Lepanto whom you believe to be a member of the NPA
when your intention is to kill him and that Helen Lepanto is
armed?
A What I wanted during that night is that to identify and
recognize him because I had knew (sic) him I will (sic) not do
harm to him because we were friends. 47(Emphasis supplied.)

Appellant Gerolaga then proceeded to narrate that it was only when "Commander
Helen Lepanto" spoke that, by his voice, he recognized the stranger to be Antonio Sy,
his friend. But because Antonio Sy immediately lunged at him with a knife, appellant
Gerolaga responded accordingly.
We are thus faced with a situation where self-defense is discredited because of the
number of wounds inflicted upon the victim. However, there are several
circumstances, proven by the defense and unrebutted by the prosecution, indicating
that Gerolaga intended only to identify and recognize, and not to kill, the victim. These
circumstances include appellant Gerolaga's entering the Sy residence unarmed and
the reflex action of Antonio Sy in lunging at the appellant on account of his
unexpected detection and identification. In such a situation, the law tilts the scales of
justice in favor of the perpetrator of the offense. 48 Consequently, because appellant
Gerolaga had been impelled by the prospect of a monetary reward merely
for identifying the source of the Sy couple's woes, he may not, in the same breath, be
deemed as having intended to kill Antonio Sy for a price. He killed Antonio Sy in reaction
albeit extreme to the violent attack launched by the deceased. The qualifying
circumstance of price or reward in regard appellant Gerolaga may not, therefore, be
counted against him.
In view of the absence of proof beyond reasonable doubt showing the evident
premeditation and treachery alleged in the Information but considering his owning up
to the killing of the victim, appellant Gerolaga may be held liable only for the crime of
homicide, not for murder as charged.
The qualifying circumstance of price or reward may not likewise be appreciated
against appellants Ruado-Sy and Ativo. Both testified that the money was meant to
encourage people to "identify and apprehend" Commander Helen Lepanto. Even
Emilio Sy, who was allowed to testify after his defendant wife had granted
permission, 49 swore that his wife did not entertain any idea of killing Commander Helen
Lepanto. She asked only for the latter's "identification and apprehension." 50 Such fact was
buttressed by Pfc. Pimentel who, after the police had formed the surveillance team,
returned to Remy to ask what police services she needed. He testified as to the
conversation that transpired:
Q What did Mrs. Ruado answer to that?
A Mrs. Ruado said that she will cooperate and she told us that
whoever among us could apprehend Lepanto that Three
Thousand (P3,000.00) pesos she (sic) asked will be given to us
as a consideration for our services. 51
Money offered or paid by anyone as a "sort of an expression of . . . appreciation of
sympathy or aid (gratification)," may not be considered as a recompense for
participation in a crime. 52 In the face of the prosecution's relentless effort to discredit her
testimony during the trial, appellant Ruado-Sy tenaciously stuck to her repeated statement
that, in line with her husband's idea, she intended the P3,000.00 to be a reward for

whoever could "identify and apprehend" Commander Helen Lepanto. That no criminal
intent may be ascribed to her in setting aside the P3,000.00 as reward is supported by the
fact that appellant Ruado-Sy immediately referred the letter of Commander Helen Lepanto
to the police authorities and even offered them the same amount as a recompense for the
identification and apprehension of the author of the letter.

Third Issue: Culpability of Ruado-Sy and Ativo

Neither may appellants Ruado-Sy and Ativo be held criminally liable on the basis of
appellant Gerolaga's sworn statement implicating his co-accused in the crime, as it
was executed without the assistance of counsel. The right to counsel has been
constitutionalized to curb duress and other undue influence in extracting confessions
from a suspect in a crime. 53 In accordance with the provisions of Sec. 12(1) of the 1987
Constitution, a waiver of the right to counsel must be in writing and executed in the
presence of counsel. 54 Indeed, any waiver of the right to counsel without the assistance of
counsel has no evidentiary value. 55 Hence, appellant Gerolaga's waiver of the same right,
even if executed in the presence of his mother and cousin, is void and has no legal effect.
The trial court's reliance on appellant Ruado-Sy's letter of March 24, 1987 as a basis
for her conviction is misplaced. A reading of the letter be-speaks of no more than the
rambling thoughts of a clearly apprehensive wife. That she admitted she was ready to
"kill and be killed" may not be considered as an accurate gauge of the existence of
any criminal intent on her part. The letter was written under understandably
overpowering anxiety and apprehension on account of her possible liability for the
death of Antonio Sy, her in-laws' anger at her and her fear of reprisal from them, and
her failure to neutralize the NPA threat. Also, as correctly pointed out by the Solicitor
General, 56 it was written three days after the crime had been committed when appellant
Ruado-Sy already had more than an inkling as to the true identity of Commander Helen
Lepanto. Furthermore, her claim that it was returned to her in order that she could
lengthen the letter is buttressed by its format. Appellant Ruado-Sy's signature appears in
the middle of the letter and, in accordance with the directive given her through the boymessenger, she incorporated the contents of the March 4, 1987 letter of Commander Helen
Lepanto.
It is immaterial that the order to write the letter was coursed through a boy in his midteens. Under the circumstances, appellant Ruado-Sy could not be expected to (and
would have been foolhardy to) subdue the boy or to cause his apprehension. We take
judicial notice of that fact that in rural areas, gullible young people are conscripted in
the commission of crimes by lawless elements who, taking advantage of the fear
generated by the "swift justice" allegedly rendered by members of the New People's
Army upon those who refuse to do its bidding, use the name of said organization to
attain their malevolent purposes, even if they may not really be members thereof.
While it has not been clearly established that Antonio Sy was indeed a member of the
NPA, or that he was merely out to collect more money from his own relatives,
appellant Ruado-Sy's actions subsequent to her receipt of the letter from
"Commander Helen Lepanto" showed that she was in fact in the grip of fear and a
sense of helplessness throughout that time, and therefore, we can only conclude that

in all probability, she was psychologically and mentally unbalanced, and not in
complete control of her free will, when she wrote the letter of March 24, 1987.
Anent appellant Ativo, it is not uncommon for houseboys like him to follow their
master's orders unquestioningly and quite literally. No criminal intent was proven or
could be attributed to him for his act of delivering the "reward" to appellant Gerolaga.
His failure to report immediately the death of Antonio Sy to his own employers and to
the police is explained by the fact that after he discovered that Antonio Sy was killed
and Gerolaga demanded the amount of P3,000 from him, he, too, was consumed by
fear that Gerolaga might kill him. 57
If at all, appellants Ruado-Sy and Ativo may be held criminally liable only under the
conspiracy theory where the act of one may be imputed to all the
conspirators. 58 Conspiracy, considering the secrecy by which it is usually hatched, may
be established by a chain of circumstances only. 59 However, like the physical acts
constituting the crime itself, it must be established by proof beyond reasonable doubt. 60
In the present case, the prosecution attempted to establish conspiracy by showing
that the "reward" of P3,000 was financed by appellant Ruado-Sy and that appellant
Ativo delivered the amount to the killer. However, considering the unrebutted
testimony of appellant Ruado-Sy that, with the approval of her husband, she set aside
the P3,000 as a reward for the identification and apprehension of Commander Lepanto
and the fact that Ativo merely obeyed the order of his employers to deliver the amount
to whoever could identify and apprehend said NPA commander, no criminal intent to
kill Antonio Sy could be attributed to him. Moreover, as earlier discussed, it was not
indubitably proven that appellant Gerolaga intended to kill Commander Lepanto
and/or Antonio Sy for a price. Hence, no community of criminal design may be
attributed to them. As "there is not other evidence to prove conspiracy except the
affidavit of confession" (which is inadmissible in evidence), even the Solicitor General
admitted that the "lower court erred" in finding the existence of conspiracy.
In view of the foregoing, appellant Gerolaga's criminal liability is individual and
separate. He shall be liable only for homicide, not murder, as no qualifying
circumstances have been proven beyond reasonable doubt. Because no mitigating or
aggravating circumstances attended the killing, he shall be meted the medium period
of the penalty of reclusion temporal. 61 By the application of the Indeterminate Sentence
Law, he shall suffer ten (10) years of prision mayor medium as minimum penalty to
seventeen (17) years and four (4) months of reclusion temporal medium as maximum
penalty. Pursuant to current jurisprudence, he shall indemnify the heirs of Antonio Sy in
the amount of fifty thousand pesos (P50.00).
WHEREFORE, the appeal is partially GRANTED. Appellants Remedios Ruado-Sy and
Efren Ativo are hereby ACQUITTED and are hereby ordered RELEASED immediately,
unless they are being detained for some other legal cause. Appellant Roberto
Gerolaga is found GUILTY beyond reasonable doubt of the crime of homicide for
which he is hereby IMPOSED the indeterminate penalty of ten (10) years of prision
mayor to seventeen (17) years and four (4) months of reclusion temporal and

ORDERED to indemnify the heirs of the victim, Antonio Sy, in the amount of
P50,000.00. No pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.
Footnotes
1 Rollo, p. 8.
2 Appealed Decision, p. 2; rollo, p. 20.
3 Presided by Judge Ricardo B. Butalid.
4 TSN, March 15, 1988, pp. 4-5.
5 TSN, September 8, 1987, pp. 39-45.
6 TSN, August 17, 1988, pp. 55-56; TSN, August 18, 1988, pp. 33-34.
7 Exh. 1 verbatim reads:
"March
4, 1987
COMM
ANDER
NPA
HELEN
LIPANT
O
REMY:
(MEL)
MAAYO KAMI SIN BULIG SA IYO KANTIDAD SIN P3,000 PISOS
PAGALAOMON NA MOON SA SULOD GIN DUWA KAADLAW.
GINA AYO KO LANG SA IYO SIN MAKA-ARAM. O MAG-PAMARITA KAY
KON MANG-YARI DAMO SIN BUHAY NA MAWARA? LALO NA SA (MET)
MELITARY. MAKALOLO-OY MAN SINDA? KAG PAGA-KOWAON KA
MOON KON DILI MO MATUPAD? TAPOS AN KUARTA ISULOD MO
SUBRE SA IYO BASURAHAN ALAS 9:00 AN GAB-I SAN SABADO.

SALAM
AT:
GOD
BLESS
YOU =
ALL
WAG (illegible) KANG MATAKOT HINDI MAANO KONG SUMUNOD KA
SA UTOS?"
8 Exh. 2; Record, p. 131.
9 TSN, August 17, 1988, p. 13-14.
10 Ibid., pp. 15-18.
11 Ibid., pp. 18-23.
12 TSN, September 29, 1988, pp. 5-6, 10.
13 TSN, April 29, 1987, pp. 10-14.
14 Ibid., pp. 15-17.
15 TSN, August 17, 1988, pp. 23-25.
16 Ibid., pp. 25-27.
17 TSN, March 15, 1988, pp. 41-42.
18 TSN, July 18, 1988, pp. 6-19.
19 TSN, April 29, 1988, pp. 32-43.
20 TSN, September 8, 1987, p. 9.
21 Exh. A.
22 TSN, March 14, 1988, p. 4.
23 Ibid., pp. 4-7.
24 Exhs. E-1 to E-6.
25 TSN, October 15, 1987, pp. 46-47.

26 Exh. G.
27 Exhs. G-4 & G-5, TSN, October 15, 1987, p. 54.
28 TSN, August 17, 1988, pp. 30-37.
29 Exh. L-Translation.
30 TSN, August 17, 1988, pp. 42-44, 75.
31 Ibid., pp. 58 & 66.
32 Decision, p. 11.
33 Ibid., p. 14.
34 Record, p. 800.
35 Ibid., p. 809.
36 Appellant's Brief, p. 75.
37 People vs. Silvestre, 244 SCRA 479, 490-491, May 29, 1995.
38 TSN, July 18, 1988, pp. 33-34.
39 TSN, August 18, 1988, pp. 23-27.
40 Art. 11 (1), Revised Penal Code; People vs. Silvestre, supra at pp. 490-491.
41 TSN, September 8, 1987, pp. 9-14.
42 People vs. Manalo, 229 SCRA 479, 487, January 24, 1994.
43 People vs. Rivera, 221 SCRA 647, May 10, 1993.
44 People vs. Alincastre, 40 SCRA 391, 408, August 30, 1971 citing U.S. vs.
Maharaja Alim, 38 Phil. 1 (1918).
45 Appellee's Brief, pp. 10-11.
46 TSN, July 18, 1988, p. 30.
47 Ibid., pp. 41-42.

48 In People vs. Agustin (G.R. No. 114681, July 18, 1995, 246 SCRA 673, 681)
the Court held that "when the inculpatory facts and circumstances are capable
of two or more interpretations, one of which is consistent with the innocence
of the accused and the other or others consistent with his guilt, then the
evidence, in view of the constitutional presumption of innocence, has not
fulfilled the test of moral certainty and is thus insufficient to support a
conviction." While this principle may not be totally applicable in this case
considering appellant Gerolaga's admission of the killing of Antonio Sy, it may
nevertheless be utilized as a basis for interpreting the facts of the case in his
favor.
49 TSN, August 18, 1988, p. 2.
50 Ibid., p. 29.
51 TSN, April 29, 1988, p. 10.
52 U.S. vs. Flores, 28 Phil. 29, 34, September 14, 1914.
53 People vs. Lucero, 244 SCRA 425, 434-435, May 29, 1995.
54 Then Solicitor General Francisco I. Chavez considered this constitutional
provision a "quirk" or an "anomaly" because "where the
accused voluntarily waives his personal right to counsel, meaning to say,
where it is against his personal will or consent to have counsel (perhaps on
any ground he personally conceives, e.g., he does not trust any counsel but
himself, counsel like "the law is an ass" [Shakespeare], etc.), yet, the
Constitution nevertheless mandates that, despite any voluntary waiver of
his personal right, the accused be literally given, meaning to say even
against his will or consent, counsel in order that accused may validly waive the
right to counsel, i.e., in the presence of counsel whose services he has
precisely waived or does not want for a number of reasons. In sum, an
otherwise voluntarily (sic) waiver is made involuntary by the Constitutional
mandate taken literally" (Appellee's Brief, pp. 17-18).
55 Vide: People vs. Nito, 228 SCRA 442, 457, December 15, 1993; People vs.
Dacoycoy, 208 SCRA 583, May 8, 1992; People vs. Rodrigueza, 205 SCRA 791,
797-798, February 4, 1992.
56 Appellee's Brief, pp. 23-25.
57 TSN, April 29, 1988, p. 44. In People vs. Rosario (246 SCRA 658, 667, July 18,
1995), the Court stated that the witnesses' fear of reprisal was understandable
considering that the perpetrators of the crime lived near the victim's family and
that one of the appellants was a member of the New People's Army.

58 People vs. Parica, 243 SCRA 557, April 21, 1995.

59 People vs. Miranday, 242 SCRA 620, March 23, 1995.
60 Magsuci vs. Sandiganbayan, 240 SCRA 13, January 3, 1995.
61 Art. 64(1) and 249, Revised Penal Code.

18. P vs gonzagab GR 113793, aug 11,1995

SECOND DIVISION

G.R. No. 113793 August 11, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JUAN GANZAGAN, JR. Y MADAYAG, accused-appellant.

PUNO, J.:
In order for conviction to lie, all the elements of the crime must be established beyond a reasonable
doubt. In the case of murder, it is incumbent upon the prosecution to muster the evidence required
by the Constitution to show not only that the unlawful killing was perpetrated by the accused, but
also that any of the attendant circumstances that qualify it to murder exists. If it cannot be proven
with moral certainty that at least one of the qualifying circumstances enumerated in Article 248 of the
Revised Penal Code is present, the prosecution fails in its task, and the accused must be freed from
liability for murder.
The case at bench commenced upon the filing on June 13, 1988 of an Information before the
Regional Trial Court of Urdaneta, Pangasinan, 1 charging appellant JUAN MADAYAG GANZAGAN,
JR. 2 of murdering SERVILLANO VILLANUEVA MANUEL, JR., as follows:
That on or about the 1st day of April 1988, in the evening, at Barangay Bayaoas, Municipality
of Urdaneta, Province of Pangasinan, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, being then armed with a single bladed bolo, called
"Panabas", measuring about 26 inches including its handle, with deliberate intent to kill, with
treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously
attack, assault and hack one Servillano Manuel, Jr. y Villanueva, inflicting upon him the
following injuries, to wit:

Significant External Findings:

Abrasion, both knees; abrasion, right shoulder, lateral aspect; abrasion,
right forefinger and middle finger; abrasion, chin, right half; abrasion with
ecchysmosis, right temple near right eye;
Gaping wound, neck, left half, middle half, with exposed and severed
muscles, veins and arteries, measuring 11 cms. x 4 cms.;
Incised wound, forehead, right half, above right eyebrow with exposed
bone, measuring 6 cms. x 2 cms.;
Incised wound, forehead, middle, measuring 5 cms. x 1 cm., with exposed
wound;
Incised wound, forehead, left half, with exposed bone, measuring 5 cms. x
1 cm.;
Gaping wounds (5) nape and back of skull, beginning from back of head
going down to nape;
Wound no. 1: measures 6 1/2 cms. x 1 cm.;
no. 2: measures 7 1/2 cms. x 1 1/2 cms.;
no. 3: measures 3 cms. x 1 1/2 cms.;
no. 4: 12 cms. x 1 1/2 cms.;
no. 5: 6 cms. x 1 1/12 cms.
Significant Internal Findings:
Neck, left half, lateral aspect; severed jugular vein and carotid artery;
Fracture, linear, right frontal bone, 6 cms. long;
Fracture, linear, middle half of frontal bone, 2 cms. long;
Fracture, linear, left half of frontal bone, 5 cms. long;
which caused the death of Servillano Manuel, Jr., y Villanueva as a consequence, to the
damage and prejudice of his heirs.
Appellant was arraigned. He pleaded not guilty to the charge leveled against him. Trial ensued.
The records show that appellant and Servillano Manuel, Jr. lived in the same neighborhood in Sitio
Las Vegas, Barangay Bayaoas, Urdaneta, Pangasinan. 3 During his lifetime, Servillano worked as
a kristo, or cockpit bet caller, and as a collector in carnival shows. 4 Before his arrest, appellant was
working part-time as a laborer. 5

The prosecution produced an eyewitness in the person of ELINO MANUEL, 6 Servillano's younger
brother. Elino narrated that sometime after five o'clock in the afternoon (5:00 p.m.) of April 1, 1988,
appellant came to their house looking for Servillano. 7 Failing to find him there, appellant boxed the door of
the Manuel residence twice and left in a huff. "Hutdon mong tanan, patyon mong tanan," he uttered in
Visayan as he left. 8 Chills ran down Elino's spine. In his mind, he translated appellant's threat: "I will kill
you all!" 9
Fearing for his brother's life, Elino rustled to the corner of Las Vegas Road and Sison Street, where
he expected Servillano to pass on his way home from the poblacion. Unfortunately, he was wrong,
for Servillano opted to take an alternate route back to their house. 10
After waiting in vain at the corner for about an hour, Elino headed home. On his way, he caught sight
of appellant hacking Servillano with a bolo about fifteen (15) meters from where he was. Servillano
was then stooped forward and away from appellant, with his head down and backside pointed
upward. 11 Immobilized by shock, Elino witnessed appellant strike Servillano four times, and then throw
aside the bloodied bolo he used. Appellant escaped on-board a tricycle, together with his brother-in-law,
Ernesto Adame. 12
Servillano's body was autopsied on the morning of April 2, 1988, by rural health unit physician DR.
RAMON GONZALES, JR., 13 who found the cause of death to be "irreversible shock due to arterial
hemorrhage caused by the hacking wound, neck." 14 His findings were reduced to a written report, 15 the
contents of which are quoted in and incorporated into the Information filed against appellant.
The defense did not challenge the result of the autopsy conducted on Servillano's body, and did not
question the medical findings as to the cause of death. Appellant, in fact, admitted that he inflicted
the fatal hacked wounds on Servillano. However, appellant sought shelter behind the doctrine of selfdefense. He and his wife, MARILOU GANZAGAN, 16 related a completely different version of what
transpired on the day Servillano died.
The Ganzagans testified that at around five o'clock in the afternoon (5:00 p.m.) of April 1, 1988, they
were at home. Marilou was then downstairs, preparing some bilo-bilo, while appellant was on the
upper level of the house, watching over their two-month-old infant daughter. 17 Suddenly, Servillano
Manuel, Jr., who was visibly upset, barged into their house, looking for
appellant. 18 He left hurriedly without waiting for appellant to come down. 19
Not long after, Servillano returned to the Ganzagan residence. 20 This time, he was armed with a bolo,
with which he stuck the house near the kitchen. 21 Appellant confronted Servillano who cursed 22 and
abruptly assaulted the former with the bolo. He delivered an overhead hacking blow 23 to appellant, who
stepped back and parried the same with his right arm. The tip of the bolo hit the appendage and produced
a three-centimeter nick on it. 24 Marilou rushed out of their house onto the street, screaming for help. None
came to her aid, as everyone was attending a procession along the Urdaneta-Asingan provincial
road. 25 When she returned to their house, neither appellant nor Servillano was there. 26 She did not think
to look for the two, and merely remained inside their house. 27
Meanwhile, after a brief tussle with Servillano, appellant was able to wrest the bolo away from him.
With bolo in hand, appellant ran to the middle of the street. 28 He stopped when he remembered his
baby, who was left alone

in their house. 29 For the next five minutes, appellant stood transfixed on the road. 30 The impasse was
broken by Servillano who renewed his attack. 31 In trying to grab the bolo back from appellant, Servillano
stumbled and fell forward, face down and with his backside pointing up. 32 It was then that appellant
hacked Servillano several times. 33

Appellant fled from the scene of the crime. He went into hiding, 34 and a week passed after the incident
before his wife saw him again. 35 Much later, during the pendency of the trial against him, appellant
jumped bail. 36
In rebuttal, the prosecution submitted in evidence a certification of the death of the Ganzagan's fourmonth-old son, Michael, on January 15, 1988, barely two-and-a-half (21/2) months before
Servillano's killing.
At the close of trial, the court a quo decided against appellant. It held:
The killing was qualified by evident premeditation and treachery because when (appellant)
went to the house of the victim armed with a bolo looking for the latter who was not around,
he had already the intention to kill him and said intention to kill was never abandoned as he
waited for the arrival of the victim whom he saw along the road. There was treachery as the
accused hacked the victim by the neck several times and the sudden and frontal attack on
the forehead, thus causing his bones on the forehead to be exposed as shown in the
medical certificate . . . The exposure of the bones would only show that the hacking was
therefore so strong enough as to insure his premeditated intention to kill the victim.
WHEREFORE, in the light of the foregoing discussion, this Court believes that the
prosecution was able to prove the guilt of the (appellant) beyond reasonable doubt. Pursuant
to Art. 248 of the Revised Penal Code, the court hereby finds the (appellant) Juan
Ganzagan, Jr., guilty of the crime of Murder and sentences him to suffer the penalty
of reclusion perpetua, considering the provisions of the 1987 Constitution (Art. III, Section
19[1]), and with all the accessory penalties provided by law; and to pay the civil liability of
P50,000.00 to the heirs of the deceased and moral damages in the amount of P50,000.00,
with costs.
SO ORDERED. (Citations omitted) 37
Appellant now sets forth the following assigned errors:
I
THE TRIAL COURT ERRED IN NOT UPHOLDING SELF-DEFENSE AS A GROUND
FOR ACQUITTAL OF ACCUSED-APPELLANT.
II
ON THE ASSUMPTION THAT ACCUSED-APPELLANT IS AT ALL GUILTY, THE
TRIAL COURT NEVERTHELESS ERRED IN CONVICTING HIM FOR MURDER

INSTEAD OF ONLY HOMICIDE CONSIDERING THAT NEITHER THE QUALIFYING

CIRCUMSTANCE OF TREACHERY NOR PREMEDITATION WAS DULY
ESTABLISHED. 38
The appeal is partly meritorious. Appellant is not guilty of murder.
Appellant reiterates his reliance on the doctrine of self-defense to justify the killing of
Servillano. He argues that he was able to prove all the elements of defense of self, namely:
(1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel
it; and (3) lack of sufficient provocation on the part of the person defending himself.
We are not persuaded.
There are strong reasons to doubt the defense version of the facts that led to the killing of
Servillano. The account of the Ganzagan spouses is inconsistent with the common
experience and observation of mankind.39 Especially difficult to accept are the following
assertions:
1. On the fateful afternoon of April 1, 1988, appellant was preparing bilo-bilo on the
second floor of their house because he was looking after their two-month-old infant
daughter. This is highly peculiar, since according to the records of their parish church
(Exh. "F", Original Records, p. 227), their four-month-old infant son, Michael died
barely two-and-a-half-months prior to Servillano's killing;
2. While appellant and Servillano were grappling for possession of the latter's bolo,
Marilou ran out to seek help. She said that she only ran to a distance of fifty (50) to
one hundred (100) meters from their house, but it took her thirty (30) minutes to
return home (TSN of November 22, 1993, pp. 5, 9, 10);
3. None heeded Marilou's call for help because everyone else in their entire
neighborhood was attending a procession on the main road (Ibid., at p. 5);
4. When Marilou returned home and found neither her husband (appellant) nor
Servillano there, she did not either out of worry or curiosity even try to find out
what had happened to them (Id., at pp. 5, 12);
5. After he succeeded in taking the bolo away from Servillano, appellant ran out of
their house to the middle of the road, where he stopped and stood doing nothing for
five minutes. On cross-examination, he claimed that he stopped because he
remembered that their infant daughter was left alone in their house. But, he did not
attempt to return to their home anyway;
6. It took Servillano five minutes to reach appellant, who was standing fifteen (15)
meters from where they had previously been wrestling, because he (Servillano) was
drunk (TSN of November 23, 1983, p. 20); and

7. When Servillano finally caught up with appellant, he did not attack the former
immediately although he thought that Servillano was again armed with a weapon.
Instead, he waited until Servillano stumbled face down while trying to wrest the bolo
away from him (appellant).
Furthermore, appellant's self-contradictions and vacillations in his testimony are patent and
numerous. These were exposed in his cross-examination, where he was confronted and
asked to explain several of his contradictory statements, viz.:
FISCAL VENIEGAS:
Q On April 1, 1988 at about 5:00 o'clock, Servillano Manuel was
drunk and he came to you in your house and extorted money from
you, is that correct?
WITNESS:
A Yes, sir.
Q As he used to do in the past every time he is drunk?
A Yes, sir.
Q And he was asking money from you?
A Yes, sir.
Q How did he try to ask you for liquor money? Will you quote what he
said?
A He told me, "Will you give me money because I got short in the
other side and I need some more money."
Q Is that (during) the first time that he came or on the second time
when he returned to your house?
A The first time, sir.
Q The first time, when you were upstairs making bilo-bilo?
A Yes, sir.
Q And he was talking to you?
A He talked with my wife, sir.

Q So, it was not you from whom he was asking money, but it was
your wife?
A Yes, sir.
Q But you said the first time that he came, you testified that he was
asking for your name and later he was asking for you from your wife.
A Yes, sir.
Q Then he left. and later on, after about 30 minutes, he came back?
A Yes, sir.
Q And you went down because as you were upstairs, you went down
and asked him why he was asking you. Correct?
A Yes, sir.
Q And Servillano Manuel without saying a word hacked you
immediately. Is that correct, according to your testimony?
A Yes, sir.
Q Then you wrestled and wrested the bolo from him and you ran to
the street. Is that correct?
A Yes, sir.
Q And in your earlier testimony, there is no point in time when you
talked to him and (when he) asked you for wine money. Is that
correct?
A Yes, sir.
xxx xxx xxx
Q When Servillano Manuel returned to your house as you said, did
he also ask where you were from your wife?
A Not anymore because he immediately hacked the post in the
doorway.
Q And at that time, you got irked and you went downstairs?

A I went down. He was the one who got mad. I just went down the
stairs.
Q What did he tell you when he came back if any?
A He said, "vulva of your mother!"
Q Because you asked him why he was looking for you, correct?
A Yes, sir.
Q And he answered, "Okinnam!" (vulva of your mother)?
A Yes, sir.
Q In direct examination, you said that when Servillano returned after
half an hour after the first time that he came to your house, you went
down your house, asking him why he hacked the post and you said
he did not answer and immediately hacked with a bolo on your right
hand. Do you remember having said that?
A Yes, sir.
Q Why did you say that he answered you "vulva of your mother"? Are
you changing your previous testimony?
A Immediately before he hacked me, he said "vulva of your mother!"
Q In other words, your previous testimony that he did not say
anything before he hacked you is not correct?
A That is true.
Q But you did not tell the Court that he said "vulva of your mother!"
A He said that.
Q But you did not mention to the Court in the first time.
A Because I am nervous.
xxx xxx xxx
Q Now, in your direct testimony, you said that after wresting the bolo
from Servillano, you ran towards the road and you stood there for five

(5) minutes after which Servillano Manuel came to you and attacked
you. Do you remember having stated that?
A That is why I paused for five (5) minutes in the road, because I
thought of my baby in the house whom I wanted to protect because
he might harm the baby instead.
Q But you also left your wife in the kitchen with your baby upstairs,
correct?
A She was not there anymore because as soon as we fought with
Servillano Manuel, my wife became hysterical and she ran away.
Q When you were on the road, you thought of your baby as you said.
That is why you stayed there for five (5) minutes?
A Yes, sir.
Q And then it was at that time that Servillano Manuel appeared and
tried to kill you as the intention as you said was to kill you.
A Yes, sir.
Q But he was already unarmed because you had already wrested the
bolo from him?
A Yes sir, because during that time, I thought that he still had some
arms with him because it was quite dark already.
COURT:
Q When you were standing there at the road, Servillano approached
you?
A Yes, Ma'am.
Q When he approached you, why did you say that Servillano has
intention to kill you?
A When Servillano Manuel came and approached me, he was so
mad. I thought he was armed and it was quite dark then, so I decided
to hack him.
Q When you decided to hack him, what did you use? The bolo you
wrested from him?

A Yes, Ma'am.
Q Did he grapple for the possession of the bolo from you in the road?
A He tried to wrest the bolo from me while we were in the road.
xxx xxx xxx
Q Will you demonstrate how he grappled the bolo again?
A While I was holding the bolo downward and I was standing by the
road, Servillano Manuel came and lunged forward to get the bolo
from my hand, and in that instance, he stumbled to the ground.
Q Will you demonstrate how Servillano stumbled?
A As he lunged forward to get the bolo from my hand, I moved my
hand which held the bolo away from him. So, he fell to the ground,
face down.
Q With the buttocks up?
A (The witness demonstrated how Servillano Manuel fell to the
ground, face down with his buttocks up.)
FISCAL VENIEGAS:
Q And Servillano Manuel was in that position when you hacked him?
A Yes, sir.
Q Could you tell the Court in the first blow when you hacked him,
where did you hack him? What part of his body?
A His face and his arm.
Q You mean that in that position with face on the ground, you hacked
his face and his hand?
A When Servillano came towards me he tried to wrestle the bolo
away from me. That is why I lunged the bolo to his face. That is why
his face and arm were hit.
Q At the same time, the face was hit?
A I cannot recall.

Q So, it is not true that when he came at you after you were standing
there for five (5) minutes and you concluded his intention to kill you
when he wrested the bolo, that he fell to the ground as you said?
A The first time he tried to wrestle the bolo from me, I immediately
hacked him on the back and the second time, he tried to wrestle (was
when he fell down).
Q But in the demonstration, you demonstrated only one attempt on
his part to wrestle the bolo from you. Is that correct?
A Yes, sir.
xxx xxx xxx 40
In any event, even granting the defense's factual assertions, we are still unimpressed by
appellant's theory of self-defense.
It is a well-entrenched principle in criminal law that the burden of proving the guilt of the
accused lies squarely on the shoulders of the prosecution. Conviction must rest, not on the
weakness of the defense, but on the strength of the prosecution. 41 In cases, however, where
the accused admits committing the crime but invokes self-defense to escape liability, the rule is
reversed and the burden of proof shifted to the accused to prove the elements of his defense. As
held in the case of People v. Boniao, 217 SCRA 653 (1993):
By invoking self-defense, the appellant admitted killing the four (4) victims. The
burden is, therefore, upon him to prove the existence, by clear and convincing
evidence, of its essential requisites . . .; otherwise stated, the onus probandi was
thus shifted to him . . . . He must rely on the strength of his own evidence and not on
the weakness of that of the prosecution . . . for even if the latter were weak, it could
not be disbelieved after he himself admitted the killing . . . (Citations omitted)
Thus, in claiming self-defense, appellant needs to convincingly establish that: (1) Servillano
acted with unlawful aggression towards him; (2) the means he employed to repel such
aggression was reasonable; and (3) he did not sufficiently provoke Servillano towards
aggression. If appellant fails to discharge this burden of proof, his conviction shall of
necessity follow, on the basis of his admission to the killing.
Unlawful aggression, which is an indispensable element of self-defense, 42 is an assault or
attack, or a threat thereof in an imminent and immediate manner, which places the accused's life
in actual peril. 43 It is an offensive act positively strong and determinative of the aggressor's intent
to cause harm or injury. 44 It presupposes a material attack which is impending or at the point of
happening, and not merely an intimidating attitude or stance.
In the case at bench, appellant testified that after the initial bolo attack on him, he was able
to take possession of the weapon and run away from Servillano. At that point, the unlawful
aggression against him effectively ceased. When hostilities resumed five minutes later,

appellant was the armed protagonist, and Servillano's act of trying to wrest the bolo back
from him cannot be considered as unlawful aggression. Appellant no longer faced any
imminent or immediate danger to his life and limb from his opponent.
There was no unlawful aggression by Servillano. Appellant had nothing to repel. Therefore,
he cannot successfully posit the view that he was merely defending himself when he killed
Servillano.
Parenthetically, appellant's claim of self-defense is further belied by the physical evidence in
the case, specifically the number, location and severity of the hacked wounds found on
Servillano. Dr. Gonzales found five (5) gaping wounds on Servillano's neck, running from the
back of the head to the nape which exposed and severed the muscles, veins and arteries in
the neck area. These indicate clearly that appellant's act was no longer one of selfpreservation, "but a determined effort to kill his victim." 45
Appellant next postulates that even if self-defense were unavailable to him, he should only
have been found guilty of committing homicide, and not murder. He claims that neither
treachery nor evident premeditation, which are alleged in the Information, are present in the
case at bench.
We are convinced.
The circumstances that qualify murder must be proven as indubitably as the killing itself. The
presence of treachery 46 and evident premeditation 47 must not be deduced from mere
presumption or sheer speculation. Unfortunately in the case at bench, that is exactly what the trial
court did in concluding that both qualifying circumstances are present.
Article 14 (16) of the Revised Penal Code defines treachery thus:
There is treachery when the offender commits any of the crimes against the
person, employing means, methods, or forms in the execution thereof which tend
directly and specifically to insure its execution, without risk to himself arising from the
defense which the offended party might make. (Emphasis ours.)
Its essence lies in the adoption of ways that minimize or neutralize any resistance which may
be put up by the offended party.
In the present case, the prosecution failed to present any witness to testify as to the manner
by which Servillano was attacked by appellant. Their sole eyewitness, Elino Manuel, only
saw the actual hacking of the victim by appellant, and not the events that led to it. The
records provide no basis for the trial court's finding of treachery. As we held in the case
of People v. Bachar, 170 SCRA 700 (1989) 48:
. . . Not a single eyewitness to the stabbing incident had been presented by the
prosecution. Thus, the record is totally bereft of any evidence as to the means or
method resorted to by appellant in attacking the victim. It is needless to add that

treachery cannot be deduced from mere presumption, much less from sheer
speculation. The same degree of proof to dispel reasonable doubt is required before
any conclusion may be reached respecting the attendance of aleviosa.
Evident premeditation suggests the deliberate hatching of a plan to execute a crime. Its
elements are: (1) a previous decision by the accused to commit the crime; (2) an overt
act/acts manifestly indicating that the accused clung to his determination; and (3) a lapse of
time between the decision to commit the crime and its actual execution sufficient to allow the
accused to reflect upon the consequences of his acts.
Time and again, we have held that evident premeditation cannot be appreciated to qualify a
killing to murder in the absence of direct evidence of the planning and preparation to kill
when the plan was conceived. 49 In the case at bench, the prosecution failed to prove with any
certainty that appellant had planned and prepared to kill Servillano previous to the fatal hacking.
The records are bereft of any indication of such a plot. Furthermore, the findings of the court a
quo that appellant was already armed with a bolo when he went to the Manuel residence looking
for Servillano and that he waited in ambush for the latter, are totally unfounded. These were never
mentioned in the testimony of prosecution eyewitness Elino Manuel.
Absent the qualifying circumstances of treachery and evident premeditation, the crime
committed by appellant is not murder, but homicide, as defined and penalized under Article
249 of the Revised Penal Code.
IN VIEW WHEREOF, the conviction of appellant JUAN MADAYAG GANZAGAN, JR. by the
Regional Trial Court of Urdaneta, Pangasinan, Branch 48 in Criminal Case No. U-4850 is
AFFIRMED, but he is found GUILTY of the lesser crime of HOMICIDE. The appealed
Decision, dated December 6, 1993, is MODIFIED so that appellant shall instead suffer the
penalty of from twelve (12) years of prision mayor, as minimum, to seventeen (17) years and
four (4) months of reclusion temporal, as maximum.
SO ORDERED.
Narvasa, C.J., Regalado, Mendoza and Francisco, JJ., concur.

Footnotes
1 The case, docketed as Criminal Case No. U-4850, was raffled off to RTC of
Urdaneta, Pangasinan, Branch 48, presided over by Judge Alicia Gonzalez-Decano.
2 Testified on November 23, 1893. He was then 32 years old, married, and a resident
of Las Vegas, Bayaoas, Urdaneta, Pangasinan.
3 TSN of November 15, 1993, p. 2.

4 TSN of November 16, 1993, pp. 12-13.

5 TSN of November 23, 1993, p. 2.
6 Testified on November 15, 1993. He was then 32 years old, single, and a resident
of Bayaoas, Urdaneta, Pangasinan.
7 TSN of November 15, 1993, p. 3, 10.
8 Ibid., at p. 3.
9 Ibid., at pp. 3-4. Elino Manuel himself testified that he understood the phrase to
mean "I will kill you all!" To verify his statement, the trial court asked the process
server of Branch 46 of the RTC of Urdaneta, Pangasinan, Mrs. Thelma Ortiz (she
hails from the Visayas) to translate appellant's utterance. Mrs. Ortiz translated it to
mean, "Papatayin ko kayong lahat, uubusin ko kayong lahat."
10 TSN of November 15, 1993, pp. 4-5.
11 Ibid.
12 Id., at p. 6.
13 Testified on November 16, 1993. He was then 52 years old, married, and a
resident of Poblacion, Urdaneta, Pangasinan.
14 Exh. "C", Original Records, p. 10.
15 Ibid.
16 Testified on November 22, 1993. She was then 32 years old, married, a vendor,
and residing in Bayaoas, Urdaneta, Pangasinan.
17 TSN of November 22, 1993, p. 7.
18 Ibid., at p. 3.
19 Id., at p. 4; TSN of November 23, 1993, p. 5.
20 Ibid.
21 TSN of November 15, 1993, p. 8.
22 TSN of November 23, 1993, p. 13.
23 Ibid., at p. 14.

24 TSN of November 15, 1993, p. 4; TSN of November 23, 1993, pp. 5, 15.
25 TSN of November 15, 1993, at pp. 4, 5, 8, 9.
26 Ibid., at p. 10.
27 Id., at p. 12.
28 TSN of November 23, 1993, p. 16.
29 Ibid., at p. 17.
30 Id., at p. 5.
31 Id., at pp. 6, 16.
32 Id.
33 Id., at pp. 17, 19.
34 Exh. "B"; Original Records, p. 8.
35 TSN of November 15, 1993, p. 13.
36 TSN of November 23, 1993, p. 21.
37 Decision in Criminal Case No. U-4850, p. 9.
38 Appellant's Brief, p. 1; Rollo, p. 50.
39 People v. Maceda, 197 SCRA 499 (1991), citing People v. Acusar, 82 Phil. 490
(1948).
40 TSN of November 23, 1993, pp. 8-19.
41 See People v. Capilitan, 182 SCRA 313 (1990); People v. Bustarde, 182 SCRA
554 (1990).
42 People v. Morato, 224 SCRA 361 (1993); People v. Bausing, 199 SCRA 355
(1991).
43 F. Moreno, Philippine Law Dictionary, Third Edition (1982).
44 Ibid.
45 People v. Maceda, op cit., at p. 509.

46 See People v. Gaddi, 170 SCRA 649 (1989).

47 See People v. Pastoral, 226 SCRA 219 (1993).
48 Quoting People v. Duero, 136 SCRA 515 (1985).
49 People v. Manuel, 234 SCRA 532 (1994); People v. Salvador, 224 SCRA 819
(1993).
19. P can januario Dela Cruz GR 84714, Oct 5,1990

SECOND DIVISION
G.R. No. 84714 October 5, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JANUARIO DELA CRUZ y HURADO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo C. Tarongoy for accused-appellant.

SARMIENTO, J.:
The accused contests the decision of the Regional Trial Court, 1 finding him guilty of murder and
sentencing him to suffer reclusion perpetua plus actual damages.
The evidence for the prosecution reveals the following:
On August 3, 1987 at about 10:00 o'clock in the evening, Reynaldo Pascasio, a
tricycle driver, was on his motorized tricycle parked infront of the "Big Foot" Bar
located at East Dirita, San Antonio, Zambales, near the crossroad of the National
Highway and the road leading to the U.S. Naval Communication Station at San
Miguel, San Antonio, Zambales. While there, accused Januario dela Cruz, who
crossed the road, approached him and told him "Maykadtoy ta adda ibelleng" which
in English is "Come here, we shall throw something". Responding, he went with the
accused Januario dela Cruz infront of the gate of the Guerrero Compound where the
latter's companions were. From where Reynaldo Pascasio was parked infront of the
"Big Foot" Bar, the accused companions were about eight (8) meters away across
the street. Then, three (3) male persons, as well as accused Januario dela Cruz
boarded the tricycle. The three (3) companion's of Januario dela Cruz rode inside the
sidecar of the tricycle, while accused Januario dela Cruz rode in tandem with
Reynaldo Pascasio on the motorcycle of the tricycle. Of his four (4) passengers only
accused Januario dela Cruz was known to Reynaldo Pascasio, having known him for

the past three (3) years. After boarding the tricycle the persons inside the sidecar told
Reynaldo Pascasio to bring them to the terminal at Olongapo City. However he was
later told to proceed to San Narciso Zambales (p. 21, t.s.n., November 17, 1987).
While on the way to San Narciso, Zambales, near the Elementary School of
Barangay Beddeng, San Narciso Zambales, Reynaldo Pascasio heard the shout in
the vernacular "Array" and blood spurted from the sidecar and landed on his forearm,
as well as on the steering bar of his motorcycle (p.30, Ibid). Upon hearing this,
Reynaldo Pascasio stopped his tricycle and one of the passengers in the sidecar,
who was bloodied, was brought out from the tricycle by the other two (2) passengers
in the sidecar. Once on the ground, the two(2) passengers mauled the bloodied
passenger. Later, they threw him by the roadside. While this was going on, accused
Januario dela Cruz was standing behind Reynaldo Pascasio. Afterwards, the
accused Januario dela Cruz and the two (2) unidentified persons boarded the tricycle
and Januario dela Cruz directed Reynaldo Pascasio to bring them to his (Januario
dela Cruz') place (p. 26, Ibid), leaving behind the bloodied person, whom the two (2)
unidentified companions of Januario dela Cruz threw away by the roadside, infront of
the Beddeng Elementary School.
In going to the house of accused Januario dela Cruz, accused Januario dela Cruz
directed Reynaldo Pascasio to pass through the alley behind the Mini Mart, instead
of passing through the checkpoint at the road leading to the U.S. Naval
Communication Station, and exited into the road going to the Base (p. 28, t.s.n.,
November 17, 1987). Upon arrival at the house of accused Januario dela Cruz, the
two (2) unidentified passengers alighted from the tricycle and accused Januario dela
Cruz washed away the blood from the steering bar and inside the sidecar with water
in a pail, using a rag, which be got from his neighbor (p. 30, Ibid). And while accused
Januario dela Cruz was washing the tricycle, the two (2) persons went behind the
house of accused Januario dela Cruz where the wound of one of them was treated
by them (p. 33, t.s.n., supra).
Later, after washing the tricycle, accused Januario dela Cruz gave Reynaldo
Pascasio the amount of P7.00 and the latter went home. Because he was afraid, he
did not report the incident to the police. However, five (5) days later, he was arrested
by the police and was investigated. He gave his statement to the police narrating the
incident that occurred in the evening of August 3, 1987 (Exhibit "C"). And it was after
his arrest that he learned from the father of the slain man that the latter's name was
Jerry Pamoleras.
The following morning at 6:00 o'clock on August 4, 1987, Barangay Captain Ricardo
Abinsay of Barangay Beddeng, San Narciso, Zambales reported to the Station
Commander of the police station of San Narciso, Zambales his discovery of the dead
body. In turn, the Station Commander, P/Lt. Manuel Tejada, dispatched Pat. Arsenio
Agawin and Pat. Salvador Wagma to the place where the body was found. Taking the
mini-bus, the two (2) peace officers arrived at the scene infront of the BeddengMabangcal Elementary School at Barangay Beddeng, San Narciso, Zambales at
about 6:30 a.m. where they came upon P/Lt. Amado Farias viewing the dead body

of a person, who was wearing a red undershirt (sando and a white pant bloodied,
and lying flat on his stomach on the ground. Lt. Farias then gave the wallet, which
he took from the pocket of the dead person's pants, to Pat. Agawin, which contained
an I.D. with a name "Jerry Reyes" (p. 7, t.s.n., January 12, 1988). Thereafter, the
body was transported to the police station of San Narciso, Zambales. On the same
date in the morning, Dr. Jaime Braga, the Rural Health Physician of the San Narciso
Rural Health Unit performed a post-mortem examination of the cadaver found infront
of Beddeng-Mabangcal Elementary School and found the following:
lacerated wound proximal 3rd arm posterior aspect (L)
Incised wound palmar surface (L)
Stab wound 2 cm length neck lateral (R)
Stab wound 2 cm length medical scapular (R)
Stab wound 2 cm length vertebral area posterior
Lacerated wound 3 cm knee (L)
which injuries caused the cardiorespiratory arrest, and consequently, caused the
death of said person, identified through his wallet as "Jerry Reyes" (Exhibit "B"). Dr.
Braga issued a death certificate (Exhibit "A").
In the meantime, Rodolfo Pamoleras, who last saw his son at his house in Olongapo
City on August 3, 1987 was informed by his wife that his father who lives at Iba,
Zambales, has told her that their son had been missing for three (3) days already.
But, somehow, on August 6, 1987, by a stroke of Fate, Rodolfo Pamoleras' brotherin-law, a tricycle driver, was told by a woman traveller from San Narciso, Zambales
that a dead body was found in San Narciso (p. 20, Ibid). Reacting to this information,
he and his wife went to San Narciso at about 7:00 p.m. on August 6, 1987 (p.
20, Ibid) and talked to the Chief of Police (Station Commander) of the San Narciso
INP. Because the cadaver of their son was already buried, they and the police chief
were able to identify the deceased as their son, through the latter's picture they
brought (Exhibit "E-1") and the wallet, which contained an ID card showing the name
"Jerry Reyes". The deceased was using the family name of his mother, "Reyes",
because Pamoleras is long and cannot be contained in the identification card.
Upon learning that their son was already buried, Rodolfo Pamoleras, Sr. talked to his
wife and they agreed that the body of their son should be exhumed to determine if it
was really their son's body that was buried by the police. So, on August 7, 1987,
witnessed by the policemen of San Narciso, Zambales, the security men of the
Martin Funeral Parlor, Rodolfo Pamoleras, Sr. exhumed the body of his son, Rodolfo
Pamoleras Jr. alias "Jerry R. Reyes". When the coffin was opened, he identified the
body as that of his son through the growth at the tip of the ear, the rotten front teeth,

the Red T-shirt his son was wearing when he saw him for the last time and the shoes
his son was wearing, which belonged to him. He also identified the body in the coffin
because of the similarity of his and that of his son's facial features. Then, a
photograph of the dead body of his son inside the coffin was taken (Exhibit "E").
Because the sister of Rodolfo Pamoleras' wife was buried at Subic, Zambales, and
his wife wanted their son buried there, the remains of his son was re-buried at Subic,
Zambales. For the burial services, he spent P3,000.00 (Exhibit "C") and P3,000.00
for expenses in the exhumation and for the nine (9) days prayer which are not
supported by receipts. 2
The version of the accused, on the other hand, is as follows:
On the other hand, as claimed by accused Januario dela Cruz, he knows prosecution
witness Reynaldo Pascasio and are friends (p. 8, t.s.n., April 5, 1988) and Reynaldo
Pascasio drives a tricycle whose route is from the town proper of San Antonio,
Zambales to the gate of the U.S. Naval Communications Facility at San Miguel, San
Antonio, Zambales; that at about 10:00 o'clock in the evening on August 3, 1987, he
was standing infront of his cousin's store located at the intersection of the National
Highway and the road leading to the U.S. Naval Communication Facility, known
locally as "crossing". He was there because he paid his indebtedness.
While standing infront of his cousin's store at West Dirita a man, who came from the
direction of the Holiday Inn (p. 14, Ibid) approached him and offered him a bottle of
beer, he was holding, but, he refused. He then asked for his name and the man gave
his name as Doming Lachingco. Thereafter, Doming Lachingco asked him if he knew
somebody who could bring someone to San Narciso. And he replied he knew a driver
named Reynaldo Pascasio, whose tricycle was parked across the street infront of the
"Big Foot" Bar and he called Reynaldo Pascasio, telling him he had a passenger (pp.
10-11, t.s.n., April 5, 1988). After calling Reynaldo Pascasio, the latter and Doming
Lachingco talked to each other. Afterwards, Reynaldo Pascasio asked him to
accompany him in bringing his passengers to San Narciso and he acceded. When
Doming Lachingco talked to him, he was alone and did not know he had
companions. But, when Doming Lachingco boarded the tricycle, two (2) others also
boarded the tricycle (p. 24, Ibid). Of the three (3) passengers, two were tall. Doming
Lachingco was the tallest, while the third passenger was the smallest. The latter
wore short pants and a red T-shirt.
On the way to San Narciso, Zambales, a commotion among passengers ensued
inside the sidecar of the tricycle. Reynaldo Pascasio, the driver, then stopped his
tricycle and the three (3) passengers, including Doming Lachingco inside the sidecar
alighted. Then, the three (3) passengers had a free-for-all fight on the ground. He
noticed that Doming Lachingco was already bloodied but the deceased was not yet
bloodied. Then, all of a sudden, he saw Doming Lachingco holding a glittering object,
swinging it towards the shortest man in the group and the latter fell on the right side
of the road just infront of the Beddeng-Mabangcal Elementary School about four (4)

meters from the tricycle. He then told the tricycle driver, Reynaldo Pascasio, to leave
the passengers. And, the tricycle driver maneuvered his tricycle in order to leave his
passengers in the sidecar, but Doming Lachingco and his companion held the
baggage rack (parilla) of the tricycle and boarded the tricycle.
After coming from San Narciso, Reynaldo Pascasio drove the tricycle to his (Januario
dela Cruz) house at West Dirita, which is about one (1) kilometer from the National
Highway, because Reynaldo Pascasio told him, after coming from San Narciso, that
he would bring him home. And, instead of passing through the access road leading to
the U.S. Naval Communication Facility and the checkpoint, they passed behind the
Mini-Mart and exited into the road going to the Base. Upon arrival infront of the
house of accused Januario dela Cruz, Doming Lachingco asked Januario dela Cruz
if he could wash his hands at his gate. And after Doming Lachingco and his
companion had finished washing the tricycle of Reynaldo Pascasio, they left (p. 21,
t.s.n., April 5, 1988). Then, he went inside his house; that he did not voluntarily wash
the blood from the sidecar of the tricycle of Reynaldo Pascasio and he was
threatened with death by Doming Lachingco if he would report the incident. That was
why he did not report the incident (p. 12, t.s.n., April 5, 1988).
To corroborate the claim of Januario dela Cruz that he did not wash the tricycle of
Reynaldo Pascasio, Mercy de Guzman, a neighbor of accused Januario dela Cruz at
Purok 5, West Dirita San Antonio, Zambales, declared that between 10:00 and 11:00
o'clock in the evening on August 3, 1987, she was then at the balcony of her house
having some fresh air when accused Januario dela Cruz alighted from a tricycle.
After alighting therefrom, she saw him go inside his house. 3
In returning its verdict, the lower court relied on the testimony of Reynaldo Pascasio, who drove the
tricycle in which the stabbing occurred, who narrated in detail the tragic trip from East Dirita San
Antonio, Zambales to San Narciso, Zambales, and who implicated dela Cruz as one of the men who
went on that journey.
Dela Cruz assigns a lone error committed supposedly by the trial court, that is, that it was mistaken
in holding him liable as a co-conspirator in the killing of Rodolfo Pamoleras, Jr.
As the trial court noted, there is no dispute as to the corpus delicti. Neither is it questioned that
Januario dela Cruz did not personally inflict any injury on the deceased, other than the fact that at
the time the latter died, he was in the scene of the crime. What is apparent is that it was either
Doming Lachingco 4 (who has since remained at large and hence, beyond judicial jurisdiction), or the
"Doe" accused, who actually knifed the victim. The issue then is whether or not dela Cruz may be held
responsible on the theory of conspiracy.
The issue hangs on credibility of witnesses, and in this connection, this Court has time and time
again held that "credibility" is the sole province of the trial court. 5
Apart from that, the records themselves amply show that Januario dela Cruz was indeed, a coconspirator in the murder of Rodolfo Pamolares.

Reynaldo Pascasio's testimony was candid and straightforward, and more importantly, dela Cruz has
shown no improper motive on Pascasio's part that may have led him (Pascasio) to lie on the stand.
Dela Cruz's version that he had all along been but a chance passenger in Pascasio's tricycle and
that he had merely accompanied Lachingco, et al., and that on their way, a free-for-all had broken
out leading to the fatal stabbing, is hardly believable. First, according to him, Lachingco was a total
stranger who had merely asked him a favor (to look for a ride to San Narciso). If this were so, there
was no need to go with him on that ride. As common experience suggests, one does not simply
hang around with perfect strangers. Second, he did nothing after Lachingco had disposed of the
victim's remains (laid by the roadside), and subsequently, after they had all gone home. His own
evidence does not indicate that he had indeed, thereafter sought to alert the authorities about the
murder he had witnessed, or at the very least, have Pascasio come forward to acquit him. His
behavior certainly does not speak his innocence.
On the testimony alone of Reynaldo Pascasio, this Court is convinced that Januario dela Cruz was a
co-conspirator in the murder of Rodolfo Pamoleras, Jr., and must be held as a co-principal along
with the actual killers. A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. 6 While proof of the agreement need
not rest on direct evidence, the agreement itself may be inferred from the conduct of the parties,
disclosing a common understanding among them with respect to the commission of the
offense. 7 Pascasio's recital that dela Cruz was one of Lachingco's gang, one of whom thrust a fatal stab
wound on the deceased and threw his cadaver by the roadside, after which dela Cruz instructed him,
Pascasio, to take another route, and that he, dela Cruz, later washed the dead's blood off the vehicle, are
an eloquent testimony of a conspiracy in the murder of Rodolfo Pamolares, Jr. It is also proof of treachery,
in which the malefactors, without warning and with no risk to themselves, did away with Pamolares. On
this score, however, this Court can not appreciate evident premeditation as a qualifying circumstance,
because in evident premeditation, the time intervening between the plan to slay the victim and the actual
slaying must be shown. 8 As to "use of motor vehicle," the evidence indeed shows that dela Cruz, et al.
had deliberately availed themselves of a tricycle in order to consummate their dastardly act and to use it
as cover to facilitate it.9
WHEREFORE, the decision appealed from is AFFIRMED. No Costs.
SO ORDERED.
Melencio-Herrera (Chairman), Padilla and Regalado, JJ., concur.
Paras, J., is on leave.

Footnotes
1 Branch 71, Iba, Zambales, Hon. Santiago Maliwanag, Presiding Judge.
2 Rollo, 17-20.

3 Id., 20-22.
4 Referred to as "Romy" Lachingco on page two of the decision; Id., 17.
5 People v. Caringal, G.R. No. 75368, August 11, 1989.
6 REV. PEN. CODE, art. 8; People v. Saavedra, No. L-48738, May 18, 1987, 149
SCRA 610 and host of cases cited there.
7 Supra.
8 People v. Balansi, G.R. No. 77284, July 19, 1990.
9 See People v. Tingson, No. L-31228, October 24, 1972, 47 SCRA 243.

20. P vs cabato, L-37400, April 15, 1988

THIRD DIVISION
G. R. L-37400 April 15,1988
PEOPLE OF THE PHILIPPINES, plaintiff-appellee.
vs.
SABANGAN CABATO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Reubin L. Maraon for accused-appellant.

CORTES, J.:
Accused-appellant Sabangan Cabato appeals from the judgment of the Court of First Instance (now
Regional Trial Court) of Zamboanga del Norte finding him guilty of the crime of ROBBERY WITH
HOMICIDE in Criminal Case No. 307.
The facts of the case are as follows:
In an INFORMATION dated February 12,1971, the Provincial Fiscal of Zamboanga del Norte
accused Sabangan Cabato of ROBBERY WITH HOMICIDE committed as follows:
That in the evening on or about the 25th day of January, 1971, ... the said accused
SABANGAN CABATO, conspiring, confederating and working together with two (2)
other DOES who are stin at large, all armed with firearms and stones and with intent
of illicit gain by means of force, violence and intimidation against persons, did then

and there wilfully, unlawfully and feloniously enter the dwelling house of one VICTOR
GUINIT and once inside attack, hold tight and squeeze the mouth of Id Victor Guinit,
and hug his wife Herminia Ames Guinit, and then rob them of cash money (coins) in
the amount of P300.00; ... that in pursuance to (sic) their evil motives, during and on
the occasion of said robbery, the above-named accused taking advantage of their
superior strength and of the darkness of the night to better accomplish their purpose
and with intent to kill by means of treachery and evident premeditation, did there and
then willfully, unlawfully and feloniously attack, strike with stones for several times
said HERMINIA AM-ES GUINIT thereby inflicting upon her several abrasions and
contusions... which caused her death on the spot;. .
xxx xxx xxx
CONTRARY TO LAW with the aggravating circumstances of treachery and evident
premeditation, dwelling, superior strength, and without respect due to ages of the
victims (spouses) and due to the sex of Herminia Ames Guinit [Rollo, pp. 9-101.
Upon arraignment, the accused, assisted by counsel, pleaded NOT GUILTY.
During the hearings in the Trial Court, the prosecution, relying heavily on the eyewitness account of
Victor Guinit, established that:
xxx xxx xxx
Offended party Victor Guinit, 69 years old, widower, testified that he knows accused
Sabangan Cabato personally; that witness pointed to accused in open court, that on
January 25, 1971, his wife was his only companion in their house; that at around
7:30 p.m., three persons came to their house while they were taking supper; that his
wife brought food to their dog; that they have two lamps in the house, one lamp near
the bed, and another lamp brought by his wife; that the two persons [who] hugged
him covered his mouth; that the robber hit his mouth with a stone causing s tooth to
fell out (sic); that one of the robbers grappled with his wife, and the mask covering
the face fell out (sic) and his wife recognized accused Sabangan Cabato; that his
wife shouted. 'Sabangan, do not kill us, we will give you the money,- that the
accused was at a distance of three meters from him; that accused Sabangan Cabato
said: "Get your money; that she (deceased) said: "Victor, we will give the money in
the piggy bank"; that his wife went down; that later the deceased said: "Victor I do not
know where you put the money; that the robbers untied him and he went downstairs;
that he got the money and gave the same to one of the bandits; that one of the
bandits said, let us go upstairs, and got (sic) the paper bills, we want P3,000.00; that
the money given to the bandits were their saving (sic) for five years consisting of
coins which were proceeds from the sale of the bananas; that the deceased and
accused Cabato went to the kitchen; that they told the bandits that we do not have
paper bills an of the bandits struck d that they do not have P3,000.00; that one of the
bandits struck him with a pistol while the other boxed him that one of the bandits
struck the back of his head with a stone and his teeth fell out that the accused and

his companions left the house; that he noticed that wife was already dead; that he
gave the stones to the police (Exh. C, C-1, C-2); that after the bandits left, he untied
himself, that he called for held but nobody came; that he went to his two married
sons who were living uphill; that the land owned by them is two hectares; that the two
bandits wore masks. [CFI Decision, pp. 5-6,] (Emphasis supplied.)
xxx xxx xxx
On the other hand, the accused vehemently denied his alleged participation in the gruesome crime
and testified to the effect that:
xxx xxx xxx
...he [Cabato] knew offended party Victor Guinit and his wife since he was young;
that the home of the Guinit is one kilometer away from his house; that he visited
them before as a neighbor; that the Guinit has (sic) children named Felix and Isco
who are living at tambalang ; that he never committed the crime of robbery with
homicide attributed to him; that on January 25, 1971, he was gathering corn in their
farm in the interior at Balatan, Salug together with his father-in-law; that he left
Tambalang bound for Balatan at 6:00 A.M., the same day; that he gathered corn and
returned to Tambalang at 5:00 P.M. and then pastured his carabao and stayed in his
house the whole night; that on January 25, 1971, in the evening, he did not know of
any robbery; that on January 26, 1971, he was informed by their neighbors of the
robbery; that he was Hold that the victims were the Guinits; that as a moslem he did
not go to the Guinit to give alms as they are prohibited; that be met the son of Guinit
named Felix Guinit in the house of Isco; that he went Isco Guinit to find out if the
report of the robbery of the parents of Isco is true; that Isco Guinit told him that the
robbers were not Identified; that the amount taken was P80.00; that on January 29th,
he was arested at the market of Tambalang;...[CFI Decision, pp. 12-13].
xxx xxx xxx
Faced with the issue of whether or not the accused was guilty beyond reasonable doubt of the
crime-barged, the Trial Court had to first settle the question concerning the positive Identification of
Sabangan Cabato as one of the robbers who killed the deceased Herminia Ames Guinit.
Weighing and evaluating the evidence on record, the Trial Court rendered the following decision:
xxx xxx xxx
There exists no doubt that accused Sabangan Cabato was clearly Identified as one of the
participants in the gruesome crime that took place in the residence of Victor Guinit on January 25,
1971. By his own admission, accused Sabangan Cabato is well-known to the Guinit family for their
houses are only one kilometer apart. Accused Cabato visited the house of the deceased at least two
times. Besides, during the incident in question, there were two kerosene lamps in the house of Victor
Guinit which illuminated their home such that the solicitors were clearly seen. Another factor that

clinched the Identification of the accused, Sabangan Cabato, is the fact that when the deceased,
Herminia Guinit grappled with the accused Cabato, the mask woman by the accused Cabato fell so
much so that the deceased exclaimed, "Sabangan do not kill us, we will give you the money.
According to the evidence, accused Sabangan Cabato brought the deceased to the kitchen in order
to compel her to divulge the whereabouts of the P3,000.00 paper bills. But the deceased denied they
had any other money except the coins inside the bamboo tube in the approximate sum of P300.00,
which led the accused, Cabato, to strike the deceased with the stone in the head which caused
cerebral hemorrhage (Exh. A) leading to her death.
From the findings of the Sanitary Inspector who examined the injury suffered by deceased Herminia
Guinit, the cerebral hemorrhage was caused by hitting the head with a hard object presumably a
stone (Exh. C, C-1, C-2) which were (sic) found in the kitchen near the dead body.
The contention of the defense that Victor Guinit was unable to Identify any of the perpetrators for the
police blotter (Exh. 1) is devoid of merit.
According to Patrolman Mananguil and Llenes, they were informed by Victor Guinit on January
28,1971, that accused Cabato was one of the robbers who perpetrated the crime. The investigation
was conducted in the Office of the Chief of Police and on the 29th day of January, 1971, accused
Cabato was brought for Identification in the Municipal Building of Salug. Although accused Cabato
was together with-any persons, Victor Guinit pinpointed him as one of the robbers.
The accused defense is alibi, claiming that he was in Barrio Balakan, in the house of his in-laws
gathering corn. But his testimony must be rejected for lack of sufficient corroboration. Outside of his
lone testimony, no other witness was presented to substantiate his alibi. [CFI Decision, pp. 15-17.]
(Emphasis supplied.)
xxx xxx xxx
Maintaining his innocence, accused appeals the decision assetting that his guilt has not been proven
beyond reasonable doubt. His Identification by the prosecution witness Victor Guinit allegedly lacked
definiteness and concreteness not to mention that it was tainted with serious inconsistencies [Brief
for the Accused, p. 1]. These alleged. inconsistencies painstakingly narated by accused.-appellant
cannot overturn the finding of guilt by the Trial Court.
Accused-appellant alleged that Victor Guinit, in his cross-examination, declared that he recognized
the accused when the place of cloth which covered the latter's mouth fell down as a result of the
grappling by the deceased [TSN, June 8, 1972, p. 2]1. But in his examination in chief, he testified
that he recognized the, accused as early as when the robbers were still at the recognized the
accused as early as when the robbers were still at the door [TSN, Jure 8, 1972, p, 14]. This is
allegedly incredible because when the robbers were at the door, they still had their marks on Brief for
Accused, p, 4].
A close perusal of the direct examination of Victor Guinit would show that the Identification of Cabato
was indeed made when the latter's mask fell down.

xxx xxx xxx

Q Now, what did you do when you noticed that after your wife opened
the door, Sabangan Cabato bumped your wife with two (2) other
persons?
A The two (2) other persons passed towards me and hugged me; one
of them covered my mouth with his palm and I was hit by a piece[of
stone] on my nape and one of my teeth fell down.
Q Now what about this Sabangan Cabato, what did he do?
A He grappled with my wife.
Q And what happened while [he was.] grappling with your -wife?
A During the course of the grappling, my wife happened to scratch
Sabangan Cabato's face and the piece of cloth used as mask fell
Q Now, how far were you from your wife and Sabangan Cabato,
while the two (2) were grappling each other?
A About three (3) meters.
Q Now, from that distance, were you able to recognize and Identify
the person grappling with your wife?
A Yes.
Q How were you able to recognize him?
A Because his mask fell down. [TSN, June 8, 1971, pp. 14-15.]
xxx xxx xxx
Accused-appellant further pointed out that Guinit, in his cross-examination, testified that he was
unconscious for 20 minutes after he was struck with a stone by one of the robbers [TSN, June 8,
1972, P. 24). Accused alleged that if Guinit was unconscious, it was physically impossible for him to
see what happened in the kitchen between the deceased and the accused nor to see the falling
down of the mask.
However, the Identification of the accused was made by Victor Guinit even before the former
proceeded to the kitchen with the deceased. The sequence of events as culled from the records
would reveal that when the deceased was opening the door to feed the dog, three masked men
bumped her on their way into the house. Once inside, two of the masked men hugged Victor Guinit
while the third grappled with Herminia. During the course of the grappling, the wife happened to

scratch the face of the masked man as a result of which the mask fen down. This was when the
Identity of the accused was revealed to the couple with the wife exclaiming, "Sabangan, do not kill
us. We will give you the money." [TSN, June 8,1972, p. 15.] At that precise time, Guinit was only
three meters away from his wife. Afterwards, Guinit proceeded to where the money was hidden then
he went back into the house to hand over the money. Not being satisfied, the robbers demanded for
paper bills which the couple denied possessing. This was when the two robbers whose Identities
were not revealed, beat Guinit while Cabato went to the kitchen with Herminia.
The other inconsistencies alleged by the accused to buttress his appeal centered on minor details.
Conceding that there may have been inconsistencies in the testimonies of the prosecution, these far
from being badges of fraud and fabrication, can justifiably be considered as a manifestation of good
faith and a confirmation of the fact that the witness was not a rehearsed witness. It is a truism that
the most candid witness oftentimes makes mistakes but such honest lapses do not necesssarily
impair his intrinsic credibility. [People v. Alcantara, L-26967, 33 SCRA 812; People v. Canada, G. R.
No. 63728, Sept. 15, 1986, 144 SCRA 121]. Inconsistencies in the testimony of witnesses due only
to inaccurate expressions or honest mistake or observations are not fatal. [People v. Demalate, L38960, March 30, 1982, 113 SCRA 353; People vs. Delavin, G.R. Nos. 73762-63, Feb. 27, 1987,
148 SCRA 257]. When they lie.
Further, there was not even an iota of evidence presented by the accused-appellant ascribing to
prosecution witness Guinit any motive or intent to implicate the former as the person who killed his
wife. The testimonies of both the prosecution and the defense, in fact would picture the Guinits and
the Cabatos as neighbors on good terms. As the accused himself narrated, the Guinits were
neighbors whom he used to visit since he was young. In this light, Guinit's testimony becomes more
credible. As was held in one recent case:
xxx xxx xxx
We have no doubt about the credibility of Rolando Blanco [the witness"). ... The
recorda do not show any improper motive on his part to falsely implicate the
appellants in this diabolic crime. In fact, Antonio Guilbao is his first cousin. They
were, all positively identified by Blanco. [People v. Ladrera, G.R. 55339, May 21,
1987, 150 SCRA 113, 123-124.]
Accused's admissions would negate any improper motive for Guinit to testify falsely against him. In
this
Summing up, the alleged inconsistencies brought forth by the accused boil down to the question of
the eyewitness' credibility.
Time and again, it has been held that the Supreme Court respects the trial court's findings on
credibility of witnesses [People v. Palon, L-33271, Feb. 20,1984,120 SCRA 529; People v. Dava
Nos. L-41642-41645, May 15, 1987, 149 SCRA 582]. The appellate court will not disturb the factual
findings of the lower court for the latter is in a better position to gauge the credibility of eyewitnesses.
[People v. Mercado, G.R. No. 65152, Aug. 30,1984,131 SCRA 501] "The matter of assigning value to

declarations at the witness stand is best and most completely performed by a trial judge who, unlike
appellate magistrates can weigh such testimony in the light of the defendant's demeanor, conduct
and attitude at the time and is thereby placed in a more competent position to discriminate between
the true and the false" [People v. Bermudez, L-30931, June 28, 1974, 57 SCRA 629, People v.
Laganzon, L-47118, May 21, 1974, 129 SCRA 333, 347].
In this case, the decision of the trial court clearly outlined the evidence for both prosecution and
defense. The trial judge had observed the demeanor of both prosecution and defense witnesses on
the witness stand and found nothing amiss with the credibility of the prosecution witness.
Accused interposed alibi as his defense claiming that he was in Balakan gathering corn with his wife
and in-law [TSN, Dec. 13,1972, PP. 10-11].
Considering however that the Identification of the accused was positively established, accused's
defense of alibi becomes weak.
Alibi is one of the weakest defenses by an accused especially if there is direct testimony of an
eyewitness Identifying the accused as the culprit. [U.S. v. Garcia, 9 Phil. 434 (1907); People v.
Coronado, G.R. No. 68932, Oct. 28, 1986, 145 SCRA 250; People v. Inot, 36790, May 29, 1987, 150
SCRA 322]. It is rarely given credence because it is easily fabricated [People v. Millarpe G.R. No.
69281, Feb. 25,1985,134 SCRA 555; People v. Petil, G.R. No. 70223, Mar. 31, 1987,149 SCRA 92].
Uncorroborated alibi, as in this case, is not credible against positive Identification (People v. Jones,
G.R. No. 61165, June 24,1985, 134 SCRA 166; People v. Canturia, G.R. No. 67598, Oct. 11,
1985,139 SCRA 280]. Alibi does not deserve much credit as it was established only by the accused
himself without any corroboration from his wife or in-law.
xxx xxx xxx
Absence of such corroboration, in the light of the categorical statement of one of the
victims, . . . , that he saw [accused] stab Luisita Apostol because there was a lighted
post at the place of the incident ... is fatal to the defense. [People v. dela Cruz, G.R.
Nos. 71044-45, Mar. 16,1987, 148 SCRA 582, 589].
xxx xxx xxx
The Court now addresses itself to the aggravating circumstances alleged by the plaintiff-appellee to
have attended the commission of the crime.
The prosecution argues that since "the attack was by a robust man of 29 years with a huge stone
against an ageing defenseless woman" (Brief for Plaintiff-Appellee, p. 15], abuse of supe prior
strength should aggravate the crime.
The records of the case are bereft of any information with respect to the physical conditions of both
the accused and the victims. Thus, abuse of superior strength cannot be considered. This
aggravating circumstance depends on the age, size and strength of the parties. It is considered
whenever there is a notorious inequality of forces between the victim and the aggressor, assessing a

situation of superiority of strength notoriously advantageous for the aggressor which is selected or
taken advantage of by him in the commission of the crime. To take advantage of superior strength
means to purposely use excessive force out of proportion to the means of the defense available to
the person attacked [People v. Cabiling, L-38091 Dec. 17, 1976, 74 SCRA 285, 303].
In this case, the prosecution failed to prove that there was indeed a notorious inequality between the
ages, sizes and strength of the antagonists and that these notorious advantages were purposely
souhgt for or used by the accused to achieve his ends.
However, the Court considers dwelling as an aggravating circumstance since it has been proven
that, indeed robbery with homicide was committed inside the house of the offended parties. Dwelling
is aggravating in robbery with violence or intimidation because this class of robbery can be
committed without the necessity of trespassing the sanctity of the offended party's house [People v.
Mercado, L-39511, April 28,1980, 97 SCRA 232; People v. Dajaresco, L-32701, June 19, 1984, 129
SCRA 576; People's vs. Gapasin, G.R. No. 52017, Oct. 27, 1986, 145 SCRA 178].
Likewise, the Court considers disguise as another aggravating circumstance. The accused, together
with two others, wore masks to cover their faces. There could have been no other purpose for this
but to conceal their Identities particularly for Cabato who was very much known to the offended
parties. The fact that the mask subsequently fell down thus paving the way for Cabato's Identification
will not render this aggravating circumstance inapplicable. In a recent case, the Court held 'that
Darwin Veloso and his five (5) companions wore masks [which eventually fell down] to conceal their
Identities during the commission of the crime constitutes disguise" [People v. Veloso, L-32900, Feb.
25, 1982, 112 SCRA 173, 182].
Robbery with homicide under Art. 294 (1) of the Revised Penal Code is punishable with reclusion
perpetua to death. However, in view of Sec. 19 (1), Art. III of the 1987 Constitution the supreme
penalty of death can no longer be imposed.
WHEREFORE, the appealed judgment is hereby AFFIRMED insofar as the judgment sentenced the
accused to suffer the penalty of RECLUSION PERPETUA but is MODIFIED insofar as the civil
indemnity is concerned which is hereby increased to P30,000.00.
SO ORDERED.
Fernan, (Chairman), Gutierrez, Jr., Feliciano, and Bidin, JJ., concur.

21. P vs daen, Jr., 244 scra 382

22. P v cabangcala, GR 135065, August 8,2001

EN BANC
G.R. No. 135065

August 8, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

BENNY CABANGCALA y ABRASIA, RENATO CABANGCALA y ABRASIA alias "RENE", and

DANILO CABANGCALA y ABRASIA alias "DANNY", accused-appellants.
MELO, J.:
Before this Court on automatic review is the judgment rendered by Branch 51 of the Regional Trial
Court of the First Judicial Region stationed in Tayug, Pangasinan, sentencing to death two of herein
accused-appellants, as well as the appeal of the third accused-appellant who was still a minor at the
time of the commission of the crime of murder.
The Information charged as follows:
That on or about the 7th day of February, 1997, in the evening, at Brgy. Pangangaan,
municipality of Umingan, province of Pangasinan, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, with intent to kill, armed with a bamboo,
and with the use of superior strength and evident premeditation, and taking advantage of
nighttime, conspiring, confederating and helping one another, did then and there wilfully,
unlawfully and feloniously, strike, maul, box and hit one DIONISIO PASCUAL, inflicting upon
the latter mortal wound on his head and different parts of his body which caused his
instantaneous death, to the damage and prejudice of the heirs of DIONISIO PASCUAL.
CONTRARY to Article 248 of the Revised Penal Code.

(Record, p. 1.)

The antecedent facts are summarized as Counterstatement of the Facts in the People's Brief in this
wise:
On February 7, 1997, at around 2:00 o'clock in the afternoon, Rovellano Abrasia, fifteen
years old, testified that he and his first degree cousins, the Cabangcala brothers, Benny,
Rene and Danny (appellants herein), had just finished cutting cogon in the mountains of
Barangay Ricos, Umingan, Pangasinan. He [Rovellano] accompanied Danny to the barber
shop of Merced Abrasia in Barangay Pangangaan of the same municipality (pp. 2-6 & 8, tsn.,
Aug. 14, 1997; pp. 2-3, tsn., Sept. 5, 1997)
While having his haircut, Danny saw the victim Dionisio "Isio" Pascual drinking gin with
Anciong Abrasia and Quisot Camacho in front of the house of Corazon Morante (pp. 4-6,
tsn., Aug. 14, 1997). Thereupon, Danny pointed to the victim and told Rovellano "that man is
Isio Pascual" (pp. 7-8, Ibid.).
Later, Rovellano and Danny went to the latter's house, some 100 meters from Morante's
place, where they drank gin together with Benny and Rene (pp. 13-14, tsn., Sept. 1, 1997;
pp. 5 to 5-A, tsn., Sept. 3, 1997). There, Rovellano overheard the Cabangcala brothers
talking about the victim (p. 14, tsn., Sept. 1, 1997). Rovellano recalled that a week before,
Mario Cabangcala, appellant's younger brother, told him that he had a quarrel with the
victim's son (p. 13, tsn., Sept. 2, 1997). At around 5:00 o'clock in the afternoon, that same
day, Benny announced a plan to kill the victim (p. 20, ibid.) The four continued drinking until
10:00 o'clock in the evening during which period Danny would occasionally go out to verify if
the victim was still at Morante's place (pp. 2, 6 to 8, tsn., Sept. 3, 1997). Danny reported to

the group that the victim was still there lying down while his drinking buddies Anciong and
Quisot had already gone home (pp. 5 to 7, ibid.).
The Cabangcala brothers then proceeded to execute their plan and, together with Rovellano,
waited for the victim at a place halfway within the 100 meter distance between the house of
Morante and the Cabangcalas, along a footpath where the expected victim would use in
going home (p. 8, id.). When the group spotted the victim, the latter was bidding goodbye to
Morante saying, "Mare, I will go home now" (p. 7, id..) Immediately, Benny and Danny went
downhill to cut a piece of bamboo about one (1) meter long (p. 9, id.).
As the victim was approaching, Rovellano ran and hid behind a "buri palm" (p. 14, tsn. Sept.
5, 1997). The Cabangcala brothers positioned themselves under a bamboo groove around
five (5) meters away from Rovellano (p. 10, tsn. Sept. 3, 1997; p. 14, tsn. Sept. 5, 1997.)
The victim stopped on the rice paddy about four [4] meters from Rovellano (pp. 13 to 14, tsn.
Sept. 5, 1997). Rovellano. noticed that the victim had a companion whom he did not
recognize but who immediately fled perhaps sensing danger from the encounter (pp. 9 to 10,
& 14, tsn. Sept. 3, 1997). Benny approached the victim and struck him twice with the
bamboo hitting the latter on the left cheek and the neck (p. 15, tsn. Aug. 14, 1997). The
victim fell, after which Danny and Rene joined Benny in mauling the victim (pp. 15 to
16, ibid.).
The victim pleaded for his life saying "Please have mercy on me. Don't kill me" (p. 17, tsn.
Aug. 14, 1997). But the mauling continued. At one point Danny uttered "Nagado nga
ammomon. No saan nga diay anak mo nga pinangpakpak na kaniak saanak nga agibales";
meaning "Nonsense, had not your son clubbed me I would not avenge" (ibid.).
When the victim was rendered unconscious, Rene carried him towards the field east of
Danny's house (pp. 17 & 19, tsn. id.). There, the victim was mauled further with the piece of
bamboo carried by Benny (p. 5, tsn. Sept. 5, 1997). Thereafter, Rovellano accompanied
Danny in getting a sled where they loaded the victim and brought him to the mountain of
Barangay Ricos (p. 19, tsn. Aug. 14, 1997). Using shovels, the Cabangcala brothers dug a
pit where they dumped the victim and covered it with soil (pp. 20 to 21, ibid.). Thereafter,
they all went home (p. 21, id.).
On March 14, 1997, the victim's brother, Fulgencio, and daughter Jennifer, went to the
Umingan Police Station and reported to the police that the victim had been missing since
February 7, 1997 (p. 3-4, tsn. Oct. 6, 1997). SPO1 Jeremias Fernandez conducted an
investigation in Luna Este but failed to obtain favorable results (p. 5, id.).
However, ten (10) days thereafter, on March 24, 1997 Fulgencio returned to the station with
a certain Danilo Abrasia who disclosed that he saw the victim sometime in February 1997 in
Barangay Pangangaan being mauled by the Cabangcala brothers (id.). Hence, SPO1
Fernandez went to Barangay Pangangaan where a secret informant told him that a certain
Rovellano Abrasia had knowledge about the missing person (p. 6, id.). SPO1 Fernandez
found Rovellano that night at a certain bakery in the poblacion of Tayug, Pangasinan (id.).
When confronted by the police, Rovellano admitted that he was with the Cabangcala
brothers when the latter killed the victim in Barangay Pangangaan (pp. 6-7, id.). The police,
thereafter, invited Rovellano to the police station where he executed his statement at around
4:00 o'clock in the morning the following day, March 25, 1997 (pp. 7 to 8, id.; Exh. A., pp. 1112, Record).

On March 25, 1997, upon being told by Rovellano of the exact place where the victim was
buried, SPO1 Fernandez proceeded there together with Rovellano, Fulgencio Pascual, some
members of the Umingan Police, and Barangay officials of the mountainous area of
Barangay Ricos and reached the place at around 11:00 o'clock in the morning (pp. 8-9, tsn.
Oct. 6, 1997). A cadaver was exhumed with the face still complete which Fulgencio identified
as that of his brother Dionisio (p. 9, id., see also pictures in pp. 41, 42 & 43, Record). The
cadaver was thereafter brought to the municipal hall and thereafter to the cemetery for
autopsy (p. 10, id.).
Immediately, SPO1 Fernandez went to the house of Benny Cabangcala with the Barangay
Captain of Barangay Pangangaan (pp. 20 & 21, id.) SPO1 Fernandez saw the three (3)
appellants in the house of Benny about to leave because there were (3) traveling bags and
said appellants were selling a carabao to a buyer from Barangay Prado (p. 22, id.). With the
coordination of the said barangay captain, SPO1 Fernandez was able to invite the
Cabangcala brothers to the police station to shed light on the killing of Dionisio Pascual (p.
20, id.).
The next day, on March 26, 1997, SPO1 Fernandez prepared a Special Report on his
investigation (Exh. E, p. 14, Record). At around 5:00 o'clock in the afternoon of that same
day, Dr. Thelma Busto, Rural Health Physician of Umingan, Pangasinan, examined the
cadaver and prepared the following post-mortem findings:
Post-Mortem Findings:
1. Head multiple fracture of the skull
2. Other parts of the body was in state of decomposition.
CAUSE OF DEATH:
Cerebral Hemorrhage sec. to fracture of the skull.
(Exhibit C, p. 16, Record)
Dr. Busto noted that when the cadaver was bought to her the skin was still intact although it
was soft, tearing and moist. However, the face was still recognizable (p. 5, tsn. Oct 1, 1997).
She prepared a schematic diagram showing multiple fractures with skull, 10 at the back, 4 to
5 at the frontal crown, and 2 on each parietal area (pp. 5-7, id.; Exh. D, p. 15, Record).
The victim's family thereafter took care of his funeral and burial (pp. 3 to 6, tsn. Sept. 26,
1997; p. 26, tsn. Sept. 16, 1997).
Jennifer Pascual Espiritu, one of the victim's daughters, recalled that the last time she saw
her father alive was on February 7, 1997. The day before it, on February 6, 1997, the victim
came to her house in Barangay Luna Este and went fishing with her neighbor. At night, the
victim slept in her house (p. 25, tsn. Sept. 16, 1997). In the morning of February 7, she saw
the victim going home to Barangay L Paz taking the route of Barangay Pangangaan (pp. 25
to 26, id.). When she saw her father again was on March 26, 1997, his remains were already
in a coffin (p. 26, id)

Dionisio Pascual, Jr. never saw his father again after he left their place on January 8, 1997
(p. 12 to 13, tsn. Oct. 10, 1997). He had to leave for Manila and stay there for about four (4)
months because he knew that the Cabangcala brothers planned to kill him (p. 12, id.) on
account of his violent encounters with them on December 25, 1996 during the wedding party
of a certain Josephine Cabanting in Barangay Luna Este where Dionisio, Jr. had boxed
Mario Cabangcala, appellants' younger brother because the latter tried to hit him with a
bottle of "beer grande" when he refused to buy beer for them (pp. 4 to 6, id.). Dionisio, Jr. felt
very strongly that the he was the reason why the Cabangcala brothers killed his father.

(Rollo, pp. 149-157.)

On the basis of the foregoing facts, the trial court rendered the judgment of conviction, disposing
thusly:
WHEREFORE, guilt having been proved beyond reasonable doubt, the Court hereby
convicts the herein accused of the crime of evidently premeditated MURDER defined and
penalized under Article 248 of the Revised Penal Code as amended by Republic Act No.
7659, with the circumstances of abuse of superior strength and nighttime aggravating the
offense.
Accordingly, and pursuant to Article 63 of the same code, the Court hereby sentences the
accused BENNY CABANGCALA and RENATO CABANGCALA to suffer the penalty of
DEATH.
In regard to the accused DANILO CABANGCALA alias "Danny," the Court applies section 22
of Republic Act 7659 and Article 68, paragraph 2 of the Revised Penal Code, in relation to
the Indeterminate Sentence Law, and hereby sentences him to suffer the penalty of from 12
years of prision mayor maximum as MINIMUM to 17 years and one day of reclusion temporal
maximum as MAXIMUM.
The subject accused are further hereby ordered to SOLIDARILY indemnify the heirs of
deceased DIONISIO PASCUAL for damages in the amount of P50,000.00 for his death, and
to pay the costs.
SO ORDERED.

(Record, pp. 225.)

In the automatic review of this case, appellants assign the following errors:
THE HONORABLE TRIAL COURT ERRED IN CONCLUDING THAT THE PERSON
EXHUMED ON MARCH 26, 1997 (sic), IS THAT OF DIONISIO PASCUAL.
THE HONORABLE COURT ERRED IN GIVING CREDIT TO THE BELATED TESTIMONY
OF DANILO ABRASIA THAT WITNESS SAW THE INCIDENT.

THE HONORABLE COURT ERRED IN GIVING CREDIT TO THE TESTIMONY OF

ROVELLANO ABRASIA.
THE HONORABLE COURT ERRED IN NOT ACCEPTING THE DEFENSE OF ALIBI
ADVANCED BY THE ACCUSED.
The Court affirms the conviction of all three accused-appellants.
Firstly, accused-appellants heavily bank on the possibility that the body exhumed by the police
authorities upon information disclosed by Rovellano Abrasia on March 25, 1997, is not that of
Dionisio Pascual, whereby in the absence of the corpus delicti they cannot be convicted of the crime
charged. To cast reasonable doubt, accused-appellants quote prosecution witness Dr. Busto's
statement that "when a person was buried on February 7 and exhumed on March 25, the body
would be so decomposed that it would be hard to identify the person" (Appellants' Brief, p. 1; Rollo,
p. 91).
We are not persuaded for the foregoing statement was obviously taken out of context. Dr. Busto was
stating a general proposition that if a cadaver had been buried for 45 days, it would normally be in
such a state of decomposition making identification difficult. More so, according to Dr. Busto, if the
ground on which the cadaver is buried is wet. The specific finding for this particular cadaver,
however, is that although the cadaver when brought to her was in an advanced state of
decomposition, its face was still "recognizable" because the "skin was still intact" (p. 5, tsn. Oct. 1,
1997). One day before Dr. Busto saw the cadaver, right at the site where the remains of Dionisio
Pascual were exhumed, Fulgencio Pascual (brother of Dionisio), and Victoria Abrasia (a cousin of
Dionisio) positively identified it to be that of Dionisio Pascual.
TESTIMONY OF FULGENCIO PASCUAL:
Q.

And then after digging what was discovered, if there was any?

A.

I saw the cadaver of my brother first the face, sir.

Q.

How do you know that was the cadaver of your brother?

A:
I know him sir because the face was not yet to decomposed. I could still recognize
his face.
Q.
What were the physical features you observed wherein you are now concluding that
he was your brother?
A.
We have a resemblance with my brother the only difference is he was taller and
thinner than me, sir.
xxx

xxx

xxx

Q
Aside from you who else, if any, identified the body right at the place of the
exhumation?
A.

My cousin, sir

Q.

Who?

A.

Victoria Abrasia, sir.

Q.

He (sic) was with you?

A.

Yes, sir, were only two at that time.

(pp. 11 & 12, tsn. Sept. 23, 1997)

Moreover, the body exhumed on March 25, 1997 was given due funeral services. As Dionisio's
daughter, Jennifer, averred, she saw her father already in a coffin on March 26, 1997. We agree with
the trial court's observation that "nobody mourns the death of a stranger." It is hard for this Court to
conceive of the possibility that the family of Dionisio would grieve before the remains of a stranger,
much less spend money for funeral services and burial of somebody other than their own deceased.
This, coupled with the fact that the location of the exhumation site was pointed to by no less than an
eyewitness to the crime and the burial, the Court is convinced that the body recovered on March 25,
1997 is truly that of Dionisio Pascual.
Secondly, accused-appellants find fault in witness Danilo Abrasia's delay in reporting the incident to
the authorities. This, according to them, should have been enough basis for the court to disregard
his testimony. Besides, they claim, Danilo did not actually witness the commission of the crime but
only learned about it through Rovellano Abrasia.
We find this contention lacking in merit, as well.
Delay of a witness in revealing to the authorities what he knows about a crime does not render his
testimony false, for the delay may be explained by the natural reticence of most people and their
abhorrence to get involved in a criminal case. But more than this, there is always the inherent fear of
reprisal (People vs. Basilan, 174 SCRA 115 [1989]). We have ruled on several occasions that "the
delay of several months in reporting the incident to the police does not affect the witness' credibility,
the reluctance of witnesses to volunteer information in a criminal case being of common knowledge
(People vs. Sampaga, 202 SCRA 157 [1991]).
Accused-appellants also imply there is no basis for Danilo to be fearful of reprisal because accusedappellants allegedly did not see him during the commission of the crime. In People vs. Dulay (217
SCRA 103 [1993]) we ruled:
We cannot sustain this contention because whether or not the witnesses feared him only the
witnesses can tell. Fear arises in the subject not in the object of the fear. It is defined as an
unpleasant emotional state characterized by anticipation of pain or great distress. It is a
reaction to an external danger, which is perceived to cause him harm.

(p. 117)

We cannot discount the possibility that fear develops in the mind of the witness despite the absence
of threat from the accused. Besides, reprisal from the accused may come about not only before the
witness reports the crime, but it may also develop after the crime is reported. This is the reason for
enactment of the law on witness protection. In this light therefore, the fact that accused-appellants
did not see Danilo Abrasia witness the crime has no real significance insofar as the said eyewitness'
fear is concerned.

Thirdly, accused-appellants contend that the testimony of Rovellano Abrasia is contrary to natural
experience because even as he appeared to be a participant in the crime, having been present from
the planning stage up to the consummation of the crime, although his cooperation and assistance
were not required by the three accused-appellants who were all brothers. They also cite the fact that
Rovellano left Barangay Pangangaan immediately after the alleged commission of the crime, an
indication, according to them, that he was himself guilty.
We find these circumstances insufficient to discredit Rovellano's testimony. These were all aptly
explained by the fact that Rovellano was himself related to the Cabangcala brothers, accusedappellants in this case. We do not find it odd that he could have actually tagged along with them
during all that time that accused-appellants were plotting the crime up to the time of the actual
commission of the murder. It is also in accord with natural experience for Rovellano to distance
himself from his cousins right after the commission of the crime for fear of being implicated. This will
not be taken as flight similar to that of an accused avoiding appropriate charges and possibly, a
conviction.
It must likewise be noted that his testimony is not the sole basis for the conviction of the three
accused-appellants. The major points in his narration were corroborated by other evidence tending
to bolster his credibility.
Besides
As to the credibility of witnesses it is well established that the findings of fact of the trial court
thereon should not be disturbed on appeal said court being in a better position to decide the
question, from having itself heard and observed the demeanor of the witnesses on the stand,
unless it has plainly overlooked certain facts of substance and value which, if considered,
could affect the result of the case.
(People vs. Perez, 265 SCRA 506, 516 [1996])
In the present case, we find no cogent reason to depart from this settled rule.
Finally, we find unpersuasive accused-appellants' insistence that the trial court erred in not giving
credence to their defense of alibi.
Two eyewitnesses have positively identified the three accused appellants as the perpetrators of the
crime. Alibi cannot prevail over the positive identification of the appellant by the prosecution
witnesses. (People vs. Gabatin, 203 SCRA 225 [1991]; People vs. Tinampay, 207 SCRA 425
[1992]). No jurisprudence in criminal cases is more settled than that alibi is the weakest of all
defenses, for which reason it should be rejected when the accused is sufficiently and positively
identified by credible eyewitnesses to the crime (People vs. Sumalpong, 284 SCRA 464 [1998]). As
we have already ruled, no circumstances are present in the case at hand, which would render
Danilo's and Rovellano Abrasia's eyewitness accounts incredible.
Additionally, the distance between accused-appellants' houses where they claim to have stayed
when the crime was being perpetrated, does not preclude the possibility that they could also have
been at the scene of the crime. They were actually only within fifty meters from the scene of the
crime. It is equally settled that:
The requisite elements for alibi to be appreciated are: (a) to prove his presence in another
place at the time of the perpetration of the offense; and (b) to demonstrate that it would thus

be physically impossible for him to be at the scene of the crime (People vs. Magpantay, 284
SCRA 96 [1998]).
We, however, cannot affirm the trial court's appreciation of the aggravating circumstances of abuse
of superior strength and nighttime.
Regarding abuse of superior strength as aggravating circumstance, what should be considered is
not that there were three, four or more assailants as against one victim, but whether the aggressors
took advantage of their combined strength in order to consummate the offense (People vs. Platilla,
304 SCRA 339 [1999]). In the present case, accused-appellants were priorly unarmed, and it was
only when they were about to commit the crime, while waiting for the victim to pass by the bamboo
groove that they thought of getting some implement, a crude bamboo pole which they cut right there
and then. We further note that only Benny approached the victim, striking him with the said piece of
bamboo. Only after the victim fell, having been struck twice by Benny, did the two brothers joined in
mauling the victim to death. Obviously, the three accused-appellants did not purposely take
advantage of their superior strength.
Now, as regards the aggravating circumstance of nighttime, it may also be noted that indeed, the
plan to kill the victim was hatched as early as 5 o'clock in the afternoon, but accused-appellants did
not execute the plan until 10 o'clock that evening. It may be stressed, however, that for nighttime to
be appreciated as an aggravating circumstance, the court must be convinced that the cover of
darkness was purposely sought for the purpose of ensuring the consummation of the crime.
In People vs. Bitoon (309 SCRA 209 [1999]), we ruled:
Nighttime could not be appreciated where, as in this case, no evidence was presented
showing that nocturnity was specially sought by accused or taken advantage of by him to
facilitate the commission of the crime or to ensure his immunity from capture.

(p. 221.)

There is no evidence in the present case that accused-appellants intentionally sought the advantage
of nocturnity to facilitate the commission of the crime or to ensure immunity from capture. They
simply waited for the victim to finish his drinking spree with his companions, which happened to be at
around 10 o'clock in the evening, and it was when the victim was on his way home, that the
accused-appellants attacked him.
There being no aggravating circumstances to be appreciated against accused-appellants, the death
penalty imposed by the trial court upon accused-appellants Benny and Renato Cabangcala for the
crime of murder cannot be affirmed. Accused-appellants Benny and Renato Cabangcala are,
therefore, sentenced to the prison term of reclusion perpetua.
As for Danilo Cabangcala, who was a minor when the crime was committed, the correct penalty
should be one degree lower which is prision mayor in its maximum period to reclusion temporal in its
medium period (10 years and 1 day to 17 years and 4 months). Applying the indeterminate sentence
law, the imposable penalty for the crime of murder in his case where there is neither aggravating nor
mitigating circumstance, should be 6 years and 1 day of prision mayor in its minimum period, as
minimum up to 14 years and 3 months of reclusion temporal in its minimum period, as maximum.

With regard to civil damages, Dionisio Pascual's heirs should be awarded P50,000.00 as civil
indemnity (People vs. Basco, 318 SCRA 615 [1999]). Moral damages, which include physical
suffering and mental anguish may be recovered in criminal cases resulting in physical injuries or
victim's death, as in this case (People vs. Bromo, 318 SCRA 760 [1999]), which, under prevailing
jurisprudence is fixed at P50,000.00 (People vs. Panida, 310 SCRA 66 [1999]).
WHEREFORE, premises considered, accused-appellants' conviction of the crime of murder is
AFFIRMED but with MODIFICATION as to the imposable penalty, as above indicated. Accusedappellants are further ordered to solidarily pay the heirs of Dionisio Pascual the amount of
P50,000.00 as civil indemnity and P50,000.00 as moral damages, with costs in all instances.
SO ORDERED.
Davide Jr., C .J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo,
Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon Jr. and Sandoval-Gutierrez, JJ., concur.

23. P vs desalisa, GR 95262, Jan 4, 1994

SECOND DIVISION

G.R. No. 95262 January 4, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EMMANUEL DESALISA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Roberto R. Barrales for accused-appellant.

NOCON, J.:
Circumstantial evidence has adequately established the identity of the killer in this case, destroyed
the presumption of innocence in his favor and fulfilled the test of moral certainty sufficient to convict.
Hanged by means of a rope, the victim, accused-appellant's legal wife, and the approximately five
month old fetus in her womb died as a consequence. Unfounded infidelity of the victim moved
accused-appellant to perpetrate the highly condemnable deed. As one proverb goes, "A tranquil
mind gives life to the body but jealousy rots the bones."
Accused-appellant Emmanuel Desalisa, a twenty four year old farmer, was charged with the
complex crime of parricide with unintentional abortion in Criminal Case No. 1017 before the Regional
Trial Court of Sorsogon, Fifth Judicial Region, Branch 52. The information filed in said case reads, as
follows:

That on or about the 9th day of October, 1983, in the (sic) sitio Pinaductan, barangay
San Juan, municipality of Bacon, province of Sorsogon, Philippines, and within the
jurisdiction of this Honorable Court, the said accused moved by hatred and jealousy
with evident premeditation, did then and there, wilfully, unlawfully and feloniously with
intent to kill armed with a sharp pointed instrument, assault, attack, and inflict
physical injuries on the vagina of one Norma Desalisa y Dioneda with whom he was
united in lawful wedlock and who was pregnant for about five (5) months, and
thereafter with the use of rope hang her to a jackfruit tree causing her death and that
of her fetus, to the damage and prejudice of her legal heirs.
That in the commission of the offense there exist the aggravating circumstances of
nighttime and uninhabited place which facilitated the commission of the offense, and
evident premeditation.
CONTRARY TO LAW. 1
Upon arraignment, accused-appellant entered the plea of not guilty. Thereafter, trial on the merits
ensued. On July 10, 1990, the trial court rendered its decision, the dispositive portion of which reads,
as follows:
WHEREFORE, with the circumstancial (sic) evidence pointing to the guilt of the
accused, the Court finds accused Emmanuel Desalisa guilty beyond reasonable
doubt for (sic) the crime of Parricide, and sentences him to suffer the penalty of LIFE
IMPRISONMENT (sic) and to indemnify the heirs of the deceased Norma Desalisa y
Dioneda, the amount of Five Thousand (P5,000.00) Pesos, as burial expenses and
Thirty Thousand (P30,000.00) Pesos as damages.
SO ORDERED. 2
Hence, the present appeal.
The antecedent facts of this case, as culled from the records are, as follows:
Accused-appellant lived with his eighteen year old legal wife, Norma Desalisa, and two year old
daughter in a small nipa house on a hill at Pinaductan, San Juan, Bacon, Sorsogon. There are two
other houses in the neighborhood which are 150 meters away: the house of his parents-in-law and
the house of Carlito Dichoso. These cannot, however, be seen from the couple's house because of
the many fruit trees and shrubs prevalent in the area.
According to Paulina Dioneda, mother of Norma, on October 9, 1983, at about 10:00 o'clock in the
morning, she was informed by the mother of accused-appellant that accused-appellant and Norma
had an altercation. He slapped and boxed her on the stomach. At about 5:00 o'clock in the afternoon
of the same day, Norma complained to her that accused-appellant manhandled her by slapping and
boxing her on the stomach when she told him not to go out of the house and get drunk because
during that time their child was sick; also, accused-appellant was jealous of a man. Even before
October 9, 1983, Norma used to tell her that she was being manhandled by accused-appellant. 3

Vicente Dioneda, father of Norma, testified that on October 9, 1983, at around 6:00 or 7:00 o'clock in
the evening, accused-appellant went to their house and left his child. On the following morning,
between 6:00 and 7:00 o'clock, he went to the house of accused-appellant and Norma. When he
arrived there, he noticed that the plates were scattered on the floor; the kettle with rice that was not
eaten was also on the floor; and the rope which was used to tie the other end of their hammock was
missing. He went out of the house. He saw the couple's pig and observed that it was hungry. He
thought of feeding it with coconut meat so he climbed a coconut tree which was nearby. While on the
third step of the trunk, he saw the back of the body of Norma. He went down the tree and called her.
Inasmuch as she did not answer him, he approached her and touched her back. However, her body
swayed. It was only then when he realized that she was hanging from a branch of the jackfruit tree.
Her neck was tied with the missing rope of their hammock. Her bloody feet were approximately four
inches above the ground. Her dress was wet. He informed his wife immediately about the matter. He
and his wife proceeded to the house of Carlito Dichoso and requested the latter to fetch the
authorities. Accused-appellant often manhandled his daughter because he suspected her of having
a paramour and that the baby in her womb was not his. The last time he saw Norma alive was on
October 9, 1983, at around 4:00 to 5:00 o'clock in the afternoon when she went to their house. He
corroborated the previous narration of Paulina Dioneda on this aspect. He saw accused-appellant at
the municipal building of Bacon on October 10, 1983. He asked accused-appellant why he killed
Norma. Accused-appellant did not answer him but just stooped down. 4
Carlito Dichoso, neighbor of accused-appellant, testified that at about 6:00 or 7:00 o'clock in the
evening of October 9, 1983, accused-appellant went to his house. It was raining during that time.
Accused-appellant borrowed a flashlight because he will be looking for his wife. After two and a half
hours, accused-appellant returned to Carlito's house. He sat on a bench. Carlito asked him whether
or not he found his wife but he did not answer. Carlito told him to look for his wife in the house of his
in-laws because she might be there. Again, he did not answer. Carlito also told him to look for his
wife in the nearby hut because perhaps the heavy downpour prevented her from proceeding home.
Accused-appellant remained sitting on the bench, leaning on the post. He uttered the following
words: "My wife is continuously possessed by devils." Carlito's wife then advised accused-appellant:
"You must be patient with your wife because she is pregnant." Accused-appellant did not answer her.
She then prepared a mat and a pillow for accused-appellant but the latter preferred to remain sitting
on the bench. During the time that it was raining hard, or about 3:30 o'clock in the morning of the
following day, accused-appellant was frightened because he fell down from the bench. He sat again
on the bench and Carlito noticed that he did not sleep anymore. At around 5:00 o'clock of the same
morning, accused-appellant opened the door and said: "If there is something that happened, Manoy
Carlito, what would I do?" Carlito was not able to ask him where he was going because he already
went down. At around 7:30 o'clock of the same morning, Carlito was informed by Vicente and
Paulina Dioneda that Norma is dead. Accused-appellant and his wife used to quarrel because of
jealousy. 5
Corporal Crisonogo Gillego, chief investigator and government prosecutor of the Bacon Integrated
National Police, testified that he was ordered by their station commander to investigate the case of a
woman who was hanged at San Juan, Bacon, Sorsogon. He was accompanied by two members of
the Bacon INP and some barangay officials of San Juan. He saw the woman hanging from a jackfruit
tree branch, whom he later came to know as Norma Desalisa. A rope was tied around her neck. Her
feet were twelve inches above the ground. There were blood stains on the back of her dress and on

her panty. He suspected that it was not a suicide case because he noticed that the hair of Norma
was entangled with the knot of the rope. He opined that if a person is about to commit suicide, he
has to prepare the knot first in order to place it around his neck and then jump. Before Norma was
untied, pictures were taken of her. He also investigated the house of the couple and found that the
rope that was used in hanging Norma was the same as the rope tied to one end of their hammock.
Some things inside the house were not in proper places. He saw accused-appellant at the house of
the barangay captain. He asked him how the incident happened but he did not answer. He asked
him if he suspected somebody as the paramour of his wife. Accused-appellant answered that a
person whose surname is Ariate is courting his wife. He asked accused-appellant whether or not
they always quarrel. Accused-appellant answered that they quarrel sometimes. He noticed that
accused-appellant was trembling while he was asking those questions. He asked him why he was
not in his house. He answered that he was afraid the relatives of his wife might retaliate. Accusedappellant was informed by his mother about the death of his wife. 6
Dr. Amelia Escarcha, resident physician of the Sorsogon Provincial Hospital, conducted an autopsy
on the body of Norma and submitted the following report:
PHYSICAL FINDINGS:
External Findings:
Head & Neck:
1. Rope embedded around the neck with knot
directing to the right lateral of the neck;
2. Contusion, 3 cm., post-auricular area; right;
3. Ligature mark on the anterior neck extending to the
submandibular area & infra-auricular area;
4. Tongue bitten right.
Abdomen:
5. Abdomen enlarged, at about 5 months size with
fetal parts on abdominal palpation.
Genitalia:
6. Scanty pubic hair
7. Parous vagina
8. Hematoma with contusion both labia

9. Punctured wound 1 cm. long & 2 cm. depth,

perineum with slight blood clot, non-perforating.
Internal Examination:
1. Cervix soft, closed, no vaginal discharge
2. Uterus pregnant to about 4-5 months in size.
Internal findings:
1. Lung both lungs collapsed colored grayish.
2. Heart - normal in size.
CAUSE OF DEATH: Asphyxation secondary to hanging. 7
On the other hand, accused-appellant professes his innocence of the crime charged against him. He
speculates that his parents-in-law are harboring ill-feelings against him since his wife died. His
relationship with his wife has deteriorated as early as June 24, 1983, when she told him upon
coming home: "You nearly came upon the man." From that time on, they had no peace at home and
often quarrelled. He did not consider her anymore as his wife. But he suspects nobody of having
killed his wife, for he was of the impression that she probably committed suicide by hanging herself
as previously, she wanted to hang herself but was stopped by her uncle, "Tio Awe." His version of
the incident is, as follows: In the afternoon of October 9, 1983, his wife was in their house. When he
arrived in the evening of that day, he and his wife had an altercation because she suspected him of
having an affair with the daughter of Manoy Carlito. She told him to leave otherwise, she will leave.
So, he left and visited his farm. Upon returning at around 6:00 o'clock in the evening he found his
wife gone and their daughter crying alone. He carried her and proceeded to the house of his
parents-in-law to inquire whether or not his wife is there. Not finding her, he left the child in their care
and proceeded to the house of Carlito. He likewise did not find her there. He then borrowed Carlito's
flashlight to look for her. At that time, he was armed with a sharp bladed instrument. He looked for
her in the huts near their farm but she was not there. When it started to rain, he returned to the
house of Carlito to check whether or not his wife is already there, only to find out that it was not so.
Since it was raining hard, he stayed in the house of Carlito up to around 5:30 o'clock in the morning
of the following day, when he went home hoping to find his wife there. Still, there was no trace of his
wife. Searching around the premises, he saw his wife hanging from a branch of the jackfruit tree. He
was shocked and taken aback because he did not think that his wife would do such a thing. He knew
that she was dead because she was not moving. But the first thing he did was to go to the house of
his parents and informed them about the incident instead of running to her and cutting her down. His
mother went immediately to the police station, while he went to Dominador Baluyot, one of the peace
and order officers to inform him about the incident. 8
Juan Don, a councilor, and Dominador Baluyot, a laborer, testified that there was no eyewitness to
the incident, They opined, however, that accused-appellant did not kill Norma.

In this appeal, accused-appellant imputes error on the part of the trial court for finding him guilty
beyond reasonable doubt despite evidence to the contrary.
Accused-appellant asseverates that the trial court erred in arriving at the conclusion that he was
motivated by jealousy in killing his wife. Not only is this not true but on the contrary, it was the victim
who was jealous. She previously tried to commit suicide but was fortunately prevented from doing so
by the timely intervention of her "Tio Awe". In fact, he spent the night in the house of Carlito Dichoso
which he would not have done if he were guilty. His first impulse, if he had killed his wife, is to go into
hiding to avoid arrest.
The Office of the Solicitor General supports the conviction of accused-appellant. The injuries
sustained by his wife belie his assertion that she committed suicide by hanging herself. His defense
of denial is one of the weakest defenses. The presence of motive and the attendant circumstances,
correctly led the trial court to believe that he killed his wife.
We uphold the conviction of accused-appellant.
The quantum of proof necessary to establish accused-appellant's guilt, albeit based on
circumstantial evidence, is sufficient. There is more than one circumstance. The facts from which the
inference are derived are proven. The combination of all the circumstances is such as to produce
conviction beyond reasonable doubt. 9 Thus, we quote as our own the ratiocination of the trial court:
MOTIVE:
There is not (sic) question (that) there was a serious quarrel between accused
Emmanuel Desalisa and his young wife deceased Norma Desalisa. The accused
admitted the existence of the quarrel to P/Cpl. Gillego, as was testified to by the
mother-in-law of the accused Paulina Dioneda and admitted by the accused when he
testified for and in his own behalf. . . . Likewise, accused admitted (that) one Aryate
was courting Norma and that when the matter was brought out to him, the accused
was trembling and very pale.
Paulina Dioneda testified, which was unrebutted nor denied by the accused, that on
October 9, 1983, at about 10:00 o'clock in the morning, her daughter (deceased)
Norma accompanied by her mother-in-law (mother of the accused) told her she had
an altercation with her husband accused Emmanuel. Norma was, according to her,
slapped, boxed and manhandled by the accused. . . .
When the accused testified for and in his own behalf, he admitted that on October 9,
1983, or immediately prior to Norma's hideous hanging, Norma refused to allow him
to enter the house or she will be the one to leave the house. A statement coming
from a wife when told to a husband cannot be mistaken to anything less than a very
serious quarrel.
The quarrel between accused Emmanuel and deceased Norma prior to and
immediately before the fatal hanging when considered with the kind of quarrel the

couple were having, an affair with another man, culminating to his doubt having
fathered the child Norma was carrying at the time was doubtful (sic). Jealousy (sic) is
a motive as old as time.
OPPORTUNITY TO COMMIT THE CRIME:
The accused has the opportunity to commit the crime. The house where accused
Emmanuel and Norma live as pictured by both the witnesses for the prosecution and
the defense is up a hill and isolated. The whole neighborhood consists of only three
(3) houses. While it is true (that) from any of the three (3) houses, one cannot see
the other because of the fruit trees and shrubs that abound, their distance from each
other is only 150 meters. No one, definitely no one can go up the hill to visit or
whatever without being known to the neighbor. With such an arrangement, no one
can go up the hill to the house of the accused Emmanuel and Norma without their
neighbors, who are related to them, being aware of. Nowhere in the whole evidence,
where neither Norma's family nor accused Emmanuel Desalisa's family, directly or
indirectly, even suspected any stranger for having committed the crime. The accused
himself blamed that (sic) his wife Norma for having taken her own life. He never
pointed his accusing finger to anybody.
As early as 5:00 o'clock in the afternoon of October 9, 1983, accused Emmanuel was
with Norma and their child in their house up the hill at Pinaductan, San Juan, Bacon.
They were all alone in that isolated house when he was not allowed, with threatening
voice, entry in his own house, or his wife will leave the house. What can be more
humiliating to a man aside from a wife being unfaithful to be refused entry to one's
very home? A man maybe able to swallow defeat to a woman's affection, even lose
the love of a wife, but to be scorned and refused entry to one's house by the very
woman who was unfaithful to his love, is something a man cannot take sitting down,
as the accused did take with his own hand the life of his young wife Norma.
The intensity of the hatred of the man who committed the dastardly act of hanging
Norma by the neck tied to the branch of a jackfruit tree is shown by the injury
suffered by the deceased. The injury on the head, the entangled hair of the deceased
to the noose of the rope, the proximity (six inches) of the noose that holds and
encircles the neck of the deceased to that of the branch of the jackfruit tree, the
contusion in the labia minora and punctured wound suffered by the deceased in her
genital area, could have only be done by a man whose manhood was trampled upon,
as accused Emmanuel Desalisa in his jealousy was prone to believe, and in his blind
jealousy not only snuffed the life of his wife by hanging but also tortured and
humiliated the deceased by abusing and inflicting injury to her private parts as a last
act of insult to humiliate her womanhood, as he was insulted and humiliated to (sic)
what he believe (sic) his unfaithful wife has committed against his honor.
Another point that is pointed, is, when the accused was at the house of his neighbor,
his Manoy Carlito Dichoso, after having left said house to look for his wife, he was
asked by Carlito if he found his wife. The accused did not answer the query. He just

sat on the bench and said, "his wife Norma is possessed by devils." When Carlito's
wife who was then present told him to be patient with his wife because she is
pregnant, again, the accused, did not answer. When the accused was at the police
headquarters of Bacon, and in the presence of many, was accused (sic) by his
father-in-law Vicente Dioneda, why he killed his daughter Norma. Again, the accused
did not answer. That when P/Cpl. Gillego was able to extract from him the
information that one Ariate was courting Norma, the accused was trembling and very
pale. These are actuations and circumstances pointing to a man bothered by a guilty
conscience. 10
The uncorroborated assertions of accused-appellant that it was the victim who was jealous of him
and that she has tried to commit suicide previously are nothing but self-serving statements which
cannot outweigh the prosecution's overwhelming evidence to the contrary. 11
There is ample evidence to support the finding that the hanging of the victim was homicidal 12 and not
suicidal, as claimed by accused-appellant. A day after the incident, Vicente Dioneda found scattered
plates and kettle with untouched rice on the floor of the house of accused-appellant 13 while Cpl. Gillego
found that some things in the house were not in proper places. 14 These are indicia or previous struggle.
There were blood stains on the victim's dress, 15 panty, 16 and feet. 17 On her genitalia, the doctor found a
punctured wound, 1 cm. long and 2 cm. deep, with slight blood clot which could have been caused by any
pointed object, sharp bolo or sharp pointed instrument. 18 Accused-appellant admitted during the crossexamination that he was armed with a sharp bladed instrument while he was looking for his wife. 19 The
doctor also found hematoma with contusion on both labia of her genitalia, which could have been caused
by a fist blow. 20 According to the doctor, these injuries could not have been self-inflicted. 21
Although accused-appellant spent the night in the house of Carlito Dichoso and did not flee, this
circumstance standing alone is no brief on his innocence. There is no case law holding that nonflight is conclusive proof of innocence. 22
What strikes the attention of this Court further is the testimony of accused-appellant that when he
saw his wife hanging from a branch of the jackfruit tree, he went to the house of his parents and
informed them about the incident, 23 instead of bringing her down and determining if she was still alive,
and if so, to rush her to any doctor, clinic or hospital. He didn't even bother to let his parents-in-law know
of what happened to their daughter because according to him, he was confused. 24
We find it hard to believe in his excuse, considering that the house of his parents-in-law, is only 150
meters away from his house. 25 Furthermore, it goes without saying that his parents-in-law are the more
concerned persons than his parents with respect to the misfortune that befell their daughter. Or, he could
have proceeded to the house of Carlito Dichoso, which is likewise only 150 meters away from his house.
We view the course of action that he took as akin to seeking sanctuary in the protective arms of his
parents.
The aggravating circumstance of evident premeditation can not be appreciated against accusedappellant absent any proof as to how and when the plan to kill was hatched or what time elapsed
before it was carried out. 26Neither may be the aggravating circumstance of nighttime be appreciated
against him because there is no proof that it was purposely sought or taken advantage of, or that it
facilitated the commission of the crime. 27

However, the aggravating circumstance of uninhabited place is present. The uninhabitedness of a

place is determined not by the distance of the nearest house to the scene of the crime but whether
or not in the place of commission, there was reasonable possibility of the victim receiving some help.
Considering that the killing was done during nighttime and many fruit trees and shrubs obstruct the
view of neighbors and passersby, there was no reasonable possibility for the victim to receive any
assistance. 28 At any rate, in the imposition of the proper penalty we shall disregard the presence of this
aggravating circumstance, which we shall explain later.
We note that the trial court convicted accused-appellant of the crime of parricide only. This is an
error. The evidence on record has shown beyond reasonable doubt that accused-appellant has
committed the complex crime of parricide with unintentional abortion. The abortion was caused by
the same violence that caused the death of the victim. It is unintentional because accused-appellant
must have merely intended to kill the victim but not necessarily to cause an abortion. 29
In case of complex crimes, the penalty for the more serious crime in its maximum period shall be
imposed. 30 The maximum period of the penalty for parricide, the more serious crime, is
death. 31 However, by reason of Sec. 19 (1), Article III of the 1987 Constitution which proscribes the
imposition of the death penalty, the imposable penalty is reclusion perpetua. 32 Being a single indivisible
penalty, reclusion perpetua is imposed regardless of any mitigating or aggravating circumstances. 33
WHEREFORE, the decision appealed from is hereby modified. Accused-appellant is found guilty
beyond reasonable doubt of the complex crime of parricide with unintentional abortion and
sentenced to suffer the penalty of reclusion perpetua. The civil indemnity for the death of the victim is
increased to P50,000.00.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Puno, JJ., concur.

#Footnotes
1 Rollo, p. 10.
2 Rollo, p. 30.
3 TSN, August 16, 1984, pp. 2-16.
4 TSN, July 12, 1984, pp. 17-40.
5 TSN, February 29, 1984, pp. 60-74; TSN, July 12, 1984, pp. 3-12.
6 TSN, October 10, 1984, pp. 2-50.
7 Records, p. 10.

8 TSN, August 21, 1985, pp. 3-46.

9 People v. Cadevida, et al., G.R. No. 94528, March 1, 1993.
10 Rollo, pp. 28-30.
11 People v. Villalobos, et al., G.R. No. 71526, 209 SCRA 304 (1992); People v.
Villanueva,
G.R. No. 77396, 211 SCRA 602 (1992).
12 Legal Medicine by Pedro P. Solis, 1987 Edition, p. 435.
13 TSN, July 12, 1984, p. 22.
14 TSN, Oct. 10, 1984, p. 19.
15 Ibid., p. 11.
16 Ibid., p. 15.
17 TSN, July 12, 19484, p. 27.
18 TSN, February 29, 1984, p. 38.
19 Supra.
20 Ibid., p. 36.
21 Ibid., p. 47.
22 People v. Magtuloy, G.R. No. 105671, June 30, 1993.
23 TSN, August 21, 1985, p. 13.
24 Ibid., p. 21.
25 Ibid., p. 20.
26 People v. Peones, et al., G.R. No. 71153, 200 SCRA 624 (1991).
27 People v. Aguiluz, G.R. No. 91662, 207 SCRA 187 (1992).
28 See People v. Damaso, et al., G.R. No. L-30116, 86 SCRA 370 (1978).
29 See People v. Salufrania, G.R. No. 50884, 159 SCRA 401 (1988).

30 Article 48 of the Revised Penal Code.

31 Article 246 of the Revised Penal Code.
32 People v. Collado, et al., G.R. No. 88631, 196 SCRA 519 (1991).
33 Article 294, paragraph 1 in relation to Article 63, paragraph 1 of the Revised Penal
Code.

24. US v Rodriguez, No 6344 , Marxh 21, 1911

EN BANC
G.R. No. L-6344

March 21, 1911

THE UNITED STATES, plaintiff-appellee,

vs.
MANUEL RODRIGUEZ, ET AL., defendants-appellants.
W.L. Wright for appellants.
Acting Attorney Harvey for appellee.
MORELAND, J.:
This is an appeal by Manuel Rodriguez, Cipriano Galvez, Raymundo Revilla, Dorotea Rojas,
Feliciano Pantanilla, Roman Villaister, Pedro Villanueva, Nicomedes Abella Sabino Raymundo,
Geronimo Guijon, Martin Sauler, Eusebio Bustamante, Victoriano Calipusan and Valentin Multialto
from a judgment o the Court of First Instance of the Moro Province, Hon Herbert D. Gale presiding,
convicting them of the crime of murder and sentencing them each to death.
From the proofs presented by the Government, it appears that the appellants, with nine other, being
members of the second company of the Constabulary stationed at Davao, mutinied on the 6th day of
June, 1909, attempting, during the course of such mutiny, to kill one of their superior officers,
Lieutenant Goicuria; that immediately after such revolt the mutinees, having taken arms and
ammunition from the depositary, left the vicinity of Davao and marched toward the mountains of
Lipada; that on the 8th day of June, 1909, said mutineers returned to Davao for the purpose of
attacking the town; that the inhabitants thereof, having received previous notice of the proposed
attack, prepared themselves to meet it; that J. L. Burchfield, P. C. Libby, A. M. Templeton, and Roy
Libby, armed with rifles, having been detailed by those commanding the defense of the town, on the
afternoon of the day referred to, advanced to the cemetery within the limits of the town, forming an
outpost for the purpose of awaiting the coming of the mutineers; that about 4.15 o'clock they sighted
the mutineers; that immediately thereafter they heard a shot, followed by others, which came from
near the cemetery, where the mutineers had halted and dismounted; that after a few shots had been
exchanged Roy Libby was struck with a ball and killed; that the outpost retreated to the convent and
took refuge therein; that the mutineers advanced against the town, attacking it at various points and
especially the convent, where a portion of the residents of the town had gathered, including the

women and children, or the purpose of defending themselves; that no other person except Roy Libby
was killed, although several others were more or less severely wounded.
What with the confession of some of the accused, the testimony of others, and the evidence
presented by the witnesses for the prosecution, there remains so little a question of fact in this case
that it is substantially unworthy of discussion. That the appellants with others revolted against their
superior officers on the 6th of June; that they returned to Davao on the 8th and attacked it viciously
and persistently, killing one of its defenders and wounding several others; and that they all took a
direct and active part therein, is not only absolutely undoubted from the testimony of the prosecution
but is substantially admitted by all of the defendants in the case. Some of the appellants sought to
defend themselves upon the ground that they had been forced, by threats and intimidation, to take
part in the mutiny and the attack upon Davao by other members o the mutineer band. The evidence
in no way justifies this defense and it is utterly impossible under any construction of the evidence to
sustain it. All of the appellants, however, agree in presenting the defense that they entered the town
of Davao on the 8th of June, not for the purpose of attacking it for the purpose of surrendering to
their superior officers and the governor of the district. Not only it is impossible from the testimony of
the prosecution to arrive at such a conclusion o fact, but it is almost as nearly impossible to arrive at
such a conclusion from the evidence presented by the appellants themselves. No defense upon the
facts worthy of the name has been presented.
As to whether or not there was present premeditacion conocida, qualifying the crime as murder, a
simple reading of the proofs presented by the Government is sufficient to demonstrate that beyond
question or doubt. It appears that all of the appellants, on or about the 8th day of June, at about 11
o'clock in the forenoon, went to the house of Cenon Rasay, some distance from Davao, in order to
obtain information as to whether or not reinforcements had been landed at Davao. On being
informed that, to the knowledge of the persons questioned, none had been landed, they asked the
elder Rasay to permit them to leave at his house the three woman that accompanied them, as they
were going to march on Davao and attack it. The appellant Rodriguez also requested that, in case
he should be killed in the attack, he, Rasay, should treat one of the women, who was the wife of
Rodriguez, as his servant. Having left the women in the house of Cenon, they took up the march to
Davao. On arriving near the river Bagoo, they were overtaken by Ignacio Rasay, a kinsman of
Cenon Rasay, and suspecting that he was going to Davao for the purpose of warning the town
against the meditated attack, they halted him and told him that, if he should give any warning of their
approach, they would cause damage to his family. He having assured them that such was not his
purpose, they permitted him to proceed. The appellants continued on their way and arriving at the
cemetery near Davao heard a shot, which they claim came from those who had seen sent out to
watch for their approach. On seeing this advance guard, the accused dismounted from their horses
and began to fire forming in a skirmish line and advancing steadily. Overwhelmed by the number of
the attacking party, the outpost retreated toward the village, pursued by the appellant. There followed
an attack upon the town, more or less general, of the kind and character generally to be expected
from such a body of men. The attacks was, in a large measure, unsuccessful and the mutineers
withdrew when they saw the futility of further fighting.
The learned trial court found premeditacion conocida as the element qualifying the crime as murder.
The learned counsel for the appellants excepts to this finding and asserts that, inasmuch as the
appellants did not know even of the existence of the deceased, Roy Libby, at the time of his death,

much less that he was at the time in the village they attacked and one of the outpost of four, his
death could not possibly have been premeditated. He argues that, in order that the killing be
premeditated, the accused must have resolved to kill the premeditated person. We do not stop to
discuss this question at length for the reason that it has already been determined by this court
adversely to the learned counsel's contention. In the case of the United States vs. The Moro
Manalinde, "the accused made up his mind to kill two undetermined persons, the first whom he
should meet on the way, in compliance with the inducement of a third person." In its decision the
court said:
As to the other circumstance it is also unquestionable that the accused upon accepting the
order and undertaking the journey in order to comply therewith, deliberately considered and
carefully and thoughtfully meditated over the nature and the consequences of the acts which,
under orders received from the said Datto, he was about to carry out, and to that end
provided himself with a weapon, concealing it by wrapping it up, and started on a journey of
a day and a night for the sole purpose of taking the life of two unfortunate persons whom he
did not know, and with whom he had never had any trouble; nor did there exist any reason
which, to a certain extent, might warrant his perverse deed. The fact that the arrangement
between the instigator and the tool considered the killing of unknown persons, the first
encountered, does not bar the consideration of the circumstance of premeditation. The
nature of the circumstances which characterize the crime, the perversity of the culprit, and
the material and moral injury are the same, and the fact that the victim was not
predetermined does not affect nor alter the nature of the crime. The person having been
deprived of his life by deeds executed with deliberate intent, the crime is considered a
premeditated one, as the firm and persistent intention of the accused from the moment,
before said death, when he received the order until the crime was committed upon the offer
of money, reward or promise, premeditation is sometimes present, the latter not being
inherent in the former, and there existing no incompatibility between the two, premeditation
can not necessarily be considered as included merely because an offer money, reward or
promise was made, for the latter might have existed without the former, the one being
independent of the other. In the present case there can be no doubt that after the crime was
agreed upon by means of a promise of reward, the criminal by his subsequent conduct
showed a persistently and firm intent in his plan to carry out the crime which he intentionally
agreed to execute, it being immaterial whether Datto Mupuck did or did not conceive the
crime, once Manalinde obeyed the inducement and voluntarily executed it. (U.S. vs The
Moro Manalinde, 14 Phil. Rep., 77.)
The trial court found that the crime charged was committed with the aggravating circumstances
following:
8. When craft, fraud or disguise is employed.
9. When advantage is taken of superior strength or means are employed to weaken the defense.
10. When the act is committed with abuse of confidence.
11. When advantage is taken is taken by the culprit of his public position.

13. When the crime is committed on the occasion of a fire, shipwreck or other calamity or misfortune.
15. When it is committed at night, or in an uninhabited place, or by a gang.
16. When the crime is committed in contempt with insult to the public authorities.
As to number 8:
We do not believe that this circumstance was present.
This circumstance is characterized by the intellectual or mental rather than the physical means to
which the criminal resorts to carry out his design. This paragraph was intended to cover, for
example, the case where a thief falsely represents that he is the lover of the servant of a house in
order to gain entrance and rob the owner (astucia); or where (fraude) A simulates the handwriting of
B, who is a friend of C, inviting the latter, without the knowledge of B, by means of a note written in
such simulated hand, to meet B at a designated place, in order to give A, who lies in wait at the
place appointed, an opportunity to kill C; or where (disfraz) one uses a disguise to prevent being
recognized; and cases of that class and nature.
We are unable to find from the facts proved any element which warrants the conclusions of the
learned trial court as to the presence of this circumstance in the commission of the crime of which
the appellants were found guilty. They boldly marched from the mountains of Lipada to Davao, partly,
at least, in the daytime, with the purpose of attacking the town, which purpose they communicated to
at least three person, one of whom was permitted to precede them to the town. they advanced
against the town at about 4.15 in the afternoon without any effort at concealment. They were in no
way disguised, but, on the contrary, each wore the greater portion of the Constabulary uniform in
which he was clad at the time of the mutiny. While it appears that some of them had cloths wrapped
about their heads, it does not appear that this was done as a disguise, but was following rather the
custom of the country in which they had been reared. We find in all the case nothing of craft, fraud or
disguise.
As to number 9:
The circumstance depends upon the relative strength of the one attacking and the one attacked. It
can hardly be said that advantage is taken of superior strength or means are employed to weaken
the defense when twenty-three men, in the daytime, openly and without stratagem of any kind,
attack a town of the size of Davao. the results of the attack clearly show that the strength of the
attacking party was not sufficient to accomplish the purpose in view. They demonstrate, under the
circumstance, that no means were employed to weaken the defense, outside of such as are inherent
in the situation when one body of men attacks another with deadly weapons.
As to number 10:
For the existence of this circumstance it is necessary that there exist a relation of trust or confidence
between the person committing the crime and the one against whom it is committed and that the
former make use of such relation to commit the crime. For example, where one commits a robbery in

a house in which, as a friend of the owner, he is at the time a guest. No relation of this nature existed
between the appellants and the citizens of Davao or the deceased. The evidence fails to disclose a
single fact upon which the existence of this relation can be based.
As to number 11:
In order that this aggravating circumstance exist it is necessary that the person committing the crime
be a public official and that he use the influence, prestige or ascendency which such office gives him
as the means by which he realizes his purpose. The essence of the matter is presented in the
inquiry, "Did the accused abuse his officein order to commit the crime?" We do not believe that the
facts of this case warrant the finding of the trial court in this particular. (Supreme court of Spain,
decisions of 4th March, 1872; 18th December, 1871.)
As to number 13:
The reason for the existence of this circumstance is found in the debased form of criminality met in
one who, in the midst of a great calamity, instead of lending aid to the afflicted, adds to their suffering
by taking advantage of their misfortune to despoil them.
As is readily seen from the facts, no such condition as is described in this paragraph existed in
Davao on the occasion of the attack.
As to number 15:
The second paragraph of this subdivision reads:
The court shall take this circumstance into consideration according to the nature and
characteristics of the crime.
In this case, under all the circumstances, including those presented in the discussion relating to
paragraph 9, the fact that there were more than three armed persons in the attacking party is not
sufficient to call for the application of the provisions of this paragraph.
As to number 16:
The supreme court of Spain has held "that the circumstance of contempt of or insult to public
authority, provided for in paragraph 16 of the Penal Code, can exist only when such authority is
engaged in the exercise of its functions and he who is thus engaged in the exercise of said functions
is not the person against whom the crime is committed in which that circumstance appears;" the
court further saying that such aggravating circumstance was not present in the case before it
"because D. Jose Torres, although he was municipal judge, was the object of the murder involved in
that case."
In the case at bar, if the crime was committed with contempt of and insult to the public authorities,
those authorities must have been the public authorities of Davao. But the persons exercising that

authority were the very persons against whom, among others, the crime charged in this action was
being committed.
After diligent investigation and extended consideration, we have been unable to find that any
aggravating circumstances attended the commission of this crime.
There being present no aggravating circumstances and there existing no extenuating circumstances,
the penalty imposed must be in its medium degree.
The judgment of the court below is hereby modified and the appellants are each sentenced
to cadena perpetua, to the accessories provided by law, to pay, jointly and severally, to the heirs of
the deceased Roy Libby the sun of P1,000 and to pay the costs of the trial.
So modified, the judgment is affirmed, with costs against the appellants.
Arellano, C.J., Mapa, Carson, and Trent, JJ., concur.
25. P v umbrero, GR 93021, May 8, 1991

THIRD DIVISION
G.R. No. 93021

May 8, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARIANO UMBRERO, ALFREDO COSTALES alias PIDO, JIMMY AGLUBA and LEON
CERIA, accused.MARIANO UMBRERO, ALFREDO COSTALES @ Pido, and JIMMY
AGLUBA, accused-appellants.
The Solicitor General for plaintiff-appellee.
Alfredo J. Donato for accused-appellants.

GUTIERREZ, JR., J.:

This is an appeal from the decision of the Regional Trial Court of Aparri, Branch 8, the dispositive
portion of which reads:
WHEREFORE, in view of the foregoing considerations, the Court finds the accused Mariano
Umbrero, Jaime (Jimmy) Agluba and Alfredo Costales alias Pido, guilty of the crime of
MURDER as defined and penalized under Article 248 of the Revised Penal Code and
therefore sentences each of them to suffer the penalty of RECLUSION PERPETUA; to pay
jointly and severally an indemnity of THIRTY THOUSAND (P30,000.00) PESOS to the heirs
of Alfonso Urbi; and each of them to pay 1/7 of the costs. (Rollo, p. 31)
The information filed against the accused reads:

That on or about November 29, 1980, in the Municipality of Lallo, province of Cagayan, and
within the jurisdiction of this Honorable Court, the said accused, Mariano Umbrero, Alfredo
Costales alias Pido, Jimmy Agluba and Leon Ceria, together with Eugenio
Rigon alias Inyong, Bartolome Tangonan and Danny Costales who are still at-large and not
yet arrested, armed with guns, conspiring together and helping one another, with intent to
kill, with evident premeditation and with treachery, did then and there wilfully, unlawfully and
feloniously assault, attack and shoot one, Alfonso Urbi, inflicting upon the latter wounds on
his body which caused his death.
That the offense was committed with the following aggravating circumstances, to wit: (a) that
it was committed with abuse of superior strength, and (b) that it was committed by a band.
(Records, p. 33)
The accused Mariano Umbrero, Alfredo Costales, Jimmy Agluba and Leon Ceria pleaded not guilty
on arraignment. The other accused, Eugenio Rigon, Bartolome Tangonan, and Danny Costales were
not arraigned as they were still at large.
The prosecution evidence upon which the trial court based its finding of guilt beyond reasonable
doubt is as follows:
xxx

xxx

xxx

. . . Angelina Urbi Ragsac, daughter of the victim Alfonso Urbi testified: She was at home in
Sta. Teresa at about 2:00 in the afternoon of November 29, 1980 when several armed men
came, two (2) of whom shot her father under the house, accused Alfredo Costales and
Danny Costales. She was not able to recognize the other armed men. She was two (2)
meters from her father when he was shot. Of the two accused mentioned, she only identified
in Court accused Alfredo Costales. Danny Costales was not present. He was the one who
shot her father. He followed her father when he ran outside the house but the companions of
Alfredo Costales followed and killed him. Alfredo Costales and Danny Costales shot her
father with short firearms. Their companions had long firearms. All the accused ran after
killing her father. She and her mother did not do anything because they were afraid;
however, they went to get the body of her father later on. He sustained five (5) gunshot
wounds on his breast and stomach. She reported the killing of her father to barangay captain
Felix Villamin. Thereafter she executed an affidavit marked as Exhibits "E" and "E-1" which
were admitted by the defense as part of the record. Mariano Umbrero was among the armed
men who came to their house in the afternoon of November 29, 1980. She knows him
personally.
On cross-examination defense counsel Atty. Alfredo J. Donato made reference to question
No. 5 and the corresponding answer, in the affidavit of the witness (Exhibits "E" & "E-1 ") to
be marked as Exhibit "I " for the defense. She admitted that the first one to shoot her father
was Danny Costales of Jurisdiccion, Camalaniugan known and called Dominador who
executed an affidavit. She knew that Alfredo Costales was apprehended. As to Danny
Costales, she does not know whether or not he was apprehended. In 1980 their place was
infested with NPA and she believed that Danny Costales and his companions were members
of the NPA. She does not know of any motive of the armed men in killing her father. She, her
father and mother and her children were then eating on the ground floor of their house when
the armed men arrived. Her father stood up when Danny Costales asked for water to drink.
Her father went to the door to see him and his companions. It was there where Danny
Costales shot him.

On August 5, 1985 the prosecution presented Eugenia Urbi, surviving spouse of the victim
Alfonso Urbi. Her testimony is hereby reproduced substantially: In the afternoon of
November 29, 1980, at about 2:00 o'clock, she and her deceased husband were in the
house of their daughter Angelina Urbi Ragsac in Sta. Teresa, Lallo. To their surprise, armed
men came to ask for water. When her husband went to them to give water he was shot by
Johnny Costales. Mariano Umbrero, Jimmy Agluba and Pido Costales were his companions.
She identified in Court Pido Costales who gave his name as Alfredo Costales, Mariano
Umbrero and Jaime Agluba. Johnny Costales was not in Court. She knows Leon Ceria he
being her barriomate. She saw him the following day after the killing of her husband when he
passed by their house. She did not see Leon Ceria with the group of armed men who went to
their house. She was about a meter from her husband when he was shot by Johnny
Costales in the presence of his companions. Johnny and Danny Costales was admitted as
one and the same person. At the time Danny Costales shot her husband, some of his
companions were near him and some were a little bit far. Those who were near him were the
accused Pido Costales, Mariano Umbrero and Jimmy Agluba. They were all armed. Danny
Costales and his companions left after shooting her husband. Thereafter the killing of her
husband was reported to barangay captain Felix Villamin who instructed Juan Urbi to get the
body of her husband. She could not be compensated for the killing of her husband. She was
investigated, and in connection therewith she executed an affidavit (Exhibits "F" and "F-1").
On cross-examination, she testified that Danny Costales shot her husband three (3) times.
She clarified that when they were eating, Danny Costales and his companions suddenly
arrived. They asked for water. Her husband stood up and went to see them. That was the
time when Danny Costales shot her husband for the first time. Her husband ran outside,
followed by Danny Costales and shot him again. Danny Costales and his companions then
left. She did not go immediately to the place of her husband because she was afraid. At the
time Danny Costales shot her husband, accused Alfredo Costales, Jaime Agluba and
Mariano Umbrero were holding their firearms at their sides. They drew their guns when her
husband ran outside the house; however, they did not prevent her husband from running
outside the house. She could not tell as to whether or not Mariano Umbrero, Jimmy Agluba
and Alfredo Costales fired their guns.
Exhibit "B", sworn statement of Eugenia Urbi, was also adopted as Exhibit "4" for the
defense, to show that the victim sustained five (5) gunshot wounds, the entrance of which
were 0.5 cm. showing that the fatal weapon was fired by one person.
On August 28, 1985 the prosecution presented Martin Pagaduan, also a resident of Sta.
Teresa, Lallo, Cagayan. He was in his ricefield north of the house of Alfonso Urbi on the day
he was shot to death. He saw more than ten (10) armed men passed by going westward.
Not long thereafter, he heard gun reports from the house of Alfonso Urbi which is less than
fifty (50) meters from his ricefield. The armed men returned and proceeded eastward. They
took his brother Juan Pagaduan. He was able to identify Mariano Umbrero, Jimmy Agluba,
Pido Costales, Inyong Rigon, Florante Tabunal and Romy Arellano who were with the group
of armed men he saw. When he heard gun reports he saw the armed men surrounding the
house of Alfonso Urbi. The persons in the house cried loudly. He went to hide because he
was afraid. When the armed men were already gone, he went to the house of Alfonso Urbi.
He saw him already dead in his yard. He sustained gunshot wounds. He identified in Court
accused Mariano Umbrero, Jimmy Agluba and Alfredo Costales. They were all holding
firearms when they passed by. He was confronted with his affidavit taken during the
investigation conducted by the Integrated National Police of Lallo which was marked as
Exhibits "G" and "G-1 ".

On cross-examination he admitted that he was examined during the preliminary investigation

conducted by the Municipal Trial Court of Lallo. His signature appearing therein was marked
as Exhibit "2" and the signature of Judge Pascual as Exhibit "2-B". The question of the Court:
"How did you know that there were ten (10) heavily armed men who were present in the
house of Alfonso Urbi on November 29, 1980 at around 2:00 o'clock in the afternoon when
he was gunned down by these heavily armed persons? Ans. I was around forty (40) meters
away from these heavily armed persons preparing my harrow when I was attracted by the
presence of those armed persons when one of them by the name of Doming Arellano shot
the late Alfonso Urbi with an armalite was marked as Exhibit "2-D". (Rollo, p. 22-24)
The case as against Leon Ceria was dismissed for insufficiency of evidence.
As for Mariano Umbrero, Alfredo Costales and Jimmy Agluba, their version is summarized as
follows:
xxx

xxx

xxx

. . . Mariano Umbrero corroborated his witness Alejandrino Umangay, that they they left Sta.
Teresa and Rosario, respectively because the soldiers ordered them to evacuate; they and
other residents of the barangay were suspected as members of the NPA. On November 29,
1980, Alejandrino Umangay went to collect from Mariano Umbrero an indebtedness of
P200.00. To pay the same Mariano Umbrero sought to mill his palay in Bical, Lallo, a
distance of three kilometers in the ricemill of Gregorio Cabulay. As they were putting in a
sack the palay, two men arrived Ka Al the leader of the NPA and Danny Costales. They
invited Mariano Umbrero to the house of Alfonso Urbi. Mariano Umbrero excused himself for
they were going to mill his palay, and they told him to follow. At 4:00 o'clock their palay was
milled and Mariano Umbrero started for his house at 5:00 o'clock. Mariano Umbrero denied
having been with Danny Costales, when he shot to death Alfonso Urbi.
The accused Alfredo Costales corroborated the testimony of his wife Maria Umoso, that on
November 29, 1980 when Alfonso Urbi was killed he was not in Sta. Teresa, Lallo, for he was
in Aparri, Cagayan on the burial of Benilda Espino, their granddaughter who died on
November 23, 1980 (Exh. 4, Death Certificate) who was buried on November 28, 1980 in the
afternoon, and went back to Sta. Teresa at 5:00 o'clock and arrived at 9:00 o'clock in the
evening. In 1980, the soldiers ordered them to evacuate Sta. Teresa due to the presence of
the NPA. Alfredo Costales denied having been with Danny Costales (no relation) when he
killed Alfonso Urbi on November 29, 1980, at about 2:00 o'clock in the afternoon. (pp. 7, 8
Decision)
The accused Jaime Agluba, corroborated the testimony of his wife Laureta Agluba, who
testified that in 1980 soldiers ordered residents of Sta. Teresa to evacuate due to the
presence of NPA. On November 29, 1980, were not in Sta. Teresa but they were in
Newagac, Gattaran, a distance of about 50 kilometers. (should be 15 kilometers, TSN,
January 17, 1989, pp. 10-11) As is their usual work the accused Jaime Agluba, during
farming time always went to help his sister Estrella Villamin, married to Rufino Villamin. They
left Sta. Teresa on November 23, 1980 and continued living in Newagac, until their return to
Sta. Teresa, Lallo, on December 2, 1980. Jaime Agluba denied having been with Danny
Costales when he killed Alfonso Urbi on November 29,1980." (Appellant's Brief, pp. 3-4)
xxx

xxx

The appellants raise the following assignment of errors, to wit:

xxx

I
THAT THE HON. LOWER COURT ERRED IN NOT DISMISSING THE INFORMATION AS
AGAINST THE ACCUSED MARIANO UMBRERO, THERE BEING NO CRIMINAL
COMPLAINT OR PRELIMINARY INVESTIGATION IN THE MUNICIPAL COURT OR WAS
THERE A PRELIMINARY INVESTIGATION IN THE OFFICE OF THE PROVINCIAL
PROSECUTOR, THUS DENYING HIM THE CONSTITUTIONAL RIGHT TO DUE
PROCESS.
II
THE HONORABLE LOWER COURT ERRED IN CONVICTING ALL THE ACCUSED
TO RECLUSION PERPETUA AND THE PAYMENT OF P30,000.00 INDEMNITY. (Rollo, p.
50)
In the first assigned, error, Mariano Umbrero alleges that he was denied his right to due process. He
states that there was no preliminary investigation conducted as his name not included in the criminal
complaint filed with the municipal court which conducted the preliminary investigation.
The allegation is unmeritorious.
We agree with the Solicitor General that:
xxx

xxx

xxx

. . . [A]lthough appellant Umbrero was not named in the complaint filed by the police with the
municipal trial court for the purpose of conducting a preliminary investigation, the municipal
judge upon being informed that Mariano Umbrero was one of the perpetrators of the killing of
Alfonso Urbi, issued a warrant of arrest and later ordered suspect Umbrero to file his
counter-affidavit. The record shows that appellant Umbrero was given the opportunity to
answer the charges against him during the preliminary investigation. (Appellee's Brief, pp. 67)
Moreover, it has been held in Parades v. Sandiganbayan (G.R. No. 89989, January 28, 1991),
reiterating this Court's ruling in People v. Casiano (1 SCRA 478, [1961]), that:
The absence of a preliminary investigation does not affect the court's jurisdiction over the
case. Nor does it impair the validity of the information or otherwise render it defective. If
there was no preliminary investigation and the defendant, before entering his plea, calls the
attention of the court to the absence of a preliminary investigation, the court, instead of
dismissing the information, should conduct such investigation, order the fiscal to conduct it or
remand the case to the inferior court so that the preliminary investigation may be conducted.
(pp. 7-8)
The appellant never asked for or called the attention of the court before entering his plea, as to the
absence of a preliminary investigation. His right to preliminary investigation, then is deemed waived
as he failed to invoke such right prior to or, at least, at the time of the entry of his plea in the court of
first instance. (People v. Casiano, p. 483, supra) The entry of their plea constituted a waiver of their
right to preliminary investigation and any irregularity that attended it. (See People v. La Caste, 37
SCRA 767, 773 [1971])

Jurisdiction was acquired by the Court over the person of Mariano Umbrero as the accused
appeared at the arraignment and pleaded not guilty to the crime charged. (See Gimenez v.
Nazareno, 160 SCRA 1, 5 [1988])
In the second assigned error, the appellants contend that there was no conspiracy, thus, they should
all be adjudged as innocent. They asserted that mere presence at the scene of the crime does not
by itself indicate the existence of conspiracy. There must be proof of their participation in the crime.
This contention must fail.
It is well-settled rule that conspiracy need not be proved by direct evidence but can be inferred from
the acts of the accused. (People v. Alitao, G.R. No. 74736, February 18, 1991) The appellants'
actuations immediately prior to, during, and right after the shooting of Alfonso Urbi indicate their
common intention to commit the crime. The appellants were not merely present at the scene of the
crime. The prosecution witnesses positively identified the appellants as among the armed men who
arrived at the scene of the crime, shot Alfonso Urbi, and left together after apparently accomplishing
their purpose. (TSN, April 10, 1985, pp. 2, 7; TSN, August 5, 1985, pp. 2, 6; TSN, August 28,1985,
pp. 2-3)
The trial court stated:
xxx

xxx

xxx

It will be recalled that accused Mariano Umbrero, Jaime Agluba and Alfredo
Costales, alias Pido and others were all armed when they went together to the house of the
victim Alfonso Urbi. They were close to Danny Costales when he (Danny) asked for water
which was not their common purpose. Alfonso Urbi got near to see them. Suddenly he was
shot by Danny Costales. He ran outside the house but was overtaken by Danny Costales
who pumped more shots on him all located on the vital parts of the body, causing his
instantaneous death. They all left together upon accomplishing their purpose. The accused
were all holding their firearms on their sides, while others stood guard and surrounded the
house. The acts performed by all the accused before, during and after the perpetration of the
crime are indicative of a previous criminal design and unity of common purpose. (Rollo, p.
30)
The appellants although not active participants in the killing itself, made no effort to prevent it. In fact,
the appellants even drew the guns that were tucked on their waists when Alfonso Urbi, after being
shot for the first time, tried to run outside of his house. (TSN, August 5,1985, pp. 18-19)
Conspiracy having been established, the appellants as co-conspirators are all guilty on the principle
that the act of one is the act of all. (People v. de Guzman, 162 SCRA 145,153 [1988])
The defense of alibi of the appellants is without merit. The appellants were positively identified by the
prosecution witnesses as the witnesses were only a few meters away from the crime scene. (TSN,
April 10, 1985, p. 3; TSN August 5, 1985, p. 5).
The defense of alibi cannot prevail over the positive identification by the prosecution witnesses of the
appellants (People v. Kyamko, G.R. No. 95263, December 18, 1990). There is nothing in the records
which would show a motive or reason on the part of the witnesses to falsely implicate the accused.
Identification, then, should be given full credit. As there is no showing that the prosecution witnesses

were moved by improper motives, the presumption is that they were not so moved, their testimony
therefore, is entitled to full faith and credit. (People v. Doctolero, G.R. No. L-34386, February 7,1991)
In the instant case, the appellants failed to establish by clear and convincing evidence that they were
at some other place and for such a period of time as to negate their presence at the time when and
the place where the crime was committed. (See People v. Solis, G.R. No. 93629, March 18,
1991 citing People v. Riego, G.R. No. 90256, September 12, 1990)
The persons that the appellants presented to corroborate their alibis were their relatives.
Alfredo Costales and Jaime Agluba could have presented other people, aside from their wives, to
corroborate their testimony that they were at some place other than the scene of the crime. But even
the testimony of Jaime Agluba's wife did not clearly show that Jaime Agluba was not in Sta. Teresa
as she stated that during their stay in Newagac her husband would go to the field and it was only the
wife's belief that her husband was in the field in the afternoon of November 29, 1980. (TSN, January
17, 1989, pp. 16-17) As regards Mariano Umbrero, he could have presented Gregorio Cabulay
(TSN, April 21, 1986, p. 27) aside from Alejandrino Umangay to support his statement. Umangay's
corroboration is not that credible as Umbrero and Umangay had known each other ever since they
were still little boys (TSN, April 21, 1986, p. 31) and Umbrero's relative is Umangay's niece. (TSN,
April 21, 1986, p. 32) It has been ruled that the defense of alibi is weak if it is established mainly by
the accused themselves and their relatives and not by credible persons (See People v. Flores, G. R.
No. 71980, March 18, 1991).
We agree with the finding of the trial court that the qualifying circumstance of treachery is present in
the case at bar.
There is treachery when the offender commits any of the crimes against the person, employing
means, methods, or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party might make.
(People v. Cempron, G.R. No. 66324, July 6, 1990; People v. Manzanares, 177 SCRA 427, 434,
[1989])
The shooting of Alfonso Urbi was sudden and unexpected. The victim was unarmed, unable to
defend himself. He was an unsuspecting victim as the assailants just asked for a drink of water.
(TSN, April 10, 1985, p. 20; TSN, August 5,1985, p. 2) He was totally unprepared to be able to
defend himself.
1awp++i1

On the other hand, evident premeditation was not clearly established, contrary to the findings of the
trial court. Although conspiracy existed, it was merely inferred from the acts of the accused in the
perpetration of the crime, the requisites necessary to appreciate evident premeditation have not
been met in this case. (See People v. Repe, 175 SCRA 422, 435 [1989]) The prosecution failed to
prove all of the following: (a) the time when the accused determined to commit the crime; (b) an act
manifestly indicating that the accused had clung to their determination to commit the crime; and (c)
the lapse of sufficient length of time between the determination and execution to allow him to reflect
upon the consequences of his act. (People v. Iligan, G. R. No. 75369, November 26, 1990; People v.
Montejo, 167 SCRA 506, 513 [1988])
Aid of armed men should also not be appreciated in this case, considering that the assailant as well
as the appellants were in conspiracy. (See People v. Candado, 84 SCRA 508, 524 [1978]; People v.
Piring, 63 Phil. 546, 553 [1936])

The fact that Judge Tumacder did not preside at the trial of this case in its entirety, having taken over
only when the second defense witness was to be presented, did not detract from his appreciation of
the prosecution evidence. The full record was available to him. (See People v. Abaya, 185 SCRA
419, 424 [1990])
In view of the foregoing, the appellants were correctly found guilty beyond reasonable doubt of
murder, but without the attendant circumstances of evident premeditation and aid of armed men. The
penalty to be imposed isreclusion perpetua. The indemnity to the heirs of the deceased is raised to
FIFTY THOUSAND PESOS (P50,000.00).
WHEREFORE, the appealed decision is hereby AFFIRMED with the aforesaid MODIFICATION.
SO ORDERED.
Fernan, C.J., Feliciano, Bidin and Davide, Jr., JJ., concur.

26. P v baluyot, 40 Phil 385

FIRST DIVISION
[G.R. No. 14528. September 10, 1919. ]
THE UNITED STATES, Plaintiff-Appellee, v. REGINO BALUYOT, HERMENEGILDO MAALAC,
ANDRES ALFONSO and JACINTO DAVID, Defendants-Appellants.
Claudio Gabriel, Jose Gutierrez David and Lacson & Lacson for Appellants.
Acting Attorney-General Feria for Appellee.
SYLLABUS
1. ROBBERY; ROBBERY COMMITTED BY ARMED PERSON IN INHABITED HOUSE; VIOLENCE AND
INTIMIDATION AGAINST PERSON; CONTROLLING QUALIFICATION. Where a robbery, committed by
armed men in an inhabited house, is accompanied by violence or intimidation against the inmates, the latter
element supplies the controlling qualification; and it is the practice of this court to apply the penalty
prescribed in article 503 of the Penal Code, and not that prescribed in article 508, although every element of
the offense defined in article 508 may be present This practice is observed even where the penalty to be
applied under 503 is lighter than that which would result from the application of article 508.
2. ID.; ID; ID.; ID.; REASON FOR RULE. The reason for this rule is to be found in the fact that robbery
accompanied by violence or intimidation against the person is graver than ordinary robbery committed by
force upon things; since, where violence or intimidation against the person is present, there is greater
disturbance to the order of society and the security of the individual.

DECISION

STREET, J. :

This appeal is prosecuted on behalf of Regino Baluyot Hermenegildo Maalac, Andres Alfonso, and Jacinto
David to reverse a judgment of the Court of First Instance of the Province of Pampanga, convicting them of
a robbery committed on the night of November 24, 1917, in the dwelling of Dolores Coronel in the pueblo of
Betis, municipality of Guagua, Province of Pampanga, and sentencing each of them to undergo imprisonment
for the period of twelve years and one day, cadena temporal, with the accessory penalties provided in article

56 of the Penal Code, to indemnify Dolores Coronel in the sum of P15,000, and to pay each one-fourth of
the costs.
It appears in proof that at the time and place mentioned in the complaint, Dolores Coronel, a rich spinster,
80 years of age, was living at her home with her niece Maria Coronel and a grand-niece Rosario Coronel,
there being no man on the place, when, at about 2 or 3 oclock in the morning, two malefactors, identified at
the trial as Regino Baluyot and Hermenegildo Maalac, effected an entrance into the dwelling by scaling a
bamboo pole and passing in through an opening above the window. The bamboo pole had been prepared
beforehand; and the branches had been cut in such manner as to leave knots at the joint, with the result
that when one end of the pole was rested against the side of the house it could be used like a ladder.
Having effected an entrance into the sala [parlor] of the house in the manner just stated, the two individuals
mentioned proceeded to awake the inmates. The first to be aroused was Maria Coronel who, upon seeing the
miscreants, screamed aloud, notwithstanding their warning to make no noise. Rosario Coronel, hearing the
outcry of her aunt Maria in the same room, also awoke. Meanwhile Dolores Coronel, the aged owner of the
house, sleeping in another room, heard the noise and at once appeared upon the scene. One of the
assailants thereupon hit her several blows with his fist on the head, back, and shoulders, while the other
struck at her with a bolo but did not cut her. As the house was dimly lighted, Rosario Coronel was told to get
another lamp, while Maria Coronel was ordered to cover herself with a sheet and remain in bed. These
orders being complied with, Rosario was directed to go down stairs and open the door, the robbers
intimating that they had companions outside. Upon descending and opening the door as directed, Rosario
saw two men a short distance away under the banana trees but did not discern their features.
Meanwhile the two robbers already inside lost no time in possessing themselves of a large sum of money
which Dolores Coronel was known to have in her possession. T this end they forced the old lady, by threats
of cutting her throat, to open two trunks and the money they were after was in fact discovered therein.
Altogether the robbers obtained P15,000, which they carried away, together with some documents
apparently of little importance. When ready to leave they told Rosario to accompany them to the door in
order to light the stairway; and at the instant of departure one of the two asked her, apparently in a spirit of
light bravado, whether she recognized them.
As the women were afraid to go out in the night to inform the authorities, no alarm was given until after
daylight. Upon investigation suspicion was directed to the four accused as the probable offenders, and they
were soon picked up by the Constabulary and landed in jail.
At the hearing Baluyot and Maalac were fully identified by both Maria Coronel and Dolores Coronel; and
upon the proof presented it is impossible to entertain the slightest doubt as to their guilt. The proof
connecting Andres Alfonso and Jacinto David with the robbery is also sufficient in our opinion to show their
guilt beyond a reasonable doubt, but this feature of the case requires, as it has received, at our hands a
closer scrutiny.
That four persons at least participated in the robbery is proved by the fact that Rosario Coronel saw two
men outside when she opened the door, and the corroborative statement by those who had entered that
there were others outside is admissible in evidence as part of the res gestae, being explanatory of the
reason for opening the door. It is therefore only necessary to establish the identity of the two human figures
seen by Rosario outside of the house, in order to fix guilt upon all four of the companions in crime.
Valentin Paddu, aged more than 50, resident of Guagua, Pampanga, testified that after midday on November
23, 1917, being out for the purpose of cutting grass for his carabao, he suddenly came upon the four
accused while they were seated on an embankment and hidden in the cogon grass. They were so sitting as
to be facing each other, two and two. The witness was unperceived and, lending attentive ears to what
might be passing, he heard snatches of conversation to the following effect:
jgc:chanrobles.com .ph

"ANDRES. Whats the matter, fellows? Lets do what we have been talking about.
"REGINO. All right.
"ANDRES. Then, I am going to get supper ready at home.
"REGINO. You get ready the instruments that we are going to use.
"ANDRES. Theres no danger, they are all women."

cralaw virtua1aw library

After this the four separated, Regino and Hermenegildo going towards Santa Rita, while Jacinto and Andres
directed their course towards Betis.
Another witness, Andres David, aged above 50, resident of Betis, testified that at nightfall on November 23,
1917, he saw Regino Baluyot, followed by Hermenegildo Maalac and Jacinto David, pass along behind the
witness house in the direction of the home of Andres Alfonso. The witness also stated that, as the three
were thus passing along, he heard Regino say to Hermenegildo: "We two will go up while the other two stay
below."
cralaw virtua1aw library

Gregorio Maalo, over forty, also called as a witness for the prosecution, testified that at a rather advanced
hour of the night of November 23, 1917, he was returning to his home in Betis, when he met four persons in
the road, whom he recognized as the four accused, going in the direction of the house of Dolores Coronel.
Regino was carrying a bamboo pole, such as has been already described. The witness observed that the four
approached the house of Dolores Coronel and placed the bamboo pole in position. As they came away the
witness accosted Jacinto David, who is his compadre, but received no reply. After the witness had gone into
his own house and had eaten something, he again went out to lead his carabao to a feeding ground and the
four accused again passed near him. Next morning before breakfast the witness went out and encountered
Andres Alfonso in a carromata, passing in the direction of Santa Rita. Upon arriving at the house of
Hermenegildo, Andres alighted and went in. The witness thereupon crossed the road and looking in saw that
Regino was present. Upon the second occasion when this witness saw Regino and Hermenegildo, he heard
the latter say "I have left all the silver to Andres and Jacinto."
cralaw virtua1aw library

We have thus stated at some length the substance of the testimony of the three principal witnesses for the
prosecution for the purpose of observing that it proves the complicity of Jacinto and Andres almost too well
to be fully credited. The trial judge had his suspicions aroused by this circumstance and dismissed the
testimony of Gregorio Manalo as unworthy of credit. He nevertheless credited the testimony of Valentin
Paddu and Andres David and convicted Andres and Jacinto upon the weight attributed by him to the
testimony of said two witnesses.
The propriety of the conviction of the two accused last mentioned is now attacked, and it is insisted that the
veracity of each of the three witnesses whose testimony we have detailed is equally open to question. In this
connection it is argued that there is great similarity in the tenor of their respective stories and the
circumstances narrated are so harmonious that the falsity of the whole is at once apparent. We are not
unmindful of the force of this suggestion and agree that the words which the witnesses Andres David and
Gregorio Manalo put into the mouths of Baluyot and Maalac are somewhat improbable, considered with
reference to the time and place where supposedly spoken. Nevertheless the argument against the conviction
is in our opinion unconvincing. The simple truth probably is that knowledge of the projected enterprise
having as its object the relieving of Dolores Coronel of the burden of a part of her wealth had become noised
abroad among certain of the low populace; and one at least was apparently hanging around either out of
idle curiosity or in the hope of sharing in the spoils. It is therefore not surprising that information as to the
details of the crime was more widely disseminated than the chief actors could have desired.
It appears that Regino Baluyot and Hermenegildo Maalac carried bolos while perpetrating the robbery, but
there is no proof that the members of the party who remained outside were armed. For this reason the
crime in question cannot be considered as having been committed by a band of armed men. The offense
must therefore be defined as robbery under article 502 of the Penal Code, committed by the use of
intimidation against the person and punishable under subsection 5 of article 503 of the same Code. There
were present in the commission of the offense the aggravating circumstances of nocturnity and that the
crime was committed in the dwelling of the injured person. The appropriate penalty is, therefore, 10 years,
presidio mayor, with the accessories prescribed in article 57 of the Penal Code.
The trial court considered the offense to be robbery committed by armed men in an inhabited house,
punishable under article 508 of the Penal Code, and accordingly sentenced the accused to 12 years and 1
day, cadena temporal. It is undoubtedly true that every element of the offense defined in article 508 is here
present; but it is the established practice of this court, where the crime of robbery is characterized by
intimidation of the person, to apply article 503, instead of article 508, it being considered that the factor of
intimidation of the person supplies the controlling qualification; and this practice is followed even where, as
in this case, the penalty to be applied under article 503 is lighter than that which would result from the
application of article 508. Robbery characterized by violence or intimidation against the person is evidently
graver than ordinary robbery committed by force upon things, because where violence or intimidation
against the person is present there is greater disturbance to the order of society and the security of the

individual.
For the reasons stated, the judgment appealed from must be modified by substituting 10 years, presidio
mayor, with the accessories prescribed in article 57 of the Penal Code, for so much thereof as imposes the
penalty of 12 years and 1 day, cadena temporal, with the accessories prescribed in article 56 of the same
Code. As thus modified the judgment is affirmed, with proportional costs against the several appellants. So
ordered.
Arellano, C.J., Torres, Johnson, Araullo, Malcolm, and Avancea, JJ., concur.

27. P vs sangalang L-32914, August 30,1974

SECOND DIVISION
G.R. No. L-32914 August 30, 1974
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LAUREANO SANGALANG, accused-appellant.
Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Octavio R. Ramirez and
Solicitor Ma. Rosario Quetulio Losa for plaintiff-appellee.
Narciso V. Cruz, Jr. for accused-appellant.

AQUINO, J.:p
This is a murder case. The testimonies of the two prosecution eyewitnesses disclose that at around
six o'clock in the morning of June 9, 1968 Ricardo Cortez left his nipa hut located at Sitio Adlas,
Barrio Biluso, Silang, Cavite to gather tuba from a coconut tree nearby. Flora Sarno, his wife, was
left inside the hut. While he was on top of the tree gathering tuba, he was struck by a volley of shots.
He fell to the ground at the base of the coconut tree.
His wife Flora heard three successive shot coming south of the hut. She went outside the hut. From
a distance of about twenty-five meters, she saw five men, each armed with a long firearm, firing at
her husband. He was already wounded and was lying on the ground at the foot of the coconut tree.
His assailants were about five meters away from him.
She recognized Laureano Sangalang as one of the five armed men who were firing at her husband.
She and her brother Ricardo had known Sangalang since their childhood. She also recognized
Conrado Gonzales, Irineo Canuel, Perino Canuel and Eleuterio Cuyom as the other malefactors.
Flora ran towards the place where her husband had fallen. She shouted, "Bakit ninyo pinagbabaril
ang aking asawa". The five persons fired at her. She was then about twenty meters away from them.
She retreated to the hut for cover. She heard some more shots. After the lapse of about five minutes,
Laureano Sangalang and his companions left the place. When Flora returned to the spot where her
husband was prostrate, he was already dead.

On the occasion already described, Ricardo Sarno, twenty-seven years old, a brother of Flora, was
inside his own nipa hut which was about ten meters away from Flora's hut. He was drinking coffee.
His wife and children were eating breakfast. He heard several shots. He came out of his hut. He saw
his brother-in-law being shot by Laureano Sangalang, Eleuterio Cuyom, Perino Canuel, Irineo
Canuel and Conrado Gonzales. He saw Sangalang using a Garand carbine in shooting his brotherin-law. The latter fell from the top of the coconut tree after he was shot (10 tsn). His sister Flora was
trying to approach her husband but she had to flee to her hut when Sangalang and his companions
fired at her. He wanted to join her but he was likewise fired upon by the five men. So, he retired and
took refuge in his own hut.
Later, Sarno saw his sister Flora, sitting inside her hut. He followed her after she left the hut and
went to see her dead husband, who was lying on the ground, face up, at the base of the coconut
tree. When he noticed that his brother-in-law was already dead, he gathered his children and
brought them to Sitio Biga, which was more or less thirty meters away from his hut in Sitio Adlas.
Ricardo reported the killing to the chief of police who went to the scene of the crime with some
policemen and Constabularymen.
The necropsy report shows that the twenty-five-year-old Cortez sustained twenty-three gunshot
wounds on the different parts of the body, fourteen of which were entrance-wounds, and nine were
exit-wounds (Exh. A and B). He died due to the multiple gunshot wounds (Exh. C).
On June 10, 1968 or on the day following the killing, Flora and Ricardo were interrogated by the
Silang police. They executed sworn statements before the Municipal Judge pointing to Laureano
Sangalang, Conrado Gonzales, Irineo Canuel, Perino Canuel and Eleuterio Cuyom as the assassins
of Ricardo Cortez. Flora said in her statement that she knew those persons because from time to
time they used to pass by her place. They resided at Barrio Capitula, Dasmarias, which is near
Barrio Adlas. On the basis of those statements, the police filed on June 10 in the Municipal Court a
complaint for murder against the five aforenamed persons. Sangalang was arrested. He posted bail
in the sum of P50,000 on June 13. He waived the second stage of the preliminary investigation. The
other accused have not been apprehended. On August 8, 1968 the Provincial Fiscal filed an
information for murder against Sangalang.
After trial, the Court of First Instance of Cavite, Tagaytay City Branch, rendered a judgment
convicting Sangalang of murder, sentencing him to reclusion perpetua and ordering him to pay the
heirs of Ricardo Cortez an indemnity of twelve thousand pesos and to pay his widow moral damages
in the sum of ten thousand pesos (Criminal Case No. TG-162). Sangalang appealed.
The appellant, a fifty-six-year old farmer, admitted that he knew Cortez and that he knows his wife,
Flora Sarno. He pleaded an alibi. He declared that in the afternoon of June 8, 1968 he and Crispulo
Mendoza went to the house of Julian Gatdula at Dapitan Street, Sampaloc, Manila. He arrived at
Gatdula's place at six o'clock. He wanted to borrow money from Gatdula to defray the matriculation
fees of his children.
As Gatdula had no money at that time, he advised Sangalang to wait until morning. He would try to
raise the sum of two hundred pesos which Sangalang desired to borrow. Sangalang and Mendoza
agreed. They allegedly slept in Gatdula's house on the night of June 8th. The next morning, they

breakfasted in that house. At about ten o'clock on June 9, Gatdula delivered the two hundred pesos
to Sangalang. He and Mendoza then went to the Central Market in Manila and then to Quiapo. They
returned to Cavite and arrived at seven o'clock in the evening of June 9 in Barrio Capdula. Gatdula
and Mendoza corroborated Sangalang's alibi.
In this appeal Sangalang insists on his alibi and impugns the credibility of the prosecution
eyewitnesses, Mrs. Cortez and the victim's brother-in-law, Ricardo Sarno. The basic issue is whether
their eyewitness-testimony that they saw appellant Sangalang as one of the five armed persons,
who riddled Cortez with fourteen gunshot wounds of entry, is sufficient to overcome his alibi. In
essence, the case projects the ever recurring conflict in criminal jurisprudence between positive
identification and alibi.
The trial court rejected appellant's alibi. It noted that although his witnesses, Mendoza and Gatdula,
learned of his arrest, and Mendoza even visited him in the municipal jail, Sangalang and his
witnesses did not interpose the defense of alibi when he was investigated by the police and when he
was summoned at the preliminary investigation.
Sangalang points to certain discrepancies in the declarations of Mrs. Cortez and her brother Ricardo
Sarno. Those inconsistencies, which are not glaring, strengthen their credibility and show that their
testimonies were not coached nor rehearsed. The discrepancies may be attributed to deficiencies in
observation and recollection, or misapprehension of the misleading and confusing questions during
cross-examination, or to the defective translation of the questions and answers but they do not
necessarily indicate a wilful attempt to commit falsehood (People vs. Selfaison, 110 Phil. 839;
People vs. Resayaga, L-23234, December 26, 1973, 54 SCRA 350).
The controlling fact is that Mrs. Cortez and Sarno clearly and consistently testified that they saw
Sangalang, a person already well-known to them, among the five armed persons who shot Ricardo
Cortez. That unwavering identification negates appellant's alibi.
The prosecution did not prove the motive for the killing. On the other hand, Sangalang did not show
that Mrs. Cortez and Sarno were impelled by a malicious desire to falsely incriminate him. .
Counsel de oficio meticulously examined the contradictions and deficiencies in the evidence for the
prosecution. He made a spirited defense of the appellant. However, his efforts failed to cast any
reasonable doubt on Sangalang's complicity in the killing.
The victim was shot while he was gathering tuba on top of a coconut tree. He was unarmed and
defenseless. He was not expecting to be assaulted. He did not give any immediate provocation. The
deliberate, surprise attack shows that Sangalang and his companions employed a mode of
execution which insured the killing without any risk to them arising from any defense which the victim
could have made. The qualifying circumstance of treachery (alevosia), which was alleged in the
information, was duly established (See art. 14[16], Revised Penal Code). Hence, the killing can be
categorized as murder (See People vs. Sedenio, 94 Phil. 1046). Treachery absorbs the aggravating
circumstance of band(U. S. vs. Abelinde, 1 Phil. 568). Evident premeditation, which was alleged in
the information, was not proven.

The trial court correctly imposed the penalty of reclusion perpetua on Sangalang (Arts. 64[1] and
248, Revised Penal Code).
Finding no error in its judgment, the same is affirmed with costs against the appellant.
SO ORDERED.
Zaldivar (Chairman), Fernando, Barredo and Fernandez, JJ., concur.
Antonio, J., took no take part.

28. P vs Angeles, GR 109660, July 1, 1997

THIRD DIVISION

G.R. No. 109660 July 1, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DANNY ANGELES alias "Danny Fake" and JOHN DOE, accused,
ROMEO NELL alias "Omeng," appellant.

PANGANIBAN, J.:
After an accused has openly admitted the killing, the gravamen of the prosecution's case cannot be
disbelieved anymore. Thus, the accused must prove all the elements of self-defense clearly and
convincingly. He must rely on the strength of his own evidence and not on the weakness of the
prosecution's.
This is an appeal from the December 11, 1992 Decision 1 of the Regional Trial Court of Valenzuela,
Branch 172, in Criminal Case No. 10341-V-90 convicting Appellant Romeo Nell of murder.
Together with Danny Angeles, alias "Danny Fake," and one John Doe, appellant was charged with
murder in an Information dated June 11, 1990 which reads:
That on or about the 24th day of March 1990, in the municipality of Valenzuela, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the above
named accused, armed with a bladed instrument and with intent to kill one Reynaldo
Laureano y Nuque, conspiring and confederating together and mutually helping one
another did then and there willfully, unlawfully and feloniously, with evident
premeditation, abuse of superior strength and treachery, attack, assault and stab with

the said bladed instrument they were then provided the said Reynaldo Laureano y
Nuque, hitting the latter on his body, thereby causing him serious physical injuries
which directly caused his death. 2
Only appellant was arrested while the two other accused remained at large. During his arraignment
on May 13, 1992, he pleaded "not guilty" to the charge.
After trial, the court a quo rendered the assailed Decision, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Court finds the accused guilty of the
crime of Murder as principal, and is hereby sentenced to suffer the penalty
of reclusion perpetua, to indemnify the heirs of Reynaldo Laureano in the sum of
P50,000.00; and to pay the costs.
SO ORDERED. 3
The Facts
Version of the Prosecution
The prosecution actually presented two versions of the incident: one by Rosini Espejo-Cenon and
another by Benjamin Laureano. Although both versions undoubtedly pointed to appellant as the
assailant, they materially differed as to the participation of the other accused and the events which
led to the fatal stabbing of the deceased.
Prosecution Witness Rosini Cenon's testimony was summarized by the trial court as follows: 4
. . . On March 24, 1990 at about 10:00 p.m. she was washing clothes in front of their
house. From across the street, at a distance of 6 meters she saw the accused
Romeo Nell alias Omeng, pointing to him in Court, stabbed (sic) Reynaldo Laureano.
Romeo Nell was with Danilo Angeles alias Danny Fake. The victim when stabbed
was just resting by sitting in front of an already closed store. Romeo made a thrust at
Reynaldo with a "panaksak" but Reynaldo was able to run away. Romeo followed
him. Some liquor drinkers noticed Reynaldo being chased so they threw bottles at
Romeo who was hit at the nape and stumbled. Danny Fake tried to help Romeo.
Before Romeo was able to stand up, Danny Fake was able to pull Reynaldo and
immersed him in a canal. Then Romeo who was already up stabbed Reynaldo upon
orders of Danny Fake. Reynaldo was hit on the chest by Romeo who even
repeatedly moved the bladed weapon inside the body to and fro. After Reynaldo was
stabbed and they saw he was no longer moving, Danny Fake kicked Romeo saying
"Putang ina mo ano pa ang hinihintay mo, sumibat ka na". Romeo then ran together
with another man who was half naked from waist up. Danny Fake then shouted,
"bakit hindi tulungan ito ng mga bumato sa kanya" while holding a viente nueve knife.
Then Danny Fake left. Somebody went down and helped Reynaldo. She (witness)
shouted "tulungan ninyo si Rey." He was brought to the hospital but he died. She
saw all the incident because of the light from the stores which were still open then.

In contrast, Prosecution Witness Benjamin Laureano, the victim's brother, described the events
differently. His testimony was presented in the appealed Decision as follows: 5
. . . On March 24, 1990 . . . (a)t about 10:30 p.m. of said date he was fetching water
at Abalos St., about 20 meters away from their residence. He was told by among
(sic) those fetching water with him that there was trouble going on at the corner of
Abalos St. and Concepcion St. which is about 20 meters away. He went there to
look, with Boyet Manansala. Upon reaching the place he saw his brother Reynaldo
and Romeo quarreling. He pointed to the accused Romeo in Court. He had known
Romeo before the incident because he used to borrow tools from their neighbors. He
saw Romeo and Reynaldo struggle with each other and then Romeo ran out (sic) of
the corner towards the market. After the accused ran away his brother Reynaldo
chased him. He asked his brother Reynaldo to go home because Reynaldo was not
able to run far and was not able to catch the accused. His brother and he (sic) went
home. His brother again went down the house and drunk beer in a store in front of
their house. He was with Junior Cenon. Romeo Nell arrived. He saw Romeo because
he (witness) was then lifting the container of water for their house. Romeo chased his
brother with a bladed weapon. When he caught up with him they struggled with each
other first. His brother was hit and knelt in the canal. Romeo Nell stabbed him and
kicked him. His brother was hit on the chest once. Romeo Nell ran away. He saw all
this from a distance of 8 meters. He went upstairs to ask help from his brothers.
When they all went down Romeo Nell was no longer there. They brought Reynaldo
out of the canal to the Santisimo Rosario Hospital. He was dead on arrival. He gave
a statement to the police (Exh. B, B-1).
On cross examination, Benjamin Laureano testified as follows:
xxx xxx xxx
When he saw his brother being stabbed he could not go near because Romeo had a
companion and a look out.
xxx xxx xxx
Dr. Prospero Cabanayan conducted the autopsy on the victim. He testified that the victim died of
severe hemorrhage due to an eleven-inch stab wound below the right collarbone, penetrating the big
blood vessels direct to the heart, and two puncture wounds located at the chest almost near the
armpit. 6 The stab wound could have been caused by a sharp, single-bladed instrument while the
puncture wounds, by a pointed instrument. 7 From the location of the wounds, he opined that it was
possible that the victim was lying down, facing the assailant who was standing. 8
The prosecution presented Francisca Sagnip, the sister of the victim, as rebuttal witness. She
testified that: 9
On March 26, 1990 at about 8:00 A.M., [s]he was at the police station to present the
kitchen knife which she found at the canal at Abalos St., Marulas, Valenzuela. She

found it on March 26, 1990 at about 7:30 A.M. She identified the kitchen knife (Exh.
H).
On cross examination she testified that she was not present when her brother was
stabbed. It was after the report was made to the police that the latter went to the
scene and insvestigated. They found no kitchen knife. She was alone when she
found the knife. She believes it was the one used by his (sic) brother.
Evidence for the Defense
Appellant justifies his act by invoking self-defense. His testimony is synthesized in the Appellant's
Brief: 10
. . . [O]n March 24, 1990 while plying his tricycle he saw Reynaldo Laureano at about
5:00 to 6:00 p.m. He let his two passengers alight. Reynaldo approached him for
beer money and he told him he will give him later. He just started plying his tricycle.
Reynaldo got angry saying "hindi puede". Reynaldo said he needed to drink and if he
will not give, something bad will happen to him. Reynaldo said "Ako ang may hawak
ng Abalos St." and Reynaldo boxed him as he said these. He fought back. While they
were boxing each other, Reynaldo's brother Benjamin and a certain Junior arrived.
He ran because Benjamin had a knife. The three gave chase. They failed to catch
him. He went home. He left his tricycle on the road. After one hour, he tried to
retrieve it but did not pass Abalos St. He was able to retrieve his tricycle and went
home. He rested for 4 hours before plying his tricycle. That was about 10:00 p.m. He
met for the second time Reynaldo Laureano because he passed by Abalos St. He
saw Benjamin, Junior, and Reynaldo Laureano drinking beer, sitted (sic) on a bench
on the side of the street near the house of Reynaldo Laureano. Upon his return trip,
the three blocked his way. He was forced to stop. They were again asking for money
particularly Reynaldo while the two were just standing by. He requested that he be
allowed not to give because his trip was destroyed and that he has his family to feed.
Reynaldo approached him to box him. He jumped towards his tricycle to get his
screw driver to defend himself because one of them already pulled out a knife while
Junior was holding a bottle of beer and hit him on the head. Junior is the brother in
law of Rosini Espejo. After he was hit with a bottle of beer, his vision became dark
and he started stabbing Reynaldo. Benjamin and Junior ran away when they saw
Reynaldo was hit. He boarded his tricycle and went home. He stabbed Reynaldo
even if it was Junior who hit him with a bottle of beer because Reynaldo was poised
to box him. When he started stabbing, he hit Reynaldo. He did not tell this to the
police. He was afraid he would be incarcerated. He was thinking of his children as his
wife is abroad. The incident happened on March 24, 1990. He was arrested on April
27, 1992. He did not hide but just continued plying his tricycle. The father, brother
and sister of Reynaldo were often his passengers. The reason why they did not
cause his arrest is because people there knew that the deceased is a trouble maker
and a "salot" in their place. The testimony of Espejo which gave a different version
that he had a companion is not true. She just testified that way because her brother
in law is involved in the case. He had a screw driver because he uses it as a tool for

adjustment of the contract point of his tricycle. . . . (TSN, November 4, 1992, pp. 319).
Ruling of the Trial Court
In rejecting the claim of self-defense, the trial court held that the evidence of the prosecution was
more credible than that of the appellant. Prosecution Witnesses Benjamin Laureano and Rosini
Cenon gave two versions of the facts, but the trial court accepted Benjamin's testimony rather than
Rosini Cenon's because the former gave his statement to the police immediately after the stabbing
incident at ten minutes past one o'clock early morning of March 25, 1990. Rosini's statement, on the
other, hand was executed two days later, on March 27, 1990, after her brother-in-law Junior Cenon
was implicated in the stabbing by appellant.
Unlike Benjamin's story, appellant's version was not only uncorroborated; it was also incredible. The
trial court opined that, even if the victim was a drug user and a troublemaker, appellant's actions
were not justified.
The lower court also held that the killing was qualified by evident premeditation. It found that the
appellant and the victim had a quarrel that ended when the former ran away from the latter. Later on,
appellant returned and stabbed the victim.
Assignment of Errors
Appellant claims self-defense. He ascribes the following errors to the trial court:

11

I
The trial court erred in categorizing the crime committed as murder instead of
homicide.
II
The trial court erred in not acquitting the accused-appellant on the ground of selfdefense under paragraph 1 of Article 11 of the Revised Penal Code.
The Court's Ruling
The appeal is partly meritorious. We do not agree with appellant's claim of self-defense, but we find
that the prosecution has not established evident premeditation beyond reasonable doubt. We shall
now discuss the errors assigned by the appellant in inverse order.
Assessment of Appellant's Credibility
by the Trial Court
By interposing self-defense, appellant shifted the burden of proof, thereby obligating himself to show
that his act was justified and that he incurred no criminal liability therefor. 12 Consequently, he must

establish clearly and convincingly all the elements of self-defense, relying mainly on the strength of his
own evidence and not on the weakness of the prosecution's; for even if the latter was weak, it could not
be disbelieved after his open admission of the killing.

The trial court, however, did not find appellant's uncorroborated testimony credible. The time-tested
doctrine is that a trial court's assessment of the credibility of a witness 13 is entitled to great weight
even conclusive and binding on this Court, if not tainted with arbitrariness or oversight of some fact or
circumstance of weight and influence. Credibility is a matter that peculiarly falls within the province of the
trial court as it had the opportunity to watch and observe the demeanor and behavior of the witnesses at
the time of their testimony. 14 Thus, assigning value and weight to each testimony is within its
jurisdiction. 15
The trial court's assessment of the credibility or the lack of it of appellant and his version of the
incident appears supported by the records. Five crucial points are worth noting.
The first point is the matter of the weapon used. Appellant claimed that he used a six-inch
screwdriver to stab the victim. 16 The medico-legal officer described the two instruments which could
have inflicted such wounds as a single-bladed weapon and an instrument with a sharp point. 17 A
screwdriver fits neither of the two descriptions. Based on appellant's description, it was as an old
screwdriver with a blunt end and rounded on the side. 18 He did not even present in evidence this alleged
implement to show that it fitted either of the two descriptions.
Second, appellant would like us to believe that it was Benjamin who wielded a knife one of the
weapons that, according to the medico-legal officer, could have caused the wounds of the deceased.
He thus wants to imply that it was Benjamin who fatally stabbed his brother. This allegation is not
only illogical; it runs counter to the established fact that the quarrel was between the victim and the
appellant, not Benjamin. Appellant has not show any plausible reason, argument or evidence why
Benjamin should kill his own brother.
Third is appellant's choice of victim. He testified that he was hit on the head with a beer bottle by one
Junior Cenon. Why then did he attack the victim who, according to him, was only poised to box him.
Clearly, it was Junior who had hit him and was probably holding a bottle of beer, broken by then. The
more imminent threat against his life was posed by the armed Junior, not the unarmed victim.
The fourth point is the matter of flight. Although he claimed that he did not go into hiding after the
incident, he also admitted that he fled from the scene of the crime in his tricycle. 19 Flight, in
jurisprudence, is a strong indication of guilt, 20 although its converse does not necessarily imply
innocence. 21 That he feared being imprisoned as he had children to take care of does not exempt him
from these legal precepts. He even intentionally failed to report the incident to the police, negating his
claim of self-defense. 22
The fifth point is the failure of the defense to raise the extortion theory and Benjamin's complicity
therein during the latter's testimony. The failure to raise a theory that would have gravely impaired
Benjamin's credibility creates a very serious doubt on the veracity of appellant's present allegations.

Thus, we cannot blame the trial court for not putting much faith in appellant's testimony. Evidence, to
be believed, must not only proceed from the mouth of a credible witness but must be credible in
itself. 23
Failure to Prove Requisites of Self-Defense
An accused must also establish by clear and convincing evidence 24 the requisites of self-defense,
namely: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means
employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending
himself. 25 These, appellant failed to prove.
Self-defense, by its very nature, requires the attendance of unlawful aggression initiated by the
victim. 26 Unlawful aggression is an assault or attack, or a threat thereof in an imminent and immediate
manner which places the accused's life in actual peril. 27 It must be such that it puts in real danger the life
or personal safety of the person defending himself. 28 It cannot be merely an imagined threat or a
threatening or intimidating attitude. 29
In this case, unlawful aggression was not established by the defense. Appellant merely proved that
the victim, Benjamin and Junior Cenon were extorting beer money from him. The manner of
extortion described by appellant, however, does not show how appellant's life or limb was placed in
any peril as to justify his killing of Reynaldo.
Even if we consider that a threat to his life or limb could have been imminent because Benjamin held
a knife, still appellant did not state that the latter threatened him with the deadly weapon. In fact,
Benjamin did not threaten him at all. Appellant admitted that after his head was hit with a bottle of
beer, his vision dimmed and he started stabbing the victim who was allegedly approaching and
about to box him. Based on said testimony, we fail to see any peril to appellant's life or limb that
could have justified his having killed the victim.
In self-defense, there should also be reasonable necessity for the action taken as well as the means
used. The latter requires a consideration of (1) whether the aggressor was armed, (2) the nature and
quality of the weapon used, and (3) the physical conditions and sizes of both aggressor and the
person defending himself. 30 Appellant was armed while his three alleged assailants were not
competently shown to have been armed. His claim is that Benjamin had a knife and that Junior Cenon
and the victim held a bottle of beer each. But allegation is not evidence and, in the absence of the latter,
we cannot agree with appellant that his alleged aggressors were similarly armed. Therefore, the
reasonable necessity of the means employed to prevent or repel the "aggression" from the victim and his
companions was not proven in this case.
Clearly, the justifying circumstance of self-defense cannot be sustained. Appellant failed to prove
unlawful aggression by the victim or to demonstrate the reasonable necessity of the means he
employed to defend himself. 31
Evidence of Premeditation, Treachery
and Abuse of Superior Strength

However, the trial court erred in appreciating evident premeditation based solely on the fact that
appellant returned to the crime scene four hours after his first quarrel with the victim. Evident
premeditation indicates a stubborn adherence to a decision to commit a felony. It requires a showing
of: (1) a previous decision by the accused to commit the crime; (2) overt act(s) manifestly indicating
that the accused clung to his determination; and (3) a lapse of time between the decision to commit
the crime and its actual execution sufficient to allow the accused to reflect upon the consequences of
his acts. 32 Evident premeditation connotes a deliberate adherence to a plan to commit a crime.
Returning to the scene of an earlier fight about four hours later does not establish these elements.
Mere lapse of time is not equivalent to evident premeditation. 33 Time and again, we have held that
evident premeditation cannot be appreciated to qualify a killing to murder in the absence of evidence, not
only of sufficient lapse of time, but also of the planning and preparation to kill when the plan was
conceived. 34 The prosecution evidence simply showed that after the fight was broken up, appellant
returned to kill the victim. From said circumstances, we cannot deduce with certainty that appellant clung
to a decision to kill the victim.
Treachery and abuse of superior strength were not discussed in the trial court's Decision. Since they
were alleged in the Information, the Court pored over the records to find any evidentiary support
therefor. However, we are also unable to appreciate treachery from the prosecution's narration of
events. Benjamin was bringing several containers of water into their house when the incident
occurred. Thus, because his attention was focused elsewhere prior to his brother's stabbing, he was
not in a position to say that appellant attacked his brother suddenly and without warning. He did see,
however, that appellant chased his brother with a bladed weapon and that they struggled with each
other first before appellant stabbed his brother. In effect, he admitted that when appellant attacked
the victim, the latter was not without a chance to defend himself. The prosecution failed to establish
that the appellant employed means, methods or forms which tended directly and specially to insure
the commission of the killing without risk to himself arising from the defense which the offended party
might make. 35
The record is also bereft of proof that appellant and his companions took advantage of their
collective strength to overwhelm their victim. 36 Superior strength is not appreciated by the mere fact of
superiority in the number of malefactors, but rather by the deliberate employment of excessive force
which is out of proportion to the means of defense available to the person attacked. 37 Note also must be
made of the fact that the victim was not alone.
In sum, appellant's testimony suffers seriously from want of credibility. Even if we ascribe credibility
to appellant's testimony, however, we still cannot accept his plea of self-defense, for he failed to
prove all the requisites thereof. While the appellant failed to prove self-defense, the prosecution
likewise failed to show any qualifying circumstance. In this light, appellant should be convicted only
of homicide under Article 249 of the Revised Penal Code without any generic aggravating or
mitigating circumstance.
WHEREFORE, the assailed Decision is hereby MODIFIED. Appellant is CONVICTED of homicide,
not murder, and is SENTENCED to eight (8) years and one (1) day of prision mayor as minimum and
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum. The trial
court's disposition requiring the appellant "to indemnify the heirs of Reynaldo Laureano in the sum of
P50,000.00 and to pay the costs" is AFFIRMED.

SO ORDERED.
Narvasa, C.J., Melo and Francisco, JJ., concur.
Davide, Jr., J., took no part.
Footnotes
1 Penned by Judge Teresita Dizon-Capulong.
2 Rollo, p. 2.
3 RTC Decision, p. 7; rollo, p. 22.
4 Ibid., pp. 1-2; rollo, pp. 16-17.
5 Ibid., pp. 2-3; rollo, p. 17-18.
6 Certificate of Post-Mortem Examination, Folder of Exhibits, p. 6.
7 TSN, September 21, 1992, pp. 11-12.
8 Ibid., p. 10.
9 RTC Decision, pp. 5-6; rollo, pp. 20-21.
10 Appellant's Brief, pp. 4-6; rollo, pp. 40-42.
11 Appellant's Brief, p. 1; rollo, p. 37.
12 People vs. Obzunar, G.R. No. 92153, December 16, 1996, p. 21; People vs. So,
247 SCRA 708, 718, August 28, 1995; People vs. Nuestro, 240 SCRA 221, 227,
January 18, 1995; Bitalac vs. Court of Appeals, 241 SCRA 351, 354, February 15,
1995; People vs. Camahalan, 241 SCRA 558, 569, February 22, 1995; People vs.
Morin, supra., p. 714; People vs. Silvestre, 244 SCRA 479, 490, May 29, 1995;
People vs. Ganzagan, Jr., 247 SCRA 220, 233, August 11, 1995.
13 People vs. Ombrog, G.R. No. 104666, February 12, 1997, pp. 11-12; People vs.
Cogonon, G.R. No. 94548, October 4, 1996, pp. 13-14; People vs. Gamiao, 240
SCRA 254, 260, January 19, 1995; People vs. Morin, 241 SCRA 709, 716, February
24, 1995.
14 People vs. Morin, ibid.; People vs. Cogonon, ibid.
15 People vs. Dela Iglesia, 241 SCRA 718, 732, February 24, 1995; and People vs.
Torres, 247 SCRA 212, 218, August 11, 1995.

16 TSN, November 6, 1992, p. 14.

17 See, Footnote No. 7.
18 Op. Cit.
19 Ibid., p. 16.
20 People vs. Asoy, 251 SCRA 682, 688, December 29, 1995; and People vs. Lopez,
Jr., 245 SCRA 95, 105, June 16, 1995.
21 People vs. Desalisa, 229 SCRA 35, 47, January 4, 1994; and People vs.
Inocencio, 229 SCRA 517, 523-524, January 27, 1994.
22 People vs. Caras, 234 SCRA 199, 210, July 18, 1994; and People vs. Jotoy, 222
SCRA 801, 806, May 31, 1993.
23 People vs. Torres, supra., p. 217; People vs. Villanueva, 242 SCRA 47, 55, March
1, 1995; People vs. Legaspi, 246 SCRA 206, 212, July 14, 1995; and People vs.
Lopez, 249 SCRA 610, 621, October 30, 1995.
24 People vs. Isleta, G.R. No. 114971, November 19, 1996, p. 18; People vs.
Daquipil, 240 SCRA 314, 329, January 20, 1995; and People vs. Camahalan, supra.
25 People vs. Gerolaga, G.R. No. 89075, October 15, 1996, pp. 26-27; and People
vs. Deopante, G.R. No. 102772, October 30, 1996, p. 14.
26 De Luna vs. Court of Appeals, 244 SCRA 758, 763, June 2, 1995.
27 People vs. Ganzagan, Jr., supra.
28 People vs. Daquipil, supra., p. 330.
29 People vs. Boniao, 217 SCRA 653, 667, January 27, 1993; People vs. Galit, 230
SCRA 486, 496, March 1, 1994; People vs. Manlulu, 231 SCRA 701, 708, April 22,
1994.
30 People vs. Nuestro, supra, p. 230; and People vs. Amania, 220 SCRA 347, 358,
March 23, 1993.
31 Tapalla vs. Court of Appeals, 222 SCRA 825, 828, May 31, 1993.
32 People vs. Layno, G.R. No. 110833, November 21, 1996, pp. 20-21; People vs.
Deopante, G.R. No. 102772, October 30, 1996, pp. 8-9; People vs. Ganzagan,
Jr., supra., pp. 235-236; and People vs. Lopez, supra.

33 People vs. De la Cruz, 242 SCRA 129, 142, March 2, 1995; and People vs.
Deopante, supra., p. 8; People vs. Silvestre, supra, pp. 494-495.
34 People vs. Ganzagan, Jr., supra.; and People vs. Soldao, 243 SCRA 119, 127128, March 31, 1995.
35 Article 14, no. 16, Revised Penal Code; People vs. Camahalan, supra, p. 571;
and People vs. De la Cruz, supra, pp. 142-143.
36 People vs. Waggay, 218 SCRA 742, 755, February 9, 1993; and People vs.
Asoy, supra, pp. 688-689.
37 People vs. Empacis, 222 SCRA 59, 69, May 14, 1993; and People vs. Escoto,
244 SCRA 87, 98, May 11, 1995.

29. P v cando , GR 128114, OCT 25,2099

EN BANC
G.R. No. 128114

October 25, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROGER CANDO Y PAGDANGANAN, ARNEL VARGAS Y MAGTANGOB, AND WILBERTO
RAPCING Y BROOLA, accused-appellants.
QUISUMBING, J.:
On automatic review is the decision of the Regional Trial Court of Manila, Branch 33, in Criminal
Case No. 95-142748, convicting appellants of the crime of robbery with homicide, sentencing them
to death, ordering them solidarily to indemnify the heirs of the victim the amount of P50,000.00, and
to return the personal belongings taken from the victim and other offended parties. In a related case,
Criminal Case No. 95-142749, appellants were acquitted of the charge of carnapping.
Appellants Cando and Rapcing, aged 40 and 28 respectively, were employed as candlemakers at
the Rosarian Candle Factory located in Paco, Manila. Appellant Vargas, aged 20, was employed as
a delivery boy. The victim, Luis D. Remoriata, was the caretaker ("katiwala") in said factory.
The facts based on the records are as follows:
In the afternoon of May 13, 1995, Vargas, Rapcing and one Nonoy Sayson were having a drinking
session at a canteen in front of the factory. At around 9:30 P.M., Cando joined the group. Upon the
prompting of Vargas, Cando went to the factory to get his salary. Cando came back angry because
he was unable to get his salary from the secretary, nor was he able to get a loan of P100.00 from the
caretaker. Apparently, Cando already had previous misunderstandings with the caretaker, so this
time, he threatened to kill the caretaker. The group continued their drinking session. 1

At around 11:00 P.M., Vargas, Rapcing, and Cando, armed with two knives and carrying a shoulder
bag, climbed the fence of the factory. They walked on the galvanized iron roof towards the other
building. One by one, they slipped through a narrow window at the side of the building. The trio
proceeded to the victim's room, which was lighted by a fluorescent lamp. Cando picked a piece of
lead pipe and told Vargas to pull open the door where the victim's mosquito net was attached. When
Vargas pulled open the door, the mosquito net snapped and Cando struck the victim on the head
with the lead pipe. The victim awakened and Cando demanded money from him. When the victim
replied that he had no money, Cando struck him again with the lead pipe. Blood oozed from the
victim's head. Cando asked the victim if he recognized him. The victim weakly replied "Yes, You are
Roger (Cando)." Thereafter, Cando repeatedly hit him with the lead pipe until he became
unconscious. Cando placed the victim's radio cassette in his bag. He went upstairs to get more items
and the keys of the Cimarron van. Thereafter, the trio went downstairs to where the van was parked.
Vargas, the only one who knew how to drive, sat on the driver's seat. Cando and Rapcing opened
the gate, then pushed the van outside. Once they were out of hearing range, Vargas gunned the
motor and the two clambered into the van. Cando sat on the passenger side while Rapcing sat at the
back. Cando prevailed upon the group to proceed to Quiapo to visit his girlfriend, but they could not
locate her so they just drove around until daybreak. When they reached Hemady Street in Quezon
City, they abandoned the van. The trio boarded a jeep going to Taft Avenue and went their separate
ways.2 It was then already early morning of May 14, 1995.
At around 6:00 A.M., Mrs. Norma Chu, the factory owner, discovered the dead body of Luis
Remoriata. The factory van was also missing. A hysterical Mrs. Chu called the Barangay Captain,
who in turn reported the incident to the police. Upon investigation, the police found a bakawan
firewood stained with blood some ten meters away from the victim's body. The police also called a
funeral parlor to get the body of the victim.3
In the meantime, the van was discovered by Barangay Kagawad Mejia, who called up the telephone
number posted at the side of the van. The owner, Mrs. Chu, arrived with three NBI Agents who took
pictures of the van and lifted fingerprints from it. 4
The very next day, May 15, 1995, Mrs. Chu lodged a complaint5 with the National Bureau of
Investigation (NBI). Based on her complaint, the NBI dispatched a team of agents to the crime
scene. The NBI recovered a bloodstained steel pipe behind the door of the room. Upon learning
from Mrs. Chu that appellants Cando and Vargas had previous skirmishes with the victim, on May
16, 1995, the NBI agents picked up Vargas from the factory and brought him to their office for
questioning.6
Vargas readily admitted his participation and pinpointed appellants Cando and Rapcing as his coperpetrators. He likewise executed an extrajudicial admission 7 and waiver of his rights under Articles
124 and 125 of the Revised Penal Code.8
Acting on the lead, the NBI agents picked appellant Cando at his house in Libis St., Caloocan City.
Appellant Cando invoked his right to remain silent. 9 He executed a waiver of rights under Articles 124
and 125 of the Revised Penal Code.10
Thereafter, appellant Rapcing was also arrested at his house in Cristobal St., Looban, Paco,
Manila.11 Rapcing admitted complicity in the crime, and executed an extrajudicial
admission12 corroborating the story of Vargas. He also executed a waiver of his rights under Articles
124 and 125 of the Revised Penal Code.13
During custodial investigation, the three were assisted by Atty. Isidro T. Gamutan, a lawyer who
happened to be at the NBI because he was following up a case.

On May 17, 1995, appellant Vargas executed a second extrajudicial admission14 stating that Cando
gave him the bag containing the stolen items for safekeeping and that he brought the bag to his
sister-in-law's house in Kahilum, San Andres Bukid, Manila. He accompanied the NBI agents to the
house and gave them the bag which bore Cando's name. 15
On May 23, 1995, appellants were charged with the crime of Robbery with Homicide under the
following Information:16
"The undersigned accuses ROGER CANDO y PAGDANGANAN, ARNEL VARGAS y
MAGTANGOB and WILFREDO RAPCING y BROOLA of the crime of Robbery with
Homicide, committed as follows;
That on or about May 13, 1995, in the City of Manila, Philippines, the said accused
conspiring and confederating together and helping one another, did then and there wilfully,
unlawfully and feloniously, with intent of gain and by means of force, violence and
intimidation, to wit: by hitting one LUIS D. REMORIATA with steel pipe and wood on the head
several times and at the same time forcibly taking away from him the following, to wit:

One (1) Brown wallet valued at

P 120.00

containing cash money of

1,000.00

Cash money in the amount of

10,000.00

Three (3) wrist watches, all valued

1,000.00

One (1) Radio cassette (STD)

1,200.00

Assorted clothing, not less than

500.00

or in the total amount of P13,820.00 belonging to said Luis D. Remoriata and under his
personal care, to the damage and prejudice of the said owner in the aforesaid amount of
P13,820.00, Philippine Currency; that on the occasion of the said robbery and by reason
thereof, the herein accused, in pursuance of their conspiracy, did then and there wilfully,
unlawfully and feloniously, with intent to kill, attack, assault and use personal violence upon

the said LUIS D. REMORIATA, and as a result thereof, he sustained physical injuries which
were the direct and immediate cause of his death.
Contrary to law.
ALEJANDRO G. BIJASA
Asst. City Prosecutor"
On August 29, 1995, upon arraignment, appellants entered their respective pleas of not guilty.17 Joint
trial ensued.
The prosecution presented the following witnesses: (1) Norma C. Chu, the factory owner; (2) NBI
Agents Serafin Gil, Mario Garcia, Gregorio Tomagan; (3) NBI Photographer Cecilio Datinguinoo; (4)
NBI Fingerprint Examiner Elter Yano; (5) Dr. Manuel Lagonera, medico-legal officer; (6) Atty. Isidro
Gamutan, counsel of appellants during custodial investigation; (7) Barangay Kagawad Alejandro
Mejia.
Mrs. Norma Chu testified that when she discovered the body of the victim, the quarters was in
disarray, and the victim's clothes and radio were missing. Later, her husband and son informed her
that their wallets which they placed on top of the TV in the sala upstairs, and two other wristwatches
were missing. She also identified the van which was recovered from Hemady St. in Quezon City as
the one belonging to the factory.18
Serafin Gil testified that he took down the statement of Mrs. Chu and supervised the custodial
investigation of appellants.19 Mario Garcia took down the statements of Vargas and
Rapcing.20 Gregorio Tomagan testified that he was present during the taking of the two statements of
appellant Vargas dated May 16 and 17, 1995.21 Cecilio Datinguinoo testified that he took pictures of
the van while the NBI agents were lifting fingerprints from the van.22Elter Yano testified that he
managed to lift six (6) fingerprints from the cimarron van, tagged as "Q-1" to "Q-6". He testified that
"Q-1" which was lifted from the air freshener found in the van was identical to the left index
fingerprint of appellant Vargas (Exh. "DD"). Likewise, "Q-2" which was lifted from the victim's stereo
cassette was identical to the right ring fingerprint of Cando (Exh. "EE"). The other prints were
unidentifiable.23
Dr. Manuel Lagonera testified that the cause of death was "blunt head injuries" and that the victim
sustained the following injuries:24
"1. Triangular lacerated wound, with contusions at the periphery, measuring 3x2. 8x2.5 cms,
right forehead.
2. Deep lacerated wound, right forehead, above the right eyebrow, measuring 7x1.9 cms.
3. Lacerated wound, right zygomatic region, measuring 4.2x1.5 cms.
4. Deep lacerated wound, left frontal region, measuring 7x2.5cms.
5. Lacerated wound, left fronto-temporal region, measuring 2.5x2 cms.
6. Deep lacerated wound, angle of the mouth, right, measuring 4.5x2 cms.

7. Hematoma, both upper eyelids.

8. Deep lacerated wound, vertex, measuring 9x3 cms.
9. Lacerated wound, left occipital region, measuring 7x3 cms.
10. V-shaped lacerated wound, right external ear, measuring 3x2.5 cms.
11. Abrasion, right anterior shoulder, measuring 4x1.8 cms.
12. Semi-circular contusion, right supra-clavicular region, measuring 3.5x3.2 cms.
INTERNAL FINDINGS:
1. There was extensive sub-aponeurotic hematoma with multiple fractures of the cranial
vault. Epidural hematoma over the left parietal lobe of the brain with massive sub-arachnoid
hemorrhage.
2. Right anterior and middle cranial fossae were fractured.
3. The stomach was empty."
Atty. Isidro T. Gamutan testified that he happened to be at the NBI when the three accused were
scheduled for custodial investigation. The Chief of the Anti-Carnapping Unit requested him to give
legal assistance to the three accused. He asked the accused why they were being investigated, and
explained to them their rights. When he was satisfied that the accused understood their rights, he
assisted them in executing their extrajudicial statements.25
Alejandro Mejia, Barangay Kagawad at Barangay Kristong Hari, Quezon City testified that he found
the abandoned van with a flat tire. He contacted the owner through the telephone number printed on
the side of the van. The owner arrived with three NBI agents who examined the van. 26
For the defense, appellants testified. Appellant Cando stated that he finished Grade III, cannot read,
but can write his name. He denied any participation in the killing, but claimed that Vargas and
Rapcing knew about the incident. He said that on May 13, 1995, he reported for work at the factory
at 2:00 P.M. until 10:00 P.M. He went home in Libis St. Caloocan City, where he slept until around
11:00 A.M. the following day. He denied joining the drinking session. On May 14, 1995, he reported
for work at around 12:00 NN until 2:00 P.M.. He identified as his the bag containing the stolen items.
He further identified the contents of the bags, the air freshener which was taken from the van, the
two wristwatches belonging to the son and daughter of Mrs. Chu. He admitted that he and the other
two appellants offered to pay to the widow of the victim damages for his death. 27
Appellant Vargas, for his part, admitted participation in the killing, but claimed that he was forced by
Cando at knife point to participate. He further claimed that it was only Cando who killed the victim by
hitting him with an iron bar. He admitted, however, that he agreed to drive the Cimarron because he
wanted to practice driving.28
Appellant Rapcing recanted his extrajudicial admission. He denied any knowledge or participation in
the killing since he was stone drunk ("lasing na lasing"). He claimed that he just slept inside a
Tamaraw pick-up parked outside the factory. Further, he claimed that the finding of guilt is
inconsistent with the fact that he never went into hiding after the alleged incident. 29

On December 27, 1996, the trial court rendered its decision 30 convicting the three (3) appellants of
Robbery with Homicide with the aggravating circumstances of evident premeditation and treachery,
and sentencing them to suffer the penalty of death. Appellants were acquitted of the charge of
carnapping.
Hence, the present automatic review. In their consolidated brief,31 appellants raise the lone
assignment of error that
THE TRIAL COURT ERRED IN FINDING THAT THE AGGRAVATING CIRCUMSTANCES
OF EVIDENT PREMEDITATION AND TREACHERY ATTENDED THE COMMISSION OF
THE CRIME CHARGED.
In praying for the reduction of the sentence from death to reclusion perpetua, appellants contend
that the prosecution failed to prove evident premeditation, as there was no time for cool reflection
since their minds were hazy with the influence of liquor. Appellants further dispute the existence of
treachery since the killing of Remoriata was merely "on the spur of the moment."
The Solicitor General, on the other hand, contends that evident premeditation clearly attended the
commission of the crime but said aggravating circumstance, being inherent in the crime of robbery
with homicide, should not be appreciated separately.32 Treachery qualified the killing since the victim
was sleeping at the time he was attacked. In addition, the generic aggravating circumstances of
nighttime and dwelling should be appreciated.
The principal issue for resolution is whether the aggravating circumstances of treachery and evident
premeditation attended the commission of the offense? Secondarily, we must also determine
whether all the elements of robbery with homicide were proved beyond reasonable doubt.
There is treachery when the offender commits any of the crimes against the person, employing
means, methods, or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party might
make.33 The conditions which must concur before treachery can be appreciated are: (a) the
employment of means of execution that gives the person attacked no opportunity to defend himself
or to retaliate; and (b) that said means of execution be deliberately and consciously adopted. 34 The
essence of treachery lies in the adoption of ways that minimize or neutralize any resistance which
may be put up by the offended party.35 The killing of the sleeping victim herein was attended by
treachery since he was in no position to flee or defend himself. 36
The presence of treachery, though, should not result in qualifying the offense to murder, for the
correct rule is that when it obtains in the special complex crime of robbery with homicide, such
treachery is to be regarded as a generic aggravating circumstance, robbery with homicide being a
case of a composite crime with its own definition and special penalty in the Revised Penal Code. 37
For evident premeditation to exist, the prosecution must prove with clear and convincing evidence
the following elements: (1) the time when the offenders decided to commit the crime; (2) an act
manifestly indicating that the culprit has clung to his determination; and (3) sufficient lapse of time
between the determination and execution to allow them to reflect upon the consequences of their act
and allow their conscience to overcome the resolution of their will. 38 Evident premeditation is inherent
in crimes against property, but it may be considered in robbery with homicide if there is
premeditation to kill besides stealing.39 The prosecution clearly proved the intention to rob and to
disable the victim, but not the intention to kill him. As Vargas testified, the victim was still alive when
they left him rolling on the floor.40 Thus, evident premeditation can not be appreciated where the
prosecution failed to establish that the accused killed the victim pursuant to a preconceived plan. 41

The alternative circumstance of intoxication, however, should be considered as mitigating, it having

been sufficiently shown that (1) at the time of the commission of the criminal act, they have taken
such quantity of alcoholic drinks as to blur their reason and deprive them of certain degree of control,
and (b) that such intoxication is not habitual, or subsequent to the plan to commit the felony.42
As to the crime committed, the prosecution amply established the following elements of robbery with
homicide: (a) the taking of personal property is perpetrated by means of violence or intimidation
against a person, (b) the property taken belongs to another, (c) the taking is characterized by intent
to gain or animus lucrandi, and (d) on the occasion of the robbery or by reason thereof, the crime of
homicide, in its generic sense, is committed. 43 It matters not that the victim was killed prior to the
taking of the personal properties of the victim and the other occupants of the house. What is
essential in robbery with homicide is that there be a "direct relation, and intimate connection between
robbery and the killing, whether the latter be prior or subsequent to the former or whether both
crimes be committed at the same time. 44 The rule is well-established that whenever homicide has
been committed as a consequence of or on the occasion of the robbery, all those who took part as
principals in the robbery will also be held guilty as principals of the special complex crime of robbery
with homicide although they did not actually take part in the homicide, unless it clearly appears that
they endeavored to prevent the homicide. 45 While Cando was bashing the head of the victim, and
placing the personal items in his bag, nary a peep could be heard from Vargas and Rapcing. Their
act of simply watching Cando shows their moral assent and complete acquiescence to the
commission of the crime.
Appellant Vargas claims that he was threatened at knife point to join appellant Cando in the
commission of the crime. He is in effect invoking the exempting circumstance of compulsion of an
irresistible force under Article 12, par. 5 of the Revised Penal Code. We have held that the
compulsion must be of such a character as to leave no opportunity to the accused for escape or selfdefense. 46 Vargas had several opportunities to prevent the killing and to escape, but he chose to
remain with his co-conspirators, and even willingly drove the get-away vehicle.
As to appellant Rapcing, the fact that he did not go into hiding after the alleged incident does not
make him an innocent man. We have long ruled that flight is an indicium of guilt, but non-flight is not
necessarily an indicium of innocence.47
Under Article 294 of the Revised Penal Code, as amended by Section 9 of R.A. No. 7659, the
penalty for robbery with homicide is reclusion perpetua to death. There being one mitigating
circumstance of intoxication, and one aggravating circumstance of treachery, the penalty to be
imposed is reclusion perpetua.48 The existence of one aggravating circumstance merits the award of
exemplary damages under Art. 2230 of the New Civil Code.
We likewise order that the personal properties which are in custodia legis be returned to the
offended parties.
WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 33, in Criminal Case No.
95-142748 is hereby MODIFIED as follows: appellants ROGER CANDO Y PAGDANGANAN,
ARNEL VARGAS Y MAGTANGOB, and WILBERTO RAPCING Y BROOLA are hereby found guilty
of the crime of Robbery with Homicide, and sentenced to suffer the penalty of reclusion perpetua,
and ordered solidarily to pay the heirs of the victim P50,000.00 as civil indemnity and P10,000.00 as
exemplary damages, and to return to the owners thereof the cash and the vehicle and other effects
taken by the appellants, as well as to pay the costs.
SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Purisima, Pardo, Buena, GonzagaReyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
Kapunan, J., is on leave.
Separate Opinion
VITUG, J.:
It does seem that the prosecution has been able to establish the guilt of accused-appellants on their
involvement in the crime charged. But I find myself unable to subscribe to the idea of having
treachery taken as a generic aggravating circumstance in the crime of robbery with homicide. While I
am not unaware of the past pronouncements which supports this conclusion, I believe it to be high
time, however, for the Court to reexamine the doctrine. Robbery with homicide is a special complex
crime where homicide is committed "by reason or on occasion" of robbery. In the same way that
alevosia will not result in qualifying the offense to murder, where the original and real intent of the
accused is robbery, so, also, must treachery be ignored in aggravating this special crime. Robbery
with homicide is an offense against property under Title Ten, Book Two, of the Revised Penal Code,
and treachery is an aggravating circumstance obviously applicable only to crimes against persons
under Title Eight, Book Two, of the same Code.

Footnotes:
1

TSN, May 2, 1996, pp. 2-3; TSN, June 6, 1996, pp. 3-5, 25.

TSN, May 2, 1996, pp. 3-6; TSN, June 6, 1996, pp. 6-24.

TSN, September 7, 1995, pp. 49-51.

TSN, February 27, 1996, pp. 4-13.

Exhibit "K," Folder of Exhibits, pp. 13-14.

TSN, September 5, 1995, pp. 6-9.

Exhibit "Y," Folder of Exhibits, pp. 36-40.

Exhibit "W," Folder of Exhibits, p. 34.

TSN, September 7, 1995, p. 17.

10

Exhibit "V", Folder of Exhibits, p. 33.

11

TSN, September 7, 1995, p. 17.

12

Exhibit "J", Folder of Exhibits, p. 10.

13

Exhibit "X", Folder of Exhibits, p. 35.

14

Exhibit "B", Folder of Exhibits, pp. 2-3.

15

TSN, September 7, 1995, p. 18.

16

Records, pp. 2-3.

17

Id. at 64.

18

TSN, September 7, 1995, pp. 51-56.

19

Id. at 17.

20

TSN, October 3, 1995, pp. 5-6.

21

TSN, September 21, 1995, pp. 2-8.

22

TSN, September 7, 1995, pp. 42-44.

23

TSN, September 7, 1995, pp. 31-39.

24

Autopsy Report, Exhibit "Z," Folder of Exhibits, p. 41.

25

TSN, October 17, 1995, pp. 5-6, 11-14.

26

TSN, February 27, 1996, pp. 4-8.

27

TSN, April 11, 1996, pp. 3-22.

28

TSN, June 6, 1996, pp. 2-22.

29

TSN, May 16, 1996, pp. 6-18.

30

Records, pp. 121-141.

31

Rollo, p. 62.

32

Citing U.S. v. Blanco, 10 Phil. 298, 300 (1908); U.S. v. Hermosilla, 31 Phil. 405, 411 (1915).

33

Art. 16, Revised Penal Code.

34

People v. Bautista, 312 SCRA 214 (1999).

35

People v. Academia, Jr., 307 SCRA 229, 234 (1999).

People v. Adoviso, 309 SCRA 1, 16 (1999); People v. Quinao, 269 SCRA 495, 511 (1997);
People v. De Guia, 280 SCRA 141, 159 (1997).
36

People v. Salvatierra, 257 SCRA 489, 507 (1996); People v. Timple, 237 SCRA 52, 70
(1994).
37

38

People v. Lopez, 313 SCRA 114, 125 (1999).

39

People v. Guiapar, 129 SCRA 539, 555 (1984).

40

TSN, May 2, 1996, p. 6.

41

People v. Molina, 312 SCRA 130, 136 (1999).

Art. 15, last par., Revised Penal Code; People v. Marquita, G.R. Nos. 119958-62, March 1,
2000, p. 12.
42

43

People v. Paraiso, G.R. No. 127840, November 29, 1999, p. 15.

44

People v. Navales, 266 SCRA 569, 594 (1997).

45

People v. Robles, G.R. No. 101335, June 8, 2000, pp. 12-13.

46

People v. Lising, 285 SCRA 595, 643-644 (1998).

47

People v. Palma, 308 SCRA 466, 483 (1999).

48

Pursuant to Article 63, No. 4 of the Revised Penal Code.

30. P vs estanislao, GR 118079 dec 24,1996

FIRST DIVISION
G.R. No. 118079 December 24, 1996
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ARMANDO ESTANISLAO, ROGELIO ESTANISLAO, and FELINO ESTANISLAO
[Deceased], accused-appellants.

PADILLA, J.:p
On 3 July 1990, the 4th Assistant Provincial Prosecutor of Camarines Sur charged Armando, Rogelio
and Felino all surnamed Estanislao, with the murder of one Sergio Montejo, allegedly committed as
follows:
That on or about January 19, 1990, in the late afternoon, at Poblacion, Municipality of
Libmanan, Province of Camarines Sur, Philippines, and within the jurisdiction this

Honorable Court, the above-named accused, conspiring, confederating together and

mutually helping one another with intent to kill, with treachery and evident
premeditation, did then and there wilfully, unlawfully and feloniously assault, attack
and stab Sergio Montejo with a sharp bladed instrument, hitting the latter on his left
chest that caused his instantaneous death.
That as a consequence of the death of said Sergio Montejo, his heirs sustained
damages which will be proved later in court.
ACTS CONTRARY TO LAW. 1
When arraigned, all accused pleaded not guilty. 2
On 22 May 1992, the trial court issued an order dismissing the criminal aspect of the case against
accused Feline Estanislao due to his death on 9 October 1990. 3
On 21 March 1994, the Regional Trial Court, Branch 29 of Libmanan, Camarines Sur rendered a
decision 4 of conviction, the dispositive part of which reads:
WHEREFORE, premises considered, there being no aggravating or mitigating
circumstance, accused Armando Estanislao and Rogelio Estanislao are hereby
sentenced to suffer the penalty of reclusion perpetua together with the accessory
penalties and for them, including the estate of the deceased accused Feline
Estanislao, to pay jointly and severally an indemnity to the heirs of Sergio Montejo in
the amount of FIFTY THOUSAND PESOS (P50,000.00) ONLY and to pay the costs.
SO ORDERED. 5
A motion for reconsideration of the judgment finding the accused-appellants guilty of murder was
denied on 6 September 1994 6 and a Notice of Appeal was seasonably filed with, and given due course
by the trial court. 7
The evidence for the prosecution based mainly on the testimony of Fe Pearedondo tends to prove
that on 19 January 1990 at around five o'clock in the afternoon while she (Pearedondo) was at the
eatery owned by a certain Jun Badilla and while Badilla, another unnamed person and the victim
Sergio Montejo were drinking beer, the accused Rogelio Estanislao arrived.
When the victim Montejo stood up from the drinking session to relieve himself, accused Rogelio
Estanislao suddenly uttered, "Tara Sergio!" after which Rogelio suddenly stabbed the victim Sergio
Montejo and thereafter fled. Pearedondo likewise testified that she saw Armando and Felino
Estanislao, whom she had earlier seen within the vicinity of the store, approach the victim
immediately after the stabbing, carrying wooden sticks locally called
" palomaria". When the two (2) found out that the victim had fallen down with a stab wound, they
then also fled.

Araceli Montejo, the victim's wife, testified that the relationship between the Estanislaos and the
Montejos had turned sour since 18 November 1989 when her husband (the victim) had advised the
Estanislaos to vacate the property of the Montejos that they were occupying since the Montejos
were going to use the property. She testified that on 11 January 1990, only a week before the
stabbing incident, her husband and Armando Estanislao had a fist fight where the latter was aided by
the two (2) other accused, Felino and Rogelio Estanislao. The fight was broken up by the timely
arrival of police officers which prevented the accused from further attacking the victim Sergio
Montejo. The victim's widow likewise testified that Rogelio Estanislao threatened to kill her husband
while she was trying to stop the fight. 8
The defense on the other hand had a completely different version of the incident.
Accused-appellant Rogelio Estanislao while admitting that he was holding the bladed weapon that
killed the victim interposed the defense that the latter was accidentally hit when he (Rogelio) was
trying to parry an attack on himself.
Rogelio testified that at around five o'clock in the afternoon of 19 January 1990 at Barangay
Poblacion, Libmanan, Camarines Sur, he passed by an eatery (carinderia) where the owner, a
certain Jun Badilla, one Gerry Balces and the victim Sergio Montejo were having a drinking spree.
As he passed by, he heard the victim say in the native dialect, "Here he comes, attack him now!". It
was then that Montejo and Balces threw beer bottles at him and Montejo pulled out a fan knife
(balisong) saying "I will finish you!". Jun Badilla likewise attacked him with a bolo. Rogelio then
stated that he was able to grab hold of a small wooden table locally known as "papag" which he
used to parry the attacks of the two (2) assailants. He declared that the victim was hit by the bolo of
Jun Badilla when he parried the latter's attack and the bolo accidentally hit the victim. Defense
witness Dionisio Munda corroborated Rogelio's version of the incident.
Accused-appellant Armando Estanislao relied on his defense of alibi. He testified that on the date
and time of the incident, he was at the house of a certain Leonor Amores working as a hired laborer.
Amores confirmed Armando's alibi but admitted that the distance from her house to the crime scene
can be negotiated in five (5) minutes on foot or two (2) minutes by trimobile.
Accused-appellants assign the following errors to the trial court:
I
WHEN IT RELIED UPON THE LONE, UNCORROBORATED AND INADEQUATE
TESTIMONY OF PROSECUTION WITNESS FE PEAREDONDO IN
CONCLUDING THAT APPELLANT ROGELIO ESTANISLAO EMPLOYED
TREACHERY IN ATTACKING THE VICTIM.
II

WHEN IT RELIED UPON THE DUBIOUS TESTIMONY OF OFFENDED PARTY

ARACELI MONTEJO IN CONCLUDING THAT THERE EXISTED EVIDENT
PREMEDITATION THAT QUALIFIED THE OFFENSE TO MURDER.
III
WHEN IT INFERRED THE EXISTENCE OF CONSPIRACY AMONG THE
ACCUSED-APPELLANTS FROM MERE RELATIONSHIP AND SPECULATION.
IV
WHEN IT DISREGARDED APPELLANT ROGELIO ESTANISLAO'S CLAIM OF
SELF-DEFENSE EVEN WHEN HIS TESTIMONY WAS NEVER REBUTTED AND
THEREFORE TACITLY ADMITTED BY THE PROSECUTION.
V
WHEN IT CONVICTED THE ACCUSED OF THE CRIME OF MURDER AS
CHARGED. 9
Accused-appellants argue that the trial court erroneously relied on the testimony of Fe Pearedondo
which was not only uncorroborated but also based on assumptions and contained accounts of
events which were improbable.
It is argued that the prosecution should have presented the persons allegedly drinking with the victim
at the time of the incident.
Accused-appellants likewise contend that witness Pearedondo only assumed that the reason the
victim stood up was to relieve himself, which assumption lacked any basis.
Appellants also maintain that it is improbable for accused Felino and Armando Estanislao to loiter
near the scene of the incident as early as 4:30 in the afternoon of 19 January 1990 since the former
was an infirm and ailing man who died during the trial of the case while the latter walks with a limp
and there would have been a danger of their being violently accosted by the victim and his drinking
companions.
Appellants then assail the finding of the trial court that treachery and evident premeditation
accompanied the killing.
The settled rule is that appellate courts will generally not disturb the findings of the trial court on the
issue of credibility of witnesses, considering that it is in a better position to decide the question,
having heard the witnesses themselves and observed their deportment and manner of testifying
during trial. 10
In the present case, there is no showing that the trial court overlooked certain facts which could have
materially affected its appreciation of the testimony of prosecution witness Fe Pearedondo. Her

testimony was clear, unequivocal and consistent. The issues raised by appellants regarding
assumptions and improbabilities pertain to matters which are extraneous to her straightforward
narration of how accused-appellant Rogelio Estanislao suddenly stabbed the victim Sergio Montejo,
after which he immediately fled.
Accused-appellant Rogelio Estanislao for his defense contends that he was holding a wooden table
(papag) and a knife he had grabbed possession of from one of the victim's drinking buddies. He
maintains that the victim Montejo was accidentally stabbed when he was parrying the attacks
against him.
Appellant Rogelio's defense that the victim was accidentally stabbed is defeated and negated by his
own testimony.
On direct examination, Rogelio Estanislao first testified that the victim attacked him with a knife while
Jun Badilla attacked him with a bolo he had pulled from his scabbard. He was then able to get hold
of a wooden table to defend himself. While parrying the attacks against him, the victim (Montejo)
was hit by the bolo of Badilla which he had blocked with the "papag". 11
Later however, Rogelio stated that he was not sure if it was the bolo of Badilla or the knife which the
victim had earlier attacked him with, but which the latter dropped and which he picked up and was
then holding together with the "papag", which struck the fatal wound on Sergio Montejo. He also
stated that the victim was attacking him with a lead pipe while Badilla was attacking him with his
bolo. 12
On cross-examination, Rogelio had yet another version of the incident. He stated that Badilla was
not yet holding a bolo when Sergio attacked him with a knife. Rogelio narrated that Sergio first
dropped the knife before Badilla got a bolo from the stall and attacked him. 13
The differences in the three (3) versions of the incident are irreconcilable and unexplained. Thus,
against the uncontested and consistent testimony of the prosecution witnesses, his defense must
fail.
Moreover, if it were indeed true that it was the victim's (Montejo) group that first attacked Rogelio
Estanislao, it is not explained why the latter did not file criminal charges against his alleged
attackers.
The presence of the qualifying circumstance of treachery has been adequately shown. The attack on
Montejo although preceded by a warning ("Tara Sergio!) was undoubtedly sudden and unexpected
and prevented the unsuspecting victim, who had just stood up, from defending himself.
Evident premeditation on the other hand was not substantially shown.
The requisites of evident premeditation are: 1) the time when the offender determined to commit the
crime must be adequately shown; 2) an act to show that the offender clung to his determination and
3) a sufficient lapse of time between the determination and the execution to allow the offender to
reflect upon the consequences of his act. 14

Not all of said requisites have been adcquately shown in this case.
On the criminal liability of Armando Estanislao, the trial court based his conviction on the inference
that there was conspiracy between the father (Felino), whose criminal liability was extinguished by
his death during trial of the case, and the two (2) sons, Rogelio and Armando.
Conspiracy may be inferred from the joint and simultaneous acts of several accused aimed at a
common purpose. 15
We are not convinced that conspiracy between Rogelio and the two (2) other accused can be
logically inferred from the acts of the latter.
It is undisputed that Armando and Felino Estanislao did not commit any positive act to show unity of
purpose with Rogelio. Their mere presence in the crime scene, absent other proof to support the
allegation of conspiracy, cannot be considered an indication of their being conspirators. l6 Nor can
relationship with Rogelio and their carrying wooden sticks be considered as badges of conspiracy The doubt in this case should be resolved
in favor of the accused-appellants.

Finally, the mitigating circumstance of voluntary surrender cannot be appreciated in favor of

accused-appellant Rogelio Estanislao The trial court correctly held that Rogelio's surrender after a
warrant of arrest had been issued and almost two (2) months after the incident was not spontaneous
and therefore deserves no consideration.
WHEREFORE, based on the foregoing, the decision appealed from is hereby MODIFIED as follows:
1. Accused-appellant Armando Estanislao is hereby ACQUITTED based on reasonable doubt;
2. The liability of the estate of Feline Estanislao for the death of the victim is SET ASIDE for being
without basis;
3. Accused-appellant Rogelio Estanislao is declared guilty of murder and sentenced to suffer the
penalty ofReclusion Perpetua and ordered to indemnify the heirs of the victim the amount of FIFTY
THOUSAND PESOS (P50,000.00).
SO ORDERED.
Bellosillo, Kapunan and Hermosisima, Jr., JJ., concur.
Vitug, J., is on leave.
Footnotes
1 Original Records p. 1.
2 Original Records, p. 85.
3 Original Records, p. 194.

4 Penned by Judge Salvador G. Cajot.

5 Original Records, p. 272.
6 Original Records, p. 296.
7 Original Records, pp. 297 and 299.
8 TSN, 14 January 1991, p. 10.
9 Rollo, p. 51.
10 People of the Philippines v. Albarico, G.R. Nos. 108596-97, 17 November 1994,
238 SCRA 203.
11 TSN, 4 October 1991, pp. 9-10.
12 TSN, 4 October 1991, pp. 10-11.
13 TSN, 11 June 1992, pp. 4-6.
14 People of the Philippines v. Maturgo, G.R. No. 111872, 27 September 1995,
SCRA 519.
15 People of the Philippines v. Wenceslao, G.R. No. 95583, 12 August 1992, 212
SCRA 560.
16 People of the Philippines v. Buntan, Sr., G.R. No. 90736, 12 April 1993, 221
SCRA 421.

31. US v Abaigar 2 Phil 417

EN BANC
G.R. No. 1255

August 17, 1903

THE UNITED STATES, complainant-appellee,

vs.
FELIPE ABAIGAR, defendant-appellant.
Fermin Mariano for appellant.
Solicitor-General Araneta for appellee.
MAPA, J.:

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

In the present case, there being no circumstancial tending to modify the guilt of the defendant, the
penalty is that prescribed by article 403 of the Penal Code in its medium grade, to wit, the penalty of
life imprisonment, and not the penalty of death imposed by the court.
For the reasons stated we reverse the judgment in so far as it condemns the defendant to death,
and impose upon the latter the penalty of life imprisonment, and condemn him to the payment of an
indemnification of 1,000 Mexican pesos to the heirs of the deceased, together with the costs of this
instance.
Arellano, C.J., Torres, Cooper, Willard, and McDonough, JJ., concur.

32. P vs saylan, L-36941, June 29, 1984

EN BANC
G.R. No. L-36941 June 29, 1984
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RAFAEL SAYLAN alias PAEL, accused-appellant.
The Solicitor General for plaintiff-appellee.
Federico Y. Alikpala, Jr., for accused-appellant.

ABAD SANTOS, J.:

This is an automatic review of the decision of the defunct Court of First Instance of Misamis Oriental
in Criminal Case No. 52-M which imposed the death penalty.
RAFAEL SAYLAN was accused of the crime of rape in the sworn complaint of Eutropia Agno said to
have been committed as follows:
That on or about the 23rd day of January, 1972, at more or less 7:00 o'clock in the
evening, at Sitio Craser, Malinao, Jingo City, Philippines and within the jurisdiction of
this Honorable Court, the abovenamed accused, with deliberate intent to have sexual
intercourse, did then and there wilfully, unlawfully and criminally with the use of a
dagger, force and intimidate Eutropia Agno y Arcay, to remove her pantie and to lay
down on the ground and with the use of a dagger, force and intimidation succeeded
in having sexual intercourse with Eutropia Agno y Arcay, a woman of good reputation
and against her will. That the commission of the foregoing offense was attended by
the aggravating circumstances of: abuse of superior strength, nighttime, uninhabited
place, ignominy and reiteracion. (Expediente, p. 27.)

The accused entered a plea of "not guilty" and after trial the court rendered the following judgment:
WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the
crime of rape, penalized under Article 335 of the Revised Penal Code as amended
by Republic Act No. 4111, and the commission of the offense having been attended
by three aggravating without any mitigating circumstance, hereby sentences him to
suffer the supreme penalty of death, to indemnify the offended party in the amount of
Six Thousand Pesos (P6,000.00), and to pay the costs. In view of the fact that the
offended party is a married woman, aside from the fact that she has not become
pregnant as a result of the commission of the rape, the Court makes no
pronouncement as to acknowledgment and support of offspring. (Id., p. 64.)
The factual version of the prosecution is summarized in the People's brief as follows:
The complaining witness, Eutropia A. Agno, a married woman and a resident of
Barrio Malinao, Gingoog City, was a classroom teacher of the Malinao Elementary
School (pp. 2, 3, tsn., Feb. 22, 1973).
In the afternoon of January 23, 1971, Eutropia went to the public market in Gingoog
City to buy foodstuffs for her family and thereafter, she proceeded to the store of her
mother to fetch her five-year old daughter Nilsonita (p. 4, tsn., Id.). On their way
home, Eutropia and Nilsonita boarded a passenger jeepney and while inside the
vehicle she (Eutropia) noticed that the other passengers were Rudy Gonzales, a
grade I pupil of the Malinao Elementary School, the appellant, Rafael Saylan, and a
couple whom she did not know (pp, 5, 6, tsn., Id.). The jeepney went only as far as
Malinas citrus farm because the road to Barrio Malinao was not passable by vehicles
(p. 5, tsn., Id.). It was almost 6:30 o'clock in the evening when the jeepney arrived at
the Malinas citrus farm and so all the passengers alighted and had to walk all the
way to Barrio Malinao which was about three and a half kilometers away (p. 5,
tsn., Id.). After walking some distance and upon reaching a junction, the couple
separated from the group and took the road leading to their house while Eutropia's
group took the opposite road (p. 9, tsn., Id.). The appellant, however, joined the
group of Eutropia and when they reached the place where the road was plain,
appellant who was then walking side by side with Eutropia suddenly pulled out a
dagger about eight inches long and pointing it at the latter said, "Do not shout, Nang,
I will kill you!" (pp. 11, 12, tsn., Id.). At this juncture, appellant placed his right arm
around the neck of Eutropia with the dagger pointed at her left breast (p. 12,
tsn., Id.), after which he dragged Eutropia at some distance. When they reached the
junction of the trail for men and a trail for carabaos, he ordered everybody to stop
and told the children (Nilsonita and Rudy Gonzales) to stay behind and threatened to
kill them if they persisted in following them (pp. 17, 18, tsn., Id.). Thereafter, appellant
again dragged Eutropia by her hand and brought her towards a creek near a coconut
tree which was about five meters away from where Nilsonita and Rudy Gonzales
were (pp. 14, 15, 16, tsn., Id.). The appellant then ordered Eutropia to remove her
panty which she refused at first, but appellant threatened to kill her, so she removed
her panty after which appellant ordered her to lie down (pp. 18, 19, tsn., Id.).
lwphl@it

lwphl@it

Subsequently, appellant placed himself on top of the victim and inserted his penis
into her vagina and succeeded in having sexual intercourse with her by moving his
buttocks up and down (pp. 20,21, tsn., Id.).
After the first sexual act, appellant ordered Eutropia to standup which the latter
helplessly and grudgingly followed (p. 23, tsn., Id.). Appellant again inserted his penis
into her vagina and then performed a push and puli movement (pp. 23, 24, 25, tsn.,
Id.). Not satisfied with the second intercourse, appellant ordered Eutropia to lie down
again preparatory to a third intercourse (p. 26, tsn., Id.). Appellant again performed
the sexual act with her (pp. 26, 27, tsn., Id.).
After the third intercourse, appellant ordered Eutropia to stand up and then he bent
her body downwards with her hands and knees resting on the ground (p. 28, tsn.,
Id.). When the latter was already in this position, appellant then placed himself
behind her, inserted his penis into her vagina and executed a push and puli
movement in the dog's way of sexual intercourse (pp. 27, 28, tsn., Id.)
After performing this uncommon way of sexual intercourse, appellant ordered
Eutropia to he down again which the latter reluctantly obeyed because appellant's
dagger was always pointed at her and thereafter he had carnal knowledge of her for
the fifth time (pp. 29, 30, tsn., Id.).
After the fifth intercourse, and after satisfying his sexual lust, appellant asked
Eutropia if she will tell her husband what he did to her and the latter answered, "I will
not tell" (p. 31, tsn., Id.). But she only said this so that appellant would let her go
home (p. 33, tsn., Id.).
Afterwards, Eutropia and appellant returned to the place where the children were left
and upon arriving thereat, they found Nilsonita (Eutropia's daughter) asleep with
Rudy seated dozing beside her (pp. 32, 33, tsn., Id.). Nilsonita who was sleeping was
carried by the appellant and then they all proceeded to Malinao (pp. 33, 34, tsn., Id.).
After walking some distance, Eutropia saw the house of her friend "Ben" and upon
approaching the said house, she shouted, "Ben, Ben, please give me hot water" (p.
34, tsn., Id.). Upon hearing her voice, Ben, who was still awake at the time, opened
the door of his house and allowed Eutropia to come up (p. 34, tsn., Id.). Eutropia
immediately went upstairs and went straight to the room of Ben as she was feeling
very bad (p. 34, tsn., Id.). Appellant, who was then carrying Nilsonita and Rudy
Gonzales, were also allowed to go upstairs (p. 35, tsn., Id.). Meanwhile, Eutropia
requested Ben to fetch her husband (p. 35, tsn., Id.).
When Eutropia woke up between 9:00 and 10:00 o'clock that evening, her husband
was already there (p. 36, tsn., Id.). She then asked him whether the appellant was
stin around, and in reply, he told her that appellant had already left (p. 37, tsn., Id.).
Eutropia then told her husband that she was raped by the appellant (p. 37, tsn., Id.).

Upon learning of the dastardly act committed by the appellant, he advised his wife to
submit herself to a medical examination (p. 37, tsn., Id.).
The following morning, the offended party was brought to the office of the City Health
Department of Gingoog City where she was examined by Dr. Ireneo O. Pascual who
after conducting a thorough physical examination, issued a medical certificate with
the following findings, to wit:
(1) Multiparous.
(2) Presence of viscid whitish secretions at vaginal fornix
(3) Microscopic examination of secretions reveals epithelial cells, but
no spermatozoa Identified.
(pp. 10, 11, 12, t.s.n., Feb. 24, 1973; Exh. "A").
Rudy Gonzales, a grade I pupil of the Malinao Elementary School and one of the
witnesses for the prosecution, testified that he met Mrs. Eutropia Agno in the
afternoon of January 23, 1972 at the public market of Gingoog City buying foodstuffs
for her family (pp. 2, 3, tsn., Feb. 26, 1973). On their way back to Barrio Malinao,
they boarded a passenger jeepney and while he was inside the vehicle, he noticed
that the other passengers aside from Mrs. Agno, her daughter, and himself were the
appellant and a couple whose names he did not know ( p. 4, tsn., Id.). The jeepney,
however, could only travel up to the Marinas Citrus farm and so they had to walk all
the way to Barrio Malinao (p. 4, tsn., Id.) After was some distance and upon reaching
a trail for carabaos, the appellant suddenly pulled a dagger and placed his arms
around the neck of Mrs. Agno and then dragged her towards the carabao trail (pp. 4,
5, tsn., Id.). Meanwhile, he and Nilsonita were left behind and they fell asleep
because it took a long time for the appellant and Mrs. Agno to come back for them (p.
5, tsn., Id.). When Mrs. Agno and the appellant returned, he was already awake while
Nilsonita was still asleep and so appellant had to carry her in going home to Man (p.
6, tsn., Id.). After was some distance, Mrs. Agno saw the house of Mang Ben and
because she was feeling bad, they all went to the house of Mang Ben where Mrs.
Agno spent the night (p. 7, tsn., Id.). Afterwards, he and the appellant left the house
of Mang Ben and then they proceeded to his house at Malinao where both of them
slept (pp. 7, 21, tsn., Id.). (At pp. 2-8.)
lwphl@it

The accused did not deny having had sexual intercourse with Mrs. Agno; in fact he admitted that he
copulated with her for three successive times in the early evening of January 23, 1972, but he
claimed that it was with her consent. Accordingly, he now claims that:
I. THE COURT A QUO ERRED IN FINDING THAT THE SEXUAL INTERCOURSE
HAD BEEN COMMITTED AGAINST THE WILL AND CONSENT OF THE
COMPLAINANT.

II. THE COURT A QUO ERRED IN FINDING THAT AGGRAVATING

CIRCUMSTANCES HAD ACCOMPANIED THE COMMISSION OF THE OFFENSE.
(Brief, p. 5.)
The appeal must fail for the reasons stated hereunder.
This is a typical rape case. Only the participants could directly testify on the alleged sexual abuse
and the accused alleges consent on the part of the complainant. The question of credibility arises
and under the circumstances We have to rely heavily on the determination made by the trial judge
who observed the demeanor of the witnesses while before Us is only the cold transcript of what they
said.
We accept the conclusions and findings of fact of the trial court that the complainant was in fact
raped by the appellant. There is no fact or circumstance in the record which will justify a different
action.
The claim of the appellant that the sexual intercourse was mutually agreed is utterly incredible. If it
were true that Mrs. Agno consented to have coitus with the appellant, her conduct thereafter defies
understanding because it is contrary to reason and it has not been shown that Mrs. Agno, a school
teacher, was bereft of common sense. For if it was true that the sexual act was indeed mutually
desired and performed why did she complain not only to her husband but also to the authorities? An
affair such as that claimed by the appellant is carried out in a discreet manier. On the other hand, the
version of the complainant has indicia of credibility. For her version bared her shame to a small
community and her exposure was necessary only because she had to reveal the truth. No, We
simply cannot believe the appellant's version.
We have said above that the findings and conclusions of the trial court are entitled to great respect.
In finding the appellant guilty, this is what the court a quo said in part:
The testimony of the accused is incredible. When he told his love to the offended
party for the first time, they were only two in the latter's house. He had more time
with her then. She refuse him because she is married. He tried for the second time.
He was again refused because she is married. It is unthinkable and highly
improbable that on the evening of January 23, 1972, after only three minutes, the
offended party would rush to accept his love and go to the extent of thanking him for
his considering her daughter as his own, unless she was coerced, threatened, forced
and intimidated.
It is highly improbable for a school teacher with several children to exchange her
husband only 40 years old and with a good means of livelihood for one whom she
does not know and whom she has observed as doing nothing except to play
basketball. It is subversive of the traits, character and nature of Filipino women to say
that the offended party, a school teacher and a girl scout accepted the love of a man
who is good for nothing and surrendered her whole body and virtue to him after an
accidental courtship of only three minutes. The offended party is an unsophisticated
and conservative woman, fixing her hair the old fashion way. She does not apply

make-up on her face, and her dress is up to her knees. This makes the pretensions
of the accused all the more incredible. (Expediente, p. 59.)
The complaint alleges the following aggravating circumstances: abuse of superior strength,
nocturnity,despoblado, ignominy, and reiteracion.
The trial court disregarded superiority because it "is inherent in the crime of rape or is absorbed in
the element of force." It also did not consider nocturnity "there being no evidence that the accused
purposely sought it to facilitate the commission of this rape." (Id, p. 63.)
Despoblado was present according to the trial court because: "The accused dragged the offended
party, at the point of a dagger, to the carabao trail, about 10 meters from the junction, but 40 to 50
meters below to better attain his purpose without interference, and to better secure himself from
detection and punishment (U.S. vs. Vitug, 17 Phil. 1). Even the junction where the two children were
left is already 400 meters from the nearest house. While there maybe occasional passersby, this
does not destroy its being an uninhabited place. (People vs. Bangug, 52 Phil. 87)." (Id, p. 62.) We
hold that the trial court for the reasons stated correctly held that the crime was committed in an
uninhabited place.
The trial court held that there was ignominy because the appellant used not only the missionary
position, i.e. male supenor female inferior, but also "The same position as dogs do" i.e., entry from
behind. The appellant claims there was no ignominy because "The studies of many experts in the
matter have shown that this 'position' is not novel and has repeatedly and often been resorted to by
couples in the act of copulation. (Brief, p. 24.) This may well be if the sexual act is performed by
consenting partners but not otherwise.
The trial court also held that "there is no reiteracion because one of the offenses, namely Robbery in
Band, for which the accused has been penal was committed after the commission of this rape case,
and the penalty imposed on the other offense of Frustrated Homicide, is lighter than the penalty for
rape." (Id, P. 63.)
Although not alleged in the complaint, the trial court stated that the offense was aggravated by
disregard of rank because it was a fact knowm to the appellant that Mrs. Agno was a school teacher.
The appellant claims that this circumstance cannot be assigned to him because there was no
deliberate intent to offend or insult the rank of Mrs. Agno. The Solicitor General agrees with the
appellant for the same reason.
The judgment of the trial court is in accordance with the facts and the law but it cannot be affirmed
completely because of the lack of the necessary number of votes.
WHEREFORE, the judgment under review is modified in the sense that the appellant shall suffer the
penalty ofreclusion perpetua instead of death and the indemnity to be paid to the offended party is
increased to P20,000.00. Costs against the appellant.
SO ORDERED.

Fernando, C.J., Makasiar, Aquino, Concepcion, Jr., Guerrero, Plana, Escolin, Relova, Gutierrez, Jr.,
De la Fuente and Cuevas, JJ., concur.
Teehankee, J., took no part.
Melencio-Herrera, J., is on leave.

33. P v sunga, GR 18054, March 18, 1922

EN BANC
G.R. No. 18054

March 18, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appelle,

vs.
ARSENIO SUNGA Y REYES (alias) ARSENIO LOPEZ, defendant-appellant.
Francisco Sevilla for appellant.
Attorney-General Villa-Real for appellee.
ROMUALDEZ, J.:
The herein accused is Arsenio Sunga y Reyes (alias) Arsenio Lopez who was prosecuted for, and
convicted of, the crime of qualified theft in that with intent of gain he had taken away, without the
consent of the owner, certain pieces of jewelry and other valuables worth in all P3,277, equivalent to
16,385 pesetas. The penalty imposed upon the accused was ten years of presidio mayor, with the
accessories prescribed by law, to indemnify the offended party in the sum aforesaid, with subsidiary
imprisonment in case of insolvency, and to pay the costs.
The theft was considered as qualified theft on account of the proven and undenied fact that the
appellant is fourteen times a recidivist.
Counsel for defense in this instance does not assign any error to the judgment appealed from, which
he finds in accordance with the facts and the law of the case.
However, the prosecution, maintaining that the defendant should be punished in accordance with
paragraph 1 of article 518 of the Penal code in relation with paragraph 3 of article 520 of the same
Code, recommends that in the absence of any modifying circumstance, the appellant should be
sentenced to suffer the penalty prescribed in article 520, in the medium degree, that is to say, seven
years, four months and one day of presidio mayor.
An examination of the record shows without a shadow of doubt the guilt of the accused. His alibi is
absolutely worthless as a defense.
The only matter that under the facts of the case concerns us is the determination of the penalty that
should be imposed. We are in accord with the prosecution as to the legal provisions applicable to the

case. However, we find that the accused entered the inhabited house through a window, which was
not the proper entrance to the house, and, therefore, there is present in this case the circumstance
of scaling a house which, had it been alleged in the complaint, would have made ht crime robbery
(Article 508 of the penal Code, second paragraph before the last), but as this circumstance was not
alleged, it must be considered as an aggravating circumstance (No. 21, article 10, Penal Code), with
the result that, in the absence of any extenuating circumstance, as in the present case, the penalty
must be raised to the maximum degree.
On the other hand the subsidiary imprisonment imposed upon the accused is not permitted by the
law because the principal penalty is not correctional, but afflictive, in nature. (Arts. 25 and 51 of the
Penal code.)
The judgment appealed from is modified and the appellant is sentenced to undergo ten years
of presidio mayor, to return to the owner the article stolen, descried in the complaint, or their value of
P3,277, to the accessories prescribed in article 57 of the Penal Code, and to the payment of the
costs of both instances. So ordered.
Araullo, C.J., Malcolm, Avancea, Villamor, Ostrand and Johns, JJ., concur.

34. P vs bartulay , 192 scra 621

FIRST DIVISION
[G.R. No. 83696 : December 21, 1990.]
192 SCRA 621
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. DANTE
BARTULAYAccused-Appellant.
DECISION
MEDIALDEA, J.:
Subject of this appeal is the decision of the Regional Trial Court, Branch 49, Puerto Princesa
City, in Criminal Case No. 3042 entitled "People vs. Dante Bartulay" convicting appellant
Dante Bartulay of the crime of robbery with homicide under an amended information which
reads:
"The undersigned accuses ROSALIO LAGUARDIA alias "ROLLY", DANTE BARTULAY alias
"TOTOY", BALTAZAR BERAN alias "BOY BUNGAL", as principals, and RAYMUNDO BARTULAY
alias "MANDING", as accessory, of the crime of "ILLEGAL POSSESSION OF FIREARM WITH
ROBBERY WITH HOMICIDE," committed as follows:
'That on or about the 6th day of September, 1979, and for sometime prior thereto, in Puerto
Princesa City, Philippines, and within the jurisdiction of this Honorable Court, accused
Rosalio Laguardia, Dante Bartulay and Baltazar Beran, conspiring and confederating
together and mutually, helping one another, did then and there wilfully, unlawfully and
feloniously have in their possession, custody and control the following firearm(s), to wit:

One (1) .380 cal., automatic pistol and One (1) 22 cal. revolver with Serial No. 64618,
without having the necessary license and/or permit from the proper authorities; that while
in possession of aforedescribed firearms at the aforementioned place and date, the said
accused conspiring and confederating together and mutually helping one another, with
intent of gain and without the consent and against the will of the owners, by means of force,
violence and intimidation and with the use of aforementioned firearms and motor vehicle,
did then and there wilfully, unlawfully and feloniously take, steal and carry away from one
MIGUEL 'MIKE' CHUA the amount of P50,000.00 cash, more or less, and P37,000.00 in
checks, more or less and a panel truck worth P100,000.00 in the total value of P187,000.00
more or less, belonging to said MIGUEL 'MIKE' CHUA and the FORTUNE TOBACCO
CORPORATION, to the damage and prejudice of the latters (sic) in the aforesaid amount;
that on the occasion of said robbery and for the purpose of enabling them to take said
amount and panel truck the said accused, in pursuance of their conspiracy, with treachery,
evident premeditation, taking advantage of nighttime, with the use of a motor vehicle and
with intent to kill, did then and there wilfully, unlawfully, and feloniously assault, attack and
shoot one MIGUEL 'MIKE' CHUA, thereby inflicting upon the latter mortal gunshot wounds
which were the direct and immediate cause of his death; that accused Raymundo Bartulay,
having full knowledge of the commission of the aforementioned robbery with homicide and
without having participated therein either as principal or accomplice, take part subsequent
to its commission by then and there profiting himself and/or assisting the abovenamed
principal accused to profit by the effects of the crime and also by concealing and hiding the
cash money and checks taken from said Miguel 'Mike' Chua in order to prevent its discovery
by the authorities.'
"CONTRARY TO LAW with the aggravating circumstances of evident premeditation,
treachery, use of a motor vehicle and nighttime." (pp. 1-2, Original Records)
Since appellant evaded arrest, his co-conspirators Rosalio Laguardia and Baltazar Beran,
were convicted ahead of him and are now serving sentence at the National Penitentiary
Muntinlupa, Metro Manila. On April 28, 1985, appellant was arrested at Agno St., Tatalon,
Quezon City by elements of the Manila Police Force (pp. 6-7; 293, Ibid).
At the arraignment, appellant with the assistance of Attys. Gregorio Austria and Ma. Buen
Consejo, pleaded GUILTY to the crime of robbery; NOT GUILTY to homicide; hence, a
conditional plea of NOT GUILTY was entered into the records (p. 28, Ibid).
The facts as gleaned from the records are as follows:
Benjamin Caca, driver of Fortune Tobacco Corporation and principal witness for the
prosecution, testified that: On September 6, 1979, at about 10:00 in the evening, the
victim, Miguel `Mike' Chua, salesman of the Fortune Tobacco Corporation, was driving a
panel truck, together with him, helper Edgardo Aniar and friend Frank Morante, passing
along kilometer 36 southroad, a zigzag road inside the Iwahig Penal Colony, on their way to
Puerto Princesa City. The group had come from Brooke's Point, Palawan where they
delivered cigarettes and collected payments for previous sales amounting to more or less
P100,000.00. At a distance of five (5) meters, from the approaching truck, appellant Dante
Bartulay and Baltazar Beran, co-accused, motioned to Mike Chua to stop. When the truck
stopped at the middle of the road, co-accused Beran approached the victim at the pretext of
borrowing a screw driver. The victim told Beran to wait as he will park the truck on the side
of the road. At this point, appellant and Beran pulled out their guns and announced a
holdup. They ordered the four persons to alight from the truck. Beran directed him, Edgardo
Aniar and Frank Morante to stay at the right side of the road some five (5) meters away
from the truck while appellant separately led the victim about two meters away from them
on the same side of the road. The four of them were ordered to lie down facing the ground.
Appellant with one foot, stepped on the shoulder of the victim while pointing a gun at him.

Beran then divested him and Frank Morante of their watches and wallets while appellant
took Chua's watch and wallet. Appellant asked the victim where his collection was. The
latter told appellant that the money is placed at the back of the driver's seat. Appellant then
ordered Beran to get the money. The latter did and gave the money contained in a paper
bag to appellant. Thereafter, Beran demanded the keys of the truck from the victim, who
gave them to appellant, who in turn gave them to Beran. Beran then ordered the
companions of the victim to go inside the panel truck. Some twenty five (25) seconds after
they were locked up inside the truck, two successive shots were fired. The truck then
started to move and while in motion, he opened the secret exit door of the panel and was
able to jump out, rolling on the ground until he reached the canal. He was able to hitch a
ride up to Narra, Palawan where he reported the incident to the police authorities (Hearing
of Sept. 13, 1985; T.S.N., pp. 5-20). The next day, September 7, 1979, the cadaver of
Miguel Chua was examined by Dr. Rufino Ynzon, the City Health Officer of Puerto Princesa
City. His findings were contained in a necropsy report as follows:
:-cralaw

"POSTMORTEM-FINDINGS
"1. Wound, gunshot, (entrance) roughly circular hole, 8-9 mm. in diameter, surrounded by a
contuso-abraded collar, located at the occipital region, 3 inches above from the occipital
protroberance.
"2. (a) Wound, gunshot (exit) hole which is irregular in shape, about 1 inch long, located at
the left frontal bone, 2 1/2 inches above left superior orbital ridge.
(b) Wound, gunshot (exit) hole which is irregular in shape, about 3/4 inch, long, 1 1/2
inches above wound of exit-(a).
"3. Wound, punctured-lacerated, about 1/3 inch in diameter, located at the left inferior
orbital ridge.
"4. Contusion with hematoma, located at the left superior orbital portion.
"5. Contusion with hematoma, located at the right superior orbital portion.
"6. Abrasions, located at the left arm, medial third, anterior portion.
"7. Abrasions, located at the left elbow, posterior portion.
CAUSE OF DEATH:
HEMORRHAGE, MASSIVE, INTRA-EXTRA CRANIAL, SECONDARY TO GUNSHOT WOUND."
(Exhibit "B", Folder of Exhibits).
Appellant took the PAL second flight in Puerto Princesa to Manila in the morning of
September 7, 1979 (T.S.N., p. 127; Hearing of July 21, 1986; Ibid., p. 198, Hearing of
October 30, 1987).
M/Sgt. Eugenio Enriquez, head of the Intelligence and Operations of the Palawan
Constabulary Command, stated that the police authorities were able to investigate Anthony
Pediapco who informed them of the presence of one "Boy Bungal" at the scene of the crime
as he even borrowed some tools from him that night. After ascertaining that "Boy Bungal"
was Baltazar Beran, police authorities traced his whereabouts and arrested him on
September 8, 1979. Recovered from him was P4,500.00 which he admitted was part of his
share from the booty (Exhibits "F" and "F-1", "G" and "G-1" and "H" and "H-1" Folder of
Exhibits). Beran executed a confession before the police authorities on the day he was
arrested (Exhibits "P" and "Q", Ibid.) and another statement on September 9, 1979 (Exhibit
"Q", Ibid). Based on said confessions, the police authorities were able to recover from the
roof of the kitchen of one Rosalio Laguardia, the revolver he used during the holdup, the
motorcycle owned by Laguardia, which was used as a getaway vehicle, and some part of the

share of appellant from the loot entrusted by him to his brother Raymundo Bartulay who,
upon investigation by the police, voluntarily informed them of the place where it was hidden
(Exhibits "I"-"N", Ibid.; T.S.N., pp. 55-76, Hearing of Sept. 24, 1985; Ibid., pp. 86-98,
Hearing of Feb. 14, 1985).
chanrobles virtual law library

At the trial, appellant admitted that he and Beran only agreed to stage a holdup. He
portrayed himself as the one who guarded the companions of Miguel Chua and that he was
instructed by Beran to get the money from behind the driver's seat. He stated that upon
finding the bag containing the money, he heard two successive shots; he even resented why
Baltazar Beran had to kill Miguel Chua as they merely planned to rob him; he was
responsible in saving the lives of the three passengers by pleading to Baltazar Beran to
spare them (T.S.N., pp. 178, 184, Hearing of Oct. 29, 1987).
On March 8, 1988, the trial court rendered its decision convicting appellant of the crime of
robbery with homicide, the dispositive portion of which states:
"WHEREFORE, the Court find (sic) and so founds (sic) Dante Bartulay guilty beyond
reasonable doubt of the crime of Robbery with Homicide defined and penalized under Article
294 (1) of the Revised Penal Code, as principal by direct participation, hereby sentences him
to suffer the penalty of RECLUSION PERPETUA, with all accessories provided for by law, to
indemnify the heirs of Miguel Chua the amount of Seven Hundred Twenty Thousand
(P720,000.00) Pesos for the expected earnings, Ten Thousand (P10,000) Pesos for moral
damages and Ten Thousand (P10,000.00) Pesos for exemplary damages and to pay the
costs." (p. 55, Rollo).
In seeking the reversal of his conviction, appellant claims that the trial court erred: (1) in its
findings that he was the one who shot Miguel Chua; (2) in finding him guilty of the complex
crime of robbery with homicide despite lack of evidence; and (3) in failing to appreciate that
he endeavored and in fact was successful in preventing Baltazar Beran from killing the three
companions of Miguel Chua. Appellant admits participation in the commission of robbery but
vehemently and specifically denies any participation in the killing of Miguel Chua (pp. 63-64,
Rollo).
The evidence indubitably shows that appellant and co-accused Beran agreed to commit
robbery at Km. 36, Zigzag Road, Iwahig Penal Colony, Puerto Princesa City, two (2) weeks
prior to the incident. On September 6, 1979, both appellant and Beran succeeded in robbing
Miguel Chua of P87,000.00 and the victim was shot to death 25 seconds subsequent to his
three companions' entry into the van. There was no eyewitness to the killing of the said
victim. Neither was there a showing that appellant endeavored to prevent the killing of
Chua. A conspiracy in the statutory language exists when two or more persons avow to an
agreement concerning the commission of a felony and decide to commit it (People v. Taaca,
G.R. No. 35652, September 29, 1989).
Appellant tries to exculpate himself of criminal liability by pointing to co-accused Beran as
the one who fired the shots and killed Chua. When the conspiracy to commit the crime of
robbery was conclusively shown by the concerted acts of the accused and homicide was
committed as a consequence thereof, all those who participated are liable as principals in
the robbery with homicide, although they did not actually take part in the homicide, unless
it appears that they attempted to prevent the killing. The question as to who actually
robbed or who actually killed is of no moment since all of them would be held accountable
for the crime of robbery with homicide (People v. Salvador, G.R. No. 77964, July 26, 1988,
163 SCRA 574 [1988]). (Emphasis supplied).
:- nad

Moreover, the following actuations of appellant after the shots were fired clearly show that
he is a co-conspirator: (a) immediately after the firing of the shots, he followed the truck
driven by Baltazar Beran in the motorcycle; (b) when they reached Montible, Baltazar Beran

abandoned the truck, rode in the motorcycle with appellant and proceeded to the house of
appellant's brother in Puerto Princesa City where they divided the loot (T.S.N., pp. 184, 196199, Hearing of Oct. 30, 1987). Where conspiracy has been established, a showing as to
who inflicted the fatal blow is not required. (People v. Alvarez, G.R. No. 70446, January 31,
1989, 169 SCRA 730).
Finally, appellant admitted that when he heard the news that he was being hunted by police
authorities in connection with the crime, he immediately bought a plane ticket at the PAL
office in Puerto Princesa City and took the second flight to Manila in the morning of
September 7, 1979. His sudden departure is indicative of guilt. The guilty flee when no man
pursueth but the innocent are as bold as a lion (People v. Espinosa, G.R. No. 72883,
December 20, 1989).
As correctly found by the trial court, the use of motor vehicle by the appellant and his coconspirator aggravated the commission of the offense since the vehicle was used to facilitate
their escape from the scene of the crime.
The penalty of robbery with homicide prescribed in Article 294 of the Revised Penal Code is
reclusion perpetua to death. Since only one aggravating circumstance attended the
commission of the offense, the greater penalty that is death shall be applied pursuant to
Article 63 of the Revised Penal Code. However, this penalty cannot be imposed presently in
view of the 1987 Constitution. Hence, the penalty of reclusion perpetua was correctly
imposed by the trial court upon the appellant.
The trial court correctly convicted accused of robbery with homicide only despite the fact
that the amended information charged all the four accused namely, Rosalio Laguardia,
Dante Bartulay and Baltazar Beran of the crime of illegal possession of firearm with robbery
with homicide. The information alleges that the four accused by conspiring and
confederating together, unlawfully have in their possession one .380 cal. automatic pistol
and one 22 cal. revolver with Serial No. 64618 without the necessary license or permit from
the proper authorities and that while in the possession of said firearms, the four accused, by
conspiring together, committed robbery with homicide.
The information herein is violative of Section 13 Rule 110 of the Rules on Criminal Procedure
which states that a complaint or information must charge but one offense except in certain
cases. The four accused are charged with two separate offenses of illegal possession of
firearms and robbery with homicide. When each one of two offenses committed is
punishable by two different laws, they cannot be charged in one information as a complex
crime but must be regarded as two separate and distinct offenses, each one to be the
subject of separate informations. When duplicity of offenses exists in an information the
accused must present his objection by filing a motion to quash the information on the
ground of duplicity of offenses. If the accused fails to object and goes to trial under the
information which contains a description of more than one offense, the general rule is he
thereby waives the objection and may be found guilty of and should be sentenced for, as
many offenses as are charged in the information and proved during trial (People v. Medina
59 Phil. 134; People v. Miana 50 Phil. 771). This rule however shall apply only if the accused
is formally arraigned and required to plead on all the offenses as are charged in the
information. Otherwise, the accused cannot be convicted of the offenses with respect to
which he was not properly arraigned.
In the case at bar, the accused was not formally arraigned as to the offense of illegal
possession of firearm. The information wrongly complexed the robbery with homicide with
the special offense of illegal possession of firearm. In effect, the accused is charged with
two distinct offenses. He should therefore be arraigned and required to plead to the two
offenses. Records show that during the arraignment, the accused pleaded guilty to robbery
and not guilty to homicide. Hence, the trial court entered a conditional plea of not guilty for

him to the offense of robbery with homicide, without requiring the accused to enter his plea
to the illegal possession of firearms (p. 28, Records). And in the rendition of judgment, the
trial court convicted him only of robbery with homicide as there was no proper arraignment
of the accused concerning the other offense. In one case, this Court held that where the
defendant is charged with three separate offenses, and he pleaded guilty to the two
offenses without pleading to the third offense charged, the court cannot render judgment of
conviction on the third offense without requiring him to plead (US v. Sobrevias 35 Phil.
32). This is based on the principle that a defendant is legally placed on trial only when issue
upon the information which charges such an offense has been joined after arraignment by
his plea of not guilty thereto (People v. Ylagan 58 Phil. 851).
We shall sustain the monetary award, consisting of loss of earnings, made by the trial court
in favor of the heirs of the victim as this matter was not raised in issue in this appeal.
Further, this Court grants the amount of P50,000.00 as death indemnity to be paid by the
appellant to the heirs of the victim, in accordance with the new policy of this Court laid
down in the Resolution of this Court en banc dated August 30, 1990 and in People v. Daniel
Sison, G.R. 86455, September 14, 1990, in addition to the moral and exemplary damages
awarded by the trial court.
:-cralaw

ACCORDINGLY, except for the above mentioned modification, the decision appealed from
convicting the accused appellant of the crime of robbery with homicide and sentencing him
to suffer the penalty of reclusion perpetua with all the accessories provided for by law is
AFFIRMED.
SO ORDERED.
Cruz, Gancayco and Grio-Aquino, JJ., concur.
Separate Opinions
NARVASA, J., concurring:
I agree entirely with the findings and basic conclusions of the ponencia of Mr. Justice
Medialdea. I write this separate opinion merely with reference to the disquisition therein
(actually obiter dictum since it has no bearing on the affirmance, with modification, of the
petitioner's conviction) relative to the duplicitous character of the information filed by the
fiscal against the appellant, which charged him not only with robbery with homicide for
which he was properly convicted by the Trial Court but also with illegal possession of
firearm. I want to prevent the discussion on the point from engendering the belief that this
Court is here laying down the proposition that where an indictment is indeed duplicitous
because charging more than one crime, it is the Trial Court's affirmative obligation to inform
the accused of this defect and require him to plead separately to each of said offenses.
The provisions of the Rules of Court in force at the time material to this inquiry 1 required
that an accused must be arraigned before the court where the complaint or information has
been filed or assigned for trial (unless the cause shall have been transferred elsewhere for
trial). The arraignment is made in open court by the judge or clerk by
1) reading the complaint or information to the defendant, 2
2) delivering to him a copy thereof, including a list of witnesses, and
3) asking him whether he pleads guilty or not guilty as charged.
At the arraignment, the accused must be personally present if the charge is for an offense
within the jurisdiction of the Court of First instance (now Regional Trial Court) and if for a

light offense triable by the justice of the peace or any other inferior courts of similar
jurisdiction, he may appear by attorney. 3
Now, at any time before being arraigned, or entering his plea on arraignment, the accused
may move to quash the complaint or information on any of several specified grounds, 4 one
of which is, "That more than one offense is charged except in those cases in which existing
laws prescribe a single punishment for various offenses." 5 If the accused does not move to
quash on this ground, he shall be deemed to have waived it. 6
It is the Court's duty to assure that the accused is fully informed of the charges against him.
This is why the information is read to him, and he is also given a copy of the complaint or
information. His knowledge of all the facts set out in the indictment, as well as of the
circumstance that those facts constitute several offenses, is thus made reasonably certain,
specially since the law requires that he be assisted by counsel on arraignment. 7 No
obligation is expressly or implicitly imposed on the judge to point out the duplicitousness (or
other defect) of an indictment on which an accused is being arraigned. In truth, that
function appears to be ruled out as far as the judge is concerned, since it is on the accused
that the law reposes the obligation to move to quash on the ground of duplicity (or
otherwise), under sanction of waiver and loss of said ground of objection.
These principles should not be deemed to have been altered by the Court's Decision in this
case.
In the case at bar, there are positive indications that the accused did not completely
understand the charges against him; and these justified a finding that his arraignment was
not adequate. When arraigned, "the accused pleaded guilty to robbery and not guilty to
homicide," as the decision states; but he made no reference whatever to the offense of
illegal possession of firearm, also set out in the information. It thus appears that the
accused understood that he was being accused only of robbery and homicide, and had no
inkling that another offense was being ascribed to him, too. These circumstances, in the
ponente's view, warranted a conclusion similar to that reached in the early case of U.S. v.
Sobrevias, 35 Phil. 32, where the proceedings were declared by this Court to be fatally
defective and irregular upon the following facts set out in the syllabus, viz:
"The accused, while on the witness stand testifying in his own behalf, broke down and
admitted his guilt of the offense with which he was charged in the information upon which
he had been brought to trial (Case No. 1290). At the same time he admitted his guilt of . . .
(two) offenses charged in . . . (another information [Case No. 1290]) upon which, however,
he had not been brought to trial. The trial court entered judgments convicting and
sentencing the accused of the offenses charged in each of these informations, without
further proceedings, without bringing the accused to trial, without formal arraignment and
without giving the accused an opportunity to enter any of the pleas authorized in General
Orders No. 58."
Upon said facts, this Court disposed as follows:
"The judgments entered in the court below convicting and sentencing the defendant and
appellant in the cases now under consideration, Nos. 11544 and 11545 of the general
register of this court, should, for the reasons stated, be reversed, with the costs in both
instances de oficio, and the records should be remanded to the court wherein they
originated, reserving to the officers of that court the right to bring these cases on again for
trial or to dismiss the informations as in their discretion the interests of justice may require.
So ordered."
: nad

Endnotes

1. The 1985 and 1988 amendments have not substantially altered the relevant provisions
governing arraignment and motions to quash.
2. Rule 116, Sec. 1. As amended, the reading is required to be "in the language or dialect known
to him."
3. Rule 116, Sec. 2. As amended, the rule now requires the accused to "be present and personally
enter his plea," without distinction as to the Court before which he is arraigned, and that if
"the accused refuses to plead, or makes a conditional plea of guilty, a plea of no guilty shall be
entered for him."
4. Rule 117, Sec. 1. Originally, the role was somewhat awkwardly stated as follows: "Upon being
arraigned the defendant shall immediately, unless the court grants him further time, either
move to quash the complaint or information or plead thereto, or do both. If he moves to quash
without pleading, and the motion is withdrawn or overruled, he shall immediately plead." As
amended, the rule now simply state that the motion to quash may be filed by an accused "at
any time before entering his plea."
5. Id., Sec. 2 (e). The grounds for quashal have not been altered.
6. Rule 117, Sec. 10. In truth, the rule is that by failing to move to quash at all, he shall be
deemed to have waived all grounds for quashal subject to specified exceptions.
7. Rule 116, Secs. 3 and 4.

35. P vs ILAOA, 233 SCRA 231

FIRST DIVISION

G.R. No. 94308 June 16, 1994

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

BELLOSILLO, J.:
Pfc. Reynaldo P. Angeles was dispatched in the early morning of 5 November 1987 to Tinio St., Sta.
Maria Phase I, Balibago, Angeles City, where the decapitated body of a man, later identified through
his voters identification card as Nestor de Loyola, was found in a grassy portion thereof. Apart from
the decapitation, the deceased bore forty-three (43) stab wounds in the chest as well as slight burns
all over the body. The head was found some two (2) feet away from the corpse.

Five persons, Ruben E. Ilaoa, Rogelio E. Ilaoa, Rodel E. Ilaoa, Julius Eliginio and Edwin Tapang,
were charged for the gruesome murder of Nestor de Loyola. However, only the brothers Ruben and
Rogelio stood trial since the other accused escaped and were never apprehended.
On 15 June 1990, the Regional Trial Court of Angeles City found Ruben and Rogelio guilty of murder
with the attendant circumstances of evident premeditation, abuse of superior strength and cruelty,
and imposed upon them the penalty of "life imprisonment." 1 The conviction was based on the following
circumstantial evidence:
One. The deceased Nestor de Loyola was seen at about eleven oclock in the evening of 4
November 1987, in a drinking session with his compadre Ruben Ilaoa together with Julius Eliginio,
Edwin Tapang and a certain "Nang Kwang" outside Rubens apartment. 2
Two. The drunken voices of Ruben and Nestor engaged in an apparent argument were later on
heard. 3 Nestor was then seen being kicked and mauled by Ruben and his brother Rodel, Julius Eliginio
and Edwin Tapang. 4 Nestor was crying all the while, "Pare, aray, aray!" Afterwards, Nestor, who appeared
drunk, was seen being "dragged" 5 into Ruben Ilaoas apartment. Nestor was heard saying, "Pare, bakit
ninyo ako ginaganito, hirap na hirap na ako!" 6
Three. Ruben Ilaoa and Julius Eliginio borrowed Alex Villamils tricycle at about two oclock the
following morning allegedly for the purpose of bringing to the hospital a neighbor who was about to
give birth. Ruben was seen driving the tricycle alone, with a sack which looked as though it
contained a human body, placed in the sidecar. The tricycle was returned an hour later to Alex who
noticed bloodstains on the floor. The latter thought that they were those of the pregnant woman.
Four. Blood was found on Rubens shirt when he was asked to lift it during the investigation by the
police. 7Moreover, Rubens hair near his right forehead was found partly burned and his shoes were
splattered with blood. 8 Susan Ocampo, Rubens live-in partner, was likewise seen in the early morning of
5 November 1987 sweeping what appeared to be blood at the entrance of their apartment. 9
In this appeal, brothers Ruben and Rogelio Ilaoa argue for their acquittal. They contend that the
circumstantial evidence relied upon by the trial court for their conviction failed to establish their guilt
beyond reasonable doubt. Specifically, they assail the finding of evident premeditation, abuse of
superior strength and cruelty as totally unwarranted.
We affirm Ruben Ilaoas guilt having been satisfactorily established by the evidence on hand, albeit
circumstantial. However, we reverse the conviction of Rogelio as we find it patently baseless.
In finding Rogelio guilty of murder, the court a quo relied solely on the testimony that he helped his
brother Ruben drag Nestor de Loyola inside Rubens apartment where the deceased was last seen
alive. Apart from such testimony, however, there is nothing else to link Rogelio to the killing.
To warrant a conviction on the basis of circumstantial evidence, three requisites must concur: (a)
there must be more than one circumstance; (b) the circumstances from which the inferences are
derived are proven; and, (c) the combination of all the circumstances is such as to prove the guilt of
the accused beyond reasonable doubt. 10In the case at bench, it does not require much analysis to
conclude that the circumstance relied upon to establish Rogelio Ilaoas guilt, i.e., the alleged dragging of

the deceased to his brothers apartment, is totally inadequate for a conviction, having miserably failed to
meet the criteria. This is especially so where the veracity of such circumstance is even open to question.
While Antonio Ramos and Abdulia Logan testified that Rogelio Ilaoa helped his brother drag the deceased
to his apartment, Eustancia Bie who claimed to have witnessed the same incident positively testified that
it was Ruben Ilaoa and Julius Eliginio who did so. 11 Rogelio Ilaoa was not mentioned. Not having been
adequately established, in addition to being uncorroborated, such circumstance alone cannot be the basis
of Rogelios conviction.

Rubens case, however, is a totally different matter. Unlike that of his brother, Ruben Ilaoas fate was
most definitely assured by the unbroken chain of circumstances which culminated in the discovery of
Nestor de Loyolas decapitated body in the early morning of 5 November 1987.
As found by the trial court, in the late evening of 4 November 1987, appellant Ruben Ilaoa was
engaged in a drinking session with the deceased Nestor de Loyola together with several others.
Ruben was heard arguing with Nestor. A few moments later, Ruben mauled and kicked the
deceased with the help of their drinking companions just outside Rubens apartment. As the
deceased cried "Aray! Aray!" and "Pare, bakit nyo ako ginaganito? Hirap na hirap na ako!" appellant
dragged the deceased with the help of Julius Eliginio to the apartment from where a mans cries
were continued to be heard later. To further seal the case against him, Ruben borrowed Alex
Villamils tricycle at two oclock in the morning of 5 November 1987 on the pretext that a neighbor
was about to give birth and had to be rushed to the hospital. However, he was seen driving the
tricycle alone with a sack placed in the sidecar. The sack looked as if it contained a human
body. 12 Then, an hour later, or at three oclock in the morning, the tricycle was returned with bloodstains
on the floor.
For his defense, appellant Ruben Ilaoa does not dispute the testimony of an eyewitness that he was
driving the tricycle at past two oclock in the morning with the sack in the sidecar. However, he claims
that the sack containedbuntot ng pusa, a local term for marijuana, not a human body, which he
delivered to a designated place in Fields Avenue as a favor to his compadre Nestor de Loyola whom
he could not refuse. Moreover, it was the vomit discharged by his drinking companions that was
being swept clean by his girlfriend at the entrance of their apartment in the early morning of 5
November 1987, not blood as the witnesses asseverated.
We find the version of the prosecution more persuasive than the defense. The fact that appellant
quarreled with the deceased, then mauled and pulled him to the apartment where the latter was last
seen alive, in addition to borrowing a tricycle which was found with bloodstains when returned,
sufficiently point to Ruben as the culprit responsible for the crime. The fact that the deceased was
his compadre, hence, presumably would have no motive to kill the latter, is not enough to exculpate
appellant. It is a matter of judicial knowledge that persons have been killed or assaulted for no
apparent reason at all, 13 and that friendship or even relationship is no deterrent to the commission of a
crime. 14
If we are to believe appellant Ruben, we will not be able to account for the blood found on the floor
of the tricycle after it was brought back to the owner. Ruben himself could not explain away such
testimony for he belied the excuse that the tricycle was needed to rush a pregnant woman to the
hospital, which was the explanation he gave to Alex Villamil when he borrowed it. We cannot even
consider that the story about the blood on the tricycle was simply concocted by Alex Villamil to

incriminate Ruben because the latter was his friend, as Ruben himself has admitted.
could think of no reason for Alex Villamil to testify falsely against him. 16

15

In fact he

Despite the foregoing, however, we hold appellant liable only for homicide, not murder, on the
ground that the qualifying circumstances alleged in the information, namely, abuse of superior
strength, cruelty and evident premeditation, were not sufficiently proved to be appreciated against
appellant.
Abuse of superior strength cannot be considered because there was no evidence whatsoever that
appellant was physically superior to the deceased and that the former took advantage of such
superior physical strength to overcome the latters resistance to consummate the offense. 17 The fact
that Nestor de Loyolas decapitated body bearing forty-three (43) stab wounds, twenty-four (24) of which
were fatal, 18 was found dumped in the street is not sufficient for a finding of cruelty where there is no
showing that appellant Ruben Ilaoa, for his pleasure and satisfaction, caused Nestor de Loyola to suffer
slowly and painfully and inflicted on him unnecessary physical and moral pain. 19 Number of wounds alone
is not the criterion for the appreciation of cruelty as an aggravating circumstance. 20 Neither can it be
inferred from the mere fact that the victims dead body was dismembered. 21 Evident premeditation cannot
likewise be considered. There is nothing in the records to show that appellant, prior to the night in
question, resolved to kill Nestor de Loyola, nor is there proof to show that such killing was the result of
meditation, calculation or resolution on his part. On the contrary, the evidence tends to show that the
series of circumstances which culminated in the killing constitutes an unbroken chain of events with no
interval of time separating them for calculation and meditation. Absent any qualifying circumstance,
Ruben Ilaoa should only be held liable for homicide.
The penalty prescribed for homicide in Art. 249 of the Revised Penal Code is reclusion temporal.
Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating
circumstances, the maximum shall be taken from the medium period of reclusion temporal, which is
fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months,
while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, in
any of its periods, the range of which is six (6) years and one (1) day to twelve (12) years.
In line with present jurisprudence, the civil indemnity fixed by the court a quo for the death of Nestor
de Loyola is increased from P30,000.00 to P50,000.00.
WHEREFORE, the judgment finding accused RUBEN E. ILAOA guilty beyond reasonable doubt is
AFFIRMED but only for homicide, instead of murder. Consequently, he is sentenced to an
indeterminate prison term of eight (8) years, ten (10) months and twenty (20) days of prision
mayor medium, as minimum, to sixteen (16) years, four (4) months and ten (10) days of reclusion
temporal medium as maximum. In addition, accused-appellant RUBEN E. ILAOA is ordered to pay
the heirs of Nestor de Loyola P50,000.00 as civil indemnity and, as fixed by the court a quo,
P46,765.00 as actual damages, P10,000.00 as reasonable attorneys fees and expenses of
litigation, and P10,000.00 for moral damages.
Accused-appellant ROGELIO E. ILAOA, however, is ACQUITTED of the crime charged for obvious
insufficiency of evidence.
SO ORDERED.

Cruz, Davide, Jr., Quiason and Kapunan, JJ., concur.

# Footnotes
1 Decision penned by Judge Reynaldo B. Daway, Regional Trial Court of Angeles
City, Branch 58,Rollo, pp. 81-88.
2 TSN, 17 October 1989, pp. 16-17.
3 TSN, 4 May 1988, p. 31; 17 October 1989, p. 11.
4 TSN, 14 November 1989, pp. 22-23.
5 TSN, 4 May 1988, pp. 34-36; 7 November 1989, pp. 19-21.
6 TSN, 13 April 1988, p. 9; 7 November 1989, p. 22.
7 TSN, 24 October 1989, p. 20.
8 TSN, 13 April 1988, pp. 14-15.
9 TSN, 4 May 1988, p. 42.
10 Sec. 4, Rule 133, Rules of Court.
11 TSN, 7 November 1989, pp. 19-21.
12 TSN, 4 May 1988, p. 38; Original Records, p. 61.
13 People v. Basadre, No. L-36383, 17 April 1984, 128 SCRA 641, 648; People v.
Reyno, No. L-19071, 30 April 1965, 13 SCRA 647, 651-652.
14 People v. Bicog, G.R. No. 76529, 19 July 1990, 187 SCRA 556, 564.
15 TSN, 5 January 1990, p. 30.
16 Ibid.
17 People v. Montilla, G.R. No. 95048, 3 July 1992, 211 SCRA 119, 128; People v.
Canciller, G.R. No. 97296, 4 March 1992, 206 SCRA 827, 833; People v. Jimenez,
Jr., G.R. No. 84276, 13 February 1992, 206 SCRA 214, 222.
18 TSN, 4 May 1988, pp. 12-13; Original Records, pp. 35-36.

19 People v. Luna, No. L-28812, 31 July 1974, 58 SCRA 198, 209; People v.
Llamera, Nos. L-21604-5-6, 25 May 1973, 51 SCRA 48, 60.
20 People v. Tonog, Jr., G.R. No. 94533, 4 February 1992, 205 SCRA 772, 782;
People v. Manzano, Nos. L-33643-4, 31 July 1974, 58 SCRA 250, 262.
21 People v. de Pascual, No. L-32512, 31 March 1980, 96 SCRA 722, 738.

36. P vs tac-an GR 76338-39, feb 26, 1990

THIRD DIVISION
G.R. No. 76338-39 February 26, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RENATO TAC-AN Y HIPOS, accused-appellant.
The Office of the Solicitor General for plaintiff-appellee.
Amadeo D. Seno for accused-appellant.

FELICIANO, J.:
Accused Renato Tac-an appeals from the decision of the Regional Trial Court of Tagbilaran City,
convicting him of qualified illegal possession of a firearm and ammunition in Criminal Case No. 4007
and of murder in Criminal Case No. 4012 and imposing upon him the penalty of death in both cases.
On 18 December 1984, appellant was charged with violation of Section 1, paragraph (2), of
Presidential Decree No. 1866, committed as follows:
That, on or about the 14th day of December 1984, in the City of Tagbilaran
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, while acting under the influence of drugs and without any license or permit
from the proper authorities, did then and there willfully, unlawfully and feloniously
have ill his possession, custody and control an unlicensed firearm, a SMITH &
WESSON Airweight caliber .38 revolver with Serial Number 359323 with Five (5)
spent shells and Five (5) live ammunitions and without any justifiable cause and with
intent to kill, used the said firearm and ammunitions to shoot one Francis Ernest
Escano III hitting and inflicting upon the latter the following gunshot wounds or
injuries, to wit:
MULTIPLE GUNSHOT WOUNDS Head & Chest (through and
through);

Head Entrance 1.4 x 2.2 cm., Left Fronto-Temporal Area; Port

1.3 x 0.3 cm.; Right Cheek. 3.5 cm. above the right external meatus;
Chest Entrance 0.3 x 1 cm. Right Infrascapular Area at the level
of the 7th Intercostal Rib (Back); Exist 0.3 cm. dia; above the right
nipple;
Y-shape laceration, check at the right angle of the mouth, Right
Dimensions: 3 x 1.2 cm. x 1.8
which gunshot wounds or injuries directly caused his death, to the damage and
prejudice of the Republic of the Philippines.
Acts committed contrary to the provisions of Section 1, paragraph 2 of the
Presidential Decree No. 1866. 1
On 11 January 1985, an amended information 2 for murder was also filed against appellant reading as
follows:
That, on or about the 14th day of December, 1984 in the City of Tagbilaran,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, without any justifiable cause and with intent to kill, evident pre-meditation
treachery, while acting under the influence of drugs, with cruelty and deliberately
augmenting the suffering of the victim, did then and there willfully, unlawfully and
feloniously attack, assault and shot one Francis Ernest Escano with the use of an
unlicensed SMITH & WESSON Airweight caliber .38 revolver with Serial Number
359323 hitting and inflicting upon the latter the following gunshot wounds or injuries,
to wit:
MULTIPLE GUNSHOT WOUNDS Head and Chest (Through &
Through);
Head Entrance 14 x 2.2 cm., Left Fronto-temporal Area; Port l.3
x 0.3 cm., Right Cheek, 3.5 cm., above the right external meatus;
Chest Entrance 0.3 x 1 cm. right Infrascapular Area at the level
of the 7th Inter-Costal Rib (back); exit 0.3 cm. dia; above the right
nipple
Y-shape laceration, cheek at the angle of the mouth, Right
Dimensions: 3 x 1.2 cm. x 1.8.

which gunshot wounds or injuries directly caused his death, to the damage and
prejudice of the heirs of the deceased namely: Judge & Mrs. Francisco Rey H.
Escano, in the amount to be proved during the trial of the case.
Acts committed contrary to the provisions of Article 248 of the Revised Penal Code,
in relation to Section 17 of Batas Pambansa Blg. 179, with the qualifying aggravating
circumstances of evident premeditation, treachery and acting under the influence of
dangerous drugs and cruelty.
Appellant entered a plea of not guilty in both cases. The two (2) criminal cases were consolidated
upon motion of the prosecution and tried jointly. On 31 July 1986, the trial court rendered a
decision 3 convicting appellant under both informations. The dispositive portion of the decision read as
follows:
WHEREFORE, all the foregoing premises considered, decision is hereby rendered in
Criminal Case No. 4007 finding the accused Renato Tac-an y Hipos GUILTY beyond
reasonable doubt of Illegal Possession of Firearms and Ammunitions qualified with
Murder under Section 1, paragraphs 1 and 2 of Presidential Decree No. 1866 and
hereby sentences said Renato Tac-an y Hipos to suffer the penalty of DEATH.
Further, decision is also rendered in Criminal Case No. 4012 finding the same
accused Renato Tac-an y Hipos GUILTY beyond reasonable doubt of Murder under
Article 248 of the Revised Penal Code, in relation to Batas Pambansa Blg. 179 and
P.D. 1866. Appreciating the aggravating circumstance of evident premeditation
(treachery used to qualify the crime to murder) and the special aggravating
circumstances of acting while under the influence of dangerous drugs and with the
use of an unlicensed firearm and with insult to a person in authority and there being
no mitigating circumstance to offset them, and sentences the said Renato Tac-an y
Hipos to suffer the penalty of DEATH. The accused is likewise ordered to indemnify
the heirs of the deceased Francis Ernest Escano in the amount of THIRTY
THOUSAND PESOS (P30,000.00); to pay actual compensatory damages in the
amount of ONE HUNDRED EIGHT THOUSAND THREE HUNDRED TEN PESOS
(P108,310.00); to pay moral damages to Judge Francisco Escano, Jr., the sum of
ONE HUNDRED THOUSAND PESOS (P100,000.00) and to Mrs. Lydia Escano the
sum of ONE HUNDRED THOUSAND PESOS (P100,000.00) for the mental anguish
and suffering each experienced because of the death of Francis Ernest. All such
amount shall earn legal interest from the time this decision shall become final and
executory until fully satisfied. The accused shall also pay the costs.
SO ORDERED.
Immediately after promulgation of the decision, appellant signified his intention to appeal to this
Court, although the same was subject to automatic review by this Court.
In his brief, appellant assigned the following as errors allegedly committed by the trial court:

I. The lower court erred in believing the prosecution's version of the case instead of
according full faith and credence to the defendant's version.
II. The trial court erred in not holding that Renato Tac-an was justified in shooting the
deceased.
III. The trial court erred in not holding that in (sic) the least the defendant acted in
incomplete self-defense in shooting the deceased.
IV. The trial court erred in not holding that P.D. 1866 is inapplicable to the defendant
inasmuch as said decree was enforceable only during the existence of the Martial
Law Regime.
V. The trial court erred in not holding that the defendant was placed twice in jeopardy
for having been prosecuted for violation of P.D. 1866 despite his being prosecuted for
murder in an information which alleges that the accused used an unlicensed firearm
in killing the deceased.
VI. The trial court erred in not adjudging the defendant innocent of murder.
From the record, the facts may be collated and summarized as follows:
Appellant Renato Tac-an, then eighteen (18) years and seven (7) months of age, and the deceased
Francis Ernest Escano III, fifteen (15) years old, were classmates in the third year of high school of
the Divine Word College in Tagbilaran City. They were close friends, being not only classmates but
also members of the same gang, the Bronx gang. Renato had been to the house where Francis and
his parents lived, on one or two occasions. On those occasions, Francis' mother noticed that Renato
had a handgun with him. Francis was then advised by his mother to distance himself from Renato. 4
Francis withdrew from the Bronx gang. The relationship between Renato and Francis turned sour.
Sometime in September 1984, Renato and Francis quarrelled with each other, on which occasion
Francis bodily lifted Arnold Romelde from the ground. Arnold was friend and companion to Renato.
The quarrel resulted in Renato and Francis being brought to the high school principal's office. The
strained relationship between the two (2) erstwhile friends was aggravated in late November 1984
when Francis teamed that Renato, together with other members of the Bronx gang, was looking for
him, apparently with the intention of beating him up. Further deterioration of their relationship
occurred sometime in the first week of December 1984, when graffiti appeared on the wall of the
third year high school classroom and on the armrest of a chair in that classroom, deprecating the
Bronx gang and describing Renato as "bayot" (homosexual) 5 Renato attributed the graffiti to Francis.
At about 2:00 o'clock in the afternoon of 14 December 1984, Renato entered Room 15 of the high
school building to attend his English III class. Renato placed his scrapbook prepared for their
Mathematics class on his chair, and approached the teacher, Mrs. Liliosa Baluma, to raise a
question. Upon returning to his chair, he found Francis sitting there, on the scrapbook. Renato was
angered by what he saw and promptly kicked the chair on which Francis was seated. Francis,
however, explained that he had not intentionally sat down on Renato's scrapbook. A fistfight would

have ensued but some classmates and two (2) teachers, Mrs. Baluma and Mr. Damaso Pasilbas,
intervened and prevented them from assaulting each other. After the two (2) had quieted down and
apparently shaken hands at the instance of Mrs. Baluma, the latter resumed her English III class.
Francis sat on the last row to the extreme right of the teacher while Renato was seated on the same
last row at the extreme left of the teacher. While the English III class was still going on, Renato
slipped out of the classroom and went home to get a gun. He was back at the classroom
approximately fifteen (15) minutes later. 6
The Mathematics class under Mr. Damaso Pasilbas scheduled for 3:00 p.m. had just started in
Room 15 when Renato suddenly burst into the room, shut the door and with both hands raised,
holding a revolver, shouted "Where is Francis?" Upon sighting Francis seated behind and to the light
of student Ruel Ungab, Renato fired at Francis, hitting a notebook, a geometry book and the armrest
of Ruel's chair. Francis and Ruel jumped up and with several of their classmates rushed forward
towards the teacher's platform to seek protection from their teacher. Renato fired a second time, this
time hitting the blackboard in front of the class. Francis and the other students rushed back towards
the rear of the room. Renato walked towards the center of the classroom and fired a third time at
Francis, hitting the concrete wall of the classroom. Francis and a number of his classmates rushed
towards the door, the only door to and from Room 15. Renato proceeded to the teacher, s platform
nearest the door and for the fourth time fired at Francis as the latter was rushing towards the door.
This time, Francis was hit on the head and he fell on the back of Ruel and both fell to the floor. Ruel
was pulled out of the room by a friend; Francis remained sprawled on the floor bleeding profusely. 7
Renato then went out of Room 15, and paced between Rooms 14 and 15. A teacher, Mr. Pablo
Baluma, apparently unaware that it was Renato who had gunned down Francis, approached Renato
and asked him to help Francis as the latter was still alive inside the room. Renato thereupon reentered Room 15, closed the door behind him, saying: "So, he is still alive. Where is his chest?"
Standing over Francis sprawled face down on the classroom floor, Renato aimed at the chest of
Francis and fired once more. The bullet entered Francis' back below the right shoulder, and exited
on his front chest just above the right nipple. 8
Renato then left with two (2) remaining students and locked Francis alone inside Room 15. Renato
proceeded to the ground floor and entered the faculty room. There, he found some teachers and
students and ordered them to lock the door and close the windows, in effect holding them as
hostages. He also reloaded his gun with five (5) bullets. After some time, a team of Philippine
Constabulary troopers led by Capt. Larino Lazo arrived and surrounded the faculty room. With a
hand-held public address device, Capt. Lazo called upon Renato to surrender himself Renato did not
respond to this call. Renato's brother approached Capt. Lazo and volunteered to persuade his
brother to give up. Renato's father who, by this time had also arrived, pleaded with Renato to
surrender himself Renato then turned over his gun to his brother through an opening in the
balustrade of the faculty room. Capt. Lazo took the gun from Renato's brother, went to the door of
the faculty room, entered and placed Renato under arrest. 9
Meantime, as soon as Renato left Room 15, some teachers and students came to rescue Francis
but could not open the door which Renato had locked behind him. One of the students entered the
room by climbing up the second floor on the outside and through the window and opened the door
from the inside. The teachers and students brought Francis down to the ground floor from whence

the PC soldiers rushed him to the Celestino Gallares Memorial Hospital.

reaching the hospital.

10

Francis died before

Capt. Lazo brought Renato to the PC Headquarters at Camp Dagohoy, Tagbilaran City. The officer
deposited the revolver recovered from Renato which was an Airweight Smith and Wesson .38 caliber
revolver, with Serial No. 359323, as well as the five (5) live bullets removed from the said revolver,
and the five (5) empty cartridges which Renato had turned over to him. Ballistic examination
conducted by Supervising Ballistician, Artemio Panganiban, National Bureau of Investigation, Cebu,
showed that the empty cartridge cases had been fired from the revolver recovered from Renato. 11
Appellant at the outset assails the trial court for having believed the prosecution's version of the facts
instead of the version offered by the appellant. The trial court took into account, inter alia, the
positive and direct testimony of:
1. Mrs. Liliosa Baluma who testified as to, among other things, the events which took
place inside her English III classroom immediately before the shooting;
2. Ruel Ungab a fifteen (15) year old classmate of Renato and Francis, who had
fallen on the floor with Francis when the latter was finally hit by Renato;
3. Damaso Pasilbas the Mathematics teacher who was holding his class when
Renato had burst into Room 15 and started firing at Francis; and
4. Napoleon Jumauan another sixteen (16) year old, classmate of Renato and
Francis who was inside the classroom when Renato had started firing at Francis and
who was only about a foot away from the head of Francis when Renato, having reentered Room 15, had fired at Francis as the latter was sprawled on the floor of the
classroom.
After careful examination of the record, we find no reason to disagree with the conclusion of the trial
court that Renato had indeed shot and killed Francis under the circumstances and in the manner
described by these witnesses.
1. The claim of self-defense.
Renato claimed that he was acting in self-defense, or at least in incomplete self-defense, when he
shot Francis. For a claim of self-defense to be sustained, the claimant must show by clear and
convincing evidence that the following requisites existed:
a) unlawful aggression on the part of the victim;
b) reasonable necessity of the means employed by the accused to repel the
aggression; and
c) lack of sufficient provocation on the part of the accused.

12

Testifying in his own behalf, Renato said that a few minutes before the end of Mrs. Baluma's English
III class, Francis had approached him:
(Atty. Seno, Defense Counsel)
Q: How did it happened (sic) that you had a conversation with
Francis?
(Renato)
A: While the class was going on, Mrs. Baluma was writing on the
blackboard.
Q: Then what happened?
A: While our teacher was writing on the blackboard Francis suddenly
got near me.
Q: And what happened when Francis approached you?
A: He said, 'So you are brave now you had a (sic) guts to fight
against me.'
Q: And what else did he say?
A: He said, 'Go home, get your firearm because I will go home to get
a gun.'
Q: Was that all that he told you?
A: He further said, 'You go home get your firearm, if you won't go
home and get a gun, I will go to your place and kill you including your
parents, brothers and sisters.'
Q: And after that where did Francis go?
A: Before the bell rang he went ahead.

13

(Emphasis supplied)

We note at the outset that there was no evidence before the Court, except Renato's own testimony,
that Francis had uttered the above statements attributed to him by Renato. Although there had been
about twenty-five (25) other students, and the teacher, in the classroom at the time, no corroborating
testimony was offered by the defense. In the second place, assuming (arguendo merely) that
Francis had indeed made those statements, such utterances cannot be regarded as the unlawful
aggression which is the first and most fundamental requirement of self-defense. Allegedly uttered in

a high school classroom by an obviously unarmed Francis, such statements could not reasonably
inspire the "well grounded and reasonable belief" claimed by Renato that "he was in imminent
danger of death or bodily harm." 14 Unlawful aggression refers to an attack that has actually broken out
or materialized or at the very least is clearly imminent: it cannot consist in oral threats or a merely
threatening stance or posture. 15 Further as pointed out by the Solicitor General, Francis was obviously
without a firearm or other weapon when Renato returned and burst into Room 15 demanding to know
where Francis was and forthwith firing at him repeatedly, without the slightest regard for the safety of his
other classmates and of the teacher. There being no unlawful aggression, there simply could not be selfdefense whether complete or incomplete, 16 and there is accordingly no need to refer to the other
requirements of lawful self-defense.
2. The claim that P.D. No. 1866 is inapplicable.
As pointed out at the outset, appellant was charged with unlawful possession of an unlicensed
firearm, a Smith and Wesson Airweight.38 caliber revolver with five (5) spent bullets and five (5) live
ones and with having used such firearm and ammunition to shoot to death Francis Ernest Escano III,
in violation of Section 1 of P.D. No. 1866.
Section 1 of P.D. No. 1866 provides, in relevant part, that:
Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of
Firearms or Ammunition or Instruments Used or Intended to be Used in the
Manufacture of Firearms or Ammunition. The penalty of reclusion temporal in its
maximum period to reclusion perpetua shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any firearms, part of
firearm, ammunition, or machinery, tool or instrument used or intended to be used in
the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty
of death shall be imposed. (Emphasis supplied)
Appellant urges that P.D. No. 1866 is inapplicable to him "considering that the reason for its [P.D. No.
1866] issuance no longer exists." He argues that P.D. No. 1866 was enforceable only during the
existence of martial law, and that when martial law was "lifted in 1979," the reason for the "existence"
of P.D. No. 1866 faded away, with the result that the "original law on firearms, that is, Section 2692
of the [Revised] Administrative Code, together with its pre-martial law amendments, came into effect
again thereby replacing P.D. No. 1866." 17
There is nothing in P.D. No. 1866 (which was promulgated on 29 June 1983) which suggests that it
was intended to remain in effect only for the duration of the martial law imposed upon the country by
former President Marcos. Neither does the statute contain any provision that so prescribes its
lapsing into non-enforceability upon the termination of the state or period of martial law. On the
contrary, P.D. No. 1866 by its own terms purported to "consolidate, codify and integrate" all prior
laws and decrees penalizing illegal possession and manufacture of firearms, ammunition and
explosives in order "to harmonize their provisions as well as to update and revise certain provisions
and prior statutes "in order to more effectively deter violators of the law on firearms, ammunitions
and explosives." 18 Appellant's contention is thus without basis in fact.

3. The claim of double jeopardy.

It is also contended by appellant that because he had already been charged with illegal possession
of a firearm and ammunition in Criminal Case No. 4007, aggravated by the use of such unlicensed
firearm to commit a homicide or murder, he was unconstitutionally placed in jeopardy of punishment
for the second time when he was charged in Criminal Case No. 4012 with murder "with the use of an
unlicensed [firearm]," in violation of Article 248 of the Revised Penal Code in relation to Section 17 of
B.P. Blg. 179.
It is elementary that the constitutional right against double jeopardy protects one against a second or
later prosecution for the same offense, and that when the subsequent information charges another
and different offense, although arising from the same act or set of acts, there is no prohibited double
jeopardy. In the case at bar, it appears to us quite clear that the offense charged in Criminal Case
No. 4007 is that of unlawful possession of an unlicensed firearm penalized under a special statute,
while the offense charged in Criminal Case No. 4012 was that of murder punished under the
Revised Penal Code. It would appear self-evident that these two (2) offenses in themselves are quite
different one from the other, such that in principle, the subsequent filing of Criminal Case No. 4012 is
not to be regarded as having placed appellant in a prohibited second jeopardy.
We note that the information in Criminal Case No. 4007 after charging appellant with unlawful
possession of an unlicensed firearm and ammunition, went on to state that said firearm and
ammunition had been used to shoot to death Francis Ernest Escao III. We note also that the
amended information in Criminal Case No. 4012 after charging appellant with the unlawful killing of
Francis Ernest Escao III, stated that the killing had been done with the use of an unlicensed
firearm. We believe these additional allegations in the two (2) informations did not have the effect of
charging appellant with having committed the same offense more than once.
However, in sentencing Renato to suffer the penalty of death for the crime of murder, the trial court
did take into account as a "special aggravating circumstance" the fact that the killing of Francis had
been done "with the use of an unlicensed firearm." In so doing, we believe and so hold, the trial court
committed error. There is no law which renders the use of an unlicensed firearm as an aggravating
circumstance in homicide or murder. Under an information charging homicide or murder, the fact that
the death weapon was an unlicensed firearm cannot be used to increase the penalty for the second
offense of homicide or murder to death (or reclusion perpetua under the 1987 Constitution). The
essential point is that the unlicensed character or condition of the instrument used in destroying
human life or committing some other crime, is not included in the inventory of aggravating
circumstances set out in Article 14 of the Revised Penal Code. 19
In contrast, under an information for unlawful possession (or manufacture, dealing in, acquisition or
disposition) of a firearm or ammunition, P.D. No. 1866 authorizes the increase of the imposable
penalty for unlawful possession or manufacture, etc. of the unlicensed firearm where such firearm
was used to destroy human life. Although the circumstance that human life was destroyed with the
use of the unlicensed firearm is not an aggravating circumstance under Article 14 of the Revised
Penal Code, it may still be taken into account to increase the penalty to death (reclusion perpetua,
under the 1987 Constitution) because of the explicit provisions of P.D. No. 1866. As noted earlier, the

unlawful possession of an unlicensed firearm or ammunition is an offense punished under a special

law and not under the Revised Penal Code.
4. The claim that there was no treachery.
Appellant contends that there was no treachery present because before any shot was fired, Renato
had shouted "where is Francis?" Appellant in effect suggests his opening statement was a warning
to Francis and that the first three (3) shots he had fired at Francis were merely warning shots.
Moreover, building upon his own testimony about the alleged threat that Francis had uttered before
he (Renato) left his English III class to go home and get a gun, appellant argues that Francis must
have anticipated his return and thus had sufficient time to prepare for the coming of the
appellant. 20 Appellant's contention, while ingenious, must be rejected. The trial court made a finding of
treachery taking explicit account of the following factors:
1. Room 15 of the Divine Word College High School Department Tagbilaran City, is
situated in the second floor of the building. It is a corner room and it has only one (1)
door which is the only means of entry and exit;
2. At the time of the attack, the deceased was seated on his chair inside his
classroom and was writing on the armrest of his chair and also talking to Ruel Ungab
and while their teacher, Mr. Damaso Pasilbas was checking the attendance. The
deceased was not aware of any impending assault neither did he have any means to
defend himself;
3. The accused used an airweight Smith & Wesson .38 caliber revolver in shooting to
death the defenseless and helpless Francis Ernest Escao;
4. The attack was so sudden and so unexpected. the accused consciously conceived
that mode of attack;
5. The accused fired at Francis again and again and did not give him a chance to
defend himself. After the deceased was hit on the head and fell to the floor while he
was already sprawled and completely defenseless the accused fired at him again
and the deceased was hit on the chest;
6. The deceased was not armed. He was totally defenseless. He was absolutely not
aware of any coming attack. 21
The Court also pointed out that Renato must have known that Francis while inside Room 15 had no
means of escape there being only one (1) door and Room 15 being on the second floor of the
building. Renato in effect blocked the only exit open to Francis as he stood on the teacher's platform
closest to the door and fired as Francis and Ruel sought to dash through the door. Renato's question
"where is Francis?" cannot reasonably be regarded as an effort to warn Francis for he shot at
Francis the instant he sighted the latter, seated and talking to Ruel Ungab. That Renato fired three
(3) shots before hitting Francis with the fourth shot, can only be ascribed to the indifferent
markmanship of Renato and to the fact that Francis and the other students were scurrying from one

part of the room to the other in an effort to evade the shots fired by Renato. The cumulative effect of
the circumstances underscored by the trial court was that the attack upon Francis had been carried
out in a manner which disabled Francis from defending himself or retaliating against Renato. Finally,
the circumstance that Renato, having been informed that Francis was still alive, re-entered Room 15
and fired again at Francis who lay on the floor and bathed with his own blood, manifested Renato's
conscious choice of means of execution which directly and especially ensured the death of his victim
without risk to himself. 22 We are compelled to agree with the trial court that treachery was here present
and that, therefore, the killing of Francis Ernest Escao III was murder.
5. The claim that there was no evident premeditation.
The trial court also found the presence of evident premeditation and appreciated the same as a
generic aggravating circumstance. Here, it is the urging of the appellant that the requisites of evident
premeditation had not been sufficiently shown. In order that evident premeditation may be taken into
account, there must be proof of (a) the time when the offender formed his intent to commit the crime;
(b) an action manifestly indicating that the offender had clung to his determination to commit the
crime; and (c) of the passage of a sufficient interval of time between the determination of the
offender to commit the crime and the actual execution thereof, to allow him to reflect upon the
consequences of his act. 23 The defense pointed out that barely fifteen (15) minutes had elapsed from
the time Renato left his English III class and the time he returned with a gun. While there was testimony to
the fact that before that fatal day of 14 December 1984, anger and resentment had welled up between
Francis and Renato, there was no evidence adequately showing when Renato had formed the intention
and determination to take the life of Francis. Accordingly, we must discard evident premeditation as an
aggravating circumstance.
6. The claim that the killing was not done under the influence of a dangerous drug.
Section 17 of B.P. Blg. 179 which was promulgated on 2 March 1982 provides as follows:
SEC. 17. The provisions of any law to the contrary notwithstanding, when a crime is
committed by an offender who is under the influence of dangerous drugs, such state
shall be considered as a qualifying aggravating circumstance in the definition of a
crime and the application of the penalty provided for in the Revised Penal Code.
The trial court found that Francis was killed by Renato while the later was under the influence of a
dangerous drug, specifically marijuana, and took that into account as a "special aggravating
circumstance". No medical evidence had been submitted by the prosecution to show that Renato
had smoked marijuana before gunning down Francis. Fourteen (14) days had elapsed after
December 14, 1984 before Renato was medically examined for possible traces of marijuana; the
results of the examination were negative. Defense witness Dr. Rogelio Ascona testified that in order
to have a medically valid basis for determining the presence of marijuana in the human system, the
patient must be examined within twenty-four (24) hours from the time he is supposed to have
smoked marijuana. 24 The prosecution had presented Orlando Balaba, a student at the Divine Word
College, High School Department, who testified that he found Renato and one Jaime Racho inside the
men's room of the High School Department sucking smoke from a hand-rolled thing that look like a
cigarette, that he had asked Renato what that was and that Renato had
replied damo (marijuana). 25 While the testimony of Orlando Balaba was corroborated by two (2) other

prosecution witnesses, we believe that Orlando Balaba's testimony was incompetent to show that what
Renato and Jaime Racho were smoking inside the men's room was indeed marijuana. It was pointed out
by apellant that Orlando Balaba had never smoked nor smelled marijuana.

In the absence of medical evidence, the Court took into account certain detailed factors as
circumstantial evidence supporting the testimony of Orlando Balaba. These circumstances were:
The circumstance of place where the killing was committed, the circumstance of the
manner of the attack, the circumstance of holding hostage some teachers and
students inside the faculty room, the circumstance of terrifying an entire school, the
circumstance that sitting on a scrapbook is too insignificant as to arouse passion
strong enough to motivate a killing, are circumstantial evidences that gave the court
no room for doubt that prosecution witnesses Orlando Balaba, Benjamin Amper and
Allan de la Serna truthfully told the court that they saw the accused smoking
marijuana inside the comfort room at 1:45 in the afternoon of December 14,
1984. ... . 26
The above circumstances pointed to by the trial court may be indicative of passionate anger on the
part of Renato; we do not believe that they necessarily show that Renato had smoked marijuana
before entering his English III class. In the absence of competent medical or other direct evidence of
ingestion of a dangerous drug, courts may be wary and critical of indirect evidence, considering the
severe consequences for the accused of a finding that he had acted while under the influence of a
prohibited drug. The Court considers that the evidence presented on this point was simply
inadequate to support the ruling of the trial court that Renato had shot and killed Francis while under
the influence of a prohibited drug.
7. The claim that appellant had voluntarily surrendered.
Appellant contends that he had voluntarily surrendered and that the trial court should have
considered that mitigating circumstance in his favor. The trial court did not, and we consider that it
correctly refused to do so. Firstly, Renato surrendered his gun, not himself, 27 by handing over the
weapon through the balustrade of the faculty room. Secondly, he surrendered the gun to his brother, who
was not in any case a person in authority nor an agent of a person in authority. 28 Thirdly, Renato did not
surrender himself he was arrested by Capt. Lazo. The fact that he did not resist arrest, did not constitute
voluntary surrender. 29 Finally, if it be assumed that Renato had surrendered himself, such surrender
cannot be regarded as voluntary and spontaneous. Renato was holed up in the faculty room, in effect
holding some teachers and students as hostages. The faculty room was surrounded by Philippine
Constabulary soldiers and there was no escape open to him. He was not entitled to the mitigating
circumstance of voluntary surrender.
8. Whether or not the crime was committed in contempt of or with insult to the public
authorities.
The trial court held that the shooting to death of Francis had been done "in contempt of or with insult
to the public authorities:

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

considered a person in authority. The fact that Mr. Damaso Pasilbas, the teacher in
mathematics, was already checking the attendance did not deter the accused from
pursuing his evil act, The accused ignored his teacher's presence and pleas. Not yet
satisfied with the crime and terror he had done to Francis and the entire school, the
accused entered the faculty room and held hostage the teachers and students who
were inside that room. To the court, this act of the accused was an insult to his
teachers and to the school, an act of callus disregard of other's feelings and safety
and completely reprehensible. 30
We believe the trial court erred in so finding the presence of a generic aggravating circumstance.
Article 152 of the Revised Penal Code, as amended by Republic Act No. 1978 and Presidential
Decree No. 299, provides as follows:
Art. 152. Persons in authority and agents of persons in authority. Who shall be
deemed as such. In applying the provisions of the preceding and other articles of
this Code, any person directly vested with jurisdiction, whether as an individual or as
a member of some court or government corporation, board, or commission, shall be
deemed a person in authority. A barrio captain and a barangay chairman shall also
be deemed a person in authority.
A person who by direct provision of law or by election or by appointment by
competent authority, is charged with the maintenance of public order and the
protection and security of life and property, such as a barrio councilman, barrio
policeman and barangay leader and any person who comes to the aid of persons in
authority, shall be deemed an agent of a person in authority.
In applying the provisions of Articles 148 and 151 of this Code, teachers,
professors and persons charged with the supervision of public or duly recognized
private schools, colleges and universities, and lawyers in the actual performance of
their professional duties or on the occasion of such performance, shall be deemed
persons in authority. (As amended by P.D. No. 299, September 19, 1973 and Batas
Pambansa Blg. 873, June 12, 1985).
Careful reading of the last paragraph of Article 152 will show that while a teacher or professor of a
public or recognized private school is deemed to be a "person in authority," such teacher or
professor is so deemed only for purposes of application of Articles 148 (direct assault upon a person
in authority), and 151 (resistance and disobedience to a person in authority or the agents of such
person) of the Revised Penal Code. In marked contrast, the first paragraph of Article 152 does not
identify specific articles of the Revised Penal Code for the application of which any person "directly
vested with jurisdiction, etc." is deemed "a person in authority." Because a penal statute is not to be
given a longer reach and broader scope than is called for by the ordinary meaning of the ordinary
words used by such statute, to the disadvantage of an accused, we do not believe that a teacher or
professor of a public or recognized private school may be regarded as a "public authority" within the
meaning of paragraph 2 of Article 14 of the Revised Penal Code, 31 the provision the trial court applied
in the case at bar.

ACCORDINGLY, the decision of the trial court dated 31 July 1986 is hereby MODIFIED in the
following manner and to the following extent only:
1. In Criminal Case No. 4007, appellant shall suffer the penalty of reclusion
perpetua;
2. In Criminal Case No. 4012 (a) the aggravating circumstances of evident
premeditation and of having acted with contempt of or insult to the public authorities
shall be DELETED and not taken into account; and (b) the special aggravating
circumstances of acting while under the influence of dangerous drugs and with the
use of an unlicensed firearm shall similarly be DELETED and not taken into account.
There being no generic aggravating nor mitigating circumstances present, the
appellant shall suffer the penalty of reclusion perpetua.
The two (2) penalties of reclusion perpetua shall be served successively in accordance with the
provisions of Article 70 of the Revised Penal Code. As so modified, the decision of the trial court is
hereby AFFIRMED. Costs against appellant.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Bidin and Cortes, JJ., concur.

Footnotes
1 Rollo, pp. 11-12.
2 Rollo, pp. 13-14.
3 Ibid, pp. 30-93.
4 TSN, 12 November 1985, pp. 179-180.
5 TSN, 28 April 1986, pp. 11-16.
6 TSN, 1 April 1985, pp. 8-16, 30: TSN, 2 April 1985, pp. 5-11.
7 TSN, 2 April 1985, pp. 11, 12,19-39; TSN, 25 April 1986, pp. 39-48.
8 TSN, 10 September 1985, pp. 144-147; TSN, 11 November 1985, pp. 106-107.
9 TSN, 1 April 1985, pp. 22-26.
10 TSN, 10 September 1985, pp. 152-154.

11 See Ballistic Report. Exhibit "I" for the Prosecution.

12 Article 11 (1), Revised Penal Code.
13 Appellant's Brief, pp. 23-24; Rollo, pp. 134-135.
14 Appellant's Brief, pp. 35-36; Rollo, pp. 146-147.
15 People v. Lachica, 132 SCRA 230 (1984).
16 People v. Nulla, 153 SCRA 471 (1987).
17 Appellants Brief, p. 42; Rollo, p. 153.
18 Third, Fourth and Fifth Whereas Clauses. P.D. No. 1866.
19 And even if it were, the provisions of Article 62, paragraph 1 of the same Code
would become applicable to prevent its being appreciated for the purpose of
increasing the imposable penalty:
Article 62. Effect of the attendance of mitigating or aggravating circumstances and of
habitual delinquency. ... ...
(1) Aggravating circumstances which in themselves constitute a crime specially
punishable by law or which are included bythe law in defining a crime and prescribing
the penalty therefor shall not be taken into account for the purpose of increasing the
penalty. (Emphasis supplied.)
20 Appellant's Brief, pp. 46-47; Rollo, pp. 157-158.
21 Rollo, pp. 82-83.
22 People v. Tingson, 47 SCRA 243 (1972).
23 People v. Estillore, 141 SCRA 456 (1986).
24 TSN, 1 April 1986, pp. 166-169.
25 TSN, 11 November 1985, pp. 172-175.
26 Rollo, p. 206.
27 People v. Palo, G.R. No. L-9593, 31 July 1957.
28 Article 13, paragraph 7, Revised Penal Code.

29 People v. Siojo, 61 Phil. 307 (1935); People v. Yuman, 61 Phil. 786 (1935); People
v. Velez, 58 SCRA 21 (1974); and People v. Conwi, 71 Phil. 595 (1976).
30 Decision, RTC, p. 45; Rollo, p. 207.
31 Reyes, L.B., Revised Penal Code, p. 133 (1981 ed.).